Cabrera v. Martin
| Decision Date | 21 August 1992 |
| Docket Number | 90-16666,Nos. 90-16665,s. 90-16665 |
| Citation | 973 F.2d 735 |
| Parties | 15 O.S.H. Cas. (BNA) 1841, 1992 O.S.H.D. (CCH) P 29,846 Isabel CABRERA, Manuel Perez, Roberto Ixta, Teresa Mendez, Andrea Pineda, Rudolfo Castillo, Maria Lizazaga, et al., Plaintiffs-Appellees, v. Lynn MARTIN * , Secretary of Labor, John Pendergrass, Assistant Secretary of Labor for Occupational Safety and Health, James Lake, Acting Regional Administrator, Region IX, United States Occupational Safety and Health Administration, Defendants-Appellants, George Deukmejian, Governor of the State of California, Defendant. Isabel CABRERA, Manuel Perez, Roberto Ixta, Teresa Mendez, Andrea Pineda, Rudolfo Castillo, Maria Lizazaga, et al., Plaintiffs-Appellees, v. Lynn MARTIN * , Secretary of Labor, John Pendergrass, Assistant Secretary of Labor for Occupational Safety and Health, James Lake, Acting Regional Administrator, Region IX, United States Occupational Safety and Health Administration, Defendants, George Deukmejian, Governor of the State of California, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert M. Loeb, U.S. Dept. of Justice, Washington, D.C., for Federal defendants-appellants.
Daniel G. Stone and Shelly Mydans, Deputy Atty. Gen., Sacramento, Cal., for State defendant-appellant.
Richard M. Pearl, Law Offices of Richard M. Pearl, San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before: FARRIS, RYMER, Circuit Judges, and KENYON **, District Judge, sitting by designation.
The Governor of the State of California, the Secretary of the U.S. Department of Labor ("DOL"), and two lower officials at the United States Occupational Safety and Health Administration appeal the district court's judgment awarding the appellees attorney's fees against DOL and the Governor pursuant to 42 U.S.C. § 1988. The appellees, comprised of three labor organizations and seven private sector employees who work in California, charged that the Governor lacked legal authority to unilaterally request the Secretary to withdraw approval of California's occupational safety and health plan ("Cal-OSHA") and sought injunctive relief against the Secretary prohibiting him from approving the Governor's request. The district court issued a preliminary injunction preventing DOL from terminating the state plan, but later dismissed the case as moot after the passage of Proposition 97, a state initiative that required the Governor to continue enforcing Cal-OSHA. Although the court never reached a decision on the merits, it found that the appellees were "prevailing parties" under 42 U.S.C. § 1983 and granted them attorney's fees against both the Governor and the federal defendants pursuant to 42 U.S.C. § 1988. We reverse.
The federal Occupational Safety and Health Act ("OSHA") was passed in 1970 for the purpose of assuring "safe and OSHA and the regulations promulgated by the Occupational Safety and Health Administration also provide for the termination of state plans. Under 29 C.F.R. § 1955.3(b), "[a] State" can voluntarily withdraw its OSHA plan "by notifying [DOL] in writing." A state plan also can be terminated involuntarily by DOL if the Secretary finds that the state has failed to comply substantially with any provision of the state plan. Before it can terminate a state plan, however, DOL is required to give notice and provide a hearing to the State. 29 U.S.C. § 667(f); 29 C.F.R. § 1955.10 et seq. DOL has interpreted this requirement to provide a right for any interested person to intervene "if the final decision could substantially affect them or the class they represent." 29 C.F.R. § 1955.17(a).
healthful working conditions" for all private sector workers. 29 U.S.C. §§ 651-678. Although the Act required DOL to develop and enforce minimum national standards, it envisioned that the states would eventually develop and administer their own occupational safety and health plans and, consequently, exempted state plans from federal preemption if they met certain minimum federal standards. 29 U.S.C. § 651 et seq
California enacted its own occupational safety and health plan ("Cal-OSHA"), which was approved by DOL, in 1973. Following its enactment, California developed enforcement guidelines that were far more stringent and comprehensive than those available under federal law. In 1987, however, the Governor of California, George Deukmejian, decided to eliminate Cal-OSHA due to budgetary constraints and return the responsibility for enforcing occupational safety and health standards to the federal government. In January 1987, Deukmejian submitted a budget proposal for the upcoming fiscal year that excluded any funds for the enforcement or regulatory activities of Cal-OSHA in the private sector. The Governor projected that eliminating Cal-OSHA would save the State $8 million.
In accordance with this plan, Governor Deukmejian notified the Secretary of DOL in writing on February 6, 1987, that California would be withdrawing its OSHA plan (and terminating its related federal grants) as of June 30, 1987. The Governor's letter stated that:
In accordance with the provisions of 29 CFR 1955.3(b) and 29 CFR 1951.25(d), I hereby notify you of California's withdrawal of its approved occupational safety and health plan and our termination of [the related grants] ... both effective June 30, 1987.
The letter also informed DOL that the proposed budget provided no funds for the operation of Cal-OSHA in the private sector. The effect of such a withdrawal, if approved by DOL, would have been the immediate termination of Cal-OSHA, 29 C.F.R. § 1955.4, and the preemption of California's more stringent standards and enforcement practices, as well as the end of any coverage for many California workers.
Deukmejiam's decision aroused considerable controversy in the California courts and the legislature. In the spring of 1987, two lawsuits were filed challenging his authority to dismantle Cal-OSHA. In one of those suits, James v. Deukmejian, No. 348657, a Sacramento Superior Court held that the Governor lacked such authority and declared Deukmejian's February letter to DOL to be "null and void". 1 The California legislature, for its part, implicitly challenged Deukmejian's authority by appropriating money for Cal-OSHA in the 1987-88 Budget Bill.
Under DOL regulations, the Secretary must publish a notice of withdrawal in the Federal Register when a "State" notifies him in writing that it wants to withdraw its plan. 29 C.F.R. § 1955.3(b). Due to the pending lawsuits and the possibility of legislative action, however, the Secretary was reluctant to withdraw the plan completely and resume exclusive federal authority.
Instead, DOL published notice in the Federal Register on June 10, 1987, advising that it would temporarily resume concurrent jurisdiction over private-sector worker safety in California, effective on July 1, 1987. DOL expressly declined to preempt Cal-OSHA, however, until there was a resolution of the dispute over the Governor's legal authority in the California courts and legislature
Following DOL's action in June, the conflict between the Governor and the legislature intensified still further. On July 6, Deukmejian exercised his line-item-veto power to eliminate funding that the legislature had appropriated for Cal-OSHA. In response, the California legislature passed a resolution on September 9, urging DOL not to accept the Governor's letter of withdrawal. When the legislature adjourned on September 11, 1987, however, it had neither appropriated new funds for Cal-OSHA nor overridden the Governor's line-item veto.
In light of the fact that Cal-OSHA no longer had funding as of September 11, 1987, DOL decided in late September to change its course and accept the Governor's request to withdraw approval of Cal-OSHA. DOL accordingly prepared a notice to be published in the Federal Register notifying the public that it would resume exclusive federal jurisdiction over private sector worker-safety in California as of October 1, 1987.
Upon hearing of DOL's decision, the appellee workers and labor organizations 2 filed this lawsuit against Secretary Brock 3 and two lower officials at the Occupational Safety and Health Administration, John Pendergrass and James Lake, seeking an injunction prohibiting DOL from approving Governor Deukmejian's request to withdraw Cal-OSHA until the legality of that decision had been determined by the California courts. The plaintiffs asserted that under both California and federal law, the word "State" as used in 29 C.F.R. § 1955.3(b) referred to the legislature, rather than the Governor, and that the Governor's letter of February 6, 1987 was thus ineffective as a notice of voluntary withdrawal. Since the federal regulations only provided for "voluntary withdrawal" upon request of the state legislature, the plaintiffs argued that DOL could only withdraw approval of Cal-OSHA through the procedures established for involuntary termination, which require DOL to provide notice and an opportunity for a hearing before an administrative law judge, pursuant to 29 U.S.C. § 667(f) and 29 C.F.R. §§ 1955.1-1955.47.
The district court issued a temporary restraining order against the federal defendants on the same day the case was filed, September 30, 1987. A week later, on October 6, plaintiffs filed their first amended complaint, adding Governor Deukmejian as a defendant and seeking declaratory relief that he lacked authority under both state and federal law to unilaterally withdraw Cal-OSHA and that his notice to DOL was thus invalid for purposes of federal law.
At the preliminary injunction hearing on October 19, 1987, the Court concluded that "the plaintiffs' position is a substantial one" and subsequently granted an injunction on October 21...
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