Farmworker Justice Fund, Inc. v. Brock, No. 85-1824

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, WILLIAMS; WALD; WILL; WILLIAMS
Citation811 F.2d 613,258 U.S.App.D.C. 271
Parties, 55 USLW 2431, 13 O.S.H. Cas.(BNA) 1049, 1986-1987 O.S.H.D. ( 27,808 FARMWORKER JUSTICE FUND, INC., et al., Petitioners, v. William E. BROCK, Secretary of Labor, et al., Respondents.
Decision Date07 May 1987
Docket NumberNo. 85-1824

Page 613

811 F.2d 613
258 U.S.App.D.C. 271, 55 USLW 2431,
13 O.S.H. Cas.(BNA) 1049,
1986-1987 O.S.H.D. ( 27,808
FARMWORKER JUSTICE FUND, INC., et al., Petitioners,
v.
William E. BROCK, Secretary of Labor, et al., Respondents.
No. 85-1824.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 6, 1986.
Decided Feb. 6, 1987.
Opinion and Judgment Vacated as Moot May 7, 1987.

Page 614

Petition for Review of an Order of the Occupational Safety and Health Administration.

George H. Mernick, III, with whom William A. Bradford, Jr. and Patricia A. Brannon, Washington, D.C., were on brief, for petitioners.

Mark B. Stern, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice and Joseph M. Woodward, Counsel, Dept. of Labor, Washington, D.C., were on brief, for respondents. Alfred R. Mollin, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondents.

Before WALD, Chief Judge, WILLIAMS, Circuit Judge, and WILL *, Senior District Judge.

Opinion for the Court filed by Chief Judge WALD.

Concurring opinion filed by Senior District Judge WILL.

Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.

WALD, Chief Judge:

This appeal culminates a 14-year struggle to compel the Secretary of Labor under the Occupational and Health Safety Act (OSH Act) to issue a field sanitation standard providing access to drinking water and toilets for several million American agricultural workers. 1 The rulemaking record demonstrates beyond dispute that lack of drinking water and toilets causes the spread of contagion, bladder disease, and heat-prostration among farmworkers. Yet resistance to issuing the standard, a counterpart of which is already in place for every other OSHA-covered type of employment, has been intractable. An arsenal of administrative law doctrines has provided the justification for ricocheting the case between the agency and the courts for over a decade: a decade in which field workers have gone without benefit of drinking water or the most rudimentary sanitary facilities. With our decision today ordering the field sanitation rule to issue, we hope to bring to an end this disgraceful chapter of legal neglect.

I. HISTORY

In September 1972, El Congreso, an organization that represents Hispanic American citizens, including agricultural workers, petitioned the Secretary to promulgate a field sanitation standard requiring access to drinking water, handwashing facilities and portable toilets. When nothing had happened by December 1973, El Congreso brought suit in the United States District Court for the District of Columbia to compel the Secretary to issue the standard. In December 1974, the Standards Advisory Committee on Agriculture, to whom the Secretary had referred El Congreso's petition

Page 615

for factfinding and a recommendation, sent an approved standard back to the Secretary.

Ten months later, in October 1975, the District Court held that "[t]he Secretary's failure to publish the proposed rule [or explain his failure to do so] in the Federal Register within sixty days after the Advisory Committee's recommendation violates the mandatory time limits of the Occupational Safety and Health Act." 2 National Congress of Hispanic American Citizens (El Congreso) v. Dunlop, 425 F.Supp. 900, 903 (D.D.C.1975). The District Court then ordered the Secretary to "proceed within the Act's time limits toward publishing final ... field sanitation standards." Id.

The Secretary appealed this decision to this court. While the appeal was pending, on April 27, 1976, the Department of Labor published notice of a proposed field sanitation standard and invited public comment until July 6, 1976. The Notice of Proposed Rulemaking contained the following explanation of the need for a field sanitation standard:

The absence or inadequacy of basic sanitation and hygiene has long been recognized by medical science as a principal factor in the transmission of fecal-born bacterial and viral diseases and other debilitating parasitic infections.

... The direct effect of improved safe-drinking water and proper excreta disposal is exemplified by the eradication in this country of cholera, typhoid and paratyphoid fevers and reduced evidence of dysentery, infant diarrhea, hookworm and other intestinal and parasitic infections.

A standard for sanitation has been in effect for all permanent workplaces since OSHA first began promulgating its regulations in 1971. Facilities for sanitation have also been required in the construction industry and in temporary labor camps.

At the present time, there are no such health standards for agricultural employees working in the field. Those who are engaged in field labor have the same physiological and hygienic needs, and are exposed to similar health hazard risks as their industrial counterparts. These risks are often exacerbated as a result of exposure to toxic substances and severe climatic conditions.

* * *

There is substantial medical evidence of human strain which results from working without adequate water intake under hot environmental conditions.... Making drinking water of potable quality easily accessible to workers will help prevent such problems.

* * *

Incidents of infection and disease which are transmitted by both insect-borne and hand-to-mouth contagion may be reduced by the use of toilet and hand-washing facilities.... [Also,] especially among women, [there] has been prolonged retention often resulting in the development of painful bladder disease.

41 Fed.Reg. 17,576, 17,576-77 (April 27, 1976).

Despite the Notice of Proposed Rulemaking describing the need for a field sanitation standard, the Secretary still had not issued the standard by April of the following year. At that time, this court reversed the District Court's mandate to issue the standard on the ground that the language of 29 U.S.C. Sec. 655(b), relied upon by the

Page 616

District Court, could not be given literal effect in light of Sec. 655(g), which states: "In determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries, trades, crafts, occupations, businesses, workplaces or work environments." In our view, Sec. 655(g) preserved "traditional agency discretion to alter priorities and defer action due to legitimate statutory considerations, at any step of the rulemaking process." National Congress of Hispanic American Citizens v. Usery, 554 F.2d 1196, 1200 (D.C.Cir.1977) (El Congreso I ). The case was remanded to the District Court with instructions to require the Secretary to submit a status report on the field sanitation standard and a timetable for the completion of rulemaking proceedings; if the District Court doubted the sincerity of the Secretary's explanation for the delay, it "should take such action as the circumstances require." Id.

In September 1977, the Secretary filed his report with the District Court.

The agency regards a field sanitation standard as a matter of low priority. The hazards from lack of such a standard include transmission of bacteria and infection, and bladder disease. In the agency's judgment, these hazards are neither as serious as those presented by the substances, agents or physical conditions with respect to which rulemaking has been initiated, nor as serious as those presented by other substances for which rulemaking has not begun.

National Congress of Hispanic American Citizens (El Congreso) v. Marshall, 626 F.2d 882, 885 (D.C.Cir.1979) (El Congreso II ) (quoting the Secretary's report). In the Secretary's view a field sanitation standard simply had to wait a while longer.

The District Court, however, found the Secretary's report inadequate because it lacked "a timetable for the completion of rulemaking proceedings" per the appellate court's instruction. In August 1978, the District Court ordered the Secretary to submit such a timetable for rulemaking to the court, but the Secretary in turn responded: "At the present time, the development of a field sanitation standard does not appear on the agency's 18-month planning horizon because of both generally limited agency resources and the relatively low priority assigned to these particular standards." 626 F.2d at 886 (quoting the Secretary's submission). Frustrated by the Secretary's refusal to provide any clues as to his future plans, the District Court ordered the Secretary to complete development of a field sanitation standard "as soon as possible." Memorandum Opinion at 5 (December 21, 1978) (quoted in El Congreso II, 626 F.2d at 884).

Once again, the Secretary appealed the District Court's decision. Once again, this court reversed, holding that the District Court had improperly substituted "its own view of appropriate priorities for standards development" by requiring the Secretary to complete the rulemaking "as soon as possible." El Congreso II, 626 F.2d at 889. We held that "the Secretary ha[d] reasonably exercised his discretion" on postponing field sanitation in order to confront more pressing priorities. Id.

Nevertheless, we also held that the Secretary could not delay the field sanitation rulemaking indefinitely. We noted that our prior opinion had "made clear that El Congreso was entitled to some timetable for the development of a field sanitation standard." Id. at 890 (emphasis in original). Given the acknowledged need for field sanitation, we said that the Secretary must promulgate a standard eventually:

Where the Secretary deems a problem significant enough to warrant initiation of the standard setting process, the Act requires that we have a plan to shepherd through the development of the standard--that he takes pains, regardless of the press of other priorities, to ensure that the standard is not inadvertently lost in the process.

It is not...

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19 practice notes
  • Walker v. Pierce, No. C-87-2628 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 6, 1987
    ...Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). In Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613 (D.C.Cir.), vacated as moot, 817 F.2d 890 (D.C.Cir.1987),2 the D.C. Circuit relied upon this general principle to hold that the Secretary of......
  • Nat'l Urban League v. Ross, Case No. 20-CV-05799-LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 24, 2020
    ...deadlines, a "14-year struggle to compel the Secretary of Labor" to promulgate a rule ensued. Farmworker Justice Fund, Inc. v. Brock , 811 F.2d 613, 614 (D.C. Cir.), vacated sub nom. as moot , Farmworkers Justice Fund, Inc. v. Brock , 817 F.2d 890 (D.C. Cir. 1987). As relevant here, when th......
  • Mass. Bldg. Trades Council v. United States Dep't of Labor, Occupational Safety & Health Admin. (In re MCP No. 165, Occupational Safety & Health Admin.), 21-7000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 17, 2021
    ...decided that the federal government would take the lead in regulating the field of occupational health." Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. Cir. 1987) (quoting Am. Textile Mfrs. Inst., 452 U.S. at 509). In sum, the major questions doctrine is inapplicable here. OSHA's i......
  • National Solid Wastes Management Ass'n v. Killian, No. 89-3069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 29, 1991
    ...868 F.2d 621 (3d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3246, 106 L.Ed.2d 593 (1989); Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 625-26, 640-41 (D.C.Cir.1987), opinion vacated on other grounds, 817 F.2d 890 (D.C.Cir.1987); Ohio Mfrs. Ass'n v. City of Akron, 801 F.2d 824, 8......
  • Request a trial to view additional results
19 cases
  • Walker v. Pierce, No. C-87-2628 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 6, 1987
    ...Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77 L.Ed.2d 443 (1983). In Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613 (D.C.Cir.), vacated as moot, 817 F.2d 890 (D.C.Cir.1987),2 the D.C. Circuit relied upon this general principle to hold that the Secretary of......
  • Nat'l Urban League v. Ross, Case No. 20-CV-05799-LHK
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • September 24, 2020
    ...deadlines, a "14-year struggle to compel the Secretary of Labor" to promulgate a rule ensued. Farmworker Justice Fund, Inc. v. Brock , 811 F.2d 613, 614 (D.C. Cir.), vacated sub nom. as moot , Farmworkers Justice Fund, Inc. v. Brock , 817 F.2d 890 (D.C. Cir. 1987). As relevant here, when th......
  • Mass. Bldg. Trades Council v. United States Dep't of Labor, Occupational Safety & Health Admin. (In re MCP No. 165, Occupational Safety & Health Admin.), 21-7000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 17, 2021
    ...decided that the federal government would take the lead in regulating the field of occupational health." Farmworker Just. Fund v. Brock, 811 F.2d 613, 625 (D.C. Cir. 1987) (quoting Am. Textile Mfrs. Inst., 452 U.S. at 509). In sum, the major questions doctrine is inapplicable here. OSHA's i......
  • National Solid Wastes Management Ass'n v. Killian, No. 89-3069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 29, 1991
    ...868 F.2d 621 (3d Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3246, 106 L.Ed.2d 593 (1989); Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 625-26, 640-41 (D.C.Cir.1987), opinion vacated on other grounds, 817 F.2d 890 (D.C.Cir.1987); Ohio Mfrs. Ass'n v. City of Akron, 801 F.2d 824, 8......
  • Request a trial to view additional results

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