National Congress of Hispanic American Citizens (El Congreso) v. Marshall, 79-1228
| Decision Date | 27 December 1979 |
| Docket Number | No. 79-1228,79-1228 |
| Citation | 200 U.S.App.D.C. 18,626 F.2d 882 |
| Parties | , 7 O.S.H. Cas.(BNA) 2029, 1979 O.S.H.D. (CCH) P 24,115 NATIONAL CONGRESS OF HISPANIC AMERICAN CITIZENS (EL CONGRESO) et al., Appellees, v. Ray MARSHALL, Secretary of United States Department of Labor, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Nancy L. Southard, Acting Asst. U. S. Dept. of Labor Counsel, Washington, D. C., with whom Allen H. Feldman, Acting Counsel and Domenique Kirchner, Atty., U. S. Dept. of Labor, Washington, D. C., were on brief, for appellants.
Leslie A. Sussan, New York City, a member of the bar of the Supreme Court of New York, pro hac vice, by special leave of Court with whom H. Michael Semler, Washington, D. C., and John F. Ebbott, Christiansburg, Va., were on brief, for appellees.
Before LEVENTHAL * and WILKEY, Circuit Judges and OBERDORFER, ** United States District Judge for the District of Columbia.
Opinion for the Court filed by Circuit Judge LEVENTHAL.
The Secretary of Labor appeals from a judgment of the district court directing him to complete development of a field sanitation standard as quickly as possible and to present to that court for its approval a timetable indicating when the standard would be completed. 1 We reverse and remand for further consideration.
A. The History of the Litigation : In December, 1973, the National Congress of Hispanic American Citizens (El Congreso) filed this action to compel the Secretary of Labor to promulgate safety and health standards for the agricultural industry, specifically identifying standards governing field sanitation, farm safety equipment, roll-over tractor protection, personal protective equipment, nuisance dust and noise. 2 El Congreso argued that, by not issuing these standards within a designated time after he had begun action on them, the Secretary had abused his discretion and had unlawfully withheld and unreasonably delayed agency action in violation of § 6(b)(1)-(4) of the Occupational Safety and Health Act of 1970. 3 The district court holding that mandatory time frames are triggered once the Secretary begins action on a standard, ordered the Secretary to publish a final farm machinery guarding standard, and to proceed, according to the time frames of § 6(b), with publishing final protective equipment and field sanitation standards. 4 Since the district court believed that any departure from the statutory timetable violated the Act, it did not examine the Secretary's criteria for setting the priorities that led to delay in issuing the particular standards in dispute, it did not reach the question of whether that delay constituted an abuse of discretion, and it made no finding regarding the relative need for a field sanitation standard or any other standard.
On appeal, we reversed stating, in our 1977 opinion, that the mandatory language of the Act did not negate the "implicit acknowledgement that traditional agency discretion to alter priorities and defer action due to legitimate statutory considerations was preserved." 5 We pointed out that the Secretary may "rationally order priorities and reallocate his resources at any rulemaking stage" so long as "his discretion is honestly and fairly exercised." 6 We ordered the trial court to require the Secretary to file a report on the situation with regard to each proposed standard, including timetables for their development. 7 We stated that if the district court was satisfied with the sincerity of the Secretary's effort, it should hold the case for further reports; but that if it was not so satisfied, it should act accordingly. 8
On December 26, 1978, in a memorandum opinion and final order, the district court concluded its consideration upon remand with respect to the standard for field sanitation. Finding that "the Secretary (had) not established any criteria which would enable the Court to determine that the agency (had) acted in a rational manner," the district judge concluded that the Secretary's refusal to complete a field sanitation standard was inconsistent with the requirements of the Act and the mandate of this court, and that, therefore, the Secretary "must be directed to complete development of a field sanitation standard . . . as soon as possible." 9
The Secretary appealed and sought and obtained from us a stay of the district court order. Sua sponte, we ordered expedited treatment.
B. The History of the Field Sanitation Standard : In September, 1972, El Congreso petitioned the Secretary to promulgate six safety and health standards, including a field sanitation standard. When by December, 1973, the Secretary had neither issued these standards nor published a finding that they should not be issued, El Congreso brought this action. 10 Prior to the initial decision of the district court (Hispanic I), 11 the field sanitation standard had been referred by the Secretary to the Standards Advisory Committee on Agriculture (SACA). That committee gathered oral and written testimony from the agricultural and medical communities, and in December, 1974, it approved the recommended standard and submitted it to the Secretary. It was the Secretary's failure to act upon this recommendation within 60 days that prompted the district court to find a violation of the statutory timetable 12 in Hispanic I.
In April, 1976, the Secretary published a proposed field sanitation standard. 13 Specifically, he proposed requiring that agricultural employers provide potable drinking water for field employees in order to reduce human strain resulting from excessive heat, 14 and he proposed requiring that toilet and handwashing facilities be provided so as to reduce transmission of infection and disease. 15 The statement accompanying the proposals indicated that field sanitation standards were necessary to protect the safety and health of agricultural workers and to give effect to the congressional desire that agricultural employees be brought into the mainstream of the American labor force. 16
In April 1977, we rendered our decision in Hispanic I, reversing the district court's finding that the Act's timetables were mandatory and remanding the case with instructions that the court require the Secretary to file a report and timetable regarding the field sanitation standard. On September 6, 1977, the Secretary filed his report with the district court. 17 In it, he said the field sanitation standard was a relatively low priority which, because of the press of other rulemaking proceedings, would receive no further consideration for at least one year, during which time its status would be reviewed. 18 This determination had been reached, he said, after a review of the agency's rulemaking priorities, especially with regard to three criteria: (1) the number of employees exposed to an unregulated hazard; (2) the severity of such hazards; and (3) the agency resources which would have to be expended to develop adequate regulations covering a given hazard. 19 In the Secretary's view, a field sanitation standard simply had to wait:
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. In addition we must take into account that rulemaking in this area would be quite lengthy and would involved a substantial resource allocation. While as the proposed rule, 41 Fed.Reg. 17576, indicates, there are some ill effects which may result to employees, from the absence of a field sanitation standard, rational resource allocation demands that the more pressing standards . . . be developed first. 20
El Congreso was not satisfied with the Secretary's conclusion, arguing that the report did not sufficiently detail priorities, that it did not explain why some standards should take precedence over a field sanitation standard, and that it did not sufficiently detail the resources available to the Secretary, El Congreso requested additional discovery to further explore the basis of the Secretary's decision. The district court agreed, and in May, 1978, El Congreso served the Secretary with 162 interrogatories.
In response to the interrogatories, the Secretary elaborated upon his earlier statement of the factors entering into the priority-setting process. He distinguished health standards from safety standards. For the former, he said that he considered: the number of workers exposed to particular unregulated hazards; the severity of such hazards; the existence of research relevant to hazard identification and methods of hazard control; the recommendations of the National Institute for Occupational Safety and Health (NIOSH); petitions for standards on the hazards; and court decisions and other factors affecting the enforceability of the standard. Severity was noted as the most important consideration. 21 In the safety area, the factors identified as important by the Secretary were slightly different. They included: the number of workers exposed to particular unregulated hazards; the illness or injury incidence of the affected worker group; the nature and severity of the hazard exposure; the need for classification, simplification and/or revision to improve compliance with the enforceability of an existing standard; changes in the state of the art in work practices; court or Occupational Safety and Health Review Commission decisions affecting the enforceability of existing standards; availability of research and other information relevant to hazard identification and methods of hazard control; the recommendations of NIOSH; ...
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