National Congress of Hispanic American Citizens v. Usery
| Decision Date | 01 June 1977 |
| Docket Number | No. 76-1009,76-1009 |
| Citation | 554 F.2d 1196,180 U.S.App.D.C. 337 |
| Parties | , 5 O.S.H. Cas.(BNA) 1255, 1977-1978 O.S.H.D. ( 21,708 NATIONAL CONGRESS OF HISPANIC AMERICAN CITIZENS et al. v. William J. USERY, Secretary of Labor, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Marc R. Hillson, Atty. U. S. Dept. of Labor, Washington, D. C., with whom Michael H. Levin, Counsel for Appellate Litigation U. S. Dept. of Labor, Washington, D. C., was on the brief, for appellant.
H. Michael Semler, Washington, D. C., with whom Lester N. Scall, Washington, D. C., was on the brief, for appellees.
Before Mr. Justice CLARK, * of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.
Opinion for the Court filed by Justice CLARK.
This appeal by the Secretary of Labor (The Secretary), appellant, seeks the reversal of a summary judgment entered against him and favorable to The National Congress of Hispanic Americans and five of its members (El Congreso), Appellees. El Congreso, whose members are farm workers, sought the promulgation under The Occupational Safety and Health Act of 1970 (OSHA) of safety and health standards in the areas of field sanitation, roll over protective structures (ROPS), machinery guarding equipment, personal protective equipment, nuisance dust and noise. The Secretary had filed a cross-motion for summary judgment which was denied, and a final judgment was entered on October 7, 1975, which provided:
Ordered that plaintiffs' summary judgment should be and the same hereby is granted; and it is further
Ordered that defendant's motion for summary judgment be and the same hereby is denied; and it is further
Ordered that judgment be entered for the plaintiff.
No other judgment was entered, and it is necessary to look to the accompanying opinion of the court and the pleading to ascertain the content of the judgment. We find such a final judgment order wholly inadequate, especially in light of the breadth of the relief requested by El Congreso, the claim of the Secretary that some of the OSHA standards have been promulgated and the general nature of the opinion of the trial judge. However, the point has not been raised, and the parties apparently understand the judgment's coverage as indicated by their respective briefs. We do believe that the better practice would be for the trial judge to recite in the final judgment the specific relief granted, as well as that denied. We will deal with the merits of the case as treated by the briefs of the parties.
The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. 84 Stat. 1590, was designed to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . ." 1 The enormity of the problem is shown by the fact that there are some 65,000,000 workers engaged in their respective labor in approximately 5 million work-places. 2 The Secretary was assigned the task of accomplishing the goals of the Act through the promulgation and enforcement of "standards" that require employers to provide safe and healthful employment and working conditions for their employees. Two means by which standard development is provided by the Act are: Section 6(c), which authorizes temporary emergency standards (not involved here) to be issued without notice, if the Secretary finds that certain groups of employees are exposed to "grave danger" from a hazard, requiring emergency standard protection. The other means is found in Sections 6(b)(1) through (4) of the Act which prescribe a full scale notice and comment procedure for the development of permanent occupational safety and health standards, including timetables covering each step of the rule-making procedure. Under these sections, The Secretary may initiate rule-making on his initiative alone by publishing a proposed standard or seek the recommendations of an advisory committee by having it submit a proposed standard to him for consideration. After the latter of these procedures is invoked, the proposed standard moves through several statutory steps, each of which has a maximum timetable in which the step must be completed. The specific timetable for each step is: (1) The Advisory Committee shall propose a standard within 270 days; The Secretary shall publish this proposed standard within 60 days after its receipt, following which comments by interested parties must be filed in 30 days; within 30 days after the last day for filing comments on the proposed standard, the Secretary shall specify the time and place for a hearing on the same; and within 60 days after the hearing, the Secretary shall issue the standard or determine that it shall not be issued.
The sole issue involved is whether Congress meant for the timetable in Section 6(b)(1) through (4) of the Act to be mandatory. El Congreso insists that the words of the Act are mandatory and were deliberately used by the Congress to insure the swift issuance of the standards involved. The Secretary, on the other hand, urges that there must be some leeway because of the great demand from various working groups in literally hundreds of occupations and the limited resources of his Department. It is his contention that the Congress ordered him to make a rational priority choice between those occupations experiencing severe hazards to health which require immediate resource allocations and those having less serious health problems whose deferment will not cause such hazardous consequences. In support of his contention, The Secretary points to Section 6(g), which provides:
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, drafts, occupations, businesses, work-places or work environments . . .
In proposing this amendment to the Act, Senator Javits stated that his purpose was "to relieve The Secretary of the necessity of waiting to promulgate whatever standards he wishes to promulgate across the board but, rather, allowing him to yield to more ...
To continue reading
Request your trial
-
Farmworker Justice Fund, Inc. v. Brock, 85-1824
...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......
-
Cutler v. Hayes
...most effective structuring and timing of proceedings to resolve those competing demands"); National Congress of Hispanic Am. Citizens v. Usery, 180 U.S.App.D.C. 337, 341, 554 F.2d 1196, 1200 (1977).151 The APA imposes a judicially-enforceable duty to proceed with reasonable dispatch. See ge......
-
Natural Resources Defense Council, Inc. v. Fox, 94 Civ. 8424(PKL).
... ... otherwise not in accordance with law.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 ... the agency has relied on factors which Congress has not intended it to consider, entirely failed ... 35 (citing National Congress of Hispanic American ... Page 548 ... Citizens v. Usery, 554 F.2d 1196 (D.C.Cir. 1977) ("Even where a ... ...
-
Donovan v. Oil, Chemical, and Atomic Workers Intern. Union and Its Local 4-23
...not compel the Secretary to adopt a particular standard. OCAW v. OSHRC, supra, 671 F.2d at 649 (citing National Congress of Hispanic Am. Citizens v. Usery, 554 F.2d 1196 (D.C.Cir.1977)). As parties, they may not prosecute a citation once the Secretary decides to withdraw it, Marshall v. OSH......
-
Self-Imposed Agency Deadlines.
...agency priorities--all have contributed to the delay."). (157.) ASH, 100 F.3d at 994 (citing Nat'l Cong, of Hisp. Am. Citizens v. Usery, 554 F.2d 1196, 1198-1200 (D.C. Cir. (158.) Id. (159.) Id. (160.) Id. at 995. (161.) For a discussion of which jurisdictions treat statutory deadlines as n......