Pursuant to the Occupational Safety and Health Act (Act), the
Secretary of Labor issued a citation to Cuyahoga Valley Railway Co.
for a violation of the Act; the company contested the citation; the
Secretary filed a complaint with the Occupational Safety and Health
Review Commission (Commission), and the company filed an answer;
and the United Transportation Union, which represents the company's
employees, intervened. At the hearing, the Administrative Law Judge
(ALJ), over the Union's objection, granted the Secretary's motion
to vacate the citation on the ground that the Secretary did not
have jurisdiction over the relevant safety conditions. Despite the
Secretary's objection, the Commission directed review of the ALJ's
order and ultimately remanded the case to the ALJ for consideration
of the Union's objections. The Court of Appeals affirmed, holding
that, because the adversarial process was well advanced at the time
the Secretary attempted to withdraw the citation, the Commission,
as the adjudicative body, had the authority to review the
Secretary's withdrawal of the citation.
Held: The Secretary has unreviewable discretion to
withdraw a citation charging an employer with violating the Act.
The Court of Appeals' decision is inconsistent with the detailed
statutory scheme, which contemplates that the rights created by the
Act are to be protected by the Secretary, and that enforcement of
the Act is the Secretary's sole responsibility. The Commission's
function is to act as a neutral arbiter and to determine whether
the Secretary's citations should be enforced. Its authority does
not extend to overturning the Secretary's decision not to issue or
to withdraw a citation.
Certiorari granted; 748 F.2d 340, reversed.
PER CURIAM.
The Secretary of Labor is authorized to inspect work sites to
uncover noncompliance with the Occupational Safety and
Page 474 U. S. 4
Health Act. 29 U.S.C. § 657(a). If, as a result of such an
inspection, the Secretary discovers a violation of the Act, he is
authorized to issue a citation to the employer fixing a reasonable
time for the abatement of the violation, § 658(a), and assessing a
penalty for the violation. § 666. The employer then has 15 days in
which to contest the citation. §659(a). Similarly, employees have
15 days in which to challenge as unreasonable "the period of time
fixed in the citation for the abatement of the violation." § 659(c)
See generally Whirlpool Corp. v. Marshall, 445 U. S.
1,
445 U. S. 9, n. 11
(1980). The statute and rules of the Occupational Safety and Health
Review Commission also permit affected employees to participate as
parties in any hearing in which the employer contests the citation.
29 U.S.C. § 659(c); 29 CFR § 2200.20(a) (1985).
If an employer contests the citation, and the Secretary intends
to seek its enforcement, the Secretary must file a complaint with
the commission within 20 days, and the employer must file an answer
within 15 days. 29 CFR § 2200.33 (1985). Once these pleadings are
filed, a hearing to determine the validity of the citation will be
held before an administrative law judge (ALJ), with discretionary
review by the Commission. 29 U.S.C. §§ 659(c), 661(j).
In the present cases, the Secretary cited Cuyahoga Valley
Railway Company for a violation of the Act. Cuyahoga contested the
citation, the Secretary filed a complaint with the Commission, and
Cuyahoga filed an answer. Respondent United Transportation Union,
which represents Cuyahoga employees, properly moved to intervene in
the proceedings. At the hearing, however, the Secretary moved to
vacate the citation on the ground that the Federal Railway
Administration, not the Secretary, had jurisdiction over the
relevant safety conditions. Despite the Union's objection, the ALJ
granted the Secretary's motion and vacated the citation.
Thereafter, the Commission directed review of the ALJ's order. The
secretary promptly objected to this action, asserting
Page 474 U. S. 5
that part of the citation involved matters beyond the reach of
the Act and that additional portions of the citation did not
warrant litigation because of the state of the evidence. He also
stated that the record before the Commission was inadequate to
resolve the issue posed. [
Footnote
1] Some six years later, the Commission rejected this
submission and remanded the case to the ALJ for consideration of
the Union's objections.
The Court of Appeals for the Sixth Circuit affirmed the
Commission'S holding that it could review the Secretary's decision
to withdraw a citation.
Donovan v. United Transportation
Union, 748 F.2d 340 (1984). The court recognized that the
Secretary "has the sole authority to determine whether to
prosecute" a violation of the Act.
Id. at 343. Here,
however, the court found that the Secretary
"had already made the decision to prosecute by filing a
complaint, and that complaint had been answered at the time the
Secretary attempted to withdraw the citation."
Ibid. Because the "adversarial process was
well-advanced at the time the Secretary attempted to withdraw the
citation," the court reasoned that the Commission, "as the
adjudicative body, had control of the case and the authority to
review the Secretary's withdrawal of the citation."
Ibid.
[
Footnote 2]
Page 474 U. S. 6
Contrary to the Sixth Circuit's decision, eight other Courts of
Appeals have held that the Secretary has unreviewable discretion to
withdraw a citation charging an employer with violating the
Occupational Health and Safety Act.
Donovan v. Allied
Industrial Workers (Midland), 760 F.2d 783, 785 (CA7 1985);
Donovan v. Local 962, International Chemical Workers Union
(Englehard), 748 F.2d 1470, 1473 (CA11, 1984);
Donovan v.
International Union, Allied Industrial Workers (Whirlpool),
722 F.2d 1415, 1422 (CA8 1983);
Donovan v. United Steelworkers
of America (Monsanto), 722 F.2d 1158, 1160 (CA4 1983);
Donovan v. Oil, Chemical and Atomic Workers International
(American Petrofina), 718 F.2d 1341, 1352-1353 (CA5 1983),
cert. denied, 466 U.S. 971 (1984);
Donovan v.
Occupational Safety and Health Review Comm'n (Mobil Oil), 713
F.2d 918, 926-927 (CA2 1983);
Oil, Chemical and Atomic Workers
International v. Occupational Safety and Health Comm'n (American
Cyanamid), 217 U.S.App.D.C. 137, 144-145, 671 F.2d 643,
650-651,
cert. denied, 459 U.S. 905 (1982);
Marshall
v. Sun Petroleum Products Co., 622 F.2d 1176, 1187 (CA3),
cert. denied, 449 U.S. 1061 (1980). We agree with the
decisions of these courts.
It is apparent that the Court of Appeals' decision is
inconsistent with the detailed statutory scheme which contemplates
that the rights created by the Act are to be protected by the
Secretary.
See Atlas Roofing Co. v. Occupational Safety and
Health Comm'n, 430 U. S. 442,
430 U. S.
444-447 (1977);
Mobil Oil, supra, at 927;
Sun Petroleum Products, supra, at 1187. It is also clear
that enforcement of the Act is the sole responsibility of the
Secretary.
Oil, Chemical and Atomic Workers International v.
Occupational Safety and Health Comm'n, supra, at 143, 671 F.2d
at 649. It is the Secretary,
Page 474 U. S. 7
not the Commission, who sets the substantive standards for the
workplace, and only the Secretary has the authority to determine if
a citation should be issued to an employer for unsafe working
conditions, 29 U.S.C. § 658. A necessary adjunct of that power is
the authority to withdraw a citation and enter into settlement
discussions with the employer.
Whirlpool, supra, at 1420;
Mobil Oil, supra, at 927. The Commission's function is to
act as a neutral arbiter and determine whether the Secretary's
citations should be enforced over employee or union objections. Its
authority plainly does not extend to overturning the Secretary's
decision not to issue or to withdraw a citation.
The Sixth Circuit's conclusion that the Commission can review
the Secretary's decision to withdraw a citation would discourage
the Secretary from seeking voluntary settlements with employers in
violation of the Act, thus unduly hampering the enforcement of the
Act.
Whirlpool, supra, at 1420;
Mobil Oil, supra,
at 927. Such a procedure would also allow the Commission to make
both prosecutorial decisions and to serve as the adjudicator of the
dispute, a commingling of roles that Congress did not intend.
Whirlpool, supra, at 1419;
Mobil Oil, supra, at
930-931;
Sun Petroleum Products, supra, at 1187. Indeed,
the Commission itself was created to avoid giving the Secretary
both prosecutorial and adjudicatory powers.
See generally
Senate Committee on Labor and Public Welfare, Subcommittee on
Labor, 92d Cong., 1st Sess., Legislative History of the
Occupational Safety and Health Act of 1970 (S. 2193, Pub.L. 91-596)
(Comm. Print 1971).
Accord, Whirlpool, supra, at 1419;
Mobil Oil, supra, at 930-931, and n. 21. The other Courts
of Appeals to address this problem have recognized the distinct
roles of the Secretary and the Commission, and accordingly have
acknowledged that the Secretary's decision to withdraw a citation
against an employer under the Act is
Page 474 U. S. 8
not reviewable by the Commission. Based on these considerations,
the petitions for certiorari are granted, and the judgment of the
Court of Appeals is
Reversed.
JUSTICE BRENNAN and JUSTICE BLACKMUN dissent from summary
disposition. They would grant certiorari and set the cases for oral
argument.
JUSTICE MARSHALL dissents from this summary disposition, which
has been ordered without affording the parties prior notice or an
opportunity to file briefs on the merits.
See Maggio v.
Fulford, 462 U. S. 111,
462 U. S.
120-121 (1983) (MARSHALL, J., dissenting);
Wyrick v.
Fields, 459 U. S. 42,
459 U. S. 51-52
(1982) (MARSHALL, J., dissenting).
* Together with No. 85-170,
Brock, Secretary of Labor v.
United Transportation Union, et al., also on petition for
certiorari to the same court.
[
Footnote 1]
Vacating the citation thus did not rest solely on jurisdictional
grounds. Nor did the Court of Appeals' decision sustaining the
Commission's order focus on jurisdiction. Its holding would permit
review by the Commission of the Secretary's withdrawal of any
citation, whatever the reason, provided the adversarial process was
sufficiently advanced to vest control in the Commission. For these
reasons, and because the issue relates to the statutory division of
authority between the Secretary and the Commission, rather than the
question of judicial review of administrative action, the cases do
not pose the question whether an agency's decision, resting on
jurisdictional concerns, not to take enforcement action is
presumptively immune from judicial review under the Administrative
Procedure Act, 5 U.S.C. § 701(a)(2).
See Heckler v.
Chaney, 470 U. S. 821,
470 U. S. 833,
n. 4 (1985).
[
Footnote 2]
The Court of Appeals also relied to some extent on the position
of the Commission as to the scope of its powers. The Commission,
however, has since revised its view, and now declines to review the
Secretary's dismissal of a citation.
Pan American World
Airways, Inc., 1984 OSHD � 26,920;
American Bakeries
Co., 1984 OSHD � 26,951;
Copperweld Steel Co., 1984
OSHD � 26,956.