ELIZABETH H. DOLE, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
LABOR, PETITIONER V. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
AND CF&I STEEL CORPORATION

   No. 89-1541

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Reply Brief For The Petitioner

   In this case, the court of appeals held that, when the Secretary of
Labor and the Occupational Safety and Health Review Commission issue
conflicting interpretations of a Department of Labor regulation,
judicial deference should be accorded to the Commission, rather than
to the Secretary.  Pet. App. 2a.  In our petition, we demonstrated
that this issue is of recurring importance to the administration of
the Occupational Safety and Health Act (OSH Act), 29 U.S.C. 651 et
seq.  We also showed that the issue has produced a widespread split in
the courts of appeals.  In response, respondent seeks to minimize both
the importance of the issue and the severity of the split in the
circuits.  Respondent's efforts are unavailing.

   1. In seeking to minimize the significance of the court of appeals'
holding, respondent contends, first, that the holding is limited
because, under the court of appeals' analysis, the issue of deference
will be pertinent only if the Secretary's "interpretation is clearly
wrong," or "when the regulatory standard itself is ambiguous." Br. in
Opp. 13 (emphasis added).  But as this Court has emphasized
repeatedly, it is precisely when a regulation is ambiguous that the
issue of deference arises, and precisely then that deference to the
promulgating entity is most appropriate.  /1/ Far from limiting the
scope of the court of appeals' holding, the requirement of deference
to the Commission when the Secretary's regulation is ambiguous
highlights the importance of that holding for the application of basic
principles of judicial deference.  See Pet. 11 n.8.  /2/

   Respondent also seeks to minimize the importance of the court of
appeals' decision because, according to respondent, the court of
appeals did not explicitly hold that the Secretary's interpretation
was reasonable.  Br. in Opp. 13-14.  But regardless of whether the
court of appeals' opinion is read as having expressed a view on the
reasonableness of the Secretary's interpretation, /3/ the dispositive
question for the court of appeals was whether the Commission's
interpretation of the ambiguous regulation was reasonable.  As the
court stated, "in the face of conflicting regulatory interpretations,
deference is properly accorded to the interpretation of the
Commission." Pet. App. 2a.  In contrast, under a correct application
of deference principles, the dispositive question should have been
whether the Secretary's interpretation was reasonable.  See, e.g.,
United Steelworkers v. Schuylkill Metals Corp., 828 F.2d 314, 319 (5th
Cir. 1987).  Respondent does not and could not contend that the court
of appeals held the Secretary's interpretation to be unreasonable;
under a regime of deference to the Secretary, such a finding would be
the only justification for rejecting the Secretary's interpretation.

   Respondent further suggests that the issue in this case is limited
because it is confined to "the unique statutory framework" of the OSH
Act.  Br. in Opp. 17.  As we pointed out in our petition (at 16-17 &
nn.15, 16), the OSH Act administrative structure has analogues in
other statutory contexts, including the Federal Mine Safety and Health
Act (30 U.S.C. 801 et seq.), the Longshore and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.), and the Black Lung Benefits
Act (30 U.S.C. 901 et seq.).  Even if the issue were confined to the
OSH Act, however, review would still be warranted.  The OSH Act is an
important federal statute designed to ensure workplace safety (see
generally 29 U.S.C. 651), and, as the numerous courts of appeals
decisions addressing this subject reveal (see Pet. App. 4a-5a), the
question of deference arises with frequency.

   2. Respondent also seeks to minimize the split in the courts of
appeals concerning this issue.  Br. in Opp. 15-17.  Respondent
maintains that "the circuit courts uniformly consider both the
Secretary's views and the Commission's interpretations, and after
properly scrutinizing each, defer to the most reasonable
interpretation under the facts and circumstances of each case." Id. at
16.  In striking contrast to respondent's statement, the courts of
appeals themselves have recognized a severe split of authority
concerning the question of deference in the OSH Act context.  /4/
Additionally, respondent's statement that courts "uniformly" defer to
the most reasonable interpretation is flatly inconsistent with courts
of appeals decisions emphasizing that the interpretation of the entity
receiving deference will prevail (if it is reasonable), even if it is
less reasonable than the interpretation of the entity not receiving
deference.  /5/ Respondent's contention that "a 'deference rule' would
rarely, if ever, be outcome determinative" (Br. in Opp. 17) is
similarly belied by courts of appeals decisions explicitly holding
that the issue of deference is outcome-determinative.  /6/

   As part of its attempt to minimize the split in the courts of
appeals, respondent also seeks to recharacterize decisions from the
Second, Sixth, and Ninth Circuits, and disputes our contention that
those decisions support deference to the Commission.  Br. in Opp.
15-16 & n.12.  But several courts of appeals, including the court
below, agree with our reading of those decisions.  /7/ Moreover, in
addition to the Second, Sixth, and Ninth Circuits, both the court of
appeals in this case and the Fourth Circuit have held that deference
to the Commission is appropriate when the interpretations of the
Secretary and the Commission conflict.  /8/ In stark contrast, the
First, Fifth, Seventh, and Eleventh Circuits have held that deference
to the Secretary is appropriate.  See Pet. 10;  Pet. App. 4a.  /9/
Thus, contrary to respondent's contention, the split in the courts of
appeals is genuine and widespread.

   3. Respondent also raises scattered additional objections to review
of this case.  Having vigorously litigated the case in the Commission
and in the court of appeals, respondent now suggests that the closing
of its facility in 1982, as well as its unfunded pension liability,
may counsel against review.  Br. in Opp. 22 & n.18.  But as respondent
recognizes (id. at 22 n.18), in view of the pendency of the $10,000
citation, this case is not moot.  Respondent also suggests that this
particular case is not significant in the context of the OSH Act
because the Secretary could have invoked 29 C.F.R. 1910.1029(g)(4)(i),
rather than 29 C.F.R. 1910.1029(g)(3) (with its incorporation of the
general standard in 29 C.F.R. 1910.134).  Br. in Opp. 23.  Respondent
overlooks the fact, however, that the Commission's interpretation of
29 C.F.R. 1910.134, now affirmed by the court of appeals under a
deference-to-the-Commission theory, is applicable to a wide range of
industries;  it is not limited to the coke oven emissions context, the
only context in which the option of invoking 29 C.F.R.
1910.1029(g)(4)(i) is available.  /10/ Finally, with regard to
respondent's comments on the merits (Br. in Opp. 19-22), we discussed
in our petition why we believe that the court of appeals' analysis is
erroneous.  See Pet. 11-18.  Respondent's counter-arguments may
properly be addressed in consideration of the merits, but they do not
provide a basis for denying review.

                      * * * * *

   For the foregoing reasons and those stated in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   KENNETH W. STARR

      Solicitor General

   JUNE 1990

   /1/ See, e.g., Immigration and Naturalization Service v. Stanisic,
395 U.S. 62, 72 (1969) ("Granting that this regulation and its
successor provision are not free from ambiguity, we find it
dispositive that the agency responsible for promulgating and
administering the regulation has interpreted it" in a particular
manner);  Udall v. Tallman, 380 U.S. 1, 4 (1965) ("The Secretary's
interpretation may not be the only one permitted by the language of
the orders, but it is quite clearly a reasonable interpretation;
courts must therefore respect it.");  Bowles v. Seminole Rock Co., 325
U.S. 410, 414 (1945) ("(A) court must necessarily look to the
administrative construction of the regulation if the meaning of the
words used is in doubt.  * * * (T)he ulltimate criterion is the
administrative interpretation, which becomes of controlling weight
unless it is plainly erroneous or inconsistent with the regulation.").
 Cf. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843 (1984) ("(I)f the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency's answer is based on a permissible construction of
the statute.").

   /2/ Respondent's emphasis on the court of appeals' requirement of
Commission deference to the Secretary (Br. in Opp. 13, 24) similarly
does not limit the significance of the decision because that
requirement explicitly does not apply when a regulation is ambiguous.
See Pet. App. 9a;  Pet. 14 & n.11.

   /3/ We note that, in deferring to the Commission's interpretation,
the court of appeals observed that "it is certainly possible to reach
an alternate interpretation of the ambiguous regulatory language."
Pet. App. 11a.

   /4/ See, e.g., Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 64
(1st Cir. 1985) ("The courts of appeals differ about the proper
judicial attitude when OSRHC and OSHA are at odds about a regulation's
meaning.");  Marshall v. Western Electric, Inc., 565 F.2d 240, 244 (2d
Cir. 1977) (noting that "the courts have differed in deciding what
deference to give the Commission's interpretations of health and
safety regulations, especially when such interpretations conflict with
those of the Secretary");  United Steelworkers v. Schuylkill Metals
Corp., 828 F.2d 314, 319 (5th Cir. 1987) ("This is an issue over which
the courts of appeals have splintered.");  Pet. App. 4a ("Whether
judicial deference under OSHA is accorded to the regulatory
interpretations of the Secretary or the Commission is an issue upon
which the federal circuits are split.").  Cf. Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 537 n.2 (D.C. Cir. 1986) ("Other
Circuits are divided on the analogous question whether the Secretary
or the Occupational Safety and Health Review Commission is due
deference with regard to interpretation of the Secretary's regulations
issued under the Occupational Safety and Health Act.").

   /5/ See, e.g., Brock v. Williams Enterprises of Georgia, Inc., 832
F.2d 567, 569-570 (11th Cir. 1987) ("Because the Secretary of Labor
promulgates the regulations under the Occupational Safety and Health
Act of 1970 * * * his reasonable interpretation of those regulations
is controlling, even though his interpretation may not appear as
reasonable as the Commission's interpretation") (footnote omitted);
United Steelworkers v. Schuylkill Metals Corp., 828 F.2d at 319 ("We
have held repeatedly that the Secretary's interpretation is
controlling as long as it is one of several reasonable
interpretations, although it may not appear as reasonable as some
other.") (internal quotation marks omitted).  Indeed, respondent's
statement that court's "uniformly" consider the reasonableness of both
the Secretary's and the Commission's interpretations and defer to the
most reasonable interpretation is inconsistent with respondent's
characterization of the court of appeals decision in this very case.
See Br. in Opp. 13 ("(T)he court did not express an opinion as to
whether the Secretary's interpretation was reasonable.").

   /6/ See, e.g., Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255,
1262 (4th Cir. 1974) (statutory question can be answered "either way";
 Commission's interpretation accepted, and Secretary's interpretation
rejected, because of deference);  United Steelworkers, 828 F.2d at 320
("(i)n this case, the standard of review determines the outcome";
Secretary's interpretation accepted, and Commission's interpretation
rejected, because of deference).  Respondent notes the statement by
the Steelworkers court that it had "consider(ed) carefully both the
decision of the Commission and all the arguments of the appellee's"
(Br. in Opp. 17 n.13);  the court's statement regarding its careful
consideration obviously did not detract from its explicit statement
that deference to the Secretary was its ratio decidendi.

   /7/ See Pet. App. 4a (noting that "the Second, * * * Sixth, * * *
and Ninth Circuits defer to the Commission");  United Steelworkers,
828 F.2d at 319 n.3 (noting that the "Second, * * * Sixth, * * * and
Ninth Circuits defer to OSHRC");  Donovan v. A. Amorello & Sons, 761
F.2d at 64 (noting that the "Sixth Circuit * * * and possible the
Second Circuit seem to favor the Commission");  Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d at 537 n.2 (noting that the "'Sixth * *
* and possible Second Circuits favor the Commission'").  Because the
Ninth Circuit decision was issued after the decisions in A. Amorello &
Sons and Cathedral Bluffs, it obviously could not be included in those
decisions.

   It is not surprising that these decisions characterized the Second,
Sixth, and Ninth Circuits as favoring deference to the Commission, in
view of the explicit language in the opinions from those circuits.
See Marshall v. Western Electric, Inc., 565 F.2d at 244 (2d Cir.)
("Although the courts have differed in deciding what deference to give
the Commission's interpretations of health and safety regulations,
especially when such interpretations conflict with those of the
Secretary * * * this court has consistently held that its role 'is to
decide whether the Commission's interpretation of the Regulation is
unreasonable and inconsistent with its purpose * * *.'");  Usery v.
Hermitage Concrete Pipe Co., 584 F.2d 127, 132 (6th Cir. 1978)
("Where, as here, the Secretary of Labor and the Commission differ
over the construction of the Act, we have indicated that the
Commission's ruling is entitled to great deference.");  Brock v.
Bechtel Power Corp., 803 F.2d 999, 1000 (9th Cir. 1986) ("(I)n a case
such as this, where the Secretary and the Commission disagree as to
the meaning and application of the regulation, the court need not
grant * * * deference to the Secretary's interpretation.  * * *
Instead, we will defer to the Commission's expertise in exercising the
independent adjudicatory function assigned it by the Act * * *.").
Notably, respondent claims that Usery and Marshall are nevertheless
inapposite because, in those decisions, the court went on to reject
the Commission's interpretation as unreasonable.  Br. in Opp. 15-16 &
n.12.  Respondent's objection, however, misunderstands the proper role
of deference -- although deference is extremely important and often
outcome-determinative, it is not unbounded.  See Udall v. Tallman, 380
U.S. at 16-17.

   /8/ See Pet. App. 2a;  Brennan v. Gilles & Cotting, Inc., 504 F.2d
at 1261-1262.

   /9/ Except for its comment regarding the Fifth Circuit's
Steelworkers decision (see note 6, supra), respondent does not address
the decisions holding that deference to the Secretary is required when
the Secretary's interpretation and the Commission's interpretation
conflict.

   /10/ Respondent also implies that the Commission interpreted 29
C.F.R. 1910.1029(g)(3) as incorporating only 29 C.F.R. 1910.134(b).
Br. in Opp. 6 n.5.  That implication is incorrect.  See Pet. App.
40a-45a.