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BY ELECTRONIC MAIL

October 29, 2013

Ray H. Darling, Jr.

Executive Secretary

Occupational Safety and Health Review Commission

washoshrccommission@oshrc.gov

Re: Kiewit Power Constructors Co., No. 11-2395

Dear Mr. Darling:

This letter responds to Kiewit’s October 24, 2013 letter citing four immigration cases for the 

proposition that Chevron deference is inapplicable if a clear indication of statutory intent is 

required for judicial decision. Kiewit’s cases are inapplicable because they concern the judicial 

requirement that a statute may not be applied retroactively unless there is clear statutory 

language evincing such intent. See, e.g., INS v. St. Cyr, 533 U.S. 289, 316 (2001). Absent such 

clear intent, Supreme Court precedent requires that the statute be applied only prospectively, and 

therefore the ambiguity necessary for Chevron deference does not exist. Id. at 320 n.46.

Here, by contrast, the disputed interpretation of 29 U.S.C. § 655(a) does not involve the 

retroactive application of a new statutory provision, but the scope of the Secretary’s authority to 

promulgate established federal standards as OSH Act standards. Furthermore, the cited cases 

also do not support Kiewit’s reliance on 5 U.S.C. § 559, the APA’s anti-implied-repeal 

provision, a statutory codification of the familiar judicial presumption against repeals by 

implication.1 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007).

The anti-implied-repeal provision is inapplicable because § 655(a) expressly authorized the 

Secretary to promulgate established federal standards as OSH Act standards without notice-andcomment rule-making. As the Secretary showed in his reply brief, his interpretation of § 655(a) 

is entitled to Chevron deference because the provision is a jurisdictional provision of a statute he 

administers. Sec. Reply Br. 2 (citing City of Arlington, Texas v. FCC, 133 S. Ct. 1863, 1871 

(2013) (“we have consistently held that Chevron applies to cases in which an agency adopts a 

construction of a jurisdictional provision of a statute it administers. . . . One of our opinions 

explicitly says that no exception exists to the normal [deferential] standard of review for 

jurisdictional or legal questions concerning the coverage of an Act”).

 

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 This provision says “a subsequent statute may not be held to supersede or modify this 

subchapter [which includes notice-and-comment rule-making requirements]. . . except to the 

extent that it does so expressly.” 5 U.S.C. § 559.
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Respectfully submitted,

M. PATRICIA SMITH

Solicitor

JOSEPH M. WOODWARD

Associate Solicitor for

Occupational Safety 

 and Health

CHARLES F. JAMES

Counsel for Appellate Litigation

/s/ Scott Glabman____________

SCOTT GLABMAN

Senior Appellate Attorney 

U.S. Department of Labor

Frances Perkins Bldg., 

Room S-4004

200 Constitution Avenue, N.W.

Washington, D.C. 20210-0001

(202) 693-5493

Cc: Arthur G. Sapper, Esq.

 Lawrence J. Joseph, Esq.
"Kiewit Power Constructors Co.," No. 11-2395 

Glabman, Scott - SOL [Glabman.Scott@dol.gov] 

Dear Mr. Darling:

I attach the Secretary’s reply to Kiewit’s October 24, 2013 supplemental authority letter in the above case. I 

have e­mailed a copy of the reply to opposing counsel and counsel for aspiring amicus curiae APA Watch as 

indicated in the above cc line.

Sincerely, 

Scott Glabman

Senior Appellate Attorney

Office of the Solicitor

Occupational Safety and Health Division

U.S. Department of Labor

(voice) (202) 693­5493

(fax) (202) 693­5466

This message may contain information that is privileged or otherwise exempt from disclosure under applicable law. Do not disclose 

without consulting the Office of the Solicitor. If you believe that you received this e­mail in error, please notify the sender immediately.

Sent: Tuesday, October 29, 2013 1:28 PM 

To: washoshrccommission 

Cc: asapper@mwe.com; ljoseph@larryjoseph.com 

Attachments: Kiewit-OSHRC-Reply to Kiew~1.pdf (132 KB)

"Kiewit Power Constructors Co.," No. 11-2395 Page 1 of 1

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