United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

 1120 20th Street, N.W., Ninth Floor

 Washington, DC 20036-3457

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|------------------------------------|--------------------------|
| SECRETARY OF LABOR,                |                          |
| Complainant,                       |                          |
| v.                                 | OSHRC DOCKET No. 18-0462 |
| U. S. POSTAL SERVICE,

Respondent. |                          |
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ORDER GRANTINGSECRETARY’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON AFFIRMATIVE DEFENSES NUMBERED 8 & 9 INTHERESPONDENT’S ANSWER

On February 26, 2018, the Secretary issued a one-item other-than-serious citation (Citation)tothe Respondent, the United States Postal Service (USPS). TheCitation’ssole itemallegedthaton or about August 29, 2017,at USPS’s Pleasant Hills facility in Pittsburgh, Pennsylvania,USPS “issued a seven-day working suspension to a carrier because he reported a work-related injuryon August 16, 2017.”The citation item alleged that this action violated 29 C.F.R. § 1904.35(b)(1)(iv),whichprovides that an employer“must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”The Citation proposed a penalty of $5543 and requiredabatementby March 9, 2018.

USPS timely contested the Citationand thereby invoked the jurisdiction of the Occupational Safety and Health Review Commission (Commission) pursuant to section 10 of theOccupational Safety and Health Act of 1970 (the Act), 29 U.S.C. § 659. The Secretary thereafter duly filed a complaint pursuant to Commission Rule 34(a), 29 C.F.R. § 2200.34(a), wherein the Secretary re-assertedtheCitation’salleged violation, proposed penalty, and abatement.

USPS duly filed an answer pursuant to Commission Rule 34(b), in which it denied the allegations of the Citation andinterposedanumber ofaffirmative defenses,including the following twodefenses: 

·“The alleged standard and/or penalties are invalid as ultra vires.”

·“The alleged standard and/or penalties lack(s) a rational basis and/or are arbitrary and capricious.”

The Secretary filed a motion for partial summary judgment dated September 14, 2018,seekingjudgment as a matter of law on thosetwo affirmative defenses. (If the motion were granted, the remedy on the motion would be to strike theaffirmative defenses.) The Respondent filed a memorandum in opposition to the motion, and the Secretary filed a reply memorandum on October 24, 2018. 

Thefirstissuefor decision, whichwill bedispositive of the “ultra vires” defense,may bestatedas follows: 

Did Congress intendtheprocedureprescribed bysection 11(c) of the Acttobetheexclusivemeanstoredressretaliatory actsthat both(a) violateanemployee’s 11(c)rights, and (b) undermineOSHA’s duty to collect accurateinjury and illness data?

Ifthe section 11(c)procedureisexclusive,that would be the end of the matter—OSHA’sattempted enforcementof section 1910.35(b)(1)(iv)by issuinga citationand abatementorderundersection 9(a) of the Act(along with aproposed penaltyundersection 10(a)of the Act)would contravenethe Act andbeultra vires.In that event, theCitation would be ordered vacated.

But, if the enforcement mechanism prescribed in section 11(c) isnotexclusive,then the following issue,which would be dispositive of the “arbitrary and capricious” defense,must be resolved:

DidtheSecretaryact arbitrarily and capriciously in promulgatinga regulationthatproscribescertain conduct (i.e., employerretaliation against an employee for having reported a work-related injury or illness)that isalreadyproscribed by section 11(c) of the Act?

As described below, theanswers to both questionsarenegative,sothe Secretary’s motion isGRANTED,andthe two affirmative defenses described above shall be orderedstricken from the answer.

Statutory and Regulatory Background

Secretary’sAuthority to Promulgate

Recordkeeping Regulations

Section 2(b) of the Act states that the Act’s overarching purpose—which is“toassureso far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources”—is served in part “by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this[Act]and accurately describe the nature of the occupational safety and health problem.” 29 U.S.C. § 651(b)(12).

Section 24(a) of the Actthusdirects the Secretary to

[C]ompileaccurate statistics on work injuries and illnesseswhich shall include all disabling, serious, or significant injuries and illnesses,whether or notinvolving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. 

29 U.S.C. § 673(a) (emphasisadded).

Toward that end,section 8(c)(2) of the Actdirectsthe Secretary to “prescribe regulations requiring employers to maintain accurate records of ... injuries and illnessesother than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.” 29 U.S.C. §657(c)(2). (emphasisadded). And in section 8(g)(2), Congress delegated even broader lawmaking power tothe Secretary, directing the Secretary to “prescribe such rules andregulationsas he may deem necessaryto carry out [his] responsibilities under this Act.” 29 U.S.C. § 657(g)(2) (emphasisadded). Section 8(c)(1) of the Act requires employersto comply with the Secretary’s recordkeeping regulations—itprovidesthat “[e]ach employer shallmake, keep and preserve ... such records regardinghisactivities relating to this Actas the Secretary...may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.” 29 U.S.C. §657(c)(1) (emphasisadded).

Section 9(a) of the Act directs the Secretary to enforce “any regulations prescribed pursuant to this Act” by conducting inspections or investigations and issuing citations for perceived violations. 29 U.S.C. § 658(a). 

Section 11(c) of the Actand the

Interpretive Regulation at 29 C.F.R. Part 1977

Section 11(c) of theActprohibits certain retaliatory actsagainst employeesandincludes an enforcement mechanismforremedying suchunlawful acts. 29 U.S.C. § 660(c).The11(c)enforcementmechanismis triggered by an employee filing a complaint with the Secretary allegingretaliationforhaving exercised“any right afforded by this Act.”Section660(c)(1).Section11(c) providesin its entiretyas follows:

(1) No person shall discharge or in any manner discriminateagainst any employee because such employee has filed any complaintor instituted or caused to be instituted any proceeding underor related to this Act or has testified or is about to testify in anysuch proceeding or because of the exercise by such employee on behalfof himself or others of any right afforded by this[Act].

(2) Any employee who believes that he has been discharged orotherwise discriminated against by any person in violation of thissubsection may, within thirty days after such violation occurs, filea complaint with the Secretary alleging such discrimination.Uponreceipt of such complaint, the Secretary shall cause such investigationto be made as he deems appropriate.If upon such investigation,the Secretary determines that the provisions of this subsectionhave been violated, he shall bring an action in any appropriateUnited States district court against such person.In any suchaction the United States district courts shall have jurisdiction, forcause shown to restrain violations of paragraph (1) of this subsectionand order all appropriate relief including rehiring or reinstatementof the employee to his former position with back pay.

(3) Within 90 days of the receipt of a complaint filed under thissubsection the Secretary shall notify the complainant of his determinationunder paragraph 2 of this subsection.

Afew years after the enactment of the Act, the Secretary promulgateda regulation(nowcodified at29 C.F.R. pt. 1977),thestated purposeof whichisto “make available in one place interpretations of the various provisions of section 11(c)of the Act which will guide the Secretary of Labor in the performance of his duties thereunder.” 29 C.F.R. § 1977.2. None of the provisions ofpart 1977addressthe matter of whetherthe Secretaryregards section 11(c)to provide an exclusive mechanismforredressing unlawfulretaliationagainst an employeefor a permissible reason other than toredressan employee’s 11(c) rights.

Promulgation of the CitedRegulation, § 1904.35(b)(1)(iv)

Subparagraph (b)(1) of section 1904.35 (of whichthe cited subparagraph(iv)is a part)was recently promulgatedwith a declared effective date ofAugust 10, 2016.1Final Rule,Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (to be codified at29 C.F.R. pts. 1904 and 1902). The preamble to the final rule explains that section 1904.35(b)(1) was promulgated as a “regulation” under sections 8 and 24 of the Act,and not as an “occupational safety and health standard” undersection 6 of the Act. Id.at29656&29687; see also ThermalReduction Corp., 12 BNA OSHC 1264, 1266 (No. 81–2135, 1985) (noting that OSHA’s recordkeeping regulation was promulgatedpursuant to“the authority conferred by section 8”).

Thepromulgationofsubparagraph (b)(1)was part of awiderrangingamendment toOSHA’sregulation for Recording and Reporting Occupational Injuries and Illnesses, which is codified at 29 C.F.R.Part1904.Althoughthevalidityof onlysubparagraph(b)(1)(iv) isat issuehere,theentirety of subparagraph (b)(1)providesimportantcontext. It provides as follows:2

§ 1904.35 Employee involvement.

(a)....

(b)Implementation—(1)What must Ido to make sure that employees reportwork-related injuries and illnesses tome?(i) You must establish a reasonableprocedure for employees to report work-relatedinjuries and illnesses promptlyand accurately.A procedure is notreasonable if it would deter ordiscourage a reasonable employee fromaccurately reporting a workplace injuryor illness;

(ii) You must inform each employeeof your procedure for reporting work-relatedinjuries and illnesses;

(iii) You must inform each employeethat:

(A) Employees have the right to reportwork-related injuries and illnesses; and

(B) Employers are prohibited fromdischarging orin any mannerdiscriminating against employees forreporting work-related injuries orillnesses; and

(iv) You must not discharge or in anymanner discriminate against anyemployee for reporting a work-relatedinjury or illness.

The rulemaking processthat resulted in theeventualpromulgation of subparagraph (b)(1)(iv)formally commenced onNovember8, 2013,when OSHA caused to be published aNotice of Proposed Rulemaking (NPRM)“to amend its recordkeeping regulationsto add requirements for the electronicsubmission of injury and illnessinformation employers are alreadyrequired to keep under OSHA'sregulations for recording and reportingoccupational injuries and illnesses.”Proposed Rule,Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67254 (proposed Nov. 8, 2013) (to be codified at 29 C.F.R. pts. 1904 & 1952). The NPRM citedthe provisions ofsections 8 and 24 of the Act,described above,as providing the legal authority for the proposal.Id.at 67255; 29 U.S.C. §§ 657 & 673. 

OSHA conducted a public meetingon theNPRMon January 9-10, 2014.3The preamble to the final rule describes certain comments made during that public meeting:

A concern raised bymanymeetingparticipantswasthattheproposed electronic submissionrequirement might create a motivationfor employers to under-report injuriesand illnesses.Some participants alsocommented that some employersalready discourage employees fromreporting injuries or illnesses bydisciplining or taking other adverseaction against employees who file injuryand illness reports.

81 Fed. Reg. at 29625;accordSupplemental NPRM,Improve Tracking of Workplace Injuries and Illnesses, 79 Fed. Reg. 47605 (Aug. 14, 2014).

These comments caused OSHA to consider “adding provisionsthat will make it a violation for anemployer to discourage employeereporting in these ways,” with a view toward “protect[ing]theintegrityof the injury and illness data” that employers report to OSHA. 79 Fed. Reg. 47605. Consequently,OSHAissuedaSupplemental NPRM on August 14, 2014thatsolicitedpubliccomment on addingthree requirements intended to promotetheaccurate reporting of work-relatedinjuries and illnesses, including a provision that would “prohibit employers from takingadverse action against employees forreporting injuries and illnesses.”4Id.

TheSupplemental NPRM’sstated legal authority for theseproposedadditionsto the recordkeeping regulation remained sections 8 and 24 of the Act, as had been cited in connection with the original NPRM. 79 Fed. Reg.at 47606.TheSupplemental NPRMexpressesthe view that including theproposedanti-retaliationprovisionin the recordkeeping regulationwould“fit comfortably within these various grants of authority,” because “[i]femployers may not discipline or takeadverse action against workers forreporting injuries and illnesses, workerswill feel less hesitant to report theirinjuries and illnesses, and theiremployers' records and reports will bemore‘accurate’, as required by sections8 and 24 of the Act.” Id. TheSupplemental NPRMnotedthateven before the original NPRM’s electronic reporting proposal,therehad beenevidence thatunlawful retaliationhad the effect ofsuppressingemployeereporting of work-related injuries and illnesses:

Further,given testimony that some employers already engage in such practices,and the possibility that the proposed rule could provide additional motivation for employers to do so,prohibitingemployers from taking adverse actionsagainst their employees for reportinginjuries and illnesses in this rulemakingis "necessary to carry out" therecordkeeping requirements of the Act.(See 29 U.S.C. 657(g)(2).).

79 Fed. Reg. at 47606-607(emphasis added).5

TheSupplemental NPRMrecognizedthat section 11(c)provides a remedy for employeeswho have been subjected toretaliation forhaving reported a work-relatedinjury or illness, but the Secretary did notregardthe pre-existingstatutory proceduretoprecludepromulgation of aregulation(which isperforce enforceable by the issuance of a citation under section 9(a))that proscribesthatsame retaliatory conduct. The Supplemental NPRM indicates the principal motivation for the proposedanti-retaliationregulation isnottoredressan employee’s 11(c) rights, but rathertoadvanceOSHA’sresponsibilityto collect accurate injury and illness statistics:

Section 11(c) of the Act prohibits anyperson from discharging ordiscriminating against any employeebecause that employee has exercisedany right under the Act.(29 U.S.C.660(c)(1).)Under this provision, anemployee who believes he or she hasbeen discriminated against may file acomplaint with OSHA, and if, afterinvestigation, the Secretary determinesthat Section 11(c) has been violated,then the Secretary can file suit againstthe employer in U.S. District Courtseeking "all appropriate relief"including reinstatement and back pay.(29 U.S.C. 660(c)(2).)Taking adverseaction against an employee who reportsa fatality, injury, or illness is a violationof 11(c), (see 29 CFR 1904.36); therefore,much of the primary conduct thatwould be prohibited by the newprovision is likely already proscribed by11(c).

The advantage of this provision is thatit would provide OSHA with additionalenforcement tools to promote theaccuracy and integrity of the injury andillness records employers are requiredto keep under Part 1904.For example,under 11(c), OSHA may not act againstan employer unless an employee files acomplaint.Under the additions to theproposed rule under consideration,OSHA would be able to cite anemployer for taking adverse actionagainst an employee for reporting aninjury or illness, even if the employeedid not file a complaint.Moreover, anabatement order can be a more efficienttool to correct employer policies andpractices than the injunctionsauthorized under 11(c).

* * * *

As noted above,theseretaliatoryactions would likely be actionableunder 11(c), as well as under theprovisions that OSHA is considering asamendments to 1904.35.The remedy,however, would be different.Under thisprovision, OSHA could issue citationsto employers under Section 9 of theOSH Act for violating the provision, andthe employer could challenge thecitations before the Occupational Safetyand Health Review Commission.Thecitations would carry civil penalties inaccordance with Section 17 of the OSHAct, as well as a requirement to abatethe violation; the abatement couldinclude reinstatement and back pay....

79 Fed. Reg.at 47607& 47608.

OSHA received 142 comments on the Supplemental NPRM. 81 Fed. Reg. at 29625. On May 12, 2016, OSHA promulgated thefinalrulethatcontained theannualelectronic reporting provisionsthat had beenproposedin the original NPRM(to be included in section 1904.41)6as well asthe three additional requirementsthat had beenproposed in the Supplemental NPRM,includingthe anti-retaliation provisioncited here,section 1904.35(b)(1)(iv). 81 Fed. Reg. 29624.

Thepreamble to the final rulereiterated the rationale and statutory authority for the anti-retaliation provisionthat wasoriginally expressed in the Supplemental NPRM:

The Act's various statutory grants ofauthority that address recordkeepingprovide authority for OSHA to prohibitemployers from discouraging employeereports of injuries or illnesses.Ifemployers may not discriminate againstworkers for reporting injuries orillnesses, then discrimination will notoccur to deter workers from reportingtheir injuries and illnesses, and theiremployers' records and reports may bemore "accurate", as required by sections8 and 24 of the Act.Evidence in theadministrative record establishes thatsome employers engage in practices thatdiscourage injury and illness reporting,and many commenters providedsupport for OSHA's concern that theelectronic submission requirements ofthis final rule and associated posting ofdata could provide additionalmotivation for employers to discourageaccurate reporting of injuries andillnesses.Therefore,prohibiting employers from engaging in practices that discourage their employees from reporting injuries or illnesses, including discharging or in any manner discriminating against such employees, is "necessary to carry out" the recordkeeping requirements of the Act (see 29 U.S.C. 657(g)(2)).

****

If employers reduce the accuracy of their injury and illness records by retaliating against employees who report an injury or illness, then OSHA's authority to collect accurate injury and illness records allows OSHA to proscribe such conduct even if the conduct would also be proscribed by section 11(c).

81 Fed. Reg. at 29627.

The preamble acknowledgesthatthe“conductprohibited by § 1904.35(b)(1)(iv) of thefinal rule is already proscribed bysection 11(c),”and that the rule “doesnot change thesubstantive obligations of employers.” 81 Fed. Reg. at 29627 & 29671. Notwithstanding theabsence of any new substantive obligations, thepreamblestates the anti-retaliation regulation “will havean important enforcement effect” by providing “an enhanced enforcement tool forensuring the accuracy of employerinjury and illness logs” that is not dependent upon an employee first filing a complaint under section 11(c) of the Act. 81 Fed. Reg. at 29671. The preamble notesthat “[s]ome employees may not have the time or knowledge necessary to file a section 11(c) complaint or may fear additional retaliation from their employer if they file a complaint.”

Further,inresponse to publiccomments thatsection 1904.35(b)(1)(iv)wouldinterferewith section 11(c)“by infringing on anemployee's right to bring a section 11(c)claim and by eliminating section 11(c)'s30-day window for employees to bringcomplaints,” the preamble stated:

The final rule does notabrogate or interfere with the rights orrestrictions contained in section 11(c).An employee who wishes to file acomplaint under section 11(c) may doso within the statutory 30-day periodregardless of whether OSHA has issued,or will issue, a citation to the employerfor violating the final rule.OSHAbelieves that many employees willcontinue to file 11(c) complaintsbecause of the broader range ofequitable relief and punitive damagesavailable under that provision.

Because section1904.35(b)(1)(iv) is a “regulation” issued under the Act,the Secretaryis empowered pursuant to section 9(a) of the Act to issue a citation for its alleged violation, aswas done here. 29U. S. C.§658(a) (authorizingthe Secretary to issue acitationto an employerfor violating a requirement“of any regulations prescribed pursuant to this Act”).

Standard of Review

The Commission has the authorityto consider an enforcement challenge tothestatutory validity of standards and regulations that the Secretary has promulgated pursuant to the Act. SeeRockwell Int'l Corp., 9BNA OSHC1092 (No. 12470,1980)(rejecting Secretary’s argument that the Commission lacks authority to consider procedural challenge tooccupationalsafetyand healthstandards promulgated under § 6(b) of the Act),overruledon other grounds,George C. Christopher & Sons, Inc., 10BNA OSHC1436 (No. 76-647, 1982);see alsoCBI Servs., Inc., 19BNA OSHC1591,1594, n. 7(No.95-0489, 2001)(noting that “Commission precedent does not distinguish between ‘substantive’and‘procedural’issues in determining whether a validity challenge [toastandard promulgated pursuant tosec.6(b) of the Act]isproperly before the Commission”). 

The Commissionconsidersa challenge to a regulation in the samemanneras would afederalcourt. Martin v. OSHRC(CF & I Steel Corp.),499 U.S. 144, 154 (1991)(concluding “that Congress intended to delegate to the Commission the type of nonpolicymaking adjudicatory powers typically exercised by acourtin the agency-review context”).

Thetwodefensesat issuehereamount to thefunctionalequivalent of a challengetothecitedregulation under the Administrative Procedure Act(APA). See La.Forestry Ass'n Inc. v.Sec'yof Labor, 745 F.3d 653,668-69 (3d Cir. 2014) (consideringaclaimthat the Department of Labor exceeded its authority in promulgating a certain regulationin a case brought under the judicial review provisions of the APA). The judicial review provisions of the APArequirea court to “hold unlawful and set aside agency action, findings, andconclusions found to be...arbitrary, capricious, an abuse of discretion, or otherwisenot in accordance with law”or “in excess of statutory jurisdiction, authority, orlimitations, or short of statutory right.” 5 U.S.C.§§ 706(2)(A) & (C). 

Such a challengeto a regulationmay be resolvedthrough a motion for summary judgment. SeeMarshall Cnty.Health Care Auth. v. Shalala,988 F.2d 1221, 1226 (D.C.Cir.1993) (notingthatwheretheonly arguments made were “about the legal conclusion to be drawn about the agency action” andnotaboutissues of fact, “there is no real distinction in this context between the question presented on a 12(b)(6) motion and a motion for summary judgment”);Univ.Med.Ctr.of S. Nev.v. Shalala, 173 F.3d 438, 440 n. 3 (D.C.Cir.1999) (noting that when reviewing agency action, the “district court sits as an appellate tribunal,...and the question whether[the agency]acted in an arbitrary and capricious manner is a legal one which the district court can resolve on the agency record”);La.Forestry Ass'n Inc.,745 F.3d at 667.

The two-step framework established byChevron U.S.A. Inc. v. Natural Res.Def.Council, Inc., 467 U.S. 837(1984)(Chevron), applies to resolution of theissue of whether the Secretary exceeded hisstatutoryauthority in promulgating the challenged regulation. SeeCity ofArlington v. FCC, 569 U.S. 290 (2013) (holding thatChevronframework applies toresolve the contentionthatanagency’s regulation wasultra viresasbeingoutside the bounds ofthe agency’sstatutory authority);La.Forestry Ass'n, 745 F.3d at 669-70 (applyingChevronframework in case broughtunder the judicial review provisions of the APA in considering a claim that the Department of Labor exceeded its authority in promulgating a certain regulation).

TheChevronframeworksimilarlyapplies to a challenge toaregulationpromulgatedpursuanttoabroaddelegationof authorityto prescriberegulationsthatthe responsibleagency deems“necessary”to advancea specified statutory purpose.Chevron467 U.S.at843–44(stating that where “Congress has explicitly left a gap for the agency to fill, there is an express delegationof authority to the agency to elucidate a specific provision of the statute by regulation,” and that “[s]uch legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute”);United States v. Mead Corp., 533 U.S. 218, 226–27 (2001) (holding that “implementation of a particular statutory provision qualifies forChevrondeference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority”);Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002)(applyingChevronframework to review of a rule promulgated by Secretary of Laborpursuant todelegatedauthority to“prescribe such regulations asare necessary to carry out” the Family Medical and LeaveAct);Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 57(2011)(applyingChevronframeworktothereview ofa rule that was promulgated pursuant to delegatedauthority to“prescribe all needful rules and regulations for the enforcement” of the Internal Revenue Code).

Atthe first step of theChevronframework,acourtmustapply“traditionaltools of statutory construction”todetermine “whether Congress has directly spoken to the precise question at issue,” and”[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”Chevronat 842–843;seealsoCity of Arlington, 569 U.S. at 301 (stating that “the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not”).

“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Acourtmayconsidera statute’spurpose and itslegislative historyin ascertaining whether the statute speaks to the precise question at issue. See Chevronat 862-63 (consideringthe Clean Air Act’s legislative historyat step oneand findingit“as a whole[]silent on the precise issue before us”);see alsoArcadian Corp.,17 BNA OSHC 1345,1348-49(No.93-3270, 1995)(consideringlegislative history to discern congressional intent, seemingly atChevronstep one);but cf. United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008)(stating “that legislative history should not be considered atChevronstep one,”althoughnoting “ambiguous guidance from the Supreme Court”on the issue),Geisinger Cmty. Med. Ctr. v. Sec'y H.H.S., 794 F.3d 383, 391n. 5(3d Cir. 2015)(noting that“the Supreme Court has often oscillated between considering and then refusing to consider legislative history at Step One”), andJohnson v. Interstate Mgmt. Co., LLC, 849 F.3d 1093, 1098 (D.C. Cir. 2017)(holding that employees do not have a private cause of action under section 11(c) of the Act, andnoting that “when statutory text resolves the issue, as it does here, the Supreme Court has said that we need not dig into the legislative history”)(Kavanaugh, J.).

Only“if the statute is silent or ambiguous with respect to the specific issue,” does the analysis continue to step two, where“the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”Chevronat 843. AtChevronstep two, courts must “accept an agency’s reasonable resolution of an ambiguity in a statute that the agencyadministers,”Michigan v. EPA, 576 U.S. —, —, 135 S. Ct. 2699, 2707 (2015), and“may not disturb an agency rule unless it is arbitrary or capricious in substance, or manifestly contrary to the statute.”Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 53 (2011).Recently, inEncino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125(2016), the Courtprovided a fuller summary ofthe standard for assessing whethercertainrulemakingis arbitrary and capriciousunder the APA:7

One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.”Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.,463 U.S. 29, 43 (1983) (internal quotation marks omitted).That requirement is satisfied when the agency's explanation is clear enough that its “path may reasonably be discerned.”Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc.,419 U.S. 281, 286 (1974). But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law.See 5 U.S.C. § 706(2)(A);State Farm, supra,at 42–43.

“Ultra Vires” Defense

The issue to be decided atChevronstep oneon the “ultra vires” defensemay beframedas follows: Does theActspeakdirectly tothe questionwhether, in order to enhance the accuracy of injury and illness information reported to OSHA, theSecretaryis restricted toemployingthesection 11(c)proceduretodeter and thwartretaliatory actionagainstemployeesfor having reportedawork-related injuryor illness?

Analysisof thetext of theAct,employing traditionaltools of statutory interpretation,showsthat the Actis silent onthisprecisequestion atissue.

OSHA'sstatutoryauthority forpromulgatingthe anti-retaliation provisionof§ 1904.35(b)(1)(iv)derivesfromthe Act’srecordkeepingprovisions describedin detailabove.29 U.S.C. §§ 657(c)(l), 657(c)(2), 657(g)(2), 673(a), 673(e).Nothing in the text of section 11(c)addressesrecordkeeping. Rather, section 11(c) creates employeerightsandestablishes the exclusiveremedyavailable toemployees whobelieve theyhave been retaliated against for having engaged in certain protected activities(of whichthereportingofwork-related injuries and illnesses is but one).Taylor v. Brighton Corp., 616 F.2d 256, 258(6th Cir. 1980)(indicating that the class of personsthatsection11(c) was intended to benefit are employees engaging in activity protected by 11(c),andholding that 11(c) does notprovideemployees with aprivatecause ofaction);Johnson v. Interstate Mgmt. Co., LLC,849 F.3d 1093, 1096 (D.C. Cir. 2017)(noting that 11(c) “supplies a remedy for employees who believe they have been subject to retaliation”).

The text of section 11(c)contains no limiting language of any kind.The textdoes not "directly sp[eak] to the precise question at issue"of whether OSHA must rely on the section 11(c) procedure to vindicate and advance statutory interests other than the interest of employees tobeprotected from retaliation for engaging in protected activities.Chevron,467U.S. at 842.Rather,the text of the Act reflects that“Congress did not have a specific intention” on the issue.Id.at845;see alsoMontford & Co. v. SEC, 793 F.3d 76, 82 (D.C. Cir. 2015) (where text of statute does not “forclose[] other interpretations,” it is regarded to be “silent ... with respect to the specific issue” atChevronstep one). Put another way,nothing in section 11(c) speaks towhether OSHA may exerciseitsauthority to promulgate regulations that promote accuraterecordkeeping where anti-retaliation and recordkeeping goals overlap.

Interpretingthe Acttopermit the Secretary to promulgate a regulation that advancestheaccuracy of injury and illness data is consistent“with the design and structure of the statute as a whole.” SeeUtil. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014), quotingUniv.of Tex. Sw.Med.Ctr..v. Nassar, 570 U.S. 338, 353 (2013);see alsoGen.Motors Corp., Inland Div., 8 BNA OSHC 2036,2041(No.76–5033, 1980)(noting that theCommission considersthe reporting requirements of the Act to be“a cornerstone of the Act and play a crucial role in providing the information necessary to make workplaces safer and healthier,” so that classifying recordkeeping violations asde minimus“would weaken significantly the reporting requirements of the Act and the Secretary's regulations”).

This conclusion is supported by the Fifth Circuit’s decision inUnited Steelworkers, AFL-CIO v. St. Joe Resources, 916 F.2d294, 299 (5th Cir. 1990)(St. JoeResources), whichthe Secretary cited inboth the Supplemental NPRM and the preamble to the final rule as supporting promulgation ofan anti-retaliation provision in the recordkeeping rule. 79 Fed. Reg. at 47607; 81 Fed. Reg. at29627& 29672. The court inSt. Joe Resourcesruled that the Commission had the authority to order an employer to abate a violation ofthe medical removal protection (MRP) provision of OSHA’s lead standardat29 C.F.R. § 1910.1025(k)by ordering back pay. In the course ofreaching that conclusion, the court ruled that section 11(c) did not establish the exclusivemechanism for requiring an employer to provideback pay—the courtnoting that employment discrimination statutes such as section 11(c) “redress different misconduct than general health and safety provisions,” andconcludingthat“ ‘the remedial purposes of [the OSH Act] would be undermined by a presumption of exclusivity.’ ”Id.,916 F.2d at 298,quotingHerman & MacLean v. Huddleston, 459 U.S. 375, 387 n. 23(1983)(brackets in original) (holding that even though section 11 of the Securities Act of 1933 and section 10(b) of the Securities Exchange Act of 1934 proscribe some of the same activity, the two provisions“address different types of wrongdoing” so the section 11 remedy is not exclusive). 

USPS points to the legislative history of section 11(c) as establishing that “Congress contemplatedand rejected making retaliation and/or discriminatory actions subject to a civil penalty through the issuance of an OSHA citation.”(Mem. in Opposition, 6-8). The portions of the Act’s legislative historyidentifiedby USPSdonotincludeanymaterialthat suggests Congress intended the rights and remedy of section 11(c) topromote accurate recordkeeping. (Id.). TheSixth Circuit’s thorough account of the legislative history of section 11(c)inTaylor v. Brighton, 616 F.2d at 259-263, confirmsthat nosuchcongressionalintentis reflectedin the legislative history.The Sixth Circuit noted thatsection 11(c) grew out of a concern “thatthe possibility of retaliatory discharge might inhibit employeesfrom reporting OSHA violations.” Id.at 260,citingH.R.Rep. No. 91-1291, 91st Cong., 2d Sess. 27 (1970).Thatconcern is different from a concernthatemployerretaliationagainst employeesforhavingreported a work-related injury or illness mightsuppressemployeereportingof the same.

Assuming for the sake of analysis thatsection 11(c)’slegislativehistorydoes give rise tosome ambiguity as towhether Congressintended to the addressthe precise question at issue,the regulation also withstandsan“ultra vires” challenge at step two of theChevronframework. Theissue to be decided atChevronstep two is whether the enforcementofsection 1904.35(b)(1)(iv)pursuant to sections 9(a) and 10(c) of the Act “exceedsthe bounds of the permissible.” Barnhart v. Walton, 535 U.S. 212, 218 (2002),citingChevronat 843. Theregulationwill be deemed to exceed the bounds of the permissible if found to be “arbitrary or capricious in substance,”as failing to meet the minimum requirements summarized inEncino Motorcars, LLC v. Navarroquoted above. The rulemaking record here far surpasses the minimum requirementsarticulatedinEncino Motorcars. The preamble to the final rule reflectsthe Secretary havingexaminedthe relevant information andhaving providedcogentreasoningfor including an anti-retaliation provision in the recordkeeping recordas a means topromote increased accuracy of illness and injury data thattheAct requiresOSHA to collect. 

USPS complains of the “sea change” wrought by section 1904.35(b)(1)(iv) in the enforcement against unlawful retaliation for reporting of work-related injuries and illnesses,noting that for “nearly fifty years ... OSHA has never attempted to issue a civil citation or penalty” for a violation of section 11(c). (Mem. in Opposition, 8 & 15). This does not render the promulgation of the cited regulation arbitrary or capricious. “  ‘[N]either antiquity nor contemporaneity with [a] statute is a condition of [a regulation's] validity.’ ” Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55, (2011), quotingSmiley v. Citibank (S.D.), N. A., 517 U.S. 735, 740 (1996).

USPS also argues that the provisions of the Act that the Secretary cited as legal authority for the promulgation of the cited regulation violate the “non-delegation doctrine,” and thus promulgation of the cited regulation is contrary to law. (Mem. in Opposition, 16). SeeSkinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 214 (1989) (addressing non-delegation doctrine and noting “our longstanding principle that so long as Congress provides an administrative agency withstandards guiding its actions such that a court could ascertain whether the will of Congress has been obeyed, no delegation of legislative authority trenching on the principle of separation of powers has occurred” [internal citations omitted]). Further apropos of the non-delegation doctrine, the Supreme Court has declared that “[w]here the empowering provision of a statute states simply that the agency may ‘make . . . such rules and regulations as may be necessary to carry out the provisions of this Act,' we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is ‘reasonably related to the purposes of the enabling legislation.’ ” Mourning v. Family Publ’ns.Serv., Inc., 411 U.S. 356, 369 (1973);see also Thermal Reduction Corp., 12 BNA OSHC 1264,1266(No. 81-2135, 1985) (citingMourningfor this proposition, andobserving that therecordkeeping regulationsrequiring employerstomaintain injury and illness records andtoproducethoserecordsto the Secretaryduring aninspection“reasonably effectuates Congress's requirement that employers maintain and make available to the Secretary records pertaining to the incidence of injuries and illnesses in the workplace” and isconsistent with the Act). The preamble to the final rule more than amply establishes that the anti-retaliation regulation is “reasonably related” to the requirements of the Act that employersprovideandthatOSHAcollectaccurate injury and illness data.

Enforcement of the anti-retaliation regulation is not rendered arbitrary and capricious simply because there could be parallel section 11(c) and section 9(a) proceedingsinvolvingthe samealleged retaliatory act.To the extent that the Secretary may seek back-pay andsimilar reliefin an order of abatement in a section 9(a)proceedingenforcing the anti-retaliationregulation,equitable principles would foreclose an employee’s double recoveryin a parallel section 11(c) proceeding. Similarly, one of the parallel proceedings could be stayedto conserveresources andpotentially topermitapplication of issue or claim preclusion principles to the stayedproceeding.

In its memorandum in opposition to the motion,USPS points to discovery requeststhat were filedin adifferentproceeding before the Commission thatalsoinvolves an alleged violation of section 1904.35(b)(1)(iv), which USPS argues would be irrelevant in a section 11(c) proceeding. TheUSPS seems to suggest that such discoveryrequestsshow that thecited regulation is bothultra viresand arbitrary and capricious.(Mem. in Opposition, 10-13).To the extent alitigantregardsadiscovery request in aparticular matterto be outside the scope of permissible discovery,undulyonerous,disproportionate,or otherwise objectionable,such arguments are best addressed and resolved in the context of an appropriate discovery motion filed in a particular case, wheresuch a discovery disputewould beconcrete andripe. This argument is not material to whether the cited regulation isultra viresor arbitrary and capricious.

Enforcement of section 1904.35(b)(1)(iv)pursuant to section 9(a) of the Actis well within the bounds of permissible construction of the Actand is neither arbitrarynor capricious. Thispermissibleinterpretation of theActis due“controlling weight”underChevron, inasmuch astheanti-retaliationregulation was promulgated pursuant toCongress’sexpress delegationsof authorityto the Secretary(a)to promulgate regulations“asnecessaryorappropriatefor the enforcement of this[Act]or for developing informationregarding the causes and prevention of occupational accidents”in section 8(c)(1),(b) to “prescribe regulations requiring employers to maintain accurate records of...work-related deaths, injuries and illnesses,”in section 8(c)(2),and(c)to prescribe regulations deemed “necessary to carry out [his] responsibilities under this[Act]”in section 8(g)(2). Chevronat 843-44.

For these reasons, the Secretary’s motion for summary judgment on the “ultra vires” affirmative defense set forth in paragraph 9 of the answer’s “affirmative defenses” section, isGRANTED, and thatdefense is orderedSTRICKENfrom the answer.

“Arbitrary and Capricious” Defense

For the same reasons described in connection with theChevronstep two analysis immediately above, the Secretary’s motion for summary judgment on the “arbitrary and capricious”affirmative defense set forth in paragraph8of the answer’s “affirmative defenses” section, isGRANTED, and thatdefense is orderedSTRICKENfrom the answer.SeeJudulang v. Holder, 565 U.S. 42, 53 n. 7 (2011) (indicating that the analysis underChevronstep two is substantially the same as the analysis under the APA’s “arbitrary and capricious” standard at 5 U.S.C. § 706(2)(A) ). 

SOORDERED.

/s/

WILLIAM S. COLEMAN

Administrative LawJudge

DATED: December27, 2018

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1 Although the regulation was effective on August 10, 2016, theSecretary delayeditsenforcement until December 1, 2016. SeeMemorandum dated Nov. 10, 2016, “Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35,”available atwww.osha.gov/dep/memos/recordkeeping_memo_11102016.html

2 Before the 2016 amendment, section 1904.35(b)(1) had provided as follows:

(b)Implementation. (1) What must I do to make sure that employees report work-related injuries and illnesses to me?

(i) You must set up a way foremployees to report work-relatedinjuries and illnesses promptly; and

(ii) You must tell each employee howto report work-related injuries andillnesses to you.

3 The administrative record on the rulemaking, which includes the transcripts of the public meeting, is available at the following URL:

https://www.regulations.gov/docket?D=OSHA-2013-0023

4 The other two proposed requirements on whichthe Supplemental NPRMsolicitedpublic commentwere to “(1) require that employers inform their employees of their right to report injuries and illnesses; [and] (2) require that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome.”Id.at 47606.

5 OSHA hadidentifiedthe suppressive impact of retaliation on the reporting of work-related injuries and illnesses well before the2016 promulgation of the cited regulation. Another provision of the recordkeeping regulation that was originally promulgated in 2002, section 1904.36,contained the Secretary’s interpretation that section 11(c) prohibits retaliation against an employee for having reported a work-related injury or illness. As originally promulgatedin 2002,section 1904.36 provided as follows:

§ 1904.36Prohibition against discrimination.

Section 11(c) of the Act prohibits youfrom discriminating against anemployee for reporting a work-relatedfatality, injury or illness.That provisionof the Act also protects the employeewho files a safety and health complaint, asks for access to the Part 1904 records, or otherwise exercises any rightsafforded by the OSH Act.

(The 2016 final rule amended section 1904.36 by changing its first sentence to read as follows: “In addition to § 1904.35, section 11(c) of the Act also prohibits you from discriminating against an employee for reporting a work-related fatality, injury or illness.”The final rule left the second sentence of section 1904.36unchanged.81 Fed. Reg.at29671.)

The preamble that was published in connection with the promulgation of original section 1904.36described that regulation’s purpose as follows:

Section 1904.36 of thefinal rule makes clear that § 11(c) of theAct prohibits employers fromdiscriminating against employees forreporting work-related injuries andillnesses.Section 1904.36 does notcreate a new obligation on employers.Instead, it clarifies that the OSH Act'santi-discrimination protection applies toemployees who seek to participate inthe recordkeeping process. 

* * * *

OSHA has also included in the finalrule, in section 1904.36, a statement thatsection 11(c) of the OSH Act protectsworkers from employer retaliation forfiling a complaint, reporting an injury orillness, seeking access to records towhich they are entitled, or otherwiseexercising their rights under the rule.This section of the rule does not imposeany new obligations on employers orcreate new rights for employees that didnot previously exist.In view of theevidence that retaliation againstemployees for reporting injuries is notuncommon and may be "growing"[citation to rulemaking record omitted], this section isintended to serve the informationalneeds of employees who might nototherwise be aware of their rights and toremind employers of their obligation notto discriminate.

Occupational Injury and Illness Recording and Reporting Requirements, 66 Fed. Reg. 5916, 6050 & 6053 (Jan. 19, 2001) (to be codified at parts 1904 and 1952). 

6 The Secretary has recently proposed torescindthe recently promulgated requirement set forth in section 1904.41 fortheannualelectronicsubmissionbyestablishments with more than 249 employeesoftheinformationthat is recordedon OSHA Forms 300(Log of Work-Related Injuries and Illnesses)and301(Injury and IllnessIncident Report). Proposed Rule,Tracking of Workplace Injuries and Illnesses, 83 Fed. Reg. 36494 (proposed July 30, 2018) (to be codified at 29 C.F.R.pts. 1904 & 1952). However, this proposed rescission would not affect other electronic reporting requirements promulgated in the 2016 final rule that those same large employers, as well as certain other smaller employers, electronically submit information that is recorded on OSHA Form 301A(Summary ofWork-Related Injuries and Illnesses). Nothing in the public notice that announced the proposed partial rescission of the electronic reporting requirements in section 1904.41 suggests any backpedaling from the justifications for promulgating section 1904.35(b)(1) as stated in the 2016 preamble to the final rule.

7 “Regulations” issued under the Act are subject to review under the APA’s “arbitrary and capricious” standard, in contrast to the standard of review for a challenge to a health or safety standard, where the “substantial evidence” standard prescribed by section 6(f) of the Act is applicable. 29 U.S.C. § 655(f). SeeNat'l Oilseed Processors Ass'nv. OSHA, 769 F.3d 1173, 1178 (D.C. Cir. 2014)(noting that the“substantial evidence” standardof judicial review under section 6(f) of the Act “demands more stringent review of OSHA rules than would the APA's arbitrary and capricious standard”);Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1466 (D.C. Cir. 1995)(dismissing for lack of jurisdiction an attempted pre-enforcement challenge to a recordkeeping regulation promulgated pursuant to section 8 of the Act that was initiated in the court of appeals pursuant to section 6(f) of the Act, and transferring the matter to the district court for APA review under5 U.S.C. § 703).