United States of America

 OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

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

 Washington, DC 20036-3457

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET No. 18-0462

U. S. POSTAL SERVICE,

Respondent.

ORDER GRANTING SECRETARY’S MOTION FOR PARTIAL SUMMARY 

JUDGMENT ON AFFIRMATIVE DEFENSES NUMBERED 8 & 9 IN THE 

RESPONDENT’S ANSWER

On February 26, 2018, the Secretary issued a one-item other-than-serious citation 

(Citation) to the Respondent, the United States Postal Service (USPS). The Citation’s sole item

alleged that on 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 injury on August 16, 2017.” The citation item alleged that this action violated 29 

C.F.R. § 1904.35(b)(1)(iv), which provides 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 required abatement by March 9, 2018.

USPS timely contested the Citation and thereby invoked the jurisdiction of the 

Occupational Safety and Health Review Commission (Commission) pursuant to section 10 of the

Occupational 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-asserted the Citation’s alleged violation, proposed penalty, and abatement. 
2

USPS duly filed an answer pursuant to Commission Rule 34(b), in which it denied the 

allegations of the Citation and interposed a number of affirmative defenses, including the 

following two defenses: 

• “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, 

seeking judgment as a matter of law on those two affirmative defenses. (If the motion were 

granted, the remedy on the motion would be to strike the affirmative defenses.) The Respondent 

filed a memorandum in opposition to the motion, and the Secretary filed a reply memorandum on 

October 24, 2018. 

The first issue for decision, which will be dispositive of the “ultra vires” defense, may be 

stated as follows: 

Did Congress intend the procedure prescribed by section 11(c) of 

the Act to be the exclusive means to redress retaliatory acts that both 

(a) violate an employee’s 11(c) rights, and (b) undermine OSHA’s 

duty to collect accurate injury and illness data?

If the section 11(c) procedure is exclusive, that would be the end of the matter—OSHA’s attempted 

enforcement of section 1910.35(b)(1)(iv) by issuing a citation and abatement order under section 

9(a) of the Act (along with a proposed penalty under section 10(a) of the Act) would contravene

the Act and be ultra vires. In that event, the Citation would be ordered vacated. 

But, if the enforcement mechanism prescribed in section 11(c) is not exclusive, then the 

following issue, which would be dispositive of the “arbitrary and capricious” defense, must be 

resolved:

Did the Secretary act arbitrarily and capriciously in promulgating 

a regulation that proscribes certain conduct (i.e., employer 
3

retaliation against an employee for having reported a workrelated injury or illness) that is already proscribed by section 

11(c) of the Act?

As described below, the answers to both questions are negative, so the Secretary’s motion 

is GRANTED, and the two affirmative defenses described above shall be ordered stricken from 

the answer. 

Statutory and Regulatory Background

Secretary’s Authority to Promulgate 

Recordkeeping Regulations

Section 2(b) of the Act states that the Act’s overarching purpose—which is “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”—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 Act thus directs the Secretary to

[C]ompile accurate statistics on work injuries and illnesses which shall include all 

disabling, serious, or significant injuries and illnesses, whether or not involving 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) (emphasis added). 

Toward that end, section 8(c)(2) of the Act directs the Secretary to “prescribe regulations 

requiring employers to maintain accurate records of ... injuries and illnesses 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. § 657(c)(2). 

(emphasis added). And in section 8(g)(2), Congress delegated even broader lawmaking power to 
4

the Secretary, directing the Secretary to “prescribe such rules and regulations as he may deem 

necessary to carry out [his] responsibilities under this Act.” 29 U.S.C. § 657(g)(2) (emphasis 

added). Section 8(c)(1) of the Act requires employers to comply with the Secretary’s 

recordkeeping regulations—it provides that “[e]ach employer shall make, keep and preserve ... 

such records regarding his activities relating to this Act as 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) (emphasis added). 

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 Act and the

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

Section 11(c) of the Act prohibits certain retaliatory acts against employees and includes 

an enforcement mechanism for remedying such unlawful acts. 29 U.S.C. § 660(c). The 11(c) 

enforcement mechanism is triggered by an employee filing a complaint with the Secretary alleging 

retaliation for having exercised “any right afforded by this Act.” Section 660(c)(1). Section 11(c) 

provides in its entirety as follows:

(1) No person shall discharge or in any manner discriminate against 

any employee because such employee has filed any complaint or 

instituted or caused to be instituted any proceeding under or related to 

this Act or has testified or is about to testify in any such proceeding or 

because of the exercise by such employee on behalf of himself or 

others of any right afforded by this [Act].

(2) Any employee who believes that he has been discharged or

otherwise discriminated against by any person in violation of this

subsection may, within thirty days after such violation occurs, file a 

complaint with the Secretary alleging such discrimination. Upon

receipt of such complaint, the Secretary shall cause such investigation
5

to be made as he deems appropriate. If upon such investigation, the 

Secretary determines that the provisions of this subsection have been 

violated, he shall bring an action in any appropriate United States 

district court against such person. In any such action the United States 

district courts shall have jurisdiction, for cause shown to restrain 

violations of paragraph (1) of this subsection and order all appropriate 

relief including rehiring or reinstatement of the employee to his 

former position with back pay.

(3) Within 90 days of the receipt of a complaint filed under this

subsection the Secretary shall notify the complainant of his 

determination under paragraph 2 of this subsection.

A few years after the enactment of the Act, the Secretary promulgated a regulation (now

codified at 29 C.F.R. pt. 1977), the stated purpose of which is to “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 

of part 1977 address the matter of whether the Secretary regards section 11(c) to provide an 

exclusive mechanism for redressing unlawful retaliation against an employee for a permissible 

reason other than to redress an employee’s 11(c) rights.

Promulgation of the Cited Regulation, § 1904.35(b)(1)(iv)

Subparagraph (b)(1) of section 1904.35 (of which the cited subparagraph (iv) is a part) was 

recently promulgated with a declared effective date of August 10, 2016.1 Final Rule, Improve 

Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29624 (May 12, 2016) (to be codified 

at 29 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” under section 6 of the Act. Id. at 29656 & 29687; see also Thermal 

 

1 Although the regulation was effective on August 10, 2016, the Secretary delayed its 

enforcement until December 1, 2016. See Memorandum dated Nov. 10, 2016, “Interim 

Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35,”

available at www.osha.gov/dep/memos/recordkeeping_memo_11102016.html
6

Reduction Corp., 12 BNA OSHC 1264, 1266 (No. 81–2135, 1985) (noting that OSHA’s 

recordkeeping regulation was promulgated pursuant to “the authority conferred by section 8”).

The promulgation of subparagraph (b)(1) was part of a wider ranging amendment to 

OSHA’s regulation for Recording and Reporting Occupational Injuries and Illnesses, which is 

codified at 29 C.F.R. Part 1904. Although the validity of only subparagraph (b)(1)(iv) is at issue

here, the entirety of subparagraph (b)(1) provides important context. It provides as follows:

2

§ 1904.35 Employee involvement.

(a) ....

(b) Implementation—(1) What must I do to make sure that 

employees report work-related injuries and illnesses to me? (i) You 

must establish a reasonable procedure for employees to report workrelated injuries and illnesses promptly and accurately. A procedure is 

not reasonable if it would deter or discourage a reasonable employee 

from accurately reporting a workplace injury or illness;

(ii) You must inform each employee of your procedure for reporting 

work-related injuries and illnesses;

(iii) You must inform each employee that:

(A) Employees have the right to report work-related injuries and 

illnesses; and

(B) Employers are prohibited from discharging or in any manner

discriminating against employees for reporting work-related injuries 

or illnesses; and

(iv) You must not discharge or in any manner discriminate against 

any employee for reporting a work-related injury or illness.

The rulemaking process that resulted in the eventual promulgation of subparagraph 

(b)(1)(iv) formally commenced on November 8, 2013, when OSHA caused to be published a

 

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 for employees to report work-related

injuries and illnesses promptly; and

(ii) You must tell each employee how to report work-related injuries 

and illnesses to you.
7

Notice of Proposed Rulemaking (NPRM) “to amend its recordkeeping regulations to add 

requirements for the electronic submission of injury and illness information employers are already

required to keep under OSHA's regulations for recording and reporting occupational 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 cited 

the provisions of sections 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 meeting on the NPRM on January 9-10, 2014.

3 The preamble 

to the final rule describes certain comments made during that public meeting:

A concern raised by many meeting participants was that the

proposed electronic submission requirement might create a 

motivation for employers to under-report injuries and illnesses. 

Some participants also commented that some employers already 

discourage employees from reporting injuries or illnesses by

disciplining or taking other adverse action against employees who 

file injury and illness reports.

81 Fed. Reg. at 29625; accord Supplemental NPRM, Improve Tracking of Workplace Injuries and 

Illnesses, 79 Fed. Reg. 47605 (Aug. 14, 2014). 

These comments caused OSHA to consider “adding provisions that will make it a violation 

for an employer to discourage employee reporting in these ways,” with a view toward “protect[ing]

the integrity of the injury and illness data” that employers report to OSHA. 79 Fed. Reg. 47605. 

Consequently, OSHA issued a Supplemental NPRM on August 14, 2014 that solicited public 

comment on adding three requirements intended to promote the accurate reporting of work-related

 

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 
8

injuries and illnesses, including a provision that would “prohibit employers from taking adverse 

action against employees for reporting injuries and illnesses.”

4

 Id. 

The Supplemental NPRM’s stated legal authority for these proposed additions to 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. The Supplemental NPRM expresses the view 

that including the proposed anti-retaliation provision in the recordkeeping regulation would “fit 

comfortably within these various grants of authority,” because “[i]f employers may not discipline 

or take adverse action against workers for reporting injuries and illnesses, workers will feel less 

hesitant to report their injuries and illnesses, and their employers' records and reports will be more 

‘accurate’, as required by sections 8 and 24 of the Act.” Id. The Supplemental NPRM noted that 

even before the original NPRM’s electronic reporting proposal, there had been evidence that 

unlawful retaliation had the effect of suppressing employee reporting 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, prohibiting

employers from taking adverse actions against their employees for 

reporting injuries and illnesses in this rulemaking is "necessary to 

carry out" the recordkeeping requirements of the Act. (See 29 

U.S.C. 657(g)(2).).

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

5

 

4 The other two proposed requirements on which the Supplemental NPRM solicited public 

comment were 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 had identified the suppressive impact of retaliation on the reporting of workrelated injuries and illnesses well before the 2016 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 
9

The Supplemental NPRM recognized that section 11(c) provides a remedy for employees 

who have been subjected to retaliation for having reported a work-related injury or illness, but the 

Secretary did not regard the pre-existing statutory procedure to preclude promulgation of a 

 

employee for having reported a work-related injury or illness. As originally promulgated in 2002,

section 1904.36 provided as follows:

§ 1904.36 Prohibition against discrimination.

Section 11(c) of the Act prohibits you from discriminating against 

an employee for reporting a work-related fatality, injury or illness. 

That provision of the Act also protects the employee who files a 

safety and health complaint, asks for access to the Part 1904 records, 

or otherwise exercises any rights afforded 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 1904.36 unchanged. 81 Fed. Reg. at 29671.)

The preamble that was published in connection with the promulgation of original section 

1904.36 described that regulation’s purpose as follows:

Section 1904.36 of the final rule makes clear that § 11(c) of the Act 

prohibits employers from discriminating against employees for

reporting work-related injuries and illnesses. Section 1904.36 does 

not create a new obligation on employers. Instead, it clarifies that 

the OSH Act's anti-discrimination protection applies to employees 

who seek to participate in the recordkeeping process. 

* * * *

OSHA has also included in the final rule, in section 1904.36, a 

statement that section 11(c) of the OSH Act protects workers from 

employer retaliation for filing a complaint, reporting an injury or

illness, seeking access to records to which they are entitled, or 

otherwise exercising their rights under the rule. This section of the 

rule does not impose any new obligations on employers or create 

new rights for employees that did not previously exist. In view of 

the evidence that retaliation against employees for reporting injuries 

is not uncommon and may be "growing" [citation to rulemaking 

record omitted], this section is intended to serve the informational

needs of employees who might not otherwise be aware of their rights 

and to remind employers of their obligation not to 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). 
10

regulation (which is perforce enforceable by the issuance of a citation under section 9(a)) that 

proscribes that same retaliatory conduct. The Supplemental NPRM indicates the principal 

motivation for the proposed anti-retaliation regulation is not to redress an employee’s 11(c) rights, 

but rather to advance OSHA’s responsibility to collect accurate injury and illness statistics:

Section 11(c) of the Act prohibits any person from discharging 

or discriminating against any employee because that employee has 

exercised any right under the Act. (29 U.S.C. 660(c)(1).) Under 

this provision, an employee who believes he or she has been 

discriminated against may file a complaint with OSHA, and if, after

investigation, the Secretary determines that Section 11(c) has been 

violated, then the Secretary can file suit against the employer in U.S. 

District Court seeking "all appropriate relief" including 

reinstatement and back pay. (29 U.S.C. 660(c)(2).) Taking adverse

action against an employee who reports a fatality, injury, or illness 

is a violation of 11(c), (see 29 CFR 1904.36); therefore, much of the 

primary conduct that would be prohibited by the new provision is 

likely already proscribed by 11(c).

The advantage of this provision is that it would provide OSHA 

with additional enforcement tools to promote the accuracy and 

integrity of the injury and illness records employers are required to 

keep under Part 1904. For example, under 11(c), OSHA may not 

act against an employer unless an employee files a complaint. 

Under the additions to the proposed rule under consideration, OSHA 

would be able to cite an employer for taking adverse action against 

an employee for reporting an injury or illness, even if the employee

did not file a complaint. Moreover, an abatement order can be a 

more efficient tool to correct employer policies and practices than 

the injunctions authorized under 11(c).

* * * *

As noted above, these retaliatory actions would likely be 

actionable under 11(c), as well as under the provisions that OSHA 

is considering as amendments to 1904.35. The remedy, however, 

would be different. Under this provision, OSHA could issue 

citations to employers under Section 9 of the OSH Act for violating

the provision, and the employer could challenge the citations before 

the Occupational Safety and Health Review Commission. The

citations would carry civil penalties in accordance with Section 17 

of the OSH Act, as well as a requirement to abate the violation; the 

abatement could include reinstatement and back pay ....
11

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 the final rule that contained the annual electronic reporting 

provisions that had been proposed in the original NPRM (to be included in section 1904.41)

6

as 

well as the three additional requirements that had been proposed in the Supplemental NPRM,

including the anti-retaliation provision cited here, section 1904.35(b)(1)(iv). 81 Fed. Reg. 29624. 

The preamble to the final rule reiterated the rationale and statutory authority for the antiretaliation provision that was originally expressed in the Supplemental NPRM:

The Act's various statutory grants of authority that address 

recordkeeping provide authority for OSHA to prohibit employers 

from discouraging employee reports of injuries or illnesses. If

employers may not discriminate against workers for reporting 

injuries or illnesses, then discrimination will not occur to deter 

workers from reporting their injuries and illnesses, and their

employers' records and reports may be more "accurate", as required 

by sections 8 and 24 of the Act. Evidence in the administrative 

record establishes that some employers engage in practices that

discourage injury and illness reporting, and many commenters 

provided support for OSHA's concern that the electronic 

submission requirements of this final rule and associated posting of

data could provide additional motivation for employers to 

discourage accurate reporting of injuries and illnesses. Therefore, 

 

6 The Secretary has recently proposed to rescind the recently promulgated requirement set 

forth in section 1904.41 for the annual electronic submission by establishments with more than 

249 employees of the information that is recorded on OSHA Forms 300 (Log of Work-Related 

Injuries and Illnesses) and 301 (Injury and Illness Incident 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 of Work-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. 
12

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 acknowledges that the “conduct prohibited by § 1904.35(b)(1)(iv) of the

final rule is already proscribed by section 11(c),” and that the rule “does not change the substantive 

obligations of employers.” 81 Fed. Reg. at 29627 & 29671. Notwithstanding the absence of any 

new substantive obligations, the preamble states the anti-retaliation regulation “will have an 

important enforcement effect” by providing “an enhanced enforcement tool for ensuring the 

accuracy of employer injury 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 notes that 

“[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, in response to public comments that section 1904.35(b)(1)(iv) would interfere with 

section 11(c) “by infringing on an employee's right to bring a section 11(c) claim and by 

eliminating section 11(c)'s 30-day window for employees to bring complaints,” the preamble 

stated:

The final rule does not abrogate or interfere with the rights or

restrictions contained in section 11(c). An employee who wishes to 

file a complaint under section 11(c) may do so within the statutory 

30-day period regardless of whether OSHA has issued, or will issue, 

a citation to the employer for violating the final rule. OSHA
13

believes that many employees will continue to file 11(c) complaints

because of the broader range of equitable relief and punitive 

damages available under that provision.

Because section 1904.35(b)(1)(iv) is a “regulation” issued under the Act, the Secretary is 

empowered pursuant to section 9(a) of the Act to issue a citation for its alleged violation, as was 

done here. 29 U. S. C. § 658(a) (authorizing the Secretary to issue a citation to an employer for 

violating a requirement “of any regulations prescribed pursuant to this Act”).

Standard of Review

The Commission has the authority to consider an enforcement challenge to the statutory 

validity of standards and regulations that the Secretary has promulgated pursuant to the Act. See

Rockwell Int'l Corp., 9 BNA OSHC 1092 (No. 12470, 1980) (rejecting Secretary’s argument that 

the Commission lacks authority to consider procedural challenge to occupational safety and health

standards promulgated under § 6(b) of the Act), overruled on other grounds, George C. 

Christopher & Sons, Inc., 10 BNA OSHC 1436 (No. 76-647, 1982); see also CBI Servs., Inc., 19 

BNA OSHC 1591, 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 [to a standard promulgated pursuant to sec. 6(b) of the Act] is properly before the 

Commission”). 

The Commission considers a challenge to a regulation in the same manner as would a 

federal court. 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 a court in the agency-review context”). 

The two defenses at issue here amount to the functional equivalent of a challenge to the 

cited regulation under the Administrative Procedure Act (APA). See La. Forestry Ass'n Inc. v. 
14

Sec'y of Labor, 745 F.3d 653, 668-69 (3d Cir. 2014) (considering a claim that the Department of 

Labor exceeded its authority in promulgating a certain regulation in a case brought under the 

judicial review provisions of the APA). The judicial review provisions of the APA require a court 

to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of 

statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §§ 706(2)(A) 

& (C). 

Such a challenge to a regulation may be resolved through a motion for summary judgment. 

See Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993) (noting 

that where the only arguments made were “about the legal conclusion to be drawn about the agency 

action” and not about issues 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 by Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

Inc., 467 U.S. 837 (1984) (Chevron), applies to resolution of the issue of whether the Secretary 

exceeded his statutory authority in promulgating the challenged regulation. See City of Arlington 

v. FCC, 569 U.S. 290 (2013) (holding that Chevron framework applies to resolve the contention

that an agency’s regulation was ultra vires as being outside the bounds of the agency’s statutory 

authority); La. Forestry Ass'n, 745 F.3d at 669-70 (applying Chevron framework in case brought 
15

under the judicial review provisions of the APA in considering a claim that the Department of 

Labor exceeded its authority in promulgating a certain regulation).

The Chevron framework similarly applies to a challenge to a regulation promulgated

pursuant to a broad delegation of authority to prescribe regulations that the responsible agency 

deems “necessary” to advance a specified statutory purpose. Chevron 467 U.S. at 843–44 (stating 

that where “Congress has explicitly left a gap for the agency to fill, there is an express delegation

of 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 for Chevron deference 

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)

(applying Chevron framework to review of a rule promulgated by Secretary of Labor pursuant to

delegated authority to “prescribe such regulations as are necessary to carry out” the Family 

Medical and Leave Act); Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 

57 (2011) (applying Chevron framework to the review of a rule that was promulgated pursuant to 

delegated authority to “prescribe all needful rules and regulations for the enforcement” of the 

Internal Revenue Code).

At the first step of the Chevron framework, a court must apply “traditional tools of statutory 

construction” to determine “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.” Chevron at 842–
16

843; see also City 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).

A court may consider a statute’s purpose and its legislative history in ascertaining 

whether the statute speaks to the precise question at issue. See Chevron at 862-63 (considering

the Clean Air Act’s legislative history at step one and finding it “as a whole [] silent on the 

precise issue before us”); see also Arcadian Corp., 17 BNA OSHC 1345, 1348-49 (No. 93-3270, 

1995) (considering legislative history to discern congressional intent, seemingly at Chevron step 

one); but cf. United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008) (stating “that legislative 

history should not be considered at Chevron step one,” although noting “ambiguous guidance 

from the Supreme Court” on the issue), Geisinger Cmty. Med. Ctr. v. Sec'y H.H.S., 794 F.3d 

383, 391 n. 5 (3d Cir. 2015) (noting that “the Supreme Court has often oscillated between 

considering and then refusing to consider legislative history at Step One”), and Johnson 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, and noting 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.” Chevron at 843. At Chevron step two, courts 

must “accept an agency’s reasonable resolution of an ambiguity in a statute that the agency 
17

administers,” 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, in Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016), the Court provided 

a fuller summary of the standard for assessing whether certain rulemaking is arbitrary and 

capricious under 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.

 

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). See Nat'l Oilseed Processors Ass'n v. OSHA, 769 F.3d 1173, 1178 

(D.C. Cir. 2014) (noting that the “substantial evidence” standard of 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 under 5 U.S.C. § 703).
18

“Ultra Vires” Defense

The issue to be decided at Chevron step one on the “ultra vires” defense may be framed as 

follows: Does the Act speak directly to the question whether, in order to enhance the accuracy of 

injury and illness information reported to OSHA, the Secretary is restricted to employing the 

section 11(c) procedure to deter and thwart retaliatory action against employees for having 

reported a work-related injury or illness?

Analysis of the text of the Act, employing traditional tools of statutory interpretation,

shows that the Act is silent on this precise question at issue.

OSHA's statutory authority for promulgating the anti-retaliation provision of

§ 1904.35(b)(1)(iv) derives from the Act’s recordkeeping provisions described in detail above. 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) 

addresses recordkeeping. Rather, section 11(c) creates employee rights and establishes the 

exclusive remedy available to employees who believe they have been retaliated against for having 

engaged in certain protected activities (of which the reporting of work-related injuries and illnesses 

is but one). Taylor v. Brighton Corp., 616 F.2d 256, 258 (6th Cir. 1980) (indicating that the class 

of persons that section 11(c) was intended to benefit are employees engaging in activity protected 

by 11(c), and holding that 11(c) does not provide employees with a private cause of action); 

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 text does 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 to be 

protected from retaliation for engaging in protected activities. Chevron, 467 U.S. at 842. Rather, 
19

the text of the Act reflects that “Congress did not have a specific intention” on the issue. Id. at 

845; see also Montford & 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” at Chevron step one). Put another way, nothing in section 11(c) speaks to whether OSHA 

may exercise its authority to promulgate regulations that promote accurate recordkeeping where 

anti-retaliation and recordkeeping goals overlap. 

Interpreting the Act to permit the Secretary to promulgate a regulation that advances the 

accuracy of injury and illness data is consistent “with the design and structure of the statute as a 

whole.” See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014), quoting Univ. of Tex. 

Sw. Med. Ctr.. v. Nassar, 570 U.S. 338, 353 (2013); see also Gen. Motors Corp., Inland Div., 8 

BNA OSHC 2036, 2041 (No. 76–5033, 1980) (noting that the Commission considers the 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 as de 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 in United Steelworkers, AFLCIO v. St. Joe Resources, 916 F.2d 294, 299 (5th Cir. 1990) (St. Joe Resources), which the 

Secretary cited in both the Supplemental NPRM and the preamble to the final rule as supporting 

promulgation of an anti-retaliation provision in the recordkeeping rule. 79 Fed. Reg. at 47607; 81 

Fed. Reg. at 29627 & 29672. The court in St. Joe Resources ruled that the Commission had the 

authority to order an employer to abate a violation of the medical removal protection (MRP) 

provision of OSHA’s lead standard at 29 C.F.R. § 1910.1025(k) by ordering back pay. In the 

course of reaching that conclusion, the court ruled that section 11(c) did not establish the exclusive 
20

mechanism for requiring an employer to provide back pay—the court noting that employment 

discrimination statutes such as section 11(c) “redress different misconduct than general health and 

safety provisions,” and concluding that “‘the remedial purposes of [the OSH Act] would be 

undermined by a presumption of exclusivity.’” Id., 916 F.2d at 298, quoting Herman & 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 

contemplated and 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 history identified by USPS do not include any material that suggests Congress 

intended the rights and remedy of section 11(c) to promote accurate recordkeeping. (Id.). The 

Sixth Circuit’s thorough account of the legislative history of section 11(c) in Taylor v. Brighton, 

616 F.2d at 259-263, confirms that no such congressional intent is reflected in the legislative 

history. The Sixth Circuit noted that section 11(c) grew out of a concern “that the possibility of 

retaliatory discharge might inhibit employees from reporting OSHA violations.” Id. at 260, citing

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 27 (1970). That concern is different from a concern 

that employer retaliation against employees for having reported a work-related injury or illness 

might suppress employee reporting of the same.

Assuming for the sake of analysis that section 11(c)’s legislative history does give rise to 

some ambiguity as to whether Congress intended to the address the precise question at issue, the 

regulation also withstands an “ultra vires” challenge at step two of the Chevron framework. The 
21

issue to be decided at Chevron step two is whether the enforcement of section 1904.35(b)(1)(iv) 

pursuant to sections 9(a) and 10(c) of the Act “exceeds the bounds of the permissible.” Barnhart 

v. Walton, 535 U.S. 212, 218 (2002), citing Chevron at 843. The regulation will 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 in Encino Motorcars, LLC v. Navarro quoted 

above. The rulemaking record here far surpasses the minimum requirements articulated in Encino 

Motorcars. The preamble to the final rule reflects the Secretary having examined the relevant 

information and having provided cogent reasoning for including an anti-retaliation provision in 

the recordkeeping record as a means to promote increased accuracy of illness and injury data that 

the Act requires OSHA 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), quoting Smiley 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). See Skinner 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 with 
22

standards 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) (citing Mourning for this proposition, and

observing that the recordkeeping regulations requiring employers to maintain injury and illness 

records and to produce those records to the Secretary during an inspection “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 is consistent 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 employers provide and that OSHA 

collect accurate 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) proceedings involving the 

same alleged retaliatory act. To the extent that the Secretary may seek back-pay and similar relief

in an order of abatement in a section 9(a) proceeding enforcing the anti-retaliation regulation, 

equitable principles would foreclose an employee’s double recovery in a parallel section 11(c) 

proceeding. Similarly, one of the parallel proceedings could be stayed to conserve resources and

potentially to permit application of issue or claim preclusion principles to the stayed proceeding. 
23

In its memorandum in opposition to the motion, USPS points to discovery requests that 

were filed in a different proceeding before the Commission that also involves an alleged violation 

of section 1904.35(b)(1)(iv), which USPS argues would be irrelevant in a section 11(c) proceeding. 

The USPS seems to suggest that such discovery requests show that the cited regulation is both 

ultra vires and arbitrary and capricious. (Mem. in Opposition, 10-13). To the extent a litigant

regards a discovery request in a particular matter to be outside the scope of permissible discovery,

unduly onerous, disproportionate, or otherwise objectionable, such arguments are best addressed 

and resolved in the context of an appropriate discovery motion filed in a particular case, where

such a discovery dispute would be concrete and ripe. This argument is not material to whether the 

cited regulation is ultra vires or arbitrary and capricious. 

Enforcement of section 1904.35(b)(1)(iv) pursuant to section 9(a) of the Act is well within 

the bounds of permissible construction of the Act and is neither arbitrary nor capricious. This

permissible interpretation of the Act is due “controlling weight” under Chevron, inasmuch as the 

anti-retaliation regulation was promulgated pursuant to Congress’s express delegations of 

authority to the Secretary (a) to promulgate regulations “as necessary or appropriate for the 

enforcement of this [Act] or for developing information regarding 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). Chevron at 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, is 

GRANTED, and that defense is ordered STRICKEN from the answer.
24

“Arbitrary and Capricious” Defense

For the same reasons described in connection with the Chevron step two analysis 

immediately above, the Secretary’s motion for summary judgment on the “arbitrary and 

capricious” affirmative defense set forth in paragraph 8 of the answer’s “affirmative defenses” 

section, is GRANTED, and that defense is ordered STRICKEN from the answer. See Judulang v. 

Holder, 565 U.S. 42, 53 n. 7 (2011) (indicating that the analysis under Chevron step two is 

substantially the same as the analysis under the APA’s “arbitrary and capricious” standard at 5 

U.S.C. § 706(2)(A)). 

SO ORDERED.

/s/

WILLIAM S. COLEMAN

Administrative Law Judge

DATED: December 27, 2018