United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 2009 Decided April 16, 2010

No. 09-1053

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL.,

PETITIONERS

v.

OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION AND

DEPARTMENT OF LABOR,

RESPONDENTS

On Petition for Review of a Final Rule

of the Occupational Safety & Health Administration

Arthur G. Sapper argued the cause for petitioners. With

him on the briefs were James A. Lastowka, Duane J. Desiderio,

Robin S. Conrad, and Quentin Riegel.

Ronald J. Gottlieb, Attorney, U.S. Department of Labor,

argued the cause for respondents. With him on the brief were

Carol A. De Deo, Deputy Solicitor, Joseph M. Woodward,

Associate Solicitor, and Michael P. Doyle, Attorney. Charles F.

James, Attorney, U.S. Department of Labor, entered an

appearance.

Victoria L. Bor argued the cause for amici curiae AFL-CIO

and Building and Construction Trades Department, AFL-CIO in
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support of respondent. With her on the brief were Jonathan

Hiatt and Lynn K. Rhinehart.

Before: TATEL and KAVANAUGH, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: A driver exceeding the

speed limit runs a red light and swerves onto the opposite lane. 

Three violations of the law against reckless driving or one? Five

punches to a victim’s face without provocation. One battery or

five? Same result if the punches were hours apart? The

financial officer of a corporation with 10,000 shareholders

submits a false report to the Securities and Exchange

Commission. One fraud or 10,000? These “unit-ofprosecution” questions have vexed state and federal courts. The

questions are important. Prosecutors know that multiple charges

encourage plea agreements and convictions. Defense attorneys

know that it is easier to defend against one charge than many. 

Most people know that multiple offenses can result in multiple

punishments.

Similar problems have dogged civil enforcement

proceedings. See, e.g., Missouri, Kansas & Texas Ry. Co. v.

United States, 231 U.S. 112 (1913) (Holmes, J.). In this case,

the Secretary of Labor amended rules under the Occupational

Safety and Health Act to clarify that an employer’s failure to

provide respirators or workplace training constitutes not one

violation of the applicable health and safety standards, but

separate violations for each employee who did not receive the

respirator or training. See, e.g., 29 C.F.R. § 1910.9(a), (b). 

Three trade associations whose members are subject to these
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amended rules claim the Secretary had no statutory authority to

issue the amendments. 

The Secretary promulgates workplace “standards.” 29

U.S.C. § 655(b). A standard “requires conditions, or the

adoption or use of one or more practices, means, methods,

operations, or processes, reasonably necessary or appropriate to

provide safe or healthful employment and places of

employment.” Id. § 652(8). When the Secretary discovers that

an employer has violated a standard, she may issue a citation

and propose a financial penalty. Id. §§ 658(a), 659(a). Penalties

vary with the severity of the violation: up to $7,000 for serious

and other-than-serious violations, up to $70,000 for repeat

violations, and between $5,000 and $70,000 for willful

violations. Id. § 666(a)-(c). 

The Occupational Safety and Health Review Commission,

an independent tribunal, hears employer objections to the

Secretary’s citations. See Martin v. Occupational Safety &

Health Review Comm’n, 499 U.S. 144, 147-48 (1991). The

Commission “act[s] as a neutral arbiter and determine[s]

whether the Secretary’s citations should be enforced.” 

Cuyahoga Valley Ry. Co. v. Utd. Transp. Union, 474 U.S. 3, 7

(1985). The Commission accepts the Secretary’s reasonable

interpretation of regulations. Martin, 499 U.S. at 154-55. 

Within the range of fines listed above, the Commission

determines the penalty amount de novo in light of the size of the

employer’s business, the gravity of the violation, the employer’s

good faith, and any history of repeated violations. 29 U.S.C.

§ 666(j).

The rulemaking here came in response to the Commission’s

decision in Erik K. Ho, 2003 WL 22232014 (O.S.H.R.C.), aff’d,

partly on other grounds, Chao v. Occupational Safety & Health

Review Comm’n, 401 F.3d 355 (5th Cir. 2005). Ho hired eleven
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workers to renovate a building containing asbestos. He failed to

train them or to provide them with respirators. The Secretary

cited Ho for eleven violations of the asbestos training standard

and eleven violations of the respirator standard. The

Commission rejected the Secretary’s employee-by-employee

approach and held that the standards required the employer to

institute a single training program and to provide respirators to

employees as a group. Thus only two violations occurred. The

Commission added: “The Secretary has it within her authority

to draft standards . . . [which] prescribe individual units of

prosecution or penalty units, placing the regulated community

on notice that violations can be cited on an individualized basis.

. . . When a regulation fails [to provide sufficient notice], the

Secretary should remedy the situation by promulgating a clearer

regulation . . . .” Ho, 2003 WL 22232014, at *17 (internal

quotation marks omitted). 

The Secretary’s new rules clarified that “each failure to

provide [a respirator] to an employee” and “each failure to train

an employee may be considered a separate violation.” 29 C.F.R.

§ 1926.20(f). The rulemaking amended thirty-three other

standards to the same effect. See Clarification of Employer

Duty to Provide Personal Protective Equipment and Train Each

Employee, 73 Fed. Reg. 75,568, 75,583-89 (Dec. 12, 2008)

(codified at 29 C.F.R. parts 1910, 1915, 1917, 1918 and 1926). 

Although the new rules authorize employee-by-employee

charges, the Secretary’s Field Operations Manual states that

generally only a single citation will issue for each standard an

employer violates. Only when the employer’s behavior is

willful and egregious does the manual contemplate multiple

citations. OSHA Instruction CPL 2.80, Handling of Cases To

Be Proposed for Violation-By-Violation Penalties (October 21,

1990); see Kaspar Wire Works, Inc. v. Sec’y of Labor, 268 F.3d

1123, 1131 (D.C. Cir. 2001).
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Petitioners have one basic argument, which they repeat in

many different forms. The argument is that under the Act, the

Secretary had no authority to specify units of prosecution

because Congress assigned such determinations to the

Commission. We think there is nothing to the argument.

 

The unit of prosecution is derived from the duty set forth in

the Secretary’s standard. See, e.g., Chao, 401 F.3d at 372-73; E.

Smalis Painting Co., 2009 WL 1067815, at *35 (O.S.H.R.C.);

Ho, 2003 WL 22232014, at *12; Arcadian Corp., 1995 WL

17049978, at *6 (O.S.H.R.C.). Petitioners themselves

acknowledge as much. See Reply Br. for Petitioners at 17. 

They have no problem with a standard that can be interpreted to

permit per-employee citations so long as the standard does not

come right out and deal directly with the subject. Why then do

they suppose that the Act requires the Secretary to formulate

standards without regard to how the Commission (and the

courts) will construe the Secretary’s language in terms of units

of prosecution? They have no good answer. 

Petitioners fail to recognize that to define the violation is to

define the unit of prosecution. In the criminal law this basic

proposition has long been established. See, e.g., Crepps v.

Durden, (1777) 98 Eng. Rep. 1283, 1288 (K.B.) (Mansfield, J.);

In re Snow, 120 U.S. 274, 281-85 (1887). The responsibility for

specifying the unit of prosecution is therefore the legislature’s,

not the judiciary’s. See, e.g., Badders v. United States, 240 U.S.

391, 394 (1916); In re Snow, 120 U.S. at 281-82. The same is

true in civil enforcement actions. As Justice Holmes wrote in a

civil case raising a unit-of-prosecution issue, “the real question

is simply what the statute means.” Missouri, Kansas & Texas

Ry., 231 U.S. at 119. Here we are concerned not with statutory

violations, but violations of the Secretary’s standards. In that

respect, the Secretary stands in the shoes of the legislature. And

so petitioners’ argument evaporates. In giving the Secretary the
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authority to define what constitutes a violation, see 29 U.S.C.

§§ 654(a)(2), 655(b), the Act necessarily gave the Secretary the

authority to define the unit of prosecution.

Reich v. Arcadian Corporation, 110 F.3d 1192 (5th Cir.

1997), on which petitioners rely, did not involve standards

promulgated by the Secretary. The court’s statement – “the

Secretary cannot set a unit of prosecution because, in most

cases, a unit of prosecution has nothing to do with employment

or workplace practices or conditions” – was dictum and we do

not agree with it. Id. at 1198. The court did not take into

account the fact that the Secretary’s standards already set units

of prosecution: in determining whether per-employee violations

have occurred, the Commission and the courts analyze the

subject and language of the Secretary’s standard. See, e.g.,

Chao, 401 F.3d at 372-73. In addition, the Fifth Circuit went on

to acknowledge that certain conditions are unique to employees

and could justify per-employee charges; as an example the court

mentioned employee training. Reich, 110 F.3d at 1198-99.

Petitioners insist that the Commission alone has the

responsibility to determine units of prosecution because, under

29 U.S.C. § 666(j), the assessment of penalties is the

Commission’s exclusive domain. This is like saying that in a

criminal case the court – not the legislature – defines the unit of

prosecution because the court has exclusive authority to

determine the punishment. That of course is not the law. See,

e.g., Sanabria v. United States, 437 U.S. 54, 69-70 (1978); Bell

v. United States, 349 U.S. 81, 82-83 (1955); United States v.

Anderson, 509 F.2d 312, 332 (D.C. Cir. 1974). The

Commission does not agree with petitioners: in Ho it invited the

Secretary to define more precisely the unit of prosecution for

violations of training and respirator standards. 2003 WL

22232014, at *17. In addition we recognized in Kaspar Wire

Works that setting units of prosecution rests on policy
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judgments. 268 F.3d at 1131. Yet “Congress designed the

Commission to be a ‘neutral arbiter’ possessing ‘the type of

nonpolicymaking adjudicatory powers typically exercised by a

court in the agency-review context.’” S.G. Loewendick & Sons,

Inc. v. Reich, 70 F.3d 1291, 1294 (D.C. Cir. 1995) (quoting

Martin, 499 U.S. at 154-55). 

One final point deserves mention. Petitioners claim that we

owe deference only to the Secretary’s interpretation of her own

regulations, not to her interpretation of the Act. Circuit

precedent is otherwise. See Wal-Mart Stores, Inc. v. Sec’y of

Labor, 406 F.3d 731, 734 (D.C. Cir. 2005); A.E. Staley Mfg. Co.

v. Sec’y of Labor, 295 F.3d 1341, 1351 (D.C. Cir. 2002); Kaspar

Wire Works, 268 F.3d at 1131; Anthony Crane Rental, Inc. v.

Reich, 70 F.3d 1298, 1302 (D.C. Cir. 1995). Even so, they say

that no deference is due here because Congress never delegated

authority to the Secretary to determine units of prosecution. For

the reasons stated above we hold that Congress did confer this

authority on the Secretary. 

The petition for judicial review is therefore denied.

So ordered.