D.C. Circuit Refuses Review of Enforcement Action of Enforcement Manual, Except to Find that the Manual Need Not Be Adopted Through Notice and Comment

The Federal Highway Administration (FHWA) is authorized by statute to issue "cease business" orders to employers whose continued operation poses an "imminent hazard to safety." Such orders may be issued without prior proceedings, but upon request the affected employer may obtain a formal adjudication under the APA to review the order, and the adjudication must occur within 10 days of request. Aulenback, Inc., received such an order, but rather than contest it, it entered into negotiations with the FHWA to rescind the order, resulting in a consent agreement requiring Aulenback to comply with federal safety regulations and to institute certain policies designed to remedy the violations for which it was cited. Aulenback, however, denied that it had ever posed an imminent hazard to safety, so it sued for the recission of the original order believing it wrongfully issued, and challenged both substantively and procedurally the lawfulness of the FHWA manual under which Aulenback said the FHWA had made its wrongful cease business order. In Aulenback, Inc. v. FHWA, 103 F.3d 156, the D.C. Circuit denied relief to Aulenback. The court held that the consent agreement mooted any challenge to the original order. The court did not accept Aulenback's argument that no one could practically run the risk of appealing a cease business order, so that the FMHA in essence coerces a consent agreement. The court found Aulenback's substantive challenge to the manual not yet ripe for review under Abbott Labs and subsequent cases, because while the claim was purely legal, "further administrative action is necessary to clarify the agency's position." In making this determination, however, the court may have given Aulenback much of what it desired. The court stated that the manual "appear[ed]" to authorize cease business orders under conditions not authorized by the statute, but that lacking an authoritative interpretation of the manual language from the agency, which Aulenback had not sought, the court believed the matter remained unripe for judicial review. The procedural challenge the court decided on the merits. Aulenback argued that the manual was a substantive rule that had to be adopted through notice and comment. The court, citing American Hospital Ass'n v. Bowen, 834 F.2d 1037 (D.C.Cir.1987), held that rules that do not establish substantive standards for regulated entities to meet but merely identify which cases the agency will prosecute are procedural rules, not requiring notice and comment.

Going Out of Business Does Not Moot OSHA enforcement proceeding

In 1991 Jacksonville Shipyards were cited for OSH Act violations. While the case was proceeding before an ALJ, Jacksonville closed shop, laying off its employees and selling its assets. It moved to have the case dismissed as moot because it was no longer an "employer" under the Act. The ALJ and the Occupational Safety and Health Review Commission accepted that argument, and the Secretary appealed. In Reich v. OSHRC, 102 F.3d 1200, the Eleventh Circuit reversed the Commission, holding that so long as a person is an "employer" under the Act at the time of violation, he is subject to OSHA sanction. Even if injunctive relief is mooted by the employer going out of business, a demand for administrative penalties is not, because they are not rooted in a determination of possible future violations.

Employer's refusal to copy information in its files for OSHA inspector is not a violation of OSHA's regulations

Under OSHA's regulations, employers are required to provide records to OSHA inspectors for inspection and copying. During an inspection of Caterpillar's premises, OSHA inspectors asked Caterpillar to provide it with various records of workplace accidents. Caterpillar provided the records for inspection but stated that it would not provide copies for the inspector to take away unless the names of the workers were redacted from the records. The inspector cited Caterpillar for violating the OSHA record provision regulation. In Caterpillar, Inc. v. Reich, 111 F.3d 61, the Seventh Circuit ruled for Caterpillar. The court held there was no substantial evidence to support the citation because the employer had provided the inspector access to the unredacted records, and it had not prevented the inspector from copying by hand the names that Caterpillar wanted redacted from the copies it would provide. The Secretary did not claim to interpret the regulation to require the employer to provide copies of the records, as opposed to allowing the inspector to make copies. Obviously, requiring inspectors to make handwritten copies of all records they want to retain from the employer would be greatly burdensome; accordingly, OSHA has proposed to amend its regulations to require employers to provide copies of records.

Industry group that loses in Ninth Circuit not precluded by stare decisis or comity from bringing suit in D.C. Circuit

The Northern Spotted Owl litigation has largely reached conclusion in the Ninth Circuit with a victory for the government upholding the President's 1994 Forest Plan. The Northwest Forest Resource Council, a timber industry group, was a party to that litigation. During that litigation, however, seeking a more favorable forum, it, together with some additional plaintiffs, also sued in the D.C. District Court challenging the Forest Plan. That action was stayed pending resolution of the Ninth Circuit litigation. With conclusion of that litigation, the government moved to dismiss the D.C. case. The district court dismissed the cases on the grounds of stare decisis. In Northwest Forest Resources Council v. Dombeck, 107 F.3d 897, the D.C. Circuit reversed. Initially, it noted that under the doctrine of stare decisis a district court in one circuit is not bound by decisions by a district (or circuit) court in another circuit. The government argued that the dismissal should be upheld on the grounds of comity, but it fared no better here. The court noted that comity almost never lies where there are parties to the lawsuit not represented in the other lawsuit, or when the other lawsuit is already completed, both of which circumstances were present here. The NFRC, however, is not home free; the court remanded the case back to the district court to determine whether issue or claim preclusion justify dismissal.

Provision in Indian Gaming Regulatory Act requiring State governor to approve Secretary of Interior purchase of trust lands for Indian gaming not an unconstitutional violation of the Appointments Clause or Separation of Powers

The Secretary of Interior may purchase land for the purpose of designating it as Indian trust land, but after 1988 it cannot be used for gaming purposes unless the Secretary determines it is in the best interests of the tribe and the surrounding community and the Governor of the affected state concurs. In Confederated Tribes of the Siletz Indians of Oregon v. United States, 110 F.3d 688 (9th Cir. 1997), the Governor of Oregon did not concur in the purchase of certain lands for use for Indian gaming, and the tribes sued, challenging the constitutionality of the provision requiring his concurrence on the basis that it violates the constitutional requirement for separation of powers as well the Appointments Clause. The separation of powers argument is that, just as in INS v. Chadha, 462 U.S. 919 (1983), where one house of Congress cannot veto an executive determination, so also is it unconstitutional for a statute to vest veto power over an executive determination in the Governor of a state. Without mentioning Chadha, the court rejected the argument, noting the substantial number of statutes (and Supreme Court cases upholding their constitutionality) that involve delegations of legislative authority to executive agencies contingent on the approval of some local group or governmental entity. See, e.g.., J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). The court did not seem disturbed that all of these cases were from the 1930's or earlier. With respect to the Appointments Clause issue, the court held that the power given by the statute to the governor to withhold concurrence, and in effect veto the Secretary's determination, did not involve the exercise of significant federal power, which only a federal officer can exercise.

While the outcome of the case seems correct, its reasoning is suspect. Imagine that the Comptroller General, held not to be a federal officer in Bowsher v. Synar, 478 U.S. 714 (1986), could veto the Secretary of Interior's determination, would the court still say there was no exercise of significant federal power?

When Secretary of Labor affirmed an ALJ's opinion on the merits but remanded for determination of attorneys' fees, the final order for purposes of starting the time period for appealing was the remand order

An employee of Fluor, Inc., filed an action with the Secretary of Labor under the "whistleblower" provisions of the Energy Reorganization Act of 1974. The ALJ initially found against the employee, but the Secretary reversed and remanded. Fluor sought judicial review, which was denied on the grounds that there was not yet a final agency order. Thereafter, the ALJ set the amount of compensatory damages, and the Secretary affirmed that determination but remanded once again for a determination of the amount of attorneys fees. When that amount was determined, Fluor sought judicial review of the merits of the underlying action, but in Fluor Constructors, Inc. v. Reich, 111 F.3d 94, the Eleventh Circuit dismissed the appeal because Fluor had not sought review within 60 days of the Secretary's remand for determination of attorneys fees. The court relied upon a Supreme Court decision that held that, with respect to the date for appeal from a district court decision, the decision on the merits, not the decision on the attorneys fees, begins the period for seeking review of the decision. The court found no reason to have a different rule for agency determinations. One judge provided a concurring decision, noting that the court had correctly parsed the law but suggesting that justice had gone astray when everyone in the administrative process had believed, after the denial of jurisdiction over Fluor's initial appeal, that the Secretary's remand to determine attorneys fees did not begin the time period for seeking appeal.