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-of-
prosecution” 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.