Wood, Roger v. Chao, Elaine

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2001 Decided December 28, 2001

No. 00-5297

Roger Wood,
Appellant

v.

Department of Labor and Elaine Chao, Secretary of Labor,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 98cv02364)

Joanne Royce argued the cause for the appellant. James
R. Klimaski was on brief.

Beverly M. Russell, Assistant United States Attorney, ar-
gued the cause for the appellees. Kenneth L. Wainstein,
Acting United States Attorney at the time the brief was filed,
R. Craig Lawrence, Assistant United States Attorney, and

Ann Rosenthal and John Shortall, Attorneys, United States
Department of Labor, were on brief for the appellees.

Before: Henderson, Randolph and Rogers, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Appellant Rog-
er Wood seeks review of the district court's dismissal of his
appeal from the decision of the Department of Labor (DOL)
declining to file suit on his behalf for retaliatory discharge
under section 11(c) of the Occupational Safety and Health Act
(Act), 29 U.S.C. s 660(c). The district court held that the
DOL's decision not to sue was committed to the agency's
discretion by law and thus not subject to judicial review
pursuant to the United States Supreme Court's decision in
Heckler v. Chaney, 450 U.S. 821 (1985). In light of the
limited issue Wood raises on appeal, we affirm the district
court's dismissal of his complaint but on a different ground.

I.

Wood was employed as a senior electrician by United
Engineers and Constructors (UE&C)1 at the Johnston Atoll
Chemical Agent Disposal System (JACADS).2 JACADS is a
facility consisting of several chemical weapons incinerators
located on the Johnston Atoll in the Pacific Ocean. The
facility is operated by UE&C pursuant to a U.S. Army
contract to dismantle and destroy the lethal chemical weapons
stockpile stored on the island. Due to the type of weapon
handled at JACADS, the working conditions at the facility are
probably as dangerous as any undertaken in the world.

According to his complaint, before working at JACADS,
Wood was employed at the Pine Bluff Arsenal in Arkansas,
where he gained extensive experience in the field of chemical

__________
1 UE&C is a subsidiary of Raytheon Industries.

2 On a motion to dismiss, the facts as alleged in the complaint are
taken as true and all reasonable inferences therefrom are drawn in
the plaintiff's favor. See Sugar D. Co. v. Niagara Frontier Tariff
Bureau, Inc., 476 U.S. 409, 411 (1986).

weapons destruction, making over 1000 "toxic entries"3 with
various levels of protective clothing and respirators. Upon
his arrival at JACADS in 1990, Wood discovered that man-
agement and many of his co-employees failed to appreciate
the dangers associated with the destruction of chemical weap-
ons. In particular, he found basic safety equipment and
training, the norm at Pine Bluff, inadequate at JACADS. As
a result, Wood began making a number of safety complaints
about conditions at the facility. In November 1990, Wood's
concerns were confirmed when an investigation conducted by
the Occupational Safety and Health Administration (OSHA)
resulted in the issuance of a "serious"4 citation for two
violations. The violations included the provision of unap-
proved respirators, 29 C.F.R. s 1910.134(c), and the standby
team's use of improper protective equipment, 29 C.F.R.
s 1910.134(e)(3)(iii). Coincident with the citation, OSHA
mandated that all toxic entries be discontinued until JACADS
complied with a schedule of specific safety precautions.

Subsequently, Wood and his supervisors had a number of
clashes regarding safety issues at JACADS. The supervisors
saw many of Wood's allegations as scare tactics, intended to
frighten his co-workers. The disputes culminated in Wood's
refusal to work in a toxic area because UE&C had not
provided him with new corrective lenses for the facepiece of
his protective mask. Because he had already received a final
reprimand for refusal to work,5 Wood was discharged for
insubordination on February 4, 1991.

__________
3 A toxic entry is an entry into an environment where toxic
contamination exists. See Compl. p 15.

4 "[S]erious" means a "hazard, violation or condition such that
there is a substantial probability that death or serious physical
harm could result." See 29 C.F.R. s 1960.2(v).

5 On February 2, 1991 Wood had received and signed a "FINAL
REPRIMAND" letter detailing his refusal to work as directed.
The reprimand stated that "any further incidents, in which your
actions are interpreted as insubordination ... will result in the
immediate termination of your employment at JACADS." JA 123.

 On February 15, 1991 Wood filed a complaint with OSHA
alleging that his discharge violated section 11(c)(2) of the Act,
which prohibits reprisals against employees who raise health
and safety concerns. See 29 U.S.C. s 660(c).6 OSHA region-
al investigator John Braeutigam was initially assigned to
investigate Wood's allegations and, based on his investigation,
the San Francisco Regional OSHA Office concluded that
UE&C had violated section 11(c)(2) of the Act by terminating
Wood for making safety complaints about the conditions at
JACADS. When attempts at settlement proved unsuccessful,
the Regional Office forwarded the complaint to the DOL
Regional Solicitor with the recommendation that "a case be
filed on Wood's behalf." After further research, the Regional
Solicitor concluded that the case was inappropriate for litiga-
tion due to a possible jurisdictional conflict with the Depart-
ment of the Army (Army), which, he concluded, was responsi-
ble for setting the safety standards at JACADS. As a result,
DOL's Office of the Solicitor (DOL Solicitor) referred Wood's
claim to the Army. The Army conducted its own investiga-
tion and, in February 1996, finally returned the case to DOL
without taking any action.

In April 1996 OSHA and the DOL Solicitor reviewed
Wood's case again. In a letter dated May 3, 1996 the OSHA
Assistant Secretary notified Wood that OSHA would take no
further action. Explaining that the right to refuse to work is
very limited, the Assistant Secretary concluded that Wood's
refusal to participate in toxic entries did not meet the applica-
ble legal test and thus his termination did not violate section
11(c). The Assistant Secretary also suggested that UE&C's
probable jurisdictional defense based on the Army's authority
over JACADS would "further complicate the litigation."

__________
6 Section 660(c) has three subsections. Defining "protected activi-
ty" under the Act, section 660(c)(1) provides: "No person shall
discharge or in any manner discriminate against any employee
because ... of the exercise by such employee ... of any right
afforded by this chapter." 29 U.S.C. s 660(c)(1). Section 660(c)(2)
provides the complaint procedure and describes the prohibited
action, see infra p. 6, and section 660(c)(3) sets forth the Secretary's
notice deadline once a complaint is filed.

 On October 2, 1998 Wood filed the instant action seeking
judicial review of the DOL Secretary's decision declining to
bring a civil action on his behalf pursuant to section 11(c)(2)
of the Act. Count I of his complaint alleged that the Secre-
tary "determined that Raytheon, [Wood's] employer, had
violated 29 U.S.C. s 660(c)" and then "unlawfully declined to
file suit in an appropriate U.S. district court against Ray-
theon." Compl. p p 57-58. Counts II and III alternatively
charged that the statement of reasons regarding the decision
not to sue contained in the Assistant Secretary's May 3, 1996
letter violated the Administrative Procedure Act (APA), 5
U.S.C. s 706(2)(a).7 Defendants DOL and the DOL Secre-
tary moved to dismiss.

On June 23, 2000 the district court dismissed Wood's
complaint, concluding that the Secretary's decision declining
to bring a section 11(c) suit was not judicially reviewable.
Wood v. Herman, 104 F. Supp. 2d 43, 48 (D.D.C. 2000). The
district court relied on the holding in Heckler v. Chaney, 470
U.S. 821 (1985), in which the Supreme Court declared that an
agency decision declining to initiate an enforcement action is
generally "presumed immune from judicial review" unless the
statute "has provided guidelines for the agency to follow in
exercising enforcement powers." Wood v. Herman, 104
F. Supp. 2d at 45-46 (D.D.C. 2000) (quoting Chaney, 470 U.S.
at 832-33).8 "[U]nable to discern any meaningful guidelines
for the Secretary to follow in deciding whether to bring an
enforcement action," the district court held that "the Chaney

__________
7 Count II also challenged the Assistant Secretary's additional
rationale included in his May 3, 1996 letter that the jurisdictional
issue would likely complicate the litigation of Wood's claim. Counts
IV, V and VI laid out additional grounds for relief which are not
before us on appeal.

8 Chaney noted that an agency's decision to decline enforcement
is "generally committed to an agency's absolute discretion" and
"involves a complicated balancing of a number of factors which are
peculiarly within [agency] expertise." 470 U.S. at 831 (citations
omitted). In addition, "the agency is far better equipped than the
courts to deal with the many variables involved in the proper order
of its priorities." Id. at 831-32.

presumption of nonreviewability must govern." Id. at 46.
Without separately discussing the APA claims, the district
court dismissed the entire action. This appeal followed.

II.

On appeal, as he did in the district court, Wood frames the
issue as "whether the Secretary of Labor's decision not to
bring an enforcement action, despite having found a violation
under 29 U.S.C. s 660(c), is reviewable." Appellant's Br. at
2. We review the dismissal of Wood's complaint de novo.
Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001). In
deciding a purely legal question, we need not adopt the
reasoning relied upon below. See Eldred v. Reno, 239 F.3d
372, 374-75 (D.C. Cir. 2001). While we affirm the district
court's dismissal of Count I, we do so on a different basis
from the one used below. We conclude that Count I fails to
state a claim on which relief can be granted, Fed. R. Civ. P.
12(b)(6), because the Secretary did not determine that Wood's
discharge violated section 11(c) of the Act.

In challenging the Secretary's non-enforcement decision,
Wood relies principally upon the language of section 11(c)(2).
We allow Wood to fall on his statutory "sword." The perti-
nent language of section 11(c)(2) of the Act provides:

Any employee who believes that he has been discharged
or otherwise discriminated against by any person in
violation of this subsection may ... file a complaint with
the Secretary alleging such discrimination. Upon receipt
of such complaint, the Secretary shall cause such investi-
gation 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 ...

29 U.S.C. s 660(c)(2) (emphasis added). Count I mirrors the
statutory language, alleging that the Secretary determined
that Wood's employer had violated section 11(c)(2) and then
"unlawfully failed to bring an action." In light of the con-

gressional mandate reflected by the "shall" language, Wood
argues, the Chaney presumption of non-reviewability is inap-
plicable.

Wood's contention is based on the premise that the Secre-
tary's statutory duty to bring suit under section 11(c)(2)
arises only if the Secretary first finds a violation. As dis-
cussed below, the Secretary made no such determination here
and concluded instead that Wood's refusal to work was not
protected activity under the Act. Wood appears to view the
Secretary's determination that the subsection was not violat-
ed and the Secretary's decision not to bring suit as two sides
of the same coin so that he may challenge the latter without
regard to the former. As the complaint itself appears to
recognize, however, the Secretary's determination that sec-
tion 11(c)(2) has been violated at all is a requisite precondition
to her enforcement decision. Count I alleges "[t]he Secretary
conducted an investigation into plaintiff's claim of retaliation;
confirmed its merits; and determined that Raytheon, plain-
tiff's employer, had violated 29 U.S.C. s 660(c) by terminat-
ing plaintiff in retaliation for protected activity." Compl. p 57
(emphasis added). In his Reply Brief, Wood further argues
that because the "Secretary of Labor unquestionably found a
violation of s 11(c)," the DOL "was obligated to file suit on
his behalf." Reply Br. at 1 (emphasis added). Although
Count I (paragraph 57) of the complaint alleges that the first
step of the statutory directive detailed above was met, Wood's
complaint also recites the contents of the Assistant Secre-
tary's May 3rd letter, which states in part that "we conclude
that your refusal to work does not meet the test set forth in
[section 11(c)]." Compl. p 50 (emphasis added). See general-
ly 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure s 1357, at 319-20 (2d ed. 1990). On
its face, then, the complaint foretells its own demise. Wood's
challenge to the Secretary's decision not to bring suit on his
behalf, which forms the basis of Count I, cannot be heard if
the Secretary did not first determine that UE&C violated
section 11(c)(2).

Section 11(c)(2) designates the Secretary as the official who
decides whether and to what extent an investigation is "ap-

propriate" and, based on that investigation, whether the
complainant has made out a claim that his employer discrimi-
nated against him, by discharge or otherwise, for his protect-
ed activity. 29 U.S.C. s 660(c). To demonstrate that the
Secretary "unquestionably" found a violation, Wood sweep-
ingly contends that "[e]very single Department of Labor
official and attorney who investigated the facts found a strong
merit case." Reply Br. at 1. His contention, even if true, is
irrelevant. Only the Secretary of Labor is authorized to
"determine" whether the "subsection has been violated." The
Secretary has delegated to the Assistant Secretary for Occu-
pational Safety and Health "the authority and assigned re-
sponsibility for administering the safety and health programs
and activities of the Department of Labor ... under ... the
Occupational Safety and Health Act of 1970." See Secretary's
Order 3-2000, 65 Fed. Reg. 50017 (August 16, 2000). Using
this authority, the Assistant Secretary for Occupational Safe-
ty and Health John Deer determined on May 3, 1996 that
Wood's refusal to work was not protected activity under
section 11(c)(2) and therefore UE&C did not violate the Act
by discharging him. The first step of section 11(c)(2) not
having been taken, then, Wood cannot as a matter of law
make out a retaliatory discharge claim as set forth in Count
I.9

For the foregoing reasons, the district court's dismissal of
Count I of Wood's complaint is

Affirmed.

__________
9 In holding that the Secretary's decision not to sue was unre-
viewable, the district court did not reach Counts II and III, Wood v.
Herman, 103 F. Supp. 2d at 45; on appeal Wood did not raise, in
the alternative, an issue on either, and accordingly, Wood has
waived any objection to their dismissal. Moreover, the court does
not reach the questions whether either the Secretary's determina-
tion of a violation vel non or her determination upon finding a
violation not to file a complaint are subject to judicial review.