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WOOD v. HERMAN

June 23, 2000

ROGER WOOD, PLAINTIFF,
V.
ALEXIS M. HERMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Before the Court are defendants' motion to dismiss, or in the alternative, for summary judgment, and plaintiff Wood's cross motion for summary judgment. Having considered the motions, the oppositions, the replies and the entire record herein, the Court grants defendants' motion and dismisses plaintiff's complaint with prejudice on the grounds that the Secretary of Labor's decision not to bring an enforcement action under § 11(c) of the Occupational Safety and Health Act is not reviewable by the court but is committed to the agency's discretion.

BACKGROUND

Plaintiff Roger Wood appeals the decision of the Department of Labor (DoL) declining to file a complaint on his behalf for retaliatory discharge under § 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c). Wood was formerly employed as an electrician by a subsidiary of Raytheon at Johnston Atoll Chemical Agent System ("JACADS"), a chemical weapons incinerator which was located on Johnston Atoll in the Pacific Ocean and was being used to destroy a lethal chemical weapons stockpile.

Plaintiff began working at the incinerator on June 18, 1990, and he frequently complained about safety conditions at JACADS. On February 4, 1991, after repeated reprimands, plaintiff refused an assignment to work in a toxic area because Raytheon did not provide him with new corrective lenses for the facepiece of his protective mask. As a result, plaintiff was discharged. Plaintiff claims that the difference between the old prescription and the new prescriptions for the corrective lenses was significant, while Raytheon and the Secretary claim that it was minor. Plaintiff asserts that the discharge was in retaliation for his reporting safety violations and refusing to work under unsafe conditions. On February 15, 1991, plaintiff filed a § 11(c) complaint with the Occupational Safety and Health Administration (OSHA).

OSHA 11(c) Investigator John Braeutigam investigated plaintiff's complaint, and OSHA's San Francisco Area Office made a preliminary determination that plaintiff's complaint had merit. In compliance with standard OSHA procedure, the Area Office attempted to settle the case informally, but when this proved unsuccessful, the case was forwarded to the Regional Solicitor of Labor for legal review and possible litigation. After further research, the Secretary determined that the case was inappropriate for litigation and referred the case to the Department of Defense. In February 1996, the case was returned to OSHA, and in April 1996 National OSHA and the Solicitor's Office reviewed the case again. In a letter dated May 3, 1996, the Assistant Secretary for OSHA notified Wood that OSHA would take no further action because the right to refuse to work is very limited and plaintiff's refusal did not meet the applicable legal test. Furthermore, the Secretary explained that OSHA may not have authority in this area since the hazardous workplace in question was under the control of the Department of the Army, and Raytheon could therefore have a legal defense that would "further complicate the litigation of this matter."*fn1 AR Doc. A.

Wood seeks a declaratory judgment that DoL's decision declining to bring suit pursuant to § 11(c) on his behalf was arbitrary and capricious. In response, the DoL and the Secretary of Labor have filed a motion to dismiss or, in the alternative, for summary judgment, arguing that the Secretary's decision to decline to file a § 11(c) OSHA suit is not judicially reviewable. Alternatively, the government argues that the Secretary's decision not to bring suit was reasonable under the facts and the law. Given the Court's conclusion that the Secretary's declination to bring an enforcement action is not reviewable, it need not address defendant's alternative argument.

LEGAL ANALYSIS

A. The Reviewability of the Secretary's Non-enforcement Decision

The Administrative Procedure Act ("APA") provides that there is a presumption of reviewability of administrative decisions unless the decision falls within one of two exceptions. The first exception is where Congress has expressly precluded judicial review by statute. 5 U.S.C. § 701(a)(1). The second exception, the focus of this case, occurs when the agency action is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). In the seminal case relating to judicial review of enforcement actions, Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court ruled that "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Id. at 831, 105 S.Ct. 1649.*fn2 In Chaney, prison inmates who had been sentenced to death petitioned the Food and Drug Administration, alleging that the use of certain drugs for lethal injection violated the Food, Drug and Cosmetic Act (FDCA). The prison inmates further requested that the FDA take enforcement action in light of these violations, but the FDA refused. In finding this non-enforcement decision by the FDA to be unreviewable, the Supreme Court explained:

[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.

Chaney has been consistently followed by all circuit courts which have addressed the issue of judicial reviewability of agency enforcement decisions. For instance, in Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949 (3rd Cir. 1987), the Third Circuit found that the Secretary's non-enforcement decision under Section 404 of the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1344 (1982), was within the Secretary's discretion. Section 404 of the statute provided:

Whenever on the basis of any information available to him the Secretary finds that any person is in violation . . . the Secretary shall issue an ...

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