Bailes v. United States Memorandum for the United States

    The Supreme Court of the United States

American Textile Manufacturers 
institute, Inc.
versus
Donovan

National Cotton Council of America
versus
Donovan

Petitions and Briefs

R E C E I V E D  
L i B  R A P  v

MAY g 7 1981

Paul, Weiss, EiikmiS, Wiisrton & Garrison

Labor Law Series
Volume 14, No. 15, Supplement 
1980/81 Term



TABLE OF CONTENTS

American Textile Manufacturers Institute, Inc. 79-1429
National Cotton Council of America 79-1583
v.
Donovan

Page

Briefs on the Merits
Supplemental Brief of Federal Respondents .........................  1357
Reply Brief of Union Respondents ......................................... 1379
Joint Reply Brief of Petitioners .............................................  1387
Second Reply Brief of Union Respondents ...........................  1399



These briefs supplement Volume 14, No. 15. The case 
dealing with the OSHA cotton dust standards were argued 
Tanuary 21. These supplementary briefs were filed 
March 30 through April 9 pursuant to Supreme Court 
Rules 35.5 and 35.6.

1357



Nos. 79-1429 and 79-1583

<31n tlje Ji>upremr (Emtrt of tfye jMmtrfr j^ ta ic s
O c t o b e r  T e r m , 1980

A m e r ic a n  T e x t il e  M a n c f a c t c r e r s  In s t i t c t e .
In c ., et a t ., p e t it io n e r s  

v.
R a y m o n d  J. D o n o v a n , S e c r e t a r y  of  L a b o r , 
U n i t e d  S tates  D e p a r t m e n t  of  L a b o r , et  a l .

N a t i o n a l  C o t t o n  C o u n c i l  of  A m e r i c a , p e t i t i o n e r

v.
R a y m o n d  J. D o n o v a n , S e c r e t a r y  of  L a b o r , 
U n i t e d  S tates  D e p a r t m e n t  of  L a b o r , et  a l .

ON W R IT  OF C E R T IO R A R I  TO 
THE UNITED S T  A TES C O U R T  OF A PPEA LS FOR  

THE D IS T R IC T  OF COLUMBIA CIRC U IT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL 
MEMORANDUM AND SUPPLEMENTAL MEMORANDUM  

FOR THE FEDERAL RESPONDENT

W ade  H. M c C r e e , J r . 
Solicitor General 
Department o f  Justice 
Washington, D.C. 20530 
(202) 633-2217

T. T im o t h y  R y a n . J r .
Solicitor o f  [arbor 

Be n j a m i n  W'. M i n t z  
Associate Solicitor fo r

Occupational Safety and Health 
A llen  H. F e l d m a n  
J o h n  A. B ryson  

A Horners
Department o f  Labor 
Washington, D.C. 20210

1359





TABLE OF AUTHORITIES
Page

Cases:
Cotton Warehouse A ss’n v. Marshall, 

vacated and remanded, No. 79-1789 
(Oct. 6, 1980) ........................................................  5

Dayton Bd. o f Education v. Brinkman,
433 U.S. 406 ..........................................................  5

EPA v. Brown, 431 U.S. 99 ....................................  4
Western Oil & Gas A ss’n v. EPA,

633 F. 2d 803 ........................................................  5
Statute, rule and regulation:

Occupational Safety and Health Act of 1970,
29 U.S.C. 651 etseq:.

29 U.S.C. 655(b)(5) ..........................................  3
29 U.S.C. 655(f) ...............    2.4
29 U.S.C. 655(g)...............................    2

Gen. R. D.C. Cir. 13(d)............................................  4
29 C.F.R. 1910.1043 ................................................  2

Miscellaneous:
Cotton Dust: Review o f Alternative Technical 

Standards and Control Technologies 
(May 1979) ............................................................ 3

Exec. Order No. 12291 (Feb. 17, 1981)..................  2

43 Fed. Reg. (1978):
pp. 27350-27399 ................................................  2
pp. 28473-28474 ................................................  2

1

1361



II
Page

Miscellaneous—(Continued):

pp. 35032-35035 ................................................. 2
pp. 56893-56894 ................................................  2

11 Weekly Comp, of Pres. Doc. 124 
(Feb. 23, 1981) ..................................    2

1362



(3)tt %  ^Supreme Court of itje Pmlofr S ta tes
O ctober T e r m , 1980

No. 79-1429
A merican  T extile M anufacturers  Institu te , 

In c ., et a l ., petitioners

v.
R aym ond  J. D o n o v a n , S ecretary of L abor , 
U nited  S tates D epartm ent  of L abor , et a l .

No. 79-1583
N ational  C otton  C o u n c il  of A m e r ic a , petitioner

v.
R aym ond  J. D on o v a n , S ecretary of L abor , 
U nited  States D epartm ent  of Labor , et al .

ON WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF A PPEA LS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

MOTION FOR LEAVE TO FILE SUPPLEMENTAL 
MEMORANDUM FOR THE FEDERAL RESPONDENT

Pursuant to Rules 35.5 and 35.6 of the Rules of this 
Court, the Solicitor General, on behalf of the Secretary of 
Labor, moves for leave to file the attached supplemental 
memorandum for the federal respondent.

1363



2
These cases involve a challenge to the occupational 

health standard for exposure to airborne concentrations of 
cotton dust, issued by the Secretary of Labor on June 19, 
1978, pursuant to Section 6(b) of the Occupational Safety 
and Health Act of 1970, 29 U.S.C. 655(b). On March 27, 
1981, subsequent to the oral argument in these cases, the 
Secretary sent to the Federal Register for publication an 
Advance Notice of Proposed Rulemaking, stating his inten­
tion to undertake additional administrative proceedings for 
the purpose of reassessing the requirements of the cotton 
dust standard. The attached supplemental memorandum is 
submitted to inform the Court of that intervening develop­
ment and to discuss briefly its effect on the pending cases.

Respectfully submitted.

W ade H. M c C ree, J r . 
Solicitor General

T. T imothy  R yan , J r .
Solicitor o f Labor 
Department o f Labor

M arch  1981

DOJ-1981-03

1364



<3!rt ifye Suprem e Court of ttjo |Mntieii Jitaies
O ctober T er m , 1980

No. 79-1429
A merican  T extile M anufacturers  Institu te , 

In c ., et a l ., petitioners

R aymond  J. D on o v a n , S ecretary of Labor , 
U nited  States D epartment  of L abor , et a l .

No. 79-1583
N ational  C otton C ou n cil  of A m er ic a , petitio ner

v.
R aym ond  J. D ono van , S ecretary of Labor 
U nited  States DEPARfMENT of L abor , et al .

ON WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF A PPEA LS FOR 

THE DISTRICT OF COLUMBIA CIRCUIT

SUPPLEMENTAL MEMORANDUM FOR 
THE FEDERAL RESPONDENT

We wish to bring to the Court’s attention a recent devel­
opment that bears on the appropriate disposition of these 
cases.

1. On June 19, 1978. the Secretary of Labor issued a final 
mandatory occupational health standard regulating occu­
pational exposure to airborne concentrations of cotton

1

1365



2
dust. 29 C.F.R. 1910.1043, 43 Fed. Reg. 27350-27399 
(1978).1 On pre-enforcement review of the cotton dust 
standard pursuant to 29 U.S.C. 655(0, the United States 
Court of Appeals for the District of Columbia Circuit 
upheld all major provisions of the standard with respect to 
petitioners. This Court thereafter granted certiorari to 
decide, among other issues, the role of cost-benefit analysis 
in setting toxic substances standards under the Occupa­
tional Safety and Health Act of 1970. After briefing by the 
parties, the Court heard oral argument on January 21, 1981.

2. On February 17, 1981, President Reagan issued Exec­
utive Order No. 12291, directing all federal agencies to 
assess potential costs and benefits of major regulatory 
proposals. See 11 Weekly Comp, of Pres. Doc. 124(Feb. 23, 
1981). In light of this directive, the Secretary has deter­
mined to undertake a re-examination of the cotton dust 
standard and has issued an Advance Notice of Proposed 
Rulemaking, which was filed with the Federal Register for 
publication on March 27, 1981. (A copy of the notice is 
attached as an Appendix, infra.) With the aid of administra­
tive rulemaking, the Secretary intends to evaluate the feasi­
bility and utility of cost-benefit analysis in the standard 
setting process, to compare the costs and benefits of the 
current standard and various alternatives, and to reassess 
the current standard in light of the findings.

The Secretary believes that, as indicated in Executive 
Order No. 12291, an analysis of the costs and benefits of 
federal regulation is of vital concern to the national welfare 
and should be taken into account by the government in 
setting its priorities. See 29 U.S.C. 655(g); Gov’t Br. 56. 
Consonant with the policy underlying the Executive Order,

'Amended at 43 Fed. Reg. 28473-28474. 35032-35035. and 56893- 
56894 (1978).

1366



3
it is the Secretary’s view that an assessment of the practical­
ity of cost-benefit balancing is best achieved in the context 
of an actual standard such as the one concerning cotton 
dust and in a manner that permits public comments.2

In the Advance Notice of Proposed Rulemaking, the 
Secretary has stated that in order to provide for the best 
analysis, he will seek complete cost estimates for com­
pliance with the current standard as well as for other pro­
posed means of providing protection for employees exposed 
to cotton dust. The Secretary has also requested the most 
recent data available of the type necessary for traditional 
economic analysis, e.g., the financial strength of the indus­
try, and its capital needs and structure.

The Secretary believes that the information, data and 
comments likely to be received through a public proceeding 
will permit him to make an informed judgment as to the 
feasibility and utility of cost-benefit analysis in this area 
and, if feasible, to produce a comprehensive and thorough 
cost-benefit analysis of the cotton dust standard. This expe­
rience, plus the comparative experience under other health 
and safety laws (see 29 U.S.C. 655(b)(5)) will enable the 
Secretary to decide under what circumstances it is appro­
priate to factor such an analysis into the setting of standards 
for toxic substances. In particular, because the Secretary 
must base standards on the “best available evidence” (ibid.), 
the usefulness vet non of cost-benefit analysis bears on the 
legality of employing that analysis in the standard-setting 
process.

:The Secretary produced one such analysis of this standard, at the 
request of Congress, after the standard was issued. Coiron Dust: 
Review o f  Alternative Technical Standards and Control Technologies 
(May 1979). However, this report and its assumptions, methodology 
and conclusions were not subject to public comment, and the report did 
not have the benefit of any recent data.

1367



4
3. In view of the Secretary’s determination to undertake 

comprehensive supplemental rulemaking to reconsider the 
cotton dust standard and the role of cost-benefit analysis 
under the Act, the Court may wish to refrain from further 
consideration of the issues now before it in the pending 
cases. The Secretary anticipates that, as a result of the 
rulemaking proceeding, extensive new information will 
come to light respecting such matters as the economic 
strength of the textile industry and the ability of that indus­
try to implement the technology required by the standard. 
As a result, it is possible that some of the requirements of 
the standard will be modified. For example, recent reports 
of the improved economic health of the textile industry 
might provide a basis foran even more protective standard.

While the action the Secretary intends to take does not 
moot the present controversy, a decision by the Court at 
this time would, to a substantial degree, be tantamount to 
an advisory opinion. Cf. EPA v. Brown, 43! U.S.99, 103- 
104 (1977). If, following the rulemaking proceeding, the 
Secretary determines that a new cotton dust standard 
should be promulgated, the possibility exists that no “per­
son who may be adversely affected by [the] standard” will 
seek pre-enforcement review under Section 655(0 in the 
court of appeals or in this Court. Moreover, even if the new 
standard is challenged, the issues presented (such as eco­
nomic feasibility) may be capable of resolution only by 
reference to the supplemental rulemaking record. Accord­
ingly, the Secretary believes that it would be appropriate for 
the Court to vacate the judgment of the court of appeals and 
remand the case so that the record may be returned to the 
Secretary for further consideration and development. See 
Cotton Warehouse Ass'n v. Marshall, vacated and remanded. 
No. 79-1789 (Oct. 6, 1980); Rule 13(d), Gen. R. D. C. Cir.

1368



5
During the pendency of the proposed administrative pro­

ceedings, it is the Secretary’s intention that the present 
standard will remain in effect. Cotton dust has long been 
recognized as a major industrial health hazard, and the 
Secretary intends to continue to enforce the present stan­
dard in order to provide the necessary protection for the 
employees at risk. During the past year, employers have 
been obligated to put into place most of the standard’s 
protective measures, with the exception of the requirement 
that engineering controls be installed. Completion of the 
latter obligation was deferred for four years. There was 
general agreement during the rulemaking proceeding on the 
necessity for such provisions as respirator usage, safer work 
practices and medical surveillance programs. It is therefore 
unlikely that a modified standard would fail to include such 
provisions, regardless of the Secretary’s ultimate determi­
nation concerning the most appropriate permissible expo­
sure level or the best means of achieving that level of protec­
tion.3

’There is ample precedent for preserving the status quo in these 
circumstances. See, e.g.. Western Oil & Gas Ass’n v. EPA. 633 F. 2d 
803. 8 13 (9th Cir. 1980). and the cases there cited. See also Dayton Bel. 
o f  Education v. Brinkman. 433 U.S. 406. 421 (1977). Here, of course, 
the validity of the cotton dust standard has been upheld by the court of 
appeals and, if the Court were to vacate and remand for the reasons 
suggested above, there would be no determination that the standard is 
in any way contrary to the statute. Hence, there are compelling equit­
able reasons for maintaining the standard in effect while the supplemen­
tal administrative proceedings are underway.

1369



Respectfully submitted.

W ade H. M c C ree . J r . 
Solicitor General

T. T imothy  R y a n , J r .
Solicitor o f Labor

Ben ja m in  W. M in tz  
Associate Solicitor for

Occupational Safety and Health
A llen H. F eldman  
J ohn  B. Bryson 

Attorneys
Department o f Labor

M arch  1981

UOJ-1981-03

1370



AP P E NDI X

[4510-26]
DEPARTMENT OF LABOR

Occupational Safety and Health Administration
29 CFR Part 1910

[Docket No. H-052B]
Occupational Exposure to Cotton Dust

AGENCY: Occupational Safety and Health Administra­
tion (OSHA) Department of Labor

ACTION: Advance Notice of Proposed Rulemaking

SUMMARY: Notice is given that the Occupational Safety 
and Health Administration will shortly be undertaking, 
through rulemaking procedures under section 6 of the 
Occupational Safety and Health Act of 1970, a reevaluation 
and reconsideration of the occupational health standard 
regulating employee exposure to cotton dust, 29 CFR 
1910.1043. The purpose of this proceeding is to review the 
economic consequences of the regulation and in particular 
to evaluate the feasibility and utility of relying on cost- 
benefit analysis in setting occupational health standards, in 
the context of a specific regulation. At this time, public 
participation is invited on the issues raised by such reeva­
luation and as to whether other matters relating to the 
hazards and regulation of cotton dust should be addressed.
DATES: Comments, suggestions and information are 
invited regarding this Advance Notice of Proposed Rulemak­
ing. Comments in response to this Advance Notice should 
be submitted by May 15. 1981.

1371



2a
ADDRESSES: Comments should be submitted to the 
Docket Officer, Occupational Safety and Health Adminis­
tration, Docket No. H-052B, Room S-6212, U.S. Depart­
ment of Labor, 3rd and Constitution Avenue, N.W. 
Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: James 
Foster, Occupational Safety and Health Administration, 
Room N3637, U.S. Department of Labor, Washington, 
D.C. 20210, Telephone (202) 523-8151.
SUPPLEMENTARY INFORMATION:

1. Introduction
On June 19, 1978, the Occupational Safety and 

Health Administration (OSH A) issued a final occupational 
health standard regulating exposure to cotton dust, 29 CFR 
1910.1043, at 43 FR 27350. The new standard superseded 
the previous Walsh-Healey standard which had been adopt­
ed by OSHA pursuant to section 6(a) of the Occupational 
Safety and Health Act. The necessity for a more stringent 
and comprehensive regulation was based on the substantial 
body of scientific and medical evidence showing a severe 
risk of debilitating respiratory disease, particularly among 
cotton textile workers. The standard provides for a com­
prehensive regulatory program including a permissible 
exposure limit for airborne concentrations of cotton dust to 
be met through engineering controls, supplementary use of 
respirators, implementation of specified work practices, a 
medical surveillance program, and a program for employee 
education and training. OSHA made findings that these 
elements of the standard were both technologically and 
economically feasible; the agency also rejected the use of 
cost-benefit criteria in setting the standard.

The standard was immediately challenged in the courts of 
appeals by affected employees and various groups of 
affected employers. On pre-enforcement review, the United

1372



3a
States Court of Appeals for the District of Columbia Cir­
cuit upheld the standard as it applied to the textile industry, 
among others. AFL-CIO, et al. v. Marshall, e ta l, 617 F. 2d 
636 (1979). The textile industry successfully petitioned for 
review in the Supreme Court of the United States, Ameri­
can Textile Manufacturers Institute, Inc., etal. ,v. Donovan, 
Nos. 79-1429 and 79-1583, in which the industry maintains 
that the standard is invalid because of the failure of the 
agency to justify it on a cost-benefit basis. The agency, 
adhering to its policy at the time the standard was issued, 
argued that such a justification could not be undertaken 
consistent with the Act and its purposes. This case is cur­
rently pending and no decision has been issued. Contempo­
raneous with this Advance Notice, the Secretary is filing 
with the Supreme Court a motion for leave to file a Sup­
plemental Memorandum that brings to the attention of the 
Court the Secretary’s decision to reopen the rulemaking 
record in the cotton dust proceeding.

2. The Proposed Rulemaking
While the agency in the past has maintained that it 

would be inconsistent with the Act for OSH A to engage in 
cost-benefit analysis for the purpose of setting standards for 
exposure to toxic substances, the agency has now con­
cluded that it would be appropriate to re-examine its pre­
vious position. That the appropriateness of cost-benefit 
analysis in the application of regulatory policy is of vital 
concern to the national welfare and the national govern­
ment is evidenced by the recent establishment of the Presi­
dential Task Force on Regulatory Relief, chaired by the 
Vice-President, and the recently issued Executive Order 
No. 12291 which mandates such analysis in certain rule- 
makings. (46 FR 13193). The policy underlying that Order 
is that cost-benefit analysis is a useful device in the regula­
tory decision making process. Other safety and health agen­
cies, although administering different statutes with some­
what different purposes, have found that the cost-benefit

1373



4a
technique or variants thereof are useful in their decision 
making processes. See Consumer Products Safety Com­
mission, Proposed Methodology fo r  Commission Consid­
eration o f  Findings Under Section 9(c) o f the Consumer 
Products Safety Act, 45 FR 85772 (Dec. 30, 1980); Envir­
onmental Protection Agency,National Emission Standards 
for Hazardous Air Pollutants; Policy and Procedure 
fo r  Identifying, Assessing, and Regulating Airborne Sub­
stances Posing a Risk o f  Cancer, 44 FR 58642 (1979). In 
consonance with the policy of the Executive Order, it is the 
agency’s view that it is appropriate to evaluate the practical­
ity of cost-benefit balancing by investigating the concept in 
the context of an actual standard such as cotton dust and in 
a manner which permits public comment. The agency has 
already produced one such report on this standard, the 
report requested by Congress in 1979, Cotton Dust: Review 
o f Alternative Technical Standards and Control Technolo­
gies (May 1979).* That report, its assumptions, its metho­
dology and its conclusions, were not subject to any public 
comment; nor did the report have the benefit of any recent 
data. Evaluations of the usefulness and limitations of cost- 
benefit analysis are more likely to be understood and be 
more meaningful if they may be illustrated by reference to a 
particular set of facts such as the cotton dust record.

In order to provide the most complete and comprehen­
sive analysis, the agency feels that it would be appropriate 
to utilize the most recent data. To this end, the agency 
intends to invite the submission of information providing 
the most complete cost estimates associated with com­
pliance with the standard and any other proposed means of 
providing protection to exposed employees. OSH A expects

♦This report was produced at the direction of Congress after the 
issuance of the standard. Congress requested that the agency evaluate 
the standard on a cost-benefit basis, even though the agency had 
rejected this approach at the time it issued the standard.

1374



5a
that much useful information will be found in the develop­
ment of the compliance plans required by 29 CFR 1910.1043(e)(3). 
information will also be requested which is relevant to the 
types of economic analysis which OSHA has traditionally 
engaged in, such as the financial strength of the industry, its 
capital needs, its structure and so forth so that the interrela­
tionships between this type of economic analysis and cost- 
benefit techniques may be evaluated. A thorough cost- 
benefit analysis will also explore all alternatives, including 
the use of respirators.

In the agency’s view, all this information and data, as well 
as the public input which will be provided in the rulemaking 
proceedings, will permit the agency to produce a compre­
hensive and thorough cost-benefit analysis. This expe­
rience, plus the comparative experience under other health 
and safety laws (a comparison mandated by 29 U.S.C. 
655(b)(5)), will enable the agency to decide under what 
circumstances it is appropriate and practical to factor such 
an analysis into setting toxic substances standards. Public 
comment will also be solicited on the issue of the extent to 
which cost-benefit analysis should be utilized in the setting 
of OSHA health standards. Based on the resolution of this 
important question, as well as any new information gathered 
in the process, the standard itself may be subject to 
adjustment.

In addition, at this stage of the proceeding OSHA will 
accept and consider suggestions as to the necessity for 
inquiring into other matters relevant to the enforcement of 
the standard. For example, this rulemaking would provide 
the opportunity, if necessary, to explore any problems with 
the vertical elutriator and Class 111 electrical hazards in 
textile mills, which was previously discussed in the Federal 
Register of October 10. 1980, 45 Fed. Reg. 67339-67340. 
Any other problems encountered under the monitoring 
provisions or in applying the concept of partial-shift use of

1375



6a
respirators discussed at 45 Fed. Reg. 85736-85739 (Dec. 30, 
1980), may be pertinent topics for this proceeding.

Pending this reconsideration and reevaluation, it is the 
agency’s judgment that the standard should remain in effect 
and continue to be enforced. Protection for employees at 
risk must be maintained as cotton dust has long been recog­
nized as a major industrial health hazard. During the past 
year, employers have been obligated to bring most of the 
standard’s protective measures into place with the excep­
tion of the requirement to install engineering controls, the 
completion of which was deferred for four years. There was 
general agreement during the rulemaking on the necessity 
of such provisions as respiratory usage, safer work practi­
ces, and a medical surveillance program, although the par­
ticulars may not have been resolved to the satisfaction of all 
affected employers. The long deferral of the next major 
step, engineering controls, means however that there is 
more than sufficient time for the agency to review the 
provisions of the standard as a whole and provide adequate 
notice if changes to the standard seem warranted. New 
effective dates may well be necessary in such a case. Conse­
quently, there seems little justification for disrupting the 
compliance schedules and activities during this period of 
review. Any comments and suggestions should be sent to 
the Docket Office, at the address noted above, where they 
will be available for inspection and copying. Comments 
should be submitted by May 15, 1981.

1376



7a
3, Authority

This advance notice of proposed rulemaking was 
prepared under the direction of Thorne G. Auchter, Assist­
ant Secretary of Labor for Occupational Safety and Health. 
200 Constitution Ave., N.W., Washington, D.C. 20210. It is 
issued pursuant to section 6(b) of the Occupational Safety 
and Health Act (84 Stat. 1593; 29 U.S.C. 655).

Signed at Washington, D.C. this 27th day of March 
1981.

T horne  G. A uchter

Assistant Secretary of Labor

1377





Nos. 79-1429 and 79-1583

In  T he

§uprnnr (Court of tljr InttrJi §tafrs
October T erm , 1980

American Textile Manufacturers I nstitute, I nc., et al.,
Petitioners,

Raymond J. Donovan, Secretary of Labor, United States 
Department of Labor, et al.,

_______  Respondents.

National Cotton Council of America,
Petitioner,

Raymond J. Donovan, Secretary of Labor, United States 
Department of Labor, et al„

Respondents.

On W rit of Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

RESPONSE OF UNION RESPONDENTS 
TO SUPPLEMENTAL MEMORANDUM 
FOR THE FEDERAL RESPONDENT

J. Albert Woll 
General Counsel, AFL-CIO 
815 15th Street, N.W. 
Washington, D.C. 20005

E lliot Bredhoff 
General Counsel 
Industrial Union Department, 

AFL-CIO
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
Arthur M. Goldberg 
General Counsel 
Amalgamated Clothing & 

Textile Workers Union 
15 Union Square 
New York, New York 10003

George H. Cohen 
(Counsel of Record)
Robert M. Weinberg 
J eremiah A. Collins 
Brediioff, Gottesman, Cohen, 

Chan-in , Weinberg & 
P etramalo

1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 833-9340

Laurence Gold
815 - 16th Street, N.W.
Washington, D.C. 20006

Of Counsel
Attorneys for American Federation of Labor and 
Congress of Industrial Organizations, Industrial 
Union Department, AFL-CIO. and Amalgamated 
Clothing & Textile Workers Union, AFL-CIO

1379





In T he

g>upr?mr QJmtrt u f thp States
October Term, 1980

No. 79-1429

American Textile Manufacturers
Institute, Inc., et al.,

Petitioners,v.
Raymond J. Donovan, Secretary of Labor, 

United States Department of Labor, et al.,
Respondents.

No. 79-1583

National Cotton Council of America,
Petitioner,v.

Raymond J. Donovan, Secretary of Labor, 
United States Department of Labor, et al.,

Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

RESPONSE OF UNION RESPONDENTS 
TO SUPPLEMENTAL MEMORANDUM 
FOR THE FEDERAL RESPONDENT

Two months after the argument in these cases, the 
Secretary of Labor has come to this Court with the

1381



2

suggestions: that “the Court may wish to refrain from 
further consideration of the issues now before it in the 
pending cases” (Supp. Mem. at 4 ); and, in addition, 
“that it would be appropriate for the Court to vacate 
the judgment of the court of appeals and remand the 
case so that the record may be returned to the Secretary 
for further consideration and development” {ibid.). The 
interim development that is the occasion for those sug­
gestions is the Secretary’s announcement that he has 
issued an “advance notice of a proposed rulemaking” to 
“evaluate the feasibility and utility of cost-benefit analy­
sis in the standard setting process, to compare the costs 
and benefits of the current standard and various alter­
natives, and to reassess the current standard in light of 
the findings.” {Id. at 2).

For the reasons that follow, while we do not object 
to the Secretary’s motion for leave to file the memo­
randum, we submit that the suggestions contained there­
in should be rejected.

The supplemental memorandum maintains a studied 
silence as to what questions of law are before the Court 
and as to the bearing of those questions on the proposed 
additional rulemaking proceedings. We submit that in 
this case, as in Industrial Union Department v. Ameri­
can Petroleum Institute, ------U .S .------- , 44 USLW 5022
(July 2, 1980), a central issue is whether the Congress 
itself has set a balance between costs and benefits there­
by precluding the Secretary from making his own cost 
benefit evaluation based on the results of a rulemaking 
proceeding.1

1 While we discuss the implications of that issue with respect to 
the Secretary’s suggestions, we do wish to note another point. It 
is common ground, we suppose, that a final standard on exposure 
to cotton dust has been issued, that the standard imposes obliga-

1382



3

That question of law is not one that depends on the 
view of any particular administration.2 Rather, the ques­
tion turns solely on the meaning of the Act and the 
intent of the Congress that passed that Act. What the 
Secretary proposes to do on remand can in no way ad­
vance the resolution of that inquiry. And to postpone 
that inquiry, as the Secretary suggests, could well lead 
to wasted administrative resources and to additional,

tions on employers in the cotton manufacturing industry and pro­
vides benefits to employees in that industry, that the manufacturers 
have challenged that standard, and that unless they prevail in 
this Court, or until the Secretary through the procedures mandated 
by the Administrative Procedures Act modifies or revokes that 
standard, it continues in effect And we assume that the Secretary 
in accord with his obligations has not, in issuing the advance 
notice of a proposed rulemaking, prejudged any of the issues to be 
considered in the proposed proceedings. Nor, of course, has the 
Secretary bound himself to conclude that proceeding at any given 
time. Thus, the notice simply means that at some point in the 
future the Secretary may or may not modify the present standard. 
We therefore submit that the notice is not an interim development 
that warrants further postponing a judicial decision of the legality 
of a health standard which was first noticed for proposed rule^ 
making over six years ago. In this circumstance, of course, a de­
cision by this Court would not be an “advisory opinion” as inti­
mated by the Secretary; unlike EPA v. Brown, 431 U.S. 99 (refer­
enced by a “Cf.” signal at Supp. Mem. 4), the Secretary has 
neither withdrawn all or part of the challenged regulation nor con­
fessed error on any part of the merits. On the contrary, as we 
develop in the text, the very institution of the proposed new rule­
making assumes a particular answer to the issue now before the 
Court in a live case and controversy between the petitioner manu­
facturers and the respondents Secretary and Unions.

2 Executive Order 12991 (February 17, 1981), on which the 
Secretary bases his request for a remand to undertake a cost- 
benefit analysis, itself recognizes, at § 2, that the executive only 
has the authority to conduct a cost-benefit analysis "to the extent 
permitted by law.”

1383



4

lengthy delays 3 without serving the legitimate interests 
of any party.

The decision of the District of Columbia Circuit now 
on review focuses the issue we have just defined:

In the OSH Act . . . Congress itself struck the 
balance between costs and benefits in the mandate 
to the agency. Section 6(b) (5) unequivocally man­
dates OSHA to

set the standard which most adequately assures, 
to the extent feasible, on the basis of the best 
available evidence, that no employee will suffer 
material impairment of health or functional 
capacity.

Thus Congress concluded that the benefits of health 
protection warranted the expense of an effective 
standard.

Pet. App. 72, (footnotes omitted) ; see also Pet. App. 
74.4

To the same effect, in his brief on the merits in this 
Court, the Secretary advised that:

A cost-benefit test is inconsistent with the language 
and legislative history of Section 6(b) (5)

*  *  *  *

The pattern and structure of the Act as a whole 
also demonstrate that Congress did not intend health 
protection in this area to depend on an individualized

3 Proceedings in this case, commencing with OSHA’s publication 
of an Advanced Notice of Proposed Rulemaking (36 Fed. Reg. 
44769), have already consumed more than six years.

4 Implicit in the Secretary’s request that the judgment of the 
court of appeals be vacated is a recognition that that court’s inter­
pretation of the Act forecloses the approach on remand the Secre­
tary proposes to take.

1384



5

balancing of costs and benefits with respect to every 
standard.

*  *  *  *

Congress carefully considered and limited the role 
that cost considerations should play here, a role that 
does not include the lowering of feasible standards.

Brief for the Federal Respondent a t 39, 41, 46, 47. See 
also Brief for Union Respondents at 23-40.

In sum this case squarely presents the issue reserved 
in the plurality opinion in Industrial Union Department 
but treated by the four dissenting Justices in that case 
as follows (48 USLW at 5051, 5052) :

[T]he legislative history of the feasibility require­
ment [of § 6(b) (5)] demonstrates that Congress’ 
sole concern was that standards be economically and 
technologically achievable.

» * # *
[To apply a cost-benefit analysis] would render 
[§ 6(b) (5)] internally inconsistent by reading into 
the term feasible a requirement irreconcilable with 
the express language authorizing the Secretary to 
set standards assuring that “no employee will suffer 
material impairment . . . .”

Were this Court, in deciding the instant case, to adopt 
the interpretation of the Act advanced by the court 
below, by the Secretary and the Union respondents in 
their respective briefs on the merits, and by the four 
dissenting justices in Industrial Union Department, the 
inquiry upon which the Secretary proposes to embark 
would be precluded by the Act. On the other hand, were 
this Court to adopt in this case an interpretation of the 
Act that permits the Secretary to conduct such an in­
quiry, then the rulemaking proceedings proposed by the 
Secretary would go forward in the light of this Court’s 
resolution of the statutory question; whatever limitations 
or guidelines this Court might determine apply to a cost-

1385



6

benefit analysis under the Act would govern those pro­
ceedings. Postponement of this Court’s decision would 
therefore result either in a wholly wasted rulemaking 
proceeding or in a proceeding that takes place in the con­
text of uncertainty and continuing disagreement as to 
the governing statutory principles.

CONCLUSION

For the foregoing reasons, the suggestions put forth
by the Secretary in his 
should be rejected.

J. Albert W oll 
General Counsel, AFL-CIO 
815 15th Street, N.W. 
Washington, D.C. 20005

E lliot Bredhoff 
General Counsel 
Industrial Union Department, 

AFL-CIO
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036

Arthur M. Goldberg 
General Counsel 
Amalgamated Clothing & 

Textile Workers Union 
15 Union Square 
New York, New York 10003
Of Counsel

Supplemental Memorandum 

Respectfully submitted,

George H. Co hen  
(Counsel of Record)
Robert M. Weinberg 
J erem iah  A. Collins 
Bredhoff, Gottesm an , Co h en , 

Ch a n in , W einberg & 
P etramalo

1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 833-9340

L aurence Gold
815 - 16th Street, N.W.
Washington, D.C. 20006

Attorneys for American Federation of Labor and 
Congress of Industrial Organizations, Industrial 
Union Department, AFL-CIO, and Amalgamated 
Clothing & Textile Workers Union, AFL-CIO

1386



Nos. 79-1429 and 79-1583

In T he

§ u p rp m r (Enurt irf fl;r llm tpit ^ ta tp s
October T erm , 1980

A merican  T extile Manufacturers I n stitu te , I nc.,
et al..

Petitioners,v.
R aymond  J . Donovan , Secretary of Labor, 
U nited  States D epa rtm en t  of Labor, et a l,

Respondents. 1
N ational Cotton Council o f  A merica ,

Petitioner,v.
R aymond J .  Donovan , Secretary of L abor, 
U nited  States Depa rtm en t  of Labor, et al.,

Respondents.
On Writ of Certiorari to the United States Court 

of Appeals for the D istrict of Columbia Circuit

MOTION FOR LEAVE TO FILE RESPONSE AND  
RESPONSE OF PETITIONERS TO THE 
SUPPLEM ENTAL MEMORANDUM FOR 

THE FEDERAL RESPONDENT

Romkkt H. liORK
142 Huntington Street
New Haven, Connecticut 0(1511
Gregory H. Torin 
Ogletree. Deakinr, Nash, 

Smoak, Stewart and 
Edwards

First National Rank Tower 
Two Peachtree Street, NAV. 
Atlanta, Georpia .'10,‘!83

Ni:u, .1. K ing 
Counsel of Record 

A, Stephen  H ut, ,Jr.
Wilmer, Cutler & P ickering 
1 r.C.C. K Street, NAV. 
Washinpton, D.C. 20006 
<202i 872-6000

Counsel for American Textile 
Manufacturers Institute, Inc.

| Counsel for other Petitioners are listed on signature papel

April 9, 1981

1387



TABLE OF AUTHORITIES 
FOR RESPONSE OF PETITIONERS TO THE 

SUPPLEMENTAL MEMORANDUM 
FOR THE FEDERAL RESPONDENT

Cases: Page
C o tto n  W a r e h o u s e  A s s ’n  v .  M a r s h a l l ,  v a c a te d  a n d

r e m a n d e d , 49 U.S.L.W. 3244 (U.S. 1980) .........  3
E P A  v .  B r o iv n , 431 U.S. 99 (1977) ....................  3

Statute and Regulation:
Occupational Safety and Health Act of 1970, 29

U.S.C. §§ 651-678 (1976 & Supp. III. 1979).....  2
29 C.F.R. § 1910.1043 ............................ ................  1

Miscellaneous:
43 Fed. Reg. (1978) :

27350 ..................................................................  1
28473 ................................................................... 1
35032 ..................................................................  1
56893 ......    1

46 Fed. Reg. 19501 (1981) .....................................  2

(i)

1388



In The

Batpn'mp G irari of thi' Jltttfrfr S ta ll's
October Term, 1980

Nos, 79-1429 and 79-1583

American Textile Manufacturers Institute, Inc.,
et al., 

v. Petitioners,

Raymond J. Donovan, Secretary of Labor, 
United States Department of Labor, et- al.,

Respondents.

National Cotton Council of America,
Petitimer,v.

Raymond J. Donovan, Secretary of Labor, 
United States Department of Labor, et al.,

Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE RESPONSE OF 
PETITIONERS TO THE SUPPLEMENTAL 

MEMORANDUM FOR THE FEDERAL RESPONDENT

Pursuant to Rules 35.5 and 35.6 of the Rules of this 
Court, petitioners, by their counsel, hereby move for 
leave to file the attached Response to the Supplemental

(iii)

1389



iv

Memorandum for the Federal Respondent that was sub­
mitted to this Court on March 27, 1981.

The Supplemental Memorandum for the Federal Re­
spondent states the Secretary of Labor’s intention to in­
stitute a supplemental rulemaking proceeding in which 
the Cotton Dust Standard at issue in the pending cases 
will be reevaluated and reconsidered. As part of that 
reassessment, the Secretary plans to examine the role 
that cost-benefit analysis should play in the development 
of standards under Section 6(b) of the Occupational 
Safety and Health Act of 1970, 29 U.S.C. § 655(b). The 
Supplemental Memorandum for the Federal Respondent 
discusses the Secretary’s view of how this new develop­
ment affects the pending cases. Petitioners hereby seek 
to present to the Court their view on this question as 
well.

Accordingly, petitioners respectfully request that their 
Motion for Leave to File the attached Response to the 
Supplemental Memorandum for the Federal Respondent 
be granted.

Respectfully submitted,

Robert H. Bork
142 Huntington Street
New Haven, Connecticut 06511
Gregory B. T obin 
Ogletree, De a k in s , N a sh . 

S moak , Stewart and 
E dwards

F irst National Bank Tower 
Two Peachtree Street, N.W. 
Atlanta, Georgia 30383

Neil  J . K ing  
Counsel of Record 

A. St e ph en  H ut, J r.
W ilm er , Cutler & P ickering  
1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000

Counsel for American Textile 
Manufacturers Institute, Inc.

1390



V

R obert T. T hom pson  
Gary S. Klein
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602 

Counsel for Milliken and 
Company

J oseph  K. Maddox, J r.
P.O. Box 5784 
Spartanburg, S.C. 29304 

Counsel for Spartan Mills
Robert T. T hom pson  
Gary S. K lein  
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602

Counsel for Hermitage, Inc.
Sam uel K. Abrams 
Brian  E . Moran 
Baker & H ostetler 
818 Connecticut Ave., N.W. 
Washington, D.C. 20006
H. J . E lam , I I I  
Neil  W. Koonce 
Cone Mills Corporation 
Greensboro, N.C. 27405 

Counsel for Cone Mills 
Corporation

Dan  M. Byrd, J r.
J . S pratt W h ite
P.O. Box 70
Fort Mill, S.C. 29715

Counsel for Springs Mills, 
Inc.

Robert H. Bork 
142 Huntington Street 
New Haven, Connecticut 06511 

Counsel for Fieldcrest 
Mills, Inc.

T homas A. E vins 
Clyde H. H amilton  
Butler, Mea n s , E vins & 

Browne 
P.O. Box 451 
Spartanburg, S.C. 29304 

Counsel for Arkwright Mills
April 9, 1981

Robert T. T hompson  
Gary S. K lein  
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602 

Counsel for Blair Mills, Inc.
H arlan H. H untley  
R oger L. T uttle 
2291 Memorial Drive 
Danville, Virginia 24541 

Counsel for Dan River, Inc.
T homas A. E vins 
Clyde H. H amilton  
Butler, Mea n s , E vins & 

Browne 
P.O. Box 451 
Spartanburg, S.C. 29304 

Counsel for Mayfair Mills
F red M. R ichardson 
Lovic A. Brooks, J r.
Charles A. E dwards 
Constangy, Brooks & S m ith  
1900 Peachtree Center Building 
230 Peachtree Street, N.W. 
Atlanta, Georgia 30303 

Counsel for Riegel Textile 
Corporation

R ichard H. Mo n k , J r.
C. P owers Dorsett 
West Point-Pepperell, Inc.
P.O. Box 71
West Point, Georgia 31833 

Counsel for West Point- 
PeppereU, Inc.

Charles M. Crump 
Counsel of Record 

Apperson , Cru m p , Duzane & 
Maxwell

2610 100 North Main Building 
Memphis, Tennessee 38103 
(901) 525-1711 
J oseph  A. Moss 
4143 27th Street, N.
Arlington, Virginia 22207 

Counsel for National Cotton 
Council of America

1391





I n  T h e

g ’u p rm ?  ( t a r t  a t  %  3lutfrb States
October T e r m , 1980

Nos. 79-1429 and 79-1583

A m erica n  T ex tile  Manu facturers  I n s t it u t e , I n c .,
et al,

Petitioners,v.
R aym ond  J .  Donovan , Secretary  of L abor, 
U n ited  States De p a r t m e n t  of L abor, et al,

Respondents.

N ational  Cotton  Coun cil  of A m erica ,
Petitioner,v. ’

R aym ond  J .  D onovan , Secretary  of Labor, 
U n ited  States  Depa r t m e n t  of Labor, et al,

Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

RESPONSE OF PETITIONERS TO THE 
SUPPLEMENTAL MEMORANDUM FOR 

THE FEDERAL RESPONDENT

These consolidated cases challenge the validity of the 
Standard for Occupational Exposure to Cotton Dust 
promulgated by the Secretary of Labor on June 19, 1978. 
29 C.F.R. § 1910.1043, 43 Fed. Reg. 27350 (1978).1 The

i Amended at 43 Fed. Reg. 28473, 35032, and 56893 (1978).

1393



2

cases were briefed in November and December 1980 and 
argued on January 21, 1981. Among the questions pre­
sented are (1) whether the Occupational Safety and 
Health Administration (“OSHA” ) applied any meaning­
ful or effective cost-related limitations in adopting the 
Cotton Dust Standard, and (2) whether OSHA is re­
quired to show a reasonable relationship between the risk 
reduction benefits and the costs of the Standard.

On March 27, 1981, the Secretary of Labor made pub­
lic an Advance Notice of Proposed Rulemaking.2 That 
document states the Secretary’s intention to undertake a 
rulemaking proceeding to reevaluate and reconsider the 
Cotton Dust Standard, with particular emphasis being 
given to the economic consequences of the Standard and 
the feasibility and utility of engaging in cost-benefit 
analysis in setting this and other standards limiting 
exposure to toxic substances.

As part of this undertaking, OSHA plans “to reex­
amine its previous position” that use of cost-benefit 
analysis in the setting of standards for toxic substances 
would be inconsistent with the Occupational Safety and 
Health Act of 1970, 29 U.S.C. §§ 651-678 (1976 & Supp. 
I ll  1979). Supplemental Memorandum for the Federal 
Respondent at 3a. OSHA also “intends to invite the 
submission of information” relating to the overall eco­
nomic impact of the Standard on the affected industry 
and to a cost-benefit assessment of the Standard. Id. 
at 4a-5a. “ [Ojther matters relevant to the enforce­
ment of the standard” also may be considered in the 
proposed rulemaking. Id. at 5a-6a. While this recon­
sideration and reevaluation is underway, the Standard is

2 The notice was published in the Federal Register of March 31, 
1981, 46 Fed. Reg. 19501, and appears as an Appendix to the 
Supplemental Memorandum for the Federal Respondent filed with 
this Court on March 27, 1981.

1394



3

to “remain in effect and continue to be enforced.” Id. 
at 6a.

In light of these developments, the Secretary of Labor 
suggests that the Court should not decide these cases at 
the present time. Petitioners are in complete agreement 
with this suggestion. As noted above, two of the princi­
pal issues raised in these cases concern the adequacy of 
OSHA’s economic feasibility analysis and its failure to 
assess the expected benefits of the Standard in light of its 
costs. These two issues now have been identified as the 
most significant points that the agency plans to reevalu­
ate and reconsider in the rulemaking proceeding that it 
proposes to institute. Consequently, although these cases 
are not now moot, the fact that the agency plans to 
reconsider its position on two of the central issues pend­
ing before this Court (and perhaps on a variety of other 
issues as well) indicates that the cases may become 
moot, making it unnecessary for this Court to decide 
them. For that reason, petitioners concur in the Secre­
tary’s suggestion that the cases not be decided now.

The Secretary goes on to suggest that the Court should 
“vacate the judgment of the court of appeals and remand 
the case so that the record may be returned to the Secre­
tary for further consideration and development.” Id. 
at 4. In petitioners’ view, such a course of action would 
be appropriate if the Secretary had withdrawn the Cot­
ton Dust Standard or explicitly conceded its invalidity. 
See EPA v. Brown, 431 U.S. 99 (1977). The Secretary, 
however, has not withdrawn the Standard. To the con­
trary, OSHA has stated its intention to leave the Stand­
ard in effect while the proposed rulemaking proceeds.3

3 Because the Standard remains in effect (and because there is 
no suggestion that the court of appeals should reconsider its de­
cision in light of an intervening Supreme Court decision), Cotton 
Warehouse Ass’n v. Marshall, 49 U.S.L.W. 3244 (U.S. 1980), is 
not in point.

1395



4

In these circumstances, petitioners believe it would be 
more appropriate for this Court simply to hold these cases 
in abeyance and to remand the record to the court of 
appeals with an instruction that the record be remanded 
to the agency for further proceedings. When those pro­
ceedings are concluded, this Court will be in a better 
position to determine what disposition should be made of 
the pending cases. It may well be that the final action 
taken by OSHA in those further proceedings will make 
it appropriate to vacate the court of appeals’ judgment 
or to dismiss these cases on some other ground. On the 
other hand, it is conceivable that those proceedings will 
not result in action that would obviate the need for this 
Court to decide the cases.

Accordingly, petitioners respectfully suggest that this 
Court retain jurisdiction over the present cases, hold them 
in abeyance, and remand the record to the court of ap­
peals with an instruction that the record be remanded 
to the agency for further proceedings.

Respectfully submitted,

R obert H. Bork
142 Huntington Street
New Haven, Connecticut 06511
Gregory B. T obin 
Ogletree, De a k in s , N a sh , 

S moak , Stewart and 
E dwards

First National Bank Tower 
Two Peachtree Street, N.W. 
Atlanta, Georgia 30383

N eil  J . K ing  
Counsel of Record 

A. St e ph e n  H u t , J r.
W ilm er , Cutler & P ickering  
1666 K Street, N.W. 
Washington, D.C. 20006 
(202) 872-6000

Counsel for American Textile 
Manufacturers Institute, Inc.

1396



5
Robert T. T hom pson  
Gary S. Klein
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602 

Counsel for Milliken and 
Company

J oseph K. Maddox, J r.
P.O. Box 5784 
Spartanburg, S.C. 29304 

Counsel for Spartan Mills
R obert T. T hom pson  
Gary S. Klein  
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602

Counsel for Hermitage, Inc.
Samuel K. Abrams 
Brian  E. Moran 
Baker  & H ostetler 
818 Connecticut Ave., N.W. 
Washington, D.C. 20006
H. J. E lam , III 
N eil  W. Koonce 
Cone Mills Corporation 
Greensboro, N.C. 27405 

Counsel for Cone Mills 
Corporation

Dan  M. Byrd, J r.
J. Spratt W h ite
P.O. Box 70
Fort Mill, S.C. 29715

Counsel for Springs Mills, 
Inc.

R obert H. Bork 
142 Huntington Street 
New Haven, Connecticut 06511 

Counsel for Fieldcrest 
Mills, Inc.

T homas A. E vins 
Clyde H. H amilton  
Butler, Means, E vins & 

Browne 
P.O. Box 451 
Spartanburg, S.C. 29304 

Counsel for Arkwright Mills
April 9, 1981

R obert T. T hompson  
Gary S. K lein  
T hom pson , Ma n n  & H utson 
The Daniel Building 
Suite 2222
Greenville, S.C. 29602 

Counsel for Blair Mills, Inc.
H arlan H. H untley  
Roger L. Tuttle 
2291 Memorial Drive 
Danville, Virginia 24541 

Counsel for Dan River, Inc.
T homas A. E vins 
Clyde H. H amilton  
Butler, Means, E vins & 

Browne 
P.O. Box 451 
Spartanburg, S.C. 29304 

Counsel for Mayfair Mills
F red M. R ichardson 
Lovic A. Brooks, J r.
Charles A. E dwards 
Constangy, Brooks & S m ith  
1900 Peachtree Center Building 
230 Peachtree Street, N.W. 
Atlanta, Georgia 30303 

Counsel for Riegel Textile 
Corporation

R ichard H. Mo n k , J r.
C. P owers Dorsett 
West Point-Pepperell, Inc.
P.O. Box 71
West Point, Georgia 31833 

Counsel for West Point- 
Pepperell, Inc.

Charles M. Crump 
Counsel of Record 

Apperson , Cru m p , Duzane & 
Maxwell

2610 100 North Main Building 
Memphis, Tennessee 38103 
(901) 525-1711
J oseph  a . Moss 
4143 27th Street, N.
Arlington, Virginia 22207 

Counsel for National Cotton 
Council of America

1397





Nos. 79-1429 and 79-1583

I n  T h e

ir n p m n p  (Eo u rt o f tlio Ifn U i'it S t a ir s
October T er m , 1980

A m e r ic a n  T e x t il e  M a n u fa c t u r e r s  I n s t it u t e , I n c ., et  a l .,
Petitioners,

R a y m o n d  J .  D o n o v a n , S ecreta ry  o f  L abor, U n it e d  S tates 
D e p a r t m e n t  o f  L abor , et  a l .,

________  Respondents.

N a t io n a l  Cotton  Co u n c il  of A m er ic a ,
Petitioner,

R a ym o nd  J .  D o n o v a n , S ecreta ry  of L abor, U n it e d  S tates 
D e p a r t m e n t  of L abor , e t  a l .,

Respondents.

On W rit of C ertiorari to the United S tates Court 
of Appeals for the D istrict of Columbia Circuit

SECOND SUPPLEM ENTAL MEMORANDUM 
OF UNION RESPONDENTS

J .  A lbert  W oll 
General Counsel, AFL-CIO 
815 15th Street, N.W.
W ashington, D.C. 20005
E l l io t  B r e d h o f f  
General Counsel 
Industrial Union Department,

AFL-CIO
1000 Connecticut Avenue, N.W.
W ashington, D.C. 20036
A r t h u r  M. G oldberg 
General Counsel 
Amalgamated Clothing &

Textile W orkers Union 
15 Union Square 
New York, New York 10003

O f Counsel
A ttorneys for Am erican Federation of Labor and 
Congress of Industrial Organizations, Industrial 
Union Department, AFL-CIO, and Amalgamated  
Clothing & Textile W orkers Union, AFL-CIO

1399

George H . Co h e n  
(Counsel of Record)
R obert M. W ein b er g  
J e r e m ia h  A. Co l l in s  
B r e d h o f f , Go t t e s m a n , Co h e n , 

C h a n in , W e in b er g  & 
P etram a lo

1000 Connecticut Avenue, N.W. 
W ashington, D.C. 20036 
(202) 833-9340

L a u r e n c e  Gold
815-16 th  Street, N.W.
W ashington, D.C. 20006





In The

#ujrron£ (Court of tlir tlnttrb Stairs
October Term, 1980

No. 79-1429
American Textile Manufacturers

Institute, Inc., et al.,
Petitioners,v.

Raymond J. Donovan, Secretary of Labor, 
U nited States Department of Labor, et al.,

Respondents.

No. 79-1583
National Cotton Council of America,

Petitioner,v.
Raymond J. Donovan, Secretary of Labor, 

U nited States Department of Labor, et al.,
Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

SECOND SUPPLEMENTAL MEMORANDUM 
OF UNION RESPONDENTS

Petitioners have not contented themselves with a re­
sponse to the Secretary’s suggestion that “it would be 
appropriate for the Court to vacate the judgment of the 
court of appeals and remand the case so that the record 
may be returned to the Secretary for further considera­
tion and development” (Fed. Resp. Supp. Mem. p. 4). 
Instead the petitioners have taken the occasion to sug-

1401



2

gest an alternative extraordinary procedure for the han­
dling of this case: that “it would be more appropriate 
for this Court simply to hold these cases in abeyance and 
to remand the record to the court of appeals with an 
instruction that the record be remanded to the agency 
for further proceedings” (Pet. App. Mem. p. 4).

As we show below, that alternative not only suffers 
from the same basic defect as its predecessor advanced 
by the Secretary but also makes no practical sense on 
its own terms. Because we had not anticipated that 
petitioners in their response to the Secretary would 
make a new proposal of their own, we tender the follow­
ing brief comments on their submission.

1. In response to the Secretary’s memorandum we 
showed that the statutory issue now before the Court 
involves the scope of the Secretary’s authority to weigh 
the costs and benefits of a standard designed to protect 
employees from occupational exposure to a toxic sub­
stance. The propriety of the Secretary’s proposed rule- 
making may turn on the resolution of that issue. That 
resolution depends on the proper interpretation of an act 
of Congress, a matter peculiarly in this Court’s province, 
not on the view of any particular administration. The 
petitioners forthrightly acknowledge that the statutory 
issue stands at the threshhold of the proposed rulemak­
ing: “OSHA plans ‘to reexamine its previous position’ 
that use of cost-benefit analyzing in the setting of stand­
ards for toxic substances would be inconsistent with the 
Occupational Safety and Health Act of 1970. . . .” Pet. 
Supp. Mem. at 2. Accordingly, the reasons that we gave 
for rejecting the Secretary’s suggestions apply equally 
to the alternative suggestion of petitioners.

2. Petitioners’ memorandum neatly and succinctly ex­
poses a fatal error in the Secretary’s proposal that the 
judgment of the court below be vacated and the pro­
ceeding remanded (Pet. Supp. Mem. at 3) :

1402



3
In petitioners’ view, such a course of action would 
be appropriate if the Secretary had withdrawn the 
Cotton Dust Standard or explicitly conceded its in­
validity. See EPA  v. Brown, 431 U.S. 99 (1977). 
The Secretary, however, has not withdrawn the 
Standard. To the contrary, OSHA has stated its 
intention to leave the Standard in effect while the 
proposed rulemaking proceeds.3

3 Because the Standard remains in effect (and because there 
is no suggestion that the court of appeals should reconsider 
its decision in light of an intervening Supreme Court de­
cision), Cotton Warehouse Ass’n v. Marshall, 49 U.S.L.W. 
3244 (U.S. 1980), is not in point.

Petitioners’ alternative suggestion contains procedural 
deficiencies of similar magnitude, albeit of a different 
nature. Petitioners would have this Court “hold these 
cases in abeyance and . . . remand the record to the court 
of appeals with an instruction that the record be re­
manded to the agency for further proceedings.” Pet. 
App. Supp. Mem. at 4.1 When the further rulemaking 
proceedings are completed, this Court would then, un­
der petitioners’ suggestion, “determine what disposition 
should be made of the pending cases.” Ibid. In the nor­
mal course new rulemaking proceedings would be sub-

1 Petitioners’ request that while the case is being held in this 
Court the record be returned to the Secretary appears to be 
prompted by a desire to demonstrate that their suggestion accom­
plishes something of substance. But sending the record back to the 
Secretary would be pointless paper shuffling, since the Secretary 
has all the information in the record at his disposal and can, and 
perhaps is required to, take notice in his new rulemaking proceed­
ings of any evidence in the prior related proceeding, cf. Shuttles- 
worth V. Birmingham, 394 U.S. 147, 157. Alternatively the peti­
tioners may be motivated by the view that so long as the validity of 
the present standard is sub judice the Secretary has no power to 
act to modify that standard. While we are not certain on the point, 
that view may well be correct. If it is, it confirms our suggestion 
that the Secretary’s “advance notice of a proposed rulemaking” 
is wholly without legal effect and is therefore not a predicate for 
either the Secretary’s or the petitioners’ suggestions.

1403



4

ject in the first instance to review in a court of appeals. 
Petitioners’ suggestion that this Court hold these cases 
until completion of such proceedings necessarily contem­
plates either direct review of the proposed proceedings 
in this Court, or review by this Court of the old standard 
notwithstanding that the new proceedings—which may 
alter the substance of the standard and will, in any event, 
alter the content of the record and of the Secretary’s 
findings—have been completed. Neither of these alter­
natives makes good sense.

The cases should be decided now so that all parties 
will know as soon as possible whether the inquiry the 
Secretary proposes to undertake in further rulemaking 
proceedings is permitted by the statute and, if so, what­
ever guidelines or limitations apply to such an inquiry.

Kespectfully submitted,

J . Albert Woll 
General Counsel, AFL-CIO 
815 15th Street, N.W . 
Washington, D.C. 20005

George H. Co hen  
(Counsel of Record)
R obert M. W einberg 
J erem iah  A. Collins 
Bredhoff, Gottesm an , Co h en ,

E lliott Bredhoff 
General Counsel 
Industrial Union Department, 

AFL-CIO
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036

P etramalo
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 833-9340

Ch a n in , W einberg &

Arthur M. Goldberg 
General Counsel 
Amalgamated Clothing &

Laurence Gold
815 - 16th Street, N.W.
Washington, D.C. 20006

Textile Workers Union 
15 Union Square 
New York, New York 10003
Of Counsel

Attorneys for American Federation of Labor and 
Congress of Industrial Organizations, Industrial 
Union Department, AFL-CIO, and Amalgamated 
Clothing & Textile Workers Union, AFL-CIO

1404



BNA’s Law Reprints
T he B ureau  o f  N ational Affairs, Inc. 
1231 25th Street, N.W.
Washington, D.C. 20037