Raymond J. Donovan, Secretary, United States Department Oflabor, Plaintiff-appellant, v. Square D Company, Defendant-appellee, 709 F.2d 335 (5th Cir. 1983)

On August 7, 1978, Dorothy Fugitt was terminated by her employer, Square D Company. Fugitt filed a complaint with the Secretary of Labor, alleging that her discharge had been in retaliation for safety related activities¹  and in violation of Section 11(c) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 660(c).²  After investigation, the Department of Labor determined that the company acted unlawfully. Thereafter, OSHA investigatory personnel met with the company and requested that Fugitt be reinstated to her former position. The company refused. No further action was taken until more than two years later when the Secretary of Labor filed this action in the district court pursuant to Section 11(c) (2) of OSHA, 29 U.S.C. § 660(c) (2),³  seeking reinstatement for Fugitt with back pay, as well as injunctive relief against future violations of Section 11(c).

On motion for summary judgment, the district court dismissed the action as barred by the two-year Texas statute of limitations for actions in tort. Tex.Rev.Stat.Ann. art. 5526 (Vernon Supp.1982-83). The Secretary appealed, arguing that state statutes of limitations were inapplicable to suits under OSHA brought by the Secretary to vindicate public rights and to implement national policy. The issue is one of first impression in this Court.⁴  We find that the state limitations statute is not applicable, and we remand the case to the district court for consideration on the merits.

OSHA does not state a limitations period for actions brought under Section 11(c). In the absence of federally-prescribed limitations periods, the courts have frequently inferred that Congress intended to "borrow" the most analogous state statutes of limitations. See e.g., Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S. Ct. 1790, 1794-95, 64 L. Ed. 2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975); UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 704, 86 S. Ct. 1107, 1112, 16 L. Ed. 2d 192 (1966); O'Sullivan v. Felix, 233 U.S. 318, 322, 34 S. Ct. 596, 597, 58 L. Ed. 980 (1914). This inference, however, may not appropriately be drawn in every case. For example, state statutes are not applied where suit is brought by the government to vindicate a public right, absent a clear showing of congressional intent to the contrary. See, e.g., United States v. Summerlin, 310 U.S. 414, 416, 60 S. Ct. 1019, 1020, 84 L. Ed. 1283 (1940); Nabors v. NLRB, 323 F.2d 686, 688-89 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S. Ct. 666, 11 L. Ed. 2d 609 (1964). See also Reeves v. International Telephone and Telegraph Corp., 616 F.2d 1342, 1350 (5th Cir. 1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 857, 66 L. Ed. 2d 800 (1981). Similarly, state limitations periods will not be borrowed if their application would "frustrate or interfere with the implementation of national policies." Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 367, 97 S. Ct. 2447, 2455, 53 L. Ed. 2d 402 (1977). See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465, 95 S. Ct. 1716, 1722, 44 L. Ed. 2d 295 (1975); UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 701, 86 S. Ct. 1107, 1110, 16 L. Ed. 2d 192 (1966). Thus it has been held that suits brought by the EEOC under Title VII of the Civil Rights Act of 1964⁵  and by the NLRB in enforcing the National Labor Relations Act⁶  are not subject to state limitations periods. We conclude that OSHA suits brought by the Secretary of Labor under Section 11(c) similarly may not be barred by state statutes of limitations.

OSHA was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C. § 651(b). Towards this public goal, the statute envisions mandatory safety standards and establishes reporting, investigating and enforcement procedures to guarantee such standards are met. Section 11(c) operates in tandem with these provisions. It encourages employee reporting of OSHA violations and cooperation in agency investigative efforts without fear of employer retaliation.

As stated by the Supreme Court in the context of the Fair Labor Standards Act's (FSLA) anti-discrimination provision, "effective enforcement could ... only be expected if employees [feel] free to approach officials with their grievances." Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292, 80 S. Ct. 332, 335, 4 L. Ed. 2d 323 (1960). Similarly, as the Court noted with respect to the National Labor Relations Act (NLRA), freedom from retaliation is necessary " 'to prevent the Board's channels of information from being dried up by employer intimidation of prospective complainants and witnesses.' " NLRB v. Scrivener, 405 U.S. 117, 122, 92 S. Ct. 798, 801, 31 L. Ed. 2d 79 (1972) (quoting John Hancock Mutual Life Insurance Co. v. NLRB, 191 F.2d 483, 485 (D.C. Cir. 1951)). Thus, in the case of OSHA, like that of the FLSA and NLRA, the long-term effect and primary purpose of anti-retaliation suits is to promote effective enforcement of the statute by protecting employee communication with federal authorities.⁷ 

OSHA Section 11(c) provides for individual relief such as reinstatement with back pay. While remedial, this provision operates primarily toward furthering the public statutory goals. "The fact that these proceedings operate to confer an incidental benefit on private persons does not detract from this public purpose." Nabors v. NLRB, supra, 323 F.2d at 688-89 (addressing the NLRB's enforcement proceedings, which provide back pay awards).⁸ 

The public nature of these individual remedies is emphasized by the fact that the government alone possesses the right to bring suit under Section 11(c). A private cause of action does not exist.⁹  This governmental vindication of the public interest in suits under Section 11(c) of OSHA militates against an inference that congressional failure to specify a limitations period signals an adoption of state statutes of limitations.

This conclusion is further supported by the fact that Congress did specify time limitations for other procedural steps covered by Section 11(c). Section 11(c) explicitly provides a thirty-day limitations period in which an aggrieved individual may file a complaint with the Secretary, followed by a ninety-day period in which the Secretary must render his determination. 29 U.S.C. § 660(c) (2), (3). This expressed concern for prompt action at the initial complaint and investigation stages stands in marked contrast to the lack of any time limitation upon a suit brought after a determination that a violation has occurred. By adopting these contrasting provisions within the same statutory section we must conclude that Congress intended that there be prompt initial action followed by a flexible period in which to bring suit. The most reasonable inference to draw is that Congress desired expeditious action at the outset of proceedings to preserve the parties' interests, yet in recognition of both the need for agency flexibility and the reality of administrative backlog, Congress elected to forego placing an inflexible timetable upon the Secretary for bringing suit.¹⁰  Neither appellee nor our own research discloses any evidence of contrary intent.

Appellee argues that this open-ended period for suit could not have been intended, as OSHA defendants would thereby be subject to the unreasonable surprise and prejudice which can result from the prosecution of stale claims. We disagree with appellee's contention in part because of safeguards contained in the statute. Section 11(c) (2) grants the district courts jurisdiction to order "all appropriate relief" in each anti-retaliation case, including reinstatement with back pay. This discretionary power requires the courts " 'to locate "a just result" in light of the circumstances peculiar to the case.' " Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 373, 97 S. Ct. 2447, 2458, 53 L. Ed. 2d 402 (1977) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25, 95 S. Ct. 2362, 2374-75, 45 L. Ed. 2d 280 (1975)). If cases should arise in which an inordinate and inexcusable delay results in prejudice to a defendant's ability to present his defense, the district courts may restrict or even deny back pay relief.¹¹  Ibid. Accord Marshall v. Intermountain Electric Co., 614 F.2d 260, 263 n. 8 (10th Cir. 1980).

Finally, the most persuasive consideration of all. We find that application of the diverse state statutes of limitations to OSHA anti-retaliation suits would "frustrate" or "interfere with" national policy. This conclusion strongly negates any inference that their application was intended by Congress. Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S. Ct. 2447, 53 L. Ed. 2d 402 (1977). As the Supreme Court cautioned in Occidental, " [s]tate legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that importation of state law will not frustrate or interfere with the implementation of national policies." 432 U.S. at 367, 97 S. Ct. at 2455.

Were state limitations periods applicable, suits by the Secretary of Labor would be governed by different and, in some cases, uncertain time limitations. Relatively short limitations periods of a year or two, as in the immediate case, might operate to bar suit in some states. In other states lengthier limitations periods, e.g., six years, might apply. If these diverse periods were applicable, the Secretary might be compelled to shift enforcement activities disproportionately among the states. This could lead to concentrating all immediate activity to those states with short limitations periods, occasioning lengthy periods of delay in those states with longer limitations periods. If consistent enforcement in all states is undertaken to avoid this disparate treatment, timely suit in many cases in the states with short limitations periods would be impractical. Enforcement of the federal law under the pressure of either alternative would be diverted from the course it would otherwise follow were national policy alone properly considered. We find no justification to conclude that Congress intended OSHA enforcement activity to be shaped by state laws, borne in the context of diverse private party litigation.

Moreover, application of a "most analagous state limitations period" would inject an area of uncertainty in enforcement activity which would frustrate national safety policy. The internally diverse state limitations periods would need to be scrutinized in an effort to determine the most closely analogous state subject matter to OSHA anti-retaliation suits. Uncertainty over the most analogous statute in each of the fifty states could well result. In turn, the ensuing litigation would divert national enforcement efforts away from their statutory goals. Once again, we find no indication that Congress intended national policy to be affected in this way by application of state law.

As in the case of the EEOC in Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 97 S. Ct. 2447, 53 L. Ed. 2d 402 (1977), the statutory constraints upon agency action under OSHA make it unreasonable to infer that Congress intended to "consign its federal lawsuits to the vagaries of diverse state limitations statutes, some as short as one year." 432 U.S. at 370-71, 97 S. Ct. at 2457. In Occidental, the Supreme Court emphasized in rejecting the adoption of state limitations periods in Title VII actions, " [u]nlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties." 432 U.S. at 368, 97 S. Ct. at 2455. The Secretary under OSHA is not obligated to try to negotiate settlement, as is the EEOC. But as a practical matter the Secretary often attempts settlement in order to avoid costly and time consuming litigation. Thus, like the EEOC, the Secretary attempts to "settl [e] disputes, if possible, in an informal, noncoercive fashion." 432 U.S. at 368, 97 S. Ct. at 2455.¹²  Were state limitations periods to run against the Secretary's action, settlement efforts prior to suit might well be foreclosed.

Further constraining the Secretary's action, like that of the EEOC, is an enormous backlog of enforcement cases.¹³  This backlog would make it difficult, if not impossible, for the Secretary to fulfill his statutory obligations to investigate and render decisions within the strict time limits specified in Section 11(c),¹⁴  and simultaneously to bring suit under Section 11(c) within the various inflexible time periods established by the states for their private litigants.

We thus conclude that application of state limitations periods to OSHA Section 11(c) suits would frustrate the implementation of national safety policy. This specific conclusion, considered along with the well-reasoned general principle that governmental suits vindicating public interests are not barred by state limitations periods, leads us to find that Congress did not intend in its silence to subject OSHA Section 11(c) anti-retaliation suits to the vagaries of state limitations law.¹⁵ 

CONCLUSION

The district court erred in dismissing the suit as time-barred by the two-year Texas tort limitations period. Accordingly, we reverse and remand for consideration on the merits.

REVERSED AND REMANDED.