JERRE S. WILLIAMS, Circuit Judge.
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 activities
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.
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 1964
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
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.
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).
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
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.
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
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,
Further constraining the Secretary's action, like that of the EEOC, is an enormous backlog of enforcement cases.
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.
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.
On August 7, Ms. Fugitt took photographs of various hazards she believed to be presented by the plant machinery with the intention of forwarding these photographs to OSHA. She was informed by the company that there was a rule against photographing equipment, purportedly to protect trade secrets. When Fugitt refused to turn over her film, she was discharged.
29 U.S.C. § 660(c)(1). This section protects employees from discharge or other retaliation based upon the exercise of their rights granted by the Act. In Ms. Fugitt's case, the Secretary alleged retaliation for the exercise of rights under § 8(e) and (f) of the Act, 29 U.S.C. § 657(e), (f). This section generally provides that employees may consult OSHA representatives concerning matters of health and safety in the workplace, 29 U.S.C. § 657(e), may request an inspection if they believe a violation exists, 29 U.S.C. § 657(f)(1), and may inform inspectors of any violation of the Act which they have reason to believe exists, 29 U.S.C. § 657(f)(2).
If a violation is found, the statute empowers the Secretary to bring an action in an appropriate United States District Court, for "all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay." 29 U.S.C. § 660(c)(2). OSHA does not specify any time in which suit must be brought. In the immediate case, suit was not brought for over two years after the Secretary's determination. The record does not disclose the reason for that delay. On appeal, the Secretary offered the Department's backlog of cases in explanation.
OSHA covers over 2.5 million establishments. In 1979 and 1980, the federal government employed only 1581 compliance and safety officers, creating a situation where approximately two percent of the covered firms could be inspected in any one year. See The President's Report on Occupational Safety and Health for 1980, at p. 42 (Aug. 1981).
The Court also emphasized, in reaching its holding, that the suit brought by the EEOC served to vindicate federal as well as individual interests: "the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties." 432 U.S. at 368, 97 S.Ct. at 2455. Thus, contrary to appellee's argument, we do not read Occidental to foreclose the public purpose/private purpose analysis relied upon in part in reaching our conclusion, and drawn from our prior decisions in Reeves v. International Telephone & 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); Nabors v. NLRB, supra, 323 F.2d at 688-89. Rather, as in any case of statutory interpretation, various indicia may be relevant to an analysis of congressional intent. Depending upon the specific statute at issue and the salience of the interpretative guidelines, resolution of congressional intent may turn on any number of factors. Thus, from the Supreme Court's emphasis on the inconsistency of state limitations periods with federal Title VII policy we cannot infer that a similar exclusive reliance need be placed in analyzing different statutes where other indicia of congressional intent are obvious. Furthermore, given the Court's recognition of the public nature of the EEOC's pursuit of private remedies in Occidental, we find no merit to appellee's contention that Occidental invalidates such an analysis. Accord Marshall v. Intermountain Electric Co., 614 F.2d 260 (10th Cir.1980).
Appellee argues that the availability of a writ of mandamus to compel agency action affords, in effect, a private right of action under OSHA. Therefore, appellee contends, the policies underlying the application of limitations periods to suits by private parties come into play, as does the inference that Congress intended in its silence to "borrow" state statutes of limitations. We find no merit to this argument. The remedy of mandamus is a drastic one, invoked only in extraordinary situations. Given this nature of the writ and its unlikely use to compel agency action, we do not find it to be a substitute for private suit as appellee contends. Thus we reject the inference appellee would have us draw that Congress intended state limitations periods to apply because mandamus might lie in rare and unusual situations. See Nabors v. NLRB, supra, 323 F.2d at 689.
432 U.S. at 371-72, 97 S.Ct. at 2457.
While Section 11(c) does not expressly require prompt notification of any employer when a complaint is filed, in contrast to the Title VII procedure considered in Occidental, as a practical matter the Secretary routinely contacts the employer during the 90-day investigative period, during which company management is interviewed. The company is therefore alerted to possible litigation and given an early opportunity to gather and preserve evidence. Here, for example, the company was on notice of the investigation within one month after Ms. Fugitt filed her complaint and was met with an agency request, two months thereafter, for Ms. Fugitt's reinstatement.