United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 15, 2002 Decided August 23, 2002
No. 01-5111
Sturm, Ruger & Company, Inc.,
Appellant
v.
Elaine Chao,
Secretary, U.S. Department of Labor and
Charles N. Jeffress, Assistant Secretary of Labor
for Occupational Safety and Health,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01026)
Richard D. Wayne argued the cause and filed the briefs for
appellant.
Brian J. Sonfield, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, R. Craig Lawrence, Assistant
U.S. Attorney, Eugene Scalia, Solicitor, U.S. Department of
Labor, Joseph M. Woodward, Associate Solicitor, and Bruce
Justh and Ronald J. Gottlieb, Counsel. Michael J. Ryan,
Assistant U.S. Attorney, entered an appearance.
Before: Sentelle, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Sturm, Ruger & Company, Inc.
filed a complaint in the United States District Court for the
District of Columbia, challenging the Occupational Safety and
Health Administration's Data Collection Initiative as unlaw-
ful. The court concluded that it lacked subject matter juris-
diction over the complaint, and that the company must pursue
its claims through the review process prescribed by the
Occupational Safety and Health Act. We agree.
I
We begin with a description of the statutory framework
and of prior proceedings involving Sturm Ruger.
A
The Occupational Safety and Health Act (OSH Act) autho-
rizes the Secretary of Labor to promulgate workplace safety
and health standards, 29 U.S.C. s 655(b), as well as regula-
tions "necessary or appropriate for the enforcement of [the
Act] or for developing information regarding the causes and
prevention of occupational accidents and illnesses," id.
s 657(c)(1). It further directs the Secretary to "prescribe
regulations requiring employers to maintain accurate records
of, and to make periodic reports on, work-related deaths,
injuries and illnesses." Id. s 657(c)(2). And it gives the
Secretary enforcement power, authorizing her to issue cita-
tions and to assess penalties for violations of the Act and of
the standards and regulations promulgated thereunder. Id.
ss 658, 659. The Secretary has delegated the bulk of these
statutory responsibilities and authorities to the Occupational
Safety and Health Administration (OSHA).
While the OSH Act charges the Secretary with rulemaking
and enforcement, it gives the task of "carrying out adjudicato-
ry functions" to an independent entity, the Occupational
Safety and Health Review Commission (OSHRC or the Com-
mission). Id. s 651(b)(3); see Martin v. OSHRC, 499 U.S.
144, 147 (1991) (explaining that the OSH Act "assigns distinct
regulatory tasks to two different administrative actors").
Under the Act, employers may contest OSHA citations before
OSHRC. 29 U.S.C. s 659(c). Such contests are heard first
by an ALJ, whose decision becomes the final order of the
Commission unless the Commission decides to hear the case.
Id. s 661(j). Both employers and the Secretary may seek
review of OSHRC orders in the courts of appeals. Id.
s 660(a), (b).1
In 1996, OSHA launched an annual survey called the Data
Collection Initiative (DCI). See 62 Fed. Reg. 6434, 6434
(Feb. 11, 1997). Under the DCI, OSHA requires selected
employers to report the number of workers they employed
and the number of hours their employees worked during a
specified period, as well as the number of work-related inju-
ries and illnesses their employees suffered during that period.
See, e.g., OSHA Data Collection Form for Occupational Inju-
ries and Illnesses, 2000 (J.A. at 67). From this information,
OSHA calculates injury/illness incidence rates, which it uses
to identify establishments to target for inspection. See 62
Fed. Reg. at 6435; Secretary of Labor v. Sturm, Ruger & Co.,
OSHRC Nos. 99-1873 & 99-1874 (ALJ Order Den. Mot. to
Suppress, July 5, 2000) [hereinafter July 2000 ALJ Order]
(noting that OSHA uses the DCI to target "sites in high-
hazard industries with average or above rates of injury and
illness").2
__________
1 A person adversely affected by a Commission order may obtain
review in "any United States court of appeals for the circuit in
which the violation is alleged to have occurred or where the
employer has its principal office, or in the Court of Appeals for the
District of Columbia Circuit." 29 U.S.C. s 660(a).
2 When the DCI was first implemented in 1996, OSHA had in
effect regulations requiring employers to maintain logs of work-
B
In April 1997, OSHA sent Sturm Ruger a DCI survey,
requiring it to provide information regarding its Pine Tree
Castings Division, a New Hampshire facility that manufac-
tures steel investment castings. Sturm Ruger complied and
returned the completed survey to OSHA. In June 1998,
based on information in the survey, two OSHA compliance
officers arrived at Pine Tree to inspect the facility. See 29
U.S.C. s 657(a) (providing that the Secretary may enter,
inspect, and investigate workplaces as necessary to "carry out
the purposes of [the Act]"). Sturm Ruger refused to consent
to the inspection, prompting OSHA to obtain a search war-
rant from the United States District Court for the District of
New Hampshire. See Marshall v. Barlow's, Inc., 436 U.S.
307, 311 (1978) (holding that OSHA must obtain a warrant to
conduct nonconsensual inspections of business premises).
When OSHA officers arrived to execute the warrant, Pine
Tree employees prevented them from doing so. On the same
day, Sturm Ruger moved to quash the warrant, arguing that
the data used to target Pine Tree for inspection was derived
from a survey that was not authorized by regulation, and that
the warrant violated the Fourth Amendment.
__________
related injuries and illnesses, 29 C.F.R. s 1904.2, and to provide
these logs to OSHA upon its request, id. s 1904.7. OSHA did not,
however, have a regulation that required employers to respond to
the DCI survey. Several employers filed suit against the Secre-
tary, seeking an injunction against its implementation. See Ameri-
can Trucking Ass'ns, Inc. v. Reich, 955 F. Supp. 4 (D.D.C. 1997).
In January 1997, the district court granted summary judgment for
the employers, holding that OSHA "must promulgate a regulation
before purporting to command employers to file reports like the one
at issue here." Id. at 7. The Secretary did not appeal that
decision, and the next month, to "clarify OSHA's authority," OSHA
adopted 29 C.F.R. s 1904.17, which we discuss below. See 62 Fed.
Reg. 6434, 6434 (Feb. 11, 1997). Since the filing of Sturm Ruger's
complaint, OSHA has revised 29 C.F.R. pt. 1904, and the regulation
concerning the DCI now appears at 29 C.F.R. s 1904.41. See 66
Fed. Reg. 5916 (Jan. 19, 2001).
On January 22, 1999, the district court denied the motion to
quash and enforced the warrant. Sturm, Ruger & Co. v.
United States, No. Civ. 98-418-JD, 2000 WL 36931, at *11
(D.N.H. Jan. 22, 1999). Sturm Ruger appealed to the United
States Court of Appeals for the First Circuit, and sought a
stay of execution of the warrant pending appeal. The First
Circuit denied the stay, and OSHA executed the warrant.
After inspecting the Pine Tree facility, OSHA announced that
it was considering issuing citations for violations of safety and
health standards discovered during the inspection. Sturm,
Ruger & Co. v. OSHA, 186 F.3d 63, 63 (1st Cir. 1999).
In August 1999, the First Circuit dismissed Sturm Ruger's
appeal for failure to exhaust administrative remedies. Noting
that the OSHA inspection had already occurred and that
citations could soon issue, the court of appeals held that
Sturm Ruger had to pursue its challenge by contesting the
citations through the review process established by the OSH
Act. The court noted that this process "would involve initial
review by an administrative law judge, discretionary review
by the Occupational Safety and Health Review Commission,
and eventual review by this court." Id. at 63 (citing 29 U.S.C.
ss 659-61).
The First Circuit reached its conclusion notwithstanding
Sturm Ruger's insistence that its claim "involve[d] a 'purely
legal' issue consisting of a 'facial' challenge" to the DCI. Id.
at 64. The court found that Sturm Ruger had "not suggested
that its claims cannot be adequately adjudicated in the ...
anticipated enforcement proceeding," id. (internal quotation
marks omitted), and that in fact "a successful appeal following
exhaustion of administrative remedies" would vindicate its
rights, id. at 65. Moreover, the court held that, while the
company had "not shown that requiring exhaustion would
subject it to irreparable harm," permitting the district court
to hear the claim would interfere with "agency autonomy."
Id. at 64-65.
On September 2, 1999, OSHA issued citations to Sturm
Ruger based on its inspection of the Pine Tree facility. In
accordance with the OSH Act's review provisions, the compa-
ny contested those citations before an ALJ appointed by
OSHRC. See 29 U.S.C ss 659(c), 661(j). At the outset of
the proceeding, Sturm Ruger moved to suppress the evidence
obtained during the Pine Tree inspection, arguing that no
regulation authorized OSHA to collect the survey data that it
used to target employers for inspection, and that the use of
the data violated the Fourth Amendment. The ALJ denied
the motion on the ground that, by responding to the survey,
Sturm Ruger had waived the right to challenge its legality.
July 2000 ALJ Order at 4.
After the ALJ issued a final decision on the merits, Sturm
Ruger petitioned for, and the Commission granted, discre-
tionary review. Sturm Ruger's petition argued that the
citations should be vacated because they were discovered in
an inspection based on data collected through an unlawful and
unconstitutional survey. Pet. for Discretionary Review p 15,
reprinted in Secretary of Labor v. Sturm, Ruger & Co.,
OSHRC Nos. 99-1873 & 99-1874, 2001 WL 95794 (ALJ Final
Order, Jan. 23, 2001). The DCI was unlawful under the OSH
Act and the Administrative Procedure Act (APA), 5 U.S.C.
s 706, the company contended, because no regulation re-
quired employers to maintain the data sought by the survey.
Id. pp 4, 7. And it was unconstitutional because Sturm Ruger
had "a privacy interest protected by the Fourth Amendment
in the information that the survey form compelled it to
produce." Id. p 23. Sturm Ruger's case is currently pending
before the Commission.
C
On May 9, 2000, two months before the ALJ denied its
motion to suppress, Sturm Ruger filed a complaint against
the Secretary of Labor and the Assistant Secretary responsi-
ble for OSHA in the United States District Court for the
District of Columbia. Sturm, Ruger & Co. v. Herman, 131
F. Supp. 2d 211 (D.D.C. 2001). Like its filings before the
Commission, the company's complaint alleged that the DCI
was unlawful under the OSH Act, the APA, and the Fourth
Amendment. It sought both a declaratory judgment and an
injunction barring OSHA from compelling compliance with
the DCI survey, from conducting inspection programs that
rely on survey data, and from "pursuing enforcement pro-
ceedings under the unlawful targeting inspection programs."
Compl. at 13-14.
In its complaint, Sturm Ruger made the same argument
now pending before the Commission: that the DCI was
invalid because it required employers to report employment
data (the number of employees and the hours they worked)
despite the alleged absence of a regulation requiring employ-
ers to create and maintain such data. The company rested
its argument on a section of the OSH Act that states:
On the basis of the records made and kept pursuant to
section 657(c) of this title, employers shall file such
reports with the Secretary as he shall prescribe by
regulation....
29 U.S.C. s 673(e). Sturm Ruger did not dispute that OSHA
had satisfied the requirement of the final clause of the section
with 29 C.F.R. s 1904.17, a regulation that requires employ-
ers to file reports in response to annual DCI surveys.3 But it
argued that the first clause of the section only permits the
agency to compel employers to provide information that is
contained in "records made and kept pursuant to section
657(c)." Section 657(c), in turn, provides:
Each employer shall make, keep and preserve, and make
available to the Secretary ..., such records regarding
his activities relating to this chapter as the Secretary ...
may prescribe by regulation....
__________
3 Each employer shall, upon receipt of OSHA's Annual Survey
Form, report to OSHA ... the number of workers it employed
and the number of hours worked by its employees for periods
designated in the Survey Form and such information as OSHA
may request from records required to be created and main-
tained pursuant to 29 C.F.R. Part 1904.
29 C.F.R. s 1904.17.
29 U.S.C. s 657(c)(1). Sturm Ruger claimed that, although
OSHA had a regulation requiring employers to create and
maintain the injury and illness data sought by the DCI
survey, 29 C.F.R. s 1904.2, no regulation required them to
create and maintain the employment data also demanded by
the survey. Thus, the company argued, the DCI's require-
ment that employment data be reported was unlawful under
the OSH Act, ss 657(c) & 673(e), and consequently under the
APA because it was not "in accordance with law," 5 U.S.C.
s 706(2).4 Finally, like its pleadings before the Commission,
Sturm Ruger's complaint also contended that employers
"have a privacy interest protected by the Fourth Amendment
in the information that the survey form seeks to compel them
to produce." Compl. p 40.
The Secretary of Labor moved to dismiss Sturm Ruger's
complaint on the ground that "the administrative review
process established by the OSH Act is the exclusive means by
which plaintiff may challenge the DCI's legality." Sturm,
Ruger & Co., 131 F. Supp. 2d at 215. The district court
agreed and granted the motion. Applying the holding and
reasoning of the Supreme Court's decision in Thunder Basin
Coal Co. v. Reich, 510 U.S. 200 (1994), the court concluded
that the OSH Act established a comprehensive review proce-
dure that precluded district court jurisdiction.
III
On appeal, we review de novo the dismissal of Sturm
Ruger's complaint for lack of subject matter jurisdiction, and
must accept the factual allegations in the complaint as true.
__________
4 Sturm Ruger does not dispute that OSHA has mooted this
argument for DCI surveys applicable to years beginning after
January 1, 2002. Appellant's Br. at 17 n.1, 29. As the company
points out, OSHA has promulgated regulations, effective as of that
date, "which now require employers to create and maintain the DCI
Survey data" regarding the number of employees and the hours
they worked for each establishment. Id. at 17 n.1 (citing 29 C.F.R
s 1904.32 (2002); 66 Fed. Reg. 5916, 6042 (Jan. 19, 2001)).
See Sloan v. United States Dep't of Hous. and Urban Dev.,
236 F.3d 756, 759 (D.C. Cir. 2001). We first consider whether
the OSH Act has a statutory review structure like that of the
statute at issue in Thunder Basin, the Federal Mine Safety
and Health Amendments Act of 1977 (Mine Act), 30 U.S.C.
s 801 et seq. We then address whether Sturm Ruger's
claims "are of the type Congress intended to be reviewed
within this statutory structure." Thunder Basin, 510 U.S. at
212.
A
In Thunder Basin, the Supreme Court considered a pre-
enforcement challenge filed by a mine operator against the
Secretary of Labor. The operator's employees had selected
two employees of the United Mine Workers, who were not
employees of the mine, to serve as their miners' representa-
tives under s 813(f) of the Mine Act. Thereafter, the Mine
Safety and Health Administration (MSHA) of the Department
of Labor instructed the operator to post the employees'
designated representatives, as required by the statute and a
MSHA regulation. Instead, the operator filed suit in federal
district court for an injunction against enforcement of the
regulation, contending that designation of nonemployee union
representatives violated its rights under the National Labor
Relations Act (NLRA), 29 U.S.C. s 141 et seq. The operator
also argued that requiring it to challenge MSHA's interpreta-
tion of the statute and regulation through the Mine Act's
statutory review process would violate the Due Process
Clause of the Fifth Amendment, because it would force the
operator to choose between violating the Act and incurring
penalties, or complying and thereby suffering irreparable
harm. Thunder Basin, 510 U.S. at 205.
The Court held that the statutory review scheme of the
Mine Act deprived the district court of subject matter juris-
diction over the operator's complaint. It declared that "[i]n
cases involving delayed judicial review"--that is, where ap-
peal can be taken to the court of appeals after completion of
administrative proceedings--"we shall find that Congress has
allocated initial review to an administrative body where such
intent is 'fairly discernible in the statutory scheme.' " Id. at
207 (quoting Block v. Community Nutrition Inst., 467 U.S.
340, 351 (1984)). The Court found that intent discernible in
the following elements of the Mine Act's statutory review
procedure.
First, the Court noted that the "Act establishes a detailed
structure for reviewing violations" of MSHA standards and
regulations. Id. The Mine Act gives a mine operator thirty
days to challenge before the Commission any citation issued
by MSHA, after which time an uncontested order becomes
" 'final' " and " 'not subject to review by any court or agen-
cy.' " Id. (quoting 30 U.S.C. s 815(a), (d)). Challenges filed
within the thirty-day period "are heard before an administra-
tive law judge (ALJ), with possible Commission review" to
follow. Id. at 207-08 (citation omitted). "Only the Commis-
sion has authority actually to impose civil penalties proposed
by the Secretary, and the Commission reviews all proposed
civil penalties de novo." Id. 208 (citations omitted).
The Court further noted that under the Act, "[m]ine oper-
ators may challenge adverse Commission decisions in the
appropriate court of appeals, whose jurisdiction 'shall be
exclusive and its judgment and decree shall be final' except
for possible Supreme Court review." Id. (quoting 30 U.S.C.
s 816(a)(1)). Courts of appeals must "uphold findings of the
Commission that are substantially supported by the record."
Id. (citation omitted). In addition, "the statute establishes
that the Commission and the courts of appeals have exclu-
sive jurisdiction over challenges to agency enforcement pro-
ceedings," and its "comprehensive review process does not
distinguish between pre-enforcement and post-enforcement
challenges, but applies to all violations of the Act and its
regulations." Id. at 208-09 (citation omitted). Finally, the
"Act expressly authorizes district court jurisdiction in only
two provisions ..., which respectively empower the Secre-
tary to enjoin habitual violations of health and safety stan-
dards and to coerce payment of civil penalties." Id. at 209
(citations omitted). "Mine operators," by contrast, "enjoy no
corresponding right but are to complain to the Commission
and then to the court of appeals." Id.
In the instant case, the district court concluded, and we
agree, that "[t]he administrative and judicial review proce-
dures in the OSH Act are 'nearly identical' to those in the
Mine Act." 131 F. Supp. 2d at 216 (quoting In re Establish-
ment Inspection of Manganas Painting Co., 104 F.3d 801,
802 (6th Cir. 1997)). This is hardly surprising since, as we
have previously noted, the Mine Act's review process was
written to conform to the review process of the OSH Act.
See Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d
1123, 1131 (D.C. Cir. 2001); see also 123 Cong. Rec. 4387-88
(1977) (statement of Sen. Williams, the Act's sponsor, upon
introduction of the Act). Like the Mine Act, the OSH Act
gives employers a limited period to contest a citation issued
by OSHA, and provides that if no contest is brought within
that period, the citation is "deemed a final order ... not
subject to review by any court or agency." 29 U.S.C.
s 659(a). Contests to OSHA citations are brought before an
independent adjudicatory commission (OSHRC), where they
are heard first by an ALJ and then reviewed by the Commis-
sion, at its discretion. Id. ss 659(c), 661(j). Only the Com-
mission has authority to impose civil penalties proposed by
the Secretary, which the Commission reviews de novo. Id.
s 666(j).
As under the Mine Act, employers may appeal adverse
Commission decisions to the appropriate court of appeals,
whose jurisdiction "shall be exclusive and its judgment and
decree shall be final," but which must uphold the Commis-
sion's findings of fact if "supported by substantial evidence."
Id. s 660(a); see supra note 1. And like the Mine Act, the
OSH Act does not distinguish between pre- and post-
enforcement challenges. Finally, also like the Mine Act, the
OSH Act expressly grants district courts jurisdiction over
specified actions, see 29 U.S.C. ss 657(b), 660(c)(2), 662(a) &
(d), 666(l), but those do not include actions brought by
employers.
In short, in every relevant respect the statutory review
provisions of the OSH Act parallel those of the Mine Act, and
we therefore join the First and Sixth circuits in concluding
that Thunder Basin's analysis of review under the Mine Act
is fully applicable to the OSH Act. See Manganas Painting
Co., 104 F.3d at 803; Northeast Erectors Ass'n of the BTEA
v. Secretary of Labor, 62 F.3d 37, 40 (1st Cir. 1995).5
B
Our conclusion that the OSH Act creates a comprehensive
review process comparable to that of the Mine Act's does not
end the inquiry. We must also consider whether Sturm
Ruger's claims "are of the type Congress intended to be
__________
5 Sturm Ruger suggests that this conclusion is "implicitly" incon-
sistent with our decision in Workplace Health & Safety Council v.
Reich, 56 F.3d 1465 (D.C. Cir. 1995). See Appellant's Br. at 41. In
that case, the petitioner sought pre-enforcement review of an OSHA
rule in this court, and we therefore had to decide whether the rule
was a "standard," the only kind of OSHA action that the OSH Act
expressly authorizes courts of appeals to review directly. See 29
U.S.C. s 655(f). We held that the rule was a "regulation" rather
than a "standard," and that we therefore did not have jurisdiction.
Workplace Health, 56 F.3d at 1467-68. At the same time, we
stated our belief that pre-enforcement review of regulations was
appropriate in the district court. Id. at 1469. And in a subsequent
case, in the course of deciding that we had original jurisdiction over
an OSHA standard, we cited Workplace Health for the proposition
that regulations are subject to review in the district court. Cham-
ber of Commerce v. Dep't of Labor, 174 F.3d 206, 209 (D.C. Cir.
1999). Neither Workplace Health nor Chamber of Commerce,
however, mentioned Thunder Basin or considered its impact on
district court jurisdiction. And as the Supreme Court has "re-
peatedly held," "the existence of unaddressed jurisdictional defects"
gives a ruling "no precedential effect" on the unaddressed question.
Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996); see Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 91 (1997); Hagans v.
Lavine, 415 U.S. 528, 534-35 n.5 (1974).
reviewed within this statutory structure." Thunder Basin,
510 U.S. at 212. In Thunder Basin, the Court indicated that
district courts could still assert jurisdiction over "claims
considered wholly collateral to a statute's review provisions
and outside the agency's expertise." Id. at 212 (internal
quotation marks omitted). That is "particularly" so, the
Court said, "where a finding of preclusion could foreclose all
meaningful judicial review." Id. at 212-13. Sturm Ruger's
claims, however, do not fit within those categories.
Like the statutory claims at issue in Thunder Basin, Sturm
Ruger's claim that the DCI violates the OSH Act because it is
not authorized by regulation is not "wholly collateral" to the
OSH Act's review provisions. Id. at 214. Rather, it "re-
quire[s] interpretation of the parties' rights and duties" under
the Act and its regulations, and therefore "fall[s] squarely
within the Commission's expertise." Id. at 214; see Martin,
499 U.S. at 154-55. As for the company's claim that the DCI
violates the Fourth Amendment, we note that the same
factors that persuaded the Thunder Basin Court that the
constitutional challenge at issue there should be raised within
the statutory review structure are present here: (1) "the
reviewing body is not the agency itself but an independent
Commission"; (2) the Commission has addressed constitution-
al claims in previous enforcement proceedings, see, e.g.,
McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1998)
(reviewing an OSHRC decision that an OSHA regulation
authorizing a warrantless and nonconsensual search of busi-
ness records violated the Fourth Amendment); and (3) the
employer's claims can still "be meaningfully addressed in the
Court of Appeals" after the Commission has rendered a
decision. Thunder Basin, 510 U.S. at 215.
In light of these considerations, we find Sturm Ruger's
invocation of the Supreme Court's opinion in Leedom v. Kyne,
358 U.S. 184 (1958), inapposite. Leedom involved a union's
challenge to a determination by the National Labor Relations
Board that a bargaining unit including both professional and
nonprofessional employees was appropriate--despite a direct-
ly contrary provision of the NLRA. Id. at 185-86; see 29
U.S.C. s 159(b)(1). Although the Court had previously held
that a Board order in a certification proceeding was not "a
final order" and therefore "not subject to judicial review
except as it may be drawn in question by a petition for ...
review of an order ... restraining an unfair labor practice," it
nonetheless held that the district court had jurisdiction over
the union's challenge. Leedom, 358 U.S. at 187, 191. "Cen-
tral" to the decision in Leedom, the Court has since explained,
was the understanding that barring district court review
would have "wholly deprive[d] the union of a meaningful and
adequate means of vindicating its statutory rights," because
the union's members had " 'no other means, within their
control' " of obtaining judicial review. Board of Governors v.
MCorp Fin., Inc., 502 U.S. 32, 43 (1991) (quoting Leedom, 358
U.S. at 190); see Thunder Basin, 510 U.S. at 213 (citing
Leedom as an example of a case in which the plaintiff had no
other means to protect its rights).
As we have just discussed, however, barring district court
review in this case will not deprive employers of the opportu-
nity to obtain judicial review. An employer can, for example,
refuse to answer the survey, draw a citation from OSHA, and
then contest the citation through the statutory review proce-
dure that ultimately ends in a court of appeals. See Thunder
Basin, 510 U.S. at 216. Sturm Ruger contends that this
review option is not meaningful because, faced with the threat
of OSHA sanctions, employers will not risk ignoring the
survey.6 But the Court rejected a similar argument in Thun-
der Basin, noting that "[a]lthough the Act's civil penalties
unquestionably may become onerous if petitioner chooses not
to comply, the Secretary's penalty assessments become final
and payable only after full review by both the Commission
and the appropriate court of appeals." Id. at 218 (citing 30
U.S.C. ss 820(i) & 816); see OSH Act, 29 U.S.C. ss 666(j) &
660. Moreover, in this case Sturm Ruger has already trig-
__________
6 Sturm Ruger also appears to make the opposite argument,
contending that OSHA is attempting to shield the DCI from review
by choosing not to cite employers who fail to respond. But if that
were the case, a point OSHA disputes, employers that fail to answer
the survey would suffer no injury.
gered the review process that ultimately will bring it to a
court of appeals, by contesting the citations its Pine Tree
facility received as the allegedly tainted product of a search
based on information obtained through the DCI.7
Finally, we consider our recent decision in National Min-
ing Ass'n v. Department of Labor, 292 F.3d 849, 856-57 (D.C.
Cir. 2002), in which this court held that, notwithstanding the
rule of Thunder Basin, a district court had jurisdiction to
hear a "generic" challenge to regulations issued by the Secre-
tary of Labor under the Black Lung Benefits Act (BLBA), 30
U.S.C. s 901 et seq. That decision is inapplicable to Sturm
Ruger's challenge for three reasons.
First, National Mining Association emphasized that the
challenge at issue there was a direct attack on the validity of
"a formal regulation," issued pursuant to "notice-and-
comment" rulemaking. National Mining Ass'n, 292 F.3d at
858. In so holding, we distinguished Compensation Depart-
ment v. Marshall, in which the Third Circuit held that a
district court lacked jurisdiction to review a claim that the
Secretary's policy of independently examining x-rays submit-
ted by those seeking black lung benefits was unlawful under
the BLBA. 667 F.2d 336, 340-44 (3d. Cir. 1981). That case,
we explained, involved an attack on an enforcement policy
rather than a regulation, and "there was no reason why the
[plaintiff] could not challenge [the] policy in an individual
adjudication before the Benefits Review Board and, if neces-
__________
7 In a footnote, Sturm Ruger suggests that it cannot receive
meaningful review through the statutory process because the ALJ
held that, by voluntarily responding to the survey, the company had
waived its right to challenge it. See Appellant's Br. at 39 n.11. But
the ALJ's decision does not preclude the Commission, or the court
of appeals upon subsequent review, from rejecting the ALJ's deci-
sion and accepting Sturm Ruger's contention that the "waiver" was
involuntary because its response to the survey was coerced. On the
other hand, if both the Commission and court conclude that the
company did voluntarily answer the survey, then its injury will have
been due to its own voluntary action, and it will lack standing to
complain. See Bennett v. Spear, 520 U.S. 154, 167 (1997).
sary, in the Court of Appeals." National Mining Ass'n, 292
F.3d at 858.
The same is true here. As we described in Part I.C, Sturm
Ruger does not challenge the validity of an OSHA regulation.
To the contrary, it insists that there is no regulation that
authorizes the collection of the employment information de-
manded by the DCI, and that the survey is therefore ultra
vires. See Appellant's Br. at 16, 18, 34.8 Moreover, as in
Compensation Department, the gravamen of Sturm Ruger's
complaint is that OSHA is employing an unlawful enforce-
ment strategy, in which it "use[s] the information gained
through the survey form to target its enforcement activities
on employer establishments." Compl. p 10; see id. at pp 1,
32.9 As we said in National Mining Association regarding
Compensation Department, there is no reason why Sturm
Ruger cannot challenge the Secretary's enforcement strategy
in an individual adjudication before the Commission. See
National Mining Ass'n, 292 F.3d at 858.
Second, we noted in National Mining Association that the
regulations there at issue were "challenged primarily on the
__________
8 See, e.g., Appellant's Br. at 25 ("Because no OSHA regulation
requires maintenance of such data, there can be no requirement to
report said information [and] [t]herefore, the Annual DCI Surveys
are an unlawful exercise of authority by OSHA...."); id. at 34
("[A]t all times relevant to the Complaint, there has been no
regulation ... requiring employers to create and maintain the data
which OSHA requires employers to report on the DCI concerning
number of employees and number of hours worked by employees in
establishments."). In particular, Sturm Ruger does not contend
that 29 C.F.R. s 1904.17 unlawfully requires employers to report
employment information that OSHA has not separately required
the employers to create and maintain. Rather, it contends that
s 1904.17 "merely authorizes OSHA to collect such data which
OSHA requires employers to maintain by regulation and no such
regulation requires this data to be maintained." Compl. p 36.
9 See also Compl. at 13-14 (seeking a declaratory judgment that
OSHA's "site specific targeting plans utilizing [DCI] data [are] ultra
vires," and an injunction "enjoin[ing] Defendants from conducting
inspection programs which... rely upon" DCI data).
ground that they are impermissibly retroactive," that to
determine whether that was true would require analysis of
"all of the regulations together as well as the entire rulemak-
ing process," and that such an analysis "would not be feasible
in individual adjudications dealing with particular regulatory
provisions." Id. at 858-59. By contrast, as we have dis-
cussed above, there is no reason why Sturm Ruger cannot
obtain meaningful review of its challenge through the statuto-
ry review process.
Third, and most important, National Mining Association
was not a case in which the "plaintiff sought to short-circuit
the administrative process" through the vehicle of a district
court complaint. Id. at 858. Sturm Ruger's complaint,
however, fits that description well. As the district court
noted, the company "raised the identical claims in its chal-
lenge to the citations that is currently pending before the
OSHRC." 131 F. Supp. 2d at 217 n.1; see Pet. for Discre-
tionary Review pp 4, 7, 15, 23; supra Part I.B. Moreover, it
raised similar claims before the First Circuit, and was di-
rected by that court to exhaust its remedies before the
Commission. Sturm, Ruger & Co., 186 F.3d at 63. Rather
than allowing the statutory review process to run its
course--a course that will eventually lead back to a court of
appeals--Sturm Ruger sought to make an end run around
that process by going directly to district court. Indeed, the
company is attempting to end the process altogether: its
complaint seeks an injunction permanently barring the Sec-
retary from "pursuing enforcement proceedings under the
unlawful targeting inspection programs," Compl. at 14, an
injunction that would terminate the proceeding currently
pending before the Commission. Our obligation to respect
the review process established by Congress bars us from
permitting Sturm Ruger to make this end run, and requires
dismissal of its district court complaint.10
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10 See Thunder Basin, 510 U.S. at 216 (holding that Congress did
not intend "to allow mine operators to evade the statutory review
process"); Northeast Erectors Ass'n of the BTEA, 62 F.3d at 40
(dismissing a pre-enforcement challenge that would "subvert Con-
IV
For the foregoing reasons, the judgment of the district
court, dismissing the complaint for lack of subject matter
jurisdiction, is
Affirmed.
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gress's intent to have such claims reviewed through the OSH Act's
detailed administrative procedure"); cf. Great Plains Coop v.
CFTC, 205 F.3d 353, 354-55 (8th Cir. 2000) (applying Thunder
Basin to the Commodity Exchange Act, and holding that the
plaintiff could not "make an 'end run' around the statutory [review]
scheme" by filing a district court complaint aimed at "halting the
CFTC's administrative proceedings against" the plaintiff); Block-
som & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (holding
that an employer may not "bypass the review procedures Congress"
established under the OSH Act by filing, at the same time that it
was contesting a safety citation before OSHRC, a district court
complaint "assert[ing] its defenses to the Secretary's citations").