Northeast Erectors v. DOL

USCA1 Opinion


                            UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-2287

NORTHEAST ERECTORS ASSOCIATION OF THE BTEA,

Plaintiff, Appellant,

v.

SECRETARY OF LABOR, OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION
AND ITS BOSTON REGIONAL OFFICE,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge] ___________________
____________________

Before

Boudin, Circuit Judge, _____________

Campbell, Senior Circuit Judge, ____________________

and Schwarzer, Senior District Judge.* _____________________

____________________

James F. Grosso with whom O'Reilly & Grosso was on brief for ________________ __________________
appellant.
Mark S. Flynn, Senior Appellate Attorney, with whom Thomas S. ______________ _________
Williamson, Jr., Solicitor of Labor, Allen H. Feldman, Associate ________________ __________________
Solicitor for Special Appellate and Supreme Court Litigation, and
Nathaniel I. Spiller, Counsel for Appellate Litigation, United States _____________________
Department of Labor, were on brief for appellees.

____________________
August 15, 1995
____________________




____________________

*Of the Northern District of California, sitting by designation.













CAMPBELL, Senior Circuit Judge. Northeast Erectors ____________________

Assoc. ("NEA") sued the Secretary of Labor, the Occupational

Safety and Health Administration ("OSHA"), and OSHA's Boston

regional office, for declaratory and injunctive relief. NEA

sought to enforce an asserted oral agreement with the Boston

regional office of OSHA, under which the office allegedly

agreed not to enforce certain OSHA regulations. The district

court dismissed for failure to state a claim. NEA now

appeals. We affirm, although on a different ground.

I.

NEA is an unincorporated association of contractors

who perform structural steel and pre-cast concrete erection.

The OSHA regulations at issue in this case establish

standards designed to protect against falls of employees

working in the construction industry and, particularly, of

persons working in the steel erection industry. 29 C.F.R.

1926.750(b)(1)(ii) is a regulation specifically targeted at

the steel erection industry. It requires safety nets or

safety lines to be installed when employees are exposed to a

potential fall exceeding two stories or 25 feet. Similarly,

29 C.F.R. 1926.105(a), which applies to the construction

industry in general, requires safety nets or equivalent

protection for workplaces 25 feet or more above the ground.

We accept NEA's allegations as true for the

purposes of this appeal, Watterson v. Page, 987 F.2d 1, 3 _________ ____



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(1st Cir. 1993). In October of 1989, a group of erection

contractors and labor representatives met with John Miles, an

OSHA regional administrator, and other OSHA representatives,

to discuss OSHA's fall protection standards. During this

meeting, the contractors told Miles that, for steel erection

workers known as "connectors," compliance with the

regulations was actually more hazardous than noncompliance.

See Donovan v. Daniel Marr & Son Co., 763 F.2d 477, 479 (1st ___ _______ _____________________

Cir. 1985) (describing the type of work performed by

connectors). OSHA representatives allegedly accepted this

view and agreed that, until OSHA published a revised fall

protection standard, they would not cite employers for not

complying with the regulations with respect to workers who

were "connectors."

From 1989 through April of 1994, regional OSHA

representatives, allegedly in compliance with the

"agreement," did not cite local steel erection contractors

for noncompliance with the fall protection standards for

"connectors." NEA argues that the agreement was breached in

1994 when the Deputy Assistant Secretary of OSHA sent a

memorandum to all of the regional offices, directing them to

cite employers who violated the fall provisions in 29 C.F.R.

1926.105(a). The Boston regional office informed various

contractors that it would now begin to issue such citations.

NEA then brought this suit in the district court, seeking a



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declaration as to its rights and obligations under the oral

agreement with the Boston regional office. NEA further

sought an injunction restraining OSHA from issuing citations

for violations of the fall protection standards until such

time as OSHA issues new standards.

Defendants moved to dismiss for lack of subject-

matter jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to

state a claim, Fed. R. Civ. P. 12(b)(6). Ruling from the

bench, the district court dismissed NEA's complaint for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). The

court held that, as a matter of law, the government could not

be estopped from enforcing its regulations. It expressly did

not rule on the issue of subject-matter jurisdiction. NEA

now appeals.

II.

When faced with motions to dismiss under both

12(b)(1) and 12(b)(6), a district court, absent good reason

to do otherwise, should ordinarily decide the 12(b)(1) motion

first. See 5A Charles Wright & Arthur Miller, Federal ___ _______

Practice and Procedure 1350, at 210 (1990); Bell v. Hood, ______________________ ____ ____

327 U.S. 678, 682 (1945) ("Whether the complaint states a

cause of action on which relief could be granted is a

question of law and just as issues of fact it must be decided

after and not before the court has assumed jurisdiction over





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the controversy.").1 It is not simply formalistic to decide

the jurisdictional issue when the case would be dismissed in

any event for failure to state a claim. Different

consequences flow from dismissals under 12(b)(1) and

12(b)(6): for example, dismissal under the former, not being

on the merits, is without res judicata effect. See 2A James ___

Moore, et al., Moore's Federal Practice 12.07, at 12-49 & ________________________

n.3 (1993).

We accordingly start as well as end with the

jurisdictional issue, holding that the district court was

without subject-matter jurisdiction over NEA's claim. The

Occupational Safety and Health Act ("OSH Act") has an

extensive administrative process for review of OSHA

enforcement actions. After OSHA issues a citation, an

employer may seek administrative review before the

Occupational Safety and Health Review Commission ("OSHRC").

29 U.S.C. 659(c). Such challenges are first heard before


____________________

1. A different priority is followed in cases where the
12(b)(1) motion is based on the plaintiff's alleged failure
to state a federal claim. (The idea being that, if the
plaintiff failed to state a federal claim, there could be no
federal question jurisdiction.) In such cases, the
prevailing view is that, unless the claim is entirely
frivolous, a court should assume jurisdiction and dismiss for
failure to state a claim, since federal question jurisdiction
exists once plaintiff has alleged even a colorable federal
claim. See Bell, 327 U.S. at 682-83. This case is ___ ____
distinguishable, however, insofar as defendants'
jurisdictional argument is not based on the federal claim's
lack of substantive merit, but upon an independent basis.


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an OSHRC administrative law judge, with discretionary review

by OSHRC. 29 U.S.C. 661(j). The employer may then seek

judicial review of the OSHRC decision in the U.S. Court of

Appeals, whose jurisdiction is "exclusive and [whose]

judgment and decree shall be final," except for review by the

Supreme Court. 29 U.S.C. 660(a).

The OSH Act expressly authorizes the bringing of

original actions in the U.S. District Court in only a few

situations. None of these includes the bringing in the

district court of pre-enforcement actions by employers. See ___

29 U.S.C. 657(b) (actions by the Secretary to enforce

administrative subpoenas); id. 660(c)(2) (actions by ___

Secretary to enforce the antidiscrimination provisions of the

OSH Act); id. 662(a), (d) (actions on behalf of Secretary ___

to restrain imminent dangers); and id. 666(l) (actions on ___

behalf of the U.S. to recover civil penalties). The

administrative review scheme is thus ordinarily regarded as

the exclusive procedure through which an employer can obtain

review of OSHA enforcement proceedings. See 29 U.S.C. ___

660(a); Brock v. Morysville Body Works, Inc., 829 F.2d 383, _____ ___________________________

385 (3d Cir. 1987).

In Thunder Basin Coal Co. v. Reich, 114 S. Ct. 771 ______________________ _____

(1994), the Supreme Court held that a nearly identical,

comprehensive administrative review procedure under the

Federal Mine Safety and Health Amendments Act, 30 U.S.C.



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801 et seq., ("Mine Act"), revealed a congressional intent to __ ____

preclude district courts from exercising subject-matter

jurisdiction over pre-enforcement, as well as post- _______________

enforcement, challenges to the Act. In Thunder Basin, a mine _____________

operator, asked to comply with the provisions of the Mine

Act, sought immediate injunctive relief from that request in

district court, instead of waiting for a citation from the

Mine Safety and Health Administration ("MSHA") and then

challenging the citation through the Act's review scheme.

The Court held that the district court was without

jurisdiction to grant the requested relief.

Although the Mine Act did not expressly mention

pre-enforcement challenges, the Court pointed to the detailed

administrative review procedures established by the Act.

After MSHA issues a citation, a mine operator may seek

administrative review before the Federal Mine Safety and

Health Review Commission ("FMSHRC"). Thunder Basin, 114 S. _____________

Ct. at 775; 30 U.S.C. 815(a), (d). Such challenges are

heard before a FMSHRC administrative law judge, with

discretionary review by FMSHRC. 30 U.S.C. 823(d)(1), (2).

The mine operator may then seek judicial review of the

decision in the U.S. Court of Appeals, whose jurisdiction

"'shall be exclusive and . . . final' except for possible

Supreme Court review." Thunder Basin, 114 S. Ct. at 777 ______________

(citing 30 U.S.C. 816(a)(1)). The Act authorizes actions



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in the U.S. District Court only in a limited number of areas

and only by the Secretary, not by mine operators. Id. ___

(operators "enjoy no corresponding right but are to complain

to the Commission and then to the Court of Appeals").

Pointing to the comprehensive review procedures,

the Court held that a district court had no subject-matter

jurisdiction to entertain a pre-enforcement challenge to the

Act by a mine operator. The Mine Act's "comprehensive review

process does not distinguish between pre- and post-

enforcement challenges, but applies to all violations of the

Act and its regulations." Id. The Court also pointed to the ___

legislative history of the Act, which indicated that

administrative review procedures were designed to be the

exclusive mechanism through which mine operators were to

obtain review of enforcement actions. The Court concluded

that:

Nothing in the language and structure of
the Act or its legislative history
suggests that Congress intended to allow
[employers] to evade the statutory-review
process by enjoining the Secretary from
commencing enforcement proceedings, as
petitioner sought to do here. To uphold
the District Court's jurisdiction in
these circumstances would be inimical to
the structure and purpose of the
. . . Act.

Id. at 781. ___

This case falls squarely within the holding of

Thunder Basin. We hold that the OSH Act's comprehensive _____________



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administrative review scheme precluded the district court

from exercising subject- matter jurisdiction over the present

estoppel-based pre-enforcement challenge. The administrative

and judicial review procedures in the two acts are nearly

identical. Compare 29 U.S.C. 660(a) with 30 U.S.C. _______ ____

816(a)(1). Moreover, like the claim in Thunder Basin, the _____________

NEA's estoppel claim is "of the type Congress intended to be

reviewed within this statutory structure." Thunder Basin, _____________

114 S. Ct. at 779. If, indeed, the government has engaged in

conduct which should prevent it from enforcing its

regulation, there is no reason for the employer not to raise

that issue as a defense during a challenge to a citation

under the ordinary administrative review procedure. Such a

defense would not be so "wholly collateral" to the OSH Act's

review provisions, nor so outside OSHA's expertise, that it

should be exempted from the OSH Act's review scheme. See id. ___ ___

at 779.2

OSHA's decision would, moreover, be entitled to

judicial review by a court of appeals. See, e.g., Erie Coke ___ ____ _________

Corp., 1992 OSH Dec. (CCH) 29,653 (O.S.H.R.C.) (no estoppel _____

where no evidence that reliance on earlier OSHA position was


____________________

2. Tierney v. Schweiker, 718 F.2d 449 (D.C. Cir. 1983), _______ _________
upon which the NEA places principal reliance, is
distinguishable as that case involved no comprehensive,
statutory-review scheme governing review of administrative
action. Accordingly, there could be inferred no
congressional intent to foreclose other avenues of review.

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reasonable or that Secretary engaged in affirmative

misconduct), aff'd sub nom., Reich v. OSHRC, 998 F.2d 134 (3d ______________ _____ _____

Cir. 1993). Nor do we think that the NEA or its membership

suffers any substantial harm by being required to raise this

issue in the first instance after one or more members are

subject to a citation. See Thunder Basin, 114 S. Ct. at 781- ___ _____________

82. Allowing such claims to be raised initially in an

injunctive proceeding in district court would subvert

Congress's intent to have such claims reviewed through the

OSH Act's detailed administrative procedure.

III.

Because the district court lacked subject-matter

jurisdiction over this case, we affirm the district court's

dismissal on that ground and do not reach its decision on

defendants' motion to dismiss for failure to state a claim.

Affirmed. ________





















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