dissenting:
I dissent from the result reached by the majority in this case because I believe that 29 U.S.C. § 660(a) (1976) deprives this court of jurisdiction to entertain the Secretary’s collateral estoppel objections. Section 660(a) provides, in pertinent part, “No objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” This language makes no distinction between objections raised by the party petitioning the circuit court, Buckeye, and those raised by the party responding, the Secretary.1
Buckeye raised its constitutional objections before the Commission. Record, vol. 1, at 223. The Secretary, however, did not contend before the Commission that Buckeye was estopped from reasserting its constitutional claim by the undisturbed order of the district court rejecting that claim. The Secretary points to no “extraordinary circumstances” that might excuse his failure to raise the estoppel issue, and I discern none from the record. Therefore, I would give effect to the plain meaning of section 660(a) and not entertain the Secretary’s contention.
The majority restricts the meaning of the word “objection” in section 660(a) to those objections raised by the petitioning party. The majority attempts to justify its interpretation by reference to the heading of the section, which reads, “Filing of petition by persons adversely affected or aggrieved . .” Apparently, the rationale is that only the petitioner objects. I think this an awkward and unjust reading of the statute.
I begin with the principle that where “the text of the statute is plain and unambiguous, there is no call to resort to the heading to aid in construing it.” United States v. Carrillo-Colmenero, 523 F.2d 1279, 1283 (5th Cir. 1975). The objections that must be urged before the Commission to preserve them for review are not limited by the language of section 660(a) to those made by the petitioner, nor should they be. I view the objection requirement as one calling for the full and fair consideration of cases before the Commission. This salutary goal is defeated by allowing the respondent to raise issues for the first time before the circuit court. The majority’s reading of section 660(a) allows the respondent, having remained silent before the Commission, to ambush the petitioner when he seeks review in this court. This result is inequitable to *237the petitioner, who might not wish to bear the burden of review if aware of the respondent’s objection.
But, the majority counters, “it would have been utterly fruitless for the Secretary to have urged the principle of estoppel to Buckeye’s constitutional claim before the Commission, because it is clear that the Commission could not, in any event, hold the statute unconstitutional.” Ante, at 235. I quite agree that an administrative tribunal is incompetent to declare unconstitutional the act it is entrusted to administer. Spiegel, Inc. v. FTC, 540 F.2d 287, 294 (7th Cir. 1976); see Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). An administrative tribunal is, however, wholly competent to decide other questions of law, such as the operation of the doctrine of collateral estoppel. See generally 1 K. Davis, Administrative Law Treatise § 3:10 (2d ed. 1978). Therefore, the Commission could have decided that Buckeye’s constitutional claim was barred. In this circumstance, it would never have had to reach the constitutional issue. Alternatively, the Commission could have decided that Buckeye’s claim was not barred. In this instance, the Commission would not have reached the constitutional claim but would have done as it did below and reserved the issue for review by the court of appeals. In either event, Buckeye would have received the notice of the Secretary’s objection to which it was entitled.
The majority’s contention that because the Commission could not decide the constitutional issue of the propriety of the inspection of Buckeye’s place of business, it would be fruitless to require the Secretary to assert his collateral estoppel objection is sophistic for another reason as well. Buckeye was required to assert its constitutional claim before the Commission, or that claim would have been barred by the action of section 660(a). Todd Shipyards Corp. v. Secretary of Labor, 566 F.2d 1327, 1331 (9th Cir. 1977); Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309 (10th Cir. 1976). Thus, it is no argument at all that because an administrative tribunal cannot decide an issue,2 that issue need not be raised before it.
My final observation is that although the majority’s reasoning rests heavily on the proposition that the respondent need not object to constitutional claims because of the inability of the Commission to decide them, its construction of section 660(a) is not limited to instances where constitutional claims are raised by the petitioner. Apparently, the majority is willing to allow the respondent to assert for the first time on review objections to evidentiary and procedural matters. I cannot believe that Congress intended such a result when it drafted section 660(a).
For these reasons, I must respectfully dissent. I would hold that the Secretary is precluded from raising the collateral estop-pel defense. Therefore, I would give effect to the Supreme Court’s decision in Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), and would vacate the Commission’s order on the basis that the warrantless inspection of Buckeye’s premises was unconstitutional.
. The requirement that no objections that have not been urged before the Commission can be entertained on review applies as well when a petition is brought by the Secretary under 29 U.S.C. § 660(b) (1976), which provides, in pertinent part, “The Secretary may also obtain review or enforcement of any final order of the Commission by filing a petition for such relief in the United States court of appeals . ., and the provisions of [§ 660(a)] shall govern such proceedings to the extent applicable.”
. Here, of course, the Commission was wholly competent to decide the collateral estoppel issue.