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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