Northeast Erectors v. DOL

• Court: Court of Appeals for the First Circuit
• Decided: August 15, 1995
• Docket: 94-2287
• Status: Published

Opinion

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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