                                    United States Court of Appeals,
                                             Fifth Circuit.


                                             No. 91–1476.

                         TRINITY INDUSTRIES, INC., Plaintiff–Appellee,

                                                    v.

                       Lynn MARTIN, Secretary of Labor, et al., Defendants,

                       Lynn Martin, Secretary of Labor, Defendant–Appellant.

                                             June 22, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

        E. GRADY JOLLY, Circuit Judge:

        Lynn Martin, Secretary of Labor, appeals from the district court's entry of summary judgment

in favor of Trinity Industries, Inc. (Trinity), in which it declared certain rights of Trinity in an OSHA

investigation, including Trinity's right to be present during employee interviews. We find that the

district court erred in finding that Trinity had standing to bring this action, vacate the district court's

judgment, and dismiss the case for lack of subject matter jurisdiction.



                                                     I

        On April 11, 1990, an industrial accident occurred at Trinity's Fort Worth, Texas plant,

triggering an investigation by the Occupational Safety and Health Administration (OSHA). During

the investigation, OSHA Inspector Gerald Forrester requested interviews with six employees who

worked near the site of the accident.1 All six employees are Hispanic and do not speak English. The

employees agreed to the interviews but requested that Jose Vela, a bilingual supervisor at Trinity, act

as interpreter. They also requested that Trinity plant manager Mike Rawlings be present at the

interviews.


   1
    The six employees involved are Pete Barrios, Roberto Carmona, Toribo Garcia, Armando
Portales, Humberto Solano, and Jesus Zurita.
          With Vela and Rawlings present, Forrester interviewed Portales, Solano, and Zurita and

obtained signed statements. However, when the remaining three employees requested the presence

of Vela and Rawlings, Forrester stopped the interviews. He tried to contact Barrios and Garcia by

telephone at their homes, but they refused to speak to him outside the presence of Vela or Rawlings.

On April 20, 1990, OSHA issued administrative subpoenas ad testificandum to the six Trinity

employees. The subpoenas directed the employees to appear at OSHA's area office and give sworn

statements before a court reporter.



          The employees did not appear as required by the subpoenas. On May 1, Trinity and the six

employees, who employed their own lawyer (paid for by Trinity), filed this action (declaratory action)

seeking declaratory and injunctive relief that would prevent OSHA from enforcing the subpoenas.2

The declaratory action was assigned to Judge Belew.



          On May 10, the Secretary of Labor (Secretary)3 filed a separate action to enforce the

subpoenas (enforcement action). The enforcement action was assigned to Judge Mahon but

transferred to Judge Belew. Judge Belew denied Trinity's motion to consolidate the two actions.



          On August 7, in the enforcement action, Judge Belew granted the Secretary's motion for

   2
    Trinity sought a declaratory judgment that "[e]mployers have legitimate and protectable
interests in attending employee interviews when so requested by employees; and ... [w]hen
employees request the presence of an employer representative during an interview, OSHA may
not bar the employer representative from such interview." It also sought "a preliminary injunction
be issued enjoining any further action or proceedings by the defendants to enforce the
administrative subpoenas issued to employee-plaintiffs pending final adjudication of the issues
raised in the complaint...." and a permanent injunction enjoining defendants from (1) attempting to
compel employee interviews until formal rulemaking procedures are complete and (2) attempting
to bar employers from the interviews when their presence is requested by the employee.

                  The employees sought a declaratory judgment that OSHA had a longstanding rule
          of allowing employees to decline to be interviewed during OSHA investigations, that
          OSHA violated the APA when it changed this rule without formal rulemaking, and that
          employees, not OSHA, have the right to insist on a private interview. They also sought
          the same injunctions as Trinity against OSHA.
   3
       OSHA and the Secretary are used interchangeably.
summary judgment and denied Trinity's motion to intervene. He ordered the six employees to submit

to private interviews with the OSHA investigator, accompanied only by their own lawyer.4 On the

same day, Judge Belew dismissed the declaratory action in a one sentence order.5



        On September 5, Judge Belew issued an order, noting that it had "come to the Court's

attention that Trinity Industries, one of the Plaintiffs, has viable claims remaining in [the declaratory

action] which have not been adjudicated." Therefore, Judge Belew reinstated Trinity's claims and all

pending motions on these claims. On March 6, 1991, Judge Belew granted summary judgment for

Trinity and denied the same for the Secretary.6 Trinity Industries, Inc. v. Dole, 760 F.Supp. 1194

(N.D.Tex.1991). The district court held that Trinity had standing to seek clarification of employee's

rights in OSHA interviews; t hat the Secretary had failed to follow the notice and comment

rulemaking procedures of the Administrative Procedure Act (APA) when it changed its longstanding

policy of allowing employers to be present at interviews when so requested by the employee; and that

the employee, not OSHA, has the right to waive a private interview. The Secretary appealed.



                                                    II

        The Secretary raises several issues on appeal. The thresho ld issue in resolving this case,

however, is whether Trinity has standing to bring this action.7 "Article III, of course, gives the federal

   4
    Persons questioned under subpoena have the right to be "accompanied, represented, and
advised by counsel." 5 U.S.C. § 555(b).
   5
    Because of the confusing procedural history in this case, we want to make clear that the
employees are not a party to this declaratory action. In August 1990, the enforcement action was
transferred to Judge McBryde who has refused to compel the employees to submit to private
interviews; the Secretary has appealed his ruling. (See Martin v. Barrios et al., No. 91–7144
(5th Cir. appeal filed October 18, 1991)). The appeal of the enforcement action raises some of
the same issues as before us, e.g., whether OSHA has the right to insist upon private interviews
with employees. The overlap of issues supports the Secretary's argument that Trinity is not the
proper party to bring this action. See note 8, infra.
   6
    The memorandum opinion and order does not order any injunctive relief; it only declared the
rights of the parties.
   7
   The Secretary also raises the following issues: 1) Whether the district court had subject
matter jurisdiction to entertain Trinity's pre-enforcement challenge to the Secretary's
courts jurisdiction over only "cases and controversies,' and the doctrine of standing serves to identify

those disputes which are appropriately resolved through the judicial process. Our threshold inquiry

into standing "in no way depends on the merits of [Trinit y's] contention that particular conduct is

illegal.' " Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990)

(quotes omitted). Nonetheless, "[t]he requirements of Art. III are not satisfied merely because a party

requests a court of the United States to declare its legal rights, and has couched that request for forms

of relief historically associated with courts of law in terms that have a familiar ring to those trained

in the legal process." Valley Forge Christian College v. Americans United For Separation of Church

& State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).



        In general, a plaintiff must plead an actual or threatened injury that is fairly traceable to the

conduct complained of and likely to be redressed by the relief requested. Allen v. Wright, 468 U.S.

737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Murray v. Austin, 947 F.2d 147, 151 (5th

Cir.1991). The requirement of an actual injury "tends to assure that the legal questions presented to

the court will be resolved, not in the rarified atmosphere o f a debating society, but in a concrete

factual context conducive to a realistic appreciation of the consequences of judicial action." Valley

Forge, 454 U.S. at 472, 102 S.Ct. at 758.



        "The alleged harm must be actual or imminent, not "conjectural' or "hypothetical.' "

Whitmore, 495 U.S. at 155, 110 S.Ct. at 1723. "The injury ... must be concrete in both a qualitative

and temporal sense. The complainant must allege an injury to himself that is "distinct and palpable,'

as opposed to "[a]bstract' ..." Id. (citations omitted) "A plaintiff who challenges a statute must

demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or

enforcement." Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308,



administrative subpoenas; 2) whether OSHA violated APA rulemaking procedures by changing
its policy regarding interviews and by prohibiting Trinity representatives from being present
during the interview; and 3) whether the employee or OSHA has the right to decide if the
interview should be private.
60 L.Ed.2d 895 (1979) (emphasis added). "But "[o]ne does not have to await the consummation of

threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough.' "

Id. Nonetheless, Trinity must "clearly and specifically set forth facts to satisfy Art. III standing

requirements. A federal court is powerless to create its own jurisdiction by embellishing otherwise

deficient allegations of standing." Whitmore, 495 U.S. at 155–56, 110 S.Ct. at 1723.8



          Trinity asserts that it is threatened with an imminent actual injury if OSHA is permitted to

interview its employees outside of its presence. It maintains that it may be forced to incur

unnecessary expense, loss of management and employee time, and disruption of production in order

to defend against an invalid OSHA citation. It also contends that the defense of such charges will

strain the employer/employee relationship; first, it forces Trinity to take an adversarial position

against its own employees during the review hearing; and second, employees do not like the OSHA

process and place the blame on Trinity. Trinity maintains that when OSHA denies the employee's

request to have a company representative present, the chances are great that the employee will

misunderstand OSHA's questions and give incorrect answers which in turn will lead to invalid

citations. If, however, a company representative is allowed to accompany the OSHA inspector during

the interview, Trinity argues, he may be able to clarify the questions before the misunderstanding

occurs.



          Unfortunately, Trinity's alleged injury, resulting from OSHA precluding it from employee


   8
    In addition to the constitutional requirements, the plaintiff seeking review of agency action
must fall within the "zone of interests." Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting
Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25
L.Ed.2d 184 (1970)). Thus, we must determine "[f]irst, whether [Trinity] allege[s] "injury in fact,'
that is, a sufficiently concrete interest in the outcome of [its] suit to make it a case or controversy
subject to a federal court's Art. III jurisdiction, and second, whether, as a prudential matter,
[Trinity is] the proper proponent[ ] of the particular legal rights on which" it bases its suit.
Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).

                 Because we answer the first inquiry in the negative, we need not address the issue
          of prudential standing. Nonetheless, we express doubt that Trinity could satisfy this
          requirement as well.
interviews, rests upon a series of speculative, not "concrete" assumptions. Although in this case the

employee has requested the presence of an employer representative, and the inspector has denied the

request, it is purely speculative that the OSHA inspector will ask misleading, complicated, and

unnecessarily technical questions. The alleged injury of unnecessary expense, lost time, production,

etc. further assumes that the employee will not ask fo r clarification of the question and will give

incorrect information; and, if the interview is conducted with the employee's counsel present, that

counsel also will abstain from clarifying any misleading questions. Additionally, the injury assumes

that the incorrect information will support a citation; that the presence of company representatives

would assist in the factfinding process and would clarify any misleading questions; that the incorrect

information will not be corrected in the closing conference; that OSHA will issue an invalid citation;

and that Trinity will go to the trouble and expense of contesting the citation before the Review

Commission.



         Trinity insists that such an injury—the unnecessary expense in contesting an erroneous

citation, disruption to pro duction, etc.—has already occurred in instances when the employee has

requested a private interview. The only evidence of these alleged injuries that Trinity provides is a

footnote in its brief. It refers to testimony in a case pending before the Review Commission,

Secretary of Labor v. Trinity Indus., Inc., OSHRC No. 88–1545. This evidence was not before the

district court. Generally, we will not enlarge the record on appeal with evidence not before the

district court. See Kemlon Products and Development Co. v. United States, 646 F.2d 223, 224 (5th

Cir.), cert. denied, 454 U.S. 863, 102 S.Ct. 320, 70 L.Ed.2d 162 (1981). In her reply brief, the

Secretary refutes Trinity's account of the proceedings. It is because of the existence of disputed

versions of facts that we require this type of evidence be in the record. Trinity cannot rely on mere

allegations of an injury in one instance to gel its otherwise speculative injury.



        In any event, we conclude with certainty that Trinity's "alleged [injuries are] too speculative

to invoke the jurisdiction of an Art. III court." Whitmore, 495 U.S. at 157, 110 S.Ct. at 1724. The
future injuries resulting from the defense of invalid citations are contingent on innumerable

suppositions. Allegations of possible future injury do not satisfy the requirement of Art. III. The

possibility, that maybe, in the future, if a series of events occur, Trinity, and industries nationwide,

might suffer some injury is clearly too impalpable to satisfy the requirements of Art. III. The injuries

simply are not "certainly impending." Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308.



                                                   III

        Trinity has no standing to bring the present action, therefore, the judgment of the district court

is VACATED and the case is DISMISSED.
