     Case: 15-60656     Document: 00513618500     Page: 1   Date Filed: 08/01/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                   No. 15-60656                             FILED
                                                                       August 1, 2016

JTB TOOLS & OILFIELD SERVICES, L.L.C.,                                 Lyle W. Cayce
                                                                            Clerk
             Petitioner

v.

UNITED STATES OF AMERICA; DAVID MICHAELS, Assistant Secretary
of Labor, Occupational Safety and Health; WILLIAM G. PERRY, Director,
Directorate of Standards and Guidance, Occupational Safety and Health
Administration,

             Respondents




               Transfer from the United States District Court
                     for the Southern District of Texas


Before WIENER, CLEMENT, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      JTB Tools & Oilfield Services, L.L.C. (“JTB Tools”) challenges the
dismissal of its lawsuit against the United States, the Assistant Secretary of
Labor, Occupational Safety and Health, and the Director of the Directorate of
Standards    and      Guidance   for   the   Occupational   Safety     and         Health
Administration (collectively “OSHA”). Specifically, JTB Tools alleges that the
district court erred in granting OSHA’s Rule 12(b)(1) motion to dismiss for lack
of subject-matter jurisdiction and in transferring this case to this court. JTB
Tools requests remand to the district court. Because we hold that this court
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                                    No. 15-60656
has exclusive jurisdiction to review OSHA’s actions pursuant to 29 U.S.C.
§ 655(f), we AFFIRM the district court’s transfer. And because JTB Tools failed
to adequately brief its merits arguments before this court, we hold that it
waived any potential right to relief and DISMISS the case.
                                           I.
      In August 2014, JTB Tools petitioned OSHA for a new safety standard,
mandating that oil and gas extraction employers use “the best available
technology . . . to remove and reinstall the rotary control device element used
with rotating platforms.” The standard proposed by JTB Tools defined “the
best available technology” as including the “Rotary Head Speed Clamp, or
substantially equivalent mechanical means.” 1 Conveniently, JTB Tools owns
the patent for Rotary Head Speed Clamps. As the patent holder, JTB Tools
rents the clamps to oil and gas extraction companies.
      The Assistant Secretary for OSHA denied JTB Tools’s petition in
November 2014, explaining, in part, that the narrow scope of the requested
standard was at odds with OSHA’s current regulatory priority of addressing a
broad range of workplace hazards. JTB Tools petitioned OSHA for
reconsideration, which OSHA denied. JTB Tools then filed a complaint in
federal district court, asserting various violations of the Administrative
Procedure Act (“APA”) and its Fifth Amendment due process rights and
seeking a declaratory judgment that OSHA publish its proposed rule to allow
for public comment. In response, OSHA filed a motion to dismiss for lack of
jurisdiction pursuant to 29 U.S.C. § 655(f). Although § 655(f), on its face, vests
the federal courts of appeals with exclusive jurisdiction only over standards
issued by the Secretary, OSHA argued that courts have interpreted the



      1The petition does not further define what constitutes a “substantially equivalent
mechanical means.”
                                           2
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                                       No. 15-60656
Occupational Safety and Health Act’s (“the Act”) jurisdictional grant to allow
for judicial review of denials of agency action. The district court agreed, held
that the Fifth Circuit has exclusive jurisdiction here, and transferred the case
to this court. 2
                                              II.
        Before addressing the merits of a case, a federal court must determine
whether jurisdiction is proper. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1995). We review de novo a district court’s Rule 12(b)(1) dismissal for
lack of subject-matter jurisdiction. Randall D. Wolcott, M.D., P.A. v. Sebelius,
635 F.3d 757, 762 (5th Cir. 2011). The jurisdictional question presented here
is whether this court is vested with exclusive jurisdiction to conduct judicial
review over health and safety standards that the Secretary has declined to
issue. Other circuits have answered this question affirmatively, and we join
them.
        Section 655(f) of the Act provides:
        Any person who may be adversely affected by a standard issued
        under this section may at any time prior to the sixtieth day after
        such standard is promulgated file a petition challenging the
        validity of such standard with the United States court of appeals
        for the circuit wherein such person resides or has his principal
        place of business, for a judicial review of such standard.
Although the plain text of the statute grants exclusive jurisdiction to courts of
appeals for standards issued by the Secretary, courts have interpreted OSHA’s
jurisdictional grant, “when read in conjunction with the APA, 3 as enabling
judicial review not only of standards already promulgated, but also of ‘agency


        2The district court transferred the case, rather than granting OSHA an outright
dismissal, to avoid § 655(f)’s sixty day limitations period. Under § 655(f), a party seeking
review of a motion for reconsideration must file its petition within sixty days from the denial
of reconsideration.
       3 The APA provides, in relevant part, that “‘agency action’ includes the whole or a part

of an agency rule . . . or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
                                              3
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                                       No. 15-60656
action unlawfully withheld or unreasonably delayed.’” Oil, Chem. & Atomic
Workers Union v. Occupational Safety & Health Admin., 145 F.3d 120, 122–23
(3d Cir. 1998) (relying on Action on Smoking & Health v. Dep’t of Labor, 28
F.3d 162, 163–64 (D.C. Cir. 1994)). “[W]here administrative enabling statutes
such as the OSH Act grant exclusive jurisdiction to a particular court to review
past actions of an agency, that court necessarily has the exclusive jurisdiction
to review inaction as well.” Id. at 123 (holding that the statutory phrase
“standard issued” encompasses OSHA’s refusal to issue a standard); see FCC
v. ITT World Commc’n, 466 U.S. 463, 468 (1984) (holding that “[l]itigants may
not evade” the mandate of jurisdiction in the circuit courts by “requesting the
District Court to enjoin action that is the outcome of the agency’s order”); Int’l
Union, UAW v. Donovan, 756 F.2d 162, 163 (D.C. Cir. 1985) (explaining that
“where a statute commits final agency action to review by the court of appeals,
the appellate court has exclusive jurisdiction to hear suits seeking relief that
might affect its future statutory power of review”). In other words, where
courts of appeals have exclusive jurisdiction to review OSHA actions, they also
have exclusive authority to resolve allegations that OSHA unlawfully failed to
act. 4



         See also La Voz Radio de la Communidad v. FCC, 223 F.3d 313, 318 (6th Cir. 2000)
         4

(“[W]hen review of agency action is expressly committed to a designated court of appeals,
that court of appeals has exclusive jurisdiction over any suit seeking relief that might affect
its future statutory power of review.”); Fed. Election Comm’n v. Reform Party of U.S., 479
F.3d 1302, 1309 (11th Cir. 2007) (noting that where Congress “specifically designates a forum
for judicial review of administration action, that forum is exclusive” even if the statute does
not use the word exclusive); George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421 (11th Cir.
1993) (noting that it is well-settled that if Congress “specifically designates a forum for
judicial review of administrative action, that forum is exclusive,” and explaining that
exclusive appellate jurisdiction applies to petitions to compel agency action); Public Utility
Comm’r of Oregon v. Bonneville Power Admin., 767 F.2d 622, 626–28 (9th Cir. 1985)
(following Telecommc’n Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) in the
context of 16 U.S.C. § 839f(e)(5) and concluding that the statute vested the court of appeals
with exclusive jurisdiction over “any suit seeking relief that might affect the court’s future
jurisdiction” to review agency’s final action).
                                              4
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                                       No. 15-60656
       In this present petition, JTB Tools argues for remand to the district
court, insisting that § 655(f) is inapplicable because no OSHA standard was
issued. 5 And JTB Tools rejects the characterization of its claim as an action to
compel issuance of an OSHA standard. JTB Tools contends, pointing to its
complaint and the APA and due process claims asserted, that it seeks only for
OSHA to fulfill its “duties” of review and process and to publish the rule for
public comment. What JTB Tools fails to acknowledge, however, is that a
proposed rule is published only after the Secretary has decided to “promulgate,
modify, or revoke” a safety and health standard. 29 U.S.C. § 655(b)(2).
Demanding publication of the rule to allow for public comment is the
equivalent of insisting upon issuance of an OSHA standard. There is no
distinction, as OSHA correctly exhorts, between the refusal to publish and the
refusal to issue a proposed rule. The claims raised by JTB Tools are inherently
a challenge to OSHA’s denial of its requested rulemaking. Pursuant to § 655(f),
we have exclusive jurisdiction both over OSHA’s issuance of health and safety
standards and over OSHA’s refusal to issue such rules. See Int’l Union v. Chao,
361 F.3d 249, 251 (3d Cir. 2004) (holding that the challenge to OSHA’s refusal
to initiate rulemaking falls within courts of appeals’ exclusive jurisdiction
under § 655(f)); Int’l Union, UAW, 756 F.2d at 163; Telecommc’n Research &
Action Ctr., 750 F.2d at 75–79. Because JTB Tools alleges that OSHA
improperly denied its request for a new standard, we have exclusive
jurisdiction to decide this case.
       As to the merits of JTB Tools’s claims, OSHA argues that JTB Tools has
waived its claims on the merits by failing to brief its right to relief. We agree.


       5  But see Ligon v. LaHood, 614 F.3d 150, 154 (5th Cir. 2010) (“Specific grants of
jurisdiction to the courts of appeals override general grants of jurisdiction to the district
courts.”); Telecommc’n Research & Action Ctr., 750 F.2d at 77 (“[A] statute which vests
jurisdiction in a particular court cuts off original jurisdiction in other courts in all cases
covered by that statute.”).
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                                        No. 15-60656
In its brief, JTB Tools focuses almost exclusively on arguing for remand to the
district court. 6 It offers only repeat conclusory assertions that OSHA violated
its rights under the APA and Fifth Amendment, failing to offer any supporting
argument or citation to authority. See Fed. R. App. P. 28(a)(8) (requiring that
an appellant’s brief contain an argument section compromised of “appellant’s
contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies”); Willis v. Cleco Corp., 749
F.3d 314, 319 (5th Cir. 2014) (holding that appellant waived claim because of
inadequate briefing). To avoid waiver, a party must identify relevant legal
standards and “any relevant Fifth Circuit cases.” United States v. Skilling, 554
F.3d 529, 568 n.63 (5th Cir. 2009); see United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010) (noting that it is “not enough to merely mention or
allude to a legal theory”). JTB Tools fails to do either with regard to its
underlying claims, and we hold those claims inadequately briefed and
therefore waived.
                                              III.
       Finding that the district court properly dismissed the appeal for lack of
subject-matter jurisdiction and transferred the case to this court, we AFFIRM.
We hold that 29 U.S.C. § 655(f) vests exclusive jurisdiction in the courts of
appeals to review OSHA-issued standards and denials of rulemaking petitions.
Moreover, we hold that JTB Tools waived its claims on the merits by failing to
provide adequate briefing and we DISMISS this case.




       6 In its reply brief, JTB Tools attempts to argue against waiver by contending that a
petitioner may “elect” issues to brief on appeal. This is certainly true. Failing to brief issues,
however, results in wavier of those claims. JTB Tools summarily asserts that there is no
waiver of its “rights or defenses.” But it fails to support this unconvincing contention with
any authority.
                                                6
