
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                                       _________    ____                                         -2-                                          2            (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                                         -3-                                          3            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                                         -4-                                          4            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.                                         -5-                                          5            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.                                           -6-                                          6            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                                         -7-                                          7            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            _____________                                         -8-                                          8            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.                                         -9-                                          9            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.                      ________                                                      -10-                                          10
