     Case: 19-60357   Document: 00515068555     Page: 1   Date Filed: 08/08/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                      Fifth Circuit

                              ___________________                    FILED
                                                                  August 8, 2019
                                 No. 19-60357                     Lyle W. Cayce
                              ___________________                      Clerk

WYNNEWOOD REFINING COMPANY, L.L.C., and its successors,

            Petitioner

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
PATRICK PIZZELLA, ACTING SECRETARY, DEPARTMENT OF LABOR,

            Respondents

                           _______________________

                  On Petition for Review of an Order of the
             Occupational Safety and Health Review Commission
                          _______________________

Before SMITH, COSTA, and HO, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Appeals of some agency rulings must be filed in only one court of appeals,
often the D.C. Circuit. See, e.g., 47 U.S.C. § 402(b) (restricting venue for
appeals from certain FCC decisions to the D.C. Circuit). But sometimes a party
appealing an agency ruling has multiple circuits to choose from. That is the
case for decisions of the Occupational Safety and Health Review Commission,
which may be challenged in the circuit where the alleged safety violations
occurred, where the employer has its principal office, or in the D.C. Circuit. 29
U.S.C. § 660(a); see also 29 U.S.C. § 160(f) (providing similar venue options for
appeals of National Labor Relations Board decisions). What happens when
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different parties appeal the same Commission ruling in different circuits?
Because the employer filed this appeal in the Fifth Circuit while the Secretary
of Labor appealed the same agency ruling in the Tenth Circuit, we must
answer that question.
       The Secretary of Labor issued Wynnewood Refining multiple citations
alleging safety violations at its Oklahoma refinery. Wynnewood contested the
citations. It achieved partial success before the agency. The Commission
modified five violations by recharacterizing them as less severe than the
Secretary alleged.
       This mixed result prompted both the Secretary and Wynnewood to seek
judicial review. The Secretary appealed to the Tenth Circuit, where venue is
proper because the alleged violations occurred in Oklahoma.                       29 U.S.C.
§ 660(a); see also id. § 660(b) (allowing the Secretary of Labor to petition for
review of Commission decisions). Wynnewood appealed to the Fifth Circuit,
where venue is also proper because the company’s headquarters are in Texas.
Id. § 660(a).
       Congress set rules for resolving this problem of multiple appeals in
multiple circuits.      28 U.S.C. § 2112(a)(1); see generally 16 CHARLES ALAN
WRIGHT ET AL., FED. PRAC. & PROC. § 3944 (3d ed.) (chronicling the history of
this statute). When, as in this case, none of those petitions is filed within ten
days of the challenged agency decision, the Commission “shall file the record
in the court in which proceedings with respect to the order were first
instituted.” 1 28 U.S.C. § 2112(a)(1). Once the agency properly files the record



       1  When multiple appeals are filed within ten days of the agency decision, the first-to-
file rule does not apply. 28 U.S.C. § 2112(a)(1). In that situation, the Judicial Panel on
Multidistrict Litigation randomly selects one court of appeals to hear all of the petitions for
review. Id. § 2112(a)(3); see also WRIGHT, FED. PRAC. & PROC. § 3944 (noting that although
“[t]he ‘first to file’ rule was [partially] superseded” by a 1988 amendment, “[t]he new system


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where a petition for review was first filed, “[a]ll courts . . . , other than the court
in which the record is filed pursuant to [section 2112], shall transfer those
proceedings to the court in which the record is so filed.” Id. § 2112(a)(5).
       The Secretary’s Tenth Circuit appeal was filed first. It was filed at 12:33
p.m. on May 24th. Wynnewood filed its appeal in this court the same day, but
not until 3:09 p.m. according to a Clerk’s Office receipt. “When one party
succeeds in obtaining an earlier time stamp from the Clerk of one court the
agency under review must file [the administrative record] there.” Southland
Mower Co. v. U.S. Consumer Prod. Safety Comm’n, 600 F.2d 12, 14 (5th Cir.
1979) (quotation omitted). The first-to-file rule governs even for petitions filed
on the same day; indeed, we have applied it even when petitions were filed
within a minute of each other. Id. (applying first-to-file rule when one petition
“was time stamped one minute before” the other); Formaldehyde Inst., Inc. v.
U.S. Consumer Prod. Safety Comm’n, 681 F.2d 255, 261–62 (5th Cir. 1982)
(awarding venue to the petition filed ten seconds earlier). So under the first-
to-file rule, the Commission should have filed the record in the Tenth Circuit.
       The wrinkle is that the Commission filed the record in both circuits and
filed it first in the Fifth Circuit. Wynnewood argues this means we should hear
the appeal because “[t]he duty of determining who was first to file falls, under
the express provisions of 28 U.S.C. § 2112(a), upon the agency whose
proceedings are under review.” United Steelworkers of Am., AFL-CIO CLC v.
Marshall, 592 F.2d 693, 696 (3d Cir. 1979). But letting the agency decide the
forum would be at odds with the statute’s text, which states that the
Commission “shall file the record in the court in which proceedings . . . were
first instituted.” 28 U.S.C. § 2112(a)(1) (emphasis added); see also Southland


explicitly retains the first-filing rule for” situations in which no petition is filed within ten
days).



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Mower, 600 F.2d at 14 (holding that the agency “must file” the record where an
appeal was first filed). An agency’s conduct cannot override this statutory
command that the appeal be heard in the circuit where the petition for review
was first filed. Indeed, the statutory first-to-file rule replaced the agency-
picks-the-forum rule Wynnewood wants.           Prior to the 1958 enactment of
section 2112, an agency, “in choosing the court in which to file the record,
determined the tribunal which would hear the case.” Ball v. N.L.R.B., 299 F.2d
683, 685 (4th Cir. 1962); see also Eastern Air Lines, Inc. v. Civil Aeronautics
Bd., 354 F.2d 507, 511 (D.C. Cir. 1965) (recognizing that section 2112 departed
from the rule that an agency could choose “the forum by filing the record in the
court of its selection”). The different rule Congress adopted requires that the
appeal of this Commission ruling be heard in the circuit where the first appeal
was filed.
      The statute’s first-to-file rule also defeats Wynnewood’s argument that
the filing of the record creates “exclusive” jurisdiction in the court that receives
it. See 29 U.S.C. § 660(a). The statute does state that, “[u]pon filing of the
record with it, the jurisdiction of the court shall be exclusive.” Id. But that
same subsection directs the Commission to follow section 2112, which requires
it to file the record where an appeal was “first instituted.”             28 U.S.C.
§ 2112(a)(1). As we have said, an agency cannot subvert the congressional
directive to file the record in the circuit where a party first appealed.
      We therefore GRANT the Secretary’s motion to transfer this appeal to
the Tenth Circuit. Any motion to transfer the appeal on convenience grounds,
see 28 U.S.C. § 2112(a)(5), will be decided in that circuit.




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