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

appellant.
Mark S. Flynn,
______________
Williamson, Jr.,
________________
Solicitor

Senior

Appellate Attorney,

Solicitor

for Special

of Labor,

Appellate and

with whom

Thomas
______

Allen H. Feldman, Associ

__________________
Supreme

Court Litigation,

Nathaniel I. Spiller, Counsel for Appellate Litigation, United Sta

_____________________
Department of Labor, were on brief for appellees.

____________________
August 15, 1995
____________________

____________________

*Of the Northern District of California, sitting by designation.

CAMPBELL, Senior Circuit Judge.

____________________

Assoc.

Northeast Erectors

("NEA") sued the Secretary of Labor, the Occupational

Safety and Health Administration ("OSHA"), and

OSHA's Boston

regional

office, for declaratory and injunctive relief.

sought to enforce an asserted oral agreement with

regional office

of OSHA,

under which

court

dismissed for

appeals.

failure

to

the Boston

the office

agreed not to enforce certain OSHA regulations.

state a

NEA

allegedly

The district

claim.

NEA

now

We affirm, although on a different ground.

I.

NEA is an unincorporated association of contractors

who

The

perform structural steel and pre-cast concrete erection.

OSHA

standards

working in

regulations

designed to

at

protect

the construction

persons working in the steel

1926.750(b)(1)(ii) is

issue

in

against

this

case

establish

falls of

employees

industry and,

particularly, of

erection industry.

a regulation specifically

29 C.F.R.

targeted at

the

steel

erection industry.

safety lines to be installed

It

C.F.R.

industry

1926.105(a),

in

general,

nets or

when employees are exposed to a

potential fall exceeding two stories

29

requires safety

or 25 feet.

which applies to

requires safety

nets

Similarly,

the construction

or

equivalent

protection for workplaces 25 feet or more above the ground.

We

purposes of

accept

NEA's

this appeal,

allegations

as

Watterson v. Page,
_________
____

-22

true

for

987 F.2d

the

1, 3

(1st

Cir. 1993).

In October of

1989, a group

of erection

contractors and labor representatives met with John Miles, an

OSHA regional administrator, and

to discuss

OSHA's fall

other OSHA representatives,

protection standards.

During

this

meeting,

the contractors told Miles that, for steel erection

workers

known

regulations was

See Donovan v.
___ _______

Cir.

1985)

connectors).

as

"connectors,"

compliance

actually more hazardous

with

the

than noncompliance.

Daniel Marr & Son Co., 763 F.2d 477, 479 (1st
_____________________

(describing

OSHA

the

type

of

work

representatives allegedly

performed

by

accepted this

view and

agreed that,

protection

complying

until OSHA

standard, they would

with the regulations

published a

revised fall

not cite employers

with respect to

for not

workers who

were "connectors."

From

1989 through

representatives,

"agreement,"

for

April

allegedly

did not cite

noncompliance with

the

in

of

1994, regional

compliance

local steel

OSHA

with

the

erection contractors

fall protection

standards

for

"connectors."

NEA argues that the agreement was breached in

1994

Deputy

when the

Assistant Secretary

of

OSHA sent

memorandum to all of the regional offices, directing them

cite employers who violated the

1926.105(a).

to

fall provisions in 29 C.F.R.

The Boston regional office

informed various

contractors that it

NEA then brought

would now begin to issue such citations.

this suit in the district

court, seeking a

-33

declaration as to

agreement

with

its rights and obligations under

the

Boston regional

office.

sought an injunction restraining OSHA from

the oral

NEA further

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

bench,

claim, Fed. R.

the

district

Civ. P.

court

12(b)(6).

dismissed NEA's

Ruling

from the

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.

not rule

on the issue

It expressly did

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

Practice and Procedure

______________________

327

cause

U.S. 678,

of

Wright

&

1350, at 210 (1990);

682 (1945) ("Whether

action on

Arthur Miller,

which

relief

Bell v. Hood,
____
____

the complaint

could

Federal
_______

states a

be granted

is

question of law and just as issues of fact it must be decided

after and not

before the court has assumed jurisdiction over

-44

the

controversy.").1

It is not simply formalistic to decide

the jurisdictional issue when the

any

event

for

consequences

12(b)(6):

failure

flow

from

to

case would be dismissed in

state

dismissals

claim.

under

Different

12(b)(1)

and

for example, dismissal under the former, not being

on the merits, is without res judicata effect.

Moore, et al.,

Moore's Federal Practice

________________________

See 2A James
___

12.07,

at 12-49 &

well as end

with the

n.3 (1993).

We accordingly start

as

jurisdictional issue,

holding

without subject-matter

Occupational

extensive

Safety

and

employer

actions.

may

seek

Occupational Safety

29 U.S.C.

659(c).

district court

jurisdiction over NEA's

administrative

enforcement

that the

Health

Act

process

After

OSHA

("OSH

for

and Health Review

Act")

review

issues

administrative

claim.

review

has

of

was

The

an

OSHA

citation,

an

before

the

Commission ("OSHRC").

Such challenges are

first heard before

____________________

1.

A different

priority is followed

12(b)(1) motion is
to

state a

based on the plaintiff's

federal claim.

plaintiff failed to state a

federal
prevailing

question
view

in cases

(The

that,

alleged failure

idea being

that, if

the

federal claim, there could be no

jurisdiction.)
is

where the

unless

In
the

such
claim

cases,
is

the

entirely

frivolous, a court should assume jurisdiction and dismiss for

failure to state a claim, since federal question jurisdiction
exists
claim.

once plaintiff has

See
___

Bell,
____

distinguishable,

327

alleged even a
U.S.

however,

jurisdictional argument is

at

colorable federal

682-83.

insofar
not based on the

This
as

case

is

defendants'
federal claim's

lack of substantive merit, but upon an independent basis.

-55

an OSHRC administrative law

judge, with discretionary review

by OSHRC.

29 U.S.C.

judicial review

Appeals,

661(j).

of the OSHRC

whose

The employer may

then seek

decision in the U.S.

jurisdiction

is

"exclusive

Court of

and

[whose]

judgment and decree shall be final," except for review by the

Supreme Court.

29 U.S.C.

The OSH

original actions

situations.

district

29

660(a).

Act expressly

in the

None of

authorizes the

U.S. District Court

these

includes the

bringing of

in only

bringing

a few

in the

court of pre-enforcement actions by employers.

U.S.C.

administrative

657(b)

(actions by

subpoenas);

id.
___

the

Secretary to

660(c)(2)

See
___

enforce

(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

behalf

of

the

U.S.

administrative

the

to

recover

review scheme is

id.
___

666(l) (actions on

civil

penalties).

The

thus ordinarily regarded as

exclusive procedure through which an employer can obtain

review

of OSHA

enforcement proceedings.

660(a); Brock v.
_____

See 29
___

Morysville Body Works, Inc.,

___________________________

U.S.C.

829 F.2d 383,

385 (3d Cir. 1987).

In Thunder Basin Coal Co.

______________________

(1994),

the

comprehensive

Federal

Supreme

Court held

administrative

Mine Safety and

v. Reich, 114 S. Ct. 771

_____

that

review

nearly identical,

procedure

Health Amendments Act,

-6-

under

the

30 U.S.C.

801 et seq., ("Mine Act"), revealed a congressional intent to

__ ____

preclude

district

jurisdiction

over

courts

from

exercising

pre-enforcement,
_______________

enforcement, challenges to the Act.

operator, asked

Act,

to comply with

as

subject-matter

well

as

post-

In Thunder Basin, a mine

_____________

the provisions

of the

Mine

sought immediate injunctive relief from that request in

district

Mine

court, instead of

Safety

and

challenging

the

The

held

Court

waiting for a

Health Administration

citation through

that

the

citation from the

("MSHA")

the Act's

district

and

then

review scheme.

court

was

without

not expressly

mention

jurisdiction to grant the requested relief.

Although the

Mine Act

did

pre-enforcement challenges, the Court pointed to the detailed

administrative review

procedures

After MSHA

citation, a

issues

administrative

review

before the

Health Review Commission

Ct.

heard

at 775;

before

30 U.S.C.

FMSHRC

established

mine

by

the

Act.

operator

may

seek

Federal

("FMSHRC").

Mine

Safety and

Thunder Basin,
_____________

815(a), (d).

administrative

114 S.

Such challenges are

law

judge,

with

discretionary review by FMSHRC.

The

mine operator

decision in

"'shall be

Supreme

may

the U.S.

then

(citing 30 U.S.C.

seek

Court of

exclusive and

Court review."

30 U.S.C.

. . .

judicial review

-77

of

the

Appeals, whose

jurisdiction

final' except

for possible

Thunder Basin, 114

______________

816(a)(1)).

823(d)(1), (2).

S. Ct.

The Act authorizes

at 777

actions

in the U.S. District Court only in a limited number of

and

only by

(operators

the

Secretary,

not by

mine

operators.

areas

Id.
___

"enjoy no corresponding right but are to complain

to the Commission and then to the Court of Appeals").

Pointing

the Court held

to the

that a district

jurisdiction to entertain a

Act by a mine operator.

process

does

enforcement

comprehensive review

not

court had no

procedures,

subject-matter

pre-enforcement challenge to the

The Mine Act's "comprehensive review

distinguish

between

pre-

and

post-

challenges, but applies to all violations of the

Act and its regulations."

Id.
___

The Court also pointed to the

legislative

history

administrative

exclusive

obtain

of

review

the

Act,

procedures

mechanism through

indicated

were designed

which

review of enforcement

which

mine

actions.

to

that

be the

operators were

The

to

Court concluded

that:

Nothing in the language and structure

the

Act

or

its

legislative

suggests that Congress

of

history

intended to allow

[employers] to evade the statutory-review

process by

enjoining the

commencing

enforcement

petitioner sought
the

District

proceedings,

to do here.

Court's

structure

and

as

To uphold

jurisdiction

these circumstances would

the

Secretary from

in

be inimical to

purpose

of

the

. . . Act.

Id. at 781.
___

This case

Thunder Basin.

falls

We hold

squarely within

that the

the

OSH Act's

holding

of

comprehensive

_____________

-88

administrative

review scheme

precluded

the district

court

from exercising subject- matter jurisdiction over the present

estoppel-based pre-enforcement challenge.

and judicial

review procedures

in the

The administrative

two acts

are nearly

identical.

Compare
_______

29 U.S.C.

816(a)(1).

Moreover,

like the claim

NEA's estoppel claim is "of

reviewed within

which

issue as

should

structure."

prevent

a defense

under the ordinary

in Thunder Basin,
_____________

the

Thunder Basin,
_____________

If, indeed, the government has engaged in

regulation, there is no reason

that

30 U.S.C.

the type Congress intended to be

this statutory

114 S. Ct. at 779.

conduct

660(a) with
____

it

from

enforcing

for the employer not to raise

during a

challenge to

a citation

administrative review procedure.

defense would not be so

review provisions, nor

its

Such a

"wholly collateral" to the OSH Act's

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,

judicial review by a court of

Corp., 1992 OSH Dec. (CCH)

_____

appeals.

be

entitled to

See, e.g., Erie Coke

___ ____ _________

29,653 (O.S.H.R.C.) (no estoppel

where no evidence that reliance on earlier OSHA position

was

____________________

2.
upon

Tierney v.
_______
which

the

distinguishable
statutory-review
action.

Schweiker, 718
_________
NEA
as

that

F.2d 449

places
case

principal
involved

scheme governing

Accordingly,

there

(D.C. Cir.

1983),

reliance,

no

comprehensive,

review of

administrative

could

be

inferred

congressional intent to foreclose other avenues of review.

-99

is

no

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

suffers any substantial harm by

issue in

the first

82.

Allowing

injunctive

being required to raise this

instance after one

subject to a citation.

such

proceeding

or its membership

or more

members are

See Thunder Basin, 114 S. Ct. at 781___ _____________

claims

in

to be

district

raised

court

initially in

would

an

subvert

Congress's

intent to have

such claims reviewed

through the

OSH Act's detailed administrative procedure.

III.

Because

the district

jurisdiction over this

dismissal on

court lacked

case, we affirm the

that ground

and do not

subject-matter

district court's

reach its

decision on

defendants' motion to dismiss for failure to state a claim.

Affirmed.
________

-1010