570 F.2d 965 (D.C. Cir. 1977), 77-1395, Industrial Union Dept., AFL-CIO v. Bingham

Docket Nº:77-1395 and 77-1516.
Citation:570 F.2d 965
Party Name:1977-1978 O.S.H.D. ( 22,238, 1977-1978 O.S.H.D. ( 22,382 INDUSTRIAL UNION DEPARTMENT, AFL-CIO, et al., Petitioners, v. Dr. Eula BINGHAM, Assistant Secretary of Labor, et al., Respondents. The AMERICAN PETROLEUM INSTITUTE, the National Petroleum Refiners Association on behalf of their Respective Members and American Petrofina, Incorporated, et al.,
Case Date:October 17, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 965

570 F.2d 965 (D.C. Cir. 1977)

1977-1978 O.S.H.D. ( 22,238,

1977-1978 O.S.H.D. ( 22,382

INDUSTRIAL UNION DEPARTMENT, AFL-CIO, et al., Petitioners,

v.

Dr. Eula BINGHAM, Assistant Secretary of Labor, et al., Respondents.

The AMERICAN PETROLEUM INSTITUTE, the National Petroleum

Refiners Association on behalf of their Respective

Members and American Petrofina,

Incorporated, et al., Petitioners

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, United States

Department of Labor, Dr. Eula Bingham, Assistant

Secretary of Labor, and Ray Marshall,

Secretary of Labor, Respondents,

Manufacturing Chemists Association, American Iron and Steel

Institute, Independent Petroleum Association of

America, Industrial Union Dept., AFL-CIO

and United Rubber Workers,

AFL-CIO, Intervenors.

Nos. 77-1395 and 77-1516.

United States Court of Appeals, District of Columbia Circuit

October 17, 1977

Opinions Filed Dec. 7, 1977.

Page 966

Edward W. Warren, Robert F. VanVoorhees, Washington, D.C., and Arthur F. Sampson, III, Falls Church, Va., were on the motion to retransfer for petitioners in No. 77-1516.

George H. Cohen, Washington, D.C., entered an appearance for petitioners in No. 77-1395 and intervenors Industrial Union Dept., AFL-CIO and United Rubber Workers, AFL-CIO, in No. 77-1516.

Jeremiah C. Collins, Washington, D.C., also entered an appearance for petitioners in No. 77-1395.

Nancy L. Southard and Michael H. Levin, Washington, D.C., were on the Opposition filed by respondent, Secretary of Labor to the motion to retransfer in No. 77-1516. They also entered appearances for respondent in No. 77-1395.

Harold B. Scoggins, Jr., Oklahoma City, Okl., was on the memorandum in support of motion to retransfer filed by intervenor Independent Petroleum Ass'n of America in No. 77-1516.

Robert P. Stranahan, Jr., Washington, D.C., was on the response to the motion to retransfer filed by intervenor American Iron and Steel Institute in No. 77-1516.

John H. Pickering, Washington, D.C., entered an appearance for intervenor Manufacturing Chemists Ass'n in No. 77-1516.

Before FAHY, Senior Circuit Judge, and LEVENTHAL and WILKEY, Circuit Judges.

Opinion supporting jurisdiction and transfer, filed by LEVENTHAL, Circuit Judge.

Opinion supporting transfer for lack of jurisdiction, filed by WILKEY, Circuit Judge.

Opinion supporting jurisdiction and dissenting from the order of transfer, filed by FAHY, Senior Circuit Judge.

PER CURIAM:

The question at hand is whether the District of Columbia Circuit or the Fifth Circuit should consider and dispose of petitions for review of an order of the Secretary of Labor setting an emergency temporary standard for occupational exposure to benzene under the Occupational Safety and Health Act.

On April 29, 1977, the Industrial Union Dept., AFL-CIO, filed a petition in the District of Columbia Circuit. On May 10 and 19, other parties filed petitions in the Fifth Circuit. On June 7, the Fifth Circuit transferred the matter to this court for "a determination of the validity of the Union's petition." In due course this court had before it a motion to dismiss the Union's petition for review as untimely, and a motion to order a retransfer to the Fifth Circuit of the proceedings it had transferred.

On October 17, 1977, in response to a motion of the Secretary of Labor for an immediate decision, the court issued an order of transfer to the Fifth Circuit of all petitions for review now pending in this court.

The court now announces its reasons as follows: (1) Judges Fahy and Leventhal agree that the court has jurisdiction of the petition filed by the AFL-CIO. Judge Wilkey, dissenting in this respect, is of the view that this petition is premature and should be dismissed for lack of jurisdiction. Therefore the motion to dismiss the Union's petition for review, on grounds of prematurity and lack of jurisdiction, is denied.

(2) Judge Leventhal is of the view that the petition of the AFL-CIO should be transferred to the Fifth Circuit pursuant to the last sentence of 28 U.S.C. § 2112(a).

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Judge Fahy is of the contrary view, concluding that a transfer to the Fifth Circuit is not authorized by § 2112(a), properly applied. In order to avoid an impasse, Judge Wilkey votes that on the assumption, as determined by the majority, that the court has jurisdiction the court should exercise its transfer authority, under § 2112(a), to transfer the case to the Fifth Circuit. He therefore concurs in the result proposed by Judge Leventhal.

Judge Fahy dissents from the order of transfer.

The judges have prepared separate opinions in support of their views.

LEVENTHAL, Circuit Judge:

These consolidated proceedings for review of a standard promulgated by the Occupational Safety and Health Administration (OSHA) are now before us on a motion for transfer to the Fifth Circuit pursuant to 28 U.S.C. § 2112(a).

I

Disposition of this motion requires rather detailed exposition of the procedural history of these cases.

On April 28, 1977, representatives of approximately twelve organizations were invited to a meeting the following morning in the office of Dr. Eula Bingham, Assistant Secretary of Labor (OSHA). The meeting began shortly after 9:30 a.m. and concluded about 10:00 a.m. At the meeting, Dr. Bingham signed an emergency temporary standard regulating occupational exposure to benzene. 1 She described the standard to those present, and answered their questions about it. The evidence is in conflict whether copies of the text of the standard were made available to those present.

Those invited to the meeting represented a cross-section of organizations with an interest in the benzene standards, including: the American Petroleum Institute, the Chamber of Commerce of the United States, the Manufacturing Chemists Association, the National Association of Manufacturers, the Rubber Manufacturers of America, the Organization Resources Counselors, Inc., the Industrial Union Department of the AFL-CIO (hereafter simply "AFL-CIO"), the United Rubber Workers of America, the United Steelworkers of America, the United Auto Workers, and the Health Research Group.

The representative of the AFL-CIO immediately after leaving the meeting with Dr. Bingham prepared a petition for review of the standard. The petition was received in the office of the Clerk of this court at 10:08 a.m. on April 29. It was assigned docket number 77-1395. 2

At 10:30 a.m., April 29, Dr. Bingham and F. Ray Marshall, Secretary of Labor, held a press conference at which they discussed the issuance of the benzene standard. At the conclusion of the press conference, copies of the text of the standard and a statement describing it were made available to those in attendance. The printed statement indicated on its face that it was for release at 10:30 a.m.

The standard was filed with the Federal Register at 10:55 a.m. on April 29. It was published in the Federal Register for May 3, 1977.

Page 968

On May 10, the American Petroleum Institute (API), the National Petroleum Refiners Association, and ten oil companies (hereafter collectively the "petroleum industry petitioners") filed a petition for review of the benzene standard with the Court of Appeals for the Fifth Circuit in New Orleans, Louisiana. On May 20, the day before the standard was to take effect, Judge Morgan of that court granted an interim stay of its effectiveness. On June 7, a three-judge division of that court transferred that proceeding to this circuit pursuant to 28 U.S.C. § 2112(a). 3 They extended the stay pending the action of this court. The stay remains in effect.

The petition filed by the American Petroleum Institute, et al., was assigned docket number 77-1516 in this court and was consolidated with the review proceeding filed by the AFL-CIO. The petroleum industry petitioners have now moved for retransfer to the Fifth Circuit. A number of other motions are also pending, but in view of our decision to grant the transfer, we will leave them for determination by the Fifth Circuit.

II

Initially, we must consider our jurisdiction over the AFL-CIO's petition. Section 2112(a) provides for the transfer of multiple review proceedings to the circuit in which a petition was first filed, but if the AFL-CIO's petition is invalid, our jurisdiction was not validly invoked and we are not the court of first filing even though the AFL-CIO's petition here was earlier in time than the petition in the Fifth Circuit. The issue is whether the AFL-CIO filed prematurely, since it filed before the press conference at which the benzene standard was made known to the general public. We have concluded that disclosure to the general public is not necessary to make agency action ripe for judicial review. 4

In Saturn Airways, Inc. v. CAB, 155 U.S.App.D.C. 151, 153, 476 F.2d 907, 909 (1973), we held that a petition was not premature when "at the time of filing it was clear both that the Board had taken what it deemed official action and that the substance of that action had been communicated to the public in some detail." The petitions at issue in Saturn had been filed after the agency adopted regulations and issued a press release describing the regulations "in some detail," (id.) but before the text of the regulations had been released. In the instant case, the AFL-CIO's petition was filed before the agency either held a press conference or issued a press release. Nevertheless, it was filed after the agency "had taken what it deemed official action" (id.) Dr. Bingham's signing the standard and after the substance of that action had been communicated to a fairly...

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