United Steelworkers of America, AFL-CIO CLC v. Marshall, AFL-CIO-CL

• Decision Date: 10 January 1979
• Docket Number: P,AFL-CIO-CL,No. 78-2452,78-2452
• Citation: 592 F.2d 693
• Parties: 7 O.S.H. Cas.(BNA) 1001, 1979 O.S.H.D. (CCH) P 23,281 UNITED STEELWORKERS OF AMERICA,etitioner, v. Ray MARSHALL, Secretary of Labor, U. S. Department of Labor, and Doctor Eula Bingham, Asst. Secretary of Labor, O.S.H.A., Respondents.
• Court: U.S. Court of Appeals — Third Circuit

Page 693

592 F.2d 693

7 O.S.H. Cas.(BNA) 1001, 1979 O.S.H.D. (CCH) P 23,281

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. Ray MARSHALL, Secretary of Labor, U. S. Department of Labor and Doctor Eula Bingham, Asst. Secretary of Labor O.S.H.A., Respondents.

No. 78-2452.

United States Court of Appeals Third Circuit.

Argued Dec. 20, 1978.

Decided Jan. 10, 1979.

George Cohen, Bredhoff, Gottesman, Cohen & Weinberg, Washington, D. C., for petitioner United Steelworkers in No. 78-2452.

Nancy L. Southard, Benjamin Mintz, U. S. Dept. of Labor, Washington, D. C., for Department of Labor in Nos. 78-2452 and 78-3475.

Claude D. Montgomery, Asst. Gen. Counsel, International Union, United Automobile, Aerospace & Agriculture Implement Workers of America, Detroit, Mich., UAW Applicants for Intervention.

Standish F. Medina, Jr., Debevoise, Plimpton, Lyons & Gates, New York City, for petitioners in No. 78-3475.

Before GIBBONS, ROSENN and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

This case presents the problem of the appropriate court to review agency action when petitions for review have been filed in this court and in the Court of Appeals for the Fifth Circuit. We conclude that the agency action in question should be reviewed by the Court of Appeals for the District of Columbia Circuit.

On November 9, 1978, the Occupational Safety and Health Administration of the United States Department of Labor (OSHA) held separate briefings for labor union representatives and industry representatives at which it disclosed the substantive contents of a proposed occupational health standard regulating employee exposure to lead, a highly toxic substance. The United Steelworkers of America, AFL-CIO-CLC (Steelworkers) had participated in the rulemaking proceedings in which the proposed standard was developed, representing members exposed to lead in industrial processes. The Lead Industries Association, Inc. (LIA), a trade association of manufacturers smelting or using lead, and Chloride Incorporated, a manufacturer, had also participated in those proceedings. Counsel for the Steelworkers had in the rulemaking proceedings sought a standard requiring a lower exposure level than OSHA was about to propose, while counsel for LIA and Chloride, Inc. had sought a standard less stringent in several respects. LIA is the chief spokesman for all employers in the primary lead industry. Both sides of the dispute over the standard were aware that the proposed standard would be filed in the Office of the Federal Register on November 13, 1978, and both sides anticipated filing a petition for review pursuant to § 6(f) of the Occupational Safety and Health Act, 29 U.S.C. § 655(f). Each side, therefore, had a representative at the Office of the Federal Register when it opened for business on November 13, 1978. Aware of the provisions of 28 U.S.C. § 2112(a), each side had prepared in advance a petition for review for filing in the court of appeals of its choice. Counsel for LIA and Chloride chose the Fifth Circuit, while counsel for the Steelworkers chose the Third Circuit. When at 8:45 a. m. the OSHA standard was stamped filed at the Office of the Federal Register, counsel for the Steelworkers, having arranged for an open telephone line to a public telephone near the entrance to the Third Circuit Clerk's Office, instructed its representative in Philadelphia to file the Steelworkers' petition for review. The Third Circuit Clerk's office marked the petition filed at 8:45 a. m., eastern standard time. Counsel for LIA and Chloride, Inc., having arranged for an open line to a telephone near the entrance of the Fifth Circuit Clerk's office in New Orleans, instructed its representative there to file their petition for review. It was marked filed at 7:45 a. m., central standard time. Thus, the court records of the respective clerks' offices reflect a dead heat in the race to the courthouse.

The governing statute provides that "(i)f proceedings have been instituted in two or more courts of appeals with respect to the same order the . . . commission . . . . concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted." 28 U.S.C. § 2112(a). On November 29, 1978, the Solicitor of Labor informed the Chief Judges of both courts by letter that in the Labor Department's view there is no court of first filing. The letter called to the courts' attention the additional provision in 28 U.S.C. § 2112(a) that "(f)or the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals," and suggested consultation between the respective courts as to which of the two should make a determination as to venue for the review of the lead standard.

The petitions for review were referred to panels in each court. Following the procedure adopted by the District of Columbia Circuit in American Public Gas Ass'n v. FPC, 180 U.S.App.D.C. 380, 555 F.2d 852 (1976), this court conferred with the Fifth Circuit panel which on December 14, 1978 filed a per curiam opinion on the LIA petition for review as follows:

Having conferred with the judges of the Third Circuit, and by agreement with them, we defer proceedings pending a decision by the Third Circuit Court of Appeals designating the forum to consider and decide this matter.

On December 20, 1978, we heard argument on the question of the proper forum, during which counsel for LIA and Chloride, Inc. advanced several arguments in support of its contention that the case should be heard in the Fifth Circuit.

The first contention of LIA is that, despite the fact that the court records suggest a simultaneous filing in both courts, in fact the filing in New Orleans occurred some ten seconds prior to that in Philadelphia. In support of that contention LIA filed in the Fifth Circuit affidavits by the persons who comprised its chain of communication between the Office of the Federal Register and the Clerk's Office in New Orleans tending to suggest that their timepieces were more accurate and their communications were more rapid than those of their Steelworker rivals. Counsel for the Steelworkers filed opposing affidavits tending to suggest that at best the race produced no more than a dead heat. Unlike race tracks, however, courts are not equipped with photoelectric timers, and we decline the invitation to speculate which nose would show as first in a photo finish.

The 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. Prior to 1958, under many statutes providing for judicial review in the courts of appeals, when petitions were filed in several jurisdictions it was possible for the agency, by filing the record in one of them, to select its forum. One purpose of § 2112(a) was to eliminate that possibility by substituting a mechanical first filing rule. What has resulted in practice has been the substitution of forum shopping by counsel for petitioners by the exercise of technological ingenuity in achieving first filing. When counsel succeeds in obtaining an earlier time stamp from the Clerk of one court the agency under review must file there. Where ingenuity has produced times of filing recorded as simultaneous, but one petitioner challenges the accuracy of the record time, three constructions of § 2112(a) are possible. We could hold that the agency under review must hold a hearing to determine who filed first. This would reintroduce the problem of an interested agency making a decision as to the forum. We could hold that one of the reviewing courts could, when the fact of simultaneous filing was disputed, hold a hearing. But courts of appeals lack the ready means of holding hearings on disputed factual matters, and such a course would inevitably cause delays in the reviewing process. Finally, we could, and do, adopt a rule that in the absence of extraordinary circumstances, the official notations of time of filing are conclusive. When those notations show a simultaneous filing the agency should proceed, as did the Labor Department here, to notify both courts, who by agreement will determine which one will determine venue "(f)or the convenience of the parties in the interest of justice." 28 U.S.C. § 2112(a).

LIA also contends that "the convenience of the parties in the interest of justice" mandates transfer to the Fifth Circuit. In support of this contention it urges that the statute gave LIA a choice of forum, and that where it did not quite succeed in effectuating that choice because the race to the courthouse resulted in a tie, the tie should be broken by weighing the relative aggrievement of the two petitioners. The Steelworkers, according to LIA, achieved in the standard as promulgated by OSHA most of the employee protection they...