756 F.2d 162 (D.C. Cir. 1985), 85-1003, International Union, United Auto., Aerospace & Agr. Implement Workers of America, UAW v. Donovan

Docket Nº85-1003.
Citation756 F.2d 162
Party Name1984-1985 O.S.H.D. ( 27,199 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Petitioners, v. Raymond J. DONOVAN, Secretary of Labor, and Thorne G. Auchter, Assistant Secretary of Occupational Safety & Health Administration, Respondents, Formaldehyde Institute, Intervenor.
Case DateMarch 05, 1985
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 162

756 F.2d 162 (D.C. Cir. 1985)

1984-1985 O.S.H.D. ( 27,199

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et

al., Petitioners,

v.

Raymond J. DONOVAN, Secretary of Labor, and Thorne G.

Auchter, Assistant Secretary of Occupational

Safety & Health Administration, Respondents,

Formaldehyde Institute, Intervenor.

No. 85-1003.

United States Court of Appeals, District of Columbia Circuit

March 5, 1985

Submitted Jan. 4, 1985.

Judith N. Macaluso, Attorney, Dept. of Labor, Arlington, Va., was on the response to the Motion to Compel Adherence to the District Court Order. Joseph E. diGenova, U.S. Atty., John D. Bates, Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., entered appearances for respondents.

Donald L. Morgan, Sara D. Schotland, Katherine L. Rhyne and W. Richard Bidstrup, Washington, D.C., were on the reply of intervenor. The Formaldehyde Institute, Inc., to the Motion to Compel Adherence to the District Court Order.

Randy S. Rabinowitz, Washington, D.C., Stephen I. Schlossberg, Jordan Rossen and Ralph Jones, Detroit, Mich., were on the Motion to Compel Adherence to the District Court Order.

Page 163

Before EDWARDS, GINSBURG and SCALIA, Circuit Judges.

Opinion for the Court by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case involves a challenge by the petitioners to the refusal of the Occupational Safety and Health Administration ("OSHA" or the "Agency") to regulate exposure to formaldehyde in the workplace, either by issuing an emergency temporary standard ("ETS") pursuant to section 6(c) of the Occupational Safety and Health Act ("OSH Act" or the "Act"), 1 or by taking other regulatory action pursuant to section 6(b) of the Act. 2

In October of 1981, the United Auto Workers and thirteen other labor organizations petitioned OSHA to issue an ETS regarding workplace exposure to formaldehyde. The unions relied on evidence that formaldehyde may cause cancer in humans to request that the ETS limit exposure to the lowest feasible level and that employers be required to monitor exposure and to provide protective clothing, respirators and safety training to exposed employees. On January 29, 1982, OSHA denied the petition. Subsequently, the petitioners filed this suit in District Court, on the assumption that federal question jurisdiction existed under 28 U.S.C. Sec. 1331. They sought a declaration that OSHA's refusal was arbitrary and capricious and an order directing OSHA to issue an ETS immediately and to begin permanent rulemaking proceedings under section 6(b) of the Act. The District Court declined to compel the Agency to issue an ETS, but ordered OSHA to reconsider its refusal either to issue an ETS or to institute permanent rulemaking proceedings. 3 The District Court further ordered OSHA to develop a timetable for completing the reconsideration and directed the Agency to file periodic status reports. 4

After the District Court's orders issued, this court decided Telecommunications Research & Action Center v. Federal Communications Commission ("TRAC "). 5 TRAC made clear for the first time that, where a statute commits final agency action to review by the court of appeals, the appellate court has exclusive jurisdiction to hear suits seeking relief that might affect its future statutory power of review. 6 Because section 6(f) of the OSH Act 7 vests jurisdiction in the court of appeals to review standards issued under section 6 of the Act, such as the regulation sought by the petitioners, it became apparent after TRAC that the District Court did not have subject matter jurisdiction over this case. Pursuant to our prescription in TRAC for such situations, the District Court transferred the case to this court under 28 U.S.C. Sec. 1631 (1982).

Currently before us is the petitioners' motion that we adopt the decision and orders of the District Court and supplement these with additional orders. In particular, the petitioners urge us to recognize the timetable for completing the reconsideration of formaldehyde which the Agency submitted to the District Court, and to require OSHA to adhere to that schedule without extension or amendment. The petitioners also ask us to require the Agency to file status reports with this court on the dates specified by the District Court.

As an initial matter, this case raises the novel question of the status of orders issued by the District Court prior to TRAC in a case that was subsequently transferred to the court of appeals. We hold that TRAC should not be applied retroactively to void otherwise valid orders

Page 164

issued by the District Court prior to transfer. Consequently, we will adopt and give full effect to the District Court's orders in this case. We expect the agency to adhere strictly to the timetable approved by the District Court and to file status reports on the appointed dates. At this time, we find it unnecessary to take any further action to compel the Agency to adhere to its timetable. However, because we believe that the petitioners have shown the Agency's actions to be unduly delayed and its explanations for delay to be questionable, we now order OSHA to inform this court immediately if it proposes to take any actions which might interfere with the projected schedule. Should the petitioners object to any proposed action, this court will accord expeditious treatment to their petitions for relief.

  1. Status of the District Court's Orders

    We begin our analysis by considering the status of the District Court's orders. 8 In TRAC we established both that where a statute commits final agency action to review by courts of appeals, appellate courts have exclusive jurisdiction over suits seeking relief that might affect their future power of review, and that any such suits which had mistakenly been filed in the District Court should be transferred to the court of appeals. We did not address the question before us today, whether TRAC should be applied retroactively to void otherwise valid orders issued by the District Court before transferring a case to this court.

    In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 9 the Supreme Court identified three considerations which bear on the issue of retroactivity: (1) "whether the holding in question 'decid[ed] an issue of first impression whose resolution was not clearly foreshadowed' by earlier cases," (2) " 'whether retrospective operation will further or retard [the] operation' of the holding in question," and (3) "whether retroactive application 'could...

To continue reading

Request your trial
17 practice notes
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984), adopted, 756 F.2d 162 (D.C. Cir. 1985); see also Indus. Union Dep't, AFL-CIO, 448 U.S. at 640 n.45 (noting the distinction between the standard for risk findings in p......
  • 668 F.Supp. 1 (D.D.C. 1987), Civ. A. 82-0425, Martin-Trigona v. Meister
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • March 19, 1987
    ...and remain in effect. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168 (3d Cir.1982); see also International Union v. Donovan, 756 F.2d 162, 165 nn. 16, 17 (D.C.Cir.1985) (However, courts of coordinate jurisdiction may not bind each other.). The Court may not consider the other pe......
  • 508 A.2d 114 (D.C. 1986), 84-1204, Mayo v. Mayo
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 30, 1986
    ...Union, United Automobile, Aereospace & Agricultural Implement Workers of America, UAW v. Donovan, 244 U.S.App.D.C. 141, 143 n. 12, 756 F.2d 162, 164 n. 12 (1985); 11 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2862 at 197-200 (1973); 13A WRIGHT, MILLER & COOPER, FEDERAL P......
  • 768 F.2d 1480 (D.C. Cir. 1985), 84-1635, Oil, Chemical and Atomic Workers Intern. Union v. Zegeer
    • United States
    • United States Court of Appeals (District of Columbia)
    • August 2, 1985
    ...process with due dispatch. See International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Donovan, 756 F.2d 162, 165 (D.C.Cir.1985) (court will scrutinize variance from schedule and set day certain for completion of rulemaking proceedings if officials unreason......
  • Request a trial to view additional results
16 cases
  • 668 F.Supp. 1 (D.D.C. 1987), Civ. A. 82-0425, Martin-Trigona v. Meister
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • March 19, 1987
    ...and remain in effect. See Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168 (3d Cir.1982); see also International Union v. Donovan, 756 F.2d 162, 165 nn. 16, 17 (D.C.Cir.1985) (However, courts of coordinate jurisdiction may not bind each other.). The Court may not consider the other pe......
  • 508 A.2d 114 (D.C. 1986), 84-1204, Mayo v. Mayo
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 30, 1986
    ...Union, United Automobile, Aereospace & Agricultural Implement Workers of America, UAW v. Donovan, 244 U.S.App.D.C. 141, 143 n. 12, 756 F.2d 162, 164 n. 12 (1985); 11 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2862 at 197-200 (1973); 13A WRIGHT, MILLER & COOPER, FEDERAL P......
  • 768 F.2d 1480 (D.C. Cir. 1985), 84-1635, Oil, Chemical and Atomic Workers Intern. Union v. Zegeer
    • United States
    • United States Court of Appeals (District of Columbia)
    • August 2, 1985
    ...process with due dispatch. See International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Donovan, 756 F.2d 162, 165 (D.C.Cir.1985) (court will scrutinize variance from schedule and set day certain for completion of rulemaking proceedings if officials unreason......
  • 793 F.2d 1346 (D.C. Cir. 1986), 85-1348, In re Center for Auto Safety
    • United States
    • United States Court of Appeals (District of Columbia)
    • June 20, 1986
    ...with repeated delay. [56] See, e.g., International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Donovan, 756 F.2d 162 (D.C.Cir.1985); Air Line Pilots Ass'n v. CAB, 750 F.2d 81 Pending final agency action on the 1989 standards, the parties will of course retain......
  • Request a trial to view additional results
1 provisions
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...Union, United Auto., Aerospace, & Agr. Implement Workers of Am., UAW v. Donovan, 590 F. Supp. 747, 755-56 (D.D.C. 1984), adopted, 756 F.2d 162 (D.C. Cir. 1985); see also Indus. Union Dep't, AFL-CIO, 448 U.S. at 640 n.45 (noting the distinction between the standard for risk findings in p......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT