903 F.2d 308 (5th Cir. 1990), 87-4960, National Grain & Feed Ass'n, Inc. v. Occupational Safety and Health Admin.

Docket Nº:87-4960, 88-4256.
Citation:903 F.2d 308
Party Name:P 28,963 NATIONAL GRAIN & FEED ASSOCIATION, INC., and Great River Grain Corporation, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION and United States Department of Labor, Respondents. FOOD & ALLIED SERVICE TRADES DEPARTMENT, AFL-CIO, et al., Petitioners, v. Elizabeth DOLE, Secretary of Labor, Respondent.
Case Date:April 25, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 308

903 F.2d 308 (5th Cir. 1990)

P 28,963

NATIONAL GRAIN & FEED ASSOCIATION, INC., and Great River

Grain Corporation, Petitioners,

v.

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION and United

States Department of Labor, Respondents.

FOOD & ALLIED SERVICE TRADES DEPARTMENT, AFL-CIO, et al., Petitioners,

v.

Elizabeth DOLE, Secretary of Labor, Respondent.

Nos. 87-4960, 88-4256.

United States Court of Appeals, Fifth Circuit

April 25, 1990

Page 309

Jerome J. Reso, Jr., H. Sloan McCloskey, New Orleans, La., for petitioners.

Marc L. Fleischaker, V. Daniel Palumbo, Washington, D.C., Mike Miller, Fargo, N.D., for amicus curiae, North Dakota Grain Dealers Assoc.

Randy S. Rabinowitz, Washington, D.C., for intervenor Food & Allied Service Trades.

Nathaniel I. Spiller, Allen H. Feldman, Steven J. Mandel, Barbara Werthmann, Jay S. Bybee, Leonard Schaitman, U.S. Dept. of Labor, Washington, D.C., for respondents.

Robert Myers, Jr., W. Caffey Norman, III, Washington, D.C., for intervenor Millers' Nat. Fed.

David C. Vladeck, Alan Morrison, Public Citizen Lit. Group, Washington, D.C., for intervenor Oil, Chemical & Atomic Workers.

Richard L. Frank, Philip C. Olsson, Washington, D.C., for intervenor American Feed Ind. Assoc.

Marc L. Fleischaker, Washington, D.C., for intervenor Nat. Grain & Feed Assoc.

Jay S. Bybee, Leonard Schaitman, U.S. Dept. of Justice, Civ. Div., Ray H. Darling, Exec. Secretary, OSHRC, George R. Salem, Deputy Secretary, Dept. of Labor, Washington, D.C., for Secretary of Labor.

Petitions for Review of Orders of the Occupational Safety and Health Administration.

Before GARZA, WILLIAMS, and SMITH, Circuit Judges.

BY THE COURT:

We have under submission three motions filed subsequently to the issuance of our substitute opinion, 866 F.2d 717 (5th Cir.1989). Petitioners Food & Allied Service Trades Department, AFL-CIO, et al. ("the unions"), move this court for an order enforcing our judgment. Petitioners National Grain & Feed Association, Inc., et al. ("the industry"), move that we reopen the public record. Respondent, the Secretary of Labor, moves for a lifting of our stay of enforcement. For the reasons set forth hereinbelow, we deny the motions for enforcement and reopening of the record and grant the motion to lift the stay.

I.

Motion To Enforce Judgment.

The unions call for immediate enforcement of our judgment, asserting that workers are in need of the protection to be offered by the proposed grain-dust standards and that the Secretary has taken inadequate steps, since the issuance of our prior opinions, to comply with our directive. The Secretary opposes the motion, asserting that on remand the agency is working to accommodate the court's requirements. The industry opposes the motion primarily by means of its motion to reopen the record.

There is little doubt that we have ample authority to issue an order directing compliance with our mandate. See, e.g., American Trucking Ass'ns, Inc. v. Interstate Commerce Comm'n, 669 F.2d 957...

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