Formaldehyde Institute, Inc. v. U.S. Consumer Product Safety Com'n, Nos. 82-4135

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEE, JOHNSON and GARWOOD; PER CURIAM
Citation681 F.2d 255
PartiesThe FORMALDEHYDE INSTITUTE, INC., for and on behalf of its members; Virgil E. Stewart Jr.; and William E. Nash, Petitioners, v. UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent. C. P. CHEMICAL COMPANY, INC., et al., Petitioners, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
Docket NumberNos. 82-4135,82-4136
Decision Date02 July 1982

Page 255

681 F.2d 255
The FORMALDEHYDE INSTITUTE, INC., for and on behalf of its
members; Virgil E. Stewart Jr.; and William E.
Nash, Petitioners,
v.
UNITED STATES CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
C. P. CHEMICAL COMPANY, INC., et al., Petitioners,
v.
CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
Nos. 82-4135, 82-4136.
United States Court of Appeals,
Fifth Circuit.
July 2, 1982.

Page 256

Michael S. Marcus, Washington, D. C., Glenn M. Engelmann, William A. Porteous, III, New Orleans, La., for C. P. Chemical Co., Inc., et al.

Barry Grossman, Andrea Limmer, Dept. of Justice, Antitrust Div., Washington, D. C., for respondent in both cases.

Malcolm W. Monroe, New Orleans, La., Rogers, Hoge & Hills, New York City, Mary M. McNamara, Washington, D. C., for Formaldehyde Institute, et al.

Petitions for Review of an Order of the Consumer Product Safety Commission.

Before GEE, JOHNSON and GARWOOD, Circuit Judges.

PER CURIAM:

These cases come before us on motions to determine the proper venue for the consideration of Petitions for Review pursuant to 15 U.S.C. § 2060 of a rule promulgated under 15 U.S.C. § 2058 by the Consumer Product Safety Commission on April 12, 1982 (12:00 noon Eastern Standard Time) generally banning all urea-formaldehyde ("U.F.") foam insulation manufactured for use in residences and schools, to be published at 16 C.F.R. Part 1306. The rule applies to U.F. foam insulation manufactured for

Page 257

such uses after 130 days following publication of the rule or the day after the expiration of the period provided for consideration of congressional veto, whichever is later.

Petitions for Review of the rule in question have been timely filed, at or about the same time, in this Court and also in the United States Court of Appeals for the District of Columbia.

Section 2060 of 15 U.S.C. provides for review of Consumer Product Safety Commission rules in part as follows:

"(a) Not later than 60 days after a consumer product safety rule is promulgated by the Commission, any person adversely affected by such rule, or any consumer or consumer organization, may file a petition with the United States court of appeals for the District of Columbia or for the circuit in which such person, consumer, or organization resides or has his principal place of business for judicial review of such rule.... The record of the proceedings on which the Commission based its rule shall be filed in the court as provided for in section 2112 of Title 28.

"...

"(c) Upon the filing of the petition under subsection (a) of this section the court shall have jurisdiction to review the consumer product safety rule in accordance with chapter 7 of Title 5, and to grant appropriate relief, including interim relief, as provided in such chapter...."

Proceedings in the courts of appeals to review orders of administrative agencies or commissions are governed by 28 U.S.C. § 2112, subsection (a), which contains the following provisions:

"If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For 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."

COURSE OF PROCEEDINGS

The relevant chronology of events is as follows:

On April 12, 1982, a Petition for Review of the Commission's order was filed in this Court by The Formaldehyde Institute, Inc. ("for and on behalf of its members"), Virgil E. Stewart Jr. and William E. Nash, and was assigned this Court's docket number 82-4135. The filing stamp reflects the petition was filed at 11:00 a. m. (Central Standard Time), April 12, 1982. However, this Court's filing stamp clock does not record seconds. An unrebutted affidavit by these petitioners' counsel states that:

"As soon as the time clock stamp clicked, indicating 11:00 a. m., the clerk stamped the petition while affiant and Ms. McNamara observed affiant's watch, and affiant and Ms. McNamara determined that the stated petition was filed and stamped at one-half second after 11:00 a. m. Central Standard Time."

This petition alleges that The Formaldehyde Institute, Inc. (the "Institute") is a trade association, organized and existing under New York law with offices in New York, "comprised of 70 businesses and trade associations representing all phases of the formaldehyde industry" and that its business members include manufacturers and distributors of formaldehyde and products containing formaldehyde, some of which business members have their principal place of business in the Fifth Circuit. The petition also states that Stewart, doing business as R & S Enterprises, sells and installs U.F. foam insulation as defined in the Commission's rule, and resides and has his principal place of business in Mississippi, and that Nash is a Mississippi resident whose home is insulated with U.F. foam insulation as so defined. It is alleged that petitioners are adversely affected by the rule which, it is claimed, "will eliminate a distinct segment of the formaldehyde industry" and also

Page 258

"will severely damage the formaldehyde industry in its entirety by creating the totally unjustified apprehension among consumers that formaldehyde is a dangerous and unsafe substance regardless of application." It is further claimed that "the ban will cause significant harm to individual owners of homes in which U.F. foam insulation is installed." Petitioners challenge the rule on the grounds that the Consumer Product Safety Act (pursuant to which the Commission acted) "as applied here" deprives petitioners of property without "necessary and appropriate procedural safeguards" contrary to the due process clause of the Fifth Amendment, and that the Commission's findings in support of the rule are not supported by substantial evidence on the record taken as a whole, contrary to 15 U.S.C. § 2060(c). The relief sought is, inter alia, that the rule and its supporting findings be set aside.

Also on April 12, 1982 a Petition for Review of the rule was filed in this Court by C. P. Chemical Company, Inc. ("C. P. Chemical"), Hammersley Construction Co., Inc. ("Hammersley"), Metro Foam Insulators ("Metro") and some 41 other concerns, and was assigned this Court's docket number 82-4136. The filing stamp reflects filing at 11:00 a. m., April 12, 1982, and the above-referenced affidavit states that this petition was filed "immediately" after that in number 81-4135 and was stamped in by the clerk "not later than one second after 11:00 a. m. Central Standard Time."

It is alleged that these petitioners "are each adversely affected parties since they either manufacture, distribute or install a banned product" and that Hammersley and Metro have their principal places of business within the Fifth Circuit. The name and address of each petitioner is stated in the caption. They are not otherwise identified. An order is requested "prohibiting the Commission from disseminating false and baseless statements concerning Tripolymer 105." Other than this, there is no specific request for relief or statement of grounds for attacking the rule.

Yet a third Petition for Review of the order was filed on April 12, 1982, this by "Public Citizen" with the United States Court of Appeals for the District of Columbia, docketed as number 82-1417 in that Court. We are informed by counsel for all parties involved in these proceedings that this petition bears the official filing notation of the United States Court of Appeals for the District of Columbia reflecting a filing at ten seconds after 12:00 noon, Eastern Standard Time, on that day, and that this was in fact the time at which this petition was inserted in the filing stamp clock in the office of the clerk of that Court.

This petition, though it denominates "Public Citizen" as "petitioner," does not in any manner identify "Public Citizen," either as to whether it is an organization and if so of what nature, or by address (though the address of its counsel is given), nor does it state what interest "Public Citizen" has in the rule. There is no allegation in the petition that "Public Citizen" is a consumer or consumer organization, or that it is adversely affected by the rule or took any role in the proceedings before the Commission. It may be inferred that some complaint is made respecting the rule, but this is not expressly stated. No claimed legal or factual grounds are asserted as a basis for setting aside or modifying the Commission's actions. There is no request for relief. The petition does state: 1

"This petition is limited to (a) provisions of the regulations pertaining to 'exemptions,' (b) the provisions of the regulations delaying their effective date, (c) and the failure of the regulations to apply to certain commercial and non-residential users of urea-formaldehyde foam insulation."

Shortly after the petition was filed in our cause No. 82-4136 one of the judges of this Court denied the application of C. P. Chemical,

Page 259

et al. for a temporary restraining order and an expedited appeal.

On April 13, 1982, the petitioners, in our cause No. 82-4135, filed with this Court an affidavit as to the filing in this Court of the above-referenced petitions and a certificate reflecting service thereof on the Attorney General, the Commission and C. P. Chemical, et al.

By letter to this Court from the Commission dated May 12, 1982, we are informed that "from the information that presently is available to us, we are unable to determine the circuit in which a proceeding was first instituted, and we are filing the list of the record (but not the...

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8 practice notes
  • Terra Intern., Inc. v. Mississippi Chemical Corp., No. C 95-4088.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • April 5, 1996
    ...to determine venue in the circumstances of this case. In Formaldehyde Inst., Inc. v. United States Consumer Prod. Safety Comm'n, 681 F.2d 255 (5th Cir.1982), another case involving the same statutory first-filed rule as was applied in Mobil Oil, 28 U.S.C. § 2112(a), a statutory rule applica......
  • In re Horseshoe Entertainment, No. 02-30682.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 10, 2002
    ...to transfer venue, it can bear some weight on the venue decision. See Formaldehyde Institute, Inc. v. U.S. Consumer Product Safety Com'n, 681 F.2d 255, 262 (5th Cir.1982) (holding that attorney location was not "a significant basis for determining 5. It seems strange that although defe......
  • Mead Corp. v. Stuart Hall Co., Inc., No. C-3-86-359.
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 29, 1987
    ...filed prior to this one. Defendant has cited two cases, Formaldehyde Institute, Inc. v. United States Consumer Product Safety Commission, 681 F.2d 255 (5th Cir.1982); Southland Mower Co. v. United States Consumer Product Safety Commission, 600 F.2d 12 (5th Cir.1979), which at least implicit......
  • Gulf South Insulation v. U.S. Consumer Product Safety Com'n, Nos. 82-4218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 7, 1983
    ...was determined to be the proper venue. Consolidation here of all petitions for review was ordered. Formaldehyde Institute, Inc. v. CPSC, 681 F.2d 255 (5th In all, four petitioners take exception to the UFFI ban. In Nos. 82-4135 and 82-4218, the Formaldehyde Institute and Gulf South Insulati......
  • Request a trial to view additional results
8 cases
  • Terra Intern., Inc. v. Mississippi Chemical Corp., No. C 95-4088.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • April 5, 1996
    ...to determine venue in the circumstances of this case. In Formaldehyde Inst., Inc. v. United States Consumer Prod. Safety Comm'n, 681 F.2d 255 (5th Cir.1982), another case involving the same statutory first-filed rule as was applied in Mobil Oil, 28 U.S.C. § 2112(a), a statutory rule applica......
  • In re Horseshoe Entertainment, No. 02-30682.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 10, 2002
    ...to transfer venue, it can bear some weight on the venue decision. See Formaldehyde Institute, Inc. v. U.S. Consumer Product Safety Com'n, 681 F.2d 255, 262 (5th Cir.1982) (holding that attorney location was not "a significant basis for determining 5. It seems strange that although defendant......
  • Mead Corp. v. Stuart Hall Co., Inc., No. C-3-86-359.
    • United States
    • U.S. District Court — Southern District of Ohio
    • May 29, 1987
    ...filed prior to this one. Defendant has cited two cases, Formaldehyde Institute, Inc. v. United States Consumer Product Safety Commission, 681 F.2d 255 (5th Cir.1982); Southland Mower Co. v. United States Consumer Product Safety Commission, 600 F.2d 12 (5th Cir.1979), which at least implicit......
  • Gulf South Insulation v. U.S. Consumer Product Safety Com'n, Nos. 82-4218
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 7, 1983
    ...was determined to be the proper venue. Consolidation here of all petitions for review was ordered. Formaldehyde Institute, Inc. v. CPSC, 681 F.2d 255 (5th In all, four petitioners take exception to the UFFI ban. In Nos. 82-4135 and 82-4218, the Formaldehyde Institute and Gulf South Insulati......
  • Request a trial to view additional results

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