Marshall v. Burlington Northern, Inc., No. 75-3184

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS, KILKENNY and HUG; HUG
Citation595 F.2d 511
Parties7 O.S.H. Cas.(BNA) 1314, 1979 O.S.H.D. (CCH) P 23,563 Ray MARSHALL, Secretary of Labor, Petitioner-Appellant, v. BURLINGTON NORTHERN, INC., Respondent-Appellee.
Docket NumberNo. 75-3184
Decision Date19 April 1979

Page 511

595 F.2d 511
7 O.S.H. Cas.(BNA) 1314, 1979 O.S.H.D. (CCH) P 23,563
Ray MARSHALL, Secretary of Labor, Petitioner-Appellant,
v.
BURLINGTON NORTHERN, INC., Respondent-Appellee.
No. 75-3184.
United States Court of Appeals,
Ninth Circuit.
April 19, 1979.
As Amended July 24, 1979.

Page 512

William G. Staton (argued), Washington, D.C., for petitioner-appellant.

Stephen H. Foster (argued), Billings, Mont., for respondent-appellee.

Appeal from the United States District Court for the District of Montana.

Before CHAMBERS, KILKENNY and HUG, Circuit Judges.

HUG, Circuit Judge:

The Secretary of Labor appeals the district court's order preventing an Occupational Safety and Health Administration compliance officer from inspecting Burlington Northern, Inc.'s railroad yard facilities at Laurel, Montana. The district judge ruled that OSHA's jurisdiction did not extend to Burlington's Laurel operations because the Federal Railroad Administration (FRA) declared an intent to exercise its statutory authority in promulgating and enforcing standards affecting the occupational safety and health of Burlington's Laurel employees. We find that Burlington prematurely raised, and the district court improperly considered, the question of OSHA's jurisdiction, because the doctrine of exhaustion of administrative remedies requires that this jurisdictional dispute be initially ruled upon by the Occupational Safety and Health Review Commission. We therefore reverse and remand.

Facts

On March 11, 1975, Duane Edgar, an OSHA compliance officer, acting pursuant to § 8(a) of the Occupational Safety and Health Act, 29 U.S.C. § 657(a), conducted a safety inspection at Burlington's Laurel facilities. He found what he contended were numerous violations of various OSHA safety regulations, including those relating to noise and air pollution. Those noise and air pollution violations were referred to Bobby Glover, an OSHA industrial hygienist, who, pursuant to § 8(a), went to the Laurel operation for further inspection on April 3, 1975. Burlington denied his entry, contending that the FRA, rather than OSHA, had jurisdiction over the occupational safety and health of its employees.

As a result of Burlington's refusal to permit Glover's entry, the Secretary of Labor, on April 10, 1975, petitioned the district court for an order to compel entry. On May 13, 1975, the court denied the petition on the basis of § 4(b) (1) of the Act, 29 U.S.C. § 653(b)(1), which withdraws OSHA's jurisdiction over those safety matters regulated by other federal agencies. Specifically, the trial judge, relying on the FRA's advance notice of proposed rulemaking, 40 Fed.Reg. 10,693 (1975), found that the FRA had preempted OSHA's jurisdiction over Burlington's Laurel facilities by declaring an intent to exercise its statutory authority in establishing and enforcing standards affecting the occupational safety and health of Burlington's Laurel employees. Subsequent to the trial judge's decision, the FRA, in 43 Fed.Reg. 10,583 (1978)

Page 513

withdrew its notice of proposed rulemaking and issued a policy statement concerning the respective jurisdiction of the FRA and OSHA. At no time...

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37 practice notes
  • Shawnee Coal Co. v. Andrus, No. 80-3220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1981
    ...611 F.2d 710, 719 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978); cf. U......
  • United States v. Transocean Deepwater Drilling Inc., Civil Action No. H–11–3638.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 30, 2013
    ...(quashing an administrative subpoena because agency's investigation exceeded its jurisdiction); see also Marshall v. Burlington N., Inc., 595 F.2d 511, 513 (9th Cir.1979); Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490, 491–92 (7th Cir.1993). An administrative-enforcement pr......
  • E.E.O.C. v. Children's Hosp. Medical Center of Northern California, No. 80-4572
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 8, 1983
    ...for jurisdiction, id., or, to phrase it another way, unless jurisdiction is "plainly lacking," Marshall v. Burlington Northern, Inc., 595 F.2d 511, 513 (9th Cir.1979), the court should enforce the subpoena. In an area of the law as unsettled as that involving the preclusive effect of class ......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...court "with instructions to permit OSHA to file an ex parte petition for an inspection warrant." Marshall v. Burlington Northern, Inc., 595 F.2d 511, 514 (9th Cir. 1979). The language quoted was added after the panel denied a petition for rehearing, see Marshall v. Burlington Northern, Inc.......
  • Request a trial to view additional results
37 cases
  • Shawnee Coal Co. v. Andrus, No. 80-3220
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1981
    ...611 F.2d 710, 719 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S.Ct. 79, 66 L.Ed.2d 23 (1980); Marshall v. Burlington Northern Inc., 595 F.2d 511, 513 (9th Cir. 1979); In re Restland Memorial Park, 540 F.2d 626, 628 (3rd Cir. 1976); Casey v. FTC, 578 F.2d 793, 798 (9th Cir. 1978); cf. U......
  • United States v. Transocean Deepwater Drilling Inc., Civil Action No. H–11–3638.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 30, 2013
    ...(quashing an administrative subpoena because agency's investigation exceeded its jurisdiction); see also Marshall v. Burlington N., Inc., 595 F.2d 511, 513 (9th Cir.1979); Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490, 491–92 (7th Cir.1993). An administrative-enforcement pr......
  • E.E.O.C. v. Children's Hosp. Medical Center of Northern California, No. 80-4572
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 8, 1983
    ...for jurisdiction, id., or, to phrase it another way, unless jurisdiction is "plainly lacking," Marshall v. Burlington Northern, Inc., 595 F.2d 511, 513 (9th Cir.1979), the court should enforce the subpoena. In an area of the law as unsettled as that involving the preclusive effect of class ......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...court "with instructions to permit OSHA to file an ex parte petition for an inspection warrant." Marshall v. Burlington Northern, Inc., 595 F.2d 511, 514 (9th Cir. 1979). The language quoted was added after the panel denied a petition for rehearing, see Marshall v. Burlington Northern, Inc.......
  • Request a trial to view additional results

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