Sun Refining & Marketing Co. v. Brennan

• Decision Date: 11 February 1991
• Docket Number: Nos. 88-3858,88-3927,s. 88-3858
• Parties: 14 O.S.H. Cas.(BNA) 1941 SUN REFINING & MARKETING COMPANY, Plaintiff-Appellee, Cross-Appellant, v. Joseph E. BRENNAN, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 635

921 F.2d 635

14 O.S.H. Cas.(BNA) 1941

SUN REFINING & MARKETING COMPANY, Plaintiff-Appellee, Cross-Appellant, v. Joseph E. BRENNAN, Defendant-Appellant, Cross-Appellee.

Nos. 88-3858, 88-3927.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 10, 1990.

Decided Dec. 13, 1990.

Rehearing and Rehearing En Banc

Denied Feb. 11, 1991.

Susan B. Nelson, James R. Jeffery, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, Stanley L. Arabis (argued), Laura Grossi-Tyson, Sun Refining & Marketing Co., Radnor, Pa., for plaintiff-appellee, cross-appellant.

Cordelia A. Glenn, Asst. Atty. Gen., Raul Rosado, Jr. (argued), Office of the Atty. Gen. of Ohio, Columbus, Ohio, for defendant-appellant, cross-appellee.

Before JONES and NORRIS, Circuit Judges, and JARVIS, District Judge. ^*

JARVIS, District Judge.

In this declaratory judgment action brought pursuant to 28 U.S.C. Sec. 2201, plaintiff, Sun Refining & Marketing Company ("Sun"), asked the district court to declare that its unfired pressure vessels are subject to the exclusive jurisdiction of the Occupational Safety and Health Administration ("OSHA"), and that the State of Ohio, represented by defendant Brennan, does not have jurisdiction over those vessels. Based upon stipulated facts, the district court ruled that Ohio law and standards governing the design, construction, operation, repair, and alteration of plaintiff's vessels are preempted by federal law and permanently enjoined defendant from enforcing the state standards.

The parties have now filed cross-appeals. Sun contends that the district court erred in dismissing two state law counts in its complaint based upon the Eleventh Amendment. Brennan contends that the district court erred in not abstaining in this case and in finding that federal law pre-empted the state from regulating in the area of unfired pressure vessels. Since we find that the district court was required to abstain in this case under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), we need not and do not reach the Eleventh Amendment and federal pre-emption issues.

I.

The relevant facts are not in dispute. Sun is engaged in the refining and marketing of petroleum products and has a refinery in Toledo, Ohio utilizing unfired pressure vessels known as reactors to produce a high octane gasoline additive. The reactor consists of an inner shell, a refactory liner, and an outer shell. The outer shell is painted with a heat-sensitive paint which discolors when the temperature of the outer shell exceeds a certain level.

On May 21, 1984, a striking Sun employee lodged a complaint that a "hot spot" existed on the shell of one of plaintiff's unfired pressure vessels. OSHA, as a result of the complaint, began an investigation, and on May 23, 1984, an OSHA Compliance Safety and Health Officer conducted an on-site investigation. The officer inspected the vessel and its external cooling system and, after conferring with industry experts, concluded that the vessel was safe and that there were no OSHA violations. On August 16, 1984, upon review of the case by the OSHA Area Director, the investigation was closed.

The vessel, nonetheless, was inspected on two additional occasions by OSHA. On the third inspection, OSHA contacted the Ohio Division of Boiler Inspection. As requested, the OSHA officer was accompanied by Ohio boiler inspectors who acted as consultants during the third inspection.

On October 9, 1984, representatives of the Ohio Division of Boiler Inspection met to discuss the boiler inspectors' observations of the reactor's "hot spot". Thereafter, on two additional occasions, the Ohio Division of Boiler Inspection independently inspected the vessel. After the first independent inspection, the Division of Boiler Inspection prepared a report of Ohio Code violations for the subject vessel. On October 12, 1984, after completing the second inspection and concluding that the vessel was unsafe, it was "red-tagged" and ordered shut-down. Sun complied with the shut-down order.

II.

After the red-tagging, Sun immediately filed an expedited administrative appeal of Brennan's order with the Board of Building Appeals ("Board"). A hearing was held on October 18, 1984, and the following day the Board issued its ruling on the shut-down order. Specifically, the Board found:

Given the evidence, the unit was operated with a hot spot exceeding the certified 350 degree outside skin temperature, we find that according to Article III of NBIC there was an automatic "re-rating" also defined as an alteration.... This automatically requires inspections and recertification by Ohio in order to become a legal pressure vessel. Therefore, the pressure vessel was being illegally operated.

Complaint, Exhibit D.

On November 9, 1984, Sun, as permitted by Ohio Rev.Code Ann. Sec. 119.12 (Page's 1987) ¹, filed a notice of appeal of the Board's decision in the Court of Common Pleas of Lucas County, a state trial court. In the proceeding before the state trial court, Sun contended that it was exempted from inspection under state law, or in the alternative, that the state was precluded from inspection because of pre-emption by the OSH Act. Sun also raised an argument that the administrative agency failed to send by certified mail a certified copy of its decision to Sun as required by Ohio Rev.Code Sec. 119.09 (Page's 1987) ². Brennan argued that Sun had failed to serve a copy of the notice of appeal on the Board within the fifteen-day period provided for in Ohio Rev.Code Sec. 119.12.

The trial court decided that neither party was prejudiced by any procedural irregularities and decided the case on the merits. The trial court, in a written opinion, discussed and rejected Sun's pre-emption claim and upheld the administrative decision.

Sun appealed the trial court decision to the Court of Appeals of Ohio. The state appellate court raised the jurisdictional issues sua sponte, and found that procedural irregularities deprived the trial court of jurisdiction. Accordingly, the decision of the common pleas court was reversed.

Sun then filed a notice of appeal to the Supreme Court of Ohio. Shortly thereafter, on October 8, 1986, Sun filed the instant action for declaratory and injunctive relief in the United States District Court for the Northern District of Ohio.

On July 29, 1987, the Ohio Supreme Court reversed the decision of the state appellate court. In a reported opinion the Ohio Supreme Court found that the fifteen-day appeal period contained in Ohio Rev.Code Sec. 119.12 does not begin to run until the agency whose order is being appealed fully complies with the procedural requirements of Ohio Rev.Code Sec. 119.09. Sun Refining & Marketing Company v. Brennan, 31 Ohio St.3d 306, 511 N.E.2d 112 (1987). The Court also noted: "When the Board complies with R.C. 119.09 and sends Sun a certified copy of its decision by certified mail, return receipt requested, Sun may file a new notice of appeal within fifteen days after the date of mailing of the Board's decision pursuant to R.C. 119.12." Id. 511 N.E.2d at 115, n. 2.

Following the Supreme Court's order, the Board served its decision upon Sun on September 2, 1987. By letter dated September 24, 1987, Sun informed the State that it would not appeal the Board's decision, but would seek relief in federal court.

III.

Initially, we address a preliminary issue raised by Sun in its response to Brennan's abstention argument. Sun contends that both when the initial order of the Board was issued and later when it was reissued, those orders were addressed to "James M. Sciarini, Attorney for Sun Oil Company, Woodville Road, Oregon, Ohio address." Sun also notes that the formal citation utilized by Brennan to start the administrative process was issued to "Sun Oil of Toledo." Sun's proper name is the "Sun Refining & Marketing Company." Based on these misnomers, Sun contends that there is no state proceeding properly against it upon which the district court could have abstained. Sun apparently filed no objection to the misnomer at any time in the state court proceedings. Nor is the issue mentioned by the district court in this case. Although Sun mentions in its memorandum in opposition to the motion for judgment on the pleadings that this second service was defective, it did not indicate how and apparently did not make to the district court the argument that it makes now to us. Since the question was not raised in the district court, it cannot be raised here. Bannert v. American Can Company, 525 F.2d 104, 111 (6th Cir.1975), cert. denied, 426 U.S. 942, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). Nor does Sun claim any prejudice that it has suffered as a result. We believe that Sun has long ago waived any objection it had to being misnamed by the defendant.

IV.

The United States Supreme Court has emphasized on numerous occasions that abstention from jurisdiction is the exception, not the rule, and that federal courts have a "virtually unflagging obligation to exercise the jurisdiction given them." Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Nevertheless, there are a few, often indistinct, classes of cases in which a federal court should decline to exercise that jurisdiction. Among the classes of cases in which abstention is required is that represented by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. The Younger doctrine, in its original form, maintained that federal court abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings. Id.

At the heart of the Younger doctrine are notions of comity and deference to state courts necessitated by our federal system. The Court explained:

This underlying reason for restraining courts of equity...