Eastern Bridge v . Elaine Chao CV-02-158-B 06/14/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eastern Bridge LLC et al.

v. Civil N o . 02-158-B Opinion No.

Elaine L. Chao et a l .

MEMORANDUM AND ORDER

On April 4 , 2002, plaintiffs (who are New Hampshire

corporations) filed this action for declaratory and injunctive

relief against the United States Secretary of Labor and the

Assistant Secretary of Labor for the Occupational Safety and

Health Administration (“OSHA”). As presently pleaded, the action

seeks to enjoin defendants from mandating that plaintiffs

complete a Data Collection Initiative survey during the present

calendar year and from making use of data plaintiffs submitted to

defendants in surveys issued and responded to in prior calendar

years going back to 1998. Plaintiffs complain that, because the

surveys in question required (and require) plaintiffs to report

certain pre-2002 employment information that they were not

separately obliged by regulation to create and maintain until January 2002, 1 OSHA’s mandate is beyond the warrant o f , and thus

violative o f , the Occupational Safety and Health Act (“OSH Act”),

et seq.; the Administrative Procedures Act

(“APA”),

et seq.; and the Fourth Amendment.

Defendants have moved to dismiss this case for lack of

subject matter jurisdiction under the doctrines applied in

Thunder Basin Coal Co. v . Reich,

(1994)

(holding that the comprehensive review process set forth in the

Mine Safety and Health Amendments Act (“MSH Act”) for resolving

disputes involving applications of the MSH Act and the standards

and regulations it authorizes precludes district courts from

exercising subject matter jurisdiction over claims that can be

resolved within that process) (“Thunder Basin doctrine”) and

Northeast Erectors Ass’n of the BTEA v . Secretary of Labor,

7 , 39-41 (1st Cir. 1995) (applying the Thunder Basin

doctrine to a suit seeking to enjoin OSHA from enforcing certain

1 Prior to January 1 , 2002 (and at all relevant times for purposes of this lawsuit),

required employers to complete and return the surveys without explicitly and separately obliging employers to create and maintain the underlying data to be reported on the survey. Effective January 2002, part 1904 was significantly revised so as to explicitly require the creation and maintenance of the data to be reported. See

(2002).

-2- regulations authorized under the OSH Act because the OSH Act

review process is “nearly identical” to the review process set

forth in the MSH A c t ) ; see also Sturm, Ruger & Co., Inc. v . OSHA,

3 , 64 (1st Cir. 1999) (reaffirming the presumptive

priority of the OSH Act’s administrative process for claims that

can be adjudicated within that process); United States v . Sturm,

Ruger & Co., Inc.,

, 4-6 (1st Cir. 1996) (similar). At

the May 2 0 , 2002 hearing where I denied plaintiffs’ motion for a

preliminary injunction, I orally stated and explained my

inclination to accept defendants’ jurisdictional argument and to

grant the motion to dismiss. This memorandum and order confirms

that I will grant defendants’ motion on the basis of the Thunder

Basin doctrine, as applied in Northeast Erectors.

After noting that the OSH Act expressly authorizes the

bringing of original actions in the United States District Court

in only a few, non-applicable (in Northeast Erectors and here)

situations, see

9 , Northeast Erectors applied the

Thunder Basin doctrine to a “pre-enforcement” action seeking to

enjoin OSHA from enforcing certain regulations promulgated under

the OSH Act,

at 4 0 . In doing s o , the Northeast Erectors

panel made clear its view of congressional intent with respect to

-3- the administrative process mandated by the OSH Act: that claims

which can be addressed within the OSH Act’s “detailed

administrative procedure” be addressed within that milieu and not

in an injunctive proceeding brought in this court. See

I

am, of course, duty-bound to apply Northeast Erectors2 unless

plaintiffs persuade me that this case does not fall within the

scope of its reasoning. I turn now to their contentions.

Plaintiffs primary line of argument is that this is not a

pre-enforcement challenge to an OSHA regulation; it “is a

challenge to an agency survey – the conduct of the agency not the

conduct of the persons regulated – in which the plaintiff[s]

argue[] the agency is acting beyond the authority granted it by

2 For this reason, I am precluded from considering whether Chamber of Commerce v. United States Dep’t of Labor,

(D.C. Cir. 1999) and Workplace Health & Safety Council v . Reich,

(D.C. Cir. 1995) have implicitly rejected the reasoning of Northeast Erectors with respect to whether and how the Thunder Basin doctrine applies within the context of pre-enforcement challenges to OSHA regulations brought under the APA but capable of being addressed within the administrative process contemplated by the OSH Act. In any event, I agree with Judge Huvelle that the D.C. Circuit has not in these two cases rejected the reasoning of Northeast Erectors. See Sturm, Ruger & Co., Inc. v . Herman,

, 219 n.4 (D.D.C. 2001); but see Nat’l Mining Assoc. v. Chao,

7 , 55-56 & n.6 (D.D.C. 2001) (seemingly regarding the D.C. Circuit and the First Circuit as disagreeing on this issue), appeal pending N o . 01-5278 (D.C. Cir.).

-4- Congress and without statutory or regulatory authority.”

Memorandum in Opposition to Defendants’ Motion to Dismiss and for

Judgment on the Pleadings at 23-24. Plaintiffs also cite Lepre

v . Dep’t of Labor,

9 , 72 (D.C. Cir. 2001), in support

of the proposition that there is a “strong presumption that

Congress intends judicial review of administrative action . . .,

which may be overcome only upon a showing of clear and convincing

evidence of a contrary legislative intent.” (discussing, inter

alia, Leedom v . Kyne,

(1958)) (other citations and

internal quotation marks omitted).

But semantics aside, this lawsuit is properly regarded as a

pre-enforcement challenge to the prospective application a

regulation which is asserted to be ultra vires –

– and for which there is judicial review in the court of

appeals at the conclusion of the administrative proceedings. As

discussed at the May 2 0 , 2002 hearing, plaintiffs may decline to

complete the survey and then, should they be cited for doing s o ,

press their ultra vires challenge to the lawfulness of the

regulation as a defense in the administrative process. So too

may plaintiffs obtain court review of their ultra vires argument

by appealing any adverse administrative determination to the

-5- court of appeals in accordance with the provisions of the OSH

Act.

Plaintiffs also contend that a merits review of their ultra

vires argument is effectively unavailable either because OSHA

will seek to avoid such review by not citing them or because

defendants will contend that plaintiffs have, by completing and

returning surveys in prior years, forfeited their rights to

contest the lawfulness of

in any future

agency adjudication. The short answer to this line of argument

i s , as discussed at the May 2 0 , 2002 hearing, that (1) plaintiffs

will have nothing to complain about if they decline to answer

this year’s survey and are not cited, and (2) saying that there

may not be a merits determination because of plaintiffs’

forfeiture is not the same thing as saying that a merits

determination is unavailable within the administrative-

proceedings-followed-by-judicial-review process prescribed by the

OSH Act. See Sturm, Ruger, & Co.,

(rejecting this argument in the course of concluding that the

court lacked subject matter jurisdiction over a complaint

containing the same allegations made in this case).

As I stated at the May 2 0 , 2002 hearing, I do not foreclose

-6- the possibility that there might be subject matter jurisdiction

in this court to entertain a pre-enforcement challenge to

prospective and allegedly ultra vires OSHA conduct not subject to

challenge in the administrative process and/or for which post-

enforcement court review is not practically available. But this

is not such a case. Accordingly, and for the reasons set forth

herein and at the May 2 0 , 2002 hearing, I grant defendants’

motion to dismiss for lack of subject matter jurisdiction

[document n o . 12] and deny all other pending motions as moot.

The Clerk is directed to enter judgment accordingly and to close

the case.

SO ORDERED.

Paul Barbadoro Chief Judge

June 1 4 , 2002

cc: Richard D. Wayne, Esq. Gretchen Leah Witt, Esq.

-7-