Judge Costa describes the issue in this case well:

The Secretary of Labor issued Wynnewood Refining multiple citations alleging safety violations at its Oklahoma refinery. Wynnewood contested the citations and achieved partial success before he agency. "This mixed result prompted both the Secretary and Wynnewood to seek judicial review." The Secretary appealed to the Tenth Circuit, which is an appropriate venue because the alleged violations occurred in Oklahoma. 29 U.S.C. § 660(a). Wynnewood appealed to the Fifth Circuit, which is also an appropriate venue because the company's headquarters are in Texas. Id. What to do?

Where, as here, multiple appeals challenging the same ruling are filed in multiple circuits and none is filed withing ten days of the challenged agency action, the Commission "shall file the record in the court in which proceedings with respect to the order were first instituted." 28 U.S.C. § 2112(a)(1). Once the agency properly files the record, all courts other than the one in which the record is filed must transfer those proceedings to the court in which the agency filed the record.

In this case, the Secretary was the first to file, but only by about two and a half hours. That may seem like a close call until you find out that the Court has applied the "first-to-file rule" to decide between two petitions filed within ten seconds of each other. Formaldehyde Inst., Inc. v. U.S. Consumer Prod. Safety Comm’n, 681 F.2d 255, 261-62 (5th Cir. 1982) (awarding venue to the petition filed ten seconds earlier). Anyway, if the Commission had just filed the record in the Tenth Circuit as the statute required, this would be an easy case. Instead, however, the Commission filed the record in both circuits and--get this--its Fifth Circuit filing was time stamped by the Clerk before its Tenth Circuit filing.

Wynnewood argued that the Fifth Circuit should hear the appeal because "the duty of determining who was first to file falls, under the express provisions of 28 U.S.C. § 2112(a), upon the agency whose proceedings are under review." (quoting United Steelworkers of Am., AFL-CIO CLC v. Marshall, 592 F.2d 693, 696 (3d Cir. 1979)). The Court disagreed. The problem with Wynnewood's argument, it explained, was that "letting the agency decide the forum would be at odds with the statute's text, which states that the Commission 'shall file the record in the court in which proceedings . . . were first instituted.'" (quoting 28 U.S.C. § 2112(a) (emph. added)). The Commission's conduct can't trump that statutory command. For that reason, the Court granted the Secretary's motion to transfer the appeal to the Tenth Circuit.

Wynnewood Refining Co., L.L.C. v. Occupational Safety and Health Review Commission, No. 19-60357 (5th Cir. Aug. 8, 2019)
Share this