WYNNEWOOD REFINING COMPANY, L.L.C., and its successors, Petitioner
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION; PATRICK PIZZELLA, ACTING SECRETARY, DEPARTMENT OF LABOR, Respondents
Petition for Review of an Order of the Occupational Safety
and Health Review Commission
SMITH, COSTA, and HO, Circuit Judges.
COSTA, CIRCUIT JUDGE
of some agency rulings must be filed in only one court of
appeals, often the D.C. Circuit. See, e.g., 47
U.S.C. § 402(b) (restricting venue for appeals from
certain FCC decisions to the D.C. Circuit). But sometimes a
party appealing an agency ruling has multiple circuits to
choose from. That is the case for decisions of the
Occupational Safety and Health Review Commission, which may
be challenged in the circuit where the alleged safety
violations occurred, where the employer has its principal
office, or in the D.C. Circuit. 29 U.S.C. § 660(a);
see also 29 U.S.C. § 160(f) (providing similar
venue options for appeals of National Labor Relations Board
decisions). What happens when different parties appeal the
same Commission ruling in different circuits? Because the
employer filed this appeal in the Fifth Circuit while the
Secretary of Labor appealed the same agency ruling in the
Tenth Circuit, we must answer that question.
Secretary of Labor issued Wynnewood Refining multiple
citations alleging safety violations at its Oklahoma
refinery. Wynnewood contested the citations. It achieved
partial success before the agency. The Commission modified
five violations by recharacterizing them as less severe than
the Secretary alleged.
mixed result prompted both the Secretary and Wynnewood to
seek judicial review. The Secretary appealed to the Tenth
Circuit, where venue is proper because the alleged violations
occurred in Oklahoma. 29 U.S.C. § 660(a); see also
id. § 660(b) (allowing the Secretary of Labor to
petition for review of Commission decisions). Wynnewood
appealed to the Fifth Circuit, where venue is also proper
because the company's headquarters are in Texas.
Id. § 660(a).
set rules for resolving this problem of multiple appeals in
multiple circuits. 28 U.S.C. § 2112(a)(1); see
generally 16 Charles Alan Wright et al., Fed. Prac.
& Proc. § 3944 (3d ed.) (chronicling the history of
this statute). When, as in this case, none of those petitions
is filed within ten days of the challenged agency decision,
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 where a petition for review
was first filed, "[a]ll courts . . ., other than the
court in which the record is filed pursuant to [section
2112], shall transfer those proceedings to the court in which
the record is so filed." Id. § 2112(a)(5).
Secretary's Tenth Circuit appeal was filed first. It was
filed at 12:33 p.m. on May 24th. Wynnewood filed its appeal
in this court the same day, but not until 3:09 p.m. according
to a Clerk's Office receipt. "When one party
succeeds in obtaining an earlier time stamp from the Clerk of
one court the agency under review must file [the
administrative record] there." Southland Mower Co.
v. U.S. Consumer Prod. Safety Comm'n, 600 F.2d 12,
14 (5th Cir. 1979) (quotation omitted). The first-to-file
rule governs even for petitions filed on the same day;
indeed, we have applied it even when petitions were filed
within a minute of each other. Id. (applying
first-to-file rule when one petition "was time stamped
one minute before" the 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). So under the first-to-file rule,
the Commission should have filed the record in the Tenth
wrinkle is that the Commission filed the record in both
circuits and filed it first in the Fifth Circuit. Wynnewood
argues this means we should hear the appeal because
"[t]he 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."
United Steelworkers of Am., AFL-CIO CLC v. Marshall,
592 F.2d 693, 696 (3d Cir. 1979). But 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." 28 U.S.C. § 2112(a)(1) (emphasis
added); see also Southland Mower, 600 F.2d at 14
(holding that the agency "must file" the record
where an appeal was first filed). An agency's conduct
cannot override this statutory command that the appeal be
heard in the circuit where the petition for review was first
filed. Indeed, the statutory first-to-file rule replaced the
agency-picks-the-forum rule Wynnewood wants. Prior to the
1958 enactment of section 2112, an agency, "in choosing
the court in which to file the record, determined the
tribunal which would hear the case." Ball v.
N.L.R.B., 299 F.2d 683, 685 (4th Cir. 1962); see
also Eastern Air Lines, Inc. v. Civil Aeronautics Bd.,
354 F.2d 507, 511 (D.C. Cir. 1965) (recognizing that section
2112 departed from the rule that an agency could choose
"the forum by filing the record in the court of its
selection"). The different rule Congress adopted
requires that the appeal of this Commission ruling be heard
in the circuit where the first appeal was filed.
statute's first-to-file rule also defeats Wynnewood's
argument that the filing of the record creates
"exclusive" jurisdiction in the court that receives
it. See 29 U.S.C. § 660(a). The statute does
state that, "[u]pon filing of the record with it, the
jurisdiction of the court shall be exclusive."
Id. But that same subsection directs the Commission
to follow section 2112, which requires it to file the record
where an appeal was "first instituted." 28 U.S.C.
§ 2112(a)(1). As we have said, an agency cannot subvert
the congressional directive to file the record in the circuit
where a party first appealed.
therefore GRANT the Secretary's motion to transfer this
appeal to the Tenth Circuit. Any motion to transfer the
appeal on convenience grounds, see 28 U.S.C. §
2112(a)(5), will be decided in that circuit.
 When multiple appeals are filed within
ten days of the agency decision, the first-to-file rule does
not apply. 28 U.S.C. § 2112(a)(1). In that situation,
the Judicial Panel on Multidistrict Litigation randomly
selects one court of appeals to hear all of the petitions for
review. Id. § 2112(a)(3); see also
Wright, Fed. Prac. & Proc. § 3944 (noting that
although "[t]he 'first to file' rule was
[partially] superseded" by a 1988 amendment, "[t]he
new system explicitly ...