Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105.
Accordingly, the Secretary's motion to dismiss will be granted.
The dispute between the parties in this case stems from Sysco's
dissatisfaction with the Occupational Safety and Health Administration's
("OSHA") handling of discrimination complaints filed against Sysco by
Sysco employees. Sysco operates a distribution facility in Jessup,
Maryland, from which it distributes food and food service products to
hospitals, nursing homes, restaurants, schools, and other facilities.
Nine of Sysco's truck-driver employees filed complaints with OSHA on
October 6, 2000, alleging that they had suffered discrimination in
violation of the STAA. In the current lawsuit, Sysco complains that the
Secretary of Labor has failed to issue initial findings within 60 days of
receiving the complaints, a duty prescribed by the STAA,
49 U.S.C. § 31105 (b)(2)(A). Sysco's amended complaint claims that
the Secretary's delay has "improperly prolonged the governments
interference with Sysco's business operations and its relationships with
On October 5, 2001, the Secretary moved to dismiss the amended
complaint. The basis of their motion was that Sysco lacked standing to
bring the complaint, as there had been no legally cognizable injury
suffered as a result of the Secretary's delay in issuing findings.
Additionally, the defendants claimed in a footnote that only United
States Courts of Appeal have jurisdiction to review claims of agency
inaction, and therefore that this court lacks jurisdiction over Sysco's
Since the initial submissions by the parties on the jurisdictional
dispute, the Secretary has issued preliminary findings for several of the
complaints against Sysco. In a supplemental submission, the defendants
added mootness to the proffered list of reasons to dismiss Sysco's
The STAA Procedure
To place this dispute in context, a brief description of the relevant
provisions of the STAA will be helpful. Section 31105 prohibits an
employer from subjecting an employee to discrimination, discipline, or
discharge when the employee refuses to operate a vehicle under certain
conditions. § 31105(a)(1)(B). An employee may file a complaint with
the Secretary of Labor when he believes that the employer has violated
that prohibition. § 31105(b)(1). The Secretary is then to conduct an
investigation, decide if there are reasonable grounds to believe the
complaint is meritorious, and issue findings and a preliminary order, in
which the employer may be ordered to reinstate the complainant and
compensate the complainant for back pay. § 31105(b)(2)(A), (3)(A). If
either party files objections to the preliminary order and requests a
hearing, a hearing will be held and the Secretary will issue a final
order. § 31105(b)(2)(C). A party adversely affected by that final
order may file a petition for review in a court of appeals. §
31105(c). In sum, then, there are three basic procedural steps inherent
in the STAA complaint process: (1) consideration of the initial
complaint, which culminates in a preliminary order; (2) a challenge to
the preliminary order that will result in a final order; and (3) review
of the final order in a court of appeals. When Sysco originally filed its
complaint in this court, the underlying complaints against Sysco were in
the first procedural stage contemplated by the STAA.
This Court's Jurisdiction
Issues of standing and mootness aside, this court is concerned about
the threshold matter of whether the STAA precludes this court from
assuming jurisdiction over unreasonable-delay claims in
the first place. The D.C. Circuit has held that, when a statute provides
that the power to review final agency action rests with a court of
appeals, the appellate court also has exclusive jurisdiction to resolve
claims of unreasonable delay. Telecomms. Research & Action Ctr.
[TRAC] v. FCC, 750 F.2d 70, 76-77 (D.C.Cir. 1984). The TRAC court was
evaluating a statute that governed the FCC ratemaking process. Id. at
73. In that case, as here, review over final agency orders was vested in
the Court of Appeals by statute. Id. at 75. TRAC sought a writ of
mandamus to compel the FCC to determine whether AT & T must reimburse
ratepayers for allegedly unlawful overcharges. Id. at 72. Although no
final order had been issued by the agency (that, in fact, was the
problem), the D.C. Circuit nonetheless found that it had jurisdiction to
decide the case. The court reasoned that an agency might defeat the
statutory obligation of an appellate court to review the merits of final
orders simply by failing to resolve disputes. Id. at 76. In reliance upon
the All Writs Act's provision that federal courts "may issue all writs
necessary or appropriate in aid of their respective jurisdictions,"
28 U.S.C. § 1651 (a), the court determined that a court of appeals
must be able to resolve claims of unreasonable agency delay to protect
the court's future jurisdiction. TRAC, 750 F.2d at 76. The TRAC court
went on to conclude that its jurisdiction over claims of unreasonable
delay was exclusive. The court reasoned:
By lodging review of agency action in the Court of
Appeals, Congress manifested an intent that the
appellate court exercise sole jurisdiction over the
class of claims covered by the statutory grant of
review power. It would be anomalous to hold that this
grant of authority only strips the District Court of
general federal question jurisdiction under
28 U.S.C. § 1331 when the Circuit Court has
present jurisdiction under a special review statute,
but not when the Circuit Court has immediate
jurisdiction under the All Writs Act in aid of its
future statutory review power.
Id. at 77.
The Third Circuit has adopted reasoning similar to that of the TRAC
decision and held that "where administrative enabling statutes . . .
grant exclusive jurisdiction to a particular court to review past actions
of an agency, that court necessarily has the exclusive jurisdiction to
review inaction as well." Oil, Chem. & Atomic Workers Union [OCAWU]
v. OSHA, 145 F.3d 120, 123 (3d Cir. 1998) (citing TRAC). The Occupational
Safety and Health Act at issue in the Third Circuit case, like the
statute at issue here and in TRAC, provided that final agency action was
subject to review in the courts of appeals. Id. at 122.
Given the reasoning of the TRAC and OCAWU courts, this court finds that
it does not have jurisdiction to consider the merits of Sysco's claims.
As discussed above, the STAA provides that orders issued after a hearing
are to be reviewed by a court of appeals. 49 U.S.C. § 31105 (c).
Claims of unreasonable agency delay in issuing orders, as explained by
the D.C. and Third Circuits, are properly brought in the appellate
Sysco attempts to differentiate its circumstances from those present in
the TRAC and OCAWU fact scenarios. It concedes that "a case involving the
failure to issue a final order after a hearing arguably may be reviewable
only by a court of appeals," but insists that the fact that Sysco is
challenging the Secretary's failure to issue preliminary findings rather
than a final order salvages this court's jurisdiction. In other words, in
terms of the STAA procedural framework described supra, Sysco argues that
this court has jurisdiction to consider delays at stage 1 (during the
pendency of the preliminary
order), even if it has no jurisdiction at stage 2 (during the pendency of
the final order). This court respectfully disagrees. Just as an agency
might defeat the statutory obligation of an appellate court to review the
merits of final orders by failing to issue a final order, so too might an
agency defeat an appellate court's jurisdiction by shirking its
antecedent duty to issue a preliminary order. Under § 31105, the
preliminary order is merely a constituent step in the process of arriving
at a final agency action. Therefore, under the All Writs Act, a court of
appeals may protect its jurisdiction by policing the Secretary's actions
in issuing both preliminary and final orders, both of which are
prerequisites for eventual judicial review. Sysco's attempt to
differentiate between the court of appeals's ability to review delay at
different stages of the process cuts against the thrust of the Third
Circuit's OCAWU opinion and Congress's decision to vest review of agency
action under § 31105 in the courts of appeals.
Because, in the case at bar, exclusive jurisdiction to review the delay
which plaintiff attributes to the Secretary of Labor rests not with this
court but with the Third Circuit, this court must dismiss Sysco's
complaint. An appropriate order follows.
For the reasons stated in the accompanying Opinion, Secretary's Motion
to Dismiss Plaintiff's First Amended Complaint is GRANTED.
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