Trinity Industries Inc. v. Occupational Safety & Health Review Commission ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2004
Charles R. Fulbruge III
No. 03-60511 Clerk
TRINITY INDUSTRIES INC.,
Petitioner-Cross-Respondent,
versus
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION;
Respondent
ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,
Respondent-Cross-Petitioner.
Petition for Review from the
Occupational Safety and Health Review Commission
(95-1597)
ON PETITION FOR REHEARING
Before SMITH, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that the petition for rehearing is DENIED.
Petitioner complains of the panel’s failure to address the due
process argument that petitioner raised in its initial brief, i.e.,
whether petitioner received fair notice of the conduct that 29
C.F.R. § 1915.14(a)(1)(i) required.
The panel did not address that argument because petitioner
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
failed to preserve it for appeal. “As a general rule, in
considering a petition for review from a final agency order, the
courts will not consider questions of law which were neither
presented to nor passed on by the agency.”1 As the agency itself
could have vacated the citation,2 we hold that petitioner failed to
preserve this issue for appeal by not presenting it first to the
agency.3 We also hold that there are no exceptional circumstances
present that would justify our waiving the administrative
exhaustion rule.4
1
Myron v. Martin, 670 F.2d 49, 51 (5th Cir. 1982); see also
Nebraska v. EPA, 331 F.3d 995, 997-98 (D.C. Cir. 2003) (noting that
petitioners had failed to preserve constitutional challenge to
agency regulation for appeal when they failed to raise it before
agency); Bass v. United States Dep’t of Agric., 211 F.3d 959, 964
(5th Cir. 2000) (quoting Myron).
2
See, e.g., Dole v. East Penn Mfg. Co., Inc., 894 F.2d 640,
644-45 (3d Cir. 1990) (noting that agency had vacated citation when
respondent raised “fair notice” issue before it).
3
See Bass, 211 F.3d at 964; see also United States v.
Nyemaster, 116 F.3d 827, 830 (9th Cir. 1997) (refusing to address
claim that federal regulation did not provide defendant with “fair
notice” because defendant raised it for the first time on appeal);
United States v. O’Hagan, 139 F.3d 641, 649-50 (8th Cir. 1998)
(refusing to address “fair notice” claim because defendant failed
to raise claim before district court or in initial brief to court
of appeals).
4
See Board of Pub. Instruction v. Finch, 414 F.2d 1068, 1072-
73 (5th Cir. 1969) (listing exceptional circumstances).
2