There was another running of the Federal Courthouse Sweepstakes last Monday, and the winner was the Amalgamated Clothing and Textile Workers Union by a nose.
The officially clocked time was 2 minutes, 20 seconds - probably no world record, but surely a credit to the breed.
In this highly competitive participatory sport of Washington's regulatory fraternity, anyone with loose change for a phone call or a sturdy pair of sneakers can play. The stakes can run into millions, even billions, of dollars.
The origins of this little-known but widespread exercise are murky but appear to rise out of federal laws and regulations that permit attorneys who are challenging government regulatory decisions to go shopping for a friendly appeals court.
The reason for all the rush is that the first-filed petition takes precedence over all others, giving jurisdiction to the court in which it was filed.
Hence, when a regulation is expected to be issued, each side posts people at either end, one to catch the regulation as it is promulgated and the other to file the appeal, often with a network of runners and telephone signallers to make the connection. Minutes, even seconds, can make all the difference.
The starting gate for Monday's race was the downtown Washington office of the Federal Register, where government regulations are printed. The Occupational Safety and Health Administration's Safety and Health Administration's controversial new standard limiting worker exposure to cotton dust was to be made official when it was posted there sometime early Monday.
By the time OSHA health standards director Grover Wrenn arrived at the register's office with a 10-inch-high stack of papers there were at least two people - the minimum number required for a race - lying in wait. Industry and union officials had been briefed earlier on the standard; industry thought it was too strong, labor thought it was too weak.
Wrenn was busy with his own business and didn't see the scramble but was told later by an ACTWU official that the union's courier attributed victory to a favorite brand of sneakers.
As it turned out, ACTWU hit the clerk's desk at the U.S. Court of Appeals here in 2 minutes, 20 seconds - several minutes ahead of the time it took the American Textile Manufacturers Institute, the industry group, to get the word to its representative at the 4th U.S. Circuit Court of Appeals in Richmond.
The racing methodology is treated as something of a trade secret by the players (and by some lawyers as an embarrassing indignity that is tolerated only because of its rewarding expediency), so no one is especially eager to share details.
But the modus operandi is said to include runners, hand signals, walkie-talkies and open lines from telephone booths directly to lawyers posted at the appropriate courthouses.
"The whole process is demeaning," said Alan Morrison, director of Ralph Nader's Public Citizen Litigation Group. "But you can't blame the lawyers. It happens because that's what the silly law provides. Almost anything would be better."
The situation has also aroused concern in the Justice Department, which is considering as part of an appellate court legislative package, a proposal to have a judicial panel decide which court should hear an appeal based on factors such as caseloads and geographical relevance. The panel would choose from among petitions filed within a prescribed period of time.
Under existing law, decisions by regulatory agencies can be appealed in a variety of ways, usually to the U.S. Court of Appeals in the circuit (there are 11 of them) in which an affected party lives or has a principal place of business. With industrywide regulations, the options are many.
Why one court is chosen over another is often a complicated matter involving liberal vs. conservative reputations and judicial track-records in such matters as environmental concerns, labor-management relations and deference to government decision-making. Perceived sensitivity to local values, like the textile industry in the Southeast's 4th Circuit, are also factors in the equation. One factor in ACTWU's choice of the D.C. court may have been a previous decision relevant to the union's complaint about the cotton dust standard.
Everyone has his favorite race story. James F. Foster, an OSHA information officer, recalls sitting, literally on a stack of vinyl choloride standards in 1974, awaiting simultaneous go-aheads on two telephones. When the owrd came through, a representative of the Society of the Plastics Industry, who was waiting in Foster's office, glanced at the standard, borrowed a phone, dialed a number and said one word: "Go." Within minutes, an appeal was filed in New York.
There is speculation among onlookers that some appeals are filed as a defensive ploy to keep the other side from choosing its most advantageous turf. In other words, a union with no major quarrel over a regulation may file anyway to have the industry's complaint heard in its least favorite court, or vice versa. But the record is cluttered with cases where one side won the race only to lose in court.
OSHA isn't the only regulatory agency to serve as the reluctant sponsor of such legal demolition derbies and was rather slow to enter the field. "EPA (the Environmental Protection Agency) offers some really extraordinary action," commented Wrenn.
But OSHA is coming right along. The latest improvisation is "phantom phone calls" from people who say they are with the Federal Register and would like to know when OSHA plans to drop by with a particular standard. "We call the Federal Register and they say they didn't call," said Wrenn. As a result, OSHA tends to be "rather noncommittal" in responding to such inquiries, he added.
The government may be the starter of the race but shouldn't be the "handicapper," said Wrenn, and as a result OSHA recently had to issue a regulation governing its issuance of regulations, spelling out that a standard is officially filed when it is posted at the Federal Register. People had been using speculative newspaper reports or advance briefings as the starting gun for filing appeals, gumming up the legal works across the land.
Whatever the merits of the appeal of the cotton dust standard, the score right now stands as labor 1, industry 0. For the record, the standard was posted at 11:53 a.m. at the Federal Register. ACTWU filed its appeal at the U.S. Court of Appeals here at 11:55:20 a.m. according to official records. The American Textile Manufacturers Institute plunked down its paper at noon sharp in Richmond. Only time will tell how much - if anything - that 4 minutes, 40 seconds, may have cost.