warrant was authorized under its regulations. See United States v. Caceres, supra.
3) Subject Matter Jurisdiction
In Marshall v. Gibson's Products, Inc. of Plano, 584 F.2d 668 (5th Cir. 1978) the Secretary of Labor sued to require the employer to submit to a warrantless inspection of its premises. The employer counterclaimed on the grounds that a warrantless inspection was unlawful. The court sua sponte raised the issue of subject matter jurisdiction. It held that Congress did not intend to provide jurisdiction under the Act in the federal courts to grant the injunctive relief sought and, hence, the action had to be dismissed. It distinguished Marshall v. Barlow's, supra, on the grounds that there the employer had instituted his claim as an independent action for injunctive and declaratory relief. Id. at 672, n. 5.
Although Gibson's Products specifically stated it was not ruling on whether its holding applied when a search warrant is sought, id. at 673, n. 6, I agree with respondent that the case does, in effect, hold that OSHA cannot utilize the federal courts to compel an employer to submit to an inspection. To say that a warrant may be utilized to compel entry, but not an injunction, would appear to elevate form over substance. However, I am persuaded by Judge Tuttle's dissent in Gibson's Products that if the ruling is correct it makes Marshall v. Barlow's, Inc., supra, an exercise in futility. It would also make the numerous cases which have considered the issue of how and under what circumstances OSHA may compel an inspection to be exercises in futility. And it means that Congress has passed this elaborate statutory scheme, but has not provided any enforcement mechanism to compel employers to permit inspection. I believe that the United States Court of Appeals for the Third Circuit will follow the holding in Establishment Inspection of Gilbert and Bennett Manufacturing, Marshall v. Chromalloy American Corp., 589 F.2d 1335, 1344 (7th Cir. 1979) where the court specifically declined to follow Gibson's Products and stated that Judge Tuttle's dissent expressed the "better view." With all due respect, it appears to this court that the dissent is clearly the "better view." And See Marshall v. Weyerhaeuser Company, 456 F. Supp. 474 (D.N.J.1978); Brennan v. Buckeye Industries, Inc., 374 F. Supp. 1350 (S.D.Ga.1974); Cf. Marshall v. Barlow's, Inc., supra, 436 U.S. at 317-18 n. 12, 98 S. Ct. 1816.
4) Scope and Specificity of the Warrant
I concur with respondent that this type of claim does not have to be exhausted. First, it is agreed that the Administrative Law Judge will not consider whether a United States Magistrate made a correct determination that probable cause existed and that the warrant should be as broad as permitted by the statute. Secondly, the rationales behind the exhaustion requirement, See supra, would not be satisfied by mandating exhaustion of this claim. I accept the analysis in Weyerhaeuser Company v. Marshall, 592 F.2d 373 (7th Cir. 1979). Also See Morris v. United States Dept. of Labor, 439 F. Supp. 1014 (S.D.Ill.1977), Appeal dismissed, No. 78-1051 (7th Cir. April 17, 1979); Contra, In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir. 1979).
In the area of criminal searches it is necessary that the warrant, consistent with the probable cause, describe with particularity the area to be searched and items to be seized. See United States v. Votteller, 544 F.2d 1355 (6th Cir. 1976). In the context of an OSHA inspection, there are two types of "searches." One is an administrative type, i. e. conducted pursuant to a general plan based on reasonable legislative or administrative standards. The other is based on a belief that violations exist at the particular place of business. Cf. Marshall v. Barlow's, Inc., supra. As to the latter type of inspection, the type we have here, the court has been able to discover only three cases which have specifically considered the scope issue.
See Whittaker Corp. v. OSHA, Civ. No. 77-730 (M.D.Pa. Mar. 7, 1978), Appeal dismissed, 594 F.2d 855 (3rd Cir. 1979) (probable cause to believe that a crane at the BFF plant represented a safety hazard; warrant limited in scope to an inspection of the crane); Marshall v. Silberline Manufacturing Co., Inc., Misc. No. 77-24 (M.D.Pa. Oct. 20, 1977) (fire and explosion at the factory had resulted in employee injuries; incompatible with enforcement of safety and health regulations to limit the scope of the inspection); Dravo v. Marshall, Civ. No. 77-284 (W.D.Pa. April 5, 1977), aff'd by judgment order, 578 F.2d 1373 (3rd Cir. 1978) (probable cause based on numerous employee complaints; inappropriate to limit the scope).
The court is of the opinion that limiting the scope of an administrative inspection would, in certain situations, be appropriate. Cf. Marshall v. Barlow's, Inc., supra. However, I do not believe that this case represents such a situation. As stated, there were approximately one hundred seventy (170) suspected infractions cited plus a history of problems and violations. Even assuming the specific alleged violations referred to only 15% Of the working area of the plant, or over three hundred thousand square feet, that is more than sufficient to permit an inspection as broad as that which is contemplated by the Act. To have limited the scope here I believe would have been clearly inappropriate and inconsistent with the avowed purposes of the Act.
In conclusion, I do not believe that respondent has approached meeting its burden that it has a substantial likelihood of succeeding on the merits of its appeal. That, coupled with the court's assessment of the equities here, See supra, compels that its motion be denied.