The opinion of the court was delivered by: NEALON
On October 18, 1978, after a hearing, this court held respondent/defendant (respondent) in civil contempt for failure to comply with a warrant of inspection issued by United States Magistrate Raymond J. Durkin. It was also ordered that respondent, in order to purge itself of the contempt, permit the inspection of the Berwick Forge and Fabricating Co. by agents of the Occupational Safety and Health Administration (OSHA). At the same time the court denied respondent's motion to quash the warrant. The inspection has now been completed and OSHA has issued citations and proposed penalties against respondent. The Oct. 18th rulings are currently being appealed by respondent. Presently before the court is a motion for a stay or injunction pending appeal, i. e., respondent wishes this court to enjoin any further action by OSHA based on the inspection, pending the appeal. For the reasons set forth below, the motion will be denied.
On October 10, 1978 Leo Carey, area director of the Wilkes-Barre office of OSHA, applied to United States Magistrate Raymond J. Durkin for a warrant authorizing inspection of the BFF plant. It is undisputed that prior to seeking the warrant, no OSHA official had requested a voluntary entry in order to make this inspection. In the warrant application and the addendum attached thereto it was asserted that the Wilkes-Barre office had received employee complaints regarding BFF on August 21, 1978, September 18, 1978, and October 5, 1978.
The substance of the complaints alleged approximately one hundred seventy (170) safety and/or health violations. These alleged violations varied from what would appear to be minor problems, such as aisles not being kept clean, to more serious type violations, such as welders having to work in water and problems with electrical equipment getting wet due to leaks in the roof. Respondent asserts, and petitioner does not controvert, that the alleged violations related to approximately 15% Of the BFF work areas, inside and outside.
The warrant application, inter alia, also indicated that BFF had been inspected in November 1974 and November 1975 and that these inspections had resulted in the issuance of citations. Some of the citations resulting from the later inspection were for violations for which citations had been previously issued.
The application noted that during the calendar year of 1977 BFF had reported 270 cases of work related injuries and illnesses and "a considerable period of time (had) elapsed since the last complete inspection of the facility." Based on the warrant application and its addendum Magistrate Durkin issued a warrant which somewhat tracked the language of 29 U.S.C. § 657(a)(2) and authorized a complete "wall to wall" inspection.
Armed with this ex parte inspection warrant an OSHA inspector, Mr. Farranato, and others, arrived at the BFF plant on Oct. 11th and requested immediate entry in order to carry out the inspection. Mr. Farranato was asked to wait while respondent consulted with its attorney in order to determine whether to permit the inspection. After waiting a few hours without receiving permission to inspect, Mr. Farranato left, having decided that he was being denied entry. OSHA subsequently, on Oct. 13, 1978, filed its petition for an adjudication of civil contempt for failure to comply with the warrant. That same day respondent filed its motion to quash.
At the Oct. 18th hearing respondent basically contended that the warrant was invalid because there was no probable cause and implicitly, because it was overbroad. See Doc. 1, Docs. 8 & 9 in Misc. No. 78-121, Motion to quash and memorandum in support thereof, filed Oct. 12, 1978; Doc. 7, transcript of Oct. 18th hearing, filed Nov. 9, 1978 (hereinafter tr.). It was also asserted that OSHA could not legally carry out an inspection since it had not followed its statutory mandate to make a determination that reasonable grounds for an inspection existed. See Id.; 29 U.S.C. § 657(f)(1). OSHA called two witnesses, Mr. Carey and Mr. Farranato. Their testimony in essence related to the circumstances surrounding the receipt of the employee complaints, the decision to seek a warrant, and the alleged refusal of respondent to permit the inspection. Respondent did not call any witnesses, but did cross examine petitioner's witnesses and make an oral argument. At the conclusion of the hearing, as stated supra, I denied the motion to quash, held respondent in civil contempt, and ordered it to purge the contempt by permitting the inspection. The inspection has now been completed and, hence, the contempt has been fully purged. The court has been orally informed by counsel that OSHA, based on the inspection, issued extensive citations and proposed penalties which will now presumably be contested through the OSHA administrative process.
Respondent asserts that if its motion is not granted it will be irreparably injured because of the substantial costs which it will incur during the pendency of its appeal by administratively defending the OSHA citations and proposed penalties resulting from the alleged illegal inspection.
It represents that petitioner and any other interested persons would not be injured by the granting of the motion because there are no imminent dangers at the BFF plant (which petitioner does not controvert), and because the administrative review procedure is a time consuming process in any event, allegedly taking from two to three years in a case of this kind. Respondent further maintains that it will be successful on appeal because 1) the warrant should have been quashed since it was obtained contrary to the rules and regulations of OSHA in that it was procured ex parte and without first seeking voluntary entry; 2) the warrant was invalid because both it and the underlying application lacked the necessary specificity, i. e., the warrant was overbroad; and 3) this court lacked subject matter jurisdiction to compel the entry of OSHA agents for the purpose of the inspection. Petitioner basically controverts respondent's assertions and argues additionally that 1) since the contempt has been purged and the inspection completed there is nothing for this court to stay; i. e. the instant motion, and impliedly the appeal, are moot; 2) the present action does not confer jurisdiction in this court over the OSHA administrative process, the court may not interfere with such process and enjoining any further action based on the inspection would be inappropriate
; 3) the appeal will fail because respondent must exhaust its claims through the OSHA administrative review procedure; and 4) OSHA, the public, and respondent's employees would be irreparably harmed by the extra delay which would result from the instant motion being granted.
Under Rule 8(a) of the Federal Rules of Appellate Procedure an application for an injunction or a stay pending appeal must ordinarily be sought in the first instance in the District Court. Fed.R.Civ.P. 62 regulates the grant of a stay or injunction by the district court. Betts v. Coltes, 449 F. Supp. 751 (D.Hawaii 1978); 9 Moore and Ward, Moore's Federal Practice, § 208.02 at 1404 (1979). The fact that respondent has filed a notice of appeal does not defeat this court's jurisdiction. See Betts v. Coltes, supra. Fed.R.Civ.P. 62(d) provides that except in three specific instances a party may stay execution of a judgment by filing a supersedeas bond in an amount which, in effect, is deemed sufficient by the district court.
One of the specific instances where a party cannot obtain a stay merely by filing the proper bond is when an appeal is taken from a final order granting an injunction. It appears to the court that the Oct. 18th order was akin to an injunction order in that it refused to enjoin the inspection, i. e., the motion to quash was denied and it, in effect, ordered respondent to submit to the inspection. Therefore, I believe that respondent's motion is directed at the court's sound discretion under the terms of Fed.R.Civ.P. 62(c). See Evans v. Buchanan, 424 F. Supp. 875 (D.Del.1976), Cert. denied, 434 U.S. 880, 98 S. Ct. 235, 54 L. Ed. 2d 160, 98 S. Ct. 236 (1977), Reh. den., 434 U.S. 944, 98 S. Ct. 442, 54 L. Ed. 2d 306, 98 S. Ct. 443 (1977). In pertinent part that rule provides:
(c) Injunction pending appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party . . .
The criteria to be applied in determining whether respondent is entitled to the stay or injunction pending appeal are: 1) irreparable injury to the petitioner (here respondent) unless the injunction or stay is granted; 2) no substantial harm to other interested persons; 3) no harm to the public interest; and 4) the likelihood that petitioner will prevail on the merits of the appeal. See Resident Advisory Board v. Rizzo, 429 F. Supp. 222 (E.D.Pa.1977); Evans v. Buchanan, 424 F. Supp. 875 (D.Del.1976), Cert. denied, 434 U.S. 880, 98 S. Ct. 235, 54 L. Ed. 2d 160, 98 S. Ct. 236 (1977), reh. den., 434 U.S. 944, 98 S. Ct. 442, 54 L. Ed. 2d 306, 98 S. Ct. 443 (1977); 7 Moore's Federal Practice, § 62.05 at 62-25 (1974).
Before considering the four factors, it is necessary to address petitioner's contentions that 1) this motion is moot because the inspection is complete and the contempt is fully purged; and 2) this court cannot now interfere with the OSHA administrative process. As to the second contention, that is a question of exhaustion and it would not be inappropriate interference with administrative procedures to consider those claims for which requiring exhaustion would not be proper. See Weyerhaeuser Co. v. Marshall, Secretary of Labor, 592 F.2d 373 (7th Cir. 1979). As to the first contention, although it is true that respondent is no longer in civil contempt, it is possible that the Court of Appeals would determine that this situation calls for the application of an exception to the mootness doctrine and that appellate review is appropriate. Cf. United States v. Frumento, 552 F.2d 534 (3rd Cir. 1977) (witness held in civil contempt for refusing to testify; he was incarcerated until he purged the contempt or until the proceedings at which he did not testify were terminated; he took all possible action to get judicial reconsideration of the contempt decision; appellate review deemed appropriate even though the proceedings had terminated and the witness had been released from confinement). Furthermore, and this is the most important factor, besides holding respondent in civil contempt, the Oct. 18th order also upheld the warrant and denied the motion to quash. Numerous cases have considered the validity of an OSHA inspection warrant and/or an appeal from the denial of a motion to quash the warrant after the inspection was completed. See, e.g., In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 ...