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Labor v. Whittaker Corp.

decided: November 16, 1979.

LABOR -- MARSHALL, RAY SECRETARY OF LABOR, U.S. DEPARTMENT OF LABOR; IN THE MATTER OF: ESTABLISHMENT INSPECTION OF: WHITTAKER CORP., BERWICK FORGE & FABRICATING CO., A DIVISION
v.
WHITTAKER CORP., BERWICK FORGE & FABRICATING CO., A DIVISION; BERWICK FORGE & FABRICATING COMPANY, A DIVISION OF WHITTAKER CORPORATION, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Before Adams, Rosenn and Weis, Circuit Judges.

Author: Adams

Opinion OF THE COURT

This appeal, similar to but considered separately from Babcock & Wilcox Co. v. Marshall, decided today,*fn1 presents thorny issues regarding mootness and exhaustion of administrative remedies in the context of the latest skirmish between the Occupational Safety and Health Administration (OSHA) and Berwick Forge and Fabricating Company (Berwick), a division of the Whittaker Corporation, as to what legal process must be undertaken and what legal standards must be met before OSHA officials may inspect a manufacturing plant. Because we decide that one portion of this appeal is moot, and that the remaining questions are better left for consideration in the first instance to another forum, we do not reach the merits.

I.

Consensual safety inspections of Berwick's large manufacturing plant, located in northeast Pennsylvania, had occurred approximately once a year from 1974 through June 3, 1977. When an OSHA inspector returned to the plant on June 8, 1977, to complete the last-mentioned inspection, Berwick denied him entry on the basis of an alleged compliance agreement between the parties whereby OSHA would not inspect Berwick's premises for the term of the agreement.*fn2

Acting on an employee's complaint regarding an unsafe item of equipment, OSHA sent an inspector to the Berwick plant, but he was again denied entry in March 1978. Both parties then took the dispute to the district court for the Middle District of Pennsylvania. Berwick sought declaratory and injunctive relief from any inspection of its property during the term of the alleged compliance agreement, and OSHA applied for a general inspection warrant.

OSHA's request for a general inspection warrant was denied by the district court on the ground that a complaint about a specific unsafe area did not constitute probable cause for a general inspection.*fn3 Whittaker Corp. v. OSHA, 6 OSHC (BNA) 1492, 1494 (M.D.Pa. March 7, 1978), Appeal dismissed for lack of an appealable order, 594 F.2d 855 (3d Cir. 1979). Subsequently, the district court granted a warrant to inspect only the area of the plant mentioned in the complaint. Whittaker Corp. v. OSHA, 6 OSHC (BNA) 1295 (M.D.Pa. March 9, 1979).

The present appeal arises from a general inspection warrant granted by a United States Magistrate on October 10, 1978. Armed with the warrant, an OSHA compliance officer arrived at the plant the next day, but was asked to wait while Berwick's president conferred with company counsel. When three hours passed without a reply, the OSHA official decided that entry was effectively denied and he left.

Attorneys for the parties then met in the district court once again, with Berwick filing a motion to quash the warrant and OSHA requesting that Berwick be adjudged in civil contempt for refusing to honor the warrant. On October 18, 1978, Chief Judge Nealon (1) held Berwick in civil contempt, (2) ordered Berwick to purge the contempt by permitting the inspection pursuant to the warrant, and (3) denied Berwick's motion to quash the warrant. No coercive penalty was imposed.

The inspection pursuant to the warrant and order to purge the contempt began the next day and continued until December 19, 1978. Return on the warrant was extended twice by the magistrate the second time by stipulation of the parties. As a result of the inspection, citations proposing penalties of $300,000 were issued by OSHA and challenged in timely fashion by Berwick, whereupon the matters were assigned to an Administrative Law Judge of the Occupational Safety and Health Review Commission (Review Commission), an independent administrative tribunal.

Berwick did not file its notice of appeal and motion to enjoin or stay inspection of its property until December 18, 1979, the last day for doing so under Fed. R. App. P. 4(a).*fn4 In its appeal, Berwick attacks all three segments of the district court's order. As to the first portion of the order, we find no reason to depart from the rule enunciated by various courts of appeals that an appeal is moot once civil contempt has been purged.*fn5 As to the second and third portions of the order, we conclude that, although they are not moot in the constitutional sense that no live controversy remains,*fn6 considerations of equity and judicial policy dictate deferral of the remaining legal issues to the forum designated by Congress to consider them.

II.

A series of cases indicate that the following factors should be considered in deciding the reviewability of an appeal that in some sense is moot: (1) whether the appellant has expeditiously taken all steps to perfect the appeal before the dispute becomes moot, (2) whether the trial court's order will have collateral legal consequences, and (3) whether the dispute is of such a nature that it is capable of repetition yet evading review. In determining whether we may decide the ...


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