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Labor v. Whittaker Corp.


decided: November 16, 1979.



Before Adams, Rosenn and Weis, Circuit Judges.

Author: Adams


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.


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.


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 merits of this appeal, it is necessary first to ascertain whether Berwick's situation comes within any of these categories.

A. Expeditious Action to Preserve the Status Quo

An exception to mootness in a criminal conviction where, even if the appellant had been released from custody or had served his sentence, he had "taken all possible steps to have the order of confinement promptly reviewed prior to his release" was established by this Court in United States v. Frumento, 552 F.2d 534, 537 (3d Cir. 1977) (in banc) (citing St. Pierre v. United States, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (1943)). The " "prompt, diligent and timely' actions" that brought the appellant in Frumento within the reviewability exception to the mootness doctrine, this Court held, were his immediate attempts to secure a stay of the district court's order from the district court, from a panel of this Court, and finally from the Court in banc. Id.*fn7

The contrast between Frumento and this case is striking. Berwick's actions, barely timely, were far from diligent or prompt. Indeed, Berwick waited until the very last day that an appeal could be taken to file its notice of appeal and motion to enjoin or stay the inspection of its plant an inspection that had been in operation for almost two months and was completed the following day. Berwick's less-than-expeditious pace in attempting to protect a right to be free of an alleged constitutional violation that, if indeed a violation, was already fully accomplished,*fn8 precludes reliance in these circumstances on the Frumento exception to mootness.

B. Collateral Legal Consequences of the District Court's Order

A judgment of civil contempt becomes moot after being purged because the court's order cannot be disobeyed again: to purge a civil contempt citation is to comply with all aspects of the underlying order. Additionally, purging the contempt eradicates any effect of a violation.*fn9 Unlike a criminal conviction or involuntary commitment to a mental hospital,*fn10 an adjudication of civil contempt carries with it no possibility of collateral deprivations of civil rights or other specifically legal consequences.*fn11 Moreover, our conclusion that the judgment of civil contempt is moot deprives the trial court's order of any precedential or res judicata effects, inasmuch as the settled practice in federal civil cases that become moot on appeal is to vacate the district court's judgment and remand with an instruction to dismiss the complaint.*fn12

C. Capable of Repetition, Yet Evading Review

Berwick places primary reliance for reviewability on the venerable exception to mootness for cases "capable of repetition, yet evading review."*fn13 As we stated in Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir. 1979), "Most cases utilizing this approach have involved official action that by its very nature could not, or probably would not, be able to be adjudicated while fully "live.' " 605 F.2d at 678 n.12. Examples include short-term orders of a federal regulatory agency,*fn14 restrictions on candidacy or participation in state elections,*fn15 anti-abortion statutes,*fn16 and durational residency requirements.*fn17

In the matter sub judice, at least, Berwick's lack of prompt and diligent action in taking an appeal is also determinative of whether the case is one capable of repetition yet evading review. In contrast to the examples listed above, there is nothing inherent in the type of injury alleged by Berwick that would evade review. It is apparent that, had Berwick taken prompt steps to preserve the status quo by immediately filing a notice of appeal and a request for a stay, the inspection it complains of might not have occurred. Thus, the issues could have been preserved for appeal and would not evade review.

The circumstances here are, accordingly, a far cry from those emphasized by this Court in United States v. Schiavo, 504 F.2d 1 (3d Cir. 1971) (in banc), Cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974), an appeal held to be not moot because the dispute was capable of repetition yet evading review. Id. at 7. The appellants in Schiavo, Philadelphia newspapers, were enjoined not to publish information concerning criminal indictments pertaining to a case then on trial. It was clear in Schiavo that the type of injunction in question would invariably be dissolved as soon as the trial was over; moreover, the appellants filed a notice of appeal and motion to stay the injunction pending appeal on the same afternoon that the injunction was issued.

It is thus apparent that the judgment of civil contempt against Berwick will have no continuing legal effect, and any challenge to that portion of the district court's order is moot. The discussion of mootness cannot end here, however, because it is also apparent that the very act of purging the contempt allowing OSHA to inspect has a continuing effect inasmuch as citations based on the inspection were issued by OSHA and are being contested by Berwick. It therefore remains for us to consider the constitutional and policy implications of reviewing the merits of the denial of the motion to quash and the order to comply with the warrant.


Although cases show that these portions of the appeal are not constitutionally moot, they also emphasize policy elements to the decision, so that we may still require exhaustion of administrative remedies before considering Berwick's claims as to the warrant's invalidity. This Court held in American Bible Society v. Blount, 446 F.2d 588, 595 (3d Cir. 1971), that "a case is not moot if there is a reasonable likelihood that the parties or those in privity with them will be involved in a suit on the same issues in the future." Accord, Klein v. Califano, 586 F.2d 250, 256 (3d Cir. 1978) (in banc).

In American Bible Society, a group of mass mailers of books sought to block the Post Office from instituting new regulations affecting the cost of bulk mailings of books. Preliminary injunctions were granted on the condition, required by Fed.R.Civ.P. 65(c), that security be posted to indemnify the Post Office in the event it was held that the preliminary injunctions had been wrongfully granted. Before the conclusion of the proceedings, the parties reached accord on a new plan for allocating the costs of the bulk mailings. The plaintiffs' subsequent motion to dismiss their suits and discharge the bonds was opposed by the Post Office, which sought to recover damages incurred by complying with the preliminary injunction that it claimed had been wrongfully issued. The district court held the case to be moot. We reversed, however, on the ground that judicial economy would be better served by adjudicating the merits directly rather than waiting for the Post Office to challenge the merits of the preliminary injunction in an independent action on the bond.*fn18

A similar issue was faced in Klein v. Califano, 586 F.2d 250 (3d Cir. 1978) (in banc), in which the Department of Health, Education and Welfare had been enjoined not to terminate federal funding of a nursing home without first affording the residents of the home an evidentiary hearing. Subsequent to the district court's order, and the agency's appeal from it, the nursing home was re-certified for eligibility and the threat of termination of federal funding was removed. Nonetheless, the case was not moot, we declared, because the agency had asserted a right to recoup funds disbursed pursuant to the injunction; if the merits of the injunction were not directly adjudicated on appeal, the district court's order would have to be collaterally challenged in a separate proceeding. We held that "the availability of a forum to collaterally challenge the district court's order does not imply that (the agency's) direct appeal is moot." Id. at 255-56 (citing Liner v. Jafco, Inc., 375 U.S. 301, 84 S. Ct. 391, 11 L. Ed. 2d 347 (1964)).

The lesson of American Bible Society and Klein for this case is that an appeal will not be deemed moot if the parties are likely to contest the same issues in a subsequent proceeding.*fn19 Mootness, however, is not solely a jurisdictional doctrine. Policy considerations underlying the concept are said to be prevention of "useless expenditure of judicial resources and assurance that the courts will not intrude prematurely into policymaking in a manner that will unnecessarily constrain the other branches of government,"*fn20 as well as "maintaining flexibility in the law by not creating unnecessary precedent."*fn21

Policy considerations will often weigh in favor of considering all questions raised directly on the appeal, rather than relegating the parties to re-try their contentions in a different forum.*fn22 Indeed, if we considered this case in isolation, a thrifty use of judicial resources might well require that we consider Berwick's challenge to the validity of the warrants at this time.

Numerous cases of this type, however, involving challenges to the validity of OSHA inspection warrants are now coming before federal courts, and considerations of judicial economy in this general class of litigation outweigh any saving of judicial time that would be achieved by adjudicating the merits in this particular proceeding. We therefore hold, for reasons elaborated more fully in Babcock & Wilcox, Supra, that when, as here, an inspection warrant has been executed, a party aggrieved by the inspection must ordinarily exhaust administrative remedies before bringing an appeal to this Court. The policy embodied in the requirement of exhaustion of administrative remedies avoidance of premature constitutional adjudication and deference to a statutory scheme setting up an administrative tribunal as the exclusive forum for review of OSHA inspections and citations in the first instance outweighs any saving of judicial resources that would come from deciding the merits of this appeal at this time.*fn23

The order of the district court adjudicating Berwick to be in civil contempt will be vacated; those portions of the district court's order denying Berwick's motion to quash the warrant and directing it to purge the contempt by complying with the warrant will be affirmed; the underlying dispute as to whether evidence obtained pursuant to the warrant should be suppressed will be preserved for consideration by the Review Commission; and the case will be remanded to the district court for action consistent with this opinion. Each side to bear its own costs.

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