ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA C.A. Nos. 78-3713 and 79-0077
Before Seitz, Chief Judge, and Adams and Weis, Circuit Judges.
This appeal requires us to decide whether the Occupational Safety and Health Administration (OSHA) has properly authorized its compliance officers to seek ex parte inspection warrants in order to inspect industrial establishments for alleged health and safety violations. The problem is sharpened by the fact that Supreme Court dictum noting that such authority would be constitutional also stated that the relevant regulation did not provide for it. In preliminarily enjoining OSHA from obtaining warrants without providing plaintiff companies notice and an opportunity to be heard in opposition, the district court in effect concluded that, because OSHA had led the Supreme Court to interpret the regulation as excluding the warrants, the agency was "hoist with (its) own petar,"*fn1 and that until the agency amended its regulation, it could not seek ex parte warrants. The district judge went on to hold that, to be binding, a change in the regulation required notice-and-comment rulemaking. We affirm.
The circumstances leading to the complaint in Cerro the first of two cases consolidated in the district court began when an employee was killed at the Bellefonte, Pennsylvania, manufacturing plant of Cerro Metal Products (Cerro). Upon notification by management of the accident OSHA conducted an inspection of the Bellefonte premises and issued a citation for safety violations shortly thereafter.
About a week later, OSHA received a signed complaint from the local union alleging numerous health and safety violations at Cerro's plant. Responding to the complaint, an OSHA compliance officer attempted an inspection, but Cerro denied him access to the worksite. An OSHA staff attorney then advised Cerro that he would apply for an ex parte inspection warrant on November 6, 1978, but on that very day Cerro initiated its own proceeding to enjoin OSHA from obtaining any inspection warrant without notice to the company and an opportunity for a hearing to oppose the warrant application. Cerro complained that (1) the extended inspection (three to four weeks) contemplated by the agency was part of an unjustified scheme of harassment, (2) the attempt to inspect by civil process was a subterfuge to obtain evidence of a crime,*fn2 and (3) OSHA had granted its officials no authority to apply for ex parte inspection warrants.
Ruling from the bench after a hearing on Cerro's motion, the trial judge granted a temporary restraining order. He expressed serious doubt that Cerro would prevail on its first and second theories, but the third contention that OSHA lacked authority to apply for ex parte warrants was thought to be correct. On November 27, a preliminary injunction based on the same reasoning was entered. The court's order enjoined OSHA "from applying for a search warrant or comparable process authorizing inspection of plaintiff's premises without giving plaintiff notice of the pendency of the application sufficient to afford plaintiff an adequate opportunity to be heard in opposition to the issuance of the process applied for."
OSHA did not appeal the order. Instead, it purported to amend the regulation held to be inadequate by the district court. The amendment explicitly interpreted the old regulation as providing for ex parte warrants.*fn3 Such revision was not thought by OSHA to require notice-and-comment rulemaking because, the agency asserted, it was "an interpretive rule, general statement of policy and rule of agency procedure and practice." 43 Fed.Reg. 59,838 (Dec. 21, 1978). In any event, the amendment served as the basis for the agency's motion to dissolve the preliminary injunction.
Shortly thereafter, Fleck Industries, Inc. (Fleck) entered the fray with a suit to enjoin OSHA from applying for an ex parte warrant to inspect its manufacturing plant in Willow Grove, Pennsylvania. After Fleck was consolidated with Cerro, the district court scheduled a joint hearing on OSHA's motion to dissolve the injunction that had been entered in the Cerro proceeding and on Fleck's prayer for an identical preliminary injunction.
OSHA's motion in Cerro was denied, and a temporary restraining order was granted Fleck, based on an extensive opinion filed March 8, 1979. A preliminary injunction in Fleck soon followed. The United Automobile, Aerospace, and Agricultural Implement Workers of America and its local (hereafter, collectively, Union) moved to intervene as parties' defendant. The motion was granted on May 1, 1979, "subject to the proviso that the intervening defendants are not hereby authorized to require the redetermination of any matters adjudicated prior to the filing of their motion for leave to intervene (April 18, 1979)." OSHA appeals from both interlocutory orders, and the intervenor Union appeals from the order in Fleck.
The parties to this controversy have raised a variety of procedural and jurisdictional objections to our consideration of the merits on this appeal. It is to these issues that we first turn.
Cerro claims that the appeal in its case is moot because, after the district court order of March 8 declining to dissolve the preliminary injunction, OSHA obtained an inspection warrant by adversary process and has now inspected Cerro's premises.*fn4 This point was argued to the district court by the Union in a slightly different context*fn5 and was, we hold, correctly rejected.
The Union had contended that the Cerro injunction jeopardized enforcement of the Act because OSHA would not be able to preserve the issue for appeal if it fulfilled its statutory obligation to protect the health and safety of workers by inspecting the plant pursuant to compulsory process other than ex parte. But the preliminary injunction is not limited to one inspection, and no party contends that one completed inspection removes the possibility of future attempts. The fact that OSHA has since been admitted to Cerro's property does not render the controversy moot, but only makes the circumstances surrounding it somewhat less exigent. See the district court's opinion, 467 F. Supp. 869, 873 n. 4 (W.D.Pa.1979).
B. Standing of Intervenor to Appeal
We are said to lack appellate jurisdiction over the Union's appeal from the order in Fleck because "the union was granted only a limited status as an intervenor, which does not include standing with regard to the issue being appealed." Brief for Appellees at 1. No authority is cited for this broad proposition, except the district court's proviso in granting leave to intervene that the Union was not "authorized to require the redetermination of any matters adjudicated prior to the filing of" the motion to intervene. We do not interpret this language as purporting to foreclose the Union's right to appeal the prior interlocutory order. An appeal is not retrograde, but is part of the statutorily authorized progress of a litigation.
Because we conclude that the order granting the Union full party status as an intervenor does not attempt to foreclose it from appealing the court's prior interlocutory order, we need not decide whether such a condition is proper when, as is apparently true here,*fn6 intervention of right under Fed.R.Civ.P. 24(a) is granted.*fn7 Consequently, we see no reason to depart from the general rule that an intervenor may appeal from any order adversely affecting the interest that served as a basis for intervention.*fn8 Furthermore, little if anything hinges on the point since OSHA also appealed in Fleck.
C. Exhaustion of Administrative Remedies
OSHA argues that we should not consider any of the issues raised in this appeal unless and until the employers exhaust their administrative remedies. Acceptance of that view would require the employers to allow inspection by ex parte warrants and would permit them to contest the issues raised here only if violations were found, citations were issued, and the companies decided to contest the citations before the Occupational Safety and Health Review Commission (Review Commission). Only after receiving the benefit of that tribunal's interpretation of the regulation, the argument proceeds, and only if the citation were not dismissed on other grounds, should we make our own assessment.
Principal support for the proposition advanced by OSHA is provided by In re Restland Memorial Park, 540 F.2d 626 (3d Cir. 1976), in which we stated that exhaustion was required even though OSHA's jurisdiction was challenged before an inspection had occurred. Restland came to this Court on an appeal from an adjudication of contempt and denial of the cemetery's motion to quash an inspection warrant. The employer challenged the warrant on the ground that its business was not in interstate commerce and therefore not within OSHA's statutory jurisdiction. We concluded that, at least in the posture of the Restland case, that issue was better left to determination in the first instance by the independent tribunal created by Congress to adjudicate OSHA disputes.
Except when required by statute,*fn9 exhaustion of administrative remedies is not an inexorable command, but is a matter of sound judicial discretion.*fn10 That discretion must be guided by the rationales advanced for the judicially created exhaustion doctrine.*fn11 The doctrine has been said to serve the following purposes: It (1) promotes administrative efficiency by "preventing premature interference with the agency processes," (2) respects executive autonomy by allowing an agency the "opportunity to correct its own errors," (3) facilitates judicial review by affording courts the benefit of the agency's experience and expertise,*fn12 and (4) serves judicial economy by having the agency or other tribunal rather than the district court, compile a factual record.*fn13 When a party presses a constitutional claim, exhaustion serves the additional purpose of furthering parsimony in judicial decisionmaking; an agency or tribunal decision favorable to the private party and based on the facts, regulations, or statute prevents the creation of unnecessary constitutional precedent.*fn14 Finally, requiring exhaustion "also exemplifies deference within the constitutional framework to Congress's decision as to the proper forum for the initial resolution of disputes under its statutes."*fn15
The first three reasons do not apply with equal force to OSHA cases, since it is not the agency itself, but an independent tribunal, that would, if exhaustion were required, pass on the issues raised. There are no agency processes regarding the interpretation of the regulation that can be interrupted; OSHA stands by its interpretation and no proceeding in the Review Commission may commence until a citation is issued and contested. The process to which the companies would submit specifically provides for the independent Review Commission, not OSHA, to correct the agency's errors. Finally, although it is important that the Review Commission obtain experience and expertise in adjudicating the validity of inspection warrants, see Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1140 (3d Cir. 1979), this factor should not be allowed to cut back on the equity jurisdiction of the courts to prevent irreparable harms before they occur, see id. at 1134 n. 13. Moreover, as discussed below, the issues presented are within the traditional expertise of the judiciary.
The fourth rationale is inapposite to this case because the issues here are purely legal and there is no factual dispute the resolution of which would dispose of the case.*fn16 Similarly, relegating the parties to the Review Commission would not serve the goal of avoiding unnecessary constitutional interpretation, because the issue to be decided, whether by an administrative tribunal or by an Article III court in the first instance, is the interpretation of an administrative regulation; no constitutional adjudication is at stake.
This leaves as the only basis for exhaustion, deference to the statutory schema. But the Act merely establishes the Review Commission as the exclusive tribunal for considering challenges to the validity of citations issued as a result of inspections. Adherence to that plan is appropriate when, as in Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d Cir. 1979), and Marshall v. Whittaker Corp., Berwick Forge & Fabricating Co., 610 F.2d 1141 (3d Cir. 1979), the parties deliberately attempt to disrupt that process, after invoking it, by bringing a claim in the federal courts. Cerro and Fleck are not seeking to disrupt an ongoing Review Commission matter, but to prevent OSHA from initiating the process in an allegedly illegal manner. Moreover, since the issues must be resolved by interpreting an important decision of the Supreme Court as well as the Administrative Procedure Act matters in which the federal courts and not the Review Commission have special expertise, see Dow Chemical Co. v. EPA, 605 F.2d 673, 680-81 (3d Cir. 1979) we conclude that no legitimate purpose would be served by requiring exhaustion of administrative remedies in the context of this dispute.*fn17
Because OSHA did not appeal from the grant of the preliminary injunction in Cerro, but only from the denial of its motion to modify or dissolve the injunction, the company asserts that OSHA may not now challenge the merits of the underlying injunction. This is, of course, the general rule,*fn18 but it is not one to be ...