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In re Establishment Inspection of Consolidated Rail Corp.

decided: August 27, 1980.

IN THE MATTER OF ESTABLISHMENT INSPECTION OF CONSOLIDATED RAIL CORPORATION CONSOLIDATED RAIL CORPORATION, APPELLANT


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-1574)

Before Aldisert, Sloviter, Circuit Judges, and Hannum, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

I.

The Consolidated Rail Corporation (Conrail) filed this appeal from an order of the District Court issued December 13, 1979 denying Conrail's motion to quash an inspection warrant, issued ex parte at the request of the Occupational Safety and Health Administration (OSHA), authorizing inspection of Conrail's Altoona, Pennsylvania plant pursuant to the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. (1976 & Supp. II 1978). The Secretary of Labor, defendant in the district court, moved to dismiss the appeal. The ground alleged is that the court's order refusing to quash is not a final judgment and thus not appealable at this time because the district court has not yet acted on the Secretary's petition for an adjudication of civil contempt against Conrail for its refusal to honor the warrant. We hold that the order appealed from is not a final judgment within 28 U.S.C. § 1291 (1976), and therefore we will dismiss the appeal for lack of appellate jurisdiction.

II.

The dispute arose when OSHA received a written complaint from an employee that unsafe working conditions existed in the Conrail Altoona plant where pipefitters repair diesel-electric locomotives. The complaint alleged that employees were forced to work with chromate and asbestos and that no protective clothing was issued to them while working with these materials. OSHA attempted to obtain a consent search of the plant, but was refused entry. On September 17, 1979 a magistrate issued a general inspection warrant authorizing entry to conduct an investigation of the plant. The warrant granted OSHA 10 days to complete the inspection. Although an OSHA representative was allowed an initial "walk around" entry for a brief look at the plant, Conrail refused to allow the compliance officer to conduct a full investigation several days later.

Shortly thereafter, Conrail filed its motion to quash the warrant claiming that OSHA does not have jurisdiction to investigate locomotive plants because the Federal Railroad Administration is vested with authority to prescribe appropriate regulations and standards for locomotive safety. Under the Occupational Safety and Health Act, OSHA has no jurisdiction to prescribe occupational safety standards for industries in which "other Federal agencies . . . exercise (such) statutory authority." 29 U.S.C. § 653(b)(1) (1976). Conrail claimed that due to this lack of jurisdiction, the scope of the inspection was unreasonable and OSHA lacked probable cause to conduct the inspection. OSHA then petitioned the court to adjudicate Conrail in civil contempt of the warrant.

Oral argument on the motion to quash, but not on the civil contempt petition, was held on November 30, 1979, and the order which is the subject of this appeal was issued December 13, 1979. The court, in denying the motion to quash, held that Conrail's challenge to the warrant was, in essence, a jurisdictional attack on OSHA's statutory authority, which should be raised by Conrail when it contested the finding of any violation in an appeal to the Occupational Safety and Health Review Commission. Marshall v. Consolidated Rail Corp., 7 OSHC (BNA) 2016 (W.D.Pa. Dec. 13, 1979). This would permit development of a factual record before the jurisdiction issue was decided.

The district court scheduled a show cause hearing for January 4, 1980 on OSHA's contempt petition, but continued that hearing pending Conrail's appeal, and issued a stay of the inspection warrant.

III.

The general rule against appealability of orders similar to that appealed from here was applied in Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686 (1906), where the Court dismissed appeals from orders requiring officers of the defendant companies to produce books, papers and documents and to answer questions put to them in the underlying proceeding. The Court, holding the orders entered were interlocutory until the court exercised its power to punish the disobedience of the orders, stated:

Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case.

Id. at 121, 26 S. Ct. at 357. The doctrine of finality, "a phase of the distribution of authority within the judicial hierarchy," will be enforced not only against a party to the litigation but against a witness who is a stranger to the main proceeding. Cobbledick v. United States, 309 U.S. 323, 330, 326, 60 S. Ct. 540, 543, 541, 84 L. Ed. 783 (1940). In United States v. Ryan, 402 U.S. 530, 532, 91 S. Ct. 1580, 1581, 29 L. Ed. 2d 85 (1971), the Court reiterated the continued validity of the holding in Cobbledick "that one to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must ...


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