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December 1, 1981

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Petitioner,

The opinion of the court was delivered by: CONABOY


Petitioner, the Secretary of Labor (Secretary), seeks an order holding the Respondent Blue Ridge Pressure Castings, Inc. (Blue Ridge or Respondent) in civil contempt for failure to comply with an administrative search warrant issued by U. S. Magistrate Raymond J. Durkin. The warrant was issued under the Occupational Safety and Health Act (the Act), 29 U.S.C. § 651 et seq. Respondent Blue Ridge has moved to quash the warrant on several grounds. A hearing and oral argument on the motions was conducted by the Court on October 20, 1981. For the reasons set forth below, we will deny Blue Ridge's motion to quash and will hold the Respondent in civil contempt of court.

 On April 2, 1981, Robert Rutt, a Compliance Safety and Health Officer of the Wilkes-Barre Office of the Occupational Safety and Health Administration (OSHA), received a telephone complaint purportedly from a Blue Ridge employee alleging the existence of unhealthful conditions at the Blue Ridge plant in Lehighton, Pennsylvania. Rutt transcribed the information he received onto an OSHA complaint form (OSHA Form 7) and mailed this form to the complainant for his review and signature. On April 16, 1981, the complaint form was returned to the Wilkes-Barre OSHA Office signed by the employee. Rutt was familiar with the workplace from a previous safety inspection he conducted there in 1976. From his observations during that inspection, Rutt concluded that the conditions identified in the employee complaint were similar to conditions he noted during that inspection. Thereafter, on June 12, 1981, Leo Carey, Area Director of the OSHA Wilkes-Barre Office, filed with the U.S. Magistrate an Application for Inspection Warrant under the Act. On that same day, the Magistrate issued the warrant on an ex parte basis.

 On June 17, 1981, Jeffrey Reynolds, an Industrial Hygienist employed in the Wilkes-Barre OSHA Office, arrived at the Blue Ridge plant and proffered the warrant to Tim Snyder, Respondent's Plant Production Manager. Reynolds identified himself as an OSHA Compliance Officer, presented his credentials, and indicated he was there to conduct a "complaint inspection" pursuant to the warrant. After conversations with Snyder and with Blue Ridge's attorney, Edward H. Feege, Reynolds was informed that he would not be permitted to conduct the inspection authorized by the warrant. Thereafter, on July 14, 1981, the Secretary filed a Petition for an Adjudication of Civil Contempt against Blue Ridge and a Memorandum of Law in support thereof. On July 17, 1981, Respondent filed an Answer to the above petition and also filed a Motion to Quash the warrant accompanied by a supporting memorandum. Petitioner filed an Answer to the motion to quash on August 3, 1981 and a supporting brief was filed on August 10, 1981. As previously noted, a hearing was held on October 20, 1981 on the motions to hold Blue Ridge in contempt and to quash the warrant at which oral argument was presented on the issues raised by both pending civil actions. Post-hearing briefs were also subsequently filed by each party. Since the determinative issue in both these motions is the underlying validity of the warrant, we will discuss seriatim the various grounds advanced by Respondent in its challenge of the instant warrant.

 A. Ex Parte Inspection Warrant

 Relying on the Third Circuit's decision in Cerro Metal Products, Division of Marmon Group, Inc. v. Marshall, 620 F.2d 964 (3d Cir. 1980), Blue Ridge first argues that the warrant is invalid since it was issued by the Magistrate in an ex parte manner, without prior notice being afforded to the Respondent. In Cerro, our Court of Appeals concluded that the promulgation of 29 C.F.R. § 1903.4(d), as amended in 1978, *fn1" was invalid because it was not done pursuant to the notice and comment provisions under the rulemaking procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553. The Court did note, however, that under the regulatory scheme envisioned by Congress "OSHA has the delegated power to issue a legislative rule on the matter ... but chose not to." Since the decision in Cerro, OSHA has exercised its rulemaking power to provide the authorization for ex parte warrant applications. On May 20, 1980, OSHA published proposed amendments to 29 C.F.R. § 1903.4 in the Federal Register. It invited and received public comment concerning the proposed amendments and, after consideration of these comments, issued final amendments on September 26, 1980 which become effective November 3, 1980. 45 Fed.Reg. 65916-65924 (1980). *fn2" Therefore, this newly amended regulation, enacted in compliance with the notice and comment procedures of the APA, provides OSHA with the authority to apply to the Court or Magistrate for inspection warrants without prior notice to the owner of the facility to be searched. Furthermore, the fact that the Magistrate did not specifically refer to this amended regulation is of no consequence since this Court may take judicial notice of such validly promulgated federal regulations. See, Glapion v. MS Journalist, 487 F.2d 1252, 1255 (5th Cir. 1973); Hughes v. Gengler, 404 F.2d 229 (9th Cir. 1968), cert. denied, 393 U.S. 1085, 89 S. Ct. 870, 21 L. Ed. 2d 778 (1969).

 B. Probable Cause

 The Act authorizes two types of inspections: § 8(a) (29 U.S.C. § 657(a) ) inspections, which usually are done pursuant to some sort of general administrative plan, and § 8(f) (29 U.S.C. § 657(f) ) inspections, which are the result of an employee complaint. Marshall v. North American Car Co., 626 F.2d 320, 322 (3d Cir. 1980). In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), the United States Supreme Court held that a nonconsensual OSHA inspection pursuant to either section 8(a) or 8(f) requires a warrant. However, the Court in Barlow's also held that the standard of probable cause applied in the criminal context would not be applicable to these administrative inspections.

Probable cause in the criminal law sense is not required. For the purposes of an administrative search such as this (OSHA inspection), probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular (establishment)." Camara v. Municipal Court, 387 U.S. (523), at 538 (387 U.S. 523, 87 S. Ct. 1727, at 1735, 18 L. Ed. 2d 930). A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights. 436 U.S. at 320-21, 98 S. Ct. at 1824 (footnote omitted).

 Thus, there are two alternative bases for establishing probable cause for an OSHA inspection, i.e., either by showing that a specific business has been selected for a search on the basis of a general administrative plan under 8(a), or that there is specific evidence of an existing violation at the particular workplace under 8(f). See, Marshall v. Horn Seed Company, Inc., 647 F.2d 96, 100 (10th Cir. 1981). Identifying the proper basis is critical since the nature of the evidence which must be presented by the Petitioner to support a probable cause determination will vary depending upon whether the inspection is sought pursuant to § 8(a) or § 8(f). This distinction was aptly explained by the Court in Marshall v. Horn Seed, supra :

In the context of routine, periodic inspections of several sites randomly selected pursuant to a general legislative or administrative plan (under § 8(a) ), the Court has repeatedly held that a showing of reasonableness does not depend upon a demonstration of probable cause that a particular dwelling contains violations of the regulatory standards being enforced....
When a warrant is sought to conduct an inspection according to a general administrative plan, it is reasonable that the magistrate not be concerned with questions of the reliability of evidence and the probability of violation. The reasonable balance between the need to search and the threat of disruption has already been struck by the legislative and administrative guidelines.
These safeguards are not built in when a search is based on a specific complaint (pursuant to § 8(f) ). In such instances, the government is not inspecting on the basis of neutral criteria derived from reasonable legislative or administrative standards. Unless it is possible to infer that the complaint was actually made and that it has some modicum of plausibility to it, the danger of arbitrary invasions by government officials exists.... Without some sort of scrutiny of the reliability of the "specific evidence" serving as probable cause for the OSHA warrant, no real assessment of the need to search can be made. 647 F.2d at 100-01.

 In the instant case, the Secretary has argued that probable cause has been demonstrated under both of the tests set forth in Barlow's. However, after reviewing the warrant application, the documents submitted by both parties, and the hearing testimony, we conclude that the present search was not part of a neutral general enforcement program under section 8(a) of the Act. ...

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