452 F.Supp. 1375 (E.D.Wis. 1978), 77-C-781, Weyerhaeuser Co. v. Marshall

Docket Nº:77-C-781.
Citation:452 F.Supp. 1375
Party Name:WEYERHAEUSER COMPANY, a corporation, Plaintiff, v. Ray MARSHALL, Secretary of Labor, et al., Defendants.
Case Date:July 03, 1978
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin

Page 1375

452 F.Supp. 1375 (E.D.Wis. 1978)

WEYERHAEUSER COMPANY, a corporation, Plaintiff,


Ray MARSHALL, Secretary of Labor, et al., Defendants.

No. 77-C-781.

United States District Court, E.D. Wisconsin.

July 3, 1978

Page 1376

Kluwin, Dunphy, Hankin & McNulty by Truman Q. McNulty, Milwaukee, Wis. (Douglas B. M. Ehlke, Tacoma, Wash., of counsel), for plaintiff.

Joan F. Kessler, U. S. Atty. by William E. Callahan, Jr., Asst. U. S. Atty., Milwaukee, Wis. (Gerald Moton, Chicago, Ill., of counsel), for defendants.


MYRON L. GORDON, District Judge.

This action is before me on the plaintiff's motions for a preliminary injunction and for an order quashing an administrative inspection warrant and suppressing evidence obtained thereunder. The defendants have filed a motion to dismiss or alternatively for summary judgment.

In this action, the plaintiff seeks declaratory and injunctive relief because of an allegedly improper administrative inspection conducted by the defendants under section 8(a) of the Occupational Safety and Health Act (OSHA), 29 U.S.C. s 657(a). The defendants are the Secretary of Labor, an Assistant Secretary of Labor responsible for enforcement of OSHA, the Occupational Safety and Health Administration and three of its compliance officers, an OSHA area director, and the Occupational Safety and Health Review Commission.

According to the complaint, on June 30, 1977, the defendant compliance officers appeared at the plaintiff's corrugated box manufacturing plant in Manitowoc, Wisconsin, to conduct a safety and health inspection of the premises. They were refused entry. On July 7, 1977, one of the compliance officers returned with a warrant issued by a United States magistrate, and the plaintiff "under protest" allowed the officer

Page 1377

to enter and inspect the entire premises. Under the same warrant, the compliance officers continued to inspect the premises on July 8, 11, and 12, 1977. On July 25, 1977, and August 5, 1977, citations were issued to the plaintiff for conditions discovered during the inspections. The plaintiff is presently pursuing administrative review of these citations before the defendant Occupational Safety and Health Review Commission.

The plaintiff claims that the warrant issued by the magistrate was invalid under the Fourth Amendment because there was no probable cause for its issuance. Furthermore, it is alleged that the prosecution of the plaintiff over the citations in question constitutes harassment in violation of the due process and equal protection guarantees of the Fifth Amendment. Accordingly, the plaintiff seeks, inter alia, (1) a declaration that its Fourth and Fifth Amendment rights have been violated; (2) a preliminary injunction enjoining any further actions or proceedings by the defendants against the plaintiff regarding the citations in question and staying further administrative proceedings pending this court's determination whether the evidence obtained by the defendants during the inspections should be suppressed; (3) an order quashing the inspection warrant and suppressing the evidence obtained thereunder; (4) an order quashing the citations and penalty notices; (5) a permanent injunction enjoining any further actions with respect to the subject citations; (6) a declaration that section 8(a) of OSHA, 29 U.S.C. s 657(a) is unconstitutional under the Fourteenth Amendment; and (7) an order directing the defendants to return all evidence obtained through the search of the plaintiff's premises.


The defendants claim that this action must be dismissed for failure to state a claim upon which relief may be granted. Such claim is based on the plaintiff's alleged failure to have exhausted its administrative remedies. Much authority is cited by the defendants for the general proposition that administrative remedies must be exhausted. However, in the context of OSHA warrant cases, courts have held that the propriety of an administrative inspection warrant may be challenged in district court without first exhausting administrative remedies. Hayes-Albion Corporation v. Marshall, case no. C 77-205 (N.D.Ohio memorandum and order dated October 14, 1977); Morris v. United States...

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