Blocksom & Co. v. Marshall

• Decision Date: 16 August 1978
• Docket Number: No. 77-2254,77-2254
• Citation: 582 F.2d 1122
• Parties: 6 O.S.H. Cas.(BNA) 1865, 1978 O.S.H.D. (CCH) P 22,946 In the Matter of Establishment Inspection of Blocksom and Company, a corporation. Appeal of Blocksom and Company. BLOCKSOM AND COMPANY, a corporation, Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1122

582 F.2d 1122

6 O.S.H. Cas.(BNA) 1865, 1978 O.S.H.D. (CCH) P 22,946

In the Matter of Establishment Inspection of Blocksom and Company, a corporation Appeal of Blocksom and Company BLOCKSOM AND COMPANY, a corporation, Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee.

No. 77-2254.

United States Court of Appeals Seventh Circuit.

Argued May 30, 1978.

Decided Aug. 16, 1978.

John D. Raikos, Indianapolis, Ind., for plaintiff-appellant.

John A. Bryson, U. S. Dept. of Labor, Washington, D. C., for defendant-appellee.

Before PELL and BAUER, Circuit Judges, and HARPER, Senior District Judge. ^*

PELL, Circuit Judge.

Appellant Blocksom and Company (Blocksom) is engaged in the business of manufacturing filler materials for products such as mattresses and furniture cushions at its plant in Michigan City, Indiana. In February 1976, the Occupational Safety and Health Administration acted on a recently received employee complaint by dispatching safety compliance officers to inspect the plant. No warrant for the search was obtained, but after the officers explained that 29 U.S.C. § 657(a) authorized their entry without a warrant, Blocksom permitted the inspection. The Secretary of Labor thereafter issued numerous citations for violations of safety standards, which Blocksom timely contested, invoking both factual and constitutional grounds as defenses to the alleged violations. We are advised that proceedings before the Occupational Safety and Health Review Commission, See 29 U.S.C. §§ 651(b)(3), 658(a), 659(a) & (c), 660(a) & (b), 661, are still pending.

In September 1976, in response to another employee complaint, four industrial hygienists arrived at the Blocksom plant to conduct a health inspection. Blocksom refused permission to enter, so an inspection warrant was obtained from a United States Magistrate for the Northern District of Indiana. The inspectors returned to Blocksom, but the company, acting through Dean Sassaman, its Vice President, again refused entry. The Secretary instituted civil contempt proceedings in the district court.

Shortly thereafter, Blocksom filed a complaint for declaratory and injunctive relief on the ground that the Occupational Safety and Health Act, 29 U.S.C. § 651 Et seq., was unconstitutional because it violated the Fourth Amendment, delegated legislative power to the Secretary, constituted a taking of Blocksom's property without just compensation in violation of the Fifth Amendment, and deprived Blocksom of procedural protections guaranteed by the Sixth and Seventh Amendments. The district court consolidated Blocksom's complaint with the pending contempt action, dismissed Blocksom's complaint as premature, and cited Sassaman for civil contempt (having addressed his and Blocksom's defenses on the merits) and ordered him to purge the contempt by allowing inspection. Blocksom has appealed, raising only its Fourth Amendment and impermissible delegation theories as grounds for reversal.

In our opinion the district court correctly dismissed Blocksom's complaint for declaratory and injunctive relief. Congress established the Review Commission as a forum independent of the Secretary of Labor for the adjudication of all factual and statutory defenses to the Secretary's enforcement actions. See the statutory provisions cited Supra. Its final orders are reviewable as of right in the Courts of Appeals and by writ of certiorari in the Supreme Court. 29 U.S.C. § 660(a); 28 U.S.C. § 1254. That review can include consideration of any viable constitutional defenses to enforcement. To allow Blocksom to bypass the review procedures Congress has established would create a serious risk that "important and difficult constitutional issues would be decided devoid of factual context and before it was clear that appellants were covered by the Act." W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967) (per curiam); Accord, Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 751, 767-74, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). The Supreme Court has twice affirmed decisions of three-judge district courts dismissing actions such as this one, where statutory and/or factual defenses were raised before the Commission. Frank Irey, Jr., Inc. v. Hodgson, 354 F.Supp. 20 (N.D.W.Va.1972), Aff'd, 409 U.S. 1070, 93 S.Ct. 682, 34 L.Ed.2d 659; Lance Roofing Company, Inc. v. Hodgson, 343 F.Supp. 685 (N.D.Ga.1972); Aff'd, 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659. See also Keystone Roofing Company, Inc. v. Occupational Safety and Health Review Commission, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Manufacturing Company v. Usery,, 536 F.2d 1306, 1309 (10th Cir. 1976). We conclude that Blocksom may not assert its defenses to the Secretary's citations or its generalized interest in the Act's nonenforcement by means of this independent action.

On the other hand, we believe that Sassaman (and, in effect, Blocksom) are entitled to argue for reversal of the district court's citation for civil contempt on the asserted bases that the magistrate's warrant did not comply with the Fourth Amendment and that the entire scheme of the Act is fatally flawed by an unconstitutional delegation of legislative authority to the Secretary. Refusal to comply with a facially valid warrant would surely be a poor strategy for obtaining judicial review of such claims, because it is no defense to a charge of Criminal contempt that the order disobeyed was invalid. United States v. United Mine Workers of America, 330 U.S. 258, 293-94, 67 S.Ct. 677, 91 L.Ed. 884 (1947). But, fortunately for Sassaman, no criminal contempt charge was made here. The purposes of Civil contempt orders are to coerce compliance with the underlying order and/or to compensate the complainant for loss sustained by disobedience. Id. at 303-04, 67 S.Ct. 677. Accordingly, civil contempt may be defended on the ground that the underlying order was erroneously issued. Id. at 295, 67 S.Ct. 677; Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 746 (7th Cir. 1976); Lewis v. S. S. Baune, 534 F.2d 1115, 1119 (5th Cir. 1976).

As we have said, an inspection warrant was obtained in this case. Blocksom argues nonetheless that the Act's inspection provision, 29 U.S.C. § 657(a), is unconstitutional because the provision does not contemplate the issuance of warrants which the Fourth Amendment requires. Shortly before oral argument here, the Supreme Court decided Marshall v. Barlow's Inc.,--- U.S. ----, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). From Barlow's we now know that the Fourth Amendment does in fact require warrants to be issued before OSHA inspectors may enter the premises of those who decline to allow warrantless entry. The Court also made it clear that despite Congress' failure to include a warrant requirement in § 657(a), if process was obtained that satisfied Fourth Amendment requirements, inspection under § 657(a) would be perfectly permissible. --- U.S. at ----, n.23, 98 S.Ct. 1816, 56 L.Ed.2d 305. Accordingly, we reject the argument that inspection based on an adequate warrant would violate the Fourth Amendment.

The question obviously becomes whether the warrant issued in this case comports with Fourth Amendment requirements. We believe the district court should have an opportunity to reassess its contempt citation in the light of the Barlow's decision. We direct the court's attention particularly to footnote 22 of the decision, in which the Supreme Court makes the point that "(d)elineating the scope of a search with some care is particularly important where documents are involved." The warrant issued in this case directed Blocksom to produce for inspection all "records, files, (and) papers" "bearing on" the safety of Blocksom's working environment. Even if the district court should decide that the information put before the magistrate demonstrated probable cause for an inspection, it may well decide that the documentary production required by the warrant was described with inadequate specificity. We express no views on the proper disposition of these questions on remand.

Blocksom also urges us to hold the entire Act unconstitutional because Congress went too far in delegating the legislative authority to create safety and health standards to the Secretary. Article I, Section 1, of the Constitution vests legislative powers in the Congress, and...