Weyerhaeuser Co. v. Marshall

• Citation: 592 F.2d 373
• Decision Date: 09 February 1979
• Docket Number: No. 78-2013,78-2013
• Parties: 7 O.S.H. Cas.(BNA) 1090, 1979 O.S.H.D. (CCH) P 23,325 WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Ray MARSHALL, Secretary of Labor, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 373

592 F.2d 373

7 O.S.H. Cas.(BNA) 1090, 1979 O.S.H.D. (CCH) P 23,325

WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Ray MARSHALL, Secretary of Labor, et al., Defendants-Appellants.

No. 78-2013.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1978.

Decided Feb. 9, 1979.

Truman Q. McNulty, Milwaukee, Wis., for plaintiff-appellee.

Carin A. Clauss, Solicitor of Labor, Allen H. Feldman, Dennis K. Kade, Counsel for Appellate Litigation and Thomas L. Holzman, U. S. Dept. of Labor, Washington, D. C., (on the brief) Benjamin W. Mintz, U. S. Dept. of Labor, Washington, D. C., for defendants-appellants.

Before CASTLE, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.

CASTLE, Senior Circuit Judge.

Compliance officers of the Occupational Safety and Health Administration (OSHA) sought to conduct a safety and health inspection of the Weyerhaeuser Company's Manitowoc, Wisconsin, corrugated box manufacturing plant after receiving a written employee complaint of an unsafe working condition. Section 8(f)(1) of the Occupational Safety and Health Act of 1970 ("the Act") requires such inspections if the complaint gives OSHA reasonable grounds to believe that "a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists." 29 U.S.C. § 657(f)(1). Weyerhaeuser initially denied entry to the officers, but when they subsequently returned with a warrant duly issued by a United States magistrate, the company allowed the inspection "under protest." ¹

As a result of the ensuing inspection, Weyerhaeuser was cited for a number of violations of the Act, principally relating to the absence of protective guarding on some of its machinery and excessive operating noise levels. Prior to an administrative hearing on these citations, Weyerhaeuser filed suit in federal district court to suppress the evidence obtained from the inspection, enjoin the administrative proceedings, and obtain a declaration that its fourth amendment rights had been violated by reason of the issuance of a warrant without an adequate showing of probable cause. The district court granted Weyerhaeuser the requested relief.

The issues on review are (1) whether the district court erred in deciding the probable cause issue prior to exhaustion of administrative remedies, and (2) if its exercise of jurisdiction was not premature, whether the warrant application comported with the fourth amendment's requirements for administrative probable cause, as set out in Marshall v. Barlow's, Inc. 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

EXHAUSTION OF ADMINISTRATIVE REMEDIES

There is no question that Weyerhaeuser did not exhaust its administrative remedies. The parties were still engaged in discovery prior to the administrative hearing when Weyerhaeuser initiated this action in the In Hayes-Albion the court did not require exhaustion in a similar situation because "the expertise of the (OSHA) Review Commission . . . would not aid in the judicial determination of the constitutionality of the administrative search. . . ." In Morris the court ruled on the validity of the warrant prior to a final agency decision because (1) there was no possibility of the citations being dismissed since the company had admitted the existence of violations at the time of the inspection, (2) the probable cause question was not one within the competency and expertise of the OSHA Review Commission, (3) it would have been unfair to require the company to exhaust administrative remedies before it could obtain a judicial ruling on the propriety of the warrant, and (4) the district court should retain power to determine the legality of its process just as it should retain jurisdiction to enforce its process by contempt if necessary. Barlow's, Inc. v. Usery was also cited by the district court in support of its position; however, we find that case to be distinguishable as no inspection had yet taken place there and the company challenged the constitutionality of the Act, not the validity of a warrant as here. If exhaustion had been required, the company would have been forced to choose between giving up its asserted right of privacy or facing possible contempt of court.

district court to contest the validity of the warrant. That court determined it had jurisdiction despite the pendency of the administrative proceedings because "no significant interest would be furthered by requiring the plaintiff to present the issue of the warrant's validity at the administrative level." Weyerhaeuser Co. v. Marshall, 452 F.Supp. 1375, 1377 (N.D.Wis.1978), citing Hayes-Albion Corp. v. Marshall, 5 BNA OSHC 1968 (N.D.Ohio 1977), Morris v. United States Dept. of Labor, 439 F.Supp. 1014 (S.D.Ill.1977), Appeal docketed, No. 78-1051 (7th Cir. 1978), Barlow's, Inc. v. Usery, 424 F.Supp. 437 (D.Idaho 1977), Aff'd sub nom. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978).

The rationale common to both Hayes-Albion and Morris was that exhaustion of administrative remedies should not be required with respect to an issue over which the agency has no expertise. Lack of agency expertise, however, does not alone justify an exception to the exhaustion rule. An agency has no particular expertise to decide on the constitutionality of its own enabling act and will not ordinarily rule on the issue in any event, see Rosenthal & Company v. Bagley, 581 F.2d 1258, 1260 (7th Cir. 1978), but exhaustion has nevertheless been required. See, e. g., W. E. B. DuBois Clubs of America v. Clark, 389 U.S. 309, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967); Blocksom and Company v. Marshall, 582 F.2d 1122 (7th Cir. 1978). The reasons for requiring exhaustion even in such a situation are that (1) the agency will develop the factual record so that the court will not have to decide "important and difficult" questions of constitutional law devoid of a factual context and (2) the agency may decide favorably to the aggrieved party on other grounds, thus mooting the constitutional issue and relieving the courts of the need to decide it. DuBois Clubs of America, supra at 312, 88 S.Ct. 450; Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). As neither of these reasons for requiring exhaustion is present in the case of an attack on the validity of a warrant, we agree with the district court that exhaustion is not required in the circumstances of this case. There is no benefit to be derived here from prior agency development of the factual record as the court need only look to the face of the warrant application to decide whether it met the requirements of administrative probable cause. Nor is there any possibility of the agency decision mooting the probable cause issue as the fourth amendment injury resulting from the alleged illegal inspection will remain even if the citations are dismissed, ² and we discount In addition, we believe that considerations of sound judicial administration support an exception to the general requirement of exhaustion in the case of an attack on the validity of a warrant. The probable cause determination here challenged by Weyerhaeuser was originally made by a United States magistrate. As magistrates are appointed, assigned duties, and generally supervised by the district courts, see Magistrates Act of 1976, 28 U.S.C. §§ 631(a) and 636(b) (3), it is desirable that the latter should be afforded the opportunity of reviewing a magistrate's probable cause determination. Yet, if exhaustion were required, appeal from the final agency decision would lie directly to the court of appeals, bypassing the district court altogether.

the possibility that the agency would rule on the probable cause issue, as counsel for the Secretary informed us at oral argument that the OSHA Review Commission has never ruled on the issue of a warrant's validity.

In a criminal context, we have rejected an attempt to appeal a magistrate's probable cause determination directly to this court, citing the needs of "the efficient administration of criminal justice." United States v. Reeds, 552 F.2d 170 (7th Cir. 1977). The Eighth Circuit has stated that "the district court has inherent power to review the final decisions of its magistrates." Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir. 1975). Our recent decision in Blocksom and Company v. Marshall, supra, also suggests the desirability of affording the district court the opportunity of reviewing its magistrates' probable cause determinations. In that case, the district court cited the company for civil contempt after it refused to permit an OSHA inspection supported by a facially valid warrant. We remanded to the district court with instructions to determine whether the warrant was issued upon an adequate showing of probable cause under the standards of Marshall v. Barlow's, supra, and to take action on its contempt citation in accordance with its decision on this issue. ³ It is noteworthy that we allowed the district court to rule on the probable cause issue rather than deciding it ourselves, as we could have done. ⁴

We conclude that Weyerhaeuser should be permitted to challenge the warrant's validity in district court despite the pendency of administrative proceedings, and accordingly, that the district court properly exercised its jurisdiction.

PROBABLE CAUSE

Turning to the merits, we need only examine the warrant application which OSHA presented to the magistrate to determine whether probable cause to conduct an...