592 F.2d 373 (7th Cir. 1979), 78-2013, Weyerhaeuser Co. v. Marshall

Docket Nº:78-2013.
Citation:592 F.2d 373
Party Name:WEYERHAEUSER COMPANY, Plaintiff-Appellee, v. Ray MARSHALL, Secretary of Labor, et al., Defendants-Appellants.
Case Date:February 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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592 F.2d 373 (7th Cir. 1979)

WEYERHAEUSER COMPANY, Plaintiff-Appellee,

v.

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

No. 78-2013.

United States Court of Appeals, Seventh Circuit

February 9, 1979

Argued Dec. 6, 1978.

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[Copyrighted Material Omitted]

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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

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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).

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...

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