604 F.2d 1322 (10th Cir. 1979), 79-1600, Marshall v. W and W Steel Co., Inc.

Docket Nº:79-1600.
Citation:604 F.2d 1322
Party Name:CA 79-3234 Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. W AND W STEEL COMPANY, INC., Defendant-Appellant.
Case Date:August 28, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1322

604 F.2d 1322 (10th Cir. 1979)

CA 79-3234 Ray MARSHALL, Secretary of Labor, United States

Department of Labor, Plaintiff-Appellee,

v.

W AND W STEEL COMPANY, INC., Defendant-Appellant.

No. 79-1600.

United States Court of Appeals, Tenth Circuit

August 28, 1979

Argued Aug. 2, 1979.

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Thomas L. Holzman, Atty., Washington, D. C. (Carin A. Clauss, Sol. of Labor; Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health; Allen H. Feldman, Acting Counsel, for appellate litigation; and Charles I. Hadden, Acting Asst. Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., on brief), for plaintiff-appellee.

Jack T. Crabtree, Oklahoma City, Okl. (Buck & Crabtree, Oklahoma City, Okl., on brief), for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

In an Ex parte proceeding, the Secretary of Labor obtained an inspection warrant

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from a United States Magistrate sitting in Albuquerque, New Mexico. The inspection warrant, which was sought following an employee complaint, authorized entry into the Albuquerque plant of W and W Steel Company by a compliance officer of the Occupational Safety & Health Administration (OSHA) in Albuquerque, for the purpose of inspecting and investigating work conditions within the tank construction welding area. The warrant also authorized a review of company records "directly related to the purpose of the inspection."

Following an earlier unsuccessful warrantless inspection, a compliance officer of OSHA, armed with the warrant above referred to, twice presented himself at the plant of W and W Steel Company and demanded entry. Such entry was refused. The Secretary then filed a complaint in the United States District Court for the District of New Mexico seeking to have the W and W Steel Company and its officers held in contempt for their refusal to comply with the warrant. A show cause order issued. By way of response, W and W Steel Company filed a motion to dismiss the Secretary's complaint and to vacate the show cause order and to quash the warrant.

Upon hearing, the trial court held W and W Steel Company in contempt and ordered the Company to pay a penalty of $500 per working day, the penalty to continue until such time as W and W Steel Company purged itself of contempt by permitting the Secretary's duly authorized representative to inspect the tank welding area maintained by W and W Steel Company. W and W Steel Company now appeals the order of court adjudging it to be in contempt, and the penalty imposed in connection with that order. We granted a stay of the trial court's contempt order, and set an expedited briefing schedule. The matter was also orally argued on an expedited basis and is now ready for final determination.

In our view, the principal issue is whether the Secretary had the authority to obtain the inspection warrant Ex parte, or, on the contrary, must notice have been given W and W Steel Company to the end that the latter could have appeared and contested the issuance of the warrant in a trial setting. Some background facts should be set forth if the critical issue is to be viewed in context.

On April 10, 1979, the Albuquerque Area Office of OSHA received a written, signed complaint from one Herman Sedillo, a W and W Steel Company employee, alleging the existence of an unsafe condition in the W and W Steel Company's plant. Specifically, the complaint stated that welding was being performed in a confined...

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