620 F.2d 964 (3rd Cir. 1980), 79-1760, Cerro Metal Products v. Marshall

Docket Nº:Local 1282, Appellants in 79-1760
Citation:620 F.2d 964
Party Name:CERRO METAL PRODUCTS, Division of Marmon Group, Inc. v. MARSHALL, Ray, Secretary of Labor; Rhone, David H., Regional Administrator; Rieder, Matthew, Staff Attorney, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and its Local 1282, (Intervening Defts.) International Union, United Automobile, Aer
Case Date:April 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 964

620 F.2d 964 (3rd Cir. 1980)

CERRO METAL PRODUCTS, Division of Marmon Group, Inc.

v.

MARSHALL, Ray, Secretary of Labor; Rhone, David H., Regional

Administrator; Rieder, Matthew, Staff Attorney,

and

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, and its

Local 1282, (Intervening Defts.)

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, and its

Local 1282, Appellants in 79-1760

Ray Marshall, Secretary of Labor, United States Department

of Labor, Appellant in 79-1761

FLECK INDUSTRIES, INC.

v.

MARSHALL, Ray, Secretary of Labor; Harris, Marshall,

Regional Solicitor; Rhone, David H., Regional

Administrator; Rieder, Matthew, Staff Attorney

and

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America and its Local 585,

International Union, United Automobile, Aerospace and

Agricultural Implement Workers of America, and its

Local 585, Appellants in 79-1762

Ray Marshall, Secretary of Labor, United States Department

of Labor, Appellant in 79-1763.

Nos. 79-1760 to 79-1763.

United States Court of Appeals, Third Circuit

April 24, 1980

Argued Jan. 11, 1980.

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[Copyrighted Material Omitted]

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Arlen Specter (argued), Mari M. Gursky, Bruce A. Cohen, Dechert, Price & Rhoads, Philadelphia, Pa., for appellees.

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Richard Markowitz, Theodore Lieverman, Markowitz & Kirschner, Philadelphia, Pa., John A. Fillion, Gen. Counsel, Jordan Rossen, M. Jay Whitman, Leonard R. Page, Associate Gen. Counsel, Ralph O. Jones, Claude D. Montgomery (argued), Asst. Gen. Counsel, Detroit, Mich., for Intern. Union and its Locals 1282, 585.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health, Allen H. Feldman, Acting Counsel for App. Litigation, Charles I. Hadden (argued), U.S. Dept. of Labor, Washington, D. C., Marshall H. Harris, Regional Sol., Philadelphia, Pa., for the Secretary of Labor.

Before SEITZ, Chief Judge, and ADAMS and WEIS, Circuit Judges.

OPINION

ADAMS, Circuit Judge.

This appeal requires us to decide whether the Occupational Safety and Health Administration (OSHA) has properly authorized its compliance officers to seek ex parte inspection warrants in order to inspect industrial establishments for alleged health and safety violations. The problem is sharpened by the fact that Supreme Court dictum noting that such authority would be constitutional also stated that the relevant regulation did not provide for it. In preliminarily enjoining OSHA from obtaining warrants without providing plaintiff companies notice and an opportunity to be heard in opposition, the district court in effect concluded that, because OSHA had led the Supreme Court to interpret the regulation as excluding the warrants, the agency was "hoist with (its) own petar," 1 and that until the agency amended its regulation, it could not seek ex parte warrants. The district judge went on to hold that, to be binding, a change in the regulation required notice-and-comment rulemaking. We affirm.

I.

The circumstances leading to the complaint in Cerro the first of two cases consolidated in the district court began when an employee was killed at the Bellefonte, Pennsylvania, manufacturing plant of Cerro Metal Products (Cerro). Upon notification by management of the accident OSHA conducted an inspection of the Bellefonte premises and issued a citation for safety violations shortly thereafter.

About a week later, OSHA received a signed complaint from the local union alleging numerous health and safety violations at Cerro's plant. Responding to the complaint, an OSHA compliance officer attempted an inspection, but Cerro denied him access to the worksite. An OSHA staff attorney then advised Cerro that he would apply for an ex parte inspection warrant on November 6, 1978, but on that very day Cerro initiated its own proceeding to enjoin OSHA from obtaining any inspection warrant without notice to the company and an opportunity for a hearing to oppose the warrant application. Cerro complained that (1) the extended inspection (three to four weeks) contemplated by the agency was part of an unjustified scheme of harassment, (2) the attempt to inspect by civil process was a subterfuge to obtain evidence of a crime, 2 and (3) OSHA had granted its officials no authority to apply for ex parte inspection warrants.

Ruling from the bench after a hearing on Cerro's motion, the trial judge granted a temporary restraining order. He expressed serious doubt that Cerro would prevail on its first and second theories, but the third contention that OSHA lacked authority to apply for ex parte warrants was thought to be correct. On November 27, a preliminary injunction based on the same reasoning was entered. The court's order enjoined OSHA "from applying for a search warrant or comparable process authorizing inspection of plaintiff's premises without

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giving plaintiff notice of the pendency of the application sufficient to afford plaintiff an adequate opportunity to be heard in opposition to the issuance of the process applied for."

OSHA did not appeal the order. Instead, it purported to amend the regulation held to be inadequate by the district court. The amendment explicitly interpreted the old regulation as providing for ex parte warrants. 3 Such revision was not thought by OSHA to require notice-and-comment rulemaking because, the agency asserted, it was "an interpretive rule, general statement of policy and rule of agency procedure and practice." 43 Fed.Reg. 59,838 (Dec. 21, 1978). In any event, the amendment served as the basis for the agency's motion to dissolve the preliminary injunction.

Shortly thereafter, Fleck Industries, Inc. (Fleck) entered the fray with a suit to enjoin OSHA from applying for an ex parte warrant to inspect its manufacturing plant in Willow Grove, Pennsylvania. After Fleck was consolidated with Cerro, the district court scheduled a joint hearing on OSHA's motion to dissolve the injunction that had been entered in the Cerro proceeding and on Fleck's prayer for an identical preliminary injunction.

OSHA's motion in Cerro was denied, and a temporary restraining order was granted Fleck, based on an extensive opinion filed March 8, 1979. A preliminary injunction in Fleck soon followed. The United Automobile, Aerospace, and Agricultural Implement Workers of America and its local (hereafter, collectively, Union) moved to intervene as parties' defendant. The motion was granted on May 1, 1979, "subject to the proviso that the intervening defendants are not hereby authorized to require the redetermination of any matters adjudicated prior to the filing of their motion for leave to intervene (April 18, 1979)." OSHA appeals from both interlocutory orders, and the intervenor Union appeals from the order in Fleck.

II.

The parties to this controversy have raised a variety of procedural and jurisdictional objections to our consideration of the merits on this appeal. It is to these issues that we first turn.

  1. Mootness

    Cerro claims that the appeal in its case is moot because, after the district court order of March 8 declining to dissolve the preliminary injunction, OSHA obtained an inspection warrant by adversary process and has now inspected Cerro's premises. 4 This point was argued to the district court by the Union in a slightly different context 5 and was, we hold, correctly rejected.

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    The Union had contended that the Cerro injunction jeopardized enforcement of the Act because OSHA would not be able to preserve the issue for appeal if it fulfilled its statutory obligation to protect the health and safety of workers by inspecting the plant pursuant to compulsory process other than ex parte. But the preliminary injunction is not limited to one inspection, and no party contends that one completed inspection removes the possibility of future attempts. The fact that OSHA has since been admitted to Cerro's property does not render the controversy moot, but only makes the circumstances surrounding it somewhat less exigent. See the district court's opinion, 467 F.Supp. 869, 873 n. 4 (W.D.Pa.1979).

  2. Standing of Intervenor to Appeal

    We are said to lack appellate jurisdiction over the Union's appeal from the order in Fleck because "the union was granted only a limited status as an intervenor, which does not include standing with regard to the issue being appealed." Brief for Appellees at 1. No authority is cited for this broad proposition, except the district court's proviso in granting leave to intervene that the Union was not "authorized to require the redetermination of any matters adjudicated prior to the filing of" the motion to intervene. We do not interpret this language as purporting to foreclose the Union's right to appeal the prior interlocutory order. An appeal is not retrograde, but is part of the statutorily authorized progress of a litigation.

    Because we conclude that the order granting the Union full party status as an intervenor does not attempt to foreclose it from appealing the court's prior interlocutory order, we need not decide whether such a condition is proper when, as is apparently true here, 6 intervention of right under Fed.R.Civ.P. 24(a) is granted. 7 Consequently, we see no reason to depart from the general rule that an intervenor may appeal from any order adversely affecting the interest that served as a basis for intervention. 8

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    Furthermore, little if anything hinges on the point since OSHA also appealed in Fleck.

  3. Exhaustion of Administrative Remedies

    OSHA argues that we should not consider any...

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