647 F.2d 96 (10th Cir. 1981), 79-1501, Marshall v. Horn Seed Co., Inc.

Docket Nº:79-1501.
Citation:647 F.2d 96
Party Name:Ray MARSHALL, Secretary of Labor, Plaintiff-Appellant, v. HORN SEED COMPANY, INC., Respondent-Appellee.
Case Date:April 07, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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647 F.2d 96 (10th Cir. 1981)

Ray MARSHALL, Secretary of Labor, Plaintiff-Appellant,

v.

HORN SEED COMPANY, INC., Respondent-Appellee.

No. 79-1501.

United States Court of Appeals, Tenth Circuit

April 7, 1981

Argued Nov. 19, 1980.

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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, Charles I. Hadden, Acting Asst. Counsel for Appellate Litigation, Washington, D. C., James E. White, Regional Sol., Dallas, Tex., John A. Bryson, Atty., U. S. Dept. of Labor, Washington, D. C., for plaintiff-appellant.

Jack T. Crabtree, Oklahoma City, Okl., for respondent-appellee.

Before SETH, Chief Judge, SEYMOUR, Circuit Judge, and PALMIERI, [*] District Judge.

SEYMOUR, Circuit Judge.

The Secretary of Labor appeals the judgment of the district court dismissing its petition for a contempt order against Horn Seed Company, Inc. The contempt order was sought for Horn Seed's failure to comply

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with a warrant previously issued by the district court pursuant to the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. We affirm the district court's dismissal of the Secretary's petition.

I.

On November 27, 1978, Deborah A. Gann, a compliance officer for the Occupational Safety and Health Administration (OSHA), applied to the district court for a warrant to inspect Horn Seed's premises for possible violations of the Act. The affidavit supporting her application stated:

"On November 7 and November 15, 1978, complaints were received by the Oklahoma City Area Office of OSHA concerning the following hazards which were alleged to exist at the above-described employer's work place: (1) No respiratory protection is provided for employees working with and around chemicals, insecticides, pesticides, etc.; (2) No safety belts used with 'Pickers'; (3) No hard hats; (4) Truck drivers operate under influence of drugs; (5) Some trailers have faulty tires; Flammable storage tank (diesel) creates hazard by leakage; Excessive dust in storage areas.

"

"Based on the above complaints, I have reason to believe that there may be violations of the Occupational Safety and Health Act which could cause serious bodily injury or death to the employees exposed to the above."

Rec., vol. I, at 127. On the basis of this application, Senior U.S. District Judge Luther Bohannon concluded there was probable cause for the inspection and issued a search warrant.

The compliance officer attempted to inspect Horn Seed's place of business, but the company refused to honor the warrant. The Secretary of Labor obtained an order to show cause why Horn Seed should not be held in civil contempt. Horn Seed responded by moving to quash the warrant. After a hearing, U.S. District Judge Ralph G. Thompson entered an order quashing the warrant and dismissing the civil contempt proceedings. He held "as a matter of law, there was no probable cause demonstrated, sufficient to support the issuance of an inspection warrant." Rec., vol. I, at 132. His explanation was that "(u) nder any standard of probable cause, in OSHA inspection warrants based on complaint of employees or their representatives, there must be some knowledge of the facts surrounding the receipt of a complaint by the affiant, and a showing of the standing of the complainant as an employee or employee representative of respondent employer." Id. Finding this issue controlling, the district court did not reach other questions raised by Horn Seed concerning the scope of the warrant and the method of its attempted execution.

The Secretary alleges on appeal that the district court erroneously tested the warrant application by a criminal standard of probable cause instead of "the relaxed notions of administrative probable cause" governing OSHA inspections. Brief for Plaintiff at 14. We agree with the district court that probable cause to issue the warrant was missing, albeit for somewhat different reasons.

II.

Section 8 of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657, authorizes the Secretary of Labor to enter and inspect work places for occupational hazards. Specifically, section 8(a) provides:

"(a) In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines,

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apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee."

29 U.S.C. § 657(a). Further authorization is provided in section 8(f):

"(f)(1) Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger If upon receipt of such notification the Secretary determines there are reasonable grounds to believe that such violation or danger exists, he shall make a special inspection in accordance with the provisions of this section as soon as practicable, to determine if such violation or danger exists."

Id. § 657(f)(1).

Neither of these sections mentions the need for a warrant to inspect. But in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court held that a nonconsensual OSHA inspection pursuant to section 8(a) requires a warrant. 1 The Court also indicated that the Constitution requires the Secretary to obtain a warrant for a section 8(f) inspection. See id. at 320 & n.16, 98 S.Ct. at 1824 & n.16.

Barlow's confirmed the holdings of Camara v. Municipal Court, 387 U.S. 523, 538-39, 87 S.Ct. 1727, 1735-36, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967), that the standard of probable cause applied in criminal cases does not apply to inspections pursuant to legislative or administrative regulatory programs. Instead, the lesser standard of administrative probable cause applies to OSHA inspections. 2 The Barlow's Court declared that the Secretary's

"entitlement to inspect will not depend on his demonstrating probable cause to

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believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular (establishment).' "

436 U.S. at 320, 98 S.Ct. at 1824 (footnote omitted). Thus, the Secretary of Labor can demonstrate probable cause to the presiding judge or magistrate either by showing that "a specific business has been chosen for an...

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