670 F.2d 838 (9th Cir. 1982), 80-3440, Hern Iron Works, Inc. v. Donovan

Docket Nº:80-3440.
Citation:670 F.2d 838
Party Name:P 25,959 In the Matter of Establishment of Inspection of: HERN IRON WORKS, INC., Respondent-Appellant, v. Raymond J. DONOVAN, Secretary of Labor, U. S. Department of Labor, Petitioner-Appellee.
Case Date:March 01, 1982
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 838

670 F.2d 838 (9th Cir. 1982)

P 25,959

In the Matter of Establishment of Inspection of: HERN IRON

WORKS, INC., Respondent-Appellant,

v.

Raymond J. DONOVAN, Secretary of Labor, U. S. Department of

Labor, Petitioner-Appellee.

No. 80-3440.

United States Court of Appeals, Ninth Circuit

March 1, 1982

        Argued and Submitted Dec. 8, 1981.

        Terry E. Coffin, Runft & Longeteig, Boise, Idaho, for respondent-appellant.

        Ann D. Nachbar, Charles I. Hadden, Allen H. Feldman, T. Timothy Ryan, Jr., Benjamin W. Mintz, Washington, D. C., for petitioner-appellee.

        Appeal from the United States District Court for the District of Idaho.

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        Before KILKENNY, GOODWIN, and SKOPIL, Circuit Judges.

        SKOPIL, Circuit Judge:

        Hern Iron Works appeals a contempt order entered against it for failure to honor an OSHA inspection warrant. The contempt order is affirmed.

        FACTS AND PROCEEDINGS BELOW

        Hern Iron Works, Inc., ("Hern") operates a foundry in Coeur d'Alene, Idaho. On March 23, 1979 a Hern employee filed a complaint with the Occupational Safety & Health Administration ("OSHA"). 1 The complaint alleged that (1) employees in the metal pouring section of the plant were required to pour molten metal without instructions, and without protective clothing, or equipment, and (2) there was no ventilation in the foundry area.

        Because Hern had a history of not consenting to OSHA inspections, 2 the government obtained a full scope inspection warrant. When the warrant was served on April 18, 1979, Hern denied entry to OSHA officer Ronald Stokes. In early June 1979, the Department of Labor applied for an enforcement order. The district court denied the order because the warrant had been improperly issued to John Hern rather than to Hern Iron Works, Inc.

        OSHA obtained a second warrant on June 22, 1979 based on the employee complaint of March 1979. When Hern refused to honor the warrant, the Department of Labor in August 1979 applied for an order to show cause re contempt. After postponements of nearly nine months, none due to the government, a hearing was held on June 9, 1980. Again the district court declined to find contempt-this time because of improper service of the warrant.

        On June 16, 1980 the government again obtained a full scope warrant based on the employee complaint of March 1979. When served with the warrant, Mr. John Hern stated that he would "sell (his) place" before allowing an OSHA inspection. At a hearing on August 11, 1980 Hern, appearing pro se, repeated "strong moral objections to the OSHA Act." He argued that there was no probable cause for issuance of a warrant, and that the warrant was overbroad.

        A contempt order issued and Hern was fined $1,000. After obtaining a stay pending appeal, Hern filed timely notice of appeal on August 14, 1980.

        ISSUES

  1. WAS THE JUNE 16, 1980 INSPECTION WARRANT BASED UPON STALE PROBABLE CAUSE?

  2. WAS THE JUNE 16, 1980 INSPECTION WARRANT OVERBROAD?

        DISCUSSION

       I. PROBABLE CAUSE FOR ISSUANCE OF THE JUNE 16, 1980 INSPECTION WARRANT.

        Hern contends that the employee complaint dated March 16, 1979 could not provide probable cause for issuance of a warrant on June 16, 1980, some 15 months later. In support of this position, Hern relies on cases pertaining to standards of probable cause for issuance of search warrants in criminal proceedings. See, e.g., Sgro v. United States, 287 U.S. 206, 211-12, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932); Schoeneman v. United States, 317 F.2d 173, 177 (D.C.Cir.1963).

        In Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), however, the Supreme Court held that warrants for OSHA inspections need not be based on "probable cause in the criminal law sense." Id. at 320, 98 S.Ct. at 1824. Subsequently "virtually every federal court ... has concluded that criminal probable cause is not required for issuance of a warrant for an

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OSHA inspection based on employee complaints." Burkart Randall Div. of Textron, Inc. v. Marshall, 625 F.2d 1313, 1318 n.6 (7th Cir. 1980). See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1287-88 (9th Cir. 1979).

        In determining the degree of simultaneity needed for filing of an employee complaint and issuance of an OSHA...

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