Donovan v. Wollaston Alloys, Inc., 82-1219

• Decision Date: 02 February 1983
• Docket Number: No. 82-1219,82-1219
• Citation: 695 F.2d 1
• Parties: 10 O.S.H. Cas.(BNA) 2209, 1982 O.S.H.D. (CCH) P 26,337 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, Appellee, v. WOLLASTON ALLOYS, INC., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1

695 F.2d 1

10 O.S.H. Cas.(BNA) 2209, 1982 O.S.H.D. (CCH)

P 26,337

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, Appellee, v. WOLLASTON ALLOYS, INC., et al., Defendants, Appellants.

No. 82-1219.

United States Court of Appeals, First Circuit.

Argued Sept. 14, 1982.

Decided Dec. 6, 1982.

As Modified Jan. 6, 1983.

Rehearing and Rehearing En Banc Denied Feb. 2, 1983.

Robert D. Moran, with whom Vorys, Sater, Seymour and Pease, Washington, D.C., was on brief, for defendants, appellants.

Dennis K. Kade, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., with whom Albert H. Ross, Regional Sol., Boston, Mass., T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Solicitor for Occupational Safety and Health, and Andrea C. Casson, Attorney, Washington, D.C., were on brief, for plaintiff, appellee.

Before DAVIS, ^* CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Appellant, Wollaston Alloys, Inc., appeals from an order of the district court holding it in civil contempt for refusing to honor an earlier order that it comply with all but one provision of an Occupational Safety and Health Administration (OSHA) inspection warrant. Wollaston's challenges to the district court's order fall within two basic categories: (1) the inspection warrant was invalid because, for a number of reasons, it lacked an adequate showing of probable cause; and (2) the Secretary of Labor's inspection selection program was invalid because it was not published in the Federal Register. We find no merit in Wollaston's challenges and, therefore, affirm the district court's contempt order.

I. Factual Background

On July 31, 1981, a United States Magistrate issued a warrant for inspection under the Occupational Safety and Health Act (the Act) authorizing a named OSHA compliance officer or any other authorized compliance officer to enter the premises of Wollaston Alloys, Inc., in Braintree, Massachusetts, "during regular working hours or at other reasonable times" and to inspect "in a reasonable manner and to a reasonable extent as defined in Exhibit I ... the workplace" of Wollaston's employees. Exhibit I, attached to the warrant, was a two-page letter from OSHA to the employer. This letter stated that OSHA had selected the company for inspection as part of the agency's program for high-hazard safety inspections and then it briefly described that program's selection process. ¹ The letter then detailed the procedures to be followed by the compliance officer during the visit. ² The warrant also authorized the inspection of records, files, and other items bearing on the existence of recognized hazards that would be likely to cause death or serious injury and on "whether this employer is complying with the Occupational Safety and Health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act."

The application for this warrant consisted of a sworn statement of the OSHA compliance officer and a five-page description of the Region I Targeting Alternative Project. In his statement the officer set forth the objective of the Targeting Alternative Project: "to focus safety inspection resources on industries known to have experienced a substantial percentage of all lost work day cases in Massachusetts [by directing inspections] at those occupations in which target injuries are likely to occur." The officer stated that Wollaston was within a high-hazard industry and had been scheduled for inspection according to the procedures of the Targeting Alternative Project. The officer also stated that the inspection would take place during regular working hours, would occur as soon as practicable after issuance of the warrant, and would be completed with reasonable promptness. The description of the Targeting Alternative Project indicated that OSHA would use data prepared by the Commonwealth of Massachusetts Department of Labor and Industries for the United States Bureau of Labor Statistics to help identify those industries having the highest incidence of serious injuries in the state. The project would rank industries, identified by their Standard Industrial Classification (SIC) numbers, in descending order according to their injury frequency rate--number of target injuries ³ per employee hours worked. The description in the warrant application stated that "specific site selection will be made alphabetically within SIC codes, as scheduling permits, starting with the top ranked SIC and working down in order of SIC code injury ranking." Inspections were to be scheduled for all establishments within a given SIC code before scheduling in the next ranked industry. The overall goal was to conduct 300 inspections annually under the program, and "firms which have had substantially complete safety inspections within the previous fiscal year (or 2 fiscal years with no serious violations cited)" would not be inspected.

The compliance officer visited Wollaston three days after the magistrate issued the warrant, but was informed that the plant was in the midst of a shutdown which would last one more week. He returned two weeks later and served the warrant upon Wollaston's president who refused him entry based on the company's position that the warrant was invalid. Shortly thereafter the Secretary filed a petition for adjudication of civil contempt and Wollaston filed a motion to quash the warrant. After an oral hearing and consideration of briefs, the magistrate issued a report recommending, inter alia, that the district court adjudicate Wollaston in civil contempt and enter an order enforcing compliance with the warrant except to the extent that it authorized the use of personal sampling devices. ⁴ After oral argument on Wollaston's objections to the magistrate's report, the district court ordered, on February 16, 1982, that no further evidence be received, that Wollaston's motion to quash be denied, that Wollaston comply with the warrant except with respect to the taking of samples by personal sampling devices, and that the Secretary's petition for civil contempt be denied without prejudice.

On February 23, 1982, the compliance officer returned to Wollaston and presented its vice-president with a copy of the district court's order and the original warrant. The vice-president refused to permit the inspection and the Secretary then filed a second petition for adjudication of civil contempt. The court ordered Wollaston to show cause why it should not be adjudged in contempt. Wollaston's attorney received the order on February 26, 1982, and, being unable to attend the March 1 show cause hearing, requested the Secretary to inform the court that Wollaston wished to submit the matter for disposition on the basis of the compliance officer's affidavit. On March 1, 1982, the district court issued its order holding Wollaston in civil contempt and allowing Wollaston to purge itself of contempt by obeying its earlier order within forty-eight hours. The order provided for penalties of $5,000 per day if Wollaston failed to purge itself. Wollaston filed its appeal to this court from the district court's February 16 and March 1 orders and moved that court for a stay of its order. This motion for a stay was denied by the district court and then denied by this court on March 11. The company then allowed the inspection.

II. Validity of the Warrant

Wollaston argues that the traditional "specific evidence" standard of probable cause applied in criminal cases was required for this inspection warrant because it authorized an inspection which was not limited to the civil penalty provisions of the Act. In Marshall v. Barlow's, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978), the Supreme Court stated that "[p]robable cause in the criminal sense is not required" for an OSHA administrative search. Wollaston's argument is based in part on an OSHA directive to its compliance personnel issued in 1979, after Barlow 's was decided, which suggested that the agency should use the criminal as well as the civil provisions of the Act to deal with the problem of workplace deaths. Wollaston also cites a 1981 United States Department of Labor news release--indicating that the sanctions of the Act, 29 U.S.C. Sec. 666(g) (1976) (fine of not more than $10,000, imprisonment for not more than six months, or both), for falsification of records required to be maintained may be imposed as a result of an inspection--as evidence of a shift in emphasis such that the criminal probable cause standard applies to this inspection. One commentator has stated that "[e]nforcement of OSHA rests on civil penalties, not criminal law." 1 K. Davis, Administrative Law Treatise Sec. 4:11, at 258 (2d ed. 1978). We are not convinced that this basic enforcement approach has been changed and, in any event, criminal penalties were not the main focus of the inspection at issue. The Supreme Court's holding in Michigan v. Tyler clearly indicates that for such inspections probable cause in the administrative sense is all that is necessary. In that case, the Court held that entry into a building by fire officials to fight a fire requires no warrant and that subsequent entries to investigate the fire's cause require an administrative warrant. Once officials believe that arson has occurred, however, further entry requires a warrant based upon a traditional showing of probable cause in the criminal sense. Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S.Ct. 1942, 1950-51, 56 L.Ed.2d 486 (1978). In the instant case there has been no indication that the OSHA compliance officer suspected criminal violations or was seeking to find evidence of such violations. That criminal sanctions could possibly be imposed as a result of the inspection is not sufficient to alter the requisite probable cause showing.

In Barlow's the Court held that the Act is unconstitutional to the extent that it authorizes...