Smith Steel Casting Co. v. Brock

• Decision Date: 19 September 1986
• Docket Number: No. 85-4346,85-4346
• Citation: 800 F.2d 1329
• Parties: , 12 O.S.H. Cas.(BNA) 2121, 1986-1987 O.S.H.D. ( 27,699 SMITH STEEL CASTING COMPANY, Petitioner, v. William E. BROCK, Secretary of Labor, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1329

800 F.2d 1329

55 USLW 2198, 12 O.S.H. Cas.(BNA) 2121,

1986-1987 O.S.H.D. ( 27,699

SMITH STEEL CASTING COMPANY, Petitioner, v. William E. BROCK, Secretary of Labor, Respondent.

No. 85-4346.

United States Court of Appeals, Fifth Circuit.

Sept. 19, 1986.

Robert D. Moran, Vorys, Sater, Seymour & Pease, Washington, D.C., for petitioner.

Sandra Lord, Atty., Daniel J. Mick, Office of the Sol., U.S. Dept. of Labor, Ray H. Darling, Executive Secretary, O.S.H.R.C., Washington, D.C., for respondent.

Petition for Review of an Order of the Occupational Safety and Health Review Commission.

Before GEE, GARZA, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

This is an appeal from an order of the Occupational Safety and Health Review Commission ("OSHRC" or "the Commission"), upholding the ruling of an administrative law judge ("ALJ") against Smith Steel Casting Co., Inc. ("Smith") for failure to comply with OSHA standards codified in 29 C.F.R. Secs. 1910.134 and 910.1000 (1980).

                In affirming the ALJ, OSHRC upheld the admission of evidence obtained during an inspection of Smith's facilities conducted under an invalid inspection warrant.  Smith challenges both OSHRC's refusal to apply the exclusionary rule and its decision to permit consideration of the illegally obtained evidence under the good faith exception to that rule.    See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).  We hold that under the principles announced in Leon and in I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), the exclusionary rule does not extend to OSHA proceedings conducted for the purpose of correcting violations of occupational safety and health standards.  The rule is applicable, however, where the object of the proceeding is to punish the employer for past violations of OSHA regulations--unless the good faith exception applies
                

Facts

At a foundry in Marshall, Texas, Smith produces iron castings made to customer specifications. The casting process necessarily exposes some of Smith's employees to high levels of noise, silica dust, and copper fumes. In 1979, an OSHA compliance officer named Hogan conducted a general inspection of Smith's plant and noted potential hazards to the health of some Smith employees from air contaminants and excessive noise. Being unqualified to test for excessive levels of air contaminants or noise, Hogan referred his observations to the OSHA area director, who in turn assigned the matter for inspection to an industrial hygienist named Matthews. In January 1980, Matthews and an OSHA trainee concluded, after an initial walkaround inspection of the Smith foundry, that air sampling and noise monitoring were necessary, and made arrangements with Smith to return the following morning to begin the testing. The compliance officer who arrived the next morning, however, was denied access to the manufacturing area and told to wait. At last, after an hour, the company's president told him that he would not be permitted to enter the foundry, allegedly stating as the reason that the company did not have time to accompany the officer because they were busy abating all the violations earlier found by Hogan. The Secretary of Labor responded by applying to a United States Magistrate for an ex parte warrant to inspect and test Smith's plant for, among other things, overexposure to silica dust, copper fumes, and noise. The application was granted, the warrant was issued, the inspection conducted, and the testing done.

Based on evidence obtained by means of the warrant, OSHA issued citations to Smith alleging that feasible engineering controls to limit exposure to silica dust and copper fumes had not been installed, that Smith lacked an effective hearing conservation program, and that a number of regulations regarding the selection and use of respirators had been violated. Smith contested these citations on the merits, asserting that no violations had occurred and arguing as well that the evidence gathered during the inspection should be suppressed because it had been obtained under an invalid warrant. Administrative Law Judge Salyers concluded that the warrant was invalid under Donovan v. Huffines Steel Co., 645 F.2d 288 (5th Cir.1981) (Huffines ), in which this Court invalidated an administrative search warrant obtained ex parte by the Secretary of Labor. Accordingly, Judge Salyers suppressed the evidence and vacated the citations.

On appeal, OSHRC vacated Judge Salyers's decision and remanded the case. The Commission held that, under OSHA regulations in effect at the time the warrant was issued, the Secretary of Labor was authorized to obtain the warrant ex parte, thus permitting use of the evidence acquired during the inspection. Smith Steel Casting Co., 82 OSAHRC 37/D10, 10 BNA OSHA 1764, 1982 CCH OSHD p 26,136 (No. 80-2069, 1982). On remand, Judge Salyers held an evidentiary hearing and affirmed the citations. OSHRC declined review of Judge Salyers's second decision and Smith appealed to us.

In Smith Steel Casting Co. v. Donovan, 725 F.2d 1032 (5th Cir.1984) (Smith I ), we reiterated our holding in Huffines that the OSHA regulations in effect at the time of the challenged search of Smith's foundry did not authorize the issuance of an ex parte administrative search warrant. In Smith I, the Secretary did not contest the invalidity of the warrant or the striking of OSHRC's decision to ignore Huffines. Instead, he urged upon us that the tainted evidence was properly admitted on remand to Judge Salyers for one or both of two reasons. First, that Huffines should not be applied retroactively, second, that the good faith exception to the exclusionary rule was appropriately applicable to this case, citing United States v. Williams, 622 F.2d 830 (5th Cir.1980) (en banc), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981). We observed in Smith I that both of these contentions might be meritorious, but declined to address either, holding that the Commission must first decide "what evidence will be considered on application of its own rules respecting exclusion and admission of evidence seized under an invalid warrant." Smith I, 725 F.2d at 1036. So noting, we remanded the case to OSHRC. The Commission held on remand that the evidence against Smith should not be suppressed, and Smith once again appeals to us.

Power of the Secretary v. Power of the Commission

The Secretary of Labor argues that OSHRC lacks authority either to apply the exclusionary rule or its good faith exception. Only he, the argument runs, is empowered to decide whether these evidentiary rules can be utilized by OSHRC, because he is the principal administrator and sole policy maker under the Occupational Safety and Health Act. Thus, the threshold question before us is whether the Secretary or the Commission, or both of them, has power under the Act to dictate whether the exclusionary rule and the good faith exception will be employed in proceedings before OSHRC.

This Court provided the answer in Smith I where we held:

The decision whether proceedings before the Review Commission shall be governed by either of these exceptions [a non-retroactivity rule or the good faith exception] to the exclusionary rule rests with the Commission. We will review the Commission's evidentiary rulings in individual cases only for Fourth Amendment reasonableness and non-arbitrary application.

Smith I, 725 F.2d at 1036 (brackets ours). Because the Secretary seriously challenges this Smith I ruling, however, and because Smith I did not explain our reasoning behind this holding, we do so today.

The legislative history of the Act makes clear what roles Congress intended for the Secretary and the Commission. See generally Staff of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub.L. No. 91-596) (Comm.Print 1971) ("Legislative History"). The Secretary of Labor urges that the legislative and executive powers created by the OSH Act are delegated exclusively to the Secretary, noting that OSHRC has neither prosecution nor enforcement powers. Although we need not quarrel today with these contentions as general propositions, and while we recognize that the Secretary's rule-making authority is broad, we are concerned in today's case with the power to adopt rules and policies governing the process of adjudication. The Act places control of adjudicatory functions in the Commission. Furthermore, the lengthy Congressional debates and successful Senate floor amendment stripping the Secretary of authority over adjudication clearly establish that Congress deliberately created OSHRC to be an entity separate and independent of the Secretary of Labor. ¹ See Legislative We are not alone in recognizing that adjudicatory functions rest with the Commission by deliberate Congressional design. Brock v. Schwarz-Jordan, Inc., 777 F.2d 195, 197 (5th Cir.1985); Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 65 (1st Cir.1985); Donovan v. International Union, Allied Industrial Workers, 722 F.2d 1415, 1421 (8th Cir.1983); Donovan v. O.S.H.R.C., 713 F.2d 918, 930-31 n. 21 (2d Cir.1983); Oil, Chemical & Atomic Workers v. O.S.H.R.C., 671 F.2d 643, 651 (D.C.Cir.), cert. denied 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982); Marshall v. O.S.H.R.C., 635 F.2d 544, 547 (6th Cir.1980); Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1180-84 (3d Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980); ² International Union v. O.S.H.R.C., 557 F.2d 607, 610 (7th Cir.1977); Brennan v. Giles & Cotting, Inc., 504 F.2d 1255, 1262 (4th Cir.1974); Dale M. Madden Construction v. Hodgson, 502 F.2d 278 (9th Cir.1974). Furthermore, Congress has mandated, "The Commission is authorized to make such rules as are necessary for the orderly transaction of its proceedings." 29 U.S.C. Sec. 661(g) (1982). Accordingly, OSHRC...