Donovan v. Trinity Industries, Inc.

• Decision Date: 24 September 1987
• Docket Number: No. 86-1623,86-1623
• Citation: 824 F.2d 634
• Parties: 13 O.S.H. Cas.(BNA) 1369, 13 O.S.H. Cas.(BNA) 1416, 1987 O.S.H.D. (CCH) P 27,983 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellee, v. TRINITY INDUSTRIES, INC., a Texas Corporation doing business in Crittenden County, Arkansas, as Hackney, Inc., and John Brooks, Appellants. Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellee, v. TRINITY INDUSTRIES, INC., a Texas Corporation doing business in Crittenden County, Arkansas, as Hackney, Inc., and Donald Stephens, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 634

824 F.2d 634

13 O.S.H. Cas.(BNA) 1369, 13 O.S.H. Cas.(BNA) 1416,

1987 O.S.H.D. (CCH) P 27,983

Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor, Appellee, v. TRINITY INDUSTRIES, INC., a Texas Corporation doing business

in Crittenden County, Arkansas, as Hackney, Inc.,

and John Brooks, Appellants.

Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor, Appellee, v. TRINITY INDUSTRIES, INC., a Texas Corporation doing business

in Crittenden County, Arkansas, as Hackney, Inc.,

and Donald Stephens, Appellants.

No. 86-1623.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1987.

Decided July 22, 1987.

Rehearing and Rehearing En Banc Denied Sept. 24, 1987.

Robert E. Rader, Jr., Dallas, Tex., for appellants.

Andrea C. Casson, Washington, D.C., for appellee.

Before HEANEY, McMILLIAN and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

In 1983, a federal magistrate issued the Secretary of Labor two warrants, one authorizing a health inspection and the other a safety inspection of Trinity Industries, Inc.'s, Crittenden County, Arkansas, pipe fabricating plant for possible violations of the Occupational Safety and Health Act, 29 U.S.C. Secs. 651-678. Trinity refused to permit both inspections. The Secretary petitioned the district court to hold Trinity, plant manager John Brooks, and office manager Donald Stephens in civil contempt for failing to honor the warrants. In the contempt proceeding, Trinity filed a counterclaim for a declaratory judgment that both warrants were invalid because the Secretary had not established probable cause and because the administrative plan for scheduling health and safety inspections was invalid. Trinity attempted to discover information concerning the formulation and operation of the Occupational Health and Safety Administration's (OSHA) safety and health inspection programs as well as the inspection of Trinity pursuant to those programs. The district court dismissed Trinity's counterclaim, upheld the validity of the warrants, held Trinity, Brooks, and Stephens in civil contempt, and ordered Trinity to pay a civil fine of $1,000 per day as of May 1, 1986. The district court stayed judgment pending appeal.

In this appeal, appellants claim: 1) the Secretary did not establish probable cause to justify issuance of the warrants; 2) the district court erred in not permitting discovery into the plan; and 3) the district court erred in holding Brooks and Stephens in contempt. The Secretary asserts that Trinity is collaterally estopped from litigating the issue of whether it is entitled to a declaratory judgment and discovery because it previously unsuccessfully litigated the same issue in two other Circuit Courts. See Donovan v. Mosher Steel Company, 791 F.2d 1535 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 874, 93 L.Ed.2d 829 (1987); Donovan v. Hackney, Inc., 769 F.2d 650 (10th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1458, 89 L.Ed.2d 715 (1986). Without deciding the collateral estoppel question, we affirm.

I

The first question is whether the United States Magistrate acted on probable cause in issuing the warrants authorizing the health and safety inspections of the Trinity plant.

The starting point for any discussion of probable cause for an administrative search is Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), where the Supreme Court stated:

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]." * * * A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights.

Id. at 320-21, 98 S.Ct. at 1824-25 (citations and footnotes omitted).

Therefore, an administrative warrant is constitutional if it is issued pursuant to a neutral plan based on specific criteria and if the warrant application clearly and adequately explains how an inspection of the particular company falls within the plan. See Brock v. Gretna, 769 F.2d 1110, 1112 (5th Cir.1985). With Barlow's two-prong test in mind, we examine the warrant applications.

A. The Plan

The health and safety warrant applications were essentially identical. Both included a copy of the administrative plan for programmed inspections, OSHA CPL 2.25C, and a sworn affidavit by an OSHA supervisor declaring that Trinity was selected for a health (or safety) inspection pursuant to this plan.

Outlined in Appendix B to OSHA CPL 2.25C and by counsel for the Secretary at oral argument before this Court, the plan provides a multi-step ranking system for the inspection of companies within high hazard industries.

First, the national OSHA office provides the area OSHA office with a statewide Industry Ranking Report ranking 4-digit Standard Industrial Classification (SIC) Codes according to lost workday injury (LWDI) rates (for safety inspections) or on their potential exposure to hazardous substances (for health inspections). The industry with the highest LWDI rate or greatest exposure to hazardous substances is ranked first. The national office also provides each area OSHA office with a list of establishments for each SIC Code on the Statewide Industry Ranking Report located within the area office's jurisdiction. Establishments with ten or fewer employees are not shown on the list and establishments with a better LWDI rate than the national average for all industry are not included on the list for safety inspections. The establishments are listed by SIC Code, by county, and by establishment size. Within each SIC Code, counties are listed alphabetically. ¹ Within each county, firms are listed according to size with establishments having the largest number of employees listed first.

Second, prior to using the list provided by the national office, the area office corrects any errors by making appropriate additions or deletions to the list. For example, any establishment with less than ten employees, or that is no longer in business, or that was inspected within the previous fiscal year would be deleted from the list. For health inspections, an establishment will be deleted from the list if a substantially complete health inspection was completed within the current or previous three fiscal years with no serious violations cited. After all deletions and additions are made, establishments on the list are numbered consecutively.

Finally, the inspection register is compiled by the area office. The agency calculates the number of establishments on the register by doubling the number of programmed inspections projected for the fiscal year. The inspection register is then divided into two cycles with those companies listed in the first one-half of the list in cycle one and those establishments in the...