MATTER OF CF & I STEEL CORP.
| Citation | 489 F. Supp. 1302 |
| Decision Date | 05 May 1980 |
| Docket Number | Civ. A. No. 79-W-1581. |
| Parties | In the Matter of Establishment Inspection of C F & I STEEL CORPORATION. |
| Court | U.S. District Court — District of Colorado |
Tedrick Housh, Regional Sol., Kansas City, Mo., Henry Mahlman, Associate Regional Sol., Dept. of Labor, Denver, Colo., Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol., for Occupational Safety and Health.
Allen H. Feldman, Counsel for App. Litigation, Charles I. Hadden, Asst. Counsel for App. Litigation, Daniel J. Mick, Asst. for Regional Litigation, Thomas L. Holzman, Atty., Dept. of Labor, Washington, D. C., Ann M. Noble, Atty., Dept. of Labor, Denver, Colo., for the U. S. Dept. of Labor.
Welborn, Dufford, Cook & Brown by John D. Faught and Miles C. Cortez, Jr., Denver, Colo., for C F & I Steel Corp.
Gorsuch, Kirgis, Campbell, Walker & Grover by John S. Pfeiffer and John Mullins, Denver, Colo., for Wheeling Pittsburg Steel Corp., amicus curiae.
Reed, Smith, Shaw & McClay by W. Scott Railton and Edith E. Holiday, Washington, D. C., for American Iron & Steel Institute, amicus curiae.
Edward J. Scheunemann, Denver, Colo. and Mary-Win O'Brien, Pittsburgh, Pa., for United Steel Workers of America, amicus curiae.
The books are full of cases discussing what is and what is not a "final decision of a district court" which will permit an appeal under 28 U.S.C. § 1291, but this is the first case I have seen in which a direct appeal is attempted from a non-order,1 and I think that this singular maneuver is deserving of a short opinion, because if a notice of setting can be directly appealed, countless similar "original proceedings" can be filed in all Courts of Appeals, and calendaring by district courts is going to become a shambles. A bit of local history concerning OSHA warrants is in order.
The judges of this district have long encountered problems in trying to establish procedures complying with the directions of the United States Supreme Court in Marshall v. Barlows, Inc. (1978) 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305. All of the judges of this district believe firmly in consistency among the individual judges insofar as such consistency is possible, and we believed at the time Marshall v. Barlows, Inc. was decided (and we still think) that when requests for OSHA search warrants are presented we should follow uniform procedures in handling them. We attempted to have all judges participate in the first OSHA warrant case filed after Barlows was decided, and we have continued our efforts to try to structure some case for a decision acceptable to all judges of the court. We think that if we can work out uniform guidelines, future OSHA warrants can be presented to United States Magistrates, but we aren't getting very far in accomplishing our goal, although we are still working at it. If this case ever gets off the ground, we shall try again, and all judges will be afforded opportunity for input to the result.
The first application for an OSHA search warrant was a request to search a place called Poor Richards — a leather shop operating in a cubicle perhaps 20 feet square located in Larimer Square, a redeveloped area in Denver. After a given amount of backing and filling, the Department of Labor dismissed the request and we never got a chance to look at the problem. Next, the Secretary said that he wanted to conduct an extensive search of the Colorado Fuel & Iron Co. steel mill (hereinafter C. F. & I.) based upon an alleged general administrative plan keyed to supposed neutral criteria all as Barlows demanded. That application was dated April 2, 1979, and authority to inspect the entire plant for a period of six months was requested. The number of inspectors was infinite. A hearing was held the day after the request was made, and decision was delayed pending briefs on reasonableness. Suffice it to say, on September 26, 1979, after all of the judges in this district had planned to hear the argument en banc, the Secretary withdrew his request, admitting that it was ill-founded.
Next, a NIOSH as distinguished from an OSHA warrant was requested by the Secretary of Health, Education and Welfare. It was based on specific complaints. It alleged a true emergency; it asked only for a limited search and I issued the warrant ex parte because I thought there was a showing of an emergent circumstance and that the search was reasonable on its face. Because of our desire for uniformity, Judge Kane suggested reassignment of that case to me and that's how I happened to rule on it.
This case is the third effort by OSHA to get a warrant issued in Colorado. I glean from the pleadings and brief filed by the Secretary of Labor that some complaints were made by C. F. & I. employees. After more than just a little while, interviews of the complainants were conducted by representatives of the Secretary of Labor to look into the accusations. The dates of the complaints and the dates of the interviews I list below to show the breakneck speed with which the government inspectors or interviewers moved in on the complaints now said to be so needful of immediate action.
Date of Complaint Date of Interview
May 31, 1979 August 8, and
November 7, 1979
July 9, 1979 August 1, and
November 7, 1979
August 8, 1978 November 9, 1979
August 22, 1978 November 6, 1979
August 16, 1978 November 5, 1979
On November 23, 1979, fifteen months after the dates of three of the five complaints mentioned above, the Secretary of Labor filed an "Application for An Administrative Inspection Warrant Pursuant to the Occupational Safety and Health Act of 1970," and in that application I am assured that "the desired inspection and investigation are contemplated as a part of an inspection program designed to assure compliance with the Act, and that there are reasonable legislative and administrative standards for conducting the inspection." What the "program" is or what the "reasonable standards" are, I have not been told, but the application then goes ahead and lists the complaints and the urgency with which the followup interviews were conducted. The prayer of the application is "that the Court issue, ex parte, its inspection warrant." Attached to the application is a form of warrant which, post-Barlows, the Secretary acknowledges requires my signature but which I guess in plaintiff's eyes must be signed by me acting in a capacity ministerial to the demands of counsel for the Labor Department. The warrant which I am directed to sign reads in its entirety:
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO In The Matter Of ) ) Establishment Inspection of: ) C.F.&I. STEEL CORPORATION ) WARRANT FOR INSPECTION To: William E. Corrigan Area Director Occupational Safety and Health Administration Denver, Colorado
Application has been made, and the Court finding there is sufficient cause to permit entry for inspection and investigation at the establishment and workplace described as:
C. F. & I. Steel Corporation, Pueblo, Colorado
IT IS HEREBY ORDERED that pursuant to § 8(a) of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.), hereinafter referred to as the Act, YOU AND YOUR DULY DESIGNATED REPRESENTATIVES of the Occupational Safety and Health Administration, U. S. Department of Labor, totalling not more than 20 persons, to be divided into not more than four inspection teams, ARE AUTHORIZED to enter without delay the above described establishment and workplace during regular working hours and shifts or at other reasonable times, to inspect and investigate, within reasonable limits and in a reasonable manner, the aforesaid establishment or other area, workplace, or work environment in the Pueblo, Colorado, vicinity where and while work is performed by employees of the employer, and all pertinent conditions, structures, machines, apparatus, devices, equipment and materials therein (excepting only the coke oven batteries), and to review and copy records required to be kept by the Act and regulations issued thereunder, and other records which are directly related to the purpose of the inspection and investigation, to determine whether this employer is furnishing to its employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to its employees, and 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 compliance officers will afford an opportunity to representatives of the employer, and to representatives authorized by its employees, to accompany each inspection team for the purpose of aiding the inspection, pursuant to § 8(e) of the Act.
During the course of the inspection and investigation, the compliance officers are authorized to take photographs and samples, employ other reasonable investigative techniques, and to question privately at the worksite, any employer, owner, operator, agent, or employees of the establishment. This includes, but is not limited to area sampling, bulk sampling, wipe sampling and the taking of personal samples by attaching sampling devices such as air samplers and dosimeters to the persons of employees. Such activities will be accomplished so as to preclude unreasonable disruption of the operation of the employer's establishment.
Information obtained or observed which the employer identifies as containing or revealing trade secrets shall be preserved in confidence, pursuant to § 15 of the Act, to 29 C.F.R. 1903.9 and to 18 U.S.C. 1905.
A return shall be made to this Court, showing the inspection has been completed, within 60 days of the date of this inspection warrant.
Dated this _____ day of November 1979.
______________________ ...
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