Babcock and Wilcox Co. v. Marshall, AFL-CIO and L

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation610 F.2d 1128
Docket NumberAFL-CIO and L,No. 79-1641,79-1641
Parties7 O.S.H. Cas.(BNA) 1880, 1979 O.S.H.D. (CCH) P 24,027 The BABCOCK AND WILCOX COMPANY, Appellant, v. Ray MARSHALL, Secretary of Labor, and Charles A. Straw, OSHA Area Director United Steelworkers of America,ocal 1082, United Steelworkers of America, Intervenors Defendants, and Occupational Safety and Health Review Commission, Intervenor Defendant.
Decision Date16 November 1979

Richard I. Thomas (argued), Jane A. Lewis, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellant; Francis Carling, Sullivan & Cromwell, New York City, of counsel.

Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for OSHA (argued), Allen H. Feldman, Acting Counsel for Appellate Litigation, Charles I. Hadden, Thomas L. Holzman, Attys., Washington, D. C., Marshall Harris, Regional Sol., U. S. Department of Labor, Philadelphia, Pa., for Secretary of Labor.

James D. English (argued), Mary-Win O'Brien, Pittsburgh, Pa., for United Steelworkers of America, AFL-CIO and Local Union 1082.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D. C., Robert J. Cindrich, U. S. Atty., Pittsburgh, Pa., Ronald R. Glancz, Marleigh Dover Lang (argued), Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D. C., for Occupational Safety & Health Review Commission; Bernard Kleiman, Chicago, Ill., Robert C. Gombar, Gen. Counsel, Earl R. Ohman, Jr., Asst. Gen. Counsel, Dean E. Swartz, Andrea C. Casson, Attys., OSH Review Commission, Washington, D. C., of counsel.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.


ADAMS, Circuit Judge.

In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), the Supreme Court declared that the Fourth Amendment stands between an employer and the use of compliance inspections by the agency charged with enforcing the Occupational Safety and Health Act (the Act). 1 From the time of that decision, numerous controversies have arisen over the standards for administrative probable cause 2 and over the procedures for issuing inspection warrants that must be satisfied before officers of the Occupational Safety and Health Administration (OSHA) may enter the workplace. 3

The primary focus of the present case, and of In re Establishment Inspection of Whittaker Corp., decided today by a different panel of this Court, 4 is a dispute regarding jurisdiction and institutional competence to decide challenges to inspection warrants once they have been executed. This additional complication in the overall conflict surrounding OSHA inspections exists because the Act not only established new standards for conditions at the worksite and a new agency to administer the Act, but also established an administrative tribunal to adjudicate challenges to OSHA enforcement.

Specifically, the appeal sub judice presents the question, given divergent answers by three courts of appeals, 5 whether a company must exhaust its remedies in the administrative tribunal before it may seek relief in the federal courts by raising constitutional challenges to OSHA inspections. In a memorandum order dismissing a claim by a plant owner for declaratory and injunctive relief, as well as its motion to quash an inspection warrant, the district court in this proceeding held that the administrative route must be taken in the first instance. We affirm for the reasons set out below.


The Babcock & Wilcox Company (Babcock) operates several large manufacturing plants in Ambridge and Beaver Falls, Pennsylvania. Representatives of OSHA's Pittsburgh office made three separate inspections of these plants in August and September, 1978. Each inspection was triggered by a complaint of unsafe conditions by an employee of Babcock, and each was effected by obtaining an Ex parte warrant from a United States Magistrate.

OSHA received the first complaint which was in writing and signed on August 4, 1978. The complaint stated that cranes in several areas of the Ambridge plant had unguarded couplings, exposed electrical equipment, and worn brakes; that tubes were piled unsafely; that oxygen and acetylene tanks were stored together; and that employees were climbing twenty-foot-high racks without safety equipment. Several specific areas throughout the plant where hazards existed were mentioned, and the employee charged that these hazards immediately threatened death or serious physical harm. Officials in the Pittsburgh office decided that the matter merited an inspection and assigned a compliance office for the task; 6 Babcock denied him entry. On OSHA's request, a magistrate issued a warrant authorizing inspection of the entire Ambridge plant.

A second complaint was received on August 28 by way of a telephone call from a Babcock employee charging unsafe conditions in the Hot Mill and Oil Well Tubing areas of the Ambridge plant. The third complaint, written and signed, alleged unsafe conditions in the East Works Department of the Beaver Falls plant. In response to the second complaint, OSHA sent a compliance officer to inspect the Ambridge plant and Babcock again denied entry. The inspection warrant subsequently obtained by OSHA was limited, by the magistrate's handwriting, to the Hot Mill and Oil Well Tubing Department at Ambridge. Because of the unsuccessful attempts to gain entry without warrants following the first two complaints, the OSHA officials secured a warrant after the third complaint without first attempting a consensual search. This last search warrant was limited by a notation on the face of the warrant made by the magistrate, to the East Works Department of the Beaver Falls plant.

Inspections pursuant to the warrants were made in late August and September. There is some disagreement whether all three inspections were "wall to wall" (covering the entire plant). Babcock contends that the scope of the last two warrants was not disclosed, nor were the limitations of the warrants observed, OSHA insists that its inspection officers complied with the limitations in the warrants.

Each search led to the issuance of citations for violations of the Act, and Babcock exercised in a timely fashion its right to contest the citations so as to initiate an administrative review process. 7 The objections to the citations were assigned to administrative law judges of the Occupational Safety and Health Review Commission (Review Commission), an independent tribunal and an intervenor in this appeal. Babcock's first challenge was referred to an administrative law judge on December 11, 1978, and on December 18, the parties were directed to commence a settlement conference. A hearing, originally set for March 12, 1979, was rescheduled for May 9 in order that the parties could continue discovery.

On April 30, Babcock filed suit in the district court to quash the three inspection warrants, and on May 3, filed a complaint for declaratory and injunctive relief. The complaint alleged that the warrants violated the Fourth Amendment because they were obtained Ex parte and without probable cause. The district court was asked to declare § 8(a) of the Act 8 unconstitutional to the extent that it allowed warrants to be granted Ex parte and to the extent that it allowed warrants to issue without probable cause and without proper limitations as to scope. Babcock also requested that the evidence obtained from the inspections be suppressed and that OSHA be enjoined from further litigation based on the challenged inspections.

The district court denied as moot Babcock's motion to quash the warrants, and dismissed its complaint for failure to exhaust administrative remedies. Babcock appealed and, on its motion, we stayed the administrative review process until disposition of this proceeding.


An issue not raised by the parties, but which we are obliged to consider on our own initiative because it is jurisdictional, is the appealability of the district court's denial of Babcock's motion to quash the warrant. Because the motion was made after the warrant was fully executed, the order rejecting it is in an odd procedural posture. A denial of a motion to quash an inspection warrant should no more be appealable than is a denial of a motion to quash a grand jury subpoena, which has long been held to be not final and therefore not appealable. 9 "Such an order generally lacks finality because it leaves to the subpoenaed party the decision whether or not to comply with the subpoena; and if that party does not comply it leaves to the other party the decision whether or not it is worthwhile to seek a citation for contempt in order to compel disclosure." In re Grand Jury Subpoena for New York State Income Tax Records, 607 F.2d 566, 569 (2d Cir. 1979). In this case, of course, Babcock could not be held in contempt after a denial of its motion to quash, because there was nothing more that Babcock could be ordered to do, for the warrant had already been executed. 10

Continuing the analogy of inspection warrants to subpoenas, we believe that this appeal would come within the exception to nonappealability noted by Justice Frankfurter in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). Cobbledick distinguished a denial of a motion to quash a grand jury subpoena, generally held to be not appealable, from a proceeding in federal court to enforce or quash an administrative subpoena, which

may be deemed self-contained, so far as the judiciary is concerned as much so as an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience. After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted...

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