Blocksom & Co. v. Marshall, No. 77-2254

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL and BAUER, Circuit Judges, and HARPER; PELL
Citation582 F.2d 1122
Parties6 O.S.H. Cas.(BNA) 1865, 1978 O.S.H.D. (CCH) P 22,946 In the Matter of Establishment Inspection of Blocksom and Company, a corporation. Appeal of Blocksom and Company. BLOCKSOM AND COMPANY, a corporation, Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee.
Docket NumberNo. 77-2254
Decision Date16 August 1978

Page 1122

582 F.2d 1122
6 O.S.H. Cas.(BNA) 1865, 1978 O.S.H.D. (CCH) P 22,946
In the Matter of Establishment Inspection of Blocksom and
Company, a corporation.
Appeal of Blocksom and Company.
BLOCKSOM AND COMPANY, a corporation, Plaintiff-Appellant,
v.
Ray MARSHALL, Secretary of Labor, United States Department
of Labor, Defendant-Appellee.
No. 77-2254.
United States Court of Appeals,
Seventh Circuit.
Argued May 30, 1978.
Decided Aug. 16, 1978.

Page 1123

John D. Raikos, Indianapolis, Ind., for plaintiff-appellant.

John A. Bryson, U. S. Dept. of Labor, Washington, D. C., for defendant-appellee.

Before PELL and BAUER, Circuit Judges, and HARPER, Senior District Judge. *

PELL, Circuit Judge.

Appellant Blocksom and Company (Blocksom) is engaged in the business of manufacturing filler materials for products such as mattresses and furniture cushions at its plant in Michigan City, Indiana. In February 1976, the Occupational Safety and Health Administration acted on a recently received employee complaint by dispatching safety compliance officers to inspect the plant. No warrant for the search was obtained, but after the officers explained that 29 U.S.C. § 657(a) authorized their entry without a warrant, Blocksom permitted the inspection. The Secretary of Labor thereafter issued numerous citations for violations of safety standards, which Blocksom timely contested, invoking both factual and constitutional grounds as defenses to the alleged violations. We are advised that proceedings before the Occupational Safety and Health Review Commission, See 29 U.S.C. §§ 651(b)(3), 658(a), 659(a) & (c), 660(a) & (b), 661, are still pending.

In September 1976, in response to another employee complaint, four industrial hygienists arrived at the Blocksom plant to conduct a health inspection. Blocksom refused permission to enter, so an inspection warrant was obtained from a United States Magistrate for the Northern District of Indiana. The inspectors returned to Blocksom, but the company, acting through Dean Sassaman, its Vice President, again refused entry. The Secretary instituted civil contempt proceedings in the district court.

Shortly thereafter, Blocksom filed a complaint for declaratory and injunctive relief on the ground that the Occupational Safety and Health Act, 29 U.S.C. § 651 Et seq., was unconstitutional because it violated the Fourth Amendment, delegated legislative power to the Secretary, constituted a taking of Blocksom's property without just compensation in violation of the Fifth Amendment, and deprived Blocksom of procedural protections guaranteed by the Sixth and Seventh Amendments. The district

Page 1124

court consolidated Blocksom's complaint with the pending contempt action, dismissed Blocksom's complaint as premature, and cited Sassaman for civil contempt (having addressed his and Blocksom's defenses on the merits) and ordered him to purge the contempt by allowing inspection. Blocksom has appealed, raising only its Fourth Amendment and impermissible delegation theories as grounds for reversal.

In our opinion the district court correctly dismissed Blocksom's complaint for declaratory and injunctive relief. Congress established the Review Commission as a forum independent of the Secretary of Labor for the adjudication of all factual and statutory defenses to the Secretary's enforcement actions. See the statutory provisions cited Supra. Its final orders are reviewable as of right in the Courts of Appeals and by writ of certiorari in the Supreme Court. 29 U.S.C. § 660(a); 28 U.S.C. § 1254. That review can include consideration of any viable constitutional defenses to enforcement. To allow Blocksom to bypass the review procedures Congress has established would create a serious risk that "important and difficult constitutional issues would be decided devoid of factual context and before it was clear that appellants were covered by the Act." W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 312, 88 S.Ct. 450, 452, 19 L.Ed.2d 546 (1967) (per curiam); Accord, Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 751, 767-74, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). The Supreme Court has twice affirmed decisions of three-judge district courts dismissing actions such as this one, where statutory and/or factual defenses were raised before the Commission. Frank Irey, Jr., Inc. v. Hodgson, 354 F.Supp. 20 (N.D.W.Va.1972), Aff'd, 409 U.S. 1070, 93 S.Ct. 682, 34 L.Ed.2d 659; Lance Roofing Company, Inc. v. Hodgson, 343 F.Supp. 685 (N.D.Ga.1972); Aff'd, 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659. See also Keystone Roofing Company, Inc. v. Occupational Safety and Health Review Commission, 539 F.2d 960, 963-64 (3d Cir. 1976); Stockwell Manufacturing Company v. Usery,, 536 F.2d 1306, 1309 (10th Cir. 1976). We...

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35 practice notes
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...federal court when administrative procedure "is fair and adequate for presentation of material facts"); Cf. Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (review of constitutional defenses to enforcement of the Act requires factfinding in the Review Commission); Marshall v......
  • Donovan v. Federal Clearing Die Casting Co., No. 82-1174
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 12, 1983
    ...enforcement actions "can include consideration of any viable constitutional defenses to enforcement." Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir.1978). By performing its statutory function of reviewing such enforcement actions, "Commission members will be alerted to issues whi......
  • DISTRICT OF COLUMBIA v. GROUP INS. ADMIN., No. 92-CV-437
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 28, 1993
    ...Accordingly, civil contempt may be defended on the ground that the underlying order was erroneously issued." Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. In this case, the District contends that the trial court's contempt order was in error because the underlying injunction was......
  • Marrese v. American Academy of Orthopaedic Surgeons, Nos. 81-2671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 10, 1984
    ...United States v. United Mine Workers, 330 U.S. 258, 291-94, 67 S.Ct. 677, 694-96, 91 L.Ed. 884 (1947); Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir.1978); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir.1978). "Persons who make private determinations of t......
  • Request a trial to view additional results
35 cases
  • Babcock and Wilcox Co. v. Marshall, AFL-CIO and L
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 16, 1979
    ...federal court when administrative procedure "is fair and adequate for presentation of material facts"); Cf. Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. 1978) (review of constitutional defenses to enforcement of the Act requires factfinding in the Review Commission); Marshall v......
  • Donovan v. Federal Clearing Die Casting Co., No. 82-1174
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 12, 1983
    ...enforcement actions "can include consideration of any viable constitutional defenses to enforcement." Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir.1978). By performing its statutory function of reviewing such enforcement actions, "Commission members will be alerted to issues whi......
  • DISTRICT OF COLUMBIA v. GROUP INS. ADMIN., No. 92-CV-437
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • October 28, 1993
    ...Accordingly, civil contempt may be defended on the ground that the underlying order was erroneously issued." Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir. In this case, the District contends that the trial court's contempt order was in error because the underlying injunction was......
  • Marrese v. American Academy of Orthopaedic Surgeons, Nos. 81-2671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 10, 1984
    ...United States v. United Mine Workers, 330 U.S. 258, 291-94, 67 S.Ct. 677, 694-96, 91 L.Ed. 884 (1947); Blocksom & Co. v. Marshall, 582 F.2d 1122, 1124 (7th Cir.1978); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir.1978). "Persons who make private determinations of t......
  • Request a trial to view additional results

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