Establishment Inspection of Metal Bank of America, Inc., Matter of
| Decision Date | 17 February 1983 |
| Docket Number | No. 81-2840,81-2840 |
| Citation | 700 F.2d 910 |
| Parties | 11 O.S.H. Cas.(BNA) 1193, 1983 O.S.H.D. (CCH) P 26,444 In the Matter of ESTABLISH INSPECTION OF the METAL BANK OF AMERICA, INC. Appeal of The METAL BANK OF AMERICA. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert D. Moran (argued), Vorys, Sater, Seymour & Pease, Washington, D.C., for appellant.
Daniel J. Mick (argued), Thomas L. Holzman, T. Timothy Ryan, Jr., Sol. of Labor, Frank A. White, Associate Sol., for Occupational Safety and Health, Allen H. Feldman, Washington, D.C., for appellate Litigation.
Marshall H. Harris, Regional Sol., U.S. Dept. of Labor, Washington, D.C., for appellee.
Before ADAMS, HUNTER and BECKER, Circuit Judges.
The Occupational Safety and Health Administration ("OSHA") obtained a warrant to inspect the premises of appellant Metal Bank of America, Inc. ("Metal Bank"). The United States District Court for the Eastern District of Pennsylvania denied Metal Bank's motion to quash the warrant and held it in civil contempt for impeding the warrant's execution. Metal Bank appealed. After argument, a remand to the district court and additional briefing, Metal Bank now renews its attack on the validity of the inspection. We do not reach the merits of Metal Bank's arguments, however, because one of its contentions is moot and the remainder must be exhausted before the Occupational Safety and Health Review Commission (the "Review Commission").
Metal Bank operates a scrap metal salvaging plant in Philadelphia. After receiving an anonymous telephone complaint from an individual claiming to be a Metal Bank employee, OSHA compliance officers went to the plant on December 11, 1979, and requested permission to conduct an inspection of the premises. Counsel for Metal Bank refused to consent to the search, and the compliance officers departed.
On April 28, 1980, the OSHA Area Director applied for a warrant to inspect the Metal Bank facility. In the warrant application the Area Director stated that OSHA had received the "employee's" telephone complaint which alleged, inter alia, that Metal Bank employees were being exposed to lead and copper fumes. The Area Director also stated that OSHA had received a phone call from someone claiming to be a physician who said that he had examined a Metal Bank employee for lead poisoning. The Area Director finally asserted that a follow-up inspection was necessary to determine whether Metal Bank had corrected safety violations discovered in an OSHA inspection conducted between November 29, 1978, and January 10, 1979.
An adversary hearing was conducted before a United States Magistrate. 1 At the hearing the Area Director added that in early 1978 a compliance officer had attempted to inspect Metal Bank's lead and copper processes, found that they were not operating, and recommended that OSHA inspect them when they were operating. On May 7, 1980, the magistrate issued an inspection warrant pursuant to 29 U.S.C. Sec. 657(a) (1976). The warrant authorized the inspection of
those areas of the workplace covered by the employee complaint, those areas involved in the [violations found in the November 1978-January 1979 search], and any area in the establishment in which there is occupational exposure to lead and copper.
App. at 12. The warrant also authorized private interviews with employees and the inspection of all pertinent records, files and papers.
Pursuant to the warrant OSHA compliance officers entered the workplace over Metal Bank's protests on May 9, 12, and 13, 1980. Metal Bank admits that it refused to allow either private employee interviews on its premises or inspection of showers and other facilities for employees supposedly exposed to lead. Metal Bank also allegedly denied some of OSHA's requests for documents. OSHA then terminated the inspection.
On February 23, 1981, OSHA asked the district court to hold Metal Bank in civil contempt for obstructing the execution of the warrant. OSHA requested that the court issue an order compelling Metal Bank to allow private employee interviews, inspection of all pertinent records, and entry into all areas covered by the warrant. On March 6, 1981, Metal Bank moved to quash the warrant, alleging that the warrant was not supported by probable cause and was overbroad in scope. The district court held a hearing in which Metal Bank challenged the Secretary of Labor's authority to conduct private employee interviews during working hours and to obtain records by warrant. 2
On June 18, 1981, the district court filed an order denying Metal Bank's motion to quash the warrant and holding Metal Bank in civil contempt. Donovan v. Metal Bank of America, Inc., 516 F.Supp. 674 (E.D.Pa.1981). On June 25, 1981, Metal Bank filed a notice of appeal and requested that the district court issue a stay pending appeal. We dismissed the appeal as premature. On September 15, 1981, the district court entered an order requiring Metal Bank to purge itself of the contempt by permitting OSHA to inspect within ten days all parts of the facility covered by the warrant. Donovan v. Metal Bank of America, Inc., 521 F.Supp. 1024 (E.D.Pa.1981).
OSHA compliance officers conducted an inspection pursuant to the purge order from September 17 to September 25, 1981. OSHA was unable to take lead samples during the inspection because Metal Bank's lead melting process had ceased operation. In addition Metal Bank allegedly did not provide the compliance officers with access to the pertinent records until the next to last day of the inspection.
On September 21, 1981, Metal Bank filed an appeal from the purge order and moved for a stay of the inspection pending appeal. The district court later denied the motion for a stay as moot. On September 25, 1981, OSHA asked the district court to extend the time permitted for execution of the warrant to enable its compliance officers to complete the records inspection and to take lead samples when the lead melting process was in operation.
On March 22, 1982, OSHA issued citations for violations observed in the September 1981 inspection. Because Metal Bank contested those citations, a proceeding was initiated before the Review Commission. OSHRC Docket No. 82-422.
We heard argument concerning Metal Bank's appeal on September 13, 1982. On September 15 we remanded the case to the district court for resolution of OSHA's September 25, 1981, motion for extension of time. We retained jurisdiction to resolve any issues remaining after the district court's decision.
On November 8, 1982, the district court filed an order which granted OSHA's motion for extension of time and ordered that Metal Bank permit OSHA to take samples during the operation of the lead melting process and to inspect any records within the scope of the warrant that remained unexamined. OSHA compliance officers conducted the ordered inspection. On November 19, 1982, OSHA reported to the district court that the May 7, 1980, warrant had been fully executed. The parties then returned to our court and at our request submitted letter-briefs addressing whether any issues remained after the district court's decision.
The Review Commission proceeding dealing with the March 1982 citations is still pending. No citations have as yet resulted from the November 1982 inspection.
Metal Bank raises three contentions on appeal. First, it argues that there was insufficient evidence to support the district court's June 1981 finding of civil contempt. Second, Metal Bank claims that the district court erred in denying its March 1981 motion to quash the warrant as overbroad and unsupported by probable cause. Third Metal Bank objects to the district court's November 1982 order extending the time for the execution of the warrant.
We do not reach the merits of any of Metal Bank's contentions. Metal Bank's first argument is moot. Its other contentions, while not moot, must be exhausted before the Review Commission.
A case is moot if "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." In re Kulp Foundry, 691 F.2d 1125, 1128 (3d Cir.1982) (quoting Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982)). Under that general test for mootness, an issue is not "live" if reversal of the trial court's order would provide the appellant "with no actual, affirmative relief." Id. at 1128-29 & n. 7. The issue may nonetheless be considered "live" if it falls within one of the exceptions to the mootness doctrine. In the context of challenges to OSHA inspections, a case will be considered "live" if the trial court's order has possible collateral legal consequences, or if the dispute is of such a nature that it is capable of repetition yet evading review. See id. at 1129. 3
Applying that analysis to Metal Bank's appeal from the finding of civil contempt, we hold that the appeal is moot. Kulp Foundry, 691 F.2d at 1130. By complying with all aspects of the warrant, Metal Bank has totally purged its contempt. See Marshall v. Whittaker Corp., 610 F.2d 1141, 1145 (3d Cir.1979). Reversal of the district court's finding of contempt will thus not provide Metal Bank with any actual, affirmative relief. The now purged adjudication of contempt also "carries with it no possibility of collateral deprivation of civil rights or other specifically legal consequences." Id. (footnote omitted). Finally, such contempt, while capable of repetition, does not necessarily evade review. If Metal Bank had refused to comply with the purge order, its citation for contempt would have been reviewable.
We now apply the same analysis to Metal Bank's appeal from the denial of the motion to quash. Reversal of the district court's refusal to quash the warrant will not accord Metal Bank any actual, affirmative relief. The warrant has already been fully...
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