Marshall v. W and W Steel Co., Inc., No. 79-1600

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore McWILLIAMS, BREITENSTEIN and DOYLE; McWILLIAMS
Citation604 F.2d 1322
Parties7 O.S.H. Cas.(BNA) 1670, 1979 O.S.H.D. (CCH) P 23,807 CA 79-3234 Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. W AND W STEEL COMPANY, INC., Defendant-Appellant.
Docket NumberNo. 79-1600
Decision Date28 August 1979

Page 1322

604 F.2d 1322
7 O.S.H. Cas.(BNA) 1670, 1979 O.S.H.D. (CCH) P 23,807
CA 79-3234 Ray MARSHALL, Secretary of Labor, United States
Department of Labor, Plaintiff-Appellee,
v.
W AND W STEEL COMPANY, INC., Defendant-Appellant.
No. 79-1600.
United States Court of Appeals,
Tenth Circuit.
Argued Aug. 2, 1979.
Decided Aug. 28, 1979.

Page 1323

Thomas L. Holzman, Atty., Washington, D. C. (Carin A. Clauss, Sol. of Labor; Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health; Allen H. Feldman, Acting Counsel, for appellate litigation; and Charles I. Hadden, Acting Asst. Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., on brief), for plaintiff-appellee.

Jack T. Crabtree, Oklahoma City, Okl. (Buck & Crabtree, Oklahoma City, Okl., on brief), for defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

In an Ex parte proceeding, the Secretary of Labor obtained an inspection warrant

Page 1324

from a United States Magistrate sitting in Albuquerque, New Mexico. The inspection warrant, which was sought following an employee complaint, authorized entry into the Albuquerque plant of W and W Steel Company by a compliance officer of the Occupational Safety & Health Administration (OSHA) in Albuquerque, for the purpose of inspecting and investigating work conditions within the tank construction welding area. The warrant also authorized a review of company records "directly related to the purpose of the inspection."

Following an earlier unsuccessful warrantless inspection, a compliance officer of OSHA, armed with the warrant above referred to, twice presented himself at the plant of W and W Steel Company and demanded entry. Such entry was refused. The Secretary then filed a complaint in the United States District Court for the District of New Mexico seeking to have the W and W Steel Company and its officers held in contempt for their refusal to comply with the warrant. A show cause order issued. By way of response, W and W Steel Company filed a motion to dismiss the Secretary's complaint and to vacate the show cause order and to quash the warrant.

Upon hearing, the trial court held W and W Steel Company in contempt and ordered the Company to pay a penalty of $500 per working day, the penalty to continue until such time as W and W Steel Company purged itself of contempt by permitting the Secretary's duly authorized representative to inspect the tank welding area maintained by W and W Steel Company. W and W Steel Company now appeals the order of court adjudging it to be in contempt, and the penalty imposed in connection with that order. We granted a stay of the trial court's contempt order, and set an expedited briefing schedule. The matter was also orally argued on an expedited basis and is now ready for final determination.

In our view, the principal issue is whether the Secretary had the authority to obtain the inspection warrant Ex parte, or, on the contrary, must notice have been given W and W Steel Company to the end that the latter could have appeared and contested the issuance of the warrant in a trial setting. Some background facts should be set forth if the critical issue is to be viewed in context.

On April 10, 1979, the Albuquerque Area Office of OSHA received a written, signed complaint from one Herman Sedillo, a W and W Steel Company employee, alleging the existence of an unsafe condition in the W and W Steel Company's plant. Specifically, the complaint stated that welding was being performed in a confined space without adequate ventilation or respiratory protection. The OSHA area office evaluated this complaint in accord with its established office procedures. On April 17, 1979, an OSHA compliance officer attempted to conduct a warrantless inspection of W and W Steel Company's plant, but was refused entry. Seven days later the compliance officer reinterviewed the complainant, Herman Sedillo, and ascertained by supplemental information that the allegedly hazardous conditions continued to exist.

On May 16, 1979, application was made to the United States Magistrate for an Ex parte inspection warrant. The application contained an affidavit of the compliance officer, together with Sedillo's original letter of complaint and a statement which Sedillo had later given. On that same day the Magistrate, after finding "probable cause," issued a warrant for the inspection of the tank welding area in W and W Steel Company's plant.

As previously indicated, OSHA compliance officer Lacy attempted to execute the aforementioned warrant on May 16, 1979, and again on May 21, 1979, but on each occasion was denied entry onto the W and W Steel Company work site. The Secretary then instituted the present proceedings.

29 U.S.C. § 657(a) authorizes the Secretary, upon a proper showing of credentials, "to enter without delay" any factory or plant to inspect and to investigate working conditions, structures, machinery, and...

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26 practice notes
  • Blackie's House of Beef, Inc. v. Castillo, Nos. 79-1057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 22, 1981
    ...search of Blackie's but, rather, twice attempted to obtain a valid search warrant. 15 See, e. g., Marshall v. W & W Steel Co., 604 F.2d 1322, 1326 (10th Cir. 1979); Weyerhauser Co. v. Marshall, 592 F.2d 373, 377 (7th Cir. 1979); In the Matter of Establishment Inspection of Gilbert & Bennett......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...the court was bound to accept and apply the amendment's interpretation of the previous regulation. See Marshall v. W & W Steel Co., Inc., 604 F.2d 1322, 1326 (10th Cir. 1979) (since amendment was an interpretative rule exempt from informal rulemaking, it "was effective and in force on the d......
  • Director v. KIEWIT, No. 24226.
    • United States
    • Court of Appeals of Hawai'i
    • January 8, 2004
    ...regulations prior to issuing a citation. These include the promulgation of interpretive rules, see, e.g., Marshall v. W and W Steel Co., 604 F.2d 1322, 1325-1326 (C.A.10 1979); cf. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980), and the publication of......
  • Chamber of Commerce of U.S. v. Occupational Safety and Health Admin., No. 78-2221
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 1980
    ...as well as interpretive rules, see Cerro Metal Products v. Marshall, 620 F.2d 964, at 982 (3d Cir. 1980); Marshall v. W & W Steel Co., 604 F.2d 1322, 1325, 1326 n.3 (10th Cir. 1979), and the Secretary has already employed quasi-legislative power with respect to workplace inspections, see, e......
  • Request a trial to view additional results
26 cases
  • Blackie's House of Beef, Inc. v. Castillo, Nos. 79-1057
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 22, 1981
    ...search of Blackie's but, rather, twice attempted to obtain a valid search warrant. 15 See, e. g., Marshall v. W & W Steel Co., 604 F.2d 1322, 1326 (10th Cir. 1979); Weyerhauser Co. v. Marshall, 592 F.2d 373, 377 (7th Cir. 1979); In the Matter of Establishment Inspection of Gilbert & Bennett......
  • Cerro Metal Products v. Marshall, Nos. 79-1760
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 24, 1980
    ...the court was bound to accept and apply the amendment's interpretation of the previous regulation. See Marshall v. W & W Steel Co., Inc., 604 F.2d 1322, 1326 (10th Cir. 1979) (since amendment was an interpretative rule exempt from informal rulemaking, it "was effective and in force on the d......
  • Director v. KIEWIT, No. 24226.
    • United States
    • Court of Appeals of Hawai'i
    • January 8, 2004
    ...regulations prior to issuing a citation. These include the promulgation of interpretive rules, see, e.g., Marshall v. W and W Steel Co., 604 F.2d 1322, 1325-1326 (C.A.10 1979); cf. Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980), and the publication of......
  • Chamber of Commerce of U.S. v. Occupational Safety and Health Admin., No. 78-2221
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 10, 1980
    ...as well as interpretive rules, see Cerro Metal Products v. Marshall, 620 F.2d 964, at 982 (3d Cir. 1980); Marshall v. W & W Steel Co., 604 F.2d 1322, 1325, 1326 n.3 (10th Cir. 1979), and the Secretary has already employed quasi-legislative power with respect to workplace inspections, see, e......
  • Request a trial to view additional results

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