Petition — Mosher Steel Co. v. Donovan

1 Office-Supreme Court, U.S.

81-32 | : ial

No.

7 198!

ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the United States

October Term, 1980

Mosher Steel Company, Petitioner,

V.

Raymond J. Donovan, Secretary of Labor, Et Al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT E. RADER JR.

McCARTY, WILSON,

RADER & MASH, P.C

Of C |: ’ ‘

pppoe ALAN WRIGHT 107 South Gaines Street

2500 Red River Ennis, Texas 75119

Austin, Texas 78705 (214) 875-3851

(512) 471-5151 Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Does a United States District Court have jurisdic-

tion to determine the constitutionality of a search warrant

issued by its own magistrate, or must the District Court

defer to the review of the Occupational Safety and Health

Review Commission, an executive branch agency, on these

constitutional warrant issues?

2. May inspectors from the Occupational Safety and

Health Administration, United States Department of

Labor, compel an inspection of an employer’s plant under

the Occupational Safety and Health Act, 29 USC §651, et

seq, by physical force pursuant to an invalid warrant, even

though such force is prohibited by OSHA regulations, and

then require the employer to ‘‘exhaust administrative

remedies’’ and litigate the constitutionality of the

magistrate’s warrant before the Occupational Safety and

Health Review Commission?

3. If exhaustion on these constitutional warrant ques-

tions is required, what remedy does an employer have

against unconstitutional, harassing OSHA inspections if

the Secretary of Labor elects not to initiate any ad-

ministrative citation proceedings and thus precludes any

review of his own actions either by the OSHA Review

Commission or the United States Court of Appeals under

29 USC §660?

PARTIES TO PROCEEDING IN COURT BELOW

The proceeding in the Fifth Circuit Court of Appeals in-

volved two cases, Baldwin Metals Company, Inc. v.

Secretary of Labor and the Occupational Safety and

Health Review Commission, No. 79-2548, appealed by the

Secretary from the United States District Court for the

Northern District of Texas, and Mosher Steel Company v.

Secretary of Labor, et al, No. 79-2870, appealed by the

Secretary from the United States District Court for the

Western District of Texas. The two cases were combined

for argument and opinion by the Fifth Circuit. Baldwin

Metals Company, Inc. is not a party to this petition for

certiorari. In the Mosher case below the plaintiff was

Mosher Steel Company. The Defendants were the

Secretary of Labor, the Assistant Secretary of Labor for

Occupational Safety and Health and the Occupational

Safety and Health Administration of the United States

Department of Labor, and its Compliance Officers Walter

B. Cunningham, Edward Carvajal and Charles

McGlothlin, and its Acting Area Director William T.

Mace, and the Occupational Safety and Health Review

Commission.

TABLE OF CONTENTS

Page

SE cas Vans 6 00506000045 db 0003 00 |

I iin ks 50S bh kaa ena nasensc onde ps |

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED .............. 1

3P ¥) ot ee yy | | ef. Gaara 3

REASONS THE WRIT SHOULD

i Es ne ree 10

i tie. cou ee eee giGWet ens bee ho 14

APPENDIX:

Opinion of the Fifth Circuit Court of Appeals,

TE EEE ec Pe endsocscacebe euasiens la

Order of the United States District Court for the

Western District of Texas,

EPP Ce ere rere 2a

Judgment of the United States District Court for

the Western District of Texas,

EE BOO ora ccwscdevesesdecesnes 20a

Judgment of the Fifth Circuit Court of Appeals,

SE UE bickeskedvaonsbtvsvcess-s 24a

Order Denying Rehearing by Fifth Circuit Court

of Appeals,

re. Oe ve ipans sae eveeaeaye.cb 04s: 26a

TABLE OF AUTHORITIES

Cases:

Babcock & Wilcox Co. v. Marshall,

610 F.2d 1128 (3rd Cir. 1979) .............

Baldwin Metals Co., Inc. v. Secretary of Labor

and Occupational Safety and Health Review

Commission,

CCH OSHD 423,599 (ND Tex. 1979) ......

B.B. Andersen Construction Company, Inc. v.

Donovan, et al

No. 81-1134, U.S. District Court for

Destract OF Mamees (1SG)) occ cccccccscess

Cerro Metal Products v. Marshall,

620 F.2d 964 (3rd Cir. 1980) ..............

Chromalloy American Corporation,

Fee CE BPO CIBTSD bcc ce ccusscnss

Electrocast Steel Foundry,

Gere Cie SUB CIPTOD vibes ce cccscues

Eliason Corporation v. C. Patrick Babcock,

et al,

No. A792-00-796A2, Michigan Circuit Court

PR aise Cees d aes eae eT es be © 6%

Hunsucker v. Phinney,

497 F.2d 29 (Sth Cir. 1974);

Cert denied 420 US 927 (1975) ............

In the Matter of the Establishment Inspection

of Gilbert & Bennett Manufacturing

Company,

589 F.2d 1335 (7th Cir. 1979) .............

In the Matter of the Establishment Inspection

of Northwest Airlines, Inc.,

pe ely te a oe

iv

Page

11, 12

passim

13

13

12

12

In the Matter of the Establishment Inspection

of Urick Property,

472 F.Supp. 1192 (WD Pa. 1979) .........

Marshall v. Barlow’s, Inc.,

ee EPO bc ar tb Ka beac cedaneae’

Marshall v. Horn Seed Company,

____ F.2d ___, 9 BNA OSHC 1512 (10th

a PE duc oes Pad eke hab webeswaeenes

Marshall v. Huffhines Steel Company, Inc.,

488 F.Supp. 995 (ND Tex. 1979) ..........

Marshall v. North American Car Company,

Gb FB Sat Cr, FIG oo ccce cc ccases

Marshall v. W & W Steel Company,

604 F.2d 1322 (10th Cir. 1979) ............

Marshall v. Weyerhaeuser Co.,

456 F.Supp. 474 (D NJ. 1978) ............

McKart v. United States,

GE EEE Sava apecknkopausxeeuesn

Michigan v. Tyler,

Ce EET i.nc00n 6ccaewbecaswaune

Mosher Steel Company v. Marshall, et al,

CCH OSHD 423,630 (WD Tex. 1979) .....

Muskrat v. United States,

NEED o-i0% 6.05 neacaccaassuneaus

Sarasota Concrete Company,

9 BNA OSHC 1608 (1981) ...............

United States ex rel Accardi v. Shaughnessy,

BF SNE 6 cided ci cucn cis ntadepes

United States v. Nixon,

5.50 sv ss 2a peu eewens

Weyerhaeuser v. Marshall,

Pe ee STP CPN SOTO vc ck kaewbesens

12

7,10,12

7,13

13

12

13

passim

ia

1!

Constitution, Statutes, and Regulations:

Si PEs GUIS EF oie v vide cislee seen ands

Shy RIPE Ee PUES Vivnvcaccuesavavdeees

PTD obs aanncad ce cwneptovas ce

I a 6a kb aro stp eeeenvees douse

SEE o's a vienss khekes oak neee ban

EE ube diese vaserent vr ve teases

EE EEE U naveenvt vie cabsasreavseeeds

CEE ss coskbun CaesaNesaweneers

OSHA Field Operations Manual, Ch. V D(9),

Ce SER OOOD pice ccvscepecssress

vi

OPINION BELOW

The opinion of the Fifth Circuit Court of Appeals (See,

App, infra) is not yet officially reported. It is unofficially

reported at 9 BNA OSHC 1568 and CCH OSHD 425,325.

The judgment of the United States District Court for the

Western District of Texas is not officially reported;

however, it is unofficially reported at 1979 CCH OSHD

423,630.

JURISDICTION

The opinion and judgment of the Fifth Circuit Court of

Appeals was rendered on April 13, 1981. On April 23,

1981, Mosher Steel Company filed its Petition For Rehear-

ing and such petition was denied on May 13, 1981. On

May 18, 1981, Mosher moved for a Stay Of Mandate and

Mandate has been stayed pending Mosher’s petition for

certiorari. The jurisdiction of this Court rests on 28 USC

§1254.

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS INVOLVED

The Fourth Amendment, U.S.C.A. Const. Amend. IV,

provides that:

**The right of the people to be secure in their per-

sons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon pro-

bable cause, supported by Oath or affirmation, and

particularly describing the place to be searched and

the persons or things to be seized.”’

The inspection in this case was purportedly conducted

under Section 8(f)(1) of the Occupational Safety and

Health Act of 1970, 29 USC §657(f)(1), which provides:

*(f)(1) Any employees or representative of

employees who believe that a violation of a safety or

health standard exists that threatens physical harm,

or that an imminent danger exists, may request an in-

spection by giving notice to the Secretary or his

authorized representative of such violation or danger.

Any such notice shall be reduced to writing, shall set

forth with reasonable particularity the grounds for

the notice, and shall be signed by the employees or

representative of employees, and a copy shall be pro-

vided the employer or his agent no later than at the

time of inspection, except that, upon the request of

the person giving such notice, his name and the names

of individual employees referred to therein shall not

appear in such copy or on any record published,

released, or made available pursuant to subsection (g)

of this section. If upon receipt of such notification the

Secretary determines there are reasonable grounds to

believe that such violation or danger exists, he shall

make a special inspection in accordance with the pro-

visions of this section as soon as practicable, to deter-

mine if such violation or danger exists. If the

Secretary determines there are no reasonable grounds

to believe that a violation or danger exists he shall

notify the employees or representative of the

employees in writing of such determination.”’

The Secretary of Labor’s written guidelines to his com-

pliance officers concerning inspections by force even pur-

suant to a warrant are set forth at Chapter V D.(9) of the

OSHA Field Operations Manual, CCH ESHG 44330.4:

*(9) Refused entry or interference with a com-

pulsory process.

No force shall be used by the CSHO [Compliance

Safety and Health Officer] seeking entry or comple-

tion of the inspection. But the facts of such refusal or

interference shall immediately be reported to the AD

{Area Director] and Regional Solicitor by telephone,

and followed up with a written memorandum through

the Area Director within 24 hours thereafter. The

Regional Solicitor will then take necessary court ac-

tion for unlawful resistance to the compulsory pro-

cess. The CSHO should make notations as to all

witnesses to the refusal or partial refusal, and other-

wise fully report all the facts surrounding such

refusal.”’

The guaranty of due process of law is set forth in the

Fifth Amendment, U.S.C.A. Const. Amend. V.:

**No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in ac-

tual service in time of War or public danger; nor siiall

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty or property, without

due process of law; nor shall private property be

taken for public use, without just compensation.”’

STATEMENT OF THE CASE

On August 22, 1978, a United Steelworkers Staff

representative filed a complaint with the Occupational

Safety and Health Administration (OSHA), United States

Department of Labor, alleging certain unsafe working

conditions in Mosher Steel Company’s San Antonio,

Texas plant.' On that same date, an OSHA compliance of-

ficer appeared at Mosher’s San Antonio facility to con-

duct an inspection based on the union’s complaint.

However, the compliance officer indicated his inspection

would not be limited to the complained of items, but

would be a general, or ‘‘wall-to-wall’’ inspection.

Mosher’s representatives expressed their belief to the

compliance officer that the complaint was harassment,

and was the fulfillment of union efforts to gain leverage at

the bargaining table. Mosher therefore requested that a

warrant be abtained in order to see the sufficiency of the

evidence establishing the basis for the complaint.

Nearly three months later, on November 8, 1978,

OSHA allegedly received another complaint from an

unidentified ‘‘confidential source’’ over the telephone.

Nineteen days after that, on November 27, 1978, two

OSHA compliance officers appeared at Mosher’s San An-

tonio plant and presented to Mosher’s representatives an

Inspection Warrant issued by the United States Magistrate

for the Western District of Texas. The warrant had been

requested and issued ex parte. There was no affidavit at-

tached to the warrant, and the warrant itself did not

specify the probable cause for its issuance.

' There is no dispute that the union’s cormplaint was an attempt to

use OSHA to harass Mosher and gain leverage at the bargaining table.

Mosher has been subjected to an inordinate aumber of inspections

predicated on ‘‘complaints’’ from union representatives. Affidavits

filed with the District Court reveal that the union has admitted that

such complaints were and are made to pressure Mosher to agree to the

union’s contract demands.

In the summer of 1978, Mosher was again engaged in contract

negotiations with the union. No agreement on the terms of a collective

bargaining agreement was reached. One of the union representatives

indicated Mosher could expect some more ‘‘complaints’’ to OSHA.

This complaint followed shortly thereafter.

When Mosher’s representatives attempted to determine

the reason for this latest inspection, they were told there

had been an employee complaint. However, the com-

pliance officers had not presented Mosher with written

notice of such employee complaint, as required by law,’

and the Inspection Warrant itself was not limited to any

‘**complained of’’ alleged safety hazards.

In short, Mosher was unable to determine whether pro-

per procedures had been followed for the issuance of the

Inspection Warrant or the reason for its issuance. Mosher

was also unable to determine the scope of the inspector’s

authority and the search to be conducted -- except that it

seemed to be unlimited.

Under these circumstances -- and believing these con-

tinuous, harassing OSHA inspections were predicated on

unfounded union complaints -- Mosher determined to seek

a hearing on the validity of the inspection warrant.

Mosher therefore advised the compliance officers that en-

try would not be permitted pursuant to the warrant at that

time.

However, before Mosher could file a motion to quash

the warrant or take any other action, the two OSHA com-

pliance officers arranged to be accompanied by a deputy

United States Marshal and returned on November 29,

1978, presented the same inspection warrant, and stated

their intention to gain entry by physical force if necessary.

At that time Mosher contacted its local counsel, Mr.

Ben Foster, Jr., who shortly thereafter arrived at the

plant. Mr. Foster attempted to determine the cause for the

inspection but the OSHA compliance officers would give

no explanation. Neither would they agree to limit their in-

spection in any way. Mr. Foster thereupon advised the

compliance officers and the deputy United States Marshal

729 USC §657(f)(1), 29 CFR §1903.11. The agency has a special

OSHA-7 Form used for this purpose.

of his belief that the warrant was unconstitutional and il-

legal, and requested that OSHA abide by its own regula-

tions’ and seek enforcement of its warrant through

established court procedures, so that Mosher would be af-

forded a hearing prior to the invasion of its Fourth

Amendment rights.

The OSHA compliance officers refused Mosher’s re-

quest that they abide by their own rules and regulations

and proceeded with the inspection of Mosher’s premises.

Mosher’s representatives strongly protested this invasion

of Mosher’s constitutional rights; and in fact, Mosher’s

plant manager was physically pushed aside from the en-

tranceway of the plant by the Marshal.

In accordance with said search warrant, under Mosher’s

strong protests, the OSHA compliance officers conducted

an exhaustive three day search of Mosher’s entire San An-

tonio facility, its structures, machines, apparatus, equip-

ment, materials, records, files, papers and other items they

in their own discretion deemed pertinent to the investiga-

tion. Indeed, when one of Mosher’s representatives com-

mented he had never seen such a comprehensive search,

the compliance officers indicated their intent to ‘‘make an

example’’ of Mosher because of the company’s insistence

on a legal search warrant. Subsequently, on December 4,

1978, the compliance officers conducted a closing con-

ference and informed Mosher of their intent to issue cita-

tions based upon evidence illegally obtained through their

wall-to-wall search.

Shortly, thereafter, on December 22, 1978, before it had

received any citations from OSHA, Mosher filed its com-

plaint in the United States District Court for the Western

>The OSH-+. Field Operations Manual consists of compliance

guidelines for the Occupational Safety and Health Act promulgated

by the United States Department of Labor. Chapter V, D.(9) prohibits

compliance officers from seeking entry by force even with a warrant.

Instead it directs the Regional Solicitor to ‘‘take necessary court ac-

tion for unlawful resistance to the compulsory process.”’

6

District of Texas pursuant to 28 USC §§1331, 1337, 1346,

1361 and 2201 and under Articles IV and V of the Amend-

ments of the United States Constitution, seeking

declaratory judgment that the inspection warrant issued

against it was unconstitutional and null and void in viola-

tion of the Fourth Amendment, because an anonymous

telephone complaint does not constitute sufficient pro-

bable cause even under Marshall v. Barlow’s, Inc., 436 US

307 (1978), and because the warrant was not properly

limited to the complaint items and was therefore un-

constitutionally overbroad in scope under Michigan v.

Tyler, 436 US 499 (1978).*

Mosher further sought declaratory judgment that

OSHA violated Mosher’s Fifth Amendment due process

rights by obtaining such warrant ex parte at a time when

OSHA regulations required notice and hearing to the

business operator,’ and by compelling an inspection by

physical force in contravention of OSHA’s own regula-

tions.* Mosher’s complaint therefore requested that any

information or evidence thus illegally obtained be sup-

pressed, that the warrant be quashed and that the Court

enjoin any further action by OSHA on the citations and

proposed penalties which might be based upon evidence

obtained in such illegal and unconstitutional search.

* Subsequent decisions of the Circuit Courts of Appeals have agreed

that an anonymous complaint does not constitute sufficient probable

cause, see Marshall v. Horn Seed Company, Inc., —. F.2d ___., 9

BNA OSHC 1512 (10th Cir. 1981) and that an inspection based on a

complaint must be limited in scope to the complained of items. See,

Marshall v. North American Car Company, 626 F.2d 320 (3rd Cir.

1980). It is simply beyond dispute that the warrant in this case was in-

valid.

* As this Court observed in Marshall v. Barlow’s, Inc., 436 US at

317-318. See also Cerro Metal Products v. Marshall, 620 F.2d 964 (3rd

Cir. 1980).

* This Court has repeatedly held that an agency is bound by its own

published rules and regulations. See, United States v. Nixon, 418 US

683, 695-696 (1974), United States ex rel Accardi v. Shaughnessy, 347

US 260 (1954).

Both the Secretary of Labor and the Occupational Safe-

ty and Health Review Commission filed motions to

dismiss the complaint, alleging that the District Court had

no jurisdiction to review its own magistrate’s probable

cause determination, and arguing that since the warrant

had already been executed Mosher must exhaust its ad-

ministrative remedies, even as to the constitutional suffi-

ciency of the warrant. Additionally, the OSHA Review

Commission contended that it had the authority to deter-

mine whether the magistrate had acted in a constitutional

manner in issuing the search warrant -- and to quash the

magistrate’s warrant if necessary.’

Mosher moved for summary judgment on the legal

question of the constitutionality of the warrant and

search.

After full briefing and argument, the District Court on

June 6, 1979, denied OSHA’s motions to dismiss and held

that it had jurisdiction to review the actions of its own

magistrate in issuing the warrant, and whether the warrant

met the constitutional requirements of the Fourth Amend-

ment. In so ruling, the District Court ipso facto held that

the purposes behind the exhaustion doctrine were not pre-

sent in this case. The District Court also granted Mosher’s

’ Prior to this case the OSHA Review Commission recognized ‘‘that

it is not within our authority to rule on the validity of a search warrant

issued by a U.S. Magistrate. The Commission is a creature of the Con-

gress and may proceed only in accordance with its delegated powers,

which do not include authority to review the actions of a U.S.

Magistrate. Electrocast Steel Foundry, Inc., 6 BNA OSHC 1562, 1563

(1978). However, beginning with this case, the Review Commission

made an abrupt about-face and now maintains that it does have the

power to review the decisions of the United States District Courts.

This newly-formulated position of the Review Commission is set forth

in its July 17, 1979 decision in Chromalloy American Corporation, 7

BNA OSHC 1547 (1979). Mosher believes that this assumption of

pure judicial authority by the Review Commission violates the Con-

stitution’s mandate of separation of powers. See, Muskrat v. United

States, 219 US 346, 353 (1911).

motion for summary judgment that the warrant and in-

spection were illegal and for injunctive relief.

The Secretary of Labor filed notice of appeal to the

Fifth Circuit Court of Appeals on August 2, 1979."

In its April 13, 1981 decision the Fifth Circuit vacated

and remanded to the District Court with instructions to

dismiss. The Fifth Circuit held that Mosher was required

to exhaust its administrative remedies, even under the cir-

cumstances of this case, and that the District Court should

not have exercised jurisdiction. The Fifth Circuit also held

that the District Court could not even exercis~ ‘‘equitable

jurisdiction under Hunsucker v. Phinney, 497 F 2d 29

(Sth Cir. 1974), Cert. denied 420 US 927 (1975) because

there had been no callous disregard by OSHA officials for

the constitutional rights of the company.

Mosher petitioned the Fifth Circuit for rehearing, point-

ing out, inter alia, that the Court’s statement that there

was no evidence of ‘‘a callous disregard by OSHA officials

for the constitutional rights’’ of Mosher was clearly incor-

rect. Mosher pointed out that the undisputed facts reveal-

ed that OSHA regulations prohibit entry by force, even

with a warrant; that the OSHA officials had been

specifically directed and requested to comply with such

regulations; that Mosher had taken every possible action

to dishonor the warrant and prevent the inspection short

of arrest and possible imprisonment’ in order to protect its

rights, even at the risk of being held in contempt; and that

the OSHA officials had deliberately disregarded Mosher’s

plea and entered Mosher’s plant by force in knowing and

intentional violation of OSHA’s own regulations. Conse-

quently, even apart from the Fourth Amendment issues,

* Although a defendant in the District Court, the Occupational

Safety and Health Review Commission did not join in the appeal.

* See 18 USC §111, 1114 and note to 29 USC §666(h) for a descrip-

tion of the criminal penalties for forcibly interfering with an OSHA

compliance officer.

the search of Mosher’s plant did present a clear and unam-

biguous violation of Mosher’s rights to due process and

equal protection of the laws under the Fifth Amendment

to the United States Constitution, and the District Court’s

exercise of jurisdiction was proper on that ground alone.

Nevertheless, Mosher’s petition for rehearing was

denied on May 13, 1981, and the company now petitions

this Court to grant certiorari. Significantly, in the mean-

time, in the companion Baldwin Metals case, OSHA

withdrew its original citations, which means that that com-

pany now has no administrative remedies to exhaust and

thus has no means by which it can secure a judicial deter-

mination that its rights were violated and prohibiting

OSHA from such conduct in the future.

REASONS 7HE WRIT SHOULD BE GRANTED

PRELIMINARY STATEMENT

In 1978 this Court confirmed in Marshall v. Barlow’s,

Inc., 436 US 307, that the Fourth Amendment requires a

warrent to conduct nonconsensual OSHA inspections.

After the Barlow’s decision OSHA took the position that

the only probable cause showing required for an ad-

ministrative inspection warrant was the agency’s deter-

mination that reasonable grounds to believe a violation of

the Act existed, and that the magistrate could not question

the agency’s decision to search.'® Unfortunately, many

United States Magistrates routinely issued OSHA’s

boilerplate form inspection warrants without questioning

either the agency’s decision to inspect a_ particular

'° Indeed, in its brief to the District Court below, OSHA makes the

incredible statement that ‘‘the Secretary’s determination to respond to

a complaint is not and should not be reviewable by a magistrate.’’ See

Memorandum In Opposition To Plaintiff's Complaint And In Sup-

port Of Defendant’s Motion To Dismiss, p. 19 at n. 19.

10

employer, or the scope of the proposed inspection. As a

result, a large number of cases have arisen in both federal

and state courts concerning constitutional challenges to

OSHA warrants.

These courts have been divided on the proper procedure

by which an employer may challenge the constitutionality

of an OSHA warrant. Some, such as the Seventh Circuit in

Weyerhaeuser v. Marshall, 592 F 2d 373 (7th Cir. 1979)

have held that the District Court has inherent jurisdiction

to review the constitutionality of its own magistrate’s war-

rant, either before or after it is executed, and reasoned

that the purposes of the exhaustion doctrine are not pre-

sent where a warrant is challenged on constitutional

grounds.

Other courts, such as the Third Circuit in Babcock &

Wilcox Co. v. Marshall, 610 F 2d 1128 (3rd Cir. 1979),

have held that if the employer allows the warrant to be ex-

ecuted, then exhaustion is required and the OSHA Review

Commission may rule on the constitutionality of the

magistrate’s search warrant. According to these decisions,

the only means by which an employer can litigate ithe

validity of the warrant in the district court in the first in-

stance is to refuse entry and defend in a subsequent con-

tempt proceeding. The Fifth Circuit below followed this

latter line of cases.

However, neither the Fifth Circuit nor any other court

has addressed the critical issues presented by the facts in

this case:

(1) What is the employer’s remedy if, as here, OSHA

enters by force, and denies the employer even the op-

portunity to risk contempt in order to gain a hearing

on the warrant before the district court?

(2) What is the employer’s remedy if OSHA learns of

the company’s intent to contest the warrant after it is

executed and thus never initiates an administrative

proceeding?''

The effect of the Fifth Circuit’s ruling is to place

Mosher and the millions of other employers subject to

OSHA at the complete mercy of OSHA, with no recourse

to any court or administrative forum except as OSHA in

its own discretion chooses. Under the Fifth Circuit’s

holding, OSHA may obtain a questionable warrant,'? in-

vade an employer’s workplace by force, and then require

the employer to litigate the validity of that warrant and

search before the OSHA Review Commission. If, after the

inspection, it appears that the employer does indeed intend

to contest the validity of the warrant and search through

the Review Commission and into the United States Court

of Appeals, as provided by 29 USC §660, the Secretary

'' In all likelihood the same thing that happened in the companion

Baldwin Metals case will happen to Mosher if certiorari is not granted.

Once the district court dismisses, pursuant to the Fifth Circuit’s in-

structions, the Secretary, knowing the warrant here is invalid, will

simply withdraw the citation and Mosher will have no administrative

remedy to exhaust, and no avenue by which it can ultimately obtain

judicial review of OSHA’s actions in this case.

'? In requiring exhaustion in Babcock & Wilcox, supra, the Third

Circuit refused to indulge in the presumption ‘‘that magistrates do not

perform their duties correctly and that there will not be probable cause

for issuing inspection warrants in a fair number of these cases.’’ 610

F.2d at 1136. The Court’s reasoning is belied, however, by the

plethora of OSHA warrant cases that have arisen in state and federal

court since this Court’s decision in Barlow’s. The hard fact is that the

lower court decisions on what constitutes probable cause for an

OSHA warrant vary tremendously, so that the Secretary of Labor can

find some precedent to support almost any warrant application. Cf.,

In The Matter Of Establishment Inspection of Gilbert & Bennett

Manufacturing Company, 589 F.2d 1335 (7th Cir. 1979) with Mar-

shall v. Weyerhaeuser Co., 456 F.Supp. 474 (D NJ. 1978) and Jn The

Matter of Establishment Inspection of Northwest Airlines, Inc., 587

F.2d 12 (7th Cir. 1978). As noted in Jn The Matter of Establishment

Inspection of Urick Property, 472 F.Supp. 1192, 1194 (WD Pa. 1979)

there is an ‘‘embarrassment of riches from the District Courts on

every conceivable objection that can be raised to OSHA inspections.’’

12

may simply decline to initiate any administrative pro-

ceedings and thus preclude any determination of the legali-

ty of the warrant or OSHA’s actions. And six months later

OSHA may return and do the same thing all over again."’

Review by this Court is therefore needed for the follow-

ing reasons:

1.To resolve the conflict between decisions of the

United States Courts of Appeals concerning whether

the United States District Courts have jurisdiction to

review the constitutionality of OSHA warrants issued

by their own magistrates;

2. To resolve whether the purposes behind the judicially

created doctrine of exhaustion of administrative

remedies, as espoused by this Court in McKart v.

United States, 395 US 185 (1969), are present where

the constitutionality of an OSHA warrant issued by a

United States District Court is challenged;

3. To resolve whether the OSHA Review Commission,

an executive branch administrative agency, may

') Due to the possibility that exhaustion may be required if the warrant

is executed, more and more employers are refusing entry and risking

contempt in order to gain a district court hearing on a questionable

warrant. See, e.g., Marshall v. Huffhines Steel Company, Inc., 488

F.Supp. 995 (ND Tex. 1979), Marshall v. Horn Seed Company, Inc.,

____ F.2d ___, 9 BNA OSHC 1510 (10th Cir. 1981), Marshall v. W&

W Steel Company, Inc., 604 F.2d 1322 (10th Cir. 1979). In response,

OSHA has elected to compel entry by physical force rather than seek

court enforcement of a questionable warrant --even though OSHA’s

own regulations prohibit such force. The present case is one example.

Other pending cases where OSHA entered by force are B.B. Andersen

Construction Co., Inc. v. Donovan, et al, No. 81-1134, U.S. District

Court for the District of Kansas, and Eliason Corporation v. C.

Patrick Babcock, et al, No. A792-00-796A2, Michigan Circuit Court

(under Michigan State OSHA).

13

review the constitutional probable cause and scope of

warrant determinations made by United States

District Courts in issuing OSHA warrants;'*

4.To resolve whether employers have a right to a

judicial determination of the constitutionality of an

OSHA warrant and search even if no administrative

OSHA citations are issued;

5. To resolve whether an OSHA inspection pursuant to

a civil administrative inspection warrant may be con-

ducted by physical force, particularly where force is

prohibited by OSHA regulations.

CONCLUSION

This case presents critical constitutional questions that

affect the Fourth and Fifth Amendment rights of nearly

six million employers. The claim of the OSHA Review

Commission that it can in effect grade the papers of the

United States District Courts also presents a serious

separation of powers issue. Only this Court can resolve the

current uncertainty as to OSHA’s authority, employers’

rights, and the jurisdiction of the United States District

'* The most recent case in which the OSHA Review Commission has

reviewed these constitutional warrant questions is Sarasota Concrete

Company, 9 BNA OSHC 1608 (1981).

14

Courts presented by the facts in this case. Petitioner

therefore prays that this Court grant a writ of certiorari to

review the judgment of the United States Court of Appeals

for the Fifth Circuit.

Respectfully submitted,

McCARTY, WILSON, RADER & MASH, P.C.

107 South Gaines Street

Ennis, Texas 75119

(214) 875-3851

mae A Ebade f

Robert E. Rader, Jr.

Attorneys for Petitioner

Of Counsel:

Charles Alan Wright

2500 Red River

Austin, Texas 78705

(512) 471-5151

CERTIFICATE OF SERVICE

A copy of the foregoing Petition for Writ of Certiorari

was gngiled to all Counsel of Record this day of

ue © 1981.

Robert E. Rader, Jr. Y

15

APPENDIX

la

APPENDIX A

Opinion of U.S.C.A.—Sth Circuit

United States Court Of Appeals, Fifth Circuit

BALDWIN METALS COMPANY, INC.,

Plaintiff-Appellee,

v.

Raymond J. DONOVAN, Secretary of Labor, Etc., and

Occupational Safety and Health Review Commission,

Defendants-Appellants.

MOSHER STEEL COMPANY, a

Division of Trinity Industries,

Plaintiff-Appellee,

v.

Raymond J. DONOVAN, Secretary of Labor et al.,

Defendants-Appellants.

Nos, 79-2548, 79-2870.

United States Court of Appeals,

Fifth Circuit

Unit A

April 13, 1981.

Employers brought actions challenging validity of Oc-

cupational Safety and Health Administration search war-

rants. The United States District Court for the Northern

District of Texas, Robert W. Porter J., and the United

States District Court for the Western District of Texas,

Adrian A. Spears, J., entered judgments, and appeals

2a

.

were taken. After consolidation, the Court of Appeals,

Goldberg, Circuit Judge, held that: (1) judicial review of

allegedly unconstitutional OSHA search warrants provid-

ed by appellate review of Occupational Safety and Health

Review Commission decisions by Court of Appeals

precluded subject employers from suffering irreparable in-

jury, and thus judicial review of the warrants, which were

issued after Commission proceedings had been initiated,

had to be postponed until employers exhausted ad-

ministrative remedies, and (2) it was improper for district

courts to exercise equitable jurisdiction to hear employers’

challenges to validity of the search warrants where

employers failed to show irreparable injury, callous

disregard of constitutional rights by OSHA officials, and

absence of adequate remedy at law.

Vacated and remanded.

Appeals from the United States District Court for the

Northern District of Texas.

Appeal from the United States District Court for the

Western District of Texas.

Before GOLDBERG, POLITZ AND SAM D.

JOHNSON, Circuit Judges.

GOLDBERG, Circuit Judge:

In Marshall v. Barlows, Inc., 436 U.S. 307, 98 S.Ct.

1816, 56 L.Ed.2d 305 (1978), the Supreme Cartographer

placed us on the Constitutional highway governing the

validity of search warrants issued for OSHA' investiga-

tions. Although this is the Fifth Circuit’s first trip along

‘ Occupational Safety and Health Administration.

3a

this road, possible routes and destinations have been map-

ped out by four of our sister circuits.? Because we believe

that the geodetics proposed by the First, Third and Eighth

Circuits provide the better approaches, we now number

ourselves among the mapmakers sanctioning these routes.

I. Beginning The Journey: Checking the Rearview Mirror

Prior to 1978, it was thought that section 8(a) of the Oc-

cupational Safety and Health Act of 1970’ authorized war-

rantless searches by OSHA officials. Secretary of Labor v.

Chromalloy American Corp., OSHRC No. 77-2788, 7

OSHC (BNA) 1547 (Rev. Comm’n July 17, 1979). Pro-

blems associated with reviewing the validity of OSHA

search warrants never arose, since there was no need to ob-

tain a warrant in order to conduct an OSHA search.

However, once the Supreme Court in Barlows, supra, held

that the authorization of warrantless OSHA searches was

unconstitutional, the courts were forced to decide when

and where challenges to the OSHA search warrants were

to be litigated.

The problem of reviewing the validity of OSHA search

warrants was especially troublesome when Occupational

Safety and Health Review Commission (OSHRC) pro-

ceedings had already been initiated. In such cases, tension

was created between district court review of federal

magistrates and the time-honored doctrine of exhaustion

of administrative remedies. Since the warrants are issued

by federal magistrates, and since review of magistrates’

decisions is ordinarily entrusted to the district court,‘ the

federal district courthouse would seem to be the best place

* Compare Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128 (3d

Cir. 1979) and Marshall v. Central Mine Equipment Co., 608 F.2d 719

(8th Cir. 1979) and In reWorksite Inspection of Quality Products,

Inc., 592 F.2d 611 (ist Cir. 1979) with Weyerhaeuser Co. v. Marshall,

$92 F.2d 373 (7th Cir. 1979).

*29 U.S.C.A. § 657(a) (West 1975).

*See Weyerhaeuser, supra, 592 F.2d at 377; Bruno v. Hamilton,

$21 F.2d 114, 116 (8th Cir. 1975).

4a

to litigate the validity of OSHA warrants. However, once

the administrative process has begun, the exhaustion of

administrative remedies doctrine would preclude judicial

review until a final agency decision is rendered. Since

OSHRC decisions are directly appealable to the circuit

courts of appeals, judicial review of a warrant’s validity

would not take place until the appellate stage, thereby

totally bypassing district court review of the magistrate’s

decision to issue a warrant. With these conflicting policies

and rules of law in mind, we begin our journey through

the OSHA enforcement process.

Il. A Drive Through Baldwin Metals and Mosher Steel

The consolidated appeals before us present strikingly

similar cases in which the pertinent facts are virtually un-

disputed. No. 79-2548 involves Baldwin Metals Co.

(‘‘Baldwin’’) of Dallas, Texas. In November 1978, OSHA

officials attempted to investigate safety conditions at

Baldwin’s plant and were refused admission. They subse-

quently applied for and were granted an inspection war-

rant issued by a United States Magistrate for the Northern

District of Texas. The OSHA officials returned to the

plant armed with the warrant and were allowed to enter.’

Based upon the evidence uncovered during the search,

OSHA citations were issued against Baldwin in January

1979. Baldwin subsequently filed a complaint in district

court seeking a declaration that the warrant was un-

constitutional, an order suppressing the use of any

evidence obtained pursuant to the warrant, and an injunc-

tion prohibiting OSHA from taking further action based

on the allegedly unconstitutional search. In addition, in

order to prevent any immediate OSHA action, Baldwin

* Baldwin claims that its representatives ‘‘strongly protested this in-

vasion of Baldwin's constitutional rights and allowed the compliance

officers to enter only because of the threatened contempt action

against Baldwin.’’ Brief for Appellee at 3.

Sa

asked for a preliminary injunction seeking essentially the

same relief. The district court granted the preliminary in-

junction and this appeal followed.

No, 79-2870 involves Mosher Steel Co. (‘‘Mosher’’) and

its plant in San Antonio, Texas. On November 27, 1978,

OSHA officials, having already obtained an inspection

warrant, attempted to search Mosher’s plant but were not

permitted entry. Two days later the officials returned, and

were allowed to enter over the protests of Mosher’s

representatives.* The officials conducted a search of the

premises, and issued citations based on the evidence seized

during the search. Mosher filed a complaint in federal

district court seeking a declaration that the warrant was

unconstitutional, an order suppressing the use of any

evidence obtained pursuant to the warrant, and an injunc-

tion prohibiting OSHA from taking further action based

on the allegedly unconstitutional search. The district judge

granted the declaratory and injunctive relief requested by

Mosher, and this appeal followed.

The issue presented in both cases is whether a federal

district court may properly declare an OSHA search war-

rant to be invalid, and may enjoin the use of evidence seiz-

ed pursuant to the warrant, before a final administrative

decision has been rendered. We now examine this issue,

first in light of the exhaustion of remedies doctrine, and

then in light of the exercise of equitable jurisdiction.

* Mosher claims that the OSHA officials threatened to use physical

force to gain entry, and actually pushed one employee aside from the

plant entrance. Brief for Appellee at 5-6.

6a

Ill. The First Stop Along The Road:

Trouble With The Exhaust System

Any examination of the exhaustion of administrative

remedies doctrine should begin with the classic pronuncia-

tion by the United States Supreme Court that ‘‘no one is

entitled to judicial relief for a supposed or threatened in-

jury until the prescribed administrative remedy has been

exhausted.’’ Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); see

McClendon v. Jackson Television, Inc., 603 F.2d 1174

(Sth Cir. 1979); In re Restland Memorial Park, 540 F.2d

626 (3d Cir. 1976); Barnes v. Chatterton, 515 F.2d 916 (3d

Cir. 1975). However, the rule has numerous exceptions

and exhaustion of remedies is not required in all cir-

cumstances. See, e.g., Weyerhaeuser, supra; Cerro Metal

Products v. Marshall, 620 F.2d 964 (3d Cir. 1980); Rhodes

v. United States, 574 F.2d 1179 (Sth Cir. 1978); American

Federation of Government Employees, Local 1668 v.

Dunn, 561 F.2d 1310 (9th Cir. 1977). In the cases at bar we

must thus determine whether the policies behind the ex-

haustion of remedies rule would be served by requiring ex-

haustion, and whether any exception to the exhaustion

rule applies to the facts before us.

{i] The reasons for the exhaustion of administrative

remedies doctrine include protecting administrative

autonomy, deferring to agency expertise, facilitating

judicial review through creation of a factual record by the

agency, and conserving the time and energy of the courts

since the judicial controversy may be mooted if the agen-

cy grants the relief sought. See Dunn, supra, 561 F.2d at

1314; Ecology Center of Louisiana, Inc. v. Coleman,

515 F.2d 860 (5th Cir. 1975). In a case similar to the

ones at bar today, the Seventh Circuit held that because

the reasons underlying the exhaustion doctrine did not fit

the facts of the case before it, exhaustion of remedies

was not required. Weyerhaeuser, supra, 592 F.2d at

376. Since the constitutional challenges in the cases at

bar and in the Seventh Circuit’s case all involve the facial

7a

validity of a warrant, a factual record is not required for

judicial review, and we agree with the Seventh Circuit’s

rejection of this rationale. Moreover, we agree with the

Seventh Circuit’s conclusion that interests of agency ex-

pertise do not require exhaustion, since agency officials

have no special expertise which would make them adept

at handling issues concerning the constitutional validity of

warrants. However, we disagree with the determination

that constitutional issues may not be mooted by an agen-

cy decision in favor of the allegedly aggrieved party, and

we find that interests of administrative autonomy weigh in

favor of requiring exhaustion of remedies in cases like the

ones at bar. Therefore, we disagree with the conclusion

of the Seventh Circuit, and we hold that the exhaustion of

remedies rule applies to the present cases.

The Seventh Circuit found that there was no possibility

of mooting the issue of the warrant’s constitutionality,

since if the warrant and subsequent search were un-

constitutional, the fourth amendment injury would re-

main even if the citations were dismissed. Id. at 376. The

court thus distinguished between the injury resulting from

the citations and the injury resulting from the search, and

held that while a favorable ruling by OSHRC might relieve

the forme:, it could not affect the latter. However, the

declaratory and injunctive relief sought in cases like the

one before the Seventh Circuit and the ones at bar merely

seeks to preclude administrative action based on the

allegedly unconstitutional searches. If the OSHA citations

against the administrative defendants are dismissed for

any reason, the injunctive and declaratory relief sought in

federal court would be of no value. Hence, while the alleg-

ed injury resulting from the search is indeed different than

the alleged injury resulting from the citations, the relief

sought in cases like the ones at bar concerns the latter.

Since the issue might therefore be mooted by dismissal of

the citations in the administrative proceeding, the ra-

tionale behind the exhaustion of remedies doctrine ap-

plies.’

Applying this analysis to the cases at bar, it is clear that

OSHRC decisions in favor of Baldwin and Mosher will

moot the issues of the warrant’s constitutionality. If the

citations against Baldwin and Mosher are resolved in the

companies’ favor for any reason, there will be no need for

declaratory and injunctive relief regarding the warrants.

Indeed, if the OSHA citations pursuant to the warrants

are dismissed, granting the declaratory and injunctive

relief requested would serve no purpose other than to an-

nounce to the world that the searches conducted were un-

constitutional.’ See Babcock & Wilcox, supra, 610 F.2d at

1138.

’ The possibility of mooting constitutional issues by an agency deci-

sion favorable to the allegedly aggrieved party may alone be enough to

require exhaustion of remedies. See Public Utilities Commission of

California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470

(1958); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 67

S.Ct. 1493, 91 L.Ed. 1796 (1947); Moore v. City of E. Cleveland, 431

U.S. 494, 97 S.Ct. 1932, 1948-49, 52 L.Ed.2d 531 (1977) (Burger,

C.J., dissenting).

*It is possible—though indeed unlikely—that even if the OSHA

citations against Mosher and Baldwin were dismissed, the evidence

from the allegedly illegal search would be used in a subsequent OSHA

proceeding against one of the companies. This possibility does not

change the result in this case, since if such a future proceeding was

brought, a decision by the agency favorable to Mosher or Baldwin

would again serve to moot the constitutional issue. Hence, exhaustion

of administrative remedies would again be required.

9a

Additionally, requiring exhaustion of remedies in the

cases at bar would serve to protect the autonomy of

OSHRC enforcement proceedings. Allowing the district

courts to consider requests for declaratory and injunctive

relief concerning OSHA warrants prior to a final ad-

ministrative decision invites dilatory tactics by companies

faced with an enforcement proceeding. See Babcock &

Wilcox, supra, 610 F.2d at 1140; Quality Products, supra,

592 F.2d at 616; infra, slip op. page 5870, page . Re-

quiring exhaustion of remedies thus prevents ad-

ministrative defendants from throwing a wrench into the

enforcement machinery.’

[2] Once it has been determined that there is a valid

reason for applying the exhaustion of remedies doctrine,

the exceptions to the rule must be considered. If resort to

the prescribed administrative procedures would be futile

or inadequate to prevent irreparable injury, or if blatant

violations of constitutional or statutory rights have

already occurred, the exhaustion of administrative

remedies should not be required. Rhodes v. United States,

574 F.2d 1179 (Sth Cir. 1978); Susquehanna Valley

Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d

231 (3d Cir. 1980); Barnes, supra, 515 F.2d at 920-21. In

the cases before us, the allegedly improper searches do not

present ‘‘clear’’ or unambiguous’”’ violations of constitu-

tional or statutory rights, and so this exception to the ex-

haustion of remedies rule is inapplicable. Moreover, we

are presented with no evidence that agency review before

OSHRC would be futile, and so this exception is inap-

plicable as well. The only exception to the exhaustion doc-

trine which merits extended discussion in these cases is the

* **Were an employer given the power to invoke the district court's

jurisdiction on the eve of a scheduled hearing before the Review Com-

mission whenever an inspection warrant is challenged on constitu-

tional grounds, we might well sunder the statutory balance between

swift abatement of dangerous conditions and due process

protections.’’ Babcock & Wilcox, supra, 610 F.2d at 1140.

10a

possibility that irreparable harm will result if the exhaus-

tion of remedies requirement is applied. Appellees make

two arguments in this regard.

First, Baldwin and Mosher argue that requiring exhaus-

tion of remedies in these cases violates the separation of

powers guaranteed by the Constitution. They suggest that

allowing OSHRC to hear the case prior to any judicial

hearing invites an executive agency Review Commission to

make constitutional rulings on the warrant’s validity and

denies the companies their right to judicial review of con-

stitutional issues. Appellees’ argument ignores the ap-

pellate process by which OSHRC decisions are reviewed.

The administrative defendants have the right to appeal

adverse OSHRC rulings to the courts of appeals, and

judicial review of constitutional issues—such as the validi-

ty of a warrant—may take place at this level.'® See 29

U.S.C.A. § 660(a) (West 1975). No injury to defendants

can occur, since review of the OSHRC decision will be

heard by the same court of appeals which would have

reviewed a federal district court’s decision concerning the

constitutionality of a warrant. See Babcock & Wilcox,

supra, 610 F.2d at 1140. Hence, since judicial review of

the warrant’s constitutionality is guaranteed by the right

to appeal adverse OSHRC rulings to a federal court of ap-

peals, Baldwin and Mosher will suffer no irreparable in-

jury by being required to exhaust administrative remedies

'° This bypasses the normal step of district court supervision of its

magistrates’ decisions to issue warrants, but this bypass is indeed a

small price to pay in order to protect administrative autonomy and to

create the possibility of making judicial intervention unnecessary if

the OSHRC decides in favor of the defendants.

before bringing their claims to federal court.''

''OSHRC believes that it is competent to address constitutional

issues and to review the magistrate’s decision to issue a warrant. See

Chromalloy American Corp., supra; see, ¢.g., Secretary of Labor v.

Moulded Acoustical Products, OSHRC No, 79-1274 (June 12, 1979).

Our brethern of the Third Circuit choose to characterize this function

in a different way, and suggest that the Review Commission must in-

evitably decide whether to consider seized evidence, and that this in-

volves a judgment as to the warrant’s propriety.

{T]he decision to issue the inspection warrant is complete and can-

not be negated. If the challenge (to the warrant’s validity) is raised

by (the administrative defendant), the problem for the Review

Commission will be whether to use the evidence obtained from the

inspection. In deciding whether to use this evidence the Review

Commission must of course, makes (sic) its own judgment as to the

propriety of the warrant, but such a determination does not reverse

the magistrate’s action, nor does it contravene a judicial order. The

OSHA official would not be in contempt if he were to decide not to

execute a warrant signed by the magistrate, and an administrative

tribunal does not flout the authority of the judiciary by refusing to

consider evidence that has been obtained pursuant to a warrant

issued by a judge or magistrate.

Babcock & Wilcox, supra, 610 F.2d at 1136 (footnotes omitted).

But see Rader, Lewis & Ehike, OSHA Warrants and the Exhaus-

tion Doctrine: May the Occupational Safety & Health Review

Commission Rule on the Validity of Federal Court Warrants?, 84

Dick.L.Rev. 567 (1980); Note, Procedures for Attacking OSHA In-

spection Warrants, 66 Va.L.Rev. 983 (1980). Since we hold that the

appellate process adequately ensures judicial review of a warrant’s

constitutionality, and since we are not faced with a case in which

the Review Commission has purported to make a constitutional

decision, we do not reach this issue.

12a

The second irreparable injury claimed ly Baldwin and

Mosher is that requiring exhaustion of remedies in the

cases at bar would force them to defend against un-

constitutionally seized evidence in the administrative pro-

ceeding. This argument is puzzling, since the irreparable

injury from the search itself has already been accomplish-

ed and therefore cannot be avoided, and since any injury

due to an erroneous admission by OSHRC of the allegedly

unconstitutionally seized evidence can be ‘‘repaired’’ by

judicial review of the OSHRC decision, and is therefore

not ‘‘irreparable.’’'? Appellees’ argument seems to

misconstrue the nature of a fourth amendment injury. The

wrong is accomplished by the unconstitutional search

itself; use of illegally seized evidence in future pro-

ceedings, subject to reversal on appeal, does not constitute

a new injury. See United States v. Calandra, 414 U.S. 338,

94 S.Ct. 613, 619-23, 38 L.Ed.2d 561 (1974); Linkletter v.

Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601

(1965); Babcock & Wilcox, supra, 610 F.2d at 1134.

Hence, appellees will not be irreparably harmed if they are

forced to defend against unconstitutionally seized

evidence, as long as judicial review of the alleged constitu-

tional violation is available to ensure that the evidence will

eventually be excluded if it is found to have been un-

constitutionally obtained. Since such a review process is

'? The relief sought in the case at bar seeks to ensure exclusion of the

seized evidence at pending or future proceedings. Requiring exhaus-

tion of remedies does not jeopardize the exclusion of inadmissible

evidence, since judicial review of admissibility will take place through

the appeals process. Hence, any injury resulting from an erroneous

admission of unconstitutional evidence by the Review Commission

can be corrected by a federal court of appeals and is therefore not ir-

reparable.

13a

provided in the cases at bar, no irreparable injury can be

found."’

As noted above, the Seventh Circuit has considered the

exhaustion of remedies issue before us today, and has

reached a result contrary to that reached here based on its

conclusion that the rationale behind the exhaustion of

remedies doctrine does not apply to this situation.'*

Weyerhaeuser, supra; see Morris v. United States Depart-

ment of Labor, 439 F.Supp. 1014 (S.D.II.1977).

However, shortly after the Seventh Circuit’s decision in

Weyerhaeuser, the Third Circuit issued its opinion in Bab-

cock & Wilcox Co. v. Marshall, supra, 610 F.2d 1128,

creating a split in the circuits and providing the route

which we have followed in analyzing the exhaustion of

remedies issue in the cases at bar. The fact pattern in Bab-

cock & Wilcox was quite similar to that in the cases before

us today, and the Third Circuit held that exhaustion of ad-

ministrative remedies was required before a federal court

could consider constitutional claims regarding ad-

ministrative inspection warrants. Having considered the

analyses of both the Seventh and Third Circuits, we have

concluded that the latter provides the better approach for

the reasons detailed above.

In the cases at bar, we find no reason to excuse Baldwin

Metals or Mosher Steel from the exhaustion of remedies

requirement. An OSHRC decision favorable to Baldwin

'’ This analysis applies only when the allegedly unconstitutional

search has already taken place, since the irreparable harm from the

search cannot be undone by enjoining the use of its fruits. However, if

a federal court is asked to consider the validity of a warrant prior to its

execution—in a contempt proceeding, for example—exhaustion of

remedies will not be appropriate, since the irreparable harm of the

threatened unconstitutional search can be prevented prior to the war-

rant’s execution. E.g., Marshall v. Huffhines Steel Co., 488 F.Supp.

995 (N.D.Tex.1979); see Babcock & Wilcox, supra, 610 F.2d at 1136.

'* See supra, slip op. pages 5866-5867, pages

l4a

or Mosher would moot constitutional issues and make

judicial intervention unnecessary. In addition, requiring

exhaustion of remedies serves to protect the autonomy of

OSHRC proceedings. Moreover, since judicial review of

the allegedly unconstitutional warrants is provided in the

appellate review of OSHRC decisions by a federal circuit

court of appeals, no irreparable injury is suffered. Based

upon the above analysis and upon the Third Circuit’s

thoughtful opinion in Babcock & Wilcox, supra, we hold

that judicial review of the administrative warrants in these

cases should be postponed until Baldwin and Mosher have

exhausted their administrative remedies.

IV. The Second Stop Along The Road:

Adjusting The Alignment and Balance

[3-7] The principles controlling the exercise of

equitable jurisdiction provide another basis upon which

the district courts should have declined to hear the cases at

bar. It is clear that a court must choose to exercise its

equitable jurisdiction before it can consider the constitu-

tionality of evidence in a proceeding other than that in

which the evidence is to be used. Hunsucker v. Phinney,

497 F.2d 29, 32-33 (Sth Cir. 1974), cert. denied, 420 U.S.

927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). Before a court

should exercise this equitable jurisdiction, it should

carefully weigh the danger of an irreparable injury, the ex-

istence of a callous disregard of constitutional rights and

the possibility of an inadequate remedy at law. Id. at 34 &

n.7. As noted above, none of these criteria are satisfied in

the case at bar.'* We have been presented with no evidence

of a callous disregard by OSHA officials for the constitu-

tional rights of the companies. Moreover, there is no

possibility of irreparable injuries resulting in the cases at

bar, since the searches have already taken place, and since

judicial review of the search warrants’ constitutionality at

the appellate level provides an adequate remedy at law.'®

'S See supra, slip op. pages 5868-5869, pages

'® See 29 U.S.C.A. § 660(a) (West 1975).

15a

Because the Hunsucker criteria are absent in this case, the

district court should have refused to exercise its equitable

jurisdiction."’

'’ The general principles controlling the grant of declaratory and in-

junctive relief provide insight into the rationale behind refraining

from the exercise of equitable jurisdiction in cases like the ones at bar.

An inadequate remedy at law and an irreparable injury should exist

before a court grants injunctive relief. Beacon Theatres, Inc. v.

Westover, 359 U.S. 500, 79 S.Ct. 948, 954, 3 L.Ed.2d 988 (1959);

Confederation of Police v. City.of Chicago, 481 F.Supp. 566, 569

(N.D.IIl. 1980); International Association of Firefighters, Local 2069

v. City of Sylacauga, 436 F.Supp. 482 (N.D.Ala. 1977). Since there is

no danger of irreparable injury in the cases at bar due to the existence

of an adequate remedy, see supra, injunctive relief should not have

been granted. This requirement of an irreparable injury also applies to

the grant of the preliminary injunction in Baldwin. See Canal

Authority of Florida v. Callaway, 489 F.2d 567 (Sth Cir. 1974);

Blackshear Residents Organization v. Romney, 472 F.2d 1197 (Sth

Cir. 1973). In addition, while irreparable injury need not be shown in

order to justify declaratory relief, Diaz v. Stathis, $76 F.2d 9 (ist Cir.

1978), the court must balance a plaintiff's need for the relief against

the consequences of granting the remedy, and should only grant a

declaratory judgment when it would be in the public interest to do so.

See Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 68

S.Ct. 641, 644, 92 L.Ed. 784 (1948); Exxon Corp. v. FTC, 588 F.2d

895 (3d Cir. 1978). A declaratory judgment should only be granted

when the issues are fit for judicial decision, and should not be used by

the judiciary to interfere in agency proceedings before a final ad-

ministrative decision has been rendered. See Abbott Laboratories v.

Gardner, 387 U.S. 136, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967);

Exxon Corp., supra; A.O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir.

1976). Since Baldwin and Mosher have an adequate remedy available

through OSHRC review and the appeals process, see supra, their

need, for a declaratory judgment is slight. On the other hand, granting

declaratory relief interrupts the agency proceedings and forces judicial

consideration of constitutional issues which might be mooted by an

administrative decision favorable to Baldwin or Mosher. See supra,

slip op. pages 5866-5867, pages . Moreover,

granting the relief requested might jeopardize the OSHA enforcement

process by enabling the defendant companies to delay OSHRC pro-

ceedings. See supra, slip op. pages 5867-5868 & n.9, page

& n.9. Hence, a declaratory judgment would not

be in the public interest. Finally, the discussion of the exhaustion of

administrative remedies doctrine, supra, slip op. pages 5866-5870,

[Footnote continued on next page]

16a

Two recent decisions by the First'* and Eighth'® Circuits

lend support to this analysis. Although the procedural

context in both cases differs slightly from that in the cases

before us today, the differences are unimportant,”° and the

analyses of these cases leads us to conclude that the district

court’s equitable jurisdiction should not have been exercis-

ed in the cases at bar.

In Quality Products, the First Circuit was faced with

reviewing a motion in district court to quash an OSHA

search warrant and to suppress its fruits after OSHRC

proceedings were begun, but before a final administrative

decision had been rendered. The court noted that the sup-

pression of evidence would involve the exercise of

equitable jurisdiction by the district court, and citing this

court’s decision in Hunsucker, supra, found that the

balance of equities weighed against exercising jurisdiction.

Quality Products, supra, 592 F.2d at 614-16. First of all,

the court noted that the exercise of equitable jurisdiction

would result in piecemeal adjudications and would en-

courage delay and waste since the district court action to

quash the warrant and suppress the evidence was separate

from the OSHRC proceeding. Id. at 614 & n.4. Moreover,

[Footnote continued]

pages , makes it clear that the issues in the case are not

yet fit for judicial review. See also /mperial Carpet Mills v. Consumer

Products Safety Commission, 634 F.2d 871 (Sth Cir. 1981). Thus the

declaratory and injunctive relief sought in the cases at bar should not

have been granted.

'*In re Worksite Inspection of Quality Products, supra, 592 F.2d

611.

'* Marshall v. Central Mine Equipment Co., supra, 608 F.2d 719.

*® The First Circuit found that there would be no difference if the

challenge to the warrant arose through a motion in district court to

quash the warrant and suppress the evidence, as it did in Quality Pro-

ducts, or through an action for declaratory and injunctive relief, as in

the cases at bar. Quality Products, supra, 592 F.2d at 615 n.5. We

agree with this conclusion since the two types of actions are essentially

the same.

17a

the court found that Quality Products had an adequate

legal remedy ince the challenge to the warrant would be

considered in the OSHA enforcement proceedings ‘‘if not

by the Commission then by the Court of Appeals.’’ Id. at

615 (citations omitted). In addition, the court found that

policy considerations weighed against the exercise of

equitable jurisdiction, since ‘‘[t}he practice of considering

motions to suppress in proceedings separate from the p:o-

ceedings at which the evidence would be used would af-

ford much opportunity for abuse for dilatory purposes, to

the detriment and possible disruption of effective law en-

forcement.’’ Id. at 616. The court concluded that since

there was another adequate remedy, since there had been

no callous disregard for constitutional rights, and since no

equitable remedy was needed to avoid irreparable injury,

Hunsucker precluded the exercise of equitable jurisdic-

tion.

The Eighth Circuit took a similar approach and reached

a similar conclusion in Central Mine, supra. The court,

citing Hunsucker, supra, and Quality Products, supra,

noted that it agreed ‘‘with the First and Fifth Circuits that

equitable jurisdiction should not be exercised unless the

plaintiff ‘clearly demonstrates that his constitutional

rights cannot be adequately adjudicated in the pending or

anticipated enforcement proceedings against him.’ ’’ Cen-

tral Mine, supra, 608 F.2d at 721. Because the plaintiff

had made no such showing, the court held that the exercise

of equitable jurisdiction was improper. Moreover, the fact

that the administrative proceeding before OSHRC had not

yet been initiated did not require a different result, since

the warrant had already been executed and the allegedly

unconstitutional search had already been made.

If the Secretary commences a statutory enforcement

proceeding against Central Mine, Central Mine may

then raise its challenge to the validity of the search

under which the evidence was obtained. Even if the

Commission will not consider this challenge, the Oc-

18a

cupational Safety and Health Act provides for appeal

to a Court of Appeals which could consider the con-

stitutional issue. We cannot say that these pro-

ceedings will not afford Central Mine an adequate

remedy for any constitutional violation which may

have occurred. On the other hand, if the Secretary

elects or has elected not to bring an enforcement pro-

ceeding against Central Mine, we cannot hold that the

plaintiff is suffering or will suffer from any ir-

reparable harm that warrants the exercise of equitable

jurisdiction.

Id. at 721-22. In other words, if administrative pro-

ceedings are brought, the company has an adequate

remedy provided by the OSHRC review process,

culminating in appeal to a federal circuit court; if pro-

ceedings are not brought, then declaring the search un-

constitutional or suppressing its fruits is unnecessary and

provides the company with no relief. Whether or not ad-

ministrative proceedings have been initiated, district

courts should refrain from exercising jurisdiction in cases

like this one.?'

Because Baldwin and Mosher have shown no ir-

reparable injury, no callous disregard of constitutional

rights and no necessity of equitable remedy at law, we hold

that the district courts improperly exercised equitable

jurisdiction in these cases. Although the procedural con-

texts of the Central Mine and Quality Products cases dif-

fer slightly from those in the cases at bar, the same

equitable considerations that apply to motions to quash a

warrant and to suppress the fruits of the subsequent

*! In light of the above analysis, it is unimportant whether or not ad-

ministrative proceedings have already been initiated when an action

concerning an administrative searci is brought in federal court.

Hence, Mosher’s claim that its complain was filed in district court

before it received any OSHA citations, Brief for Appellee at 6, and ap-

pellants’ observation that the OSHA citations were issued on the same

day as Mosher’s complaint was filed, Brief for the Secretary of Labor

at 8-9, are irrelevant in deciding the Mosher case at bar.

19a

search, should apply to actions for declaratory and injunc-

tive relief seeking essentially the same result. The Central

Mine/Quality Products analysis is therefore appropriate

here, and the district courts should not have exercised their

equitable jurisdiction in these cases.

V. The Final Destination”

Our less-than-scenic drive today has led us to conclude that

the path proposed by the Seventh Circuit leads to a cul de sac,

while the routes mapped out by the First, Third and Eighth Cir-

cuits provide a productive (if not pleasant) journey. We

therefore have decided that the district courts in both cases at

bar should have slammed on their brakes and refrained from ex-

ercising jurisdiction. Because they did not do so, we have had to

take our turn in the driver’s seat. Having driven far enough, we

now give the wheel back to the district courts with adequate

directions to complete the trip:

Both the doctrine of exhaustion of administrative remedies

and the principles of equity jurisdiction preclude the exercise of

jurisdiction in these cases. We therefore vacate the preliminary

injunction granted in No. 79-2548 and the injunctive and

declaratory relief granted in No. 79-2870. We remand both

cases to the district courts with instructions to dismiss the ac-

tions brought by Baldwin Metals and Mosher Steel.

VACATED AND REMANDED.

2 Because we decide this case on jurisdictional grounds, we do not

reach the other issues raised on appeal.

20a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MOSHER STEEL COMPANY, A

DIVISION OF TRINITY

INDUSTRIES

¥. SA 78 CA 448

RAY MARSHALL, SECRETARY

OF LABOR, ET. AL.

ORDER

On this the 6th day of June, 1979, came on for con-

sideration the various motions filed by the plaintiff and

the defendants; and it appearing to the Court that it has

jurisdiction to review the magistrate’s action in issuing the

inspection warrant involved on November 22, 1978; and it

further appearing that said warrant was illegal in that it

was issued ex parte at a time when the Secretary of Labor’s

regulations required that prior notice of the application

for the warrant be given to the employer; and it further ap-

pearing that defendant’s motions to dismiss should, in all

respects, be denied, and that plaintiff’s motions are

meritorious and should be granted; it is, therefore,

ORDERED, ADJUDGED and DECREED as follows:

1. Defendant’s motion to dismiss pursuant to Rule 12(b)

of the Federal Rules of Civil Procedure, and defen-

dant’s motion to dismiss the complaint for lack of

jurisdiction over the subject matter and for failure to

state a claim upon which relief can be granted, are

without merit and are, in all things, DENIED.

2la

2. The request for inspection warrant and the inspection

warrant issued against plaintiff are null and void, and

are in violation of the provisions of the Occupational

Safety and Health Act, 28 U.S.C. § 657;

3. Defendants are permanently enjoined from taking

any further action against plaintiff based in whole or

in part upon the complaint, warrant, or application

for same;

4. Defendants are permanently enjoined from returning

to the plaintiff’s San Antonio facility and pursuing an

inspection of plaintiff’s premises based in whole or in

part upon the complaint and/or warrant dated

November 22, 1978;

5.The warrant issued by Magistrate Leonard on

November 22, 1978, is hereby in all things quashed,

and the defendants are hereby enjoined from refer

ring, in whole or in part, to any evidence obtained as

a result of the unlawful inspection of plaintiff’s

premises on the dates in question;

6. Defendant Occupational Safety and Health Review

Commission, and defendant Department of Labor,

are hereby enjoined from the issuance of any citations

and/or proposed penalties as a result of the unlawful

inspection of the plaintiff’s premises;

7. Defendant Occupational Safety and Health Ad-

ministration is hereby ordered to return to plaintiff all

records, files, papers, documents, photographs and

all other such material gathered by defendant during

the illegal inspection of plaintiff’s premises.

8. Defendant shall pay to plaintiff all costs of court;

provided, however, the question concerning

plaintiff’s claim for attorney’s fee will be held in

abeyance, pending further order of the Court.

224

9. Except as otherwiise indicated, all relief requested by

any party that is not herein specifically granted or

denied, is denied.

Entered this 6th day of June, 1979.

/S/ Adrian A. Spears

United States District Judge

23a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MOSHER STEEL COMPANY, A

DIVISION OF TRINITY

INDUSTRIES

V. CIVIL ACTION NO. SA78CA448

RAY MARSHALL, SECRETARY

OF LABOR, ET AL.

JUDGMENT

On this date came on for judgment the above cause, and

it appearing to the Court that judgment pursuant to the

order entered on June 6, 1979 should be rendered in favor

of the plaintiff; it is, therefore,

ORDERED, ADJUDGED AND DECREED that judg-

ment be entered in favor of the plaintiff, and that the

plaintiff recover of the defendant its cost of the action, ex-

cluding attorneys’ fees.

Entered this 6th day of August, 1979.

/S/ Adrian A. Spears

United States District Judge

24a

United States Court Of Appeals

FOR THE FIFTH CIRCUIT

No. 79-2870

D. C. Docket No. SA-78-CA-448

MOSHER STEEL COMPANY, A DIVISION

of Trinity Industries

Plaintiff-Appellee,

versus

RAYMOND J. DONOVAN, Secretary of

Laber, ET AL.,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Texas

Before GOLDBERG, POLITZ and SAM D. JOHNSON,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Western District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

25a

hereby, vacated; and that this cause be, and the same is

hereby remanded to the said District Court with instruc-

tions in accordance with the opinion of this Court;

It is further ordered that plaintiff-Appellee pay to

defendants-appellants the cost on appeal to be taxed by

the Clerk of this Court.

April 13, 1981

ISSUED AS MANDATE:

26a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT A

NO. 79-2870

MOSHER STEEL COMPANY, A Division

of Trinity Industries,

Plaintiff-Appellee,

versus

RAYMOND J. DONOVAN, Secretary of

Labor, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the

Western District of Texas

ON PETITION FOR REHEARING

( May 13, 1981 )

Before GOLDBERG, POLITZ and SAM D. JOHNSON,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and iuumbered cause be and the same is

hereby DENIED.

ENTERED FOR THE COURT:

/S/ HENRY A. POLITZ

United States Circuit Judge