In the Matter of Establishment Inspection of Kulp Foundry, Inc.appeal of Kulp Foundry, Inc. in 81-2450.appeal of Secretary of Labor in 81-2451, 691 F.2d 1125 (3d Cir. 1982)

INTRODUCTION

On July 10, 1981 Kulp Foundry, Inc. was held in civil contempt by the United States District Court for the Middle District of Pennsylvania for its failure to honor an Occupational Safety and Health Administration ("OSHA") inspection warrant. The district court issued its contempt order after quashing and severing as overbroad that portion of the warrant which authorized the Secretary of Labor to inspect documents at the Kulp plant. The district court held that the quashed part of the warrant provided for inspection power beyond the Secretary's statutory authority under section 8(a) of the Occupational Safety and Health Act, 29 U.S.C. §§ 651-678 (1976). At No. 81-2450 Kulp appeals from the district court's order holding it in contempt and from the district court's denial of its motion to quash the warrant in its entirety. At No. 81-2451 the Secretary of Labor appeals from the district court's order quashing and severing that part of the warrant authorizing the inspection of documents. We dismiss Kulp's appeal as moot and affirm the district court's order holding that the Secretary is without statutory authority to inspect documents pursuant to a section 8(a) search warrant.

FACTS

On April 16, 1980 the Wilkes-Barre OSHA Area Office received a written complaint alleging that employees at Kulp Foundry's East Stroudsberg plant were exposed to "high levels of dust."¹  The complaint alleged that the dust problems were the result of a damaged and inoperative vacuum system on the plant floor. Based on its evaluation of the complaint, see 29 C.F.R. Sec. 1903.11 (1981), OSHA decided to perform an inspection of the plant site. On May 20, 1980 an OSHA industrial hygienist visited the plant but Kulp officials refused to permit his entry.

On November 14, 1980 OSHA made an ex parte application to United States Magistrate Raymond J. Durkin for an inspection warrant based on the previously received complaint. The application sought inspection authority extending to all foundry operations where silica was present, to health hazards in plain view, and to conditions brought to the inspector's attention during the course of the inspection. The application requested that the inspection include "all pertinent conditions, structures, machines, apparatus, devices, equipment, materials and all other things therein (including records, files, papers, processes, controls and facilities) bearing on whether this employer is complying with the Occupational Safety and Health standard for exposure to silica." App. at 15. In addition OSHA requested authorization to employ the attachment of personal samplers to employees and to engage in private questioning of employees at the worksite.

The magistrate determined that probable cause existed and issued the requested warrant.²  On November 17, 18, and 19, 1980 an OSHA compliance officer attempted to execute the warrant, but the "inspection was terminated due to the inability to agree on the meaning of the warrant and the terms of the inspection." App. at 23.³ 

PROCEDURAL HISTORY

On April 6, 1981 the Secretary of Labor filed a Petition for Adjudication of Civil Contempt in the Middle District of Pennsylvania alleging that Kulp Foundry was in contempt because of its refusal to allow execution of the warrant. App. at 36; see 11 C. Wright & A. Miller, Federal Practice and Procedure, Civil Sec. 2960 (1973 & 1981 Supp.). In response Kulp filed a Motion to Quash Warrant, and on April 28, 1981 Judge Conaboy issued a Rule to Show Cause why Kulp's motion should not be granted. A hearing was convened on May 6, 1981.

On July 10, 1981 Judge Conaboy issued a Memorandum and Order in which he upheld the warrant in all respects except insofar as it authorized the inspection of records. The judge held that under the statute, if OSHA wanted to inspect records, it was required to seek a subpoena rather than a warrant. As to the other portions of the warrant, the court granted the Secretary's Petition for Adjudication of Civil Contempt and ordered Kulp to purge itself by permitting an inspection in accordance with the court's order. An inspection was subsequently held, but OSHA issued no citations.⁴ 

Kulp appealed to this court that part of the district court's order which denied Kulp's Motion to Quash and which held Kulp in civil contempt for failure to honor the warrant. Kulp claimed that no probable cause or statutory authority existed for the issuance of the warrant. Kulp also argued that the district court erred by not quashing the entire warrant when it determined that part of the warrant was overbroad and thus invalid. The Secretary filed a cross-appeal claiming that the district court erred by quashing and severing as invalid that part of the warrant which authorized the inspection of records.

Prior to briefing before this court, the Secretary moved to dismiss Kulp's appeal at No. 81-2450. The Secretary argued that because the inspection of Kulp's workplace had been completed the order of civil contempt was purged. Thus, the Secretary argued, any appeal from that order or the order denying Kulp's Motion to Quash was moot. The Secretary's motion was referred to the merits panel for consideration with these appeals.

DISCUSSION

The Secretary of Labor asks this court to dismiss Kulp's appeal at No. 81-2450 arguing that no live controversy exists between the parties. He contends that because an inspection has taken place and no citations have been issued, Kulp's challenges to the district court's adjudication of civil contempt and refusal to quash the warrant are now moot. The Secretary further contends that Kulp stands to gain nothing if we were to reverse these portions of the district court's order. Cf. NRDC v. U.S. EPA, 683 F.2d 752, 759 (3d Cir. 1982) (because court could order relief which would cure an injury which would otherwise continue to exist, case is not moot).

Under Article III of the Constitution, this court has power to adjudicate issues only when presented with an actual "case or controversy." United States Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980). A case will be considered moot, and therefore nonjusticiable as involving no case or controversy, if "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982), quoting United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1950, 23 L. Ed. 2d 491 (1969).⁵  In the instant case a reversal of the trial court's order will provide Kulp with no actual, affirmative relief. Because the warrant, as modified by the district court, has been fully executed and no citations have been issued, the trial court's order has no on-going effect.⁶  Thus under the general test for mootness, Kulp's appeal fails to present a "live" controversy for this court.⁷ 

This does not end our inquiry, however. Kulp argues that under our previous decisions this case should not be held moot. This court has previously identified three exceptions to the mootness doctrine which should be considered when deciding the reviewability of an appeal that is in some sense moot:

(1) whether the appellant has expeditiously taken all steps necessary to perfect the appeal and to preserve the status quo before the dispute becomes moot,

(2) whether the trial court's order will have possible collateral legal consequences, and

(3) whether the dispute is of such a nature that it is capable of repetition yet evading review.

See Marshall v. Whittaker Corp., 610 F.2d 1141, 1144 (3d Cir. 1979). Because an inspection purging the contempt has taken place and because no citations have been issued, unless Kulp's situation fits into one of these three categories we are unable to reach its claims on the merits. We hold it does not.

First, the initial exception discussed in Whittaker derives from United States v. Frumento, 552 F.2d 534 (3d Cir. 1977) (en banc), where we held that an appeal from a judgment of civil contempt resulting in imprisonment "is not moot even though the appellant has been released from custody or has served his sentence if he has taken all possible steps to have the order of confinement promptly reviewed prior to his release." Id. at 537. This exception was an extension of the more traditional "capable of repetition, yet evading review" exception, discussed infra, and was grounded on the important personal liberty interest at stake. We do not understand this exception to extend to cases like this one where no personal liberty interest is at stake.⁸  Cf. Bagby v. Beal, 606 F.2d 411, 414 (3d Cir. 1979) (appeal held moot despite fact that appellant filed immediate request for stay of injunction pending appeal). In any event, although Kulp filed a timely appeal in this court, it did not move in the district court or in this court for a stay of the district judge's order pending appeal. Absent such efforts Kulp's actions are not the " 'prompt, diligent and timely' action" necessary to bring it within the Frumento reviewability exception to the mootness doctrine. Marshall v. Whittaker, 610 F.2d at 1144-45.⁹ 

Second, no possible collateral legal consequences flow from the district court's order. See Pennsylvania v. Mimms, 434 U.S. 106, 108 n. 3, 98 S. Ct. 330, 332 n. 3, 54 L. Ed. 2d 331 (1977); Sibron v. New York, 392 U.S. 40 at 53-55, 88 S. Ct. 1889, at 1897-1898, 20 L. Ed. 2d 917. As stated in Marshall v. Whittaker, " [a] judgment of civil contempt becomes moot after being purged because the court's order cannot be disobeyed again: ... purging the contempt eradicates any effect of a violation." 610 F.2d at 1145. Furthermore, because OSHA has decided not to issue any citations,¹⁰  Kulp's appeal from the district court's denial of its Motion to Quash must also be considered moot. That portion of the Judge's order "carries with it no possibility of collateral deprivation of civil rights or other [specific] legal consequences." 610 F.2d at 1145.¹¹ 

Third, the claims raised by Kulp are not "capable of repetition, yet evading review." See Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 187, 99 S. Ct. 983, 991, 59 L. Ed. 2d 230 (1979); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-127, 94 S. Ct. 1694, 1699-1700, 40 L. Ed. 2d 1 (1974). As stated in Marshall v. Whittaker, Kulp's lack of prompt and diligent action in taking an appeal is also determinative of whether the case falls within this exception to the mootness doctrine. 610 F.2d at 1146. Unlike cases where the "capable of repetition, yet evading review" exception has been applied, there is nothing inherent in the type of injury alleged by Kulp that would evade review. If Kulp had acted quickly, this action would not be "in its duration too short to be fully litigated prior to its cessation or expiration." Illinois State Board of Elections, 440 U.S. at 187, 99 S. Ct. at 991. As we said in Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir. 1979), " [m]ost cases utilizing this approach have involved official action that by its very nature could not, or probably would not, be able to be adjudicated while fully 'live.' " Id. at 679 n. 12.

We thus hold that Kulp's appeal at No. 81-2450 is moot in that it presents no live controversy for adjudication.¹²  Kulp's situation does not fall within the three exceptions to the mootness doctrine previously articulated by this court. We are thus unable to reach Kulp's claims on the merits.

The Secretary's appeal at No. 81-2451, however, does provide a live controversy in that he asks this court to overturn the district court's order quashing and severing the records inspection portion of the warrant and to remand to the district court so that further inspection may take place. We now turn to that issue.

B. INSPECTION OF RECORDS PURSUANT TO A WARRANT.

The district court held that the Secretary lacked statutory authority under section 8(a) of the Act, 29 U.S.C. § 657(a) (1976), to inspect Kulp's records, files, and papers pursuant to an OSHA inspection warrant.¹³  The lower court held that the only statutory authority for the inspection of documents was the Secretary's administrative subpoena power provided for in section 8(b) of the Act. 29 U.S.C. § 657(b) (1976). Accordingly, the district court quashed and severed that part of the inspection warrant authorizing inspection of documents.

In reaching its conclusion, the district court relied on the analysis in In re Inland Steel Co., 492 F. Supp. 1310 (N.D. Ind. 1980), the only reported decision which has addressed the issue squarely.¹⁴  In Inland Steel, the district judge examined the structure and legislative history of section 8 of the Act and concluded that Congress did not intend to grant the Secretary of Labor the authority to inspect documents pursuant to a warrant.¹⁵  The court supported its conclusion by pointing to the additional procedural safeguards provided to an employer by the administrative subpoena process. The court argued that because the general inspection of documents is so potentially intrusive, Congress intended to provide extra procedural protections to employers. " [C]ourts should not lightly strip such protection away in the name of administrative convenience." 492 F. Supp. at 1315.

The Secretary posits several reasons why this court should not follow the reasoning in Inland Steel. First, he argues that section 8(a) (2) specifically authorizes the inspection of "materials" at the worksite, a term which the Secretary construes to include "notes, observations, [and] data." Second, he argues that under section 8(c) (1) an employer is required to "make available to the Secretary" those records that the Secretary requires him to keep under the Act and thus Congress could not have intended that those records could be obtained only by subpoena. Third, he argues that the Inland Steel reasoning is flawed because it "rests on the maxim expressio unius est exclusio alterius," the application of which is inappropriate to a statute in which broad rulemaking authority has been conferred by Congress.¹⁶ 

Our reading of the statutory provisions, the legislative history, and the various policies behind the Act convinces us that Congress did not intend to allow the Secretary to inspect records pursuant to a warrant issued under section 8(a).¹⁷  Congress clearly distinguished inspections of an employer's physical plant from the examination of records and documents. See H.R.Rep.No.91-1291, 91st Cong., 2d Sess. 22 (1970). Congress provided an express method by which the Secretary can properly effectuate his responsibilities under the Act while not compromising employers' rights to be free from excessive intrusion by the government. In addition, the language of sections 8(a) and 8(b) compels the conclusion that Congress intended them to be read together as a comprehensive inspection scheme. Section 8(a) allows the Secretary "upon presenting appropriate credentials ... to enter without delay any factory ... and to inspect and investigate ... any such place of employment." Section 8(b) begins, " [i]n making his inspections and investigations under this chapter the Secretary may require the attendance and testimony of witnesses and the production of evidence under oath." We read the language of section 8(b) as granting to the Secretary a power adjunct to his section 8(a) power to inspect and investigate; to read section 8(a) as incorporating the power to obtain documents, as the Secretary would have us do, would render this adjunct power superfluous. We conclude rather that Congress intended the safeguards of a subpoena requirement to apply to the production of documents.

The Secretary also argues that the section 8(a) warrant requirement provides a sufficient safeguard against arbitrary intrusions into company records. But under the statute as Congress passed it, the Secretary was not required to obtain a warrant to inspect under section 8(a); the warrant requirement was a judicial imposition, see Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). If the Secretary is correct in his claim that Congress authorized inspection of documents under section 8(a), then it did not provide even the limitation of an ex parte warrant requirement on the Secretary's authority to obtain documents. We do not think Congress could have contemplated such a result.¹⁸ 

We therefore hold that the district court was correct in quashing that part of the warrant which authorized the Secretary of Labor to inspect Kulp's records and files in conjunction with a physical inspection of Kulp's plant.¹⁹ 

CONCLUSION

Because we find Kulp's appeal at No. 81-2450 to be moot, we will vacate that part of the district court's order and remand to the district court with instructions to dismiss. We will affirm that part of the district court's order in No. 81-2451 holding that records cannot be inspected pursuant to a section 8(a) search warrant.