Unpublished Disposition, 937 F.2d 612 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1989)

No. 90-70089.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS*  District Judge.

MEMORANDUM** 

The Secretary of Labor (hereafter "Secretary") petitions for review of the Occupational Safety and Health Review Commission's (hereafter "Review Commission") affirmance of the Administrative Law Judge's (hereafter "ALJ") decision vacating the Secretary's citation of Hern Iron Works, Inc. (hereafter "Hern"). Hern was cited for refusal to make accident and illness reports available to the Secretary. For the reasons that follow, we reverse and remand with instructions to reinstate the citation issued by the Secretary.

The Secretary issued a citation against Hern on June 21, 1988 for wilful failure to comply with 29 C.F.R. Sec. 1904.7 based on Hern's refusal to make prescribed accident and illness records available to the Secretary upon request. Hern contested the citation and a hearing was held before the Review Commission ALJ Benjamin R. Loye.1  The question of whether the nonproduction of records was a wilful violation or a calculated decision based upon advice of counsel was raised. The ALJ determined that the citation should be vacated based upon prior precedent holding that 29 C.F.R. Sec. 1904.7 does not authorize inspection of required records in the absence of a warrant, an administrative subpoena, or consent by the employer. Secretary of Labor v. Taft Broadcasting Co., 13 O.S.H. Cas. (BNA) 1137 (rev. Comm'n 1987), aff'd, 849 F.2d 990 (6th Cir. 1988). Finding that there was no subpoena and no consent on the part of Hern, the ALJ held that the Secretary had not relied on a 1987 warrant as authority for the inspection of Hern's records. The ALJ concluded that there was an absence of evidence showing that OSHA's request for Hern's records was consented to or authorized by facially valid compulsory legal process; therefore, the failure to provide the requested records did not constitute the basis for the citation. The ALJ's November 22, 1989 decision became a final order of the Review Commission on December 22, 1989.2  It is from this final ruling that the Secretary appeals.

On May 24, 1988, OSHA officials appeared at the workplace of Hern and attempted to inspect certain records.3  The May 1988 inspection was instigated by complaints made by Hern employees to OSHA about working conditions at the foundry. There is some dispute as to whether the inspection was pursuant to employee complaints or a warrant issued approximately one year earlier. Before refusing the inspection, Hern had contacted its legal counsel and as a result it did not consent to the inspection. The OSHA officials returned the next morning with a warrant issued in 1987 and warned that if they were not able to inspect the work place a citation would issue forthwith. Hern refused and a citation and complaint were subsequently issued on June 21, 1988 charging Hern with wilful refusal to permit an inspection to be conducted of its records.

The issues involved are as follows:

A. Was the Secretary's Request for Access to the Reports Authorized by a Warrant?

B. Is Hern estopped from claiming that no warrant was relied on?

The standards of review applicable to findings and conclusions of the Commission are as follows:

The findings and conclusions of the Commission are subject to our review under the provisions of the Administrative Procedure Act, 5 U.S.C. § 706, and under 29 U.S.C. § 660(a). [citations omitted]. The latter section empowers this Court to affirm, modify, or set aside the order of the Commission, and makes conclusive upon the court ' [t]he findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole.' Under 5 U.S.C. § 706(2) (A), the decision of the Commission may be set aside if 'arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.'

Electric Smith, Inc. v. Secretary of Labor, 666 F.2d 1267, 1270 (9th Cir. 1982) (citations omitted).

This case turns on whether the OSHA compliance officers who appeared on May 24, 1988 were acting pursuant to a valid warrant, or acting upon newly received employee complaints. The ALJ concluded that there was lack of credible evidence that the May 1988 search was pursuant to the 1987 warrant. We disagree finding the record replete with credible evidence that the 1988 search was pursuant to a valid 1987 warrant.

The ALJ arbitrarily ignored findings made in related district court litigation brought by Hern as a result of the OSHA May 1988 attempted inspection. Soon after the OSHA May 1988 visit, Hern brought a civil rights action in the district court seeking declaratory and injunctive relief against further efforts by the Secretary to inspect pursuant to the 1987 warrant. The various defendants, including the Secretary in that case filed a motion to dismiss for failure to state a claim against Hern. In granting the Secretary's motion to dismiss for failure to state a claim in August of 1988, the district court (Judge Ryan) stated that:

Because the June 11, 1987, warrant was valid when issued and has not become stale because of passage of time, there is no merit whatsoever to plaintiff's claim that the inspection attempted on May 24, 1988, was a warrantless inspection. According to the complaint, the inspectors first stated that no warrant was needed, but then produced the June 11, 1987, warrant when a warrant was demanded. However, even taking the factual allegations of the complaint as true, the inspectors' conduct does not establish an attempted warrantless inspection because, as shown above, the inspectors did have a valid warrant.

Support that the May 24, 1988 inspection was pursuant to a warrant is also evidenced by the simple fact that the 1987 warrant was presented to Hern at the May 1988 attempted inspection. Hern's affidavit stated that the OSHA compliance officers gave him a copy of the 1987 warrant at the time of the attempted inspection in May 1988 and told him that the warrant authorized them to inspect Hern's health and safety records. This evidences Hern's clear understanding that the May 1988 inspection was pursuant to the 1987 warrant's authority.

Despite the substantial evidence that the May 1988 inspection was pursuant to a warrant, the ALJ concluded that " [i]n the absence of any evidence that OSHA's request for respondent's records was consented to or authorized by a facially valid compulsory legal process, respondent's failure to provide the requested records cannot constitute the basis for the citation." See page 3 of the ALJ's decision and order. The ALJ's factual conclusion that the inspection was not pursuant to a warrant was not supported by substantial evidence in the record and should not stand. Moreover, the ALJ abused his discretion in ignoring the evidence that the search was pursuant to a valid warrant. Accordingly, the case is REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE CITATION.

 *

Honorable C. Clyde Atkins, Senior United States District Judge for the Southern District of Florida, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The Occupational Safety and Health Act (hereafter "OSHA") established the Review Commission as an independent adjudicative forum for employers who contest citations issued by the Secretary. 29 U.S.C. §§ 659, 661. When an employer wishes to contest a citation issued by the Secretary, a hearing is held by an ALJ of the Review Commission. In the event that a party is dissatisfied with the decision of the ALJ, it may petition for discretionary review by the Review Commission. 29 U.S.C. §§ 659(c), 661(i). The Review Commission has no connection with the Secretary or the United States Department of Labor

 2

Section 12(j) of the Act, at 29 U.S.C. § 661(j), provides in pertinent part that " [t]he report of the [ALJ] shall become the final order of the Commission within thirty days after such report by the [ALJ], unless within such period any Commission member has directed that such report shall be reviewed by the Commission." However, due to unfilled vacancies on the Commission, there were no Commission members able to direct review during the 30-day period following the submission of the ALJ's decision

 3

In the past, Hern has resisted prior attempts by OSHA to inspect. Hern Iron Works, Inc. v. Donovan, 670 F.2d 838, 839 (9th Cir. 1982); In Re Establishment of Hern Iron Works, Inc., 881 F.2d 722, 723-24 (9th Cir. 1989)