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Marshall v. Milwaukee Boiler Manufacturing Co.

decided: August 4, 1980.

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, PLAINTIFF-APPELLEE,
v.
MILWAUKEE BOILER MANUFACTURING COMPANY, INC. AND RICHARD W. STEVENS, PRESIDENT, DEFENDANTS-APPELLANTS



Appeal from the United States District Court of the Eastern District of Wisconsin. No. 79-C-778-Myron L. Gordon, Judge.

Before Pell and Wood, Circuit Judges, and Baker, District Judge.*fn*

Author: Pell

This appeal is from a district court order holding the appellants, Milwaukee Boiler Manufacturing Company, Inc., and Richard W. Stevens, President, (hereinafter collectively the Company) in contempt for a refusal to comply with an Occupational Safety and Health Administration (OSHA) inspection warrant and denying the Company's motion to quash the warrant.

On February 8, 1979 an OSHA compliance officer who appeared at the Company's plant in Milwaukee for the purpose of conducting an inspection was refused entry on the ground that he did not have a warrant. On April 26, 1979, a compliance officer of OSHA appeared before a magistrate in Milwaukee and presented an application for an inspection warrant. Apparently the magistrate declined to issue the requested warrant at the time and the Secretary of Labor (Secretary) requested leave to brief the matter. The status remained unchanged at the time of the death of the magistrate. Subsequently, a hearing was held before another magistrate on September 13, 1979, at which time a warrant was issued. A copy of the pertinent portion of the warrant application is set forth in the margin.*fn1

Four days later, a compliance officer appeared at the Company with a warrant whereupon the Company again declined to permit the inspection, stating that the warrant was not issued with probable cause therefor. A hearing was held in the district court on October 5, 1979, on the Secretary's petition for a finding of contempt and on the motion of the Company to quash the warrant. The district court, ruling from the bench, granted the Secretary's requested relief and denied that sought by the Company. This appeal followed and this court, after granting a temporary stay, denied the appellants' motion for a stay pending appeal.

An initial question appears to us to be presented, being whether this appeal should be disposed of on the ground of mootness. In the ordinary situation involving contempt proceedings, the object of the proceedings is given the uncomfortable choice of waiving his rights or standing firm and suffering the consequences of being in contempt during what may be a protracted period of review. See United States v. Ryan, 402 U.S. 530, 532-33, 91 S. Ct. 1580, 1581-82, 29 L. Ed. 2d 85 (1971).

Here, however, the Company, after having failed to secure a stay of the order, did permit the inspection which is now a fait accompli. Cf. Federal Trade Commission v. Stroiman, 428 F.2d 808 (8th Cir. 1970). It is well established, however, that an action will not be deemed moot where questions are presented which are "capable of repetition, yet evading review." See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S. Ct. 705, 713, 35 L. Ed. 2d 147 (1973); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911). The rationale of cases advancing this ground for nonapplication of the mootness doctrine generally stem from the fact that (1) the plaintiffs have alleged the existence of a federal right; and (2) the right was alleged to be the subject of an existing violation at the time the complaint was filed. That the right would be subjected to future violations was not a matter of speculation or conjecture but was a reasonable expectation because of the existence of a statute or course of conduct of sufficient permanence to amount to what the Supreme Court called the "brooding presence" in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S. Ct. 1694, 1698, 40 L. Ed. 2d 1 (1974). We have some difficulty here in being certain that there is an element of capability of repetition sufficient to avoid mootness. Nevertheless, we are satisfied for other reasons that this action is not moot and that there is a sufficient case or controversy inherent in the present appeal.

We are mindful that the Act's penalty provisions mandate substantial penalties for each serious or nonserious violation and even higher penalties for repeated or willful violations, and also that criminal penalties are provided by the Act. While the present proceedings are civil in nature, there are at least quasi-criminal aspects. This court has held in connection with the concurrent sentencing rule that collateral consequences are presumed to result from any conviction. United States v. Tanner, 471 F.2d 128, 140 (7th Cir. 1972), cert. denied, 409 U.S. 949, 93 S. Ct. 269, 34 L. Ed. 2d 220. In the civil area of habeas corpus petitions, even where the applicant has been released from custody, the continuing effects of conviction will prevent mootness. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). Further, we note that the ultimate relief sought in the present proceedings by the Company is to suppress the results of the inspection which has, in fact, been made. The Secretary argues that suppression would be inappropriate even if this court found that there was no basis for the issuance of the warrant. Such an issue, whether ultimately it need be reached or decided in the present case or not, would seem to be an independent case or controversy. Accordingly, we are of the opinion that the action is not moot. Neither of the parties contends otherwise.

Subsequent to the Supreme Court's decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978),*fn2 this court has had several occasions to consider the sufficiency of warrant applications: In the Matter of Establishment Inspection of Northwest Airlines, Inc., 587 F.2d 12 (7th Cir. 1978); In the Matter of Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F.2d 1335 (7th Cir. 1979), cert. denied, 100 S. Ct. 174;*fn3 Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir. 1979).

In each of these cases the attention of this court was directed to whether the application for the warrant afforded the magistrate sufficient factual data to conclude that an administrative inspection was reasonable and that a warrant should issue. This, in essence, involved a facial examination of the application. The focus of the Company in the present case is quite different. We do not read the Company's position here as seriously contending that facially the application was deficient. If such were the contention we would have little difficulty in disposing of the present case under Chromalloy as examining the present application in the light of that case causes us to regard it as sufficiently specific to demonstrate a reasonable administrative standard for conducting an inspection with respect to the particular establishment. Indeed, the application is fleshed out with a greater showing of probable cause than was the application in Chromalloy. The Company in the present case, however, directs its focus basically at a claimed deficiency in factual support for the matters included in the application.

On the basis of information developed at the hearing before the district court, the Company asserts that in a number of respects the application conveyed false information to the magistrate. We, therefore, now turn to those specifications of falsity setting forth each in the order contained in the Company's brief. We also set forth the Secretary's response to each such item.

(1) The warrant application alleged that the Company was selected "in accordance with Chapter IV, entitled Compliance Programming, of the Occupational Safety and Health Administration Field Operations Manual." The pertinent part of Chapter IV was introduced in evidence and under the heading of "Program Planning" it was stated that the primary consideration in conducting compliance operations was the attainment of maximum effective inspection coverage. This statement then followed, "To achieve this goal, this chapter of the Field Operations Manual (FOM) and the Field Performance Evaluation Manual (FPEM) are to be used together for scheduling compliance operations." The FPEM was not shown to the magistrate, and in contradiction to the sworn warrant application there was testimony that the FPEM was not even in existence when the decision was made to inspect, and that, in fact, there was no reliance on the FPEM.

The Secretary, for answer to this specification, admits that the FPEM had been revoked before the decision to inspect was made, but characterizes the contention as meritless since the warrant application set forth the actual manner in which the Company was chosen for inspection, so that the reference to Chapter IV of the FOM could be struck from the application and sufficient probable cause would still exist to justify issuance of the warrant.

(2) The application referred to injury and accident statistics compiled by the Bureau of Labor Statistics (BLS) to the effect that the fabricated plate work industry had the seventh highest injury rate in the Milwaukee area. A staff member of OSHA, called as a witness by the Company, testified that the BLS does not break down injury rates lower than statewide, and the injury rate specified in the application for the Milwaukee area would not be applicable to Milwaukee unless Milwaukee was ...


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