On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil Action No. 89-1059.
Higginbotham, Chief Judge, Cowen and Nygaard, Circuit Judges.
This case comes to us as an appeal from a final order of the district court granting limited enforcement of administrative subpoenas duces tecum issued by the Secretary of Labor under the Occupational Safety and Health Act, 29 U.S.C. §§ 651-78 (1982). The subpoenas ordered Trinity Industries, Inc. and two of its subsidiaries to produce occupational health and safety records that they are required by law to keep. The Secretary, who brought the case in district court when the companies refused to comply with the subpoenas, claims on appeal that the district court used an incorrect legal standard in granting only limited enforcement. We agree.
On February 10, 1989, the Occupational Safety and Health Administration ("OSHA") received a formal written complaint from an employee at the Butler workplace where Trinity Industries, Inc. ("Trinity") repairs railroad cars. Specifically, the employee alleged that "[no] hard hats and safety glasses [were] provided for non-production employees when walking through the shop work areas." Appendix ("App.") at 10. Under section 8(f) of the Act, 29 U.S.C. §§ 657(f),*fn1 such a complaint can, and in this case did, trigger an inspection of the conditions described. OSHA obtained a warrant under 29 U.S.C. §§ 657(a),*fn2 which authorized an inspection of the plant limited to the conditions described in the employee complaint. The warrant also authorized "the inspection (and copying if it is deemed necessary by the inspecting Compliance Officer) of records required to be maintained by 29 U.S.C. 657(a) and 29 CFR Part 1904 and 1910, with the exception of [employee medical records]."*fn3 App. at 20; Appellant's Brief at 10.
Trinity did not honor the warrant. Trinity now claims that it "was willing" to allow a plant inspection limited to the conditions described in the employee complaint and a review of records of injuries that may have resulted from those specific conditions, but it would not permit a more extensive review of its records. Appellees' Brief at 3. The Secretary, on the other hand, contends that Trinity would permit neither the limited inspection of the workplace nor the examination of any records. On March 21, 1989, OSHA issued an administrative citation to Trinity for having refused to produce the records and proposed a penalty of $3000.
At the same time that it issued the citation, OSHA served an administrative subpoena duces tecum on Trinity and identical subpoenas on two of its subsidiaries, Tank Lining and Rail Car Co. and Central Maintenance Co. The subpoenas, which were authorized under 29 U.S.C. §§ 657(b),*fn4 requested of all three companies much of the same information requested of Trinity by the warrant, and some additional information.*fn5 In her petition filed in district court to enforce the subpoenas, the Secretary explained that the information was needed to determine whether the scope of the inspection should be enlarged. OSHA's internal instruction handbook requires that OSHA expand the scope of a workplace inspection conducted pursuant to an employee's formal complaint if the employer meets a specified criterion. The inspector is instructed to calculate the company's lost workday incidence ("LWDI"), and if that rate is at or above the Bureau of Labor Statistics' lowest average national rate for manufacturing over the past five years, then the scope of the inspection is to be expanded beyond the conditions listed in the employee complaint to a general inspection of the workplace.
On March 27, 1989, Trinity filed a notice with the Occupational Safety and Health Review Commission ("Review Commission") contesting the citation and proposed penalty that had resulted from its failure to honor the warrant.*fn6 Several days later, on March 30, counsel for Trinity and its subsidiaries notified OSHA that they would not comply with the subpoenas. The Secretary then filed a petition in district court to enforce the subpoenas. The district court ordered enforcement limited to those records that relate to the workplace conditions described in the complaint, and the Secretary appealed, claiming that full enforcement should have been ordered.
We have jurisdiction to review a final order of the district court under 28 U.S.C. §§ 1291 (1982 & Supp. V 1987). The district court assumed jurisdiction, pursuant to 28 U.S.C. §§ 1331 (1982), over a question of federal law under the Act. We have jurisdiction, indeed we have an obligation, to review the district court's assumption of jurisdiction. "An appellate court must satisfy itself not only of its own jurisdiction, but also of the jurisdiction of the courts under review." Pomper v. Thompson, 836 F.2d 131, 132 (3d Cir. 1987) (citing Mitchell v. Maurer, 293 U.S. 237, 79 L. Ed. 338, 55 S. Ct. 162 (1934)). Our standard of review in this matter is plenary. York Bank and Trust v. Federal Savings and Loan Ins. Corp., 851 F.2d 637 (3d Cir. 1988); Medical Fund-Philadelphia Geriatric Center v. Heckler, 804 F.2d 33, 36 (3d Cir. 1986).
Trinity and its two subsidiaries ("Trinity et al."), raise an issue of jurisdiction on appeal, and we shall consider this threshold question first. Their argument is based on their claim that "[the] exact issue raised in the Secretary's appellate brief is presently pending before the Occupational Safety and Health Review Commission," namely, the scope of records inspection authorized under the Act in response to an employee's complaint. Appellee's Motion to Dismiss at 1. They contend that, once the administrative review process to decide this question has been set in motion by the Secretary's contempt citation and Trinity's contesting of the citation, the process must be completed before the district court has jurisdiction to review the case. They make the novel argument that, under the Act, not only employers but also the Secretary of Labor must exhaust administrative remedies before presenting the question in district court; they contend that her failure to do so creates a jurisdictional defect. Therefore, they conclude, the district court lacked jurisdiction to consider the question, and this court lacks jurisdiction to hear the appeal, since at the time the case was filed the question was still pending before the Review Commission.
We disagree with Trinity's contention that the primary issue in the two proceedings is the same. Because of that, we do not reach the question whether the Secretary was required to exhaust administrative remedies before approaching the district court, nor do we consider whether her failure to do so was jurisdictional. The question before the administrative law judge was one of the proper scope of the inspection of an employer's records under a warrant issued pursuant to 29 U.S.C. §§ 657(a) in response to an employee complaint. The question before the district court was one of the proper scope of the inspection of an employer's records under an administrative subpoena issued pursuant to 29 U.S.C. §§ 657(b) in response to an employee complaint. Trinity et al. conflate these two questions. Their approach assumes that under the Act the two instruments, the warrant and the administrative subpoena, are the same with respect to their authority to require the production of records in response to an employee complaint. Under the law of this circuit, this is clearly not so. In the Matter of Kulp Foundry, Inc., 691 F.2d 1125 (3d Cir. 1982).
In Kulp Foundry, a case very similar to this one, we held that, under the Act, the Secretary could require the production of the employer's records but only by subpoena and not by warrant. Id. at 1132. In response to a formal written employee complaint alleging that employees were exposed to "high levels of dust," OSHA applied for a warrant to inspect "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." Id. at 1127. Kulp failed to honor the warrant and the district court held the company in contempt for refusing to allow the inspection of the workplace; however, the court quashed and severed as overly broad that portion of the warrant which authorized the Secretary to inspect documents at the plant. The district court held that the only statutory authority for the inspection of documents under the Act was the Secretary's ...