Opinion
Civil Action No. 09-0930, Section K(4)
May 4, 2000
ORDER AND REASONS
Before the court is plaintiffs Application for a Preliminary and Permanent Injunction. The court held an injunction hearing on April 20, 2000. Considering the testimony elicited at oral argument, as well as the briefs of the parties, the court finds that plaintiffs request for an injunction should be denied for the reasons explained below.
I. Introduction
A. Factual Background
Michael Mahoney ("Mahoney") was a commercial diver who had been contracted by Bisso Marine Company, Inc. ("Bisso") in connection with its salvage of a sunken barge in the waters of the Mississippi River near Laplace, Louisiana. On December 28, 1999, Mahoney was killed in an underwater explosion while performing "hot work" on the sunken barge. Bisso owned and operated the BIG EAGLE, the derrick barge from which the salvage operation was conducted. The BIG EAGLE has a Coast Guard Certificate of Registration, which means that it is an uninspected vessel.
Shortly thereafter, Lieutenant Sharif Abdrabbo ("Lt. Abdrabbo"), a safety inspector from the United States Coast Guard, Marine Safety Office began investigating Mahoney's death. The investigation began with interviews of witnesses and by securing Mahoney's diving equipment, including the o-ring, neck dam, weight belt, dive knife, harness, and helmet. (Plaintiffs Trial Exhibit A, Handwritten Subpoena). Lt. Abdrabbo sought the expertise of Coast Guard Marine Investigator Lieutenant James Duckworth ("Lt. Duckworth"), who had prior experience investigating diving fatalities during his eighteen years with the Coast Guard Reserve. Lt. Duckworth asked counsel for Bisso to be notified as soon as the barge was raised. On January 17, 2000, Lt. Duckworth spent five hours on the deck of the barge inspecting the damage caused by the explosion. After inspecting the barge and taking "coupons" cut from the barge, as well as its inspection plate, the Coast Guard permitted the barge to be scrapped, which has occurred.
In addition, Lt. Duckworth contacted other agencies to assist him in understanding the physics of the explosion. On January 28, 2000, Lt. Duckworth interviewed Bisso's dive supervisor, Tom Flesner. Thereafter, Lt. Duckworth requested and received documents and information listed in Plaintiffs Exhibit B attached to it's Application for a Preliminary Injunction. The subpoenaed documents include the dive log, safety manual, charts, and other materials related to Mahoney's dive.
Except for briefly walking on board the BIG EAGLE on his second visit to the site, Lt. Duckworth has performed no investigation of the derrick barge itself. However, at the hearing, Lt. Duckworth testified that the results of Mahoney's autopsy indicate that some investigation of the BIG EAGLE, especially regarding the fitness of the dive supervisors, may be required. The Coast Guard had scheduled an interview with another witness on March 23, but on March 22, Lt. Duckworth canceled the interview after his supervisor decided that the Coast Guard had met the intent of its portion of the investigation and that it lacked jurisdiction to continue the investigation. Although Lt. Duckworth has not issued a final report on the accident, the Coast Guard believes that the explosion was the caused by the accumulation of hazardous gas inside the barge.
Mahoney's autopsy revealed high levels of cocaine and TCH (the active ingredient in marijuana). The autopsy report indicates that Mahoney likely smoked crack cocaine on the barge shortly before making the dive.
Throughout the Coast Guard's investigation, Lt. Duckworth maintained contact with Barry Buuck ("Buuck"), a compliance officer with the Occupational Safety and Health Administration's ("OSHA") Baton Rouge Area Office. Initially, OSHA did not intend to investigate the accident, but as the Coast Guard's investigation continued, Buuck became proactive in the process and requested reports and information from Lt. Duckworth. On March 22, Lt. Duckworth advised counsel for Bisso that the Coast Guard was suspending its investigation and that OSHA would be conducting an inspection. Bisso refused to consent to OSHA's inspection, and Buuck informed Bisso that OSHA would obtain a warrant.
B. Procedural History and Contentions of the Parties
After learning of OSHA's intent to investigate, on the afternoon of Friday, March 24, Bisso filed an Application for a Temporary Restraining Order and Preliminary and Permanent Injunction. The court held a status conference on Monday, March 27 and denied Bisso's request for a temporary restraining order (Doc. No. 6).
Bisso seeks a preliminary injunction on grounds that 1) OSHA lacks jurisdiction to conduct an investigation, and 2) OSHA lacks probable cause necessary for the issuance of an inspection warrant. Bisso claims that it will suffer irreparable injury because if OSHA continues its investigation, Bisso may be subject to duplicative, overlapping investigations by both OSHA and the Coast Guard, resulting in wasted time and resources. Furthermore, Bisso argues that if the issuance of the warrant is not enjoined, its only remedy would be a motion to quash the warrant, which might result in a civil contempt judgment against Bisso.
In response, defendant argues first that this court lacks jurisdiction over this matter. Further, defendant contends that Bisso has not demonstrated a likelihood of success on the merits of this case because 1) OSHA has probable cause to conduct an investigation, and 2) OSHA has jurisdiction over this matter.
II. Standard for Preliminary Injunction
The standard for determining whether a preliminary injunction should issue is well settled:
[A] preliminary injunction is an extraordinary remedy that should not be granted unless the movant demonstrates by a clear showing: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the non-movant; and (4) that the injunction will not undermine the public interest.Valley v. Rapides Parish School Board, 118 F.3d 1047, 1051 (5th Cir. 1997). See Sierra Club v. FDIC, 992 F.2d 545 (5th Cir. 1993); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). The party seeking the preliminary injunction must "clearly carry the burden of persuasion on all four . . . prerequisites." Cherokee Pump Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994) ( citing Mississippi Power Light v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985)).
III. Legal Analysis
A. The Court's Jurisdiction Over This Matter
Bisso maintains that the court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and the OSH Act. 29 U.S.C. § 651, et seq. OSHA argues that this court lacks jurisdiction to entertain this cause of action because federal question jurisdiction does not give the court authority over suits against the United States absent specific abrogation of sovereign immunity. OSHA also contends that this matter is not ripe for adjudication because it has not yet taken any final agency action, The court will address each argument in turn.
i. Sovereign Immunity
OSHA suggests that the court lacks subject matter jurisdiction because it enjoys sovereign immunity from Bisso's claims. This contention is without merit. Sovereign immunity of the United States with respect to any action for injunctive relief under 5 U.S.C. § 702 is waived by the Administrative Procedures Act. Section 702 reads:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
Nothing in the OSH Act specifically precludes judicial review. Therefore, OSHA does not enjoy sovereign immunity in this action for a preliminary injunction. The court must now decide whether OSHA's intent to investigate is a "final agency action" which is ripe for review. by this court.
ii. Final Agency Action
Ordinarily, administrative performance must be complete before written review by a federal court. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938); The Sweet Life v. Dole, 876 F.2d 402, 407 (5th Cir. 1989). The exhaustion requirement avoids "`premature interruption of the administrative process,' and allows the administrative agency to utilize its discretion, apply its expertise, correct its own errors, and handle its business expeditiously." Merril Lynch v. NASD, 616 F.2d 1363, 1370 (5th Cir. 1980)( quoting McKart v. united States, 395 U.S. 185, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969)). "Exhaustion is required in part because of the possibility that administrative review might obviate the need for judicial review. That the administrative process might not have this effect is not usually a reason for bypassing it." Hodges v. Calloway, 499 F.2d 417, 423 (5th Cir. 1974).
Nonetheless, under certain circumstances, judicial review may be appropriate even though an administrative action is not yet complete. A litigant may bypass formally outstanding administrative processes, for example, "when there is not adequate administrative remedy or when irreparable injury is likely to result absent judicial review." The Sweet Life, 876 F.2d at 408; Lewis v. Reagan, 660 F.2d 124, 127 (5th Cir. 1981).
Section 8(a) of the Occupational Safety and Health Act, 29 U.S.C. § 657(a), authorizes OSHA to enter and inspect work sites in order to effectuate the purposes of the OSH Act. Before conducting an administrative inspection, however, OSHA must make an independent investigation to determine whether it is likely that an OSHA violation has occurred. After the initial investigation, OSHA must then proceed to a neutral and detached magistrate to obtain an administrative search warrant. Although the OSH Act does not mention a warrant requirement, the Supreme Court, in Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed.2d 305 (1978), made clear that for nonconsensual OSHA inspections a warrant is necessary. The Court reasoned that a warrant "would provide assurances from a neutral officer that the inspection is reasonable under the Constitution [and] is authorized by statute." Id.
In this case, Bisso complains that it will suffer irreparable injury to its Fourth Amendment rights if OSHA is permitted to conduct an inspection. On the other hand, OSHA claims that it does not intend to enter plaintiffs property and does not anticipate applying for an inspection warrant. Rather, the investigation that OSHA intends to conduct involves interviewing Bisso employees and possibly requesting certain documents by subpoena. No warrant is required if OSHA does not intend to enter and inspect Bisso's property. At present, the warrant is not an issue and is not ripe for decision. Therefore, the court will not address the probable cause argument.
Bisso argues that its risks being held in civil contempt if a warrant issues, and that therefore, the validity of a warrant is ripe for adjudication. However, the risk of contempt does not constitute irreparable injury. See Amoco Oil Co., 1980 WL 29269 (S.D.Tex.); see also Babcock Wilcox v. Marshall, 610 F.2d 1128 (3d Cir. 1979) (It may seem cruel to thrust upon the plaintiff the choice of whether to risk civil contempt or comply with the warrant, but the alternative would be for the court to engage in a presumption that magistrates do not correctly perform their duties in determining probable cause). Therefore, the risk of civil contempt does not empower the court to engage in a premature probable cause determination.
The only issue which may be ripe for adjudication at this point is whether OSHA has jurisdiction to conduct its initial investigation.
B. OSHA's Jurisdiction to Investigate
Bisso argues that OSHA lacks jurisdiction to investigate the diving fatality in this case. OSHA's jurisdiction is described in section 4 of the OSH Act, which reads in pertinent part:
(a) This chapter shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act [ 43 U.S.C.A. § 1331 et seq.], Johnston Island, and the Canal Zone.29 U.S.C. 653(a). OSHA's jurisdiction does not extend to the working conditions of seamen on vessels in navigation. Donovan v. Texaco Inc., 720 F.2d 825, 826 (5th Cir. 1983) ( citing Clary v. Ocean Drilling and Exploration Co., 609 F.2d 1120 (5th Cir. 1980)). In Donovan, a Coast Guard licensed engineering officer, who was formerly employed by Texaco, complained to OSHA of retaliation. OSHA attempted to investigate plaintiffs claim of retaliation, and Texaco argued that OSHA lacked jurisdiction to conduct an investigation.
The Donovan court held that the OSHA regulations at issue did not apply because OSHA's exercise of jurisdiction was preempted by that of another federal agency. The OSH Act, § 4(b)(1) reads:
(b)(1) Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 2021 of Title 42, exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.29 U.S.C. § 653(b)(1). The Coast Guard exercises statutory authority over the working conditions of seamen. See 46 C.F.R. § 1.01-196.85 (1978). The Fifth Circuit rejected the Secretary's argument that OSHA regulations should apply in the absence of a specific Coast Guard regulation on retaliation, noting the minute detail in which Congress has regulated the rights and duties of seamen. Donovan, 720 F.2d at 827, 828. Moreover, the court remarked that it would be "a disastrous and unworkable rule to apply the Act to a vessel that steams in and out of its coverage." Id. at 828-29.
Donovan and Clary have been criticized in other circuits, for failing to draw a distinction between inspected and uninspected vessels in applying section 4(b)(1) of the OSH Act. For example, the Second and Eleventh Circuits have held that OSHA regulations may apply to certain conditions aboard uninspected vessels. In Donovan v. Red Star Marine Services, 739 F.2d 774 (2d Cir. 1984), the Second Circuit held that the Secretary could regulate noise aboard an uninspected vessel because the noise was a working condition not regulated by the Coast Guard. The court distinguished the Fifth Circuit cases as not dealing directly with working conditions and rejected the contention that the Secretary had no jurisdiction over seamen on uninspected vessels. Id. at 778-79.
If a vessel has applied for and received a Certificate of Inspection from the Coast Guard, it is commonly known as an "inspected vessel." If a vessel has received a Certificate of Registration from the Coast Guard, it is referred to as "uninspected." 46 C.F.R. § 2.01-1 et seq.
Similarly, the Eleventh Circuit in In re Inspection of Norfolk Dredging Co., 783 F.2d 1526 (11th Cir. 1986), distinguished the Fifth Circuit cases, cited the difference between the Coast Guard's pervasively regulated "inspected" and less regulated "uninspected" vessels as dispositive, and held that the Secretary had jurisdiction over crane safety aboard uninspected vessels. Id. at 1530-31.
Bisso contends that under Donovan and Clary, OSHA is per se excluded from inspecting the vessel in this case. However, even if the Fifth Circuit has created such a per se exclusion of OSHA regulation, the working condition at issue in this case was not that of a seaman. Rather, both Lt. Duckworth, and his supervisor, Commander Thomas Sparks ("Commander Sparks"), testified that the Coast Guard has the responsibility to investigate all marine casualties that occur on the navigable waters of the United States, except for those of longshore workers. See 46 C.F.R. § 197.484, 197.486. Both Lt. Duckworth and Commander Sparks stated that it made no difference to them whether Mahoney was a seaman when they began the investigation.
However, it became clear to both that, under Coast Guard regulations, Mahoney was not a seaman because 1) he held no Coast Guard license or documentation, 2) he was not assigned to a vessel, and 3) he performed no duties related to the operation of a vessel. Because Mahoney was not a seaman, Lt. Duckworth and his supervisor felt the Coast Guard lacked jurisdiction to continue. Moreover, the Coast Guard's Commercial Diving Regulations do not regulate dive operations except those conducted from an inspected vessel or far outside of state waters. See 46 C.F.R. § 197.200 et seq. Accordingly, the Coast Guard suspended its investigation.
This case is sufficiently distinguishable from both Clary and Donovan, as Mahoney was not a seaman and his working conditions were not subject to Coast Guard regulation. Furthermore, John Solheim ("Solheim"), a compliance officer with OSHA's Washington, D.C. office, testified that his job is to decide whether OSHA is preempted by another agency's regulation. Solheim stated that if OSHA were to find that another agency's regulation preempted OSHA's exercise of authority, it was OSHA'a practice to contact the other agency and defer to it. He gave clear, unrebutted testimony that OSHA was not preempted under § 4(b)(1) because no other agency has regulated and exercised statutory authority over the working condition at issue in this case. For the foregoing reasons, the court finds that § 4(b) does not operate to preclude OSHA from conducting an investigation.
IV. Conclusion
Because no warrant has issued in this case, the court need not engage in a review of the probable cause issue. Furthermore, Bisso has not established that it is likely to prevail on the merits; that is, Bisso has not proved that OSHA lacks jurisdiction to conduct an investigation of Mahoney's death. Accordingly,
IT IS ORDERED that Bisso's Application for a Preliminary and Permanent Injunction is hereby DENIED and this case should be dismissed.