No. 95-1204

In the Supreme Court of the United States

OCTOBER TERM, 1995

FRANKLIN E. SKEPTON, PETITIONER

v.

ROBERT B. REICH, SECRETARY OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

J. DAVITT MCATEER
Acting Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

ELIZABETH HOPKINS
Attorney
Department of Labor
Washington, D.C. 20210

DREW S. DAYS, III
Solicitor General
Department of Justice
Washington, D.C. 20530
(202)514-2217

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QUESTION PRESENTED

Whether the court of appeals properly affirmed the
district court's order holding petitioner in civil
contempt based on the knowledge and actions of his
employee in refusing to honor a warrant authorizing
the Occupational Safety and Health Administration to
conduct an inspection of the petitioner's worksite.

(I)

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TABLE OF CONTENTS
                                
Page

Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 1
Argument . . . . 3
Conclusion . . . . 9

TABLE OF AUTHORITIES

Cases:

Farber v. Rizzo, 363 F. Supp. 386 (E.D. Pa. 1971) . . . . 8
Fowler, In re, 16 B.R. 596 (Bankr. S.D. Ohio 1981) . . . . 6
Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993) . . . . 7
Manna v. United States Dep't of Justice, 51 F.3d
1158 (3d Cir.), denied, 116 S. Ct. 477 (1995) . . . . 7
Marshall v. Barlow's , Inc., 436 U.S. 307 (1978) . . . . 4
NLRB v. Crown Laundry & Dry Cleaners, Inc.,
437 F.2d 290 (5th Cir. 1971) . . . . 8
Public Service Co., In re, 848 F. Supp. 318 (D.R.I.),
aff'd, 43 F.3d 763 (1st Cir. 1994), cert. denied,
115 S. Ct. 1959 (1995) . . . . 5
Singer Mfg. Co. v. Sun Vacuum Stores, Inc., 192
F. Supp. 738 (D.N.J. 1961) . . . . 6
Thompson v. Johnson, 410 F. Supp. 633 (E.D. Pa.),
aff'd, 566 F.2d 568 (3d Cir. 1976) . . . . 5-6
United States v. Taystee Baking Co., 55 F. Supp.
490 (N.D. Tex. 1944) . . . . 6

Constitution and statutes:

U.S. Const. Amend. I . . . . 9
Occupational Safety and Health Act of 1970, 29
U.S.C. 651 et seq .:
8(a), 29 U.S.C. 657(a) . . . . 4
18 U.S.C. 401 (3) . . . . 2

Miscellaneous:

Anthony Aldridge & David Eady, The Law of 
Contempt (1982) . . . . 5-6

(III)

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IV

Miscellaneous--Continued:

Page

16 Charles A. Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure
(1977 & Supp. 1993)  . . . . 7

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In the Supreme Court of the United States

OCTOBER TERM , 1995

No. 95-1204

FRANKLIN E. SKEPTON, PETITIONER

v.

ROBERT B. REICH, SECRETARY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The judgement order of the court of appeals (Pet.
App. 1a-2a), the district court's bench memorandum (Pet. App. 3a-
6a), and the district court's civil contempt order (Pet. App.
7a-9a) are unreported.

JURISDICTION

The judgement of the court of appeals was entered on 
October 31, 1995. The petition for a writ of  certiorari
was filed on January 29, 1996. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1)

STATEMENT

1. Pursuant to the general administrative plan of the
Occupational Safety and Health Administration (OSHA)
for "programmed" inspections, a safety

(1)

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2

inspection was scheduled of the worksite at Nitsch-
man Middle School in Bethlehem, Pennsylvania,
where petitioner Franklin E. Skepton, a sole pro-
prietor, was engaged in construction work. Because
of the petitioner's established history of resisting safety
inspections at his jobsites, OSHA had sought and 
obtained an inspection warrant from United States
magistrate Judge Arnold C. Rapoport, which served
upon petitioner via his employee and job foreman,
Paul Skepton (Skepton), at the Middle School jobsite 
on January 13, 1995. Skepton, however, refused to let
the OSHA inspectors enter the jobsite because the
warrant referred to the wrong county and because he
claimed the warrant was " too broad." That same day,
the agency returned the unexecuted warrant to the
magistrate judge to correct the error concerning the
name of the county, and obtained the warrant at issue
in this case. Pet. App. 4a-5a.
At approximately 8:00 a.m. on  January 17, 1995, two
OSHA inspectors served the corrected warrant upon
Paul Skepton, who again "willfully refused to comply
with the said warrant, and told plantiff 's inspectors that
they would not be permitted to conduct an in-
spection." 1. Pet. App. 5a. After failing to resolve the
matter informally, OSHA initiated the underlying
petition to hold petitioner in civil contempt, pursuant
to 18 U.S.C. 401 (3). See Pet. App 3a-4a.
2. Because Paul Skepton, as foreman, was giving
orders on the job, had a key to the construction trail-

___________________(footnotes)

1 Petitioner asserts that "[t]here is a dispute as to whether 
Paul G. Skepton informed [the Secretary's inspector] that 
an inspection was not going to be permitted." Pet. 4. The district 
court, however, resolved that factual matter against petitioner. 
Pet. App. 5a Petitioner does not ask this Court to reverse that 
factual finding as clearly erroneous.

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3

er, and had voiced objections to the earlier warrant,
the district court found that he had apparent author-
ity to receive service of this warrant. The court also
found that after being properly served with this
warrant, Skepton refused to permit an inspection and
thus willfully refused to comply with the warrant.
After finding that Skepton was an agent and employee
of petitioner, the court concluded that the willful
refusal voiced by him constituted a refusal on the part
of petitioner. Pet. App. 4a-5a. Noting that it was
seeking "to compel compliance with lawful process,"
the court accordingly held petitioner in civil con-
tempt for the "willful refusal of his employee to obey
lawful process." Id. at 5a. The district court issued
an order forbidding petitioner and his agents, em-
ployees, and foremen from preventing or obstructing
an OSHA inspection, and ordering petitioner to
authorize his job foreman or some other employee to
accept service and comply with any lawful warrant
issued by the court. Pet. App. 8a. The court awarded
OSHA $4,189 to make it whole for the costs incurred
in attempting to execute the warrant, and prescribed
"an additional fine of $5,000.00 per day for each day
[its] contempt order is not complied with." Id. at 5a,
8a. Nothing in the record indicates that petitioner
incurred any fine (beyond the initial assessment of
$4,189 to compensate the government for its costs) by
not complying with" the district court's order.
3. The court of appeals affirmed by judgment order.
Pet. App. 1a-2a.

ARGUMENT

The decision of the court of appeals is correct and
does not conflict with any decision of this Court or

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4

any other court of appeals. Accordingly, further
review is unwarranted.
1. The Occupational Safety and Health Act of 1970
(OSHA Act) authorizes the "Secretary of Labor to
"inspect and investigate" any place of employment
within his jurisdiction in order to carry out the
purposes of the Act. See 29 U.S.C. 657(a) 2. The
Secretary conducts two types of inspections under
the OSHA Act-inspections initiated based on specific
evidence of a violation, and inspections made pursuant
to a general enforcement plan. He must, however,
obtain a warrant before he may conduct a noncon-
sensual inspection. Marshall v, Barlow's, Inc.. 436
U.S. 307, 320-821 (1978). In the present case, the
application for the warrant was based on a general
administrative plan, Pet. App. 4a, and petitioner does
not here challenge that plan or the propriety of the
warrant's issuance under it. Because the warrant
admittedly was valid, the district court properly held
petitioner in contempt and imposed a fine of $4,189 in
           
___________________(footnotes)

2 Section 657(a) states:

In order to carry out the purposes of this chapter, the
Secretary, upon presenting appropriate credentials to the
owner, operator, or agent in charge, is authorized-

(1) to enter without- delay and at reasonable times any
factory, plant, establishment, construction site, or other
area, work place or environment where work is performed
by an employee of an employer and

(2) to inspect and investigate during regular winking
hours and at other reasonable times, and within reasonable
limits and in a reasonable manner, any such place of
employment and all pertinent conditions, structures,
machines, apparatus, devices, equipment and materials
therein, and to question privately any such employer,
owner, operator, agent, or employee.

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5

government costs after his agent and employee re-
fused to honor the warrant.
2. Petitioner argues that ''a non-party may beheld
liable for contempt if he either abets or is legally
identified with the named defendant, but those not
legally identified must have actual knowledge of the
Order to be bound." Pet. 6. That principle, however,
has no applicability here, since the district court held
the party (petitioner), rather than the non-party
(Paul Skepton), in contempt. 3. Petitioner argues that
the district court improperly invoked a "doctrine of
vicarious liability" (ibid.) to hold him in contempt
"for the act of his employee whose act he neither
authorized, consented to, nor ratified." Pet. 7. The
district court, however, properly relied on evidence
showing that Paul Skepton, as job foreman, was in
charge of the jobsite on the day in question, to
conclude that Paul Skepton had apparent authority to
accept service of the warrant and to allow the
inspection on behalf of petitioner. Pet. App. 5a. In-
deed, petitioner does not directly challenge that
finding (which would not in any event warrant review
by this Court) or dispute that ordinary principles of
agency apply in this regard. 4. See Anthony Aldridge

___________________(footnotes)
                                    
3 Petitioner errs in relying (Pet. 7) on In re Public Service
Co., 848 F. Supp. 318 (D.R.I.), aff'd, 43 F.3d 763 (1st Cir.
1994), cert. denied, 115 S. Ct. 1959 (1995). That case involved a
non-party held liable for contempt.

4 Petitioner does assert that "[a] person is liable for civil
contempt only if he violates a Court Order with actual notice
that the Order has been issued." Pet. 8 (emphasis added). But
the case upon which he relies for that proposition actually
frames it as a sufficient condition, not a necessary one: "A
person is liable for civil contempt if he violates a court order
with actual notice that the order has been is sued." Thompson

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6

& David Eady, The Law of Contempt 268-269 (1982).
In particular, "the principles of agency law dictate
that, as between a principal and a third party dealing
with an agent of that principal, a third party should
and must be able to rely upon the acts of the agent
which are performed with either actual or apparent
authority." In re Fowler, 16 B.R. 596, 597 (Bankr.
S.D. Ohio 1981) (emphasis added) (holding principal
who lacked actual notice guilty of contempt where
agent had notice of. pendency of bankruptcy pro-
ceeding).
3. Petitioner also appears to suggest that the
district court violated due process by holding him in
contempt "of an Order of which he had no knowledge."
Pet. 8. That issue, however, is not before the Court.
The questions presented for review mention no
constitutional claim. See Pet. i. Moreover, petitioner

___________________(footnotes)                                   

v. Johnson, 410 F. Supp. 633, 640 (E.D. Pa.) (emphasis added),
aff'd, 566 F.2d 568 (3d Cir. 1976) (Table). Because the putative
contemnors in Thompson did all have knowledge of the court
order, see 410 F. Supp. at 640, that case could not establish the
negative proposition espoused by petitioner.
Similarly, petitioner's reliance (Pet. 7) on United States v.
Taystee Baking Co., 55 F. Supp." 490 (N.D. Tex. 1944), is
misplaced. "That case is distinguishable since the United
States there was seeking an injunction, not contempt for the
violation of a prior [court order]." Singer Mfg. Co. v. Sun
Vacuum Stores, Inc., 192 F. Supp. 738, 742 ( D.N.J. 1961).
Although "in dictum the [Taystee Baking] [c]ourt seemed to
indicate that a corporation should not be held in contempt as a
matter of discretion in seeking an equitable  result where the
corporation issues orders for compliance, but its employees
violate such orders," ibid., even then the Taystee Baking court
claimed only to be enunciating "[a]n equitable rule," 55 F.
Supp. at 494, not a constitutional or other unyielding limit on
the power of a district court to issue a civil contempt citation.

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7

raised no due process challenge to the contempt
proceedings in the district court, see C.A. App. 214-
215 (answer to petition for adjudication of civil con-
tempt), 216-217 (memorandum in opposition to petition
for adjudication of contempt), 233-235 (answer to
motion for assessment of compensatory fine), 1-129
(transcript of hearing on contempt motion), and he did
not argue to the court of appeals that he had been
denied due process of law, see Pet. C.A. Br. iv (state-
ment of issues presented for review), 9-10 (summary
of argument). 5.
In any event, there is no merit to petitioner's
suggestion that the district court's contempt sanc-
tion violated due process. The case law requiring
actual notice ensures that contempt will not lie where
the contumacious activity was performed unknow-
ingly, that is, without knowledge of the court order it
violates. Here, Paul Skepton was served with the
inspection warrant and knew full well that he was
disregarding the district court's order by telling the

___________________(footnotes)

5 Petitioner alluded to constitutional due process require-
ments in but one sentence in his court of appeals brief. See Pet.
C.A. Br. 13-14. That passing reference, which did not even cite
any precedent, is insufficient to have raised a constitutional
argument. See, e.g., Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d
Cir. 1993) ["[C]asual mention of an issue in a brief is cursory
treatment insufficient to preserve the issue on appeal."); id. at
182 ("[T]o assure consideration of an issue by the court, the
appellant must both raise it in [the] Statement of the Issues and
pursue it in the Argument section of the brief."), quoting 16
Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure 3974, at 421 (1977 and Supp.
1993, at 690); Manna v. United States Dep't of Justice, 51 F.3d
1158, 1165 n.8 (3d Cir.) ("Manna's mere mention of an analogy
between [two legal provisions] is insufficient to raise this issue
on appeal."), cert. denied, 116 S. Ct. 477 (1995).

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8

OSHA inspector not to inspect the worksite. Prior to
entering its contempt order, the district court
afforded petitioner "notice and some kind of hearing"
(Pet. 8), at which petitioner contested whether Paul
Skepton, his employee and agent, had actually refused
to comply with the inspection warrant. The court
resolved that issue against petitioner, consistent
with the dictates of due process, and petitioner was
properly held liable on general agency principles for
his agent's knowing violation of the court's order. In
re Fowler 16 B.R. at 597-598; 6. cf. NLRB v. Crown
Laundry & Dry Cleaners, Inc., 437 F.2d 290,293 (5th
Cir. 1971), ("Since * * * the Company, through its
agent Baxter, has violated * * * this Court's earlier
order, we have no choice but to adjudge the Company
in civil contempt.") (emphasis added). That fact-bound
determination raises no issue of general importance
for this Court to resolve.
There likewise was nothing objectionable or extra-
ordinary about the court's choice of sanction, The
district court's  order did not threaten petitioner's
liberty. The only funds that it required petitioner to
pay for the past refusal to comply with the warrant
merely compensated the government for the costs it
had incurred as a result of petitioner's agent's
violation. Cf. Farber v. Rizzo, 363 F. Supp. 386, 394-
395 (E.D. Pa. 1971) (''Civil contempt is intended to
enforce compliance with a court order or to com-
         
___________________(footnotes)

6 The court awarded no damages in Fowler because there
was no record evidence of any damages caused by the con-
tumacious conduct. 16 B.R. at 598. Here, however, respondent
detailed the costs imposed by petitioner's refusal to comply
with the inspection warrant. See (C.A. App. 220-232  (govern-
ment's motion for assessment of compensatory  fine with sup-
porting declarations).

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9

pensate for losses or damages sustained because of a
violation of the order.").
4. Finally, there is also no merit to petitioner's
suggestion (Pet. 9-10) of a First Amendment violation
assertedly flowing from his being held in contempt for
not verbally consenting to, but instead objecting to,
the inspection warrant. The district court held
petitioner in contempt not because of his views, but
instead based on petitioner's actions and those of Paul
Skepton, his agent and employee. The notion that
either OSHA or the court violated petitioner's First
Amendment rights by requiring him to comply with
an inspection warrant is baseless.  Indeed, the
petition does not include a First Amendment issue in
the questions presented for review, see Pet. i, and
petitioner does not cite any authority supporting his
view that he is illegally being forced "to verbally
express his consent to an OSHA inspection." Pet. 9.
     
CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

J. DAVITT MCATEER
Acting Solicitor of Labor

ALLEN H. FELDMAN
Associate Solicitor

ELIZABETH HOPKINS
Attorney
Department of Labor

MARCH 1996

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