In Re Stephen C. Perry

859 F.2d 1043, 13 OSHC (BNA) 1930, 1988 U.S. App. LEXIS 14206, 1988 WL 107494

• Court: Court of Appeals for the First Circuit
• Decided: October 19, 1988
• Docket: 88-1475
• Status: Published

Opinion

TORRUELLA, Circuit Judge.

We have before us a petition for Writs of Mandamus or Prohibition. 1 Petitioners wish to be free from a protective order limiting the matters on which they may speak. In addition, they would have us order the reinstatement of one of them as a representative in the underlying proceedings, since he was ejected from the proceedings for violating the order.

The controversy before us is an offshoot of certain proceedings currently being held before an administrative law judge (AU). The Occupational Safety and Health Administration (OSHA) cited General Dynamics for alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (the Act). Both General Dynamics and about 30 of its employees filed notices of contest, protesting different aspects of OSHA’s enforcement actions relating to those claimed violations: the employees want quicker action, the employer none at all.

Whenever an employer or employees contest OSHA enforcement action, the proceedings are held before the Occupational Safety and Health Review Commission (the Commission). The Commission is an adjudicative body independent from OSHA. 2 Any case coming before the Commission is assigned to an AU, who conducts a hearing and issues a decision. Unless a Commission member directs, within 30 days, that the AU’s decision be reviewed, the AU’s decision becomes the Commission’s final order. 29 U.S.C. § 661© (1982). Jurisdiction over appeals from final Commission orders lies in the court of appeals for the circuit in which the alleged violation is to have occurred. 29 U.S.C. § 660(a) (1982).

As the AU recognized, the employees obtained party status by virtue of 29 U.S.C. § 659(c) (“The rules of procedure prescribed by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this subsection.”). He found, in his order of October 7, 1987, and it is not disputed for purposes of this appeal, that the employees were sufficiently affected by the claimed violations to have the right to intervene. Towards the end of the order granting them party status, however, the AU cautioned that “[o]nce it is shown ... that employees will use this proceeding for other exploitive purposes, they will have exceeded this matter’s proper bounds and a motion to exclude them will be properly taken.” The AU later relied in part on this language when declaring that his orders had been violated.

The Act and Commission rules also give employees the right to appear through an attorney or a “representative who is not an attorney.” 29 C.F.R. § 2200.29(a). The petitioner employees designated Stephen Perry as their representative. Perry is not an attorney or an employee of General Dynamics. He works, rather, for the United Brotherhood of Carpenters and Joiners of America, one of the three constituent unions of the United Shipbuilding Crafts (USC) which has been trying for three years to organize General Dynamics’ work force at the Quonset Point Electric Boat facility (Electric Boat). The petitioner employees’ choice was apparently influenced by the fact that they also have a strong interest in seeing USC organize General Dynamics’ employees at the Electric Boat facility.

USC itself is not a party to the proceedings, because it has not been certified as the employees’ collective bargaining representative.

General Dynamics from the start challenged the employees’ right to be present at the hearings, as well as the selection of Perry as their representative. Its main objection to Perry’s involvement appears to stem from his position as a leader of the USC’s organization campaign at the shipyard. In its view, Perry’s USC affiliation renders him incapable of being primarily concerned about addressing health and safety issues through the administrative proceedings. Instead, it argues, Perry has been using, and will continue to use, the hearings to “spearhead” USC’s organizational campaign. The problem, of course, is that Perry’s two areas of interest are not necessarily mutually exclusive. As long as his demeanor and behavior in the proceedings are satisfactory, any outside union activity is absolutely irrelevant to his ability to represent the employees. And neither the statute nor the regulations preclude a representative from being affiliated with a union. In fact, the employees’ choice of representative is not restricted in any way at all.

What immediately concerns us is the protective order issued by the AU on January 12, 1988 (and, to the extent he relied on it, the order of October 7, 1987). In anticipation of some scheduled depositions, and foreseeing the uses the USC might wish to make of the information elicited thereby, General Dynamics requested that the AU “issue a protective order to preserve the confidentiality of information disclosed during the depositions.” In response, on January 12, the AU issued the following order:

All information developed through this proceeding shall be used only to resolve the issues herein. Any abuse of this may terminate a party’s right to participate.

The depositions, however, did not take place as scheduled. The purported deponents interposed a Fifth Amendment claim of privilege because they were advised that the case might be referred to the U.S. Attorney for a possible criminal prosecution. This possibility inflamed USC campaign rhetoric. Leaflets appeared suggesting that some of the Electric Boat managers might spend time in jail, in addition to others emphasizing and even exaggerating USC’s role 3 on behalf of the employees in the proceedings. The implication, of course, was that General Dynamics could not be trusted to safeguard the employees, and that the employees should therefore turn to USC for protection.

General Dynamics responded by filing a motion to exclude the employees and Stephen Perry from the proceeding. It alleged that Perry, in his capacity as USC representative, had violated the AU’s protective order and was exploiting the proceedings for organizational purposes. The AU agreed, and excluded Perry from the hearings. He permitted the employees to select another representative, as long as this new representative, if he was not an employee of General Dynamics himself, was not a member of USC. Perry petitioned the Commission for discretionary interlocutory review of the AU’s order. See 29 C.F.R. § 2200.78 (1987). However, at the time of Perry’s petition, there were two vacancies on the Commission, so that it had only one member, instead of three. The Commission therefore could not rule on Perry’s petition, because a quorum of two is necessary for the Commission to take official action. 29 U.S.C. § 661(f) (1982). Instead, Perry’s petition automatically was denied when the Commission took no action within 30 days. See 29 C.F.R. § 2200.73(b) (1987).

We have no appellate jurisdiction over the Commission’s denial of Perry’s petition for interlocutory review. See 29 U.S.C. §§ 659(c), 660(a) (1982) (court of appeals has jurisdiction only over appeals from final Commission orders). However, the All Writs Act authorizes courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions....” 28 U.S.C. § 1651 (1982). This power to issue mandamus includes “not only cases on appeal, but matters which could eventually lead to appeals.” United States v. Kane, 646 F.2d 4, 9 (1st Cir.1981) (citing inter alia, LaBuy v. Howes Leather Co., 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1957)). In this case, an appeal could lie later from a final order of the Commission in the matter presently before the AU. 29 U.S.C. § 660(a) (1982). Accordingly, in spite of the unusual circumstance that we are entertaining a petition for a writ directly against the AU, rather than the Commission, it is clear that we have jurisdiction to entertain the mandamus petition and to grant relief if appropriate.

Whether we choose to exercise jurisdiction and grant relief is, of course, a different matter. See 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3932 n. 6 (1977) (distinguishing between having power to issue writs and exercising that power).

The first hurdle the petitioners must clear is a formidable one: a writ of mandamus is not to be used to resolve matters suitable to an ordinary appeal. Will v. United States, 389 U.S. 90, 97, 88 S.Ct. 269, 274, 19 L.Ed.2d 305 (1967). Mandamus may, however, be appropriate when the lower court is acting beyond its authority to such an extent that its action constitutes a usurpation of power, id. at 95, 88 S.Ct. at 273, as long as the petitioners demonstrate that they are clearly and indisputably entitled to the writ. Id.

The writ is uniquely appropriate when “interlocutory relief is necessary to prevent irreparable harm.” In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 20 (1st Cir.1982). Cf Director, Office of Workers’ Compensation Programs v. Bath Iron Works Corp., 853 F.2d 11, 14 (1st Cir.1988) (interlocutory appeal warranted where, inter alia, “cognizable harm of an unusual sort would result from the delay”). Irreparable harm can occur when the petitioners have no other adequate means of obtaining relief, see Towns of Wellesley, Concord and Norwood, Mass. v. F.E.R.C., 829 F.2d 275, 277 (1st Cir.1987), such as when the opportunity to challenge the order on appeal may never arise.

This is clearly such a case. The harm here goes far beyond the mere burden and expense of protracted litigation. Cf. In re Justices, 695 F.2d at 20. It is caused, rather, by the passage of time during which the petitioners are impaired in the exercise of their freedom of speech in pursuit of a union organizational campaign. The Ninth Circuit recognized this sort of harm in a situation almost identical to the one here. See In re Halkin, 598 F.2d 176 (D.C.Cir.1979). 4 That case involved some very sensitive political issues, and required the CIA to turn over a large amount of information in the course of discovery. The district court judge issued an order preventing the parties and their counsel from disclosing any information obtained through discovery. His rationale was strikingly similar to the AU’s in this case: he found that disclosure would be “contrary to rules applicable to the conduct of litigation before this Court and inconsistent with the obligations of parties and their counsel to further the determination of matters within its jurisdiction.” Id. at 182 (quoting the district court’s order). After finding that the petitioners’ First Amendment claim was a meritorious one, the circuit court determined that mandamus was appropriate. 5

One of the main considerations in Halkin was that, while First Amendment protected speech was being restrained, every additional day on which the petitioners could not speak was additional irreparable harm. Id. at 199. See also Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329, 96 S.Ct. 251, 253, 46 L.Ed.2d 237 (1975) (Blackmun, J., inchambers opinion) (“Where, however, a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment”). 6 Without question, the right to free speech includes the right to timely speech on matters of current importance. While the ALJ’s orders continue in place, the employee representatives are prevented from vigorously pursuing their organizational campaign, during which also, timeliness is essential. And Perry, on the other hand, has already been punished and continues to be punished — by being denied the opportunity to do something which he has a statutory right to do — simply because he chose forcefully to advocate a certain viewpoint.

In addition, there is a distinct likelihood that the petitioners will never have the opportunity to have this question heard on appeal. Perry, for example, asserts that he has been penalized for the exercise of his constitutional rights. Were he to wait, and seek administrative and judicial review of the AU’s final order, his constitutional claim would be largely lost: unless his dismissal as representative somehow affected the fairness of the proceedings, any error in dismissing Perry would be harmless. In addition, should the employees prevail, albeit with a different representative, no appeal on their behalf could follow. A settlement agreement between the Secretary of Labor, who prosecutes the complaints before the Commission, and General Dynamics would have the same result.

In fact, the claim before us today alleges a violation of Perry’s and the employees’ constitutional rights that is completely divorced from the merits and eventual resolution of the hearings before the commission. An appeal from the final resolution of those hearings, therefore, would be addressed to the merits of that case, and not to the constitutional harm suffered by the petitioners. The petitioners therefore have clearly “demonstrate[d] that something about the circumstances here would make an ordinary appeal inadequate to protect their interests.” In re Justices, 695 F.2d at 20 (citations omitted). Although we continue to adhere to the view that extraordinary writs should be reserved for truly extraordinary circumstances, we conclude that the substantial weight of authority indicates that we should issue the writ in this case if we determine that the AU so far exceeded his authority in preventing petitioners’ exercise of their fundamental First Amendment rights, that his action clearly constituted a usurpation of power. We turn, accordingly, to the merits of petitioners’ claim.

Unquestionably, not all orders restraining the parties to a case from commenting on information gathered during discovery violate the First Amendment. The Supreme Court has set forth a pattern, however, to which all such orders must conform. We will first describe that pattern, then hold up to it the AU’s order below, as interpreted and applied by the AU himself, to decide if the order was constitutionally styled.

The Supreme Court has upheld the constitutionality of a protective order that was, on its face, of the same nature as the AU’s order of January 12. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). As we have recently described it, the Supreme Court there concluded “that if the good cause standard is met, and the order is restricted to the discovery context and does not prohibit dissemination of information gained from other sources, then it does not offend the First Amendment.” Anderson v. Cryovac, 805 F.2d 1, 7 (1st Cir.1986). In that case, the Court held that “[t]he prevention of the abuse that can attend the coerced production of information under a State’s discovery rule is sufficient justification for the authorization of protective orders.” Id. 467 U.S. at 35-36, 104 S.Ct. at 2208-09. If the AU had merely restricted the dissemination of any information produced by General Dynamics under the compulsion of the court’s power to force discovery, we would probably not interfere at this stage. 7 It is obvious, however, that the AU put the parties under a significantly different restriction.

The AU excluded Perry because of certain leaflets published by the USC. The first handbill to which the AU objected was titled “Here Comes the Judge!” (See Appendix A). It stated, in essence, that it was only the USC, and not OSHA or General Dynamics, who could be trusted to protect the workers from industrial hazards. As evidence of USC’s concern, the flyer pointed to, among other things, USC’s supposed participation in the proceedings before the Commission. To this the AU said: “This is a blatant violation of the orders against exploitation and abuse. The United Shipbuilding Crafts (USC) is not a party hereto; and the orders of October 7, 1987, and January 12, 1988, were specifically aimed at preventing the suggestion of that condition because the Commission does not allow any union participation unless the union has collective bargaining rights, 29 C.F.R. § 2200.1(g).” The flyer violated his orders simply because therein “the USC has held itself out to be involved in this proceeding far beyond” the actual scope of its involvement, and not because it disclosed any discovery information.

It appears, therefore, that the orders were simply intended to keep the union from using General Dynamics’ status as a defendant in the proceedings, and its own assistance to the employees in prosecuting the complaints, as propaganda in its organizational campaign. As the AU himself put it, “[t]he employee representative could disclose whatever he wished to but he was forbidden to exploit and abuse.”

The true nature of the orders, therefore, as revealed by their application, bears no resemblance whatsoever to the orders in Seattle Times Co. v. Rhinehart, discussed above. They act, rather, in the same fashion as those orders discussed, and struck down, in Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). The cases discussed in that opinion involved contempt convictions for public comments pertaining to pending litigation. The commentary forbidden by the lower courts therein was the same kind of propagandists hyperbole to which the AU objected in the instant case. There, as here, the trial judges were concerned about the effect these public statements would have on the proceedings; there, as here, the trial judges’ fears failed to provide adequate justification for restricting the parties’ freedom of speech.

The AU here believed that the USC’s public statements about its role in the proceedings would somehow expand the scope of the hearings, or make the Union a party even though the regulations prohibit non-certified unions from participating. He makes no mention whatever of any actual effect these statements might have had on the conduct of the proceedings. There is no intimation, for example, that Perry or the party-employees have done or failed to do anything in the proceedings which might be detrimental to the hearings, but might provide good grist for the organizational mill. On the contrary, the AU relies exclusively on out-of-court statements made in the course of the union campaign as the factual predicate for the sanction. In Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946), the Supreme Court responded to similar concerns in this way:

Certainly this criticism of the judges’ inclinations or actions in these pending non-jury proceedings could not directly affect [the administration of justice]. This criticism of their actions could not affect their ability to decide the issues. Here there is only criticism of judicial action already taken, although the cases were still pending on other points or might be revived by rehearings. For such injuries, when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants.

Id. at 348-49, 66 S.Ct. at 1038. Here too, to the extent the leaflets criticized or misrepresented what was taking place in the hearings, they could not affect the AU’s resolution of the issues. The AU was not likely suddenly to believe the union was a party to the proceedings, nor was he likely to bow to public criticism of his actions.

In the final analysis, the AU is simply trying to regulate the contents of USC campaign literature — his main objection being that some of it is untrue. This he cannot do. The USC’s efforts to organize, and the propriety of its conduct during that effort, is the province of the National Labor Relations Board, not the Occupational Safety and Health Review Commission.

Only one of the rationales put forth by the AU for his action falls within his cognizance. That is when he refers to rule 104(b), 29 C.F.R. § 2200.104, which gives the AU the power to exclude from the proceedings any person who fails to act in good faith. The flyers, the AU said, “clearly indicate that the underlying purpose of the party status by employees is to enhance union organizing activity under the guise of employee safety.” But again, the only activity of which the AU expressly disapproved was union organizing activity. Neither the employees — by losing their representative of choice — nor Perry, by being excluded from the proceedings, can constitutionally be sanctioned for exercising their constitutional rights, without at the very least a showing of some serious detrimental effect on the hearings. Bridges v. California, 314 U.S. at 270, 62 S.Ct. at 197. There are no findings in the record of any such deleterious effect resulting from the leaflets.

As another interest furthered by the AU’s orders, General Dynamics argues that the union’s commentary could inhibit it from presenting a vigorous defense, or even impair its right to a fair trial in a later criminal proceeding. The Supreme Court, however, has held that a general restriction on publication could not be justified by the danger that it might impair a defendant’s right to a fair trial. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). If prejudice of the magnitude described in Nebraska Press Ass’n to an interest as paramount as the Sixth Amendment right to a fair trial cannot justify a protective order, then much less will mere embarrassment to a defendant stemming from disclosure of the vigorous defense of an unpopular cause, or even the possible effect on a still hypothetical criminal prosecution, justify this order.

There is one other characteristic of the October 7 and January 12 orders which renders them constitutionally infirm. In describing his orders, the ALJ made the following comment: “There is no manner by which these orders could be interpreted as impinging on the employees’ constitutional rights. They are too broad, to [sic] imprecise and belie any intention of restricting any party in any way except in the exploitation and the abuse of this proceeding_” (footnotes omitted). We agree that the orders are broad and imprecise, as evidenced especially by the disparity between the language of the January 12 order and its actual operation. We do not agree, however, that this vagueness is a constitutional virtue. The Supreme Court recently said that “[a] prohibition regarding ‘implicative’ information is too vague and too broad to survive the scrutiny we have given to restraints on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. at 568, 96 S.Ct. at 2807 (citations omitted). As interpreted and applied, the orders here in question are too vague and too broad to survive First Amendment scrutiny.

We conclude that the naked attempt to control the course of the union’s campaign, without advancing any cognizable compelling interest which could be furthered thereby, so far exceeds the proper scope of the Commission’s authority as to constitute a usurpation of power. Nevertheless, we refrain from the actual issuance of the writ of mandamus, confident that the Commission and the AU will fully comply with our holdings, allow Perry’s reinstatement as the employees’ representative, and refrain from the taking of any retaliatory action. In the unlikely event that compliance is not forthcoming, petitioners may reapply to the panel, by motion, for issuance of the writ. Petitioners’ prayer for attorneys’ fees is denied, as they have cited no authority which would permit such redress. We do, however, award them ordinary costs.

APPENDIX A

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1 . Pursuant to the authority of the All Writs Act, 28 U.S.C. § 1651, these writs are used respectively to compel a lower court to do or refrain from doing something. For ease of reference we will simply refer to the writs being sought as a writ of mandamus.

2 . Although OSHA is an agency of the Department of Labor (DOL), the Commission also is independent of the DOL. The Secretary of Labor, a respondent in this matter, supports Perry’s petition for a writ of mandamus.

3 . USC has, in fact, been lending some assistance to the party employees. While the AU might dislike this fact, it is completely irrelevant to his function, and to the development of the proceedings, except insofar as it permits the employees to participate more effectively.

4 . While Halkin’s constitutional analysis was disapproved in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), its observations regarding the availability of mandamus are unaffected by that decision.

5 . The Halkin court also noted favorably that the trial was not delayed for resolution of the petition for mandamus. Here too we are advised that the hearings continue apace, while the parties await our decision on mandamus.

6 .Indeed, we ourselves suggested in Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir.1986), that a member of the press (also a party to the proceedings) might seek a writ of mandamus where it had been prevented from disseminating information acquired in the course of litigation. After en banc consideration, we went even further, and strongly encouraged parties to seek "emergency relief' from an appellate court in these situations. Matter of Providence Journal Co., 820 F.2d 1354, 1355 (1st Cir.1987) (en banc) (per curiam).

7 . We do not, in any event, examine whether "good cause" existed for such an order, since, as we explain below, this appeal raises a different issue.