Raymond J. Donovan, Secretary of Labor v. Fall River Foundry Co., Inc.

696 F.2d 524, 35 Fed. R. Serv. 2d 961, 11 OSHC (BNA) 1086, 1982 U.S. App. LEXIS 23051
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 27, 1982
Docket82-2676
StatusPublished
Cited by40 cases

This text of 696 F.2d 524 (Raymond J. Donovan, Secretary of Labor v. Fall River Foundry Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raymond J. Donovan, Secretary of Labor v. Fall River Foundry Co., Inc., 696 F.2d 524, 35 Fed. R. Serv. 2d 961, 11 OSHC (BNA) 1086, 1982 U.S. App. LEXIS 23051 (7th Cir. 1982).

Opinions

POSNER, Circuit Judge.

This motion for a stay pending appeal requires us to decide whether a party appealing from an order to submit to a government health inspection is entitled to a stay of the order, as a matter of right under Rule 62(d) of the Federal Rules of Civil Procedure, upon filing the supersedeas bond required by the rule.

In February 1980 the Occupational Safety and Health Administration received written complaints of unhealthful conditions from employees of the Fall River Foundry Company. Pursuant to section 8(f)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(f)(1), OSHA obtained a warrant from a federal magistrate to conduct an inspection of the company’s plant. The warrant was served on the company on April 1, 1980, but the company refused to permit the inspection and the warrant was returned unexecuted. OSHA moved in federal district court for an order to show cause why Fall River should not be found in contempt and the company responded by challenging the validity and scope of the warrant. On September 14, 1982, the district court held that the warrant was valid and reasonable in scope, found Fall River in civil contempt for failure to obey it, and ordered it to permit the inspection. The company moved for a stay pending its appeal to this court, and when the district court denied the motion it asked us for a stay.

Rule 62(d) provides: “When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a) of this rule.” Rule 62(a) provides that, “Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting in an action for infringement of letters patent,” shall not be stayed pending appeal. Fall River points out that the contempt proceeding was not a suit for an injunction and argues that therefore it is entitled to a stay. The government argues that the term “injunction” in Rule 62(a) should be interpreted liberally to include an order directing an inspection of premises.

There is little authority on the question. Fall River relies primarily on a dictum in an opinion by Justice Rehnquist in chambers. He said a taxpayer appealing an order to turn over videotapes in response to an Internal Revenue Service summons is entitled to an automatic stay (upon filing of a supersedeas bond) under Rule 62(d), because “The language of Rule 62(d) seems clear, and the enumerated exceptions do not include tax summons enforcement proceedings. Expressio unius est exclusio alterius.” Becker v. United States, 451 U.S. 1306, 1309, 101 S.Ct. 3161, 68 L.Ed.2d 828 (1981) (Rehnquist, J., in chambers), citing United States v. Neve, 80 F.R.D. 461, 463 [526]*526(E.D.La.1978). The government relies on a contrary dictum in FTC v. TRW, Inc., 628 F.2d 207, 210 n. 3 (D.C.Cir.1980), and on Marshall v. Berwick Forge & Fabricating Co., 474 F.Supp. 104, 108 (M.D.Pa.1979) — to which it might have added United States v. Blackburn, 538 F.Supp. 1385,1386 (M.D.Fla.1982). The standard treatises do not discuss the issue, and are divided on the related question whether a judgment of civil contempt (irrespective of the relief ordered in the contempt proceeding) is within Rule 62(a). Compare 7 Moore’s Federal Practice § 62.03 at p. 62-14 (2d ed. 1982), with 11 Wright & Miller, Federal Practice and Procedure § 2902 at p. 312 (1973). One case holds that “injunctive type remedies,” such as reinstatement under Title VII of the Civil Rights Act of 1964, are within Rule 62(a). Dewey v. Reynolds Metals Co., 304 F.Supp. 1116, 1118 (W.D.Mich.1969). That describes our case pretty well: the order to inspect is like an injunction against interfering with the inspection. We. shall come back to this point.

But none of the authorities discusses the issue except in passing, and we are unwilling to decide it simply by reference to a maxim of statutory construction — noting in this connection Justice Rehnquist’s recent statement for a unanimous Supreme Court that “ ‘generalities about statutory construction help us little,’ ” Weinberger v. Rossi, 456 U.S. 25, 28, 102 S.Ct. 1510, 1514, 71 L.Ed.2d 715 (1982), quoting United States v. Universal Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 229, 97 L.Ed. 260 (1952). Of course if the framers of Rule 62(a) meant in using the word “injunction” to exclude orders to permit inspection, we would be bound by their determination even if it was not expressed clearly. We would equally be bound if the framers had meant by the word any order to do as distinct from an order to pay, as the Supreme Court has held that the framers of Rule 65(d) (relating to the requirements of an order granting an injunction) did. See International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75, 88 S.Ct. 201, 207, 19 L.Ed.2d 236 (1967). And it is too late in the day to argue that an injunction must be negative. See, e.g., Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 212, 82 S.Ct. 1328, 1337, 8 L.Ed.2d 440 (1962). But there is no indication either how broadly the framers of Rule 62 wanted the word construed or that they gave any thought to the question raised by this case. We must give the word the meaning that will best carry out the purpose of Rule 62, so far as that purpose can be inferred from the rule’s language and structure.

The reference in Rule 62(d) to supersede-as bond suggests that had the framers thought about the point they would have limited the right to an automatic stay to cases where the judgment being appealed from was a “money judgment.” Cf. Dewey v. Reynolds Metals Co., supra, 304 F.Supp. at 1118; 7 Moore’s Federal Practice, supra, § 62.06 at p. 62-68. The posting of a bond in the amount of the judgment, coupled with the fact that money judgments earn interest from the date they are entered in the district court, 28 U.S.C. § 1961, assures a prevailing plaintiff that sheer passage of time will not render the judgment uncollectible and that he will be compensated (maybe not completely) for the delay in receiving his money. Thus the grant of the stay does little or no harm to the plaintiff, but of course denial would hurt the defendant by making him pay the judgment before its validity has been finally determined; and unless the plaintiff were required to give a bond, the defendant might find it difficult or impossible to get his money back if the judgment was overturned on appeal. Rule 62(d) strikes an appropriate balance by entitling the appellant to a stay but conditioning that right on the posting of a bond.

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696 F.2d 524, 35 Fed. R. Serv. 2d 961, 11 OSHC (BNA) 1086, 1982 U.S. App. LEXIS 23051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-j-donovan-secretary-of-labor-v-fall-river-foundry-co-inc-ca7-1982.