BENNY BAILEY, ET AL., PETITIONERS V. LYNN MARTIN, SECRETARY OF
LABOR, UNITED STATES DEPARTMENT OF LABOR

   No. 90-1218

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The order of the court of appeals (Pet. App. D1-D2) is unreported.
The memorandum opinion and order of the district court (Pet. App.
B1-B15) is unofficially reported at 1990 O.S.H. Dec. (CCH) Paragraph
28,898.  The judgment of the district court (Pet. App. C1-C3) is
unreported.  The district court's order denying a stay pending appeal
(App., infra, 1a-3a) is unreported.  The report, with recommendations,
of the United States magistrate (Pet. App. A1-A32) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 20,
1990.  A petition for rehearing was denied on October 2, 1990.  Pet.
App. E1-E2.  The petition for a writ of certiorari was filed on
January 2, 1991.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals erred in denying petitioners' motion
to vacate the district court's judgment, and to remand with
instructions to dismiss, when petitioners' appeal became moot only
because they had complied with the district court's judgment enforcing
the Secretary of Labor's administrative subpoenas.

                               STATEMENT

   1. Petitioners are thirteen employees of Trinity Industries, Inc.'s
plant in Dallas, Texas.  In May 1989, the Occupational Safety and
Health Administration (OSHA), acting pursuant to a search warrant,
undertook a safety compliance inspection of the plant.  As part of the
investigation, the OSHA compliance officer sought to interview a
number of employees.  When all but one of the identified employees
declined the interviews, OSHA served them with administrative
subpoenas.  Pet. App. A10-A14, B2-B4.

   The interviews required by the subpoenas were to take place at the
plant on August 21, 1989.  The employees came to the interviews
accompanied by Trinity's attorney, who purported to represent them
individually.  When the employee at the initial interview insisted on
the presence of Trinity's attorney as his counsel, the compliance
officer objected and discontinued all the interviews.  Pet. App.
A16-A17, B4-B5.

   2. On October 4, 1989, the Secretary of Labor filed an action in
the United States District Court for the Northern District of Texas
against each of the subpoenaed employees, seeking to enforce the
administrative subpoenas.  Pursuant to 28 U.S.C. 636(b), the court
referred the matter to a magistrate.  Pet. App. A1, B5.  In response
to a show cause order, petitioners filed a motion to dismiss, arguing
that the subpoenas were invalid.  Trinity also filed a motion to
intervene, asserting a need to protect against disruption from the
interviews.  Id. at A2-A9.  After a hearing, the magistrate concluded
that the subpoenas were valid.  He therfore recommended that
petitioners' motion to dismiss should be denied and that the subpoenas
should be enforced.  The magistrate also recommended against
permitting Trinity to intervene in the case.  Finally, the magistrate
recommended that Trinity's attorneys not be permitted to represent the
individual employees because of the obvious potential for conflict of
interest.  Id. at A31-A32;  see id. at A3-A9, A18-A31, B6-B7.  /1/

   The district court, applying a standard of de novo review, adopted
the magistrate's findings and recommendations.  Pet. App. B1.  The
court concluded that both Section 8(b) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. 657(b), and OSHA's internal operating
procedures authorized the administrative subpoenas, and that these
particular subpoenas were reasonable.  Pet. App. B10-B11.
Accordingly, it held that the Secretary was entitled to enforce the
subpoenas.  Id. at B12.  The court directed that the interviews be
conducted at a mutually convenient time and place acceptable for all
concerned, ibid., and barred Trinity's counsel from representing the
employees.  Id. at B13.  Finally, the court ruled against Trinity's
motion to intervene because the enforcement order stipulated that the
interviews were to be conducted so as not to create a substantial
disruption of the company's work force, thus obviating the stated
basis for intervention.  Ibid.

   In its judgment of April 23, 1990, the district court incorporated
these holdings and specified the time and place for each interview.
All the interviews were scheduled to occur between April 30 and May 4,
1990, subject to modification upon a showing of substantial disruption
to the company's work force.  Pet. App. C2-C3.  The district court
denied a motion to stay enforcement of the subpoenas pending appeal,
holding that petitioners were not likely to succeed on the merits and
that a stay would not serve the public interest in workplace safety.
App., infra, 1a-3a;  see Pet. 5.  On April 30, 1990, the court of
appeals likewise denied a stay.  App., infra, 4a.  Petitioners then
provided the subpoenaed testimony as scheduled.  Pet. 5.

   3. In the meantime, petitioners had filed a notice of appeal from
the district court's judgment denying their motion to dismiss and
enforcing the subpoenas.  See App., infra, 5a-6a.  Following
completion of the interview, petitioners moved to dismiss their appeal
as moot and to vacate the judgment of the district court with
directions to dismiss the case.  The Secretary also moved to dismiss
the appeal as moot, but opposed petitioners' motion to the extent that
it sought to vacate the district court decision.  In an unpublished
order, the court of appeals summarily petitioners' motion to vacate
and granted the Secretary's motion to dismiss the appeal as moot.
Pet. App. D1-D2.

                               ARGUMENT

   Petitioners seek this Court's review -- indeed, summary disposition
on the merits (see Pet. 7) -- of their contention that the court of
appeals erred in denying their motion to vacate the district court's
judgment as moot, and to remand with instructions that the case be
dismissed.  Contrary to petitioners' contention, the principles
articulated in United States v. Munsingwear, Inc., 340 U.S. 36 (1950),
do not require a court of appeals to grant a contested motion to
vacate a district court's judgment in the circumstances presented here
-- when a case has become moot on appeal only because the appellant
has chosen to comply with the district court's order enforcing a
subpoena for testimony.

   1. In Munsingwear, this Court noted that "(t)he established
practice of the Court in dealing with a civil case from a court in the
federal system which has become moot while on its way here or pending
our decision on the merits is to reverse or vacate the judgment below
and remand with a direction to dismiss." 340 U.S. at 39.  That
practice, the Court explained, "clears the path for future
relitigation of the issues between the parties and eliminates a
judgment, review of which was prevented through happenstance." Id. at
40.  In Munsingwear, the Court held that because the government had
not availed itself of this procedure for vacating a lower court
judgment in a case that had become moot while on appeal, the
government was bound by principles of res judicata with respect to the
underlying, unvacated judgment.  Id. at 40-41.

   The rationale of Munsingwear suggests an important qualification to
the scope of that doctrine.  Munsingwear protects a party against the
res judicata consequences of a judgment where the party was deprived
of appellate review through the fortuity of mootness.  But it is not
necessary to afford that protection to the losing party when that
party has chosen, while the case is on appeal, to take action
rendering the case moot.  This qualification is reflected in the
language of Munsingwear itself:  the Court referred to cases where
review "was prevented through happenstance." More recently, in Karcher
v. May, 484 U.S. 72, 83 (1987), the Court made a similar point in
holding that "the Munsingwear procedure is inapplicable" where the
controversy had ended because the losing party had abandoned its
prosecution of an appeal.  The Court distinguished that situation from
a case in which "the controversy * * * become(s) moot due to
circumstances unattributable to any of the parties." Id. at 83.

   When mootness is attributable to the party challenging the
judgment, the equitable principles underlying Munsingwear do not
require protection of that party against the res judicata consequences
of the judgment.  /2/ As the court explained in United States v.
Garde, 848 F.2d 1307, 1311 (D.C. Cir. 1988):

         The distinction between litigants who are and are not
      responsible for the circumstances that render the case moot is
      important.  We do not wish to encourage litigants who are
      dissatisfied with the decision(s) of the trial court "to have
      them wiped from the books" by merely filing an appeal, then
      complying with the order or judgment below and petitioning for a
      vacatur of the adverse trial court decision.

To grant such a motion in these circumstances would enable a "litigant
* * * to destroy the collateral conclusiveness of a judgment by
destroying his own right of appeal." Ibid., quoting 1B J. Moore,
Moore's Federal Practice Paragraph 0.416(6), at 543 (2d ed. 1984).
See also Cover v. Schwartz, 133 F.2d 541, 546 (2d Cir. 1942), cert.
denied, 319 U.S. 748 (1943);  Ringsby Truck Lines, Inc. v. Western
Conference of Teamsters, 686 F.2d 720, 721 (9th Cir. 1982).  /3/

   In line with those principles, several courts of appeals have
refused to vacate a district court judgment, when a case became moot
on appeal, "where the losing party deliberately mooted the question on
appeal so as to destroy the preclusive effect of a final judgment
below." Garde, 848 F.2d at 1310 n.6;  see Allard v. DeLorean, 884 F.2d
464 (9th Cir. 1989);  United States v. Constangy, Brooks & Smith, 851
F.2d 839, 842 (6th Cir. 1988);  Center for Science in the Public
Interest v. Regan, 727 F.2d 1161 (D.C. Cir. 1984);  United States v.
Sweet, 655 F.2d 54 (5th Cir. 1981);  United States v. Olson, 604 F.2d
29 (8th Cir. 1979);  cf. Blackwelder v. Safnauer, 866 F.2d 548,
550-551 (2d Cir. 1989);  Wisconsin v. Baker, 698 F.2d 1323, 1330-1331
(7th Cir.), cert denied, 463 U.S. 1207 (1983).  /4/

   In Garde, the court of appeals applied this principle in a context
analogous to the present case.  The Nuclear Regulatory Commission
subpoenaed information from an attorney representing certain
whistle-blowers.  When the attorney refused to comply, the agency
brought an enforcement action in district court.  The court denied
enforcement and "advised the NRC that it must pursue less intrusive
alternatives to obtain the information sought." 848 F.2d at 1308.
While the NRC's appeal was pending, the NRC used less intrusive means
to acquire substantially all the information it sought in the
subpoena.  It then moved the court of appeals to dismiss the case as
moot and to vacate the judgment below.  The court of appeals refused
to do so, saying:  "Appellant, the losing party, has complied with the
district court judgment and as a result, rendered the appeal moot.
When 'the appellant complie(s) with the judgment, * * * the trial
court's determinations ought to have the same conclusive effects that
they would have if the appellant had not appealed at all.'" Id. at
1310 n.7, quoting 1B J. Moore, Moore's Federal Practice Paragraph
0.416(6), at 543-544 (2d ed. 1984).  /5/

   2. This case is in the same mold.  As in Garde, post-judgment
compliance rendered the appeal moot /6/ but mootness was not achieved
"through happenstance," Munsingwear, 340 U.S. at 40, or circumstances
"unattributable to any of the parties." Karcher, 484 U.S. at 83.
Rather, petitioners chose to comply with the outstanding district
court order, and eliminate the live aspect of the controversy.  If
petitioners were intent on preserving their right to appeal the
underlying decision, all that was necessary was for one or more of the
thirteen employees to "have refused to comply with the district
court's order of enforcement * * * (and) have then risked civil
contempt sanctions." EEOC v. St. Regis Paper Co., 717 F.2d 1302, 1303
(9th Cir. 1983).  If the reviewing court had ruled that the underlying
order was erroneous, the employees would have enjoyed a complete
defense to the imposition of civil contempt sanctions.  See United
States v. United Mine Workers, 330 U.S. 258, 295 (1947);  St. Regis
Paper Co., 717 F.2d at 1303;  cf. Scott & Fetzer Co. v. Dile, 643 F.2d
670, 675 & n.8 (9th Cir. 1981) (collecting cases).

   Although there is, to be sure some risk involved in undergoing
civil contempt, that is what courts require for appeal in a variety of
contexts.  For example, a non-party witness seeking to challenge an
unappealable interlocutory discovery order must "refuse to comply and
submit to a contempt proceeding" to achieve the necessary finality to
perfect an appeal.  FTC v. Alaska Land Leasing, Inc., 778 F.2d 577,
578 (10th Cir. 1985);  see also DeMasi v. Weiss, 669 F.2d 114, 122 (3d
Cir. 1982).  Similarly, an employer seeking to challenge an OSHA
search warrant may "refuse entry pursuant to the warrant and then
challenge the warrant before the district court when the Secretary
brings civil contempt proceedings." Rockford Drop Forge Co. v.
Donovan, 672 F.2d 626, 631 (7th Cir. 1982).  See also United States v.
Trinity Indus, Inc., 876 F.2d 1485, 1488-1489 (11th Cir. 1989)
(Trinity incurred one day of $10,000 per day civil contempt assesment
and Mosher Steel incurred one day of $1000 per day assessment rather
than permit OSHA inspections pursuant to warrants);  Donovan v.
Burlington Northern, Inc., 781 F.2d 680, 684 (9th Cir. 1986) (noting
that resistance to valid OSHA warrant "need not be without financial
risk even in a free society").

   Under these circumstances, a Munsingwear order vacating the
judgment was not required.  /7/ Indeed, several features of this case
made it particularly inappropriate for the relief petitioners sought.
First, although petitioners did not appear to challenge on appeal the
district court's rulings that Trinity could not intervene and that its
attorneys could not represent the employees, see App., infra, 5a, they
nonetheless sought to vacate all aspects of the judgment.  Petitioners
have no equitable interest in eliminating the preclusive force of
rulings that they did not seek to challenge on appeal.  /8/ Second,
the Secretary, as the prevailing party, has a strong interest in
preserving the preclusive effect of the judgment as applied to other
actions involving Trinity, which is, regrettably, a frequent litigant
in OSHA enforcement authority cases.  /9/

   We recognize that in some instances, courts of appeals have applied
the Munsingwear procedure when a party first appealed an order
requiring the production of information, and then mooted the case by
complying with the order.  See In re Kulp Foundry, Inc., 691 F.2d
1125, 1128-1130, 1133 (3d Cir. 1982) (case became moot after an
inspection warrant was fully executed;  court vacated district court
order directing compliance with the warrant);  United States v.
Cleveland Elec. Illuminating Co., 689 F.2d 66, 68 (6th Cir. 1982) (per
curiam) (same);  United States v. Kis, 658 F.2d 526, 532-535 & n.20
(7th Cir. 1981) (compliance with IRS summons for handwriting exemplars
mooted appeal;  court remanded with instructions to vacate summons
enforcement order), cert. denied, 455 U.S. 1018 (1982);  United States
v. Silva & Silva Accounting Corp., 641 F.2d 710, 711 (9th Cir. 1981)
(production of documents under IRS summons mooted appeal;  court
remanded with instructions to vacate enforcement order).  But, unlike
in this case, in none of those cases did the prevailing party appear
to oppose the vacation of the underlying judgment and the dismissal of
the enforcement action.  The prevailing party's concurrence (or
acquiescence) in a motion to vacate is an important consideration,
because it is the prevailing party who stands to benefit most directly
-- through application of res judicata principles -- from the
preservation of the judgment.

   The Munsingwear doctrine has always been applied with a view toward
furthering its underlying purposes.  As the purposes of the doctrine
did not require vacation of the district court's judgment in this case
-- and, indeed, they strongly favor allowing the judgment to stand --
further review of petitioners' claim is not warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT P. DAVIS

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   KERRY L. ADAMS

      Counsel for Appellate Litigation

   NATHANIEL I. SPILLER

      Senior Appellate Attorney Department of Labor

   APRIL 1991

   /1/ The magistrate also set aside the entry of default against one
employee and recommended against the Secretary's motion to hold in
contempt those employees who did not personally appear at the
magistrate's hearing.  Pet. App. A31-A32;  see id. at A9-A10, A29-A30,
B6.

   /2/ The Munsingwear procedure is not jurisdictional.  See National
Union Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762, 766 (9th Cir.
1989) ("The Munsingwear rule is neither statutorily nor
constitutionally required.  It is equitable in nature, designed to
maintain fairness between litigants who have been denied what would
otherwise be an opportunity to challenge a prior adverse decision.").

   /3/ Although Ringsby has been criticized, see 13A C. Wright, A.
Miller & E. Cooper, Federal Practice and Procedure Section 3533.10, at
431-432 (2d ed 1984), the Ninth Circuit continues to apply its
principles.  See Scott v. Iron Workers Local 118, No. 89-16001 (Mar.
20, 1991).

   /4/ A related but distinct issue, not presented here, is whether
settlement of a case on appeal requires the issuance of a Munsingwear
order, at least if no party opposes a motion to vacate.  Cf. p. 13,
infra.  The courts of appeals are divided on this issue.  Compare Long
Island Lighting Co. v. Cuomo, 888 F.2d 230, 233-234 (2d Cir. 1989)
(dismissal and vacatur required where parties have agreed on
settlement and vacatur of the decision below);  Federal Data Corp. v.
SMS Data Prods. Group, 819 F.2d 277, 279-280 (Fed. Cir. 1987) (same);
Kennedy v. Block, 784 F.2d 1220, 1225 (4th Cir. 1986) (same);  with
National Union Fire Ins. Co., 891 F.2d at 765-769 (remand to let
district court determine whether to vacate where case mooted by
settlement);  In re Memorial Hosp. of Iowa County, Inc., 862 F.2d
1299, 1301 (7th Cir. 1988) (vacatur not appropriate where parties have
mooted case through settlement);  In re:  United States, No. 87-5383
(D.C. Cir. Mar. 8, 1991) (Munsingwear order not appropriate when
losing party chooses to settle case rather than pursue an appeal, even
when prevailing party supports the motion to vacate).

   /5/ See also United States v. Constangy, Brooks & Smith, supra
(post-judgment compliance with order to produce documents pursuant to
FOIA after stay denials;  appeal dismissed as moot, but motion to
vacate denied);  EEOC v. St. Regis Paper Co., 717 F.2d 1302 (9th Cir.
1983) (post-judgment compliance with subpoena after stay denials;
appeal mooted, but case not vacated);  United States v. Sweet, supra
(post-judgment compliance with summons after temporary stay;  appeal
dismissed as moot, but case not vacated).

   /6/ The case was plainly moot, because once petitioner had complied
with the district court's judgment, there was no further relief that
the court of appeals could have granted.  See, e.g., Iron Arrow Honor
Society v. Heckler, 464 U.S. 67, 70 (1983) (per curiam);  United
States v. Garde, 848 F.2d at 1309.

   /7/ None of this Court's cases cited by petitioners (Pet. 3)
involved situations comparable to that presented here.  See Great
Western Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam)
(challenge to order to arbitrate mooted by completition of
arbitration);  Preiser v. Newkirk, 422 U.S. 395 (1975) (prisoner
challenging transfer decision to higher security facility was later
transferred back to lower security facility);  Parker v. Ellis, 362
U.S. 574 (1960) (per curiam) (prisoner petitioning for habeas corpus
was released from custody);  United States v. Munsingwear, supra
(intervening change in law);  Duke Power Co. v. Greenwood County, 299
U.S. 259, 267, 267-268 (1936) (because of post-judgment modification
of challenged contract, district court judgment should have been
vacated and action retried based on new contract).

   In New Left Educ. Project v. Board of Regents, 472 F.2d 218 (5th
Cir.), vacated, 414 U.S. 807 (1973), a district court struck down on
constitutional grounds certain rules promulgated by a state
university.  While the case was on appeal, the university mooted the
case by repealing the rules and adopting new ones.  After the court of
appeals declined to vacate the district court judgment -- concluding
(472 F.2d at 221) that the case did not become moot through
"happenstance" but through the university's voluntary action -- this
Court summarily vacated the judgment, and remanded to the district
court with directions to dismiss the case as moot.  414 U.S. 807.  The
New Left case implicated two concerns not present here.  First, the
judgment in question rested on constitutional grounds;  its vacation
is consistent with this Court's prudential concern to avoid
pronouncements on constitutional issues when the case does not so
require.  Second, a public body's adoption of new regulations, even if
consistent with a district court judgment, reflects public policy
choices, and is not equivalent to a private party's decision to comply
with a court order requiring testimony under subpoena.  See Clarke v.
United States, 915 F.2d 699, 706-708 (D.C. Cir. 1990) (en banc).

   /8/ Although it is possible that the court of appeals could have
disentangled the issues, and vacated only the aspects of the judgment
to which petitioners objected, petitioners did not request partial
vacatur, even in the alternative.  Nor did they do so in their
petition for rehearing or in their petition in this Court.

   /9/ See, e.g., Dole v. Trinity Indus., Inc., 904 F.2d 867 (3d
Cir.), cert. denied, 111 S. Ct. 555 (1990);  Dole v. Trinity Indus.,
Inc., 898 F.2d 1049 (5th Cir. 1990);  United States v. Trinity Indus.,
Inc., 876 F.2d 1485 (11th Cir. 1989);  Industrial Steel Prods. Co. v.
OSHA, 845 F.2d 1330 (5th Cir.), cert. denied, 488 U.S. 993 (1988);
Donovan v. Trinity Indus., Inc., 824 F.2d 634 (8th Cir. 1987);
Donovan v. Mosher Steel Co., 791 F.2d 1535 (11th Cir. 1986), cert.
denied, 479 U.S. 1030 (1987);  Donovan v. Hackney, Inc., 769 F.2d 650
(10th Cir. 1985), cert. denied, 475 U.S. 1081 (1986);  see also Pet.
App. A30.  In fact, there have been two other cases thus far in which
other Trinity employees have challenged the Secretary's subpoena
authority and in which Trinity has sought to intervene.  Herman v.
Dole, Civ. Action No. 4-90-324-K (S.D. Tex. filed July 30, 1990)
(action for declaratory and injunctive relief);  Dole v. Barrios, 1990
O.S.H. Dec. (CCH) Paragraph 29,052 (N.D. Tex. 1990).

   APPENDIX