Post details: 5th Cir.: No right to a pre-search hearing on an OSHA warrant


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5th Cir.: No right to a pre-search hearing on an OSHA warrant

"[T]here is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force." In an OSHA search case, the target of the administrative warrant argued that there should be an ability to litigate the warrant before the search and seizure, but the Fifth Circuit disagreed, in a case of first impression. Trinity Marine Prods. v. Chao, 512 F.3d 198 (5th Cir. 2007):

Trinity's so-called right finds no support in the Constitution's text or history and has never been blessed by the Supreme Court. In fact, the best reading of the leading Supreme Court case on point, Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), is decidedly against Trinity's claim. This is not surprising, because Trinity's argument makes no sense: Just as in the criminal context where a search by federal officers violates a suspect's constitutional rights but no charges are filed, a victim of an unconstitutional administrative search can affirmatively bring the grievance before a federal tribunal by means of a Bivens suit. There is no danger of an unremedied constitutional wrong.

. . .

At least in general practice, administrative warrants are different from criminal warrants also in how they are executed: If an employer refuses to allow OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA to bring an action for contempt against the employer. This differs from a criminal warrant; with "an honest-to-goodness criminal search warrant," the government will get "hold of a sledgehammer ... and [break] down [the] door." In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988). "Although moviegoers who remember the environmental police in the movie Ghostbusters will be surprised, the practice of allowing the target of an administrative warrant to forbid entry and thereby convert the warrant proceeding into a contempt proceeding is the standard method of enforcing such warrants." Id. Indeed, "[e]ven the compliance officers of the Drug Enforcement Agency [sic] are unarmed when executing administrative search warrants ...." Id.

. . .

Citing that footnote, the ALJ ruled that we have already countenanced the use of physical force in executing administrative warrants. Trinity, on the other hand, argues that the footnote is merely dictum, because the issue of "physical force" was not before this court, and that Judge Goldberg, the author of Shellcast, did not accord the footnote precedential value in subsequent cases.

Trinity, for instance, points to language in a number of cases, some written by Judge Goldberg, that it argues demonstrates that administrative warrants cannot be executed by force. First cited is Brock v. Gretna Machine & Ironworks, 769 F.2d 1110 (5th Cir. 1985). There, OSHA obtained an administrative warrant, but the employer "refused access." Id. at 1111. Civil contempt was sought, and "Gretna answered the complaint and counterclaimed, seeking a declaratory judgment that the inspection warrant was violative of its fourth amendment guarantees." Id. We vacated the district court's decision, holding that OSHA's warrant application was "fatally defective." Id. at 1113. Before addressing the flaws in the warrant application, however, we commented on the employer's refusal to allow OSHA access to inspect, stating that "Gretna had the option of seeking to quash the warrant before execution or, as it did, refuse entry and challenge the warrant in resulting civil contempt proceedings." Id. at 1111 n.3.

The ALJ rightly noted that "[t]he threat of physical force was never at issue" in Gretna, so the statement was dictum. Moreover, the footnote does not even necessarily support Trinity's position. Although it can be read to mean that it is impermissible to execute an administrative warrant by force, it can also be interpreted more narrowly to mean that an employer has "the option" to challenge a warrant in contempt proceedings only where OSHA has elected not to execute the warrant forcefully.

. . .

Undergirding Trinity's claims are a pair of flawed constitutional policy arguments. First, Trinity argues that, because after an administrative inspection takes place any challenge to the warrant is subject to the exhaustion of administrative remedies doctrine, it follows that if pre-enforcement civil contempt proceedings are not available to an employer, OSHA can unconstitutionally inspect a facility and, if it declines to issue citations, the unconstitutional inspection will go unremedied, because there will be no administrative forum to hear the matter. But, according to Trinity, if pre-enforcement contempt proceedings are an option, the employer can protect itself against the constitutional violation by risking contempt to challenge the warrant's validity before it is executed, thus avoiding the constitutional violation before it occurs. Second, Trinity contends that because the probable cause standard in administrative warrants is lower than for criminal warrants, employers should be able to challenge an administrative warrant before it is executed.

Trinity's first purported policy justification, raised at times in a number of cases, is not convincing. There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action. Though from an employer's perspective, Bivens may not be a perfect remedy, it is at least as attractive as requiring an employer to risk contempt to get pre-enforcement review of an administrative warrant. But at the same time, Bivens has an advantage that Trinity's proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant.

. . .

Trinity also briefly offers a second policy justification for its argument: "One reason a criminal warrant may be enforced by force is because of the more stringent showing of probable cause required ...." But though it is hornbook law that in the wake of Barlow's there is a lower standard of probable cause for administrative warrants, it does not follow that the due process requirements for executing administrative warrants are ratcheted up as an offset.

Because the natures of the possible punishment in administrative and criminal contexts differ, with criminal punishment greatly exceeding administrative citation, and because traditionally regulatory inspections required no warrant at all, it is unremarkable that the standard for obtaining an administrative warrant is considerably less stringent than that for criminal warrants. In fact, given the heightened constitutional concern for individuals enmeshed in criminal investigations, one would expect that it would be a criminal warrant--or none at all--that the government constitutionally cannot execute by force.

Barlow's also supports the view that there is no constitutional right to pre-enforcement review of administrative warrants. There the Court for the first time required OSHA inspectors to have a warrant. This was a dramatic change in the law. The Court recognized as much and so explicitly cut back the reach of its opinion by holding that the probable cause standard ordinarily associated with warrants does not apply to administrative warrants. Barlow's, 436 U.S. at 320-21.

Comment: This, of course, only makes sense because delay in executing the warrant allows for the condition of the scene to be changed, which defeats the entire warrant process. Even a search implicating the First Amendment at best provides only a limited pre-seizure hearing because of the implication of free speech rights.


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