CA7: Finality and administrative subpoenas v. administrative SWs

After enforcement of an administrative subpoena, there may be a final order. After an execution of an administrative warrant, however, there usually isn’t because there are processes left with the agency and in court. In re Establishment Inspection of Anthony Marano Co., 2022 U.S. App. LEXIS 28802 (7th Cir. Oct. 18, 2022):

… Both administrative subpoenas and administrative warrants are investigatory tools, but there are important differences in the role they play in the administrative process. Administrative subpoenas usually do not raise the same Fourth Amendment concerns as administrative warrants. In Donovan v. Lone Steer, Inc., 464 U.S. 408, 414, 104 S. Ct. 769, 78 L. Ed. 2d 567 (1984), the Court explained that the enforcement of administrative subpoenas does not involve “the effort of the government inspectors to make non-consensual entries into areas not open to the public,” and thus administrative subpoenas are distinguishable from administrative warrants, such as the one in Barlow’s.

The enforcement process for administrative subpoenas differs from the enforcement process for administrative warrants. An administrative subpoena is issued by the agency. If a party chooses not to comply, the administrative agency must seek judicial enforcement with notice to the subpoenaed party. See, e.g., United States v. Clarke, 573 U.S. 248, 253, 134 S. Ct. 2361, 189 L. Ed. 2d 330 (2014) (describing “the requisite judicial [enforcement] proceeding” as “adversarial,” “not ex parte”). The subpoenaed party, therefore, has an opportunity to be heard during the enforcement proceeding itself. Contempt proceedings—or a subsequent challenge in administrative proceedings—is not necessary to distill the issues for appellate review.

The same is not true for the enforcement of administrative warrants. OSHA may apply for, and obtain, an administrative warrant without notice to the affected party. Once the warrant is obtained, OSHA may execute it. The first opportunity that a party subject to the warrant may have to contest the basis or scope of the warrant usually comes when it defies the warrant. In such cases, a contempt proceeding, or a challenge to the warrant in later administrative proceedings, is necessary to vet the underlying issues of authority, probable cause, and scope.

In short, the cases involving immediate appeals of administrative subpoenas do not represent an exception to the finality rule of § 1291. Rather, those cases are appealable because the orders concerning the administrative subpoenas are “[t]he last order in a proceeding,” thus making the district court’s orders “final decision[s] appealable under 28 U.S.C. § 1291.” In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1129 (7th Cir. 1988). Here, however, there remain significant ongoing proceedings in the district court that afford the contesting party a full opportunity to set forth its objections to the warrant in an adversarial context. Both the Secretary’s motion for contempt and motion to toll the statute of limitations are pending before the district court. We cannot ignore these substantive, and potentially dispositive, motions. This ongoing litigation renders the district court’s enforcement order nonfinal. We, therefore, do not have jurisdiction over the present appeal under § 1291.