Tri-State Steel Const., Inc. v. Occupational Safety & Health Review Com'n

• Decision Date: 22 August 1994
• Docket Number: TRI-STATE,No. 92-1614,92-1614
• Citation: 26 F.3d 173
• Parties: , 63 USLW 2032, 16 O.S.H. Cas. (BNA) 1845, 1994 O.S.H.D. (CCH) P 30,449 STEEL CONSTRUCTION, INC., et al., Petitioners, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 173

26 F.3d 173

307 U.S.App.D.C. 32, 63 USLW 2032, 16

O.S.H. Cas. (BNA) 1845,

1994 O.S.H.D. (CCH) P 30,449

TRI-STATE STEEL CONSTRUCTION, INC., et al., Petitioners, v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION, et al., Respondents.

No. 92-1614.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 23, 1994.

Decided June 17, 1994.

Rehearing Denied Aug. 22, 1994.

Petition for Review of an Order of the Occupational Safety & Health Review Commission.

Kent W. Seifried, Newport, KY, argued the cause, and filed the briefs, for petitioners.

John Shortall, Atty., U.S. Dept. of Labor, Washington, DC, argued the cause, for respondents. With him on the brief was Joseph M. Woodward, Associate Sol., Occupational Safety and Health, and Barbara Werthmann, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, DC.

Before MIKVA, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

Concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

MIKVA, Chief Judge:

The Occupational Safety and Health Administration ("OSHA") conducted two related inspections of a multi-employer bridge and highway construction project on which Petitioners, National Engineering & Contracting Company ("National") and its wholly-owned subsidiary Tri-State Steel Construction Company, Inc. ("Tri-State"), were subcontractors. OSHA cited Petitioners for violating several safety and health standards established pursuant to the Occupational Safety and Health Act of 1970. 29 U.S.C. Secs. 651-678 (1988 & Supp.1993). Petitioners contested the citations, alleging, inter alia, that OSHA's inspections of the construction site constituted unreasonable searches within the meaning of the Fourth Amendment.

After a hearing on the merits, an administrative law judge ("ALJ") held the searches to be constitutionally permissible. The Occupational Safety and Health Review Commission ("Commission") affirmed the ALJ's conclusion, and Petitioners filed this petition for review. Because Petitioners lacked a reasonable expectation of privacy in the open areas of their construction site and OSHA inspected other areas of the site pursuant to a valid administrative warrant, we deny the petition for review.

I. Background

In 1989, National and Tri-State worked as subcontractors on a major reconstruction and rehabilitation project known as Project 8. Project 8 involved the restoration of 36 bridges in a four-mile stretch where three major highways converged in Cincinnati, Ohio. To promote both the safety of Project 8 workers and the convenience of area drivers, the State of Ohio developed, and the project's general contractor implemented, a traffic control plan to reroute traffic around the construction area. Petitioners bore no responsibility for designing or implementing the plan.

On the evening of April 27, 1989, the general contractor, acting in accordance with the traffic control plan, set barrels in a V-like formation around Petitioners' worksite area on Fort Washington Way, a four-lane highway intersecting the project area. The barrels isolated the highway's two center lanes by rerouting traffic to the outer left- and right-hand lanes. The right lane channeled traffic north toward Dayton, Ohio; the left lane channeled traffic south into Kentucky. Once cars split off at the "V," they had no further opportunity to cross back to the other lane of traffic.

On April 28th, Fort Washington Way motorists found themselves channelled in directions in which they did not want to go. Because the barrels were set fifty feet apart, motorists were able to cut between them and across the work area in order to reach their desired lanes. When the criss-crossing traffic problem first began, Petitioners contacted the State of Ohio to request police protection for their workers. The State directed the general contractor to reposition the barrels by placing them at 25-foot intervals. When this proved ineffective, Petitioners placed debris and other items between the barrels to discourage traffic from cutting through the work area. When the criss-crossing problem persisted, an agent of Petitioners' iron workers filed a Sec. 8(f)(1) Complaint with OSHA detailing the nature and location of the safety hazard to which site employees were exposed. 29 U.S.C. Sec. 657(f)(1).

OSHA promptly commenced an inspection of the specific area of Fort Washington Way described in the Complaint. On May 4, 1989, without seeking an administrative inspection warrant, OSHA dispatched a compliance officer and trainee to the construction site. The OSHA officers drove between the barrels and parked their vehicle in the cordoned area of the highway. When Tri-State representatives asked them to leave the OSHA officers refused, claiming that the condoned area was public property to which they had a right of access. Shortly thereafter, Petitioners' attorney arrived and advised the OSHA officers to cease their inspection and to obtain an administrative inspection warrant if they wished to continue.

The OSHA officers remained on-site for the remainder of the afternoon. The compliance officer took measurements of the Fort Washington Way construction site and took statements from on-site employees. The trainee videotaped traffic flow at the site. The compliance officer returned to the site the next day to ensure that a policeman was present. On May 8th, the general contractor placed barrels at 10-foot intervals around Petitioners' worksite and strung orange plastic meshing between them. When the compliance officer returned to the construction site on Monday, May 8th, he confirmed that the traffic control problem had abated.

During his three day inspection of Fort Washington Way, the compliance officer allegedly observed two safety hazards in addition to the moving vehicular traffic--improperly used and stored flammable gases and improperly used welding rods. Based on these observations, OSHA sought to expand its inspection to encompass the full four miles of elevated roads and bridges that defined Project 8. Both Petitioners and the general contractor objected to this decision and demanded that OSHA obtain an administrative inspection warrant before expanding the scope of its inspection.

Citing the multiple safety hazards it had observed in its limited inspection of Petitioners' construction site, OSHA applied for and obtained an administrative search warrant for all of Project 8. From May 10-16, 1989, OSHA conducted a full-scale inspection of Project 8 and cited Petitioners for several additional safety and health standards violations it observed. Petitioners contested the citations before an administrative law judge arguing that both the warrantless inspection on May 4th and the more comprehensive warrant-based inspection on May 10-16 violated the Fourth Amendment. After a hearing on the merits, the ALJ held the inspections to be constitutionally permissible. The ALJ upheld OSHA's warrantless inspection because the cordoned area of Fort Washington Way was a public right-of-way and the inspection encompassed only those aspects of the construction "which were in plain view of all." Finding the additional safety and health standards violations that OSHA uncovered in its initial inspection to be a valid basis upon which to issue an administrative search warrant, the ALJ upheld OSHA's warrant-based inspection as well.

On appeal, the Commission rejected the ALJ's reasoning regarding the initial search, but upheld the constitutionality of OSHA's inspections. Because the compliance officers were "trespassing in an area that was open only to the Respondents' employees," the Commission determined that the inspection could not be justified under the "plain view" doctrine. Nonetheless, the Commission upheld OSHA's warrantless inspection of Petitioners' worksite because Petitioners' construction site fell within the "open fields" exception to the Fourth Amendment. The Commission affirmed the ALJ's conclusion that OSHA had inspected the entirety of Project 8 pursuant to a valid administrative search warrant. Petitioners seek review of these determinations.

II. Discussion

A. OSHA's Warrantless Inspection

Whether a governmental search or seizure implicates the Fourth Amendment usually involves a two-fold analysis. To come under the rubric of the Fourth Amendment, the subject of the search must show that it "has manifested a subjective expectation of privacy in the object of the challenged search." California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210 (1986). In addition, society must be "willing to recognize that expectation as reasonable." Id. Whether a party has manifested a subjective expectation of privacy is a question of fact, reviewed under the clearly erroneous standard. United States v. Welliver, 976 F.2d 1148, 1151 (8th Cir.1992). Whether that subjective expectation is objectively reasonable is a matter of law subject to de novo review. Id. Because we conclude that the contractual arrangements between Petitioners, the general contractor, and the federal government preclude Petitioners from establishing any reasonable expectation of privacy in the open areas of Project 8, we need not assess the subjective element of Petitioners' claimed privacy interest. Similarly, in disposing of Petitioners' claims through conventional Fourth Amendment analysis, we need not reach the more novel question of whether Petitioners' construction site falls within the Fourth Amendment's "open fields" exception.

The contract between the State of Ohio and the general contractor provides that "[w]hen the United States Government pays all or any portion of the cost of a project, the Federal laws and the rules and regulations made pursuant to such laws must be observed by the Contractor, and the work shall be subject to the inspection of the appropriate Federal agency." That federal funds were used in Project 8 is undisputed....