512 F.3d 198 (5th Cir. 2007), 06-60993, Trinity Marine Products, Inc. v. Chao

Docket Nº:06-60993.
Citation:512 F.3d 198
Party Name:TRINITY MARINE PRODUCTS, INC., Petitioner, v. Elaine CHAO, Secretary, Department of Labor, Respondent.
Case Date:December 26, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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512 F.3d 198 (5th Cir. 2007)

TRINITY MARINE PRODUCTS, INC., Petitioner,

v.

Elaine CHAO, Secretary, Department of Labor, Respondent.

No. 06-60993.

United States Court of Appeals, Fifth Circuit.

Dec. 26, 2007

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[Copyrighted Material Omitted]

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Robert E. Rader, Jr. (argued), Rader & Campbell, Dallas, TX, for Petitioner.

Lee Gary Grabel (argued), Charles Franklin James, Howard M. Radzely, Ray H. Darling, Executive Sec., Joseph Woodward, U.S. Dept, of Labor, OSHA, Washington, DC, for Respondent.

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

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge

Over the objection of Trinity Marine Products, Inc. ("Trinity"), but pursuant to an administrative search warrant, compliance officers from the Occupational Safety and Health Administration ("OSHA") inspected a workplace owned by Trinity and issued citations. Trinity claims that the search violated the Fifth Amendment because OSHA threatened to arrest Trinity personnel who interfered with the search, but the constitutionally required method to execute administrative warrants when the targeted party refuses to acquiesce is to commence a civil contempt proceeding, which OSHA did not do.

An administrative law judge ("ALJ") heard and rejected Trinity's argument. Trinity petitions for review. Because Trinity's contention finds no support in the Constitution or precedent, we deny the petition.

I.

On October 21, 2004, as part of a general inspection program, compliance officers from OSHA visited Trinity's facility to conduct an inspection. Trinity denied the inspectors entry with the explanation that its designated representative to OSHA was not present.

On November 30, OSHA obtained an administrative search warrant from a United States magistrate judge. On December 8, the compliance officers, warrant in hand, returned to Trinity's facility. Trinity officials asked for copies of the warrant's supporting documentation, which the compliance officers declined to provide. Trinity then refused to permit the compliance officers to inspect the facility.

The officers called an Assistant United States Attorney ("AUSA"), and Trinity officials in turn phoned legal counsel. The AUSA advised Trinity's counsel that unless the compliance officers were allowed to inspect, federal marshals would be dispatched. Trinity's counsel rejoined that the proper procedure to enforce an administrative warrant is to commence a contempt proceeding and not forcefully to execute the warrant.

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At an impasse, the compliance officers contacted their supervisors, who told them to leave the facility. Shortly thereafter a federal marshal contacted the compliance officers. With the help of three marshals, the officers returned to the workplace and informed Trinity officials that unless the inspection went forward, the company's officers would be arrested. The company assented.

When the marshals left, however, Charles Latiolais, Trinity's designated representative to OSHA, arrived and again forbade the inspection without first reviewing the warrant's supporting documentation. The compliance officers telephoned the marshals, who threatened Latiolais that unless the inspection was permitted, "somebody will be in chains." The Trinity officials permitted the inspection, stating that it was being allowed "under protest."

Trinity filed an emergency motion in federal court to enjoin the inspection, contending that the warrant lacked probable cause and that forceful execution of an administrative warrant is unlawful. The compliance officers, however, completed the inspection before the court held a hearing on Trinity's motion. At the hearing on December 9, OSHA successfully argued that because the warrant had been executed, Trinity was required to exhaust its administrative remedies.

OSHA later issued citations --the nature of which are not at issue here --based on evidence obtained from the search. Before an ALJ, Trinity contested the citations and raised its constitutional challenge and other arguments that the search was unlawful, contending that the search's illegality should result in the suppression of evidence. The ALJ rejected those arguments, and the Occupation Safety and Health Review Commission ("OSHRC") declined to review the ALJ's decision, thus making it a final order of OSHRC pursuant to 29 U.S.C. § 659(c). Trinity petitions this court, pursuant to 29 U.S.C. § 660, to review the search's legality.

II.

Trinity does not seek review of any of the ALJ's factual findings. Thus, the review of whether OSHA acted in accordance with Trinity's constitutional rights is de novo. United States v. Villanueva, 408 F.3d 193, 200 (5th Cir. 2005).

III.

Before addressing Trinity's constitutional claim, we must decide whether the law of the case doctrine somehow limits the arguments available to Trinity. The Department of Labor contends that because Trinity did not appeal the district court's December 9 rulings, the doctrine applies, suggesting that this court is bound by the determination of the district court. That argument misstates the law (and the district court's ruling) and is irrelevant.

"The law of the case doctrine provides that 'an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal.' " Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006) (internal citations omitted). The district court, in denying Trinity's emergency motion, ruled that since the search had already taken place, Trinity was required under Baldwin Metals Co. v. Donovan, 642 F.2d 768 (5th Cir. Unit A Apr. 1981), to exhaust administrative remedies. The court then ruled that it was inappropriate for it to exercise equitable jurisdiction. Instead of appealing that ruling, Trinity presented its claims to the ALJ.

The law of the case doctrine does not apply. No previous appellate decision has established any law for this case. Moreover, the district court did not rule, as the

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Department of Labor claims, that "there was no evidence [that] Trinity's constitutional rights had been disregarded." The court merely said, for purposes of determining whether equitable jurisdiction was appropriate, that Trinity's constitutional rights had not been unambiguously disregarded.

Finally, the Department's argument is altogether off-track because, even if the law of the case doctrine did apply, the Department misses the point of Trinity's argument. Trinity does not dispute that the exhaustion requirement is the law once an inspection has taken place; Trinity instead urges that before an inspection pursuant to an administrative warrant takes place, an employer has a constitutional right to challenge the warrant's validity in a contempt hearing, and that it is that right that has been violated. The law of the case doctrine, therefore, is beside the point.

IV.

The heart of Trinity's case is its claim that there is a constitutional right --an amalgam of the Fourth and Fifth Amendments1 --to contest an administrative warrant's validity in federal court before its execution. Otherwise, Trinity argues, an unconstitutional search could escape federal court review if OSHA merely declines to issue citations, leaving no administrative forum to hear the claim. To give force to this pre-execution right, Trinity contends that an administrative warrant cannot be forcefully executed, but that, instead, OSHA must commence civil contempt proceedings against recalcitrant targets.

Though there is some dicta from this court and others that supports Trinity's claim, and other dicta that cuts against it, this specific question is one of first impression. We agree with the ALJ that there 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.

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.2 There is no danger of an unremedied constitutional wrong.

A.

Before the Supreme Court decided See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and its companion case, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), non-criminal regulatory inspections could be conducted without a warrant. In Barlow's, 436 U.S. at 312, 98 S.Ct. 1816, the Court extended See and Camara to OSHA, holding that, despite the language

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of the Occupational Safety and Health Act, 29 U.S.C. § 657(a) (the "OSH Act"), 3 the Fourth Amendment requires administrative warrants for non-consensual OSHA inspections.

In Barlow's, 436 U.S. at 312, 98 S.Ct. 1816, the Court, over a spirited dissent, reasoned that "[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property" and that without a warrant requirement, he is at risk of "arbitrary invasions" by "government officials." In light of Barl...

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