594 F.2d 1358 (10th Cir. 1979), 77-1139, Savina Home Industries, Inc. v. Secretary of Labor

Docket Nº:77-1139.
Citation:594 F.2d 1358
Party Name:SAVINA HOME INDUSTRIES, INC., Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents.
Case Date:March 23, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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594 F.2d 1358 (10th Cir. 1979)



SECRETARY OF LABOR and Occupational Safety and Health Review

Commission, Respondents.

No. 77-1139.

United States Court of Appeals, Tenth Circuit

March 23, 1979

Argued Aug. 10, 1978.

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[Copyrighted Material Omitted]

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Edgar William Dwire, Wichita, Kan., for petitioner Savina Home Industries, Inc.

William G. Staton, Dept. of Labor, Washington, D. C. (Carin A. Clauss, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Allen H. Feldman, Asst. Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., with him on the brief), for respondent Secretary of Labor.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This appeal involves multiple issues of constitutional law. Savina Home Industries, Inc. contends that various aspects of the Occupational Safety and Health Act of 1970, 1 are violative of the Constitution. Savina also challenges the constitutionality of a particular inspection by the Occupational Safety and Health Administration (OSHA). In addition, Savina asserts that a technical error in the Secretary's complaint against it amounted to an infringement of due process.

The essential facts relevant to this appeal may be briefly stated. Savina was employed as a general contractor on a commercial construction site in Wichita, Kansas. Various Savina employees were working on the site on January 6, 1975, when an OSHA compliance officer arrived for an inspection. The officer identified himself to Savina's foreman and was accompanied by him on the inspection. Various violations of OSHA safety regulations were identified, and Savina was served with proposed penalties totalling $470. Savina contested the citation, and the Secretary of Labor issued a formal complaint on February 11. Savina answered the complaint, and on September 4, 1975, a hearing was held before an administrative law judge.

Savina raised several constitutional arguments in the hearing, in addition to denying the particular violations alleged. The administrative law judge declined to hear the constitutional arguments, observing that the Occupational Safety and Health Review Commission lacked authority to make constitutional determinations on the very Act that gave it authority. After reviewing the proposed violations, the judge affirmed most of them but reduced the penalty to $275. Full review was directed by the Commission itself. On January 3, 1977, the

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Commission affirmed the order of the administrative law judge. This appeal followed. It is limited to questions of constitutional law. We will consider each of the issues raised, beginning with the one of greatest substance.


With the apparent objective of having this court declare inadmissible the evidence introduced against it in the administrative proceedings, Savina contends that OSHA warrantless inspection procedures violate the Fourth Amendment. While the present appeal was pending, the Supreme Court ruled in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), that nonconsensual OSHA inspections undertaken without warrants violate the Constitution. Savina relied on the Barlow's decision in oral argument, asserting that the OSHA search was nonconsensual and that a warrant should have been procured. The Secretary argues that the search was consensual and that, in any event, Savina lacked a legitimate privacy expectation in the construction site. He also contends that Barlow's is not retroactively applicable to the case at bar.

The Secretary's assertions regarding consent and expectation of privacy may be correct, but we are unable to verify them. Development of constitutionally significant facts in the record has not been sufficiently elaborate to enable us to decide the case on these grounds. 2 The paucity of the record in this respect is understandable in light of Savina's inability to make constitutional challenges in the administrative proceedings. 3

Our analysis of the Fourth Amendment issue must begin with a consideration of the applicability of the exclusionary rule to the case at bar. Even if the warrant protections of Barlow's are retroactively applicable to pre-Barlow's OSHA inspections, 4 a conclusion that the inspection in this case violated the Fourth Amendment would be of no practical significance in the absence of an exclusionary sanction. If the exclusionary rule were inapplicable, even if a constitutional violation were to be found, no remedy would be available in this case.

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Exclusionary rule issues were not addressed by the Supreme Court in Barlow's. No "search" had yet taken place, and the suit sought to prevent a warrantless inspection from ever occurring. The Supreme Court ruled that Fourth Amendment protections were applicable to OSHA compliance inspections. In the absence of consent to inspect, the inspector had to secure a warrant. Although it was concerned with Fourth Amendment principles, the Barlow's Court was not required to deal with Fourth Amendment sanctions.

The question of the exclusionary rule's general applicability to noncriminal contexts has not been decided by the Supreme Court. It is true that the Court declined to apply the rule in the civil tax case of United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), but it did so because, under the facts of that case, the deterrence purpose of the rule would not have been furthered by its invocation. 5 In contrast, the Court has approved application of the exclusionary rule in certain civil cases characterized by it as "quasi-criminal." 6 E. g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965).

Several lower courts have approved of the rule's application in civil and administrative cases. E. g., Midwest Growers Cooperative Corp. v. Kirkemo, 533 F.2d 455, 466 (9th Cir. 1976) (private suit against I.C.C.; dicta that motion to suppress is available to prevent I.C.C. use of illegally seized evidence); Pizzarello v. United States, 408 F.2d 579, 585-86 (2d Cir.) (IRS jeopardy assessment invalid when based on illegally seized evidence), Cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969); Knoll Associates v. FTC, 397 F.2d 530, 533-37 (7th Cir. 1968) (FTC order set aside because based on illegally obtained evidence); Powell v. Zuckert, 125 U.S.App.D.C. 55, 61-62, 366 F.2d 634, 640-41 (1966) (Air Force discharge proceeding remanded with instructions that charges based on illegally obtained evidence not be considered); Rogers v. United States, 97 F.2d 691 (1st Cir. 1938) (action to recover duties on imported liquors; judgment set aside because based on illegal evidence); Smyth v. Lubbers, 398 F.Supp. 777, 794-95 (W.D.Mich.1975) (civil rights action; determination that illegal evidence could not be used in college disciplinary proceedings); United States v. Stonehill, 274 F.Supp. 420, 425-26 (S.D.Cal.1967) (dicta that exclusionary rule should apply in appropriate civil cases; not applied, however, since search in question conducted by foreign officials against whom Fourth Amendment is not directed), Aff'd, 405 F.2d 738 (9th Cir. 1968), Cert. denied, 395 U.S. 960, 89 S.Ct. 2102, 23 L.Ed.2d 747 (1969); Lassoff v. Gray, 207 F.Supp. 843, 846-49 (W.D.Ky.1962) (civil tax assessment held invalid when based solely on evidence illegally seized by IRS).

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We believe the exclusionary rule would be applicable to OSHA proceedings involving inspections violative of the warrant requirements announced in Barlow's. 7 Such an application would be consistent with the principles announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and subsequent cases. Certainly considerations of preserving judicial integrity and deterring official lawlessness do not become inconsequential simply because an illegal search is conducted by the Department of Labor instead of by the Department of Justice.

Our views on the exclusionary rule's applicability to OSHA inspections violative of the Fourth Amendment do not provide an answer to the precise question before us. The question we must answer is whether evidence should be suppressed that was obtained in a pre-Barlow's OSHA inspection inconsistent with the warrant requirements announced in that case. In other words, assuming that the exclusionary rule would be available in any event, the issue is whether the rule is retroactively applicable to a pre-Barlow's inspection.

Conventional retroactivity analysis initially considers whether a given constitutional rule is "new" in the sense of clearly departing from prior authorities. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). If it is, then a three-point test is employed to determine whether the new constitutional standard should apply retroactively. This test...

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