625 F.2d 1313 (7th Cir. 1980), 79-1853, Burkart Randall Div. of Textron, Inc. v. Marshall

Docket Nº:79-1853.
Citation:625 F.2d 1313
Party Name:BURKART RANDALL DIVISION OF TEXTRON, INC., a corporation, Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, U. S. Department of Labor, et al., Defendants-Appellees.
Case Date:May 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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625 F.2d 1313 (7th Cir. 1980)

BURKART RANDALL DIVISION OF TEXTRON, INC., a corporation,

Plaintiff-Appellant,

v.

Ray MARSHALL, Secretary of Labor, U. S. Department of Labor,

et al., Defendants-Appellees.

No. 79-1853.

United States Court of Appeals, Seventh Circuit

May 27, 1980

Argued Jan. 24, 1980.

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William T. Weidle, Jr., St. Louis, Mo., for plaintiff-appellant.

Charles I. Hadden, Corin A. Clauss, Benjamin W. Mintz, Allen H. Feldman, Thomas L. Hotzman, Washington, D. C., for defendants-appellees.

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Before FAIRCHILD, Chief Judge, and SPRECHER and WOOD, Circuit Judges.

SPRECHER, Circuit Judge.

Plaintiff Burkart Randall Division of Textron, Inc. (Burkart) filed suit in the court below seeking declaratory and injunctive relief prohibiting an attempted inspection of its Cairo, Illinois facility by a compliance officer of the Occupational Safety and Health Administration (OSHA). In an order entered July 9, 1979, the district court denied plaintiff's motion for summary judgment, granted OSHA's motions for summary judgment and to compel compliance with the inspection warrant issued to the compliance officer, and held plaintiff in civil contempt for failure to comply with the warrant. Burkart appeals from this order on several grounds. First, Burkart contends that the district court erred as a matter of law in applying a relaxed probable cause standard in a case in which traditional, criminal probable cause should have been required. Second, Burkart argues that regardless of the appropriate probable cause standard, the warrant in this case was not properly issued because the facts offered by OSHA in support of its warrant application fail to satisfy even the relaxed standard applied by the district court. Finally, Burkart asserts that even if probable cause did exist for issuance of a warrant, the warrant issued here is invalid because overbroad in scope. We conclude that the district court applied the proper probable cause standard, that this standard was satisfied and the warrant properly issued, and that the warrant is not overbroad in scope. Accordingly we affirm the judgment appealed from.

I

On May 26, 1978, an OSHA, compliance officer appeared at plaintiff's Cairo, Illinois facility for the purpose of conducting an inspection of the premises to insure compliance with the Occupational Safety and Health Act of 1970 (Act), 29 U.S.C. §§ 651-78. Plaintiff refused to permit the inspection because the officer did not have a warrant. On August 2, 1978, the officer went before a United States Magistrate with an application for an inspection warrant. The sworn application stated that OSHA had received, on February 9 and March 13, 1978, complaints from two employees of Burkart. The complaints had described specific unsafe and unhealthful conditions at plaintiff's facility. 1 On the basis of this information, OSHA had determined that there were reasonable grounds to believe violations of the Act existed at that facility and therefore sought a warrant to inspect the premises to uncover these and other violations. The Magistrate found that probable cause existed and accordingly issued the requested warrant.

Plaintiff filed this action the following day, August 3, 1978, and obtained a temporary restraining order prohibiting enforcement of the warrant. That prohibition was extended during the proceedings below. In the district court, plaintiff argued that while a relaxed probable cause standard is appropriate when a warrant is sought for an inspection to be conducted pursuant to a reasonable legislative or administrative plan, inspections induced by employee complaints must be judged according to the criminal probable cause standard. According to plaintiff, OSHA's warrant application fell far short of meeting this standard. Alternatively, plaintiff argued that even if

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relaxed, administrative probable cause was all OSHA need show in this case, such a showing had not been made as illustrated by OSHA's failure to satisfy even the minimal requirements of reasonableness and informant reliability established by the Act, 29 U.S.C. § 657(f)(1). Finally, plaintiff argued that the warrant, even if properly issued, was overbroad in scope because it authorized an inspection of the entire premises when the probable cause, if any, related to limited portions of Burkart's facility.

The district court initially agreed with Burkart. In an order entered January 8, 1979, the court enjoined execution of the warrant because the warrant application failed to show that the proposed inspection was pursuant to a reasonable administrative or legislative plan and failed to give any indication of the reliability of the employee-informants. OSHA filed a motion to amend this judgment in light of our decision of January 2, 1979 in In the Matter of: Establishment Inspection of: Gilbert & Bennett Mfg. Co, 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). The district court granted the motion and found that, under Gilbert & Bennett, the warrant application need not demonstrate the reliability of the informant. On this basis it ruled that its initial order had been in error in imposing such a requirement and accordingly found the warrant supported by probable cause. Burkart appeals from this order, raising the arguments described above.

II

Section 8(a) of the Act, 29 U.S.C. § 657(a), 2 authorizes the Secretary of Labor to enter and inspect workplaces in order to carry out the purposes of the Act. Although section 8(a) itself does not indicate whether warrants are necessary for such inspections, after Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), it is clear that a nonconsensual OSHA inspection may be conducted pursuant to section 8(a) only if a warrant is first obtained. Such a warrant is to issue only upon a showing of some degree of probable cause; precisely what degree is required in particular cases has been the topic of much post-Barlow's litigation and is the issue before us in this case. See, e. g., The Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1130 (3d Cir. 1979).

In Barlow's, the Supreme Court indicated that there are two alternative methods by which probable cause for an OSHA inspection may be established:

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular (establishment)." Camara v. Municipal Court, 387 U.S. (523), at 538, 87 S.Ct. (1727), at 1736 (15 L.Ed.2d 930.)

436 U.S. at 320-21, 98 S.Ct. at 1824 (footnote omitted). The parties agree, for purposes of this appeal, that under Barlow's, when a warrant is sought for an inspection to be conducted pursuant to a legislative or

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administrative plan, probable cause is to be judged according to the relaxed or flexible standard of administrative probable cause establish in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). Burkart argues, however, that application of this standard is inappropriate where the warrant is sought on the basis of "specific evidence of an existing violation," such as the employee complaints in this case. Because of the particularized suspicion, individualized focus and greater potential for harassment in the employee complaint situation, Burkart asserts that traditional criminal probable cause should be required to justify issuance of a warrant.

This court addressed and rejected precisely this contention in In the Matter of: Establishment Inspection of: Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979). 3 In Gilbert & Bennett, the employer argued that the Barlow's language quoted above should be interpreted to mean

that when a warrant is applied for on the basis of an employee complaint, the general standard of probable cause applied in criminal matters is required.

Id. at 1338. This court disagreed with that argument, placing great weight upon the specific statement of the Barlow's Court that "(p)robable cause in the criminal law sense is not required." Barlow's, supra, 436 U.S. at 320, 98 S.Ct. at 1824, quoted in Gilbert & Bennett, supra, 589 F.2d at 1338. 4 We also relied upon the Supreme Court's citation of See and Camara to find that administrative probable cause is the proper standard in employee complaint cases:

Because of the aforementioned quote from Barlow's negating the requirement of probable cause in the criminal sense and because the OSHA inspections involved in these appeals are similar to those in Camara and See, the less stringent probable cause test must be applied here.

589 F.2d at 1339. Thus, the position of this court in Gilbert & Bennett was that flexible, administrative probable cause, as established in Camara and See, is the appropriate standard for issuance of a warrant for an OSHA inspection whether the warrant is sought on the basis of an administrative plan or employee complaints.

Plaintiff urges that we reject this position in this case, arguing that it is based on a misinterpretation of the Barlow's opinion and that the "better reasoned view" counsels adherence...

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