751 F.2d 30 (1st Cir. 1984), 84-1329, Donovan v. Enterprise Foundry, Inc.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation751 F.2d 30
Docket Number84-1329.
PartiesRaymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, Appellant, v. ENTERPRISE FOUNDRY, INC., and John Legendre, Defendants, Appellees.
Date20 December 1984

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751 F.2d 30 (1st Cir. 1984)

Raymond J. DONOVAN, Secretary of Labor, United States

Department of Labor, Plaintiff, Appellant,

v.

ENTERPRISE FOUNDRY, INC., and John Legendre, Defendants, Appellees.

No. 84-1329.

United States Court of Appeals, First Circuit

December 20, 1984

Argued Sept. 12, 1984.

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Andrea C. Casson, Atty., U.S. Dept. of Labor, Washington, D.C., with whom Francis X. Lilly, Sol. of Labor, Frank A. White, Associate Sol. for Occupational Safety and Health, and Judith N. Macaluso, Asst. Counsel for Appellate Litigation, Washington, D.C., were on brief, for plaintiff, appellant.

Steven D. Silin, Lewiston, Me., with whom Jack H. Simmons and Berman, Simmons & Goldberg, Lewiston, Me., were on brief, for defendants, appellees.

Before COFFIN, Circuit Judge, ALDRICH and COWEN, [*] Senior Circuit Judges.

COWEN, Senior Circuit Judge.

Plaintiff, Raymond J. Donovan, the Secretary of Labor (Secretary), appeals from a judgment of the district court, 581 F.Supp. 1433, which quashed an administrative warrant authorizing an inspection of defendants' foundry by Occupational Safety and Health Administration (OSHA) inspectors and denied plaintiff's petition to hold defendants in civil contempt. The district court held the warrant invalid because it and its attachments did not show that defendants' premises had been selected for search based on a general, neutrally derived administrative plan, and because it provided no valid basis for the use of personal air sampling devices attached to the

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clothing of employees. For the reasons given, we reverse and remand.

I.

Defendant-appellee Enterprise Foundry, Inc., (Enterprise) is a manufacturer of molded cast-iron products with a worksite located in Lewiston, Maine. Its president is defendant-appellee John Legendre. Enterprise is an employer in the category of a "high hazard" industry, as defined by OSHA. Pursuant to OSHA's Scheduling System for Programmed Inspections as described in its Field Operations Manual Instructions for Inspection Scheduling, the Enterprise workplace was chosen for inspection in late 1983. An OSHA inspection officer appeared on the Enterprise premises in the afternoon of October 13, 1983, to inspect the worksite. His inspection was first postponed until the following day, and then refused altogether by Mr. Legendre, because the officer had no warrant.

Subsequently, on November 8, 1983, the inspection officer filed an application for an inspection warrant with the local United States Magistrate. The application stated that the Enterprise workplace had been chosen for inspection in accordance with the foregoing OSHA Scheduling System, pertinent portions of which were attached thereto. The application also stated that it was made pursuant to various statutes and regulations governing OSHA, including 29 U.S.C. Sec. 657, which sets forth the general authority and limitations of OSHA inspections, and 29 C.F.R. Sec. 1903.7, which gives OSHA officers the authority to take environmental samples by employing sampling devices attached to employees. However, the application did not state specifically that the inspection officer intended to utilize such personal sampling devices.

On the same day, the magistrate issued the warrant requested by the inspection officer. The warrant stated that probable cause had been shown for a programmed inspection of the Enterprise worksite. It stated that pursuant to the statutes and regulations cited by the inspection officer, as well as the leading Supreme Court cases pertaining to administrative searches, OSHA compliance officers were authorized to enter the premises of Enterprise:

to conduct a health inspection during regular working hours or at other reasonable times, and pursuant to 29 CFR Sec. 1903.7, attached hereto, to inspect and investigate in a reasonable manner and to a reasonable extent (including but not limited to the taking of photographs and area and environmental samples and personal samples by the use of personal sampling devices attached to the clothing of employees, * * * ) the workplace or environment where the work is performed by employees * * *.

Unlike the application, the warrant did not contain or have attached any of the written program information providing the standards by which Enterprise had been selected by OSHA for a site inspection.

On November 9, 1983, the inspection officer returned to the Enterprise worksite and presented the warrant to company officers. He was allowed to conduct only a 30-minute walkaround inspection that day. After consulting with counsel, the officers of Enterprise permitted him to return on November 16 to conduct a more thorough walkaround inspection, interview employees, and obtain bulk samples of work materials. However, the company still refused to permit him to attach air sampling devices to employees, stating that such devices would be burdensome to employees, would pose a potential safety hazard, and might be considered altogether unreasonable and outside the scope of OSHA statutes.

On December 2, 1983, the Secretary filed a Petition for Adjudication of Civil Contempt and Order to Show Cause with the district court. Following the district court's denial of the petition and quashing of the warrant, this appeal ensued.

II.

The primary ground for the district court's judgment was that the warrant and its attachments did not indicate the basis for the selection of Enterprise as the target for inspection. According to the district

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court, this finding was compelled by the leading Supreme Court case governing OSHA searches, Marshall v. Barlow's, Inc., 436 U.S. 307, 321, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1978), which holds that before a compulsory inspection can be deemed not to violate the Fourth Amendment, the government must provide:

[a] warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources. [Emphasis added by the district court.]

We think the district court misconstrued the thrust of the Supreme Court's reasoning in Barlow's. The concern behind the imposition of the warrant, as expressed in that case, was that:

The authority to make warrantless searches devolves almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search. A warrant, by contrast, would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria. Id. at 323, 98 S.Ct. at 1825-26.

The warrant requirement was therefore imposed so as to provide assurances from a neutral magistrate that an inspection would be conducted pursuant to a constitutionally sanctioned administrative plan, rather than the whims of an overly zealous inspecting officer. The mere existence of a warrant serves to satisfy this concern, because it indicates to an employer that the necessary review by a neutral official has taken place.

It is significant to note that in criminal cases, where stricter probable cause requirements apply than in administrative cases (Id. at 320, 98 S.Ct. at 1824), it is unnecessary to provide a recital of the reasons for a finding of probable cause on the face of the warrant. Such a recital had been required under Rule 41 of the Federal Rules of Criminal Procedure prior to 1972, but was eliminated in that year as "unnecessary paper work," because "[a] person who wishes to challenge the validity of a search warrant has access to the affidavits upon which the warrant was issued." Fed.R.Crim.P. 41(c) advisory committee note (1972).

In the instant case, as in criminal cases, defendants had access to the affidavits upon which the warrant in question was issued. If such affidavits do not provide sufficient indicia of probable cause, they can serve as the basis for a successful challenge to the warrant. See, e.g., In re Northwest Airlines, Inc., 587 F.2d 12, 15 (7th Cir.1978); Marshall v. Weyerhaeuser Co., 456 F.Supp. 474 (D.N.J.1978). Yet, the affidavits in this case appear to amply satisfy the administrative probable cause requirements of Barlow's, since they indicate that Enterprise was chosen as a target for inspection as part of a neutrally derived administrative plan. Indeed, defendants have nowhere challenged the sufficiency of these affidavits. Consequently, we find that there is no basis for invalidating the warrant on the ground that the magistrate who issued it was provided with an insufficient showing of probable cause.

We also find that the district court's reliance on this court's decision in Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir.1982), is misplaced. In that case, which dealt primarily with whether the administrative or criminal standard of probable cause applied to an OSHA inspection, we stated that the necessary probable cause was shown, because:

[t]he inspection program descriptions attached to the warrant application and to the warrant itself both described the program in detail, satisfying a specific requirement the Supreme Court seemed to impose in Barlow's, 436 U.S. at 323 n. 20 [98 S.Ct. at 1826 n. 20], * * * and provided enough information to show that Wollaston's selection was not arbitrary.

695 F.2d at 5. Although both the warrant and the application are mentioned in the above passage as sources of the necessary

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descriptive detail, it is apparent, from both the remainder of the Wollaston decision and the footnote in Barlow's cited above, that the principal focus in determining whether a showing of probable cause was made is on the application, not the warrant. We did not hold that the warrant in that case would have been invalid unless it showed on its face that the premises to be inspected had been...

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