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

Docket Nº:84-1329.
Citation:751 F.2d 30
Party Name:Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, Appellant, v. ENTERPRISE FOUNDRY, INC., and John Legendre, Defendants, Appellees.
Case Date:December 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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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...

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