Brock v. Brooks Woolen Co., Inc., 85-1424

Decision Date29 January 1986
Docket NumberNo. 85-1424,85-1424
Parties12 O.S.H. Cas.(BNA) 1625, 1986-1987 O.S.H.D. ( 27,491 William E. BROCK, United States Secretary of Labor, Petitioner, v. BROOKS WOOLEN COMPANY, INC., and Occupational Safety and Health Review Commission, Respondents.
CourtU.S. Court of Appeals — First Circuit

Andrea C. Casson, Asst. Counsel, Washington, D.C., for Appellate Litigation, U.S. Dept. of Labor, was on brief, for petitioner.

Edward Woll, Jr., with whom Katherine J. Ross, Sullivan & Worcester, Boston, Mass., were on brief, for respondents.

Before COFFIN and BOWNES, Circuit Judges, WYZANSKI, * Senior District Judge.

COFFIN, Circuit Judge.

This petition requires us to decide whether an administrative law judge erred when he invalidated a search warrant and vacated safety citations against the company subjected to the search. For reasons we discuss below, we affirm.

FACTS

Brooks Woolen Co. (Brooks) produces textiles at a plant in Sanford, Maine. On October 3, 1978, a compliance officer for the Occupational Safety and Health Administration (OSHA) received a telephoned In January 1979, while Commission proceedings were pending, Brooks filed an action in federal court in Massachusetts challenging the warrant application for failing to establish probable cause and seeking suppression of the evidence obtained in the inspection of Brooks' facility. The district court dismissed Brooks' action on October 19, 1979, finding that Brooks had failed to exhaust its administrative remedies and that it had not met its burden of demonstrating that its objections to the warrant required an evidentiary hearing.

complaint from an employee of Brooks alleging unsafe conditions relating to carding machines in the plant. Two weeks later, the compliance officer sought to conduct an inspection of the plant, but the company refused to allow it. The compliance officer obtained a warrant from a United States magistrate and eventually inspected Brooks' workplace pursuant to the warrant. OSHA subsequently cited Brooks for a number of alleged violations of the Occupational Safety and Health Act of 1970, 29 U.S.C. Secs. 651-678. Brooks contested the citations, which triggered proceedings before the Occupational Safety and Health Commission (the Commission).

Meanwhile, Brooks had simultaneously been challenging the sufficiency of the warrant affidavit in proceedings before the Commission. At a hearing on August 16, 1979, the Commission ALJ denied Brooks' motion to stay the administrative proceedings in light of the federal court action, and granted Brooks discovery "relevant to the claim that the warrant application contained one or more false statements made knowingly, intentionally or with reckless disregard for the truth". A hearing on Brooks' motion to suppress was held October 9, 1979, ten days before the district court dismissed the complaint before it. On March 27, 1980, the ALJ issued his decision, invalidating the warrant, suppressing the evidence obtained during the inspection, and vacating the citations against Brooks.

The Secretary of Labor petitioned for review, which was granted, but the Review Commission was unable to obtain the majority vote needed to take affirmative action. The Review Commission therefore agreed to vacate the direction for review, leaving the ALJ's decision as the final Commission order. The Secretary then appealed to this court.

DISCUSSION

The central question of this case is whether the ALJ was justified in invalidating the warrant to search Brooks' plant. The Secretary claims that the ALJ's decision was based primarily on evidence obtained through discovery that never should have been granted. The Secretary argues that Brooks failed to make a sufficient showing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to entitle it to a subfacial challenge to the warrant application. In Franks, the U.S. Supreme Court held that a hearing on the veracity of a warrant application is mandated only upon a substantial preliminary showing that the warrant affidavit contained deliberate or reckless falsehoods necessary to the probable cause finding. Id. at 155-56, 98 S.Ct. at 2676. Moreover, the Secretary argues, the district court's dismissal of Brooks' action was res judicata on the issue of whether Brooks was entitled to discovery and an evidentiary hearing.

To dispose first of the res judicata point, we note that by the time the district court decision was issued, the ALJ already had granted discovery and held a suppression hearing. It can hardly be that the federal court judgment precluded something which had occurred before the judgment was issued. 1 In addition, we do not believe the district court decided that Brooks was not entitled to an evidentiary hearing before the ALJ on its warrant challenge. The text of the district court opinion reads, in its entirety, as follows:

"It is undisputed that plaintiff has not exhausted its administrative remedies. See 29 U.S.C. 659, 660, 661. Indeed, plaintiff concedes that it has had a hearing before the administrative law judge on the very issue before this court, and that the administrative law judge has the matter under advisement.

"Moreover, plaintiff has not sustained its burden of demonstrating that its objections to the OSHA warrant require an evidentiary hearing. See In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir.1979).

"Defendants' [sic] motion to dismiss is granted."

Rather than holding that Brooks was not entitled to an evidentiary hearing at all, this opinion seems to recognize that a hearing in federal court was not appropriate. Indeed, this seems to be the only sensible interpretation of the two-paragraph order. If the district court had been ruling that no evidentiary hearing was appropriate in this case, he would not have included the first paragraph, which appears to accept Brooks' right to the already conducted administrative hearing. Moreover, this reading is consistent with our opinion in Quality Products, relied on by the district court. We held there that a party must pursue its administrative remedy unless it "clearly demonstrates that [its] constitutional rights cannot be adequately adjudicated in the pending or anticipated enforcement proceeding...." 592 F.2d at 615. At the time Quality Products was decided, we believed that, as a matter of policy, the Commission would not conduct a hearing on the veracity of a warrant affidavit, id. at 615 n. 7, 616-17, and so we suggested that a Franks v. Delaware challenge might have to be resolved in the district court. Id. at 616-17. In this case, however, the district court recognized that the Commission already had held a hearing to probe the veracity of the warrant, and there was thus no reason to lift the normal exhaustion requirement.

As to the propriety of the grant of discovery and an evidentiary hearing, we note first that the Secretary failed to object when the ALJ first announced, at the August 16, 1979, hearing on Brooks' motion to stay the administrative proceedings, that Brooks was entitled to discovery on the issue of probable cause. 2 Between that time and the next proceeding in the case, Brooks deposed two OSHA employees. On September 17, when the ALJ held a brief hearing before rescheduling the suppression hearing that had been set for that day, the Secretary lodged an objection only to the specific order that it disclose to Brooks a document entitled the "High Hazard Industry Inspection Planning Guide", a page of which had been attached to the warrant application. The Secretary did not challenge the underlying assumption that Brooks was entitled to discovery in support of its probable cause challenge, nor did the Secretary challenge the ALJ's order for production of the full text of the employee complaint which led to the OSHA inspection. It was not until September 18, when the Secretary filed a motion seeking rescission of the ALJ's order for production of the high hazard guide, that the Secretary emphasized the limited nature of the warrant challenge mandated by Franks v. Delaware. In that document, however, as well as at the suppression hearing held on October 9, the Secretary's Franks argument was confined to the issue of the high hazard guide and whether he should be required to disclose it to Brooks. 3

We believe this history amounts to waiver by the Secretary of the argument that Brooks failed to meet the threshold requirements laid out in Franks v. Delaware for making a subfacial challenge to a search warrant application. 4 Without deciding whether Brooks, in fact, met the Franks requirements, or whether it needed to, we thus shall consider only whether the ALJ, in light of all the evidence before him, properly invalidated the warrant to search Brooks' plant, and whether he then properly suppressed the evidence obtained in the search. See West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 959-60 (11th Cir.1982) (not reversible error to hold Franks hearing without proper showing).

We emphasize that our approach does not mean that we endorse granting discovery and an evidentiary hearing on the validity of an OSHA search warrant affidavit without some showing of probable falsity. We recognize that the Supreme Court had several substantial considerations in mind when it narrowly circumscribed the situations in which a subfacial warrant challenge is required. See Franks v. Delaware, 438 U.S. at 164-67, 98 S.Ct. at 2680-81. We also concede the importance of enforcing the Occupational Safety and Health Act without undue delay. See West Point-Pepperell, Inc. v. Donovan, 689 F.2d at 960. At the same time, however, we observe that Franks does not proscribe scrutiny of warrant affidavits in the absence of the substantial showing that that case specifies; Franks merely holds that subfacial challenges are not mandated to protect a defendant's constitutional rights unless...

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    ...easily and deleted, [the application at issue] suffered from the cumulative effect of its multiple problems." Brock v. Brooks Woolen Co., Inc., 782 F.2d 1066, 1072 (1st Cir.1986). See also Ailemen, 986 F.Supp. at 1241 ("Due to the large number of misrepresentations and the deceptive conduct......
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