Establishment Inspection of Kohler Co., In re

• Decision Date: 04 June 1991
• Docket Number: No. 90-1990,90-1990
• Citation: 935 F.2d 810
• Parties: 15 O.S.H. Cas.(BNA) 1076, 1991 O.S.H.D. (CCH) P 29,371 In re ESTABLISHMENT INSPECTION OF KOHLER COMPANY. Appeal of KOHLER CO.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 810

935 F.2d 810

15 O.S.H. Cas.(BNA) 1076, 1991 O.S.H.D. (CCH)

P 29,371

In re ESTABLISHMENT INSPECTION OF KOHLER COMPANY.

Appeal of KOHLER CO.

No. 90-1990.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1991.

Decided June 4, 1991.

Stephen A. Ingraham, Asst. U.S. Atty., Office of U.S. Atty., Milwaukee, Wis., Bruce Justh, Dept. of Labor, Appellate Litigation, Washington, D.C., Cyrus A. Alexander, Dept. of Labor, Chicago, Ill., for petitioner-appellee.

Timothy P. Payne, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Paul H. Ten Pas, Kohler, Wis., for respondent-appellant.

Before CUMMINGS, POSNER, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Respondent Kohler Company seeks to quash an administrative search warrant issued to the Occupational Safety and Health Administration (OSHA). Kohler claims that OSHA lacked probable cause to inspect its plant. OSHA has completed the inspection and maintains that the case is moot. Kohler has not exhausted the administrative remedies available to it, however, and we decline to enter the fray before the Occupational Safety and Health Review Commission (OSHRC or Review Commission) acts. We therefore dismiss Kohler's appeal.

I.

Kohler manufactures sanitary and other plumbing fixtures at its plant in Kohler, Wisconsin. On January 11, 1990, the OSHA office in Appleton, Wisconsin, received a formal complaint from a Kohler employee alleging the existence of a hazardous condition in the Kohler plant. The complaint stated that the employee and others had been injured in October 1989 when they slipped into a tank of cleaning fluid containing sodium hydroxide. After receiving the complaint, an OSHA compliance officer sought access to the plant to investigate the complaint, and asked to examine Kohler's 1988 and 1989 injury records to determine whether the number of injuries at Kohler's plant exceeded the national average. Kohler allowed OSHA to inspect the area around the cleaning tank, and provided injury records related to that area, but declined to produce injury records related to the rest of the plant. OSHA applied to a federal magistrate for an administrative search warrant that would require Kohler to produce the records and to submit to a comprehensive inspection of its entire facility if those records revealed that Kohler's injury rate exceeded the national average for manufacturing concerns. A magistrate issued the warrant on February 6, 1990.

Kohler continued to balk at providing the injury records to OSHA but ultimately relented. OSHA calculated Kohler's lost-work-day injury rate to be 8.2 per 100 employees, almost double the national average of 4.2 for manufacturing facilities. OSHA then attempted to conduct the wall-to-wall inspection authorized by the warrant, but Kohler refused to grant OSHA inspectors access to the plant. On February 16, 1990, Kohler filed a motion to quash the warrant and OSHA filed a cross-motion to show cause why Kohler should not be held in contempt for failing to honor the warrant. Without a hearing, the district court denied both motions on April 19, 1990, and ordered Kohler to submit to the inspection. Kohler filed a notice of appeal on May 1, 1990, and requested that the district court stay its order pending appeal. On May 8, while the district court was considering the stay application, Kohler permitted OSHA to begin its inspection; Kohler halted the inspection on May 17 when the court granted the stay. OSHA appealed the stay to this court, which lifted it on June 14, 1990. OSHA then proceeded to complete the inspection. Kohler has maintained its appeal of the district court's order denying its motion to quash the warrant.

II.

OSHA has completed its inspection of Kohler's manufacturing facility. Kohler's motion to quash the inspection warrant is therefore moot, it submits, because there is no meaningful relief available to Kohler should we determine that the warrant was invalid. OSHA recognizes that the possibility that evidence obtained during the inspection might be suppressed during subsequent administrative hearings would save the case from mootness, but maintains that the exclusionary rule does not apply to OSHA enforcement proceedings. That presents an interesting question, though not necessarily a dispositive one, since a determination that the OSHA inspectors lacked probable cause also could conceivably support a section 1983 action, giving Kohler another possible remedy for the unconstitutional search and rescuing the case from mootness. In any event, it is a question that is not yet ripe for our consideration as Kohler has not exhausted its administrative remedies.

OSHA has not raised Kohler's failure to exhaust administrative remedies. Our review of requirements of the Occupational Safety and Health Act of 1970 (OSH Act), however, convinces us that we are without jurisdiction to consider Kohler's challenge to the warrant that authorized OSHA's inspection. Section 10(a) of the OSH Act requires parties to contest OSHA citations before the Review Commission before obtaining judicial review. ¹ 29 U.S.C. Sec. 659. In addition, Sec. 11(a) of the Act provides that "no objection that has not been argued before the Commission shall be considered by the court...." 29 U.S.C. Sec. 660. We cannot, therefore, review a motion to suppress evidence in an OSHRC proceeding that has not been presented to the Review Commission. In this case, Kohler's motion to suppress comes in the guise of an appeal of the district court's order denying Kohler's motion to quash the warrant that authorized OSHA's inspection; the inspection has been completed and the only relief Kohler now seeks is suppression of the evidence garnered during the inspection. This is not a case like Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir.1978), in which the employer was able to avoid the exhaustion requirement by challenging a civil contempt citation in addition to raising constitutional claims. We thus face the same situation we would face had Kohler presented a motion to suppress evidence directly to us, and we are similarly constrained by the OSH Act from addressing the merits of that motion until it has been presented to the Review Commission. To address Kohler's motion to quash now would enable Kohler to circumvent the statutory exhaustion requirement.

That there are as yet no administrative proceedings at which Kohler can raise its fourth amendment objections to OSHA's inspection does not spare Kohler from the exhaustion requirement. Unless administrative hearings take place, there will be no occasion to suppress evidence. In any event, the Secretary of Labor tells us that she intends to issue citations to Kohler based on information obtained in the inspection, and "the only remaining relevance of [Kohler's] objections derives from the possibility of a future OSHA proceeding utilizing evidence acquired in the ... inspection." In re Establishment Inspection of Metal Bank of America, 700 F.2d 910, 915 (3d Cir.1983). The objections should therefore be addressed first in the OSHRC proceedings.

Courts usually require parties aggrieved by the action of an administrative agency to exhaust the process afforded them by the agency before turning to the courts for help. The exhaustion doctrine protects the autonomy of administrative agencies, respects administrative expertise, facilitates judicial review by ensuring a well-developed factual record, and promotes judicial economy by avoiding piece-meal review of cases and by giving the agency the opportunity to resolve the case to the parties' mutual satisfaction without judicial interference. See generally 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE Sec. 26:1 at 415 (2d ed. 1983). The rationale for applying the doctrine may be even stronger in the context of a case, like this one, that raises a constitutional question, because the exhaustion requirement enables courts to avoid deciding cases on constitutional grounds unnecessarily; during administrative proceedings the constitutional issue, or the entire case, for that matter, may be resolved favorably for the aggrieved party, obviating the need for the courts to address the constitutional claim. These considerations have led many circuits to require companies seeking to suppress evidence obtained during OSHA inspections to contest OSHA citations before the Review Commission before turning to the federal courts for relief. See, e.g., Secretary of Labor v. Trinity Indus., 1991 WL 9595 (OSHRC) (in which the Sixth Circuit Court of Appeals in an unpublished opinion denied motion to quash warrant after inspection had been completed due to petitioner's failure to exhaust administrative remedies); Robert K. Bell Enters. v. Donovan, 710 F.2d 673, 675 (10th Cir.1983); Metal Bank of America, 700 F.2d 910, 914-15 (3d Cir.1983); Baldwin Metals v. Donovan, 642 F.2d 768, 771-72 (5th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981); Matter of J.R. Simplot Co., 640 F.2d 1134, 1137 (9th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982); Babcock and Wilcox Co. v. Marshall, 610 F.2d 1128, 1137-38 (3d Cir.1979); Marshall v. Central Mine Equip. Co., 608 F.2d 719 (8th Cir.1979); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611 (1st Cir.1979); Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683 (9th Cir.1978); cf. Koppers Indus. v. EPA, 902 F.2d 756, 759 (9th Cir.1990) (challenge to EPA search held premature because administrative process incomplete).

Nevertheless, this Court has previously declined to apply the doctrine of exhaustion of administrative remedies in the context of challenges to OSHA inspections. See Federal Casting Div. v. Donovan, 684 F.2d 504, 507-08 (7th Cir.1982); Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 375-77 (7th Cir.1979). In Weyerhaeuser, we reasoned that exhaustion should not be required because administrative proceedings would not serve either of two...