In re Anthony Marano Co.
| Docket Number | 21-2661 |
| Decision Date | 18 October 2022 |
| Citation | 51 F.4th 722 |
| Parties | IN RE: Establishment Inspection of: ANTHONY MARANO COMPANY, 3000 S. Ashland Avenue, #100, Chicago, IL 60608 Appeal of: Anthony Marano Company |
| Court | U.S. Court of Appeals — Seventh Circuit |
Kimberly Herring, Matthew W. Horn, Attorneys, SmithAmundsen LLC, Chicago, IL, Robert B. Marcus, Attorney, Maksimovich & Associates, P.C., Lyons, IL, for Appellant.
Jing Acosta, David J. Tanury, Attorneys, Department of Labor, Office of the Solicitor, Chicago, IL, Juan Carlos Lopez, Attorney, Department of Labor, Office of the Solicitor, Washington, DC, Thomas P. Walsh, Attorney, Office of the United States Attorney, Chicago, IL, for Appellee.
Before Ripple, Scudder, and Kirsch, Circuit Judges.
Anthony Marano Company ("AMC" or "the company") brought this appeal following its unsuccessful motion to quash an administrative warrant issued by the district court at the request of the Occupational Safety and Health Administration ("OSHA"). Because the district court's order denying the motion to quash is not a final order for purposes of 28 U.S.C. § 1291, we dismiss the appeal for want of jurisdiction.
On July 9, 2021, an inspector for OSHA, Eloise Minett-Jackson, attempted to conduct an inspection of AMC, a fruit and vegetable wholesaler in Chicago, Illinois. AMC's management considered the timing of this inspection to be suspicious because the company was scheduled to go to trial on another OSHA matter four days later. AMC's management denied Minett-Jackson entry into its establishment.
On July 28, 2021, OSHA applied for an ex parte inspection warrant for AMC's facility. The warrant application, filed by Minett-Jackson, stated that it was "based upon a complaint from one of AMC's current employees."1 Specifically, on July 7, 2021, OSHA had received a telephonic complaint from an AMC employee, who had witnessed a forklift accident at the facility on March 26, 2021. The reporting employee recounted that the injured employee was cleaning up debris in the loading dock area when a forklift, moving in reverse, struck him in the back. Once impacted by the forklift, the employee fell forward and hit his head. Local emergency personnel transported him to a hospital where he received treatment for back, head, and neck injuries.
In the application for a warrant, Minett-Jackson further stated that, based on her training and experience, she knew that the described situation might constitute violations of the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. § 651 et seq., and the regulations issued pursuant to the Act. She specifically noted 29 C.F.R. § 1910.178, the regulation on safety requirements relating to operation and maintenance of powered industrial vehicles, which includes forklifts.
The magistrate judge issued the warrant.
When Minett-Jackson returned to AMC on August 2, 2021, with the warrant, the company again denied her entry.4 Two days later, it filed an emergency motion to stay the warrant and unseal the application. It asked the magistrate judge to stay execution of the warrant until OSHA provided the company with all documentation supporting its request for the warrant. It also requested time to file a motion to quash the warrant on the ground that it was not supported by probable cause.
In his response, the Secretary of Labor ("Secretary") maintained that the warrant was supported by probable cause. He further asserted that there is no right to pre-enforcement review of a warrant and urged the court to deny the company's motion on that ground. He also submitted that the warrant was based on an employee complaint that "met the criteria for an on-site inspection because the complaint allege[d] hazards covered by an Emphasis Program."5 The Secretary further urged the magistrate judge to deny AMC's request to unseal the warrant application. Finally, he filed a cross-motion for contempt.
On August 6, the magistrate judge held a telephonic hearing. Following the hearing, he entered a minute entry "provisionally grant[ing]" the request to unseal the application for the warrant, but postponing that action to give the Secretary an opportunity to submit "a set of warrant materials with proposed redactions."6 He took the rest of the motions under advisement.
Following the hearing, AMC also filed a motion to quash. The company maintained that the warrant lacked probable cause because OSHA had not "undertaken the required investigation into the employee complaint" so as to set forth "specific evidence of an existing violation."7 AMC also urged that the warrant be quashed because it was overbroad. According to the company, it "far exceed[ed] the scope of the alleged employee complaint" because the warrant covered "all areas and conditions relating to the operation and maintenance of forklifts."8 Finally, AMC submitted, the Emphasis Program could not support the finding of probable cause. In its view, in order to support probable cause, an Emphasis Program warrant must "be derived from neutral sources"; however, the OSHA Emphasis Program on which the warrant was based was triggered by an employee complaint and therefore was not "neutral."9
On August 20, the magistrate judge permitted a redacted version of the application to be made public but otherwise kept the application under seal. The judge also denied the emergency motion to stay. That decision was explained in an opinion and order entered on the same day. Observing that the issue was crucial to AMC's request to stay the execution of the warrant, the magistrate judge first rejected AMC's argument "that federal law, including the law of the Seventh Circuit, ‘is clear that there is a pre-enforcement right to judicial review of an administrative warrant.’ "10 In resolving this question, the magistrate judge first turned to the Supreme Court's decision in Marshall v. Barlow's, Inc. , 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), which had "extended the Fourth Amendment warrant requirement to administrative inspections, but in a limited fashion."11 He observed that:
In requiring OSHA to obtain an administrative inspection warrant from a neutral magistrate judge, the Supreme Court stated explicitly that "[p]robable cause in the criminal law sense is not required." Instead, probable cause justifying an administrative inspection 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].’ "12
The magistrate judge further noted that Barlow's had not addressed the process by which an employer could challenge a warrant. AMC, therefore, was asking the court to "extend Barlow's to hold that the Fourth Amendment not only requires a warrant for administrative searches ... but ... also requires the Secretary to refrain from executing issued warrants if the employer asks a federal court for a second level of judicial review of those warrants."13
The magistrate judge concluded, however, that such an extension would not be consistent with the case law that had developed since Barlow's , especially our decision in In re Establishment Inspection of Kohler Co. , 935 F.2d 810 (7th Cir. 1991). According to the magistrate judge, Kohler held that federal courts only had jurisdiction to entertain motions to quash that first had been presented to the agency for final adjudication. Thus, rather than requiring "federal courts [to] entertain challenges to the constitutional validity of administrative inspection warrants before the Secretary ha[d] a chance to execute them," Kohler actually "support[ed] the opposite position."14
The magistrate judge acknowledged that there was language in Kohler suggesting that the exhaustion requirement "was dependent on employers having an avenue for Article III review ... if the employer had no way to suppress the evidence obtained through the warrant in the administrative proceedings."15 Nevertheless, he believed that the language in Kohler was a response to OSHA's argument in that case "that the exclusionary rule did not apply in Review Commission proceedings."16 In the present case, however, the Secretary had argued explicitly that the exclusionary rule applied in administrative proceedings.
The magistrate judge then reviewed other cases cited by AMC, but determined that those authorities did not change his decision "that Anthony Marano ha[d] no pre-execution right to judicial review of the administrative inspection warrant."17
Having concluded that there is no pre-execution right to judicial review, the magistrate judge considered the factors for granting a stay:
(1) whether Anthony Marano ha[d] made a strong showing that it [wa]s likely to succeed on the merits of the motion to quash; (2) whether Anthony...
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