IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 26, 2007
No. 06-60993 Charles R. Fulbruge III
Clerk
TRINITY MARINE PRODUCTS, INC.,
Petitioner,
v.
ELAINE CHAO,
Secretary, Department of Labor,
Respondent.
Petition for Review of an Order of
the Occupational Safety and Health Review Commission
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Over the objection of Trinity Marine Products, Inc. (“Trinity”), but pursu-
ant to an administrative search warrant, compliance officers from the Occupa-
tional Safety and Health Administration (“OSHA”) inspected a workplace owned
by Trinity and issued citations. Trinity claims that the search violated the Fifth
Amendment because OSHA threatened to arrest Trinity personnel who inter-
No. 06-60993
fered with the search, but the constitutionally required method to execute ad-
ministrative warrants when the targeted party refuses to acquiesce is to com-
mence a civil contempt proceeding, which OSHA did not do.
An administrative law judge (“ALJ”) heard and rejected Trinity’s argu-
ment. Trinity petitions for review. Because Trinity’s contention finds no sup-
port in the Constitution or precedent, we deny the petition.
I.
On October 21, 2004, as part of a general inspection program, compliance
officers from OSHA visited Trinity’s facility to conduct an inspection. Trinity
denied the inspectors entry with the explanation that its designated representa-
tive to OSHA was not present.
On November 30, OSHA obtained an administrative search warrant from
a United States magistrate judge. On December 8, the compliance officers, war-
rant in hand, returned to Trinity’s facility. Trinity officials asked for copies of
the warrant’s supporting documentation, which the compliance officers declined
to provide. Trinity then refused to permit the compliance officers to inspect the
facility.
The officers called an Assistant United States Attorney (“AUSA”), and
Trinity officials in turn phoned legal counsel. The AUSA advised Trinity’s coun-
sel that unless the compliance officers were allowed to inspect, federal marshals
would be dispatched. Trinity’s counsel rejoined that the proper procedure to en-
force an administrative warrant is to commence a contempt proceeding and not
forcefully to execute the warrant.
At an impasse, the compliance officers contacted their supervisors, who
told them to leave the facility. Shortly thereafter a federal marshal contacted
the compliance officers. With the help of three marshals, the officers returned
to the workplace and informed Trinity officials that unless the inspection went
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No. 06-60993
forward, the company’s officers would be arrested. The company assented.
When the marshals left, however, Charles Latiolais, Trinity’s designated
representative to OSHA, arrived and again forbade the inspection without first
reviewing the warrant’s supporting documentation. The compliance officers
telephoned the marshals, who threatened Latiolais that unless the inspection
was permitted, “somebody will be in chains.” The Trinity officials permitted the
inspection, stating that it was being allowed “under protest.”
Trinity filed an emergency motion in federal court to enjoin the inspection,
contending that the warrant lacked probable cause and that forceful execution
of an administrative warrant is unlawful. The compliance officers, however,
completed the inspection before the court held a hearing on Trinity’s motion. At
the hearing on December 9, OSHA successfully argued that because the warrant
had been executed, Trinity was required to exhaust its administrative remedies.
OSHA later issued citationsSSthe nature of which are not at issue hereSS
based on evidence obtained from the search. Before an ALJ, Trinity contested
the citations and raised its constitutional challenge and other arguments that
the search was unlawful, contending that the search’s illegality should result in
the suppression of evidence. The ALJ rejected those arguments, and the Oc-
cupation Safety and Health Review Commission (“OSHRC”) declined to review
the ALJ’s decision, thus making it a final order of OSHRC pursuant to 29 U.S.C.
§ 659(c). Trinity petitions this court, pursuant to 29 U.S.C. § 660, to review the
search’s legality.
II.
Trinity does not seek review of any of the ALJ’s factual findings. Thus, the
review of whether OSHA acted in accordance with Trinity’s constitutional rights
is de novo. United States v. Villanueva, 408 F.3d 193, 200 (5th Cir. 2005).
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No. 06-60993
III.
Before addressing Trinity’s constitutional claim, we must decide whether
the law of the case doctrine somehow limits the arguments available to Trinity.
The Department of Labor contends that because Trinity did not appeal the dis-
trict court’s December 9 rulings, the doctrine applies, suggesting that this court
is bound by the determination of the district court. That argument misstates the
law (and the district court’s ruling) and is irrelevant.
“The law of the case doctrine provides that ‘an issue of law or fact decided
on appeal may not be reexamined either by the district court on remand or by
the appellate court on a subsequent appeal.’” Fuhrman v. Dretke, 442 F.3d 893,
896 (5th Cir. 2006) (internal citations omitted). The district court, in denying
Trinity’s emergency motion, ruled that since the search had already taken place,
Trinity was required under Baldwin Metals Co. v. Donovan, 642 F.2d 768 (5th
Cir. Unit A Apr. 1981), to exhaust administrative remedies. The court then
ruled that it was inappropriate for it to exercise equitable jurisdiction. Instead
of appealing that ruling, Trinity presented its claims to the ALJ.
The law of the case doctrine does not apply. No previous appellate decision
has established any law for this case. Moreover, the district court did not rule,
as the Department of Labor claims, that “there was no evidence [that] Trinity’s
constitutional rights had been disregarded.” The court merely said, for purposes
of determining whether equitable jurisdiction was appropriate, that Trinity’s
constitutional rights had not been unambiguously disregarded.
Finally, the Department’s argument is altogether off-track because, even
if the law of the case doctrine did apply, the Department misses the point of
Trinity’s argument. Trinity does not dispute that the exhaustion requirement
is the law once an inspection has taken place; Trinity instead urges that before
an inspection pursuant to an administrative warrant takes place, an employer
has a constitutional right to challenge the warrant’s validity in a contempt hear-
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No. 06-60993
ing, and that it is that right that has been violated. The law of the case doctrine,
therefore, is beside the point.
IV.
The heart of Trinity’s case is its claim that there is a constitutional rightSS
an amalgam of the Fourth and Fifth Amendments1SSto contest an administra-
tive warrant’s validity in federal court before its execution. Otherwise, Trinity
argues, an unconstitutional search could escape federal court review if OSHA
merely declines to issue citations, leaving no administrative forum to hear the
claim. To give force to this pre-execution right, Trinity contends that an admin-
istrative warrant cannot be forcefully executed, but that, instead, OSHA must
commence civil contempt proceedings against recalcitrant targets.
Though there is some dicta from this court and others that supports Trini-
ty’s claim, and other dicta that cuts against it, this specific question is one of
first impression. We agree with the ALJ that there is no constitutional right to
a pre-execution contempt hearing and that administrative warrants, like crim-
inal warrants, can be executed by means of reasonable force.
Trinity’s so-called right finds no support in the Constitution’s text or his-
tory and has never been blessed by the Supreme Court. In fact, the best reading
of the leading Supreme Court case on point, Marshall v. Barlow’s, Inc., 436 U.S.
307 (1978), is decidedly against Trinity’s claim. This is not surprising, because
Trinity’s argument makes no sense: Just as in the criminal context where a
search by federal officers violates a suspect’s constitutional rights but no charges
are filed, a victim of an unconstitutional administrative search can affirmatively
1
The administrative warrant requirement is derived from the Fourth Amendment.
Trinity claims that the right to a contempt hearing to challenge the administrative warrant
before its execution comes from the Fifth Amendment.
5
No. 06-60993
bring the grievance before a federal tribunal by means of a Bivens suit.2 There
is no danger of an unremedied constitutional wrong.
A.
Before the Supreme Court decided See v. City of Seattle, 387 U.S. 541
(1967), and its companion case, Camara v. Municipal Court, 387 U.S. 523 (1967),
non-criminal regulatory inspections could be conducted without a warrant. In
Barlow’s, 436 U.S. at 312, the Court extended See and Camara to OSHA, holding
that, despite the language of the Occupational Safety and Health Act, 29 U.S.C.
§ 657(a) (the “OSH Act”),3 the Fourth Amendment requires administrative war-
rants for non-consensual OSHA inspections.
In Barlow’s, 436 U.S. at 312, the Court, over a spirited dissent, reasoned
that “[t]he businessman, like the occupant of a residence, has a constitutional
right to go about his business free from unreasonable official entries upon his
private commercial property” and that without a warrant requirement, he is at
risk of “arbitrary invasions” by “government officials.” In light of Barlow’s, it is
not uncommon for an employer to exercise this constitutional right to require
OSHA to present a warrant.4
These administrative warrants are distinguishable from traditional crim-
inal warrants in a number of ways. They have, for instance, a differentSSlin-
2
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
3
See 1 ROSCOE B. HOGAN & ROBERT D. MORAN, OCCUPATIONAL SAFETY AND HEALTH
ACT § 4.02[1][a] (2007) (“The plain language of the OSH Act states that inspectors, upon
presenting their credentials, are authorized to enter a business without delay to inspect for
OSHA violations.”).
4
In fact, “many companies have adopted a policy prohibiting warrantless searches of
their premises.” Id. “If permission to inspect is not obtained, OSHA will then have to decide
whether to seek a warrant or to give up on the attempt to inspect.” Id. § 5.01[4].
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No. 06-60993
guistically idiosyncratic5SS“probable” cause standard: Probable cause may be
based either on specific evidence of an existing violation, as in the traditional
criminal context, or on a lesser showing that “reasonable legislative or adminis-
trative standards for conducting an inspection are satisfied with respect to a
particular establishment.” Id. at 320.
Administrative warrants also differ from traditional criminal warrants in
that the exhaustion-of-administrative-remedies doctrine applies, meaning that
an employer who wishes to challenge a warrant cannot immediately file a motion
in district court to suppress the evidence after the warrant has been executed.
In Baldwin Metals, 642 F.2d at 771-75, we held that the employer is required to
raise any challenges to the search before OSHRC, with review ultimately by the
court of appeals.
At least in general practice, administrative warrants are different from
criminal warrants also in how they are executed: If an employer refuses to allow
OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA
to bring an action for contempt against the employer.6 This differs from a
5
Barlow’s, 436 U.S. at 326-27 (Stevens, J., dissenting) (“The warrant requirement is
linked ‘textually . . . to the probable-cause concept’ in the Warrant Clause. The routine OSHA
inspections are, by definition, not based on cause to believe there is a violation on the premises
to be inspected. . . . Because of the acknowledged importance and reasonableness of routine
inspections in the enforcement of federal regulatory statutes such as OSHA, the Court recog-
nizes that requiring full compliance with the Warrant Clause would invalidate all such inspec-
tion programs. Yet, rather than simply analyzing such programs under the ‘Reasonableness’
Clause of the Fourth Amendment, the Court holds the OSHA program invalid under the War-
rant Clause and then avoids a blanket prohibition on all routine, regulatory inspections by re-
lying on the notion that the ‘probable cause’ requirement in the Warrant Clause may be re-
laxed whenever the Court believes that the governmental need to conduct a category of ‘search-
es’ outweighs the intrusion on interests protected by the Fourth Amendment.”) (quoting South
Dakota v. Opperman, 428 U.S. 364, 370 n.5 (1976)).
6
Trinity argues that it could find only one caseSSinvolving a state administrative agen-
cySSin which an administrative warrant was executed by forceful entry and not civil contempt.
Though it is true that there are many reported cases in which contempt was sought, Trinity
overstates its case. In Baldin Metals it appears that OSHA forcefully executed an adminis-
trative warrant. See Baldwin Metals, 642 F.2d at 771 nn.5, 6. Whether the searches in Bald-
(continued...)
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No. 06-60993
criminal warrant; with “an honest-to-goodness criminal search warrant,” the
government will get “hold of a sledgehammer . . . and [break] down [the] door.”
In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988).
“Although moviegoers who remember the environmental police in the movie
Ghostbusters will be surprised, the practice of allowing the target of an adminis-
trative warrant to forbid entry and thereby convert the warrant proceeding into
a contempt proceeding is the standard method of enforcing such warrants.” Id.
Indeed, “[e]ven the compliance officers of the Drug Enforcement Agency [sic] are
unarmed when executing administrative search warrants . . . .” Id.
B.
The issue presented in this case, however, is whether the Constitution for-
bids the forceful execution of an administrative warrant; as stated by the ALJ,
“[a]lthough a civil contempt proceeding or a hearing on a motion to quash the
warrant are [sic] possible options, nothing precludes the use of U.S. Marshals to
enforce a warrant.” To support its claim that contempt is constitutionally man-
dated, Trinity cites a number of cases from this and other circuits and a pair of
policy arguments.
The sole case relied on by the ALJ, however, was Marshall v. Shellcast
Corp., 592 F.2d 1369 (5th Cir. 1979),7 in which OSHA obtained a warrant to
search two foundries belonging to a single employer. The employer stated that
it “would continue to refuse OSHA access to [its] foundries.” Id. at 1370. OSHA
“then filed complaints in federal district court asking the court to order [the em-
6
(...continued)
win Metals were permissible, however, was not before the court.
7
On appeal, the Department of Labor briefly cites Shellcast but principally makes a
broader argument that Mathews v. Eldridge, 424 U.S. 319 (1976), allows a post-execution re-
view of a warrant and that Trinity cannot establish the stringent standards, announced there-
in, for pre-deprivation review.
8
No. 06-60993
ployer] to permit the inspections.” Id. We held that the district court lacked jur-
isdiction to hear OSHA’s complaints, because OSHA was not statutorily author-
ized to seek injunctions to enforce warrants.
Explaining why the statutory framework did not permit OSHA to seek
injunctions, we noted that “Congress, desiring an enforcement scheme based on
surprise and undelayed searches, would very much prefer immediate execution
of duly-issued Ex parte warrants” and that seeking an injunction when OHSA
already has a warrant “is redundant. The warrant already issued . . . fully au-
thorizes the Secretary to ‘enter without delay’ and ‘inspect and investigate’ the
premises of even unconsenting employers.” Id. at 1372.8
We added this footnote:
We see a search warrant as a full and complete judicial authori-
zation for a search potentially subject to a presearch attack on con-
stitutional grounds, of course . . . but otherwise binding on the em-
ployer who does not consent to the search. If necessary, physical
force is available for the execution of the warrant. See[, 387 U.S. at
545-46] (“administrative entry, without consent, upon the portions
of commercial premises which are not open to the public may . . . be
compelled through . . . physical force within the framework of a
warrant procedure”). And of course the employer who attempts to
resist execution of the warrant risks being held in contempt.
Id. at 1372 n.7 (emphasis added).9
8
At first blush, this holding in Shellcast appears to be in tension with the process that
Trinity claims is constitutionally required: If OSHA cannot seek to have the court hold an em-
ployer in contempt, how would a contempt hearing come about? The distinctionSSthough not
spelled out in ShellcastSSis the difference between an injunction and contempt. An injunction
is “[a] court order commanding or preventing an action.” BLACK’S LAW DICTIONARY 800 (8th
ed. 2004) (“injunction”). With contempt, however, “[t]he usual sanction is to confine the con-
temnor until he or she complies with the court order,” because “[a] civil-contempt proceeding
is coercive or remedial in nature.” Id. at 336 (“contempt”).
9
The ALJ did not rely directly on See to support its contention. That is sound, because
the issue in See and its companion case, Camara, was whether municipal regulatory inspection
schemes that provide for entry without a warrant are constitutional. Any statement, therefore,
beyond that threshold questionSSsuch as how an administrative warrant can be exe-
(continued...)
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No. 06-60993
Citing that footnote, the ALJ ruled that we have already countenanced the
use of physical force in executing administrative warrants. Trinity, on the other
hand, argues that the footnote is merely dictum, because the issue of “physical
force” was not before this court, and that Judge Goldberg, the author of Shell-
cast, did not accord the footnote precedential value in subsequent cases.
Trinity, for instance, points to language in a number of cases, some written
by Judge Goldberg, that it argues demonstrates that administrative warrants
cannot be executed by force. First cited is Brock v. Gretna Machine & Ironworks,
769 F.2d 1110 (5th Cir. 1985). There, OSHA obtained an administrative war-
rant, but the employer “refused access.” Id. at 1111. Civil contempt was sought,
and “Gretna answered the complaint and counterclaimed, seeking a declaratory
judgment that the inspection warrant was violative of its fourth amendment
guarantees.” Id. We vacated the district court’s decision, holding that OSHA’s
warrant application was “fatally defective.” Id. at 1113. Before addressing the
flaws in the warrant application, however, we commented on the employer’s re-
fusal to allow OSHA access to inspect, stating that “Gretna had the option of
seeking to quash the warrant before execution or, as it did, refuse entry and
challenge the warrant in resulting civil contempt proceedings.” Id. at 1111 n.3.
The ALJ rightly noted that “[t]he threat of physical force was never at is-
sue” in Gretna, so the statement was dictum. Moreover, the footnote does not
even necessarily support Trinity’s position. Although it can be read to mean that
it is impermissible to execute an administrative warrant by force, it can also be
interpreted more narrowly to mean that an employer has “the option” to chal-
9
(...continued)
cutedSSwas dictum. In fact, the See Court expressly limited its holding, noting that “constitu-
tional challenge to such programs can only be resolved . . . on a case-by-case basis under the
general Fourth Amendment standard of reasonableness. We hold only that the basic compon-
ent of a reasonable search . . .SS[that] it not be enforced without a suitable warrant proce-
dureSSis applicable in this context . . . .” See, 387 U.S. at 545-46.
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No. 06-60993
lenge a warrant in contempt proceedings only where OSHA has elected not to ex-
ecute the warrant forcefully.10
Trinity next cites Department of Labor v. Kast Metals Corp., 744 F.2d
1145, 1147 (5th Cir. 1984), in which OSHA obtained an administrative warrant,
but the employer “allowed access only to the company’s records and denied entry
to conduct a physical examination of the workplace.” The employer successfully
moved in the district court to quash the warrant, “contending that OSHA had
promulgated [the inspection program] without satisfying the notice and com-
ment rulemaking procedures by the [Administrative Procedures Act].” Id. at
1148. The Department of Labor “counterclaimed for an adjudication holding
Kast in contempt for having failed to comply with the warrant.” Id. We
reversed.
Trinity argues that in Kast Metals we intimated in a footnote that an em-
ployer has the option to deny entry to inspectors, even if they come with a war-
rant, provided the employer is willing to risk being held in contempt. After stat-
ing that “[a]ny fourth amendment interest, then, should be vindicated initially
by the magistrate’s watchful eye and, failing this, by the federal courts,” id. at
1155, we noted that “[u]pon issuance of the warrant, an employer may . . . move
before the district court to quash the warrant prior to its execution, or it may as-
sert its claims in the course of a civil contempt proceeding brought by the Secre-
tary upon the employer’s denial of entry.” Id. at 1155 n.21. “Alternatively, the
employer may bring its objections to the Commission upon citation, and ulti-
mately to the circuit courts of appeal.” Id. Like Gretna, however, Kast Metals
10
Just as OSHA does not always obtain a warrant where an employer refuses to con-
sent to a warrantless search, see 1 HOGAN & MORAN, supra, § 4.02[1], it makes sense that the
agency would not always forcefully execute a warrant where an employer blocks access to in-
spectors. There is an institutional cost to OSHA in forceful execution. For instance, aside from
the effort necessary to use force (which, as this case demonstrates, requires some logistical
perseverance), it is to OSHA’s advantage to know, before a search, whether a warrant is valid.
Otherwise, it would expend a great deal of institutional resources to no end.
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No. 06-60993
did not directly concern the issue that Trinity’s petition raises.
Trinity also relies on Donovan v. Huffhines Steel Co., 645 F.2d 288 (5th
Cir. Unit A May 1981), which, in a one-line opinion “based on” the district court’s
opinion, affirmed Marshall v. Huffhines Steel Co., 488 F. Supp. 995 (N.D. Tex.
1979). In Huffhines the employer denied OSHA inspectors access to its facility,
notwithstanding the presence of a warrant. OSHA moved to have the employer
held in contempt, and the employer challenged the warrant on a number of the-
ories. The district court noted that an “employer[’s ability to] assert its defenses
in a proceeding brought by the Secretary seeking an adjudication of civil con-
tempt” is necessary because the “suggested administrative alternatives to dis-
trict court review provide no relief against the inspection itself.” Id. at 997.
In deciding whether notice-and-comment rulemaking was necessary for
OSHA to have the power to obtain ex parte warrants, the Huffhines district court
also stated, “Whether the millions of employers subject to OSHA . . . may contest
OSHA’s justification for seeking a warrant permitting nonconsensual inspection,
and the scope of the intrusion for which judicial sanction is requested, without
risking a citation for contempt of court,” is a decision of such magnitude that it
“will affect significant numbers of” people. Id. at 1001. Trinity argues that this
too suggests that civil contempt is constitutionally required.
Again, however, the question whether OSHA is forbidden to execute a war-
rant forcefully was not at issue in Huffhines. The question was much narrower:
whether, at a contempt hearing already initiated by OSHA, a targeted employer
may present arguments against the validity of the warrant. Id. at 996-97.
Though Huffhines addressed an important matter, it did not concern the ques-
tion whether OSHA, as a matter of constitutional law, must commence a con-
tempt proceeding in the first place.11
11
Outside the Fifth Circuit, the most explicit case on point is Babcock & Wilcox Co. v.
(continued...)
12
No. 06-60993
Undergirding Trinity’s claims are a pair of flawed constitutional policy
11
(...continued)
Marshall, 610 F.2d 1128 (3d Cir. 1979), cited approvingly in Baldin Metals, 642 F.2d at 774
n.13. In Babcock & Wilcox, the court confronted an employer’s challenge to an already execut-
ed administrative warrant and held that the employer had to exhaust administrative remedies,
as we held in Baldin Metals. The employer argued that if it had to go through administrative
hearings, it is possible that illegal searches would “inevitably evade review.” Babcock &
Wilcox, 610 F.2d at 1136. The court rejected that argument:
Contrary to Babcocks’s contention, illegal OSHA searches will not inevitably
evade review; they may be preserved for determination by the district courts if
the plant operator is willing to risk civil contempt and moves expeditiously to
obtain full judicial review before the warrant is executed. This may seem to be
a cruel choice to thrust on the company, but the alternative would be to indulge
both in a presumption that magistrates do not perform their duties correctly and
that there will not be probable cause for issuing inspection warrants in a fair
number of these cases.
Id. The court also noted that “[d]irect review of the issuance of a civil warrant may be obtain-
able before the inspection by resisting entry, moving to quash the warrant, risking contempt,
and if necessary acting expeditiously to appeal.” Id. at 1135-36
Babcock & Wilcox, however, did not involve the forceful execution of a warrant, and, in
In re Metal Bank of America, Inc., 700 F.2d 910, 915 (3d Cir. 1983), the court held that even
if an employer “quickly move[s]” to challenge an inspection to “preserve the status quo,” the
exhaustion requirement applies if the inspection occurs before the employer’s legal challenge
to it can take place. Though the court cited Babcock & Wilcox for the proposition that “[d]irect
review by the federal courts of the validity of an OSHA warrant may . . . be obtained so long
as the employer prevents the inspection from occurring either by obtaining a stay or by refus-
ing entry and being adjudicated in civil contempt,” id. at 915 n.5, the fact that the court did
not even discuss a constitutional violation where the employer’s attempt to obtain pre-enforce-
ment review had failed suggests that Babcock & Wilcox does not give employers a constitution-
al right to a contempt hearing.
In In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988), the
court posited that there is a difference between “an honest-to-goodness criminal search war-
rant” and an administrative warrant. “The practice of allowing the target of an administrative
warrant to forbid entry and thereby convert the warrant proceeding into a contempt proceed-
ing is the standard method of enforcing such warrants.” Id. The court did not hold, however,
that such a “standard method” is constitutionally required. In fact, in In re Establishment In-
spection of Kohler Co., 935 F.2d 810, 814 (7th Cir. 1991), the court stated that OSHA had a
“policy of permitting employers to challenge the warrant [that] provided the district court an
opportunity to review the warrant before OSHA conducted its inspection” by allowing the em-
ployer to move to quash the warrant. This suggests that seeking contempt first is not consti-
tutionally mandated, though the court did say that its decision concerning the exhaustion of
administrative remedies might be different if OSHA’s “policy” were rescinded. Id.
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No. 06-60993
arguments. First, Trinity argues that, because after an administrative inspec-
tion takes place any challenge to the warrant is subject to the exhaustion of ad-
ministrative remedies doctrine, it follows that if pre-enforcement civil contempt
proceedings are not available to an employer, OSHA can unconstitutionally in-
spect a facility and, if it declines to issue citations, the unconstitutional inspec-
tion will go unremedied, because there will be no administrative forum to hear
the matter. But, according to Trinity, if pre-enforcement contempt proceedings
are an option, the employer can protect itself against the constitutional violation
by risking contempt to challenge the warrant’s validity before it is executed, thus
avoiding the constitutional violation before it occurs. Second, Trinity contends
that because the probable cause standard in administrative warrants is lower
than for criminal warrants, employers should be able to challenge an adminis-
trative warrant before it is executed.
Trinity’s first purported policy justification, raised at times in a number
of cases,12 is not convincing. There is another route to remedy whatever consti-
tutional violations may occur in an OSHA search: a Bivens action. Though from
an employer’s perspective, Bivens may not be a perfect remedy,13 it is at least as
attractive as requiring an employer to risk contempt to get pre-enforcement re-
view of an administrative warrant.14 But at the same time, Bivens has an ad-
vantage that Trinity’s proposal does not: We need not recognize a constitutional
12
For instance, in Babcock & Wilcox, 610 F.2d at 1136, the court’s statement about the
contempt option was in response to the employer’s argument that the application of the doc-
trine of exhaustion of administrative remedies would cause “illegal OSHA searches [to] inevit-
ably evade review.”
13
See, e.g. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (recognizing defenses such as qual-
ified immunity).
14
The Kohler court, 935 F.2d at 812, also recognized this possibility: “[A] determination
that the OSHA inspectors lacked probable cause also could conceivably support a section 1983
action [sic], giving Kohler another possible remedy for the unconstitutional search and rescuing
the case from mootness.” See also Babcock & Wilcox, 610 F.2d at 1137 n.22.
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No. 06-60993
right to defy a duly-issued warrant.
Trinity also briefly offers a second policy justification for its argument:
“One reason a criminal warrant may be enforced by force is because of the more
stringent showing of probable cause required . . . .” But though it is hornbook
law that in the wake of Barlow’s there is a lower standard of probable cause for
administrative warrants, it does not follow that the due process requirements
for executing administrative warrants are ratcheted up as an offset.
Because the natures of the possible punishment in administrative and
criminal contexts differ, with criminal punishment greatly exceeding administra-
tive citation, and because traditionally regulatory inspections required no war-
rant at all, it is unremarkable that the standard for obtaining an administrative
warrant is considerably less stringent than that for criminal warrants. In fact,
given the heightened constitutional concern for individuals enmeshed in crimin-
al investigations, one would expect that it would be a criminal warrantSSor none
at allSSthat the government constitutionally cannot execute by force.
Barlow’s also supports the view that there is no constitutional right to pre-
enforcement review of administrative warrants. There the Court for the first
time required OSHA inspectors to have a warrant. This was a dramatic change
in the law. The Court recognized as much and so explicitly cut back the reach
of its opinion by holding that the probable cause standard ordinarily associated
with warrants does not apply to administrative warrants.15 Barlow’s, 436 U.S.
at 320-21.
At the same time, the Court never hinted that the method of executing ad-
15
The dissenters in Barlow’s argued that the lower probable cause standard for admin-
istrative warrants means that administrative searches should not require warrants at all, see
Barlow’s, 436 U.S. at 325-30 (Stevens, J., dissenting), not, as Trinity contends from the same
feature, that those searched pursuant to an administrative warrant should have a constitution-
al right to pre-enforcement review of the warrant that is not available to those searched
pursuant to a criminal warrant.
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No. 06-60993
ministrative warrants would be different from that for criminal warrants. By
fashioning a lower probable cause standard for administrative warrants without
alluding to any constitutional change in how the warrants were to be adminis-
tered, the Court made its intent plain: An administrative warrant is a less
protective form of warrant.
V.
Citing Accardi v. Shaughnessy, 347 U.S. 260 (1954), Trinity urges that the
search violated its due process rights because it contravened OSHA’s Field In-
spection Reference Manual (“Manual”). The ALJ, ruled, however, that “[i]t is
somehow lost on Trinity that [the] compliance officers followed the guidelines.”
The Department of Labor agrees that the inspection guidelines were followed but
contends that the issue is irrelevant because the Manual is merely advisory. We
need not address the Department’s argument, because we agree with the ALJ
that the search complied with the Manual.
The Manual instructs how OSHA officers are to conduct inspections,
stating that “if the employer refuses to comply or if consent is not clearly given,
[the officers] shall not attempt to conduct the inspection but shall leave the
premises and contact the Assistant Area Director concerning the matter . . . .”
U.S. Department of Labor, OSHA Field Inspection Manual, CPL 02-00-103,
¶ 7962.150 (Sept. 26, 1994). The ALJ observed that this requirement was met
in every respect. After being rebuffed by Trinity officials, the OSHA compliance
officers contacted their supervisors, who instructed them to leave and wait for
additional instructions. Then, the officers were told to return with the marshals
(which is also expressly authorized under the Manual, id.). Thus, the ALJ ruled
that “OSHA did not violate its own inspection procedures. The compliance offic-
ers proceeded with the inspection in the manner prescribed by the [Manual].”
Despite the straightforwardness of the Manual’s language, Trinity avers
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No. 06-60993
that a violation occurred, based on the Manual’s “sequence” and OSHA’s “past
practice.” In its reply brief, Trinity outlines the Manual’s structure and argues
that it forbids the forceful execution of warrants, especially given that it is silent
regarding the availability of force.
Unfortunately for Trinity, even when one reads the entire relevant section
of the ManualSSand not just the specific language focused on by the ALJSSthe
best reading is that OSHA complied with the Manual. Nowhere does the Manu-
al’s text or structure forbid the forceful execution of a warrant. In fact, the Man-
ual expressly permits a federal marshal to “accompany” the inspectors, which
suggests that force can be employed. Id.16 In any case, the Manual merely in-
structs inspectors to wait for further instructions, which they did.
Trinity also argues that because the inspectors’ conduct violated OSHA’s
consistent practice, the agency cannot now begin to execute warrants forcefully.
As support, Trinity refers to Huffhines, but the citation’s relevance is not ap-
parent, given that Huffhines concerned the Supreme Court’s construction of a
federal regulation that put an “interpretative gloss” on it such that it “passed be-
yond the power of the Secretary to ‘interpret’ the regulation to the contrary.”
Huffines, 488 F. Supp. at 1000.
This is insufficient briefing from which to determine whether a consistent
agency practice over time somehow can give the Manual the meaning Trinity
contends that it has, despite its text. Under L&A Contracting Co. v. Southern
Concrete Services, 17 F.3d 106, 113 (5th Cir. 1994), this particular argument is
waived.
VI.
16
Trinity cites to an earlier edition of the Manual that prohibited the use of force, but
Trinity concedes this language came from a long-superseded edition, and the edition that Trin-
ity claims OSHA violated does not contain that or similar language.
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No. 06-60993
Trinity offers a couple of arguments that piggyback on its Fifth Amend-
ment claim. It contends that its Fourth Amendment rights were violated be-
cause “if a warrant may not be executed by force then it follows that any force
is excessive.” Trinity also argues that the search violated the statutory require-
ment that OSHA searches be conducted “at reasonable times, and within reason-
able limits and in a reasonable manner,” 29 U.S.C. § 657(a)(2), because any in-
spection that violates the Constitution “necessarily violates this reasonableness
requirement.” Because, however, there has been no Fifth Amendment violation,
the Fourth Amendment and § 657(a)(2) have not been violated.
For the foregoing reasons, the petition for review is DENIED.
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