Trinity Industries, Inc. v. Occupational Safety and Health Review Commission

*1463BATCHELDER, Circuit Judge,

concurring.

I agree completely with the majority opinion in this case, and I write separately simply to emphasize (1) that the court has invalidated OSHA Instruction CPL 2.45A because it does not comport with the requirements of Marshall v. Barlow’s, Inc., (2) why it is necessary for us to hold CPL 2.45A invalid, and (3) what this means for future OSHA inspections and searches.

The relevant language from Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), is as follows:

Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a 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].” Camara v. Municipal Court, 387 U.S. [523, 538, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930 (1967) ]. 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 such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer’s Fourth Amendment rights.

Barlow’s, 436 U.S. at 320-21, 98 S.Ct. at 1824-25 (footnote omitted). The Court also wrote, “A warrant ... 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 1826.

We have invalidated CPL 2.45A because it uses an employee’s complaint as a component to trigger a full-scope search of the workplace.3 This element involves human action and thus brings the potential to add a subjective input to the calculus. Trinity argues, and we agree, that the addition of this element destroys the neutrality of the administrative inspection plan and violates Barlow’s; when Barlow’s discussed permissible administrative plans, it described a neutral plan as one that relied upon either random selection or selection by relevant statistics that have no individual human component for the reason that searches flowing from these types of plans could not be the product of an agency’s arbitrary decision.

OSHA argues that the employee-complaint element is unobjectionable because it does not vest in the agency any discretion that might be abused or arbitrarily exercised because all OSHA does when a complaint comes in is verify, pursuant to 29 U.S.C. § 657(f)(1), that the complaint furnishes reasonable grounds to believe that the violation exists. OSHA contends that because it cannot file complaints on its own or otherwise instigate their filing, it therefore cannot produce the harms that Barlow’s sought to prevent.

The OSHRC agreed with OSHA’s position. In upholding the Secretary’s administrative plan and the search conducted under it, the OSHRC quoted with approval the following passage from the magistrate judge’s opinion:

In order for the plan to establish probable cause, it must provide for inspection on the basis of neutral criteria, thus ensuring *1464that OSHA officials do not have unbridled discretion to target an employer for improper reasons. Neutrality and discretion are integrally linked; if the evidence submitted in the application shows the plan is based on the type of criteria that does not permit an arbitrary decision to conduct the inspection, then we may find the plan is derived from neutral criteria.

Secretary of Labor v. Trinity Indus., Inc., Nos. 89-2168 & 89-2169, slip op. at 20 (OSHRC Aug. 18, 1992) (citations omitted). The OSHRC went on to reach the same decision as did the magistrate judge and the district court, namely, that because the employee complaint element did not vest in OSHA any discretion, it was a neutral criterion.

We reject this view. As the panel notes, Barlow’s requires that Trinity have been “chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from, neutral sources.” 436 U.S. at 321, 98 S.Ct. at 1825 (emphasis added). The issue then is whether a policy that uses an employee complaint as one of four factors that trigger an inspection is a plan “derived from neutral sources.” Although I concede that CPL 2.45A has no ability to create the potential for one of the harms that the Barlow’s Court sought to avoid, namely, the “unbridled discretion [of] executive and administrative officers, particularly those in the field, as to when to search and whom to search,” Barlow’s, 436 U.S. at 323, 98 S.Ct. at 1826, a search has the potential to be just as arbitrary (and possibly more so) when the triggering factor is an employee complaint. The OSHRC held that because the complaint came from outside OSHA, the policy did not violate “the basic purpose of the Fourth Amendment, which is ‘to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’” OSHRC decision at 15 (quoting Barlow’s, 436 U.S. at 312, 98 S.Ct. at 1820) (emphasis added by OSHRC). But, the invasion is no less arbitrary simply because the OSHA official himself cannot inject his own arbitrariness into the process. If the employee who files the complaint intends to harass or retaliate against his employer, the full-scope investigation by a government official has been prompted not by neutral factors, but by a person with an improper motive. Unless it can be shown that OSHA officials act from improper motives more often than employees, the harm to be avoided is exactly the same whether the source is an OSHA official or an employee. And the harm would, in fact, be greater if it could be shown that employees more often than OSHA officials act vindictively or unjustifiably.

OSHA attempts to counter this argument by saying that it screens employee complaints to determine whether there are “reasonable grounds to believe that such violation or danger exists,” 29 U.S.C. § 657(f)(1); CPL 2.45A, ch. IX, sec. (A)(2)(d), before it seeks a search warrant. However, OSHA must concede that it sometimes is difficult to identify from the face of the complaint whether it is a justifiable or reasonable complaint. And it is at this point that OSHA is vested with some discretion in deciding which complaints provide “reasonable grounds to believe....” This risk of unjustified and overbroad searches based on an employee’s complaint is the very reason that searches must be limited to the area about which the employee complains.

It may be true that “[n]eutrality and discretion are integrally linked” as the magistrate and the OSHRC have said, but it is equally true that neutrality and objectivity are integrally linked. Objectivity may take the form of a neutral decisionmaker or adjudicator, but in the absence of such a person, objectivity often requires that factors be limited to those that are not subject to human manipulation. Because the employee-complaint element in CPL 2.45A is a subjective element, we hold that this instruction, which permits full-blown inspections triggered in part by an employee complaint, is unconstitutional under Barlow’s because it violates the company’s Fourth Amendment right to be free from unreasonable searches and the right to have the scope of the search bear some relation to the evidence sought.

Finally then, I emphasize that although we ultimately rule that the Secretary was permitted to use the results of the inspection in *1465this case, since we have held invalid Instruction CPL 2.45A, our decision prospectively will result in the suppression of any evidence obtained in a search pursuant to CPL 2.45A (or similar policy), for OSHA investigators in the Sixth Circuit may no longer rely in good faith on a warrant that is issued contrary to the law of this circuit.

. Had the policy been limited to the other three elements of CPL 2.45A, there is little doubt we would uphold the search, for these elements present no real difficulty under Barlow’s. Each is a neutral criterion, not susceptible in any way to administrative discretion or manipulation. Additionally, other circuits have taken this view as well, upholding OSHA plans similar to CPL 2.45A but without the employee-complaint element. See Donovan v. Trinity Indus., Inc., 824 F.2d 634 (8th Cir.1987) (plan ranking companies by lost workday injury (LWDI) rate, number of employees, and name upheld under Barlow’s); Industrial Steel Prods. Co. v. OSHA, 845 F.2d 1330 (5th Cir.) (inspection plan upheld where plan used LWDI rate ranking, number of employees, type of industry, element of chance, and two cycles of inspections), cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 582 (1988); United States v. Trinity Indus., Inc., 876 F.2d 1485, 1490 n. 3 (11th Cir.1989) (citing cases approving CPL 2.25B and CPL 2.25C, two OSHA policies that use factors such as LWDI rates, number of employees, and locations to select establishments for inspections).