Anthony Marano Company v. Martin J. Walsh ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2661
IN RE:
ESTABLISHMENT INSPECTION OF:
ANTHONY MARANO COMPANY, 3000
S. ASHLAND AVENUE, #100,
CHICAGO, IL 60608
APPEAL OF: ANTHONY MARANO COMPANY
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-mc-00499 — Virginia M. Kendall, Judge.
____________________
ARGUED FEBRUARY 16, 2022 — DECIDED OCTOBER 18, 2022
____________________
Before RIPPLE, SCUDDER, and KIRSCH, Circuit Judges.
RIPPLE, Circuit Judge. Anthony Marano Company
(“AMC” or “the company”) brought this appeal following its
unsuccessful motion to quash an administrative warrant is-
sued by the district court at the request of the Occupational
Safety and Health Administration (“OSHA”). Because the dis-
trict court’s order denying the motion to quash is not a final
2 No. 21-2661
order for purposes of 28 U.S.C. § 1291, we dismiss the appeal
for want of jurisdiction.
I
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 man-
agement considered the timing of this inspection to be suspi-
cious 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
1
from one of AMC’s current employees.” 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 re-
counted 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 em-
ployee fell forward and hit his head. Local emergency person-
nel 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.
1 R.25 at 2.
No. 21-2661 3
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 warrant application also stated that OSHA had deter-
mined that the complaint identified hazards covered by
OSHA’s Local Emphasis Program for Powered Industrial Ve-
hicles (“Emphasis Program”); the program also encompassed
forklifts. A copy of the Emphasis Program was included with
the warrant application, and Minett-Jackson referenced the
2
applicable provision of the Emphasis Program. Regarding
the scope of the proposed warrant, the application sought ac-
cess
to those areas and/or conditions specified in this
Application, as well as to any hazardous work
areas, procedures and/or working conditions
where work is performed or permitted to be
performed by employees of the employer
within the plain view of the Compliance Of-
ficer(s) during the course of the inspection. In
those areas, the inspection and investigation
would include all pertinent conditions, struc-
tures, machines, apparatuses, devices, equip-
ment, and materials, as they relate to the haz-
ardous conditions referred to in this
2 Specifically, the Emphasis Program provided that OSHA would sched-
ule for inspection “[a]ny referral or complaint classified by OSHA as ‘se-
rious’ which alleges a hazard or a condition that may be a violation of the
powered industrial truck standard or a potentially fatal ‘struck/caught/fall
hazard’ associated with the operation of a powered industrial vehicle … .”
Id. at 35.
4 No. 21-2661
Application and/or in the plain view of the
Compliance Officer(s) during the course of the
3
inspection.
The magistrate judge issued the warrant.
When Minett-Jackson returned to AMC on August 2, 2021,
4
with the warrant, the company again denied her entry. 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 com-
pany 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”) main-
tained that the warrant was supported by probable cause. He
further asserted that there is no right to pre-enforcement re-
view 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
5
covered by an Emphasis Program.” The Secretary further
urged the magistrate judge to deny AMC’s request to unseal
3 Id. at 5.
4 An employee of AMC recorded this attempt, and a transcript of state-
ments made by Minett-Jackson is set forth in AMC’s brief. See Appellant’s
Br. 4–5.
5 R.12 at 2.
No. 21-2661 5
the warrant application. Finally, he filed a cross-motion for
contempt.
On August 6, the magistrate judge held a telephonic hear-
ing. Following the hearing, he entered a minute entry “provi-
sionally 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 pro-
6
posed redactions.” He took the rest of the motions under ad-
visement.
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 inves-
tigation into the employee complaint” so as to set forth “spe-
7
cific evidence of an existing violation.” 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 em-
ployee complaint” because the warrant covered “all areas and
conditions relating to the operation and maintenance of fork-
8
lifts.” 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
6 R.17.
7 R.18 at 9.
8 Id. at 9, 11 (emphasis removed).
6 No. 21-2661
triggered by an employee complaint and therefore was not
9
“neutral.”
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 ar-
gument “that federal law, including the law of the Seventh
Circuit, ‘is clear that there is a pre-enforcement right to judi-
10
cial review of an administrative warrant.’” 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(1978), which had “extended the Fourth Amendment warrant
requirement to administrative inspections, but in a limited
11
fashion.” 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 justify-
ing an administrative inspection warrant “may
be based not only on specific evidence of an
9 Id. at 12 (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 321 (1978)) (em-
phasis removed).
10 R.21 at 7 (quoting R.14-1 at 1).
11 Id. at 9.
No. 21-2661 7
existing violation but also on a showing that
‘reasonable legislative or administrative stand-
ards for conducting an … inspection are satis-
fied with respect to a particular [establish-
12
ment].’”
The magistrate judge further noted that Barlow’s had not ad-
dressed the process by which an employer could challenge a
warrant. AMC, therefore, was asking the court to “extend Bar-
low’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 em-
ployer asks a federal court for a second level of judicial review
13
of those warrants.”
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 Es-
tablishment 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 chal-
lenges to the constitutional validity of administrative inspec-
tion warrants before the Secretary ha[d] a chance to execute
14
them,” Kohler actually “support[ed] the opposite position.”
12 Id. (quoting Barlow’s, 436 U.S. at 320, 320–21) (alteration in original) (ci-
tation omitted).
13 Id. at 11.
14 Id. at 15.
8 No. 21-2661
The magistrate judge acknowledged that there was lan-
guage 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 evi-
dence obtained through the warrant in the administrative
15
proceedings.” 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
16
proceedings.” In the present case, however, the Secretary
had argued explicitly that the exclusionary rule applied in ad-
ministrative 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 war-
17
rant.”
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 Marano w[ould] be harmed irrepara-
bly absent a stay; (3) whether issuance of the
15 Id. at 16 (referencing In re Establishment Inspection of Kohler Co., 935 F.2d
810, 814–15 (7th Cir. 1991)).
16 Id.17 Id. at 23.
No. 21-2661 9
stay w[ould] substantially injure other parties
interested in the proceeding; and (4) whether
18
the stay [wa]s in the public interest.
The magistrate judge determined that, even if AMC had ex-
hausted its administrative remedies and therefore the motion
to quash was properly before it, the motion would fail on the
merits because “the paragraph in the employee complaint re-
cited in the Warrant Application more than meets Barlow’s
standards and was enough to establish the requisite degree of
19
administrative probable cause.”
Finally, in denying the stay, the magistrate judge ruled
that the facts of the warrant application were not stale, that
OSHA was not using the warrant as a tool of harassment, and
that the warrant was not overbroad. With respect to over-
breadth, the magistrate judge noted that the warrant pro-
vided “that the inspection and investigation would ‘extend
only to the alleged hazardous working conditions and/or
work areas described above’” as well as those in the inspec-
20
tor’s plain view. He explained that the March 26 injury had
occurred at a loading dock, “[t]he object of the search … was
loading dock areas where forklift trucks are operated in close
proximity to other workers,” and therefore “[t]he warrant rea-
sonably allowed OSHA to inspect loading dock areas and
conditions in facility locations where forklifts [we]re operated
18 See id. (referencing Nken v. Holder, 556 U.S. 418, 434 (2009)).
19 Id. at 30.
20 Id. at 33 (quoting R.1 at 58).
10 No. 21-2661
21
near other workers….” The magistrate judge acknowledged
that the warrant was “not a model of clarity”; however,
OSHA “could not have offered greater specificity when [it]
did not know the precise location of the loading area where
the March 26 injury happened or other loading areas where
22
forklifts [we]re operated in proximity to workers.” There-
fore, he concluded that “[t]he warrant’s scope was reasonable
under the circumstances, not overbroad, and not wall-to-
23
wall.” The magistrate judge therefore denied the stay.
Shortly after the magistrate judge issued his order, AMC
asked the judge to clarify whether the opinion and order had
been issued under his own authority or whether it was a Re-
port and Recommendation. The magistrate judge clarified
that it was an order issued under 28 U.S.C. § 636(a)(1), and
21 Id. at 33–34.
22 Id. at 34.
23 Id. The magistrate judge noted that he considered
only the four corners of the Warrant Application, and not
the later-submitted video evidence Anthony Marano ob-
tained when one of its managers started video recording the
OSHA agent and a deputy U.S. marshal when they arrived
to execute the warrant on August 2. Regardless, the OSHA
agent’s professed lack of knowledge, on the video, about
where she was to search is of no moment, because she ex-
plained in the same breath that she did not yet know the
precise location of the loading dock area where the forklift
injury occurred.
Id. at 33 (citations omitted).
No. 21-2661 11
AMC filed an emergency motion to quash before the district
court.
The district court held a telephonic hearing on the motion
24
to quash on August 24. In a minute order following the con-
ference, it stated:
Magistrate Judge Fuentes issued a Memoran-
dum Opinion and Order on August 20, 2021, in
relevant part denying AMC’s motion for the
same relief. The Court views the Memorandum
as a Report and Recommendation and finds that
it is thorough, well-reasoned and correct. The
Court therefore adopts Magistrate Judge
Fuentes’s finding that there is no pre-enforce-
ment right to judicial review of administrative
inspection warrants in the Seventh Circuit. Fur-
ther, [t]he Court agrees and accepts that there is
probable cause for the warrant at issue in light
of a telephonic complaint lodged against AMC
on July 7, 2021. AMC offers no evidence or case
law tending to show that the complaint—which
pertained to an AMC employee suffering bodily
injuries from a forklift accident—was insuffi-
cient to show probable cause. AMC’s Emer-
gency Motion is accordingly denied. Upon oral
motion, the Court stays this order until the
Plaintiff has the opportunity to appeal this
25
Court’s decision.
24 A transcript of that teleconference is located at R.34.
25 R.29 (citations omitted).
12 No. 21-2661
AMC filed a notice of appeal on September 2, 2021. On the
same day, the Secretary filed a motion to lift the stay and to
allow both the inspection and the contempt proceedings to go
forward. The Secretary explained that “[t]he contempt pro-
ceeding [wa]s of principle importance” because, “in the mo-
tion for contempt, the Secretary sought tolling of the statute
of limitations as an equitable remedy for AMC’s continued
defiance of a duly issued inspection warrant, and without
such a remedy, the Secretary’s inspection and potential en-
forcement efforts in this matter w[ould] be severely preju-
26
diced.” He further explained that staying “the execution of
the warrant pending appeal, without equitable tolling,” effec-
tively would prevent him from carrying out his enforcement
27
responsibilities. He further noted that “[t]he statute of limi-
tations for any OSHA violations related to the March 26, 2021
forklift accident expire[d] on September 26, 2021,” and “AMC
should not be allowed to frustrate OSHA’s responsibilities
and avoid an OSHA inspection by waiting out the clock on
28
the appeal period” until the limitations period expired. The
Secretary therefore asked the court to lift the stay, to allow the
contempt proceedings to go forward, and to toll the relevant
statute of limitations.
On September 7, the magistrate judge entered a minute or-
der clarifying that the district court had not stayed the pend-
ing contempt hearings. However, the issues presented by
AMC’s appeal were related to the contempt proceedings, and
26 R.33 at 2 (citation omitted).
27 Id.28 Id.No. 21-2661 13
“the filing of a notice of appeal deprives the district court of
jurisdiction over the issues presented on the appeal. … The
notice of appeal, therefore, raise[d] a significant question over
this Court’s jurisdiction to proceed with the contempt certifi-
29
cation motion.” The magistrate judge “continue[d] the cross-
motion for contempt certification” and stated that he would
take “no action on the motion to proceed with the contempt
certification motion, which [wa]s at least partially a matter be-
30
fore the district court.” He vacated the briefing schedule on
the contempt certification motion and indicated that he
would take no further action until we had addressed the issue
31
of our own jurisdiction.
On September 13, AMC responded to the Secretary’s mo-
tion. It maintained that the motion “must be rejected … be-
cause lifting the stay would moot the pending Seventh Circuit
appeal” and “subject Anthony Marano Company to a viola-
tion of its Fourth Amendment rights without an adequate
32
remedy.” Moreover, it maintained, the district court did not
have jurisdiction to enter an order tolling the statute of limi-
tations during the pendency of the appeal, and, even if it did,
tolling was not warranted.
The stayed contempt proceedings, and the Secretary’s mo-
tion to toll the statute of limitations, are still pending in the
district court.
29 R.35.
30 Id. (citations omitted).
31 Id.32 R.40 at 1.
14 No. 21-2661
II
With this background, we now turn to the appeal before
us. AMC submits that it has a right to appeal the constitu-
tional sufficiency of the administrative warrant prior to its ex-
ecution. Before we can consider that question, however, we
first must decide whether we have appellate jurisdiction.
A.
1.
Section 1291 of Title 28 of the United States Code generally
restricts courts of appeals to review of “final decisions” of the
district courts. “A final decision is ‘one which ends the litiga-
tion on the merits and leaves nothing for the court to do but
execute the judgment.’” United States v. Sealed Defendant Juve-
nile Male, 855 F.3d 769, 771 (7th Cir. 2017) (quoting Gelboim v.
Bank of Am. Corp., 574 U.S. 405, 409 (2015)). Here, the Secretary
maintains that the district court has not rendered a final judg-
ment. Specifically, he submits that the district court’s August
24 order, which is the basis for AMC’s appeal, is not final for
purposes of 28 U.S.C. § 1291 because it did not resolve all the
parties’ claims. He invites our attention to the continued pen-
dency of his motion for contempt and his motion to toll the
33
statute of limitations before the district court.
33 The Secretary also submits that the August 24 order does not fit neatly
into any category of collateral order that is subject to immediate review.
AMC agrees. We have examined independently the possibility of predi-
cating our jurisdiction on the collateral order doctrine and agree with the
parties. The collateral order doctrine “carves out a ‘small class’ of non-
final orders that are deemed final and immediately appealable.” Doe v.
(continued … )
No. 21-2661 15
AMC does not maintain that the August 24 order ended
the litigation in the district court. Nevertheless, it asserts that
the August 24 order is final under 28 U.S.C. § 1291 because of
the “exception” annunciated by the Supreme Court in United
34
States v. Ryan, 402 U.S. 530 (1971). Ryan, AMC submits,
acknowledges a right to immediate appeal “in the limited
class of cases where denial of immediate review would render
impossible any review whatsoever of an individual’s
35
claims.” According to AMC, unless we apply the rule in
Ryan and permit immediate appellate review, OSHA could
forcibly execute its warrant, leaving AMC without a means to
redress its claim that the warrant issued by the magistrate
judge and approved by the district court violates the Fourth
Amendment.
2.
Because Ryan is central to AMC’s argument, we begin by
examining that decision. In Ryan, the petitioner received a
subpoena duces tecum in grand jury proceedings. The sub-
poena commanded him to produce the books and records of
Vill. of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546–47 (1949)). “To fall within the collateral
order doctrine, the non-final order must: (1) be conclusive on the issue
presented; (2) resolve an important question separate from the merits of
the underlying action; and (3) be ‘effectively unreviewable’ on an appeal
from the final judgment of the underlying action.” Id. (quoting Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). Here, however, the pre-
sent appeal seeks a determination on the merits: whether AMC must com-
ply with the administrative inspection warrant.
34 App. R.9 at 10.
35 Id. (quoting United States v. Ryan, 402 U.S. 530, 533 (1971)).
16 No. 21-2661
five Kenyan companies. Ryan moved to quash the subpoena
on the ground that Kenyan law forbade the removal of the
corporate documents from Kenya without the consent of cer-
tain governmental officials. The district court denied the mo-
tion but modified the subpoena so that Ryan was required “to
attempt to secure such consent and, if unsuccessful, to make
the records available for inspection in Kenya.” Ryan, 402 U.S.
at 531. Ryan appealed, and the court of appeals determined
that it had jurisdiction to consider the denial of the motion to
quash. According to the appellate court, “by directing [Ryan]
to make application to a Kenyan official for release of some of
the records, the District Court had done ‘more than deny a
motion to quash; it in effect granted a mandatory injunction’”;
consequently, it determined that the order was immediately
appealable. Id. (quoting In re Ryan, 430 F.2d 658, 659 (9th Cir.
1970)).
The Supreme Court, however, took another view: the dis-
trict court’s order was not immediately appealable. The Court
first observed that its decision in Cobbledick v. United States,
309 U.S. 323 (1940), had held
that one to whom a subpoena is directed may
not appeal the denial of a motion to quash that
subpoena but must either obey its commands or
refuse to do so and contest the validity of the
subpoena if he is subsequently cited for con-
tempt on account of his failure to obey.
Ryan, 402 U.S. at 532. Ryan did not question the validity of
Cobbledick but claimed that its rule should not apply to him
because, unless he could seek immediate review of the district
court’s order, “he w[ould] be forced to undertake a substan-
tial burden in complying with the subpoena, and w[ould]
No. 21-2661 17
therefore be ‘powerless to avert the mischief of the order.’” Id.(quoting Perlman v. United States, 247 U.S. 7, 13 (1918)). The
Court disagreed. It acknowledged that, if Ryan complied with
the subpoena, he would “not … be able to undo the substan-
tial effort he has exerted in order to comply.” Id. However, the
Court continued, compliance was not his only option. If “the
subpoena [wa]s unduly burdensome or otherwise unlawful,
he [could] refuse to comply and litigate those questions in the
event that contempt or similar proceedings [we]re brought
against him. Should his contentions be rejected at that time by
the trial court, they w[ould] then be ripe for appellate re-
view.” Id. at 532. The Court noted that it had
consistently held that the necessity for expedi-
tion in the administration of the criminal law
justifies putting one who seeks to resist the pro-
duction of desired information to a choice be-
tween compliance with a trial court’s order to
produce prior to any review of that order, and
resistance to that order with the concomitant
possibility of an adjudication of contempt if his
claims are rejected on appeal.
Id. at 533.
The Court acknowledged that there was a “limited class of
cases where denial of immediate review would render impos-
sible any review whatsoever of an individual’s claims.” Id. It
recognized specifically that immediate review was available
from the
denial of a motion for the return of seized prop-
erty, where there is no criminal prosecution
pending against the movant. Denial of review in
18 No. 21-2661
such circumstances would mean that the Gov-
ernment might indefinitely retain the property
without any opportunity for the movant to as-
sert on appeal his right to possession.
Id. (citation omitted). The Court also noted that in Perlman,
247 U.S. 7, it had allowed
review of an order directing a third party to pro-
duce exhibits which were the property of [Perl-
man] and, he claimed, immune from produc-
tion. To have denied review would have left
[the owner] “powerless to avert the mischief of
the order,” for the custodian could hardly have
been expected to risk a citation for contempt in
order to secure [the owner] an opportunity for
judicial review.
Id. (quoting Perlman, 247 U.S. at 13). Those situations, how-
ever, were different from the case before it because Ryan was
“free to refuse compliance and … in such event he may [have]
obtain[ed] full review of his claims before undertaking any
burden of compliance with the subpoena.” Id.Ryan does not support AMC’s claimed right to immediate
review. It simply restates the general proposition that a denial
of a motion to quash a grand jury subpoena is not immedi-
ately appealable and acknowledges the limited exception to
that rule when property otherwise might be held indefinitely
or surrendered to the Government without a determination
of a party’s rights.
Notably, Ryan’s exception only applies to that “limited
class of cases where denial of immediate review would render
impossible any review whatsoever of an individual’s claims.” Id.No. 21-2661 19
(emphasis added). AMC, by contrast, is not without a means
to redress the alleged Fourth Amendment violation. First, as-
suming the Secretary postpones execution of the warrant un-
til the contempt proceedings are concluded, those proceed-
ings would provide AMC an opportunity to raise its Fourth
Amendment arguments. Second, at oral argument, both the
Secretary and AMC acknowledged that, even if the warrant
were executed, AMC could raise any Fourth Amendment vi-
36
olations in the context of administrative proceedings.
One of our sister circuits has considered and rejected the
argument that Ryan provides a basis for appellate review of
an administrative warrant. In In re Consolidated Rail Corp., 631
F.2d 1122 (3d Cir. 1980), OSHA had obtained a warrant au-
thorizing a general inspection of a Conrail locomotive repair
plant, but Conrail refused to allow the inspection and moved
to quash the warrant. OSHA then sought to hold Conrail in
contempt. As the district court did here, the district court in
Consolidated Rail denied Conrail’s motion to quash but contin-
ued the contempt proceedings and issued a stay of the war-
rant pending Conrail’s appeal. On appeal, the Third Circuit
traced the finality doctrine through Cobbledick and Ryan and
36 If the inspection did not lead to administrative proceedings, a Bivens
action might provide a possible avenue of redress. See Bivens v. Six Un-
known Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recog-
nizing an action for damages against federal officers who conducted a
search in violation of the Fourth Amendment). We are aware that in Egbert
v. Boule, 142 S. Ct. 1793 (2022), the Supreme Court expressed a reluctance
to recognize any new Bivens actions. See also Hernandez v. Mesa, 140 S. Ct.
735 (2020). The contours of any reconsideration of Bivens are, of course, a
matter for the Supreme Court to determine, not for this court. See State Oil
Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/Am. Ex-
press, Inc., 490 U.S. 477, 484 (1989).
20 No. 21-2661
then rejected Conrail’s “contention that the holdings of
th[o]se … cases apply only to motions to quash grand jury
subpoenas and not to denials of motions to quash warrants
sought by administrative agencies.” Id. at 1123. The Third Cir-
cuit explained that Conrail’s action to quash the administra-
tive warrant was part of the same proceeding in which the
Secretary had asked for civil contempt sanctions. Therefore, it
continued, “if the court enters the judgment of contempt
sought by the Secretary, there will be no further action for [the
district court] to take,” and “[t]he judgment of contempt and
the sentence, if any, will be the final judgment in the case.” Id.
at 1125. In sum, the fact that the contempt proceedings were
ongoing prevented appellate review.
AMC acknowledges the Third Circuit’s holding in Consol-
37
idated Rail. It notes, however, that the Third Circuit “did not
consider OSHA’s right to forcibly execute a warrant, which
would force the employer to suffer a constitutional injury for
38
which there is no adequate remedy.” Underlying AMC’s ar-
gument is the assumption that OSHA has a right to forcibly
execute an administrative warrant without resort to contempt
39
proceedings, and that, absent an opportunity to challenge an
illegal search through contempt proceedings, it has no other
37 See Reply Br. 5 n.1.
38 Id.
39 The basis for AMC’s belief that an administrative, as opposed to a crim-
inal, warrant is subject to forcible execution is Trinity Marine Products, Inc.
v. Chao, 512 F.3d 198, 202 (5th Cir. 2007). In other submissions, however,
AMC argues fervently that Trinity Marine’s reasoning is faulty and should
be rejected by this court. See Reply Br. 8–10.
No. 21-2661 21
mechanism to redress a possible Fourth Amendment viola-
tion.
We disagree that OSHA’s right to forcible entry—an issue
40
which we do not reach—is dispositive. As we already have
noted, even if the warrant is executed, that action does not
“render impossible any review whatsoever” of its Fourth
Amendment claims. Ryan, 402 U.S. at 533.
Thus, Ryan provides no basis for appellate jurisdiction.
B.
Alternatively, AMC proposes that cases involving the en-
forcement of administrative subpoenas should guide our de-
cision here. As a general matter, the decision to grant or deny
a motion to enforce a subpoena, whether in a criminal pro-
ceeding or before a grand jury, is not immediately appealable
because “permitting separate reviews of the component ele-
ments in a unified cause” would bring the administration of
justice to a halt. Cobbledick, 309 U.S. at 325. It is only when an
individual defies the subpoena and is held in contempt that
the proceeding “becomes so severed from the main proceed-
ing as to permit an appeal.” Id. at 328.
Orders enforcing administrative subpoenas, however, are
an exception to this general rule. See id. at 329; Reich v. Nat’l
40 We have noted in dicta that forcible entry is not what is normally con-
templated. See In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132
(7th Cir. 1988) (noting that the Consumer Product Safety Commission “has
never suggested that it could or would proceed” with a forcible execution
of an administrative warrant and that “the standard method of enforcing
such warrants” was through contempt proceedings).
22 No. 21-2661
Eng’g & Contracting Co., 13 F.3d 93, 95 (4th Cir. 1993). Enforce-
ment of administrative subpoenas
may be deemed self-contained, so far as the ju-
diciary is concerned—as much so as an inde-
pendent suit in equity in which appeal will lie
from an injunction without the necessity of
waiting for disobedience. After the court has or-
dered a recusant witness to testify before [an ad-
ministrative agency], there remains nothing for
it to do. Not only is this true with respect to the
particular witness whose testimony is sought;
there is not, as in the case of a grand jury or trial,
any further judicial inquiry which would be
halted were the offending witness permitted to
appeal.
Cobbledick, 309 U.S. at 330.
We see no justification, however, for extending this rule
beyond the context of enforcement of administrative subpoe-
nas. Both administrative subpoenas and administrative war-
rants are investigatory tools, but there are important differ-
ences in the role they play in the administrative process. Ad-
ministrative subpoenas usually do not raise the same Fourth
Amendment concerns as administrative warrants. In Donovan
v. Lone Steer, Inc., 464 U.S. 408, 414 (1984), the Court explained
that the enforcement of administrative subpoenas does not in-
volve “the effort of the government inspectors to make non-
consensual entries into areas not open to the public,” and thus
administrative subpoenas are distinguishable from adminis-
trative warrants, such as the one in Barlow’s.
No. 21-2661 23
The enforcement process for administrative subpoenas
differs from the enforcement process for administrative war-
rants. An administrative subpoena is issued by the agency. If
a party chooses not to comply, the administrative agency
must seek judicial enforcement with notice to the subpoenaed
party. See, e.g., United States v. Clarke, 573 U.S. 248, 253 (2014)
(describing “the requisite judicial [enforcement] proceeding”
as “adversarial,” “not ex parte”). The subpoenaed party, there-
fore, has an opportunity to be heard during the enforcement
proceeding itself. Contempt proceedings—or a subsequent
challenge in administrative proceedings—is not necessary to
distill the issues for appellate review.
The same is not true for the enforcement of administrative
warrants. OSHA may apply for, and obtain, an administrative
warrant without notice to the affected party. Once the warrant
is obtained, OSHA may execute it. The first opportunity that
a party subject to the warrant may have to contest the basis or
scope of the warrant usually comes when it defies the war-
rant. In such cases, a contempt proceeding, or a challenge to
the warrant in later administrative proceedings, is necessary
to vet the underlying issues of authority, probable cause, and
scope.
In short, the cases involving immediate appeals of admin-
istrative subpoenas do not represent an exception to the final-
ity rule of § 1291. Rather, those cases are appealable because
the orders concerning the administrative subpoenas are “[t]he
last order in a proceeding,” thus making the district court’s
orders “final decision[s] appealable under 28 U.S.C. § 1291.”
In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1129
(7th Cir. 1988). Here, however, there remain significant ongo-
ing proceedings in the district court that afford the contesting
24 No. 21-2661
party a full opportunity to set forth its objections to the war-
rant in an adversarial context. Both the Secretary’s motion for
contempt and motion to toll the statute of limitations are
41
pending before the district court. We cannot ignore these
substantive, and potentially dispositive, motions. This ongo-
ing litigation renders the district court’s enforcement order
nonfinal. We, therefore, do not have jurisdiction over the pre-
42
sent appeal under § 1291.
41 With respect to the latter, it is AMC’s contention that the district court
is without authority to toll the statute of limitations, and, in the absence of
tolling, the Secretary has no authority to execute the warrant at issue.
42 As it did in the district court, AMC maintains that our decision in In re
Establishment Inspection of Kohler Co., 935 F.2d 810 (7th Cir. 1991), conclu-
sively establishes a right to a judicial pre-enforcement challenge of an ad-
ministrative warrant, including the right to an immediate appeal. AMC
focuses on one sentence of that decision, which states: “That warrant is
reviewable in the district court, and subsequently in the Court of Appeals,
until OSHA completes its inspection.” Id. at 814.
This single sentence, read in context, cannot bear the weight that
AMC attaches to it. First, Kohler did not involve a pre-enforcement chal-
lenge; rather, the warrant in Kohler already had been executed. The issue
of a party’s pre-enforcement rights simply was not before us. Second, the
language at issue arises in a discussion of whether applying the exclusion-
ary rule in proceedings before the OSHA Review Commission would raise
issues of separation of powers. Id. It did not, we explained, because
“[w]hat OSHA view[ed] as one proceeding” was “really two distinct
cases”:
The first involves OSHA’s enforcement program; OSHA
enforcement actions are reviewable in the first instance by
the Review Commission, then by federal Courts of Ap-
peals. To proceed with an inspection, OSHA must initiate
(continued … )
No. 21-2661 25
a second proceeding to obtain a search warrant from a
federal district court. That warrant is reviewable in the
district court, and subsequently in the Court of Appeals,
until OSHA completes its inspection.
Id. In the context of that discussion, there was no reason for us to detail all
the steps necessary to secure a pre-execution challenge to an administra-
tive warrant, namely refusing entry and converting the warrant proceed-
ing into contempt proceedings. See In re Establishment Inspection of Skil
Corp., 846 F.2d at 1132 (explaining the “standard method” of “allowing the
target of an administrative warrant to forbid entry and thereby convert
the warrant proceeding into a contempt proceeding”). Finally, as we al-
ready have noted, Kohler involved an administrative warrant that already
had been executed. The warrant was executed because we lifted the stay
that had been granted by the district court. If Kohler had an absolute right
to a pre-inspection appeal, we presumably would have kept the stay in
place, or at least noted our error in lifting the stay. Thus, Kohler cannot be
read as establishing a right to pre-enforcement judicial review of admin-
istrative warrants.
AMC also invites our attention to Wedgewood Village Pharmacy, Inc.
v. United States, 421 F.3d 263 (3d Cir. 2005). In Wedgewood, the Third Circuit
concluded that the district court’s order refusing to quash an administra-
tive warrant issued under the Food, Drug, and Cosmetic Act was “tanta-
mount to a final order” because denying immediate review would put
Wedgewood at risk for criminal prosecution under a provision of the Act
that criminalizes the refusal to permit an inspection. Id. at 268. The court
explained that it “s[aw] no reason to require Wedgwood to risk criminal
prosecution merely to obtain appellate review of an administrative war-
rant.” Id. According to the Third Circuit, forcing a party to subject itself to
criminal prosecution was materially different from requiring a party to
subject itself to contempt proceedings. It explained that the
penalties for civil contempt are limited to measures that
may be appropriate to compel compliance with the un-
derlying order and to compensate the opposing party for
losses sustained as a result of the noncompliance. Those
(continued … )
26 No. 21-2661
Conclusion
For these reasons, we dismiss AMC’s appeal for lack of
43
appellate jurisdiction.
APPEAL DISMISSED
penalties are therefore proportional to the noncomplying
party’s resistance to the warrant. Here, however, the pen-
alties Wedgewood could face for noncompliance could
potentially far exceed the harm resulting from its non-
compliance. Accordingly, we conclude that the District
Court’s order refusing to quash the administrative war-
rant is tantamount to a final order.
Id. (citation omitted). By contrast, the OSH Act does not subject an em-
ployer to criminal penalties for refusing to permit an inspection, and AMC
is not at risk for criminal prosecution.
43 Because we dismiss on jurisdictional grounds, we have no occasion to
comment or rule upon AMC’s other arguments concerning whether the
warrant was supported by probable cause, whether it was overbroad, or
whether the magistrate judge exceeded his authority in issuing the August
20 order.