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 unsuc- cessful 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 2 No. 21-2661
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.