On Appeal from the United States District Court for the Eastern District of Wisconsin
Before Castle, Senior Circuit Judge, and Tone and Wood, Circuit Judges. Before Castle, Senior Circuit Judge, Tone and Wood, Circuit Judges.
CASTLE, Senior Circuit Judge. The question presented by this appeal is whether an application by the Occupational Safety and Health Administration (OSHA) for a warrant to conduct an inspection of a workplace pursuant to an employee complaint of an unsafe working condition met the probable cause requirements for administrative searches laid out in Marshall v. Barlow's, 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978) and Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). Such inspections in response to employee complaints are required by section 8(f)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(f)(1), ("the Act"). Affirming the district court, we hold that the warrant application here was insufficient.
The paragraphs of the affidavit seeking to establish probable cause state: 2. On February 15, 1977, the Occupational Safety and Health Administration ("OSHA") received a written complaint from an employee of Northwest Airlines, Inc. This complaint alleged, in pertinent part, that violations of the Act exist which threaten physical harm to the employees, and an inspection by OSHA was requested. Based on the information in the complaint, OSHA had determined that there are reasonable grounds to believe that such violations exist, and desires to make the inspection required by section 8(f)(1) of the Act.
3. The desired inspection is also part of an inspection and investigation program designed to assure compliance with the Act and is authorized by section 8(a) of the Act.
In an opinion preceding Marshall v. Barlow's, supra, the district court held that paragraph 2 of the affidavit failed to establish particularized probable cause because it did not provide the magistrate with the underlying factual data giving rise to the compliance officer's belief that a violation existed. Furthermore, it found that paragraph 3 failed to show that "reasonable legislative or administrative standards for conducting an... inspection are satisfied with respect to a particular [establishment]," Camara, supra at 538, because the affidavit did not describe the inspection program or set forth the criteria employed by the Secretary in determining that this inspection was part of such a program.*fn1
Barlow's confirmed the district court's analysis that probable cause for an administrative search could be established either by (1) specific evidence of an existing violation or (2) a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. 98 S. Ct. at 1824.
The Secretary does not attempt to argue that his affidavit establishes specific evidence of an existing violation. Rather, he argues that section 8(f)(1)'s provision for the inspection of plants from which OSHA receives an employee complaint constitutes a "reasonable legislative standard" for conducting inspections.*fn2
The question of whether section 8(f)(1) constitutes "a general administrative plan... derived from neutral sources," Barlow's, supra at 1825, should not, however, divert us from the true problem in this case, which is the total lack of any description of the "inspection and investigation program" referred to in paragraph 3 of the affidavit. In Barlow's the Supreme Court stated in reference to a warrant application virtually identical to paragraph 3 of the application in the instant case*fn3 that "the program was not described... or any facts presented that would indicate why an inspection of Barlow's establishment was within the program." 98 S. Ct. at 1826 n. 20. This passage makes it clear that the magistrate has two functions to perform under Barlow's' second method of establishing probable cause: (1) He must determine that there is a reasonable legislative or administrative inspection program and (2) he must determine that the desired inspection fits within that program.
The affidavit here provides insufficient information for the magistrate to perform the first of these functions, so a fortiori he is unable to perform the second. Paragraph 3's bare assertion that there is an "inspection and investigation program" does not permit the magistrate to ascertain that there is in fact a program or what the nature of such a program might be, let alone whether it is reasonable. It is only in the Secretary's briefs that we are told the "program" of paragraph 3 refers to the alleged section 8(f)(1) "program" of inspecting pursuant to employee complaints. But the identification of the program must take place in the warrant application itself in order to enable the magistrate to perform his first function under Barlow's. Accordingly, we hold that the warrant application here was insufficient to support the issuance of a warrant as it failed to describe or identify the program which allegedly supported the desired inspection.
Because of our disposition of the case we need not decide whether section 8(f)(1) constitutes the type of "general administrative plan for the enforcement of the Act derived from neutral sources" contemplated by Barlow's or whether such plans fall within the definition of a "rule" under APA § 551(4) and therefore must be adopted in conformity with the informal rule-making procedure of APA § 553. We also do not reach the issue of whether the magistrate must be presented with the substance of the employee complaint in order to fulfill his second function of determining whether the desired inspection fits within the plan or program.
For the reasons stated, the judgment ...