Seventh Circuit Holds That Denial of Motion to Quash Administrative Warrant Is Not a Final Order for Immediate Appeal Under 28 U.S.C. § 1291

In Anthony Marano Co. v. Walsh, No. 21-2661 (7th Cir. Oct. 18, 2022), presenting an issue of first impression for the circuit, the Seventh Circuit holds that there is no appellate jurisdiction to review the legal sufficiency of an administrative warrant prior to its execution under 28 U.S.C. § 1291.

“Anthony Marano Company (‘AMC’ or ‘the company’) brought this appeal following its unsuccessful motion to quash an administrative warrant issued by the district court at the request of the Occupational Safety and Health Administration (‘OSHA’).” OSHA applied for a warrant to investigate an employee’s complaint about unsafe operation of heavy equipment in a produce warehouse.

“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 recounted 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 employee fell forward and hit his head. Local emergency personnel transported him to a hospital where he received treatment for back, head, and neck injuries.”

The company moved to stay the warrant “until OSHA provided the company with all documentation supporting its request for the warrant.” Thereafter it moved to quash the warrant on the ground that it violated the Fourth Amendment because it “lacked probable cause.” Supposedly “OSHA had not ‘undertaken the required investigation into the employee complaint’ so as to set forth ‘specific evidence of an existing violation.’ AMC also urged that the warrant be quashed because it was overbroad.” The motion was denied and the company filed an immediate notice of appeal. Contempt proceedings were also filed but stayed pending appeal.

The Seventh Circuit dismisses the appeal. The panel rejects each proffered theory for appellate jurisdiction.

First, it holds that review for the denial of the motion to quash does not fall within the collateral order doctrine because the heart of the appeal is not collateral. “Here, however, the present appeal seeks a determination on the merits: whether AMC must comply with the administrative inspection warrant.

Second, it rejects the finality exception announced in United States v. Ryan, 402 U.S. 530 (1971), for “the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims.” The panel notes that Ryan, reviewing a motion to quash a grand jury subpoena, considered only the “limited exception” for interlocutory review “when property otherwise might be held indefinitely or surrendered to the Government without a determination of a party’s rights.”

Under Ryan, appellate jurisdiction is found only when “denial of immediate review would render impossible any review whatsoever of an individual’s claims.” But the company here “is not without a means to redress the alleged Fourth Amendment violation. First, assuming the Secretary postpones execution of the warrant until the contempt proceedings are concluded, those proceedings 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 violations in the context of administrative proceedings.” (The panel cites a Third Circuit case in support: In re Consolidated Rail Corp., 631 F.2d 1122 (3d Cir. 1980).)

Third, the panel rejects an analogy to orders enforcing administrative subpoenas, which are deemed to be (practically speaking) final. “We see no justification . . . for extending this rule beyond the context of enforcement of administrative subpoenas. Both administrative subpoenas and administrative warrants are investigatory tools, but there are important differences in the administrative process. Administrative subpoenas usually do not raise the same Fourth Amendment concerns as administrative warrants.” Also, “The enforcement process for administrative subpoenas differs from the enforcement process for administrative warrants” because the former are issued ex parte by the agency and the subpoenaed party may “be heard during the enforcement proceeding itself.”

Where, as here, there remain significant ongoing proceedings in the district court that afford the contesting party a full opportunity to set forth its objections to the warrant in an adversarial context,” the order is not final and there is not appellate jurisdiction under § 1291.

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