Eleventh Circuit Limits Scope Of Unprogrammed Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On October 9, 2018, the Eleventh Circuit Court of Appeals in U.S. v. Mar-Jac Poultry, Inc., affirmed a district court order quashing a search warrant which sought to expand the scope of an unprogrammed OSHA inspection.

Following an electrical accident at Mar-Jac Poultry, Inc., a Georgia poultry processing plant, OSHA requested to inspect not only those hazards involved in the electrical accident, but also to conduct a comprehensive inspection of the entire facility for additional hazards. Mar-Jac consented to inspection of the electrical accident site and the tools involved, as well as its OSHA 300 Logs, but refused to permit inspection of any additional areas or hazards.

In its application for a judicial warrant for an expanded inspection, OSHA sought to inspect (1) hazards implicated by the OSHA 300 logs, and (2) hazards that the Poultry Regional Emphasis Program (“REP”) identified as being of particular concern within the poultry processing industry. OSHA obtained its requested warrant, but Mar-Jac promptly filed an emergency motion to quash.

The District Court granted the motion to quash as to the hazards identified in the Poultry REP. The Court found OSHA had failed to establish that Mar-Jac was selected for inspection pursuant to the application of neutral criteria. OSHA did not appeal this ruling.

The District Court also granted the motion to quash as to five hazards implicated by the OSHA 300 logs.  OSHA did appeal this ruling to the Eleventh Circuit.

In affirming the District Court ruling, the Eleventh Circuit opined: “The existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”  Upon analysis, the Court thus ultimately found: “The content of the OSHA 300 logs in this case fails to create reasonable suspicion [of an OSHA violation] either alone or in combination with the other information in the [warrant] application.”

The Eleventh Circuit ruling confirms what this blog has urged in multiple posts.  There are limits to the permissible scope of an unprogrammed OSHA inspection. If OSHA is unwilling to agree to a limited inspection, there are options which can be explored with legal counsel for fighting an expanded inspection.

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