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Fifth Circuit: Remedy for Abuse of Administrative Warrants is a Bivens Action

By E.L. Lipman

In an interesting opinion issued by the U.S. Court of Appeals for the Fifth Circuit before the close of 2007, the appellate panel held that manufacturers do not have a constitutional right to pre-execution hearings on the sufficiency of administrative warrants issued by the federal Occupational Health and Safety Administration; and that OSHA officials may execute such warrants through force, if necessary, by enlisting the aid of the U.S. Marshals Service.

The manufacturer originally refused to permit OSHA investigators to inspect its facility; but did so under protest after the investigators returned to the plant with three armed deputies from the Marshals Service.

As part of a later petition for review, the appellate panel rejected the manufacturer's argument that a pre-execution review of administrative warrants was the only possible check upon official over-zealousness. Disagreeing, the panel remarked: "There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action?. [And] Bivens has an advantage that Trinity's proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant."

The panel's complete analysis is accessible here ? and for an early-morning, unannounced walk down memory lane, the U.S. Supreme Court's opinion in Bivens v. Six Unknown Fed. Narcotics Agents is accessible here.

Full post as published by Within the Scope on January 06, 2008 (boomark / email).