Raymond J. DONOVAN, Secretary of Labor, Petitioner, v. FEDERAL CLEARING DIE CASTING COMPANY and Occupational Safety and Health Review Commission, Respondents, 695 F.2d 1020

CUMMINGS, Chief Judge. The Secretary of Labor has asked us to review the decision of an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (the Commission) granting respondent Federal Clearing Die Casting Company’s (Federal) motion to suppress the evidence and dismiss the proceedings before him on the ground that the evidence had been obtained through the use of a search warrant we held invalid in Donovan v. Federal Clearing Die Casting Co., 655 F.2d 793 (1981) for want of probable cause. We reverse the order of dismissal.

On January 7, 1980, Federal employee Natalio Alamillo severed his hands while operating a hydraulic punch press on Federal’s premises. Articles concerning the accident appeared in the Chicago Sun-Times on January 9 and 10. Pursuant to the Department of Labor’s Occupational Safety and Health Field Operations Manual, IV-B, XVI-C2c(2), the Occupational Safety and Health Administration (OSHA) tried to conduct a safety inspection of Federal’s workplace on January 10 but Federal refused to permit the attempted warrantless search. On the same date, U.S. Magistrate John W.

Cooley issued a warrant for inspection upon the application of OSHA Compliance Officer John Stoessel. On the following day, Stoessel and another compliance officer again attempted to conduct an inspection of Federal’s premises but they were refused entry this time on the ground that the warrant had been improperly issued. This Court ultimately held the warrant invalid but not until July 29, 1981. 655 F.2d 793. In the interim, OSHA conducted inspections of Federal’s premises pursuant to orders of the district court, resulting in four May 2, 1980, citations.

Instead of holding a hearing on the citations, the ALJ granted Federal’s motion to suppress all evidence obtained through the invalid inspection warrant and dismissed the proceedings on January 4, 1982. He relied on a prior ruling of the Commission in Secretary of Labor v. Sarasota Concrete Co., 9 O.S.H.C. (BNA) 1608 (Rev.Comm’n, 1981), which was appealed by the Secretary and is now awaiting decision after oral argument on July first, 693 F.2d 1061 (11th Cir.). Since the Eleventh Circuit has not yet issued its decision, the matter before us is one of first impression.

In Sarasota Concrete Co., as here, the warrant was sought, received and executed in good faith, but nevertheless a divided Commission held there that evidence obtained from the inspection must be suppressed under the Fourth Amendment. Before discussing that issue we must respond to preliminary arguments advanced by Federal. I.

Federal’s Relitigation Argument Is Baseless Federal first urges that the Secretary cannot litigate the question whether the exclusionary rule applies on the ground that “[t]he Secretary in this appeal is attempting to re-litigate an issue he has already unsuccessfully argued once before this court” (Br. 9). However, this Court rejected that argument when it denied Federal’s motion to dismiss the appeal on March 11, 1982.

In addition, in the 1981 appeal the hearing panel found it unnecessary to reach matters raised by Federal except the question of the validity of the inspection warrant issued without probable cause. 655 F.2d at 798. Consequently, Federal is incorrect in stating that the present issue was decided adversely to the Secretary on the prior appeal. II. The Secretary Exhausted His Administrative Remedies Federal also argues that we cannot consider this appeal because the Secretary “failed to properly exhaust administrative remedies” (Br. 10).

However, the Secretary raised the issue of a good-faith exception to the exclusionary rule when moving the ALJ to set aside his dismissal order (Supp.App. 1-2). Since the issue had been raised by the parties before the ALJ, it was a proper issue to raise before the Commission (29 CFR 2200.92(d)) and it was specifically raised in the Secretary’s petition asking the Commission to overrule the ALJ (App. 126-127). Federal’s further exhaustion contention is that the Secretary’s petition for Commission review was untimely because it was not filed until 28 days after the ALJ’s decision instead of 20 days thereafter.

However, the petition was filed with the Commission’s executive secretary within the requisite 30 days after the judge’s decision. See 29 CFR 2200.91(b)(3). No more was required. Finally, Federal contends that the Secretary cannot support an exception to the exclusionary rule because the Secretary did not attack the Commission’s decision in Sarasota Concrete Co., supra, in his review petition addressed to the Commission. On the contrary, the Secretary in his review petition acknowledged that the ALJ was bound by the Commission’s decision in Sarasota Concrete Co., supra.

Rather than requesting a remand to the ALJ, the Secretary, “in the interest of conserving the Commission’s resources,” asked that the Commission review the ALJ’s order and argued that “the exclusionary rule does not apply here” since the government agents were “acting reasonably and in good faith” and “the Secretary had at all times a reasonable and good faith belief that his actions were proper.” App. 126. III.

The Exelusionary Rule Is Inapplicable Federal’s argument on the merits is that the evidence discovered by the OSHA compliance officers should be suppressed because the warrant authorizing the inspeetion was ultimately held to be invalid in July 1981. This argument overlooks the fact that the inspections were made pursuant to the district judge’s February 20 and April 3, 1980, orders sustaining the warrant’s validity and requiring Federal to permit an OSHA search of its premises (see notes 2 and 3 supra).

Therefore, the question before us is whether the evidence gathered through OSHA’s reasonable and good-faith inspection pursuant to a warrant upheld by the district court and provisionally upheld by this Court must be suppressed under the exclusionary rule because the warrant was invalidated on appeal more than a year thereafter. We hold that a good-faith, reasonable belief exception to the exclusionary rule is appropriate in the circumstances of this case. Although the Supreme Court has not yet reconsidered the validity of the exclusionary rule in criminal cases, Taylor v.

Alabama,-U.S.-,-, 102 S.Ct. 2664, 2669-70, 73 L.Ed.2d 314 (1982), it has never applied the rule in a civil proceeding, thus suggesting “that the rule should not be applied to OSHA proceedings.” Todd Shipyards Corp. v. Secretary of Labor, 586 F.2d 683, 689 (9th Cir.1978). In a criminal case, United States v.

Williams, 622 F.2d 830, 841-846 (5th Cir.1980) (en banc), certiorari denied, 449 U.S. 1127, thirteen members of the then Fifth Circuit did narrow the exclusionary rule by recognizing a good-faith exception as follows (622 F.2d at 840): Sitting en banc, we now hold that evidence is not to be suppressed under the exclusionary rule where it is discovered by officers in the course of actions that are taken in good faith and in the reasonable, though mistaken, belief that they are authorized. We do so because the exclusionary rule exists to deter willful or flagrant actions by police, not reasonable, good-faith ones.

Where the reason for the rule ceases, its application must cease also. The costs to society of applying the rule beyond the purposes it exists to serve are simply too high — in this instance the release on the public of a recidivist drug smuggler — with few or no offsetting benefits. We are persuaded that both reason and authority support this conclusion. In the ensuing seven pages, the Court explained why it was adopting a good-faith exception to the exclusionary rule.

Perhaps the most significant reason for the exception is that the exclusionary rule can have no deterrent effect when, as here, law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds. 622 F.2d at 842.

Consequently, a majority of the en banc Court concluded (622 F.2d at 846-847): Henceforth in this circuit, when evidence is sought to be excluded because of police conduct leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question, if mistaken or unauthorized, was yet taken in a reasonable, good-faith belief that it was proper. If the court so finds, it shall not apply the exclusionary rule to the evidence.

The Tenth Circuit, while not confronted with the identical issue posed in this case, followed the lead of the Fifth Circuit, ruling that the Williams reasoning “is equally applicable to civil OSHA enforcement proceedings.” Robberson Steel Co. v. OSHRC, 645 F.2d 22, 22 (10th Cir.1980). In Robber-son and the earlier case of Savina Home Indus, v. Secretary of Labor, 594 F.2d 1358 (10th Cir.1979), the Court refused to apply the exclusionary rule to OSHA proceedings involving warrantless inspections occurring before Marshall v. Barlow’s Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305.

The Court reasoned that OSHA inspectors could not be charged with knowledge of a warrant requirement before Barlow’s was decided and that therefore the exclusionary rule’s deterrence function could not be served. Accord, Todd Shipyards Corp. v. Secretary of Labor, supra. The Court, in effect, recognized a reasonable, good-faith exception to the exclusionary rule. Just as in criminal cases, there would be “substantial societal harm incurred by suppressing [the] relevant and incriminating evidence” uncovered by the inspections here. See United States v. Williams, supra, 622 F.2d at 843.

Application of the exclusionary rule in this case would preclude the Commission’s issuance of an order requiring abatement of hazardous working conditions at Federal and also preclude the issuance of subsequent citations with enhanced penalties to ensure compliance with the Occupational Safety and Health Act. See Atlas Roofing Co. v. OSHRC, 518 F.2d 990, 1002, 1009, 1010 (5th Cir.1975), affirmed, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464. The Secretary might be unable to obtain another warrant to reinspect Federal because the original probable cause might be too stale or non-existent now.

In addition, the purpose of the Act to regulate “a myriad of safety details that may be amenable to speedy alteration or disguise,” Marshall v. Barlow’s, Inc., 436 U.S. 307, 316, 98 S.Ct. 1816, 1822, 56 L.Ed.2d 305, may have been or could easily be thwarted even though there is no question about the Secretary’s good faith and reasonable belief that his action was proper. We cannot credit Federal’s statement that the exclusionary rule should be applied to deter OSHA personnel from agency excesses, because the Secretary has acted reasonably and in good faith.

Indeed in all the OSHA warrant cases before this Court after the Supreme Court required a warrant in Barlow’s, Inc., supra, in 1978, only the warrant to inspect Federal was found by us to be unsupported by probable cause. Furthermore, the Secretary has reminded us that there are already substantial deterrents to OSHA violations of employers’ constitutional rights.

Thus a neutral magistrate’s approval must be obtained before the Secretary may inspect premises over an employer’s objection, and the employer may still move to quash a warrant prior to its execution or refuse entry pursuant to the warrant unless the Secretary prevails in civil contempt proceedings. See Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 631 (7th Cir.1982). Finally, as this Court noted in United States v. Carmichael, 489 F.2d 983, 988 (7th Cir.1973) (en banc), “good faith errors cannot be deterred” by the exclusionary rule.

In particular, a good-faith, reasonably based violation of this type cannot be deterred. OSHA would continue to be justified in executing a warrant issued by a magistrate, when as here it was approved by the district court and preliminarily by us. It is noteworthy that the Secretary did not conduct his inspection until the April 3, 1980, district court’s second authorizing order, which was more than a month after we had denied Federal’s stay request.

Such judicial approval certainly demonstrates the Secretary’s good faith, the reasonableness of his belief that the warrant was proper, and his caution before executing the warrant. The Commission’s order suppressing the evidence obtained pursuant to the warrant and dismissing the proceedings is reversed, and the cause is remanded for hearing on the merits of the four citations. . The ALJ’s order became a final order of the Commission under 29 U.S.C. § 661(

i) because no member of the Commission granted the Secretary’s petition for review. . OSHA alleged the existence of 16 serious, 5 wilful, 5 repeated, and 2 other-than-serious violations, and proposed penalties of $35,400 (App. 001-009). Although the citations state that the inspections occurred from January 10, 1980, until May 2, 1980, they did not occur until after this Court denied Federal a stay pending appeal on February 27, 1980, and after the district court issued a further order on April 3, 1980. See Secretary’s Br. 3, Supp.App. 5, and 655 F.2d at 795. .

In the present case the warrant was executed by the Secretary a few weeks after this Court handed down an order on February 27, 1980, denying Federal a stay pending appeal because “we cannot conclude that it is likely that the appellant [Federal] will prevail on the merits of this appeal,” although Federal ultimately did prevail on July 29, 1981, when the initial appeal was decided. 655 F.2d 793. .

The dissent suggests that despite the explicit disclaimer by the panel, the Secretary is precluded by res judicata from raising the applicability of the exclusionary rule because he raised it in a petition for rehearing after the 1981 panel decision (infra, p. 1025). The dissenting judge cites no authority, and we know of none, to support the view that denial of a rehearing without an opinion on an issue that was expressly left undecided by the original panel is equivalent to a holding on that issue for res judicata purposes. .

The dissent argues that “asking the Commission to review an involved constitutional issue within forty-eight hours of a mandated finality deadline” is insufficient time (infra, p. 1026). However, 29 C.F.R. 2200.91(b)(3) does not require a Commission decision on the issue within thirty days, but only that a Commission Member decide to accept the case for review within that time period. . Federal and the dissent argue that the Commission may choose to apply the exclusionary rule “as a matter of its own policy pursuant to its supervisory power over the Act’s enforcement” (Br. 21-28; infra p. 1027).

But the ALJ applied the exclusionary rule here under the Commission’s decision in Sarasota Concrete Co., supra, which rested heavily on Fourth Amendment grounds. 9 O.S.H.C. (BNA) at 1612-1615. The Secretary has convincingly responded that the supervisory argument falls in the light of United States v. Payner, 447 U.S. 727, 736-737, 100 S.Ct. 2439, 2446-2447, 65 L.Ed.2d 468, and United States v. Williams, infra, 622 F.2d at 846-847 (Br. 11-13).

We hold that the Constitution does not warrant the ALJ’s and the Commission’s applying the exclusionary rule in the circumstances of this case and that therefore this evidence is not to be suppressed. . The question whether there should be a reasonable and good-faith exception to the exclusionary rule in criminal cases may be resolved by the Supreme Court in Florida v. Royer,-U.S.-, 103 S.Ct. 1319, 75 L.Ed.2d 229 or in Illinois v. Gates, — U.S.--, 103 S.Ct. 436, 74 L.Ed.2d 595. .

Judges Hill’s and Fay’s concurrence joined in the majority rule established in the joint opinion of Judges Gee and Vance in which nine other members of the Fifth Circuit also concurred. 622 F.2d at 840 n. ***. The Commission was therefore incorrect in stating in Sarasota Concrete Co., supra, that only 12 of a 24-judge panel joined in the good-faith exception adopted in Williams. . The Tenth Circuit did say in dicta that in post-Barlow’s inspections “the exclusionary rule would be applicable to OSHA proceedings involving inspections violative of the warrant requirements announced in Barlow’s.” 594 F.2d 1358, 1363.

It also noted, citing Todd Shipyards, supra, that “the Ninth Circuit has recently suggested the contrary.” 594 F.2d at 1363 n. 7. However, both cases involved warrantless searches, while the case before us today involved a warrant executed only after the district court had approved the warrant and this Court had denied a stay pending appeal. See supra note 3. . See Rockford Drop Forge Co. v. Donovan, 672 F.2d 626, 631 (7th Cir.1982); Marshall v. Milwaukee Boiler Mfg. Co., 626 F.2d 1339, 1342, 1343 (7th Cir.1980); Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313, 1319 (7th Cir.1980). .

The dissent notes that it might be “arguably persuasive to a government agent who has in his grasp a court approved warrant that he was entitled to proceed lawfully and therefore he would be acting in good faith” (infra, p. 1030). The decision in this case rests on even stronger grounds. The warrant was not only approved by the district court but this Court refused to stay the district court’s order. See supra notes 2 and 3. Reliance on such judicial approval is certainly reasonable.