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Click here for the full text of this decision FACTS:On Oct. 21, 2004, as part of a general inspection program, compliance officers from the Occupational Safety and Health Administration visited Trinity Marine Products’ facility to conduct an inspection. Trinity denied the inspectors entry with the explanation that its designated representative to OSHA was not present. On Nov. 30, 2004, OSHA obtained an administrative search warrant from a federal magistrate judge. On Dec. 8, 2004, the compliance officers, warrant in hand, returned to Trinity’s facility. Trinity officials asked for copies of the warrant’s supporting documentation, which the compliance officers declined to provide. Trinity then refused to permit the compliance officers to inspect the facility. The officers called an assistant U.S. attorney, and Trinity officials in turn phoned legal counsel. The assistant U.S. attorney advised Trinity’s counsel that unless the compliance officers were allowed to inspect, federal marshals would be dispatched. Trinity’s counsel rejoined that the proper procedure to enforce an administrative warrant is to commence a contempt proceeding and not execute the warrant by force. At an impasse, the compliance officers contacted their supervisors, who told them to leave the facility. Shortly thereafter, a federal marshal contacted the compliance officers. With the help of three marshals, the officers returned to the workplace and informed Trinity officials that unless the inspection went forward, the company’s officers would be arrested. The company assented. When the marshals left, however, Charles Latiolais, Trinity’s designated representative to OSHA, arrived and again forbade the inspection without first reviewing the warrant’s supporting documentation. The compliance officers telephoned the marshals, who threatened Latiolais that unless the inspection was permitted, “somebody will be in chains.” The Trinity officials permitted the inspection, stating that it was being allowed “under protest.” Trinity filed an emergency motion in federal court to enjoin the inspection, contending that the warrant lacked probable cause and that forceful execution of an administrative warrant is unlawful. The compliance officers, however, completed the inspection before the court held a hearing on Trinity’s motion. At the hearing on Dec. 9, 2004, OSHA successfully argued that because the warrant had been executed, Trinity was required to exhaust its administrative remedies. OSHA later issued citations based on evidence obtained from the search. Before an administrative law judge, Trinity contested the citations and raised its constitutional challenge and other arguments that the search was unlawful, contending that the search’s illegality should result in the suppression of evidence. The ALJ rejected those arguments, and the Occupation Safety and Health Review Commission (OSHRC) declined to review the ALJ’s decision, thus making it a final order of OSHRC pursuant to 29 U.S.C. �659(c). Trinity petitioned the 5th U.S. Circuit Court of Appeals, pursuant to 29 U.S.C. �660, to review the search’s legality. HOLDING:The 5th Circuit denied the petition for review of the administrative law judge’s decision. The heart of Trinity’s case, the court stated, is its claim that there is a constitutional right � an amalgam of the Fourth and Fifth Amendments � to contest an administrative warrant’s validity in federal court before its execution. Otherwise, Trinity argued, an unconstitutional search could escape federal court review if OSHA merely declines to issue citations, leaving no administrative forum to hear the claim. To give force to this pre-execution right, Trinity contended that an administrative warrant cannot be forcefully executed, but that, instead, OSHA must commence civil contempt proceedings against recalcitrant targets. Answering a question of first impression, the court agreed with the ALJ that there is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force. Trinity’s argument, the court stated, made no sense: “Just as in the criminal context where a search by federal officers violates a suspect’s constitutional rights but no charges are filed, a victim of an unconstitutional administrative search can affirmatively bring the grievance before a federal tribunal by means of a Bivens suit. There is no danger of an unremedied constitutional wrong.” The court referenced the 1971 U.S. Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. At least in general practice, the court stated, administrative warrants are different from criminal warrants also in how they are executed: If an employer refuses to allow OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA to bring an action for contempt against the employer. In contrast, the government may break down a door to enforce a criminal search warrant. But the court noted that the issue presented in Trinity’s case is whether the Constitution forbids the forceful execution of an administrative warrant. Although targets of administrative warrants may use a civil contempt proceeding or a hearing on a motion to quash such warrant, the court stated that nothing precludes the use of U.S. marshals to enforce a warrant. In fact, the court noted that by fashioning a lower probable cause standard for administrative warrants without alluding to any constitutional change in how the warrants were to be administered, the U.S. Supreme Court made it clear that an administrative warrant is a “less protective” form of warrant as far as constitutional rights. OPINION:Smith, J.; Higginbotham, Smith and Owen, JJ.

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