*1 Vaughn United v. decisive.” cannot be Cir.1991). States, Ac CONSTRUCTION, F.2d TRI-STATE STEEL by the provided materials INC., al., Petitioners, cordingly, “[t]he et long any form as may take so agency a reasonable basis reviewing court give the SAFETY & OCCUPATIONAL HEALTH Delaney, privilege.” claim of to evaluate COMMISSION, al., et REVIEW IRS, Young, Chartered Migdall & Respondents. (D.C.Cir.1987). F.2d 92-1614. No. supplied by government The affidavits to allow district sufficiently detailed Appeals, United Court of States fairly whether the Craeraft to evaluate court Circuit. District Columbia agency records constituted correspondence Feb. Argued affida- meaning of the FOIA. The within the district to allow the were also sufficient vits 17, 1994. June Decided fax the names of the assess whether court to Aug. Rehearing Denied un- exempt from disclosure recipients were Exemption 6. der FOIA in a simi the Sixth Circuit noted
As justify need not setting, government “the
lar document-by-document; it withholdings
its eategory-of-doeument so do instead long as its defini
category-of-document,” so “sufficiently categories are
tions of relevant ... allow a court to determine
distinct to exemptions are specific claimed
whether the States, Vaughn applied.” v. United
properly omitted). (internal quotation
We consider justify withholding of the
gation here recipients on an individual- the fax
names of Exemption FOIA
by-individual basis under suggest, and that is the appellant seems to
as justifiably upon which we could
only ground summary. of such a production
require
III. Conclusion agree corre- that Cracraft’s
Because con- relating to her renomination
spondence rec- “agency rather than personal
stituted Vaughn Index production of a
ords” and adequacy of the necessary given the
was not affidavits,
government’s orders hereby are affirmed.
district court
It so ordered. *2 Seifried,
Kent KY, W. Newport, argued cause, briefs, petitioners. filed Shortall, Atty., John Dept, Labor, U.S. DC, Washington, argued cause, for re- spondents. With him on the brief was Jo- seph Woodward, M. Sol., Occupa- Associate Safety Health, tional and Barbara Werthmann, Counsel for Appellate Litiga- tion, Dept, Labor, Washington, DC. MIKVA, Before Judge, Chief WILLIAMS SENTELLE, Circuit Judges. Opinion for the Court by filed Judge Chief MIKVA.
Concurring opinion Judge STEPHEN F. WILLIAMS.
MIKVA, Judge: Chief Occupational Safety and Health Ad- (“OSHA”) ministration conducted related inspections of a multi-employer bridge and project which tioners, National Engineering Contracting & (“National”) Company wholly-owned and its subsidiary Steel Construction Company, (“Tri-State”), Inc. were subcon- 28th, April Washington Way violat- Fort mo- Petitioners for OSHA cited tractors. standards es- torists found themselves channelled di- and health ing several Occupational go. Safe- did not want to pursuant to the rections which tablished 1970. 29 U.S.C. fifty apart, Act of ty and Health Because the barrels were set feet (1988 Supp.1993). §§ & 651-678 to cut motorists were able between them and *3 alia, citations, alleging, inter the contested work in order to across the area reach their inspections of the construction that OSHA’s criss-crossing the traf- desired lanes. When within unreasonable searches site constituted problem began, fic first Petitioners contacted meaning of the Fourth Amendment. the request police protection the State of Ohio to for The directed their workers. State the merits, hearing on the an adminis- After a general reposition contractor to the barrels (“ALJ”) judge held the searches trative law by placing at 25-foot intervals. them When constitutionally permissible. The Occu- to be ineffective, proved placed this de- Safety Review Commis- pational and Health bris and other items between the barrels to (“Commission”) affirmed the ALJ’s con- sion discourage cutting through traffic from the clusion, petition this and Petitioners filed criss-crossing problem work area. the When lacked a rea- review. Because Petitioners persisted, agent Petitioners’ iron work- sonable Complaint § 8(f)(1) ers filed a with OSHA site and OSHA areas of their construction detailing the nature and location the pursuant to inspected other areas of the site employees hazard to which site were ex- warrant, deny the a valid administrative 657(f)(1). posed. § 29 U.S.C. review. petition for promptly
OSHA commenced an Background I. Way specific Washington of Fort the area 4,1989, Complaint. May described in the On as National and Tri-State worked seeking without an administrative major reconstruction and subcontractors on dispatched compliance offi- Project 8. project known as rehabilitation The cer and trainee to the construction site. of 36 Project 8 involved the restoration OSHA officers drove between barrels bridges in a four-mile stretch where three parked their vehicle in the cordoned area Cincinnati, major highways converged in highway. representa- When Tri-State promote both the Ohio. To officers tives asked them to leave convenience of area driv- 8 workers and the refused, area was claiming that the condoned ers, developed, the State Ohio they right public property to which had a implemented, a project’s general contractor thereafter, Shortly Petitioners’ at- access. plan to reroute traffic around traffic control torney and advised the OSHA offi- arrived Petitioners bore no the construction area. inspection and to obtain to cease their cers designing implementing responsibility for or if inspection warrant an administrative plan. to continue. wished gen- evening April On the on-site for officers remained The OSHA contractor, acting in accordance with the eral compli- the afternoon. The the remainder of in a V-like plan, set barrels traffic control the Fort measurements of ance officer took area Petitioners’ worksite formation around Way site and took Washington high- Washington Way, a four-lane on Fort employees. The from on-site statements project The bar- way intersecting the area. videotaped flow at the site. traffic trainee highway’s two center lanes isolated the rels returned to the site compliance The officer rerouting outer left- and traffic policeman that a day to ensure the next lane channeled right-hand lanes. 8th, present. Ohio; Dayton, the left north toward traffic around intervals placed at 10-foot barrels Kentucky. traffic south into lane channeled plas- strung orange Petitioners’ worksite “V,” they had no split ears off Once com- When the meshing between them. tic back to the oth- opportunity to cross further to the construction returned pliance officer lane of traffic. er 8th, Monday, May site on he confirmed that held OSHA’s warrantless of Peti- problem the traffic control had abated. tioners’ worksite because Petitioners’ con- “open struction site fell within the fields” During day inspection his three of Fort exception to the Fourth Amendment. The Washington Way, officer al- Commission affirmed the ALJ’s conclusion legedly observed two hazards in addi- inspected entirety OSHA had moving tion to the improp- vehicular traffic — to a valid administrative erly gases used and stored flammable search warrant. Petitioners seek review of improperly welding used rods. Based on these determinations. observations, these OSHA sought expand encompass the full four its miles bridges elevated roads and that defined II. Discussion
Project 8. Both Petitioners
*4
A.
Inspection
OSHA’s Warrantless
objected
contractor
to this decision and de-
manded that
obtain
an administrative
governmental
Whether a
search or
inspection
expanding
warrant before
the
implicates
seizure
the Fourth Amendment
scope
inspection.
of its
usually involves
analysis.
a two-fold
To come
under
Amendment,
rubric of
the
the Fourth
Citing
multiple safety
the
hazards it had
subject
the
of the search must show that it
inspection
observed in its limited
of Petition-
subjective
“has manifested a
expectation
site,
ers’ construction
OSHA applied for and
privacy
object
in the
of the challenged
obtained an administrative search warrant
Ciraolo,
search.”
207,
Project
for all
10-16, 1989,
May
8. From
California
211,
1809, 1811,
106 S.Ct.
OSHA conducted a
inspection
full-scale
addition, society
In
“willing
must
Project
be
8 and cited Petitioners for several
recognize
to
expectation
that
as reasonable.”
additional
and health standards viola-
Id.
party
Whether
has
manifested
sub
tions it observed. Petitioners contested the
jective expectation
privacy
question
is a
before
citations
judge
administrative law
fact,
under
clearly
reviewed
the
arguing
erroneous
that both the
inspection
warrantless
Welliver,
standard. United States v.
May
on
976
and
comprehensive
the more
Cir.1992).
F.2d
Whether
inspection
warrant-based
10-16 vio-
subjective
that
expectation
objectively
is
rea
lated the Fourth Amendment. After a hear-
subject
sonable is a matter of law
de
ing
merits,
to
novo
on the
the
inspec-
ALJ held the
review.
Id. Because we conclude that the
tions to be constitutionally permissible. The
arrangements
between Petition
upheld
ALJ
OSHA’s
inspection
warrantless
ers,
contractor,
general
the
and the federal
because the cordoned area of
Washing-
Fort
government preclude Petitioners
Way
ton
from estab
public right-of-way
was a
and the
lishing any
reasonable
inspection encompassed only
aspects of
those
in
open
the
Project
areas of
we need not
the construction “which
plain
were in
view of
subjective
assess the
element of
all.”
Petitioners’
Finding
the additional
and
claimed
interest. Similarly, in dis
health standards violations that OSHA un-
posing of Petitioners’
through
claims
conven
in
covered
its initial
to be a valid
tional
analysis,
Fourth Amendment
we need
upon
basis
which to issue an administrative
not reach
question
the more novel
of whether
search
the
upheld
ALJ
OSHA’s
Petitioners’ construction site falls within the
warrant-based
as well.
Fourth
“open
Amendment’s
exception.
fields”
appeal,
rejected
the Commission
the
reasoning regarding
search,
ALJ’s
the initial
The contract between the State of Ohio
upheld
but
the constitutionality of
OSHA’s
and the
provides
contractor
that
inspections.
Because the
officers
“[w]hen the United
pays
States Government
were “trespassing in an area
any
that was
all or
portion
project,
of the cost of a
the
only
Respondents’
to the
employees,” the
Federal
laws
the rules and regulations
Commission determined that
the
made
to such laws must be ob-
justified
could not be
“plain
under
Contractor,
view”
served
shall
work
Nonetheless,
doctrine.
up-
subject
Commission
be
to
appropri-
plain
lay
view.
beyond
site that
funds
struction
federal
agency.” That
Federal
ate
Barlow’s, Inc.,
See Marshall
undisputed. Be-
Project
used
were
1816, 1820,
Although rely on Donovan v. Co.,
Sarasota Concrete
Cir.1982), argue rely WILLIAMS, Judge, STEPHEN F. Complaint on a specific about violations concurring in the result: delimited area to establish administrative probable cause to conduct a full-scale work- agree I with the court that Tri-State had investigation, they site misapply Donovan to no privacy”, “reasonable the facts of this case. The Commission did claim, therefore no 4th Amendment not find that Complaint entirely open areas of the construction site. justified itself the full-scale inves- view, however, my the contract between tigation Rather, the Commis- State of Ohio and the sion determined that OSHA’s administrative (incorporated into Tri-State’s contract plan justified a expansive inspec- more site reference) Rather, explanation. not the it because, tion in the course of investigating completely open is the character of the area Complaint, multiple, po- observed involved, fully exposed to the view of the tentially serious beyond violations thousands of passed by motorists who those mentioned in Complaint. *6 only site —itself lanes wide. Dunn, See 294, 107 United States v. argue Petitioners further that the adminis- S.Ct. trative search Dunn warrant was invalid because it reasonably clear, think, makes I that upon based application in which “open fields” applied doctrine that it is sim “knowingly intentionally or with ply special a case of the more disregard doc reckless for truth” made mate- trine that a expectation reasonable “misrepresentations.” rial of Specifically, Peti- necessary for a successful 4th tioners Amendment application contend that OSHA’s claim. See id. at 107 S.Ct. at failed to inform magistrate that the traf- (invoking “open fields” fic doctrine and problem observ at the worksite had abated ing that the extent of “curtilage” of objected and that expressly to protected by house the 4th Amendment “is Although warrantless search. Peti- by upon determined factors that bear tioners believe wheth this information to be “criti- er an reasonably may individual expect cal” to that determination of administrative question the area in cause, probable should be treated found, as the the Commission itself’). home agree, could not that have a “do not undercut reasonable of Secretary’s in an showing of area proba- administrative anyone driving through that ble Cincinnati could full-scope cause for a investigation.” peer at will through. into —and Notwithstanding OSHA’s failure mention the site’s traffic hazard had abat- I think implicitly the court concedes that ed, application OSHA’s warrant contained this is what drives the outcome when it ac- ample evidence of additional hazards knowledges, OSHA, as did that whatever 8 construction site. rights entry by were established the con- tracts did not extend to the areas concealed III. Conclusion “plain from Maj.Op. view”. at Nothing fact, the contracts so limits them. Tri- tioners objections contractor afforded State’s to reliance on the contracts “appropriate inspectors” quite persuasive. seem to me Surely agree- normally by A should ment to expec- blanket abandonment read as a
be of B against the invasions
tations Z; say it does is to create
through Amendment astonishing gap
rather Further, nothing in the con-
protections.
tract, “shall simply warns that the site which appropriate subject inspection of the inspections agency”, says that such
Federal ordinary occur without observance
legal norms. Himmelfarb, Justice, Dept,
Edward U.S. DC, cause, peti- Washington, argued the for him on the briefs were Frank tioners. With Gen., Hunger, Atty. and William W. Asst. Kanter, Justice, Dept, Washington, DC. Persina, Rela-
William E. Federal Labor DC, Authority, Washington, argued the tions DEPARTMENT OF STATES UNITED cause, respondent. With him on the brief Reclamation, INTERIOR, Bureau Smith, Sol., David M. and Frederick M. Region, River Upper Colorado Colorado Herrera, Authority, Labor Relations Federal Operations Storage Project Power Of- Washington, DC. Department fice; United States Reclamation, Interior, Great Bureau EDWARDS, GINSBURG, and Before: Petitioners, Region, Plains HENDERSON, Judges. Circuit Circuit Opinion for the Court RELATIONS FEDERAL LABOR Judge EDWARDS. AUTHORITY, Respondent. EDWARDS, Judge: HARRY T. *7 No. 93-1213. (“Bu the Bureau of Reclamation reau”), Department of the of the a division Appeals, States Court United (“DOI”), unilaterally removed cer Interior Circuit. District of Columbia bargaining units from two supervisors tain i.e., Argued “mixed,” con historically been had non-supervisory supervisory and sisting of June Decided the su representing unions personnel. The charging that grievances, pervisors proposed of its give notice DOI’s failure bargaining of the changes composition bar governing collective units violated agreements. parties submitted gaining arbitration, and the arbitrator dispute to the collective had breached held that DOI Labor The Federal bargaining agreements. (“FLRA” “Authori Authority or Relations the arbitra exceptions to ty”) DOI’s denied Dep’t the Inte award. United States tor’s denied, (1992), rior, recons. 46 F.L.R.A. petitions for DOI F.L.R.A. 1202 FLRA’s order. review