*3 KRAVITCH, Circuit Judge: interlocutory appeal This is an under 28 1292(a)(1) U.S.C. from grant § preliminary injunction by the district court staying the execution of an inspec- tion warrant issued a duly authorized magistrate.1 conducting After an eviden- tiary hearing the district court issued the injunction primarily on the basis that supported by probable warrant was not cause. The court also found that the war- overly agree rant was broad. We appellant the district court erred both conclusions.
I. Appellee, Point-Pepperell, West Inc. (WPP), operates Lindale, a cotton mill at Georgia. regulations, Pursuant to OSHA program requiring WPP instituted a em- ployees respirators working to wear when Gill, Atlanta, Ga., Lawrence E. Charles I. in areas of the mill in which cotton dust Hedden, Feldman, Allen H. Andrea C. Cas- permissible exposure exceeded levels. son, Labor, Washington, D. Dept, U. S. WPP response program, employees C., for defendants-appellants. petition numerous letters to sent and others, complaining about the OSHA and Smith, Costangy, Brooks & Charles A. respirator regula- and OSHA’s cotton dust Edwards, Atlanta, Ga., plaintiff-appel- insisting employees tions and informed lee. cotton hazards of dust should required respirators only to wear on a vol- untary basis. At least one of the letters stated that use of the received OSHA respirators causing physical ailments KRAVITCH, headaches, dizziness, Before nausea, RONEY and Circuit such as and *, Judges, Judge. and PITTMAN Pursuant inter- fainting.2 agency’s District * Pittman, Virgil Judge employee Honorable U. S. District Each below is aware of the dan- Alabama, sitting by ger regards for the Southern District of in cotton dust to a disease designation. byssinosis (brown lung). called employees However we the still feel the issuing voluntary 1. The kept district its order dust mask should be on a preliminary injunction quashed also the war- basis.” Thus, appears it as if rant. the district court employee appended The letter to the warrant has decided the merits of this case and has application stated: provided appellee requested. with the full relief May Nevertheless, only Jimmy because the court issued President Carter preliminary injunction appeal and the comes to The White House interlocutory appeal, as an we Washington, us review the D. C. granting district court’s decision as one EMERGENCY!!! preliminary relief. Mr. President: Dear writing I am about the dust masks that signed by employ- petition over WPP 2. The requiring Point OSHA is us to wear at West ees stated: Mills, Lindale, Pepperell’s Georgia. Lindale “We the textile workers of West Point We them! cannot tolerate Pepperell rights People having feel our have been violated to be taken out on regards oxygen. OSHA in to their recent dust stan- stretchers The and revived with headaches, nausea, requirements. causing dard masks are dizzi- though employees complaint procedures,3 reported
nal verification to the clinic conducted off-site interviews of 57 OSHA symptoms, with these none were medically signed peti- either the employees who had examined; company made no eval- allegedly The interviews or letters. respirators of fit' when uation were disliked wear- employees revealed that issued, although a few employees received ing respirators, that seven interviewees fit; instructions on how to insure a use, had fainted as a result of such and that employee physician and that an whose own complained several respira- determined him unsuited to wear a difficult, breathing pain made caused chest tor department was transferred another dizziness, interfered with their vi- pay. in the mill' but with a severe cut in Moreover, sion. the interviews indicated were completed After interviews were not aware of hav- compliance officers returned from their ing medically been examined to determine walk-around, general company their wear refused physical ability respirators. permit inspec- to continue with its OSHA information, agency Based this following representatives tion. The week grounds decided that there were reasonable parties attempted of both met to review to suspect violations of OSHA’s inspection. company’s respirator pro- standards, July and cotton dust and on training gram was discussed and its film 1980, attempted an conduct Moreover, viewed. WPP identified four- compliance the mill. officers held opening represent- conference with WPP monitoring teen areas of the mill that through the plant atives and walked permissible indicated were above cotton *5 with layout. During orient themselves exposure dust levels and admitted that the time, agency physicians that two conducted required use of was in those interviews of 13 WPP and that the hoped areas. WPP had informa- that learned workers received little or no meeting provided tion at the would be suf- on the instruction adverse health effects of complaints, the employee ficient to evaluate cotton company- dust. A few had seen a obviating inspection. the need for an The hazards, produced film cotton but in dust company permis- continued to refuse OSHA cases, almost all the employees had not had inspect sion to the mill. personal company discussions with officials 28, 1980, July applied to a On OSHA subject. Moreover, on the the interviews federal for an administrative also revealed that most workers received no inspection warrant for of WPP’s Lindale prior being giv- medical evaluation to their facility. upon employee the 70 inter- Based en respirators; many employees expe- that views, specific seven OSHA averred that dizziness, rienced symptoms fainting, of respira- dust and violations of OSHA cotton blackouts, nervousness, “phobia,” shortness breath, or have existed at regulations may tor exist breathing difficulty, pains, chest nausea, vision; and blurriness of that The also stat- al- the Lindale mill.4 ness, A, neck, heat rash on our face and also in 3. See OSHA Instruction CPL 2.12 CCH 11, 743; way glasses Empl. Safety Chap- the of our & Health Guide therefore affects ¶ Manual, ability jobs. Operations get our to run our ter VI of the Field CCH We cannot Safety enough Empl. oxygen through Health &' Guide 4340.1-4340.5. them. We have tried ¶ guidelines proce- operational gets These establish them for a week and it worse instead of investigation complaints dures for concern- better. ing alleged unsafe and unhealthful conditions optional We think it should be whether we workplace, regardless formality of the at the wear them or not. complaints. the Something this; must be done about we losing good help they because cannot following 4. OSHA asserted violations wear these masks. exist or have existed at the mill: Signed: (1) employer The has failed and/or fails to you you something
P.S. If don’t do about this fit, respirator possible viola- assure get my will not vote. safety tion Act and the and health of the regulations promulgated pursuant thereto at low-up requested inspection inspections ed that the differed when a citation is under contest,5 prior inspections from of the mill that there OSHA was no support warrant, because it was based issuance of the standards, regulations and new permit cotton dust rather than OSHA do not parte ex warrants, support old cotton dust and that the WPP standards. would suffer application, provided irreparable of the harm mag- agency OSHA if the al- were istrate with a copy employee petition, inspection. August of the lowed to conduct its On 4, 1980, employee letter the district representative granted 15-day of those agency, temporary restraining received relevant order and the and ordered regulations. magistrate grant- why OSHA The of Labor to show cause warrant, limiting scope preliminary injunction ed the it in should not issue. A “as injunction much of workplace reasonably hearing preliminary as is August held on 19 and necessary” investigate compliance Finding that the warrant was issued in the absence respirator and cotton dust standards. The granted district court specifically designated warrant 10 areas of a preliminary injunction and quashed place mill in which could air warrant. The court also addressed several sampling (vertical elutriators) devices issues, including scope other of the war- the testing of cotton dust levels. rant, overly which it found to be broad.6 day, The next and before the war executed, brought rant was WPP this ac II. court, seeking in federal district A. Reviewing Standard of the Issuance enjoin the the war quash execution of and Preliminary Injunction alleged rant. It warrant were internal contrary OSHA’s begin by observing We operating procedures preclude which fol- grant preliminary injunction denial of a 1910.134(e)(5)(i) follow-up inspection in this 29 CFR 1910.- case constitutes a 1043(D(4)(i); prohibited by Operations Field OSHA’s Manu- (2) employer al, has failed to evaluate indi- V(f). Chapter disagree pro- We because the employee’s physical ability vidual to wear posed inspection investigation involves the *6 respirators prior inspection to their and use working compliance different conditions and 1910.134(b)(10). —29 CFR underlying with different standards than those (3) employer adequately The has failed to Simmons, Inc., the 1977 citation. See 1977-78 medically complaints employee’s evaluate 22, Safety Occup. CCH (Rev. & Health Dec. 387 ¶ 5(a)(1) about (4) of the Act. —Section 1977). Comm’n. employer The has failed to transfer work- any pay, ers to low in dust areas without cut 6. The district also considered whether where said workers were or are unable to Department attorneys Labor are authorized to any type respirator, wear 29 1910.- CFR inspection obtain OSHA warrants and whether 134(b)(10); 1910.1043(f)(2)(v). may parte pursu such warrants be obtained ex (5) employer The has failed to inform work- regulation ant to OSHA 29 C.F.R. 1903.4. § bys- including ers about cotton dust hazards appellant. Both resolved in favor of issues were 1910.1043(i)(l)(d). sinosis —29 CFR (6) Appellee has raised neither of these issues on employer The failed to work- has inform appeal. Although parte it does mention the ex pulmonary ers of their function test results brief, appellee warrant issue in a footnote in its pertinent and other medical data —Section expressly argument waived this as issue at oral 5(a)(1) of the Act. however, noted, (7) a basis relief. It should be employer may The have failed to enforce decision, that since the district the for proper respirator court’s the use of the for certain interpreted mer Fifth Circuit has 29 C.F.R. areas within the mill—29 1910.- CFR 1903.4, 134(b)(l l)(c) 1910.1043(f)(2)(i) as written when the warrant in this § and 29 CFR issued, permitting Table 1. case was as not the Secre tary of Labor to obtain war issued, 5. At the time the warrant was WPP was Co., parte. rants ex Donovan v. Huffines Steel citation, contesting alleging a 1977 OSHA vio- (5th 1981). response 645 In F.2d 288 Cir. 1910.134(a)(1) lations of 29 C.F.R. and 29 § Huffínes, Secretary decisions such as 1910.1000(a)(2) (e) (the C.F.R. § old cotton specifically au amended 29 1903.4 to § C.F.R. standard) engineer- dust ing for failure to introduce parte procurement ex warrants. thorize the exposure controls to reduce to cotton dust. 1903.4(d). See 29 § C.F.R. Appellee argues attempted inspection that the 956 appellee met persuasion its burden of in sound discretion of the district rests discretion, however, is
court. The court’s by establishing agency prob- lacked “It must exercise that dis not unbridled. able cause to obtain warrant.7 OSHA we have termed light cretion in of what that the district court erred in contends extraordinary for the prerequisites ‘the four finding probable urges us to no ” injunction.’ Canal preliminary relief of in find that the court abused its discretion of Florida v. Calla Authority of the State injunction. granting preliminary 567, (5th 1974) (citing way, 489 F.2d 572 Cir. 1123, 1126 Froehlke, (5th Allison 470 F.2d v. Finding of Probable B. The Cause 1) 1972)). prerequisites The four Cir. that movant will substantial likelihood Secretary of Labor is authorized merits; 2) prevail a substantial Occupational Safety and 8 of the Section will irrepara threat that the movant suffer Act], Act of 1970 29 Health U.S.C. [the injunction granted; ble if is not injury 657, safety inspec to conduct health and § 3) injury to the movant the threatened juris workplaces tions of within the Act’s outweighs injunc the threatened harm an 8(a) Secretary clothes the diction. Section 4) opponent; cause the may inspect general power with the to enter and preliminary injunction will not granting the workplaces carry pur in order to out the public disserve interest. Southern Act;8 8(f)(1) specifical section poses of the Inc., v. Myers, Monorail Co. Robbins & 666 ly requires Secretary “spe to conduct a 1982); Authority F.2d 185 Cir. Canal inspection” practicable as soon as when cial Callaway, supra, Florida v. 489 State of Secretary receives a written em ever the injunction A preliminary F.2d at 572. complaint leads the ployee if the movant carries the burden issue reasonably that a violation exists to believe persuasion prerequisites. as to all four Here, provision Neither ex- workplace.9 Id. the district court concluded that first, second, issuance of a warrant were 7. court held that the The district prerequisites present, justifica described above: and fourth but in the absence of such expressly plaintiffs’ it is sufficient to warrant tion for the invasion have been determined in injunction. performing balancing favor in test for an Barlow’s, Inc., Marshall, Point-Pepperell F.Supp. cause of Marshall v. 496 West (N.D.Ga.1980). 436 98 56 U.S. L.Ed.2d 305 (1978). harm, irreparable possibili As to 657(a) ty entry 8(a), provides: of an § administrative violation of Section U.S.C. is, alone, potential the Fourth Amendment (a) carry purposes out the order enough justify granting injunc harm Secretary, presenting chapter, this Ratcliff, Maney F.Supp. tion. owner, opera- appropriate credentials to the (E.D.Wis.1975); Migrant Illinois Council v. tor, agent charge, is authorized— Pilliod, (N.D.Ill.1975). F.Supp. Even (1) delay to enter and at reasona- without specter if the of an search is unreasonable establishment, any factory, plant, ble times *7 noncompensable enough not serious and to site, area, workplace construction or other Center, injunction, warrant see 227 Book Inc. performed where work is or environment by Codd, F.Supp. (S.D.N.Y.1974), v. 381 1111 employee employer; of an and an ample present there is still evidence in the during regu- (2) investigate inspect to and justify case Rule this court’s exercise of its working reasonable lar hours and at other powers. 65 The installation of OSHA’s verti times, limits and in a and within reasonable elutriators, cal which rest stands manner, any place such of em- reasonable ployment necessarily blockage must the cause some conditions, pertinent all in the narrow aisles between machines Lin- devices, structures, machines, apparatus, employer plant, dale and em would burden therein, equipment, and to and materials ployees considerably more than the devices any employer, question privately such already Pepperell, utilized West Point owner, employee. operator, agent or way which are wall-mounted and out of the Furthermore, employee of ployees mill em traffic. 657(f)(1), pro- 8(f)(1), § 29 U.S.C. 9. Section paid piecework ba on a —who vides: their tasks dur sis—would be removed from Any employees representative (f)(1) or hours, monetary ing work concomitant employees of a that a violation who believe bur losses to them and to the mill. These safety that threat- health standard exists or enough prevent the dens would not be
957
inspection
. .
respect
an
.
are satisfied with
Secretary
the
must se-
pressly states that
conducting
particular
a search.
to a
cure a warrant before
Camara v.
[establishment].’
however,
Court,
Court,
addressing Municipal
387
Supreme
U.S. at 538
at
S.Ct.
[87
Barlow’s, Inc.,
v.
supra,
of warrantless nonconsensual
Marshall
propriety
the
1736].”
320-21,
8(a) has held that
436
at
98
at
searches under section
U.S.
S.Ct.
1824-25.
that an
v.
requires
Mississippi
the
Amendment
See United States
Power &
Fourth
Co.,
(5th
1981).
Light
warrant be obtained
Rationalizing Administrative
Note, Camara,
(1979);
employee petition
1291
on an
Mich.L.Rev.
was based
and sev-
See,
Progeny:
letters,
Another Look at
employee
and Their
indicating problems
eral
Under The
Inspections
Administrative
the respirator program
at the Lindale
Amendment,
of Law
Fourth
15 Colum.J.
mill,
fifty-seven
as well as
off-site and thir-
(1979). Accordingly, ad
and
61
Soc.Prob.
teen
employee
ap-
on-site
interviews. The
may be
ministrative
search warrants
plication
summarized
the
information
showing
probable
of
upon
obtained
a lesser
gained from the interviews and listed seven
search
for criminal
required
cause than is
specific
violations of
stan-
OSHA
warrants,
need show
which the affiant
dards,
agency
which the
believed were in
prima
not a
facie
probability,
“the
and
prior
existence or existed within the
six
activity.” United
showing, of criminal
Accompanying
months at the Lindale mill.
82,
Melancon,
462 F.2d
States
copies
application
the warrant
were
of
1038,
denied,
Cir.), cert.
409 U.S.
93 S.Ct.
letter,
employee petition,
employee
and
516,
(1972).
Beck v.
959
application by
warrant
reviewing
setting
for
a
The standards
aside the
magistrate’s finding
probable
of
cause
by including
misstatements or
the omis-
crimi
the same for both administrative and
sions, and then determine whether the re-
See,
Randall
e.g.,
nal warrants.
Burkart
application
formed
nonetheless establishes
Marshall,
Textron,
supra, 625
Div. of
Inc. v.
Delaware,
cause.
Franks
See
v.
passing
validity
F.2d
on the
of
at 1319. In
supra,
154,
2675;
truth;
requisite
nor did it make the
has carried its
offer of
burden of proving that the
proof. Rather the attack was merely con
application
warrant
contains deliberate or
clusory. Appellee therefore was not enti
omissions, 2)
reckless misstatements or
re-
hearing.
tled to a Franks
See United
application
form the warrant
accordingly,
Jeffers,
221,
(5th
States v.
621 F.2d
Cir.
3)
decide whether or not the reformed
Scott,
1980);
522,
United
States
F.2d
application
supports
magis-
nonetheless
(5th Cir.),
denied,
cert.
434 U.S.
98 trate’s finding
probable
Here
cause.11
(1977).
In addition to require particular regulation. appellee According proper make the preliminary court, showing, the district court also refused to limit the evidentiary hearing to whether or evidence revealed that West Point [t]he not the application warrant contained mis Peppered has comprehensive instituted a statements or material omissions made in respirator program, including a medical tentionally disregard or with reckless for program employees’ ability to evaluate the truth. permitted Instead the court wear respirators physical and to handle appellee present evidence “as to what psychological complaints stemming given was immediately ... from required wearing respirators. warrant, before bearing subject It apparent was also that the Lindale mill ” of the warrant . . . . The by court erred does not against discriminate employees failing properly to focus the evidentiary who are respirators, unable to wear hearing, again but say we cannot that it thoroughly has tried to educate its admission of extraneous evidence alone dangers workers on the of cotton dust. warrants reversal. Reversible error arises employees’ petition to govern- where the reviewing actually court con ment indicated at familiarity least some
siders and relies evidence not properly byssinosis. the disease of before it in overturning magistrate’s find Point-Pepperell, Marshall, West Inc. v. su- ing of probable cause. We therefore turn pra, words, at 1183-84. In other the court to this issue. assessed the merits of the violations assert-
In reviewing the magistrate’s ed the agency, weighing the evidence finding probable cause, the district court contained did not follow procedure against enunciated in appellee, introduced seem- reiterate, Franks. To reviewing once a ingly requiring appellant to make prima court has hearing, 1) conducted a it should facie showing of a violation in order to determine whether or not the challenger Instead, establish cause.12 Judge Roney, by concurrence, special squarely 11. presented, labels and essential to our scope as dictum our discussion of the standard determination of the of the district admitting hearing. pre-search additional evidence in a proceeding. disagree. warrant We The court Appellee asserts that the district court did evidentiary hearing, below held an and both require appellant prima to demonstrate parties question briefed the stan- violation, facie of a but rather under- admitting dard for additional evidence in that analysis attempted took an to balance “the hearing. Appellee specifically contended that against need to search the invasion which the Franks standard was met. Thus the issue Court, Municipal search entails.” Camara v. evi- evidence that court should have considered were not being in order presented dence required proper respirators, to wear West *11 magistrate’s to determine whether the find- Point-Pepperell could not have been in vio- ing probable arbitrary. of cause was See yet lation of standards not in effect.” West Green, v. supra; United States Bastida Marshall, Point-Pepperell, supra, Inc. v. at Henderson, supra. already As we have ob- 1184. served, contained enough support more than evidence to a matter, general probable As a a finding respect cause with to the hearing appropriate is not forum these violations. for a the applicability determination of of a The district court two other dismissed particular regulation statute or to situa alleged ground violations on the that the tion. a determination is best Such reserved regulations assertedly OSHA violated were for hearings alleged on the merits of an First, inapplicable appellee. to the court However, party violation. where the chal WPP allegation may dismissed the that lenging showing a warrant makes a Franks have failed to inform workers of certain or knowingly recklessly that the affiant as medical in of section test results violation inapplicable serted the violation of an stat Act, 5(a)(1) 654(a)(1). 29 U.S.C. § regulation ute or with the intent to deceive providing The court concluded that workers magistrate, reviewing the the court should with requirement such is not a information alleged strike the violation as a basis for or implementing regula- under the Act Here, appellee the warrant. did not make a Second, tions. the that court determined respect Franks with to either of subject WPP was not at the that time to alleged by the violations struck the district regulation requiring OSHA the court. WPP introduced no evidence show of proper respirators use in work areas with ing that the deliberately alleged affiant
excessive levels of cotton
dust.
C.F.R.
these violations with the intent
to deceive
1910.1043(f)(2)(i).
regulation
was to
§
magistrate.
the
Nor can it be said that the
27,1980,
have
April
become effective on
but
disregard
averments constituted reckless
officially
OSHA
announced that
the stan-
we
Although
for the truth.
do not here
particular
dard
not apply
would
to a
em-
decide whether or not
the time the war
at
ployer
monitoring
until
initial
of cotton
5(a)(1) required
rant
em
issued section
was
by
employer
completed
dust levels
was
inform workers of
ployers such as WPP to
27, 1980,
September
or
whichever occurred
pulmonary
their
function test
results or
court,
Appellee, according
first.
had
data, we do
pertinent
other
medical
observe
yet completed
monitoring.
its initial
bywas
no
that the resolution of that issue
The court therefore concluded that “even
As
assuming
allegation
of uncontrovertible
that
existence
means clear.13
argues
supra,
Appellee
allegations
387 U.S. at
at 1735. Both
that
that
it
S.Ct.
may
5(a)(1) by failing
appellee
and the district court have con-
have violated section
pertinent
fused the role of a court or
in issu-
medical data
inform
ing
failing
adequately medically
a warrant and the role of a court in review-
evaluate
ing
employee complaints
respirators
the issuance of a warrant. As discussed
about the
above,
reviewing
already promul-
improper
court’s
is limited
role
because OSHA had
determining
light
gated
specific regulation covering
alleged
whether
of the evidence
presented
magistrate,
magistrate’s
1910.1043(k)(2).
Al-
violations.
29 C.F.R. §
See,
finding
arbitrary.
1910.1043(k)(2)
though
cause was
29 C.F.R.
did not be-
§
Green,
27, 1981,
e.g.,
supra,
appellee
United States v.
634 F.2d at
come effective until March
225;
Henderson, supra,
preempted
Bastida v.
F.2d
asserts that
it nevertheless
section
con-,
reviewing
5(a)(1)
promulgated.
863. The
is not free to
as of the date it was
1910.5(f)
magistrate,
regulation
sider evidence not before the
ex-
29 C.F.R.
states
§
cept
required by
employer
compliance
in those
Franks
is in
circumstances
who
“[a]n
Delaware;
any
part
permitted
is it
in this
shall be deemed to be
nor
“balance”
standard
placing great
compliance
requirement
section
evidence without
deference
with the
Act,
magistrate’s
5(a)(1)
on the side of the
determination.
but
to the extent of the
methods,
States,
condition,
means,
operation,
Spineili
supra,
practice,
See
v. United
393 U.S. at
process
at 590.
covered
the standard.” We do
WPP
have failed
ground
to enforce the use of
rant on the
that it
unsupported
proper respirators,
we note that in the war-
by probable
but also held that
application, appellant
rant
overly
averred that warrant was
broad.
It determined
belief,
“upon information
appears
although
it-
the warrant did not authorize
company
has
inspection,
conducted its own
wall-to-wall
the warrant was
monitoring
initial
broader
exposure
cotton dust
than reasonable
it
because
autho-
pursuant
testing
rized the
of cotton
1910.1043(a)(2)
to 29 C.F.R.
dust levels in two
§
areas of the
has
mill in which
were
found cotton dust levels in excess of
not worn
permitted
and because it
permissible exposure
many
limits in
areas
agency access to certain medical records
Appellee
of the mill.”14
did not
any
make
*12
which
required by
regula-
were not
OSHA
showing that
this averment was a deliber-
Appellant argues
tions.
that
the district
Rather,
ate or reckless misstatement.
the
court’s determination was erroneous be-
record
completed
reveals that WPP had
cause the scope of the warrant
bears
monitoring prior
initial
to the issuance of
relationship
reasonable
to the violations al-
the warrant.
In its
sup-
memorandum in
leged
employee complaints.
in the
port of its motion for a temporary restrain-
ing order
quash, appellee
and to
admitted
This circuit has never addressed the prop-
that
West
Pepperell
Point
has al-
scope
“[s]ince
er
of an inspection
by
authorized
ready completed
monitoring
initial
its warrant
issued on the basis of employee
mill,
Lindale
certain of its employees
complaints
specific
or other
evidence of a
presently required
to use
violation.
in ac-
Those circuits that have con-
1910.1043(f)(vi).”
disagreement.
cordance with 29
sidered the issue are in
C.F.R.
§
Seventh
Contrary
proba-
Circuit has held that where
finding,
district court’s
the
ble cause to conduct an
inspection
OSHA
supports
record
the
is
averment
that the res-
employee
established on the basis of an
pirator regulation
applicable
appel-
was
complaint,
inspection
the
need not be limit-
Thus,
lee.
the
cannot be said to
scope
ed in
to the substance of the com-
have
in issuing
erred
the warrant on the
plaint.
Textron,
Burkart Randall Div. of
alleged
basis of
violations of either the res-
Marshall, supra,
Inc. v.
the court erred as we have attempted sup- involved in the from those determined, alleged those violations served incriminating pression in a criminal case of as a basis for the issuance of the duly evidence with a authorized obtained supra. warrant. text and note 12 See Judge search Kravitch relies al- warrant. Moreover, explicitly limits the wholly post-search sug- most cases in Secretary may examine to records court, pre-search gesting the district by the Act required those to be maintained case, prove can take additional evidence Second, the court conclud- regulations. in a or material omissions false statements overly ed that broad be- warrant they are “made application only if warrant testing of cotton dust permitted cause it disregard for reckless deliberately Lindale mill in levels in two areas of the necessary it is not to do the truth.” Since employees to require which WPP did not its case, the dictum in this I would not issue so not wear The warrant does respirators. courts in these administra- that the district sam- Secretary to conduct air authorize the should be restricted tive search cases mill; it pling throughout the Lindale rather cases. post-search apply standards which areas. testing specific confines to ten later deci- question I leave that would areas, em- eight appellee requires in controver- actually sion when the issue is ployees to wear accordance justice requires sy. mayWe then find that In the other two regulations. with in- and that well a more flexible standard rooms, areas, weaving ap- slashing tentioned, carefully set forth but neverthe- respira- pellee require does the use of not necessarily be less false facts should not tors it that cotton dust because determined court. accepted by the sufficiently high to necessi- levels are is based on denied, I that where a warrant agree It is not how- tate use. violation,” existing of an ever, “specific cotton dust. evidence generate that these areas whether is to determine the district court a reasona-
there is tested required in less than that
bleness standard sense, not focus on
the criminal and should in fact a violation. In this
whether there is
ease, company prove tried to more than should
district court considered
have been in the search warrant considered
proceeding. WILLIAMS, Plaintiff-Appellant,
Richard VALDOSTA,
The CITY OF
Defendant-Appellee.
No. 81-7107. *14 Appeals,
United Court of States
Eleventh Circuit. 21, 1982.
Oct.