As we reported in an earlier blog post, a federal magistrate judge recommended that a warrant OSHA sought to conduct a comprehensive inspection of a North Georgia poultry plant be quashed (invalidated). In a follow-up to that post, we are pleased to report that on November 2, 2016, U.S. District Court Judge William C. O'Kelley (a Nixon appointee) of the Northern District of Georgia approved and adopted Magistrate Judge J. Clay Fuller's August 5, 2016 Report and Recommendation, which found that the warrant should be quashed because OSHA failed to use Constitutional methods to select Mar-Jac for an intensified inspection after it reported an injury. This decision is significant because invalidates OSHA's Regional Emphasis Program (REP) for Poultry Processing Facilities, announced in October 2015, as the basis for expanding an unprogrammed, incident-related inspection to a comprehensive, or "wall-to-wall," inspection covering the entire plant.

In his opinion, Judge O'Kelley examined, and rejected, each of OSHA's objections to the magistrate judge's Report and Recommendation. For example, OSHA argued that the REP was a neutral plan, but the judge pointed out that it allowed the Area Director unbridled discretion to select targets, and therefor that the purported neutrality was an illusion. The Area Director's testimony was liberally cited in support of this conclusion. OSHA's argument that the REP's instruction to expand all unprogrammed inspections, subject only to resource allocation considerations, was exposed as a sham, since the Area Director confirmed that he had the resources to conduct at most one or two comprehensive poultry plant inspection per year.

The judge noted that OSHA had many legitimate, neutral criteria at its disposal for selecting candidates for inspection that did not repose all discretion in a single official, and observed that while probable cause sufficient to support criminal prosecution is not required, the Constitution does require reasonable suspicion for an administrative search, and that was wanting here. He also rejected OSHA's contention that the 300 logs of injury and illness were sufficient probable cause, noting (correctly) that those logs contain information about incidents, but nothing at all about causation. He also noted that Mar-Jac already had undergone an intensive, 4-month-long comprehensive inspection, in 2009.

The district Court's ruling is important for all employers because it reminds OSHA that it is subject to the limits on search and seizure enshrined in the Fourth Amendment to the U.S. constitution. We are pleased to have been able to put our client's case before the court, and that the court has approved the Magistrate's Report and Recommendation to quash the warrant.