In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-2661 

IN RE: 

 ESTABLISHMENT INSPECTION OF: 

 ANTHONY MARANO COMPANY, 3000 

 S. ASHLAND AVENUE, #100, 

 CHICAGO, IL 60608 

APPEAL OF: ANTHONY MARANO COMPANY

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:21-mc-00499 — Virginia M. Kendall, Judge. 

____________________ 

ARGUED FEBRUARY 16, 2022 — DECIDED OCTOBER 18, 2022 

____________________ 

Before RIPPLE, SCUDDER, and KIRSCH, Circuit Judges. 

RIPPLE, Circuit Judge. Anthony Marano Company (“AMC” 

or “the company”) brought this appeal following its unsuccessful motion to quash an administrative warrant issued by 

the district court at the request of the Occupational Safety and 

Health Administration (“OSHA”). Because the district court’s 

order denying the motion to quash is not a final order for 
2 No. 21-2661 

purposes of 28 U.S.C. § 1291, we dismiss the appeal for want 

of jurisdiction.

I 

On July 9, 2021, an inspector for OSHA, Eloise MinettJackson, attempted to conduct an inspection of AMC, a fruit 

and vegetable wholesaler in Chicago, Illinois. AMC’s management considered the timing of this inspection to be suspicious because the company was scheduled to go to trial on 

another OSHA matter four days later. AMC’s management 

denied Minett-Jackson entry into its establishment.

On July 28, 2021, OSHA applied for an ex parte inspection 

warrant for AMC’s facility. The warrant application, filed by 

Minett-Jackson, stated that it was “based upon a complaint 

from one of AMC’s current employees.”1 Specifically, on 

July 7, 2021, OSHA had received a telephonic complaint from 

an AMC employee, who had witnessed a forklift accident at 

the facility on March 26, 2021. The reporting employee recounted that the injured employee was cleaning up debris in 

the loading dock area when a forklift, moving in reverse, 

struck him in the back. Once impacted by the forklift, the employee fell forward and hit his head. Local emergency personnel transported him to a hospital where he received treatment 

for back, head, and neck injuries. 

In the application for a warrant, Minett-Jackson further 

stated that, based on her training and experience, she knew 

that the described situation might constitute violations of the 

Occupational Safety and Health Act (“OSH Act”), 29 U.S.C. 

§ 651 et seq., and the regulations issued pursuant to the Act. 

1 R.25 at 2.
No. 21-2661 3

She specifically noted 29 C.F.R. § 1910.178, the regulation on 

safety requirements relating to operation and maintenance of 

powered industrial vehicles, which includes forklifts.

The warrant application also stated that OSHA had determined that the complaint identified hazards covered by 

OSHA’s Local Emphasis Program for Powered Industrial Vehicles (“Emphasis Program”); the program also encompassed 

forklifts. A copy of the Emphasis Program was included with 

the warrant application, and Minett-Jackson referenced the 

applicable provision of the Emphasis Program.2 Regarding 

the scope of the proposed warrant, the application sought access 

to those areas and/or conditions specified in this 

Application, as well as to any hazardous work 

areas, procedures and/or working conditions 

where work is performed or permitted to be 

performed by employees of the employer 

within the plain view of the Compliance Officer(s) during the course of the inspection. In 

those areas, the inspection and investigation 

would include all pertinent conditions, structures, machines, apparatuses, devices, equipment, and materials, as they relate to the hazardous conditions referred to in this 

2 Specifically, the Emphasis Program provided that OSHA would schedule for inspection “[a]ny referral or complaint classified by OSHA as ‘serious’ which alleges a hazard or a condition that may be a violation of the 

powered industrial truck standard or a potentially fatal ‘struck/caught/fall 

hazard’ associated with the operation of a powered industrial vehicle ... .” 

Id. at 35.
4 No. 21-2661 

Application and/or in the plain view of the 

Compliance Officer(s) during the course of the 

inspection.3

The magistrate judge issued the warrant. 

When Minett-Jackson returned to AMC on August 2, 2021, 

with the warrant, the company again denied her entry.4 Two 

days later, it filed an emergency motion to stay the warrant 

and unseal the application. It asked the magistrate judge to 

stay execution of the warrant until OSHA provided the company with all documentation supporting its request for the 

warrant. It also requested time to file a motion to quash the 

warrant on the ground that it was not supported by probable 

cause. 

In his response, the Secretary of Labor (“Secretary”) maintained that the warrant was supported by probable cause. He 

further asserted that there is no right to pre-enforcement review of a warrant and urged the court to deny the company’s 

motion on that ground. He also submitted that the warrant 

was based on an employee complaint that “met the criteria for 

an on-site inspection because the complaint allege[d] hazards 

covered by an Emphasis Program.”5 The Secretary further 

urged the magistrate judge to deny AMC’s request to unseal 

3 Id. at 5.

4 An employee of AMC recorded this attempt, and a transcript of statements made by Minett-Jackson is set forth in AMC’s brief. See Appellant’s 

Br. 4–5. 

5 R.12 at 2.
No. 21-2661 5

the warrant application. Finally, he filed a cross-motion for 

contempt.

On August 6, the magistrate judge held a telephonic hearing. Following the hearing, he entered a minute entry “provisionally grant[ing]” the request to unseal the application for 

the warrant, but postponing that action to give the Secretary 

an opportunity to submit “a set of warrant materials with proposed redactions.”6

He took the rest of the motions under advisement.

Following the hearing, AMC also filed a motion to quash. 

The company maintained that the warrant lacked probable 

cause because OSHA had not “undertaken the required investigation into the employee complaint” so as to set forth “specific evidence of an existing violation.”7 AMC also urged that 

the warrant be quashed because it was overbroad. According 

to the company, it “far exceed[ed] the scope of the alleged employee complaint” because the warrant covered “all areas and 

conditions relating to the operation and maintenance of forklifts.”8

Finally, AMC submitted, the Emphasis Program could 

not support the finding of probable cause. In its view, in order 

to support probable cause, an Emphasis Program warrant 

must “be derived from neutral sources”; however, the OSHA 

Emphasis Program on which the warrant was based was 

6 R.17.

7 R.18 at 9.

8 Id. at 9, 11 (emphasis removed).
6 No. 21-2661 

triggered by an employee complaint and therefore was not 

“neutral.”9

 

On August 20, the magistrate judge permitted a redacted 

version of the application to be made public but otherwise 

kept the application under seal. The judge also denied the 

emergency motion to stay. That decision was explained in an 

opinion and order entered on the same day. Observing that 

the issue was crucial to AMC’s request to stay the execution 

of the warrant, the magistrate judge first rejected AMC’s argument “that federal law, including the law of the Seventh 

Circuit, ‘is clear that there is a pre-enforcement right to judicial review of an administrative warrant.’”10 In resolving this 

question, the magistrate judge first turned to the Supreme 

Court’s decision in Marshall v. Barlow’s, Inc., 436 U.S. 307 

(1978), which had “extended the Fourth Amendment warrant 

requirement to administrative inspections, but in a limited 

fashion.”11 He observed that:

In requiring OSHA to obtain an administrative 

inspection warrant from a neutral magistrate 

judge, the Supreme Court stated explicitly that 

“[p]robable cause in the criminal law sense is 

not required.” Instead, probable cause justifying an administrative inspection warrant “may 

be based not only on specific evidence of an 

9 Id. at 12 (quoting Marshall v. Barlow’s, Inc., 436 U.S. 307, 321 (1978)) (emphasis removed).

10 R.21 at 7 (quoting R.14-1 at 1).

11 Id. at 9.
No. 21-2661 7

existing violation but also on a showing that 

‘reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].’”12

The magistrate judge further noted that Barlow’s had not addressed the process by which an employer could challenge a 

warrant. AMC, therefore, was asking the court to “extend Barlow’s to hold that the Fourth Amendment not only requires a 

warrant for administrative searches ... but ... also requires the 

Secretary to refrain from executing issued warrants if the employer asks a federal court for a second level of judicial review 

of those warrants.”13

The magistrate judge concluded, however, that such an 

extension would not be consistent with the case law that had 

developed since Barlow’s, especially our decision in In re Establishment Inspection of Kohler Co., 935 F.2d 810 (7th Cir. 1991). 

According to the magistrate judge, Kohler held that federal 

courts only had jurisdiction to entertain motions to quash that

first had been presented to the agency for final adjudication. 

Thus, rather than requiring “federal courts [to] entertain challenges to the constitutional validity of administrative inspection warrants before the Secretary ha[d] a chance to execute 

them,” Kohler actually “support[ed] the opposite position.”14

12 Id. (quoting Barlow’s, 436 U.S. at 320, 320–21) (alteration in original) (citation omitted).

13 Id. at 11.

14 Id. at 15.
8 No. 21-2661 

The magistrate judge acknowledged that there was language in Kohler suggesting that the exhaustion requirement 

“was dependent on employers having an avenue for Article 

III review ... if the employer had no way to suppress the evidence obtained through the warrant in the administrative 

proceedings.”15 Nevertheless, he believed that the language in 

Kohler was a response to OSHA’s argument in that case “that 

the exclusionary rule did not apply in Review Commission 

proceedings.”16 In the present case, however, the Secretary 

had argued explicitly that the exclusionary rule applied in administrative proceedings.

The magistrate judge then reviewed other cases cited by 

AMC, but determined that those authorities did not change 

his decision “that Anthony Marano ha[d] no pre-execution 

right to judicial review of the administrative inspection warrant.”17

Having concluded that there is no pre-execution right to 

judicial review, the magistrate judge considered the factors 

for granting a stay: 

(1) whether Anthony Marano ha[d] made a 

strong showing that it [wa]s likely to succeed on 

the merits of the motion to quash; (2) whether 

Anthony Marano w[ould] be harmed irreparably absent a stay; (3) whether issuance of the 

15 Id. at 16 (referencing In re Establishment Inspection of Kohler Co., 935 F.2d 

810, 814–15 (7th Cir. 1991)).

16 Id.

17 Id. at 23. 
No. 21-2661 9

stay w[ould] substantially injure other parties 

interested in the proceeding; and (4) whether 

the stay [wa]s in the public interest.18

The magistrate judge determined that, even if AMC had exhausted its administrative remedies and therefore the motion

to quash was properly before it, the motion would fail on the 

merits because “the paragraph in the employee complaint recited in the Warrant Application more than meets Barlow’s

standards and was enough to establish the requisite degree of 

administrative probable cause.”19

Finally, in denying the stay, the magistrate judge ruled 

that the facts of the warrant application were not stale, that 

OSHA was not using the warrant as a tool of harassment, and 

that the warrant was not overbroad. With respect to overbreadth, the magistrate judge noted that the warrant provided “that the inspection and investigation would ‘extend 

only to the alleged hazardous working conditions and/or 

work areas described above’” as well as those in the inspector’s plain view.20 He explained that the March 26 injury had 

occurred at a loading dock, “[t]he object of the search ... was 

loading dock areas where forklift trucks are operated in close 

proximity to other workers,” and therefore “[t]he warrant reasonably allowed OSHA to inspect loading dock areas and 

conditions in facility locations where forklifts [we]re operated 

18 See id. (referencing Nken v. Holder, 556 U.S. 418, 434 (2009)).

19 Id. at 30.

20 Id. at 33 (quoting R.1 at 58).
10 No. 21-2661 

near other workers....”21 The magistrate judge acknowledged 

that the warrant was “not a model of clarity”; however, 

OSHA “could not have offered greater specificity when [it] 

did not know the precise location of the loading area where 

the March 26 injury happened or other loading areas where 

forklifts [we]re operated in proximity to workers.”22 Therefore, he concluded that “[t]he warrant’s scope was reasonable 

under the circumstances, not overbroad, and not wall-towall.”23 The magistrate judge therefore denied the stay.

Shortly after the magistrate judge issued his order, AMC 

asked the judge to clarify whether the opinion and order had 

been issued under his own authority or whether it was a Report and Recommendation. The magistrate judge clarified 

that it was an order issued under 28 U.S.C. § 636(a)(1), and 

21 Id. at 33–34.

22 Id. at 34.

23 Id. The magistrate judge noted that he considered 

only the four corners of the Warrant Application, and not 

the later-submitted video evidence Anthony Marano obtained when one of its managers started video recording the 

OSHA agent and a deputy U.S. marshal when they arrived 

to execute the warrant on August 2. Regardless, the OSHA 

agent’s professed lack of knowledge, on the video, about 

where she was to search is of no moment, because she explained in the same breath that she did not yet know the 

precise location of the loading dock area where the forklift 

injury occurred.

Id. at 33 (citations omitted).
No. 21-2661 11

AMC filed an emergency motion to quash before the district 

court. 

The district court held a telephonic hearing on the motion 

to quash on August 24.24 In a minute order following the conference, it stated:

Magistrate Judge Fuentes issued a Memorandum Opinion and Order on August 20, 2021, in 

relevant part denying AMC’s motion for the 

same relief. The Court views the Memorandum 

as a Report and Recommendation and finds that 

it is thorough, well-reasoned and correct. The 

Court therefore adopts Magistrate Judge 

Fuentes’s finding that there is no pre-enforcement right to judicial review of administrative 

inspection warrants in the Seventh Circuit. Further, [t]he Court agrees and accepts that there is 

probable cause for the warrant at issue in light 

of a telephonic complaint lodged against AMC 

on July 7, 2021. AMC offers no evidence or case 

law tending to show that the complaint—which 

pertained to an AMC employee suffering bodily 

injuries from a forklift accident—was insufficient to show probable cause. AMC’s Emergency Motion is accordingly denied. Upon oral 

motion, the Court stays this order until the 

Plaintiff has the opportunity to appeal this 

Court’s decision.25

24 A transcript of that teleconference is located at R.34.

25 R.29 (citations omitted).
12 No. 21-2661 

AMC filed a notice of appeal on September 2, 2021. On the 

same day, the Secretary filed a motion to lift the stay and to 

allow both the inspection and the contempt proceedings to go 

forward. The Secretary explained that “[t]he contempt proceeding [wa]s of principle importance” because, “in the motion for contempt, the Secretary sought tolling of the statute 

of limitations as an equitable remedy for AMC’s continued 

defiance of a duly issued inspection warrant, and without 

such a remedy, the Secretary’s inspection and potential enforcement efforts in this matter w[ould] be severely prejudiced.”26 He further explained that staying “the execution of 

the warrant pending appeal, without equitable tolling,” effectively would prevent him from carrying out his enforcement 

responsibilities.27 He further noted that “[t]he statute of limitations for any OSHA violations related to the March 26, 2021 

forklift accident expire[d] on September 26, 2021,” and “AMC 

should not be allowed to frustrate OSHA’s responsibilities 

and avoid an OSHA inspection by waiting out the clock on 

the appeal period” until the limitations period expired.28 The 

Secretary therefore asked the court to lift the stay, to allow the 

contempt proceedings to go forward, and to toll the relevant 

statute of limitations. 

On September 7, the magistrate judge entered a minute order clarifying that the district court had not stayed the pending contempt hearings. However, the issues presented by 

AMC’s appeal were related to the contempt proceedings, and 

26 R.33 at 2 (citation omitted).

27 Id.

28 Id.
No. 21-2661 13

“the filing of a notice of appeal deprives the district court of 

jurisdiction over the issues presented on the appeal. ... The 

notice of appeal, therefore, raise[d] a significant question over 

this Court’s jurisdiction to proceed with the contempt certification motion.”29 The magistrate judge “continue[d] the crossmotion for contempt certification” and stated that he would 

take “no action on the motion to proceed with the contempt 

certification motion, which [wa]s at least partially a matter before the district court.”30 He vacated the briefing schedule on 

the contempt certification motion and indicated that he 

would take no further action until we had addressed the issue 

of our own jurisdiction.31

On September 13, AMC responded to the Secretary’s motion. It maintained that the motion “must be rejected ... because lifting the stay would moot the pending Seventh Circuit 

appeal” and “subject Anthony Marano Company to a violation of its Fourth Amendment rights without an adequate 

remedy.”32 Moreover, it maintained, the district court did not 

have jurisdiction to enter an order tolling the statute of limitations during the pendency of the appeal, and, even if it did, 

tolling was not warranted. 

The stayed contempt proceedings, and the Secretary’s motion to toll the statute of limitations, are still pending in the 

district court.

29 R.35. 

30 Id. (citations omitted).

31 Id.

32 R.40 at 1.
14 No. 21-2661 

II

With this background, we now turn to the appeal before 

us. AMC submits that it has a right to appeal the constitutional sufficiency of the administrative warrant prior to its execution. Before we can consider that question, however, we 

first must decide whether we have appellate jurisdiction. 

A.

1. 

Section 1291 of Title 28 of the United States Code generally 

restricts courts of appeals to review of “final decisions” of the 

district courts. “A final decision is ‘one which ends the litigation on the merits and leaves nothing for the court to do but 

execute the judgment.’” United States v. Sealed Defendant Juvenile Male, 855 F.3d 769, 771 (7th Cir. 2017) (quoting Gelboim v. 

Bank of Am. Corp., 574 U.S. 405, 409 (2015)). Here, the Secretary 

maintains that the district court has not rendered a final judgment. Specifically, he submits that the district court’s August 

24 order, which is the basis for AMC’s appeal, is not final for 

purposes of 28 U.S.C. § 1291 because it did not resolve all the 

parties’ claims. He invites our attention to the continued pendency of his motion for contempt and his motion to toll the 

statute of limitations before the district court.33 

33 The Secretary also submits that the August 24 order does not fit neatly 

into any category of collateral order that is subject to immediate review. 

AMC agrees. We have examined independently the possibility of predicating our jurisdiction on the collateral order doctrine and agree with the 

parties. The collateral order doctrine “carves out a ‘small class’ of nonfinal orders that are deemed final and immediately appealable.” Doe v. 

(continued ... )
No. 21-2661 15

AMC does not maintain that the August 24 order ended 

the litigation in the district court. Nevertheless, it asserts that 

the August 24 order is final under 28 U.S.C. § 1291 because of 

the “exception” annunciated by the Supreme Court in United 

States v. Ryan, 402 U.S. 530 (1971).34 Ryan, AMC submits, 

acknowledges a right to immediate appeal “in the limited 

class of cases where denial of immediate review would render 

impossible any review whatsoever of an individual’s 

claims.”35 According to AMC, unless we apply the rule in 

Ryan and permit immediate appellate review, OSHA could 

forcibly execute its warrant, leaving AMC without a means to 

redress its claim that the warrant issued by the magistrate 

judge and approved by the district court violates the Fourth 

Amendment. 

2. 

Because Ryan is central to AMC’s argument, we begin by 

examining that decision. In Ryan, the petitioner received a 

subpoena duces tecum in grand jury proceedings. The subpoena commanded him to produce the books and records of 

Vill. of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Cohen v. Beneficial 

Indus. Loan Corp., 337 U.S. 541, 546–47 (1949)). “To fall within the collateral 

order doctrine, the non-final order must: (1) be conclusive on the issue 

presented; (2) resolve an important question separate from the merits of 

the underlying action; and (3) be ‘effectively unreviewable’ on an appeal 

from the final judgment of the underlying action.” Id. (quoting Mohawk 

Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). Here, however, the present appeal seeks a determination on the merits: whether AMC must comply with the administrative inspection warrant.

34 App. R.9 at 10.

35 Id. (quoting United States v. Ryan, 402 U.S. 530, 533 (1971)).
16 No. 21-2661 

five Kenyan companies. Ryan moved to quash the subpoena 

on the ground that Kenyan law forbade the removal of the 

corporate documents from Kenya without the consent of certain governmental officials. The district court denied the motion but modified the subpoena so that Ryan was required “to 

attempt to secure such consent and, if unsuccessful, to make 

the records available for inspection in Kenya.” Ryan, 402 U.S. 

at 531. Ryan appealed, and the court of appeals determined 

that it had jurisdiction to consider the denial of the motion to 

quash. According to the appellate court, “by directing [Ryan] 

to make application to a Kenyan official for release of some of 

the records, the District Court had done ‘more than deny a 

motion to quash; it in effect granted a mandatory injunction’”; 

consequently, it determined that the order was immediately 

appealable. Id. (quoting In re Ryan, 430 F.2d 658, 659 (9th Cir. 

1970)). 

The Supreme Court, however, took another view: the district court’s order was not immediately appealable. The Court 

first observed that its decision in Cobbledick v. United States, 

309 U.S. 323 (1940), had held 

that one to whom a subpoena is directed may 

not appeal the denial of a motion to quash that 

subpoena but must either obey its commands or 

refuse to do so and contest the validity of the 

subpoena if he is subsequently cited for contempt on account of his failure to obey.

Ryan, 402 U.S. at 532. Ryan did not question the validity of 

Cobbledick but claimed that its rule should not apply to him 

because, unless he could seek immediate review of the district 

court’s order, “he w[ould] be forced to undertake a substantial burden in complying with the subpoena, and w[ould] 
No. 21-2661 17

therefore be ‘powerless to avert the mischief of the order.’” Id.

(quoting Perlman v. United States, 247 U.S. 7, 13 (1918)). The 

Court disagreed. It acknowledged that, if Ryan complied with 

the subpoena, he would “not ... be able to undo the substantial effort he has exerted in order to comply.” Id. However, the 

Court continued, compliance was not his only option. If “the 

subpoena [wa]s unduly burdensome or otherwise unlawful, 

he [could] refuse to comply and litigate those questions in the 

event that contempt or similar proceedings [we]re brought 

against him. Should his contentions be rejected at that time by 

the trial court, they w[ould] then be ripe for appellate review.” Id. at 532. The Court noted that it had 

consistently held that the necessity for expedition in the administration of the criminal law 

justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to 

produce prior to any review of that order, and 

resistance to that order with the concomitant 

possibility of an adjudication of contempt if his 

claims are rejected on appeal.

Id. at 533. 

The Court acknowledged that there was a “limited class of 

cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims.” Id. It 

recognized specifically that immediate review was available 

from the 

denial of a motion for the return of seized property, where there is no criminal prosecution 

pending against the movant. Denial of review in 
18 No. 21-2661 

such circumstances would mean that the Government might indefinitely retain the property 

without any opportunity for the movant to assert on appeal his right to possession.

Id. (citation omitted). The Court also noted that in Perlman, 

247 U.S. 7, it had allowed 

review of an order directing a third party to produce exhibits which were the property of [Perlman] and, he claimed, immune from production. To have denied review would have left 

[the owner] “powerless to avert the mischief of 

the order,” for the custodian could hardly have 

been expected to risk a citation for contempt in 

order to secure [the owner] an opportunity for 

judicial review.

Id. (quoting Perlman, 247 U.S. at 13). Those situations, however, were different from the case before it because Ryan was 

“free to refuse compliance and ... in such event he may [have] 

obtain[ed] full review of his claims before undertaking any 

burden of compliance with the subpoena.” Id. 

Ryan does not support AMC’s claimed right to immediate 

review. It simply restates the general proposition that a denial 

of a motion to quash a grand jury subpoena is not immediately appealable and acknowledges the limited exception to 

that rule when property otherwise might be held indefinitely 

or surrendered to the Government without a determination 

of a party’s rights. 

Notably, Ryan’s exception only applies to that “limited 

class of cases where denial of immediate review would render 

impossible any review whatsoever of an individual’s claims.” Id.
No. 21-2661 19

(emphasis added). AMC, by contrast, is not without a means 

to redress the alleged Fourth Amendment violation. First, assuming the Secretary postpones execution of the warrant until the contempt proceedings are concluded, those proceedings would provide AMC an opportunity to raise its Fourth 

Amendment arguments. Second, at oral argument, both the 

Secretary and AMC acknowledged that, even if the warrant 

were executed, AMC could raise any Fourth Amendment violations in the context of administrative proceedings.36

One of our sister circuits has considered and rejected the 

argument that Ryan provides a basis for appellate review of 

an administrative warrant. In In re Consolidated Rail Corp., 631 

F.2d 1122 (3d Cir. 1980), OSHA had obtained a warrant authorizing a general inspection of a Conrail locomotive repair 

plant, but Conrail refused to allow the inspection and moved 

to quash the warrant. OSHA then sought to hold Conrail in 

contempt. As the district court did here, the district court in 

Consolidated Rail denied Conrail’s motion to quash but continued the contempt proceedings and issued a stay of the warrant pending Conrail’s appeal. On appeal, the Third Circuit 

traced the finality doctrine through Cobbledick and Ryan and 

36 If the inspection did not lead to administrative proceedings, a Bivens

action might provide a possible avenue of redress. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing an action for damages against federal officers who conducted a 

search in violation of the Fourth Amendment). We are aware that in Egbert 

v. Boule, 142 S. Ct. 1793 (2022), the Supreme Court expressed a reluctance 

to recognize any new Bivens actions. See also Hernandez v. Mesa, 140 S. Ct. 

735 (2020). The contours of any reconsideration of Bivens are, of course, a 

matter for the Supreme Court to determine, not for this court. See State Oil 

Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).
20 No. 21-2661 

then rejected Conrail’s “contention that the holdings of 

th[o]se ... cases apply only to motions to quash grand jury 

subpoenas and not to denials of motions to quash warrants 

sought by administrative agencies.” Id. at 1123. The Third Circuit explained that Conrail’s action to quash the administrative warrant was part of the same proceeding in which the 

Secretary had asked for civil contempt sanctions. Therefore, it 

continued, “if the court enters the judgment of contempt 

sought by the Secretary, there will be no further action for [the 

district court] to take,” and “[t]he judgment of contempt and 

the sentence, if any, will be the final judgment in the case.” Id.

at 1125. In sum, the fact that the contempt proceedings were 

ongoing prevented appellate review.

AMC acknowledges the Third Circuit’s holding in Consolidated Rail.

37 It notes, however, that the Third Circuit “did not 

consider OSHA’s right to forcibly execute a warrant, which 

would force the employer to suffer a constitutional injury for 

which there is no adequate remedy.”38 Underlying AMC’s argument is the assumption that OSHA has a right to forcibly 

execute an administrative warrant without resort to contempt 

proceedings,39 and that, absent an opportunity to challenge an 

illegal search through contempt proceedings, it has no other 

37 See Reply Br. 5 n.1.

38 Id.

39 The basis for AMC’s belief that an administrative, as opposed to a criminal, warrant is subject to forcible execution is Trinity Marine Products, Inc. 

v. Chao, 512 F.3d 198, 202 (5th Cir. 2007). In other submissions, however, 

AMC argues fervently that Trinity Marine’s reasoning is faulty and should 

be rejected by this court. See Reply Br. 8–10. 
No. 21-2661 21

mechanism to redress a possible Fourth Amendment violation.

We disagree that OSHA’s right to forcible entry—an issue 

which we do not reach—is dispositive.40 As we already have 

noted, even if the warrant is executed, that action does not 

“render impossible any review whatsoever” of its Fourth 

Amendment claims. Ryan, 402 U.S. at 533. 

Thus, Ryan provides no basis for appellate jurisdiction.

B. 

Alternatively, AMC proposes that cases involving the enforcement of administrative subpoenas should guide our decision here. As a general matter, the decision to grant or deny 

a motion to enforce a subpoena, whether in a criminal proceeding or before a grand jury, is not immediately appealable 

because “permitting separate reviews of the component elements in a unified cause” would bring the administration of 

justice to a halt. Cobbledick, 309 U.S. at 325. It is only when an 

individual defies the subpoena and is held in contempt that 

the proceeding “becomes so severed from the main proceeding as to permit an appeal.” Id. at 328. 

Orders enforcing administrative subpoenas, however, are 

an exception to this general rule. See id. at 329; Reich v. Nat’l 

40 We have noted in dicta that forcible entry is not what is normally contemplated. See In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 

(7th Cir. 1988) (noting that the Consumer Product Safety Commission “has 

never suggested that it could or would proceed” with a forcible execution 

of an administrative warrant and that “the standard method of enforcing 

such warrants” was through contempt proceedings). 
22 No. 21-2661 

Eng’g & Contracting Co., 13 F.3d 93, 95 (4th Cir. 1993). Enforcement of administrative subpoenas 

may be deemed self-contained, so far as the judiciary is concerned—as much so as an independent suit in equity in which appeal will lie 

from an injunction without the necessity of 

waiting for disobedience. After the court has ordered a recusant witness to testify before [an administrative agency], there remains nothing for 

it to do. Not only is this true with respect to the 

particular witness whose testimony is sought; 

there is not, as in the case of a grand jury or trial, 

any further judicial inquiry which would be 

halted were the offending witness permitted to 

appeal.

Cobbledick, 309 U.S. at 330. 

We see no justification, however, for extending this rule 

beyond the context of enforcement of administrative subpoenas. Both administrative subpoenas and administrative warrants are investigatory tools, but there are important differences in the role they play in the administrative process. Administrative subpoenas usually do not raise the same Fourth 

Amendment concerns as administrative warrants. In Donovan 

v. Lone Steer, Inc., 464 U.S. 408, 414 (1984), the Court explained 

that the enforcement of administrative subpoenas does not involve “the effort of the government inspectors to make nonconsensual entries into areas not open to the public,” and thus 

administrative subpoenas are distinguishable from administrative warrants, such as the one in Barlow’s. 
No. 21-2661 23

The enforcement process for administrative subpoenas 

differs from the enforcement process for administrative warrants. An administrative subpoena is issued by the agency. If 

a party chooses not to comply, the administrative agency 

must seek judicial enforcement with notice to the subpoenaed 

party. See, e.g., United States v. Clarke, 573 U.S. 248, 253 (2014) 

(describing “the requisite judicial [enforcement] proceeding” 

as “adversarial,” “not ex parte”). The subpoenaed party, therefore, has an opportunity to be heard during the enforcement 

proceeding itself. Contempt proceedings—or a subsequent 

challenge in administrative proceedings—is not necessary to 

distill the issues for appellate review. 

The same is not true for the enforcement of administrative 

warrants. OSHA may apply for, and obtain, an administrative 

warrant without notice to the affected party. Once the warrant 

is obtained, OSHA may execute it. The first opportunity that 

a party subject to the warrant may have to contest the basis or 

scope of the warrant usually comes when it defies the warrant. In such cases, a contempt proceeding, or a challenge to 

the warrant in later administrative proceedings, is necessary 

to vet the underlying issues of authority, probable cause, and 

scope. 

In short, the cases involving immediate appeals of administrative subpoenas do not represent an exception to the finality rule of § 1291. Rather, those cases are appealable because 

the orders concerning the administrative subpoenas are “[t]he 

last order in a proceeding,” thus making the district court’s 

orders “final decision[s] appealable under 28 U.S.C. § 1291.” 

In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1129 

(7th Cir. 1988). Here, however, there remain significant ongoing proceedings in the district court that afford the contesting 
24 No. 21-2661 

party a full opportunity to set forth its objections to the warrant in an adversarial context. Both the Secretary’s motion for 

contempt and motion to toll the statute of limitations are 

pending before the district court.41 We cannot ignore these 

substantive, and potentially dispositive, motions. This ongoing litigation renders the district court’s enforcement order 

nonfinal. We, therefore, do not have jurisdiction over the present appeal under § 1291.42

41 With respect to the latter, it is AMC’s contention that the district court 

is without authority to toll the statute of limitations, and, in the absence of 

tolling, the Secretary has no authority to execute the warrant at issue.

42 As it did in the district court, AMC maintains that our decision in In re 

Establishment Inspection of Kohler Co., 935 F.2d 810 (7th Cir. 1991), conclusively establishes a right to a judicial pre-enforcement challenge of an administrative warrant, including the right to an immediate appeal. AMC 

focuses on one sentence of that decision, which states: “That warrant is 

reviewable in the district court, and subsequently in the Court of Appeals, 

until OSHA completes its inspection.” Id. at 814. 

 This single sentence, read in context, cannot bear the weight that 

AMC attaches to it. First, Kohler did not involve a pre-enforcement challenge; rather, the warrant in Kohler already had been executed. The issue 

of a party’s pre-enforcement rights simply was not before us. Second, the 

language at issue arises in a discussion of whether applying the exclusionary rule in proceedings before the OSHA Review Commission would raise 

issues of separation of powers. Id. It did not, we explained, because 

“[w]hat OSHA view[ed] as one proceeding” was “really two distinct 

cases”: 

The first involves OSHA’s enforcement program; OSHA 

enforcement actions are reviewable in the first instance by 

the Review Commission, then by federal Courts of Appeals. To proceed with an inspection, OSHA must initiate 

(continued ... )
No. 21-2661 25

a second proceeding to obtain a search warrant from a 

federal district court. That warrant is reviewable in the 

district court, and subsequently in the Court of Appeals, 

until OSHA completes its inspection.

Id. In the context of that discussion, there was no reason for us to detail all 

the steps necessary to secure a pre-execution challenge to an administrative warrant, namely refusing entry and converting the warrant proceeding into contempt proceedings. See In re Establishment Inspection of Skil 

Corp., 846 F.2d at 1132 (explaining the “standard method” of “allowing the 

target of an administrative warrant to forbid entry and thereby convert 

the warrant proceeding into a contempt proceeding”). Finally, as we already have noted, Kohler involved an administrative warrant that already 

had been executed. The warrant was executed because we lifted the stay 

that had been granted by the district court. If Kohler had an absolute right 

to a pre-inspection appeal, we presumably would have kept the stay in 

place, or at least noted our error in lifting the stay. Thus, Kohler cannot be 

read as establishing a right to pre-enforcement judicial review of administrative warrants.

AMC also invites our attention to Wedgewood Village Pharmacy, Inc. 

v. United States, 421 F.3d 263 (3d Cir. 2005). In Wedgewood, the Third Circuit 

concluded that the district court’s order refusing to quash an administrative warrant issued under the Food, Drug, and Cosmetic Act was “tantamount to a final order” because denying immediate review would put 

Wedgewood at risk for criminal prosecution under a provision of the Act 

that criminalizes the refusal to permit an inspection. Id. at 268. The court 

explained that it “s[aw] no reason to require Wedgwood to risk criminal 

prosecution merely to obtain appellate review of an administrative warrant.” Id. According to the Third Circuit, forcing a party to subject itself to 

criminal prosecution was materially different from requiring a party to 

subject itself to contempt proceedings. It explained that the 

penalties for civil contempt are limited to measures that 

may be appropriate to compel compliance with the underlying order and to compensate the opposing party for 

losses sustained as a result of the noncompliance. Those 

(continued ... )
26 No. 21-2661 

Conclusion

For these reasons, we dismiss AMC’s appeal for lack of 

appellate jurisdiction.43

APPEAL DISMISSED

penalties are therefore proportional to the noncomplying 

party’s resistance to the warrant. Here, however, the penalties Wedgewood could face for noncompliance could 

potentially far exceed the harm resulting from its noncompliance. Accordingly, we conclude that the District 

Court’s order refusing to quash the administrative warrant is tantamount to a final order.

Id. (citation omitted). By contrast, the OSH Act does not subject an employer to criminal penalties for refusing to permit an inspection, and AMC 

is not at risk for criminal prosecution.

43 Because we dismiss on jurisdictional grounds, we have no occasion to 

comment or rule upon AMC’s other arguments concerning whether the 

warrant was supported by probable cause, whether it was overbroad, or 

whether the magistrate judge exceeded his authority in issuing the August 

20 order.