Brennan v. Gibson's Products, Inc. of Plano

• Decision Date: 26 January 1976
• Docket Number: Civ. A. No. S-75-5-CA.
• Citation: 407 F. Supp. 154
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor v. GIBSON'S PRODUCTS, INC. OF PLANO, a corporation, and Gibson's Discount Centers, Inc., a corporation.
• Court: U.S. District Court — Eastern District of Texas

407 F. Supp. 154

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor v. GIBSON'S PRODUCTS, INC. OF PLANO, a corporation, and Gibson's Discount Centers, Inc., a corporation.

Civ. A. No. S-75-5-CA.

United States District Court, E. D. Texas, Sherman Division.

January 26, 1976.

Roby Hadden, U. S. Atty., C. Houston Abel, Asst. U. S. Atty., E. D. Tex., Tyler, Tex., for petitioner.

Robert E. Rader, Jr., Bardwell D. Odum, Dallas, Tex., Charles Alan Wright, Austin, Tex., for respondents.

Before GEE, Circuit Judge, and JUSTICE and STEGER, District Judges.

OPINION OF THE COURT

GEE, Circuit Judge:

This case requires us to determine the meaning and constitutionality of a portion of the inspection provisions of the Occupational Safety and Health Act of 1970 (OSHA).¹

On October 23, 1974, Gibson's Products, Inc. of Plano (Gibson's), a corporation, maintained a store at 2505 Avenue K, Plano, Texas. As is customary, portions of it were open to the public and portions were not.² Merchandise manufactured outside the State of Texas was displayed for resale there, and the store, by reason of its purchasing and resale practices, was a business affecting commerce on and before that date.

On that date, during reasonable working hours, compliance officers of the Occupational Safety and Health Administration (Administration), U.S. Department of Labor, after duly presenting their credentials to officials of Gibson's, attempted to inspect the nonpublic portions of the store. Gibson's refused to permit this. The proposed inspection was intended to determine whether Gibson's was complying with the Occupational Safety and Health Act and, if not, to enforce compliance. The inspection was a routine or general-schedule one not occasioned by any complaint, no known emergency required immediate access by the compliance officers, and they had no reason to believe that Gibson's was violating the Occupational Safety and Health Act on the premises.

Rather than seek a search warrant, it being apparent from the stipulated facts that no probable cause existed to support one, the Secretary filed this suit, citing the inspection provisions of OSHA,³ asserting the necessity of an inspection to determine compliance, and seeking an order of the court compelling Gibson's to submit to the inspection. A show-cause order issued, and Gibson's responded, asserting fourth and fifth amendment rights, insisting that a search warrant based on probable cause was requisite to an inspection against its will, and seeking appropriate injunctive relief and the convening of this court. At hearing on the merits, Gibson's suggested that the Secretary is barred by his own pronouncements from the course of action which he here pursues, and that consequently a mere advisory opinion is here sought by him — one beyond our jurisdiction to render. We disagree, and we hold on the merits that the fourth amendment forbids such a search on such a showing as the Secretary seeks to make here. However, we do not enjoin the operation of the statute because we construe it to authorize an inspection over an objection only when conducted by warrant, and as so construed, it is unobjectionable. Our reasons follow.

I. JURISDICTION

The pertinent regulation, 29 C.F.R. § 1903.4, provides:

Upon a refusal to permit a Compliance Safety and Health Officer, in the exercise of his official duties, to enter without delay and at reasonable times any place of employment, or any place therein, to inspect . . . the . . . Officer shall . . . immediately report the refusal . . . to the Area Director. The Area Director shall immediately consult with the Assistant Regional Director and the Regional Solicitor, who shall promptly take appropriate action, including compulsory process, if necessary. (emphasis added)

Gibson's argument also relies on the effect of the Administration's Compliance Operations Manual, either as an independent "rule" or as an interpretation of the formal regulation. The manual directs a compliance officer who is not permitted to make an inspection to leave the premises and begin the process of obtaining an "inspection warrant."⁴ However, the manual clearly indicates that the court order sought here is different from the "inspection warrant" to which it refers.⁵

Regardless of our interpretation of the regulation and the manual, it is clear that the Secretary's actual present position is that they permit him to obtain a court order compelling inspection without a showing of probable cause. The totality of the controversy over whether the Secretary has this authority and, if so, whether he may constitutionally have it thus satisfies the definition of a justiciable "case or controversy":

The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests.⁶

The authorities which Gibson's cites, such as Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), and United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), are inapposite. They involve the disposition on the merits of claims of an administrative agency's violation of its own rules.⁷ They do not stand for the proposition that an agency's deviation from its own procedures deprives a court of jurisdiction to decide if the agency's actions are authorized by the applicable statute. This court properly has jurisdiction over this controversy.

II. THE MERITS

In great part, our inquiry begins and ends with two pronouncements of the Supreme Court, each taken from opinions recently and expressly reaffirmed⁸:

Administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.

See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967).

Broad statutory safeguards are no substitute for individualized review.

Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967).

These authorities and others cited below convince us that facially the inspection provisions of OSHA amount to just such an attempt at a broad partial repeal of the fourth amendment as is beyond the powers of Congress. Only a construction of them as enforcible solely by resort to some form of administrative search warrant such as Camara contemplates, id. at 538, 87 S.Ct. 1727, can save these provisions.

A. Some constitutional background.

We deal, as is the rule in such cases, with a clash of near-absolutes. On the one hand we have the fourth amendment, a safeguard to ordered liberty indispensable and, historically at least, preeminent.⁹ On the other stands the congressional enactment, clearly subject to the interpretation that diminishing the injuries, and consequent loss and suffering, caused by hazardous working conditions justifies investing OSHA compliance officers with something very like a perpetual general warrant. And one respected court has already concluded that insisting on special warrants for such inspections "is, constitutionally speaking, marching to the beat of an antique drum." Brennan v. Buckeye Industries, Inc., 374 F.Supp. 1350, 1356 (S.D.Ga.1974).

Modern Supreme Court authority regarding constitutional warrant requirements for administrative searches commences with Camara and See.

The first of these was concerned with an attempted warrantless inspection of a residence by a city housing inspector in search of building code violations. He sought to do so under a San Francisco ordinance providing:

Authorized employees of the City department or City agencies, so far as may be necessary for the performance of their duties, shall upon presentation of their proper credentials, have the right to enter, at reasonable times, any building, structure or premises in the City to perform any duty imposed upon them by the Municipal Code.

The state court upheld the ordinance against an attack on fourth amendment grounds, reasoning that the regulatory scheme involved was essentially civil rather than criminal and that the right of inspection authorized was limited in scope and not exercisable under unreasonable conditions.¹⁰ The Supreme Court reversed. In so doing, it rejected — as applied to the quoted ordinance, which it will be noted is somewhat broader that the OSHA provision — many of the arguments addressed to us here: no search for evidence of criminal action, administrative expediency ("the warrant process could not function effectively in this field"), and the demand of the public interest for warrantless administrative searches. In so doing, it stated in words which we find enlightening here:

One governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by valid search warrant. (emphasis added)

387 U.S. at 528-29, 87 S.Ct. at 1731.

In a companion case decided the same day, Norman See sought reversal of his conviction for refusing to admit the Seattle Fire Department's representative to inspect his locked commercial warehouse, without either warrant or probable cause to believe a violation existed. The intended inspection, part of a routine, citywide canvass, was purportedly authorized by a city ordinance stating:

It shall by the duty of the Fire Chief to inspect and he may enter all buildings and premises, except the interiors of dwellings, as often as may be necessary for the purpose of ascertaining and causing to be corrected any conditions liable to cause fire, or any violations of this Title, and of any other ordinance concerning fire hazards.

Again, the Supreme Court reversed. Its opinion extends the Camara reasoning to commercial property, indicating that no distinction can be drawn between warrantless inspections of commercial property and those...