Dunlop v. Hertzler Enterprises, Inc., Civ. No. 75-301.

• Citation: 418 F. Supp. 627
• Decision Date: 19 August 1976
• Docket Number: Civ. No. 75-301.
• Parties: John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff, v. HERTZLER ENTERPRISES, INC., a corporation, doing business as Sandia Die and Cartridge Company, Defendant.
• Court: United States District Courts. 10th Circuit. District of New Mexico

418 F. Supp. 627

John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff, v. HERTZLER ENTERPRISES, INC., a corporation, doing business as Sandia Die and Cartridge Company, Defendant.

Civ. No. 75-301.

United States District Court, D. New Mexico.

August 19, 1976.

Victor R. Ortega, U. S. Atty., Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M., William E. Everheart, Asst. U. S. Atty., Dallas, Tex., Ruth C. Streeter, Asst. U. S. Atty., Albuquerque, N. M., for plaintiff.

James R. Toulouse, Albuquerque, N. M., for defendant.

Before SETH, Circuit Judge, and PAYNE and BRATTON, District Judges.

MEMORANDUM OPINION

The broad question presented in this case is whether the entry and inspection provisions of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 et seq., are consistent with the dictates of the fourth amendment.

Congress enacted OSHA "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651(b). Employers within the Act's coverage¹ are required to provide employees a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm." 29 U.S.C. § 654(a)(1). In addition, covered employers must comply with health and safety standards promulgated by the Secretary of Labor. 29 U.S.C. § 654(a)(2). Civil and criminal penalties may be incurred for violation of these statutorily imposed duties. 29 U.S.C. § 666. As part of its enforcement scheme, OSHA provides that:

". . . the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized—

(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee." 29 U.S.C. § 657(a).

The facts in this case are stipulated and undisputed. On February 12, 1975, during normal working hours, two authorized representatives of the Occupational Safety and Health Administration (Administration), United States Department of Labor, appeared at Hertzler Enterprises, Inc. (Hertzler)², doing business as Sandia Die and Cartridge Company, to conduct an inspection of the premises pursuant to 29 U.S.C. § 657(a). These representatives presented their credentials to Donna Walker Hertzler, President of Hertzler, who denied them entry and refused to permit an inspection.

The inspection attempted apparently was undertaken as a matter of routine for the purpose of determining whether Hertzler was in compliance with OSHA. There is no evidence that it arose out of any emergency, employee complaint, or belief that Hertzler was in violation of OSHA.

On April 16, 1975, a representative of the Administration made application to a United States Magistrate for an inspection warrant. The magistrate promptly issued a warrant ordering the entry, inspection and investigation of Hertzler. However, no showing of probable cause was made as a basis for issuance of this inspection warrant.³ On April 16, 1975, and again on April 18, 1975, OSHA compliance officers attempted to serve the inspection warrant and to inspect Hertzler, but they were denied entry.

On June 5, 1975, the Secretary of Labor instituted this suit by petitioning the court for an order compelling Hertzler to submit to an inspection under 29 U.S.C. § 657(a). Jurisdiction was invoked under 28 U.S.C. §§ 1337, 1345. A show cause order issued on June 6, 1975, and, thereafter, Hertzler filed an application for a permanent injunction to restrain enforcement of the OSHA inspection provisions⁴ for repugnance to the United States Constitution. Accordingly, a three-judge court was convened pursuant to 28 U.S.C. § 2282.

Plaintiff Secretary claims that the petition for entry, inspection, and investigation should be granted for the reason that, consistent with the dictates of the fourth amendment, 29 U.S.C. § 657(a) permits OSHA compliance officers to conduct a nonconsensual inspection of a business covered by the Act without first making any showing of probable cause.

Hertzler recognizes that the government has a valid interest in effectuating the Act's purpose of protecting employees through control of hazardous working conditions. Further, it concedes that inspections may be necessary to accomplish this purpose. Yet, Hertzler insists that the fourth amendment protects it from being inspected against its will by the Administration unless a warrant is first obtained upon a judicial officer's determination of probable cause. To the extent that § 657(a) authorizes OSHA compliance officers to conduct an objected-to inspection without prior resort to a search warrant based on probable cause, Hertzler claims it violates the fourth amendment, and therefore, that its enforcement must be enjoined.

In support of the Secretary's position, reliance is placed on the case of Brennan v. Buckeye Industries, Inc., 374 F.Supp. 1350 (S.D.Ga.1974). The Buckeye case arose when the Secretary of Labor petitioned a Georgia federal district court for an order requiring Buckeye Industries to submit to an OSHA inspection after access to the facility had been denied to a compliance officer attempting a general inspection. No search warrant had been sought by the Administration because of an apparent lack of any requisite probable cause. Nevertheless, the inspection order requested by the Secretary was granted over the company's objection that a nonconsensual OSHA inspection is unconstitutional under the fourth amendment unless conducted pursuant to a warrant obtained upon a showing of probable cause. The Georgia court thus held that warrantless, nonconsensual OSHA inspections performed pursuant to § 657(a) are valid under the fourth amendment.⁵Id. at 1354.

Hertzler bases its position on the case of Brennan v. Gibson's Products, Inc., 407 F.Supp. 154 (E.D.Tex.1976), which is squarely in conflict with Buckeye. In Gibson's Products, on facts nearly identical to those presently before the court⁶, it was held that the fourth amendment prohibits warrantless, nonconsensual OSHA inspections. Id. at 156. However, the Texas court refrained from invalidating the OSHA inspection provisions; instead, it construed § 657(a) to authorize an OSHA inspection over an objection only when conducted pursuant to "a search warrant issued by a United States Magistrate or other judicial officer of the third branch under probable cause standards appropriate to administrative searches—that is, in a constitutional manner." Id. at 162.

It is concluded that in this case the fourth amendment protects Hertzler from being required to submit to the inspection proposed by the Administration unless a search warrant is first obtained on a showing of probable cause. Enforcement of the OSHA inspection provisions need not be enjoined, however, since § 657(a) is here construed, as it was in Gibson's Products, to empower the Administration to conduct a nonconsensual inspection only pursuant to a search warrant issued by a judicial officer upon a showing of probable cause sufficient to justify an administrative search.

Controlling in the resolution of this case are two relatively recent pronouncements of the Supreme Court to the effect that administrative searches are subject to the fourth amendment requirement of a warrant. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

In Camara, the Supreme Court held that officers seeking to conduct a routine code-enforcement "area" inspection of a private dwelling, as authorized by the municipal housing code, were required under the fourth amendment to obtain a warrant upon being denied entry by the resident.⁷ 387 U.S. at 534, 87 S.Ct. 1727. According to Camara, issuance of an inspection warrant is to be based on satisfaction of a flexible probable cause standard. That is, the need to search is to be weighed against the invasion which the search entails, and the resulting balance may vary from inspection to inspection, depending on, for example, the public need for effective enforcement in a particular area, the nature of the search proposed, the legislative and administrative standards under which particular regulatory inspections are to be conducted, an agency's experience with particular facilities, and the length of time which has passed without inspection. Id. at 535-39, 87 S.Ct. 1727.

The subject of the See case was an attempted routine inspection authorized by a municipal fire code to obtain compliance with its provisions. In See it was held that the warrant requirement and probable cause standards articulated in Camara were applicable to unconsented administrative inspections of commercial premises. 387 U.S. at 543-545, 87 S.Ct. 1737. However, any question as to the validity of regulatory inspections conducted as part of licensing programs was expressly reserved for decision on a case by case basis. Id. at 546, 87 S.Ct. 1737.

A result contrary to that reached by the Court in this case is not called for by the Supreme Court's decisions in Colonade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), or their progeny in the lower courts.

The Buckeye court, in upholding warrantless nonconsensual OSHA inspections, reasoned that the Supreme Court's decisions in Colonade and Biswell signified a general retreat from the warrant requirements imposed...