424 F.Supp. 437 (D.Idaho 1976), Civ. 1-76-3, Barlow's, Inc. v. Usery

Docket Nº:Civ. 1-76-3
Citation:424 F.Supp. 437
Party Name:Barlow's, Inc. v. Usery
Case Date:December 30, 1976
Court:United States District Courts, 9th Circuit, District of Idaho
 
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Page 437

424 F.Supp. 437 (D.Idaho 1976)

BARLOW'S, INC., an Idaho Corporation, Plaintiff,

v.

W. J. USERY, Secretary of Labor of the United States of America, in his official capacity, et al., Defendants.

Civ. No. 1-76-3.

United States District Court, D. Idaho.

Dec. 30, 1976

Page 438

John L. Runft, Runft & Longeteig, Chartered, Boise, Idaho, for plaintiff.

Paul L. Westberg, Asst. U. S. Atty., Boise, Idaho, for defendants.

MEMORANDUM DECISION AND ORDER

Before KOELSCH and ANDERSON, Circuit Judges, and McNICHOLS, Chief District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Plaintiff is an Idaho corporation in good standing situated in Pocatello, Idaho. Its business is the installation of electrical and plumbing fixtures, heating and air conditioning units. The corporation is engaged in interstate commerce in that it purchases and uses materials such as sheet metal which are made without the State of Idaho.

On September 11, 1975, Occupational Safety and Health Compliance Officer Daniel T. Sanger arrived at plaintiff's business premises for the purpose of conducting a safety and health inspection pursuant to Section 8(a) of the Occupational Safety and Health Act. 29 U.S.C. s 657(a). 1 Mr. Sanger properly identified himself and requested permission to inspect the nonpublic area of the premises. Mr. Ferrol G. "Bill" Barlow, President and Manager of Barlow's, Inc., refused to allow the inspection, basing his refusal on the absence of a search warrant. It is undisputed that Mr. Sanger did not have any cause, probable or otherwise,

Page 439

to believe a violation existed nor was he in possession of any complaints by any employee of Barlow's, Inc.

As a result of Mr. Barlow's refusal, the Secretary petitioned this court on December 13, 1975, for an order compelling entry, inspection and investigation. A show cause order was thereafter issued and subsequent to the show cause hearing the Secretary's petition was granted on December 30, 1976.

On January 5, 1976, the court's order was presented to Mr. Barlow. Mr. Barlow again declined to permit the inspection. The next day the plaintiff filed the instant action requesting that a three-judge court be convened to enjoin the enforcement of the Act on the ground of repugnance to the Fourth Amendment and, further, requesting a temporary restraining order. The present three-judge court 2 was empaneled and the temporary restraining order was denied on the ground of an inadequate showing of immediate and irreparable injury.

This case squarely presents the issue of whether the entry and inspection provisions of the Occupational Safety and Health Act (OSHA), 29 U.S.C. s 651, et seq., are consistent and compatible with the dictates of the Fourth Amendment. 3

I

Preliminarily, the Secretary advances two grounds to preclude this panel from reaching a decision on the merits. First, it is contended that this court lacks subject matter jurisdiction. This argument is premised on two principles: First, that judicial review is improper because Congress has designated an exclusive forum the Occupational Safety and Health Review Commission (29 U.S.C. s 661), and, second, that plaintiff is not entitled to challenge agency action for a supposed or threatened injury until prescribed administrative proceedings have been exhausted. In short, the Secretary contends that plaintiff should simply have permitted a full inspection under protest, thereby preserving its objections for the Commission and appellate courts, if and when a citation resulting from the inspection is actually issued against it.

The purposes served by the exhaustion doctrine, as set forth in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), are absent from this case and we therefore will not apply the rule to this case. It is beyond question that the administrative channels of OSHA lack the expertise to consider and determine the constitutional question presented by this case. We also find, after a consideration of the factors set forth in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)...

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