Morris v. United States Dept. of Labor

• Decision Date: 20 September 1977
• Docket Number: No. 77-5068.,77-5068.
• Citation: 439 F. Supp. 1014
• Parties: Milton MORRIS, an Individual d/b/a Milmor Manufacturing Company, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. District Court — Southern District of Illinois

439 F. Supp. 1014

Milton MORRIS, an Individual d/b/a Milmor Manufacturing Company, Plaintiff, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.

No. 77-5068.

United States District Court, S. D. Illinois, S. D.

September 20, 1977.

Lueders, Robertson & Konzen by R. Eric Robertson, Granite City, Ill., for plaintiff.

Gerald D. Fines, U. S. Atty., John C. Carver, Asst. U. S. Atty., Springfield, Ill., Timothy J. Pauley, U. S. Dept. of Labor, Chicago, Ill., for defendant.

MEMORANDUM ORDER

J. WALDO ACKERMAN, District Judge.

This cause grows out of plaintiff's motion to quash search warrant issued for an administrative search based on the Occupational Safety and Health Act.

FACTS

Plaintiff Milton Morris owns and operates a steel fabricating business located at 1300 McKinley Avenue, Venice, Illinois. The business manufactures various types of containers for trucks and other vehicles and is engaged in interstate commerce. On March 14, 1977, the compliance officer of the Occupational Safety and Health Administration, United States Department of Labor, sought entry into plaintiff's work place at Venice for the purpose of performing an occupational safety and health inspection under the provision of the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.). The compliance officer was denied entry.

On April 1, 1977, the compliance officer sought and received a warrant for inspection of plaintiff's premises from United States Magistrate Ronald C. Mottaz. On the same date the compliance officer again presented himself at plaintiff's premises and demanded entry. Plaintiff honored the warrant, but on the same date filed with this Court his petition to quash warrant for inspection under the Occupational Safety and Health Act of 1970 and to suppress the evidence obtained.

On April 8, 1977, plaintiff was issued two citations and notifications of penalties for violations of the Act. On April 28, 1977, petitioner's attorney invoked the jurisdiction of the OSHA Review Commission by a notice of contest. Plaintiff in his notice to the OSHA Commission raised the constitutional defenses that are currently pending here.

The issues are: the constitutionality of the Act itself, the requirement of exhaustion of administrative remedies and the validity of the warrant issued.

I.

The attack on the constitutionality of the Act is based on the premise that since § 8(a) of the Act (29 U.S.C. § 657(a))¹ on its face authorizes warrantless searches it is in violation of the Fourth Amendment.

A number of courts have spoken to this issue.² The constitutionality of that section is currently pending before the Supreme Court in Marshall v. Barlow's, Inc., No. 76-1143, probable jurisdiction noted, 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 354 (1977). Under those circumstances it seems sufficient to say that it is this Court's duty to construe a statute, if possible in a manner consistent with the Fourth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J. concurring). At least two courts, Brennan v. Gibson's Products, Inc., of Plano, 407 F.Supp. 154 (E.D.Tex.1976) (three-judge court) (appeal pending Fifth Circuit) and Dunlop v. Hertzler Enterprises, Inc., 418 F.Supp. 627 (D.C.N.Mex.1976) (three-judge court) (appeal pending Tenth Circuit) have sought to apply this principle by interpreting § 8(a) to require the Secretary to seek an inspection warrant where the OSHA inspectors are refused entry.

I believe this to be the proper interpretation of § 8(a) and the statute is not unconstitutional when so interpreted. Further the Secretary through the OSHA compliance officers followed exactly that procedure in this case.

Thus, the question that remains is whether the warrant here was issued upon a proper showing under the standards announced in the Supreme Court decisions Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1966) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1966). However, before reaching that question I must deal with defendant's argument concerning exhaustion of administrative remedies.

II.

Defendant asserts that the doctrine of exhaustion of administrative remedies requires that plaintiff present his case to the OSHA Review Commission and that this Court is without jurisdiction to decide the validity of the search warrant. It is clear that Congress, through the creation of the Occupational Safety and Health Act of 1970, created a methodology for the plaintiff to litigate his claim. Under the Act, the petitioner is entitled to a full administrative hearing, 29 U.S.C. § 659(c), with the burden of proof on the Secretary, 29 C.F.R. 2200.73, followed by a complete judicial review in the Court of Appeals, 29 U.S.C. § 660(a), whose judgments are reviewable in the Supreme Court on certiorari, 29 U.S.C. § 660(a); 28 U.S.C. § 1254. In support of its assertion defendant cites the cases of W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967) and Lance Roofing Co. v. Hodgson, 343 F.Supp. 685 (N.D.Ga.1972) (three-judge court) aff'd mem. 409 U.S. 1070, 93 S.Ct. 679, 34 L.Ed.2d 659 (1972).

At the outset, it should be noted that neither of these actions sought to suppress evidence before the OSHA Review Commission. In DuBois, plaintiffs sought injunctive and declaratory relief on the ground that the Internal Securities Act was unconstitutional on its face and as applied, while in Lance Roofing, plaintiff sought similar relief on similar grounds after the OSHA Review Commission summarily denied plaintiff's request for procedural due process and trial by jury.

In both the DuBois and the Lance Roofing cases the court declined to rule on difficult questions of constitutional law before the facts were fully developed and refined by the hearings before the administrative agency and while there remained the possibility that the matter could be resolved in plaintiff's favor without reaching the constitutional questions.

That rationale is not applicable here. Counsel for plaintiff, in the hearing on plaintiff's motion for temporary injunction appeared to admit that violations had occurred, but claimed they have now been cured. Under these circumstances it seems inappropriate to remand to the Commission on the ground that resolution of factual matters might obviate difficult constitutional questions since statements of plaintiff's counsel strongly indicate that the facts cannot be resolved in plaintiff's favor.

Other cases as well have applied the exhaustion doctrine in OSHA matters. See In Matter of Restland Memorial Park, 540 F.2d 626 (3rd Cir. 1976) and Frank Irey, Jr., Inc. v. Hodgson, 354 F.Supp. 20 (N.D.W.Va. 1972) (three judge court) aff'd mem. 409 U.S. 1070, 93 S.Ct. 682, 34 L.Ed.2d 659 (1972). The decision in Restland is particularly interesting since there as here, plaintiff sought to quash an executed warrant, but on the grounds that Restland was not within the jurisdiction of the OSHA Commission. The District Court refused to quash the warrant but the Court of Appeals vacated that decision and remanded with instructions to dismiss on the ground of failure to exhaust administrative remedies.

The Third Circuit there reasoned that the OSHA Review Commission had the competency and expertise to rule on the scope of its own jurisdiction. But the ultimate issue in this case is whether the warrant was issued with probable cause. That question is not one within the competency and expertise of the OSHA Review Commission. It seems to me at best unfair, to require plaintiff to exhaust his administrative remedies with the attendant costs before he can receive a court ruling on the propriety of the warrant.

Further, since the attack here is on the warrant issued by this Court through its magistrate, I find that this Court must retain the power to determine the legality of its process just as it must retain jurisdiction to enforce its process by contempt if necessary.

On these grounds and on the grounds cited by plaintiff in his brief, I hold that exhaustion is not required in this case.

III.

Finally then, I reach the ultimate question, whether the warrant here was issued in violation of the Fourth Amendment. The Fourth Amendment provides that:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is clear that the warrant issued here should be characterized as an inspection warrant and therefore governed by the standards announced in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1966) and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1966), Camara and See held that in the face of refusal to allow city inspectors to enter either residential or commercial premises a warrant was required directly overruling Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959).³ The question here posed concerns the showing necessary to obtain such an inspection warrant.

Plaintiff contends that no probable cause was shown for issuance of the warrant and therefore the search violated the Fourth Amendment. As Justice White said in Camara, "in cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness." Camara, supra, 387 U.S. at 534, 87 S.Ct. at 1734. Reasonableness is to be determined ". . . by balancing the need to search against the invasion which the search entails." Camara, supra at 537, 87 S.Ct. at 1735.

Thus in Camara the court held that:

. . . "probable cause" to issue a warrant must exist if reasonable

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