U.S. v. Articles of Hazardous Substance

Decision Date30 October 1978
Docket NumberNos. 78-1066,78-1110 and 78-1142,s. 78-1066
PartiesUNITED STATES of America, Appellant, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery Co., Inc., Appellees. UNITED STATES of America, Appellee, v. ARTICLES OF HAZARDOUS SUBSTANCE, etc., and Troxler Hosiery Co., Inc., Appellants. In re UNITED STATES of America, Petitioner.
CourtU.S. Court of Appeals — Fourth Circuit

Robert B. Nicholson, Atty., Dept. of Justice, Washington, D. C. (Andrea Limmer, Atty., Dept. of Justice, John H. Shenefield, Asst. Atty. Gen., Theodore J. Garrish, Gen. Counsel, Norman Barnett, Sol., Earl A. Gershenow, Atty., Consumer Product Safety Com'n, on brief), for U. S. in Nos. 78-1066 and 78-1110.

Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follin, Curtis, James & Harkavy, Greensboro, N. C., on brief), for Articles of Hazardous Substance, etc. in Nos. 78-1066 and 78-1110.

Richard H. Gimer, Richard G. White, Santarelli & Gimer, Washington, D. C., on brief, for amicus curiae American Yarn Spinners Ass'n, Inc.

Before WINTER, Circuit Judge; Field, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

On January 18, 1978, the United States, acting on behalf of the Consumer Products Safety Commission (CPSC) under the Federal Hazardous Substances Act (FHSA), as amended, 15 U.S.C. §§ 1261, Et seq., obtained an ex parte warrant of seizure and condemnation from the Clerk of the District Court for the Middle District of North Carolina, directing the seizure of quantities of several different types of children's sleepwear which had been treated with TRIS, a flame retardant, technically known as (2, 3 Dibromoprotyl) phosphate. The sleepwear was being offered for sale by Troxler Hosiery Company, Inc., at its place of business in Greensboro, North Carolina, and in its complaint the Government alleged that the sleepwear was a banned hazardous substance under 15 U.S.C. § 1261(q)(1)(A). As authority for the seizure the Government invoked 15 U.S.C. § 1265 which authorizes the seizure of a banned hazardous substance "while held for sale". Troxler filed a motion to quash the warrant of seizure which, after a hearing, was granted by the district court. The Government has appealed.

In its motion to quash, Troxler contended that CPSC could proceed against TRIS-treated goods only after adopting an appropriate regulation pursuant to 15 U.S.C. § 1261(q)(1)(B) and § 1261(q)(2), and that the seizure violated Troxler's constitutional rights under the Fourth and Fifth Amendments. The district court rejected Troxler's first contention, but upheld its constitutional challenges.

With respect to Troxler's first contention, we note, as did the district court, that under Section 1265 "banned hazardous substances" are liable to seizure by process pursuant to a libel of information, and that an article may be a "banned hazardous substance" under either Section 1261(q)(1)(A) or Section 1261(q)(1)(B). Section 1261(q)(1)(A), upon which the Commission relied in this case, defines a "banned hazardous substance" to be "any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted." A "hazardous substance" is defined in Section 1261(f)(1) in pertinent part as follows:

(A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

(B) Any substances which the Secretary by regulation finds, pursuant to the provisions of section 1262(a) of this title, meet the requirements of subparagraph (1)(A) of this paragraph.

The Commission contends that TRIS meets the definition of "hazardous substance" in Section 1261(f)(1)(A) because it is toxic within the meaning of Section 1261(g). This latter section provides that "(t)he term 'toxic' shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface."

Under FHSA a substance may be a "banned hazardous substance" either by meeting the statutory definition in Section 1261(q)(1)(A), or by being so defined by regulation after formal rule-making under Sections 1261(q)(1)(B) and (q)(2). Similarly, a substance may be a "hazardous substance" if it meets the statutory definition contained in Section 1261(f)(1)(A) or has been so defined by regulation under 15 U.S.C. § 1262(a). From our examination of the statutory structure, it appears that the Commission may proceed against a substance by regulation pursuant to its rule-making authority, or may go directly to court upon its allegation that the goods or substances meet the statutory definition under Section 1261(q)(1)(A). We agree with the district court that where the Commission elects to follow the latter course in a Section 1265 proceeding, the issue of whether TRIS-treated children's sleepwear is, in fact, a "banned hazardous substance" is a question to be later determined in a hearing on the merits in the condemnation proceeding.

While the district court rejected Troxler's contention that an appropriate administrative regulation is a prerequisite to any enforcement action, it concluded that the seizure in this case was violative of the Fourth Amendment because the Commission did not establish probable cause and because an independent judicial officer did not review the allegations prior to the seizure; and that Troxler was denied its Fifth Amendment due process rights because the seizure was not followed by an immediate post-seizure hearing. We do not agree with the district court for we find little substantiality in Troxler's constitutional arguments.

Section 1265 is modelled after Section 304 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 334, and provides that "the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by a jury." The Commission in this case complied with the statute as well as the Admiralty procedure prescribed in Supplemental Rule C of the Federal Rules of Civil Procedure, filing a verified complaint which described the articles of merchandise and averred that they were "banned hazardous substances" subject to seizure and condemnation under FHSA. In dealing with the issue of probable cause under Section 304 of the Food, Drug and Cosmetic Act, Judge Wright, in Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 233, 409 F.2d 1146, 1150 (1969), Cert. denied 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), observed:

Though warrants are generally necessary for arrests of persons and for searches, the warrant requirement has not traditionally been imposed upon seizures of the type involved in this case attachment of property in the course of civil proceedings. This does not mean that the Fourth Amendment does not apply to such seizures, in both its substantive prohibition against unreasonable seizures and its procedural requirement of judicial or quasi-judicial review of the decision to seize. It means merely that judicial restraint is imposed through a different form of proceeding than the showing of probable cause before a magistrate. In the case of ordinary civil attachments, the details of such proceedings are, even in the federal courts, left to state law. In cases in admiralty, the process is governed by the Admiralty Rules, lately recodified as a supplement to the Civil Rules. (Footnotes omitted).

We are in accord with this observation, and in our opinion the Commission's adherence to the Admiralty Rules provided sufficient probable cause for the issuance of the warrant of seizure in this case. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), upon which the district court relied, is inapposite for that case dealt with the warrantless search of a private home, while the case before us involves a seizure pursuant to a warrant in a store which concededly was open to the public. 1

With respect to the Fifth Amendment issue, Section 1265, like Section 304 of the Food, Drug and Cosmetic Act, is designed to provide an expeditious remedy of seizure and condemnation to protect the public from substantial injury and illness because of hazardous substances, and we find the answer to Troxler's due process claims in Ewing v. Mytinger & Casselberry,339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). In that case Section 304 of the Food and Drug Act was challenged under the due process clause upon grounds similar to those advanced by Troxler that the...

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