Lesueur-Richmond Slate Corp. v. Fehrer

• Decision Date: 13 January 2012
• Docket Number: No. 11–1112.,11–1112.
• Citation: 666 F.3d 261
• Parties: LESUEUR–RICHMOND SLATE CORPORATION, Plaintiff–Appellant, v. Damien C. FEHRER; James E. Smith; Vernon L. Harris; Conrad T. Spangler, III, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

666 F.3d 261

LESUEUR–RICHMOND SLATE CORPORATION, Plaintiff–Appellant,

v.Damien C. FEHRER; James E. Smith; Vernon L. Harris; Conrad T. Spangler, III, Defendants–Appellees.

No. 11–1112.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2011.Decided: Jan. 13, 2012.

ARGUED: David Paul Mitchel, Michael J. Brickhill, PC, Appomattox, Virginia, for Appellant. Wesley Glenn Russell, Jr., Office of the Attorney General, Richmond, Virginia, for Appellees. ON BRIEF: Michael J. Brickhill, Michael J. Brickhill, PC, Appomattox, Virginia, for Appellant. Kenneth T. Cuccinelli, II, Attorney General, E. Duncan Getchell, Jr., Solicitor General of Virginia, Charles E. James, Jr., Chief Deputy Attorney General, Stephen M. Hall, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellees.

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge KING and Judge DAVIS joined.

OPINION

GREGORY, Circuit Judge:

In this case, Appellant appeals the dismissal of its civil action brought against Appellees for alleged Fourth Amendment violations in conjunction with warrantless searches of Appellant's mining facility. Finding that there was no constitutional violation, we affirm.

I.

LeSueur–Richmond Slate Corporation (“LeSueur–Richmond”) operated a slate quarry in Virginia. Appellees Damien Fehrer and Vernon Harris are mineral inspectors for the Virginia Department of Mines (“the Department”), James Smith is an inspector supervisor at the Department, and Conrad Spangler is the Department's director. The Department administers Virginia's Mineral Mine Safety Act (“the Act”), which in relevant part provides for the warrantless administrative inspections of surface mines to “respond to complaints of violations of” the Act. Va.Code Ann. § 45.1–161.292:54(B). The Department's procedures manual provides additional guidance on how these inspections are to be conducted. In particular, Procedure No. 2.12.00 provides:

Upon arrival at the mine site, the mine inspector will inform the operator ... of the nature of the complaint and the intention to conduct an investigation;

When investigating a safety complaint, the mine inspector will make effort to conduct the inspection so as not to divulge or direct attention to the complainant who will remain anonymous. This may require the inspection of a variety of equipment and areas other than those indicated in the original complaint.

J.A. 11.

From December 2007 to June 2008, Fehrer conducted approximately twenty-five warrantless inspections of LeSueur–Richmond's mining operation after receiving anonymous tips that the mine was not in compliance with Virginia regulations. He was, on at least some of those occasions, accompanied by Smith and Harris. As a result of these inspections, the Department issued thirty-two violations against LeSueur–Richmond. In December 2009, LeSueur–Richmond filed this § 1983 action against appellees, contending that the Department's warrantless investigations violated both the federal and Virginia state constitutions. Appellees filed a motion to dismiss on four grounds: claim preclusion, Younger abstention, qualified immunity, and failure to state a claim. The district court granted the motion on the third and fourth grounds, and LeSueur–Richmond timely appealed.

II.

A district court's dismissal of a complaint is reviewed de novo. Smith v. Smith, 589 F.3d 736, 738 (4th Cir.2009). In determining whether the order was proper, the appellate court accepts as true all of the well-pleaded allegations and views the complaint in the light most favorable to the non-moving party. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). It then determines whether a “plausible claim for relief” has been made. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009).

When qualified immunity is asserted, the reviewing court should usually first ask whether the right was violated on the facts alleged, and then determine whether that right was “clearly established.” Smith, 589 F.3d at 739 (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); see also Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“[W]e conclude that, while the sequence set forth [in Saucier ] is often appropriate, it should no longer be regarded as mandatory.”). We therefore first consider LeSueur–Richmond's Fourth Amendment claims before addressing qualified immunity.

III.

The Fourth Amendment, incorporated against the states by the Fourteenth Amendment, Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), protects the people against unreasonable searches and seizures. U.S. CONST. amend. IV. While a state actor normally must procure a warrant before conducting a search, inspections in heavily regulated industries are permissible so long as certain conditions are met. LeSueur–Richmond alleges that both the Virginia statute permitting such searches and the conduct of the inspectors in this case violate the Fourth Amendment. We consider both arguments in turn.

A.

LeSueur–Richmond first argues that the Virginia statute is unconstitutional. A statute permitting government agents to conduct warrantless searches in the context of a heavily regulated industry is constitutional so long as it satisfies the three-pronged test laid out by the U.S. Supreme Court in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Here, only the third prong of the Burger test, requiring that the inspection program “provide a constitutionally adequate substitute for a warrant,” id. at 702, 107 S.Ct. 2636, is contested by LeSueur–Richmond. ¹ That prong is divided into two subparts:

[T]he regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be carefully limited in time, place, and scope.Id. at 703, 107 S.Ct. 2636 (citations omitted). LeSueur–Richmond contends that the statute accomplishes neither of these functions and claims that the Act is unconstitutional on its face. Id. at 15 (arguing the Virginia law “is facially unconstitutional”). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987).

Without delving too deeply into the intricacies of facial versus as-applied challenges, we find that the Act provided adequate safeguards for LeSueur–Richmond.² Appellant argues that while the Supreme Court requires notice that the property “ will be subject to periodic inspections,” the Virginia statute only says that “the Department may enter such mines....” Va.Code Ann. § 45.1–161.292:54(B) (emphasis added). Because the Act does not guarantee that any inspections will take place, LeSueur–Richmond claims, Burger's notice requirement is not satisfied. But this argument necessitates the conclusion that the statute would be constitutional only if inspectors were obligated to investigate each and every anonymous complaint they received—an outcome that is both a drain on the Department's resources and unnecessarily intrusive on mine operators like the appellant. Fairly read, the Burger Court meant that a statute permitting warrantless administrative searches must clearly indicate that the mine operator's property is subject to search, whether or not any government official actually conducts one. And here, a cursory reading of the Act demonstrates that such notice was given: “[M]ine inspectors and other employees of the Department may enter such mines in order to (i) respond to complaints of violations of this chapter....” Va.Code Ann. § 45.1–161.292:54(B). The statute informs the operator “that the inspections to which he is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute.” Burger, 482 U.S. at 711, 107 S.Ct. 2636.

LeSueur–Richmond further asserts that the Act is not properly limited in time, place, and scope. With respect to time, the Virginia statute provides very few express limits. While the New York statute in Burger limited warrantless searches to “regular and usual business hours,” this Act permits inspections at any time “to the extent deemed reasonable and prudent ... at a variety of hours of the day and days of the week, including evening and night shifts, weekends, and holidays.” Va.Code Ann. § 45.1–161.292:58(B). The Fourth Circuit has not considered a statute with such broad application, but several sister circuits have upheld statutes that have similarly expansive language with respect to time. In Ponce–Aldona, for example, the Eleventh Circuit upheld a statute permitting warrantless inspections of commercial vehicles at any time, finding that “[t]ime restrictions are not feasible because trucks operate twenty-four hours a day.” United States v. Ponce–Aldona, 579 F.3d 1218, 1226 (11th Cir.2009). Similarly, the Act's open-ended timing provision is responsive to the fact that mining operations have both day and night shifts, and a time restriction might “render the entire inspection scheme unworkable and meaningless.” Id. (citations omitted); see also United States v. Delgado, 545 F.3d 1195 (9th Cir.2008) (upholding a commercial trucking inspection sta...