734 F.2d 226 (5th Cir. 1984), 83-3097, United States v. New Orleans Public Service, Inc.

Docket Nº:83-3097.
Citation:734 F.2d 226
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellant.
Case Date:June 14, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 226

734 F.2d 226 (5th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,

v.

NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellant.

No. 83-3097.

United States Court of Appeals, Fifth Circuit

June 14, 1984

Page 227

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Michael J. Molony, Jr., New Orleans, La., for defendant-appellant.

John Volz, U.S. Atty., New Orleans, La., David L. Rose, Federal Enforcement Section, Richard S. Ugelow, U.S. Dept. of Justice, Civ. Rights Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(OPINION 1/23/84, 5 CIR., 1984, 723 F.2d 422)

Before GARZA, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:

Like a vampire in the night this case refuses to die. As our NOPSI III opinion was in the process of being released, the Supreme Court decided Donovan v. Lone Steer, Inc., --- U.S. ----, 104 S.Ct. 769, 78 L.Ed.2d 567 (1984). In Lone Steer the Labor Department served an administrative subpoena duces tecum on Lone Steer, Inc., a motel and restaurant. The subpoena required Lone Steer to bring payroll and sales records to a Labor Department office.

Relying on the fourth amendment, the employer refused to comply. The Supreme Court held that the Labor Department did not need a warrant to inspect the documents because they did not attempt to enter the non-public areas of the employer's premises and because departmental procedures permitted Lone Steer to challenge, in court, the reasonableness of the subpoena before compliance was required. The court drew a bright line at attempts of "government inspectors to make non-consensual entries into areas not open to the public." Lone Steer, 104 S.Ct. at 773.

In its rehearing petition, the government argues that its proposed search of NOPSI is analogous to the subpoena duces tecum in Lone Steer, and in light of that decision its proposed search should be approved. Specifically, it contends that in NOPSI II, 638 F.2d 899 (5th Cir.1981), we incorrectly applied the higher Barlow's standard for warrants, which is appropriate for a physical entry, inspection, and search, but is not applicable to their request, which is in essence solely for documents. The government admits that they sought to enter NOPSI's premises to examine the requested documents, but argues that this does not rise to the level of a surprise entry on an employer's property to discover safety and health hazards as in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In the alternative, the government states that it would be satisfied if NOPSI would bring the requested documents to the U.S. Attorney's office. NOPSI maintains that...

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