Brennan v. Buckeye Industries, Inc.

• Decision Date: 24 April 1974
• Docket Number: No. CV374-5.,CV374-5.
• Citation: 374 F. Supp. 1350
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Petitioner, v. BUCKEYE INDUSTRIES, INC. and James E. Ledford, Respondents.
• Court: U.S. District Court — Southern District of Georgia

374 F. Supp. 1350

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Petitioner, v. BUCKEYE INDUSTRIES, INC. and James E. Ledford, Respondents.

No. CV374-5.

United States District Court, S. D. Georgia, Dublin Division.

April 24, 1974.

B. C. Baxter, Jr., Asst. U. S. Atty., Augusta, Ga., Anthony B. Cuviello, Atty. U. S. Dept. of Labor, Atlanta, Ga., for petitioner.

Allan P. Clark, J. P. Jones, Coffman & Jones, Jacksonville, Fla., for respondents.

ORDER

LAWRENCE, Chief Judge.

On Wednesday, February 20, 1974, Occupational Safety and Health Compliance Officer Margie L. Preston arrived at the business premises of Buckeye Industries, Inc. at Wrightsville, Georgia¹ around 10:00 A.M. to conduct an inspection of the premises pursuant to the Occupational Safety and Health Act. 29 U.S.C. § 657(a).

She presented identification to James Ledford, plant manager, but no search warrant. According to the latter, Miss Preston told him that she was going to make a "general inspection". Mr. Ledford requested that she wait until the company's attorney J. P. Jones, arrived before commencing an inspection. He wished to have counsel present during the proposed inspection as Buckeye's "authorized representative".² The Compliance Officer informed Ledford that she could not wait until Mr. Jones could drive from Jacksonville, Florida, which is approximately two hundred miles distant. Subsequently, Mr. Ledford and Mr. Jones, in a telephone conversation, refused to allow the inspection without Mr. Jones being present and Miss Preston left.

The following day the Secretary of Labor filed an application under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.) requesting that this Court order Buckeye Industries, Inc. and James E. Ledford to submit to an inspection of the premises. A Show Cause Order was issued on February 21, 1974, and an evidentiary hearing and argument was held on February 26th. At that time respondents filed a motion to dismiss.

No citations for alleged violations of the Act's regulations nor any complaints by employees of unsafe conditions at Buckeye Industries have been made to the Occupational Safety and Health Administration. It was conceded by plaintiff that no probable cause for issuance of a search warrant was attempted pursuant to 29 U.S.C. § 657(a) of the Occupational Safety and Health Act which provides that in order to carry out its purposes the Secretary

"(a) . . . upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized —

"(1) to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and

"(2) to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee."

In setting forth the purposes of the Occupational Safety and Health Act, Congress recognized the importance of safe and healthful working conditions by providing an enforcement program which shall include and prohibit giving advance notice of any inspection and established sanctions for violation thereof.³ 29 U.S.C. § 651(b)(10). See also 29 U.S.C. § 666.

In resisting the application of the plaintiff for mandatory injunctive relief and an Order requiring Buckeye Industries to permit the proposed inspection, defendant contends that (1) this Court is without jurisdiction to entertain the present proceeding by the Secretary; (2) that the remedies provided in the Act with regard to sanctions against Buckeye Industries are exclusive and have not been exhausted, and (3) the Secretary's proposed application of § 8(a) of the Act in respect to warrantless inspection violates the search and seizure provision of the Fourth Amendment.

JURISDICTION

"The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce. . . ."⁴ 28 U.S.C. § 1337.

"Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by an agency or officer thereof expressly authorized to sue by Act of Congress." 28 U.S.C. § 1345.

Buckeye Industries argues that these jurisdictional provisions are not applicable in that the specific provisions of the Occupational Safety and Health Act are exclusive and govern any right of the United States to sue in connection with enforcement thereof as opposed to 28 U. S.C. § 1345 or § 1337. Defendant asserts that the Secretary of Labor is only authorized to seek relief in a district court in three specified instances: (1) Where he is attempting to enforce the subpoena power granted pursuant to 29 U.S.C. § 657(b); (2) to enjoin imminent dangers, 29 U.S.C. § 662; and (3) to collect civil penalties which have been levied pursuant to final orders of the Occupational Safety and Health Review Commission, 29 U.S.C. § 666(k). Counsel for Buckeye Industries argue that under no other circumstances than these has Congress authorized the Secretary to bring suit under the Act in the district courts of the United States.

The absence of specific statutory authority for an action by the United States in a particular instance is no obstacle to original jurisdiction under § 1345. It is settled that no such prerequisite exists to the appearance of the United States before its own courts. United States v. San Jacinto, 125 U.S. 273, 278-285, 8 S.Ct. 850, 31 L.Ed. 747; Bush v. Orleans Parish School Board, 191 F.Supp. 871 (E.D., La.), aff'd sub nom, Denny v. Bush, 367 U.S. 908, 81 S. Ct. 1917, 6 L.Ed.2d 1249; United States v. York et al., 398 F.2d 582 (6th Cir.). Nothing in the Act under consideration limits or affects the applicability of § 1337 or § 1345. Unless legislation should expressly provide that jurisdiction of a district court is limited by the special jurisdictional provisions of an Act, the right of the United States to sue under § 1337 and § 1345 is not affected. The United States may lawfully maintain suits in its own courts to prevent interference with the means it adopts to exercise its powers of government and to carry into effect its policies. Island Airlines, Inc. v. Civil Aeronautics Board, 352 F.2d 735, 744 (9th Cir.); United States v. LeMay, 322 F.2d 100 (5th Cir.).

I find that this Court has statutory jurisdiction to grant the mandatory injunction sought by plaintiff as to compliance with the right of representatives of the Secretary to enter defendant's place of business and to inspect the premises "without delay".

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Respondents argue that the proper route for the Secretary to pursue should an employer refuse to permit an inspection is to issue a citation and impose a proposed penalty under §§ 658 and 659 of the Act. In such event, if the employer desires to challenge the issuance of the citation, the correct procedure is for the party cited to file a notice of contest within fifteen days thereafter. The Review Commission will then determine the merits of the alleged violation. 29 U.S.C. § 659(c). Judicial review of final orders by the Commission can be obtained in the United States Courts of Appeals, 29 U.S.C. § 660.

The administrative review established by §§ 658 through 660 permits an employer to contest citations for violations of the duties under § 654(a)(1) or the health and safety standards promulgated by the Secretary under § 655.⁵ The Secretary has authority to issue citations if, "upon inspection or investigation" violations are noticed. 29 U.S.C. § 658(a). He is required thereafter to notify the employer of the proposed penalty.

The administrative remedies established by the Act do not contemplate the review of the refusal by an employer to permit inspection of the premises or provide an exclusive means of review thereof. All the benefit of unannounced inspections would be lost if an employer can delay same pending the outcome of protracted review on the administrative level before appeal to a Circuit Court of Appeals.

Proper interpretation of the review features of the Act limit the same to the matter of violations and penalties and Congress did not intend to create thereby a roundabout method of enforcement or contesting of the right of the Secretary's representatives to enter a place of business to make inspections required by law. Certainly, the administrative features are not intended to be a means of review of the general validity of a statute empowering the Government to make unannounced, warrantless inspections of a business. Of course, an employer cited for a violation or notified of a proposed penalty may in the course of administrative proceedings raise the question of validity of the section of the Act authorizing same. But this is not the exclusive means of his raising that issue. The employer may do so, and has, challenged the section of the statute and the procedures involved in the instant litigation. The existence of administrative remedies does not deprive the United States of the right to go into its courts where an employer refused the statutory right to enter a place of business without delay.

VALIDITY OF UNANNOUNCED, WARRANTLESS, INSPECTIONS WITHOUT PROBABLE CAUSE AS PERMITTED BY § 657(a)

Congress was both aware of and sensitive to the Fourth Amendment right of privacy of a non-public business subject to the Act.⁶ Representatives of the Secretary are required to present appropriate credentials to the owner, operator or agent in charge of the business. While no advance notice has to be given (a requirement that would seriously handicap proper enforcement), compliance...