Marshall v. Gibson's Products, Inc. of Plano

• Decision Date: 20 November 1978
• Docket Number: No. 76-1526,76-1526
• Citation: 584 F.2d 668
• Parties: 6 O.S.H. Cas.(BNA) 2092, 1978 O.S.H.D. (CCH) P 23,148 F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. GIBSON'S PRODUCTS, INC. OF PLANO, a corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 668

584 F.2d 668

6 O.S.H. Cas.(BNA) 2092, 1978 O.S.H.D. (CCH) P 23,148

F. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. GIBSON'S PRODUCTS, INC. OF PLANO, a corporation, et al Defendants-Appellees.

No. 76-1526.

United States Court of Appeals Fifth Circuit.

Nov. 20, 1978.

Rehearing Denied Jan. 15, 1979.

Roby Hadden, U. S. Atty., Tyler, Tex., Allen H. Feldman, Asst. Counsel for Appellate Litigation, U. S. Dept. of Labor, Washington, D. C., William Kanter, Allen H. Sachsel, Attys., Rex E. Lee, Asst. Atty. Gen., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., William J. Kilberg, Sol. of Labor, Michael H. Levin, Counsel for Appellate Litigation, Benjamin W. Mintz, Asso. Sol., Dept. of Labor, Washington, D. C., for plaintiff-appellant.

Robert E. Rader, Jr., Bardwell D. Odum, Dallas, Tex., Charles Alan Wright, Austin, Tex., for defendants-appellees.

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

Before TUTTLE, TJOFLAT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

The Secretary of Labor (the Secretary) brought this action in the district court to enjoin the defendant, Gibson's Products, Inc., to submit to inspection under section 8(a) of the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 657(a) (1976). The defendant counterclaimed, asserting that the fourth amendment required the Secretary to obtain a search warrant based on probable cause. The merits of the counterclaim are controlled by the recent Supreme Court decision in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), which held warrantless inspections under section 8(a) unconstitutional. We cannot, however, reach the merits in this case. We find that the district court lacked subject matter jurisdiction to entertain the Secretary's suit (and hence the counterclaim) and therefore remand the case with the instruction that the cause be dismissed.

I

The facts in this case are not in dispute. On March 23, 1974, compliance officers of the Occupational Safety and Health Administration sought routine entry into one of the defendant's retail stores. The defendant refused to admit them. The Secretary brought suit in the district court to obtain an order to compel the defendant to submit to inspection. The court issued a show cause order, and the defendant counterclaimed. Since the counterclaim sought to enjoin section 8(a) of OSHA, which authorizes warrantless inspections without probable cause ¹, as repugnant to the fourth amendment, a three-judge district court was convened pursuant to 28 U.S.C. § 2282 (1970). ²

The court held that when compliance officers seeking to inspect business premises under section 8(a) are refused entry, they must obtain a search warrant. Brennan v. Gibson's Products, Inc., 407 F.Supp. 154 (E.D.Texas 1976). The court upheld section 8(a) by construing it to require impliedly that the Secretary procure a search warrant. Since the Secretary admittedly had no reason to believe the defendant was violating OSHA, and thus had no grounds for a warrant, his petition was dismissed. The counterclaim was also dismissed.

The Secretary filed notice of appeal both to this court and to the Supreme Court, but the appeal to the latter was dismissed on motion of the Secretary. The defendant does not appeal. Since the Secretary appeals only from the district court's dismissal of his petition to require the defendant to allow the search, the case is properly before this court. ³

II

This case was argued to us on the constitutional issues. Neither party questioned the jurisdiction of the district court to hear the case. Upon review of the record and the applicable statutes and precedents, we entertained doubts as to the jurisdiction of the court below to consider the Secretary's petition for the injunction he sought, and we requested briefing on the question. We hold that the district court did not have subject matter jurisdiction.

It is incumbent on a court of the United Sates, whether trial or appellate, to dismiss an action whenever it appears that subject matter jurisdiction is lacking, and the court must do so sua sponte if the parties have not brought the issue to the attention of the court. Mansfield, Coldwater & Lake Michigan Railway v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884). This is the "first principle of federal jurisdiction." P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's the Federal Courts and the Federal System 835 (2d ed. 1973). In adherence to this principle, we consider the jurisdictional issue.

A

Another principle of preeminence in federal jurisprudence is that federal courts are courts of limited jurisdiction; the exercise of federal jurisdiction is proper only when prescribed by Congress. ⁴ Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 319, 84 L.Ed. 329 (1940); Edwards v. Selective Service Local Board No. 111,432 F.2d 287, 290 (5th Cir. 1970), Cert. denied, 402 U.S. 952, 91 S.Ct. 1637, 29 L.Ed.2d 122 (1971). A corollary to this principle is that Congress may withhold from the federal courts jurisdiction over a class of cases even though the judicial power of the United States, as described in article III, § 2 of the Constitution, includes that class. Sheldon v. Sill, 49 U.S. (8 How.) 441, 12 L.Ed. 1147 (1850); Turner v. Bank of North America, 4 U.S. (4 Dall.) 7, 1 L.Ed. 718 (1799). Our task, therefore, is to examine the actions of Congress to determine whether this case comes within the perimeters of federal jurisdiction. Before we proceed, we note that the defendant's counterclaim, although raising a substantial federal question, cannot confer subject matter jurisdiction otherwise lacking. ⁵ Jurisdiction must be apparent on the face of the Secretary's petition. Louisville & Nashville Railroad v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

In our search for Congressional guidance on the jurisdictional issue in this case, we must start with the specific before we can address the general: we look first to OSHA to see how it speaks to the issue of jurisdiction and second to general grants of federal jurisdiction to discern whether they may provide a basis for this suit. OSHA, on its face, does not authorize the Secretary to petition the district court for an injunction to compel employers to submit to search under section 8(a). It merely authorizes "the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, . . . 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." 29 U.S.C. § 657(a)(1) (1976); see note 1 Supra. Moreover, in enacting section 8(a) Congress clearly did not contemplate the injunctive relief sought by the Secretary in the district court below.

That Congress did not write section 8(a) to allow the injunction sought here is apparent from the provision authorizing the Secretary "to enter without delay." These words were inserted by amendment in the House and were intended to preserve the element of surprise deemed essential to inspections under the section. 116 Cong.Rec. 38709 (1970) (remarks of Congressmen Galifianakis and Steiger). That surprise was considered crucial to such inspections is unequivocally indicated by the provision imposing criminal penalties for giving without permission advance notice of an inspection. 29 U.S.C. § 666(f) (1976). See Marshall v. Barlow's, Inc., 436 U.S. at 317, 98 S.Ct. at 1823. Obviously, any element of surprise is lost by the time the Secretary obtains an injunction. ⁶

The legislative history of OSHA indicates that Congress may have omitted to provide jurisdiction for injunctive relief here precisely because of doubts as to the constitutionality of such provision. A sponsor of OSHA, Congressman Steiger, remarked during debate, "I would add that in carrying out inspection duties under this act, the Secretary, of course, would have to act in accordance with applicable constitutional protections." 116 Cong.Rec. 38709 (1970). We think this congressional concern relevant to the determination of the intent behind the omission of a jurisdictional provision under section 8(a). As we discuss below, under specific sections of OSHA Congress did authorize the Secretary to bring suit and did provide for jurisdiction in the district courts over such suit. Congress knew full well how to grant jurisdiction, and where it is not unlikely that Congress omitted such a grant to avoid possible conflict with the Constitution, we can scarcely infer one.

That Congress did not intend to provide jurisdiction to grant the injunctive relief sought below is reinforced by the explicit provision for district court jurisdiction elsewhere in OSHA. The subsection immediately following 8(a) provides the Secretary with subpoena power in "inspections and investigations under this chapter (to) require the attendance and testimony of witnesses and the production of evidence under oath." 29 U.S.C. § 657(b) (1976). If the Secretary's order is violated, the district courts are given "jurisdiction to issue to (the violator) an order requiring such person to appear to produce evidence . . . and to give testimony relating to the matter under investigation or in question, and any failure to obey such order of the court may be punished by said court as a contempt thereof." Id. This provision, section 8(b), makes clear the acute attentiveness with which Congress addressed the role that the federal courts should play in the effectuation of OSHA.

Section 8(b) does not stand alone. Section 11(c)(2) of OSHA, 29 U.S.C. § 660(c)(2) (1976), states that upon complaint by any employee who believes that he or she has been fired or discriminated against for causing a complaint to be filed under OSHA, the...