Mosher Steel-Virginia v. Teig

• Decision Date: 08 March 1985
• Docket Number: STEEL-VIRGINIA,No. 841315,841315
• Citation: 229 Va. 95,327 S.E.2d 87
• Parties: , 12 O.S.H. Cas. (BNA) 1217, 1984-1985 O.S.H.D. (CCH) P 27,203 MOSHER, etc. v. Eva S. TEIG, Commissioner, etc., et al. Record
• Court: Virginia Supreme Court

Page 87

327 S.E.2d 87

229 Va. 95, 12 O.S.H. Cas. (BNA) 1217,

1984-1985 O.S.H.D. (CCH) P 27,203

MOSHER STEEL-VIRGINIA, etc. v. Eva S. TEIG, Commissioner, etc., et al.

Record No. 841315.

Supreme Court of Virginia.

March 8, 1985.

Thomas T. Lawson, Robert E. Rader, Jr., Roanoke (D. Stan Barnhill, Woods, Rogers, Muse, Walker & Thornton, McCarty, Wilson, Rader & Mash, P.C., Roanoke, on briefs), for appellant.

John R. Butcher, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellees.

Present: All the Justices.

COCHRAN, Justice.

In this appeal, we consider whether an employer may challenge in a declaratory judgment proceeding a warrant authorizing inspection of the employer's manufacturing facility to determine whether the facility is being operated in compliance with the occupational safety and health laws, Code §§ 40.1-1, et seq.

Appellant Mosher Steel-Virginia, Division of Trinity Industries, Inc. (Mosher), operates a structural steel fabrication plant in Roanoke. Appellee Eva S. Teig is the Commissioner of Labor and Industry (the Commissioner), whose duties include enforcement of the Virginia occupational safety and health laws. The other appellee is the Virginia Department of Labor and Industry (the Department).

The facts are undisputed. On January 25, 1984, compliance officers of the Department sought to conduct a consensual safety inspection of Mosher's Roanoke plant. Mosher employees refused to permit the inspection to be made without a valid search warrant. On February 6, pursuant to the provisions of Code § 40.1-49.8, the Commissioner applied ex parte to the trial court, as authorized by Code § 19.2-394, for a warrant to inspect the Mosher facility. Attached to the application were affidavits of two employees of the Department.

The affidavit of C.L. Small, Jr., stated that he ordered the inspection of the Mosher plant; that the inspection, a general schedule inspection based on the United States Department of Labor's OSHA (Occupational Safety and Health Act) Planning Guide for Safety, was in the fourth priority category; that OSHA rates the structural steel business as the fourth most hazardous industry in Virginia; that the OSHA Planning Guide reports one industrial site in the Roanoke area ranked in the first most hazardous category, none in the second or third most hazardous categories, and six, of which all but Mosher had been inspected, in the fourth most hazardous category; and that based on this information Mosher was selected for inspection. The affidavit of A.S. Powell, assigned to conduct the inspection, stated that he attempted the inspection but was denied entry by Mosher's plant manager. The trial court, finding that there was probable cause to do so, issued the inspection warrant.

When compliance officers attempted to execute the warrant on February 7, Mosher's representative refused to permit the inspection, asserting that the warrant was illegal. Attempts to execute the warrant on the next two days were rejected for the same reason. The Commissioner instituted criminal proceedings against Mosher's plant manager for each refusal to permit inspection.

Mosher filed an amended bill in the trial court against the Commissioner and the Department, seeking a declaratory judgment and injunctive relief. Mosher asked the court to declare that the Commissioner's application and the warrant were unconstitutional, that the Department's plan for scheduling inspections was unreasonable and discriminatory, and that the procedure for obtaining the warrant and the warrant itself violated the occupational safety and health laws of Virginia and regulations promulgated thereunder. Mosher asked the court to quash the warrant, to issue a preliminary injunction prohibiting any further action against Mosher or its employees and staying all criminal charges pending final determination whether Mosher's rights under the United States Constitution and the Virginia Constitution had been violated, and to enjoin permanently future inspections of Mosher's facilities without a valid warrant based on probable cause and limited in scope.

The Commissioner, on behalf of herself and the Department, filed a plea in bar and a demurrer. In the plea, the Commissioner stated that since Mosher had made no showing "that any false statement knowingly and intentionally, or with reckless disregard for the truth" had been included in either affidavit or "that any such false statement was necessary to the finding of probable cause," Mosher had stated no claim for quashing the warrant or declaring it void.

In her demurrer, the Commissioner asserted that Mosher lacked standing to contest the criminal prosecution of its plant manager. The Commissioner further stated that Mosher was not entitled to proceed by declaratory judgment because its Fourth Amendment rights were adequately protected by issuance of the warrant and Mosher has an adequate remedy for other rights through review of any citation issued as a result of the inspection. The Commissioner stated that Mosher had stated no facts that would show irreparable injury or inadequacy of Mosher's remedy at law.

In a cross-bill previously filed, the Commissioner sought to have the trial court adjudge Mosher to be in civil contempt for repeated defiance of the inspection warrant and to order Mosher to submit to inspection without interference.

By final order entered August 8, 1984, the trial court, without specifically passing on the special plea and demurrer, ruled that the warrant was valid, that Mosher could not maintain its declaratory judgment action, and that Mosher was in civil contempt for interfering with the execution of the inspection warrant. The court ordered the Commissioner to make an inspection on a date to be determined by her, enjoined Mosher from interfering with the inspection, and dismissed the proceeding.

Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), established that administrative searches of private residences and commercial enterprises must be made pursuant to warrants to avoid being invalidated as "unreasonable" under the Fourth Amendment. Because administrative searches are significant intrusions on interests protected by the Fourth Amendment, they may be conducted only where justified by probable cause. Camara, 387 U.S. at 534, 87 S.Ct. at 1733-34. Probable cause for issuance of an administrative inspection warrant exists if the inspection is based on "reasonable legislative or administrative standards." Id. at 538, 87 S.Ct. at 1735-36. A judicial determination of reasonableness is needed, the Supreme Court explained, so that "the decision to enter and inspect will not be the product of the unreviewed discretion of the enforcement officer in the field." See, 387 U.S. at 545, 87 S.Ct. at 1740. In applying these principles to a federal OSHA inspection, the Supreme Court held in a declaratory judgment proceeding that a warrant is required to insure that the inspection is reasonable, is authorized by statute, is made pursuant to an administrative plan containing specific neutral criteria, and is properly limited in scope and object. Marshall v. Barlow's, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1825-26, 56 L.Ed.2d 305 (1978). While the attempted search of Mosher's Roanoke plant was undertaken pursuant to a warrant, Mosher contests the neutrality of the underlying plan, urging that it did not meet the Barlow's requirement of reasonable, objective, and fair standards.

Mosher contends that a declaratory judgment proceeding is the only method by which it can obtain judicial scrutiny of the attempted search and the general schedule inspection program. Code § 8.01-184 provides that declaratory relief is proper in cases of "actual controversy," cases involving "actual antagonistic assertion and denial of right." A justiciable controversy involves specific adverse claims based on present facts that are ripe for adjudication. Reisin v. Aetna Life & Cas. Co., 225 Va. 327, 331, 302 S.E.2d 529, 531 (1983); Historic Landmarks Com. v. Louisa Co., 217 Va. 468, 476, 230 S.E.2d 449, 454 (1976); Bd. Sup. James City County v. Rowe, 216 Va. 128, 132, 216 S.E.2d 199, 204-05 (1975); City of Fairfax v. Shanklin, 205 Va. 227, 229, 135 S.E.2d 773, 775 (1964).

A hypothetical or abstract interest is insufficient to confer standing to bring a declaratory judgment action. See Fairfax County v. Southland Corp., 224 Va. 514, 520-21, 297 S.E.2d 718, 721 (1982); Henrico County v. F. & W., Inc., 222 Va. 218, 224, 278 S.E.2d 859, 862 (1981). Hence, Mosher would be unable to bring this action apart from the warrant proceeding as its rights would not be "immediately threatened." See Gooden v. Brooks, 39 N.C.App. 519, 522, 251 S.E.2d 698, 701, appeal dismissed, 298 N.C. 806, 261 S.E.2d 919 (1979).

The Commissioner argues that Mosher is not entitled to bring this action even in conjunction with the warrant proceeding. We disagree. This dispute involves an assertion and denial of right through Mosher's attack on the constitutionality of the Commissioner's intrusion on its privacy interests. If Mosher elects to exhaust its administrative remedies by allowing the inspection before challenging its validity, the challenge may be mooted by the Commissioner's decision to issue no citations. See B.B. Andersen Construction Co. v. Donovan, 11 O.S.H.Cas. (BNA) 1489, 1491 (10th Cir.1983); Matter of Kulp Foundry, Inc., 691 F.2d 1125, 1129 (3d Cir.1982). We have held that where there is no administrative remedy equal to the relief sought, a complainant in a declaratory judgment proceeding, having no adequate legal remedy by judicial review, properly states a justiciable cause of action. Rowe, 216 Va. at 133, 216 S.E.2d at 205; see Gayton Triangle v. Henrico County, 216 Va. 764, 766-67, 222 S.E.2d 570, 572 (1976) (exhaustion not required where administrative action...