United States v. New Orleans Public Service, Inc., Civ. A. No. 73-1297.
| Decision Date | 10 September 1982 |
| Docket Number | Civ. A. No. 73-1297. |
| Citation | 550 F. Supp. 911 |
| Parties | UNITED STATES of America, Plaintiff, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Louisiana |
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Richard Ugelow, Washington, D.C., for plaintiff.
Michael J. Molony, Jr., Gerald J. Huffman, Jr., New Orleans, La., for defendant.
I.
The Attorney General brought this action on May 17, 1973 on behalf of the United States to require defendant, New Orleans Public Service, Inc. ("NOPSI"), to comply with Executive Order 11246, as amended, and the regulations of the Secretary of Labor which were promulgated pursuant to this executive order, 41 C.F.R. §§ 60-1.1 through 60-741.54 (1978). More specifically, the United States sought an injunction to obtain access to NOPSI's records to determine whether NOPSI had complied with the mandates of Executive Order 11246. That order prohibits employment discrimination and imposes on government contractors such as NOPSI the obligation to take affirmative action to achieve the equal opportunity goals of the executive order's mandate.1 This court entered a decision adverse to NOPSI and permanently enjoined the utility from failing or refusing to: 1) comply with the executive order; 2) implement regulations; and 3) allow the government to conduct compliance reviews of NOPSI. United States v. New Orleans Public Service, Inc., No. 73-1297 (E.D.La. 1974).
NOPSI appealed, questioning, inter alia,2 whether the executive order and relevant regulations were constitutional, whether the mandates of the executive order could be imposed on the utility without its contractual consent, and whether, and to what extent, the Fourth Amendment protected the utility's records from governmental view. United States v. New Orleans Public Service, Inc., 553 F.2d 459 (5th Cir.1977). The Fifth Circuit held that the executive order and the regulations were authorized by Congress and, therefore, could validly be applied to NOPSI. The Fifth Circuit also rejected NOPSI's arguments that the executive order and its regulations violated the Fourth Amendment because they authorized warrantless searches of NOPSI records, but the Fifth Circuit withheld the injunctive relief granted by this court. Instead, the Fifth Circuit allowed NOPSI to comply voluntarily, and authorized the government to seek, through administrative proceedings, resolution of any remaining issues concerning access to NOPSI's records.
The United States Supreme Court, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978), vacated the Fifth Circuit decision for reconsideration in light of Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), a decision subsequent to the Fifth Circuit opinion, which dealt with administrative inspection of business records. Accordingly, the Fifth Circuit remanded the case to this court for reconsideration in light of Barlow's. United States v. New Orleans Public Service, Inc., 577 F.2d 1030 (5th Cir.1978). Because this court concluded that the Barlow's opinion did not dictate a reversal of its earlier ruling,3 an order was entered that was similar to the order issued by the Fifth Circuit prior to the Supreme Court's review: this court authorized the government to proceed through administrative action to force NOPSI to comply with the executive order and the regulations. An injunction to this effect was not issued, however. Instead, this court relied on the declaratory force of its decisions, and on the good faith of the parties. United States v. New Orleans Public Service, Inc., 480 F.Supp. 705 (E.D.La.1979).
An appeal was again taken, and the Fifth Circuit vacated and remanded, United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir.1981).4 On remand, the question presented is whether the manner in which the government chose to initiate the search of NOPSI records satisfies Fourth Amendment standards of "reasonableness". Therefore, this court must examine the government's decision to initiate the NOPSI review in light of the Fourth Amendment. The proposed "search" of NOPSI records is reasonable if it was based on either: 1) specific evidence of an existing violation; or 2) a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment; or 3) a showing that the search is pursuant to an administrative plan containing specific neutral criteria. United States v. Mississippi Power & Light Co., 638 F.2d 899, 907 (5th Cir.1981).
An evidentiary hearing was held on this matter and, for the reasons discussed below, I find that the method by which the United States chose to initiate the NOPSI review passes muster under the Fourth Amendment test of reasonableness. Therefore, as directed by the appellate court,5 the injunction requested by the United States shall issue immediately, ordering NOPSI to submit to a compliance review.
II.
FINDINGS OF FACT
NOPSI is a privately owned Louisiana corporation and public utility engaged in the production, distribution and sale of electrical power to consumers and governmental agencies located in New Orleans, Louisiana on the east bank of the Mississippi River. NOPSI is also engaged in the sale and distribution of natural gas to users throughout New Orleans.
Prior to June 30, 1970, NOPSI had a written contract with the National Aeronautics and Space Administration ("NASA"), containing a non-discrimination clause. Although this written contract expired, NOPSI nevertheless continued to supply gas and electric service to NASA.
Executive Order 11246 prohibits discrimination in employment by federal contractors based on race, sex, color, religion, or national origin, and requires such contractors to take affirmative action, inter alia, to ensure that employees and applicants for employment are afforded equal hiring, transfer, and promotional opportunities.
Section 210 of Executive Order 11246 empowers the Secretary of Labor to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purpose" of the executive order. Pursuant to that authority, the Secretary of Labor promulgated the regulations implementing Executive Order 11246, which were codified at 41 C.F.R. 60-1 et seq.
At all times relevant to this lawsuit, in 41 C.F.R. 60-1.2, the Secretary of Labor delegated his authority and responsibility for enforcing the executive order (except the authority to issue rules and regulations of a general nature), to the Director of the Office of Federal Contract Compliance ("OFCC").
On October 24, 1969, the Director of OFCC issued Order No. 1, which designated various federal agencies as contract compliance agencies with responsibilities for specific industries. The General Services Administration ("GSA") was delegated contract compliance responsibility for fifteen industries, including the utilities industry.6
OFCC conducted studies, furnished information, and issued memoranda to assist contract compliance agencies such as GSA in utilizing their limited resources in the most effective manner. The following are among the documents and memoranda issued by OFCC:
These memoranda and documents established policies, procedures, and guidelines for contract compliance agencies to utilize in enforcing their contract compliance responsibilities. Contract compliance agencies were directed to utilize, inter alia, the following information in scheduling compliance reviews:
The OFCC memoranda also identified certain industries for priority compliance activity. Included among such industries were electric, gas, and sanitary services — "utilities industries". The memoranda also advised compliance agencies of the number of reviews and target opportunities planned for the agency by OFCC.
In 1970, OFCC scheduled GSA for the following industrial reviews:
Preaward Postaward Reviews
Reviews (Routinely Scheduled)
Fiscal Year 1971 151 971
Fiscal Year 1972 151 2,537
In fiscal year 1971, GSA actually conducted a total of 951 nonconstruction preaward, routine and complaint compliance reviews. In fiscal year 1972, GSA actually conducted a total of 1,905 nonconstruction preaward, routine and complaint compliance reviews.
In fiscal years 1971 and 1972 GSA was scheduled to conduct 715 compliance reviews of federal contractors in the utilities industry. These reviews were to provide 28,125 minority recruitment opportunities.
In October, 1970, Edward E. Mitchell, then Deputy Assistant Administrator for Administration at GSA, was given responsibility for studying and reorganizing GSA's contract compliance program in view of the new responsibilities assigned to GSA by Order No. 1. As part of the study, GSA identified some 24,000 major government...
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U.S. v. New Orleans Public Service, Inc.
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