United States v. New Orleans Public Serv., Inc.

• Decision Date: 16 November 1979
• Docket Number: Civ. A. No. 73-1297.
• Citation: 480 F. Supp. 705
• Parties: UNITED STATES of America, Plaintiff, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

480 F. Supp. 705

UNITED STATES of America, Plaintiff, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant.

Civ. A. No. 73-1297.

United States District Court, E. D. Louisiana.

November 16, 1979.

David L. Rose, John M. Gadzichowski, Thomas P. Carney, Jr., Washington, D. C., Leonard P. Avery, New Orleans, La., for plaintiff.

Michael J. Molony, Jr., New Orleans, La., for defendant.

OPINION

CASSIBRY, District Judge:

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 (the "Order"), and the rules and regulations of the Secretary of Labor promulgated thereunder (41 C.F.R. §§ 60-1.1—60-741.54 (1978), hereafter "Rules and Regulations"). This Court issued its opinion including findings of fact and conclusions of law on November 13, 1974. I found, among other things, that:

(1) Executive Order 11246 has the force and effect of law;

(2) the Order requires that specified equal opportunity language be placed in each nonexempt government contract;

(3) the Executive Order authorizes the Secretary of Labor to adopt rules and regulations he deems necessary to effectuate the purposes of the Order;

(4) the Rules and Regulations require that the equal opportunity language be included in each nonexempt government contract whether or not physically incorporated in the contract or agreed upon by the parties;

(5) a contractor subject to Executive Order 11246 is subject to all of the rules and regulations issued that are not in conflict with the Order;

(6) the Rules and Regulations do not conflict with the Order;

(7) NOPSI is a nonexempt government contractor subject to Executive Order 11246, as amended; and

(8) NOPSI has violated the Order by refusing to comply with the Order and the Rules and Regulations.

United States v. NOPSI, No. 73-1297.

The judgment of the Court was affirmed on the merits by the United States Court of Appeals for the Fifth Circuit.¹ United States v. NOPSI, 553 F.2d 459 (5th Cir. 1977). The United States Supreme Court granted defendant's petition for writ of certiorari, vacated the judgment of the court of appeals, and remanded for further consideration in light of Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). NOPSI v. United States, 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783 (1978). The Fifth Circuit subsequently vacated this court's judgment and remanded for consideration in light of the order of the Supreme Court. United States v. NOPSI, 577 F.2d 1030 (5th Cir. 1978).

After a conference, the parties submitted the matter on briefs without oral argument. The plaintiff submitted a brief in the form of a motion for the entry of judgment on remand, and the defendant filed a motion to dismiss and/or for judgment on the pleadings and/or for summary judgment. The plaintiff also filed a response to defendant's motion.

1. Jurisdiction

Defendant's first assertion is that this court is without subject matter jurisdiction, citing Marshall v. Gibson's Products, Inc., 584 F.2d 668 (5th Cir. 1978). A motion to dismiss for lack of subject matter jurisdiction may be raised at any time by any interested party. Burks v. Texas Co., 211 F.2d 443 (5th Cir. 1954). Nevertheless, defendant's assertion lacks merit.

The problem in Gibson's Products was that the Secretary of Labor had attempted to bring suit to enforce a provision of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a) (1976). The court held that there was no statute which conferred authority upon the Secretary to bring suit in the United States district courts. In the instant case, the Attorney General has brought suit on behalf of the United States. Jurisdiction is predicated on 28 U.S.C. § 1345, which provides in pertinent part, "The district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States . . .." 28 U.S.C. § 1345 (1976). Gibson's Products itself specifically cites the rule that the Attorney General is the chief legal officer of the United States, authorized to bring suit on behalf of the United States. 584 F.2d at 676 n.11. Defendant's motion to dismiss for lack of subject matter jurisdiction is therefore denied.

2. Scope of the Remand

Defendant next contends that since the order of the Fifth Circuit vacated the entire decision of the court, all issues are open to reconsideration on remand. The defendant's memorandum argues, "It is incumbent upon this Court to review its entire decision in light of the mandates of the United States Supreme Court and the Fifth Circuit." (emphasis in original). I agree with defendant, but I would focus on a different portion of defendant's assertion: the duty of the court is "to review its entire decision in light of the mandates of the United States Supreme Court and the Fifth Circuit." (emphasis added).

Both parties have cited the well-reasoned approach of the Court of Appeals for the Sixth Circuit in Mefford v. Gardner, 383 F.2d 748 (1967):

On the remand of a case after appeal, it is the duty of the lower court . . . to comply with the mandate of the court and to obey the directions therein without variation and without departing from such directions . . .. Moreover, if the cause is remanded with specific directions, further proceedings in the trial court . . . must be in substantial compliance with such directions; and if the cause is remanded for a specified purpose, any proceedings inconsistent therewith is error . . ..

383 F.2d at 758.

The Supreme Court and the Fifth Circuit specifically remanded to this court for reconsideration in light of the recent case of Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Thus, it is only with respect to that decision that I must reconsider the merits of the case.

Briefly, the Barlow's case considered the validity of warrantless searches of commercial premises pursuant to the Occupational Safety and Health Act of 1970 ("OSHA"). The court held that such warrantless searches violated the fourth amendment's ban against unreasonable searches and seizures. See U.S. Const. amend. IV. Although defendant in the instant case argued on its appeal to the Fifth Circuit that any inspection of its records conducted pursuant to the Rules and Regulations would violate the fourth amendment, such an argument was not initially presented to this court, nor would it affect the findings of fact and conclusions of law constituting the original opinion of this court.² I therefore reinstate my original opinion including findings of fact 1-37 and conclusions of law 1-33,³ subject to the merits of defendant's fourth amendment claim.

3. The Impact of the Fourth Amendment on the Rules and Regulations

Sections 201 and 206(a) of the Order provide:

Sec. 201. The Secretary of Labor shall be responsible for the administration of Parts II and III of this Order and shall adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof.

. . . . .

Sec. 206(a). The Secretary of Labor may investigate the employment practices of any Government contractor or subcontractor, or initiate such investigation by the appropriate contracting agency, to determine whether or not the contractual provisions specified in Section 202 of this Order have been violated. Such investigation shall be conducted in accordance with the procedures established by the Secretary of Labor . . ..

Exec. Order No. 11,246, 30 Fed. Reg. 12319 (1965).

Section 60-1.43 of the Rules and Regulations implements Sections 201 and 206(a) and requires that:

Each prime contractor and subcontractor shall permit access during normal business hours to its premises for the purpose of conducting on-site compliance reviews and inspecting and copying such books, records, accounts, and other material as may be relevant to the matter under investigation and pertinent to compliance with the Order, and the rules and regulations promulgated pursuant thereto by the agency, or the Director.

41 C.F.R. § 60-1.43 (1978). Although Section 206(a) authorizes the Secretary to conduct investigations, it is critical to recognize that in implementing the Order, Section 60-1.43 places upon the employer the duty to provide access to its premises. Neither Section 60-1.43, nor any other of the Rules and Regulations expressly gives the Director of the Office of Federal Contract Compliance Programs (the official and agency charged by the Secretary with administering the Order and the Rules and Regulations, see 41 C.F.R. § 60-1.2 (1978)) the authority to enter an employer's premises with or without a warrant in the face of an employer's refusal to comply with Section 60-1.43.

The Ninth Circuit Court of Appeals was confronted with a similar statute in Midwest Growers Cooperative Corp. v. Kirkemo, 533 F.2d 455 (9th Cir. 1976). Pursuant to federal law, certain agricultural cooperative associations are exempt from regulation by the Interstate Commerce Commission ("I.C.C."). See 49 U.S.C. § 303(b)(5) (1970). Another statute provides that the I.C.C. shall have access to inspect the books and records of associations claiming exemption under Section 303(b)(5). 49 U.S.C. § 320(g) (1976).⁴

Midwest Growers Cooperative Corporation ("Midwest"), an association claiming exemption under 49 U.S.C. § 303(b)(5), refused to allow the defendant Mr. Kirkemo, a transportation specialist for the I.C.C., access to its records to investigate complaints of violation of its exemption. After repeated refusals, on the basis of an application filed by a United States Attorney and inspector Kirkemo, a United States magistrate issued an ex parte administrative warrant to search Midwest's records and files. Midwest allowed the inspection to proceed (on threat of imprisonment of its employees) and brought an action in district court to enjoin violation of its rights...