Jurisdictional Statement — Marshall v. Barlow's, Inc.

Supreme Court, U. S,

-“ FILED

®6-1143 FEB 17 1977

Pi ON

, JR., CLERK

Vike

In the Supreme Court of the United States

OcToOBER TERM, 1976

Ray MARSHALL, SECRETARY OF LABOR, ET AL.,

APPELLANTS

Vv.

BARLOW’S, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

JURISDICTIONAL STATEMENT

DANIEL M. FRIEDMAN,

Acting Solicitor General,

Department of Justice,

Washington, D.C. 20530. ~

ALFRED G. ALBERT,

Acting Solicitor of Labor,

BENJAMIN W. MINTZ,

‘ iate Solicitor,

MICHAEL H. LEVIN,

Counsel for Appellate Litigation,

Department of Labor,

Washington, D.C. 20210.

Page

IN le al A aR AM A 1

EE a a 1

Questions presented _... ==> 2

Statute involved _ 2

The questions are substantial ... === = 8

CITATIONS

Cases :

Almeida-Sanchez v. United States, 413

U.S. 266 . _ 18, 16

Bloomfield Mechanical Contracting, Ine.

v. Occupational Safety and Health Re-

view Commission, 519 F. 2d 1257... 15

Brennan v. Buckeye Industries, 374 F.

Supp. 1350 . 12,15

Brennan v. Gibson’s ‘Products, Ine. of

Plano, 407 F. Supp. 154, mesmadaean

ing, C.A. 5, No. 76-1526 . 15

Brennan v. Giles & Cotting, Ine., 504 F.

2d 1255, on remand, 1975-1976 CCH

OSHD Para. 20,448 (February 20,

1976) _ 11

Brennan v. ~ Occupational Safety and

Health Review Commission, 487 F. 2d

Brennan v. Winters Battery Mfg. Co.,

531 F. 2d 317, certiorari denied, No.

75-1162 (May 24, 1976) “ 12

Cases—Continued

C.N. Flagg & Co., OSHRC No. 1734, 11

OSHARC Reports 632, affirmed with-

out opinion, C.A. 2, No. 74-2362 (Janu-

ary 12, 1976) -

Camara v. Municipal Court, 387 ‘US.

Page

10

523 - 7, 12, 18, 15

Colonnade Catering “Corp. v. United

States, 397 U.S. 72 -

Dunlop v. Able Contractors, Civ. No. 15-

57-BLG (D. Mont., December 15,

1975), patie pending, C.A. 9, No. 76-

1615 |

Dunlop ‘ v. “Hertzler ‘Enterprises, 418 F.

Supp. 627, appeal pending, C.A. 10,

No. 76-2020

Dunlop v. Rockwell International, 540 F.

2d 1283 _...___..

G. M. Leasing Corp. 1 v. United ‘States,

No. 75-235, decided January 12, 1977

Godwin v. Occupational Safety and Health

Review Commission, 540 F. 2d 1013

1.T.0. Corp. of New England vy. Occupa-

tional Safety and Health Review Com-

mission, 540 F. 2d 543 __.

Lake Butler Apparel Co. v. Secretary, 519

F. 2d 84 __..

National Independent “Coal Operators’

Association v. Kleppe, 423 U.S. 388.

Oklahoma Press Publishing Co. v. Wall-

ing, 327 U.S. 186 . |

Roaden v. Kentucky, 413 U.S. 496 |

8,15

15

15

5, 9

14

13

See v. City of Seattle, 387 U.S. 541. _ 7, 10,15

Tilton v. Richardson, 403 U.S. 672 .

16

United States v. Biswell, 406 U.S. 311__8, 12, 15

Cases—Continued

United States v. Business Builders, Inc.,

2 5 Sh

United States v. Del Campo Baking mad

Co., 345 F. Supp. 1371 ;

United States v. Watson, 423 U.S. 411 __

United States v. Western & A. R. R., 297

Fed. 482 -

United States ex rel. Terraciano v. Mon-

tanye, 493 F. 2d 682, certiorari denied

sub nom. Terraciano v. Smith, 419 U.S.

RL Ee oo. ae

Usery v. Centrif-Air Machine Co., No.

C-76-1551 (N.D. Ga., January 10,

es > a ee

Usery v. Godfrey Brake and Supply

Service, C.A. 8, No. 76-1247 (Novem-

A a ee

Usery v. Rupp Forge Co., No. C-76-885

(N.D. Ohio, April 22, 1976), —

pending, C.A. 6, No. 76-1960

Youghiogheny and Ohio Coal Co. v. ‘Mor-

ton, 364 F. Supp. 45 _

Constitution, statutes, regulations and rules:

United States Constitution, Fourth

Amendment _ PSS AL 2, 8, 13,

Occupational Safety and Health Act of

1970, 84 Stat. 1590, 29 U.S.C. 651 et

seq. :

Section 2, 29 U.S.C. 651 .

Section 2(1), 29 U.S.C. 651(1) |

Section 2(10), 29 U.S.C. 651(10) -

Section 3(5), 29 U.S.C. 652(5)

Page

15-16

16

13

16

13, 15

15

6,9

15

14, 15

15, 16

mm © oI cw

Iv

Constitution, statutes, regulations

and rules—Continued Page

Section 5(a)(1), 29 U.S.C. 654(a)

| | ee ee 4

Section 5(a)(2), 29 U.S.C. 654(a)

| | nie ee PP ge 4

Section S{a), 29 U.S.C. 657(a)____ 2, 3, 4, 5,

6, 7, 9, 10, 15, 16

Section 8(e), 29 U.S.C. 657(e) _ 6

Section 8(f), 29 U.S.C. 657(f) 8

Section 8(f)(1), 2° U.S.C. 657(f)

(aS ae 13

Section 9, 29 U.S.C. 658 5

Section 9(a), 29 U.S.C. 658(a) 5

Section 10, 29 U.S.C. 659 5

Section 10(a), 29 U.S.C. 659(a)_. 5,9

Section 10(b), 29 U.S.C. 659(b)...—s— “55, 9

Section 11(b), 29 U.S.C. 660(b)... 9

Section 11(c), 29 U.S.C. 660(c). 9

Section 13, 29 U.S.C. 662 _..... 5, 8

Sections 15-16, 29 U.S.C. 664-665... 6, 10

Section 17(a)-(c), 29 U.S.C. 666(a)-

| | 5

Section 17(d), 29 U.S.C. 666(d) 5

Section 17(e), 29 U.S.C. 666(e). 5

Section 17(f), 29 U.S.C. 666(f).. 6

Section 17(i), 29 U.S.C. 666(i)_.. 5

Section 17(j), 29 U.S.C. 666(j)__ 5

7 U.S.C. (Supp. V) 136g 14

Abr \ iw 14

8 U.S.C. 1225(a) daitetiimaieae 14

15 U.S.C. 1270(a), (b) —. ve 14

21 U.S.C. 374(a) . »atiliaaliala 14

21 U.S.C. 1034(a), (b), “(d) inenaiaieiaa 14

26 U.S.C. 7606 _ 14

v

Constitution, statutes, regulations

and rules—Continued

EE TTT ET

SA

CC Ee

30 U.S.C. 813 _ A he alae

33 U.S.C. (Supp. vy) 4618) tied

41 U.S.C. 53 _ a

42 U.S.C. 1857-9

42 U.S.C. 1857f-6 _

42 U.S.C. 2035(c) _.

45 U.S.C. 29 __....

45 U.S.C. 437(c) . ede

46 U.S.C. 239, 362, a

Pub. L. 94-381, 90 Stat. 1119, 1120, Sec-

tion 7

Pub. L. 94,469, 90 Stat. 2032, ‘Section 11,

15 U.S.C. 2610 .

29 C.F.R. 1903.4

29 C.F.R. 1903.7(a)

29 C.F.R. 1903.7(e)

29 C.F.R. 1903.8

EE

CE

29 C.F.R. 1910.23 ..

29 C.F.R. 1910.95(b) (1) -

29 C.F.R. 1910.107

29 C.F.R. 1910.132-.136 |

29 C.F.R. 1910.212-.217 .

29 C.F.R. 1926.28(a)

29 C.F.R. 1926.104-.105 .

29 C.F.R. 1926.500 as

29 C.F.R. 1926.652(a)

Constitution, statutes, regulations

and rules—Continued Page

29 C.F.R. 1926.652(b) .. 10

88 8 GD yay aa 1l

Miscellaneous:

Committee Print, Legislative History of

the Occupational Safety and Health Act

of 1970, Senate Committee on Labor

and Public Welfare, 1st Sess. (1971) _ 3, 5, 8,

9,11, 12

H.R. Rep. No. 91-1291, 91st Cong., 2d

Sess. (1970) Bie TU

H.R. (Conf. Rep.) Rep. No. 91-1765, 91st

Cong., 2d Sess. (1970) 12

S. Rep. No. ne Paes 2d Sess.

(1970) uel ice 3, 8, 9,12

Inu the Supreme Court of the United States

OcTOBER TERM, 1976

No.

RAY MARSHALL, SECRETARY OF LABOR, ET AL.,

APPELLANTS

BARLOw’s, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the three-judge district court (App.

A, infra) is not yet officially reported. It is unoffi-

cially reported at 4 BNA OSHC 1887 and 3 CCH

ESHG Para. 21,418.

JURISDICTION

The judgment of the district court declaring Sec-

tion 8(a) of the Occupational Safety and Health Act

(1)

of 1970, 84 Stat. 1598, 29 U.S.C. 657(a), unconstitu-

tional and enjoining the Secretary from acting pur-

suant to that Section was entered on December 30,

1976 (App. B, infra). A notice of appeal to this

Court (App. C, infra) was filed on January 4, 1977.

The jurisdiction of this Court rests on 28 U.S.C.

1252 and 1253.’

QUESTIONS PRESENTED

1. Whether the inspection provisions of the Occu-

pational Safety and Health Act of 1970, 29 U.S.C.

657(a), and their implementing regulations, violate

the Fourth Amendment insofar as they authorize rep-

resentatives of the Secretary of Labor to inspect with-

out a warrant at reasonable times commercial prem-

ises routinely occupied by an employer’s work force.

2. Whether, in any event, the district court should

have upheld the constitutionality of the statute by in-

terpreting it to meet Fourth Amendment require-

ments, instead of holding the statute unconstitutional

and enjoining its enforcement.

STATUTE INVOLVED

Section 8(a) of the Occupational Safety and Health

Act of 1970, 84 Stat. 1598, 29 U.S.C. 657(a), pro-

vides:

‘ Because the action was commenced on January 6, 1976,

the three-judge court had jurisdiction to consider appellee’s

constitutional claims (see Section 7 of Pub. L. 94-381, 90 Stat.

1119, 1120).

In order to carry out the purposes of this Act,

the Secretary, upon presenting appropriate cre-

dentials to the owner, operator, or agent in

charge, is authorized—

(1) to enter without delay and at reasonable

times any factory, plant, establishment, construc-

tion site, or other area, workplace or environ-

ment 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, appa-

ratus, devices, equipment, and materials therein,

and to question privately any such employer,

owner, operator, agent, or employee.

STATEMENT

1. The Occupational Safety and Health Act of

1970 (OSHA), 84 Stat. 1590, 29 U.S.C. 651 et seg.,

was enacted “to assure so far as possible every work-

ing man and woman in the Nation safe and healthful

working conditions and to preserve our human re-

sources.” 29 U.S.C. 651.*° As we explained in our

* The need for the Act is explained in S. Rep. No. 91-1282,

91st Cong., 2d Sess. 2-4 (1970) ; Committee Print, Legislative

History of the Occupational Safety and Health Act of 1970,

Senate Committee on Labor and Public Welfare, ist Sess.

(“Leg. Hist.”) 142-144 (1971):

The problem of assuring safe and healthful workplaces

* * * ranks in importance with any that engages the na-

tional attention today. * * * 14,500 persons are killed

annually as a result of industrial accidents; * * * during

er

4

brief in Jrey v. Occupational Safety and Health Re-

view Commission, No. 75-748, argued November 29,

1976, the Act creates a federal] statutory duty to avoid

maintaining unsafe or unhealthy working conditions

applicable to any non-governmental employer whose

business affects commerce. 29 U.S.C. 654(a)(1) and

(2); 652 (5).

The Act is administered by the Department of

Labor, whose inspectors are authorized to conduct

safety and health inspections at places of employ-

ment. 29 U.S.C. 657(a). If upon inspection or

other investigation the Secretary has cause to believe

the past four years more Americans have been killed

where they work than in the Vietnam war. By the lowest

count, 2.2 million persons are disabled on the job each

year, resulting in the loss of 250 million man days of

work—many times more than are lost through strikes

* * * [and] the economic impact of industrial deaths and

disability is staggering. Over $1.5 billion is wasted in lost

wages, and the annual loss to the Gross National Product

is estimated to be over $8 billion. Vast resources that

could be available for productive use are siphoned off to

pay workmen’s compensation benefits and medical ex-

penses. * * * In sum, the chemical and physical hazards

which characterize modern industry are not the problem

of * * * a single industry, nor a single state jurisdiction.

The spread of industry and the mobility of the workforce

combine to make the health and safety of the worker

truly a national concern.

The House Report (H.R. Rep. No. 91-1291, 91st Cong. 2d Sess.

14 (1970), Leg. Hist. 844) defines occupational health and

safety as “the most crucial [issue] in the whole environmental

question”, and notes that “(t]he on-the-job health and safety

crisis is the worst problem confronting [over 80 million]

American workers.”

that the Act or its implementing regulations have

been violated, he is empowered to issue a citation to

the employer specifically describing the violation, fix-

ing a reasonable time for its abatement, and (in his

— proposing a civil penalty. 29 U.S.C. 658,

9.°

The inspections must be made at reasonable times

and in a reasonable manner, and must be limited to

the scope necessary to identify occupational hazards

(29 U.S.C. 657(a)). Upon presenting his credentials

* The amount of the proposed penalty “if any” (29 U.S.C.

659(a)) depends on the severity of the hazard and the cited

employer's past diligence in attempting to discover and correct

it (ibid., see 29 U.S.C. 666(i) and (j)). The prospect of such

penalties is designed to promote voluntary compliance by em-

ployers before any inspector arrives. 29 U.S.C. 651(1); see

Leg. Hist. 463-464, 470 (Sen. Javits), 471-472 (Sen. Domi-

nick), 853; Brennan v. Occupational Safety and Health Re-

view Commission, 487 F. 2d 488, 441, 448 (C.A. 8). Cf. Na-

tional 'ndependent Coal Operators’ Association v. Kleppe, 423

U.S. 388, 401. Such proposed penalties may range up to $1,000

for serious violations, and to a maximum of $10,000 for will-

ful or repeated violations. 29 U.S.C. 658(a), 659(a), 666(a)-

(c) and (j). The Secretary may also propose a civil penalty

of not more than $1,000 per day of nonabatement where sub-

sequent inspection reveals noncompliance with a final agency

order, 29 U.S.C. 659(b), 666(d), and may seek temporary

injunctions in federal district court to correct imminent

dangers before administrative enforcement would result in

their abatement. 29 U.S.C. 662. Finally, in cases of willful

violations that cause employee death, the Secretary is author-

ized to refer the matter to the Department of Justice for

criminal prosecution, which may result in a maximum sentence

of six months’ imprisonment and a $10,000 fine. 29 U.S.C.

666(e). However, of approximately 400,000 inspections con-

ducted since the Act’s April 1971 effective date, only 5 have

resulted in criminal prosecution.

to the employer or agent in charge,‘ the inspector is en-

titled to immediate entry to any premises where work

is performed by employees of the employer (29 U.S.C.

657(a) ) ; advance notice of the inspection is prohibited

(29 U.S.C. 666(f); 651(10)). The employer is en-

titled to accompany the inspector during his tour of

the relevant premises, and may raise privacy or

other objections to the conduct of the inspection. 29

U.S.C. 657(e); see 29 C.F.R. 1903.4, 1903.7(e),

1903.8."

The statute provides no sanctions for refusals to

permit inspections. In implementing the statute, the

Secretary has promulgated a regulation requiring the

inspector to seek a court order authorizing entry if

the employer refuses to consent to the inspection (29

C.F.R, 1903.4).

2. Appellee Barlow operates an electrical, plumb-

ing, and heating-air conditioning installation business

in Pocatello, Idaho. At 11 a.m. on September 11,

1975, an OSHA inspector arrived at Barlow’s to

‘These credentials paraphrase and cite the statutory au-

thority to inspect. See Usery Vv. Godfrey Brake and Supply

Service, C.A. 8, No. 76-1247, slip op. 2,5 (November 19, 1966).

Inspectors may offer toll-free verifying calls to their area

offices if these credentials do not convince employers of the

propriety of the inspection. /bid. Agency regulations also

require that the inspector explain the nature, purpose and

scope of the proposed inspection. 29 C.F.R. 1903.7(a).

° Trade secrets and other compelling privacy interests of

the employer are explicitly protected. 29 U.S.C. 664-665; 29

C.F.R. 1903.9.

7

make a routine inspection of its work areas,’ pre-

sented his credentials, explained his mission to the

company’s president, and was denied entry because

he did not have a search warrant. After notice and

hearing on December 30, 1975, the Secretary obtained

a district court order authorizing the entry for in-

spection purposes (App. A, infra, pp. la-2a).

On January 5, 1976, the inspector returned to

Barlow’s and requested permission to inspect based

on this order. Permission was again denied, and the

next day the appellee filed a complaint alleging that

29 U.S.C. 657(a) is inconsistent with the Fourth

Amendment, and seeking temporary and permanent

injunctions against OSHA inspections. On Janu-

ary 15, 1976, a single judge denied Barlow’s requests

for preliminary relief (App. A, infra, p. 3a).

A three-judge court was convened, and on Decem-

ber 30, 1976, it concluded that 29 U.S.C. 657(a) is

“unconstitutional and void”, relying on Camara v.

Municipal Court, 387 U.S. 523, and See v. City of

Seattle, 387 U.S. 541. The court permanently en-

joined the Secretary from conducting safety inspec-

tions pursuant to 29 U.S.C. 657(a) to enforce OSHA,

and specifically from inspecting appellee’s premises.’

* The inspection was a “general schedule” investigation—it

was not based on any employee complaint, history of employer

noncompliance, or other reason to believe a violation was

— at that particular place of business (App. A, infra,

p. 2a).

"On February 3, 1977, Mr. Justice Rehnquist stayed the

district court’s order “except at it applies to appellee Barlow’s,

Inc.,” until final disposition of this case.

THE QUESTIONS ARE SUBSTANTIAL

1. The decision below, if permitted to stand, would

seriously impair effective implementation of federal

legislation designed to protect the health and safety

of the Nation’s workforce. The decision is not re-

quired by this Court’s decisions applying the Fourth

Amendment to administrative inspections; indeed, it

is inconsistent with the rationale of Colonnade Cater-

ing Corp. v. United States, 397 U.S. 72, and United

States v. Biswell, 406 U.S. 311, which dealt with

closely similar Fourth Amendment issues.

Without the ability to make the unannounced visits

the Act contemplates," the Secretary cannot 2ffec-

tively implement OSHA by identifying and requiring

the correction of hazards threatening employees.’ In

* Congress intended the Secretary to enter and inspect work

places without a warrant. See S. Rep. No. 91-1282, supra, at

11 (Leg. Hist. 151):

In order to carry out an effective national occupational

safety and health program, it is necessary for govern-

ment personnel to have the right of entry in order to

ascertain the safety and health conditions and status of

compliance of any covered employment establishment.

Section 8(a) therefore authorizes the Secretary or his

representative, upon presenting appropriate credentials,

to enter at reasonable times the premises of any place of

employment * * * to inspect and investigate within

reasonable limits all pertinent conditions * * *.

H.R. Rep. No. 91-1291, 91st Cong., 2d Sess. 22 (1970) (Leg.

Hist. 852), is to the same effect.

* In addition to routine random inspections, inspections are

undertaken to confirm worker complaints of imminent dangers _

or other hazards, 29 U.S.C. 657(f), 662; investigate job-

addition, the constant possibility of such inspections

and the knowledge that violations discovered by the

inspectors may lead to monetary sanctions are essen-

tial to secure the broad voluntary compliance on

which the program depends.” Congress recognized

that workplace hazards are so pervasive and in the

main so transient or easily concealed that unan-

nounced spot checks were needed, since “advance

notice to an employer has been a prime cause of the

breakdown in * * * enforcement” under other safety

statutes (H. R. Rep. No. 91-1291, 91st Cong., 2d

—~ Sess. 26127 (1970); Leg. Hist. 856-857). It accord-

ingly specified that the inspection is to be without ad-

vance notice (29 U.S.C. 651(10)) and the inspector

is authorized to enter the premises to be inspected

“without delay” (29 U.S.C. 657(a))."

related fatalities or catastrophes, cf. 29 C.F.R. 1904.8; rein-

spect workplaces to determine compliance with abatement

orders, 29 U.S.C. 659(b), 660(b); and investigate claims

that employers have retaliated against workers for exercising

their rights under the statute. 29 U.S.C. 660(c).

* See, e.g., 29 U.S.C. 659(a) and (b); Usery v. Godfrey

Brake and Supply Service, C.A. 8, No. 76-1247, slip op. 6-7

(decided November 19, 1976); Dunlop v. Rockwell Interna-

tional, 540 F. 2d 1283, 1292 (C.A. 6); Brennan v. Occupa-

tional Safety and Health Review Commission, 487 F. 2d 438,

441, 443 (C.A. 8). Cf. National Independent Coal Operators’

Association V. Kleppe, 423 U.S. 388, 401; Godwin v. Occupa-

tional Safety and Health Review Commission, 540 F. 2d 1013,

1016 (C.A. 9).

™ Congress was also sensitive to the interests of the em-

ployers; it provided significant safeguards to assure that the

interference with their operations is no greater than the

interests protected by the Act require. Thus, the scope of the

10

A warrant requirement would significantly im-

pede the effectuation of the statute’s purpose, whether

the warrant need be sought only after access is re-

fused or prior to any attempt to inspect. As this

Court noted in See, supra, 387 U.S. at 545, n. 6, “sur-

prise may often be a crucial aspect of routine inspec-

tions of business establishments.” Here, in view of

the ease with which hazardous working conditions

may frequently be temporarily concealed or ameli-

orated,” the effectiveness of the inspection system

inspection permitted is limited to that necessary to identify

occupational hazards, it is to be made during working hours

or at other reasonable times (29 U.S.C. 657(a)), and the em-

ployer is entitled to notice of the inspector’s authority (29

U.S.C. 657(a)) and to protection of his compelling privacy

interests (29 U.S.C. 664-665).

2 For example, employers who have permitted spray-booth

ventilating fans designed to remove toxic and flammable sub-

stances to become clogged with residues may swiftly restore

them to operating condition before allowing them to deter-

jiorate again after inspection. Cf. 29 C.F.R. 1910.107. Em-

ployers who have allowed employees to work in unshored

trenches, 29 C.F.R. 1926.652(a) and (b), or without protec-

tive hard hats, safety belts, respirators, ear plugs, or guard

rails, 29 C.F.R. 1910.23, 1910.95(b) (1), 1910.132-.136; 29

C.F.R. 1926.28(a), 1926.104-.105, 1926.500, may quickly re-

quire use of such equipment, then rescind or ignore such

orders to reduce expenses or increase production. Cf., ¢.g.,

1.7.0. Corp. of New England vy. Occupational Safety and

Health Review Commission, 540 F. 2d 543 (C.A. 1); C.N.

Flagg & Co., OSHRC No. 1734, 11 OSHARC Reports 632,

affirmed without opinion, C.A. 2, No. 74-2362 (January 12,

1976). Guards to prevent amputations from work with haz-

ardous machines, ¢.g., 29 C.F.R. 1910.212, .217, may be turned

off or by-passed by foremen or individual operators when they

are sure an inspector wil! not be present—a common produc-

11

would be largely nullified if an employer could gain

significant delay by refusing to permit an inspection

without a warrant. This would be particularly true

where—as is commonly the case in civil warrant

practice—a show cause order issues before compulsory

process may be obtained.

The alternative of routinely obtaining ex parte

warrants before attempting an inspection would also

create substantial difficulties. Most employers will-

ingly consent to inspections without a warrant. The

Act covers nearly six million workplaces, and the

Secretary is currently conducting tens of thousands

of inspections yearly with only 1,300 inspectors.“ In

tion practice noted in the legislative history itself. See, e.g.,

Leg. Hist. 401-402 (Sen. Saxbe). And since proof of cor-

rectible violations inter alia requires a showing that workers

had access to hazardous machines or areas, e.g., Brennan V.

Gilles & Cotting, Inc., 504 F. 2d 1255, 1263-1266 (C.A. 4),

on remand, 1975-1976 CCH OSHD Para. 20,448 (February

20, 1976) (not yet officially reported), successful enforcement

proceedings may be blocked with relative ease by temporarily

disconnecting machines or barricading such areas, if advance

notice of an inspector’s arrival is obtained.

“* Agency regulations currently require the Secretary to ob-

tain a court order authorizing entry if the inspector is initially

refused entry. See 29 C.F.R. 1903.4. A ruling by this Court

that no warrant is required should greatly reduce an employ-

er’s incentive to refuse entry. Moreover, since the district

courts are always open for compulsory process purposes, Fed.

R. Civ. P. 77(a), and there would ordinarily be no cognizable

contention in opposition, orders authorizing entry would issue

swiftly and routinely in the event of refusals, further reduc-

ing the interim available to employers.

** Congress repeatedly indicated awareness that qualified

inspectors to enforce this Act would be in critically short

12

these circumstances, requiring inspectors to obtain a

warrant before each inspection would place an un-

warranted burden on limited judicial and enforce-

ment resources, creating severe delays in imp'ement-

ing inspections, to the detriment of the Act’s basic

purpose of assuring the swiftest possible abatement

of occupational hazards, See, e.g., Brennan v. Winters

Battery Mfg. Co., 531 F. 2d 317, 322-323 (C.A. 6),

certiorari denied, No. 75-1162 (May 24, 1976).

Moreover, pre-inspection warrants for routine

“general schedule” inspections would provide only

minimal additional safeguards for an employer’s pri-

vacy interests, Since the essence of the general sched-

ule inspection is that it is a random spot check, the

factors identified in Camara v. Municipal Court,

supra, 387 U.S. at 538-539, as supporting a finding

of probable cause for inspection would be largely

irrelevant. Here, as in United States v. Biswell,

supra, 406 U.S. at 316: “if the necessary flexibility

as to time, scope, and frequency is to be preserved,

the protections afforded by a warrant would be neg-

ligible.” Accord, Brennan v. Buckeye Industries, 374

F. Supp. 1350, 1354 (S.D. Ga.).”

supply for an indefinite time. E.g., 8S. Rep. No. 91-1282,

supra, at 12, 21-22, Leg. Hist. 152, 161-162; H.R. Rep. No. 91-

1291, supra, at 22-31, Leg. Hist. 852-861; H.R. (Conf. Rep.)

Rep. No. 91-1765, 91st Cong., 2d Sess. 37 (1970), Leg. Hist.

1190.

'° Probable cause for inspections based on fatality reports

or employee complaints could be established by submitting

to the magistrate the fatality report prepared by the em-

ployer (29 C.F.R. 1904.8) or the employee complaint, which

must in any event be presented to the employer at the time of

13

Nothing in the decisions of this Court calls for in-

validation of the congressional authorization of war-

rentless OSHA safety inspections. This Court has

consistently recognized that the overriding Fourth

Amendment test is one of “reasonableness” in the

particular circumstances. E.g., Roaden v. Kentucky,

413 U.S. 496, 501; Camara v. Municipal Court,

supra, 387 U.S. at 538-539. It has noted that con-

gressional determinations regarding the reasonable-

ness of particular intrusions are entitled to weight in

this constitutional area, United States v. Watson, 423

U.S. 411; and it has regularly applied that test’s bal-

ancing of governmental interests against privacy ex-

pectations in deciding whether a warrant is required,

as well as in identifying the nature of the probable

cause needed to support a warrant authorizing an

inspection. E.g., Camara, supra, 387 U.S. at 533; cf.

Almeida-Sanchez v. United States, 413 U.S. 266, 269-

270 (plurality opinion) ; 277-285 (Powell, J., concur-

ring), 288-290 (White, J., dissenting).

Virtually all the factors the Court has found sig-

nificant in concluding that statutorily authorized in-

spections (in contrast to the types of searches and

seizures that have been the traditional focus of Fourth

Amendment concern) may be conducted without a

the inspection (29 U.S.C. 667(f)(1)). But the warrant

procedure in these cases would provide the employer with no

more info mation concerning the reasonableness of the inspec-

tion than he is already provided by statute and regulation. See

United States ex rel. Terraciano Vv. Montanye, 493 F. 2d 682,

685 (C.A. 2), certiorari denied sub nom. Terraciano Vv. Smith,

419 U.S. 875.

14

warrant “—express congressional authorization, com-

pelling governmental need in light of the particuiar

purpose of the inspection involved, the difficulty of

making any meaningful “cause” showing, and limited

interference with legitimate privacy expectations “—

‘* Similar or identical provisions are included in many

federal statutes, ¢.g., 21 U.S.C. 374(a) (Food, Drug, and

Cosmetic Act); 30 U.S.C. 723, 724 (Metal and Nonmetallic

Mine Safety Act); 30 U.S.C. 813 (Coal Mine Health and

Safety Act); 45 U.S.C. 487(c) (Railroad Safety Act); 8

U.S.C. 1225(a) (Immigration and Nationality Act) ; 29 U.S.C.

2ll(a) (Fair Labor Standards Act); 7 U.S.C. (Supp. V)

136g (Environmental Pesticide Control Act); 41 U.S.C. 538

(Walsh-Healey Act); 45 U.S.C. 29 (Railroad Safety Appli-

ance Act); 42 U.S.C. 1857f-6 (Air Pollution Control Act) ;

7 U.S.C. 2146(a) (Animal Welfare Act of 1970); 46 U.S.C.

239, 362, 404 (Bureau of Marine Inspection Act); 21 U.S.C.

1034(a), (b), (d) (Egg Products Inspection Act); 15 U.S.C.

1270(a), (b) (Federal Hazardous Substances Act) ; 42 U.S.C.

2035 (c) (Atomic Energy Act) ; Section Il, Pub. L. 94-469, 90

Stat. 2032, 15 U.S.C. 2610 (Toxic Substances Control Act) ; 33

U.S.C. (Supp. V) 467(a) (Woter Pollution Control Act) ;

42 U.S.C. 1857c-9 (Clean Air Act) ; 26 U.S.C. 7606 (Internal

Revenue Code of 1954) ; 26 U.S.C. 5146(b) (Internal Revenue

Act of 1958).

" The statute is aimed only at business premises, which

have “(hjistorically * * * been subject to broad visitorial

power, both in England and in this country.” Oklahoma Press

Publishing Co. v. Walling, 327 U.S. 186, 204. Moreover, the in-

spection is designed only to disclose hazardous working con-

ditions—it relates purely to the regulation of business activi-

ties. G. M. Leasing Corp. v. United States, No. 75-235, de-

cided January 12, 1977, slip op. 14-16. And, since OSHA

inspectors are only to examine areas where employees work,

they “do not * * * intrude into any zone of privacy which the

{employers} reasonably expect to remain inviolate.” Y oughio-

gheny and Ohio Coal Co. Vv. Morton, 364 F. Supp. 45, 51 (S.D.

Ohio). Indeed, at least two courts of appeals have suggested

that employers’ privacy expectations in these

-_—-~

are present in this case. See Colonnade Catering Corp.

v. United States, 397 U.S. 72; United States v. Biswell,

406 U.S. 311." For this reason those federal courts

that have attempted to balance the competing inter-

ests have sustained limited warrantless inspections

under Section 8(a)” and analogous regulatory pro-

visions.”

80 low as to amount to a lack of Fourth Amendment standing.

Bloomfield Mechanical Contracting, Inc. v. Occupational Safety

and Health Review Commission, 519 F. 2d 1257, 1263 (C.A.

3); Lake Butler Apparel Co. v. Secretary, 519 F. 2d 84, 88

(C.A. 6).

** Moreover, this case does not involve the circumstances

that this Court identified in Camara and See as indicating that

warrantless inspections are unreasonable under the Fourth

Amendment in particular situations—blanket authorizations

to inspect, lack of notice regarding the inspection’s lawful pur-

pose or scope, and the absence of any indication that a warrant

requirement would significantly hamper regulation.

” Brennan V. Buckeye Industries, 374 F. Supp. 1350 (S.D.

Ga.); Dunlop v. Able Contractors, Civ. No. 75-57-BLG (D.

Mont., December 15, 1975), appeal pending, C.A. 9, No. 76-

1615. Contra, Brennan v. Gibson's Productions, Inc. of Plano,

407 F. Supp. 154, 162-163 (E.D. Tex.) (three-judge court),

appeal pending, C.A. 5, No. 76-1526; Dunlop v. Hertzler Enter-

prises, 418 F. Supp. 627 (D. N.Mex.) (three-judge court), ap-

peal pending, C.A. 10, No. 76-2020; Usery v. Rupp Forge Co.,

No. C-76-385 (N.D. Ohio, April 22, 1976, appeal pending, C.A.

6, No. 76-1960; Usery v. Centrif-Air Machine Co., No. C-76-

1551 (N.D. Ga., January 10, 1977).

* United States Vv. Business Builders, Inc., 364 F. Supp.

141, 143 (N.D. Okla.) (Food, Drug and Cosmetic Act) ;

Youghiogheny and Ohio Coal Co. v. Morton, 364 F. Supp. 45

(8.D. Ohio) (Coal Mine Health and Safety Act of 1969);

United States ex rel. Terraciano Vv. Montanye, 493 F

684-685 (C.A. 2), certiorari denied

Smith, 419 U.S. 875 (state narcotics statute) ;

2

pseetl

iE

16

2. Even if, despite our contrary submission, this

Court should conclude that the Fourth Amendment

precludes warrentless safety inspections of working

areas, the district court erred in declaring 29 U.S.C.

657(a) “unconstitutional and void” and enjoining

the Secretary from “acting or attempting to act pur-

suant to or in furtherance of” that Section (App. B,

infra, pp. lla-12a). It should instead have followed

this Court’s rule that “under familiar principles of

constitutional adjudication, our duty is to construe

the statute, if possible, in a manner consistent with

the Fourth Amendment,” Almeida-Sanchez vy. United

States, supra, 413 U.S. at 272, and interpreted the

statute to meet Fourth Amendment requirements.”

Although, as noted, we believe it is clear that Con-

gress intended to authorize warrantless inspections,

it is equally clear that interpreting the statute to

meet Fourth Amendment requirements more closely

approximates congressional intent than totally elimi-

nating the authority to inspect. Cf. Tilton v. Rich-

ardson, 403 U.S. 672, 684.

3. The uncertainty concerning the Secretary’s au-

thority to conduct OSHA inspections is seriously ham-

pering the enforcement of that Act. Accordingly, the

Secretary urges that this case be considered on an

v. Del Campo Baking Mfg. Co., 346 F. Supp. 1371, 1374-1377

and nn. 12-15 (D. Del.) (Food, Drug and Cosmetic Act) ;

United States v. Western & A. R. R., 297 Fed. 482, 484-485

(N.D. Ga.) (Railroad Safety Appliance Act).

" This is the course followed by the other district courts

that have found warrantless OSHA inspections unconstitu-

tional. See note 19, supra.

17

expedited schedule that will permit a final decision

this Term. To that end, the government will file its

brief on the merits by March 15, 1977, and we sug-

gest that if the Court notes probable jurisdiction, the

appellees be ordered to file their brief in response no

later than April 14, 1977. The case would then be

ready for argument during the April Session of the

Court.

CONCLUSION

Probable jurisdiction should be noted.

Respectfully submitted.

la

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 1-76-3

(Three-Judge Court)

BARLOW’S, INC., an Idaho corporation, PLAINTIFF

Vv.

W. J. Usery, Secretary of Labor of the

United States of America, in his official

capacity, ET AL., DEFENDANTS

MEMORANDUM DECISION AND ORDER

Before: KOELSCH and ANDERSON, Circuit Judges,

and MCNICHOLS, Chief District Judge.

ANDERSON, Circuit Judge:

Plaintiff is an Idaho corporation in good standing

situated in Pocatello, Idaho. Its business is the in-

stallation of electrical and plumbing fixtures, heating

and air conditioning units. The corporation is en-

gaged in interstate commerce in that it purchases

and uses materials such as sheet metal which are

made without the State of Idaho.

On September 11, 1975, Occupational Safety and

Health Compliance Officer Daniel T. Sanger arrived

at plaintiff’s business premises for the purpose of

conducting a safety and health inspection pursuant

to Section 8(a) of the Occupational Safety and

2a

Health Act. 29 U.S.C. § 657(a).' Mr. Sanger prop-

erly identified himself and requested permission to

inspect the nonpublic area of the premises. Mr. Fer-

rol G. “Bill” Barlow, President and Manager of

Barlow's, Inc., refused to allow the inspection, basing

his refusal on the absence of a search warrant. It

is undisputed that Mr. Sanger did not have any

cause, probable or otherwise, to believe a violation

existed nor was he in possession of any complaints

by any employee of Bariow’s, Inc.

As a result of Mr. Barlow’s refusal, the Secretary

petitioned this court on December 13, 1975, for an

order compelling entry, inspection and investigation.

A show cause order was thereafter issued and sub-

sequent to the show cause hearing the Secretary’s

petition was granted on December 30, 1975.

* 29 U.S.C. § 657(a) states:

“(a) In order to carry out the purposes of this chapter,

the Secretary, 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 work-

ing hours and at other reasonable times, and within

reasonable limits and in a reasonable manner, any

such place of employment and all pertinent condi-

tions, structures, machines, apparatus, devices, equip-

ment, and materials therein, and to question privately

any such employer, owner, operator, agent or em-

ployee.”

3a

On January 5, 1976, the court’s order was pre

sented to Mr. Barlow. Mr. Barlow again declined to

permit the inspection. The next day the plaintiff

filed the instant action requesting that a three-judge

court be convened to enjoin the enforcement of the

Act on the ground of repugnance to the Fourth

Amendment and, further, requesting a temporary re-

straining order. The present three-judge court* was

empaneled and the temporary restraining order was

denied on tne ground of an inadequate showing of

immediate and irreparable injury.

This case squarely presents the issue of whether

the entry and inspection provisions of the Occupa-

tional Safety and Health Act (OSHA), 29 U.S.C.

§ 651, et seq., are consistent and compatible with the

dictates of the Fourth Amendment.*

I.

Preliminarily, the Secretary advances two grounds

to preclude this panel from reaching a decision on

* During the pendency of these proceedings Judge Koelsch

took senior status and Judge Anderson was elevated from

district judge to circuit judge and continues to participate in

this matter by designation of the Chief Judge of the Ninth

Circuit.

* AMENDMENT IV—SEARCHES AND SEIZURES

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

4a

the merits. First, it is contended that this court

lacks subject matter jurisdiction. This argument is

premised on two principles: First, that judicial re-

view is improper because Congress has designated an

exclusive forum—the Occupational Safety and Health

Administration, and, second, that plaintiff is not en+

titled to challenge agency action for a supposed or

threatened injury until prescribed administrative

proceedings have been exhausted. In short, the Sec-

retary contends that plaintiff should simply have

permitted a full inspection under protest, thereby

preserving its objections for the Commission and ap-

pellate courts, if and when a citation resulting from

the inspection is actually issued against it.

The purposes served by the exhaustion doctrine,

as set forth in McKart v. United States, 395 U.S.

185 (1969), are absent from this case and we there-

fore will not apply the rule to this case. It is beyond

question that the administrative channels of OSHA

lack the expertise to consider and determine the con-

stitutional question presented by this case. We also

find, after a consideration of the factors set forth

in Abbott Laboratories v. Gardner, 387 U.S. 136

(1967), that the issue presented by this case is ripe

for judicial determination. The issue presented is one

of constitutional law only and, further, the plaintiff

is placed in a dilemma of being forced to give up his

asserted right of privacy or potentially finding him-

self in contempt of court. We therefore reject the

secretary’s contention that this court lacks subject

matter jurisdiction.

y a

The Secretary’s second ground urged in support of

dismissal is that plaintiff's failure to appeal the

order of December 30, 1976, requiring the inspection

bars the present action on res judicata grounds. Our

review of the transcript of that hearing convinces

us that the presiding judge reserved the constitu-

tional issue on the basis that it was premature. The

ruling in that case, Civil 4-75-58, clearly left open

the door for subsequent litigation of the Fourth

Amendment claim. We thus proceed to the merits.

II.

In Frank v. Maryland, 359 U.S. 360 (1959), the

Supreme Court upheld the conviction of Aaron D.

Frank who refused to permit a Baltimore City health

inspector to enter and inspect his premises without

a search warrant. This holding was expressly over-

ruled by the Supreme Court in Camara v. Municipal

Court of San Francisco, 387 U.S. 523 (1967) and its

companion case, See v. City of Seattle, 387 U.S. 541

(1967). In Camara appellant was awaiting trial on

criminal charge of violating the San Francisco Hous-

ing Code by refusing to give permission to a city

housing inspector who sought to inspect appellant’s

residence without a warrant. The court, in tracing

the history and scope of the Fourth Amendment,

stated:

“Nevertheless, one governing principle, justified

by history and by current experience, has con-

sistently been followed: except in certain care-

fully defined claeecs of cases a search of private

property without proper consent is ‘unreason-

6a

able’ unless it has been authorized by a valid

search warrant.” 387 U.S. at 528-29 [citations

omitted |.

The court went on to hold that under the Fourth

Amendment a person has the constitutional right to

insist that a search warrant be obtained before an

administrative inspection of a private residence is

allowed.

In See, supra, the court was faced with a war-

rantless inspection of a commercial warehouse in the

course of a municipal fire, health and housing pro-

gram. In expanding its Camara holding to include

commercial structures as well as private residences,

the court stated:

“We therefore conclude that administrative en-

try, without consent, upon the portions of com-

mercial premises which are not open to the

public may only be compelled through prosecu-

tion or physical force within the framework of

a warrant procedure.” 387 U.S. at 545.

In Colonnade Catering Corp. v. United States, 397

U.S. 72 (1970), the court narrowed the scope of its

Camara holding in upholding the warrantless inspec-

tion of the premises of a retail dealer of liquor. In

United States v. Biswell, 406 U.S. 311 (1972), the

Colonnade reasoning was expanded to permit war-

rantless inspections of firearms dealers.

III.

It is upon the framework of the above-mentioned

cases that we must base our decision. We reject the

notion as espoused in Brennan v. Buckeye Indus-

Ta

tries, Inc., 374 F. Supp. 1350 (S.D. Ga. 1974), that

the Colonnade and Biswell decisions envision a trend

of the Supreme Court to generally narrow the hold-

ings of Camara and See. Instead, we find that the

warrantless inspection scheme pursuant to OSHA is

more properly aligned with and must be controlled

by the holdings in Camara and See, supra. See Bren-

nan v. Gibson’s Products, Inc. of Plano, 407 F. Supp.

154 (Three-judge court, E. D. Texas, 1976).

We simply cannot overlook the fact that in Colon-

nade and Biswell the court dealt with an “industry

long subject to close supervision and inspection”

(Colonnade, 397 U.S. at 77), and a “pervasively

regulated business” (Biswell, 406 U.S. at 316). We

believe that both of those cases fit into the Camara

categorization of “certain carefully defined classes of

cases.” We have no such industry in this case. OSHA

applies to all businesses that affect interstate com-

merce. 29 U.S.C. §651(a)(3). As such, it applies

to a wide variety of over 6,000,000 work places and

does not focus on one particular type of business or

industry. It cannot be questioned that this broad

spectrum of businesses can be distinguished from the

heavily-regulated liquor and firearm industries en-

countered in Colonnade and Biswell, supra.

*The Congressional investigations revealed in the legisla-

tive history of the Act (3 U.S. Code Congressional and Ad-

ministrative News, 91st Congress, Second Session, 1970, p.

5177, et seq.) make a persuasive case for “need” in the health

and safety fields. We, of course, do not sit in judgment of the

wisdom of Congress. Our only concern is the alleged affront

to the Fourth Amendment. The rationale of an anonymous

8a

We have also had the benefit, not enjoyed by the

court in Brennan v. Buckeye Industries, Inc., supra,

of recent Supreme Court pronouncements which show

a continued allegiance to the Camara and See hold-

ings as expressing the court’s views on the scope of

the Fourth Amendment. In Almeida-Sanchez v.

United States, 413 U.S. 266 (1973), the court was

faced with a statute and regulations which permitted

warrantless searches for aliens, without probable

cause, within a one hundred mile zone along the in-

ternational border. The court invalidated these rov-

ing searches by the Immigration and Naturalization

Service, finding that such searches:

“embodied precisely the evil the court saw in

Camara when it insisted that the ‘discretion of

the official in the field’ be circumscribed by ob-

saying “Expediency is the argument of tyrants, it precedes

the loss of every human liberty” seems of foreceful application

here. That the end result may be laudable and desirable does

not justify the means used to accomplish it when constitutional

prohibitions are confronted. To paraphrase Burke, /mpeach-

ment of Warren Hastings, February 16, 1788; “The Consti-

tution (law) and arbitrary power are in eternal omnity.” We

suggest that there are other less intrusive and oppressive

methods of accomplishing the intended result, e.g., employer

reporting requirements with provisions for employee contri-

bution and participation; employer-employee safety commit-

tees ; encouragement of employee complaints; in the organized

management-labor relations field a greater and more forceful

input by labor unions as the safety representative of their

members; efforts toward better enforcement by the states of

their health and safety laws, etc. We subscribe to the Camara

court holding that warrantless inspections must be confined

to “certain carefully defined classes of cases.” Camara, supra,

p. 528-9.

taining a warrant prior to the inspection.” 413

U.S. at 270.

The court went on to distinguish Colonnade and Bis-

well by noting that “businessmen engaged in such

federally licensed and regulated enterprises accept

the burdens as well as the benefits of their trade,

...” 413 U.S. at 271.

More recently, in Air Pollution Variance Board v.

Western Alfalfa Corp., 416 U.S. 861 (1974), an in-

spector of the Colorado Department of Health con-

ducted daylight visual pollution tests of smoke being

emitted from the company’s chimney. The inspector

had entered the outdoor premises of the business

without the owner’s consent or having obtained a

search warrant. The court expressly reaffirmed the

holdings of Camara and See, but held them inappli-

cable to the case because of the “open fields” doc-

trine. See Hester v. United States, 265 U.S. 57

(1924).

There is one common thread among these cases

that requires the result we reach here. In Camara,

See and Western Alfalfa, supra, each was involved

with statutory and regulatory schemes aimed at pro-

moting and protecting pubi.- health and safety. The

warrantless inspections authorized under OSH \ like-

therefore must be controlled by Camara and See.

The analysis which we have outlined above is con-

sistent with that taken by another three-judge panel

in Brennan v. Gibson's Products, Inc. of Plano, supra.

While we adopt, in general, the similar reasoning

10a

employed there, we decline the invitation to judi-

cially redraft an enactment of Congress. Unlike the

Gibson's Products court, we cannot accept the propo- —

sition that the language of the OSHA inspection pro-

visions envision the requirement that a warrant be

obtained before any inspection is undertaken. Cer-

tainly, Congress was able, had it wished to do so, to

employ language declaring that a warrant must first

be obtained, the procedures under which it is to be

obtained, and other necessary regulations. Congress

did not do so and we refuse to accept that duty.

IV.

We therefore hold that the inspection provisions

of OSHA which have attempted to authorize war-

rantless inspections of those business establishments

covered by the Act, are unconstitutional as being

violative of the Fourth Amendment.

IT IS SO ORDERED and judgment shall be en-

tered accordingly.

DATED this 30th day of December, 1976.

/s/ M. Oliver Koelsch per JBA

M. OLIVER KOELSCH

Senior Circuit Judge

/s/ J. Blaine Anderson

J. BLAINE ANDERSON

United States Circuit Judge

/s/ Ray MeNichols per JBA

Ray McCNICHOLS, Chief

United States District Judge

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 1-76-3

(Three-Judge Court)

BaRLOw’s, INC., an Idaho corporation, PLAINTIFF

vs.

W. J. Usery, Secretary of Labor of the

United States of America, in his official

capacity, ET AL., DEFENDANTS

SUMMARY JUDGMENT

The cross motions of the parties for summary

judgment having been heard and submitted and the

court having heretofore entered its memorandum de-

cision and order, and it appearing that there are no

genuine material issues of fact and that the record

in this cause presents only questions of law, and the

court having concluded that plaintiff is entitled to

the relief prayed for in its complaint on file herein,

IT IS HEREBY ORDERED, ADJUDGED and

DECLARED as follows:

I.

That Section 8(a) of Public Law 91-596, Decem.-

ber 29, 1970, 84 Stat. 1598 (29 U.S.C. 657(a)), is

unconstitutional and void in that it directly offends

12a

against the prohibitions of the Fourth Amendment

of the Constitution of the United States of America.

II

That defendant, the Secretary of Labor of the

United States of America, and all other defendants,

and their successors in office, and all other persons

acting by, through or under them, are hereby for-

ever and permanently RESTRAINED and EN-

JOINED from acting or attempting to act pursuant

to or in furtherance of Section 8(a) of OSHA (29

U.S.C. 657(a)) and from conducting or attempting

to conduct any general searches or inspections of the

non-public portions of the premises of the plaintiff

herein pursuant to Section 8(a) of the Occupational

Safety and Health Act of 1970.

III.

No costs or attorneys’ fees are allowed.

DATED this 30th day of December, 1976.

/s/ M. Oliver Koelsch per JBA

M. OLIVER KOELSCH

Senior Circuit Judge

/s/ J. Blaine Anderson

J. BLAINE ANDERSON

Circuit Judge

/s/ Ray McNichols per JBA

Chief District Judge

18a

APPENDIX C

WiLsuR T. NELSON

United States Attorney

District of Idaho

Federal Building, Room 693

550 West Fort Street

Boise, Idaho 83724

Telephone: 384-1211

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 1-76-3

(Three-Judge Court)

BaRLOW’S, INC., an Idaho corporation, PLAINTIFF

~ v8.

W. J. Usery, Secretary of Labor of the

United States of America, in his official

capacity, ET AL., DEFENDANTS

NOTICE OF APPEAL

COME NOW the Defendants by and through the

United States Attorney for the District of Idaho and

pursuant to 28 U.S.C. 1252 and 1253 appeal to the

l4a

United States Supreme Court from the Memorandum

Decision and Order and Summary Judgment entered

on December 30, 1976, in the above-captioned matter.

WiLBurR T. NELSON

United States Attorney

By /s/ Paul L. Westberg

PAUL L. WESTBERG

Assistant United States

Attorney

[Filed January 4, 1977)

15a

WILBUR T. NELSON

United States Attorney

District of Idaho

Federal Building, Room 693

550 West Fort Street

Boise, Idaho 83724

Telephone: 384-1211

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

Civil No. 1-76-3

BARLOW’s, INC., an Idaho corporation, PLAINTIFF

v8.

W. J. Usery, Secretary of Labor of the

United States of America, in his official

capacity, ET AL., DEFENDANTS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that he is an

employee in the Office of the United States Attc~ney

for the District of Idaho and is a person of such vge

and discretion as to be competent to serve papers.

That on January 4, 1977, I Paul L. Westberg,

served a copy of the Notice of Appeal on Runft and

Longeteig, Attorneys at Law, 420 West Bannock

Street, Boise, Idaho 83701 by depositing same in the

United States mail at Boise, Idaho.

/s/ Paul L. Westberg

Assistant United States

Attorney

l6a

Subscribed and sworn to before me this 4th day

of January, 1977.

/3/ Mikel H. Williams

Notary Public

Residing at Boise, Idaho

My Commission expires:

@ ©. 6. eoveenwant rermrime orice, 1977 220768 se