Appellants Reply Brief — Marshall v. Barlow's, Inc.
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JUL 26 rT
No. 76-1148 2
J
2
Gu he genen dont of in Wed Sites
Oro TERM, 1977
Ray MARSHALL, SECRETARY OF LABOR, ET AL.,
APPELLANTS
v.
Bariow’s, IN.
ON APPRAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRIEF FOR THE APPELLANTS
WADE H McCREE, Jr.,
Solicitor General,
LAWRENCE G. WALLACE,
Deputy Solicitor General,
STUART A. SMITH,
Assistant to the 8 licitor General,
Department of Justice,
Washington, D.C. 20530.
I. The Secretary’s warrantless inspection
during regular business hours of the
portions of commercial premises
routinely occupied by an employer's
work force, pursuant to his authority
under the Occupational Safety and
Health Act, does not violate the
B. The fundamental policy of pro-
tection of privacy interests
a
n 682 71—1
17
Argument—Continued
embodied in the Fourth
Amendment would not be
meaningfully advanced by
adoption of a warrant re-
quirement for the Secretary’s
routine inspection of work
areas of commercial premises
under the Occupational
Safety and Health Act
C. A large number of federal
regulatory statutes validly
provide for similar warrant-
less inspections of business
SUEEENED cacccensesnsnctcas
II. Even if a warrant is required, the dis-
trict court should have upheld the
constitutionality of the Act
„ —— % —
CITATIONS
Accu-Namics, Inc. v. Occupational Safety
and Health Review Commission, 515
F. 2d 828, certiorari denied, 425 U.S.
SED eansscecsssnatitineneieteieten
Air Pollution Variance Board v. Western
47
50
Alfaifa Corp., 416 U.S. 8614 14, 29, 31
Alaska v. Alaska Truss & Millwork, No.
2903, decided June 2, 1977 (Alaska 8.
GAD enaddbodsadctnaiiitintitinteemeeenien
Almeida-Sanchez v. United States, 413
2 a a 16, 17, 44, 51
Ames Crane d Rental Service, v. Dunlop,
ä„%Q„%—t
e
II
Cases—Continued
Ashwander v. Tennessee Valley Authority,
11. 51
Associated Industries of New York State
v. Department of Labor, 487 F. 2d 342— 43
Atlas Roofing Co. v. Occupational Safety
and Health Review Commission, No. 75
746, decided March 23, 1977 4. 11, 17, 41
Bloomfield Mechanical Contracting, Inc. v.
Occupational Safety and Health Review
Commission, 519 F. 2d 1257. 31
Brennan v. Buckeye Industries, Inc., 374
Ff SE ee 46
Brennan v. Butler Lime & Cement Co., 520
III.. ee 36
Brennan v. Gibson’s Products Inc. of
3 407 F. Supp. 154, appeal pending,
Gln.... 10, 46, 50
22 v. Gilles & Cotting, Inc., 504 F. 2d
1255, on remand, 1975-1976 CCH OSHD
120,448 (decided February 20, 1976) 39
Brennan v. Occupational Safety and
Health Review Commission (Interstate
Glass Co.) 487 F. 2d 438 6
Brennan v. Occupational Safety and
Health Review Commission (Gordon
ene. 6
Brennan v. Winters Battery Mfg. Co., 531
F. 2d 317, certiorari denied sub nom.
Winters Battery Mfg. Co. v. Usery, 425
i as ae 6, 41
C. N. Flagg & Co., OSHRC No. 1734, 11
— Rep. 632, affirmed, 538 F. 2d
Code v. Dombrowski, 413 U.S. 433.24, 25, 27
IV
Cases—Continued Page
Camara v. Municipal Court, 387 U.S. 523. passim
Cardwell v. Lewis, 417 U.S. 5838— 27, 28
Carroll v. United States, 267 U.S. 132... 26, 27
Central Hardware Co. v. National Labor
Relations Board, 407 U.S. 539—— 30
Chambers v. Maroney, 399 U.S. 42..---- 27
Clarkson Construction Co. v. Occupational
Safety and Health Review Commission,
Colonnade Catering Corp. v. United States,
410 F. 2d 197, reversed on another ground,
Coolidge v. New Hampshire, 403 U.S. 433 - 24
Cooper v. California, 386 U.S. 58.-------
Couch v. United States, 409 U.S. 32222 31
Dunlop v. Able Contractors, D. Mont., Civil
No. 75-57-BLG, decided December 15,
1975, appeal pending, C.A. 9, No. 76-
————————————— 46
Dunlop v. Hertzler Enterprises, Inc., 418
F. Supp. 627, appeal pending, C.A. 10,
Epstein v. Fitzwater, No. 6838EQ, decided
September 2, 1976 (Cir. Ct., Garrett
County, 6 5..————575rð˖—.t:8B 50
Fleming v. Rhodes, 331 U.S. 100 — 2
G. M. Leasing Corp. v. United States, No.
75-235, decided January 12, 1977. 27, 37, 44
Go-Bart Importing Co. v. United States,
S98 UB, Sit .ccocccccsecescccesescese 24
1.7.0. Corp. of New England v. Occwpa-
tional Safety and Health Review Com-
Cases—Continued Pose
Intercounty Construction Co. v. Occupa-
tional Safety and Health Review Com-
mission, 522 F. 2d 777, certiorari denied,
1 . 8
Joues v. United States, 357 U.S. 493. 13, 25, 29
Katz v. United States, 389 U.S. 347. 24, 26, 28
Lake Butler Apparel Co. v. Secretary of
eee 31
Lloyd Corp. v. Tanner, 407 U.S. 551 30
Mancusi v. De Forte, 392 U.S. 364. 27
30
26
2
—1
Marsh v. Alabama, 326 U.S. 50114
McDonald v. United States, 335 U.S. 451
Me Lucas v. DeChamplain, 421 U.S. 21
Messina Construction Corp. v. Occupation-
al Safety and Health Review Commis-
e 7
MTM, Inc. v. Baæleg, 420 U.S. 799 2
National Independent Coal Operators’ As-
sociation v. Kleppe, 423 U.S. 388_...._- 6, 41
National Realty and Construction Co., Inc.
v. Occupational Safety and Health Re-
view Commission, 489 F. 2d 1257 4, 6, 36
Nixon v. Administrator of General Serv-
ices, No. 75-1605, decided June 28, 1977. 45
Oregon v. Keith R. Foster, dba Keith Mfg.
Co., Civ. No. 5943, decided November 1,
1976 (Cir. Ot., Jefferson County, Ore.) _- 50
Republic Aviation Corp. v. National Labor
Relations Board, 324 U.S. 793. 30
Restland Memorial Park, Matter of, 540
Lr 40
Schmerber v. California, 384 U.S. 757. 25-26
See v. City of Seattle, 387 U.S. 5414. passim
vil
Cases—Continued Page Cases—Continued Page
South Dakota v. Opperman, 428 U.S. Usery v. Northwest Orient Airlines, E. D.
— 25, 26, 27, 28, 37 N. V., No. 76-C-2177, decided June 10,
Terry v. Ohio, 392 U.S. 1 25 P 46
Tilton v. Richardson, 403 U.S. 672 51 Usery v. Rupp Forge Co., N.D. Ohio, No.
United States v. Biswell, 406 U.S. 311... passim
United States v. Business Builders, Inc.,
Se FW. GERD. ——.— ͤ—ͤ—— 48
United States v. Camp, 541 F. 2d 7372 34
United States v. Chadwick, No. 75-1721,
decided June 21, 1977 27, 28, 32, 37
United States v. Christian Echoes Minis-
en 2
United States v. Del Campo Baking Mfg.
Ie 18
United States v. Dionisio, 410 U.S. 1 26, 28
United States v. Litvin, 353 F. Supp. 1333. 48
United States v. Martinez-Fuerte, 428 U.S.
en 27, 29, 32, 37, 44, 45
United States v. Matlock, 415 U.S. 164.
United States v. Miller, 425 U.S. 435.
United States v. Ortiz, 422 U.S. 891
N
United States v. Watson, 423 U.S. 411
United States v. Western & A. R. N., 297
1
United States ex rel. Terraciano v. Mon-
tanye, 493 F. 2d 682, certiorari denied
sub nom. Terraciano v. Smith, 419 U.S.
— — 36, 48
Usery v. Centrif-Air Machine Co., 424 F.
Supp. 959, appeal pending, C. A. 5,
S 82288
2. 47
Dsery v. Godfrey Brake and Supply Serv-
OO Oe 8, 21
C-76-385, decided April 22, 1976, appeal
pending, C. A. 6, No. 76-1960_.......--- 47
Warden v. Hayden, 387 U.S. 294 25
Youghiogheny and Ohio Coal Co, v. Mor-
e 31, 48
Constitution, statutes, and regulations:
United States Constitution, Fourth Amend-
EEG cocescounpecscescocueucessensese passim
Occupational Safety and Health Act of
1970, 84 Stat. 1590, as amended, 29
Ee 4, 11,17
22 1 4, 18, 45
1 — 6
29 U.S. C. 651(2)——— — — 6
e 6, 8
4. 43
I Ee 6, 8, 20, 43
. 5
0 43
e 36
9e... 5, 18
29 U.S.C. 654(a) (2 — 257 5, 18
,. § SES 18
A Ca oe 43
CE passim
29 U.S.C. 657(a)(2)-........--- 7, 23, 30, 35
„ ee 8, 36
. Ee 9, 20
990... 36
VIII
Constitution, statutes, and regulations—Con. Page
99 UBL. Ga) .ccccoccccesccecscc= 7
99 UBD, 0 6, 19
99990 000 6, 7
99 UB.C. GBS) .cacocccecceccoacse 7, 9, 40
1 7
11271 ͤꝶ[—0 7
1K 8 GF
1 ⁵˙ü——— 7
1 8
29 U.S.C. 666(4)-(e) 72 7
1211 9
RS — 7
SD Be Ga ivedccnencassncesesnse 8, 20
1 — 6
11144 —— 6, 7, 36
11 1—— 43
29 U.S.C. e) (89 20
1 Ü —PÜ—j— 51
Railway Safety Appliance Act of 1908,
Section 6, 36 Stat. 915, as amended, 45
SS 48
Walsh-Healy Act of 1936, 49 Stat. 2036,
49988000... 43
1 bB... 49
Pub. L. 94-381, Section 7, 90 Stat. 1119,
——— ͤK—— 2
Pub. L. 94-469, Section 2, 90 Stat. 2003. 49
Section 3007, as added, Pub. L. 94-580, 90
e ü 48
7 U.S.C. (Supp. V) 136g....-.....--..-- 48
. 18
1 48
i). eee = — 2 48
Constitution, statutes, and regulations—Con.
15 U.S.C. (Supp. V) 1401(a)(2)--------
115. ͤ—ĩ— —
RE EEE
125 . ͤ—èP f
BS EEE
GR WERE Ge ?Tõ̃—
21 U.S.C. 1084(a), (b), (d
Ry
33 USC. (Supp. V) 467(a)--.....--.--.
GRR, T
49 USC. OSS
OO a
.
49 U.S.C. (Supp. V) 18080)
Constitution, statutes, and regulations—Con.
Page
Alas. Stats., § 18.60.083 (19742222 — 49
Ariz. Rev. StSat. Ann., § 23-408 (1971) -- 49
Cal. Labor Code, § 6314(a) (West 1976) 49
Colo. Rev. Stat., § 811-106 (1974) —— 49
III. Ann. Stat., c. 48, § 59.2(b)(1) and (2)
0 —— — . 49
Ind. Stats. Ann., § 22-8-1.1-23.1 (1974) — 49
Md. Ann. Code, Art. 89, § 35(a) (1976) 49
Minn. Stat. Ann., § 182.659, Subd. 1
„ —— — — 49
Mont. Rev. Code, 54213 (1) and (2)
75 ———. 49
Nev. Rev. Stat., § 618.225 (1975722 49
N. Mex. Stat. Ann., 6 59-14-9 (1974) 49
N. C. Gen. Stats., §§ 995-133, 95-136
. —K, ͤ . 49-50
Ore. Rev. Stat., § 654.067 (19757222 50
Tenn. Code Ann., § 50-520 (1976 50
Vt. Stats. Ann., Tit. 21, § 206 (19717 50
Va. Code, §§ 40.1-6, 40.1-10 (1976) - 50
Wise. Stats. Ann., 101.02(15)(g) (1973) 50
I. Oe 8, 34, 39
I. GO ae — 21
RS SG eae 35
29 C.F.R. 1903.7(a), (e), and (d 8, 23
4. — 8, 36
X . ee 8
D. ..., 8
KJ... — 8 — 20
32. — ˙ aoe 36
32 11 39
29 C. F. R. 191098 (5) () 39
29 C. F. R. 1910.107 39
Constitution, statutes, and regulations Con.
29 C. F. R. 1910.132-1910.136——
„ — A
111 ˙—
III 3 o—
29 C. F. R. 1926. 104-1926.105——
29 C. F. R. 1926.62 (a) and (b)
Committee Print, Legislative History of
the Occupational Safety and Health Act
of 1970, Senate Committee on Labor and
Public Welfare, 92d Con., Ist Sess.
(1971) --------- 4, 5, 6, 22, 23, 36, 39, 40, 43, 52
123 Cong. Rec. H163 to H164 (daily ed.,
147 [
H.R. 3809, 91st Cong., Ist Sess., Sec. 5(a)
— —
H.R. 13373, 91st Cong., Ist Sess., See. 6(a)
—ñ
H.R. Conf. Rep. No. 91-1765, 91st Cong.,
OU
H.R. Rep. No. 91-1291, 91st Cong., 2d
Oy 5, 21, 22, 40, 43
President’s Report to the Congress on
Occupational Safety and Health for 1973
— .
S. 2193, 91st Cong., Ist Sess., Sec. 5(a)
Ce
S. 2788, 91st Cong., Ist Sess., Sec. 6(a)
*
S. 4404, 91s8t Cong., 2d Sess., Sec. 9 (a)
— 2 A
Miscellaneous—Continued Page
S. Rep. No. 91-1282, 91st Cong., 2d Sess.
0 aE 4, 21, 36, 40, 43
U.S. Department of Labor, Occupational
Safety and Health Administration, Field
Operations Manual Employment Safety
and Health Guide Chapter IV, 1CCH
ͤ— — 7, 9, 31, 40
In the Supreme Court of the Wnited States
Octoper TERM, 1977
No. 76-1143
Ray Mans HALL, SECRETARY OF LABOR, ET AL.,
APPELLANTS
v.
BARNOW's, Inc.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRIEF FOR THE APPELLANTS
The opinion of the three-judge district court (J.S.
App. A) is reported at 424 F. Supp. 437.
The judgment of the district court declaring See-
tion 8(a) of the Occupational Safety and Health Act
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 (J.S. App. B). A notice of appeal to this
(1)
2
Court (J. S. App. C) was filed on January 4, 1977,
aud the appeal was docketed on February 17, 1977.
The Court noted probable jurisdiction on April 18,
1977.
The jurisdiction of this Court is conferred by 28
U.S.C. 1252, which authorizes a direct appeal to this
Court from a final judgment of any court of the
United States holding an Act of Congress unconstitu-
tional in any civil action to which the United States
is a party. See Fleming v. Rhodes, 331 U.S. 100,
102-103; United States v. Christian Echoes Ministry,
404 U.S. 561, 563; McLucas v. DeChamplain, 421
U.S. 21, 23. The jurisdiction of this Court also rests
upon 28 U.S.C. 1253, which authorizes an appeal to
this Court from an injunctive order of a three-judge
district court when such order rests upon the merits
of a constitutional claim. See M7'M, Inc. v. Bazley,
420 U.S. 799, 804.“
1. Whether the inspection provisions of the Oecu-
pational Safety and Health Act, 29 U.S.C. 657(a),
and their implementing regulations, violate the Fourth
Amendment guarantee against unreasonable searches
and seizures, insofar as they authorize representatives
of the Secretary of Labor “during regular working
hours and at other reasonable times, and within rea-
* Because the action was commenced on January 6, 1976, the
three-judge district court had jurisdiction to consider appellee's
constitutional claims. See Section 7 of Pub. L. 94-381, 90 Stat.
1119, 1120.
sonable limits and in a reasonable manner’’ to conduct
warrantless inspections of the portions of commercial
premises routinely occupied by an employer's work
foree.
2. Whether, if a warrant is required, the district
court should have upheld the constitutionality of the
statute by interpreting it to meet the requirements of
the Fourth Amendment, instead of holding the statute
unconstitutional and enjoining its enforcement.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Fourth Amendment to the Constitution of the
United States provides:
t of the people to be secure in their
The ri
— = — oe rs, and effects, against un-
and seizures, shall not be
Section 8(a) of the Occupational Safety and Health
Act of 1970, 84 Stat. 1598, 29 U.S.C. 657(a), provides:
In order to carry out the purposes of this
chapter, the Secretary, upon presenting appro-
priate credentials to the owner, operator, or
agent in charge, is authorized—
(1) to enter without delay and at reasonable
4
manner, any such place of employment and all
pertinent conditions, structures, machines, ap-
paratus, devices, equipment, and materials
therein, and eh question privately any such em-
ployer, owner, operator, agent or employee.
A. THE STATUTE
The Occupational Safety and Health Act of 1970
(OSHA), 84 Stat. 1590, 29 U.S.C. 651 et seq., was
enacted “to assure so far as possible every working
man and woman in the Nation safe and healthful
working conditions and to preserve our human re-
sources.” 29 U.S.C. 651; Atlas Roofing Co. v. Occupa-
tional Safety and Health Review Commission, No. 75
746, decided March 23, 1977, slip op. 1-3; National
Realty and Construction Co., Inc. v. Occupational
Safety and Health Review Commission, 489 F.2d
1257, 1260-1261 (C. A. D.C.).“ To this end, the Act
The need for the Act is explained in S. Rep. No. 91-1282, 9ist
Cong., 2d Sess. 2-4 (1970) ; Committee Print, Legislative History
of the Occupational Safety and Health Act of 1970, Senate Com-
mittee on Labor and Public Welfare, 92d Cong., Ist Sess. (Leg.
Hist.”) 142-144 (1971) :
“The problem of assuring safe and healthful workplaces * * *
ranks in importance with any that engages the national attention
today.
“* * * 14,500 persons are killed annually as a result of industrial
accidents; * * during 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 dis-
ability is staggering. Over $1.5 billion is wasted in lost wagrs, and
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 enforced by the Secretary of Labor
through a self-contained administrative mechanism
the annual loss to the Gross National Product is estimated to be
over $8 billion. Vast resources that could be available for produc-
tive use are siphoned off to pay workmen’s compensation benefits
and medical expenses.
* *
“* * * Substantial numbers [of workers], even today, fall vie-
tim to ancient industrial poisons such as lead and mercury. * * °
Other materials long in industrial use are only now being dis-
covered to have toxic effects. In addition, technological
advances * * * have brought numerous new hazards to the work-
“In 1966-67 the Surgeon General * * * found that 65 percent
of [142,000 sampled workers] were potentially exposed to harmful
physical agents * * * or to toxic materials * * * and found that
only 25 percent * * * were adequately [protected by existing
controls].
“* * * As many as 3.5 million workers are exposed to some
extent to [deadly] asbestos fibers * .
“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 wor der truly a national concern.”
The House Report (H.R. Rep. No. 91-1291, let Cong., 2d Sess.
14 (1970), Leg. Hist. 844) describes occupational health and
safety as “the most crucial [issue] in the whole environmental
question,” and notes that It Ihe on-the-job health and safety
crisis is the worst problem confronting [over 80 million] Ameri-
can workers.”
239 s92—17-—2
which provides for speedy, expert and uniform reso-
lution of contested cases by an independent Review
Commission, subject to the usual appellate review.
29 U.S.C. 651(2), (3) and (10), 658-661, 666(1). See
generally, National Realty and Construction Co. Inc.
v. Occupational Safety and Health Review Commis-
sion, supra, 489 F.2d at 1261-1264; Brennan v. Win-
ters Battery Mfg. Co., 531 F. 2d 317 (C. A. 6), certio-
rari denied sub nom. Winters Battery Mfg. Co. v.
Usery, 425 U.S. 991; Brennan v. Occupational Safety
and Health Review Commission (Gordon Co.), 492 F.
2d 1027, 1030 (C. A. 2).
The Secretary’s inspectors are authorized by the
Act to conduct safety and health inspections at places
of employment. 29 U.S.C. 657(a). If, upon inspection,
the Secretary has cause to believe that the Act or its
implementing regulations have been violated, he is
empowered to issue a citation to the employer specif-
ically describing the violation, fixing a reasonable
time for its abatement, and (in his discretion) pro-
posing a civil monetary penalty. 29 U.S.C. 658, 659.“
If the employer does not contest the citation within
*The amount of the proposed penalty “if any” (29 U.S.C.
659(a)) depends on the severity of the hazard and the cited em-
ployer’s past diligence in attempting to discover and correct it
(ibid. ; see 29 U.S.C. 666 (i) and (j)). The prospect of such penal-
ties is designed to promote voluntary compliance by employers
before any inspector arrives. 29 U.S.C. 651(1) ; see Leg. Hist. 463-
464, 470 (Sen. Javits), 471-472 (Sen. Dominick), 853; Brennan v.
Occupational Safety and Health Review Commission (Interstate
Glass Co.) 487 F.2d 438, 441, 443 (C.A. 8). Cf. National Independ-
ent Coal Operators’ Association v. Kleppe, 423 U.S. 388, 401. Such
7
15 working days, it becomes a final abatement order
and is not subject to review by any court or agency.”
29 U.S.C. 659(a). Cases in which violations are con-
tested are tried before Occupational Safety and
Health Review Commission administrative law
judges, subject to review by the Commission and the
courts of appeals. 29 U.S.C. 659(¢), 660, 661(i).
The inspections must be made “during regular
working hours and at other reasonable times, and
within reasonable limits and in a reasonable man-
ner .“ 29 U.S.C. 657(a)(2). Selection of the
workplaces to be inspected is made by departmental
area directors, and not by the inspectors.* Upon pres-
proposed penalties may range up to $1,000 for serious violations,
and to a maximum of $10,000 for willful or repeated violations. 29
U.S.C. 658(a), 659(a), 666(a)-(c) and (j). See, e. g., /ntercounty
Construction Co. v. Occupational Safety and Health Review Com-
mission, 922 F. 2d 777 (C.A. 4), certiorari denied, 423 U.S. 1072;
Messina Construction Corp. v. Occupational Safety and Health
Review Commission, 505 F. 2d 701 (C. A. 1).
The Secretary may also propose a civil penalty of not more than
$1,009 per day of nonabatement where subsequent inspection re-
veals 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 enforce-
ment would result in their abatement. 29 U.S.C. 662. Finally, in
cases of willful violations that cause employee death, the Secretary
is authorized 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, since the Act’s April 1971 effective date, approximately
400,000 inspections have resulted in only 5 criminal prosecutions.
*See U.S. Department of Labor, Occupational Safety and
Health Administration, Field Operations Manual, chapter 4, 1
CCH Employment Safety and Health Guide 7 4327.2 (1976).
entation of his credentials to the employer or agent
in charge of the premises,’ the inspector is entitled
to entry “without delay” to inspect for occupational
safety and health hazards “where work is performed
by an employee of an employer.“ 29 U.S.C. 657(a).
Advance notice of the inspection is prohibited and
is subject to criminal sanctions. 29 U.S.C. 666(f),
651(10). The employer is entitled 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 (but see p. 34, note 12, infra). In
implementing the statute, the Secretary has promul-
gated a regulation requiring the inspector to seek
compulsory process authorizing entry if the employer
refuses to consent to the inspection (29 C. F. R. 1903.4).
* These credentials bear a photograph of the inspector and
identify him by name and area office. The credentials also para-
phrase and cite the statutory authority to inspect. See U/sery v.
Godfrey Brake and Supply Service, Inc., 545 F.2d 52, 53-55 (C. A.
8). Inspectors may offer toll-free verifying calls to their area offices
if these credentials do not convince employers of the propriety of
the inspection (ibid.). Agency regulations also require that the in-
spector explain the nature, purpose and scope of the pro-
posed inspection, avoid unreasonable disruption of business opera-
tions or hazardous conduct, and obey the employer’s normal work
rules. 29 C. F. R. 1903.7(a), (e), and (d).
Trade secrets of the employer are explicitly protected. 29
U.S.C. 664-665 ; 29 C. F. R. 1903.9.
B. THE FACTS OF THIS CASE AND THE PROCEEDINGS BELOW
Appellee Barlow’s, Inc. operates an electrical,
plumbing, and heating and air-conditioning installa-
tion business in Pocatello, Idaho. At 11:00 a.m. on
September 11, 1975, an OSHA inspector arrived at
Barlow’s to make a routine inspection of its work
areas,’ presented his credentials, and explained his
mission to Ferrol G. Bill“ Barlow, the company’s
president, who denied entry to the inspector because
he did not have a search warrant (A. 16-17). After
notice and hearing, the Secretary obtained a district
court order on December 30, 1975, which authorized
the entry for inspection purposes (J. S. App. A la-
2a).
On January 5, 1976, the inspector returned to Bar-
low’s and requested permission to inspect based on the
district court’s order. Permission was again denied,
and the next day appellee filed a complaint in the
United States District Court for the District of Idaho,
alleging that 29 U.S.C. 657(a) is inconsistent with the
The inspection was a general schedule” investigation—it was
not based on any employee complaint (29 U.S.C. 657 (f)), history
of past violations (29 U.S.C. 659(b), 666(d)), or other reason to
believe a violation was occurring at that particular location (J.S.
App. A 2a). Such general inspections, now called Regional Pro-
grammed Inspections, are carried out in accordance with criteria
based upon accident experience and the number of employees ex-
posed in particular industries. U.S. Department of Labor, Occupa-
tional Safety and Health Administration, Field Operations Man-
ual, supra, 1 CCH Employment Safety and Health Guide § 4327.2
(1976).
10
Fourth Amendment and seeking temporary and per-
manent injunctions against OSHA inspections. On
January 15, 1976, a single judge denied Barlow’s re-
quests for preliminary relief (J. S. App. A 3a).
A three-judge court was thereafter convened (J.S.
App. 3a). Relying on Camara v. Municipal Court, 387
U.S. 523, and See v. City of Seattle, 387 U.S. 541, the
district court held that the inspection provisions of 29
U.S.C. 657(a), which authorize warrantless inspec-
tions of the business establishments covered by the
Act, are unconstitutional as being violative of the
Fourth Amendment” (J. S. App. A 10a). The district
court rejected the applicability of this Court’s subse-
quent decisions in Colonnade Catering Corp. v.
United States, 397 U.S. 72, and United States v. Bis-
well, 406 U.S. 311, on the ground that those cases re-
spectively „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)” (J. S. App. A 7a). In so
ruling, the court followed the decision of another
three-judge district court in Brennan v. Gibson’s
Products Inc. of Plano, 407 F. Supp. 154 (E.D.
Tex.), appeal pending, C.A. 5, No. 76-1526 (J. S. App.
A Ta-9a).
However, unlike the court in Gibson’s Products, the
court below concluded that Section 8(a) of OSHA
could not be construed to require “that a warrant be
obtained before any inspection is undertaken“ (J. S.
App. A 10a). In this respect, the court stated that
11
„Congress was able * * * to employ language declaring
that a warrant must first be obtained * * * [but] did
not do so and we refuse to accept that duty” (J.S.
App. A 10a). The court therefore held OSHA to be
unconstitutional and permanently enjoined the Secre-
tary from conducting safety inspections pursuant to
29 U.S.C, 657(a), and specifically from inspecting ap-
pellee’s premises (ibid.).
On February 3, 1977, Mr. Justice Rehnquist stayed
the district court’s order except as it applied to ap-
pellee Barlow’s (A. 38-41) on the ground that “the
Act of Congress, presumptively constitutional as are
all such Acts, should remain in effect pending a final
decision on the merits by this Court” (A. 39).
SUMMARY OF ARGUMENT
I.
1. The Occupational Safety and Health Act of 1970,
29 U.S.C. 651 et seq., arose out of a congressional
finding that “the common law and other existing
remedies for work injuries resulting from unsafe
working conditions * * * [were] inadequate to protect
the Nation’s working men and women.“ Atlas Roofing
Co. v. Occupational Safety and Health Review Com-
mission, No. 75-746, decided March 23, 1977, slip op.
18. At issue in this case is the constitutionality of the
inspection provisions which are at the heart of the
enforcement of the safety and health standards estab-
lished under the Act. In order to insure compliance,
Congress has authorized representatives of the Secre-
12
tary of Labor, “upon presenting appropriate creden-
tials” “to enter without delay and at reasonable times
any factory * * * [ete.] * * * to inspect and investi-
gate during regular working hours and at other reas-
onable times, and within reasonable limits and in a
reasonable manner, any such place of employment and
all pertinent conditions” (29 U.S.C. 657(a)).
The language of the inspection provisions and the
pertinent legislative history establish that Congress
intended to grant the Secretary broad power to enter
whatever business establishments he might choose to
inspect and that the inspections were to be carried out
expeditiously with no advance notice. Thus, the statute
authorizes the Secretary to “enter without delay * * *
any factory [ete.]” (29 U.S.C. 657(a)) (emphasis sup-
plied) without any necessity to show cause to suspect
that a violation might exist. Since an employer often
can easily conceal hazardous working conditions, Con-
gress provided criminal sanctiòns against giving ad-
vance notice of any inspection. In Congress’ view, the
power to conduct prompt, unannounced inspections
would promote compliance with the Act despite the
Secretary’s limited personnel resources because em-
ployers would be motivated to maintain safe and
healthful working conditions against the everpresent
possibility of an inspection.
2. The decision of the three-judge district court that
the Secretary cannot conduct an inspection without
a search warrant frustrates the clearly articulated in-
tent of Congress and has no valid foundation in the
Fourth Amendment decisions of this Court. “The de-
13
cisions of this Court have time and again underscored
the essential purpose of the Fourth Amendment to
shield the citizen from unwarranted intrusions into
his privacy.” Jones v. United States, 357 U.S. 493,
498. Thus, whether a search or an inspection without a
warrant is constitutionally unreasonable depends upon
a determination whether the privacy interest at stake
is of such magnitude and the authorized entry so
significant an encroachment on that interest that the
interposition of a neutral and detached magistrate
should be required in the absence of exigent cireum-
stances to approve the search or the inspection.
Here, there is no significant privacy interest at
stake that calls for the imposition of the warrant re-
quirement. The areas and equipment within appellee’s
workplace that the Secretary seeks to inspect are
routinely occupied and used by appellee’s employees.
This critical fact serves to diminish appellee’s claims
of privacy with respect to the work areas of his busi-
ness premises, especially vis-a-vis the inspectors who
are charged with the responsibility of insuring the
health and safety of the employees whom appellee
has assigned to such areas. Indeed, the Secretary’s
specifically focused inspection of an employer’s work-
place during “regular working hours” when the em-
ployees are present (and would be free to report vio-
lations of the Act) can hardly be said to intrude upon
the employer’s right of privacy in the same degree
as would a search of his home, office, or person. Thus,
in important respects, in the case of an inspection
14
under the Occupational Safety and Health Act, the
invasion of privacy if it can be said to exist, is ab-
stract and theoretical.” Air Pollution Variance Board
v. Western Alfalfa Corp., 416 U.S. 861, 865.
3. This Court’s decisions in Camara v. Municipal
Court, 387 U.S. 523, and See v. City of Seattle, 387
U.S. 541, do not control this case. The privacy inter-
ests in Camara and See that resulted in the imposition
of a warrant requirement for local housing and fire
code inspections were both of a considerably greater
magnitude than appellee’s claim of privacy in this
case. Camara involved a personal residence, neces-
sarily implicating a core privacy interest. And while
See involved a commercial warehouse, “[t]he ware-
house * * * [was] maintained as locked premises and
* * * [was] inaccessible to anyone except the defend-
ant“ (408 P. 2d at 263). Although See held Fourth
Amendment protections applicable to commercial
premises, that decision did not preclude the use of
warrantless searches of such premises ‘‘[i]n the con-
text of a regulatory inspection system of business
premises that is carefully limited in time, place, and
scope“ * * [pursuant to] the authority of a valid
statute.” United States v. Biswell, 406 U.S. 311, 315.
Three considerations that were significant to the
Court’s decisions in Camara and See are absent in
this case. First, the Occupational Safety and Health
Act does not provide any sanction for simple refusal
to consent to an inspection. Second, a magistrate
would provide no meaningful safeguard in the present
15
context for an employer’s privacy interests because
the highly detailed provisions of the Act limit the in-
spector’s discretion to examination of the work areas
in order to determine the existence of occupational
hazards. There are accordingly no questions of fact or
discretion with respect to which the antecedent eval-
uation of a magistrate would be required or even
helpful to safeguard the privacy interests that are the
touchstone of the Fourth Amendment.
Finally, unlike the situation in Camara and See,
a warrant requirement would significantly impede the
effectuation of the purpose of the Occupational Safe-
ty and Health Act. This would be the case whether the
warrant need be sought only after access is refused or
prior to any attempt to inspect. If an employer could
refuse to permit an inspection without a warrant, his
refusal would provide him with the functional equiv-
alent of advance notice and he could often temporarily
conceal occupational hazards. Moreover, requiring the
Secretary to obtain a warrant in advance of each
inspection would impede enforcement of the Act by
imposing needless additional strain on the Secretary’s
limited resources to cover nearly five million work-
places with only 1,300 inspectors.
4. This case is governed by this Court’s analysis in
United States v. Biswell, supra. In upholding war-
rantless inspections as part of a comprehensive fed-
eral gun control program, the decision in Biswell
reflects the Court’s recognition that the gun inspec-
tion powers at issue were necessary to implement a
16
regulatory system in which important societal inter-
ests were at stake. 406 U.S. at 315-316. Congress has
similarly determined that the health and safety of the
Nation’s workers is of great public importance and
that unannounced inspections are essential to the en-
forceability of the statute. Here, as in Biswell, “the
prerequisite of a warrant could easily frustrate in-
spection; and if the necessary flexibility as to time,
scope, and frequency is to be preserved, the protec-
tions afforded by a warrant would be negligible’ (406
U.S. at 316). Where, as here, the areas to be inspected
are comprehensively regulated, inspectors know
with certainty’ that those areas contain regulated
working conditions and are “within the proper seope
of official scrutiny” (Almeida-Sanchez v. United
States, 413 U.S. 266, 271), and employers are “not
left to wonder about the purposes of the inspector or
the limits of his task“ (United States v. Biswell,
supra, 406 U.S. at 316), no warrant is required.
II.
Even if the Court should conelude that the Fourth
Amendment precludes warrantless safety inspections
of comprehensively regulated working areas, the dis-
trict court erred in declaring 29 U.S.C. 657(a) un-
constitutional and void’? (J.S. App. B lla) and
enjoining its enforcement. It should instead have fol-
lowed this Court’s rule that “under familiar prinei-
ples of constitutional adjudication, our duty is to
construe the statute, if possible, in a manner consist-
17
ent with the Fourth Amendment, Almeida-Sanchez
v. United States, supra, 413 U.S. at 272, and inter-
preted the statute to meet Fourth Amendment
requirements.
ARGUMENT
I. THE SECRETARY'S WARRANTLESS INSPECTION DURING REGULAR BUSI-
NESS HOURS OF THE PORTIONS OF COMMERCIAL PREMISES ROUTINELY
OCCUPIED BY AN EMPLOYER'S WORK FORCE, PURSUANT TO HIS
AUTHORITY UNDER THE OCCUPATIONAL SAFETY AND HEALTH ACT,
DOES NOT VIOLATE THE FOURTH AMENDMENT
This case presents the second constitutional chal-
lenge in this Court to a major federal statute
designed to guarantee safe and healthful working
conditions to the Nation’s workers in businesses
affecting interstate commerce. Last Term in Atlas
Roofing Co. v. Occupational Safety and Health
Review Commission, No. 75-746, decided March 23,
1977, the Court unanimously held that the Seventh
Amendment did not prohibit Congress from creating
a new cause of action in the government for civil
penalties for violations of the Occupational Safety
and Health Act of 1970, 29 U.S.C. 651 et seq., and
assigning the adjudication of such violations to an
administrative agency where there is no jury trial.
As the Court stated, “Congress is not required by
the Seventh Amendment to choke the already crowded
federal courts with new types of litigation nor pre-
vented from committing some new types of litigation
to administrative agencies with special competence
in the relevant field“ (slip op. 12).
18
In so holding, the Court recognized that the genesis
of the Act was the congressional finding that “the
common law and other existing remedies for work
injuries resulting from unsafe working condi-
tions * * [were] inadequate to protect the
Nation’s working men and women” (slip op. 18). See
29 U.S.C. 651. The Act therefore authorizes the Secre-
tary of Labor “to set mandatory occupational safety
and health standards” (29 U.S.C. 651(3), 655) and
creates a new statutory duty for employers to furnish
employment and a place of employment that are “free
from recognized hazards” and to comply with occu-
pational safety and health standards promulgated”’
by the Secretary (29 U.S.C. 654(a)(1) and (2)).
The issue here is the constitutionality of the in-
spection provisions which are at the heart of the
enforcement of the safety and health standards estab-
lished under the Act. In order to insure compliance
with the statutory standards, Congress authorized
representatives of the Secretary of Labor to conduct
reasonable safety and health inspections. Pursuant
to 29 U.S.C. 657(a), the OSHA inspectors, upon pres-
entation of their identifying credentials, are em-
powered to enter places of employment “without delay
and at reasonable times” for the purpose of inspect-
ing “during regular working hours and at other
reasonable times, and within reasonable limits and in
a reasonable manner” such places and all pertinent
conditions. If a violation is discovered, the Secretary
issues a citation to the employer fixing a reasonable
19
time for its abatement and, in his discretion, propos-
ing a civil monetary penalty. See 29 U.S.C. 658, 659.
There is no statutory requirement that the Sec-
retary’s representatives obtain a search warrant in
order to inspect an employer’s workplace. The ques-
tion presented is whether the warrantless inspections
authorized by the statute are compatible with the
Fourth Amendment’s guarantee against “unreason-
able searches and seizures.” It is our submission that
the safeguards contained in the Act for the conduct
of such inspections are sufficient to meet Fourth
Amendment requirements in light of the limited
nature of an employer’s privacy interest in the por-
tions of his premises routinely occupied by his em-
ployees. As we shall show, that interest is not suffi-
cient to override a specific congressional authoriza-
tion, made to further comprehensive regulation of
employees’ working conditions, where the possibili-
ties of abuse and the threat to privacy are not of
impressive dimensions.
A. The Act authorizes reasonable warrantless in-
spections in order to effectuate the congressional
purpose of preventing an employer from concealing
safety and health hazards
1. The language of the Act establishes beyond
question that Congress intended to grant the Secre-
tary broad power to enter whatever covered business
establishments he might choose to inspect and that the
inspections be carried out expeditiously with no ad-
20
vance notice. The inspection provision authorizes the
Secretary to “enter without delay * * * any factory
(29 U.S.C. 657(a); emphasis supplied) with-
out any necessity to show cause to suspect that a
violation might exist.“ Furthermore, the Act’s provi-
sions show that, in view of the ease with which
hazardous working conditions might be temporarily
concealed or ameliorated, Congress regarded surprise
as a critical element of the Secretary’s authority
under the Act to conduct routine spot inspections.
The statutory preamble specifically recognizes that, as
an important aspect of “an effective enforcement
program,“ the Act contains “a prohibition against
giving advance notice of any inspection and sanctions
for any individual violating this prohibition” (29
U.S.C. 651(10) ).”
* See also 29 U.S.C. 667 (e) (3), which specifies that state plans
submitted to the Secretary establish “a right of entry and inspec-
tion of all workplaces subject to this chapter which is at least as
effective as that provided in * * * [29 U.S.C. 657 (a) ].“
The Act also provides a procedure for an employee to file a com-
plaint with the Secretary alleging a violation within his place of
employment. If the Secretary concludes that there are reasonable
grounds to believe that the alleged violation exists, “he shall make
a special inspection * * * as soon as practicable, to determine if
such violation or danger exists” (29 U.S.C. 657(f)). See also 29
C. F. R. 1903.11.
»The eriminal penalty for giving such advance notice of an in-
spect ion is a tine of $1,000, a maximum prison term of six months,
or both (29 U.S.C. 666(f) ).
There are four exceptions to the prohibition against giving
advance notice of inspection: (1) in cases of apparent imminent
danger, to enable the employer to abate the danger as quickly as
21
The congressional directive that inspections
be conducted without delay and the prohibition
against giving advance notice of an inspection are
designed to prevent an employer from concealing vio-
lations from the inspector’s scrutiny. As the Eighth
Cireuit stated in Usery v. Godfrey Brake and Supply
Service, supra, 545 F. 2d at 55: “[P]rompt, unan-
nounced inspections are an important element in
enforcement of this Act. * * * Undoubtedly the pro-
vision for entry ‘without delay,’ like the advance
notice provision, prevents subversion of the program
and encourages consistent compliance.”
The statutory language is reinforced by the per-
tinent legislative history. The Senate Committee on
Labor and Public Welfare Report (S. Rep. No. 91-
1282, 91st Cong., 2d Sess. 11 (1970)) stated that i jn
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 employing estab-
lishment.” Accord: H.R. Rep. No. 91-1291, 91st Cong.,
2d Sess. 22 (1970). Moreover, during the House floor
debates, Representative Steiger, the co-sponsor of the
Act, explained: In general, it is our intent
possible; (2) where the inspection can most effectively be con-
ducted after regular business hours or where special preparations
are necessary for an inspection; (3) where necessary to assure the
presence of representatives of the employer and employees needed
to aid in the inspection; and (4) where the Area Director deter-
mines that advance notice would enhance the probability of an
effective and thorough inspection. See 29 C. F. R. 1903.6.
239 892—77——_3
22
that the Federal inspector should gain entry to a
business or workplace with an absolute minimum of
delay.” The inspector was not to be compelled “to
wait an inordinate amount of time” or to “give up
and go hack to his office.“ Leg. Hist. 1076. Finally, the
House Committee on Education and Labor empha-
sized the crucial element of surprise in the execution
of the inspections, stating that (H.R. Rep. No. 91-
1291, supra, at 26-27) “[e]ssential to the effective
enforcement of this Act is the premise that employers
will not be forewarned of inspections of their plants.
Experience under the Walsh-Healey Act has indicated
that the practice of advance notice to an employer has
been a prime cause of the breakdown in that statute’s
enforcement provisions.“
2. The decision of the district court that an OSHA
inspection cannot be conducted without a search war-
rant would thus frustrate the clearly articulated in-
tent of Congress to provide for flexible representative
inspections “without delay’’ of the working conditions
of the Nation’s employees. N othing in the language of
the Act or in its legislative history in any way sug-
gests that the Secretary’s inspectors are required
to obtain a search warrant as a prerequisite to gain-
ing entry to the portion of a regulated business es-
tablishment occupied by the employer’s work force.“
Every bill that was introduced in either house granted inspec-
tion powers to the Secretary that were cast in terms similar to
those set forth in Seet ion 8(a) of the Act. See, e. 9., S. 2193, 91st
Cong., Ist Sess., Sec. 5(a) (1969), Leg. Hist. 10-11 (Williams
bill); S. 2788, 91st Cong., Ist Sess., See. 6(a) (1969), Leg. Hist.
46 (Javits bill); S. 4404, 91st Cong., 2d Sess., Sec. 9(a) (1970),
Indeed, the district court acknowledged as much in
stating that [e lertainly, Congress was able, had it
wished to do sd, to employ language declaring that
a warrant must first be obtained, the procedures under
which it is to be obtained, and other necessary regu-
lations“ (J.8. App. A 10a).
Moreover, there can be no doubt that the OSHA
inspector who sought entry into appellee’s business
premises fully complied with the statutory standards
governing inspections and the Secretary’s regulations
promulgated thereunder. He arrived at appellee’s
place of business at 11 a.m.—‘‘during regular work-
ing hours” (29 U.S.C. 657 (a) (2)) —and presented his
credentials which identified him as a representative
of the Secretary (29 U.S.C. 657(a)). He then re-
quested permission from appellee’s president to enter
the company’s worksite, and advised him of the per-
tinent statutory authority for such inspection (29
C.F.R. 1903.7(a), (e), and (d)). Thus, the sole basis
for appellee’s denial of permission to enter by the
OSHA inspector was that the inspector ‘‘did not possess
a Warrant and that it was * * * [appellee’s] right as a
citizen to due process and that a Warrant was neces-
sary before he would permit * * * [the inspector] to
make the inspection” (A. 17). We submit that the
district court’s acceptance of appellee’s constitutional
claim reflects a serious misapprehension of the
Fourth Amendment jurisprudence of this Court.
Leg. Hist. 92 (Dominick bill); H.R. 3809, 91st Cong., Ist Sess.,
Sec. 5(a) (1969), Leg. Hist. 688-639 (O Tlara bill); H.R. 13373,
91st Cong., Ist Sess., Sec. 6(a) (1969), Leg. Hist. 694 (Ayres bill).
24
B. The fundamental policy of protection of privacy
interests embodied in the Fourth Amendment would
not be meaningfully advanced by adoption of a war-
rant requirement for the Secretary’s routine inspec-
tion of work areas of commercial premises under
the Occupational Safety and Health Act
The Fourth Amendment imposes two separate, al-
though related, limitations upon searches and seizures.
The first clause of the Amendment “is general and
forbids every search that is unreasonable.” Go-Bart
Importing Co. v. United States, 282 U.S. 344, 357. The
second clause places a number of restrictions upon the
issuance and character of warrants. Although the
Amendment itself does not indicate the interrelation
between the two clauses, the Court has stated on a
number of occasions that ‘‘except in certain carefully
defined classes of cases, a search of private property
without proper consent is ‘unreasonable’ unless it has
been authorized by a valid search warrant.’’ Camara
v. Municipal Court, 387 U.S. 523, 528-529. See also
Cady v. Dombrowski, 413 U.S. 433, 439; United
States v. United States District Court, 407 U.S. 297,
314-321; Coolidge v. New Hampshire, 403 U.S. 443,
454-455; Kalz v. United States, 389 U.S. 347, 357. It
was on this statement in Camara that the district
court relied in holding that warantless OSHA inspec-
tions by representatives of the Secretary are barred
by the Fourth Amendment (see J. S. App. A Za-Ga).
Contrary to the district court’s conclusion, this
case is not controlled by Camara v. Municipal Court,
387 U.S. 523, and See v. City of Seattle, 387 U.S. 541.
25
While the Court applied a warrant requirement in
those cases in the context of administrative inspec-
tions, their rationale does not extend to the federal
regulatory statute at issue here. As we shall show, this
ease is governed by the analysis in the Court’s subse-
quent decisions in Colonnade Catering Corp. v.
United States, 397 U.S. 72, and United States v.
Biswell, 406 U.S. 311, which explained the basis of its
prior rulings in Camara and See and upheld the con-
stitutionality of properly limited warrantless inspec-
tions under closely similar federal regulatory
statutes.
1. “The ultimate standard set forth in the Fourth
Amendment is reasonableness.” Cady v. Dombrow-
ski, supra, 413 U.S. at 439. See also South Dakota v.
Opperman, 428 U.S. 364, 372-373. Whether a search
or seizure is reasonable within the meaning of the
Fourth Amendment depends “upon the facts and eir-
cumstances of each case” (Cooper v. California, 386
U.S. 58, 59) and “the context in which [the Fourth
Amendment right] is asserted” (Terry v. Ohio, 392
U.S. 1, 9). And, as the Court explained in Warden
v. Hayden, 387 U.S. 294, 305-306, the primary object
of the Fourth Amendment is the protection of privacy
rather than proprietary rights. “The decisions of
this Court have time and again underscored the
essential purpose of the Fourth Amendment to shield
the citizen from unwarranted intrusions into his
privacy.” Jones v. United States, 357 U.S, 493, 498.
See also Schmerber v. California, 384 U.S. 757,
169-770; Katz v. United States, 389 U.S. 347, 350;
United States v. Dionisio, 410 U.S. 1, 14-15. But not
all governmental intrusions are of equal magnitude or
demand the identical degree of protection. Rather,
each such intrusion must be tested by its justifica-
tion and by the significance of the privacy interests
involved. South Dakota v. Opperman, supra, 428
U.S. at 377-378 (Powell, J., coneurring).
Thus, whether a search or an inspection without
a warrant is per se unreasonable (in the absence of
exigent circumstances) depends upon a determina-
tion whether the privacy interest at stake is of such
magnitude that the iterposition of a neutral and de-
tached magistrate should be required to authorize the
search or the inspection. As the Court has stated,
“there can be no ready test for determining reason-
ableness other than by balancing the need to search
against the invasion which the search entails.”
Camara v. Municipal Court, supra, 387 U.S. at 536-
537.
Accordingly, while the Court has held that “the
Constitution requires a magistrate to pass on the
desires of the police before they violate the privacy
of [a man's] home“ (McDonald v. United States, 335
U.S. 451, 455-456), it has sustained the validity of
warrantless searches or seizures in other contexts
where core privacy interests are not similarly impli-
cated. For example, the Court has expressly declined
to impose a warrant requirement on otherwise reason-
able searches of automobiles. See, e. g., Carroll v.
27
United States, 267 U.S. 132, 149; Chambers v. Ma-
roney, 399 U.S. 42, 49; Cardwell v. Lewis, 417 U.S.
583, 589-591. The Court has recognized that its dis-
parate treatment of automobiles and personal resi-
dences no longer rests narrowly upon the fact that
vehicles are mobile and dwellings are not. Cady v.
Dombrowski, supra, 413 U.S. at 441-442. Rather, the
distinction proceeds from the premise that “[o]ne has
a lesser expectation of privacy in a motor vehicle be-
cause its function is transportation and it seldom
serves as one’s residence or as the repository of per-
sonal effects.” Cardwell v. Lewis, supra, 417 U.S. at
590. See also United States v. Martinez-Fuerte, 428
U.S. 543, 565; United States v. Ortiz, 422 U.S. 891,
896 n. 2; South Dakota v. Opperman, supra, 428 U.S.
at 367. Cf. United States v. Chadwick, No. 75-1721,
decided June 21, 1977.
As in the cases involving automobile searches, the
limited statutory inspection program at issue here
does not implicate significant privacy interests calling
for the imposition of the warrant requirement. We
do not mean to suggest that a commercial building
is the functional equivalent of an automobile for
purposes of the Fourth Amendment or that the ra-
tionale of the automobile search cases is freely trans-
ferable to searches of other types of property. Indeed,
the Court has included commercial premises such as
a private office within the protections of the warrant
requirement. See G. M. Leasing Corp. v. United States,
No. 75-235, decided January 12, 1977, slip op. 14, 19;
Mancusi v. DeForte, 392 U.S. 364. But under the
criterion of privacy that is the touchstone of the
Court’s Fourth Amendment decisions, not all areas
within a commercial building are entitled to the same
degree of constitutional protection. For example, no
one would suggest that law enforcement officers would
need a warrant to enter during business hours the
public areas of a store that are open to customers.
For, as this Court has observed, ‘‘[w]hat a person
knowingly exposes to the public, even in his own home
or office, is not a subject of Fourth Amendment pro-
tection.” Katz v. United States, supra, 389 U.S. at
351; United States v. Dionisio, supra, 410 U.S. at 14.
See also Colonnade Catering Corp. v. United States,
397 U.S. 72, 78 (Burger, C.J., dissenting).
Conversely, the contents of drawers, cabinets and the
like, whether they are in a private residence or in a
commercial building, are generally protected against
warrantless inspection by the State. Moreover, the
Court has applied the warrant requirement to a search
of a double- locked footlocker seized upon the arrest of
the owner in a public place. The Court there viewed
the owner’s placing of his personal effects in such a
receptacle as manifesting an expectation that the con-
tents would remain free from public examination.
United States v. Chadwick, supra, slip op. 9.
However, a was the case with the warrantless
searches of the exterior of an automobile and of the
glove compartment of an impounded vehicle that the
Court respectively upheld in Cardwell v. Lewis, supra,
and South Dakota v. Opperman, supra, there are
areas of a commercial building in which the owner
does not have a significant expectation of privacy
from reasonable, limited-purpose inspections during
business hours. When such a limited privacy interest
is at stake and when the conduct of law enforcement
officers does not touch upon interests that implicate
„the essential purpose of the Fourth Amendment”
(Jones v. United States, supra, 357 U.S. at 498), there
is no necessity to invoke the most stringent protections
of the Amendment. United States v. Martinez-Fuerte,
supra, 428 U.S. at 564-565. While the work areas of a
conventional factory housing a legitimate business
enterprise may be closed to the general public (cf. Air
Pollution Variance Board v. Western Alfalfa Corp,
supra, 416 U.S. at 865), their routine occupation by
the owner’s employees and the frequent visits by those
outside parties who deliver materials for the conduct
of the enterprise effectively diminish any claim of
privacy by the factory owner with respect to such
areas—especially vis-a-vis inspectors whose mission is
to insure the health and safety of the very employees
whom the owner has assigned for his profit to the
areas at issue. Cf. Clarkson Construction Co. v. Oc-
cupational Safety and Health Review Commission,
531 F.2d 451, 458 (C.A. 10).
Simply put, the Act guarantees to these employees
that they will be able to perform their labor in a
safe and healthful environment, and the employer
cannot assert his ownership interest in the premises
to bar the way of the inspector assigned to assure
the observance of that guaranty. As the Court stated
239-892—77—_4
30
more than 30 years ago in rejecting an analogous
“property right” claim in Marsh v. Alabama, 326
U.S. 501, 506 “The more an owner, for his advantage,
opens up his property for use by the publie in gen-
eral, the more do his rights become cireumseribed by
the statutory and constitutional rights of those who
use it.” Cf. Republic Aviation Corp. v. National
Labor Relations Board, 324 U.S. 793, 798, 802 n. 8;
Central Hardware Co. v. National Labor Relations
Board, 407 U.S. 539, 547; Lloyd Corp. v. Tanner, 407
U.S. 551, 563; Hudgens v. National Labor Relations
Board, 424 U.S. 507, 521-523.
The foregoing analysis supports the reasonableness
of the warrantless inspections of commercial premises
authorized by the Occupational Safety and Health Act
of 1970. Pursuant to the statute, the Secretary of La-
bor is empowered to inspect “during regular working
hours and at other reasonable times, and within rea-
sonable limits and in a reasonable manner, any such
place of employment and all pertinent conditions,
structures, machines, apparatus, devices, and ma-
terials therein“ (29 U.S.C. 657(a)(2)). Thus, the
Act prescribes a regulatory inspection system that is
limited in time, place and scope. Since an employer's
work force routinely occupies the areas and uses the
equipment that the Secretary is authorized to inspect,
and since the employees (who are the Act's intended
beneficiaries) may freely observe and report any vio-
lation,” the Secretary’s inspection of those areas and
* Cf. United States v. Miller, 425 U.S. 435, 442 (holding that a
depositor lacks a Fourth Amendment interest in bank records con-
31
items during regular working hours” when the em-
ployees are present can hardly be said to intrude
upon the employer’s right of privacy in the same de-
gree as would a search of his home, office or person.
Indeed, one court of appeals has characterized the
violations that an OSHA officer discovered during a
routine inspection—“ungrounded machines, lack of
color coating on the fire extinguishers, ete.—* * * [as]
in plain, obvious view.“ Lake Butler Apparel Co. v.
Secretary of Labor, 519 F. 2d 84, 88 (C. A. 5). As that
court further stated, “There was no search here of
drawers or other sequestered areas. For that reason
** * [the employer] may not rely on the Camera/See
precedent”’ (ibid.). Cf. Bloomfield Mechanical Con-
tracting, Inc. v. Occupational Safety and Health Re-
view Commission, 519 F. 2d 1257, 1263 (C.A. 3). Ac-
cord: Youghiogheny and Ohio Coal Co. v. Morton,
364 F. Supp. 45, 51 (S. D. Ohio) (three-judge court)
(Coal Mine Health and Safety Act of 1969). Thus, in
important respects, in a routing OSHA inspection of
an employer’s workplace, the invasion of privacy “if it
can be said to exist, is abstract and theoretical.” Air
Pollution Variance Board v. Western Alfalfa Corp,
supra, 416 US. at 865.
taining “information voluntarily conveyed [by him] to the banks
and exposed to their employees in the ordinary course of busi-
ness”). See also Couch v. United States, 409 U.S. 322, 335. And
see, ¢.g., United States v. Matlock, 415 U.S. 164, 170 (“the consent
of one who possesses common authority over premises or effects is
valid as against the absent nonconsenting person with whom that
authority is shared”).
32
2. The district court erred, we submit, in concluding
that this Court’s prior decisions involving adminis-
trative inspections require invalidation of warrantless
inspections under the Occupational Safety and Health
Act of 1970. In Camara v. Municipal Court, 387 U.S.
523, the Court held that the Fourth Amendment bar-
red criminal prosecution of one who refused to permit
a warrantless housing code inspection of his personal
residence. The companion decision in See v. City of
Seattle, 387 U.S. 541, extended this rule to a similar
fire code inspection of a locked commercial ware-
house not used as a residence.
To begin with, the privacy interests asserted in
Camara and See that resulted in the imposition of a
warrant requirement were both of a considerably
higher magnitude than appellee’s claim of privacy in
this case. Camara involved a personal residence, nec-
essarily implicating a core privacy interest. See
United States v. Martinez-Fuerte, 428 U.S. 543, 564
656. Cf. United States v. Chadwick, supra, And while
See involved a commercial warehouse, It jhe ware-
house * * * [was] maintained as locked premises
and * * * [was] inaccessible to anyone except the
defendant” (408 P. 2d at 263). Although See held
Fourth Amendment protections applicable to com-
mercial premises, that decision did not preclude the
use of warrantless searches of such premises i ln
the context of a regulatory inspection system of busi-
ness premises that is carefully limited in time, place,
and scope * * * [pursuant to] the authority of a valid
statute.” United States v. Biswell, supra, 406 U.S. at
315. Here, the OSHA inspector sought to examine dur-
ing business hours only that portion of appellee’s
business premises that was routinely occupied by its
employees in the course of the performance of their
duties, for purposes of a statutorily authorized inspec-
tion that was also “carefully limited in * * scope.
The Court’s opinions in Camara and See indicate
that three considerations were important to its deter-
minations that warrants were constitutionally required
in those inspection contexts. First, that “refusal to
permit an inspection * * * [was] itself a crime, pun-
ishable by fine or even by jail sentence” and that
“only by refusing entry and risking a criminal con-
viction can the occupant * * challenge the inspec-
tor's decision to search” (387 U.S. at 531, 532). See-
ond, the Court found that the warrant process would
provide meaningful safeguards for the occupant by
requiring the official to justify the need for the in-
spection and show that it was within the lawful limits
of his authority. As the Court stated in See, the war-
rant process would insure that ‘‘the decision to enter
* * * will not be the product of the unreviewed discre-
tion of the enforcement officer in the field” (387 U.S.
at 545; footnote omitted). Finally, the Court observed
in Camara that “‘[i]t has nowhere been urged that fire,
health, and housing code inspection programs could
not achieve their goals within the confines of a rea-
sonable search warrant requirement” (387 U.S. at
533). Without such a showing, the Court rejected the
city’s argument that the public interest justified war-
rantless housing code searches.
34
These three considerations upon which Camara
and See turned are absent in this case involving
warrantless inspections under a detailed federal
regulatory statute. As we have pointed out supra,
p. 8, the Occupational Safety and Health Act of
1970 doe. not provide any sanction for simple refusal
to consent to an inspection.” Pursuant to 29 C.F.R.
1903.4, the Secretary “shall promptly take appropri-
ate action, including compulsory process, if neces-
sary” authorizing entry if the inspector is initially
refused entry. Thus, under the Secretary’s regula-
tions, the inspection system established by the Act
contemplates neither physical force nor criminal pro-
ceedings against a recalcitrant employer but provides
for the initiation of legal process to compel
compliance.”
Moreover, unlike the situation in Camara and See,
a requirement of search warrants for the Secretary’s
routine “general schedule” OSHA inspections would
provide no meaningful safeguard for an employer’s
However, Section 17 (h) of OSHA amended 18 U.S.C. 1114 to
include OSHA inspectors within its protection. And 18 U.S.C. 111
subjects to criminal liability one who “forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with any person desig-
nated in [18 U.S.C. 1114] while engaged in or on account of the
performance of his official duties * * *.” See United States v.
Camp, 541 F. 2d 737, 739 (C. A. 8).
The Court has subsequently indicated that the existence of
criminal penalties for refusal to permit entry to a federal liquor
inspector does not demand the conclusion that a warrant is re-
quired. See Colonnade Catering Corp. v. United States, 397 U.S.
72, which we discuss at pp. 42-43, infra,
35
privacy interests in addition to those provided by the
Act and regulations themselves. In Camara, the
Court observed that “when the inspector demands
entry, the occupant has no way of knowing * * *
the lawful limits of the inspector's power to
search, and no way of knowing whether the inspector
himself is acting under proper authorization” (387
U.S. at 532). In the Court’s view, [t jhese are ques-
tions which may be reviewed by a neutral magistrate
without any reassessment of the basic agency decision
to canvass an area” (ibid.).
But there is no comparable function for a magis-
trate to perform in an OSHA inspection. Pursuant to
the Act, the Secretary is authorized only “to in-
spect * * * any * * * place of employment and all
pertinent conditions, structures * * * there-
in * “ for unsafe working conditions. The
statute further confines the scope of the Secretary's
inspection power to “regular working hours and at
other reasonable times, and within reasonable limits
and in a reasonable manner *” (29 U.S.C. 657
(a)(2)) and directs the inspector to present “‘appro-
priate credentials to the owner, operator, or agent in
charge (29 U.S.C. 657(a)) prior to his entry on
the premises. Finally, the regulations direct the in-
spector to explain the nature and purpose of his
visit (29 C.F.R. 1903.7).
In these circumstances, the employer cannot claim
that he has ‘‘no way of knowing whether enforcement
of * * * [the Act] requires inspection of his premises”
(387 U.S. at 532).“ Moreover, since the essence of the
general schedule 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 find-
ing of probable cause for inspection would be largely
irrelevant.” Likewise, the Act limits the inspector’s
a The Act requires an employer to be familiar with its detailed
application to this workplace. See 29 U.S.C. 654(a), 657(e),
666 (j); 29 C.F.R. 1903.7 (e), Part 1904; Ames Crane & Rental
Servioe v. Dunlop, 532 F. 2d 123 (C. A. 8); Brennan v. Butler
Lime d Cement Co., 520 F. 2d 1011, 1016-1018 (C. A. 7); Aceu-
Namics, Ine. v. Occupational Safety and Health Review Com-
mission, 515 F. 2d 828, 835 (C. A. 5), certiorari denied, 425 U.S.
903. See, generally, National Realty and Construction Co., Inc. v.
Occupational Safety and Health Review Commission, supra, 489
F. 2d at 1265-2167 nn. 34-38.
For example, we are advised by the Department of Labor
that a new plant or process is frequently more hazardous than an
established industrial activity. Moreover, the “passage of time”
(387 U.S. at 538) since the last inspection is not a useful criterion,
especially where only a minute percentage of the Nation’s work-
places has ever been inspected. See p. 40, and note 21, infra.
Since the Secretary is directed to conduct general schedule inspec-
tions in order to establish enforcement of the Act on a representa-
tive basis, there would be no factual questions for a magistrate to
resolve. Cf. S. Rep. No. 91-1282, supra, at 12; Leg. Hist. 152.
Probable cause for inspections based on fatality reports or em-
ployee complaints could be established by submitting to the magis-
trate the fatality report prepared by the employer (29 C.F.R.
1904.8) or the employee complaint, which must in any event be
presented to the employer at the time of the inspection (29 U.S.C.
657 (f) (1)). But the warrant procedure in these cases would pro-
vide the employer with no more information concerning the rea-
sonableness of the inspection than he is already provided by
statute and regulation. See United States ex rel. Terraciano v.
Montanye, 493 F. 2d 682, 685 (C. A. 2), Certiorari denied sub nom.
Terraciano v. Smith, 419 U.S. 875. Moreover, we are advised by
the Department of Labor that the data derived from its informa-
tion retrieval system show that random general schedule inspec-
tions result in a higher percentage of discovered violations than
those triggered by complaints or fatality reports.
37
discretion to search to the scope necessary to identify
occupational hazards and the inspector’s presentation
of appropriate credentials” serves to confirm that he
is acting under proper authorization. Thus, the pro-
cedures established by the Act answer the critical
questions of seope and authority identified by the
Court in Camara as requiring determination by!
magistrate.” See United States v. Martinez-Fuerte,
supra, 428 U.S. at 565. There are accordingly no
questions of fact or discretion in an OSHA inspection
with respect to which the antecedent evaluation of a
magistrate would be required or even helpful to safe-
guard the privacy interests that are the touchstone of
the Fourth Amendment. See South Dakota v. Opper-
man, supra, 428 U.S. at 382-383 (Powell, J., concur-
ring). Cf. United States v. Chadwick, supra, slip op.
7-8; G.M. Leasing Corp. v. United States, supra, slip
op. 18.
Finally, unlike the situations in Camara and See, a
warrant requirement would significantly impede the
enforcement of the Occupational Safety and Health
Act. This would be ithe case whether the warrant need
1° If the employer questions the authority of the inspector, he
may confirm the inspector’s identify and authorization by means
of a toll-free call. See p. 8, note 5, supra, Thus, there is no sub-
stantial threat of “criminal entry under the guise of official sanc-
tion” (Camara v. Municipal Court, supra, 387 U.S. at 531).
„Moreover, the scheduling of OSHA inspections is not a matter
left to “the discretion of the enforcement officer in the field.” See,
supra, 387 U.S. at 545. Inspections are scheduled by the Secretary's
Assistant Regional Directors and Area Directors pursuant to
policy guidance set forth in Chapter IV of the Secretary’s Field
Operations Manual for the administration of the Act. See 10011
Employment Safety and Health Guide 7 4327.2 (1976) and p. 9, n.
7, supra.
38
be sought only after access is refused, as in Camara, or
prior to any attempt to inspect. As this Court noted
in See v. City of Seattle, supra, 387 U.S. at 545 n. 6,
surprise may often be a crucial aspect of routine in-
spections of business establishments.” Here, by pro-
hibiting advance notice of inspections, Congress recog-
nized that any significant delay once the inspector
arrived would seriously lessen the effectiveness of
the inspection system.”
** Because of the potential importance of the element of surprise,
the Court in See left open the question whether warrants to inspect
business premises may be issued only after access is refused. With
respect to business premises, the Court stated that “the reasonable-
ness of warrants issued in advance of inspection will necessarily
vary with the nature of the regulation involved and may differ
from standards applicable to private homes” (387 U.S. at 545 n.
6).
Representative Steiger, the co-sponsor of the Act, recently
described the problems that would ensue if a warrant requirement
were imposed on OSHA inspections. He stated (123 Cong. Ree.
H163 to H164 (daily ed., January 6, 1977) ) :“* * * [I]t is of course
true that any order restricting OSHA's ability to inspect harms
safety and health enforcement, since the right to make unan-
nounced inspections is the cornerstone of the act.
* * * * *
“* * Warrantless civil inspections are both absolutely essen-
tial to this act’s enforcement and a longstanding Federal practice.
And the fact remains that any requirement which would
permit employers to turn inspectors away during lengthy war-
rant proceedings, thus securing time to temporarily conceal or
“clean up” safety and health hazards, would make this carefully-
considered scheme virtually powerless to reach many injurious
working conditions.
“This is especially true because the effect of any employer’s in-
sistence on a warrant would rapidly multiply, since his competi-
tors would also be forced to refuse to permit inspections. Other-
wise they would be saddled with safety costs their competition
could easily evade.
It Congress cannot regulate safety and health without
such restrictions, it cannot really regulate at all.”
If an employer could nonetheless gain delay by re-
fusing to permit an inspection without a warrant, his
refusal would provide him with the functional equiva-
lent of advance notice. As a result, he often could
easily conceal hazardous working conditions during
the interval between refusal and issuance of the
warrant.”
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 deteriorate again
after inspection. Cf. 29 C.F.R. 1910.107. Employers who have
allowed employees to work in unshored trenches, 29 C. F. R.
1926.652(a) and (b), or without protective hard hats, safety belts,
respirators, ear plugs, guard rails, or foot protection, 29 C. F. R.
1910.23, 1910.95(b) (1), 1910.132-19 10.136; 29 C. F. R. 1926.28 (a),
1926.104-1926.105, 1926. 500, may quickly require use of such equip-
ment; then rescind or ignore such orders to reduce expenses or in-
crease production, Cf., e. g., I. T. O. Corp. of New England v.
Occupational Safety and Health Review Commission, 540 F. 2d
543 (C.A.1); C. N. Flagg & Co., OSHRC No. 1734, 11 OSHARC
Rep. 682, affirmed without opinion, 538 F. 2d 308 (C. A. 2). Guards
to prevent amputations from work with hazardous machines, e.g.,
29 C. F. R. 1910.212, 1910.217, may be turned off or by-passed by in-
dividual operators—a common production practice noted in the
legislative history itself. See e.g., Leg. Hist. 401-402 (Sen. Saxbe).
And since proof of correctable violations inter alia requires a show-
ing that workers had access to hazardous machines or areas, ¢.¢.,
Brennan v. Gilles d Cotting, Ino., 504 F. 2d 1255, 1263-1266 (C. A.
4), on remand, 1975-1976 CCH OSHD 20,448 (decided Febru-
ary 20, 1976) (not yet officially reported), successful enforcement
proceedings may be blocked with relative ease by temporarily dis-
connecting machines or barricading such areas, if advance notice
of an inspector’s arrival is obtained.
The fact that current agency regulations (29 C. F. R. 1903.4)
provide that the Secretary will, as a matter of self-restraint, ob-
tain a court order if the inspector is initially refused entry Joes
(Continued)
40
The alternative of routinely obtaining an ex parte
warrant before attempting an inspection would also
create substantial difficulties for enforcement of the
Act. Until the decision below, most employers will-
ingly consented to inspections without a warrant. The
Act covers nearly 65 million workers engaged in their
respective labor in approximately five million work-
places,” and the Secretary is currently conducting
more than 80,000 inspections yearly with only 1,300
inspectors.” In these circumstances, requiring inspec-
tors to obtain a warrant before each inspection would
not detract from our argument that a warrant requirement would
interfere with the administration of the Act. Given the broad
reach of the statute, there is no meritorious ground upon which an
employer can refuse entry to the inspector. See Matter of Restland
Memorial Park, 540 F. 2d 626 (C.A. 3) (business not entitled to
judicial determination whether it is an employer “affecting com-
merce” prior to OSHA inspection). While an employer may,
under the Secretary’s regulations, claim an alleged right to refuse
entry to an inspector and thereby put him to the burden of seek-
ing a court order to enforce his statutory right of entry, a decision
by this Court that no warrant is required would presumably reduce
an employer’s incentive to do so.
* See the President's Report to the Congress on Occupational
Safety and Health for 1973, pp. 57-60 (1975). There have been ap-
proximately 400,000 inspections conducted since the effective date
of the Act in April 1971. However, we are advised by the Depart-
ment of Labor that many of these inspections were follow-up
visits to confirm abatement of previously-cited hazards. See, ¢.g.,
29 U.S.C. 659(b). Thus, the Secretary has in fact inspected far
fewer than 400,000 workplaces.
* Congress repeatedly stated its awareness that inspectors quali-
fied to enforce the Act would be in critically short supply for an
indefinite time. .., S. 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. No. 91-1765, 91st Cong., 2d Sess.
87 (1970), Leg. Hist, 1190.
41
place an unwarranted burden on limited judicial and
enforcement resources, creating needless delays in
implementing inspections, to the detriment of the
Act’s basic purpose of assuring the swiftest possible
abatement of occupational hazards. See Brennan v.
Winters Battery Mfg. Co., 531 F.2d 317, 322-323
(C. A. 6), certiorari denied sub nom. Winters Battery
Mfg. Co. v. Usery, 425 U.S. 991. Cf. Atlas Roofing
Co. v. Occupational Safety and Health Review Com-
mission, supra, slip op. 12; National Independent Coal
Operators’ Association v. Kleppe, supra, 423 U.S. at
401.
3. In light of the above, this case is not controlled
by Camera or See. Instead, it is governed by the
analysis of United States v. Biswell, supra. There, the
Court held that a warrantless search of a locked com-
mercial storeroom as part of a federal gun control
program authorized by 18 U.S.C. 923(g), which re-
sulted in the seizure of unlicensed firearms from a gun
dealer, did not violate the Fourth Amendment. While
federal regulation of firearms was not deeply rooted
as à historical matter, the Court sustained the limited
warrantless inspection program challenged in that
case because of the program’s importance in the pre-
vention of violent crime, the fact that a warrant re-
quirement would have impeded enforcement in light
of the ease with which statutory violations could be
concealed, and the limited nature of the inspection’s
interference with the gun dealer’s right to privacy.
406 US. at 315-316. Here, as in Biswell, because
“[l]arge interests are at stake (see pp. 4-5, note 2,
supra), Congress has adopted “a regulatory inspection
42
system of business premises that is carefully limited
in time, place, and scope,“ to be conducted pursuant
to “the authority of a valid statute” (406 U.S. at
315).
Colonnade Catering Corp. v. United States, 397
U.S. 72, also supports our position here. In that
case, the Court considered the statutory authorization
for warrantless inspections of federally licensed deal-
ers in aleoholic beverages. Federal inspectors, without
a warrant and without the owner’s permission, had
forcibly entered a locked storeroom and seized illegal
liquor. After reviewing the history of federal control
in the area of alcoholic beverages, the Court con-
cluded that Congress had long exercised control over
the liquor industry and had ample power “to design
such powers of inspection under the liquor laws as it
deems necessary to meet the evils at hand” (id. at 76).
Thus, the Court unanimously ruled that the Fourth
Amendment did not bar warrantless inspections to en-
force the liquor laws and that Congress could have
authorized their execution by means of forcible entry.
However, it held that the particular inspection was
beyond the scope of the statute because Congress had
not expressly provided for forcible entry in the ab-
sence of a warrant but had instead given the govern-
ment agents a remedy by making it a criminal offense
under 26 U.S.C. 7342 to refuse admission to the
inspectors.
We do not quarrel with the district court’s ob-
servation (J.S. App. A 7a) that Biswell and Colon-
nade Catering turn in part on the fact that firearms
43
and liquor dealers have been subjected to a detailed
system of governmental regulation and that those
cases respectively dealt with a “pervasively regu-
lated business” (406 U.S. at 316) and an “industry long
subject to close supervision and inspection” (397
U.S. at 77). But here, too, Congress has directed that
all businesses affecting interstate commerce comply
with uniform safety and health standards established
by the Secretary and stand ready to submit “without
delay” to inspection of the working conditions of
their employees. Indeed, the Occupational Safety and
Health Act of 1970 is not the first congressional
regulation of employee safety and health in industry
as a whole rather than in particular types of busi-
nesses. It is but the most recent expression of con-
gressional concern that began with the Walsh-Healey
Act of 1936, 49 Stat. 2036, as amended, 41 U.S.C. 35
et seq. Thus, at least two generations of employers
have been subjected to extensive federal regulation of
employee safet; and health.” The limited intrusion
The legislative history of the Occupational Safety and Health
Act of 1970 shows that Congress was well aware of the long
history of federal and state regulation. See, ¢.g., 29 U.S.C. 653(b)
(2), 667; S. Rep. No. 91-1282, 91st Cong. 2d Sess. 4, 10-13, 18
(1970), Leg. Hist. 144, 150-153, 158; H.R. Rep. No. 91-1291, 91st
Cong., 2d Sess. 15, 21, 25 (1970), Leg. Hist. 845, 851, 855; id. at
58-59, Leg. Hist. 888-889 (minority views). See also Associated
industries of New York State v. Depart ment of Labor, 487 F. 2d
$42, 351-853 and nn. 11, 13-14 (C. A. 2). Indeed, the Act directs
tle Secretary to reissue pre-existing safety and health standards
w thout notice or hearing because they had previously been widely
distributed and industry was already familiar with them. See 29
U.S.C. 1 (9) and (10), 653(b) (2), 655(a) ; Leg. Hist. 145-146,
846-847. ;
44
here into appellee’s privacy was therefore based upon
longstanding regulation in the limited sphere of em-
ployee safety and health and not simply upon appellee's
generalized status as a business establishment. Cf.
G.M. Leasing Corp. v. United States, supra, slip op.
15; Almeida-Sanchez v. United States, 413 U.S. 266,
280-281 (Powell, J., concurring).
Moreover, as in Biswell, the statute at issue here pro-
vides procedural safeguards that limit the discretion
of the inspector. As we have described supra, p. 8,
the inspector is required to present identifying cre-
dentials and make an opening explanation of his
mission to the employer, who is permitted to make a
toll-free telephone call to verify the identify of the
inspector. As a result, “the visible manifestations of
the field officers’ authority at * lan employee
workplace] provide substantially the same assur-
ances * * * [as a warrant].” United States v. Mar-
tinez-Fuerte, supra, 428 U.S. at 565. Moreover, the
employer is entitled to accompany the inspector on
his tour of the premises, which is limited to employee
work areas. Thus, the employer is “not left to wonder
about the purposes of the inspector or the limits of
his task” (United States v. Biswell, supra, 406 U.S.
at 316). Indeed, the limited discretion of the inspector
is further shown by the fact that the selection of
inspection sites is made by departmental area super-
visors applying published criteria.“ The workplaces
to be inspected are “not chosen by officers in the
See p. 37, note 17, supra.
45
field, but by officials responsible for making overall
decisions as to the most effective allocation of limited
enforcement resources“ (United States v. Martinez-
Fuerte, supra, 428 U.S. at 559). Thus, the “warrant
requirement in Camara [which] served specific
Fourth Amendment interests * * * would make little
contribution’’ with respect to inspections under the
Act (id. at 565).
Finally, the decision in Biswell reflects the Court's
recognition that the gun inspection powers there at
issue were necessary to implement a regulatory system
of great importance to society. Here, Congress has sim-
ilarly determined that the safety of the Nation’s
workers is of great societal importance. As we have
pointed out supra, pp. 19-22, if the Occupational Safety
and Health Act is to be an effective means of assuring
“so far as possible every working man and woman
in the Nation safe and healthful working conditions”
(29 U.S.C. 651), unannounced inspections are
essential to the statutory scheme. Cf. Nizon v.
Administrator of General Services, No. 75-1605, de-
cided June 28, 1977, slip op. 30 and n. 21. While the
Court in Biswell characterized the inspection in See
as designed to discover “conditions that were rela-
tively difficult to conceal or to correct in a short [pe-
riod) of time” (406 U.S. at 316), here, as in Biswell,
the object of the inspector’s mission is easily con-
cealed. Thus, “the prerequisite of a warrant could
easily frustrate inspection; and if the necessary
flexibility as to time, scope, and frequency is to be
239- 892—17——5
46
preserved, the protections afforded by a warrant
would be negligible” (ibid.). Thus, the Court in Bis-
well had little difficulty in coneluding that where
* * * regulatory inspections further urgent federal
interest, and the possibilities of abuse and the threat
to privacy are not of impressive dimensions, the in-
spection may proceed without a warrant where
specifically authorized by statute” (id. at 317).
In sum, virtually all of the ingredients that the
Court has found significant in concluding that statu-
torily authorized inspections may be conducted with-
out a warrant—express congressional authorization
(see, e. g., United States v. Watson, 423 U.S. 411),
compelling governmental need in the light of the par-
ticular purpose of the inspection involved, the un-
suitability of the subject matter for the making of a
meaningful cause“ determination, and limited inter-
ference with legitimate privacy expectations—are
present in this case. Biswell accordingly supports
ihe validity of the warrantless inspections under the
Occupational Safety and Health Act. Accord: Bren-
nan v. Buckeye Industries, Inc., 374 F. Supp. 1350
(S. D. Ga.) ; Dunlop v. Able Contractors, D. Mont., Civ.
No. 73-57-BLG, decided December 15, 1975, appeal
pending, C.A. 9, No. 76-1615; Usery v. Northwest
Orient Airlines, E.D. N.Y. No. 76-C-2177, decided
June 10, 1977. Contra, Brennan v. Gibson’s Products,
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 Enterprises, Inc., 418 F.
47
Supp. 627 (D. N. Mex.) (three-judge court), appeal
pending, C.A. 10, No. 76-2020; Usery v. Rupp Forge
Co., N.D. Ohio, No. C-76-385, decided April 22, 1976,
appeal pending, C.A. 6, No. 76-1960; Usery v. Centrif-
Air Machine Co., 424 F. Supp. 959 (N.D. Ga.), appeal
pending, C.A. 5, No. 77-1511.
C. A large number of federal regulatory statutes
validly provide for similar warrantless inspections
of busi '
Although the decision of the district court deals
only with the inspection provisions of Section 8(a) of
the Occupational Safety and Health Act of 1970, its
holding that Camara and See require OSHA inspectors
to obtain a warrant to enter the premises of business
establishments would arguably be applicable to a host
of comparable federal regulatory statutes providing for
warrantless inspections to enforce congressionally man-
dated standards for safety and health. For example,
inspectors of the Food and Drug Administration are
authorized “to enter, at reasonable times, any factory
* * * in which food, drugs, devices, or cosmetics are
manufactured * * * and * * * to inspect, at reasonable
times and within reasonable limits and in a reason-
able manner, such factory * * (21 U.S.C. 374
(a)). As im the case of the Occupational Safety and
Health Act, the efficacy of the Food, Drug and
Cosmetie Act depends upon the Food and Drug Admin-
istration’s ability to make unannounced random
inspections. Accordingly, in the only decided cases to
48
date, the constitutionality of such warrantless inspec-
tions under the Food, Drug and Cosmetic Act have
been upheld. See United States v. Business Builders,
Inc., 354 F. Supp. 141, 143 (N.D. Okla.); United
States v. Del Campo Baking Mfg. Co., 345 F. Supp.
1371, 1376-1377 and nn. 12-15 (D. Del.); United
States v. Litvin, 353 F. Supp. 1333 (D. D.C.). Accord:
Youghiogheny and Ohio Coal Co. v. Morton, supra
(Coal Mine Health and Safety Act of 1969); United
States ex rel. Terraciano v. Montanye, supra, 493 F.
2d at 684-685 (state narcotics statute) ; United States
v. Western d A. R.R., 297 Fed. 482, 484-485 (N. D.
Ga.) (Railway Safety Appliance Act).
These decisions have accepted our submission, as
finally articulated by this Court in Colonnade Cater-
ing and Biswell, that Congress is fully empowered to
authorize limited warrantless inspections as part of a
regulatory system as long as they do not intrude upon
legitimate privacy expectations and where the ante-
cedent evaluation of a magistrate would not afford
meaningful protection. Indeed, Congress authorized
such warrantless inspections at least as early as See-
tion 6 of the Railway Safety Appliance Act of 1908,
36 Stat. 915, as amended, 45 U.S.C. 29, which provides
that “[eJach inspector shall make such personal
inspection of the locomotive boilers under his care
from time to time as may. be necessary to fully carry
out the provisions of * * * this title * * *.” It is diffi-
49
cult to believe that Congress and the states during
Similar or identical provisions are included in many federal
statutes. See, e.g.,7 U.S.C. (Supp. V) 136g (Environmental Pesti-
cide Control Act); 7 U.S.C. 2146(a) (Animal Welfare Act of
1970) ; 8 U.S.C. 1225(a) (Immigration and Nationality Act) ; 15
U.S.C. 1270 (inspection of any factory or warehouse for “hazard-
ous substances” by Secretary of Health, Education and Welfare) ;
15 U.S.C. (Supp. V) 1401(a)(2) (National Traffic and Motor
Vehicle Safety Act); Pub. L. 94-469, 18882
(Toxic Substances Control Act); 21 USC. 603 (Secretary
Agriculture’s inspection of meat and meat products) ; 21 UAC.
1034 (a), (b), (d) (Egg Products Inspection Act); 26 U.S.C.
5146(b) (Internal Revenue Code of 1954); 26 U.S.C. 7606 (In-
ternal Revenue Code of 1954); 29 U.S.C. 211(a) (Fair Labor
Standards Act) ; 30 U.S.C. 723, 724 (Metal and Nonmetallic Mine
Safety Act) ; 30 U.S.C. 813 (Coal Mine Health and Safety Act) ;
33 U.S.C. (Supp. V) 467(a) (Water Pollution Control Act) ; 41
U.S.C. 38 (Walsh-Healey Act); 41 U.S.C. 53 (Anti-Kickback
Act); 42 U.S.C. 262(c) (Public Health Service Act; 42 U.S.C.
263i (Clinical Laboratories Improvement Act); 42 U.S.C. 1887-9
(Clean Air Act) ; 42 U.S.C. 1857f-6 (Air Pollution Control Act) ;
42 U.S.C, 2035 (e), 2051 (Atomic Energy Act); 42 U.S.C, (Supp.
V) 5413(a) and (b) (National Mobile Home Construction and
Safety Standards Act of 1974); Section 3007, as added, Pub. L.
94-580, 90 Stat. 2810 (Solid Waste Disposal Act); 45 U.S.C.
437 (e) (Railroad Safety Act); 46 U.S.C, 239, 362, 404 (Bureau
of Marine Inspection Act); 46 U.S.C. 408 (Coast Guard inspec-
tion of vessel boiler plates at manufacturer’s plant); 49 U.S.C.
1425(b) (Federal Aviation Act); 49 U.S.C. 1677(a) (3), 1681(b)
(Natural Gas Pipeline Safety Act) ; 49 U.S.C. (Supp. V) 1808(c)
(Transportation Safety Act of 1974). See also Colonnade Catering
Corp. v. United States, 410 F. 2d 197, 204 n. 6 (C. A. 2), reversed on
another ground, 397 U.S. 72.
_™ Numerous state occupational safety and health statutes have
similar warrantless inspection provisions, See, ¢.g., Alas. Stats.,
§ 18.60.083 (1974); Ariz. Rev. Stat. Ann., § 23-408 (1971); Cal.
Labor Code, § 6314(a) (West 1976) ; Colo. Rev. Stat., § 8-11-106
(1974) ; III. Ann. Stat., c. 48, f 59.2(b) (1) and (2) (1969) ; Ind.
Stats. Ann., § 22-8-1.1-23.1 (1974) ; Md. Ann. Code, Art 89, § 35
(a) (1976) ; Minn. Stat. Ann., § 182.659, Subd. 1 (1966); Mont.
Rev. Code, § 4213 (1) and (2) (1961); Nev. Rev. Stat., § 618.225
50
the last 70 years would have enacted such a large num-
ber of regulatory statutes providing for warrantless
inspections if the rule were understood to be otherwise
or even subject to substantial uncertainty. The district
court’s departure from this settled understanding and
practice under the Fourth Amendment calls for
reversal by this Court.
II. EVEN IF A WARRANT IS REQUIRED, THE DISTRICT COURT SILOULD HAVE
UPHELD TILE CONSTITUTIONALITY OF THE ACT
Even if, despite our contrary submission, this Court
should conclude that the Fourth Amendment pre-
cludes warrantless safety inspections of compre-
hensively regulated working areas, the district court
erred in declaring 29 U.S.C. 657(a) “‘unconstitutional
and void” and enjoining the Secretary from “acting
(1975); N. Mex. Stat. Ann., § 59-14-9 (1974); N. C. General
Stats., §§ 95-133, 95-136 (1975) ; Ore. Rev. Stat., § 654.067 (1975) ;
Tenn. Code Ann., § 50-520 (1976) ; Vt. Stats. Ann., Tit. 21, § 206
(1971); Va. Code, §§ 40.1-6, 40.1-10 (1976); Wise. Stats. Ann.,
§ 101.02(15(g) (1973).
Eleven states (Kentucky, Michigan, Minnesota, New Jersey,
New Mexico, North Carolina, Pennsylvania, South Carolina, Ver-
mont, Virginia, and Wyoming) have filed a brief amici curiae in
this case urging reversal of the district court.
Maryland, Oregon, and Alaska statutes analogous to the Act’s
inspection provisions have been held unconstitutional by state
courts relying upon Brennan v. Gibson's Products Inc. of Plano,
407 F. Supp. 154 (E.D. Tex.). See Epstein v. Fitewater, No.
6838EQ, decided September 2, 1976 (Cir. Ct. Garrett County,
Md.); Oregon v. Keith R. Foster, dba Keith Mfg. Co., Civ. No.
5943, decided November 1, 1976 (Cir. Ct. Jefferson County, Ore.) ;
Alaska v. Alaska Truss & Millwork, No. 2903, decided June 2,
1977 (Alaska S. Ct.).
51
or attempting to act pursuant to or in furtherance of“
that Section (J. S. App. A IIa-12a). It should instead
have followed tbis Court’s rule that “under familiar
principles of constitutional adjudication, our duty is
to construe the statute, if possible, in a manner con-
sistent with the Fourth Amendment,” Almeida-San-
chez v. United States, supra, 413 U.S. at 272, and
interpreted the statute to meet Fourth Amendment
requirements. See also Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 348 (Brandeis, J., coneur-
ring).“ That course has been consistently followed by
the Court with respect to administrative inspections,
for it did not invalidate the ordinances in Camara and
See or the statute in Almeida-Sanchez. It is also the
course followed by all other district courts that have
found warrantless OSHA inspections impermissible.
See pp. 40-47, supra.
Although we believe that Congress intended to
authorize warrantless inspections, it is equally clear
that interpreting the statute to meet Fourth Amend-
ment requirements would more closely approximate
congressional intent than totally eliminating the
authority to inspect. 29 U.S.C. 677; ef. Tilton v.
Richardson, 403 U.S. 672, 684. Indeed, Representative
Steiger, the author of the version of Section 8(a) of
In light of Camara v. Municipal Court, 387 U.S. 523, any
warrant requirement read into the inspection provisions of the
Act “will not necessarily depend upon specific knowledge * * * of
the particular * * * [workplace]” (id at 538), as in a search pur-
suant to a criminal investigation. Instead, the Secretary's showing
that the location apparently houses a covered employee workplace
should suffice to obtain a warrant under the Camara standard.
52
the Act which ultimately prevailed in conference,
stated that while prompt unannounced inspections are
essential to the Act’s enforcement, they were meant to
be carried out “in accordance with applicable consti-
tutional protections.“ Leg. Hist. 1077. That explicit
expression of congressional intent requires that the
constitutionality of the Act be upheld.
The judgment of the district court should be
reversed.
Respectfully submitted.
Wave H. McCrer, Jr.,
Solicitor General.
Lawrence G. WALLACE,
Deputy Solicitor General.
Sruart A. SMITH,
Assistant to the Solicitor General.
Cartn ANN Gaus,
Solicitor of Labor,
BensamMin W. MINtTz,
Associate Solicitor,
Michal. H. Levin,
Counsel for Appellate Litigation,
Department of Labor.
Ju 1977.
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