# Petition for Writ of Certiorari — CED'S, Inc. v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1827%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1015 ## Text O2-IDV@ (') . Court, U.S. No. 84- RILE D ne DEC 10 18 Supreme Court of the Gnited — OCTOBER TERM, 1984 CED’S, INC., d/b/a PRODUCTS FOR POWER, Petitioner, vs. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and LEE THOMAS, Acting Administrator, United States Environmental Protection Agency, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT JERALD P. Esrick Counsel of Record for Petitioner CED’s, INC., d/b/a PRODUCTS FOR POWER OF COUNSEL: JERALD P. Esrick JAMES R. MORRIN Cat R. BURNTON WILDMAN, HARROLD, ALLEN & DIXON One IBM Plaza, Suite 3000 Chicago, Illinois 60611 (312) 222-0400 ARNOLD M. FLANK Arnold M. Flank, Ltd. 2 North LaSalle Street, Suite 2205 Chicago, Illinois 60602 (312) 236-7742 Pandick Midwest, Inc., Chicago © 454-7600 G 4, P's. QUESTIONS PRESENTED Petitioner manufactures an automotive product which has several recognized lawful uses. Petitioner’s product is resold through two to three distribution levels before it is ever installed in a vehicle. No Federal law prohibits this sale or manufacture, but automotive workmen are prohibited from installing the device under certain conditions. The EPA sought to seize petitioner’s business records. To obtain the necessary warrant, EPA filed an application stating that, by the mere manufacture and sale of the device, petitioner may be “causing” some consumers several times removed from petitioner to install the device on automobiles in an illegal manner. Yet EPA furnished no evidence of any such “causing” by petitioner—the warrant application contained only a boil- erplate recitation of a statutory violation by automobile repair- persons. The Seventh Circuit Court of Appeals, reversing the tral court, upheld EPA’s authority to obtain an administrative warrant bottomed on an unsupported, unarticuiated statutory violation by others. The Court of Appeals’ ruling raises the following constitutional questions: 1. Whether EPA should be treated differently from all other government agencies by being vested with unbridled authority to search any premises, commercial or residential, without having to make any showing whatsoever of a statutory violation by the person to be searched? 2. Are the clear and explicit standards for demonstrating probable cause established by this Court in Camara v. Munici- pai Court, 387 U.S. 523 (1967), and Marshall v. Barlow’s, 436 U.S. 307 (1978), applicable to the issuance of a warrant obtained by EPA pursuant to its authority under the Clean Air Act? 3. If so, does the unsupported assertion in a warrant application that a search is necessary “in order to determine whether violations of section 203(a) of the Act have been or are il being committed ...” (emphasis added), without any evidence or even a hint of an actual violation by the person to be searched, satisfy the probable cause standards of Camara and Barlow’s? PARTIES TO THE PROCEEDING The caption of the case in this Court contains the names of all parties. There are no parent comfy nies, subsidiaries, or affiliates. iil TABLE OF CONTENTS PAGE is casguiclouyheoiieanabarwensioe i I I INI sn sccenscncnesescnssovoessvesonesrovncosasnnseses ll oa cechmmennnuisoonnnanaias ill a ied epatsancnivsinneinnainibelonn Vv i cscccnaccaincnenssivstoree TREES OR TOO l Nees csaeanladsbptinbabbnbenes 2 Constitutional and Statutory Provisions Involved............ 3 a cersaatiuanbsiumiunabnneoninieatievsoves 5 Nee ait icenctcsiisissonepianinusunsbebtnneecennsts 5 ins al kienl chsditnsbonatnibensnusenrcersen 6 ah nisslosaipsincbonsibekiapssboenens 7 The Court of Appeals..................... Decisadieadioichentaanceen 8 Reasons for Granting Certiorann ...............c.ccccccssssssesseeceees 9 A. The Decision of the Court of Appeals Con- flicts With and Ignores this Court’s Decisions Sg ey 11 B. The Seventh Circuit’s Holding Fails to Ad- dress the Allegations Necessary to Show ar asatsaeaseeesanbobaginaetieonioniinh 14 Neen ee aa icineidcasnnicsehwnbonvawedions 19 Appendix PE BONO CE CW IBINS 0nnnsscccesccnsessccesesecsoncssevevessenenss la Exhibit IV Order of the Seventh Circuit granting motion to stay the mandate, dated November 9, 1984 Order of the Seventh Circuit denying petition for rehearing with suggestion for rehearing en banc, dated October 29, 1984 oo... cccceccecsceceeee Opinion of the Seventh Circuit, dated Sepeemnber 2B, (9G 6 nn. cceccnsevessccssoscrassovseseees Supplemental memorandum opinion and or- der of district court, dated November 1, 1983. Memorandum opinion and order of district Court, Gated Fuly 1, 1963 ........cccccccccscocsscecesonesees Memorandum opinion in National Muffler Manufacturing Co., Inc. v. U.S. E.P.A., No. C83-929A (N.D. Ga. September 21, 1983)... Warrant of entry issued by Magistrate Suss- BUR, IE FEE S, TI a niccecscnicesincnecsiikesnrisinere EPA application for warrant, dated April 5, SOP capicauiseiinilenienintesameanmmaionrc ceo gran, PAGE 2a 3a 4a 20a 29a 37a TABLE OF AUTHORITIES PAGE Cases: Batterton v. Marshall, 648 F.2d 694 (D.C. Cir. DI A i scccorsusitiinsianiinascitesaincaieiansichaiteidalteumainlisiiaibmgacncadeiiien 15, 16 Camara v. Municipal Court, 387 U.S. 523 (1967).. 10, 12-15 Colonnade Catering Corp. v. United States, 397 SIS, Far 0 OEE cicdniicistinivcicesisticsssadanaaanicennenes 12, 13 Coolidge v. New Hampshire, 403 U.S. 443 (1971)... 18 Donovan v. Dewey, 452 U.S. 594 (1981)... eee 13 Donovan v. Lone Steer, Inc., i i eh PA, SD viccicinnccccersnnssiontsncstnainiabastinamenensanenanas 14 Donovan v. Wollaston Alloys, Inc. 695 F.2d 1 (\st OE, FPN DS picscstncsensciviisnsteissicecntens sncgcunibbaninsapeiannbageadion 15 Marshall v. Barlow’s, 436 U.S. 307 (1978).............. 10-15, 17, 18 National Muffler Manufacturing Co., Inc. v. U.S. EPA, No. C83-929-A (N.D. Ga. Sept. 21, 1983) 8 See v. City of Seattle, 387 U.S. 541 (1967) ............. 12 Stoddard Lumber Co., Inc. v. Marshall, 627 F.2d SOE Cite Ce CIP veka 15 United States v. Mississippi Power & Light Co., 638 F.2d 899 (Sth Cir.), cert. denied, 454 U.S. 892 C BE Masevisentiscsnienstnictnsinpcontotonsspiatincaesseieaeaniinndniniciess 15 Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir. PF iineisaskscistnictcecccciniashicamnctsabeticaiateanaptbidiagiaiaitaaiumamain 10, 15 CONSTITUTIONAL PROVISIONS AND STATUTES: eB aii biisicevscnidicsastsiemivawanins 3 26 CER BU 0 0 Fe Pickin lice 2 eR ee 8 Fe ie hieimtinietcnacainsianlons 2 p TR Lake BPE «| Ree en mN eNT 2 Ge SI, © Pare CN aiiciiiieicisicstisittincnion 2 FeO PY 0 FE Bithiidescttenecinniccnen 3. 4, 6 ATS rat 0 CBE Pikieciciicaichiende 4 30k 17 OF UBS, BTS i CAREY erect ressericcssreeenninn 13 IN THE Supreme Court of the Anited States OctToBER TERM, 1984 CED’S, INC., d/b/a PRODUCTS FOR POWER, Petitioner, vs. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and LEE THOMAS, Acting Administrator, United States Environmental Protection Agency, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURS OF APPEALS FOR THE SEVENTH CIRCUIT CED’s, Inc., d/b/a Products for Power (‘““CED’s’’), re- spectfully petitions for a writ of certiorari to review the opinion of the United States Court of Appeals for the Seventh Circuit entered in this proceeding on September 28, 1984. OPINIONS BELOW The opinion of the Seventh Circuit Court of Appeals in CED’s, Inc., d/b/a Products for Power v. United States Environmental Protection Agency and Lee Thomas, Acting Administrator, United States Environmental Protection Agency, not yet Officially reported, is reproduced in the Appendix to this petition. App. C. p. 4a. The memorandum opinions, final 2 orders and judgment of the district court, which were not Officially reported, are reproduced in the Appendix to this petition. App. D, p. 20a; App. E p. 29a. JURISDICTION The opinion of the Seventh Circuit Court of Appeals in this case was entered on September 28, 1984. A petition for rehearing with a suggestion for rehearing en banc was denied on October 29, 1984. App. B, p. 3a. The Seventh Circuit subsequently granted CED’s motion to stay the mandate until December 19, 1984. App. A, p. 2a. This petition is being filed within the time specified in Rule 20.2 of the Rules of the Supreme Court and 28 U.S.C. § 2101(c). The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). Jurisdiction in the district court was based on the existence of a federal question, 28 U.S.C. § 1331, concerning the provisions of the Clean Air Act, 42 U.S.C. § 7401 et seq. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the United States Constitution provides: , The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or Affirmation, and particularly describing the piace to be searched, and the persons or things to be seized. U.S. Const., amend. IV. Section 114(a) of the Clean Air Act, 42 U.S.C. § 7414(a), provides in pertinent part: (a) For the purpose of (i) developing or assisting in the development of any implementation plan under sec- tion 7410 or 7411(d) of this title, any standard of performance under section 7411 of this title, or any emission standard under section 7412 of this title, (ii) determining whether any person is in violation of such standard or any requirement of such plan, or (ii!) carrying out any provision of this chapter (except a provision of subchapter II of this chapter with respect to a manufacturer of new motor vehicles or new motor vehicle engines ) — (1) The Administrator may require any person who owns Or operates any emission source or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title) with respect to a provision of subchapter II of this chapter to (A) establish and maintain such records, (B) make such reports, (C) install, use, and maintain such monitoring equipment or methods, (D) sample such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall pre- scribe), and (E) provide such other information as he may reasonably require: and 4 (2) The Administrator or his authorized representa- tive, upon presentation of his credentials— (A) shall have the right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and (B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under para- graph (1), and sample any emissions which such person is required to sample under paragraph (1). 42 U.S.C. § 7414(a). Section 203(a) of the Clean Air Act, 42 U-S.C. § 7522(a)(3)(A) and (B), under which EPA asserts that CED’s falls within the coverage of the Clean Air Act, states in relevant part: (a) The following acts and the causing thereof are prohibited — (3)(A) For any person to remove or render inoperative any device or element of design installed on or in a motor vehicle or motor vehicle engine in com- pliance with regulations under this part prior to its sale and delivery to the ultimate purchaser, or for any manufacturer or dealer knowingly to remove or render inoperative any such device or element of design after such sale and delivery to the ultimate purchaser; or (B) For any person engaged in the business of repair- ing, servicing, selling, leasing, or trading motor vehicles or motor vehicle engines, or who oper- ates a fleet of motor vehicles, knowingly to remove or render inoperative any device or ele- ment of design installed on or in a motor vehicle 5 or motor engine in compliance with regulations under this subchapter following its sale and deliv- ery to the ultimate purchaser; or 42 U.S.C. § 7522(a)(3)(A) and (B). STATEMENT OF THE CASE THE PARTIES Petitioner CED’s, Inc., d/b/a Products For Power (CED’s), operates a small manufacturing business in Addison, Illinois. Among the engine exhaust system parts manufactured at this plant is a device known as a “Test Tube”, a product marketed under CED’s registered trademark. The Test Tube has several well-recognized and lawful uses. Primarily, it may be used by any individu il or entity to perform tests on the efficiency and efficacy of a catalytic converter that has been installed in an automobile exhaust system. Also, under federal law, an individual motorist may lawfully and permanently replace his automobile’s catalytic converter with a Test Tube. It is, however, unlawful for a person engaged in the business of repairing, servicing, selling, leasing or trading of motor vehicles to permanently remove catalytic converters. CED’s does not, in general, sell its Test Tubes to muffler shops, the general public, or to retail outlets. Nor does CED’s sell its Test Tubes to automobile manufacturers or to any new or used automobile dealers. CED’s sells Test Tubes primarily to a single category of businesses: warehouse distributors. Test Tubes are marketed nationally by CED’s and are sold in 49 of the 50 states.’ Test tubes are also marketed for sale abroad and to the United States military. EPA has never alleged that CED’s has ever either directed or directly caused any person 1 CED’s does not sell its Test Tube in California. There, the sale of devices which are capable of being used to eliminate pollution control devices is specifically prohibited. 6 engaged in the business of repairing, servicing, selling, leasing, or trading of motor vehicles to remove or render inoperative any pollution control equipment. THE WARRANT On April 5, 1983, EPA filed an application for an adminis- trative search warrant with United States Magistrate Sussman, pursuant to its administrative search authority under Section 114 of the Clean Air Act, 42 U.S.C. § 7414. App. H, p. 49a. In the warrant application, EPA alleged that CED’s “may be causing” violations of the Clean Air Act by the “sale, dis- tribution and promotion” of Test Tubes. An extensive search was requested so that EPA could “determine whether violations of section 203(a) of the Act have been or are being committed by Products for Power... .” No violations of the Clean Air Act were asserted, nor did the warrant application contain any evidence of such violations.2 Magistrate Sussman granted EPA’s application and issued a civil inspection warrant, author- izing virtually a complete inspection of CED’s facility. App. G, p. 46a. This inspection included the review and copying of virtually all of CED’s business records, including correspond- ence, raw material purchases, advertising records, production records, sales records, customer lists, and inventory lists. The warrant additionally authorized without restriction the in- spection of CED’s facility and the taking of photographs of the facility. Pursuant to the warrant, on April 6, 1983, EPA agents and a United States Marshall entered CED’s facility and examined, inspected, and copied the documents specified in the warrant. 2 The affidavits attached to the warrant application, if assumed to be true, established only that some muffler shops may be permanently removing catalytic converters. See App. H, p. 49a. 3 Since EPA had no evidence, nor even a theory, as to how the mere manufacture and sale of Test Tubes could amount to a “causing” (i.e. an improper installation ), the scope of the warrant was extremely broad. 7 As the inspection was being carried out, CED’s filed with Magistrate Sussman a motion to quash the warrant for lack of probable cause. Following a hearing. CED’s motion to quash was denied. THE DISTRICT COURT CED’s then filed a complaint for injunctive relief and a notice of appeal from the magistrate’s order with the district court on April 7, 1983. In response, EPA filed a motion to dismiss CED’s complaint. After an emergency hearing an interim agreement was reached between the parties, in which EPA agreed to refrain from contacting CED’s customers and from using the information seized other than for purposes of review, interpretation and collation. On CED’s motion, the district court stated that it would treat CED’s motion for injunctive relief as a motion for both temporary and permanent relief. On July 1, 1983, the district court granted CED’s motion for a permanent injunction, prohibiting EPA from making further use of the business records obtained under the adminis- trative warrant. App. E, p. 29a. The court also ordered EPA to return all copied documents to the plaintiff. In so holding, the court concluded that EPA had no authority under § 114(a) of the Clean Air Act to enter and inspect CED’s records. EPA moved for a stay pending appeal of the district court’s order. In its motion of July 20, 1983, EPA reiterated several contentions previously made and also attacked the substance of the district court’s July 1, 1983 order. In a hearing on July 22, 1983, EPA reiterated its challenges to the original holding of the district court. At several points in the hearing the district court stated that it would reconsider contentions made by EPA. The court noted that it would treat EPA’s motion fur a stay as a motion to amend the July | order and would accordingly either consider its original order as merely a preliminary injunction or it would issue a supplementary opinion. No objection was made by EPA. On August 31. 1983. EPA filed a notice of I appeal from the district court’s order of July 1, 1983. All documents seized by EPA have since been held by the Depart- ment of Justice pending the resolution of this appeal. On November 6, 1983, the district court entered a supplemental memorandum opinion and order clarifying its original order and denying EPA’s motion for a stay pending appeal. In its supplemental order, the court held that CED’s could not “cause” a violation of the Clean Air Act by the mere manufacture and sale of Test Tubes.* The district court reaf- firmed its original holding that injunctive relief was appropriate in light of the irreparable harm CED’s would suffer from the search. The district court denied EPA’s stay application, concluding that it had failed to show that a stay was appro- priate. THE COURT OF APPEALS On September 28, 1984, a panel of the Seventh Circuit Court of Appeals reversed the judgment of the district court and ordered the injunction dissolved and CED’s complaint dismissed. The panel held that sections 114 and 203(a) of the Clean Air Act give blanket authority to EPA to inspect the records of any person who is “subject to” a requirement of the Act and that “CED’s, along with everyone else, is clearly prohibited ... from causing any act described in subsection 3(B).” App. C, p. 10a. The appellate court concluded that EPA had the mght to inspect CED’s facility and to seize its records. The panel failed to address in any way whether the “As did a district court in Georgia, when faced with the same question in a search launched by EPA the same day as the CED’s search. See National Muffler Manufacturing Co., Inc. v. U.S. EPA, No. C83-929A (N.D. Ga. Sept. 21, 1983), App. F, p. 37a. ne ~ eel warrant application complied with the probable cause require- ments of the Fourth Amendment. CED’s subsequently filed a petition for rehearing with a suggestion for rehearing en banc, urging the full Seventh Circuit to review the panel’s opinion. CED’s argued that the panel’s decision allows EPA the right to inspect the records of any entity without regard to the Fourth Amendment probable cause requirements. Under the Seventh Circuit’s analysis, in order for EPA to search the premises of any individual or entity, EPA need only allege that the person or entity “may be” causing a violation of the Act. On October 29, 1984, the Seventh Circuit denied CED’s petition for rehearing. App. B, p. 3a. On November 3, 1984, CED’s moved the Seventh Circuit to stay the issuance of its mandate pending CED’s application to this Court for a writ of certiorari. Six days later, Judge Eschbach, author of the panel’s opinion, granted CED’s peti- tion for a stay of the mandate, up to December 10, 1984. This petition for certiorari followed. REASONS FOR GRANTING CERTIORARI The breadth and scope of administrative regulatory stat- utes such as the Clean Air Act touch virtually every commercial entity in this country. While many of these acts have been broadly written and interpreted, this Court has consistently stated that no enactment may supercede constitutional protec- tions. In this case, however, the Seventh Circuit has given to EPA under the Clean Air Act unprecedented search and seizure authority; authority unknown to any other governmental agency. 5CED’s has repeatedly raised this probable “causing” issue throughout the course of this proceeding. The district court found no showing of a “causing” and further held that EPA lacked statutory authority to search an unregulated manufacturer such as CED’s. The Seventh Circuit reversed on tie authority issue and leap-frogged the critical probable cause issue to reach its unprecedented holding. 10 Unless the opinion of the Seventh Circuit is corrected by this Court, Magistrates will be empowered to grant EPA warrant applications on the naked assertion that a “violation” may be occurring. No other agency has such authority, even those charged with criminal law enforcement. Yet EPA may now search anywhere to investigate a single civil prohibition. Certiorari should thus be granted in this case because the opinion of the Seventh Circuit fails to apply, and totally disregards, this Court’s decisions in Marshall v. Barlow’s, 436 U.S. 307 (1978), Camara vy. Municipal Court, 387 U.S. 523 (1967), and their progeny.® Those cases require that before a finding of probable cause justifying an administrative search and seizure can be made, there must exist either (i) specific evidence of a violation of an administrative regulation or law, or (ii) evidence that the search is sought pursuant to an articulated administrative plan based on neutral criteria.7 EPA failed to satisfy these requirements in obtaining the warrant at issue. The Seventh Circuit upheld the warrant, employing the following unprecedented analysis: (1) CED’s (along with everyone else) is subject to the provisions of the Clean Air Act; (2) “the plain language of the Act authorizes the EPA to copy any records of any person subject to any require- ment of the Act ...”; and (3) therefore, EPA may have access to and copy any records CED’s may possess. At no time did the Seventh Circuit address the applicability of the Fourth Amendment, Barlow’s, Camara, or probable cause. By its analysis the Seventh Circuit has effectively eliminated the requirement that probable cause be shown to justify the search of a commercial entity. 6 One of which is the Seventh Circuit’s own case, Weyerhaeuser v. Marshall, 592 F.2d 373 (7th Cir. 1979), the facts of which are almost identical to those here. 7EPA has never asserted that the search was part of an administrative plan. 11 Certiorari should also be granted to define what facts must be shown by a governmental agency to satisfy the constitutional requirement of probable cause in order to justify a nonconsen- sual inspection of a business premise. In the immediate case, EPA alleged only that a search was necessary to determine whether CED’s “MAY BE” causing a violation of the Clean Air Act. No facts establishing probable cause were adduced. The showing required of EPA before it can engage in a nonconsen- sual seizure of records is of great concern to all individuals and entities subject to the Clean Air Act, as well as to those who are subject to other federal regulatory statutes. There is also a compelling need for this Court to provide guidance to the lower courts in the application of the probable cause standards of Barlow’s. As this Court has noted many times, explicit probable cause requirements serve to inform the magistrate of the violation in question, and thereby help limit the search to a reasonable scope, ensuring adherance to Fourth Amendment principles. A definitive statement from this Court regarding the showing that is necessary to meet administrative probable cause standards will ensure future consistent and proper application of Barliow’s, and will serve to put business entities On notice as to when their premises may be subject to a search or seizure. For not only must laws, regulations, and court decisions provide a clear mandate of congressional or agency intentions, they must also provide guidance to those persons affected so that those persons may structure their future conduct to comply with the law. The Seventh Circuit’s decision fails to adequately guide U.S. magistrates, judges, or business entities through its failure to delineate when and to what extent businesses may be the subject of a search and seizure under the Clean Air Act. A. The Decision of the Court of Appeals Conflicts With and Ignores this Court’s Decisions in Camara and Barlow’s. The Seventh Circuit concluded that “the plain language of the Act authorizes the EPA to copy any records of any person 12 subject to any requirement of the Act....” App. C, p. 17a. Applying this conclusion, the Court reasoned that since “CED’s, along with everyone else, is clearly prohibited . . . from causing any act described in subsection (3)(B),” App. C, p. 10a, EPA has authority to search and inspect CED’s premises. Under the court’s analysis, EPA has unbridled discretion to inspect the records of any individual or entity without any consideration of the Fourth Amendment protections from unreasonable search and seizure. The EPA may now obtain warrants to randomly search and inspect the records of any individual or entity, merely to ascertain whether they “might be” causing a violation, without even a requirement that the supposed violation be articulated. Such judicially-condoned fishing expeditions con- stitute a total abrogation of Fourth Amendment probable cause protections. Prior Supreme Court cases have firmly established that the Fourth Amendment’s prohibition against unreasonable searches applies to administrative inspections of private com- mercial property. Marshall v. Barlow’s, 436 U.S. 307 (1978); Camara v. Municipal Court, 387 U.S. 523 (1967). In See v. City of Seattle, 387 U.S. 541, 543 (1967), the Supreme Court noted: The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that nght placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority cvidenced by a warrant. Id. at 543. Inspections of commercial property have been held to be unreasonable if they are not authorized by law or are unnecessary for the furtherance of federal interests. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). 13 The importance of a warrant in the administrative scheme is well recognized. This Court has observed that where Congress has authorized an inspection, but has made no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules are to apply. Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). Warrants are necessary to protect the owner from the “unbridled discretion [of] executive and administrative officers,” Marshall v. Barlow’s, 436 U.S. at 323, by assuring the owner that “reasonable legislative or administrative standards for conducting inspection are... satisfied with respect to a particular [establishment].” Camara v. Municipal Court, 387 U.S. 523, 538 (1967). In the absence of evidence of probable cause, a search of a commercial premise may be justified only in the following situation: [A] warrant may not be constitutionally required when Congress has reasonably determined that warrantless searches are necessary to further a regulatory scheme and the federal regulatory presence is sufficiently com- prehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. Donovan v. Dewey, 452 U.S. 594, 601 (1981). A plain reading of section 203(a)(3) of the Clean Air Act could not make CED’s aware that its facility is or could be subject to inspection by EPA.® CED’s is not “engaged in the business of repairing, servicing, selling, leasing, or trading motor vehicles or motor vehicle engines.” CED’s does not “operate a fleet of motor vehicles.” Nor is CED’s defined as a ‘“‘manufacturer or dealer.” See 42 U.S.C. § 7527. How then is CED’s supposed to anticipate that its facility could be searched by EPA? 8 CED’s is not presently subject to any EPA-promulgated regu- lations. 14 The Seventh Circuit’s opinion does not provide any answer. This Court has noted only last term that in the absence of a specific legislative framework, the constitutional requirements of probable cause must be met in order to allow a nonconsen- sual entry into a commercial area not open to the public. Donovan v. Lone Steer, Inc., US. —, 104 §.Ct. 769, 773 (1984). The Seventh Circuit’s use of its novel analysis directly conflicts with the rules established by this Court in Camara, Barlow’s, Lone Steer, and other cases addressing administrative warrant requirements. The Seventh Circuit’s decision gives EPA carte blanche to engage in the inspection of any records in any facility which is, or which EPA believes to be, subject to the Clean Air Act. If left undisturbed, the Seventh Circuit’s decision will not only result in searches and seizures that are unauthorized by the Clean Air Act, but it will also do away with probable cause requirements. The new logic expressed in the Seventh Circuit’s holding could be equally applied to other major regulatory statutes. Because of the likelihood that EPA will engage in the future inspections of facilities that are, or may be, subject to its provisions, this Court should provide clear guidance to the lower courts on the application of Barlow’s probable cause requirements to such inspections. Without any clear ex- planation of the Barlow’s probable cause standard, the lower courts may acquiesce in the intrusive and unjustified enforce- ment of federal legislation at the expense of the constitutional rights of those subject to its reach. B. The Seventh Circuit’s Holding Fails to Address The Allegations Necessary to Show Probable Cause. The sole justification given by EPA for the search of CED’s premises was their belief that CED’s may “cause” improper installations of its product simply by the manufacture, promo- tion and ultimate distribution of Test Tubes to automotive repair facilities. Application for Warrant. App. H. p. 50a. In its ——— 15 brief to the Seventh Circuit, EPA asserted that it could not determine whether CED’s had “caused” violations of the Clean Air Act until after ‘“‘a complete investigation of all the facts and circumstances surrounding CED’s operation ....” EPA Brief, p. 81.8. This approach is constitutionally unpermitted. The Seventh Circuit, however, failed to address the issue of whether EPA had satisfied the Fourth Amendment’s probable cause requirements. Had the Seventh Circuit tested EPA’s actions against the standards set forth in Camara and Barlow’s, it would have found that there was no probable cause to support the issuance of the warrant.9 The probable cause required of EPA to justify its search in this case is neither burdensome nor unreasonable. This Court has noted that probable cause in the criminal law sense is not required. Marshall v. Barlow’s, 436 U.S. 307, 321 (1978). But even for purposes of an administrative search, probable cause justifying the issuance of a warrant must nevertheless be based either on specific evidence of an existing statutory or adminis- trative violation or on a showing that reasonable legislative or administrative standards for conducting an inspection have been satisfied. Jd. at 321. Reasonable administrative standards have always been interpreted to require the agency in question to have promulgated regulations after appropriate nctice and hearing opportunities have been provided. Batterton v. Mar- 9Other Seventh Circuit decisions have required that adminis- trative warrants comply with the Fourth Amendment’s requirements for administrative probable cause. See, e.g., Weyerhaeuser Co. v. Marshall, 592 F.2d 373 (7th Cir. 1979). In Weyerhaeuser, the warrant application was defective because the “magistrate was given no clue as to what the nature of the alleged violation might be. The affidavit is unrelieved boilerplate ...” Jd. at 378. Such language is directly applicable to the case at bar. Other circuit courts of appeals have uniformly tested the validity of a warrant by the probable cause standards established by this Court in Barlow’s. See Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (lst Cir. 1982): United States v. Mississippi Power & Light Co., 638 F.2d 899 ( Sth Cir. ), cert. denied, 454 U.S. 892 (1981): Stoddard Lumber Co.. Inc. v. Marshall, 627 F.2d 984 (9th Cir. 1980). 16 shall, 648 F.2d 694 (D.C. Cir. 1980). There are NO regulations promulgated by EPA which require a manufacturer of automo- tive replacement parts or automotive testing devices to perform any of the record keeping requirements specified in section 114(a)(1) of the Clean Air Act. Consequently, EPA has no authority to inspect the business premises of CED’s, as section 114(a)(2) grants EPA authority to inspect only those business records required by section 114(a)(1) to be maintained. Absent such legisiative authority, specific evidence of an exist- ing violation of the Clean Air Act was required. There was no allegation anywhere that there was probable cause to believe that CED’s was in violation of the Clean Air Act. EPA has never even contended that such facts exist. Moreover, at no time did EPA assert that its search was authorized by an administrative plan based on any neutral criteria. Instead, EPA sought to seize and inspect CED’s records in an effort to determine at a later date whether CED’s may perhaps be “causing” a violation of the Act. However, the manufacture, distribution and sale of Test Tubes is lawful; the Seventh Circuit’s opinion fails to provide CED’s (or anyone else) with any clue as to the actual nature of any alleged violation which would justify the inspection of its premises. To “cause” is to be the agent or force which produces an effect or result. Under the Clean Air Act the prohibited result is improper installation. Neither EPA nor the Seventh Circuit has articulated how the “sale, distribution and promotion of Test Tubes,” either to warehouse distributors (as is CED’s business practice ) or to “regulated automotive repair facilities” (as EPA alleged in its Application for Warrant) could in any way result in CED’s knowing participation in the removal or rendering inoperative of an emission control device by an automobile manufacturer, dealer, fleet operator, or repair shop. The most that could be alleged by EPA is that CED’s products might 17 make it easier or quicker for the actions prescribed by the Clean Air Act to occur. However, any entity described in section 203(a)(3) which has pipe-bending machinery and tubular steel at its premises could create a device which could be used to remove or render inoperative a catalytic converter.'° By following the analysis of the Seventh Circuit, EPA could allege that the manufacturer of the pipe-bending machine, or the supplier of steel tubing, could “‘cause” a violation of the Clean Air Act. Indeed, CED’s equipment vendors and suppliers of raw materials could, under the Seventh Circuit’s analysis, be deemed to have “caused” a violation of the Clean Air Act, and therefore be subjected to searches and seizures. Surely this result could not have been intended by the Seventh Circuit, and action by the Supreme Court is necessary to correct the impression to the contrary left by the appellate court’s opinion. There is, and can be, no support for EPA’s assertion that its search is permissible simply to determine “whether” a violation of the Clean Air Act may have occurred. Just as a constable may not be allowed to enter a home to determine whether a crime may be taking place, EPA may not randomly inspect a business entity and search its premises to determine whether a violation “may have” occurred. The panel’s opinion gives EPA carte blanche to inspect the records of any business or person so long as the search is claimed to be under a legislative frame- work. EPA has not even advanced the theory of how CED’s has violated the Clean Air Act. The substitution of boilerplate language for specificity strips the magistrate of his probable cause function. See Marshall v. Barlow’s, 436 U.S. at 324. Indeed, the very purpose of the warrant requirement is to have the probable cause determination made by a detached 10 Tronically, muffler shops are the least likely installers of Test Tubes, since most shops possess the machinery to fabricate pipe for less money than the cost of a Test Tube. 18 judicial officer rather than an overzealous law enforcement agency. See Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971). Under the Seventh Circuit’s framework, since “every- one” is subject to the Clean Air Act, the magistrate now serves merely a rubber stamp function. EPA no longer has to allege that a search is part of a legislative scheme or even that a violation has occurred. It need not even advance a scintilla of evidence as to whether a supposed violation has occurred. As long as it is conceivable to the mind of one EPA employee that one can “cause” a violation, no further analysis by a court is permitted or necessary in the Seventh Circuit. The Seventh Circuit’s holding is applicable not only to manufacturers of automotive parts, but to any organization or entity within the stream of commerce. This surely is not the intent of the framers of the Clean Air Act. In short, EPA’s warrant application falls far short of meeting the Barlow’s test for probable cause. By ignoring the strict requirements of the Fourth Amendment, the Seventh Circuit has removed the important function of a neutral and detached magistrate and instead leaves him to rubber-stamp EPA requests for search warrants. EPA may now merely assert that it wishes to ascertain whether a violation may have been committed. This Court should correct the Seventh Circuit’s error. 19 CONCLUSION For reasons set forth herein, the petition for a writ of certiorari to review the opinion of the United States Court of Appeals for the Seventh Circuit entered in this proceeding on September 28, 1984 should be granted. Respectfully submitted, JERALD P. Esrick Counsel of Record for Petitioner CED’s, Inc., d/b/a PRODUCTS FOR POWER OF COUNSEL: JERALD P. Esrick JAMES R. MORRIN CaL R. BURNTON WILDMAN, HARROLD, ALLEN & DIXON One IBM Plaza, Suite 3000 Chicago, Illinois 60611 (312) 222-0400 ARNOLD M. FLANK Arnold M. Flank, Ltd. 2 North LaSalle Street, Suite 2205 Chicago, Illinois 60602 (312) 236-7742 APPENDIX la APPENDIX TABLE OF CONTENTS Order of the Seventh Circuit granting motion to stay the mandate, dated November 9, 1984........... Order of the Seventh Circuit denying petition for rehearing with suggestion for rehearing en banc, ga TT Opinion of the Seventh Circuit, dated September i, SNE cic iadeabdiahainacehiabialstanainsdasconibeeubeiactaadbdesenes Supplemental memorandum opinion and order of district court, dated November 1, 1983.................. Memorandum opinion and order of district court, I iabinieiccicciaiiniihidid sasuidsiabbapsamennes Memorandum opinion in National Muffler Manu- facturing Co., Inc. v. U.S. E.P.A., No. C83-929A (N.D. Ga. September 21, 1963 )......ccccccosccccocccccceeee Warrant of Entry issued by Magistrate Sussman, ee I UD oltaheseicssiaMrcctimmicaiccndsdatcsinces EPA Application for Warrant, dated Apri 5, PAGE 2a EXHIBIT A United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 November 9, 1984. Before . Hon. Jesse E. ESCHBACH, Circuit Judge CED’S, INC., d/b/a PRODUCTS | : FOR POWER, Aa Appeal from the | Plaintiff-Appellee, United States Dis- No. 83-2608 - trict Court for the Northern District of UNITED STATES ENVIRONMEN- > Illinois, Eastern Di- TAL PROTECTION AGENCY and vision. LEE THOMAS, Acting Adminis- No. 83 C 2409 trator, United States Environmental John A. Nordberg | Protection Agency, Judge | Defendants-Appellants. j On consideration of the “CED’S, INC."S MOTION FOR STAY OF MANDATE PENDING APPLICATION TO THE SUPREME COURT FOR A WRIT OF CERTIORARI” filed herein on November 3, 1984, by counsel for plaintiff-appellee, IT IS ORDERED that said motion is hereby GRANTED and the mandate of this court is STAYED to and including December 10, 1984. 3a EXHIBIT B United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 October 29, 1984 Before Hon. Jesse E. ESCHBACH, Circuit Judge Hon. JoeL M. Flaum, Circuit Judge Hon. WILLIAM J. JAMESON, Senior District Judge* CED’S _INC., d/b/a PRODUCTS | Appeal from the FOR POWER, 4 United States Dis- Plaintiff- Appellee, trict Court for the No. 83-2608 vs. Northern District of Illinois, Eastern Di- UNITED STATES ENVIRONMEN- [f vision. TAL PROTECTION AGENCY, and LEE THOMAS, Acting Adminis- No. 83 C 2409 trator, United States Environmental John A. N. -dberg, Protection Agency, Judge. Defendants-Appellants. | ORDER On consideration of the petition for rehearing and sug- gestion for rehearing en banc filed in the above-entitled cause by plaintff-appellee, no judge in active service has requested a vote thereon, and all of the judges on the original panel have voted to deny a rehearing. Accordingly, IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED. * The Honorable William J. Jameson, Senior District Judge for the District of Montana, sitting by designation. 4a EXHIBIT C in the United States Court of Appeals For the Seventh Cirrnit No. 83-2608 Cep’s INnc., d/b/a PRopucts For Power, Plaintiff-Appellee, Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and LEE Tuomas, Acting Administrator, United States Environmental Protection Agency, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 2409—John A. Nordberg, Judge. ARGUED APRIL 9, 1984—DECIDED SEPTEMBER 28, 1984 Before ESCHBACH and FLAUM, Circuit Judges, and JAMESON, Senior District Judge.* ESCHBACH, Circuit Judge. The Environmental Protec- tion Agency appeals from an order of the district court enjoining it from making use of copies of business records it had obtained from Ced’s Inc. under an administrative warrant and ordering it to return the copies to the com- pany. The principal issue presented is the scope of the * The Honorable William J. Jameson, Senior District Judge, United States District Court of Montana, sitting by designation. Sa 2 No. 83-2608 Environmental Protection Agency’s authority to copy records of companies under section 114(a) of the Clean Air Act. We reverse. I Ced’s Inc. (“‘Ced’s’’), doing business as Products for Power, manufactures and distributes automotive engine exhaust equipment, including a device known as the ““Test Tube,” a length of hollow metal pipe shaped and fitted to replace the catalytic converter in an automobile exhaust system. Under section 203(a) of the Clean Air Act (the “Act’’), 42 U.S.C. § 7522(aX3XB), those in the business of repairing and servicing automobiles are prohibited from permanently replacing a catalytic converter with a pipe such as the Test Tube, although they may temporarily make the substitution for the purpose of determining if the catalytic converter needs to be replaced. The owner of an automobile is not prohibited from permanently re- placing its catalytic converter with a Test Tube. Ced’s markets the Test Tube nationwide, but exclusively to warehouse distributors, not directly to retailers or auto- motive repair facilities. The Environmental Protection Agency (“EPA’’) suspects that the unlawful permanent installation of catalytic con- verter replacement pipes by automotive repair and serv- ice facilities is a pervasive problem with potentially far- reaching deleterious environmental consequences. It has accordingly been investigating the practice. On April 5, 1983, the EPA applied to a magistrate for an administrative warrant under section 114(a) of the Act, 42 U.S.C. § 7414(a), authorizing the examination and copy- ing of certain of Ced’s business records pertaining to the promotion and sale of the Test Tube. The application was based on evidence which, the EPA claimed, established administrative probable cause to believe that Ced’s may have caused certain automobile repair facilities to remove catalytic converters permanently and to replace them with Test Tubes in violation of section 203(a) of the Act. The 6a No. 83-2608 3 magistrate issued the warrant ex parte. On April 6 EPA agents served the warrant, entered Ced’s facility during normal business hours, and examined and copied docu- ments. While the inspection was in progress, Ced’s filed with the magistrate a motion to quash the warrant. A hearing was held on April 6, and the magistrate denied the motion. On April 7 Ced’s filed a motion in the district court seeking a temporary restraining order or preliminary in- junction enjoining execution of the warrant and ordering the return of the documents, and a complaint requesting a permanent injunction forbidding the EPA to enter Ced’s premises and to inspect Ced’s records. On the same day the EPA filed a motion to dismiss the complaint. The court held hearings on these motions and on July 1 signed an order and issued a memorandum opinion denying the EPA’s motion to dismiss, granting a permanent injunc- tion prohibiting the EPA from making any use of ma- terials obtained from Ced’s under the administrative warrant, and ordering the EPA to return those materials, including any copies, to the company. The order was entered on July 6. On July 22 the EPA filed its mot‘on for stay pending appeal, and on August 5 the district court stayed com- pliance with that portion of its order that required the EPA to return to Ced’s copies of documents that were inspected pursuant to the administrative search warrant. On August 31 the EPA filed its notice of appeal to this court. On November 1 the district court (apparently viewing its order of August 5 as merely an interim order) entered a second order with respect to the EPA’s motion for stay pending appeal, this time denying the motion but per- mitting the EPA to retain the copies of Ced’s documents pending the appeal, without using them in any way. At- tached to the order was a supplemental memorandum opinion which did not address itself to the EPA’s motion for a stay but instead set forth additional grounds in sup- 7a 4 No. 83-2608 port of its order of July 1 granting a permanent injunc- tion. The additional grounds took the form entirely of con- clusions of law; there were no new findings of fact. In this appeal the EPA contends that the district court erroneously determined that the EPA had no authority under section 114(aX2XB) of the Act to inspect and copy Ced’s business records and that the district court ex- ceeded its jurisdiction by issuing a supplemental memo- randum opinion amending its previous order after the EPA had filed its notice of appeal. II Because it affects the scope of our review, we consider first the question whether the district court exceeded its jurisdiction in issuing the supplemental memorandum opin- ion on November 1, nearly four months after judgment was entered and two months after the EPA filed its notice of appeal. As the EPA points out, there is a general rule that the filing of a notice of appeal divests the district court of jurisdiction over the matters appealed. Lenard v. Argen- to, 699 F.2d 874, 898 (7th Cir.), cert. denied, 104 S. Ct. 69 (1983); United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir. 1982), cert. denied, 103 S. Ct. 1790 (1983); McClatchy Newspapers v. Central Valley Typographical Union No. 46, 686 F.2d 731, 734 (9th Cir.), cert. denied, 103 S. Ct. 491 (1982). There are exceptions for certain ac- tions — to preserve the status quo pending the ap- peal, United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951), or to assist the court of appeals in its determination. United States v. Lafko, 520 F.2d 622, 627 (3d Cir. 1975).? 1 The rule does not operate where there is a purported appeal from a non-appealable order. United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir. 1982), cert. denied, 103 S. Ct. 1790 (19838). Even though there is no judgment of record, the order of perma- (Footnote continued on following page) 8a No. 83-2608 5 We are persuaded that none of the exceptions to the rule is applicable here. Even if the district court was motivated by a desire to assist this court in its determina- tion by stating additional conclusions of law on the basis of which this court might affirm the order, the assistance in this case came too late.? The filing of a notice of ap- peal sets the appellate clock running, and the parties and the clerk of the court become subject to deadlines imposed by the rules. The parties to an appeal are entitled to have a stable set of conclusions of law on which they can rely in preparing their briefs. The district court issued its sup- plemental memorandum opinion only a week before ap- pellant EPA’s opening brief was due, making it necessary for the EPA to prepare a supplemental brief and appen- dix and requiring the preparation of a supplemental record on appeal. The district court stated at the hearing on the EPA’s motion for stay pending appeal that because of the issues raised the court would treat it “in effect, as the equivalent 1 continued nent injunction purports to be a final adjudication of the merits, and both parties founded appellate jurisdiction on 28 U.S.C. § 1291. We take it that they have waived the requirement of Rule 58 that a judgment be entered on a separate document. See Bankers Trust Co. v. Mallis, 485 U.S. 381, 384-85 (1978). We note also that the district court entered its final order before the EPA had filed an answer. Although such procedure is ir- regular, the EPA did not assign it as error, and our review of the transcripts satisfies us that the EPA’s position on the matters raised in the complaint was adequately presented to the district court and to Ced’s. Because of the posture in which we find this matter and the finality of the district court’s order, we do not view the absence of an answer in this case as a barrier to our review under 28 U.S.C. § 1291. 2 We note in ing that the supplementation of findings of fact is governed by Fed. R. Civ. P. 52tb), and the effect of a Rule 52(b) motion on the time for appeal is governed by Fed. R. App. P. 4(aX4). Since the district court did not make any new or amended findings of fact in its supplementary memorandum opinion, Rule 52(b) does not apply. 9a 6 No. 83-2608 of a motion to reconsider.” Transcript of Hearing, July 22, 1988, at 5. Under Rule 4(aX4) of the Federal Rules of Appellate Procedure, a timely motion under Rule 59 of the Federal Rules of Civil Procedure postpones the time for appeal until the entry of an order granting or denying the motion, and a notice of appeal filed before the disposition of the motion has no effect. For purposes of Rule 4(a), a motion to reconsider is treated as a Rule d%e) motion. Lenard ». Argento, 699 F.2d 874, 898 (7th Cir.), cert. denied, 104 S. Ct. 69 (1983). But even if we view the EPA’s motion to stay as a motion to reconsider, and thus as equivalent to a Rule 5%e) motion, it was clear- ly out of time. Rule 5%e) sets a limit of ten days after entry of judgment, and the EPA’s motion was filed later. Rule 4(aX4), therefore, does not apply. Accordingly, the district court’s supplemental memoran- dum opinion of November 1, 1983 is vacated. We thus need not consider the EPA’s assignments of error relat- ing to that opinion. III A We come now to the central issue in the case: whether the EPA had authority to carry out its inspection and copying of Ced’s records. The EPA bases its assertion of authority over Ced’s on the premise that Ced’s is a “person .. . subject to any requirement of the Act,” within the meaning of section 114(aX1).3 Specifically, the 3 Section 114(aX1), as codified at 42 U.S.C. § 7414(aX1), reads in pertinent part as follows: (1) The Administrator may require any person who owns or operates any emission source or who is subject to any require- ment of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title) with respect to a provision of subchapter II of this chapter to (A) estab- lish and maintain such records . . . as he may reasonably re- quire... (Footnote continued on following page) 10a No. 83-2608 7 EPA asserts, Ced’s is subject to section 203(a), which enumerates certain prohibitions. Ced’s denies that it is subject to section 203(a) or to any other requirement of the Act.4 We agree with the EPA. Section 203(a) begi Pug following acts and the caus- henge Ad .” 42 U.S.C. § 7522(a) (em- phasis added) oun (3XB) reads: for any person e in the business of repairing, servicing, selling, leasing, or trading motor vehicles or motor vehicle engines, or who operates a fleet of motor vehicles, knowingly to remove or render in- operative any device or element of design installed on or in a motor vehicle or motor vehicle e in compliance with regulations under this subchapter —— its sale and delivery to the ultimate pur- chaser. = § 7522(aX3XB). Ced’s, along with everyone else, is deni is Gaba by section 203(a) from causing any act in subsection (3XB). Compliance with this pro- hibition is a requirement of the Act; therefore, Ced’s i subject to a requirement of the Act. Ced’s argues that it is not subject to section 203(a) be- cause the of Test does not constitute causing an act prohibited by section 203(aX3XB). Test 3 continued The exception for certain manufacturers is irrelevant in the nt context, and we shall not take further notice of it. In we think that the hrase “with respect to a provi sion of subchapter II of this chapter” has been in the Code. ing to the technical amendment that its in- sertion, it aie fhe usc within 4 Although the district court did not address itself to this issue oe eee a on 1, Ced’s raised it in proceed- ings before the district court both parties have discussed it in their briefs to this court. ’ Accordingly, we consider it here. lla - No. 83-2608 Tubes, Ced’s contends, have perfectly legal uses; not every use violates that prohibition. Test Tubes can be per- pongo poe by automobile Masood , my own cars y auto e repairmen temporarily for the pur- pose of veri the need to replace the catalytic con- verter, all without ae any ‘any prohibition of the Act. The mere fact that Ced’s actures and sells Test Tubes thus does not pa ine inference that it is caus- ing anyone to install a Test Tube unlawfully. This ment fails because it confuses being subject to the with being in violation of the Act. Ced’s is subject to the Act because the Act prohibits Ced’s from causing an act prohibited in section 203(aX3XB); whether Ced’s has ac- tually caused such a prohibited act, or whether there is even probable cause to think that Ced’s has done so, is not pertinent. Ced’s argues further that the prohibition against caus- ing an act prohibited in section 203(aX3XB) applies only to the persons identified in that section: any person en- in the business of repairing, servicing, selling, leas- ing, or trading motor vehicles or motor vehicle engines, or who —" a fleet of motor vehicles. It is clear that the eo ition against knowingly removing antipollution them e applies only to per- sons poy the identified class. But the pines B of the stat- ute gives no reason to ee ee ition against causing such a prohibited act applies only to persons in the same class. Congress yaa ve written in such a — but it did not, and we decline to supply it ere. Ced’s argues finally that Congress has recognized that Ced’s does not presently fall within the “caus provi- sion of section 203(a), i e ean Air Act Amendments of 1982 made s expressly subject to section 203(a).5 But the fact that proposed legislation 5 According to the proposed amendment, section 203(aX3) was to be supplemented with the following prohibition: (Footnote continued on following page) 12a No. 83-2608 9 introduces new prohibitions to which Ced’s would be sub- ject does not tend in the slightest to show that Ced’s was in no way covered by the existing prohibitions. There is support in the legislative history of the Clean Air Act ts of for the conclusion that Ced’s is subject to the requirements of the Act. The 1977 amend- ments added to the class of persons covered by section 114(a) all persons 7 to any requirement of the Act. See infra pp. 12-13. Conference Report explained the effect of the revisions to section 114(a) as follows: (Tlhe conference agreement permits the Adminis- trator to enter, inspect, test, or require testing on the premises (sic: of] any person other than a new motor vehicle manufacturer in order to carry out and — - requirements gpd foe th