Petition for Writ of Certiorari — V-1 Oil Co. v. Gerber
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- Supreme Court, U.S,
* FILED
90-1 82 ju. 23 Wee
JOSEPH F. SPANIOL, JR.
No. CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
V-1 OIL COMPANY,
US.
STEVEN P. GERBER, Respondent.
Petitioner,
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Law Offices of Andrews & Anderson, P.C.
F. M. ANDREWS, JR., ESQ.
ROBERT O. ANDERSON, ESQ.
Broadway and Park :
Riverton, Wyoming 82501
(307) 856-9279
Attorneys for Petitioner
V-1 Oil Company
QUESTION PRESENTED FOR REVIEW
IS THE ADVICE OF AN ATTORNEY, STANDING
ALONE, THAT A STATE STATUTE ALLOWS
WARRANTLESS INSPECTION, A SUFFICIENTLY
EXTRAORDINARY CIRCUMSTANCE TO ALLOW
THE DEFENSE OF QUALIFIED IMMUNITY TO
STAND ON SUMMARY JUDGMENT, WHEN THE
LAW PROHIBITING SUCH WARRANTLESS IN-
SPECTIONS WAS CLEARLY ESTABLISHED, AND
THE ADVICE SOUGHT AND GIVEN DID NOT CON-
CERN THE CONSTITUTIONALITY OF THE ADMIN-
ISTRATIVE SEARCH STATUTE.
LIST OF PARTIES
All the parties are listed in the case caption.
li
TABLE OF CONTENTS
PAGE
Question Presented For Review ................. i
eae eee eseccetccuctecesee ii
en cea neisud buenas iii
EE ree iv
is cad ab ek bes ec0vssssceeeese l
ce ceed ea seseceecsesesecs 2
Constitutional Provisions and Statutes Involved... 2
ee es Se cwiseccctceseces 5
Reasons for Granting the Writ .................. 8
I. Resolution of the Questions is Necessary
to settle an Important Federal LawIssue .... 8
II. The Court’s Decision is in Conflict With
Its Own Prior Holdings and Decisions of
The Eighth Circuit Court of Appeals ........ 12
Ts eels wékeda ese d 6d ek eeees 13
NE A
A. Opinion of the United States Court of
Appeals for the Tenth Circuit in V-/ Oil
Company v. State of Wyoming, Department
of Environmental Quality; Steven P. Gerber,
F’ ke Se re A-1
B. Order of the United States District Court
Granting Defendant’s Motion for
Ee B-1
ce ckeeenseneucs
ea cd ce wes eb eadess euesees
ili
_ TABLE OF AUTHORITIES
Cases
Alexander v. Alexander, 573 F. Supp. 373, 375,
m. 4 (MLD. Tema. 19GB)... onc ccccccccccccess
Burk v. Unified School District No. 329,
646 F. Supp. 1557, 1568 (D. Kan. 1986) .....
Donovan v. Dewey, 425 U.S. 594, 600, 602, 603
EE hau suk deus Gace eaaseesebd ones 0
England v. Hendricks, 880 F* 281, 284
GRE, SEED. aca cdecdasesescacusccene
Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738, 2739, (1982) .........
Johnston v. Koppes, 850 F’ 594, 596
a 5d aa ca ecdeteeeve ceases
Lavicky v. Burnett, 758 F’ 468, 476
EE a used iNbsev dace s sce
Lutz v. Weld County School District,784 F*
340, 342-343 (10th Cir. 1986) ..............
Marshall v. Barlow’s, Inc. 436 U.S. 307, 313-314
DD ctclechnduad suede adveeeescesn0
Melton v. City of Oklahoma City, 879 F° 706,
730-731 (10th Cir.), reh’g. en banc, 888 F°
PE Eo neste endbncennses
Mitchell v. Forsythe, 472 U.S. 511, 86 L. Ed’.
411, 105 S. Ct. 2806 (1988) ................
New York v. Burger, 482 U.S. 691 (1987) ......
Ortega v. City of Kansas City, Kansas,
659 F. Supp. 1201, 1211, (D. Kan. 1987) .......
Powell v. Mikulecky, 891 F’ 1456, 1457
es atte csi d eek uewcens
iv
PAGE
See v. City of Seattle, 387 U.S. 541, 546,
8 Ee per oe pods La hee pies eee aan 8
Tanner v. Hardy, 764 F’ 1024, 1027,
GUN EE a hak b en eed akeee dsb odes 9
V-1 Oil Company v. State of Wyoming,
Department of Environmental Quality, and
Steven P. Gerber, 696 F. Supp. 578
Se WL NS sk ok cae ak coe kkebe 1
V-1 Oil Company v. State of Wyoming,
Department of Environmental Quality, and
Steven P. Gerber, F’
Gee ES Siva cassdeseerieidamek. 1
Watertown Equipment Co. v. Norwest Bank of
Watertown, 830 F’ 1487, 1490, 1495
TR cus 9, 10, 13
Wentz v. Klecker, 721 F° 244, 247
ee ey oe re ey, 2 ee 9, 10
Rules, Statutes and Constitutional Provisions
SS Shas LD a bao 5k sdbecsa. eee 6
ae Seas E's sca ca views caenein ne 2
a ae S| mr en Tt 6
Ss ee ne nc ca ea eee 3, 4,6
Wyo. Stat. § 35-11-109(a) (vi) (1977,
I See 4, 5, 6, 7
Constitution of the United States,
IP eich Geo a. ee
Constitution of the United States,
Amendment V .............. Si ee eae y ae ey
Constitution of the United States,
SE oot 4 ee as
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
V-1 OIL COMPANY,
US.
STEVEN P. GERBER, Respondent.
Petitioner,
> om
aol
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
To the Honorable, The Chief Justice and Associate
Justices of the Supreme Court of the United States:
V-1 Oil Company, petitioner herein, prays
that a writ of certiorari issue to review the judg-
ment of the United States Court of Appeals for
the Tenth Circuit entered in this case on April
30, 1990.
OPINIONS BELOW
The majority and dissenting opinions of the Court of
Appeals for the Tenth Circuit entered April 30, 1990, has
not yet been reported. A copy of the opinion is attached.
(Appendix A). The opinion of the U.S. District Court is
reported at 696 F. Supp. 578 (D. Wyo. 1988). The Order
l
Granting Defendant’s Motion for Summary Judgment was
entered September 28, 1988. A copy of the Order is
attached. (Appendix B).
JURISDICTION
The Judgment of the United States Court of Appeals
was entered on April 30, 1990. Jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The following constitutional provisions and statutes
are involved:
Constitution of the United States, Amendment IV
Security from Unwarrantable Search and Seizure
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
Constitution of the United States, Amendment V
Rights of Accused in Criminal Proceedings
No person shall be held to answer for a capital, or
2
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of War or public danger; nor shall any person be
subject for the some offense to be twice put in jeopardy of
life or limb; nor shall he be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation.
Constitution of the United States, Amendment XIV
Section 1. Citizenship Rights Not to Be Abridged
by States
All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, witnout due process of law; nor deny to any per-
son within its jurisdiction the equal protection of the
laws.
Title 42 U.S.C. § 1983
Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other per-
son within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitu-
tion and laws, shall be liable to the party injured in an
3
a
action at law, suit in equity, or other proper proceeding for
redress. For the purposes of this section, any Act of Con- \
gress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of
Columbia.
§ 35-11-109, W.S. 1977, Amended 1988.
Powers and duties of director.
(a) In addition to any other powers and duties
imposed by law, the director of the department
shall:
(vi) Designate authorized officers, employees
or representatives of the department to enter and
inspect any property, premise or place, except
private residences, on or at which an air, water or
land pollution source is located or is being con-
structed or installed, or any premises in which
any records required to be maintained by a sur-
face coal mining permittee are located. Persons
so designated may inspect and copy any records
during normal office hours, and inspect any mon-
itoring equipment or method of operation re-
quired to be maintained pursuant to this act at
any reasonable time (upon reasonable notice)
upon presentation of appropriate credentials,
and without delay, for the purpose of inves-
tigating actual or potential sources of air, water or
land pollution and for determining compliance or
noncompliance with this act, and any rules, reg-
ulations, standards, permits or orders pro-
mulgated hereunder. For surface coal mining
operations, right of entry to or inspection of any
4
operation, premises, records or equipment shall
not require advance notice. The owner, occupant
or operator shall receive a duplicate copy of all
reports made as a result of such inspections
within thirty (30) days. The department shall
reimburse any operator for the reasonable costs
incurred in producing copies of the records
requested by the department under this ¢ ection;
STATEMENT OF THE CASE
MATERIAL FACTS
Petitioner V-1 Oil Company owns and operates a self-
service gasoline station in Lander, Wyoming. It sells retail
gasoline and liquified petroleum gas to retail customers.
On April 28, 1988, the dirt and concrete had been
removed from the top of the gasoline storage tanks pre-
paratory for a pressure test for leaks pursuant to an order
of the Wyoming Environmental Quality Council. Respon-
dent Steven Gerber is an engineer with the Department of
Environmental Quality, Water Quality Division (DEQ).
On April 28, 1988, Mr. Gerber drove by the station and saw
concrete being broken out. He thought some storage tanks
were being removed and wanted to inspect the work. He
could not see the tanks without being on the property.
(Gerber Deposition, pp. 16, 17, 27). On that morning while
excavation was first in progress, Mr. Gerber came to the
excavation site and was asked to leave by the station
manager for V-1. The area had been roped off from the
general public with barrels, piping and flags. (Evans’
Deposition, pp. 15, 24-25; Wood Affidavit, Document No.
15). Mr. Gerber returned about 1:30 p.m. and again was
asked to leave the premises by Mr. Leonard Wood, V-1’s
area manager. Rick Evans, the station manager, on the
5
same day, told the day worker, Steve Drake, who came on
duty at approximately 3:00 p.m., that if any DEQ people
came to inspect, they were to be told to stay in the station
until he, Rick Evans, could get there. During the day, Ger-
ber had contacted Steve Jones, Assistant Attorney Gen-
eral for Wyoming, who advised him that § 35-11-109(a) (vi)
permitted warrantless searches. (Gerber Affidavit, Jones’
Affidavit, in support of Motion for Summary Judgment).
Mr. Gerber again returned to the station at 8:20 p.m.,
when all management people were gone, for the purpose of
gathering evidence of a possible DEQ violation. (Gerber
Deposition, pp. 16-21). He was accompanied by two peo-
ple, one of whom was a policeman. He showed the atten-
dant a business card and identified himself. He was told by
the station employee he was to stay in the station until Rick
Evans, the manager, arrived. Nevertheless, Gerber, claim-
ing he had the authority to inspect “under state law”
(Drake Deposition, pp. 7, 11, 13, 22), then proceeded to the
excavation site, took a sample of dirt, which he handed to
the policeman who had accompanied him, who then left
with the sample. When a demand for the return of the sam-
ple was made by Mr. Evans, Mr. Gerber stated he did not
have the sample. He later retrieved the sample from the
policeman. (Gerber Affidavit, Ex. 5).
PROCEEDINGS BELOW
Petitioner V-1 Oil Company brought this action in the
United States District Court, District of Wyoming, pur-
suant to 42 U.S.C. § 1983. Jurisdiction of that Court is
based on 42 U.S.C. § 1983, 28 U.S.C. § 1331 and 18 U.S.C.
§ 1343(3).
Named as defendants were the State of Wyoming,
Department of Environmental Quality and Steven P. Ger-
ber, alleging a warrantless search of V-1’s premises and
6
the seizure of a sample of soil, in violation of plaintiff's 4th,
5th and 14th Amendment rights to be free from unreason-
able search and seizure and to not be deprived of its pro-
perty without due process.
Defendants claimed 11th Amendment immunity on
behalf of the State and qualified good faith immunity on
behalf of Gerber, and further claimed that Gerber was law-
fully on the premises under the authority of § 35-11-109(a)
(vi) of the Wyoming Environmental Quality Act.
On Motion for Summary Judgment, the Honorable
Alan R. Johnson, Judge, granted the State’s Motion based
on its 11th Amendment immunity. The District Court
further found that § 35-11-109(a) (vi) allowed warrantless
searches; that the search was reasonable; that there was no
clearly established law prohibiting Gerber’s actions.
On appeal, the Tenth Circuit Court of Appeals, revers-
ing in part, found that the subject statute authorized
warrantless searches, but that the statute did not provide a
constitutionally adequate substitute for a warrant; that the
law was clearly established and that Gerber’s warrantless
search violated petitioner’s 4th Amendment rights.
The Court then held that Gerber was qualifiedly
immune, (Judge Ebel dissenting) on the grounds of ex-
traordinary circumstances, i.e., that the statute had never
been tested in any court and that an Assistant Attorney
General advised Gerber that the statute authorized
warrantless searches. Gerber neither inquired, nor was he
advised, that the statute violated the Petitioner V-1’s con-
stitutional rights.
The defense of “extraordinary circumstances” was
never raised by their Respondent Gerber in the lower
Court, nor in the Circuit Court of Appeals. This defense
was brought up by the Circuit Court for the first time in
its opinion.
REASONS FOR GRANTING THE WRIT
I. Resolution of the Questions is Necessary to Settle
an Important Federal Law Issue
A. Introduction
The law requiring that a statute purporting to permit
warrantless searches must provide a constitutionally ade-
quate substitute for a warrant, has long been established.
Administrative searches conducted pursuant to statute of
general application require a search warrant. See v. City of
Seattle, 387 U.S. 541, 546 (1967); Marshall v. Barlow’s, Inc.,
436 U.S. 307, 313-314 (1978). The statute inspection pro-
gram in terms of certainty and regularity of its application
must provide a constitutionally adequate substitute for a
warrant. New York v. Burger, 482 U.S. 691 (1987), Donovan
v. Dewey, 425 U.S. 594, 600, 602, 603 (1981). Government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established rights of
which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 2739
(1982). The test is an objective standard. /bid. at 818, n. 30,
102 S.Ct. 2739, n.30.
... The judge appropriately may determine, not
only the current applicable law, but whether that
law was clearly established at that time . . . if the
law was clearly established, the immunity de-
fense will ordinarily fail, since a reasonably com-
petent public official should have known the law
governing his conduct. Nevertheless if the official
pleading the defense claims extraordinary cir-
cumstances, and can prove that he neither knew
8
ora
nor should have known of the relevant legal stan-
dard, the defense should stand.
Harlow, supra, at 818, 102 S.Ct. at 2739.
B. The Advice of Counsel Alone, Is Not An
“Extraordinary Circumstance”’.
The question of the advice of counsel constituting a
factual defense of extraordinary circumstances has
never been decided by the Supreme Court. Indeed, what
may or may not constitute “extraordinary circumstances”
has never been addressed. Consequently, the law is unset-
tled and district and circuit courts have applied a variety of
rulings to deal with this issue.
Reliance on advice of counsel has upheld the
defense of qualified immunity in “perilous” situations,
Tanner v. Hardy, 764 F°1024, 1027 (4th Cir. 1988), (whether
to release or hold juvenile rapist beyond sentence); “uni-
que” situation, Wentz v. Klecker, 721 F° 244, 247 (8th Cir.
1983), (whether employee entitled to hearing under state
law, when law and employee’s status as contract employee
not clear); law unclear or unsettled, Mitchell v. Forsythe,
472 U.S. 511, 86 L.Ed’. 411, 105 S.Ct. 2806 (1988),
England v. Hendricks, 880 F’ 281, 284 (10th Cir. 1989), Alex-
ander v. Alexander, 573 F. Supp. 373, 375, n. 4 (M.D. Tenn.
1983), Burk v. Unified School District No. 329, 646 F. Supp.
1557, 1568 (D. Kan. 1986).
The defense of qualified immunity based on advice of
counsel has been denied, when law clearly established.
Watertown Equipment Co. v. Norwest Bank of Watertown,
830 F’ 1487, 1490 (8th Cir. 1987); advice did not address
constitutionality of the dismissal procedure invoked,
Johnston v. Koppes, 850 F’ 594, 596 (9th Cir. 1988). Reliance
on the advice of counsel alone will not satisfy an official’s
9
burden of acting reasonably. Wentz v. Klecker, supra, 247,
Watertown Equipment Co. v. Norwest Bank of Watertown,
supra, at 1495; advice of counsel in certain circumstances
rises to the level of extraordinary circumstances and is an
evidentiary issue to be presented to the jury. Ortega v. City
of Kansas City, Kansas, 659 F. Supp. 1201, 121), (D. Kan.
1987). Cf. Burk v. Unified School District No. 329, supra, at
1568, advice of counsel no defense on award of attorney’s
fees to prevailing plaintiff.
C. The Defense Of Extraordinary
Circumstances Based On Advice of
Counsel Raises a Factual Issue
In Lutz v. Weld County School District, 784 F° 340 (10th
Cir. 1986), the Tenth Circuit outlined the procedural steps
necessary for determining whether a defendant is entitled
to the defense of qualified immunity. The defendant must
first assert the defense, i.e., that he was performing a dis-
cretionary duty. Plaintiff must then prove that the law
relied on by plaintiff was clearly established at the time of
the alleged deprivation of civil rights. If the Court deter-
mines that the law was not clearly established, the Court
must enter judgment for the defendant, id. at 342-343. If, on
the other hand, the plaintiff convinces the Court that the
law was Clearly established, the Court must proceed to de-
termine whether the defendant has raised a fact issue as
to whether “exceptional circumstances” exist such that a
reasonable person in his position would not have known of
the relevant legal standard. If the defendant raises such a
fact issue, the defendant is entitled to a jury instruction on
the defense. If no fact issue is raised, the defendant is not
entitled to the defense as a matter of law.
In summation, the consensus of the opinions of the
various courts lean toward a granting of the defense when
10
the law was unsettled or the applicable statute unclear,
and toward a denial of the defense of qualified immunity
when the law was settled, unless the defendant raises a suf-
ficient factual issue of extraordinary circumstances to sub-
mit the question to the jury or trier of fact. Advice of
counsel appears to be only one element to be considered,
when extraordinary circumstances are claimed.
In the case at bar, the Tenth Circuit, without the
assertion of the defense of extraordinary circumstances by
the defendant, simply found as a matter of law that,
although the rights of the plaintiff were clearly settled, per
Donovan v. Dewey, supra, New York v. Burger, supra, and
Marshall v. Barlow’s, Inc., supra, the fact that the con-
stitutionality of the statute had not been judicially deter-
mined by any court, and that although the advice of council
was simply that the statute “permitted” warrantless entry,
without opinion as to the constitutionality of the statute,
constituted an extraordinary circumstance, thereby sub-
verting the plaintiff's right to have the question of rea-
sonableness submitted to a trier of fact.
The advice of counsel even of the dignity of a State’s
attorney general, coupled with the absence of a prior deci-
sion establishing that a specific search statute is uncon-
stitutional, is not such an extraordinary circumstance as to
warrant granting qualified immunity. To so hold would
negate the force of this Court’s historic rulings on the need
to protect a clearly established right.
There are literally hundreds of laws which have
never been tested for their constitutionality. To allow the
defense of advice of counsel that such a law “permits” the
proscribed act, would simply eliminate the clearly estab-
lished right, and render any attorney’s opinion an extraor-
dinary circumstance, when the issue of constitutionality is
neither requested nor tendered.
11
Any public employee acting under a warrantless
search statute can circumvent “clearly established” rule
by pointing out to the trial court that the statute has not
been tested or declared unconstitutional and that he acted
on advice of counsel. The danger is that counsel is not the
person whose reasonableness is being measured.
II. The Court’s Decision Is In Conflict With Its Own
Prior Holdings And Decisions Of The Eighth
Circuit Court of Appeals
A. Introduction
In the case at bar, the Circuit Court held as a matter of
law that the petitioner’s right not to be inspected without a
search warrant pursuant to such a statute as the Wyoming
Environmental Quality Act was clearly established. The
Court then ruled that extraordinary circumstances “pre-
vented” the respondent from knowing the relevant legal
standard. These extraordinary circumstances were: the
Assistant Attorney General’s advice that the statute per-
mitted such search and that the statute had not been pre-
viously tested in any court. Appendix A-14.
The Tenth Circuit Court has previously held that
when a duty is unclear, it is a defense that the defendant
relied on the advice of the prosecuting attorney’s office.
Lavicky v. Burnett, 758 F° 468, 476 (10th Cir. 1985).
The Tenth Circuit Court rejected the defense of
advice of counsel in Melton v. City of Oklahoma City, 879 F°
706, 730-731 (10th Cir.), reh’g. en banc granted on other
grounds, 888 F’ 724 (10th Cir. 1989) stating:
Where the law is clearly established, there is no
justification for excusing individuals from lia-
bility for their actions.
12
Reliance on legal advice is not a factual dispute, but
rather is a legal question of whether counsel’s advice was
objectively reasonable in light of the prevailing law. Powell
v. Mikulecky, 891 F° 1456, 1457 (10th Cir. 1989).
On the other hand, the Eighth Circuit seems to square
with the majority of the District and Circuit Court cases
which require advice of counsel to be considered, when the
law is unclear and unusual facts exist which would prevent
a reasonable person knowing they violated another’s con-
stitutional rights. Burk v. Unified School District No. 329,
supra, at 1568 (D. Kan. 1986).
The advice of counsel would not satisfy a defendant’s
burden of acting reasonably, where the law is clear, except
in “unique” or “perilous” situations. Watertown Equip-
ment Co. v. Norwest Bank of Watertown, supra, at 1495 (8th
Cir. 1987).
CONCLUSION
The Tenth Circuit Court’s decision granting qualified
immunity on the grounds of advice of counsel coupled with
an untested search statute should not be permitted to
stand. Such a decision will subvert the long established
rule that the defense of qualified immunity is not available
in the absence of the extraordinary circumstances. Such
extraordinary circumstances must be such that would pre-
vent a reasonable public official from knowing that he is
violating the plaintiff's constitutional rights.
For the reasons set forth herein, the petiton for a writ
of certiorari should be granted.
WHEREFORE, petitioner V-1 Oil Company res-
pectfully requests that its petition for writ of certiorari
be granted.
13
Dated this 19th day of July, 1990.
LAW OFFICES OF:
ANDREWS AND ANDERSON, P.C.
aT s
Riverton, Wyoming 82501
Telephone: (307) 856-9279
Attorney for Petitioner
14
APPENDIX A
88-2691
United States Court of Appeals
For the Tenth Circuit
SLIP OPINION
A-l
APPENDIX A
NO. 88-2691
United States Court of Appeals
FOR THE TENTH CIRCUIT
V-1 OIL COMPANY, A Wyoming
corporation
Plaintiff-Appellant,
No. 88-2691
v.
STATE OF WYOMING, Department of
Environmental Quality;
STEVEN P. GERBER,
Nm me mre ee ee eee ee ee”
Defendants-Appellees.
A-2
(D.C. No. C88-0155-J)
Appeal from the
United States Dis-
F. M. ANDREWS, JR., ANDREWS J trict Court For the
AND ANDERSON, P.C., RIVERTON, District of
WYOMING, ATTORNEY FOR PLAIN- Wyoming
TIFF-APPELLANT. (D.C. NO.
C-88-0155-J)
STEVE C. JONES, SENIOR ASSIS-
TANT ATTORNEY GENERAL, AND
KAREN A. BYRNE, SENIOR ASSIS- Before
TANT ATTORNEY GENERAL (JO- HOLLOWAY,
SEPH B. MEYER, ATTORNEY Chief Judge,
GENERAL WITH THEM ON THE ANDERSON
BRIEFS), CHEYENNE, WYOMING, and EBEL,
ATTORNEYS FOR DEFENDANTS.- Circuit Judges.
APPELLEES.
ANDERSON
Circuit Judge.
Plaintiff-appellant V-1 Oil Company (“V-1’’) appeals
an adverse summary judgment and an award of attorneys’
fees rendered by the district court. We affirm.
a ii
BACKGROUND
The district court, V-1 Oil Co. v. Wyoming, 696 F.
Supp. 578 (D. Wyo. 1988), found the following undisputed
facts: Defendant-appelles Steven P. Gerber is an official of
defendant-appellee the Wyoming Department of Environ-
mental Quality (“DEQ”), an agency of defendant-appellee
the State of Wyoming. He was aware that previous inves-
tigations of the V-1 Oil Station in Lander, Wyoming re-
vealed that it was a source of groundwater pollution. On
April 28, 1988, he noticed, while driving by, that the con-
crete above the station’s underground storage tanks was
being removed. Twice he tried to find eut what was being
done, and twice he was refused permission to enter the
_ property. Informed of this, a senior assistant attorney
general tried to obtain a court order allowing Gerber to
inspect the premises, but no judge was available. The
attorney then advised Gerber that the Wyoming Environ-
mental Quality Act (“the Act”) authorized him to conduct
a warrantless search. That evening, Gerber, accompanied
by a policeman and the Lander City Attorney, returned to
the gas station, visually inspected the tanks, and took a soil
sample from the exposed area. Id. at 579-80.
On May 27, 1988, V-1 filed suit under 42 U.S.C. § 1983,
alleging that the search violated V-1’s Fourth Amendment
rights. The district court granted summary judgment for
each defendant. DEQ and the State were dismissed
because of their Eleventh Amendment immunity from suit
in federal court. Jd. at 580. V-1 does not appeal this holding.
Gerber was deemed entitled to judgment because the
statute authorizes warrantless searches, id. at 581, such
searches are constitutional, id. at 582, and Gerber’s con-
duct fell within his qualified immunity because it violated
no clearly established right, id. at 583. The judgment in
favor of Gerber is the subject of No. 88-2691.
A-4
The defendants then filed a motion for attorneys’ fees
under 42 U.S.C. § 1988. They documented the total time
spent on the case, but did not state how many hours were
spent on each particular issue. See R. Vol. I at Tabs 23, 32,
35. In an unpublished order, the court found that V-1’s
claims against the State and DEQ were frivolous and that
for a time V-1 had relied upon an outdated version of the
Act, and decided to award the defendants fees for time
spent addressing those issues. Order, Jan. 19, 1989, R. Vol.
I at Tab 37, at 2-3. V-1 does not appeal these conclusions.
The court then estimated that the defendants spent
twenty-two hours responding to these claims, and awarded
fees based upon that estimate. Jd. at 2. Whether the court
was entitled to estimate how much time was spent on the
issues upon which it awarded attorneys’ fees, or instead
should have required that the movants’ records be broken
down by issue, is the subject of No. 89-8011.
DISCUSSION
I. WARRANTLESS SEARCH
A. Whether The Wyoming Environmental
Quality Act Authorizes Warrantless
Searches
Gerber claims that section nine of the Act authorizes
warrantless inspections of suspected sources of pollution.
That section empowers certain officers, including
Gerber, to
“enter and inspect any property, premises or
place, except private residences, on or at which
an air, water or land pollution source is located or
is being constructed or installed .... Persons so
designated may ... inspect any monitoring equip-
ment or method of operation required to be main-
tained pursuant to this act... for the purpose of
A-5
investigating actual or potential sources of air,
water or land pollution and for determining com-
pliance or noncompliance with this act...”
Wyo. Stat. § 35-11-109(a) (vi) (1988).
V-1 contends that this section did not authorize the
search which took place, either because it does not
authorize warrantless searches or because it only auth-
orizes warrantless searches of monitoring equipment and
methods of operation required by the Act, and under-
ground storage tanks do not fall into this category. We
disagree.
V-1’s first contention seems to be “that a warrant was
required since the statute nowhere mentions the words
‘warrantless search.’” V-1 Oil Co. v. Wyoming, 696 F. Supp.
578 (D. Wyo. 1988) at 581. Courts do not infer a warrant
requirement from statutes which authorize inspections
but do not discuss the necessity of warrants. Instead, a
bare authorization for inspections is construed to author-
ize warrantless inspections. See, e.g., Exotic Coins, Inc. v.
Beacom, 699 P. 2d 930, 940 (Colo.), Appeal dismissed, 474
U.S. 892 (1985); State v. Williams, 648 P. 2d 1156, 1160-61
(Kan. Ct. App. 1982); State v. Galio, 587 P. 2d 44, 47 (N.M.
Ct. App. 1978); State ex rel. Industrial Comm’n v. Wasatch
Metal & Salvage Co., 594 P. 2d 894, 897 (Utah 1979). We see
no reason to believe that the Wyoming Supreme Court
would construe this statute any differently.
Second, because the Wyoming Environmental
Quality Act should be construed liberally, People v. Platte
Pipe Line Co., 649 P. 2d 208, 212 (Wyo. 1982); Roberts Con-
str. Co. v. Vondriska, 547 P. 2d 1171, 1182 (Wyo. 1976), we
hold that underground gasoline storage tanks are a
“method of operation required to be maintained pursuant
to thie] act.” The phrase “pursuant to” has a broader
meaning than the word “by.” See Black’s Law Dictionary
A-6
647 (abr. 5th ed. 1983). The statute authorizes the inspec-
tion, not only of facilities which the Act specifically re-
quires, but also of any mechanism which is necessary to
avoid committing a violation. Without proper storage
equipment, gasoline could escape and pollute the sur-
rounding land and groundwater. This is prohibited by,
inter alia, Wyo. Stat. § 35-11-301 (1988). Therefore, the Act
authorized Gerber to inspect V-1’s tanks.
B. Whether a Warrantless Search Pursuant to
the Wyoming Environmental Quality Act is
Constitutional
The warrant requirement of the Fourth Amendment
applies to commercial premises. See v. City of Seattle, 387
U.S. 541, 543 (1967). An exception to this requirement has
developed, however, for “pervasively regulated busi-
ness|es|,” United States v. Biswell, 406 U.S. 311, 316 (1972),
or “ ‘closely regulated’ industries,” Marshall v. Barlow’s,
Inc., 436 U.S. 307, 313 (1978) (quoting Colonnade Catering
Corp. v. United States, 397 U.S. 72, 74 (1970) ). To be reason-
able, the warrantless inspection of such a business must
meet the three-part test enunciated in New York v. Burger,
482 U.S. 691 (1987):
“First, there must be a ‘substantial’ government
interest that informs the regulatory scheme
yursuant to which the inspection is made...
Second, the warrantiess inspections must be
‘necessary to further [the] regulatory scheme.’
Finally, ‘the statute’s inspection program, in
terms of the certainty and regularity of its appli-
cation, [must] provid[e] a constitutionally ade-
quate substitute for a warrant.’ In other words,
the regulatory statute must perform the two basic
A-7
functions of a warrant: it must advise the owner of
the commercial premises that the search is being
made pursuant to the law and has properly de-
fined scope, and it must limit the discretion of
the inspecting officers. To perform this first
function, the statute must be ‘sufficiently com-
prehensive and defined that the owner of com-
mercial property cannot help but be aware that
his property will be subject to periodic inspec-
tions undertaken for specific purposes.’ In addi-
tion, in defining how a statute limits the
discretion of the inspectors, . . . it must be ‘care-
fully limited in time, place, and scope.’ United
States v. Biswell, 406 U.S., at 315.”
Id. at 702-03 (quoting Donovan v. Dewey, 452 U.S. 594, 600,
602, 603 (1981) ). The two major questions relevant to the
constitutionality of Gerber’s search are whether V-1 is per-
vasively regulated and whether the Act provides a con-
stitutionally adequate substitute for a search warrant.’
1. Whether V-1 Is Pervasively Regulated
' The other two parts of the Burger test may be discussed
summarily.
V-1 concedes, Appellant’s Brief at 1 and we agree, that the
protection of the environment and the public from pollution in
general, and from leakage from underground gasoline storage
tanks in particular, is a substantial governmental interest.
We cannot determine from the record whether warrantless
inspections are necesssry to the regulatory scheme, i.e., whether
there will be times that DEQ cannot obtain a warrant promptly
enough for the subsequent search to be effective, see
McLaughlin v. Kings Island, 849 F. 2d 990, 996 (6th Cir. 1988);
Blackwelder v. Safnauer, 689 F. Supp. 106, 139 (N.D.N.Y. 1988).
Fortunately, such a determination is not necessary to our dis-
position of this case.
A-8
A pervasively regulated industry is one which has
“sucha history of government oversight that no reasonable
expectation of privacy could exist ... .” Marshall v.
Barlow’s, Inc., 436 U.S. at 313 (citation omitted). “T]he
doctrine is essentially defined by ‘the pervasiveness and
regularity of the . . . regulation’ and the effect of such
regulation upon an owner’s expectation of privacy.” New
York v. Burger, 482 U.S. at 701 (quoting Donovan v. Dewey,
452 U.S. 594, 606 (1981) ). Pervasively regulated industries
“represent the ‘exception’ rather than the rule.” Marshall
v. Horn Seed Co., 647 F.2d 96, 99 n.1 (10th Cir. 1981) (quot-
ing Marshall v. Barlow’s, Inc., 436 U.S. at 313); see also
McLaughlin v. Kings Island, 849 F.2d 990,994 (6th Cir.
1988).
Wyoming state law’ requires a license and payment of
a fee before one may do business as a gasoline dealer. Wyo.
Stat. § 39-6-203(b) (1988). Violation of this requirement is
a misdemeanor. Wyo. Stat. § 39-6-213(a) (1988). The price
of the gasoline must be displayed conspicuously, Wyo.
Stat. § 39-6-205 (1988), and gasoline tax must be collected,
Wyo. Stat. § 39-6-209 (1988). However, while gasoline
wholesalers and refiners must submit reports and keep
special records, Wyo. Stat. § § 39-6-204, -206, -208 (1989),
gasoline dealers face no similar requirement. Under fed-
eral law, owners of underground gasoline storage tanks
must furnish substantial and detailed information about
the tanks and must permit certain inspections® and mon-
itoring. See 42 U.S.C. § § 6991-9li.
* Gasoline stations also may be regulated by municipal
authorities, Wyo. Stat. § 15-1-103(a) (xxvii) (1988), but the City
of Lander has not done so.
° Gerber has not claimed that he was acting pursuant to the
federal inspection provision, 42 U.S.C. § 699Id(a). Also, the
constitutionality of that provision is not before us.
A-9
In Burger, the Supreme Court held that New York
vehicle dismantlers were pervasively regulated because
they were subject to the following circumscriptions: the
requirement of a license and payment of a fee; the main-
tenance and availability for inspection of certain records;
the display of the operator’s registration number; and the
existence of criminal penalties for failure to comply with
these provisions. Burger v. New York, 482 U.S. at 704-05.
The aggregation of requirements to which Wyoming gas
stations are subject is equally intrusive, so we affirm the
district court’s holding that V-1 was _ pervasively
regulated.
2. Whether the Statute Provides a
Constitutionally Adequate Substitute
for a Warrant
The district court concluded, with no explanation,
that the Act provided a constitutionally adequate sub-
stitute for a warrant. V-1 Oil Co. v. Wyoming, 696 F. Supp. at
582. We disagree. The statute is not so “ ‘comprehensive
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.’ ”’
Burger v. New York, 482 U.S. at 703 (quoting Donovan v.
Dewey, 452 U.S. 594, 600 (1981) ).
First, because the Act applies to every business in
Wyoming, it provides no notice whatsoever to the owner of
any particular business that his or her property will be sub-
ject to warrantless inspections. The only warrantless
administrative searches which have been upheld are those
conducted pursuant to narrow statutes which regulate par-
ticular industries. Rush v. Obledo, 756 F. 2d 713, 718-19 (9th
Cir. 1985); cf. Marshall v. Barlow’s, Inc., 436 U.S. at 321.
Administrative searches conducted pursuant to statutes
A-10
of general applicability require search warrants. See, e.g.,
Marshall v. Barlow’s, Inc., 436 U.S. at 313-14 (Occupational
Safety and Health Act); See v. City of Seattle, 387 U.S. at
546 (Seattle Fire Code); Lone Steer, Inc. v. Donovan, 565 F.
Supp. 229, 232 (D.N.D. 1982) (Fair Labor Standards Act),
rev'd on other grounds, 464 U.S. 408 (1984); Western Alfalfa
Corp. v. Air Pollution Variance Bd., 510 P.2d 907, 909-10
(Colo. Ct. App. 1973) (Colorado Air Pollution Control Act),
rev'd on other grounds, 416 U.S. 861 (1974); New Mexico
Envtl. Improvement Div. v. Climax Chem. Co., 733 P.2d
1322, 1323 (N.M. Ct. App. 1987) (New Mexico Hazardous
Waste Act).
Second, the Act provides no “assurance of regularity”
of inspections. Donovan v. Dewey, 452 U.S. 594, 599 (1981).
In both Burger, 482 U.S. at 711, and Dewey, 452 U.S. at 604,
the inspections were conducted on a regular basis. The
Wyoming Environmental Quality Act leaves inspectors
free to inspect any business as often or seldom as he or she
pleases. A warrant is required if searches are “so random,
infrequent, or unpredictable that the owner, for all practi-
cal purposes, has no real expectation that his property will
from time to time be inspected by government officials.”
Donovan v. Dewey, 452 U.S. at 599; see also Serpas uv.
Schmidt, 827 F. 2d 23, 29 (7th Cir. 1987) (“To satisfy the
‘certainty and regularity’ requirement, an ‘inspection pro-
gram must define clearly what is to be searched, whocan be
searched, and the frequency of such searches.’ (quoting
Bionic Auto Parts & Sales, Inc. v. Fahner, 721 F. 2d 1072,
1078 (7th Cir. 1983) ), cert. denied, 108 S. Ct. 1075 (1988).
Because the Act does not provide a constitutionally
adequate substitute for a warrant, Gerber’s warrantless
search violated V-1’s Fourth Amendment rights.
C. Whether Gerber Was Qualifiedly Immune
From Suit
A-11
Government officials performing discretionary func-
tions have a qualified immunity from suit.
“(W]hether an official protected by qualified
immunity may be held personally liable for an
allegedly unlawful official action generally turns
on the ‘objective legal reasonableness’ of the
action, assessed in light of the legal rules that
were ‘clearly established’ at the time it was taken.
The contours of the right must be sufficiently
clear that a reasonable official would understand
that what he is doing violates that right. This is
not to say that an official action is protected by
qualified immunity unless the very action in
question had previously been held unlawful, but
it is to say that in the light of pre-existing law
the unlawfulness must be apparent.”
Anderson v. Creighton, 483 U.S. 635, 639, 640 (1987) (quot-
ing Harlow v. Fitzgerald, 457 U.S. 800, 818, 819 (1982) )
(citations omitted). “Once a defendant raises the defense
of qualified immunity as a defense to an action, ‘[t]he plain-
tiff carries the burden of convincing the court that the law
was clearly established.’ ” Powell v. Mikulecky, 891 F. 2d
1454, 1457 (10th Cir. 1989) (quoting Pueblo Neighborhood
Health Centers, Inc. v. Losavio, 847 F. 2d 642, 645 (10th Cir.
1988) ).
“If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably
competent public official should know the law
governing his conduct. Nevertheless, if the
official pleading the defense claims extraor-
dinary circumstances and can prove that he
neither knew nor should have known of the rele-
vant legal standard, the defense should be su-
A-12
stained. But again, the defense would turn pri-
marily on objective factors.”
Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). The
defendant bears the burden of proving such circumstan-
ces. See Pleasant v. Lovell, 876 F. 2d 787, 794 (10th Cir.
1989).
1. Whether The Right Was Clearly
Established
When the search here at issue took place, the Burger
decision was almost a year old. The Dewey decision, upon
which Burger relied heavily, was almost seven years old.
The Barlow’s decision was almost ten years old. At the
same time there was no precedent for the proposition that
a generally applicable statute which permitted irregular
inspections could constitutionally authorize a warrantless
search. We hold that V-1’s right not to be inspected without
a search warrant pursuant to a statute such as the Wyom-
ing Environmental Quality Act was clearly established.
2. Whether Extraordinary Circumstances
Existed‘*
As its name suggests, the “extraordinary circumstan-
ces” exception to the rule that a qualified immunity
defense fails where the defendant violated a clearly es-
tablished right applies only “rarely.” Skevofilax v. Quigley,
586 F. Supp. 532, 539 n.6 (D. N.J. 1984). The circumstances
* The district court did not address this question. We may con-
sider it, however, because “we are ‘free to affirm a district court
decision on any grounds for which there is a record suf-
ficient to permit conclusions of law, even grounds not relied
upon by the district court.’ ” Griess v. Colorado, 841 F. 2d 1042,
1047 (10th Cir. 1988) (quoting Alfaro Motors, Inc. v. Ward, 814 F.
2d 883, 887 (2d Cir. 1987) ).
A-13
must be such that the defendant was so “prevented,” Fer-
nandez v. Leonard, 784 F. 2d 1209, 1216 (1st Cir. 1986); Stu-
dent Servs. for Lesbians/Gays & Friends v. Texas Tech
Univ., 635 F. Supp. 776, 781 (N.D. Tex. 1986), from knowing
that his actions were unconstitutional that “he should not
be imputed with knowledge of an admittedly clearly estab-
lished right,” Robinson v. Bibb, 840 F. 2d 349, 350 (6th Cir.
1988).
The circumstance most often considered for treat-
ment as “extraordinary” is reliance upon the advice of
counsel. See Carey, Quick Termination of Insubstantial
Civil Right Claims: Qualified Immunity and Procedural
Fairness, 38 Vand. L. Rev. 1543, 1444-55 (1985). Of course,
such reliance is not inherently extraordinary, for few things
in government are more common than the receipt of legal
advice. Still, “reliance on the advice of counsel in certain
circumstances rises to the level of extraordinary circum-
stances.” Ortega v. City of Kansas City, Kan., 659 F. Supp.
1201, 1211 (D. Kan. 1987), rev'd on other grounds, 875 F. 2d
1497 (10th Cir.), cert. denied, 110 S. Ct. 325 (1989); cf.
English v. Hendricks, 880 F. 2d 281, 284 (10th Cir. 1989),
cert. denied, 110 S. Ct. 1130 (1990); Lavicky v. Burnett, 758
F. 2d 468, 476 (10th Cir. 1985), cert. denied, 474 U.S. 1101
(1986). But cf. Powell v. Mikulecky, 891 F.2d 1454, 1457-58
(10th Cir. 1989); Melton v. City of Olkahoma City, 879 F. 2d
706, 731 (10th Cir.), reh'g en banc granted, 888 F. 2d 724
(10th Cir. 1989).°
° The dissent errs when it reads Melton as a bar to finding Ger-
ber qualifiedly immune. That decision does not address the
extraordinary circumstances exception, so it cannot be con-
sidered binding authority on the scope of the exception. Melton
instructs us not to refer to legal advice the defendant received
when we decide whether or not the governing law was clearly
established; it gives no guidance in deciding when a defendant
should not be expected to have known the governing law.
A-14
Whether reliance upon legal advice “bars our imputa-
tion to |the defendant] of constructive knowledge concern-
ing the laws allegedly violated by his conduct,” Polson v.
Davis, 635 F. Supp. 1130, 1144 (D. Kan. 1986), depends
upon the circumstances of each case. Compare Arnsberg v.
United States, 757 F. 2d 971, 982 (9th Cir. 1984), cert.
denied, 475 U.S. 1010 (1985); Burk v. Unified School Dist.
No. 329, 646 F. supp. 1557, 1568 (D. Kan. 1986); Wells v.
Dallas Indep. School Dist., 576 F. Sump. 497, 508 (N.D. Tex.
1983); Alexander v. Alexander, 573 F. Supp. 373, 375 n.4
(M.D. Tenn. 1983), aff'd without opinion, 751 F. 2d 384 (6th
Cir. 1984) with Watertown Equip. Co. v. Norwest Bank
Watertown, 830 F. 2d 1487, 1495-96 (8th Cir. 1987); Ortega v.
City ef Kansas City, Kan., 659 F. Supp. at 1211. Relevant
factors include how unequivocal, and specifically tailored
to the particular facts giving rise to the controversy,* the
advice was, see Watertown Equip. Co. v. Norwest Bank
Watertown, 830 F. 2d at 1496; Ortega v. City of Kansas City,
Kan., 659 F. Supp. at 1211, whether complete information
had been provided to the advising attorney(s), see Burk v.
Unified School Dist. No. 329, 646 F. Supp. at 1560-61; cf.
Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1348-
49 (7th Cir. 1985) (separate opinion of Coffee, J.), the prom-
* We reject the position of the dissent that the advice must be
couched in certain- precise legal terms before an official is
entitled to rely upon it. See infra at None of the
cases cited above makes that suggestion. Such a requirement
cannot be inferred from the statement in Watertown Equipment
that the defendants were not qualifiedly immune because the
advice “did not unequivocally assure |them] of the con-
stitutionality of the South Dakota attachment statute,” 830 F.
2d at 1495, because the problem there was not specificity
(indeed, juct like in the case, the attorney discussed the very
statute under which the defendants acted), but equivocation:
the attorney told the defendants that there was “ ‘some risk’ that
|the plaintiff] could successfully attack |the statute’s| constitu-
tionality.” Jd. at 1496.
A-15
inence and competence of the attorney(s), see Alexander v.
Alexander, 573 F. Supp. at 375 and n.4; cf. Johnston v. Kop-
pes, 850 F. 2d 594, 596 (9th Cir. 1988), and how soon after
the advice was received the disputed action was taken, see
Tanner v. Hardy, 764 F. 2d 1024, 1027 (4th Cir. 1984); Green
v. Brantley, 719 F. Supp. 1570, 1584 (N.D. Ga. 1989).
We hold that a reasonable officer in Gerber’s posi-
tion—that is, an officer who conducts a warrantless search
on the same day he was advised by fully informed, high-
ranking government aitorneys that a particular statute,
which had not yet been tested in any court, lawfully
authorized that particular search—should not be expected
to have known that the search was unconstitutional. This
was not, as the dissent claims, “mere reliance on attorney’s
advice” or “attorney’s advice without more.” Infra at
. Because Gerber was prevented by extraor-
dinary_ circumstances from knowing the relevant legal
standard, he is qualifiedly immune.
Il. ATTORNEYS’ FEES
The amount of an award of attorneys’ fees under 42
U.S.C. § 1988 “is particularly within the discretion of the
trial court.” Higgins v. Oklahoma ex rel. Oklahoma Employ-
ment Sec. Comm'n 642 F. 2d 1199, 1203 (10th Cir. 1981).
“Accordingly, an attorneys’ fee award .. . will be upset on
appeal only if it represents an abuse of discretion. Find-
ings on underlying questions of fact are subject to the
clearly erroneous standard of review.” Mares v. Credit Bur.
of Raton, 801 F. 2d 1197, 1201 (10th Cir. 1986) (citations
omitted).
The district court’s finding that twenty-two hours
were spent on the issues for which fees were awarded is not
clearly erroneous. Nor was it an abuse of discretion to
reach that finding by means of estimation, “so long as there
A-16
enema)
|was| sufficient reason for its use.” Jd. at 1203. That the
court was not granting fees for the entire litigation, but only
for an indiscrete portion thereof, is sufficient reason for
estimating hours. Other courts have approved similar
methods. See, e.g., Jenkins by Agyei v. Missouri, 838 F. 2d
260, 264 (8th Cir.), cert. denied, 109 S. Ct. 221 (1988); Aubin
v. Fudala, 821 F. 2d 45, 47 (1st Cir. 1987); Foster v. Board of
School Comm’rs., 810 F. 2d 1021, 1023-34 (11th Cir.), cert.
denied, 484 U.S. 829 (1987); Evers v. County of Custer, 745
F. 2d 1196, 1204-05 (9th Cir. 1984). Courts of Appeal have
even been known on occasion to estimate how much time
particular claims consumed. See, e.g., Raton Gas Transmis-
sion Co. v. FERC, 891 F. 2d 323, 330-31 (D.C. Cir. 1989);
Ustrak v. Fairman, 851 F. 2d 983, 989 (7th Cir. 1988).
We have before us a request from the defendants for
attorneys’ fees for work done on V-1’s appeal of the fee
award. A party who successfully defends a section 1983
action and is awarded attorneys’ fees, then successfully
defends an appeal of that fee award, may recover attor-
ney’s fees for services rendered on the appeal. See Glass v.
Pfeffer, 849 F. 2d 1261, 1266 and n.3 (10th Cir. 1988). The
standard for awarding fees remains the same as below;
whether the appeal is “ ‘frivolous, unreasonable, or without
foundation.’ ” Coverdell v. Department of Social & Health
Servs.; 834 F. 2d 758, 770 (9th Cir. 1987) (quoting Hughes v.
Rowe, 449 U.S. 5, 14-15 (1980) (per curiam) ). Because the
appeal in No. 89-8011 meets this standard, we grant the
request and “remand to the district court for the sole and
limited purpose of determining a reasonable fee for the
time spent defending on appeal the attorney fee award.”
Glass v. Pfeffer, 849 F. 2d at 1268.
No. 88-2691 is AFFIRMED. No. 89-8011 is AF-
FIRMED, but REMANDED for a determination of an
appropriate attorneys’ fee award.
No. 88-2691 — V-1 Oil Company v. Wyoming
A-17
EBEL, Circuit Judge, dissenting.
Although I agree with the majority opinion’s conclu-
sion that the warrantless search was unconstitutional, I
cannot agree with its analysis of the “extraordinary cir-
cumstances” basis for qualified immunity. Therefore, I
respectfully dissent from the majority’s holding that Ger-
ber was protected from suit by qualified immunity. I have
four concerns with the majority opinion’s reliance on the
extraordinary circumstances test in this case.
1. Attorney’s advice, without more, is insuffici-
ent as a matter of law to establish qualified
immunity.
My first concern with the majority’s treatment of
qualified immunity is that it advances nothing beyond
receipt of an attorney’s advice to establish the extraor-
dinary circumstances necessary to bestow qualified im-
munity. As the majority observed, few things in govern-
ment are more common than the receipt of legal advice. If
the Supreme Court intended legal advice, without more, to
be sufficient, it surely would have said so in Harlow, or it
would have used some words other than “extraordinary”
circumstances.
Although the Supreme Court has not defined what it
meant by extraordinary circumstances, the term itself
suggests things such as (1) extreme urgency, (2) an extraor-
dinarily important public interest which justifies precipi-
tous action without careful exploration of the legal un-
derpinnings, or (3) actions by the plaintiff which somehow
mislead the defendant or invited the unconstitutional con-
duct of the defendant. These extraordinary circumstances
share a common characteristic, which is not present in
mere reliance on attorney’s advice, in that they are all
A-18
somewhat beyond the controi of the defendant and may be
objectively measured. Reliance upon attorney’s advice is
solely within the control of defendants and, if that is all that
were required, is vulnerable to manipulation by defen-
dants in order to broaden their qualified immunity far
beyond the parameters anticipated by the Supreme
Court.
This is not to say that attorney’s advice is an irrelevant
consideration. I agree with the proposition, found in many
of the cases cited by the majority, that attorney’s advice is
one, but only one, factor to be considered. I would consider
it in evaluating the second prong of the extraordinary cir-
cumstances test: i.e. whether the defendant can prove that
“he neither knew nor should have known of the relevant
legal standard.” If he received erroneous, but good faith,
legal advice that his conduct was permissible, that would
tend to show that he neither knew nor should have known
that he was violating the clear legal standards, provided
that there existed extraordinary circumstances which
enhanced the reasonableness of his reliance upon the
erroneous legal advice.
Four of the cases cited in the majority opinion purport
to discuss receipt of legal advice in the extraordinary cir-
cumstances framework. Watertown Equipment Co. v. Nor-
west Bank Watertown, 830 F. 2d 1487, 1495 (8th Cir. 1987),
appeal dismissed and cert. denied, 486 U.S. 1001 (1988);
Green v. Brantley, 719 F. Supp. 1570, 1583-84 (N.D. Georgia
1989), appeal dismissed, 895 F. 2d 1387 (11th Cir. 1990);
Ortega v. City Of Kansas, 659 F. Supp. 1201, 1211 (D. Kan.
1987), rev'd on other grounds, 875 F. 2d 1497 (10th Cir.
1989); and Burk v. Unified School District, 646 F. Supp.
1557, 1568 (D. Kan. 1986). Cf. .\foore v. Marketplace, 754
F.2d 1336, 1348 (7th Cir. 1985) (receipt of advice from
supervisor created extraordinary circumstances).
A-19
Watertown Equipment and Green expressly state that
reliance on attorney advice is only one of several factors to
be considered in examining qualified immunity. Similarly,
in Ortega, the court, while not finding the defendants
immune under the facts of that case, stated that “reliance
on the advice of counsel in certain circumstances rises to
the level of extraordinary circumstances.” Ortega, 659 F.
Supp. at 1211 (emphasis added). That language suggests
that the advice of counsel by itself does not create extraor-
dinary circumstances but that extraordinary circumstan-
ces require reliance on counsel plus something more. This
appears consistent with the two part nature of the extraor-
dinary circumstances test as articulated by Harlow. Only
the court in Burk states unequivocally that legal advice
constitutes extraordin circumstances. However, in
Burk, the law was found to be unclear and reliance on the
extraordinary circumstances test merely provided an
alternative ground for relief. Thus, at most, we are dealing
with dicta in that case.
The other cases cited in the majority opinion that dis-
cuss reliance on legal advice are not cases involving the
extraordinary circumstances defense. Rather, the major-
ity of them merely refer to the attorney’s advice as evi-
dence going to whether the law was unclear or not violated.
See Arnsberg v. United States, 757 F. 2d 971 (9th Cir. 1985)
(defendant did not violate clearly established law), cert.
denied, 475 U.S. 1010 (1086); Wells v. Dallas Independent
School Dist., 576 F. Supp. 497, 508-09 (N.D. Tex. 1983) (law
unclear); Alexander v. Alexander, 573 F. Supp. 373, 376
(M.D. Tenn. 1983) (Attorney advice was used by the court
to show that defendant did not violate clearly established
law. However, the court notes in footnote 4 that the facts
could equally show that defendant neither knew nor
should have known the law.), aff'd, 751 F. 2d 384 (6th Cir.
1984). Therefore, those cases address the basic Harlow
test, which we have agreed was satisfied in this case.
A-20
2. The legal advice received here cannot
constitute extraordinary circumstances.
Second, even assuming that receipt of attorney’s
advice without more could occasionally rise to the level of
extraordinary circumstances, I do not believe the facts of
this case justify invocation of the extraordinary cir-
cumstances test. The majority opinion makes clear that
the plaintiff has satisfied the first Harlow test by showing
that the defendant has violated a clearly established con-
stitutional right of which a reasonable person would have
known. Notwithstanding that fact, the extraordinary cir-
cumstance proposed in the opinion that overrides this
knowledge is nothing more than legal advice that the
requested search was authorized by Wyoming statute.
Neither the appellate briefs nor the record suggests that
the defendant sought or received legal advice that the
search would be constitutional under the Fourth Amend-
ment of the United States Constitution. Thus, against the
acknowledged backdrop that a reasonable person should
have known that this search was unconstitutional, the
defendant should at least be required to seek and obtain a
specific opinion from counsel as to the constitutionality of
the search before he can rebut the constructive knowledge
of unconstitutionality that is imputed to him by virtue of
the plaintiff's satisfaction of the first Harlow test.
The qualified immunity cases cited in the majority
opinion do not stand for the proposition that legal advice is
a generic term and that one size fits all needs. In several of
the cases cited there is nothing in the opinion to suggest
that the attorney’s advice was not directed specifically to
the constitutional question at issue. See, e.g., Arnsberg, 757
F. 2d at 981 (whether execution of a warrant violated 4th
Amendment); Alexander, 573 F. Supp. at 378 (whether
revocation of commutation of sentence deprived plaintiff
A-21
of liberty interest without due process).
The Ninth Circuit in Johnston v. Koppes, 850 F. 2d 594
(9th Cir. 1988), found that whether legal advice specifically
addressed the constitutionality of the alleged action is one
factor to consider in determining whether reliance on that
advice gives rise to qualified immunity. See 850 F. 2d at
596. In Watertown Equipment, the Eighth Circuit found
that reliance on legal advice did not establish qualified
immunity, in part, because the advice “did not une-
quivocally assure [defendant] of the constitutionality of
the |state statute].” Watertown Equipment, 830 F. 2d at
1495.
The district court in Ortega similarly found that the
defendants were not entitled to qualified immunity be-
cause the legal advice relied upon was not sufficiently
tailored to the particular acts at issue. Ortega was a § 1983
suit based on the violation of a state extradition statute. In
Ortega, the defendants failed to ask the attorneys the
specific factual question of whether mailing notices to out-
of-state suspects was proper.
In this case, Gerber failed to ask the specific legal
question of whether the search was constitutional but
rather he sought, and received, advice directed only to
whether such a search was authorized under Wyoming law.
Gerber was the Northwest District Supervisor of the
Wyoming Department of Environmental Quality, Water
Quality Division and his duties included investigating dis-
charges of pollution into groundwater. As a district super-
visor with a duty to conduct investigations, he reasonably
should have known of the constitutional implications of a
warrantless search and should have made sufficient in-
quiry to have known the clearly established legal test
under Burger for administrative searches. The record does
not establish that Gerber made the necessary inquiry.
A-22
3. The majority’s holding is contrary to the
Tenth Circuit case of Melton v. City of
Oklahoma City.
Third, I believe that the majority opinion is contrary
to Tenth Circuit law. The Tenth Circuit authority contrary
to the maiority’s holding is Melton v. City of Oklahoma City,
879 F. 2d 706, 730-731 (10th Cir.), reh’g en banc granted on
other grounds,888 F. 2d 724 (10th Cir. 1989).' In Melton, the
court held that attorney’s advice cannot bestow immunity
when conduct violates a clearly established right (such as
we have found to exist in this case). The court explain-
ed:
[The defendant] argues that he relied in good
faith on the advice of municipal counsel in send-
ing his letter to [plaintiff], and, therefore, he
should be absolved of any personal liability for
the consequences of his actions. While super-
ficially attractive, this argument proves too
much. Adopting the proffered position would
immunize officials from liability via the simple
expedient of consulting counse] In Harlow, the
Supreme Court sought to protect officials in the
good faith exercise of discretion in areas of the
law which are not clearly charted. However,
where the law is clearly established, there is no
justification for excusing individuals from lia-
bility for their actions. In sum, officials are pre-
' The other Tenth Circuit cases cited by the majority are inap-
plicable because none of them deal with a situation where a
defendant is seeking to rely on attorney’s advice for immunity
when his conduct violates clearly established law. See Powell v.
Mickulecky, 891 F. 2d. 1454 (10th Cir. 1989); England v. Hen-
dricks, 880 F. 2d 281, 284 (10th Cir. 1989), cert. denied, 110 S. Ct.
1130 (1990), and Lavicky v. Burnett, 758 F. 2d 468, 476 (10th Cir.
1985), cert. denied, 474 U.S. 1101 (1986).
A-23
sumed to know and abide by clearly established
law. When their actions are otherwise, their
claims of qualified immunity will fail.
Melton, 879 F. 2d at 730-31. I do not believe that Melton
should be read so strictly that an individual can never be
excused from liability if he acts contrary to clearly es-
tablished law. See Harlow, 457 U.S. at 818-19. However, I
do not believe that it can be read so broadly that it would
permit finding Gerber immune from suit solely upon
reliance on attorney advice.
4. The extraordinary circumstances
defense was not raised below.
Fourth, I believe that it is inappropriate to affirm on
the basis of extraordinary circumstances when that
theory was not clearly advanced or argued on appeal or,
apparently, below. We can affirm on a ground not raised
below provided the record is sufficiently clear to permit us
to do so and provided that both parties had an adequate
opportunity to develop the record on the issue that we
choose to rely upon. See Seibert v. University of
Oklahoma, 867 F. 2d 591, 597 (10th Cir. 1989). Here, Ido not
believe that the appellant has had a full and fair oppor-
tunity to develop in the record the lack of extraordinary cir-
cumstances such as urgency or compelling state interest. I
also do not believe that appellant has had an adequate
opportunity to establish that the legal advice sought and
given may have dealt only with the procedural compliance
with Wyoming law rather than constitutional issues.
As stated in the majority’s opinion, one of the factors
in deciding whether counsel’s advice can be relied upon is
how specific and unequivocal the advice is. Unless we
know all of the circumstances of what the defendant sought
A-24
ee, ee ee ee ee ed
en ered
Ae Ate
ed
from counsel and what the counsel advised, I fear we are
deciding this case on an incomplete record and in a way
that is unfair to the appellant since we are springing this
defense upon it on appeal.
For the reasons stated above, I respectfully dissent
from the majority opinion’s holding that Gerber was
immune from suit.
A-25
APPENDIX B
C88-0155-J
4
!
;
United States District Court
FOR THE DISTRICT OF WYOMING
ORDER
B-1
APPENDIX B
C88-0155-J
IN THE
United States District Court
FOR THE DISTRICT OF WYOMING
V-1 OIL COMPANY, a Wyoming corporation
v.
STATE OF WYOMING, DEPARTMENT
OF ENVIRONMENTAL QUALITY, and
STEVEN P. GERBER,
Defendants.
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
I. Standard on Summary Judgment
A party moving for summary judgment has the burden
of showing that there is no genuine issue as to any material
fact, and that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). Summary judgment is appropriate
when a moving party points to an absence of evidence to
support the nonmoving party’s case; a moving party is not
required to support its motion with affidavits or other
similar materials negating the nonmovant’s claim. Celotex
Corporation v. Catrett, 106 S. Ct. 2548, 2553 (1986).
A material fact is one that might affect the outcorne of
a suit under governing law. Anderson v. Liberty Lobby, Inc.,
B-2
|
;
:
|
|
:
106 S.Ct. 2505, 2510 (1986). A genuine issue as to a material
fact exists when the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Jd. A mov-
ing party is entitled to judgment as a matter of law where
the nonmoving party has “failed to make a sufficient show-
ing on an essential element of her case with respect to
which she has the burden of proof.” Celotex, 106 S.Ct. at
2553. The evidence of the nonmoving party is deemed true
and all reasonable inferences are drawn in his favor. Ander-
son, 106 S.Ct. at 2514. The material facts in this case are
undisputed.
Il. Background
Steven P. Gerber is the Northwest District Supervisor
for the Wyoming Department of Environmental Quality,
Water Quality Division. That district includes Fremont
County, Wyoming, the location of Lander, Wyoming.
Affidavit of Steven P. Gerber, ‘ 1. As part of Mr. Gerber’s
duties, he investigates discharges of pollution, such as pet-
roleum products, into groundwater. Jd. at 5. On 28 April
1988 Mr. Gerber was aware that the V-1 Oil station in Lan-
der, Wyoming, was a source of gasoline pollution. Inves-
tigations previously conducted had indicated that this
station was the source of nearby groundwater pollution. /d.
at I 3-4.
On 28 April 1988, at approximately 11:00 a.m., Mr.
Gerber drove by the V-1 Oil station in Lander, Wyoming.
He noticed that concrete over underground storage tanks
was being removed. Mr Gerber stopped and asked Rick
Evans, manager of the V-1 Oil station, what they were
doing. Mr. Evans refused to say and asked Mr. Gerber to
leave. Mr. Gerber left. At approximately 3:15 p.m. Mr. Ger-
ber drove by the station and saw Leonard Wood, area
supervisor for V-1 Oil. Mr. Gerber stopped and asked Mr.
Wood what they were doing. Mr. Wood refused to say but
B-3
stated that Mr. Gerber was not welcome on the property.
Mr. Gerber left the property. Jd. at " 7-8.
Throughout the day Mr. Gerber had been on the
telephone with Steve Jones, Senior Assistant Attorney
General for Wyoming, discussing a possible inspection of
the underground storage tank area. Jd. at {| 9. Mr. Jones
sought a hearing with either Judge Ranck or Judge Kail,
seeking a court order allowing inspection. A sufficiently
immediate hearing could not be obtained. Affidavit of
Steve Jones, “ 5-7. Mr. Jones consulted with three other
attorneys, and all agreed that Wyo. Stat. § 35-11-109(a) (vi)
(Supp. June 1988) permitted a warrantless inspection. Jd.
at "% 8-9.
At approximately 7:00 p.m. L. M. Chipley, Lander
City Attorney, telephoned Mr. Jones about the situation.
He agreed with Mr. Jones’s interpretation of the statute,
and he further agreed that he and a Lander policeman
would accompany Mr. Gerber during his inspection. The
policeman’s presence was to deter violence. /d. at § 11.
At approximately 8:20 p.m. Mr. Gerber, Mr. Chipley,
and Lt. Metzger entered the V-1 premises. Mr. Gerber
identified himself to Steve Drake, the attendant on duty.
Mr. Gerber handed him a business card and informed him
of the imminent investigation. Affidavit of Steven Gerber
at ‘ 13. Acting under instructions, Mr. Drake told Mr. Ger-
ber to wait until Mr. Evans had arrived. Deposition of
Steve Drake at p. 29. Mr. Gerber instead inspected the
excavation area. The tops of the underground storage
tanks had been uncovered, indicating to Mr. Gerber that
the tanks were not being removed, but that the tanks and
lines leading up to the tanks were being tested for tightness
and integrity. Mr. Gerber noticed very strong hydrocarbon
odors. Affidavit of Steven Gerber at ‘\{ 14-15. He collected
a soil sample from soil around the underground storage
tank closest to the station. Lt. Metzger received an acci-
B-4
ies r
dent call requiring him to leave. After being informed of
this call, Mr. Gerber felt that he should also leave. He
informed Mr. Drake that he was leaving, but upon request
agreed to stay until Rick Evans arrived. Mr. Gerber gave
the soil sample to Lt. Metzger as he left. Jd. at ‘ 16-18.
Rick Evans arrived at the station at approximately
8:30 p.m. He told Mr. Gerber to put the soil sample back.
Mr. Gerber informed him that Lt. Metzger had the sample.
Mr. Evans asked Mr. Gerber to leave, and he did so. Jd. at
‘| 19-23. Mr. Gerber later obtained the soil sample from
Lt. Metzger. He stored it for safekeeping at the DEQ
office. In accordance with Wyo. Stat. § 35-11-109(a) (vi),
Mr. Gerber supplied Mr. Wood and V-1 Oil’s attorney with
a report of the investigation. Jd. at { 23.
On 27 May 1988 V-1 Oil filed a complaint in this court
under 42 U.S.C. § 1983, alleging deprivation of its rights
secured by the fourth, fifth, and fourteenth amendments.
Named as defendants were the state of Wyoming, the
Department of Environmental Quality, and Steven P. Ger-
ber. On 12 August 1988 defendants filed a motion for sum-
mary judgment. In V-1 Oil’s brief opposing the motion, it
stated that “|t|]he defendant State of Wyoming’s Motion
for Summary Judgment should be granted, pursuant to the
State’s immunity as provided by the 11th Amendment to
the Constitution.”’ The court agrees with this view. The
eleventh amendment prohibits suits in federal court
against a state or one of its agencies or departments unless
consent is shown. Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100 (1984); Meade v. Grubbs, 841
F. 2d 1512, 1524-26 (10th Cir. 1988). No consent has been
' At the 9 September 1988 motion hearing, plaintiff's counsel
informed the court that he wished to reconsider this concession.
The court gave him time to respond in writing. On 26 September
1988 the court received a letter from plaintiff's counsel stating
that “I have not found any cases giving the Plaintiff any relief in
this matter.”
B-5
shown. V-1 Oil argues that the suit should proceed
against Steven P. Gerber in his individual capacity.”
III. The Warrantless Search
The question arises whether the warrantless search
was permissible. In deciding this, the court looks to Wyo.
Stat. § 35-11-109(a) (vi), which provides as follows:
(a) In addition to any other powers and duties im-
posed by law, the director of the department
shall:
(vi) Designate authorized officers, employees
or representatives of the department to enter
and inspect any property, premise or place,
except private residences, on or at which an
air, water or land pollution source is located or
is being constructed or installed, or any prem-
ises in which any records required to be main-
tained by a surface coal mining permittee are
located. Persons so designated may inspect
and copy any records during normal office
hours, and inspect any monitoring equipment
or method of operation required to be main-
tained pursuant to this act at any reasonable
time upon presentation of appropriate creden-
tials, and without delay, for the purpose of in-
vestigating actual or potential sources of air,
water or land pollution and for determining
compliance or noncompliance with this act,
* The eleventh amendment does not bar suit against officials
in their individual capaeities since “|a] victory in a personal-
capacity action is a victory against the individual defendant,
rather than against the entity that employs him.” Meade, v.
Grubbs, 841 F. 2d 1512, 1526 n.16 (10th Cir. 1988) (quoting Ken-
nedy v. Graham, 473 U.S. 159, 167-68 (1985) ).
B-6
and any rules, regulations, standards, permits
or orders promulgated hereunder. For surface
coal mining operations, right of entry to or in-
spection of any operation, premises, records
or equipment shall not require advance notice.
The owner, occupant or operator shall receive
a duplicate copy of all reports made as a result
of such inspections within thirty (30) days. The
department shall reimburse any operator for
the reasonable costs incurred in producing
copies of the records requested by the depart-
ment under this section|.]
Defendant contends that this statute requires a warrant or
a court order before an inspection may be made. This court
disagrees.
The statute allows inspections under stated con-
ditions. First, under the first sentence of subsection (vi),
the inspector must qualify as one entitled to inspect. Mr.
Gerber qualifies. Affidavit of Randolph Wood at { 3.
Second, provided the inspection is made at any reasonable
time upon presentation of appropriate credentials and
without delay, such a designated employee may inspect
any method of operation required to be maintained pur-
suant to the Wyoming Environmental Quality Act, Wyo.
Stat. § § 35-11-101 through 35-11-1304 (Supp. June 1988).
This authority is given to investigate actual potential sour-
ces of air, water, or land pollution and to determine com-
pliance or noncompliance with this act, and any rules,
regulations, standards, permits, or orders promulgated
under it. No one disputes that Mr. Gerber’s inspection
occurred while the station was open for business. No one
disputes that Mr. Gerber presented appropriate creden-
tials and inspected without delay.’ Because all conditions
3 The court simply notes that the requirements of the statute
B-7
imposed by the statute were met, the court concludes that
the inspection complied with the statute.
Plaintiff V-1 Oil seems to contend that a warrant was
required since the statute nowhere mentions the words
“warrantless search.” In New York v. Burger, 107 S.Ct.
2636 (1987), the Court examined a statute allowing inspec-
tions in the automobile junk yard industry. The Court con-
cluded that warrantless searches were allowed under the
statute even though the words “warrantless search” were
not contained within it. Jd. at 2639 n.1. The Court later
noted that “[njumerous states have provisions for the
warrantless inspections of vehicle dismantlers and auto-
mobile junk yards” and listed as an example Wyo. Stat. §
31-13-112(e) (1977). Id. at 2641 n.11. this Wyoming statute
also does not include the words “warrantless search.” Hav-
ing determined that Mr. Gerber was entitled to conduct a
warrantless inspection under the Wyoming statute, the
court now turns to the issue of whether the warrantless
inspection complied with the United States Constitu-
tion.
IV. Warrantless Administrative Searches
The fourth amendment prohibits unreasonable
searches and seizures of commercial premises, as well as
private homes. See v. City of Seattle, 387 U.S. 541, 543
(1967). A business operator’s reasonable expectation of
privacy in commercial property extends to administrative
inspections designed to enforce regulatory statutes.
were met. The relevant inquiry in a suit under 42 U.S.C. § 1983,
however, is whether plaintiff was deprived of a federal right. See
Wise v. Bravo, 666 F. 2d 1328, 1331 (10th Cir. 1981). That inquiry
focuses on whether the statute allows warrantless in-
spections, not whether its conditions were met.
B-8
eee nat ant RECs Set St i ig NES hai:
Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 (1987). This
expectation of privacy in commercial premises is less than
the expectation in an individual’s home. Donovan v. Dewey,
452 U.S. 594, 598-99 (1981). The expectation of privacy in
“closely regulated” industries is particularly attenuated.
New York v. Burger, 107 S.Ct. at 2642. “Certain industries
have such a history of government oversight that no
reasonable expectation of privacy... could exist for a prop-
rietor over the stock of such an enterprise.” Jd. (quoting
Marshall, 436 U.S. at 313). See New York v. Burger, 107
S.Ct. 2636 (vehicle dismantlers and automobile junk
yards); Donovan v. Dewey, 452 U.S. 594 (1981) (stone
quarries); United States v. Biswell, 406 U.S. 311 (1972)
(firearms); Colonnade Corporation v. United States, 397
U.S. 72 (1970) (liquor dealers).
Upon fulfillment of three criteria, a warrantless search
of a pervasively regulated business will be deemed
reasonable. New York v. Burger, 107 S.Ct. at 2643-44. First,
there must be “a ‘substantial’ government interest that
informs the regulatory scheme pursuant to which the
inspection is made.” Id. at 2644. This is met by health and
safety dangers resulting from leaks in underground gas-
oline storage tanks. Second, “the warrantless inspections
must be ‘necessary to further |the] regulatory scheme.’ ” Jd.
(quoting Donovan v. Dewey, 452 U.S. at 600). This condi-
tion is also met. The State made an effort to obtain a court
order. Only after it became obvious that the order could
not be obtained while the tanks were exposed did the State
abandon that effort. Third, “the regulatory statute must
perform the two basic functions of a warrant: it must advise
the owner of the commercial premises that the search is
being made pursuant to the law and has a properly defined
scope, and it must limit the discretion of the inspecting
officers.” New York v. Burger, 107 S.Ct. at 2644 (citing
Marshall, 436 U.S. at 323). The statute in question does
both.
B-9
Those engaging in the business of storing and dis-
pensing gasoline have chosen to engage in a pervasively
regulated business. Wyoming has passed many laws limit-
ing their conduct. See, e.g., The Wyoming Environmental
Quality Act, Wyo. Stat. § § 35-11-101 through 35-11-1304;
Wyo. Stat. § § 39-6-201 through 39-6-214 (licensing, taxing,
and record keeping of gasoline distributors); Wyo. Stat. §
15-1-103(a) (xxviii) (Cum.Supp. 1988) (The governing
bodies of all cities and towns may: Regulate or prevent the
storage, use and transportation of any combustible or
explosive material within the corporate limits or within a
given distance thereof); Wyoming Department of Environ-
mental Quality Rules and Regulations, Water Quality Divi-
sion, Chapter IV, Regulations for Releases of Oil and
Hazardous Substances into Waters of the State of Wyom-
ing. Federal law also pervasively regulates underground
storage tanks. See 42 U.S.C. §§ 6991 through 6991i
Cum.Supp. May 1988).‘
4
These statutes require that owners of underground -
storage tanks (containing petroleum, including crude oil or any
fraction thereof, which is liquid at standard conditions of tem-
perature and pressure) provide information relating to the
tank’s existence, size, type, location, and uses. 42 U.S.C. §
6991a(i). Extremely detailed regulations relating to release
detection, prevention, and correction are mandated under the
statutes. 42 U.S.C. § 6991b. Of particular interest is the statute
governing inspection, monitoring, testing and corrective action,
which provides in part as follows:
(a) Furnishing information. For the purposes of de-
veloping or assisting in the development of any
regulation, conducting any study, [taking any cor-
rective action] or enforcing the provisions of this
subtitle [42 USCS § § 6991 et seq.], any owner or
operator of an underground storage tank (or any tank
subject to study under section 9009 [42 USCS §
6991h] that is used for storing regulated substances)
shall, upon request of any officer, employee or repre-
B-10
ERRATA TR heb! Js
In light of this extensive regulation, the court is puz-
zled by the attitude of V-1 Oil as expressed in the deposi-
tion of its employee, Rick Evans: “We just allow no
inspections, no nothing, without permission.” “[I]t really
sentative of the Environmental Protection Agency,
duly designated by the Administrator, or upon re-
quest of any duly designated officer, employee, or
representative of a State acting pursuant to sub-
section (h) (7) of section 9003 [42 USCS § 6991c
(h) (7)] or with an approved program, furnish in-
formation relating to such tanks, their associated
equipment, their contents, conduct monitoring or
testing, permit such officer at all reasonable times
to have access to, and to copy all records relating to
such tanks and permit such officer to have access for
corrective action. For the purposes of developing or
assisting in the development of any regulation, con-
ducting any study, taking corrective action, or en-
forcing the provisions of this subtitle [42 USCS § §
6991 et seq.], such officers, employees, or represen-
tatives are authorized—
(1) to enter at reasonable times any establishment
or other place where an underground storage tank
is located;
(2) to inspect and obtain samples from any person
of any regulated substances contained in such
tank;
(3) to conduct monitoring or testing of the tanks,
associated equipment, contents, or surrounding
soils, air, surface water or ground water; and
(4) to take corrective action.
Each such inspection shall be commenced and com-
pleted with reasonable promptness.
42 U.S.C.S. § 6991d(a). The court notes that inspections are not
conditioned on obtaining a court order or warrant. The court
further observes that the statutes pervasively regulate owners
of underground storage tanks such as V-1 Oil’s.
B-11
shouldn’t matter to them. It’s our business what we’re
doing out there.” Deposition of Rick Evans at 7, 25. Those
views do not conform with the scheme set forth in the
statutes.
V. Qualified Immunity
As an executive official, Steven Gerber is entitied to
assert qualified immunity from this suit. See Scheuer v.
Rhodes, 416 U.S. 232 (1974). In Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982), the Court held that “government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” This approach removed subjective good
faith from the analysis and centered on objective good
faith. Objective good faith “involves a presumptive
knowledge of and respect for ‘basic, unquestioned con-
stitutional rights.’ ” Jd. at 815 (quoting Wood v. Strickland,
420 U.S. 308, 322 (1985).
In Anderson v. Creighton, 107 S.Ct. 3034 (1987), the
Court further refined its objective good faith analysis.
Seeking to avoid a “rule of virtually unqualified liability
simply by alleging violation of extremely abstract rights,”
the Court declared that a violation of a constitutional right
would not necessarily defeat qualified immunity. Qualified
immunity would still apply, the Court reasoned, unless the
“contours of the right [were] sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Jd. at 3039. See also Watson v. City of
Kansas City, Kansas, No. 86-2501, slip op. at 15-16 (10th
Cir. Sept. 14, 1988). Otherwise stated, the question is
whether a reasonable official could have believed his co-
duct lawful “in light of clearly established law and the
B-12
information the searching officers possessed.” Anderson v.
Creighton, 107 St.Ct. at 3040.
In this case, there is no clearly established law pro-
hibiting Mr. Gerber’s actions. In fact, as this court has
found, the law indicates the contrary. The statute does not
require a warrant, and warrantless searches of pervasively
regulated industries are permissible. Mr. Gerber’s duties
include investigating discharges of pollution into ground-
water. He knew that previous investigations had indicated
that V-1 Oil’s station was the source of nearby ground-
water pollution. He could reasonably expect that the tanks
would not long remain exposed. Based upon the status of
the law and the information he possessed, the court must
conclude that a reasonable official in his position would not
understand that he was violating a right. As earlier stated
the court does not believe that he did violate a right.
V-1 Oil carries the burden of convincing this court that
the constitutional rights relied upon were clearly es-
tablished. Pueblo Neighborhood Health Centers v. Losavio,
847 F.2d 642, 645, (10th Cir. 1988) (citing Lutz v. Weld
County School District, 784 F. 2d 340, 342-43 (10th Cir.
1986) ). V-1 Oil must do more than merely identify in the
abstract a clearly established right and allege that defen-
dant has violated it. Losavio, 847 F. 2d at 645 (citing Ander-
son v. Creighton, 107 S.Ct. at 3039 n.2). V-1 Oil has not met
these burdens. It is therefore
ORDERED that defendant’s motion for summary
judgment is GRANTED.
Dated this 28th day of September, 1988.
By the Court:
/s/ ALAN R. JOHNSON
ALAN R. JOHNSON
UNITED STATES DISTRICT JUDGE
B-13
ae
we ele OO
CERTIFICATE OF SERVICE
I, F. M. Andrews, Jr., one of the attorneys for the
petitioner herein, and a member of the Bar of the Supreme
Court of the United States, hereby certify that on the 19th
day of July, 1990, I served copies of this Petition for Writ of
Certiorari to the United States Court of Appeals for the
Tenth Circuit, by mailing copies in a duly addressed
envelope, with first class postage prepaid, to the following
attorney of record:
Steve Jones
Senior Assistant Attorney General
State of Wyoming
123 Capitol Building
Cheyenne, Wyoming 82002
Attorney for Respondent
F. M. An s,
Law Offices_of
Andrews and Anderson, P.C.
Broadway and Park
Riverton, WY 82501
Telephone: (307) 856-9279
Attorneys for Petitioner
Po a ee
AFFIDAVIT OF MAILING
I, F. M. Andrews, Jr., one of the attorneys for the
petitioner herein, and a member of the Bar of the Supreme
Court of the United States, hereby certify that on the 19th
day of July, 1990, I deposited in the United States Post
Office located at 5th and Main in Riverton, Wyoming, with
first class postage prepaid, and properly addressed to the
Clerk of the Supreme Court of the United States, within
the time allowed for filing, this Petition for Writ of Cer-
tiorari to the United States Court of Appeals for the Tenth
Circuit.
Andrews and Anderson, P.C.
Broadway and Park
Riverton, WY 82501
Telephone: (307) 856-9279
Attorneys for Petitioner
STATE OF WYOMING )
) ss.
COUNTY OF FREMONT )
SUBSCRIBED SWORN to before me at River-
ton, Wyoming, this vA 7 day of July, 1990.
ARY PUBLIC - State of Wyoming
‘My commission expires:
/- 4-93
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