UNITED STATES оf America, Plaintiff-Appellee, v. V-1 OIL COMPANY, d/b/a V-1 Propane, Defendant-Appellant.
No. 94-36178
United States Court of Appeals, Ninth Circuit
August 24, 1995
63 F.3d 909
Argued and Submitted July 18, 1995.
[T]he Committee recognizes the unique working relationship between the national aging nonprofit organizations and EPA in utilizing older persons to perform services to improve the environment. SEE participants are enrollees in a work experience program and are not employees of either EPA or the national aging organizations and therefore should not have to adhere to certain work restrictions or limitations.
H.R.Rep. No. 710, 102d Cong., 2d Sess. 59 (1992) (emphasis added). Nearly identical language can be found in House Cоmmittee Reports accompanying 1993 and 1994 EPA appropriations bills.3 See H.R.Rep. No. 150, 103d Cong., 1st Sess. 53-54 (1993); H.R.Rep. No. 555, 103d Cong., 2d Sess. 55 (1994).
The text of the EPAA, together with the committee reports to the EPA appropriations bills, clearly indicate Congress’ intent to limit the explicit waiver of sovereign immunity for federal employees to sue under the ADEA. Such explicit limitations on waivers of sovereign immunity are to be “strictly observed.” Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981).
Daniels argues that congressional intent as to whether SEE participants are “employees” for purposes of the ADEA is not determinative. She argues that a multi-factored, common law agency test should be used to determine whether she was an EPA employee. An agency analysis may be approрriate where congressional intent to limit a preexisting waiver of sovereign immunity is not clear. But in this case, where Congress’ intent to limit its waiver of sovereign immunity is clear and unambiguous, we need not resort to an agency analysis to determine whether Daniels is an “employee” for purposes of the ADEA.
CONCLUSION
We affirm the district court‘s grant of summary judgment in favor of the EPA because the clear intent of Congress in creating and funding the SEE program was to exempt its recipients from the operation of the ADEA.
AFFIRMED.
John F. Daly, U.S. Dept. of Justice, Jonathan Kaplan, U.S. Dept. of Transp., Washington, DC, for plaintiff-appellee.
Opinion by Judge FARRIS; Dissent by Judge NOONAN.
FARRIS, Circuit Judge:
The principal question is whether warrantless, unannounced inspections under the Hazardous Materials Transportation Act violate V-1‘s Fourth Amendment rights. We hold that they do not and affirm.
I. FACTS
V-1 Oil Company is a liquefied propane gas retailer in six western states. It receives propane gas by rail from Canadian distributors. Although V-1 does not own the rail cars, V-1‘s employees unload and transfer the propane shipments to the company‘s storage tanks. V-1‘s employees then return the empty rail cars to the distributors.
Congress enacted the Hazardous Materials Transportation Act (“HMTA“) in 1975. The Act gives the Secretary of Transportation extensive authority to regulate the transportation and handling of hazardous materials. As part of the Secretary‘s authority, he may conduct warrantless, unannounced inspections of property or records that involve the transportation of hazardous materials. The statute and regulations provide that inspections must be conducted at reasonable times and in a reasonable manner. The Secretary has delegated oversight responsibility for all transportation by rail to the Federal Railroad Administration (“FRA“).
In 1990 an FRA inspector attempted to inspect V-1‘s facility in Idaho Falls. V-1 denied permission for the inspection unless the inspector complied with V-1‘s safety policies. V-1 required all government inspectors to fill out its “Form 130.” The form asks for the inspector‘s name, title, and agency; the reason or purpose for the visit; the statutory or other authority for the inspection or visit; and the inspector‘s qualifiсations and experience. If V-1 approves, it then schedules an inspection for a time when its business operations will not be interrupted or impeded. FRA sought to inspect V-1‘s property and records three more times from 1992-93. Each time V-1 refused unannounced inspections.
In August 1993, the United States filed this action under
II. DISCUSSION
A. WARRANTLESS SEARCHES OF V-1 UNDER THE HMTA DO NOT VIOLATE THE FOURTH AMENDMENT
V-1 argues that FRA‘s warrantless, unannounced searches violate the
The district court properly concluded that V-1 is a closely regulated industry because it transports and sells hazardous materials. V-1 admits that it is regulated by 331 state and federal agencies. Nevertheless, it argues that it is not part of the railroad industry and is not pervasively regulated by FRA. We rejеct the argument. V-1‘s privacy expectations are not necessarily triggered by the particular agency conducting the search. V-1 has a reduced expectation of privacy because it transports, stores, and sells propane gas. The
The first two prongs of the Burger test are easily satisfied. The government has a substantial interest in regulating the transportation and temporary storage of hazardous materials to protect life and property. Also, unannounced inspections reasonably ensure that the statute is satisfactorily enforced. See United States v. Biswell, 406 U.S. 311, 316, 92 S.Ct. 1593, 1596, 32 L.Ed.2d 87 (1972) (stating that “if inspection is to be effective and serve as a credible deterrent, unannounced, even frequent, inspections are essential“). Advanced notice of inspeсtions could permit V-1 to temporarily correct violations and frustrate enforcement efforts. See id.
Under the third prong of the Burger test, a statute‘s inspection program constitutes an adequate substitute for a warrant if the owner of commercial property knows that his property will be subject to periodic inspections undertaken for specific purposes, and if the inspection program is limited in time, place, and scope. Burger, 482 U.S. at 703, 107 S.Ct. at 2644. V-1 alleges that the statute does not satisfy the third prong because it “applies to everyone in interstate commerce who uses any [hazardous materials].” V-1 also asserts that the scope of searches by FRA is “unlimited.”
We have carefully considered V-1‘s arguments. The statute, as applied to V-1, provides an adequate substitute for a warrant. The HMTA satisfactorily notifies the types of businesses subject to inspection.
The Secretary may authorize any officer, employee, or agent to enter upon, inspect, and examine, at reasonable times and in a reasonable manner, the records and properties of рersons to the extent such records and properties relate to—
(1) the manufacture, fabrication, marking, maintenance, reconditioning, repair, testing, or distribution of packages or containers for use by any person in the transportation of hazardous materials in commerce; or
(2) the transportation or shipment by any person of hazаrdous materials in commerce.
V-1 is subject to inspections by the FRA only because of its extensive activities relating to the transportation of propane gas. V-1 itself unloads the propane from the rail cars into its storage facilities. The Act applies to the process of unloading rail cars filled with hazardous materials.
The statute also limits the discretion of inspecting officers. The permissible scope of these searches is narrowly defined to business premises and records that relate to the transportation of hazardous materials. See Burger, 482 U.S. at 711, 107 S.Ct. at 2648 (noting that the New York statute limits the scope of inspections to records and vehicles on the business premises). HMTA‘s regulations “set[] forth the scope of the inspection and... places the operator on notice as to how to comply with the statute.” See id. Finally, FRA inspections may be conducted only at reasonable times and in a reasonable manner. FRA‘s enforcement manual requires inspections to be conducted during normally assigned office hours unless the
B. PERMANENT INJUNCTIVE RELIEF
V-1 argues that permanent injunctive relief is inappropriate for two reasons. First, it asserts that the injunction is not sufficiently specific to satisfy
The district court‘s injunction requires V-1 to allow warrantless administrative searches “for the purposе of enforcing the [HMTA] and its implementing regulations.” This language is not ambiguous. The injunction cannot reasonably be construed as permitting searches that would otherwise be prohibited. V-1 has legal remedies available if FRA engages in improper searches.
V-1 also argues that the requirements for a permanent injunction have not been satisfied. We review thе grant of a permanent injunction for abuse of discretion. Multnomah Legal Services Workers Union v. Legal Services, 936 F.2d 1547, 1552 (9th Cir.1991). The district court‘s injunction merely provides that V-1 must permit FRA to administer the HMTA. The statute is constitutional. A permanent injunction permitting the enforcement of a statute that meets constitutional muster is not an abuse of discretion.
AFFIRMED.
NOONAN, Circuit Judge, dissenting.
The
To the rule requiring a warrant as the guarantee of reasonableness, courts have fashioned exceptions, among them the exception invoked here where “the statute‘s inspection program, in terms of the certainty and regularity of its apрlication [provides] a constitutionally adequate substitute for a warrant.” New York v. Burger, 482 U.S. 691, 703, 107 S.Ct. 2636, 2644, 96 L.Ed.2d 601 (1987), quoting Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2538-39, 69 L.Ed.2d 262 (1981).
Nothing in the statute at issue assures a program that will have “certainty and regularity” in its application. By regulation, there are over 2,000 hazardous materials.
As applied to V-1 the statute is equally lacking in certainty and regularity. From January 1, 1975 to November 1, 1990 the Federal Railroad Administration had never inspected or attempted to insрect V-1‘s premises. This large fact alone destroys any claim of certainty and regularity in the program commanded by the statute. After November 1, 1990 there was one attempted inspection and three inspections made possible by the Preliminary Injunction while this case was being appealed. These four instances fail to establish certainty and regulаrity of inspection over the past twenty years. To the contrary, the evidence shows great uncertainty, great irregularity, and a long period in which no inspection was even attempted.
The court meets this evidence by accepting an allegation in V-1‘s brief, that V-1 is subject to regulation by 331 state and federal agencies. To be sure, it is a regulated businеss. But there is no evidence that the kinds of regulations to which it is subject are a substitute for a search warrant. The exception to the
The curious argument is made by the government, and accepted by the court, that the warrantless inspections are necessary because surprise is important for enforcement. Surprise inspections are, by definition, irregular and uncertain, just the opposite of what is constitutionally the equivalent of a warrant. The asserted need of such inspections suggests that government is seeking to obtain by the equivalent of the detested general warrant what is only available to it constitutionally on a showing of probable cause.
In See v. Seattle the routine, periodic, citywide check of commercial establishments to assure compliancе with the city‘s fire code was held not to justify the fire chief‘s warrantless attempt to enter a warehouse. See, 387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 56 L.Ed.2d 305. The requirements of the
Courts have been careful to preserve the
I respectfully dissent.