Perez et al v. Dollar Tree Store #3007

Filing 8

ORDER re 7 Response to Order to Show Cause filed by Dollar Tree Store #3007, and 4 Order to Show Cause. Petitioner shall file brief addressing Respondent's argument by 5/2/2014. Signed by Chief Judge Dana L. Christensen on 4/25/2014. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

THOMAS E. PEREZ, SECRETARY
OF LABOR; UNITED STATES
DEPARTMENT OF LABOR,

CV 14–120–M–DLC

ORDER
Petitioner,
vs.
DOLLAR TREE STORE #3007,
Respondent.
Petitioner Thomas E. Perez, the United States Secretary of Labor, brings
this action pursuant to Section 8(b) of the Occupational Safety and Health Act of
1970, as amended, 29 U.S.C. § 657(b), to judicially enforce a subpoena duces
tecum served on Respondent by the Occupational Safety and Health
Administration (“OSHA”) on March 13, 2014. (Doc. 2-1 at 6.) The subpoena –
issued after an OSHA inspection of Dollar Tree Store #3007 – demanded
production of documents related to the store’s corporate structure and operations,
as well as its safety policies and processes for receiving and storing merchandise,
by April 3, 2014. (Id. at 7-8.) Petitioner states that to date, Respondent has failed
to produce the requested documents, despite ongoing communications between
attorneys for each party.
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The Court ordered Respondent to show cause why the petition should not be
granted. Respondent timely filed a brief, which does not address the Petitioner’s
arguments as to the enforcement of the subpoena itself, but instead focuses on the
legality of the initial investigation. Respondent cites Marshall v. Barlow’s, Inc. for
the proposition that a “businessmen, like the occupant of a residence, has a
constitutional right to go about his business free from unreasonable official entries
upon his private commercial property.” 436 U.S. 307, 312 (quoting See v. City of
Seattle, 387 U.S. 541, 543 (1967)). In that case the Supreme Court held that the
Fourth Amendment’s warrant requirement applies to OSHA inspections conducted
pursuant to 29 U.S.C. § 657(a).
Respondent argues that because there was no probable cause articulated for
the investigation within the Petitioner’s briefs or supporting materials, the Court
must deny the petition. Presumably, Respondent’s logic is that because there was
no probable cause articulated for the investigation, and because the investigation
caused the Department of Labor to issue the subpoena, the Court must deny the
petition. This appears to be based on the same principle as the “fruit of the
poisonous tree” doctrine applicable in criminal prosecutions. Respondent provides
no legal authority for this proposition.
Respondent’s argument ignores the elephant in the room: the initial
investigation appears to be a consent search. Respondent offer no evidence to the
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contrary. If Mr. Woods was granted consent to conduct his investigation, the Court
will grant the petition. This course of action is wholly compatible with Marshall,
in which the Court notes that “[i]n the first place, the great majority of
businessmen can be expected in normal course to consent to inspection without
warrant; the Secretary has not brought to this Court’s attention any widespread
pattern of refusal.” 436 U.S. at 316.
While all the available evidence indicates that this was a consent search, out
of an abundance of caution, the Court will require Petitioner to file a brief, and
encourage it to present sworn testimony on that issue, which can be accomplished
through the form of an affidavit by any authorized and knowledgeable
representative of the Petitioner.
IT IS ORDERED that Petitioner shall file a brief addressing Respondent’s
argument, as well as the issue of whether it received consent to conduct its
December 10, 2013 investigation, by May 2, 2014. Petitioner is encouraged to
submit any sworn testimony that may support its claims, and must file any such
material by the same date. Petitioner shall not repeat any of the arguments it sets
forth in its initial brief in support of the petition, as the Respondent failed to
address those arguments, and the Court finds them compelling.

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Dated this 25th day of April, 2014.

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