dissenting:
With deference, I dissent. In the vernacular, the parties here “couldn’t care less” what disposition we make of the case now that the Supreme Court has decided Mar-shall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The trial court here held in favor of the appellee, Gibson’s Products of Plano, that the Secretary of Labor could not require Gibson’s to submit to inspection under § 8(a) of OSHA without a warrant. The Secretary appealed and we delayed consideration of the appeal pending the Supreme Court’s action in Barlow’s. In that case, the Court fully supported Gibson’s Products’ contention. There remained nothing for us to do but to apply the rule thus established to the case before us and affirm the district court’s dismissal of the Secretary’s complaint. Instead, acting not only without the request of the party that would normally urge lack of jurisdiction of the trial court to entertain the suit, but over its active opposition,1 the majority of the court now concludes that the court below had no jurisdiction of the subject matter and should have dismissed the complaint on that ground.
Of course, as between the parties, the result as to this specific litigation is the same. However, the majority’s holding eviscerates the whole inspection program which Congress has provided in the Act. It deprives the Secretary of the right to file a *679suit to enforce inspection, even when the inspection is sought after the issue of a warrant, thus making the Supreme Court’s consideration and decision of the warrant question in Barlow’s a complete exercise in futility.
The court reaches this result in terms of lack of subject matter jurisdiction. While I think, with deference to my colleagues, that this is not a question of jurisdiction at all, but rather a question of whether the Secretary’s complaint alleges a state of facts upon which relief could be granted, the court must still answer the same question. That question is whether the Occupational Safety and Health Act of 1970 gives to the Secretary of Labor the right to file a suit in a United States district court to compel the inspection which § 657(a) of the Act requires the Secretary to perform. The majority of the court concludes that Congress has not given this right to the Secretary. I disagree.
It is undisputed that nowhere in the Act has Congress said that if the owner of a subject establishment refuses to permit the entry of the federal officials to inspect the premises, the Secretary may file suit in a United States Court to order his admission. Section 8(a), 29 U.S.C. § 657(a), provides:
(a) In order to carry out the purposes of this chapter, the Secretary, upon presenting appropriate credentials to the owner, operator, or agent in charge, is authorized—
(1) to enter without delay and at reasonable times any factory, plant, etc.; and
(2) to inspect and investigate during regular working hours and at other reasonable times, etc.
Section 8(g)(2) of OSHA, 29 U.S.C. § 657(g)(2) instructs the Secretary of Labor to:
prescribe such rules and regulations as he may deem necessary to carry out [his] responsibilities under this chapter, including rules and regulations dealing with the inspection of an employer’s establishment.
One of these regulations provides that if an employer refuses to allow compliance officers to enter his premises, the inspection is to cease and the matter is to be referred to the area director, the assistant regional director, and the regional solicitor, “who shall promptly take appropriate action, including compulsory process, if necessary.” 29 C.F.R. § 1908.4.
I agree, of course, that United States courts are courts of limited jurisdiction and I also agree that such jurisdiction can only be granted by Congress. The same is true with respect to the right of a government official to file a suit in a federal court. The point of difference between us here is that I conclude that the statute which created a right and a duty in the Secretary of Labor, and which directed the Secretary to prescribe such rules as he deems necessary to carry out his responsibilities, including rules dealing with the inspection of an employer’s establishment, clearly gave the Secretary the right to file the complaint in this action. This results from the fact that the Secretary did promulgate a regulation expressly authorizing his subordinate officials to “promptly take appropriate action, including compulsory process if necessary.”
The majority based its conclusion that the Secretary was without statutory authority to file the complaint on its application of several aids to statutory construction: legislative history, the rule expressio unlus est exclusio alterius and the purpose and intent of the Act as indicated by one phrase “enter without delay.”2
It seems to me that the majority has overlooked the basic Canon of construction *680of a statute which I think all would agree is that we must ascertain the evil with which Congress sought to deal, the means by which it undertook to cure the evil and the reason for the remedy provided to cure it. This is nowhere better stated than by Lord Coke in 1584:
And it was resolved by them, that for the full and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered — 1st. What was the common law before the making of the act? 2nd. What was the mischief and defect for which the common law did not provide? 3rd. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth? and 4th. The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief, and pro privato eommodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.
Hayden’s Case, 3 Co.Rep. 72, 76 Eng.Repr. 687 (1584).
Here, the intent of Congress seems clear. Not only does the Act’s enforcement facially depend on inspection having been conducted before any of the steps to remedy job safety hazards may be taken, but Congress repeatedly referred in the Act itself to § 8(a) as creating a right to conduct inspections. That right would be nullified if the Secretary could not enforce it in the federal courts. Now that the Supreme Court has gone to the trouble of deciding the Constitutional question as to the need for the Secretary to obtain a warrant before he can insist on an entry, the owner of a business establishment can simply refuse to admit the inspector even when armed with a warrant and be immune from any court process requiring him to comply with the clear purpose of the statute. Except for those businesses that are willing voluntarily to open their doors to the inspector when he comes initially, the enforcement of OSHA is stopped in its tracks.
As indicated, I would conclude that the statute properly construed authorizes the Secretary of Labor to file the complaint which he filed in this case. Furthermore, and more importantly, I am convinced that the Supreme Court in Barlow’s has approved by clearest implication the filing of such complaint by the Secretary of Labor. In that case, the court had before it an appeal from a three-judge statutory court constituted under 28 U.S.C. § 2282. In Barlow’s the Secretary of Labor sought entry to the employer’s place of business without a warrant. This was refused by the employer. Thereafter, the Secretary filed a complaint in the district court for the District of Idaho, seeking an order to require the respondent to permit the inspection (precisely what was done here). The court granted an injunction following a hearing. The following day, Barlow’s sought an injunction restraining the Secretary from entering his place of business on the ground that § 657(a) was unconstitutional in that it authorized a forced entry into its place of business without a warrant, in violation of the Fourth Amendment to the Constitution.
The significant thing, for our purposes here, is that the Supreme Court dealt with the original action commenced by the Secretary in the district court of Idaho (precisely as was done in the case now before us) as a perfectly valid and proper proceeding by the Secretary to enforce compliance with the statute. As an illustration, the Court said:
The Secretary petitioned the United States District Court for the District of Idaho to issue an order compelling Mr. Barlow to admit the inspector.3
Reference to page 1823. shows that the Court recognized with apparent full approval the power of the Secretary to bring a necessary suit to obtain compulsory process. *681After noting that there are indications that surprise searches are contemplated, the Court said:
However, the Secretary has also promulgated a regulation providing that upon refusal to permit an inspector to enter the property or to complete his inspection, the inspector shall attempt to ascertain the reasons for the refusal and report to his superior, who shall ‘promptly take appropriate action, including compulsory process, if necessary.’ 29 C.F.R. § 1903.4, (footnote omitted). The regulation represents a choice to proceed by process where entry is refused.
Id., p. 1823 (emphasis added.) In footnote 12, after quoting the regulation which I have cited above, the Court said:
When his representative was refused admission by Mr. Barlow, the Secretary proceeded in federal court to enforce his right to enter and inspect, as conferred by 29 U.S.C. § 657.
Id., p. 1823 (emphasis added.)
Thus, without the slightest suggestion that the Secretary did not have the right to commence the action in the district court in Idaho, the Supreme Court went on to solve the difficult Constitutional question whether the court could force entry on Barlow’s premises when the Secretary had sought entry without a warrant. Moreover, this is not all. The concluding paragraph of the opinion states:
We hold that Barlow was entitled to a declaratory judgment that the Act is unconstitutional insofar as it purports to authorize inspections without warrant or its equivalent and to an injunction enjoining the Act’s enforcement to that extent.23
Footnote 23 appears to me to recognize and impliedly approve of the right of the Secretary to file his complaint in the federal court. It says:
The injunction entered by the District Court, however, should not be understood to forbid the Secretary from exercising the inspection authority conferred by Section 657 pursuant to regulations and judicial process that satisfy the Fourth Amendment.
(Emphasis added.) Then finally, in the same footnote, it is stated:
Of course, if the process obtained here, or obtained in other cases under revised regulations, would satisfy the Fourth Amendment, there would be no occasion for enjoining the inspections authorized by Section 8(a).
To me, this is a clear statement that if the suit filed by the Secretary of Labor in the district court had provided notice to Barlow’s and the injunction sought had been supported by sufficient proof of the need for the inspection as outlined in the court’s opinion, then the original order of the district court obtained at the behest of the Secretary could not be enjoined by the three-judge court. This seems to me by clearest implication, a statement by the Supreme Court that the Secretary had the authority to file the original action seeking compulsory process to admit him into Barlow’s place of business.
In sum, I believe the statute expressly authorizes the Secretary to issue regulations dealing with the right to inspect; the regulations properly include a provision authorizing the Secretary to proceed for compulsory process in the district court if access is denied; and that this view is fully supported by the Supreme Court in its reaching the merits of the Constitutional question in Barlow’s, which would not have been necessary had the Court been of the view that is entertained by the majority here — that the original order entered by the district court in Idaho was a nullity for want of federal jurisdiction.
I would merely enter an order affirming the trial court’s dismissal of the complaint, giving effect to the court’s decision in Barlow's.
. After submission of the case, the court directed both parties to file briefs stating the basis of federal court jurisdiction and discussing the right of the Secretary to commence the action. Both parties insisted that the court had federal question jurisdiction and that the Secretary had ample authority under the Act to maintain the suit.
. The majority reasons that since the statute gives the Secretary the right “to enter without delay” it would be inconsistent for the Congress to have authorized him to bring an action to enforce his right of entry if it was refused. This seems far fetched to me especially in light of the provisions of the second paragraph 8(a) authorizing the Secretary “to inspect and investigate during regular working hours and at other reasonable times, etc.” Moreover, it would seem logical to assume that if the Secretary was unable to enter “without delay” Congress would expect him to enter as soon as he could legally obtain access.
A regulation of the Secretary, 29 C.F.R. § 1903.4, requires an inspector to seek compulsory process if an employer refuses a requested search. See page 1823 infra and n. 12. Id. at 1819.