Donovan v. Hackney, Inc.

• Decision Date: 30 July 1985
• Docket Number: Nos. 84-1495,84-1568 and 85-1287,s. 84-1495
• Citation: 769 F.2d 650
• Parties: 12 O.S.H. Cas.(BNA) 1425, 1984-1985 O.S.H.D. ( 27,348 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. HACKNEY, INC., and Wayne Schwedland, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 650

769 F.2d 650

12 O.S.H. Cas.(BNA) 1425, 1984-1985 O.S.H.D. ( 27,348

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. HACKNEY, INC., and Wayne Schwedland, Defendants-Appellants.

Nos. 84-1495, 84-1568 and 85-1287.

United States Court of Appeals Tenth Circuit.

July 30, 1985.

Robert E. Rader, Jr. of McCarty, Wilson, Rader & Mash, Ennis, Tex., for defendants-appellants.

Andrea C. Casson, Washington, D.C. (Francis X. Lilly, Solicitor of Labor; Frank A. White, Associate Sol. for Occupational Safety and Health; and Judith N. Macaluso, Asst. Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., with her on brief), for plaintiff-appellee.

Before BARRETT and McWILLIAMS, Circuit Judges, and KERR, District Judge. ^*

McWILLIAMS, Circuit Judge.

A federal magistrate issued the Secretary of Labor a warrant authorizing a work-site inspection of Hackney, Inc. for possible violations of the Occupational Safety and Health Act, 29 U.S.C. Sec. 651, et seq. Hackney is located in Enid, Oklahoma and is engaged in the business of manufacturing welding fittings. However, the OSHA agent, armed with an inspection warrant, was denied entry to the plant by the plant manager, Wayne Schwedland, who was acting on instructions from Hackney's counsel. The Secretary then instituted the present proceeding by which it sought to hold Hackney and its plant manager in civil contempt. In the contempt proceeding, Hackney filed a counterclaim for a declaratory judgment that the inspection warrant was invalid because the warrant application failed to establish probable cause and because OSHA's "general administrative plan" for scheduling programmed inspections of job sites was invalid on several grounds.

After trial, the district court held that there was probable cause for the issuance of the inspection warrant. Further, the district court refused to permit Hackney to challenge the "plan" in the manner sought in the contempt proceeding. Accordingly, the district court held both Hackney and Schwedland in contempt, ordering that Schwedland be committed to the custody of the United States Marshal and that Hackney pay a civil fine of $1,000 per day, until such time as they purged themselves of contempt. The district court's Memorandum Opinion appears as Donovan v. Hackney, Inc., 583 F.Supp. 773 (W.D.Okla.1984). Hackney and Schwedland appeal.

The inspection warrant here involved was not based on specific evidence of an existing violation of the Act at the Hackney plant. Rather, in the instant case the request for an inspection warrant was made by Jack F. Ostrander, counsel for OSHA. Attached to the request was an affidavit of James E. Brown, III, a Supervisory Industrial Hygienist for the Oklahoma City area OSHA office. In his affidavit, Brown stated, inter alia, that the purpose of the proposed inspection was to determine whether the conditions at Hackney's workplace were in compliance with Sections 5(a)(1) and 5(a)(2) of the Act, 29 U.S.C. Sec. 654 (a)(1) and (a)(2), and the applicable regulations regarding health hazards, and that Hackney had been randomly selected for inspection through a programmed health inspection plan. Attached to Brown's affidavit were several supporting materials, including a copy of the plan. Based on this showing, the federal magistrate found "administrative probable cause" and issued the inspection warrant.

The initial question, in our view, is whether the federal magistrate acted on "probable cause" in issuing the warrant authorizing an inspection of the Hackney plant. If he did not, then, under Marshall v. Horn Seed Co., Inc., 647 F.2d 96 (10th Cir.1981), the district court in the present proceeding should have quashed the warrant and dismissed the contempt petition. However, unlike the district judge in Horn Seed, the district judge in the instant case held that the federal magistrate did act on probable cause, and we are disinclined to disturb such ruling.

As earlier stated, this is not a "specific evidence" case; i.e., OSHA is not acting, for example, on an employee's complaint that his employer is violating the Act. Both "specific evidence" and "programmed" OSHA inspections, however, are governed by a lower standard of "probable cause." As stated by the Supreme Court in Marshall v. Barlow's, Inc.:

Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that "reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment]." Camara v. Municipal Court, 387 U.S. , at 538 [87 S.Ct. 1727, at 1735, 18 L.Ed.2d 930]. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer's Fourth Amendment rights. We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions. (emphasis added).

436 U.S. 307, 321-22, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1977)

In the instant case, the district court ruled that the federal magistrate acted on probable cause. Donovan v. Hackney, 583 F.Supp. 773, 778-79 (W.D.Okla.1984). We agree that the material before the federal magistrate supports the district court's ruling that the magistrate acted with probable cause as it appears from our review of the warrant application that the Secretary's decision to inspect the Hackney plant was based on random selection under a programmed health inspection plan. ¹ We have held that a magistrate's finding of probable cause in a criminal setting is entitled to substantial deference, United States v. Wood, 695 F.2d 459, 464 (10th Cir.1982), and we now hold that such a rule is equally applicable in this case. The district court, in the instant case, carefully analyzed the materials before the federal magistrate and concluded that the magistrate had probable cause to issue an inspection warrant. We are in accord with the district court's handling of the probable cause issue. See 583 F.Supp. at 778-79. We note that the intrusion here is relatively minimal; this is an inspection of a workplace where employees freely enter, not...