769 F.2d 650 (10th Cir. 1985), 84-1495, Donovan v. Hackney, Inc.

Docket Nº:84-1495, 84-1568 and 85-1287.
Citation:769 F.2d 650
Party Name:Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. HACKNEY, INC., and Wayne Schwedland, Defendants-Appellants.
Case Date:July 30, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 650

769 F.2d 650 (10th Cir. 1985)

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

Page 651

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

Page 652

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...

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