Donovan v. Athenian Marble Corp.

• Decision Date: 23 March 1982
• Docket Number: No. Civ 81-0795-BT.,Civ 81-0795-BT.
• Citation: 535 F. Supp. 176
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ATHENIAN MARBLE CORPORATION and Mel Jurjens, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

535 F. Supp. 176

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. ATHENIAN MARBLE CORPORATION and Mel Jurjens, Defendants.

No. Civ 81-0795-BT.

United States District Court, W. D. Oklahoma.

March 23, 1982.

Robert A. Fitz, James White, T. Timothy Ryan, Jr., Washington, D.C., and Jack F. Ostrander, for plaintiff.

Jack T. Crabtree, Oklahoma City, Okl., for defendants.

MEMORANDUM OPINION

BRETT, District Judge.

On May 5, 1981, a representative of the Occupational Safety and Health Administration (OSHA), Paul L. Brantley, appeared before United States Magistrate Paul B. Lindsey and submitted a Request for Inspection Warrant and his affidavit in support thereof. Upon review of the Request and affidavit, Magistrate Lindsey issued an Inspection Warrant authorizing Brantley and other duly appointed OSHA Compliance Officers to enter the workplace of Athenian Marble Corporation (Athenian) within ten days for the purpose of conducting a programmed safety inspection. Thereafter, on May 15, 1981, a duly authorized Compliance Officer, Guadalupe Ozuna, Jr., delivered a copy of the Inspection Warrant to the general manager of Athenian, Mel Jurjens, at the Athenian workplace. Jurjens dishonored the warrant and refused to permit an inspection of the workplace. The Secretary of Labor, acting through his duly authorized representatives, then instituted the instant action by filing a Petition for Adjudication in Civil Contempt.

On June 24, 1981, defendants sought by means of a deposition subpoena duces tecum to discover a variety of documents underlying the proposed programmed inspection. The Government moved to quash the subpoena and for a protective order asserting the documents sought to be discovered were privileged from discovery and disclosure of the same would place the disclosing official in violation of section 17(f) of the Occupational Safety and Health Act. Following a hearing on July 13, 1981 and an in camera review of the documents in question, the Court determined the documents were privileged from discovery and, accordingly, entered a protective order on July 20, 1981 quashing the deposition subpoena duces tecum and directing further discovery concerning the documents not be had.

Subsequently, on July 30, 1981, defendants propounded interrogatories to plaintiff wherein defendants attempted to obtain substantially the same information sought earlier in their deposition subpoena duces tecum. In response, the Government moved for a second protective order preventing defendants from inquiring into matters beyond the "four corners" of the warrant affidavit, and objected to each of the defendants' interrogatories on that basis. Upon consideration of the Government's motion, the Court entered a second protective order on August 14, 1981. Thereafter, defendants filed an application for review of the second protective order and a motion to compel discovery. Following briefing of the issues, the Court entered an order on February 5, 1982 denying defendants' request for vacation of the second protective order and defendants' motion to compel discovery. On the basis of the record before it, however, the Court concluded it could not determine whether the administrative plan forming the basis for the Government's Request for Inspection Warrant was derived from neutral sources or whether Athenian was one of the businesses covered by the administrative plan. Accordingly, the Court directed the Government to produce for in camera inspection the inspection warrant affidavit and all documents submitted to the magistrate in support thereof. The Government submitted these materials to the Court as directed, but the Court determined it was still not in a position to pass on the validity of the inspection warrant on the basis of the materials submitted. The Court, therefore, ordered the Government to produce for in camera inspection all documents relied upon by OSHA agent Brantley in making the statements contained in Paragraphs 12 and 13^* of his affidavit of May 5, 1981. The Government complied by submitting the relevant documents on March 1, 1982. Presently before the Court for consideration are cross motions for summary judgment.

As expressed in the Court's order of February 4, 1982, the Court's principal concern in this matter has been with reference to the ability of an employer to challenge the representations of OSHA officials made to the issuing judicial officer. The case law is clear the employer is not entitled to the materials submitted to the magistrate in support of the Request for Inspection Warrant. See, e.g., In the Matter of Establishment Inspection of Peterson Builders, Inc., 10 O.S.H.C. 1169, 1170 (E.D.Wis. 1981); Chicago Aluminum Casting Company v. Donovan, 535 F.Supp. 392 (N.D.Ill. 1981). That being the case, the employer is not in a position to take issue with facts alleged or an administrative plan presented in support of a Request for Inspection Warrant. As the Court noted in In the Matter of the Inspection of Xenia Foundry & Machine Company, 1981 CCH O.S.H.D. ¶ 25,513 (S.D.Ohio 1981):

The warrant procedure requires the independent judgment of the judiciary that probable cause exists before an inspection warrant is issued. Where the company to be inspected is unable to effectively challenge the representations of fact upon which the Court relies, the Court then becomes involved in a pro forma approval of OSHA's decision.

Id. at 31,808. Bearing this sound admonition in mind, the Court has conducted a careful review of the documents submitted to the magistrate in support of the warrant request as well as certain portions of the administrative plan pursuant to which the OSHA representative sought to conduct a programmed inspection of Athenian.

In support of their motion for summary judgment, defendants assert the information provided the issuing magistrate was insufficient to justify the finding of administrative probable cause necessary to support the issuance of an inspection warrant. Implicit in this assertion is the notion the reviewing court may only consider the information provided the issuing magistrate or judge. Marshall v. Horn Seed Co., Inc., 647 F.2d 96, 104 (10th Cir. 1981). This is, of course, a correct statement of the law, and, in determining whether the inspection warrant was validly issued upon a showing of administrative probable cause, this Court has considered only those materials submitted to the magistrate in support of the request for an inspection warrant. As this Court stated in its Order of February 4, 1982:

The issue before the Court is whether the administrative plan relied on by the Government in support of its warrant affidavit was derived from neutral sources, and whether defendant, Athenian Marble, is one of the businesses covered by such plan. Marshall v. Barlow's, Inc., 436 U.S. 307, 323 98 S.Ct. 1816, 1826, 56 L.Ed.2d 305 (1978).

Having reviewed the materials produced to the issuing magistrate, the Court concludes those materials were sufficient to justify the magistrate's findings that the administrative plan in question was derived from neutral sources and that defendant Athenian Marble was one of the businesses covered by such plan, and, therefore, there existed sufficient administrative probable cause to support the issuance of an inspection warrant. The pertinent allegations contained in the affidavit of the OSHA representative, Paul L. Brantley, are set forth below:

2. Athenian Marble Corporation, located at 7724 W. Melrose Lane, Oklahoma City, Oklahoma County, Oklahoma, is engaged in the business of manufacturing marble products and receiving shipments of polyester resin and brass items from Houston, Texas. This type industry is identified by the Standard Industrial Classification (hereinafter SIC) Number 3079.

* * * * * *

6. This establishment was selected for a programmed safety inspection pursuant to a scheduling system based upon objective selection criteria.

7. The Oklahoma City Area Office has instituted a scheduling system for programming inspections using the objective selection criteria set out in OSHA CPL 2.25A. A copy of this directive is marked Exhibit # 1, attached to this affidavit, and incorporated herein.

8. The initial selection of a particular category of employment for programmed inspection activity (i.e., health, safety, construction, maritime) is made in accordance with the annual Field Operations Program Plan. The program plan enables each Area OSHA Office to identify program activities, determine priorities and assign resources accurately.

9. The National Office provides the Area OSHA Offices with a statewide Industry Ranking Report of 4-digit SIC Codes (Standard Industrial Classification Codes) according to hazard rating value. The National Office also provide sic each OSHA Office

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