FEDERAL CASTING DIVISION, ETC. v. Donovan
| Citation | 514 F. Supp. 617 |
| Decision Date | 28 May 1981 |
| Docket Number | Civ. A. No. 80-C-728. |
| Parties | FEDERAL CASTING DIVISION, CHROMALLOY AMERICAN CORPORATION, Plaintiff, v. Raymond J. DONOVAN, Secretary of Labor, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Clifford B. Buelow, David, Kuelthau, Vergeront, Stover, Werner & Goodland, S.C., Milwaukee, Wis., for plaintiff.
Charles H. Bohl, Asst. U. S. Atty., Milwaukee, Wis., for defendants.
DECISION and ORDER
In this action, Federal Casting Division of Chromalloy American Corporation alleges that an inspection of its plant by the Occupational Safety & Health Administration (OSHA) was in violation of its rights under the Fourth Amendment to the United States Constitution. The company seeks a declaratory judgment that the warrant was unenforceable in December, 1979, an order prohibiting the further use by the defendants of information or evidence obtained in the search, quashing the citations arising out of the search, prohibiting enforcement actions based on the citations, and attorney's fees. Pending are cross-motions for summary judgment.
The warrant at issue is a much litigated administrative warrant for the inspection of plaintiff's foundry. It was issued on April 20, 1977 by U.S. Magistrate John C. McBride. It was to be returned within 10 days. On April 20, OSHA Compliance Officers went to the foundry in an attempt to execute the warrant; they were refused entry.
On May 17, 1977, OSHA filed civil contempt proceedings against the company. On July 12, 1977, Chief Judge John Reynolds found plaintiff in civil contempt for failure to comply with the warrant. 433 F.Supp. 330 (E.D.Wis.). On July 19, 1977, plaintiff filed a notice of appeal and moved Judge Reynolds for a stay pending appeal. A temporary stay was issued on July 20, 1977, pending briefing on the request for a stay. On July 25, 1977, Judge Reynolds denied the request for a stay. Plaintiff filed a motion for stay in the Seventh Circuit Court of Appeals, and a temporary stay was issued on July 29, and a stay pending appeal on August 24, 1977.
Meanwhile, an inspection of the facilities began on July 26, 1977, the day after the first stay lapsed, and continued until July 29, 1977, when the temporary stay was issued by the Court of Appeals. Citations were issued as a result of the inspection, and on September 22, 1977, OSHA filed a complaint before the Occupational Safety & Health Review Commission based on those citations. On October 3, 1977, the company moved the Review Commission for a stay pending the appeal to the Seventh Circuit. That stay was granted.
On January 2, 1979, the Seventh Circuit Court of Appeals issued a decision affirming the judgment of the district court and vacating its stay. On January 10, 1979, plaintiff filed a petition for rehearing, which was denied on March 14, 1979. A motion for a stay pending review by the Supreme Court was denied on April 9, 1979. On June 12, 1979, a petition for certiorari was filed with the Supreme Court. The petition was denied on October 2, 1979.
On December 3, 1979, an OSHA Compliance Officer attempted to conduct an inspection of plaintiff's plant pursuant to the April, 1977 warrant. A company official stated his belief that the warrant, which he was never shown, was stale and requested that OSHA obtain a new warrant. The official was told that the company would be held in contempt if it did not permit the latest inspection. The inspection was allowed "under protest" on December 11, 1979. Citations were issued on February 29, 1980 and June 2, 1980. The present action in federal court was filed August 7, 1980.
The issue on which both parties concentrate in their respective motions for summary judgment is whether the warrant was valid when it was executed in December, 1979. Plaintiff argues that it expired of its own terms 10 days after it was issued by Magistrate McBride, and that it was also unenforceable because by December, 1979 the National Emphasis Program, under which the company had originally been selected for inspection, had long been abolished by OSHA. OSHA argues that the plaintiff has, by its own action, caused the delay in the execution of the warrant and, therefore, cannot be heard in any argument that the warrant is now stale.
The issue of the validity of the warrant is but one of the issues in the case. Because an...
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Federal Casting Div., Chromalloy American Corp. v. Donovan
...district court granted the Secretary's motion for summary judgment on May 28, 1981. Federal Casting Division, Chromalloy American Corp. v. Donovan, 514 F.Supp. 617 (E.D.Wis.1981). The court found that because the warrant had been issued pursuant to a general administrative inspection plan d......
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Donovan v. Wollaston Alloys, Inc., 82-1219
...has become stale. Hern Iron Works, Inc. v. Donovan, 670 F.2d 838, 840 (9th Cir.1982) (quotingFederal Casting Div. Chromalloy American Corp. v. Donovan, 514 F.Supp. 617, 618-19 (E.D.Wisc.1981), cert. denied, --- U.S. ----, 103 S.Ct. 69, 74 L.Ed.2d 69 (1982)). Second, Wollaston argues that th......
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Hern Iron Works, Inc. v. Donovan
...Cir. 1980). See Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1287-88 (9th Cir. 1979). In Federal Casting Div. Chromalloy American Corp. v. Donovan, 514 F.Supp. 617, 618-19 (E.D.Wis.1981) a Wisconsin district court upheld a foundry inspection warrant, pursuant to a general administrative ......