In re Anthony Marano Co.
| Decision Date | 20 August 2021 |
| Docket Number | Case No. 21 M 499 |
| Parties | IN RE Establishment Inspection of: ANTHONY MARANO COMPANY, 3000 S. Ashland Avenue, #100, Chicago, IL 60608 |
| Court | U.S. District Court — Northern District of Illinois |
AUSA, United States Attorney's Office, Jing Acosta, David James Tanury, U.S. Department of Labor, Office of the Solicitor, Chicago, IL, for In Re: Establishment Inspection of Anthony Marano Company.
Kimberly Anne Herring, Matthew Walker Horn, Smithamundsen LLC, Chicago, IL, Robert B. Marcus, Maksimovich & Associates, P.C., Lyons, IL, for Anthony Marano Company.
The Seventh Circuit has yet to speak definitively on whether employers subject to administrative inspection warrants have a constitutional pre-execution right to Article III judicial review of the validity of such warrants under the Fourth Amendment. In this matter, Anthony Marano Company ("Anthony Marano") asserts that it has such a right, in filing an emergency motion to stay and unseal ("Motion to Stay"; D.E. 4) an administrative inspection warrant (D.E. 1) issued by this Court, per the undersigned magistrate judge, on July 28, 2021, on application by the Secretary of the U.S. Department of Labor ("the Secretary"). The Court granted Anthony Marano a temporary, de facto stay of execution of the warrant on August 4, 2021 while the Court considered the Motion to Stay, ordering Anthony Marano not to alter, destroy, or tamper with evidence. (D.E. 5.) The Court heard oral argument on the Motion to Stay on August 6. Anthony Marano then moved to quash the warrant. Motion to Quash Administrative Inspection Warrant ("Motion to Quash"; D.E. 18.) This Memorandum Opinion and Order addresses Anthony Marano's Motion to Stay and Motion to Quash.
The Secretary asserts that it first learned of a March 2021 accident at Anthony Marano's facility on the South Side of Chicago when an employee of the company contacted the Occupational Safety and Health Administration ("OSHA") by telephone on July 7, 2021. Response to Emergency Motion to Stay Warrant and Unseal Application and Cross Motion for Certification of Contempt at 2; Application for Inspection Warrant ("Warrant Application"; D.E. 1) ¶ 3. Included in the Warrant Application was an OSHA form reflecting the agency's receipt of the complaint on July 7, and indicating that on the same day, OSHA called the "source" for "more info" and "[d]iscussed incident/injury." Id. , Exh. A. The first page of the OSHA complaint form summarized the complaint as follows:
Id. The Warrant Application's supporting affidavit reiterated the complaint summary in the same words used on the first page of the complaint form. Id. ¶ 4. The affidavit further related that on July 9, the OSHA agent and affiant visited the Anthony Marano facility in an attempt to conduct a warrantless inspection but was told to leave immediately. Id. ¶ 9. The affidavit alleged that an attorney for Anthony Marano advised the agent in a telephonic conversation on speaker phone "that [OSHA] would need a warrant to conduct the inspection." Id. ¶ 10. The Secretary, in his opposition to the Motion to Stay, asserts that during this encounter, an OSHA supervisor told the Anthony Marano representatives over the speaker phone that the inspection was intended to investigate a complaint that OSHA had received about a forklift accident from March 2021. Resp., Exh. A ¶ 4. Having been refused entry, the agent left the Anthony Marano premises. Id. On July 28, the Secretary then presented the Warrant Application to the undersigned magistrate judge.
The Warrant Application further stated that OSHA has in place an "emphasis program," effective on October 1, 2018, for "powered industrial vehicles," which include forklift trucks. Warrant Application ¶6-7. The OSHA emphasis program calls for inspection upon "all serious complaints and referrals, alleging a hazard or a condition that may be a violation of the powered industrial truck standard or a potentially fatal ‘struck/caught/fall hazard’ associated with the operation of a powered industrial vehicle ...." Id. ¶ 7 (emphasis in original). The emphasis program, which was attached to the Warrant Application, further provides, in pertinent part:
Any referral or complaint classified by OSHA as "serious" which alleges a hazard or a condition that may be a violation of the powered industrial truck standard or a potentially fatal "struck/caught/fall hazard" associated with the operation of a powered industrial vehicle (e.g., struck by falling load, struck against, caught between, caught in, or fall hazard) in general industry or construction will be activated for inspection. Additionally, any ongoing inspection where powered industrial vehicles are observed in use will be expanded to evaluate possible violations of the powered industrial truck standard. A hazard is determined by OSHA to be serious if there is substantial probability that death or serious physical harm could result from an existing condition, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use. Inspections meeting the criteria set forth in this LEP will also evaluate safety and health hazards in or around loading docks or other designated loading and unloading areas where powered industrial trucks are in use (Including, but not limited to: loading docks, shipping and receiving areas, yard areas, and other locations where vehicles are loaded and unloaded).
Id. , Exh. C at 3. The emphasis program further provides:
The Warrant Application further cited 29 C.F.R. § 1910.178, "specifically the regulations on safety requirements relating to operation and maintenance of powered industrial vehicles, including forklifts." (Id. ¶ 5.) These regulations include requirements that operators be competent to operate the powered industrial vehicles safely and that they be trained properly on such operation. 29 C.F.R. § 1910.178(l). Refresher training is required in the event an operator was observed operating the vehicle unsafely or was involved in an accident. 29 C.F.R. § 1910.178(l)(4)(ii). The regulations include various requirements for how forklift trucks are to be operated, including not driving them up to anyone standing in front of a bench "or other fixed object" per 29 C.F.R. § 1910.178(m)(1) ; keeping the controls neutralized, with the brakes set to prevent movement, if "the operator of an industrial truck is dismounted and within 25 ft. of the truck still in his view" per 29 C.F.R. § 1910.178(m)(5)(iii) ; requiring drivers "to look in the direction of, and keep a clear view of the path of travel" per 29 C.F.R. § 1910.178(n)(6) ; and prohibiting "[s]tunt driving and horseplay" per 29 C.F.R. § 1910.178(n)(9). A number of other regulations under Section 1910.178 address maintenance requirements for powered industrial vehicles, including removing from service any vehicles "not in safe operating condition" per 29 C.F.R. § 1910.178(q)(1). The Warrant Application did not discuss the foregoing regulations specifically but cited them broadly by relying on Section 1910.178 and its "regulations on safety requirements relating to operation and maintenance of powered industrial vehicles, including forklifts." Warrant Application ¶ 5.
The Warrant Application asserted that "the information presented along with the facts meet the administrative probable cause requirements," which are that the Secretary must "show specific evidence of an existing violation of law or that neutral reasonable legislative and administrative standards for conducting an inspection are satisfied." Id. ¶¶ 8, 18. In authorizing the inspection and signing the administrative warrant, the undersigned magistrate judge found that the Warrant Application established administrative probable cause. The warrant itself provided:
YOU ARE AUTHORIZED to enter the above premises during regular working hours to conduct an inspection and investigation in a reasonable manner and to a reasonable extent, including but not limited to the alleged unsafe work practices, areas, or conditions relating to operation and maintenance of forklifts. Said inspection and investigation will extend only to the alleged hazardous working conditions and/or work areas described above, as well as to any hazardous work areas, procedures, and/or working conditions within the plain view of the Compliance Officer(s) during the course...
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In re Establishment Inspection of Anthony Marano Co.
...has no pre-execution right to federal judicial review of the warrant's validity. In re Establishment Inspection of Anthony Marano Co., 556 F.Supp.3d 890, 898-908 (N.D. Ill. 2021) (“Anthony Marano I”). The Seventh Circuit dismissed Anthony Marano's appeal for want of appellate jurisdiction, ......