In re Establishment Inspection of Anthony Marano Co.
| Decision Date | 22 December 2022 |
| Docket Number | 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 |
This matter has returned to the district court after Anthony Marano Company's (“Anthony Marano”) appeal to the U.S. Court of Appeals for the Seventh Circuit, of this Court's refusal to quash or stay an administrative inspection warrant (“Warrant Application and Warrant”; D.E. 1) that the Court issued to the Occupational Safety and Health Administration (“OSHA”) on application of the Secretary of the U.S. Department of Labor (“the Secretary”) on July 28, 2021. This Court determined that a party subject to an administrative inspection warrant 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, as motions remained pending in the district court at the time of the appeal. In re Establishment Inspection of Anthony Marano Co. 51 F.4th 722, 734-35 (7th Cir. 2022) (“Anthony Marano II”). The conclusion of the appellate proceedings left the Court with an important issue to resolve: Whether the factual basis for administrative-level probable cause in support of the July 28, 2021 still-unexecuted inspection warrant, based on a complaint about an incident at the Anthony Marano facility on March 26, 2021, is now too stale to allow the inspection to proceed.
The July 28, 2021 administrative inspection warrant authorized an OSHA agent to conduct an establishment inspection of Anthony Marano's produce distribution facility on the South Side of Chicago. Warrant, D.E. 1 at 57-58. The agency previously visited the facility on July 9, 2021, two days after OSHA received a complaint, by telephone, that on March 26, 2021, a worker sustained injuries when he was struck from behind by a forklift operating in reverse on a loading dock at the facility. Warrant Application ¶ 9 & Exh. A. On July 9, representatives of Anthony Marano turned the OSHA agent away, refusing to consent to an inspection and insisting upon an inspection warrant. Id. ¶¶ 9-10. The Secretary then presented the Court with the warrant application on July 28, and the Court signed the warrant. Warrant, D.E. 1 at 57-58. Warrant in hand, OSHA returned to Anthony Marano's facility on August 2, 2021 and brought along two deputy U.S. marshals. Secretary's Cross-Motion for Certification of Contempt “Contempt Certification Motion”; D.E. 12) at 13. Representatives of Anthony Marano again met the OSHA agent outside the facility and stated that Anthony Marano was refusing OSHA entry. Id. The OSHA agent then handed the warrant to one of the Anthony Marano representatives, who summoned an attorney for Anthony Marano. Id. In the meantime, OSHA and the marshals waited for the attorney to arrive, without conducting the inspection. Id. The attorney arrived and advised OSHA that Anthony Marano was denying OSHA entry to the facility and planned to file a motion to quash the warrant. Id. OSHA and the marshals then left the facility without conducting the inspection. Id. at 14.
Anthony Marano, in apparent possession of the administrative inspection warrant and its docket “M number” (21 M 499), even though the warrant had not been executed, filed on that docket on August 4, 2021 an emergency motion to stay the warrant so as to allow Anthony Marano time to file a motion to quash the warrant. (D.E. 4.) The Court ordered the Secretary to take no further steps to execute the warrant pending a written response the next day by the Secretary, whom the Court instructed to address “whether there is a constitutional right to preenforcement judicial review of administrative warrants.” 8/4/21 Order (D.E. 8). Anthony Marano then filed a motion to quash the warrant on August 10, 2021. (D.E 18.) The Court ruled 10 days later, denying Anthony Marano's request to quash the administrative inspection warrant. (D.E. 20.) The Court set forth its reasoning in a 37-page Memorandum Opinion and Order. 8/20/21 Order (D.E. 21); Anthony Marano I, 556 F.Supp.3d at 898-915. The opinion included a denial of Anthony Marano's request to stay the warrant pending further appeal, reasoning under Nken v. Holder, 556 U.S. 418 (2009), that (1) Anthony Marano's motion to quash had no likelihood of success because Anthony Marano had no pre-execution right to federal judicial review of the warrant, which was valid in any event; (2) that Anthony Marano would not be harmed irreparably by OSHA's execution of the warrant because no OSHA citation proceeding had even begun, and upon any such administrative proceeding, Anthony Marano would be able to move to suppress the fruits of the warrant; (3) a stay pending appeal would injure substantially the public's interest in the Secretary's ability to enforce the Occupational Safety and Health Act of 1970 (the “OSH Act”); and (4) the public interest thus lay against granting a stay. Anthony Marano I, 556 F.Supp.3d at 908-15.
Anthony Marano immediately sought to establish a basis to appeal the Court's refusal to quash and stay the administrative inspection warrant. First, Anthony Marano filed on August 22 an “Emergency Motion to Clarify [the Court's] August 20, 2021 Order.” (“Motion to Clarify”; D.E. 22.) The Motion to Clarify claimed that the 8/20/21 Order “appear[ed] to be a final, dispositive Order on Anthony Marano's Fourth Amendment challenge.” Motion to Clarify at 1.
Anthony Marano further argued, in the Motion to Clarify, that the order should be treated as a report and recommendation to which Anthony Marano had 14 days to object per Rule 72 of the Federal Rules of Civil Procedure. Id. at 7. The magistrate judge granted in part and denied in part the Motion to Clarify, reminding the parties that the 8/20/21 Order was entered per the magistrate judge's jurisdiction under 28 U.S.C. § 636(a)(1), and not on any district court referral that would trigger a right to object under Rule 72. 8/23/21 Order (D.E. 23). The magistrate judge added that “Anthony Marano may appeal the Magistrate Judge's order to the District Court by filing an emergency motion to quash, and/or an emergency motion to stay, before the Emergency District Judge.” Id. But the magistrate judge, in the 8/23/21 Order, did not analyze or discuss whether the district court would have jurisdiction to entertain such an appeal.
Second, Anthony Marano proceeded to file an emergency motion to stay and quash the warrant for consideration by emergency district judge. (D.E. 26-1.) The motion did not discuss the jurisdictional basis (Section 636(a)(1)) for the magistrate judge's 8/20/21 Order and never advised the district judge of the distinction between Section 636(a)(1) jurisdiction and Section 636(b) “referral” jurisdiction, under which magistrate judges' orders are subject to a right to object under Rule 72, as discussed further below. Id.; 8/24/21 Tr. (D.E. 34). After hearing oral argument during a telephonic hearing, the emergency district judge treated the 8/20/21 Order as a report and recommendation and adopted it in full. 8/24/21 Order (D.E. 29); 8/24/21 Tr. at 14-15. At the very end of the telephonic oral argument hearing, Anthony Marano orally requested a stay pending an appeal to the Seventh Circuit. 8/24/21 Tr. at 16. The stay request and the Nken factors were not briefed any further, and the Secretary did not interpose an immediate objection. Id. The district court granted the stay, stating: Id.[1]
Anthony Marano's notice of appeal (D.E. 30) followed on September 2, the same day the Secretary filed a motion to lift the district court's stay and to toll the limitations period applicable to the Secretary's ability to issue OSH Act citations to Anthony Marano. Secretary's Motion to Lift Stay or in the Alternative, for Order Tolling the Statute of Limitations (“Motion to Lift Stay”; D.E. 33). After initially denying a fully briefed motion from the Secretary to dismiss the appeal for want of jurisdiction, Appeal No. 21-2661 ) (D.E. BL-16), the Seventh Circuit ultimately dismissed the appeal, holding on October 18, 2022 that no final order had issued in the district court in this case. Anthony Marano II, 51 F.4th at 734. With the administrative inspection warrant now back in the district court per the appellate mandate (D.E. 46), this Court held a hearing on the staleness issue on December 20, 2022. (D.E. 51.)
Anthony Marano's submissions to the emergency district judge in August 2021 and then to the Seventh Circuit contributed to some level of confusion about the nature and source of the magistrate judge's jurisdiction in this matter. Accordingly, the Court will review its jurisdiction over the administrative inspection warrant, and the proceedings arising from its issuance, before addressing the staleness issue.
The jurisdiction of magistrate judges to entertain applications for criminal search warrants and administrative inspection warrants is a rarely visited corner of federal law. “Magistrate judges are creatures of statute, with powers conferred upon them by Congress as a result of the Federal Magistrates Act of 1968, and later as amended, the Federal Magistrates...
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