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September 22, 1981


The opinion of the court was delivered by: Marshall, District Judge.


This action was commenced on June 9, 1981 by the complaint of Chicago Aluminum Castings Co. for a declaratory judgment, injunction and other relief against Raymond J. Donovan, Secretary of Labor, and Robert L. Caldwell, Compliance Officer, United States Occupational Safety and Health Administration. Plaintiff immediately implemented its complaint by a motion to quash an administrative search warrant which had been issued to defendant Caldwell at his request by the Honorable Carl Sussman, Magistrate of this court. In response to that motion, defendants Donovan and Caldwell moved for an order of civil contempt against plaintiff and two of plaintiff's employees upon the ground that they had unlawfully failed to obey the administrative search warrant issued by the Magistrate which had been duly served upon them.

Counsel for the parties have performed expeditiously and efficiently. The case has been well briefed and is ready for decision. The facts are essentially undisputed.

On February 9, 1981, defendant Caldwell went to the premises of plaintiff for the purpose of conducting an inspection in order to ascertain whether plaintiff was in compliance with the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. Plaintiff had been selected for inspection in accordance with OSHA Instruction CPL 2.25A, Scheduling System for Programmed Inspections. CPL 2.25A prescribes a method for establishing priorities among industries for inspection based upon the injury rate and the number of lost work days in a particular industry.

Caldwell met with plaintiff's president, Harold H. Horton, and presented his credentials stating that he was there to conduct a safety inspection. Horton responded that Caldwell would need a warrant before he would be permitted to enter the plant. Horton gave Caldwell a "statement of policy" which Caldwell acknowledged and signed. In essence, the statement of policy was to the effect that plaintiff desired to exercise its Fourth Amendment rights as articulated by the Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). The statement went on to say that plaintiff did "not believe that probable cause exists for an OSHA inspection of [plaintiff's] property. In the event that the Secretary of Labor believes otherwise and decides to make application for an inspection warrant, [plaintiff] hereby requests that it be given notice of such application so it can have an opportunity to oppose the same."

Caldwell telephoned his supervisor and informed him of the denial of the entry and then left plaintiff's premises.

On June 5, 1981, without notice to plaintiff, Caldwell presented an application for an inspection warrant pursuant to § 8(a) of the Act to Magistrate Sussman. The application contained, inter alia, an explanation of the manner in which CPL 2.25A operates generally, and the manner in which plaintiff was specifically selected for inspection. In addition, a copy of CPL 2.25A was attached to the application. The application recited:

    "[Plaintiff's] specific workplace was chosen to
  be inspected in accordance with OSHA's Scheduling
  System for Programmed Inspections (OSHA
  Instruction CPL 2.25A), . . . as generally
  described in paragraph H of the Instruction, the
  initial selection of a particular category of
  employment (such as high hazard general industry,
  construction or maritime) is made in accordance
  with annual projections made at the OSHA area
  office level and reviewed at the Regional and
  National Office levels. Within a category of
  employment [,] establishments are randomly
  selected for inspection from an establishment
  list for that category and placed in an
  inspection `cycle.' Within a cycle [,]
  establishments are scheduled for inspection so as
  to make efficient use of resources. With limited
  exceptions, all establishments in a cycle are
  inspected before a new cycle is begun.
    "With respect to the present inspection which
  OSHA seeks to perform, the determination was
  first made, consistent with the area office's
  annual projections, to perform a programmed
  inspection in the high hazard general industry
  (safety) category. As set forth . . . in . . .
  the Instruction, scheduling for high hazard
  general industry (safety) is based on a statewide
  Industry Ranking Report which lists, by
  four-digit Standard Industrial Classification
  (SIC), all industries in the state (except
  construction and most maritime) which have a lost
  workday injury rate of 4.0 or higher and whose
  rate of lost workday injuries per establishment
  is 3.0 or higher. (The 4.0 lost workday injury
  rate figure is based on the Bureau of Labor
  Statistics estimate of the national average
  private sector lost workday injuries during 1978,
  the most recent year for which statistics have
  been compiled. The 3.0 lost workday injuries per
  establishment figure is well above the national
  private sector average of approximately 0.5).
    "[Plaintiff] is believed to be engaged in the
  manufacture of castings and die castings from
  aluminum and aluminum base alloys, and other
  related activities, SIC number 3361, which is
  included on the current Industry Ranking Report
  for the state of Illinois. The establishment in
  question appears on the establishment list for
  high hazard general industry (safety) prepared in
  accordance with . . . the scheduling instruction.
  Pursuant to [the instruction] [plaintiff's]
  establishment was selected from the establishment
  list, by means of a random number table, for
  inclusion in the inspection cycles for general
  industry (safety). The establishment was then
  scheduled for inspection . . .
    "[Plaintiff's] establishment is the fourth to
  be assigned for inspection during the Second
  quarter of the fiscal year. There are 28
  establishments with the SIC Number 3361. Six have
  been scheduled to be inspected during the second
  quarter. The three establishments above this
  establishment have been assigned for inspection.
  [Plaintiff's establishment] has not been
  previously inspected."

Upon consideration of the application which was made under oath, Magistrate Sussman issued the warrant.

On June 8, 1981, at approximately 9:00 a.m., Caldwell proceeded to plaintiff's premises to conduct the inspection. There he met plaintiff's office manager, Serge Puccini. He introduced himself to Puccini and stated that he was there to conduct a safety inspection pursuant to an inspection warrant, a copy of which he handed to Puccini. Puccini took the warrant and in turn delivered to Caldwell a notice of protest which he asked Caldwell to sign. Caldwell did so. The notice provided that, "since the warrant is facially in proper form, [plaintiff] believes it could be cited for contempt of court if it declined to allow the inspection to begin as stated on the warrant. [Plaintiff] therefore will allow the inspection under protest. By doing so, [plaintiff] waive[s] no right to challenge the validity of the inspection or the authorization for its conduct and specifically preserve[s] the right to do so should any OSHA enforcement proceeding be commenced against [plaintiff] based on this inspection or should there be other reason to litigate this matter."

Caldwell proceeded to complete the initial OSHA forms. While he was doing so, Mr. Horton, plaintiff's president, telephoned and was informed by Puccini that an OSHA inspector was at the plant with a warrant. Horton then spoke to Caldwell on the telephone and asked as to the contents of the warrant. Caldwell began to read the warrant. When he had read about one-quarter of it, Horton interrupted and stated that there was no valid reason to inspect the premises. Caldwell stated that the premises had been selected for inspection on a random basis. Horton stated that he would like to check with his attorneys concerning the legality of the warrant. Caldwell's version of this is that Horton stated that Caldwell could ...

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