UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION
March 24, 2012
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, PLAINTIFF,
ALL-FEED PROCESSING AND PACKAGING INC., DEFENDANT.
The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge
Monday, 26 March, 2012 10:14:21 AM
Clerk, U.S. District Court, ILCD
ORDER & OPINION
This matter is before the Court on Plaintiff's Petition for Civil
Contempt Order, Magistrate Judge Gorman's Certification of Facts
relating to Plaintiff's Petition for Civil Contempt Order, and
Defendant's Objection to the Certification of Facts.*fn1
(Docs. 7, 25, 26). For the reasons stated below, the Court
imposes a finding of civil contempt upon Defendant, including a
coercive $500/day fine for the 62 days
in contempt, and grants Plaintiff attorneys' fees and costs in the
amount of $10,964.95.
On May 3, 2011, Plaintiff filed an Application for a Warrant to inspect Defendant's site in order to investigate employees' complaints of hazardous working conditions, including excessive dust and noise, and to monitor Defendant's compliance with a 2010 agreement with Plaintiff to abate certain hazards, after Defendant had refused to allow a voluntary inspection in April 2011. (Doc. 1). Magistrate Judge Gorman issued the Warrant the same day. (Doc. 2). On June 20, 2011, Plaintiff filed a Petition for Civil Contempt Order based on Defendant's alleged interference with Plaintiff's efforts to conduct "personal sampling"*fn2 of employees' exposure to hazards, as permitted by the May 3, 2011 Warrant, and Magistrate Judge Gorman issued an Order to Show Cause why Defendant should not be held in contempt on June 28, 2011. (Docs. 7-9). Defendant filed a Motion to Dismiss without Prejudice or Stay the Petition for a Civil Contempt Order on July 12, 2011, to which Plaintiff responded on July 29, 2011. (Docs. 12 & 16). Defendant also filed a Response to the Show Cause Order on July 29. (Doc. 17). Magistrate Judge Gorman held a show cause hearing on August 3, 2011, at which the parties presented evidence and arguments. (8/3/2011 Minute Entry; 8/9/2011 Text Order; Doc. 20). On October 26, 2011, Magistrate Judge Gorman tendered a Certification of Facts for the District Judge's determination of whether Defendant's conduct constituted civil contempt. (Doc. 25). These Certified Facts are:
1. May 3, 2011, OSHA applied for an inspection warrant of All-Feed, stating that on 2 different occasions in April, All-Feed had refused to allow OSHA inspectors onto the property for an inspection that was authorized under a prior court order.
2. The warrant for inspection issued on May 3. 3. The warrant was presented for execution on May 4, and an inspection was initiated on that date.
4. OSHA sought to complete its inspection, by conducting representative personal samplings as authorized under the warrant.
5. All-Feed refused to allow the subsequent inspections unless OSHA
would agree to limitations on time and other limitations that were not
justified under the general terms of the warrant. (Doc. 25 at 4).
Defendant filed an Objection to the Certification of Facts.*fn3
In this District, civil Petitions for Warrants filed without a Complaint initiating a new case are automatically referred to a magistrate judge under 28 U.S.C. § 636(b)(3), which provides that "[a] magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." See Matter of Establishment Inspection of Microcosm, 951 F.2d 121, 124 (7th Cir. 1991) ("it is well-established that magistrates are authorized to issue OSHA search warrants"). A magistrate judge presented with facts that may justify the imposition of civil contempt may, pursuant to 28 U.S.C. § 636(e)(6), certify those facts to the district judge for his consideration. The Court therefore considers the evidence heard by Magistrate Judge Gorman at the show cause hearing on August 3, 2011.
Plaintiff must show by "clear and convincing evidence" that Defendant had significantly violated the order of the Warrant in order to have civil contempt imposed against Defendant. S.E.C. v. Hyatt, 621 F.3d 687, 692 (7th Cir. 2010) (citing Prima Tek II, LLC v. Klerk's Plastic Indus., B.V., 525 F.3d 533, 542 (7th Cir. 2008). In addition, civil contempt can only be found based on a violation of "an unambiguous command." Hyatt, 621 F.3d at 692 (citing Prima Tek II, LLC, 525 F.3d at 542). Finally, civil contempt orders are either coercive or compensatory: a coercive order of contempt attempts to force the contemnor to obey the original order, in which case the contempt is "purged," while a compensatory order compensates those harmed by the contempt. F.T.C. v. Trudeau, 579 F.3d 754, 777 (7th Cir. 2009) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828-29, (1994); Bailey v. Roob, 567 F.3d 930, 933 (7th Cir. 2009).
Defendant raises two arguments opposing the finding of civil contempt: Plaintiff's allegations and some of the Certified Facts relate to pre-warrant conduct, and cannot therefore support a finding of contempt of the Warrant, and the sampling provision in the Warrant was too ambiguous to support a finding of contempt. Defendant further argues that, even if it was in contempt, it purged the contempt by its unconditional offer on July 5, 2011 to allow Plaintiff to complete its inspections, and even if Defendant were in contempt at some point, the point is now moot as Plaintiff completed its inspections on August 26, 2011.*fn4
I. Finding of Contempt
A. Conduct underlying finding of contempt
Defendant first argues that the only evidence submitted by Plaintiff to support its Petition for Contempt concerns occurrences prior to the issuance of the Warrant, and so cannot underlie a finding of Contempt based on defiance of the Warrant. (Doc. 21 at 9-11). It also claims that Judge Gorman's fifth Certified Fact similarly relies on pre-Warrant conduct and should not therefore be used by the Court to support a finding of contempt. This argument is unsuccessful.
As Plaintiff points out, Defendant's pre-Warrant conduct merely supported the application for the Warrant itself -- the Petition for Contempt was supported by Defendant's post-Warrant limitation of OSHA's sampling to four-hour periods, as well as other evidence. (Doc. 22 at 3). Erin Cropsey, an OSHA Compliance Safety and Health Officer ("CSHO"), submitted a declaration in support of Plaintiff's Petition for Contempt, in which she stated that Defendant thwarted the CSHO's May 4 and May 9, 2011 attempts to carry out the sampling authorized by the Warrant by cutting the sampled employees' shifts short on both days the sampling was performed. (Doc. 7, Ex. B at ¶ 11). This resulted in a 4.75 hour sample, which is not sufficient to be representative. Defendant submitted competing affidavits indicating that the sampled employees worked full shifts on May 4 and May 9.*fn5
(Doc. 21, Exs. 1-3, 5). In issuing his Certified Facts, Magistrate Judge Gorman was entitled to choose between these competing versions of the story, and, having reviewed the affidavits, the Court finds that his choice was a reasonable one.
Even setting this dispute aside, it is undisputed that after the CSHO explained to Defendant's manager that a full-shift sample was needed, Defendant refused to allow any future sampling of more than four hours. (Doc. 7, Ex. B at ¶ 12). It is also undisputed that Defendant's manager told Ms. Cropsey that sampling could not be conducted on the date the CSHO was due to sample because Defendant would not be processing material that day. (Doc. 7, Ex. B at ¶ 11). When the CSHOs came to Defendant's site that day to interview an employee, they were told by that employee that production was running and material was being processed, in contravention of what Defendant had told Ms. Cropsey. (Doc. 7, Ex. B at ¶ 13). The CSHOs also asked Defendant to allow them to view an area of the building as part of their inspection, but Defendant would not allow them to enter. (Doc. 7, Ex. B at ¶ 13).*fn6 These facts, which were submitted in support of Plaintiff's Petition for Contempt, constitute ample evidence to support Judge Gorman's certification that, after the issuance of the Warrant, All-Feed refused to allow the subsequent inspections unless OSHA would agree to limitations on time and other limitations that were not justified under the general terms of the warrant, and thus support a finding of contempt based solely on post-Warrant conduct. They constitute clear and convincing evidence of a deliberate attempt to evade the Warrant's requirements by Defendant.
B. Ambiguity of the Warrant's sampling provision
Defendant also argues that the Warrant's sampling provision was too ambiguous to support a contempt finding. (Doc. 21 at 11-12). Civil contempt can only be found based on a violation of "an unambiguous command." Hyatt, 621 F.3d at 692 (citing Prima Tek II, LLC, 525 F.3d at 542). Defendant states that the provision "is ambiguous as to the type of monitoring (e.g., for respirable dust, total dust, noise, etc.), the number of employees to be monitored, the locations were monitoring could be performed, the duration and type of monitoring, etc." (Doc. 21 at 12). Defendant's argument is that it is not clear that the monitoring it allowed Plaintiff to do on May 4 and 9 was insufficient to comply with the Warrant, as the Warrant does not specifically require the length of monitoring sought by Plaintiff. Plaintiff counters that the Warrant was clear enough, citing to legal authority that a Warrant for an OSHA inspection need not lay out in precise detail the way the inspection was to be conducted, so long as it has described the nature of the hazardous condition to be investigated. (Doc. 22 at 5-7).
The Warrant was unambiguous enough to support a finding of contempt. In a similar case from the Fifth Circuit, OSHA obtained a warrant providing that its inspectors "shall also be permitted.to affix sampling or testing equipment to the persons of employees, if necessary." Martin v. Trinity Industries, Inc., 959 F.2d 45 (5th Cir. 1992). The employer discouraged its employees from agreeing to wear the devices, and after being found in contempt, argued that the warrant was too vague in its requirement that inspectors "be permitted" to put equipment on employees to support a contempt finding. Id. at 47. Even though the employer did technically "permit" the employees to wear the equipment, the court found that the warrant was not too vague to support a contempt finding for the employer's conduct discouraging employees from wearing it, distinguishing two other cases, International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Association., 389 U.S. 64 (1967) and Baddock v. Villard, 606 F.2d 592 (5th Cir. 1979). Id. The Martin court noted that in International Longshoremen's Association, the order at issue "contained only an abstract conclusion of law, not an operative command," and in Baddock, "an order vacating a notice of deposition.neither specifically directed that the deposition not take place (as it might have done under the discovery rules), nor specifically addressed itself to the attorney held in contempt," so the attorney could not be held in contempt for taking the deposition. Id. (citing International Longshoremen's Ass'n, 389 U.S. at 74; Baddock, 606 F.2d at 593).
Likewise, here the requirement that Defendant allow inspection of particular areas of its plant, including the attachment of personal sampling devices to employees, was not too vague to support a finding of contempt for Defendant's hindrance of Plaintiff's attempts to execute the Warrant, by cutting short the sampled employees' shifts on both days the sampling was performed, by refusing to allow any future sampling of more than four hours, by misrepresenting the plant's production schedule to the CSHO, and by refusing to allow the CSHOs to enter the plant to view a certain area of it as provided in the Warrant, even though Defendant did allow a limited amount of personal sampling. As did the employer in Martin, Defendant may have "technically" complied with a limited reading of the terms of the Warrant, but, like the Martin court, this Court finds that the Warrant was not too vague to support a finding of contempt for failure to give full compliance.
C. Finding of Contempt
The Court thus finds that Defendant was in contempt beginning May 4, 2011 when it refused to give full compliance to the Warrant issued by Magistrate Judge Gorman on May 3, 2011. The Court finds that the $500/day fine imposed by Magistrate Judge Gorman, purgeable upon compliance with the Warrant's terms, is an appropriate coercive sanction. The Court also finds that the award of attorneys' fees, costs, and interest associated with the prosecution of Plaintiff's contempt petition is appropriate.
II. Contempt sanction and purgation of contempt
A. July 5, 2011 offer to allow further inspections
Civil contempt orders must either be coercive or compensatory: a coercive order of contempt attempts to force the contemnor to obey the original order, in which case the contempt is "purged," while a compensatory order compensates those harmed by the contempt. F.T.C. v. Trudeau, 579 F.3d 754, 777 (7th Cir. 2009) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 828-29, (1994); Bailey v. Roob, 567 F.3d 930, 933 (7th Cir. 2009). The fine imposed by Magistrate Judge Gorman was coercive, and intended to induce Defendant's compliance with the Warrant. "[A]n essential ingredient to any coercive contempt sanction is the opportunity to purge," meaning that the contemnor may "free himself of the sanction 'by committing an affirmative act,' namely complying with the court's order." Id. (citing Bagwell, 512 U.S. at 828-29).
Defendant argues that, even if the finding of contempt was appropriate, it purged the contempt "by extending numerous unconditional offers to allow OSHA to conduct uninhibited monitoring" beginning on July 5, 2011. (Doc. 21 at 13; Doc. 26 at2). It relies primarily on its letter to Plaintiff's attorney indicating that Defendant was willing to proceed with additional monitoring, review Defendant's production and employee work schedules with Plaintiff, allow Plaintiff to conduct monitoring for as long as necessary, and involve Defendant's attorney's "OSHA group" to "increase All-Feed's accountability over the monitoring process." (Doc. 12, Ex. 1).
However, Plaintiff's counsel stated at the hearing,*fn7
and again in Plaintiff's brief, that she understood
Defendant's offer to in fact be conditioned on Plaintiff's withdrawal
of the petition for contempt. (Doc. 20 at 4, 11; Doc. 22 at 7).
Magistrate Judge Gorman felt that, given the circumstances, an offer
alone was insufficient, and that Defendant had not purged merely by
offering to allow Plaintiff to finish its inspections.
The Court's initial inclination is to agree with Magistrate Judge Gorman, as Plaintiff was not actually finished with its inspections until after the contempt order was issued, showing perhaps that Defendant was only willing to comply when the Court created a coercive sanction against non-compliance, but Defendant has proffered uncontroverted evidence that undermines this view of the matter. Defendant's Objection to the initial order of contempt includes copies of emails between Defendant's and Plaintiff's counsel discussing whether Plaintiff would consent to an extension of time for Defendant to respond to Magistrate Judge Gorman's show cause order. (Doc. 21, Ex. 7). These emails show that Plaintiff's counsel unequivocally refused to proceed with inspections until after the Court had ruled on the petition for contempt; it thus was Plaintiff who created the delay between July 5 and August 26, not Defendant.*fn8 Given this evidence, the Court finds that it would be inequitable to charge Defendant the $500/day fine for the period after July 5, since Plaintiff actually prevented Defendant's compliance after that date.
B. Whether contempt is moot because Plaintiff has completed its inspection
Finally, Defendant asserts in its latest filing that, even if it was in contempt, it is no longer in contempt because Plaintiff has completed its inspection satisfactorily, and that the issue is thus moot. (Doc. 26 at 2). As discussed above, the Court now holds that Defendant was in contempt between May 4, 2011 and July 5, 2011. This finding of past contemptuous behavior is not moot. While it is true that finding no longer appears necessary to coerce Defendant's compliance with the Warrant, it is also apparent that Defendant was unwilling to comply until threatened with a finding of contempt. Plaintiffs attempting to enforce court orders should not be required to file petitions for contempt in order to induce compliance with those orders; for Defendant to have stalled until that step was taken simply increases delays and costs, both for the parties and for the Court, without providing any legitimate benefit to any party. It was the threat of accruing a daily fine that finally motivated Defendant to act. Even allowing for Defendant to file a Response to the Petition within the usual time frame, the Court could have ruled on the Petition for Contempt on July 5, 2011, and would have found Defendant to be in contempt; Defendant should not be able to claim mootness merely because of a delay in the Court's disposition of the Petition.
As noted above, a coercive contempt sanction, such as this one, must
be "purgeable" -- that is, the contemnor must be able "to free himself
of the sanction 'by committing an affirmative act,' namely complying
with the court's order." Trudeau, 579 F.3d at 777. However, the Court
has not been able to determine from precedential cases whether
"purgation" merely cuts off the accrual of a per diem fine, or wipes
it out altogether, as though there had been no contempt.*fn9
If Defendant is liable for 62 days of contempt at $500/day,
it faces a fine of $31,000. The classic contempt sanction is
imprisonment, and is "purgeable" if the contemnor is able to free
himself by compliance. It is clear that, though the imprisoned
contemnor is released from jail, he did not escape the consequences of
his contempt. He has already "paid," and cannot be given back his days
lost in jail; compliance merely ends his jail time. There is no reason
to suppose that the imposition of a fine should be treated differently
in order to be considered "purgeable." Compliance merely cuts off the
imposition of the coercive sanction, whether it be a per diem fine or
Therefore, the best reading of "purgeable" appears to imply that Defendant must pay the fine for the period between May 4, 2011, when it first refused to comply with the Warrant, and July 5, 2011, when it finally offered to allow Plaintiff to complete its inspections pursuant to the Warrant.
III. Attorney's Fees
Magistrate Judge Gorman originally imposed a requirement that Defendant pay Plaintiff's attorneys' fees, costs, and interest associated with bringing the action for contempt. As noted above, this Court agrees that this is an appropriate sanction. However, Defendant attempts to limit its liability for Plaintiff's attorneys' fees, costs, and interest, both by arguing for purgation of the fees, and by arguing against Plaintiff's particular claim for fees.
Defendant asserts that its liability for attorneys' fees should be "purged" or cut off as of the date of its compliance with the Warrant to Plaintiff. However, it is well-established that, independent of a coercive or compensatory contempt sanction, a court may require the contemnor to pay attorneys' fees. Tranzact Technologies, Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005) (citing CFTC v. Premex, Inc., 655 F.2d 779, 785 (7th Cir. 1981)); Matter of Establishment Inspection of Microcosm, 951 F.2d. at 126) (citing Squillacote v. Local 248, Meat & Allied Food Workers, 534 F.2d 735, 748 (7th Cir. 1976)). An award of attorneys' fees is intended to compensate the complainant for the costs it incurred in attempting to get the contemnor to comply with the court's order, and is therefore not purgeable. Under Magistrate Judge Gorman's original order, and under this Court's instant order, Plaintiff can recover any reasonable attorneys' fees, costs, and interest incurred in prosecuting the contempt petition and obtaining Defendant's compliance with the Warrant.
Related to this argument is Defendant's claim that it should not be liable for any fees incurred after September 1, 2011, because those fees related to Defendant's Objections to Magistrate Judge Gorman's original order, and were no longer necessary to obtain Defendant's compliance with the Warrant. The Court does not agree. While Defendant had complied with the Warrant by September 1, 2011, Plaintiff was still entitled to argue that Magistrate Judge Gorman's ruling in its favor was appropriate, in order to preserve the rights it had obtained under the initial contempt order. It would have been unreasonable for Plaintiff to give up those rights.*fn10 It was Defendant's Objections that necessitated a response from Plaintiff; Plaintiff was not initiating further filings in order to drive up fees, but merely responding to an attack on the Order. The Court finds that Plaintiff's Response to the Objections was a reasonably necessary attempt to preserve rights Plaintiff obtained under the initial order of contempt by Magistrate Judge Gorman.
Defendant also argues that some of Plaintiff's claimed fees are not related to the prosecution of the contempt petition, claiming that Plaintiff's fee petition lacks sufficient detail to ensure that all of the claimed hours were actually spent on contempt petition-related work.*fn11 On the contrary, Plaintiff's petition clearly states, under penalty of perjury, what work was included in the calculation: the preparation of the contempt petition and related documents, the preparation of a response to Defendant's Motion to Dismiss or Stay the contempt petition, counsel's appearance at the contempt hearing before Magistrate Judge Gorman, and the preparation of Plaintiff's response to Defendant's Objections to Magistrate Judge Gorman's initial order of contempt. (Doc. 23, Ex. 1 at 1). Plaintiff does not indicate or give any reason to believe that any work other than that related to the contempt proceedings was included; indeed, Plaintiff does not appear to claim any time not directly devoted to preparing briefs and appearing in Court. The Court cannot reasonably expect more than counsel's sworn assurance that the claimed work was limited to contempt petition-related matters, and her specific indication of which tasks she included. Even if counsel were to provide more detail (including, perhaps, breakdowns of how much time was spent researching, or drafting, or editing the briefs), the Court would still have to rely on her sworn assurance that the fee petition was accurate. Moreover, the claimed hours are reasonable for the work accomplished: 61.5 hours for three sets of substantive filings and an appearance before Magistrate Judge Gorman (involving travel from Chicago to Peoria and back). (Doc. 23, Ex. 1 at 2). This fact lends further support to the conclusion that the hours claimed are appropriately related to the contempt petition.
Therefore, the Court will grant Plaintiff's request for fees and costs in the amount of $10,964.95.
For the reasons stated above, the Court finds that Defendant was in contempt of the Court's May 3, 2011 Warrant beginning May 4, 2011, and imposes a coercive $500/day fine until Defendant complies with the Warrant; Defendant also must pay Plaintiff's attorney's fees and costs associated with its Petition for Contempt. The Court also finds that Defendant purged the contempt on July 5, 2011. Defendant is thus liable for $31,000 in coercive fines for the contempt, and $10,964.95 in Plaintiff's fees and costs associated with the Petition for Contempt. IT IS SO ORDERED.
Joe B. McDade