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Occupational Safety and Health Administration v. All-Feed Processing and Packaging Inc

March 24, 2012

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, PLAINTIFF,
v.
ALL-FEED PROCESSING AND PACKAGING INC., DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

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.

BACKGROUND

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 (Doc. 26).

LEGAL STANDARD

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. ...


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