National Labor Relations Board v. Cooper Tire & Rubber Co.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2005 Decided February 28, 2006

No. 04-5418

NATIONAL LABOR RELATIONS BOARD,

APPELLEE

v.

COOPER TIRE & RUBBER COMPANY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03mc03898)

Michael McMenamin argued the cause for appellant. With

him on the briefs were Nancy A. Noall and Morris L. Hawk.

Jennifer J. Illingworth entered an appearance.

Stanley R. Zirkin, Assistant General Counsel, National

Labor Relations Board, argued the cause for appellee. With him

on the brief was Helene D. Lerner, Trial Attorney.

Before: HENDERSON, BROWN and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

2

Dissenting opinion filed by Circuit Judge GRIFFITH.

BROWN, Circuit Judge: The threshold issue in this case is

whether the United States District Court for the District of

Columbia had jurisdiction to enforce subpoenas issued by the

National Labor Relations Board (“NLRB”) in the course of the

NLRB’s investigation of appellant Cooper Tire & Rubber

Company (“Cooper Tire”) for possible contempt of a 1992

cease-and-desist order. We conclude that the district court

lacked jurisdiction, and therefore we vacate its order without

addressing the other issues Cooper Tire raises.

I

In the late 1980s, activities surrounding an unsuccessful

union-organizing campaign at Cooper Tire’s manufacturing

plant in Tupelo, Mississippi, led to an unfair labor practice

charge, an NLRB finding against Cooper Tire, and a cease-and-

desist order. Cooper Tire appealed the order to the Fifth Circuit,

and the Fifth Circuit ruled in favor of Cooper Tire on several

points, narrowing the cease-and-desist order significantly.

Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1252 &

n.11, 1257 & n.23 (5th Cir. 1992). After a subsequent

amendment, the Fifth Circuit’s 1992 judgment barred Cooper

Tire from:

(a) Maintaining and enforcing a no-solicitation rule that

bans solicitation during any break times or in any break

areas . . . when both the solicitor and solicitee are on break

time, whether informal or scheduled, and are in a break

area.

(b) Suspending, discharging, or otherwise disciplining its

employees for violations of a no-solicitation rule that bans

solicitation during any break times or in any break areas . . .

3

when both the solicitor and solicitee are on break time,

whether informal or scheduled, and are in a break area.

(c) Creating the impression that its employees’ union

activities are under surveillance.

(d) Threatening its employees with reprisals because of

their union activities.

(e) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the National Labor

Relations Act . . . .

In 2002, United Steel Workers of America (“the Union”)

began a new campaign to unionize employees at Cooper Tire’s

Tupelo plant. Prior to the election, Cooper Tire showed certain

videotapes to its employees. According to Cooper Tire, the

employees voted against the Union, 641 to 329. The Union then

filed an unfair labor practice charge, complaining that, during

the union-organizing campaign, Cooper Tire prohibited

leafleting activities inside the parking area of the plant,

surveilled pro-union employees as they distributed leaflets, and

focused a surveillance camera on these same employees. The

NLRB regional office referred the matter to the NLRB’s

Contempt Litigation and Compliance Branch (“Contempt

Branch”) here in Washington, D.C., for a determination as to

whether Cooper Tire had acted in contempt of the 1992 cease-

and-desist order. The Contempt Branch then subpoenaed

records related to security at the Tupelo plant. Cooper Tire

responded to the subpoena, sending the requested records to the

Contempt Branch offices in Washington, D.C., and the

Contempt Branch subsequently took depositions of several

security guards.

In April 2003, the Contempt Branch issued two more

subpoenas, seeking the videotapes Cooper Tire showed to

employees during the 2002 union-organizing campaign and

4

information surrounding the showing of these tapes. (The

subpoenas sought other items, but disputes as to those items

have been resolved.) What was unusual about the Contempt

Branch’s new subpoenas (and what forms the basis of Cooper

Tire’s appeal) is that no party had ever filed a charge asserting

any unlawful practice with respect to the showing of the

videotapes, and the six-month period for filing such a charge

had elapsed. In Cooper Tire’s view, the NLRB was attempting

to circumvent the statute of limitations by characterizing the

videotapes as a violation of the 1992 cease-and-desist order.

Cooper Tire filed a petition with the NLRB to revoke the

subpoenas, and the NLRB denied this petition on October 24,

2003. A few days later, Cooper Tire informed the Contempt

Branch that it would not comply with the subpoenas, and on

December 16, 2003, the Contempt Branch filed an application

in the United States District Court for the District of Columbia,

seeking to enforce the subpoenas. The district court referred the

matter to a magistrate judge.

On January 16, 2004, Cooper Tire moved to dismiss for

lack of subject matter jurisdiction, or in the alternative to

transfer the matter to the Northern District of Mississippi.

Cooper Tire also challenged the subpoenas on their merits,

claiming they exceeded the investigatory authority of the NLRB.

On March 29, 2004, the magistrate judge ruled (1) the

district court had jurisdiction, (2) venue in the District of

Columbia was appropriate, and (3) the Contempt Branch had

authority to issue the subpoenas. On May 10, 2004, the

magistrate judge denied Cooper Tire’s motion for

reconsideration. On May 20, 2004, Cooper Tire appealed the

magistrate judge’s order to the district court, and the district

court rejected the appeal on September 2, 2004, ordering Cooper

5

Tire to comply with the March 29, 2004 order. Cooper Tire then

filed this appeal.

II

29 U.S.C. § 161(2) permits the NLRB to apply to enforce

a subpoena before the district court “within the jurisdiction of

which the inquiry is carried on or within the jurisdiction of

which said person guilty of contumacy or refusal to obey is

found or resides or transacts business.” (Emphasis added.) A

very similar subpoena enforcement provision appears in the

governing statutes of several other federal administrative

agencies. To establish the jurisdiction of the United States

District Court for the District of Columbia, the NLRB relies on

a broad reading of the phrase “inquiry is carried on.” The

NLRB reasons that its Contempt Branch is located in the District

of Columbia, and therefore the inquiry is being carried on in the

District of Columbia. The NLRB’s interpretation would, of

course, give the NLRB the choice of any forum it liked, simply

by locating its investigation in that jurisdiction, though as a

practical matter the NLRB’s choice is more limited because its

Contempt Branch is located in the District of Columbia. In any

case, the NLRB’s interpretation would allow the NLRB to pick

a forum convenient to its legal staff, while possibly forcing the

subpoenaed party to go to court in a distant and inconvenient

jurisdiction.

Cooper Tire reads the phrase “inquiry is carried on” in

§ 161(2) more narrowly, focusing on the subject matter of the

inquiry. Cooper Tire argues the “inquiry” relates only to the

union-organizing activities at its Tupelo plant, and therefore

Mississippi is the “jurisdiction of which the inquiry is carried

on.” 29 U.S.C. § 161(2). No one is investigating anything that

happened in the District of Columbia, Cooper Tire asserts;

rather, the Contempt Branch just happens to be located there.

6

The opposite inferences the litigants draw from the

language of the statute are both at least plausible, and therefore

they establish one point: the phrase “within the jurisdiction of

which the inquiry is carried on” is ambiguous. Certainly, if an

actual hearing is underway before an administrative law judge,

and evidence is being presented for the judge to examine on the

record, then the location of that hearing is the location of the

inquiry. FTC v. Browning, 435 F.2d 96, 99 n.7 and 100 (D.C.

Cir. 1970); see also U.S. Int’l Trade Comm’n v. ASAT, Inc., 411

F.3d 245 (D.C. Cir. 2005); FTC v. MacArthur, 532 F.2d 1135

(7th Cir. 1976). In that case, the “inquiry” is the hearing itself,

and the evidence to be offered at the hearing is the subject

matter of the inquiry.

Quite a different question is presented, however, where no

formal hearing is underway, and the agency has issued the

subpoena as part of a preliminary investigation of possible

wrongdoing. In that case, the investigators might be in one

place, the matter under investigation might be in another, and

the location of the “inquiry” might be one, the other, or both. Of

course, the NLRB’s regional offices often conduct

investigations, but the NRLB has chosen to conduct contempt

investigations in Washington, D.C., which in this case has

placed its investigators a great distance from the matter they are

investigating. Where, in those circumstances, is the inquiry

“carried on”?

Browning supports a broad reading of § 161(2) that would

include the location of the investigative office as one of the

places where the inquiry is carried on. If a hearing located in

Washington, D.C., gives the district court in Washington, D.C.,

jurisdiction to enforce agency subpoenas, see Browning, 435

F.2d at 100, then why not an investigating office located in

Washington, D.C.? Browning, however, is not the only

precedent on point, and in fact it is not the most relevant

7

precedent. Where the inquiry is an agency investigation, not a

formal hearing, we focus on, among other things, the location of

the subject matter of the inquiry. FEC v. Comm. to Elect

Lyndon La Rouche, 613 F.2d 849, 856-57 (D.C. Cir. 1979).

This focus is not a gloss on the statutory terms that alters their

plain meaning; rather, it is our effort to define those terms.

Specifically, we have articulated a two-part test for determining

the location of an investigative inquiry for purposes of district

court jurisdiction to enforce agency subpoenas: “(1) whether

[the location bears] a sufficiently reasonable relation to the

subject matter of the investigation . . . , and (2) whether the

agency’s choice of this [location for enforcement] . . . exceed[s]

the bound of reasonableness.” Id. (internal quotation marks and

citation omitted); cf. dis. op. at 11 (relying on the location of the

Contempt Branch’s office, rather than the subject matter of the

inquiry, to satisfy the first part of the two-part test).

In La Rouche, the court concluded that enforcement in the

District of Columbia was proper because of the nexus between

the District and the Federal Election Commission’s

investigation. The court noted the FEC’s Washington, D.C.,

headquarters was the “hub” of its national investigative activity.

La Rouche, 613 F.2d at 857. The court also identified several

factors that aid in the application of the two-part test, id. at 855,

and ASAT, 411 F.3d at 249, further clarified these factors, listing

them as follows:

the place where the [agency] held its hearing, the place

where it made the decision to authorize the investigation,

the place where the subpoenas were issued, the place where

its correspondence emanated, the place where the [agency]

determined that unlawful actions had occurred, the location

of the documents and witnesses, and the location of the

headquarters of the subpoenaed company.

8

Id. Significantly, these factors are not weighted against one

another, and ASAT did not suggest a simplistic tallying of factors

would be determinative. The first four factors, for example,

favor the convenience of the agency, but in this context, the

burden on the subpoenaed party might be a more significant

consideration. Moreover, the factors do not replace the test.

The crucial question remains whether the jurisdiction bears a

“reasonable relation to the subject matter of the investigation,”

for it was our determination in La Rouche that the subject matter

of an investigation is an important consideration in locating the

investigation. 613 F.2d at 856-57.

The parties emphasize different aspects of the La Rouche

analysis. Cooper Tire emphasizes the La Rouche court’s

specific reference to the “subject matter” of the inquiry. Even

if the inquiry is arguably taking place in the District of

Columbia (by reason of being directed out of the NLRB’s

Contempt Branch office in Washington, D.C.), the subject

matter of the inquiry is surely located in Mississippi. Moreover,

Mississippi is in the Fifth Circuit, which is the court that issued

the cease-and-desist order that is the basis of the alleged

contempt, and Mississippi is also where the subpoenaed party is

located. The NLRB, on the other hand, relies on the several

factors that tie its investigation to the District of Columbia: (1)

its Contempt Branch is located in the District of Columbia, (2)

it issued its subpoenas in the District of Columbia, (3) it sent

letters to Cooper Tire from the District of Columbia, and (4)

Cooper Tire responded to the Contempt Branch’s earlier

subpoena by sending records and correspondence to the District

of Columbia. These factors, of course, do not make the District

of Columbia the location of the inquiry if (as La Rouche

requires) we must consider whether there is a reasonable relation

to the subject matter of the inquiry, not merely whether the

agency has chosen it as the command center of the inquiry.

9

The NLRB and our dissenting colleague argue strenuously

that this court has repeatedly found agency subpoenas properly

enforced in the District when the subject matter of the

investigation—the alleged violation or misconduct—occurred

elsewhere. True. See ASAT, 411 F.3d 245; La Rouche, 613 F.2d

849; Browning, 435 F.2d 96; see also FTC v. Cockrell, 431

F. Supp. 558 (D.D.C. 1977) (cited approvingly in La Rouche,

613 F.2d at 855-56). However, every one of these cases

involved an investigation that encompassed multiple

jurisdictions and could be characterized as nationwide in scope.

When an investigation is nationwide in scope, its subject matter

is not located in any particular place, and the location of the

investigating office may well be the most reasonable choice for

purposes of subpoena enforcement. This case is different. The

investigation concerns a single employer and a single dispute

related to union-organizing activity at a single plant. The

subject matter of this inquiry is located in a particular place, and

that place is Tupelo, Mississippi. Therefore, if we accept the

NLRB’s argument, we will not be following precedent; we will

be breaking new trail.

The facts of La Rouche are informative. That case involved

a Federal Election Commission investigation of the Committee

to Elect Lyndon La Rouche, focusing on whether Lyndon La

Rouche qualified for federal matching funds. 613 F.2d 851.

The FEC was located in Washington, D.C., but much of the

subject matter of the investigation was in New York. Id. at 851-

53. Therefore, factually the case was somewhat like the one

before us. The FEC successfully enforced its subpoena in the

district court for the District of Columbia, and this circuit

affirmed. Id. Our opinion, however, focused particularly on the

fact that the FEC was conducting a nationwide investigation,

with the District of Columbia as the “hub” of that investigation.

Id. at 857. Specifically, the FEC was inquiring into possible

improprieties of a national political party in its certified record

10

of donations from twenty states, prepared in the course of a

national political campaign. In the course of its investigation,

the FEC conducted field interviews in Delaware, Massachusetts,

Wisconsin, and Indiana, as well as an audit of records in New

York. Id. at 857-58. Though many of the activities under

investigation took place in New York, we concluded that the

nationwide scope of the investigation justified jurisdiction in the

District of Columbia where the investigative office was located.

Id. at 855-58. Our analysis could not have been more clear that

the nationwide scope of the investigation was determinative. In

the course of our discussion of existing circuit precedent, we

emphasized that “each [case] involv[ed] an essentially

nationwide investigation conducted from an agency’s national

office.” Id. at 855. We then selected quotations from these

precedents (including Browning) that emphasized the national

scope of the investigations at issue. Id. at 855-56. Finally, in

applying these precedents, we noted that the case before us also

involved an “investigation [that] was not localized . . . but rather

was nationwide in scope.” Id. at 857. We concluded: “It is our

view that here, as in [prior cases from our circuit], the

Commission was conducting an essentially nationwide

investigation from its national office in the District of Columbia

and, accordingly, it should be afforded broad discretion in

selecting this jurisdiction as its place of inquiry.” Id. at 858

(emphasis added).

Significantly, in La Rouche, we chose to distinguish, rather

than disapprove, FTC v. Western General Dairies, Inc., 432

F. Supp. 31 (N.D. Cal. 1977), in which the district court in the

Northern District of California, applying a similar jurisdictional

provision, held that it lacked jurisdiction to enforce subpoenas

issued as part of an investigation of matters in Utah and Idaho,

even though the investigation was being conducted from an

office in the Northern District of California. In La Rouche, we

agreed with the reasoning of Western General Dairies and

11

distinguished it, explaining that the FEC could exercise

jurisdiction in the District of Columbia because a nationwide

investigation was being centrally directed from the District of

Columbia. La Rouche, 613 F.2d at 857 n.8. Our careful effort

to distinguish Western General Dairies, rather than simply to

reject the reasoning of that case, indicates we found the case

persuasive and is further evidence our holding in La Rouche

hinged upon the investigation having a national scope.

The NRLB relies on ASAT, arguing that where agency

investigations are carried out by an office in the District of

Columbia, “the district court for the District of Columbia often,

if not always, would have subject matter jurisdiction.” 411 F.3d

at 250. ASAT, however, involved a formal hearing being

conducted in the District of Columbia, not just a preliminary

investigation. That fact made it analogous to Browning, in

which we stated that the location of a formal adjudicatory

hearing is the place of the inquiry for purposes of subpoena

enforcement. Browning, 435 F.2d at 99 n.7 and 100. Moreover,

ASAT merely applied and reaffirmed our previous holding in

La Rouche; it did not call into question any of the reasoning of

La Rouche. The NLRB is correct that, in deciding ASAT, we put

little emphasis on La Rouche’s clear requirement that an

investigation must be nationwide in scope to justify subpoena

enforcement in a district that has no connection to the inquiry

other than the location of the investigating office. We did not,

however, need to emphasize this point, because the investigation

at issue in ASAT was unquestionably nationwide in scope. It

involved a patent infringement dispute that was proceeding in

the District of Columbia, which we described as the “‘hub’” of

the investigation. ASAT, 411 F.3d at 249 (quoting La Rouche,

613 F.2d at 857). The subpoenas at issue were directed to three

companies, two located overseas and one in California, and the

patent infringement investigation was not in any way limited to

activities occurring in one locality. Id. at 246-47.

12

The dissent also notes that, under § 161(2), an agency may

enforce a subpoena in a district court “within the jurisdiction of

which [the subpoenaed party] . . . is found or resides or transacts

business.” According to the dissent, our holding renders this

provision superfluous. Dis. op. at 3. Not so. We hold only

that, under the specific circumstances of this case, involving a

pre-hearing investigation of matters that occurred in Mississippi,

the place of the inquiry does not include the District of

Columbia. It happens that, in this case, Mississippi would

probably qualify as the place of the inquiry and also as a place

where Cooper Tire is “found . . . or transacts business,” but in

another case, this conjunction of the provisions of § 161(2)

might not exist. Examples include circumstances where a third

party is subpoenaed, as occurred in ASAT, or where the subject

matter of the inquiry is in one state, but additional evidence is

sought from another state where the company under

investigation transacts business.

Accordingly, we decline to read ASAT as undermining the

principles we articulated in La Rouche. In the present case, we

are persuaded that, in the absence of the nationwide

investigation present in La Rouche and ASAT, the district court

for the District of Columbia does not have subject matter

jurisdiction to enforce the subpoenas. We do not, however, hold

that subpoena enforcement in the District of Columbia always

requires a national investigation; enforcement in the District, as

anywhere else, depends on an application of the factors listed in

La Rouche and ASAT, and a national investigation merely works

to tip the scale in favor of the District.

III

The district court lacked subject matter jurisdiction to

enforce the subpoenas at issue in this case. Accordingly, we

13

vacate the order of the district court and remand with

instructions to dismiss the case.

So ordered.

GRIFFITH, Circuit Judge, dissenting: The subpoena

enforcement statute for the National Labor Relations Board

(“NLRB” or “Board”), 29 U.S.C. § 161(2), authorizes the Board

to enforce its subpoenas in a jurisdiction in which its “inquiry is

carried on,” which we have previously determined encompasses

the location of an agency office investigating alleged

wrongdoing. Here, that office is in the District of Columbia.

The majority, however, concludes that Federal Election

Commission v. Committee to Elect Lyndon La Rouche, 613 F.2d

849 (D.C. Cir. 1979), contains a “clear requirement that an

investigation must be nationwide in scope” in order to enforce

a subpoena here based upon an agency’s administrative

activities in this jurisdiction. Maj. Op. at 11. Because I believe

the majority has misread our decision in La Rouche, created a

conflict with our decision last term in United States

International Trade Commission v. ASAT, Inc., 411 F.3d 245

(D.C. Cir. 2005), and fashioned a new requirement for agency

enforcement of subpoenas that is inconsistent with the plain

meaning of “inquiry is carried on,” I respectfully dissent.

I.

It is worth noting how far the majority has departed from a

plain reading of the statutory phrase “inquiry is carried on.”

According to the majority, it means that a District of Columbia-

based agency may enforce a subpoena here based upon its

administrative activities only when an investigation is

nationwide because courts should focus on the subject matter of

agency investigations. The majority never explains how a plain

reading of § 161(2) supports either its requirement of a

nationwide investigation or its assertion that courts should focus

solely or especially on the place where allegedly unlawful

activity occurred.

2

Section 161(2) authorizes the Board to enforce its

subpoenas in “any district court . . . within the jurisdiction of

which the inquiry is carried on or within the jurisdiction of

which said person guilty of contumacy or refusal to obey is

found or resides or transacts business . . . .” Id. (emphasis

added). The common meaning of “inquiry” is “a request for

information” or “a systematic official investigation often of a

matter of public interest esp[ecially] by a body . . . with power

to compel testimony.” Merriam-Webster’s Dictionary of Law

(1996). Where “the statute’s language is plain, the sole function

of the court[]–at least where the disposition required by the text

is not absurd–is to enforce it according to its terms.” Dodd v.

United States, 125 S.Ct. 2478, ___ U.S. ___ (2005) (quotation

marks omitted). The text of § 161(2) includes jurisdictions in

which the Board interviews witnesses as part of its inquiry,

jurisdictions containing the target of its inquiry, and jurisdictions

in which it carries on investigative or enforcement tasks related

to its inquiry. Thus, before today, our cases have recognized

that “inquiry is carried on” includes not only where the alleged

misconduct occurred, but also where the Board carries on the

administrative aspects of its investigation. See ASAT, 411 F.3d

at 249-50; La Rouche, 613 F.2d at 857; Fed. Trade Comm’n v.

Browning, 435 F.2d 96, 100 n.7 (D.C. Cir. 1970).

Indeed, the other fora available in § 161(2) for Board

enforcement suggest that the purpose of the “inquiry is carried

on” phrase is to ensure that the Board can seek rapid

enforcement in the forum from which it operates its inquiry.1 By

limiting the “inquiry is carried on” prong to the subject matter

1

The “rapid exercise of the power to investigate” is “the very

backbone of an administrative agency’s effectiveness in carrying out

the congressionally mandated duties of industry regulation.” FTC v.

Texaco, Inc., 555 F.2d 862, 872 (D.C. Cir. 1977) (quotation marks and

alterations omitted).

3

of the inquiry yet applying it to administrative activities only for

nationwide investigations, the majority renders much of § 161(2)

insignificant. “It is our duty ‘to give effect, if possible, to every

clause and word of a statute.’” Duncan v. Walker, 533 U.S. 167,

174 (2001) (quoting United States v. Menasche, 348 U.S. 528,

538-39 (1955) (citation omitted)). Under the second prong of

§ 161(2), the NLRB can already enforce its subpoena where the

subject of the subpoena is “found or resides.” That would

almost always include a location where the subject engaged in

allegedly unlawful activity, what the majority calls the “subject

matter” of the inquiry. Under the majority’s construction of

“inquiry is carried on,” however, there seems to be no need for

the “found or resides” prong. A plain reading of these clauses

together suggests that Congress sought to give the Board

authority to enforce its subpoena either where the target of its

investigation is found or resides, or where the Board operates its

inquiry.

The majority crafts its nationwide requirement not through

a construction of the statute, but by using La Rouche, a case that,

as I explain below, does not adopt such a requirement. Inherent

in the majority’s decision today is a policy choice not found in

the statutory text: regardless of the convenience to an agency, an

agency should not be able to enforce its subpoena in a

jurisdiction where the only nexus to its inquiry is administrative

activities, unless its investigation is nationwide in scope.

Without the majority’s nationwide requirement, the plain text of

§ 161(2) would allow the Board to enforce its subpoena here

even though this “investigation concerns a single employer and

a single dispute related to union-organizing activity at a single

plant.” Maj. Op. at 9. But these types of “policy arguments

regarding the most efficient or convenient enforcement of

[agency] subpoenas are best addressed to Congress.” ASAT, 411

F.3d at 252. If Congress shares the majority’s concerns about

subpoenas being enforced here only for nationwide

4

investigations, it can certainly add that requirement to the

statute.2

II.

Last term in ASAT, we analyzed La Rouche and, under facts

nearly identical to this case, upheld the enforcement of a

subpoena in the District of Columbia based upon “wholly

administrative activities” occurring here. 411 F.3d at 250. Yet

nowhere did we conclude that La Rouche employed the

majority’s nationwide requirement. Had we done so, we should

have declined enforcement because ASAT did not involve a

nationwide investigation. 411 F.3d at 246-47.

The majority concludes that it need not apply ASAT here

because: (1) ASAT involved three subpoenas, two of which were

directed to companies overseas; (2) the investigation there was

not limited to activities in California; and (3) ASAT involved a

2

The original bill for what was to become the National Labor

Relations Act contained only a “found or resides” clause. Labor

Disputes Act, S. 2926, 73d Cong. § 208(2) (as introduced, Feb. 28,

1934). The Senate Committee on Education and Labor added the

“inquiry is carried on” clause. S. 2926, 73d Cong. § 208(2) (as

reported by S. Comm. on Educ. and Labor, May 10, 1934). In the

next Congress, the bill was reintroduced to give the Board even more

fora in which to enforce its subpoenas with the addition of a new

“transacts business” clause. S. 1958, 74th Cong. § 13(2) (as

introduced, Feb. 15, 1935). Congress knows how to limit or expand

fora for agency enforcement of subpoenas if it wishes to do so.

Indeed, as we noted in Browning, the Chairman of the FTC

specifically requested that Congress give the FTC the option of

enforcing a subpoena in a forum where a corporation or person is

found, resides, or transacts business. 435 F.2d at 100-01 (quoting

S. 3744, 74th Cong. (1936)). “Congress . . . declined to accede to this

request,” 435 F.2d at 101, for that agency.

5

formal hearing being conducted in the District of Columbia.

Maj. Op. at 11. The agency in ASAT, however, quashed the two

international subpoenas for improper service and only the

California subpoena was at issue in the enforcement proceedings

before this Court. 411 F.3d at 247. Nothing in ASAT describes,

one way or the other, where the alleged patent infringement

under investigation occurred. Moreover, these first two

distinguishing facts are culled from the background section of

the opinion and none of ASAT’s analysis finds them to be of any

importance. And in ASAT, just like this case, “[t]he subpoena

underlying this appeal was issued during an investigation by [an

administrative agency] . . . .” Id. at 246 (emphasis added). The

“formal hearing” in ASAT of which the majority speaks refers to

an “evidentiary hearing regarding [the] actions [of a party under

investigation, which] was held in the District of Columbia” by

an ALJ, id. at 249, apparently with regard to whether

investigatory subpoenas should be issued. As the majority

notes, Cooper Tire & Rubber Company (“Cooper Tire”) litigated

the validity of the subpoenas at issue here before the Board in

the District of Columbia and the Board issued its decision from

here–a proceeding that would not appear to be much different

from the evidentiary hearing in ASAT.3

ASAT conflicts with much of the majority’s analysis,

including the majority’s suggestion that our precedent requires

us to “focus on . . . the location of the subject matter of the

inquiry.” Maj. Op. at 7 (emphasis in original). In ASAT,

looking to “wholly administrative activities,” 411 F.3d at 250,

3

In any event, ASAT expressly held that we would uphold

enforcement in the District based upon the administrative activities

occurring here “[e]ven if we were to ignore, as ASAT, Inc. suggests,

that the ALJ’s evidentiary hearing regarding [the] actions [of the party

under investigation] was held in the District of Columbia . . . .” Id. at

249.

6

we allowed for enforcement in the District of Columbia of an

administrative subpoena directed at a California company

because

the Commission’s activities regarding the subpoena at

issue were conducted overwhelmingly in the District of

Columbia: The subpoena was signed, sealed, and

issued in the District of Columbia, the ALJ’s rulings on

ASAT’s motion to quash were issued in the District of

Columbia, and the Commission’s certification of the

subpoena for judicial enforcement occurred in the

District of Columbia. Because, as the district court

stated, the Commission conducted the administrative

activities essential to the investigation in the District of

Columbia, the district court here had subject matter

jurisdiction . . . .

411 F.3d at 249 (quotation marks, alterations, and internal

citation omitted).

We do not focus on any one place or weigh the ASAT

factors and choose our own preferred forum. Instead, “our

precedent is clear that an inquiry can be carried on in more than

one place.” ASAT, 411 F.3d at 250 (citations omitted). As

La Rouche explained, even if an agency “could have brought

[an] action to enforce its subpoenas in [another] district,” we

acknowledge that “the [agency] chose not to do so, and we

honor its choice.” La Rouche, 613 F.2d at 858 n.9. Interpreting

the first part of the La Rouche test and our precedent in

Browning, ASAT held that “[a]s long as the [following] factors

. . . so indicate, it properly can be said that an inquiry is carried

on in that place,” ASAT, 411 F.3d at 250:

[1] the place where the Commission held its hearing,

[2] the place where it made the decision to authorize

7

the investigation, [3] the place where the subpoenas

were issued, [4] the place where its correspondence

emanated, [5] the place where the Commission

determined that unlawful actions had occurred, [6] the

location of the documents and witnesses, and [7] the

location of the headquarters of the subpoenaed

company.

Id. at 249 (citing La Rouche, 613 F.2d at 857; FTC v.

MacArthur, 532 F.2d 1135, 1140 (7th Cir. 1976); Browning, 435

F.2d at 99).

Prior to today, with several of the ASAT factors met in this

case, we would have concluded that the District of Columbia is

one place in which the Board’s “inquiry is carried on.” Here,

the NLRB officers investigating Cooper Tire’s alleged contempt

operate from the Contempt Branch in the Board’s District of

Columbia headquarters. They have made decisions related to

this investigation from there. The subpoenas were issued from

the Contempt Branch’s District office and were made returnable

there. The Contempt Branch will analyze and evaluate the

materials subpoenaed from Cooper Tire in that office. The

Contempt Branch’s correspondence to the parties has emanated

from the District and Cooper Tire has sent materials responsive

to prior subpoenas to the District. Cooper Tire moved to quash

the subpoenas at issue here before the Board in the District and

the Board issued its decision from here.

Despite the majority’s use of La Rouche for its

determination to “focus on . . . the location of the subject matter

of the inquiry,” Maj. Op. at 7 (emphasis in original), La Rouche

also enforced a subpoena in the District of Columbia based upon

entirely administrative activities:

[t]he nexus between this jurisdiction and the

8

Commission’s investigation lies in the fact that the

District of Columbia, where the Commission maintains

its headquarters, was the hub of the Commission’s

investigative activity. It was in this jurisdiction where

the Commission authorized the auditing of CTEL’s

records and the interviewing of its contributors, where

the Commission determined that there was reason to

believe that appellants may have violated the federal

election laws, where all correspondence regarding

those possible violations emanated, and where the

subpoenas were in fact issued.

613 F.2d at 857. The majority bases its holding upon the phrase

“subject matter” in the first part of the La Rouche test. But in

asking “whether the District of Columbia bore a sufficiently

reasonable relation to the subject matter of the investigation,” id.

at 856-57 (quotation marks omitted), La Rouche did not require

that this jurisdiction contain the subject matter of an

investigation. It asked whether this jurisdiction bore a

“sufficiently reasonable relation” to the subject matter of an

investigation. And we know from La Rouche, ASAT, and

Browning that the presence of a sufficient number of “wholly

administrative activities,” ASAT, 411 F.3d at 250; see

La Rouche, 613 F.2d at 857; Browning, 435 F.2d 96, 100 n.7,

will constitute a reasonable relationship with the subject matter

of an inquiry. The majority acknowledges a conflict between

what Browning and ASAT require and its own reading of

La Rouche, but that conflict is one created by the majority and

not La Rouche.

Despite La Rouche having enforced an administrative

subpoena based upon wholly administrative activities and the

ASAT factors having been “derived from La Rouche, MacArthur,

and Browning,” ASAT, 411 F.3d at 250, in order to determine

what inquiry-related activities make this a permissible

9

jurisdiction under the first part of the La Rouche test, the

majority concludes that the ASAT factors are no longer

controlling. Instead, under the majority’s reading of La Rouche,

“the nationwide scope of the investigation [is] determinative,”

Maj. Op. at 10, regarding whether enforcement may be sought

in the District of Columbia based upon an agency’s

administrative activities.4 ASAT did not find this holding in

La Rouche. Nor did the District Court and Magistrate Judge.

Indeed, no court has ever cited La Rouche for that proposition

in the nearly 30 years since La Rouche was decided. To the

contrary, after analyzing La Rouche, the United States District

Court for the District of Columbia has enforced subpoenas

involving alleged wrongdoing that takes place in a single state,

without finding the majority’s nationwide requirement in

La Rouche.5

4

The majority concludes by “not . . . hold[ing] that subpoena

enforcement in the District of Columbia always requires a national

investigation” and suggesting that “a national investigation merely

works to tip the scale in favor of the District.” Maj. Op. at 12. Earlier,

the majority indicates that La Rouche contains a “clear requirement

that an investigation must be nationwide in scope . . . .” Maj. Op. at

11. If La Rouche so holds, it is unclear why the majority suggests that

a nationwide investigation is less than determinative at the end of its

opinion and under what standard the majority would weigh the

absence of a nationwide investigation.

5

See United States v. Tesoro Petroleum Corp., 503 F. Supp. 868,

872-73 (D.D.C. 1980) (analyzing La Rouche and enforcing in this

jurisdiction a subpoena of a Texas-based energy company issued as

part of an investigation into whether that company had violated

regulations of the Department of Energy because “much of the

[administrative] activity concerning the . . . audit [of the company] has

occurred in the District of Columbia”), overruled in part on other

grounds by United States v. Hill, 694 F.2d 258 (D.C. Cir. 1982);

United States v. Stoltz, 525 F. Supp. 617, 618 (D.D.C. 1981) (same).

10

The portion of La Rouche the majority relies upon addresses

a party’s argument that enforcing a subpoena in the District of

Columbia against a contributor to a minor political party could

raise a chilling of speech problem under the First Amendment

and thereby exceed the bound of reasonableness.6 That concern,

6

[A]ppellants argue that a substantial chilling effect

would result if the Commission, as part of a

nationwide investigation, could enforce in the District

of Columbia subpoenas issued to individual

contributors to a minor party across the United States.

It is our view that appellants are correct in suggesting

that the chilling effect of the Commission’s choice of

its place of inquiry ought to be considered in

determining whether the choice falls within the

“bound of reasonableness.” In the instant case,

however, which of course does not involve subpoenas

issued to individual contributors, the record is devoid

of any evidence of chill . . . .

What the record does reveal is that the Commission's

investigation was not localized in New York, but

rather was nationwide in scope. . . . It is our view

that here, as in Browning, [FTC v. Cockrell, 431 F.

Supp. 558 (D.D.C. 1977)], and [United States v.

Firestone Tire & Rubber Co., 455 F. Supp. 1072

(D.D.C. 1978)], the Commission was conducting an

essentially nationwide investigation from its national

office in the District of Columbia and, accordingly, it

should be afforded broad discretion in selecting this

jurisdiction as its place of inquiry. We cannot say,

given the breadth of that discretion and the absence

of any evidence of chill, that the Commission

exceeded the “bound of reasonableness . . . .”

613 F.2d at 857-58 (footnote omitted).

11

the Court noted, was not present in La Rouche because the

activities of a national political candidate were at issue. Id. at

857. Thus, when La Rouche discusses the fact that the

investigation in that case was nationwide, it does so only in

showing that enforcement here as part of a nationwide

investigation cannot exceed the bound of reasonableness. The

only decision the majority is able to cite as an example of a court

declining enforcement because the activity under investigation

occurred in another jurisdiction is not to the contrary. As we

explained in La Rouche, the District Court in Federal Trade

Commission v. Western General Dairies, 432 F. Supp. 31 (N.D.

Cal. 1977), did not decline enforcement only because there had

not been a nationwide investigation; instead, the District Court

did so because an agency had “simply [issued] a subpoena . . .

from [its] regional office in the Northern District of California”

as part of an “investigation [that] was neither nationwide in

scope nor related in any manner to the Northern District of

California.” La Rouche, 613 F.2d at 858 n.8 (emphasis added).7

Given that the Contempt Branch has carried on a bona fide

inquiry of Cooper Tire from its District of Columbia office,

La Rouche next asks whether allowing enforcement here would

exceed a bound of reasonableness. “[T]he [bound of

reasonableness] criterion [from La Rouche] resembles a

traditional venue analysis that focuses on the convenience of the

forum to the parties [and] . . . implicates whether that court is a

7

See Stoltz, 525 F. Supp. at 619 (nothing that the only connection

to the Northern District of California in Western General Dairies was

an agency’s decision to issue, and make returnable, subpoenas from

there and that “[w]hether the [administrative] factors present here

would have swayed the district court in California cannot be known”).

12

proper venue.” ASAT, 411 F.3d at 248 (citations omitted).8 As

the Magistrate Judge noted, Cooper directed the District Court

to nothing that would warrant restarting litigation in another

venue. Cooper did not claim that litigating the legal sufficiency

of these subpoenas in the District of Columbia would be

burdensome. Indeed, Cooper previously complied with an

earlier round of Board subpoenas by producing documents in the

District of Columbia. See NLRB v. Cooper Tire & Rubber Co.,

No. 03-03898, slip op. at 10 (D.D.C. Mar. 29, 2004). In

La Rouche, the presence of a nationwide investigation was

simply one factor that demonstrated that an agency did not

exceed the bound of reasonableness. Here, Cooper Tire’s prior

dealings with the Board in the District suffice to make that same

showing. Just as we recently concluded in ASAT, Cooper Tire

“has demonstrated no actual hardship of defending itself in the

8

La Rouche, with limited analysis, applied the Seventh Circuit’s

statement in MacArthur that even if an agency has demonstrated that

the forum it has selected is within the literal reach of its subpoena

enforcement statute, an agency’s “choice . . . is [still] subject to the

bound of reasonableness.” MacArthur, 532 F.2d at 1140 (citing

United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950)); see

La Rouche, 613 F.2d at 857. The bound of reasonableness of which

MacArthur spoke is not found in the text of the NLRB’s subpoena

enforcement statute. Morton Salt addresses the Fourth Amendment’s

protection from unreasonable searches and seizures. MacArthur did

not explain why the Fourth Amendment, and not due process, is the

proper vehicle for a litigant to challenge the fairness of litigating in a

particular forum. Courts writing on a clean slate and litigants seeking

to make a constitutional claim in this area would do well to avoid

relying generally on the bound of reasonableness and to focus instead

on a specific constitutional or venue claim. Companies and individual

litigants with no connection to the District of Columbia can, of course,

make constitutional arguments as to why being forced to litigate the

validity of a subpoena here would violate due process. See, e.g., Quill

Corp. v. North Dakota, 504 U.S. 298, 307 (1992).

13

District of Columbia . . . , especially since it already had

participated in administrative proceedings in the District of

Columbia,” ASAT, 411 F.3d at 250, here, at the very least, by

responding to the Board’s prior subpoenas. “Hence, it is not

difficult to conclude that the [NLRB’s] choice of the District of

Columbia to enforce the subpoena is well-within the ‘bound of

reasonableness.’” ASAT, 411 F.3d at 250 (quoting La Rouche,

613 F.2d at 857 (quoting MacArthur, 532 F.2d at 1140)

(quotation marks omitted)).

III.

The NLRB may be able to avoid the majority’s nationwide

requirement in future cases because its subpoena enforcement

statute, unlike the statute at issue in La Rouche and that of many

other administrative agencies, also allows it to seek enforcement

“within the jurisdiction of which said person guilty of

contumacy or refusal to obey . . . transacts business . . . .” 29

U.S.C. § 161(2) (emphasis added).9 A large number of agency

subpoena enforcement statutes, however, contain only an

“inquiry is carried on” clause.10 The majority’s decision now

9

The Board has not argued the “transacts business” clause of

§ 161(2) in this case. By including jurisdictions in which a

subpoenaed party “transacts business,” Congress employed a well-

traveled standard often found in state long-arm personal jurisdiction

statutes, which are frequently interpreted to allow for jurisdiction over

an entity to the maximum extent permissible with due process. See,

e.g., Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004).

10

See, e.g., 2 U.S.C. § 437d(b) (Federal Election Commission);

5 U.S.C. § 1507(a) (Merit Systems Protection Board); 7 U.S.C.

§ 87f(c) (Department of Agriculture); 12 U.S.C. § 2617(c)(2)

(Department of Housing and Urban Development); 15 U.S.C. § 49

(Federal Trade Commission); 15 U.S.C. § 796(b)(3) (Federal Energy

Administration); 15 U.S.C. § 2076(c) (Consumer Product Safety

14

places a burden on federal agencies not anticipated by those

statutes by requiring agencies that investigate wrongdoing from

their District of Columbia offices to enforce their subpoenas in

jurisdictions all over the country, unless they can demonstrate

that the conduct at issue is nationwide.

Parties that seek to delay agency investigations have a

powerful new tool for doing so because there is no ascertainable

standard for courts to determine which investigations are

“nationwide enough” to allow enforcement in the District of

Columbia. The administrative subpoena of a California-based

company with an international parent may be enforced in the

District of Columbia as part of an unfair trade investigation,

ASAT, 411 F.3d at 249, as can an administrative subpoena of a

Pennsylvania company issued as part of an investigation into

that company’s acquisition of firms in three states, Browning,

435 F.2d at 97-98, as can an administrative subpoena of a New

York-based minor political party as part of an investigation into

its activities in four states, La Rouche, 613 F.2d at 857-58. But

the administrative subpoena of an Ohio-based company’s

activities in Ohio and Mississippi cannot be enforced in the

District of Columbia. Maj. Op. at 12.

Commission); 19 U.S.C. § 1333(b) (United States International Trade

Commission); 19 U.S.C. § 1677f(f)(7)(B) (United States International

Trade Commission); 19 U.S.C. § 3433(b) (committees authorized by

the North American Free Trade Agreement); 22 U.S.C. § 1623(c)

(Foreign Claims Settlement Commission of the United States); 25

U.S.C. § 2715(c) (National Indian Gaming Commission); 38 U.S.C.

§ 5713 (Department of Veterans Affairs); 42 U.S.C. § 5413(d)

(Department of Housing and Urban Development); 42 U.S.C.

§ 6384(c) (Comptroller General); 47 U.S.C. § 409(g) (Federal

Communications Commission); see also 41 U.S.C. § 39 (Department

of Labor).

15

Cooper Tire has successfully stalled enforcement of the

NLRB’s administrative subpoena and has delayed a preliminary

investigation by two years. Cooper Tire has forced the NLRB

to start anew in Ohio or Mississippi, where Cooper Tire can now

file the same briefing it filed in this litigation. As I see no

statutory or constitutional basis for placing such a burden on the

NLRB, I respectfully dissent.