Petition for Writ of Certiorari — Sturm, Ruger & Co. v. United States
Supreme Court brief1996
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(1) FILED
96 2 84 AUC | 2 1995,
No
RIO OE Due CLERK
In The
Supreme Court of the Hnited States
~>
October Term, 1995
STURM, RUGER & COMPANY, INC.,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the First Circuit
PETITION FORA WRIT OF CERTIORARI
RICHARD D. WAYNE
Counsel of Record
MAUREEN K. BOGUE
LISA R. SCHNEIDER
HINCKLEY, ALLEN & SNYDER
Attorneys for Petitioner
One Financial Center
Boston, Massachusetts 02111-2625
(617) 345-9000
9380
juz
te (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21
4 ‘Sowvices, inc.
QUESTIONS PRESENTED
1. Isan administrative subpoena issued in conjunction with
and in furtherance of an unlawful inspection program
enforceable? Specifically, is an administrative subpoena issued
by a local area director of the Occupational Safety and Health
Administration (“OSHA”) to further an inspection program
targeting select New Hampshire employers suspected of
exposing their employees to unspecified ergonomic hazards
enforceable if the targeted program is a substantive rule
established in circumvention of the rulemaking requirements
mandated by Congress under the Occupational Safety and
Health Act (“OSH Act”), 29 U.S.C. § 651 et seg. and the
Administrative Procedures Act, 5 U.S.C. § 551 et seq.?
2. Does the “general duty clause,” 29 U.S.C. § 654(a)(1),
which imposes onemployers a duty to provide “employment and
a place of employment which are free from recognized hazards,”
permit OSHA to circumvent the rulemaking procedures
established by Congress?
3. Does acourt, in an action brought by an administrative
agency toenforce its subpoena, have inherent authority to vacate
a penalty imposed by that same administrative agency upon the
party who has invoked its Constitutional right to compulsory
process?
il
LIST OF PARTIES
The names of all parties to the proceedings in the court
whose judgment is sought to be reviewed appear in the caption of
the case. Petitioner Sturm, Ruger & Company has no non-wholly
owned subsidiaries.
iii
TABLE OF CONTENTS
Page
I rd eet. benoit: was Ors i
EE EEA Sr a en a ii
I ire iii
Es Csi igen pene tdk coli cdd wane v
a PORE h Fee as ee ul OO |
ee ]
Constitutional and Statutory Provisions Involved ..... ]
EE De wccsi tes en ccddacdccasiceon 2
se kk nas AREER RR ORS 2
B. Background: OSHA's Inability to Promulgate an
i ok cnn bed wewenkdue ees 4
ee ee ee es ee ee 4
2. OSHAAttempts Ergonomic Rulemaking . . 5
3. Ergonomics, OSHA Act Reform and
EE Weeki wed ci dceandeeucuanatens 5
C. The New Hampshire Area Director Engages in His
Own Rulemaking: the NH Ergonomic Local
ED cc ca keen eine chaeekh ion ds 6
iv
Contents
Page
D. The 1993 Inspection of the Sturm Ruger Facility
STTOTT TOT ee Ter eT err Tee PT eee STE 6
E. ThelIssuance of the Administrative Subpoena .. 7
F. The Decision of the Magistrate Judge ......... 9
G. The Decision ofthe DistrictCourt ........... 10
H. The Decision ofthe Court ofAppeals ......... 10
Reasons for Granting the Writ ..............00e cues 11
I. Judicial Enforcement of an Administrative
Subpoena Which Was Issued in Furtherance of an
Illegal and Improper Agency Enforcement
Program is an Abuse of Process. ............. 13
A. The Subpoena Was Not Issued for a Proper
is MTT ET Terr ery Te oer Tr TT eo ee ee 13
B. OSHAExceded its Congressional Authority
When it Established the New Hampshire
oS PPT ere rer Tree eee 18
II. The General Duty Clause Was Not Created By
Congress to Enable OSHA to Evade Its’
Rulemaking Responsibilities Under the OSH Act
and the APA, and, thus, Does Not Save the NH
Ergonomic LEP or Subpoena Issued Pursuant to
ty. CTP OT Tre iT Tee Teeter 19
Vv
Contents
Page
III. This Court has Jurisdiction to Vacate the Citation
Issued to Sturm, Ruger for Failure to Comply with
ER OE CP rr eee pe ees oe 23
i ery hl Lp OTe ES Te ee 25
TABLE OF CITATIONS
Cases Cited:
American Hospital Association v. Bowen, 834 F.2d 1037
iP row Salts BOMED a KKK 5 45 C460 d wd ced ER ks 16
American Smelting and Refining Company v. OSHRC, 501
Pun ea nly ROTOS 6 hai ssddkandedanwenic 22,23
Beverly Industries, Inc., OSHRC Docket Nos. 91-3344 et
O5. CIR, 0S, Cae 8 vic ine ss cndoawcsareevaen 15
Brock v. Emerson Electric Co. Electronic Space Div., 834
Fiala PROCS, ROOT) v bckNRs ARR AAcaaaR eee SS 22
Civil Aeronautics Board v. DeltaAir Lines, Inc., 367 U.S.
SEPEUOOES k0ks bi GAS aRL EARS CARRE Oni 17,18
Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984) ..... 11
Donovan v. Wollaston Alloys, Inc., 695 F.2d 1 (1st Cir.
RPORD cw che chb iv ae nea een ies 16, 17,23
Environmental Defense Fund, Inc. v. Costle, 636 F.2d
Rae Ces SED Nae vastcksnedsensnsevnciacn 16
vi
Contents
Page
Kastalon, Inc., 1986 OSHD (CCH) 27643 (OSHRC 1986)
ca seadecepend Dubey esaake bee Meee 12,21, 22, 23
Kropp Forge Company v. Secretary of Labor, 657 F.2d 119
q. (eB) .)) eyerena et eer Trees Sard ort 23
Leedom v. Kyne, 358 U.S. 184(1958) ............... 12,24
National Realty And Construction Company, Inc. vy.
OSHRC, 489 F.2d 1257 (D.C. Cir. 1973) .......... 20
NLRB v. Wyman Gordon Co., 394 U.S. 759 (1969) ..... 22
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946)
nce sdb de bORS OSH RLEOKORGURERER LL Owe GENSeE Os 13, 23
Pepperidge Farms, Inc., 1993 WL 132982 (OSHRC
DERCCR SD, BOOS) os vivitar uv deseeeduvens chiteees 15
Secretary of Labor v. R. Zoppo Co., Inc., OSHRC Docket
No. 94-1338 (August 16, 1995) .............0 008 23
See v. City of Seattle, 387 U.S.541 (1967) ........... 23
Shasta Minerals & Chemical Company v. Securities and
Exchange Commission, 328 F.2d 285 (10th Cir. 1964)
ede aeeheeb ge saben Kase he hak cee kee eeu cee 14
Social Security Board v. Nierotko, 327 U.S. 358 (1946)
POTENT TT eee Te Tee eT eee ee ie eee 18
vii
Contents
Page
Stark v. Wickard, 321 U.S. 288 (1944) ............... 18
Stoddard Lumber Company v. Marshall, 627 F.2d 984 (9th
Ga ROOD. ANAGOREL ADR bao New Take Ades weeks: 17
United States v. Comley, 890 F.2d 539 (1st Cir. 1989) ..11,13,14
United States Department of Labor v. Kast Metals
Corporation, 744 F.2d 1145 (5th Cir. 1984) ...... 15, 16,17
United States v. Morton Salt Co., 338 U.S. 632 (1950) .... 13
United States v. Powell, 379 U.S. 48 (1964) .......... 11,14
Statutes Cited:
PUPAE OPE KEN GAN G40 o 0a dence bRGh OC eRwER URSA 2,13
Pape SEMEN, Sav bnd 66s be uOw eh eaonekinebn 2
ns EONUD 6 6 canddcccseuaccdeuneausesadcuees 15
Fries GPUS Kae i 06K 4s VERN C ea dncoveanberes 16
PME Kckdcedecrcue bekhakns eee ceakekein 2
Pe as BBAOULED & cin wa deddsansonteteceeewaereers |
ares CEERI c's vx einn ss hb xk tae ds cd baNea ee i,2
BO Ws SUPTOMICED nS Va sn Sead ens denncces i, 2,12, 19,22
vill
Contents
Page
yg Fm |! 7) POUR e EET Ee err ere ce reer ee 2,4, 20
eA Se | ey pers eee re ery 4
rg Se Pee eee ery Cote Tr reer yore 2,20
EP ieBtae BRTTOD sha ek as vay seen ieuaea stones vais 15
pt ad Ds oy eres err 15
POR OPED: sactvvsbiasscudeawetecbevas as 20
pe Lok ey | Beer re eee errr es ere rer 20
ae er TR 6 0 5.2 6a SST RECT RS RAK OOES 2
Pe aE TEED 65 shan BUG a Ce AR RRAN ELEN ROMEO ETS 2,20
Fe lb iece BA TUEE iu at kickin Foca ph xakes en eis cess 2
United States Constitution Cited:
POUT AMIOMGINONE oon ce ccc ctesdesacesacsncies tes 1,11
PERRAMIOMOIOEE cock ciccccecbeccciavinvvasavwess 11
Other Authorities Cited:
SCF SIGS vin ccavecvsncscdustseeushues ses 2
MOC PR. IGOR oc vec ccvassvccandedssetapeectes 2
ix
Contents
57 Federal Register 34192-34199 ..................
eee RUE POH OE 6 ons b's oa wcu decd nbawien
Public Laws 104-99 § 101(c) .......cccccccccccsecs
Thomas J. Armstrong et al. Ergonomic Considerations in
Hand and Wrist Tendonitis, 12 J. Hand Surgery 830
BL RS PEN Tes Sa Same es igs nL aa aman
Nortin M. Hadler, Cumulative Trauma Disorders: An
Iatrogenic Concept, 32 J. Occupational Medicine 38
| Ea Fark NE Dia 9 Salhi aN ne) od aaa
Victoria R. Masear et al., An Industrial Cause of Carpal
Tunnell Syndrome, 11A J. Hand Surgery 222 (1986)
BarbaraA. Silverstein et al., Hand Wrist Disorders Among
Investment Cast Plant Workers, 12J. Hand Surgery 838
LUEEE Kwiv sed cad asakesnendeaweecieeeee rks
APPENDIX
Appendix A — Opinion of the United States Court of
Appeals for the First Circuit Dated May 14, 1996 ...
Appendix B — Judgment of the United States District
Court for the District of New Hampshire Filed August
GRP x so av EES eEERMGS CONE TAUR OLR ERED OhOD
4,5
la
x
Contents
Appendix C — Order of the United States District Court
for the District of New Hampshire Filed August 4, 1995
“ee ee eeeeeeeeeeeeeeeeeeeee eee eee eee eee ee ee ee
Appendix D — Order of the United States District Court
for the District of New Hampshire Dated March 14,
BOS cvccccssbecdsocsctccencseseseseevetscees
Appendix E— Report and Recommendation of the United
States District Court for the District of New
Hampshire Dated March 13,1995 .............45.
Appendix F — Relevant Regulations and Statutes ....
Appendix G— Federal Register Volume 57 No. 149 Dated
AMMIRS, TPO cccccccccceccsccccccecesseceess
Appendix H — Editorial from May 1995 Publication ..
Appendix I — Letter Dated August 19,1994 .........
Appendix J — Letter Dated January 19,1994 ........
Appendix K — Citation and Notification of Penalty Dated
Paley S, ISDS cc cccnccccnesccccecesesscccccescss
Appendix L — Letter from OSHA to Sturm Ruger Dated
AMMO TT, IDTS .ccccccccccccccccccscscsccccce
Appendix M — Subpoena Duces Tecum Dated January
Be, BOOS cncccccccccncccescoceccceseceseoncese
Page
lSa
40a
l
Sturm, Ruger & Company, Inc. (“Sturm, Ruger”), by its
undersigned counsel, respectfully petitions for a writ of
certiorari to review the judgment of the court of appeals in this
case.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a)' is reported at
84 F.3d 1. The opinion of the district court (App. 15a) is reported
at 903 F. Supp. 239. The opinion of the magistrate judge (App.
40a) is not reported.
STATEMENT OF JURISDICTION
The judgment of the court of appeals was entered on May 14,
1996. The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONALAND STATUTORY PROVISIONS
INVOLVED
The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure in their
persons, houses, papers and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
1. References to the Appendix to this petition shall be designated herein
as “(App. __).” References to the joint appendix in the court of appeals shall
be designated herein as “(Cir. App. __).”
2
The Fifth Amendment to the United States Constitution
provides, in pari materia, that:
No person shall ... be deprived of life,
liberty, or property, without due process of
law.
Sections 551,553 an 555 of the Administrative Procedures
Act,5 U.S.C. §551 et seq., are reproduced at App. 72a; Sections
654(a)(1) and (a)(2), 655(a)-(c), 657(a)-(c), (f), and (g) of the
Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., are
reproduced at App. 62a; 29 Code of Federal Regulations (C.F.R.)
§§ 1903.4 and 1904.7 are reproduced at App. 57a; 57 Federal
Register (F.R.) 34192 to 34199 are reproduced at App. 79a;
Public Laws (P.L.) 104-19 § 602 and 104-99 § 101(c) are
reproduced at App. 60a.
STATEMENT OF THE CASE
A. Summary
Sturm, Ruger is a manufacturer of firearms and castings
with facilities in Newport and Londonderry, New Hampshire. In
1993, Sturm, Ruger employed 1175 employees in its New
Hampshire facilities, 80% in manufacturing positions, which
made Sturm, Ruger the eleventh largest employer and eighth
largest manufacturer in that state.
The Occupational Safety and Health Administration
(“OSHA”) is that part of the United States Department of Labor
(“USDOL”) responsible for enforcement of the OSH Act, 29
U.S.C. § 651 ef seq. For purposes of administration and
enforcement, the United States is divided into ten (10) regions,
with each region having a Regional Administrator. Each state or
part thereof which is subject to direct federal oversight under the
OSH Act is administered by an OSHA area director.
3
On or about June, 1991, OSHA placed ergonomic
rulemaking on its regulatory agenda, and on August 3, 1992,
announced its intention to begin ergonomic rulemaking by
requesting interested persons to answer questious published in
the Federal Register. (App. 79a). Apparently dissatisfied with
the national rulemaking process, the New Hampshire OSHA
Area Director, on December 31, 1992, obtained a computer
printout from the New Hampshire Bureau of Workers’
Compensation detailing claims of first reports of injury/illness
for all New Hampshire employers, and without notice or
comment, and using his own definitions and methodology, began
targeting New Hampshire employers for ergonomic
enforcement inspections because, in his opinion, they employed
individuals suffering from repetitive motion disorders.
On August 17, 1993, while national ergonomic rulemaking
was progressing, an OSHA compliance officer arrived at the
Sturm, Ruger facility and, among other things, presented Sturm,
Ruger with a letter describing the New Hampshire Ergonomic
Local Emphasis Program (“LEP”). (App. 104a). On November
12, 1993, OSHA presented Sturm, Ruger officials with a detailed
questionnaire and document demand, which Sturm, Ruger
forwarded to its attorney. (App. 109a). After refusing tocomply
with repeated requests for this information, on January 12, 1994,
Sturm, Ruger was served with an OSHA administrative
subpoena seeking a broad range of information related to
ergonomics. (App. 107a). Sturm, Ruger promptly questioned the
validity of the subpoena, claiming it was in furtherance of an
invalid and improper targeted inspection and enforcement
action. On May 5, the United States filed a petition in the United
States District Court for the District of New Hampshire seeking
enforcement of its subpoena. During the pendency of this action
in the district court, OSHA served Sturm, Ruger with a willful
citation and $9,000 fine for refusing to produce certain
subpoenaed documents. (App. 99a).
)
4
B. Background: OSHA’s Inability to Promulgate an
Ergonomic Standard
1. Ergonomics
Neither the OSH Act nor OSHA standards expressly address
ergonomics, alleged ergonomic disorders or ergonomic hazards.
Due to the controversial nature of the subject matter, OSHA has
been unable to promulgate an ergonomic standard under
§ 654(a)(2) and § 655(a)-(b). OSHA broadly defines
“ergonomics” as: “the study of the design of requirements of
work in relation to the physical and psychological capabilities
and limitations of people; that is, ergonomics seeks to fit the job
to the person rather than the person to the job. The aim of the
discipline is to prevent the development of occupational
disorders and to reduce the potential for fatigue, error or unsafe
acts through evaluation and design of facilities, environments,
jobs, tasks, tools, equipment, processes and training methods to
match the capabilities of specific workers.” (App. 88a).
The controversial nature of this pseudoscience is
underscored by the fact even proponents of establishing an
OSHA ergonomic standard have conceded that reduction or
elimination of work related risk factors (such as repetitiveness,
forcefulness, awkward position, vibration) may not necessarily
result in either the elimination or reduction of ergonomic
“injuries or illnesses” from the workplace.? Appropriately
capturing the controversial nature of the subject of ergonomics,
an editorial entitled “Ergonomic Disorders” appeared in the May
2. BarbaraA. Silverstein et al. Hand Wrist Disorders Among Investment
Cast Plant Workers, 12 J. Hand Surgery 838 (1987); See also, Thomas J.
Armstrong et al. Ergonomic Considerations in Hand and Wrist Tendonitis, 12
J. Hand Surgery 830 (1987); Victoria R. Masear et al., An Industrial Cause of
Carpal Tunnel Syndrome, 11A J. Hand Surgery 222 (1986); Nortin M. Hadler,
Cumulative Trauma Disorders: An latrogenic Concept, 32 J. Occupational
Medicine 38 (1990).
|
j
5
1995 publication of The Journal of Hand Surgery which “urge[d]
Government to exercise restraints in [prematurely] considering
regulations designed to reduce the incidence” of ergonomic
disorders. (App. 91a). Within this context, OSHA continues to
struggle to address workplace ergonomic issues.
2. OSHA Attempts Ergonomic Rulemaking
As stated above, in 1991, forthe first time, OSHA formally
placed ergonomic rulemaking on its regulatory agenda by
publishing in the Federal Register an advanced notice of
proposed rulemaking. (App. 79a). Simultaneously, on June 21,
1991, OSHA sent a draft copy of questions for comment related
to ergonomics to over two hundred parties such as labor
organizations, trade associations, occupational groups and
members of the ergonomic community. On April 17, 1992,
despite requests from labor organizations to issue emergency
ergonomic temporary standards, OSHA determined not todo so.
(App. 84a-85a).
3. Ergonomics, OSHA Act Reform and Congress
In an effort to speed ergonomic rulemaking (and to amend
the OSH Act), Representative Ford (D. Michigan) filed a bill
commonly known as “The OSHA Reform Act”, HR 1280. (The
Senate counterpart was S 575, the “Comprehensive
Occupational Safety and Health Act of 1993”). Contained within
that bill were specific provisions dealing with ergonomics. Upon
passage, the Reform Bill would have required OSHA to, among
other things, promulgate an ergonomic standard within two (2)
years of enactment. This Bill was never enacted by the Congress.
6
C. The New Hampshire Area Director Engages in His Own
Rulemaking: the NH Ergonomic Local Emphasis Program
In October, 1991 in apparent response to a 1986-1987 report
published by the New Hampshire Bureau of Workers
Compensation (which stated that of the 76,000 workers’
compensation claims filed in New Hampshire during that period,
226 could be characterized as repetitive trauma injuries), and in
total disregard of the then ongoing OSHAergonomic rulemaking
procedure, the New Hampshire OSHA Area Director David May
authorized a Local Emphasis Program for the inspection of
employers in New Hampshire with allegedly high incidences of
multiple movement disorders. (App. 104a). In furtherance of
that program, on December 31, 1992, the Area Director obtained
a computer printout from the New Hampshire Bureau of
Workers’ Compensation detailing claims or first reports of
injury/illness forall New Hampshire employers. From that data,
the Area Director developed a list of employers whose
employees, in his opinion, had filed workers’ compensation
claims based on incidences of multiple movement disorder.
Based upon the New Hampshire OSHA Area Director’s
quantitative calculations, Sturm, Ruger was targeted for
inspection.
D. The 1993 Inspection of the Sturm Ruger Facility
On August 17, 1993, OSHA Compliance Safety and Health
Officer (“CSHO”) Donald De Wees arrived at the Sturm, Ruger
facility and presented Sturm, Ruger representatives with an
employee complaint received by the OSHA New Hampshire
Area Office alleging poor air quality and housekeeping practices
at Sturm, Ruger. DeWees also presented Personnel Director
Lynn Merrill a letter, dated August 17, 1993, from OSHA’s Area
Director, stating that Sturm, Ruger’s facility had been scheduled
for inspection in accordance with the New Hampshire
Ergonomic LEP. (App. 104a). This letter, in describing the New
Hampshire Ergonomic LEP, referred to “voluntary guidelines
... to assist employers in developing abatement programs for
ergonomic hazards” and noted that the Program consisted of four
elements, including “worksite analysis, hazard prevention,
medical management and education.”
DeWees demanded entry and requested copies of Sturm,
Ruger’s OSHA Form 200 (Log of Occupational Injuries and
Illnesses) and Form 101 (First Reports of Injuries Forms) for the
period 1988 to 1992. Sturm, Ruger granted entry to De Wees to
investigate the air contaminant complaint without requiring
OSHA to obtain a warrant (as had been Sturm-Ruger’s long-
standing practice not to require a warrant) and provided De Wees
with the documentation he requested. After testing, the alleged
air quality violations were found to be without merit. Certain
alleged housekeeping violations were noted, citations were
subsequently issued, and ultimately that matter was amicably
and voluntarily resolved without the necessity of litigation.
On November 12, 1993, De Wees returned and requested
that Sturm, Ruger complete an “Ergonomics Questionnaire”.
(App. 109a). That questionnaire began: “Collection of
information for ergonomic cases involving citations.” After
reviewing the questionnaire, De Wees was advised that Sturm
Ruger was going to consult with its counsel.
E. The Issuance of the Administrative Subpoena
DeWees reappeared at Sturm, Ruger’s facility on January
10, 1994. He asked for the completed questionnaire and
supporting documentation. He was advised that Sturm, Ruger
did not intend to respond to this questionnaire or produce any
documentation and he was informed that, until further notice,
Sturm, Ruger would no longer voluntarily cooperate with the
OSHA ergonomic inspection program. On January 11, 1994,
DeWees served a subpoena signed by the Area Director upon
8
Sturm, Ruger. (App. 107a). The subpoena requested a broad list
of documents directed toward ergonomics and included a
questionnaire. In response, Sturm, Ruger served a Freedom of
Information Act request upon the OSHA New Hampshire Area
Director seeking information related to the New Hampshire
Ergonomic LEP.
On January 19, 1994, Sturm, Ruger’s attorney wrote the
OSHA Area Director regarding Sturm, Ruger’s willingness to
cooperate with OSHA regarding the New Hampshire Ergonomic
LEP, provided OSHA would agree that any information supplied
would not be used as the basis for the imposition of civil penalties
or fines. (App. 95a). Sturm, Ruger’s position was consistent with
a prior employee complaint inspection of Sturm, Ruger wherein
OSHA stated it had no authority to issue any citations for alleged
ergonomic hazards within Sturm, Ruger’s facility (because there
was no Standard or any authority under the general duty clause),
a local emphasis program then ongoing in the State of Maine
(which emphasized voluntary compliance), and the OSHA
voluntary special emphasis program addressing ergonomic
issues in the meatpacking industry that had been initiated by the
Secretary in 1990. The Area Director would not agree with this
request, a position seemingly inconsistent with OSHA’s letter of
August 17, 1993 announcing the ostensibly voluntary nature of
the LEP. The Area Director confirmed that the LEP was a targeted
enforcement action and nota voluntary program.
On May 27, 1994, following failed negotiations between
Sturm, Ruger’s legal counsel, the OSHA Local Area Director and
United States Department of Labor attorneys, OSHA, through
Robert B. Reich, Secretary of Labor, applied to the United States
District Court for the District of New Hampshire for an Order
enforcing its administrative subpoena. On July 5, 1994, while the
subpoena enforcement action was pending, OSHA issued a
willful citation and imposed a penalty of $9,000 on Sturm, Ruger
9
for its failure to provide Form 101s and the Log 200 for calendar
year 1993. (App. 99a). Notably, at no time prior to July 5, 1994
did OSHA make a request to Sturm, Ruger limited to the Form
101s and the Log 200 for calendar year 1993.’
F. The Decision of the Magistrate Judge
On March 13, 1995, after multiple oral arguments and
submission of multiple briefs, United States Magistrate Judge
William H. Barry, Jr. issued a Report and Recommendation
denying the Secretary of Labor’s Application for enforcement of
its administrative subpoena. (App. 42a). The Magistrate found
that “(a)s defendant has pointed out, at the time OSHA sought
certain documents from the defendant by use of a subpoena,
OSHA had not promulgated any standards pertaining to
ergonomics or were any in place from Congressional
legislation.” (App. 49a). The Magistrate added that “(h)eedful of
the already complicated requirements associated with being in
business, employers cannot be expected to adhere to policies or
procedures not properly authorized. Irrefragably, allowing such
unauthorized review or practices by government agencies would
create “ ‘unbridled discretion’ in the hands of inspection officers
(citation omitted).” (App. 49a). Accordingly, the Magistrate
concluded that OSHA’s issuance of a subpoena was “without
authority or legal support.” (App. 56a). The Secretary of Labor
subsequently filed Objections to the Report and the
Recommendation. (Cir. App. 00008).
3. In September 1994, OSHA issued a preliminary draft of its ergonomic
standard. However, in June 1995, in part based upon confrontations with the
new Congress, and the inherent difficulties of formulating an acceptable
standard, the titular head of OSHA, Assistant Secretary of Labor Joseph Dear,
notified the public that OSHA would not be issuing an ergonomic standard. The
OSHA Local Area Director has terminated the NH Ergonomic LEP. Despite
the same, OSHA continues to insist upon enforcement of its subpoena.
10
G. The Decision of the District Court
On August 4, 1995, without the benefit of oral argument,
United States District Court Judge Steven J. McAuliffe entered
an Order rejecting Magistrate Barry’s Report and
Recommendation and enforcing the Secretary of Labor’s
administrative subpoena. (App. 14a, 15a). Judge McAuliffe,
ignoring Sturm, Ruger’s argument that the NH Ergonomic LEP
was a circumvention of the lawful rulemaking process
prescribed by Congress, concluded that “the Secretary issued the
subpoena for a proper purpose authorized by Congress, the
information sought is relevant to that purpose and adequately
described in the subpoena, and the Secretary followed statutory
procedures in issuing the subpoena.” (App. 39a). He also found
that the citation, although arguably not lawful, was improperly
before him. (App. 38a). Judgment with respect to this Order was
entered on August 7, 1995. (App. 14a). On or about August 16,
1995, Sturm Ruger filed its Notice of Appeal. (Cir. 00221 et
seq.).
H. The Decision of the Court of Appeals
On May 14, 1996, the United States Court of Appeals for the
First Circuit, inan Opinion by Circuit Judge Selya, affirmed the
ruling of the district court. (App. la). The court declined to
address the issue as to whether the New Hampshire Ergonomic
LEP was, in fact, an improperly implemented substantive rule
initiated without notice and comment, circumventing
established APA and OSHA rulemaking procedures, and, in
so doing, divorced the enforcement of the administrative
subpoena from the suspect OSHA inspection program. In effect,
the court held that the motivation for the issuance of the
subpoena was irrelevant in deciding whether the subpoena was
issued for a purpose authorized by Congress. Additionally, the
Court affirmed the district court’s decision, on jurisdictional
grounds, not to entertain the citation and penalty vacation issue.
(App. 12a-13a).
————E——E_—E
11
REASONS FOR GRANTING THE WRIT
Congress has entrusted OSHA with broad investigative
powers while, at the same time, placing special obligations upon
OSHA to promulgate, in accordance with prescribed procedures,
health and safety standards which take into consideration the
views of stakeholders and other interested persons. In this case,
OSHA improperly exercised its enforcement authority because
itestablished a broad based inspection program targeting select
employers for an investigation in an attempt to impose an ad hoc
ergonomic standard upon them, without formal rulemaking.
This misuse of OSHA’s investigative powers is especially
troubling because ergonomics is a subject which enjoys no
national consensus and covers an extremely wide variety of
alleged hazards. Thus, the enforcement program is an
extraordinary use (and abuse) of government power which
directly impact rights granted under the Fourth and Fifth
Amendments to the United States Constitution, and
considerations of fundamental fairness. See Donovan vy. Lone
Steer, Inc., 464 U.S. 408, 415 (1984). Thus, for the following
reasons, this Court should grant the writ.
First, judicial enforcement of an administrative subpoena
issued pursuant to an enforcement program, which did not
comply with Congressional rulemaking requirements, is an
abuse of process. United States v. Powell,375 U.S. 48,58 (1964);
United States v. Comley, 890 F.2d 539, 543 (ist Cir. 1989). Itwas
error for the First Circuit Court of Appeals to segregate the
enforcement program from the subpoena. By upholding judicial
enforcement of the Sturm, Ruger subpoena, the circuit court has
established a precedent which will allow administrative
agencies to create and enforce “rules” which have not been
authorized by Congressional process and have not been
subjected to the quasi-legislative process established through
the OSHActand the APA’s notice and comment provisions. Such
12
a precedent grants executive administrative agencies carte
blanche tocreate and enforce rules without legislative or judicial
control, and runs afoul of the balance of powers envisioned by
the United States Constitution between Congress and the
executive. This is especially troubling in the instant matter
because OSHA can now do by investigation what it failed to do
by rulemaking.
Second, OSHA’s reliance upon the General Duty Clause,
§ 654(a)(1), toestablish broad based inspection programs gives
that agency unbridled discretion to act in an arbitrary manner and
allows it to avoid its Congressional mandate to promulgate
standards. Kastalon, Inc., 1986 OSHD (CCH) 27643 (OSHRC
1986). Without standards, employers will not have sufficient
notice of their obligations. This situation creates a paradox:
when OSHA is unable to promulgate a rule because of a lack of
consensus, it can create local enforcement programs and
circumvent rulemaking.
Third, the Court should take this opportunity to announce a
limited rule, to ensure a person’s constitutional right to require
compulsory process without fear of penalty, that courts have the
inherent power to vacate penalties imposed by unconstitutional
agency action without requiring the victim to exhaust its
administrative remedies before the miscreant agency. See
Leedom vy. Kyne, 358 U.S. 184(1958).
13
I.
JUDICIAL ENFORCEMENT OF AN ADMINIS-
TRATIVE SUBPOENA WHICH WAS ISSUED IN
FURTHERANCE OF AN ILLEGAL AND IMPROPER
AGENCY ENFORCEMENT PROGRAM IS AN ABUSE
OF PROCESS.
A. The Subpoena Was Not Issued for a Proper Purpose
In order for acourt to enforce an administrative subpoena,
the agency must first show that (1) the subpoena is issued for a
proper purpose authorized by Congress; (2) the information
sought is relevant to the authorized purpose; (3) adequately
described; and (4) proper procedures were followed in issuing
the subpoena. See United States v. Morton Salt Co., 338 U.S. 632,
652 (1950); Oklahoma Press Publishing Co. v. Walling,327 U.S.
186, 208 (1946); United States v. Comley, 890 F.2d 539, 541 (1st
Cir. 1989). The agency bears the burden of demonstrating that its
subpoena meets these requirements. Comley, 890 F.2d at 541-
542.
In this case, OSHA states that it met this burden because it
has broad authority to issue administrative subpoenas to
investigate matters related to the health and safety of employees;
that repetitive motion injuries toemployees are a proper area of
inquiry; that Sturm, Ruger and other New Hampshire employers
were properly targeted for inspections; that the subpoena seeks
information relevant to further that inquiry, that the documents
are adequately described; and that proper procedures were
followed in issuing the subpoena.
Sturm, Ruger responds that the subpoena could not have
issued for a purpose authorized by Congress because Congress
did not authorize OSHA to devise targeted inspection programs
14
that circumvent Congressional mandates requiring formal
rulemaking; that the NH Ergonomic LEP is, in effect a
substantive rule, promulgated in violation of the OSH Act and
the APA, and that any subpoena issued in furtherance of the NH
Ergonomic LEPis therefore improper. If the Fourth Amendment
has any meaning, Sturm, Ruger is entitled to protection from this
arbitrary and improper action.
A subpoena issued for an improper purpose is not entitled to
judicial enforcement. United States v. Powell, 379 U.S. 48
(1964). In Powell, the Court noted that, during an IRS summons
enforcement hearing, a court may “inquire into the underlying
reasons” for issuing the summons, in order to insure that the
court's process is not abused. The Powel/ Court continued:
Such an abuse would take place if the
summons had been issued for an improper
purpose, such as to harass the taxpayer or to
put pressure on him to settle a collateral
dispute, or for any other purpose reflecting
on the good faith of the particular
investigation.
Powell, 379 U.S. at 58 (emphasis supplied). Thus, when an
agency requests judicial enforcement of a subpoena issued for an
improper purpose, such enforcement constitutes an abuse of
process. Although the Supreme Court has only addressed the
improper motive defense in IRS actions, the circuit courts have
also applied or recognized the doctrine with respect to other
administrative agencies. United States v. Comley, 890 F.2d 539
(ist Cir. 1989) (investigation motivated by bad faith would not
justify enforcement of Nuclear Regulatory Commission's
subpoena); Shasta Minerals & Chemical Company v. Securities
and Exchange Commission, 328 F.2d 285 (10th Cir. 1964)
(subpoena issued for purpose of systematic persecution and
15
harassment would not be entitled to judicial enforcement).
The New Hampshire Ergonomic LEP was a substantive
rule* adopted without notice or comment and in violation of the
OSH Act and the APA.* The fact that OSHA does not call the
program a “rule” is of no import. The Fifth Circuit Court of
Appeals recognized, in United States Department of Labor v.
Kast Metals Corporation, 744 F.2d 1145 (Sth Cir. 1984), thata
court “is not bound by an administrative agency's classification
of its own action,” so that “an agency cannot outflank either the
strictures of its enabling legislation or the APA's rulemaking
framework by definitional fiat.” Kast Metals, 744 F.2d at 1149.
Thus, a rule by any other name is still a rule.° The Kast Metals
court further distinguished between substantive and procedural
rules:
4. A“rule” is defined under the APA as: “the whole or part of an agency
Statement of general or particular applicability and future design to
implement, interpret, or prescribe law or policy”, 5 U.S.C. § 551(4).
5. Specifically, the APA requires that administrative agencies provide
notice of proposed substantive rulemaking and an opportunity for public
comment prior to the promulgation, amendment or modification of a rule. 5
U.S.C. § 533. The OSH Act also provides for notice and comment. 29 U.S.C.
§ 655(b). In addition, the OSH Act provides that the Secretary may, as a
preliminary step and prior to commencing the official rulemaking process,
request the recommendations of an advisory committee. 29 U.S.C.
§ 655(b)(1).
6. The Kast Metals court recognized that the question of whether an
agency action constitutes a “rule” within the meaning of the APA is significant
because it not only implicates notice and comment requirements, but also
affects the weight given to such agency action upon judicial review. Kast
Metals, 744 F.2d at 1152. This is expecially important where there is a risk of
citations being issued. See Pepperidge Farm, Inc., 1993 WL 132982 (OSHRC
March 25, 1993); Beverly Industries, Inc., OSHRC Docket Nos. 91-3344 eral.
(Oct. 17, 1995).
eee
16
When a proposed regulation of general
applicability has a substantial impact onthe
regulated industry, or an important class of
the members or the products of that industry,
notice and opportunity for comment should
first be provided.
Kast Metals, 744 F.2d at 1153 (citations omitted) (emphasis in
original). Furthermore, as noted by the District of Columbia
Circuit Court of Appeals in American Hospital Association v.
Bowen, 834 F.2d 1037 (D.C Cir. 1987), the exceptions to the
APA’s notice and comment requirements are to be narrowly
construed. The NH Ergonomic LEPis a substantive rule because
it seeks to impose new burdens upon targeted employers.
The ergonomic program established in New Hampshire
significantly impacted the substantive rights of the targeted
employers because the purpose of the program was to impose
additional affirmative obligations on select employers. Thus, the
New Hampshire Ergonomic LEP is distinguishable from other
inspection programs which have been upheld as “rules of agency
organization, procedure or practice” and exempt from the notice
and comment requirements under 5 U.S.C. § 553(b)(A), because
those inspection programs imposed no new substantive burden
on targeted employers.’ Donovan v. Wollaston Alloys, Inc., 695
F.2d 1 (1st Cir. 1982) (enforcement of warrant upheld for
7. Certain investigatory acts are also exempted from the rulemaking
requirements of the APA. Environmental Defense Fund, Inc. v. Costle, 636
F.2d 1229 (D.D.C. 1980). Notice and comment are not required for “agency
investigatory activities preliminary to promulgating regulations,” and which
have “no immediate or direct effect on the [targeted] Companies or the general
public,” and do not “require any action on the part of the public or the
Companies.” /d. at 1255. Thus, a distinction can be drawn between a rule
which imposes new, substantive obligations on employers, and an
investigatory program which merely seeks information that may eventually
lead to formal rulemaking.
17
established inspection program focused on high-hazard industry
compliance with OSHA standards); Kast Metals, supra
(enforcement of warrant upheld because procedural safety
inspection ofa steel castings plants did not substantially impact
rights of employers because no imposition of new burdens),
Stoddard Lumber Company v. Marshall, 627 F.2d 984 (9th Cir.
1980) (enforcement of OSHA inspection warrant upheld where
injury rate in lumber industry was 1.8 times the national injury
rate and program did not impose any new standard on targeted
employer).
By contrast, the sole subject matter of the Sturm, Ruger
subpoena is “ergonomic hazards,” a subject which was, at the
time, in the process of rulemaking. Because OSHA must concede
that the New Hampshire Ergonomic LEP was the topic of
substantive rulemaking, this Court, unlike those in Wollaston
Alloys, Kast Metals and Stoddard Lumber, need not wrestle with
the issue of whether this inspection program is a substantive or
procedural rule. The fact that there is no extant ergonomic rule
and there was ongoing rulemaking to establish national
ergonomic standards is dispositive: the New Hampshire
Ergonomic LEP was a substantive rule and required notice and
comment prior to its implementation.
As is obvious, OSHA instituted the New Hampshire
Ergonomic LEP in contravention of the notice and comment
provisions of the APA and it's own enabling statute. The New
Hampshire Ergonomic LEP was a substantive rule entitling the
public to notice and opportunity for comment prior to its
implementation. Thus, the Sturm, Ruger subpoena was
authorized to further the unlawful New Hampshire Ergonomic
LEP, and was not issued for a pruper purpose. Absent a lawful
basis, a subpoena issued pursuant to an unauthorized program,
initiated with blatant disregard of the mandatory notice and
comment requirements, is not entitled to enforcement. See Civil
Aeronautics Board v. DeltaAir Lines, Inc., 367 U.S. 316 (1961).
18
B. OSHA Exceded its Congressional Authority When it
Established the New Hampshire Ergonomic LEP.
An administrative agency possesses only those powers and
duties delegated to it by Congress. The Supreme Court has
repeatedly held that when an agency acts beyond the sphere of its
delegation, it acts illegally. Civil Aeronautics Board v. Delta Air
Lines, Inc., 367 U.S. 316 (1961) (alteration of a certificate of
public convenience and necessity without formal notice or
hearing not authorized by Congress), Social Security Board v.
Nierotko, 327 U.S. 358 (1946) (holding that the judiciary and not
the agency decides the limits of its statutory power); Stark v.
Wickard, 321 U.S.288 (1944) (power of administrative agencies
is limited by the authority granted).
Without question, OSHA was acting outside of its
Congressional authority when itestablished the New Hampshire
Ergonomic LEP. By not following its own enabling statute,
which requires rulemaking prior to instituting and enforcing a
substantive rule, OSHA was acting outside of its Congressional
authority. Accordingly, the creation of the New Hampshire
Ergonomic LEP constitutes illegal agency action. It must follow
that any subpoena issued in furtherance of that illegal agency
program is improper and not entitled to judicial enforcement as
it is not authorized by Congress and not issued for a proper
purpose. Thus, judicial enforcement of the Sturm, Ruger
subpoena is an abuse of process.
19
Il.
THE GENERALDUTY CLAUSE WAS NOT CREATED
BY CONGRESS TO ENABLE OSHA TO EVADE ITS’
RULEMAKING RESPONSIBILITIES UNDER THE OSH
ACT AND THE APA, AND, THUS, DOES NOT SAVE THE
NH ERGONOMIC LEP OR SUBPOENA ISSUED
PURSUANT TO THAT PROGRAM.
Both the circuit court and OSHA, in the proceedings below,
ignored Sturm, Ruger’s argument that the New Hampshire Local
Emphasis Program was a substantive rule. Instead, OSHA
claimed, and the court agreed, that the Area Director had
authority, under the General Duty Clause, § 654(a)(1), toengage
in this enforcement action. (However, both failed to appreciate
the rule-like nature of the program, and its general application to
a wide class of employers in the absence of a standard or
employee complaint.) Congress, however, in no way meant for
this section to supplant rulemaking required by both the APA and
the OSH Act. Moreover, to allow such broad and arbitrary
enforcement actions is tantamount to granting a license
permitting any administrative agency with some executive
enforcement power — and bureaucrats at all levels —toreadily
circumvent Congressionally mandated rulemaking procedures.
This is especially troubling in the context of the instant dispute,
where OSHA has failed to complete its rulemaking process, in
part, due to the controversial nature of the subject matter and, in
part, due to Congressional opposition.
As previously noted, under the OSH Act, employers have
several duties and responsibilities. Under § €54(a)(1),
employers must furnish employment anda place of employment
which are free from recognized hazards* causing or likely to
8. The term “recognized hazards” received a concise definition in a
floor speech by Representative Daniels when he proposed an amendment
(Cont'd)
20
cause death or serious physical harm to employees. Under
§ 654(a)(2) employers are under a duty to comply with
occupational safety and health standards promulgated under the
OSH Act. See § 655(a)-(c) (outlining specific rulemaking
procedures). To ensure compliance, Congress granted OSHA,
under § 657(a), the right toenter anemployer’s place of business
to inspect and investigate pertinent conditions, under § 657(b),
to require the production of evidence and to have persons answer
questions under oath, and under § 657(f), to conduct inspections
in response to employee complaints. In the instant case, the
inspection was not conducted under § 657(f), as there was no
employee complaint. As OSHA has yet to promulgate an
ergonomic standard under § 655(a)-(c), the inspection was not to
determine compliance with § 654(a)(2). Rather, the Area
Director conducted a targeted, involuntary administrative
inspection program, limited to “ergonomic hazards”. In effect,
on the pretext of determining compliance with § 654(a)(1),
OSHA evaded its rulemaking responsibilities by developing a
general administrative inspection program, limited to the
discovery and elimination of ergonomic hazards.
(Cont'd)
which became the present version of the General Duty Clause:
A. Arecognized hazard is acondition that is known to
be hazardous, and is known not necessarily by each and
every individual employer but is known taking into
account the standard of knowledge in the industry. In
other words, whether or nota hazard is “recognized” is
a matter for objective determination; it does not
depend on whether the particular employer is aware of
it. 116 Cong. Rev. (Part 28) 38377 (1970). The
standard would be the common knowledge of safety
experts who are familiar with the circumstances of the
industry or activity in question.
National Realty And Construction Company, Inc. v. OSHRC, 489 F.2d 1257,
1265 atn. 32 (D.C. Cir. 1973).
21
In Kastalon, Inc., 1986 OSHD (CCH) 27643 (OSHRC
1986), OSHA sought to use § 654(a)(1) to cite an employer for
allegedly exposing its employees to a suspected human
carcinogen that had been the subject of an invalidated OSHA
standard. Noting that it was “troubled, as were the judges, by the
Secretary's apparent attempt to enforce an invalidated standard
through citations under the general duty clause,” the OSHRC
further stated:
The Act’s legislative history shows that
Congress intended that the Secretary would
primarily rely on specific standards, rather
than the broad mandate of the general duty
clause, to seek the correction of workplace
hazards. See S. Rept. No. 91-1282, 9st
Cong., 2d Sess. (1970) at 9-10, reprinted in
Senate Committee on Labor and Public
Welfare, 92 Cong., Ist Sess. Legislative
History of the Occupational Safety and
Health Act of 1970, at 149-50 (Comm. Print,
1971); remarks of Rep. Steiger on conference
bill, Id. at 1217 (“general duty requirements
should not be used set ad hoc standards”);
Brisk Waterproofing Co., 73 OSAHRC 30/
El, 1 BNA OSHC 1263, 1264, 1973-74 CCH
OSHD 16,345, p. 21,261 (No. 1046, 1973).
“Reliance upon the general duty clause was
discouraged because to do so would provide
little advance warning of what specifically is
required in order that employers could
maintain a safe and healthful workplace”
_... Particularly in a situation like this,
where a standard has been proposed and
rulemaking proceedings have been
conducted, the Secretary’s failure to
22
complete the rulemaking, coupled with his
issuance of citations under the general duty
clause, do not promote the goals of “fairness
and mature consideration of rules of general
application” that the Act’s rulemaking
provisions were designed fo foster.
Id. at 35,971-35,971 (citing NLRB v. Wyman Gordon Co., 394
U.S. 759, 764 (1969)).° While the issues herein are not identical
to those presented to the OSHRC in Kastalon, supra, the
principles are applicable, and the result must be the same — a
finding that OSHA’s conduct cannot be sustained.
This is not to say OSHA can never perform an inspection
pursuant to an administrative inspection program under
§ 654(a)(1) where it has engaged in rulemaking but failed to
enact a standard. If, unlike, the instant case, there was a national
consensus standard clearly identifying the recognized hazard
posing significant risk toemployees and agreed upon abatement
methods to eliminate exposure to the hazard, there would not be
the same unfair imposition of a substantive burden found in this
case. Forexample, inAmerican Smelting and Refining Company
v. OSHRC, 501 F.2d 504 (8th Cir. 1974), OSHA cited an
employer for violating § 654(a)(1) for overexposing employees
to lead. Although there was no lead OSHA standard and OSHA
was undergoing rulemaking, lead had long been understood to be
a recognized industrial hazard and there has been an accepted
nationally recognized permissible exposure limit for many years
prior to the inspection.
Obviously, ergonomic hazards do not rest on the same
footing as lead hazards. Not only is there no present OSHA
9. The citation was ultimately vacated by the OSHRC because OSHA
failed to establish that a “suspected human careinogen” poses significant risk
of harm to employees and is arecognized hazard.
ee
23
standard, there has never been anywhere near a national
consensus on the subject of ergonomics. And for that reason,
rulemaking has stalled. In addition, unlike American Smelting,
supra, where a single identifiable hazardous substance is in
issue, almost all forms of human industry create a potential
ergonomic hazard. Accordingly, for the reasons set forth in both
Kastalon, Inc., supra, and American Smelting, supra, as well as
overriding policy considerations, the inspection program must
be held invalid and subpoena unenforceable. '®
Il.
THIS COURT HAS JURISDICTION TO VACATE THE
CITATION ISSUED TO STURM, RUGER FOR FAILURE
TO COMPLY WITH THE SUBPOENA.
During the pendency of the subpoena enforcement action,
OSHA issued Sturm, Ruger a citation for refusing to turn over
certain records included within the administrative subpoena.
This action is unconstitutional, as it violates express holdings of
this Court. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 416
(1984) (an employer may “question the reasonableness of [a]
subpoena before suffering any penalties for refusing tocomply
with it, by raising objections in an action in the district court”);
See v. City of Seattle, 387 U.S. 541, 545 (1967) (same);
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). See
also Brock v. Emerson Electric Co. Electronic Space Div., 834
F.2d 994, 997 (11th Cir. 1987) (“Under the Fourth Amendment,
an employer may require OSHA to issue a subpoena and may
10. In light of the fact courts have deemed promulgated OSHA standards
unenforceable and void when they are vague, (Kropp Forge Company v.
Secretary of Labor, 657 F.2d 119 (7th Cir. 1951) cited in Secretary of Labor v.
R. Zoppo Co., Inc., OSHRC Docket No. 94-1338 (August 16, 1995)), how can
OSHA's underlying targeted inspection and enforcement action be deemed
lawful where there is neither a standard nor consensus?
24
seek judicial involvement by refusing to honor the subpoena
prior to its judicial enforcement. The employer may not be given
a citation for asserting this constitutional right.”). Accordingly,
both the district court and the circuit court agreed that “it is
questionable whether OSHA citations issued for failure to
comply with a subpoena that the employer is in the process of
challenging may be enforced.” (App. 12a, 37a). The district
court concluded that “the validity of the citation is certainly
suspect.” (App. 37a).
However, both the district court and the court of appeals also
concluded that although it is unlawful to penalize a party for
resort to compulsory judicial process, they nonetheless lacked
primary jurisdiction to hear the issue, and could only exercise
appellate jurisdiction. While these courts are correct that under
ordinary circumstances, original jurisdiction to hear cases
involving contested citations rests with OSHA, in the instant
case, this Court should exercise its inherent power to remedy a
constitutional violation because: 1) the conduct of the agency in
penalizing the employer for asserting its rights was
unconstitutional; 2) the agency itself was seeking the aid of the
court to enforce the subpoena, and 3) the parties were already
properly before the court. Thus, in essence, Sturm, Ruger found
itself before the district court at OSHA’s behest and was denied
the opportunity then and there to challenge the constitutionality
of OSHA’s actions pursuant to the very rights granted by this
Court. This Court should take this opportunity to establish a
judicial remedy for violation of this Court-recognized right. In
Leedom v. Kyne, 358 U.S. 184 (1958), this Court held that where
a “right” has been given, “it must be held that. . . thatright [may]
be enforced, and ‘the courts ... encounter no difficulty in
fulfilling its purpose’ (citation omitted),” even without
exhaustion of the administrative process. Accordingly, as it
would be improper to deny the respondent judicial relief, this
Court should extend its jurisdiction to vacate the citation and
penalty.
25
CONCLUSION
For the foregoing reasons, the Court should grant the
petition for a writ of certiorari.
Respectfully submitted,
RICHARD D. WAYNE
Counsel of Record
MAUREEN K. BOGUE
LISA R. SCHNEIDER
HINCKLEY, ALLEN
&SNYDER
Attorneys for Petitioner
One Financial Center
Boston, Massachusetts 02111-2625
(617) 345-9000
la
APPENDIX A— OPINION OF THE UNITED STATES
COURT OFAPPEALS FOR THE FIRST CIRCUIT
DATED MAY 14, 1996
UNITED STATES COURT OFAPPEALS
FOR THE FIRST CIRCUIT
No. 95-1918
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
STURM, RUGER & COMPANY, INC.,
Responent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Richard D. Wayne with whom Willard Krasnow, Lara
SanGiovanni, and Hinckley, Allen & Snyder were on brief, for
appellant.
2a
Appendix A
Frederick D. Braid, Walter J. Johnson, Sharon N. Berlin,
Rains & Pogrebin, P.C., Daniel J. Popeo, and David A. Price on
brief for Washington Legal Foundation, amicus curiae.
John Shortall, Attorney, United States Dep’t of Labor, with
whom Joseph M. Woodward and Ann Rosenthal, United States
Dep't of Labor, Paul M. Gagnon, United States Attorney, and
Gretchen Leah Witt, Assistant United States Attorney, were on
brief, for appellees.
May 14, 1996
SELYA, Circuit Judge. Onthe surface this case appears to
touch a sensitive nerve: how the Occupational Safety and Health
Act(OSHAct), 29 U.S.C. §§ 651-678 (1994), interfaces with the
field of ergonomics (the study and design of workplace
environments and job tasks and their effects on employee
health). Indeed, the respondent-appellant, Sturm, Ruger & Co.
(Sturmco), and the amicus, the Washington Legal Foundation
(WLF), deliberately frame the appeal in these terms; they entreat
us to declare that the Occupational Safety and Health
Administration (OSHA) lacks the authority to regulate
ergonomics in the workplace through the medium of the OSH
Act's general duty clause, id. § 654(a)(1), and to reverse the
district court's order on that basis. We turn a deaf ear to these
blandishments because close perscrutation of the record
discloses that they are premature. This is no more than arun-of-
the-mine administrative subpoena enforcement proceeding
which presents no legitimate opportunity to dwell on cosmic
truths.
Deeming it unwise to make a long prologue and to be short
in the story itself, cf. 2 Maccabees 2:32, we omit any further
introduction and proceed directly to the particulars.
)
’
;
3a
Appendix A
I. BACKGROUND
In August 1993 an OSHA representative arrived at
Sturmco’s factory in Newport, New Hampshire, to look into an
employee complaint about air quality. But the visitor did more
than test for air contaminants; he also informed Sturmco of a
Local Emphasis Program (LEP) inaugurated by OSHA's area
director. The LEPidentified certain New Hampshire employers,
based on the incidence of particular types of workers’
compensation claims filed with a state agency, whom the area
director believed might have an unusually high number of
employees afflicted with multiple movement disorders. The
OSHA emissary reported that Sturmco had been so identified and
requested that it voluntarily produce certain records detailing
work-related injuries and illnesses. Sturmco complied.
In November of the same year, the OSHA functionary
returned to videotape employees engaged in one of Sturmco’s
manufacturing operations. He requested that the company
complete a questionnaire that related to ergonomic issues at the
factory. Sturmco took the matter under advisement and, in
January, informed OSHA that it would not answer the
questionnaire.
OSHA then served a subpoena demanding that Sturmco
produce a myriad of documents concerning manufacturing
processes, employee training, and on-the-job injuries. The
company fenced with the agency, saying that it would comply
with the subpoena only in the event that OSHA agreed not to use
any of the resultant information to impose punitive sanctions.
Refusing to accede to this condition, OSHA invoked 29 U.S.C.
§ 657(b) and obtained enforcement of the subpoena in the federal
district court. See Reich v. Sturm, Ruger & Co., 903 F. Supp. 239
(D.N.H. 1995). Sturmco appeals. We affirm.
4a
Appendix A
Il. SUBPOENA ENFORCEMENT
Although the parties — especially the respondent and the
amicus — expend a great deal of energy debating the merits of
ergonomic research and regulation, this exegesis is largely
beside the point. The principal question before this court is much
more mundane: did OSHA have the authority to issue the
administrative subpoena? We hold that it did.
A
An administrative subpoena is not self-executing and is
therefore technically nota “search.” It is at most a constructive
search, amounting to no more than a simple direction to produce
documents, subject to judicial review and enforcement. See
Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 195 (1946);
In re Grand Jury Subpoena Served Upon Simon Horowitz, 482
F.2d 72, 75-79 (2d Cir.), cert. denied, 414 U.S. 867 (1973). Thus,
unlike the subject of an actual search, the subject of an
administrative subpoena has an opportunity to challenge the
subpoena before yielding the information. In the course of that
resistance, the Fourth Amendment is available to the challenger
as a defense against enforcement of the subpoena. See Donovan
v. Lone Steer, Inc., 464 U.S. 408, 415 (1984); see generally Jack
W. Campbell IV, Note, Revoking the “Fishing License,” 49
Vand. L. Rev. 395, 408-09 (1996).
The requirements for enforcement of an administrative
subpoenaare not onerous.’ In order to obtain judicial backing the
1. We note that the subpoena at issue here seeks only corporate
documents, and thus does not raise any of the concerns discussed in /n re
Subpoena of Roger Gimbel, 77 F.3d 593, 596-600 (2d Cir. 1996).
Sa
Appendix A
|
|
agency must prove that (1) the subpoena is issued for a
congressionally authorized purpose, the information sought is
(2) relevant to the authorized purpose and (3) adequately
described, and (4) proper procedures have been employed in
issuing the subpoena. See United States v. Morton Salt Co., 338
U.S. 632, 652 (1950); Oklahoma Press, 327 U.S. at 208; United
States v. Comley, 890 F.2d 539, 541 (istCir. 1989). As long as the
agency satisfies these modest requirements, the subpoena is per
se reasonable and Fourth Amendment concerns are deemed
satisfied. See Oklahoma Press, 327 U.S. at 208. These standards
apply to OSHA subpoenas in exactly the same way that they
apply to subpoenas issued by other agencies. See, e.g., Reich v.
Manganas, 70 F.3d 434, 437 (6th Cir. 1995); Reich v. National
Eng’g & Contr’g Co., 13 F.3d 93, 98 (4th Cir. 1993); Dole v.
Trinity Indus., Inc., 904 F.2d 867, 871 (3d Cir.), cert. denied, 498
U.S. 998 (1990); Donovan v. Union Packing Co. , 714 F.2d 838,
840 (8th Cir. 1983).
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The respondent's central thesis boils down to this: the
subpoena should not be enforced because OSHA issued it
pursuant to an inspection scheme (the LEP) that did not derive
from within OSHA's statutory authority. Sturmco casts this
proposition in two modes. First, it focuses on the inspection
scheme in the forlorn hope that we will apply to this subpoena the
more stringent test applicable to administrative searches,
namely, the requirement that on-site inspections be conducted
pursuant to “reasonable legislative or administrative standards.”
Marshall v. Barlow’s, Inc., 436 U.S. 307, 320 (1978).
a
:
i
'
;
a
2
We will not dance to the respondent's tune. At present,
OSHA is not seeking to conduct an inspection or any other
6a
Appendix A
physical search of Sturmco’s premises, but, rather, merely to
enforce a subpoena duces tecum. ? The Supreme Court has made
it pellucid that subpoenas - as opposed to inspections or other
administrative searches are subject to the minimal standards of
Oklahoma Press and its progeny, not to the more rigorous
Barlow's criteria. See Lone Steer, 464 U.S. at 414. Thus, to the
extent that Sturmco’s animadversions are directed at whether the
LEP drew its essence from areasonable administrative standard,
they have no bearing on the question we must decide.
Cc
In view of the frailty of its first asseveration, Sturmco’s
appeal necessarily stands or falls on its second argument,
namely, whether issuing the subpoena was within OSHA's
statutory authority. We think that it falls.
1. The Statutory Scheme. The OSH Act imposes two
distinct duties on employers. First, employers must comply with
specific workplace health and safety standards established by
OSHA. See 29 U.S.C. § 654(a)(2). To this end, the Act grants
OSHA authority to promulgate such standards .’ See id. § 655.
2. Itis simply not true, as Sturmco seems to suggest, that OSHA may
only issue subpoenas pursuant to inspections based on employee complaints.
As the Eighth Circuit has observed: “The statute does not mandate an
inspection of the premises in order to enforce a limited subpoena to determine
whether there is a probable violation of the law. Indeed, the Secretary should
not be expected to do more than the circumstances require.” Union Packing,
714 F.2d at 840 (citation omitted).
3. Although OSHA has never established health and safety standards
relating specifically to ergonomics, the agency at one point issued an advance
proposed notice of rulemaking, requesting information and comments on
(Cont'd)
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7a
Appendix A
Second, to fill whatever gaps may exist after rules delineating
specific standards have been promulgated, the Act imposes on
employers a general duty to provide “employment anda place of
employment which are free from recognized hazards.” /d.
§ 654(a)(1). OSHA enforces this general duty clause, as it is
called, through case-by-case adjudicative proceedings. See id.
§ 661(i) (establishing administrative adjudication mechanism);
Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 17 (1st Cir.
1984) (holding that the Secretary does not abuse his discretion by
issuing Citations in adjudicative proceedings under the general
duty clause as opposed to establishing specific standards via
rulemaking); see also Reich v. Montana Sulpher & Chem. Co.,32
F.3d 440, 445 (9th Cir. 1994) (noting “OSHA's statutory
obligation to enforce the general duty clause as a minimum
standard”), cert. denied, 115 S. Ct. 1355 (1995); Matter of
Establishment Inspection of Kelly-Springfield Tire Co., 13 F.3d
1160, 1167 (7th Cir. 1994) (acknowledging the Secretary's
authority to enforce the general duty clause); UAW v. General
Dynamics Land Sys. Div., 815 F.2d 1570, 1577 (D.C. Cir.)
(limning the standards OSHA must meet to prove a violation of
the general duty clause), cert. denied, 484 U.S. 976 (1987).
OSHA asserts as authority forthe instant subpoena its power
to investigate possible violations of the general duty clause. Itis
by now apodictic that enforcement of the general duty clause is
a purpose properly authorized by Congress. See, e.g., Montana
Sulpher, 32 F.3d at 449; Kelly-Springfield, 13 F.3d at 1166-67.
(Cont'd)
ergonomics from interested parties. See 57 Fed. Reg. 34,192 (Aug. 3, 1992).
OSHA has yet to promulgate an official notice of proposed rulemaking
adumbrating specific ergonomic standards.
8a
Appendix A
2. “Recognized Hazards”. Inaneffort to make anendrun
around these holdings, Sturmco and WLF question the validity
of OSHA's purpose by positing that ergonomic hazards are not
“recognized hazards” within the purview of the general duty
clause. This initiative features two decisions in which
administrative law judges (ALJs) under the auspices of the
Occupational Safety and Health Review Commission (OSHRC)
refused to enforce citations for particular ergonomic hazards
under the general duty clause. See Beverly Enters., Inc., O9SHRC
No. 91-3344 (A.L.J. 1995); Pepperidge Farm, Inc., OSHRC No.
89-0265 (A.L.J. 1993). Sturmco and WLF insist that these
decisions show that OSHA lacks the rudimentary authority to
regulate ergonomics under the general duty clause. In the
absence of any more specific regulatory authority, they
conclude, OSHA cannot demonstrate a proper purpose for the
issuance of the instant subpoena.
This conclusion is built on shifting sands. In the first place,
neither of the cited ALJ decisions holds that OSHA lacks
authority in all instances to regulate ergonomics under the
general duty clause .‘ They therefore fail to provide convincing
support for the proposition that OSHA will not be able to prove
a violation of the general duty clause in this case. In the second
place — and more important — the respondent’s argument
misconstrues the scope of the judicial inquiry that is appropriate
at this stage.
4. Both decisions are presently on review before OSHRC. In any event,
because the cases are merely first-tier ALJ decisions, they are entitled to no
precedential value before this tribunal. See Matter of Establishment
Inspection of Cerro Copper Prods. Co., 752 F.2d 280, 284 (7th Cir. 1985) (per
curiam) (“An unreviewed ALJ decision does not bind OSHRC or the courts as
precedent.”) (citing cases). Their utility depends solely on the persuasive
power, if any, of their reasoning.
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9a
Appendix A
We have repeatedly admonished that questions concerning
the scope of an agency’s substantive authority to regulate are not
to be resolved in subpoena enforcement proceedings. See FTC v.
Monahan, 832 F.2d 688, 690 (1st Cir. 1987), cert. denied, 485
U.S. 987 (1988); FTC v. Swanson, 560 F.2d 1, 2 (1st Cir. 1977)
(per curiam); SEC v. Howatt, 525 F.2d 226, 229-30 (1st Cir.
1975). Subpoena enforcement proceedings are designed to be
summary in nature, see Comley, 890 F.2d at 541, and an
“agency’s investigations should not be bogged down by
premature challenges to its regulatory jurisdiction,” Swanson,
560 F.2d at 2. As long as the agency's assertion of authority is not
obviously apocryphal, a procedurally sound subpoena must be
enforced. See id. ; see also EEOC v. Kloster Cruise Ltd. ,939 F.2d
920, 923 (11th Cir. 1991).
Refined to bare essence, the respondent’s argument runs
along the following lines. As part of its burden of proving a
violation of the general duty clause, OSHA must show that an
employer failed to keep its workplace free of a recognized hazard
that caused (or was likely to cause) death or serious physical
injury. See General Dynamics, 815 F.2d at 1577; Puffer’s
Hardware, 742 F.2d at 18. Ergonomic hazards, Sturmco argues,
are not such “recognized hazards,” and, therefore, OSHA cannot
carry its burden. Given the early stage of the proceedings, this
argument falters.
To be sure, a debate rages in both legal and medical circles
over the dangers posed by, for example, multiple movement
disorders, as well as over the optimum method(s) by which so-
called ergonomic dangers can be alleviated. But uncertainties of
this sort do not provide a cognizable basis for concluding at this
stage that OSHA would not be able to issue a citation. This is
especially true when, as now, a subpoena is “designed to produce
10a
Appendix A
the very information that may be needed to shed light upon those
questions.” Howatt, 525 F.2d at 230.
3. A Variation on the Theme. WLF comes atthe problem
from another angle. It asserts that once a subpoena is enforced
the chance for an effective challenge evaporates because most
employers are likely to settle with OSHA rather than proceed
through the rigors of the administrative litigation process. As an
initial matter, we doubt that this argument is properly before us.
While amicus briefs are helpful in assessing litigants’ positions,
an amicus Cannot introduce anew argument into acase. See Lane
v. First Nat'l Bank, 871 F.2d 166, 175 (1st Cir. 1989) (explaining
that an amicus may not “interject into a case issues which the
litigants, whatever their reasons might be, have chosen to
ignore”); accord Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 ‘1st
Cir. 1993).
Inallevents, WLF’s argument fails on the merits. It offers no
empirical or statistical evidence in support of its conclusions
about settlement rates. Moreover, it points to no case holding that
the prospective burden of litigation constitutes a cognizable
injury sufficient to breathe life into a pre-enforcement challenge
to agency action notwithstanding the guaranteed availability of
judicial review following final agency action. Put bluntly, WLF
asks us to buy a pig ina poke, and we refuse todo so.
At any rate, we have already rejected a similar argument in
repudiating an estoppel-based collateral attack on an OSHA
citation. In Northeast Erectors Ass'n v. Secretary of Labor, 62
F.3d 37 (ist Cir. 1995), we held that a party did not suffer
substantial harm from being required to raise defenses to a
citation only after the citation had issued. See id. at 40. We also
warned that permitting parties to circumvent the administrative
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Appendix A
process by bringing collateral challenges in the district court
would “subvert Congress’s intent to have such claims reviewed
through the OSH Act’s detailed administrative procedure.” Jd.
4. Recapitulation. We need go no further. OSHA’s
authority to investigate ergonomic conditions in search of
possible general duty clause violations easily passes the
undemanding test for the enforceability of administrative
subpoenas. Were we to succumb to the siren song that Sturmco
sings and stop the subpoena for want of some sophisticated
standard for systemically specifying ergonomic hazards, we
would in effect be requiring OSHA to “charge first and
investigate later.” Montana Sulpher, 32 F.3d at 444. This
tergiversation would stand the administrative enforcement
process on its head and in the bargain would both defy the will of
Congress and ignore the teachings of the Court. We will not
encourage so resupinate an exercise.
D
We must attend to a final detail. While the respondent does
not seriously contend that the documents requested in the
subpoena are irrelevant to OSHA’s asserted purpose or that the
subpoena was issued in a procedurally irregular manner, it does
attempt to argue that enforcement should be withheld because
the subpoena is abusive and overbroad. On appeal, Sturmco’s
sole stated basis for this contention is that, because there is no
ergonomic standard or definition of ergonomic hazard, any
document request must necessarily be abusive. This is nothing
more than across-dressing of the argument, previously rejected,
that OSHA lacks authority to issue a subpoena pursuant to an
investigation of ergonomic hazards for possible violations of the
general duty clause. We can conceive of no reason to give this
12a
Appendix A
importuning further attention. Accordingly, the subpoena must
be enforced.
Ill. CITATION ENFORCEMENT
In July of 1994, while the respondent was in the midst of
contesting the subpoena’s validity, OSHA issued a citation
charging the company with failure to produce certain
subpoenaed documents. The respondent requested that the
district court prohibit enforcement of the citation. The court
refused, citing a perceived lack of jurisdiction. See Sturm, Ruger,
903 F. Supp at 250.
As the district court recognized, id. at 249-50, it is
questionable whether OSHA citations issued for failure to
comply with a subpoena that the employer is in the process of
challenging may be enforced. See, e.g., Lone Steer, 464 U.S. at
415 (explaining that an employer may “question the
reasonableness of [a] subpoena, before suffering any Penalties
for refusing to comply with it, by raising objections in an action
in the district court”) (emphasis supplied); See v. City of Seattle,
387 U.S. 541, 544-45 (1967) (similar); Brock v. Emerson Elec.
Co., 834 F.2d 994, 997 (11th Cir. 1987) (similar); But as the
district court also recognized, Sturm, Ruger, 903 F. Supp. at 250,
the law lodges exclusive jurisdiction over challenges to the
validity of citations with OSHRC, subject to review by the court
of appeals. See 29 U.S.C. §§ 659(c) & 660(a); see also Northeast
Erectors, 62 F.3d at 39-40 (explaining jurisdictional structure of
OSHActand holding that the district court lacked subject matter
jurisdiction over a pre-enforcement challenge to an OSHA
citation).
The OSH Act provides only a few limited bases for original
Pt np ONE Bia,
13a
Appendix A
jurisdiction in the district court, and none of those bases exists
here. The administrative review and appeals process thus
remains “the exclusive procedure through which an employer
can obtain review of OSHA [citation] enforcement
proceedings.” Northeast Erectors, 62 F.3d at 39.5 Consequently,
the district court did not err in refusing, on jurisdictional
grounds, to entertain Sturmco’s complaint anent the citation.
IV. CONCLUSION
There is much less to this appeal than meets the eye. Because
OSHA had authority to issue the subpoena to investigate possible
violations of the general duty clause, we must affirm the
judgment below. In so doing, we leave for another day the
question whether OSHA will ultimately be able to enforce a
citation against Sturmco (or anybody else, for that matter) on the
ground that ergonomic hazards are recognized hazards within
the meaning of the OSH Act’s general duty clause.
Affirmed.
5. Sturmco is currently contesting the citation before OSHRC, and it
will be entitled to all appropriate defenses against enforcement there and on
any ensuing appeal. See, e.g., Emerson Elec., 834 F.2d at 997 (affirming
OSHRC’s vacation of citation issued for failure to produce documents). That
route is the only available avenue of protest vis-a-vis the citation.
l4a
APPENDIX B — JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE FILED AUGUST 7, 1995
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civil Action No. 1:94-cv-00373-M
USA
v.
Sturm Ruger & Co
JUDGMENT
JUDGMENT is hereby entered in accordance with the order
dated August 4, 1995, of U.S. District Judge Steven J. McAuliffe.
(Signed by Clerk James R. Starr)
By the Court,
s/ Ann Mulner
Deputy Clerk
Date: August 7, 1995
a.
David L. Baskin, Esq.
Gretchen Leah Witt, Esq.
Richard D. Wayne, Esq.
Jeremy Ritzenberg, Esq.
;
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§
F
4
}
Pe
15a
APPENDIX C — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE FILED AUGUST 4, 1995
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Civil No. 94-373-M
Robert B. Reich, Secretary of Labor, United States Department
of Labor,
Plaintiff,
v.
Sturm, Ruger & Co., Inc.,
Defendant.
ORDER
The Secretary of Labor filed suit to enforce an
administrative subpoena served upon Defendant, Sturm, Ruger
& Co., Inc. (the “Company”). The Company operates a firearms
manufacturing plant in New Hampshire. The subpoena directed
the Company to produce records and information related to
potential workplace hazards that might be linked to multiple
movement disordevs, like carpal tunnel syndrome. Specifically,
the Secretary sought to obtain the Company’s 1993 “OSHA200
logs” and first report of injury logs. It also requested information
or records relating to: (1) employee task completion times; (2)
quotas; (3) piece work; (4) incentives; (5) production; (6) the
Company’s ergonomics-related concerns, committees, and
consultants; and (7) employee task variation.
16a
Appendix C
The Company is required by law to maintain only the OSHA
200 logs. Nevertheless, the Secretary claims to be entitled to all
of the subpoenaed records and information under the provisions
of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§651, et seg. (the “Act”). The Company objects to enforcement
of the subpoena and moves to vacate an administrative citation
and fine which the Secretary imposed for its refusal to produce
the Form 200 logs.
On September 1, 1994, the Magistrate Judge (Barry, J.)
conducted a hearing on this matter, after which he allowed the
parties 15 days to submit additional legal and factual support for
their respective positions. On March 13, 1995, the Magistrate
Judge issued a Report and Recommendation, recommending
that the court deny the Secretary's application for an order
enforcing the administrative subpoena. The Secretary filed a
timely objection to the Magistrate's Report and
Recommendation. Pursuant to 28 U.S.C. §636(b)(1), the court
reviews de novo those portions of the Report and
Recommendation to which a party has objected.
Factual Background.
The Magistrate Judge made the following findings of fact,
which are well-supported in the record. On November 1, 1992,
the New Hampshire OSHA area director developed a Local
Emphasis Program for the inspection of industries that
experience a high incidence of multiple movement disorders,
such as carpal tunnel syndrome and tendinitis. On December 31,
1992, the area director obtained a computer printout from the
New Hampshire Bureau of Workers’ Compensation detailing
first reports of injury/illness. From that data, the area director
developed a list of employers who seemed to be experiencing
17a
Appendix C
frequent workers’ compensation claims based on incidents of
multiple movement disorder. The Company had the third highest
number of such claims in New Hampshire.
By letter dated August 17, 1993, the area director advised
the Company of OSHA’s general interest in reducing and/or
eliminating ergonomic hazards related to multiple movement
disorders. He also informed the Company of New Hampshire’s
Local Emphasis Plan, and its directive to investigate the
significant increase in reports of multiple movement disorders.
Finally, he explained how and why the Company’s plant had
been selected for inspection. On the same day, OSHA
Compliance and Health Officer Donald DeWees, who was
responding to an earlier employee complaint regarding alleged
air quality hazards at the Company’s plant, went to the plant to
inspec: both air quality and ergonomics.
DeWees returned to defendant’s plant on November 12,
1993, to inspect the “Checking and Polishing Departments,”
where employees had sustained a comparatively large number of
multiple movement disorders. De Wees asked the Company to
provide him with particular information related to that type of
injury. On December 20, 1993, representatives of the Company
informed DeWees that such information would not be released,
and instead referred him to the Company’s attorneys. On January
11, 1994, the Secretary issued the administrative subpoena in
question, but the Company again refused to produce the
requested information and records. On January 19, 1994, the
Company’s attorney offered, by way of compromise, to produce
the requested records and information, provided that OSHA
agreed not to use any of it as a basis for an enforcement action
against the Company. OSHA rejected the offer and brought suit
to enforce the subpoena.
18a
Appendix C
The Company argues that the subpoena violates its rights
under the Fourth Amendment to be free from unreasonable
searches and seizures. The Company claims that the subpoena is
unenforceable because it was not issued “for a proper purpose
authorized by Congress,” United States v. Comley, 890 F.2d 539,
541 (Ist Cir. 1989). Finally, it challenges the subpoena on
grounds that the Secretary cannot properly subpoena records or
information relating to ergonomics because he has not
promulgated any health and safety regulations on that subject.
Discussion.
I. Constitutional Law.
In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), the
Supreme Court held that the Fourth Amendment protects
commercial buildings as well as private homes from
unreasonable searches and seizures. The court also concluded
that, despite the broad language of section 8(a) of the Act, the
Secretary of Labor could not conduct a warrantless search of
Barlow’s business. Barlow’s, 436 U.S. at 311. The court noted,
however, that demonstrating “probable cause” sufficient to
support the issuance of a warrant is less burdensome in the
administrative inspection context than in the criminal search
context.
[The Secretary's] entitlement to inspect will
not depend on his demonstrating probable
cause to believe that conditions in violation
of OSHA exist on the premises. Probable
cause in the criminal law sense is not
required. For purposes of an administrative
search suchas this, probable cause justifying
19a
Appendix C
the issuance of a warrant may be based not
only on specific evidence of an existing
violation but also on a showing that
“reasonable legislative or administrative
standards for conducting an. . . inspection
are satisfied with respect to a particular
[establishment].”
Barlow’s, 436 U.S. at 320 (quoting Camara v. Municipal Court
of San Francisco, 387 U.S. 523, 538 (1967)); see also Brock v.
Brooks Woolen Co., 782 F.2d 1066, 1069 (1st Cir. 1986) (“In the
case of an administrative search warrant, . . . the probable cause
required to secure the warrant is less than that necessary for a
criminal warrant.”).
However, even the weaker probable cause standard
applicable to administrative searches does not govern the
issuance of an administrative subpoena. In Donovan v. Lone
Steer, Inc., 464 U.S. 408 (1984), the court distinguished prior
cases, including Barlow's, and explained that the standard
applicable to subpoenas is even less burdensome:
In each case [i.e., Barlow's, supra, Camara v.
Municipal Court, supra, and See v. Seattle,
387 U.S. 541 (1967)], this Court held that an
administrative warrant was required before
such a search could be conducted without the
consent of the owner of the premises. It is
plain to us that those cases turned upon the
effort of the government inspectors to make
nonconsensual entries into areas not open to
the public. As we have indicated, no such
entry was made by appellants in this case.
20a
Appendix C
Thus the enforceability of the administrative
subpoena duces tecum at issue here is
governed, not by our decision in Barlow's as
the District Court concluded, but rather by
our decision in Oklahoma Press Publishing
Co. v. Walling, 327 U.S. 186 (1946).
Lone Steer, 464 U.S. at414. In Oklahoma Press, supra, the court
rejected anemployer’s claim that the subpoena power conferred
upon the Secretary of Labor by the FLSA violates the Fourth
Amendment:
Without attempt to summarize or accurately
distinguish all of the cases, the fair
distillation, in so far as they apply merely to
the production of corporate records and
papers in response to a subpoena or order
authorized by law and safeguarded by
judicial sanction, seems to be that the Fifth
Amendment affords no protection by virtue
of the self-incrimination provision, whether
for the corporation or for its officers; and the
Fourth, if applicable, at the most guards
against abuse only by way of too much
indefiniteness or breadth in the things
required to be “particularly described,” if
also the inquiry is one the demanding agency
is authorized by law to make and the
materials specified are relevant. The gist of
the protection is in the requirement,
expressed in terms, that the disclosure sought
shall not be unreasonable.
Oklahoma Press, 327 U.S. at 208.
<i
2la
Appendix C
Four years later, the court considered the nature and scope of
the Federal Trade Commission’s authority to require
corporations to file reports showing the extent to which they
have complied with the Commission’s cease and desist order.
United States v. Morton Salt Co., 338 U.S. 632 (1950). Like the
Company in this case, the corporations argued that because the
Commission had not alleged a violation of its order or of any
relevant statute, its document request constituted nothing more
than a “fishing expedition,” designed to uncover evidence of
guilt. The court rejected that argument:
The only power that is involved here is the
power to get information from those who best
can give it and who are most interested in not
doing so. Because judicial power is reluctant
if not unable to summon evidence until it is
shown to be relevant to issues in litigation, it
does not follow that an administrative agency
charged with seeing that the laws are
enforced may not have and exercise powers
of original inquiry. It has a power of
inquisition, if one chooses to call it that,
which is not derived from the judicial
function. It is more analogous to the Grand
Jury, which does not depend on a case or
controversy for power to get evidence but can
investigate merely on suspicion that the law
is being violated, or even just because it
wants assurance that it is not.
Morton Salt, 338 U.S. at 642-43. The court did acknowledge
some limits on an administrative agency’s investigatory powers,
but still made it clear that those powers are far-reaching:
22a
Appendix C
Of course a governmental investigation into
corporate matters may be of such asweeping
nature and so unrelated to the matter properly
under inquiry as to exceed the investigatory
power. But it is sufficient if the inquiry is
within the authority of the agency, the
demand is not too indefinite and the
information sought is reasonably relevant.
“The gist of the protection is in the
requirement, expressed in terms, that the
disclosure sought shall not be unreasonable.”
Morton Salt, 338 U.S. at 652-53 (quoting Oklahoma Press Pub.
Co. v. Walling, 327 U.S. 186, 208 (1946)).
The Supreme Court’s rulings in this area seem to yield the
following maxim: an administrative subpoena is “reasonable”
and, therefore, enforceable if it is issued for a proper purpose
authorized by Congress, the information sought is relevant to
that purpose and adequately described, and statutory procedures
governing its issuance are followed. United States v. Comley,
890 F.2d 539, 541 (1st Cir. 1989). The scope of this court’s
review of the reasonableness of an administrative subpoena is
quite limited:
The role of acourt in asubpoena enforcement
proceeding is strictly limited to inquiring
whether the above requirements have been
met. “Such proceedings are designed to be
summary in nature. As long as the
investigation is within the agency’s
authority, the subpoena is not too indefinite,
and the information sought is reasonably
23a
Appendix C
relevant, the district court must enforce an
administrative subpoena.”
Comley, 890 F.2d at 541 (quoting EEOC v. Tempel Steel Co., 814
F.2d 482, 485 (7th Cir. 1987)).
Il. The Occupational Safety and Health Act of 1970.
Congress enacted the Occupational Safety and Health Act of
1970 in an effort, “to assure so far as possible every working man
and woman in the Nation safe and healthful working conditions
and to preserve our human resources.” 29 U.S.C. §651(b).
Consistent with that purpose, section 5(a) of the Act, 29 U.S.C.
§654(a), mandates that:
Each employer (1) shall furnish to each of his
employees employment and a place of
employment which are free from recognized
hazards that are causing or are likely tocause
death or serious physical harm to his
employees; (2) shall comply with
occupational safety and health standards and
all rules, regulations, and orders issued
pursuant to this chapter which are applicable
to his own actions and conduct.
29 U.S.C. §654 (a) Under this provision, an employer has two
distinct legal obligations. Employers are required under section
5(a)(1) of the Act to provide a working environment free from
recognized health and safety hazards, and they are required
under section 5(a)(2) of the Act to comply with all pertinent
standards promulgated by OSHA. Failure tocomply with either
of these duties constitutes a violation of the Act. Cape &
24a
Appendix C
Vineyard Div. of New Bedford Gas v. Occupational Safety and
Health Review Com., 512 F.2d 1148, 1150 (1st Cir. 1975).
Because OSHA has not yet promulgated any safety and health
regulation(s) regarding ergonomics, legal authority for the
Secretary’s inquiry into ergonomic conditions at the Company’s
facility is necessarily derived from section 5(a)(1) of the Act, the
so-called “general duty clause.”
Section 8(a) of the Act, 29 U.S.C. §657(a), empowers the
Secretary to inspect and investigate workplaces in order to carry
out the purposes of the Act. Section 8(b) of the Act, 29 U.S.C.
§657(b), empowers the Secretary, in the course of conducting
such inspections and investigations, to require the attendance
and testimony of witnesses and the production of evidence under
oath. It also authorizes the Secretary to subpoena records
maintained by an employer. The parties do not dispute that
OSHA may investigate potential general duty clause violations
alleged in anemployee’s complaint. See 29 U.S.C. §657(f). The
questions presented here are: (1) whether OSHA has the
authority to subpoena documents which relate to potential
workplace safety hazards well beyond the scope of an
employee’s specific complaint; and (2) whether, independent of
any employee complaints, OSHA may subpoena documents as
part of an investigation into potential general duty clause
violations, whose existence is suggested only by data developed
by a state agency.
A. Employee Complaint Investigations.
The Secretary may conduct two types of administrative
inspections: programmed and unprogrammed. See generally, In
re Samsonite Corp., 756 F.Supp. 498, 499 (D.Colo. 1991).
Programmed inspections are conducted as part of a
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25a
Appendix C
comprehensive enforcement scheme. Under a programmed
inspection, an employer is randomly selected for inspection
based upon neutral criteria. Unprogrammed inspections are
triggered by specific evidence of potential violations of the Act,
such as an employee complaint.
In this case, the Secretary initiated an unprogrammed
investigation of the Company in response to an employee
complaint related to air quality. The circuits are divided as to the
permissible scope of administrative searches or inspections
conducted in response to employee complaints. Compare
Donovan v. Sarasota Concrete Co., 693 F.2d 1061 (11th Cir.
3982) (holding that a search conducted following an employee
complaint must bear an appropriate relationship to the violation
alleged in the complaint); Marshall v. Horn Seed Co., 647 F.2d
96 (10th Cir. 1983) (same); Marshall v. NorthAmerican Car Co.,
626 F.2d 320 (3rd Cir. 1980) (same); Marshall v. Central Mine
Equipment Co., 608 F.2d 719 (8th Cir. 1979) (same) with Hern
Iron works Inc. v. Donovan, 670 F.2d 838 (9th Cir.) (warrant
authorizing inspection of entire plant in response to employee
complaint not unreasonable), cert. denied, 459 U.S. 830(1982);
Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d
1313 (7th Cir. 1980) (inspection in response to employee
complaints need not be limited in scope to substance of those
complaints). See also29 CFR §1903.11 (“Inspections under this
section shall not be limited to matters referred to in the
complaint”). But in this case, the court is concerned with the
permissible scope of an administrative subpoena issued in
response to an employee complaint, not a search warrant.
For the reasons given in Dole v. Trinity Industries Inc. , 904
F.2d 867 (3rd Cir.), cert. denied, 498 U.S. 998 (1990), the court
finds that an administrative subpoena need not be limited to
26a
Appendix C
materials directly relevant to the investigation of anemployee’s
complaint. In Trinity Industries, OSHA responded to an
employee complaint alleging that non-production employees
were not provided with hard hats and safety glasses when
walking through work areas. OSHA obtained a warrant
authorizing an inspection of the plant, limited to the conditions
described in the employee complaint. The warrant also
authorized OSHA to inspect and copy certain records which the
employer was required to maintain. When the employer refused
to honor the warrant, OSHA issued an administrative citation
and served an administrative subpoena, seeking both the
information referenced in the warrant and additional documents.
The employer refused to honor the subpoena and OSHA filed a
petition to enforce it.
On appeal to the Court of Appeals for the Third Circuit,
Secretary argued that the district court erred in limiting
enforcement of the subpoena to those records related to the
conditions described in the employee’s complaint. Finding that
the district court should not have limited the scope of the
subpoena, the court pointed out that the subpoena met the
requirements set forth in United States v. Morton Salt Co., supra,
that is: (1) the inquiry was within the authority of the agency; (2)
the demand for production was not too indefinite; and (3) the
information sought was reasonably relevant to the inquiry the
Secretary was authorized to conduct:
These subpoenas were issued in connection
with a limited workplace inspection
following an employee complaint, but the
information they seek does not have to be
relevant to that particular inquiry in order to
justify full enforcement. It is enough that the
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Appendix C
information sought is relevant to any inquiry
that the Secretary is authorized by law to
undertake. She is authorized to review the
occupational health and safety records that
employers are required to keep by the Act for
her use, and the fact that she chooses todo so
following an employee complaint does not
diminish her power to subpoena the records
that she requires.
Dole v. Trinity Industries, 904 F.2d at 874 (emphasis added).!
The Court of Appeals for the Sixth Circuit recently followed suit
in Trinity Industries v. OSHRC, 16 F.3d 1455 (6th Cir. 1994):
Although the law in this Circuit seems to
allow OSHA to use either a warrant or an
administrative subpoena to inspect a
company’s injury and illness records, we
agree with the Third Circuit that limiting the
1. Although the facts presented in Dole v. Trinity Industries, Inc., supra,
are distinguishable from those presented here, the distinctions are not
material. In Trinity Industries, the Secretary sought information necessary to
calculate the employer's lost workday incidence (“LWDI”). [f the LWDI was
above the industry average, OSHA's internal handbook required the Secretary
to expand the scope of the investigation beyond the allegations contained in
the employee complaint. Here, the Secretary seeks to expand his investigation
beyond the allegations contained in the employee’s air quality complaint to
determine whether the Company is complying with the duties imposed by
section 5(a)(1), the general duty clause. Anumber of courts presented with this
issue have held that such an augmented document review is within the
Secretary's authority. See. e.g., Reich v. Montana Sulphur & Chemical Co., 32
F.3d 440, 445-46 (9th Cir. 1994), cert. denied, 1995 U.S. LEXIS 2002, 63
U.S.L.W. 3689 (U.S. 1995); Trinity Industries v. OSHRC, 16 F.3d 1455, 1460-
61 (6th Cir. 1994).
28a
Appendix C
scope of a physical inspection of a worksite
while also allowing review of all injury and
illness records is consistent with the goals
and provisions of the Act.
Trinity Industries v. OSHRC, 16 F.3d at 1461. Accordingly, the
Secretary’s demand, through subpoena, for records the
Company is not required to maintain by the Act for his use was
proper and is enforceable.
In addition to documents which the Company is required by
law to maintain, here the Secretary also seeks documents which
the Company is not required to maintain. With regard to those
documents, the court finds that the Secretary’s subpoena was
also reasonable and constitutionally sound. In Donovan v. Union
Packing Co.,714 F.2d 838 (8th Cir. 1983), the Court of Appeals
for the Eight Circuit reached a similar conclusion, holding:
Disclosure of forms required by [the Act] and
of several other standard records through the
enforcement of the Secretary’s subpoena
power is hardly unreasonable. As the district
court in Marshall v. Olean Title Co., 489
F.Supp. 32 (E.D.Pa.), aff’d 636 F.2d 1209
(3d Cir. 1980), noted, “[t]he varied
responsibilities delegated to the Secretary
define the breadth of his subpoena power.”
489 F.Supp. at 34. The Secretary is not only
authorized to conduct full-scale
investigations to ensure compliance with
OSHA, he is also authorized to conduct more
limited preliminary investigations to
determine if a company meets the criteria
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Appendix C
established for a programmed inspection;
criteria which, if met, suggest that further
investigation may reveal violations of OSHA
law.
Union Packing, Co.,714 F.2d at 842 (emphasis added).
“Reasonableness” remains the standard against which the
Secretary’s subpoena must be measured. Oklahoma Press Pub.
Co. v. Walling, 327 U.S. 186, 208 (1946); See v. Seattle, 387 U.S.
541,544 (1967); United States v. Comley, 890 F.2d 539, 541 (1st
Cir. 1989); see also Martin v. Gard, 811 F.Supp. 616, 620
(D.Kan. 1993) (“In an action to enforce an administrative
subpoena, judicial review is limited and conducted summarily
. The gist of this Fourth Amendment protection is
reasonableness, in that the subpoena must be ‘sufficiently
limited in scope, relevant in purpose, and specific in directive so
that compliance will not be unreasonably burdensome.’ ”
(citations omitted)). Accordingly, the danger of abuse and
degree of intrusiveness associated with the Secretary’s
document request must be balanced against the need for
inspection.
Here, the court is persuaded that, on balance, the
circumstances warrant enforcement of the subpoena. Given the
strong federal interest in promoting employee health and safety,
as well as the data suggestive of a potential relationship between
working conditions at the Company and multiple movement
disorders experienced by its employees, the Secretary’s request
for information that might shed some light on possible causes of
the injuries was reasonable. The materials sought were well
defined, limited in scope, and related to the purpose of the
inquiry: to determine if indeed a causal link between injuries and
30a
Appendix C
working conditions existed. Compliance should not be
unreasonably burdensome in that the Company presumably can
easily retrieve and produce the material sought.
B. “Programmed” Inspections.
Approaching the issue from a somewhat different angle
yields the same result. As noted above, section 8(a) of the Act
authorizes the Secretary to conduct investigations pursuant to an
administrative plan.* Here, the Secretary based his subpoena of
2. The Court of Appeals for the Third Circuit recently interpreted the
Secretary's investigatory powers under section 8(a) more broadly, holding
that they are not necessarily linked to an administrative plan.
[Nothing in it or any Supreme Court decision confines
section 8(a) inspections to programmed inspections
pursuant to an administrative plan. The language of
section 8(a) suggests a broad grant of authority to the
Secretary to conduct reasonable inspections in that it
permits entry to any establishment “or other area” to
inspect “any such place of employment and all
pertinent conditions.” 29 U.S.C. §657 (a). The statute
is notably devoid of any requirement that inspections
be made pursuant to an administrative plan or scheme;
Congress could have indicated as much if it intended
this restriction. In fact, the legislative history supports
the interpretation that section 8(a) is a broad grant of
authority to conduct reasonable inspections, in
contrast to section 8(f)(1), which is not a grant of
authority but rather imposes a requirement that the
Secretary inspect under certain circumstances.
Martin v. International Matex Tank Terminals-Bayonne, 928 F.2d 614, 621
(3rd Cir. 1991).
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Sees cies et
3la
Appendix C
documents upon just such a plan — the Local Emphasis Program
(“LEP”) — for the inspection of industries that experience high
rates of multiple movement disorders. The LEP establishes
procedures for carrying out:
programmed inspections of targeted
establishments from a list of referrals
obtained from the State of New Hampshire's
Workers’ Compensation records pursuant to
the provisions contained in the Field
Operations Manual Ch. 11.E.2.b.4.
. » *
Targeting under the LEP would be
accomplished by working closely with the
State of New Hampshire using workers’
compensation records and summaries of
claims involving carpal tunnel syndrome and
tendinitis compiled by company name over a
time period of at least a year. Inspections
would be conducted starting with those
establishments having the greatest number of
claims in that time period. The inspections
would be conducted by CSHOs who have
completed training in ergonomic problems.
Concord Area Office Notice CPL 2, Local Emphasis Program,
Ergonomic, at 1 (Exhibit 1 to the Secretary's Application).
Pursuant to the LEP, OSHA's Area Director, David May,
obtained information from the New Hampshire Bureau of
Workers’ Compensation regarding “first report of injury/illness
32a
Appendix C
workers’ compensation cases” for the period July 1, 1991,
through June 30, 1992. Based upon his review of that and other
data, Mr. May made the following conclusions:
1. The Company makes fabricated products, work which
is coded under the standard industrial classification
(“SIC”) as number 34.
to
For fiscal years 1991 and 1992, the combined incidence
rate of carpal tunnel syndrome in New Hampshire for
SIC 34 was 21.8 injuries per 10,000 person-years.
3. For fiscal years 1991 and 1992, the average incidence
rate of carpal tunnel syndrome for New Hampshire
employers was 7.8 per 10,000 person-years.
4. Claims filed by employees of the Company constituted
approximately one-half of all carpal tunnel syndrome
claims filed by employees in SIC 34.
5. The Company had the third largest number of claims in
the State of New Hampshire for carpal tunnel
syndrome.
Affidavit of David May, paras. 3-9. Therefore, May concluded
that the Company was part of an industry in which reports of
multiple movement disorders were substantially higher than the
average for all industries, and that employees of the Company
accounted for a sizable portion of those reports. In light of the
directive established by the LEP, May concluded that further
investigation of the Company was appropriate.
The question presented, then, is whether the data
res .
33a
Appendix C
assimilated and analyzed by May was sufficiently neutral to
permitissuance of an administrative subpoena consistently with
constitutional safeguards. The court concludes that the data was
sufficiently neutral, and that enforcement of the subpoena would
notrun afoul of any constitutional guarantees or protections.
In Jn re Establishment Inspection of Gilbert & Bennett Mfg.
Co.,589 F.2d 1335 (7th Cir.), cert. denied sum nom., Chromalloy
American Corp., Federal Malleable Div. v. Marshall, 444 U.S.
884 (1979), the Court of Appeals for the Seventh Circuit
considered whether a magistrate judge had properly issued an
inspection warrant, authorizing OSHA to inspect appellant's
foundry. Applying the criteria established in Barlow's, the court
concluded that sufficient probable cause existed to justify the
issuance of the warrant, the Secretary having adequately
demonstrated that he sought the inspection warrant based upon
“neutral criteria.”
Paragraph 9 [of the affidavit submitted in
support of the warrant] supplied additional
pertinent information, namely that the
inspection was part of a “National-Local plan
designed to achieve significant reduction in
the high incidence of occupational injuries
and illnesses found in the metal-working and
foundry industry.”
Gilbert & Bennett Mfg. Co., 589 F.2d at 1342. Explaining why
the warrant was properly issued, the court stated:
Here, although a direct statistical correlation
between injury rates and the foundry industry
was not presented, the magistrate was
34a
Appendix C
entitled to assume, as was Congress in
passing the Occupational Safety and Health
Act, adirect connection between injuries and
violative hazards. Moreover, the magistrate
could rely on the known expertise of the
Secretary in gathering the statistics in the
area of occupational injuries and his ability to
form a reasoned opinion that this rate
indicated a “high incidence” of injuries in the
foundry industry. Not to allow inspections of
individual foundries, given such a
background, would eviscerate the Act and its
purposes. Thus, the instant warrant was
plainly supported by probable cause in the
Camara/Barlow’s sense since Chromalloy
was selected for inspection not as the result of
the “unbridled discretion” of a field agent,
but rather, pursuant to “a National-Local
plan” designed by agency officials for the
purpose of reducing the high incidence of
occupational injuries and illnesses found in
the metal-working and foundry industry.
Gilbert & Bennett Mfg. Co., 589 F.2d at 1343.
Although this court is presented with an application to
enforce an administrative subpoena rather than a warrant, the
reasoning of Giibert & Bennett Mfg. Co. remains persuasive. The
Company was selected for inspection under the criteria
established in the LEP, and based upon data collected by the New
Hampshire Bureau of Workers’ Compensation which suggested
that: (1) the Company is a member of an industry in which the rate
of multiple movement disorders is significantly higher than
bcviimniidhe eT ae ee —- aT
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35a
Appendix C
average; and (2) the Company itself had a very high incidence of
multiple movement disorders. The Company’s selection was the
product of a systematic, nonarbitrary process, and was not based
upon the “unbridled discretion” of a field agent. Donovan v.
Hackney, Inc., 583 F.Supp. 773 (W.D. Okla. 1984), aff’d 769
F.2d 650 (10th Cir. 1985), cert. denied 475 U.S. 1081 (1986);
Donovan v. Wollaston Alloys, Inc., 695 F.2d 1, 5-6 (1st Cir.
1982). “Because [the company’s] records were sought based on
the neutral criteria that the company was a member of a-high
hazard industry, the evils the Supreme Court sought to guard
against in Barlow’s are simply not present.” Donovan v. Union
Packing Co.,', 14 F.2d 838, 841-42 (8th Cir. 1983).
Accordingly, the Secretary’s subpoena is also enforceable
as a reasonable exercise of his investigative powers under
section 8(a) of the Act.
Ill. The Company's Motion to Vacate.
On July 5, 1994, the Secretary served the Company with a
Citation and Notification of Penalty for willfully violating 29
CFR 1904.7 (i.e., refusing to provide the Secretary with the
subpoenaed OSHA Form 200’s). The Secretary imposed a
penalty of $9,000.00 and informed the Company of its right to
contest the citation and penalty. See 29 U.S.C. §659 (a).’
3. Inaccordance with 29 U.S.C. §659 (a), the Citation and Notification
of Penalty specifically provided:
Right to Contest — You have the right to contest this
Citation and Notification of Penalty. You may contest
all citation items or only individual items. You may
also contest proposed penalties and/or abatement dates
(Cont'd)
36a
Appendix C
The Company claims that, “[t]he Fourth Amendment
prohibits issuance of acitation against an employer for refusal to
produce such records unless and until OSHA has first obtained an
enforcement order or warrant from a court of appropriate
jurisdiction, and no such order has been issued.” Defendant's
Motion to Vacate Citation at 1. The Secretary responds that this
court lacks jurisdiction to address the merits of the Company's
motion because the Company failed to exhaust its administrative
remedies.
The Act establishes the Occupational Safety and Health
Review Commission (the “Commission”) to resolve
administrative disputes arising under the Act. 29 U.S.C.
§§65 1(b)(3) and 661. The Commission is empowered to hear and
resolve challenges to enforcement actions commenced by the
Secretary. 29 U.S.C. §§651(b)(3), 659(a) and (c). Decisions of
the Commission are subject to review by the court of appeals for
the circuit in which the violation is alleged to have occurred. 29
U.S.C. §660(a).
The Company relies upon Brock v. Emerson Elec. Co.,
Electronic & Space Div., 834 F.2d 994 (11th Cir. 1987) for the
proposition that:
(Cont'd)
without contesting the underlying violations. Unless
you inform the Area Director in writing that you intend
to contest the citation(s) and/or proposed penalty(ies)
within 15 working days after receipt, the citation(s)
and the proposed penalty(ies) will become a final
order of the Occupational Safety and Health Review
Commission and may not be reviewed by any court or
agency.
Id. at 2 (emphasis in original).
— 2 es Pe
37a
Appendix C
under the Fourth Amendment, an employer
may require OSHA to issue a subpoena and
may seek judicial involvement by refusing to
honor the subpoena prior to its judicial
enforcement. The employer may not be given
a citation for asserting this constitutional
right.
Id. at 997. The Company argues that this court, like the Court of
Appeals for the Eleventh Circuit, should vacate the citation
because the Company was constitutionally entitled to ignore the
subpoena until the Secretary obtained a judicial order of
enforcement.
The validity of the citation is certainly suspect under the
rationale of Emerson Elec. Co., and at least two Supreme Court
opinions support the Company’s basic premise:
Thus although ourcases make it clear that the
Secretary of Labor may issue an
administrative subpoena without warrant,
they nonetheless provide protection for a
subpoenaed employer by allowing him to
question the reasonableness of the subpoena,
before suffering any penalties for refusing to
comply with it, by raising objections in an
action in district court.
Donovan v. Lone Steer, Inc., supra, at 415; citing See v. City of
Seattle supra at 544-545 (“. . .the subpoenaed party may obtain
judicial review of the reasonableness of the demand prior to
suffering penalties for refusing to comply.”)
38a
Appendix C
But exclusive jurisdiction over defendant’s challenge to the
citation’s validity has been conferred, at least in the first
instance, upon the Commission, and then the courts of appeals.
29 U.S.C. §§659 (c) and 660(a). Of course Emerson Elec. Co.
might be distinguishable in that the employer in that case
properly challenged the citation by giving the Secretary notice
of its intent to contest, litigating the matter before an
administrative law judge, and properly invoking judicial review
in the court of appeals. Here, however, the Company apparently
failed to give timely notice of its intent to contest the citation, and
did not seek review in the court of appeals, thereby rendering the
citation “a final order of the Commission not subject to review by
any court or agency.” 29 U.S.C. §659(a). In short, the Company
failed to exhaust its administrative remedies and waived its right
to contest the citation and penalty. “Where Congress has
designated a specific forum for the review of administrative
action, that forum is exclusive, and a concerned party must
exhaust his administrative remedies prior to seeking relief from
the courts.” Jn re Restland Memorial Park, 540 F.2d 626, 628
(3rd Cir. 1976) (citing Whitney Nat’l Bank v. Bank of New
Orleans, 379 U.S. 411, 422 (1965)).
While the constitutional basis of the Company’s motion to
vacate the citation might arguably support some form of
collateral attack, itis clear that this court is without jurisdiction
to directly review the validity of the now “final order” of the
Commission, as the Company’s motion to vacate requests. The
only controversy properly before this court at this time is the one
related to the enforceability of the subpoena issued by the
Secretary. See 29 U.S.C. §657(b) (vesting jurisdiction in the
district courts to review and enforce subpoenas issued by the
Secretary). Accordingly, the Company’s motion to vacate the
citation and penalty is necessarily denied.
39a
Appendix C
Conclusion.
For the foregoing reasons, the court holds that the Secretary
issued the subpoena fora proper purpose authorized by congress,
the information sought is relevant to that purpose and adequately
: described in the subpoena, and the Secretary followed statutory
procedures in issuing the subpoena. United States v. Comley, 890
F.2d 539, 541 (1st Cir. 1989). The Secretary’s Application for
Order Enforcing an Administrative Subpoena (document no. 1)
is granted. The Company’s Motion to Vacate Citation (document
no. 10) is denied. The Company’s Motion for Reconsideration
; (document no. 23) is denied.
3
SO ORDERED.
s/ Steven J. McAuliffe
Steven J. McAuliffe
United States District Judge
cat ae
August 4, 1995
cc: David L. Baskin, Esq.
Gretchen L. Witt, Esq.
Jeremy Ritzenberg, Esq.
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APPENDIX D — ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE DATED MARCH 14, 1995
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Civil No. 94-373-M
Robert B. Reich, Secretary of Labor, United States Department
of Labor
v.
Sturm, Ruger & Co., Inc.
ORDER
Before the court for consideration are defendant’s motion to
vacate citation and defendant’s motion to compel production of
documents and to limit hearing of September 1, 1994.
In considering the motion to vacate citation, the court opines
that if the Report and Recommendation dated March 13, 1995, is
accepted by the presiding judge, the motion (document no. 10)
shall be rendered moot.
In relation to the motion to compel production of documents
and to limit hearing of September 1, 1994, the court views the
assertions presented by the defendant as more appropriately
addressed within the analytical purview of the Freedom of
Information Act than within the ambit of the Occupational Safety
and Health Act. Therefore, as the motion to compel (document
no. 9), concerning production of documents, is premised on a
separate and distinct violation or cause of action, it is denied
without prejudice.
4la
Appendix D
SO ORDERED.
s/ William H. Barry
William H. Barry, Jr.
United States Magistrate Judge
March 14, 1995
cc: David Baskin, Esq.
Gretchen Witt, Esq.
Jeremy Ritzenberg, Esq.
42a
APPENDIX E— REPORT AND RECOMMENDATION
OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE DATED
MARCH 13, 1995
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Civil No. 94-373-M
Robert B. Reich, Secretary of Labor, United States Department
of Labor
Vv.
Sturm, Ruger & Co., Inc.
REPORT AND RECOMMENDATION
This is an action brought by the Secretary of Labor
(Secretary) seeking to enforce an administrative subpoena
issued in connection with an inspection of defendant’s
manufacturing plant located in Newport, New Hampshire, under
the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq.
Background
On November 1, 1992, the Concord, New Hampshire,
Occupational Safety and Health Administration (OSHA) area
director developed a Local Emphasis Program (LEP) for the
inspection of industries that experience high incidences of
multiple movement disorders (ergonomics) such as carpal
tunnel syndrome (CTS) and tendinitis. In developing the
program, on December 31, 1992, the area director obtained a
computer printout from the New Hampshire Bureau of Worker’s
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43a
Appendix E
Compensation containing first reports of injury/illness worker’s
compensation cases. From this printout, the area director
developed alist of employers having frequent cases of CTS and
tendinitis injuries. Defendant had the third highest number of
compensation claims coded as CTS and tendinitis.
By hand-delivered letter dated August 17, 1993, the area
director advised the defendant of OSHA’s general interest in
reducing and/or eliminating ergonomic hazards resulting in
cumulative trauma disorder (CTD) cases and New Hampshire’s
LEP seeking to investigate the significant increase of incidents
of CTS and tendinitis reported by the Bureau of Worker’s
Compensation and why the defendant’s plant was selected for
inspection. On the same date, Compliance Safety and Health
Officer Donald DeWees (DeWees), responding to a June 12,
1993, complaint regarding alleged air quality hazards at the
defendant’s plant, went to defendant’s plant and began an
inspection of both air quality and ergonomics.
DeWees returned to defendant’s plant on November 12,
1993, to inspect the Checking and Polishing Departments, where
high rates of CTS reportedly took place. During the course of this
investigation, DeWees requested that certain information
pertaining to CTD cases be sent to him at the OSHA office. He
was told in a telephone conversation on December 20, 1993, that
the information would not be released and was referred to
defendant’s attorney. On January 11, 1994, the subpoena in
question was served on defendant’s environmental engineer and
security director but the information was not produced. On
January 19, 1994, defendant’s attorney voluntarily offered to
produce the information sought, provided that the information
would not serve as a basis for an enforcement action by OSHA.
OSHA rejected the offer and brought suit to enforce the
administrative subpoena.
44a
Appendix E
In opposition to enforcement of the administrative
subpoena, the defendant now urges that it has the right to refuse
to honor the administrative subpoena because:
1. OSHA's contested entry into defendant's plant pursuant
to a local emphasis program of questionable legality makes the
administrative subpoena invalid and unenforceable under the
Fourth Amendment, and
2. OSHA has acted in bad faith by refusing to respond to
defendant's Freedom of Information Act request to produce
documents and defendant requests to produce the same
documents in the instant case.
Discussion
The Occupational Safety and Health Act of 1970, 29 U.S.C.
§§ 651-78 (the Act) was enacted “in response to an appalling
record of death and disability in our industrial environment, and
it was the clear intendment of Congress to meet the problem with
broad and, hopefully, effective legislation.” Southern Ry. Co. v.
Occupational Saf. & H. Review Comm., 539 F.2d 335, 338 (4th
Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 525, 50 L.Ed.2d 609
(1976). Pursuant to the Act, the Secretary is authorized “to enact
and enforce national occupational safety and health standards
and, more broadly, to undertake investigations of company
workplaces and practices ‘[i}n order to carry out the purposes of
this chapter.’ 29 U.S.C. § 657(a).” Reich v. Muth, 34 F.3d 240,
242-43 (4th Cir. 1994).
In the absence of any national safety standard, the general
duty clause of the Act provides that the Secretary shall have the
responsibility of insuring that:
eal
45a
Appendix E
(a) Eachemployer —
(1) shall furnish to each of his employees
employment and a place of employment
which are free from recognized hazards. . . .
29 U.S.C. § 654(a)(1); Donovan v. Royal Logging Co., 645 F.2d
822, 829 (9th Cir. 1981). Recognized hazards are conditions or
practices in the work place that are known by industry in general,
or by employers in particular, to be hazardous. Beaird-Poulan
Div. of Emerson Electric Co., OSHRC Docket No. 12600 (1979).
The term “recognized hazard” does not encompass conditions
which only present a possibility of serious injury. Pratt &
Whitney Aircraft, Div. of United Technologies Corp. v. Secretary
of Labor, 649 F.2d 96 (2d Cir. 1981).
In performing the task of promoting and enforcing health
and safety standards, section 657 of the Act empowers the
Secretary “[i}n making his inspections and investigations under
this chapter” and to “require the attendance and testimony of
witnesses and the production of evidence under oath. . . .” 29
U.S.C. § 657(b). Correspondingly, “[t}he Secretary is authorized
under § 657 (a) of the Act to review the safety and health records
of employers, and [the Secretary] is authorized under § 657(b) to
subpoena the records if they are not otherwise forthcoming.”
Dole v. Trinity Industries, Inc., 904 F.2d 867, 872-73 (3d Cir.
1990).
It is this last authorization, the Secretary’s ability to
subpoena records, from which the present action predominantly
arises .
Defendant maintains that the administrative subpoena
46a
Appendix E
issued by OSHA should not be upheld principally because
enforcing the subpoena violates Fourth Amendment rights.
(Defendant’s Memorandum Opposing Application for Order
Enforcing an Administrative Subpoena, document no. 6.) In
regard to this Fourth Amendment challenge, the defendant
directs attention to United States v. Comley, 890 F.2d 539 (Ist
Cir. 1989). The court in Comley held that, to meet the
requirements of the Fourth Amendment, administrative
subpoenas must be “for a proper purpose authorized by
Congress, the information sought [must be] relevant to that
purpose and adequately described, and statutory procedures
{must be] followed in the subpoena’s issuance.” Comley, 890
F.2d at 541.
In conjunction with Comley, defendant reiterates the
maxim, offered by the United States Supreme Court, that “[t}he
businessman, like the occupant of a residence, has a
constitutional right to go about his business free from
unreasonable official entries upon his private commercial
property.” See v. City of Seattle, 387 U.S. 541, 543 (1967).
Defendant asserts that the subpoena issued by OSHA
circumvents this maxim and, in so doing, violates the “probable
cause” principles set forth in Comley.
Plaintiff counters defendant’s assertion by maintaining that
the “subpoena falls well within the scope of the enforcement
criteria.” (Plaintiff’s Memorandum Supporting Application for
Order Enforcing an Administrative Subpoena, attached to
Application for Order Enforcing anAdministrative Subpoena, at
5.) According to the plaintiff, “OSHA seeks the subpoenaed
information in order to determine CTD trends and severity, CTD
injury incidence rates, and jobs/tasks creating risks of CTD
incidence.” /d.
47a
Appendix E
I. Issuance of Subpoena
The Supreme Court has held that an “inspection without a
warrant or its equivalent pursuant to § 8(a) of OSHA violate[s]
the Fourth Amendment.” Marshall v. Barlow's Inc., 436 U.S.
307, 311-25 (1978). The protections and requisites afforded by
the Fourth Amendment likewise apply to administrative
subpoenas. See, 387 U.S. at 543-44. Further, “[t}he Warrant
Clause of the Fourth Amendment protects commercial buildings
as well as private homes. To hold otherwise would belie the
origin of that Amendment, and the American colonial
experience.” Barlow's, Inc., 436 U.S. at311.
In addition to mandating a warrant in inspection
circumstances, Barlow's, Inc. “also outlined the probable cause
showing necessary for the issuance of an administrative
inspection warrant.” Donovan v. Wollaston Alloys, Inc., 695 F.2d
1,5 (1st Cir. 1982). Succinctly, an issued warrant or subpoena
may be svstained, on a probable cause challenge, only where
there is “specific evidence of an existing violation [or] ...a
showing that ‘reasonable legislative or administrative standards
for conducting an. . . inspection are satisfied with respect toa
particular [establishment].’ " Barlow's, Inc., 436 U.S. at 320
(footnote omitted) (quoting Camara v. Municipal Court, 387
U.S. 523, 538 (1967)). As enunciated in Barlow's, Inc.:
The authority to make warrantless searches
devolves almost unbridled discretion upon
executive and administrative officers,
particularly those in the field, as to when to
search and whom to search. A warrant, by
contrast, would provide assurances from a
neutral officer that the inspection is
48a
Appendix E
reasonable under the Constitution, is
authorized by statute, and is pursuant to an
administrative plan containing specific
neutral criteria. Also, a warrant would then
and there advise the owner of the scope and
objects of the search, be; cnd which limits the
inspector is not expected to proceed. These
are important functions for a warrant to
perform, functions which underlie the
Court’s prior decisions that the Warrant
Clause applies to inspections for compliai:ze
with regulatory statutes.
Barlow's, Inc., 436 U.S. at 323-24 (footnote omitted).
Against the Barlow's, Inc. backdrop, the following
requirements for enforcement of an administrative subpoena
must be met: (1) the inquiry must be within the authority of the
agency, (2) the demand for production must not be too indefinite,
and (3) the information sought must be reasonably relevant to the
authorized inquiry. United States v. Westinghouse Electric
Corp., 638 F.2d 570, 574 (3d Cir. 1980); United States v. Morton
Salt Co., 338 U.S. 632, 652 (1950). With respect to the first and
third factors noted above, ample consideration should be given
to whether the subpoena seeks to enforce a violation of a safety
or health standard issued by OSHA ora violation of the general
duty clause. See Reich v. Montana Sulphur & Chemical Co., 32
F.3d 440, 445-47 (9th Cir. 1994).
In the case at hand, OSHA has failed to comply with the
above mentioned standards. Fundamentally, given the facts
presented in this case, itis apparent that OSHA was not acting
pursuant to any statutory authority when it issued a subpoena
eS wey ee se
49a
Appendix E
and, therefore, lacked the probable cause necessary for obtaining
the subpoena.
As defendant has pointed out, at the time OSHA sought
certain documents from the defendant by use of a subpoena,
OSHA had not promulgated any standards pertaining to
ergonomics nor were any in place from congressional
legislation. Heedful of the already complicated requiremen’s
associated with being in businesses, employers cannot be
expected to adhere to policies or procedures not properly
authorized. Irrefragably, allowing such unauthorized review or
practices by government agencies would create “ ‘unbridled
discretion’ in the hands of inspection officers.” WollastonAlloys
Inc., 695 F.2d at 5. Further, absent any standards authorized by
OSHA or the legislature, defendant had no obligation or
responsibility to comply with plaintiff's request for documents.
(29C.F.R., Ch. XVII, Section 1903.1, provides that employers
are only required to “comply with occupational safety and health
standards promulgated under the Act. . . .” (Emphasis added.))
To recapitulate, with no statutory authority to review a
particular issue, there likewise was no statutory authority to
conduct investigations. It follows that, where the Act fails to
establish a standard, OSHA has no authority to review the
procedures and environment of a business by issuing a warrant
or subpoena. Thus, the subpoena should not be enforced. See
Trinity Industries v. OSHRC, 16 F.3d 1455, 1463 (6th Cir. 1994);
Donovan v. Sarasota Concrete Co., 9O.S.H. Cas. (BNA) 1608,
1614(Rev. Comm. 1981), aff’d, 693 F.2d 1061 (11th Cir. 1982)
(when “the Secretary fails to meet the relaxed standard of
administrative probable cause as articulated by the [Supreine]
Court in Barlow's, the resulting inspection is invalid and [the
Commission is] required to exclude the illegally-seized
evidence”).
50a
Appendix E
Even the grant of authority vested in OSHA by the general
duty clause of the Act does not encompass or provide
justification for issuing a subpoena and conducting an
investigation into CTD and ergonomics. In Pepperidge Farm,
Inc., 1993 WL 132982 (OSHRC), the Administrative Law Judge
held that the general duty clause of the Act does not empower
OSHA to review repetitive motion injuries because of the lack of
viable means for abating the hazards inherent in the job function.
Thus, as OSHA appears to have no authority under the general
duty clause of the Act for conducting searches pertaining to
repetitive motion injuries, there is further support for the
conclusion that the subpoena requesting ergonomic-related
documentation should not be enforced.
As a brief but relevant aside, plaintiff points to a few
enactments and cases which purportedly discuss and allow
OSHA authority to conduct searches and subpoena documents.
Nevertheless, a cursory scan of these enactments and cases
indicates the case at hand is easily distinguishable.
For instance, plaintiff offers that pursuant to 29 C.F.R., Ch.
XVII, §§ 1904.2 and 1904.4, some records which are requested
within the subpoena are required by law to be maintained by the
defendant. By refusing to provide certain records, namely the
1993 OSHA 200 logs and the first report of injury document,
plaintiff asserts that the defendant is in direct violation of
§§ 1904.2, 1904.4, et seq.
Even though plaintiff is correct that §§ 1904.2 and 1904.4
require employers to maintain certain documents and forms,
plaintiff is incorrect in inferring that employers are required,
merely upon request, without more, to submit the forms for
OSHA review. Rather, courts have consistently “concluded that
Sla
Appendix E
employers ... have a privacy interest in the information
contained in their Form 200’s” and other documents required to
be maintained. See Reich v. National Engineering & Contracting
Co., 13 F.3d. 93, 98 (4th Cir. 1993); McLaughlin v. Kings Island,
849 F.2d 990, 995 (6th Cir. 1988) (“employers have a
recognizable privacy interest in [their Form 200’s], even though
the employer is required by law to keep them”); Brock v. Emerson
Elec. Co. Elec. & Space Div., 834 F.2d 994, 996 (11th Cir. 1987)
(“We find no reason to conclude that the privacy interest which
normally attaches to commercial information does not attach [to
the information on Form 200’s].”). Further, recognizing the
privacy interest in such forms, the Supreme Court has rejected
the contention that OSHA may inspect documents, albeit
required by law to be maintained, without proper authority.
Barlow's, Inc., 436 U.S. at 324 n.22 (“It is the Secretary's
positon, which we reject, that an inspection of documents of this
scope may be effected without a warrant.”)
Iterating, although §§ 1904.2, et seg., certainly do enunciate
requirements which must be followed by businesses, the
sections do not enable OSHA to circumvent Fourth Amendment
rights and conduct discretionary or “willy-nilly” searches. Thus,
in following and considering plaintiff's argument concerning
the underlying omnipotence of §§ 1904.2, et seg., the court ends
precisely where it began. A showing of probable cause and
proper authority must be made before OSHA will be entitled to
review documents required to be maintained under § 1904.2,
et seq.
In further emphasizing the authority vested in OSHA,
plaintiff draws attention to a myriad of case law purporting to
establish or explain the permissible reach of OSHA’s authority
to search business premises and subpoena documents.
52a
Appendix E
Specifically, under cases such as Matter of Kelly-Springfield
Tire Co., 13 F.3d 1160 (7th Cir. 1994) and Matter of Samsonite
Corp., 756 F. Supp. 498 (D. Colo. 1991), plaintiff contends that
courts have held that OSHA is empowered to issue subpoenas
and review documents pertaining to repetitive trauma injuries.
Here again, the cases cited by the plaintiff are
distinguishable from the case at hand.
As apertinent consideration, 29 U.S.C. § 657(f)(1) provides
that:
Any employees or representative of
employees who believe that a violation of a
safety or health standard exists that threatens
physical harm, or that an imminent danger
exists, may request an inspection by giving
notice to the Secretary or his authorized
representative of such violation or
danger.... Jf upon receipt of such
notification the Secretary determines there
are reasonable grounds to believe that such
violation or danger exists, he shall make a
special inspection in accordance with the
provisions of this section. ...
(Emphasis added.)
Paraphrasing 29 U.S.C § 657(f), “OSHA is authorized. . . to
conduct investigations in response to employee
complaints. . . .” Montana Sulphur & Chemical Co., 32 F.3d at
444. “[A]uthorized complaint-based investigations are those
which relate to the ‘violation or danger’ alleged.” Jd. at 447.
ent leas Ra shale is Te gil ala iain ah tg Sh Milas gt il hj, Ligh ica Naa sped A yA ih at BBS aiMecdpereiatc’ boas.
53a
Appendix E
Fundamental to this form of investigation is the existence of a
complaint triggering OSHAauthority. Trinity Industries, 16F.3d
at 1460.
Recognizing the significance of a complaint to an
authorized complaint-based investigation, absent any indication
that an injury has occurred or absent any complaint reported by
an employee or representative, § 657 should not be construed as
empowering OSHA to conduct broad and exploratory
investigations. See Barlow’s, Inc., 436 U.S. at 315 (“That an
employee is free to report, and the Governmentis free to use, any
evidence of noncompliance with OSHA that the employee
observes furnishes no justification for federal agents to enter a
place of business from which the public is restricted and to
conduct their own warrantless search.” (footnote omitted));
Trinity Industries, Inc., 904 F.2d at 868 (“Under section 8(f) of
theAct, 29 U.S.C. § 657(f), such acomplaint can, and in this case
did, trigger an inspection of the conditions described.” (footnote
omitted)); National Engineering & Contracting Co., 13 F.3dat
99 (“OSHA was plainly acting within its authority when, in
response to two falls by employees at one of the Companies’
worksites, it inquired into whether ‘the overall fall protection
program’ used by the Companies at all of their worksites was
adequate” (footnote omitted)).
Considering the above-mentioned framework, the
important and distinguishing feature between the case at hand
and the cases relied upon by the plaintiff is that, here, OSHA was
not conducting its investigation of ergonomics pursuant to
complaint-based authority. Rather, as plaintiff itself admits,
prior to the inspection, OSHA received information from the
State of New Hampshire which prompted it to develop an
inspection roster listing employees with potential adverse
54a
Appendix E
conditions of employment. Thus, as the major impetus behind
plaintiff's search of defendant’s plant was a report compiled by
the New Hampshire Bureau of Worker’s Compensation, OSHA's
selection of defendant’s plant for review does not appear to be
based on neutral criteria. See Marshall v. Weyerhaeuser Co., 456
F. Supp. 474, 483 (D.N.J. 1978); Barlow’s, Inc., 436 U.S. at 307;
Sarasota Concrete Co., 693 F.2d at 1068 (“administrative and
legislative guidelines ... ensure that [employers selected for
inspection pursuant to neutral administrative plans have not
been] chosen simply for the purpose of harassment”).
Analogously, although the inspection of defendant’s
facility pertaining to air quality may have been pursuant to legal
and valid authority, that authority did not transcend into an
ability to conduct an investigation into unrelated matters.
Pursuant to 29C.F.R., Ch. XVII, Section 1903.3, officers of the
Department of Labor are authorized to “review records required
by the Act and regulations published in this chapter, and other
records which are directly related to the purpose of the
inspection.” (Emphasis added.) Courts have required that the
scope or degree of a plant inspection, in response to anemployee
complaint, shall be limited to the conditions described within the
complaint. Marshall v. North American Car Co., 626 F.2d 320
(3d Cir. 1980); West Point-Pepperell Inc. v. Donovan, 689 F.2d
950(11th Cir. 1982). Thus, where OSHA was authorized, subject
to a complaint, to conduct a search or investigation of
defendant’s plant concerning air ambiance, plaintiff was not
allowed to broaden or ripen that search into an investigation of
unrelated ergonomic matters. Sarasota Concrete Co., 693 F.2d
at 1068 (“a complaint inspection must bear an appropriate
relationship to the violation alleged in the complaint”).
Performing such an unrelated “wall-to-wall” investigation
would constitute an impermissible “bootstrapping” or “fishing
55a
Appendix E
expedition.” See Montana Sulphur & Chemical Co., 32 F.3d
at 446.
II. Improper Purpose
Defendant contends that “OSHA has abused the subpoena
process in the circumstances of this case by acting for an
improper purpose. . . .” (Defendant’s Memorandum opposing
Application for Order Enforcing an Administrative Subpoena,
document no. 6, at 7-8.) Specifically, defendant asserts that
OSHA misled defendant about particular purposes associated
with obtaining access to the plant. Additionally, defendant
maintains that at the same time plaintiff sought information from
defendant, defendant requested plaintiff to provide information
concerning certain programs and the method used to select
defendant for participation in the programs. Defendant
maintains that plaintiff has failed to provide such information.
As & succinct response to the concerns raised by the
defendant, the facts and issues propounded by the defendant
appear to closely track the probable cause issues previously
addressed. This being the case, there appears to be little utility in
rehashing pricr findings and conclusions.
Conclusion
The legal principles deriving from the Fourth Amendment
are apodictic that government agencies will not be allowed to
conduct fishing expeditions within private businesses under the
guise of a search similar to that in Barlow’s, Inc., or seizure by
way of administrative subpoena, in the hope that some useful
findings will turn up. Such conduct “flies in the face of the spirit,
if not the letter,” of the right against unlawful searches and
56a
Appendix E
seizures. Freese v. F.D.1.C., 837 F. Supp. 22, 25 (D.N.H.1993);
Matter of Kelly-Springfield Tire Co., 13 F.3d at 1166 (“An
employer has a right to have his worksite free of interruptions
and intrusions... .”).
With the above in mind, because OSHA has failed to
demonstrate how enforcement of its policies are related to(1) a
violation of a safety and health standard issued by OSHA or (2)
a violation of Section 654(a)(1) of the Act, OSHA’s issuance of
a subpoena on the defendant should be viewed as being without
authority or legal support. It is, therefore, recommended that
plaintiff’s application for order enforcing an administrative
subpoena (document no. 1) be denied.
Any objections to this report and recommendation must be
filed within ten days of receipt of this notice. Failure to file
objections within the specified time waives the right to appeal.
See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.
1986).
s/ William H. Barry
William H. Barry, Jr.
United States Magistrate Judge
March 13, 1995
cc: David Baskin, Esq.
Gretchen Witt, Esq.
Jeremy Ritzenberg, Esq.
57a
APPENDIX F — RELEVANT REGULATIONS
AND STATUTES
29 C.F.R. § 1903.4
§ 1903.4 Objection to inspection
(a) Upon a refusal to permit the Compliance Safety and
Health Officer, in exercise of his official duties, toenter without
delay and at reasonable times any place of employment or any
place therein, to inspect, to review records, or to question any
employer, owner, operator, agent, or employee, in accordance
with § 1903.3 or to permit a representative of employees to
accompany the Compliance Safety and Health Officer during the
physical inspection of any workplace in accordance with
§ 1983.8, the Safety and Health Officer shall terminate the
inspection or confine the inspection to other areas, conditions,
structures, machines, apparatus, devices, equipment, materials,
records, or interviews concerning which no objection is raised.
The Compliance Safety and Health Officer shall endeavor to
ascertain the reason for such refusal, and shall immediately
report the refusal and the reason therefor to the Area Director.
The Area Director shall consult with the Regional Solicitor, who
shall take appropriate action, including compulsory process, if
necessary.
(b) Compulsory process shall be sought in advance of an
attempted inspection or investigation if, in the judgment of the
Area Director and the Regional Solicitor, circumstances exist
which make such preinspection process desirable or necessary.
Some examples of circumstances in which it may be desirable or
necessary to seek compulsory process in advance of an attempt
(o inspect or investigate include (but are not limited to):
(1) When the employer’s past practice either implicitly or
58a
Appendix F
explicitly puts the Secretary on notice that a warrantless
inspection will not be allowed;
(2) When an inspection is scheduled far from the local
office and procuring a warrant prior to leaving to conduct the
inspection would avoid, in case of refusal of entry, the
expenditure of significant time and resources to return to the
office, obtain a warrant and return to the worksite;
(3) When an inspection includes the use of special
equipment or when the presence of an expert or experts is needed
in order to properly conduct the inspection, and procuring a
warrant prior to an attempt to inspect would alleviate the
difficulties or costs encountered in coordinating the availability
of such equipment or expert.
(c) With the approval of the Regional Administrator and the
Regional Solicitor, compulsory process may also be obtained by
the Area Director or his designee.
(d) For purposes of this section, the term compulsory
process shall mean the institution of any appropriate action,
including ex parte application for an inspection warrant or its
equivalent. Ex parte inspection warrants shall be the preferred
form of compulsory process in all circumstances where
compulsory process is relied upon to seek entry to a workplace
under this section.
29 C.F.R. § 1904.7
§ 1904.7 Access to records.
(a) Each employer shall provide, upon request, records
59a
Appendix F
provided for in §§ 1904.2, 1904.4, and 1904.5, for inspection and
copying by any representative of the Secretary of Labor for the
purpose of carrying out the provisions of the act, and by
representatives of the Secretary of Health, Education, and
Welfare during any investigation under section 20(b) of the act,
or by any representative of a State accorded jurisdiction for
occupational safety and health inspections or for statistical
compilation under sections 18 and 24 of the act.
(b)(1) The log and summary ofall recordable occupational
injuries and illnesses (OSHA No. 200) (the log) provided for in
§ 1904.2 shall, upon request, be made available by the employer
to any employee, former employee, and to their representatives
for examination and copying in a reasonable manner and at
reasonable times. The employee, former employee, and their
representatives shall have access to the log for any establishment
in which the employee is or has been employed.
(2) Nothing in this section shall be deemed to preclude
employees and employee representatives from collectively
bargaining to obtain access to information relating to
occupational injuries and illnesses in addition to the information
made available under this section.
(3) Access to the log provided under this section shall
pertain to all logs retained under the requirements of § 1904.6.
ES ET Ne eC ee
60a
Appendix F
PUBLIC LAW 104-99
Public Law 104-99
104th Congress
H.R. 2880
AnAct
Making appropriations for fiscal year 1996 to makea
downpaymeni toward a balanced budget,
and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
following sums are hereby appropriated, out of any money in the
Treasury not otherwise appropriated and out of applicable
corporate or other revenues, receipts, and funds, for the several
departments, agencies, corporations, and other organizational
units of Government for the fiscal year 1996, and for other
purposes, namely:
(c) Whenever an Act listed in this section has been passed
by only the House or only the Senate as of the date of enactment
of this Act, the pertinent project or activity shall be continued
under the appropriation, fund, or authority granted by the one
House at arate for operations notexceeding the current rate or the
rate permitted by the action of the one House, whichever is lower,
and under the authority ad conditions provided in the applicable
appropriations Act for the fiscal year 1995: Provided, That where
an item is funded in the applicable appropriations Act for the
fiscal year 1995 and not included in the version passed by the one
6la
Appendix F
House as of the date of enactment of this Act, the pertinent
project or activ’ty shall not be continued except as provided for
in section 111 under the appropriation, fund, or authority granted
by the applicable appropriations Act for the fiscal year 1995 and
under the authority and conditions provided in the applicable
appropriations Act for the fiscal year 1995.
* * *
PUBLIC LAW 104-19
EMERGENCY SUPPLEMENTAL APPROP.
GENERAL PROVISIONS
* * *
SEC. 602. None of the funds made available in any
appropriations Act for fiscal year 1995 may be used by the
Occupational Safety and Health Administration to promulgate
or issue any proposed or final standard or guideline regarding
ergonomic protection. Nothing in this section shall be construed
to limit the Occupational Safety and Health Administration from
conducting any peer-reviewed risk assessment activity
regarding ergonomics, including conducting peer reviews of the
scientific basis for establishing any standard or guideline, direct
or contracted research, or other activity necessary to fully
establish the scientific basis for promulgating any standard or
guideline on ergonomic protection.
62a
Appendix F
29 U.S.C. § 654
§ 654. Duties of employers and employees
(a) Eachempioyer —
(1) shall furnish toeach of hisemployees employment
and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or
serious physical harm to his employees;
(2) shall comply with occupational safety and health
standards promulgated under this chapter.
* * *
29 U.S.C. § 655
§ 655. Standards
(a) Promulgation by Secretary of national consensus
standards and established Federal standards; time for
promulgation; conflicting standards
Without regard to chapter 5 of Title 5 or to the other
subsections of this section, the Secretary shall, as soon as
practicable during the period beginning with the effective date of
this chapter and ending two years after such date, by rule
promulgate as an occupational safety or health standard any
national consensus standard, and any established Federal
standard, unless he determines that the promulgation of sucha
standard would not result in improved safety or health for
specifically designated employees. In the event of conflict
63a
Appendix F
among any such standard, the Secretary shall promulgate the
standard which assures the greatest protection of the safety or
health of the affected employees.
(b) Procedure for promulgation, modification, or
revocation of standards
The Secretary may by rule promulgate, modify, or revoke
any occupational safety or health standard in the following
manner:
(1) Whenever the Secretary, upon the basis of
information submitted to him in writing by an interested
person, a representative of any organization of employers
or employees, a nationally recognized standards-producing
organization, the Secretary of Health and Human Services,
the National Institute for Occupational Safety and Health,
or a State or political subdivision, or on the basis of
information developed by the Secretary or otherwise
available to him, determines that a rule should be
promulgated in order to serve the objectives of this chapter,
the Secretary may request the recommendations of an
advisory committee appointed under section 656 of this
title. The Secretary shall provide such an advisory
committee with any proposals of his own or of the Secretary
of Health and Human Services, together with all pertinent
factual information developed by the Secretary or the
Secretary of Health and Human Services, or otherwise
available, including the results of research,
demonstrations, and experiments. An advisory committee
shall submit to the Secretary its recommendations
regarding the rule to be promulgated within ninety days
from the date of its appointment or within such longer or
64a
Appendix F
shorter period as may be prescribed by the Secretary, but in
no event fora period which is longer than two hundred and
seventy days.
(2) The Secretary shall publish a proposed rule
promulgating, modifying, or revoking an occupational
safety or health standard in the Federal Register and shall
afford interested persons a period of thirty days after
publication to submit written data or comments. Where an
advisory committee is appointed and the Secretary
determines that arule should be issued, he shall publish the
proposed rule within sixty days after the submission of the
advisory committee’s recommendations or the expiration
of the period prescribed by the Secretary for such
submission.
(3) Onor before the last day of the period provided for
the submission of written data or comments under
paragraph (2), any interested person may file with the
Secretary written objections to the proposed rule, stating
the grounds therefor and requesting a public hearing on
such objections. Within thirty days after the last day for
filing such objections, the Secretary shall publish in the
Federal Register a notice specifying the occupational
safety or health standard to which objections have been
filed and a hearing requested, and specifying a time and
place for such hearing.
(4) Within sixty days after the expiration of the period
provided for the submission of written data or comments
under paragraph (2), or within sixty days after the
completion of any hearing held under paragraph (3), the
Secretary shall issue a rule promulgating, modifying, or
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revoking an occupational safety or health standard or make
a determination that arule should not be issued. Such arule
may contain a provision delaying its effective date for such
period (not in excess of ninety days) as the Secretary
determines may be necessary to insure that affected
employers and employees will be informed of the existence
of the standard and its terms and thatemployers affected are
given an opportunity to familiarize themselves and their
employees with the existence of the requirements of the
Standard.
(7) Any standard promulgated under this subsection
Shall prescribe the use of labels or other appropriate forms
of warning as are necessary to insure that employees are
apprised of all hazards to which they are exposed, relevant
Symptoms and appropriate emergency treatment, and
proper conditions and precautions of safe use or exposure.
Where appropriate, such standard shall also prescribe
suitable protective equipment and control or technological
procedures to be used in connection with such hazards and
Shall provide for monitoring or measuring employee
exposure at such locations and intervals, and in such
manner as may be necessary for the protection of
employees. In addition, where appropriate, any such
standard shall prescribe the type and frequency of medical
examinations or other tests which shall be made available,
by the employer or at his cost, toemployees exposed to such
hazards in order to most effectively determine whether the
health of such employees is adversely affected by such
exposure. In the event such medical examinations are in the
nature of research, as determined by the Secretary of Health
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and Human Services, such examinations may be furnished
at the expense of the Secretary of Health and Human
Services. The results of such examinations or tests shall be
furnished only to the Secretary or the Secretary of Health
and Human Services, and, at the request of the employee, to
his physician. The Secretary, in consultation with the
Secretary of Health and Human Services, may by rule
promulgated pursuant to section 553 of Title 5, make
appropriate modifications in the foregoing requirements
relating to the use of labels or other forms of warning,
monitoring or measuring, and medical examinations, as
may be warranted by experience, information, or medical
or technological developments acquired subsequent to the
promulgation of the relevant standard.
(8) Whenever a rule promulgated by the Secretary
differs substantially from an existing national consensus
standard, the Secretary shall, at the same time, publish in
the Federal Register a statement of the reasons why the rule
as adopted will better effectuate the purposes of this chapter
than the national consensus standard.
(c) Emergency temporary standards
(1) The Secretary shall provide, without regard to the
requirements of chapter 5 of Title 5, foran emergency temporary
standard to take immediate effect upon publication in the Federal
Register if he determines (A) that employees are exposed to
grave danger from exposure to substances or agents determined
to be toxic or physically harmful or from new hazards, and (B)
that suchemergency standard is necessary to protect employees
from such danger.
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(2) Such standard shall be effective until superseded bya
Standard promulgated in accordance with the procedures
prescribed in paragraph (3) of this subsection.
(3) Upon publication of such standard in the Federal
Register the Secretary shall commence a proceeding in
accordance with subsection (b) of this section, and the standard
as published shall also serve as a proposed rule for the
proceeding. The Secretary shall promulgate a standard under
this paragraph no later than six months after publication of the
emergency standard as provided in paragraph (2) of this
subsection.
29 U.S.C. § 657
§ 657. Inspections, investigations, and recordkeeping
(a) Authority of Secretary to enter, inspect, and
investigate places of employment; time and manner
In order to carry out the purposes of this chapter, the
Secretary, upon presenting appropriate credentials to the owner,
operator, or agent in charge, is authorized —
(1) to enter without delay and at reasonable times any
factory, plan, establishment, construction site, or other
area, workplace or environment where work is performed
by an employee of an employer; and
(2) to inspect and investigate during regular working
hours and at other reasonable times, and within reasonable
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limits and in a reasonable manner, any such place of
employment and all pertinent conditions, structures,
machines, apparatus devices, equipment, and materials
therein, and to question privately any such employer,
owner, operator, agent oremployee.
(b) Attendance and testimony of witnesses and production
of evidence; enforcement of subpoena
In making his inspections and investigations under this
chapter the Secretary may require the attendance and testimony
of witnesses and the production of evidence under oath.
Witnesses shall be paid the same fees and mileage that are paid
witnesses in the courts of the United States. In case of a
contumacy, failure, or refusal of any person to obey such an
order, any district court of the United States or the United States
courts of any territory or possession, within the jurisdiction of
which such person is found, or resides or transacts business,
upon the application by the Secretary, shall have jurisdiction to
issue to such person an order requiring such person to appear to
produce evidence if, as, and when so ordered, and to give
testimony relating to the matter under investigation or in
question, and any failure to obey such order of the court may be
punished by said court as a contempt thereof.
(c) Maintenance, preservation, and availability of
records; issuance of regulations; scope of records; periodic
inspections by employer; posting of notices by employer;
notification of employee of corrective action
(1) Each employer shall make, keep and preserve, and
make available to the Secretary or the Secretary of Health and
Human Services, such records regarding his activities relating to
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this chapter as the Secretary, in cooperation with the Secretary of
Health and Human Services, may prescribe by regulation as
necessary or appropriate for the enforcement of this chapter or
for developing information regarding the causes and prevention
of occupational accidents and illnesses. In order to carry out the
provisions of this paragraph such regulations may include
provisions requiring employers to conduct periodic inspections.
The Secretary shall also issue regulations r
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