UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1918
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
STURM, RUGER & COMPANY, INC.,
Respondent, 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. 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. On the surface this case appears SELYA, Circuit Judge.
to touch a sensitive nerve: how the Occupational Safety and
Health Act (OSH Act), 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 a run-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.
I. BACKGROUND 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 LEP identified 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.
II. SUBPOENA ENFORCEMENT II. 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 A
An administrative subpoena is not self-executing and is
therefore technically not a "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
subpoena are not onerous.1 In order to obtain judicial backing
1We note that the subpoena at issue here seeks only corporate documents, and thus does not raise any of the concerns discussed in In re Subpoena of Roger Gimbel, 77 F.3d 593, 596-600
(2d Cir. 1996).
the 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 (1st Cir. 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).
B B
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).
We will not dance to the respondent's tune. At
present, OSHA is not seeking to conduct an inspection or any
other physical search of Sturmco's premises, but, rather, merely
to enforce a subpoena duces tecum.2 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 a reasonable administrative standard, they
have no bearing on the question we must decide.
C C
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 1. The Statutory Scheme.
distinct duties on employers. First, employers must comply with
specific workplace health and safety standards established by
2It is 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).
OSHA. See 29 U.S.C. 654(a)(2). To this end, the Act grants
OSHA authority to promulgate such standards.3 See id. 655.
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 and a place of
employment which are free from recognized hazards." Id.
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
3Although 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 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.
duty clause), cert. denied, 484 U.S. 976 (1987).
OSHA asserts as authority for the instant subpoena its
power to investigate possible violations of the general duty
clause. It is 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.
2. "Recognized Hazards". In an effort to make an end 2. "Recognized Hazards".
run 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., OSHRC 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.4 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.
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
4Both 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.
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 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 at the problem 3. A Variation on the Theme.
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 a new argument into a case.
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).
In all events, 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 in a poke, and we
refuse to do 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 (1st 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 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." Id.
4. Recapitulation. We need go no further. OSHA's 4. Recapitulation.
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 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 a cross-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
importuning further attention. Accordingly, the subpoena must be
enforced.
III. CITATION ENFORCEMENT III. 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 OSH Act and 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 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 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. Affirmed.
5Sturmco 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.