672 F.2d 1262 (7th Cir. 1982), 80-2013, Dow Chemical Co. v. Allen

Docket Nº:80-2013.
Citation:672 F.2d 1262
Party Name:Envtl. The DOW CHEMICAL COMPANY, Intervening Petitioner-Appellant, v. Dr. James R. ALLEN and John Van Miller, Respondents-Appellees, and James P. Wachtendonk, et al., Intervening Respondents-Appellees.
Case Date:February 25, 1982
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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672 F.2d 1262 (7th Cir. 1982)


The DOW CHEMICAL COMPANY, Intervening Petitioner-Appellant,


Dr. James R. ALLEN and John Van Miller, Respondents-Appellees,


James P. Wachtendonk, et al., Intervening Respondents-Appellees.

No. 80-2013.

United States Court of Appeals, Seventh Circuit

February 25, 1982

Argued Jan. 16, 1981.

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Edward W. Warren, Washington, D. C., Kirkland & Ellis, Chicago, Ill., for intervening petitioner-appellant.

J. Timothy Gratz, Madison, Wis., Victor J. Yannacone, Jr., Yannacone & Yannacone, Patchogue, N. Y., for respondents-appellees.

Before FAIRCHILD, Senior Circuit Judge, PELL, Circuit Judge, and SPEARS, Senior District Judge. [*]

FAIRCHILD, Senior Circuit Judge.

At issue in this case is whether a private corporation, Dow Chemical Company, threatened with possible government cancellation of certain herbicides it manufactures, may compel through administrative subpoenas University of Wisconsin researchers

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to disclose all of the notes, reports, working papers, and raw data relating to on-going, incomplete animal toxicity studies so that it may evaluate that information with a view toward possible use at the cancellation hearings. The administrative law judge, at the request of Dow and over the objection of the Office of General Counsel of the Environmental Protection Agency, issued such subpoenas, but the district court refused to enforce them. We affirm the judgment of the district court and hold that the present facts do not warrant forced disclosure of the university research information.

I. Background

This case arises out of four research studies at the University of Wisconsin involving the dietary ingestion by rhesus monkeys of a chemical compound, 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), at levels of 500 parts per trillion (ppt), 50 ppt, 25 ppt, and 5 ppt, respectively. Relying in part on evidence from the 500 ppt study, the Environmental Protection Agency (EPA) ordered emergency suspension of certain uses of two herbicides Dow manufactures and scheduled cancellation hearings relevant thereto. The subpoenas now at issue relate to information about the 25 ppt and 5 ppt studies. 1 The procedures and objectives of the studies, the parties to the litigation, the proceedings before the EPA, and the ruling of the administrative law judge (ALJ) are set forth in the opinion of the district court, as are the court's reasons for refusing to enforce the subpoenas. See United States v. Allen, 494 F.Supp. 107 (W.D.Wis.1980). 2 We rely on that background and will not recount those matters except as is relevant to our discussion of particular issues.

II. Judicial Enforcement of Administrative Subpoenas

  1. Basic Principles

    Under section 6(d) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136d(d), a district court has jurisdiction to enforce a subpoena issued by an administrative law judge. 3 Leaving enforcement to the courts indicates that Congress intended that judges should not merely rubber-stamp the subpoenas that come before them. See generally F.T.C. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 974 (D.C.Cir.1980); S.E.C. v. Arthur Young & Co., 584 F.2d 1018, 1032-1033 (D.C.Cir.1978); N. L. R. B. v. Northern Trust Co., 148 F.2d 24, 29 (7th Cir. 1945). But, while a district court's enforcement function is "neither minor nor ministerial," Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 217 n.57, 66 S.Ct. 494, 509-10 n.57, 90 L.Ed. 614 (1946), it is well established that it is a narrowly limited one, see United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70 S.Ct. 357, 368-69, 94 L.Ed.

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    401 (1950); Oklahoma Press, supra, 327 U.S. at 216-218, 66 S.Ct. at 509-10; F.T.C. v. Texaco, Inc., 555 F.2d 862, 871-872 (D.C.Cir.1977). Under what Dow refers to as the Morton Salt test, it is frequently said that in deciding whether to enforce, "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." Morton Salt, supra, 338 U.S. at 652, 70 S.Ct. at 369; see also, e.g., F.T.C. v. Anderson, 631 F.2d 741, 745 (D.C.Cir.1979) (quoting Morton Salt ). However, this formulation of the rule, standing by itself, is something of an overstatement, for it is also clearly recognized that disclosure may be restricted where it would impose an unreasonable or undue burden on the party from whom production is sought. See, e.g., F.T.C. v. Shaffner, 626 F.2d 32, 38 (7th Cir. 1980); Texaco, supra, 555 F.2d at 881-882. The burdensomeness test finds its genesis in the Fourth Amendment, which prescribes that disclosure shall not be unreasonable. See Oklahoma Press, supra, 327 U.S. at 208, 66 S.Ct. at 505. "What is unduly burdensome depends on the particular facts of each case and no hard and fast rule can be applied to resolve the question." Shaffner, supra, 626 F.2d at 38. "Some burden on subpoenaed parties is to be expected and is necessary in furtherance of the agency's legitimate inquiry and the public interest." Texaco, supra, 555 F.2d at 882. "The burden of showing that the request is unreasonable is on the subpoenaed party ... (and) is not easily met where ... the agency inquiry is pursuant to a lawful purpose and the requested documents are relevant to that purpose." Id. at 882; see also United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964).

    A finding by the district court that documents are reasonably relevant to a legitimate agency purpose cannot be overturned absent a showing that the factual determinations on which it is based are clearly erroneous, see Anderson, supra, 631 F.2d at 746; F.T.C. v. Lonning, 539 F.2d 202, 210 n.14 (D.C.Cir.1976), or that the ruling itself constitutes an abuse of discretion, see Northern Trust, supra, 148 F.2d at 29. Similarly, court assessments of whether disclosure would be burdensome and of what restrictions might be appropriate are decisions within the sound discretion of the trial court and should only be reversed for abuse of discretion, see Lonning, supra, 539 F.2d at 111, save where they are intimately tied to a misunderstanding of law, in which case the ordinary standard of error applies, see Texaco, supra, 555 F.2d at 881, 882.

  2. The District Court's Analysis

    1. Scope of Review

    Dow takes exception to the district court's characterization of the application for enforcement as a de novo proceeding. 4 It is true, as documented above, that the questions which are presented to a district court by such an application are quite limited. In resolving them, however, the court is not confined to examining the record made before the agency, as is more often the case in judicial review of administrative decisions. The ALJ's decision to issue the subpoenas and his denial of the motion to quash are not binding on the court as to the questions properly presented. 5

    Dow also contends that the district court erroneously failed to apply the Morton Salt standard. Indeed, courts have held the Morton Salt test applicable to adjudicatory subpoenas as well as to those issued for

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    purposes of investigation. See Anderson, supra, 631 F.2d at 745; F.T.C. v. Browning, 435 F.2d 96, 102 (D.C.Cir.1970). Nonetheless, we do not think it was inappropriate for the district court to have differentiated these two situations. Even if both instances are governed by the Morton Salt criterion of reasonable relevance, "(t)here is, of course, a difference in that the relevancy of an investigatory subpoena is measured against the 'general purposes of (the agency's) investigation,' ... while relevancy of an adjudicative subpoena is measured against the charges specified in the complaint." Anderson, supra, 631 F.2d at 746 (brackets in original; citations omitted). The bounds of relevance therefore tend to be broader in the investigatory context.

    Thus, the district court properly took cognizance of the fact that the subpoenas were requested in aid of adjudicative discovery. We do not view the Morton Salt doctrine as excluding from consideration the question whether the burden of compliance was unreasonable. We reject Dow's argument that the court adhered to an erroneous view of the law.

    2. Balancing

    The basis for the district court's decision was that the subpoenas were unduly burdensome on the respondents. It stated that from the reference to protective orders in the applicable statutory section 6 it logically follows that a subpoena request can be denied where the burden of compliance is too great. The court wrote:

    "Whether a subpoena duces tecum is unduly burdensome 'is, of course, a matter to be decided in the light of all the circumstances of the case, with an eye to the need for the material on the one hand, and the burden imposed and the possibility of lightening it through a protective order on the other. See In re Zuckert (D.D.C.1961) 28 F.R.D. 29 ....' 5A Moore's Federal Practice P 45.05(q) note 44." 494 F.Supp. at 112. 7

    Addressing Dow's need for the subpoenaed documents, the court stated:

    "There is little question that the information is in fact relevant but that its probative value at this stage of the study is quite limited. Dow does not dispute (Mr. John) Van Miller's statement that it is not possible to conclude even tentatively that there is a cumulative no-effect level 8 for maternal or reproductive toxicity at this point of the studies. Absent the ability to infer a no-effect level of TCDD, information that the test animals are showing no effects is not particularly probative." 494 F.Supp. at 113 (emphasis and footnote added).

    Noting that Dr. James R. Allen was no longer...

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