Reich v. National Engineering & Contracting Co., No. 92-2598

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore RUSSELL, Circuit Judge, SPROUSE; DONALD RUSSELL
Citation13 F.3d 93
Parties16 O.S.H. Cas.(BNA) 1489, 16 O.S.H. Cas.(BNA) 1608, 1994 O.S.H.D. (CCH) P 30,285 Robert B. REICH, Secretary of Labor, Petitioner-Appellee, v. NATIONAL ENGINEERING & CONTRACTING COMPANY; Tri-State Steel Construction Company, Respondents-Appellants.
Docket NumberNo. 92-2598
Decision Date14 December 1993

Page 93

13 F.3d 93
16 O.S.H. Cas.(BNA) 1489, 16 O.S.H. Cas.(BNA) 1608,
1994 O.S.H.D. (CCH) P 30,285
Robert B. REICH, Secretary of Labor, Petitioner-Appellee,
v.
NATIONAL ENGINEERING & CONTRACTING COMPANY; Tri-State Steel
Construction Company, Respondents-Appellants.
No. 92-2598.
United States Court of Appeals,
Fourth Circuit.
Argued June 7, 1993.
Decided Dec. 14, 1993.

Page 94

Kent William Seifried, Poston, Seifried & Schloemer, Newport, KY, argued (Gene W. Bailey, II, Jackson & Kelly, Charleston, WV, on brief) for respondents-appellants.

John Robert Shortall, U.S. Dept. of Labor, Washington, DC, argued (Judith E. Kramer, Deputy Sol., Joseph W. Woodward, Associate Sol. for Occupational Safety and Health, Ann Rosenthal, Counsel for Appellate Litigation, U.S. Dept. of Labor, on brief) for petitioner-appellee.

Before RUSSELL, Circuit Judge, SPROUSE, Senior Circuit Judge, and GARBIS, United States Judge for the District of Maryland, sitting by designation.

OPINION

DONALD RUSSELL, Circuit Judge:

Defendants National Engineering & Contracting Company and Tri-State Steel Construction Company appeal the district court's order enforcing subpoenas that required them to produce certain safety records for the Secretary of Labor. We find no error in the order and affirm.

I

The Occupational Safety and Health Act (the Act), 29 U.S.C. Secs. 651-678, was enacted "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. Sec. 651(b). In enforcing the Act, the Secretary of Labor (the Secretary), acting through the Occupational Safety and Health Administration (OSHA), is authorized to enter workplaces and inspect the safety of their conditions. 29 U.S.C. Sec. 657(a). He is also authorized to promulgate regulations compelling employers to keep records on the health and safety of their employees. 29 U.S.C. Sec. 657(c)(1), 657(c)(2).

Pursuant to these provisions, the Secretary has issued regulations requiring employers to maintain at their workplaces a log and summary, on OSHA Form 200's, of all serious occupational injuries and illnesses suffered by their employees at that workplace over the past five years. 29 C.F.R. Sec. 1904.2(a), 1904.6, 1904.12(c), 1904.12(g). These regulations prescribe that "each employer shall provide, upon request, [its OSHA Form 200's] for inspection and copying by any representative of the Secretary of Labor for the purpose of carrying out the provisions of the [A]ct." 29 C.F.R. Sec. 1904.7(a).

National Engineering & Contracting Company and Tri-State Steel Construction Company (the Companies) served as contractor and subcontractor, respectively, on a bridge renovation project at the Goldtown interchange on Interstate 77 in Sissonville, West Virginia. In July, 1992, in response to a media report that one of the Companies' employees had fallen off the bridge at the Goldtown project, OSHA began an investigation

Page 95

of the Companies' worksite there. This investigation revealed that two employees had sustained injuries from falls at the worksite.

As a result of these findings, OSHA broadened its investigation to inquire into the effectiveness of the "overall fall protection program" used by the Companies at all of their worksites. In connection with this inquiry, OSHA issued to the Companies subpoenas for, among other things, copies of their 1990 and 1991 Form 200's from their worksites outside of West Virginia. When the Companies refused to produce these requested copies, OSHA brought an action in the Southern District of West Virginia to enforce the subpoenas.

The district court enforced the subpoenas as OSHA requested and directed the Companies to produce for OSHA the requested copies of its Form 200's. After the district court declined to stay its order pending appeal, the Companies complied with the subpoenas and produced the requested copies. They now appeal the order, alleging that the district court erred in enforcing the subpoenas.

II

We must first address whether we have jurisdiction, under 28 U.S.C. Sec. 1291, to hear their appeal. We conclude that we do.

Section 1291 confines our jurisdiction to review of only those district court orders that are "final." 28 U.S.C. Sec. 1291. Orders enforcing subpoenas issued in connection with civil and criminal actions, or with grand jury proceedings, are normally not considered final. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 121, 26 S.Ct. 356, 358, 50 L.Ed. 686 (1906); 15B Charles A. Wright et al., Federal Practice and Procedure: Jurisdiction 2d Sec. 3914.23, at 123 (1992). To obtain immediate review of such a district court enforcement order, the party to whom it is issued must defy it so that a contempt order, which is considered final, is entered against him. Ryan, 402 U.S. at 532, 91 S.Ct. at 1581; Cobbledick, 309 U.S. at 328, 60 S.Ct. at 542; Alexander, 201 U.S. at 121, 26 S.Ct. at 358; Wright, supra, Sec. 3914.23, at 123. The purpose of this rule is to discourage parties from pursuing appeals from orders enforcing these subpoenas, which would temporarily halt the district court's litigation process or the grand jury process. Ryan, 402 U.S. at 532-33, 91 S.Ct. at 1581-82; Cobbledick, 309 U.S. at 327, 60 S.Ct. at 542; Wright, supra, Sec. 3914.23, at 154-55.

The appealability of district court orders enforcing subpoenas issued by government agencies in connection with administrative investigations, however, has been regarded differently. In Ellis v. ICC, 237 U.S. 434, 35 S.Ct. 645, 59 L.Ed. 1036 (1915), the Supreme Court addressed the appealability of a district court's order enforcing an Interstate Commerce Commission (ICC) petition that directed a witness to answer questions and produce documents for an administrative investigation. Justice Holmes, writing for the Court, had "no doubt that this appeal lies," id. at 442, 35 S.Ct. at 645, because the order was "the end of a proceeding begun against the witness," id.

The Court elaborated on this reasoning a quarter century later in Cobbledick, stating that a district court's order enforcing an ICC request that a witness produce documents or answer questions for an administrative investigation was immediately reviewable because the district court proceeding out of which the order arose

may be deemed self-contained, so far as the judiciary is concerned.... After the Court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal.

Cobbledick, 309 U.S. at 330, 60 S.Ct. at 543. In other words, district court orders enforcing subpoenas in connection with grand jury proceedings or criminal or civil trials are not immediately appealable, absent a contempt

Page 96

citation, because such appeals would greatly delay the judicial process; orders enforcing subpoenas in connection with administrative investigations, by contrast, may be appealed immediately because there is no judicial proceeding in process that such appeals would delay.

The Court reached the same result in the context of an investigation by the Internal Revenue Service (IRS) in Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), where it held immediately appealable a district court order dismissing a taxpayer's challenge to IRS subpoenas for his financial records. Id. at 449, 84 S.Ct. at 513. The Court recently reaffirmed Reisman in Church of Scientology v. United States, --- U.S. ----, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). There a taxpayer who was being investigated by the IRS appealed a district court order enforcing an IRS summons for his financial records. The Court found unanimously that the order was appealable, id. at ----, 113 S.Ct. at 451, and, citing Reisman, stated that "we have expressly held that IRS summons enforcement orders are subject to appellate review," id. (emphasis in original).

The reasons stated by the Court in Ellis and Cobbledick for allowing immediate appeals from district court orders enforcing subpoenas in ICC investigations, which were followed in the context of tax investigations in Reisman and Church of Scientology, apply equally in all administrative investigations. And every court of appeals to address the appealability of orders enforcing subpoenas in various types of administrative investigations has determined that these orders are immediately appealable. See, e.g., Kemp v. Gay, 947 F.2d 1493, 1495-97 (D.C.Cir.1991) (Department of Housing and Urban Development investigation); Dole v. Local Union 375, Plumbers Int'l Union, 921 F.2d 969, 971-72 (9th Cir.1990) (Department of Labor investigation), cert. denied, --- U.S. ----, 112 S.Ct. 197, 116 L.Ed.2d 157 (1991); EEOC v. University of New Mexico, 504 F.2d 1296, 1300 (10th Cir.1974) (Equal Employment Opportunity Commission investigation); 1 see also Shea v. Office of Thrift Supervision, 934 F.2d 41, 46 (3d Cir.1991) (stating that when a "subpoenaed party has been ordered [by the district court] to comply [with an Office of Thrift Supervision subpoena,] ... the party may have [the] order reviewed by this court"); cf. United States v. Stauffer Chemical Co., 684 F.2d 1174, 1177 (6th Cir.1982) (finding appealable a district court order refusing to quash an administrative search warrant in an EPA investigation), aff'd, 464 U.S. 165, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). 2

In light of all of these opinions, one leading treatise states that it has...

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24 practice notes
  • Dana Point Safe Harbor Collective v. Superior Court, No. S180365.
    • United States
    • United States State Supreme Court (California)
    • December 9, 2010
    ...Moreover, the rule we adopt here is the same rule that applies in federal court. ( Reich v. National Eng'g & Contracting Co. (4th Cir.1993) 13 F.3d 93, 96 ["orders enforcing subpoenas in connection with administrative investigations, by contrast, may be appealed immediately because there is......
  • In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), Misc. Nos. 1:11–DM–3
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 10, 2011
    ...immediately because there is no judicial proceeding in process that such appeals would delay.” Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93, 95–96 (4th Cir.1993). The problems of delay are the same for § 2703 orders as they are for search warrants, grand jury subpoenas, and other type......
  • In re Application of the U.S. for An Order Pursuant to 18 U.S.C. §2703(d), Misc. No. 1:11-DM-3
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 10, 2011
    ...immediately because there is no judicial proceeding in process that such appeals would delay." Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93, 95-96 (4th Cir. 1993). The problems of delay are the same for § 2703 orders as they are for search warrants, grand jury subpoenas, and other typ......
  • U.S. v. Construction Products Research, Inc., No. 342
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 2, 1996
    ...v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542- Page 469 43, 84 L.Ed. 783 (1940); Reich v. National Eng'g & Contracting Co., 13 F.3d 93, 95 (4th Cir.1993); Kemp v. Gay, 947 F.2d 1493, 1495 (D.C.Cir.1991). To obtain appellate review, the subpoenaed party must defy the district court'......
  • Request a trial to view additional results
24 cases
  • Dana Point Safe Harbor Collective v. Superior Court, No. S180365.
    • United States
    • United States State Supreme Court (California)
    • December 9, 2010
    ...Moreover, the rule we adopt here is the same rule that applies in federal court. ( Reich v. National Eng'g & Contracting Co. (4th Cir.1993) 13 F.3d 93, 96 ["orders enforcing subpoenas in connection with administrative investigations, by contrast, may be appealed immediately because there is......
  • In re Application of the United States for an Order Pursuant to 18 U.S.C. § 2703(d), Misc. Nos. 1:11–DM–3
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 10, 2011
    ...immediately because there is no judicial proceeding in process that such appeals would delay.” Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93, 95–96 (4th Cir.1993). The problems of delay are the same for § 2703 orders as they are for search warrants, grand jury subpoenas, and other type......
  • In re Application of the U.S. for An Order Pursuant to 18 U.S.C. §2703(d), Misc. No. 1:11-DM-3
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 10, 2011
    ...immediately because there is no judicial proceeding in process that such appeals would delay." Reich v. Nat'l Eng'g & Contracting Co., 13 F.3d 93, 95-96 (4th Cir. 1993). The problems of delay are the same for § 2703 orders as they are for search warrants, grand jury subpoenas, and other typ......
  • U.S. v. Construction Products Research, Inc., No. 342
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 2, 1996
    ...v. United States, 309 U.S. 323, 328, 60 S.Ct. 540, 542- Page 469 43, 84 L.Ed. 783 (1940); Reich v. National Eng'g & Contracting Co., 13 F.3d 93, 95 (4th Cir.1993); Kemp v. Gay, 947 F.2d 1493, 1495 (D.C.Cir.1991). To obtain appellate review, the subpoenaed party must defy the district court'......
  • Request a trial to view additional results

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