Reich v. Sturm, Ruger & Co., Inc.
| Decision Date | 04 August 1995 |
| Docket Number | Civ. No. 94-373-M. |
| Citation | 903 F. Supp. 239 |
| Court | U.S. District Court — District of New Hampshire |
| Parties | Robert B. REICH, Secretary of Labor, United States Department of Labor, Plaintiff, v. STURM, RUGER & CO., INC., Defendant. |
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Gretchen Leah Witt, U.S. Attorney's Office, Concord, NH, David L. Baskin, U.S. Dept. of Labor, Office of the Sol., Boston, MA, for U.S.
Jeremy Ritzenberg, Hinckley, Allen, Snyder & Comen, Boston, MA, for Sturm, Ruger & Co., Inc.
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 disorders, like carpal tunnel syndrome. Specifically, the Secretary sought to obtain the Company's 1993 "OSHA 200 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.
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 seq. (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 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 inspect 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. DeWees 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.
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 (1st 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.
In Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (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, 98 S.Ct. at 1820. 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 such as this, probable cause justifying 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, 98 S.Ct. at 1824 (quoting Camara v. Municipal Court of San Francisco, 387 U.S. 523, 538, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930 (1967)); see also Brock v. Brooks Woolen Co., 782 F.2d 1066, 1069 (1st Cir.1986) ().
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, 104 S.Ct. 769, 78 L.Ed.2d 567 (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, 87 S.Ct. 1737, 18 L.Ed.2d 943 (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. 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, 66 S.Ct. 494, 90 L.Ed. 614 (1946).
Lone Steer, 464 U.S. at 414, 104 S.Ct. at 773. In Oklahoma Press, supra, the court rejected an employer'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, 66 S.Ct. at 505.
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, 70 S.Ct. 357, 94 L.Ed. 401 (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...
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