U.S. v. Sturm, Ruger & Co., Inc.

• Decision Date: 05 April 1996
• Docket Number: No. 95-1918,95-1918
• Citation: 84 F.3d 1
• Parties: , 17 O.S.H. Cas. (BNA) 1604, 1996 O.S.H.D. (CCH) P 31,189 UNITED STATES of America, Petitioner, Appellee, v. STURM, RUGER & COMPANY, INC., Respondent, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

84 F.3d 1

64 USLW 2732, 17 O.S.H. Cas. (BNA) 1604,

1996 O.S.H.D. (CCH) P 31,189

UNITED STATES of America, Petitioner, Appellee, v. STURM, RUGER & COMPANY, INC., Respondent, Appellant.

No. 95-1918.

United States Court of Appeals, First Circuit.

Heard April 5, 1996.

Decided May 14, 1996.

Richard D. Wayne, Boston, MA, 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., Mineola, NY, Daniel J. Popeo, and David A. Price on brief for Washington Legal Foundation, amicus curiae.

John Shortall, Attorney, United States Dept. of Labor, with whom Joseph M. Woodward and Ann Rosenthal, United States Dept. of Labor, Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt, Assistant United States Attorney, were on brief, for appellees.

Before SELYA, STAHL and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

On the surface this case appears 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

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

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 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, 66 S.Ct. 494, 498, 90 L.Ed. 614 (1946); In re Grand Jury Subpoena Served Upon Simon Horowitz, 482 F.2d 72, 75-79 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (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, 104 S.Ct. 769, 773, 78 L.Ed.2d 567 (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 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, 70 S.Ct. 357, 368-69, 94 L.Ed. 401 (1950); Oklahoma Press, 327 U.S. at 208, 66 S.Ct. at 505; 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, 66 S.Ct. at 505. 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, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990); Donovan v. Union Packing Co., 714 F.2d 838, 840 (8th Cir.1983).

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, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (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, 104 S.Ct. at 772-73. 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

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. 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 Sulphur & 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, --- U.S. ----, 115 S.Ct. 1355, 131 L.Ed.2d 213 (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, 108 S.Ct. 485, 98 L.Ed.2d 484 (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 Sulphur, 32 F.3d at 449; Kelly-Springfield, 13 F.3d at 1166-67.

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