

                  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 &amp; 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  &amp; Snyder  were  on brief,  for                                                     
appellant.
     Frederick  D. Braid,  Walter J.  Johnson, Sharon  N. Berlin,                                                                          
Rains &amp; 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 &amp;  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.

                                2

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 &amp; 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

                                3

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).

                                4

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 &amp;  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

                                5

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).                 

                                6

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 &amp;  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.

                                7

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                                          

                                8

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.

                                9

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.

                                10

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.                                      

                                11

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

                                12

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) &amp; 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

                                13

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.

                                14
