United States District Court, W.D. Missouri, Western Division
R. ALEXANDER ACOSTA, SECRETARY OF LABOR U.S. DEPARTMENT OF LABOR, Petitioner,
GREG A. ROSS, Defendant.
ORDER ENFORCING SUBPOENA
KAYS, CHIEF JUDGE
before the Court is The Department of Labor's
(âDepartmentâ) Motion to Enforce Subpoena (Doc. 1) and
Defendant Greg A. Ross's (“Ross”) Suggestions
in Opposition (Doc. 2). After careful consideration, the
Court GRANTS the Department's motion to enforce the
6, 2017, the Occupational Safety and Health Administration
(“OSHA”) opened an investigation of Ross
Construction, a company Ross owns. During that week,
Compliance Safety and Health Officers (“CSHOs”)
from the Kansas City Area Office observed what they perceived
to be violations of the Occupational Safety and Health Act
(“the Act”). After reviewing documents and
speaking with employees at Ross Construction, OSHA issued a
subpoena ad testificandum requiring Ross to testify
at OSHA's Kansas City office. Ross's counsel, Angela
Angotti, accepted service on his behalf.
Angotti emailed the Department's counsel seeking
clarification about the information OSHA sought to obtain by
interviewing Ross. After receiving the Department's
response, Ms. Angotti informed Department's counsel that
Ross would not be appearing to testify, stating that
“the burden being placed on this small business is too
great.” Doc. 1 at Ex. J. Ross did not appear at the
agreed upon date and time to give his statement. The
Department subsequently filed its Motion to Enforce the
Subpoena. Finding that subpoena is within Department's
authority, the demand is not too indefinite, and the
information sought is reasonably relevant to the
Department's investigation, this Court GRANTS the
Department's motion to enforce the subpoena.
the Act, the Department may issue subpoenas that this Court
In making his inspections and investigations under this
chapter the Secretary may require the attendance and
testimony of witnesses and the production of evidence under
oath. . . . [A]ny district court of the United States . . .
shall have jurisdiction to issue to such person an order
requiring such person to appear to produce evidence . . . and
to give testimony relating to the matter under investigation
or in question . . . .
29 U.S.C. § 657(b). In United States v. Morton Salt
Co., 338 U.S. 632, 652 (1950), the Supreme Court
provided the factors that determine whether an administrative
subpoena should be enforced. They are: whether (1) the
inquiry is within the authority of the agency, (2) the demand
is not too indefinite, (3) the information sought is
reasonably relevant to the authorized inquiry. Id.;
see also Donovan v. Union Packing Co. of Omaha, 714
F.3d 838 (8th Cir. 1983) (applying Morton to an OSHA
subpoena). Once the Department makes a threshold showing of
these factors, the burden shifts to the respondent to show
that judicial enforcement “would amount to an abuse of
the court's process.” See EEOC v. Peat,
Marwick, Mitchell & Co., 775 F.3d 928, 931 (8th Cir.
1985). An abuse of process occurs when the agency is acting
for an improper purpose, such as to harass or pressure
settlement in a collateral matter, or any other purpose that
lacks good faith. United States v. Powell, 379 U.S.
48, 58 (1964).
The Department's inquiry is within its
title of Section 657(b) of the Act is “Attendance and
testimony of witnesses and production of evidence;
enforcement of subpoena.” The Act's plain language
authorizes the Department to subpoena testimony from
“any such employer, owner, operator, agent or
employee.” § 657(b) (emphasis added). The
Department's subpoena of Ross is within its authority.
The Department's demand it not too indefinite.
Department's subpoena seeks Ross's testimony
“regarding the working conditions and safety practices
of Ross Construction Company.” The Department explained
that testimony would take about two or three hours. The
subpoena request “limits the scope of the inquiry by .
. . subject.” See Martin v. Gard, 811 F.Supp.
616, 621 (D. Kan. 1993). Also, a “two to three
hour” time commitment does not make a subpoena
indefinite or overbroad. See Id. The limited scope
and time requirement of the Department's subpoena work in
favor of its enforcement.
argues that because the subpoena in Martin was not
too indefinite, the subpoena here is too indefinite. There,
the subpoena requested testimony concerning “working
conditions . . . at the storm sewer project.” See
Id. Although the subpoena request in Martin
might have been narrower, it does not follow that any
subpoena request broader than in Martin is too
indefinite. Here, because the ...