United States District Court, W.D. Texas, San Antonio Division
R. ALEXANDER COSTA, Secretary of Labor, United States Department of Labor, Petitioner,
BEN E. KEITH COMPANY, Respondent.
RODRIGUEZ UNITED STATES DISTRICT JUDGE.
date, the Court considered the Petition to Enforce
Administrative Subpoena Duces Tecum, issued by the
Occupational Safety and Health Administration
(“OSHA”). Docket no. 1. As stated in open court
at the June 18, 2019 hearing, the Petition to Enforce is
Ben E. Keith Company, an interstate food distribution
company, had a worksite at 5505 Kaepa Court, San Antonio, TX
78218. This site is the subject of an OHSA investigation.
Respondent was on an OSHA inspection list, and Nathalie
Nguyen, OSHA Compliance Safety and Health Officer, noticed
several potential OSHA violations during a January inspection
of the Kaepa Court facility.
March 12, OSHA served the subpoena at issue here to the Kaepa
Court location, seeking 22 items of information related to
this worksite and Respondent's Process Safety Management
(“PSM”) program. Because that location is now
closed, Respondent proposed that OSHA close this
investigation and open an investigation at the new facility.
March 21, Respondent responded with respect to four items and
objected to the remainder. In its response to the subpoena,
Respondent raised general objections to the subpoena itself,
arguing that, because the Kaepa Court facility is now
non-operational, the requests are unduly burdensome,
irrelevant, and not proportional to the needs of the case.
For the 18 remaining requests, Respondent stated it will
“not produce any documents with respect to the vacant
and non-operational facility that is the subject of the
Subpoena” and offered to produce documents for the new
facility. On March 27, OSHA indicated it will continue the
investigation notwithstanding the facility's move, and on
May 16 it filed this petition to enforce.
review is limited in an action to enforce an administrative
subpoena. E.E.O.C. v. Kloster Cruise Ltd., 939 F.2d
920, 922 (11th Cir. 1991) (“It is well-settled that the
role of a district court in a proceeding to enforce an
administrative subpoena is sharply limited; inquiry is
appropriate only into whether the evidence sought is material
and relevant to a lawful purpose of the agency.”). A
district court must, generally, enforce an administrative
subpoena like the one at issue here where it is not
“plainly incompetent” or “irrelevant”
to the relevant statutory purpose. See Endicott Johnson
Corp. v. Perkins, 317 U.S. 501, 509 (1943).
administrative subpoena issued in connection with a
governmental investigation and pursuant to an agency's
investigatory power must be enforced if the agency can show
(1) the inquiry is within the scope of the authority of the
agency; (2) the demand is not too indefinite; and, (3) the
information sought is reasonably relevant to the authorized
inquiry. United States v. Morton Salt Co., 338 U.S.
632, 652 (1950).
the agency meets the Morton Salt criteria, the
burden shifts to Respondent, who must show the subpoena is
unduly burdensome. See E.E.O.C. v. Maryland Cup, 785
F.2d 471, 476 (4th Cir. 1986). To show that a request is
unduly burdensome, Respondent must demonstrate that
compliance will unduly disrupt or seriously hinder normal
business operations. E.E.O.C. v. Citicorp Diners Club,
Inc., 985 F.2d 1036, 1040 (10th Cir. 1996).
reviewing the parties' briefs in this case, the Court
heard argument on June 18, 2019. As stated at that hearing,
the Court finds Petitioner has satisfied all elements under
Morton Salt and Respondent has not shown that the
request is unduly burdensome. Thus, the Court grants the
Petition to Enforce. Respondent must comply with the subpoena
by August 2, 2019.
because 29 U.S.C. § 658(c) provides that “[n]o
citation may be issued under this section after the
expiration of six months following the occurrence of any
violation, ” any citation based on OSHA's
inspection must be issued by July 13, under normal operation
of the statute of limitations. However, the Court has
discretion to toll the statute of limitations here. See
Acosta v. Quality Constr., Inc., 2018 WL 7514591, at *2
(D. Colo. Dec. 21, 2018), report and recommendation adopted,
2019 WL 1077430 (D. Colo. Jan. 24, 2019) (enforcing OSHA
subpoena and tolling statute of limitations until full
compliance). “The equitable tolling doctrine is read
into every federal statute of limitations, and the decision
whether the doctrine should be applied lies within the sole
discretion of the court.” Id. (quoting
Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946)).
Here, as stated in open court, the circumstances merit
tolling of the statute of limitations until Respondent has
fully complied with the subpoena.
given that Respondent has transferred operations to a new
facility, the Court again encourages the parties, in the
interest of economy and pragmatism, to confer and tailor the
scope of production where possible. This case is to remain