DONOVAN, SECRETARY OF LABOR, ET AL. v. LONE STEER, INC.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH
Argued November 29, 1983
Decided January 17, 1984
The Secretary of Labor (Secretary) is authorized by 11(a) of the Fair Labor Standards Act of 1938 (FLSA) to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act, and by 9 to subpoena witnesses and documentary evidence relating to any matter under investigation. Pursuant to these provisions, a Department of Labor official, upon entering appellee motel and restaurant, served an administrative subpoena duces tecum on one of appellee's employees, directing the employee to appear at the regional Wage and Hour Office with certain payroll and sales records. Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in Federal District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. The District Court held that, although the Secretary had complied with the applicable FLSA provisions in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment because the Secretary had not previously obtained a judicial warrant.
The subpoena duces tecum did not violate the Fourth Amendment. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 , controlling. An entry into the public lobby of a motel and restaurant for the purpose of serving an administrative subpoena is not the sort of governmental act that is forbidden by that Amendment. Here, the subpoena itself did not authorize either entry or inspection of appellee's premises but merely directed appellee to produce certain wage and hour records, and no nonconsensual entry into areas not open to the public was made. Marshall v. Barlow's Inc., 436 U.S. 307 , and Camara v. Municipal Court, 387 U.S. 523 , distinguished. While a subpoenaed employer, in an action in federal district court, may question the reasonableness of a subpoena before suffering any penalties for refusing to comply with it, the available defenses do not include the right to insist upon a judicial warrant as a condition precedent to a valid subpoena. Pp. 413-416.
REHNQUIST, J., delivered the opinion for a unanimous Court. [464 U.S. 408, 409]
Alan I. Horowitz argued the cause for appellants. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, Karen I. Ward, and Charles I. Hadden.
Richard G. Peterson argued the cause for appellee. With him on the brief was James Patrick Barone. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the National Restaurant Association by Robert W. Hartland; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calio.
Robert E. Williams, Douglas S. McDowell, and Stephen C. Yohay filed a brief for the Equal Employment Advisory Council as amicus curiae.
JUSTICE REHNQUIST delivered the opinion of the Court.
Section 11(a) of the Fair Labor Standards Act of 1938 (FLSA or Act), 52 Stat. 1066, 29 U.S.C. 211(a), authorizes the Secretary of Labor to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act. 1 Section [464 U.S. 408, 410] 9 of the FLSA, 29 U.S.C. 209, empowers the Secretary of Labor to subpoena witnesses and documentary evidence relating to any matter under investigation. 2 Pursuant to those provisions, an official of the Department of Labor served an administrative subpoena duces tecum on an employee of appellee Lone Steer, Inc., a motel and restaurant located in Steele, N. D. The subpoena directed an officer or agent of appellee with personal knowledge of appellee's records to appear at the Wage and Hour Division of the United States Department of Labor in Bismarck, N. D., and [464 U.S. 408, 411] to produce certain payroll and sales records. In an action filed by appellee to challenge the validity of the subpoena, the District Court for the District of North Dakota held that, although the Secretary of Labor had complied with the applicable provisions of the FLSA in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment of the United States Constitution because the Secretary had not previously obtained a judicial warrant. We noted probable jurisdiction of the Secretary's appeal, 462 U.S. 1105 (1983), and we now reverse the judgment of the District Court.
On January 6, 1982, Al Godes, a Compliance Officer with the Wage and Hour Division of the Department of Labor, telephoned Susanne White, appellee's manager, to inform her that he intended to begin an investigation of appellee the following morning and to request that she have available for inspection payroll records for all employees for the past two years. White telephoned Godes later that day to inform him that it would not be convenient to conduct the inspection on the following morning. After some preliminary skirmishing between the parties, during which appellee inquired about the scope and reason for the proposed investigation and appellants declined to provide specific information, Godes and Gerald Hill, Assistant Area Director from the Wage and Hour Division in Denver, arrived at appellee's premises on February 2, 1982, for the purpose of conducting the investigation. After waiting for White, Godes served the administrative subpoena at issue here on one of appellee's other employees. The subpoena was directed to any employee of appellee having custody and personal knowledge of the records specifically described therein, records which appellee was required by law to maintain. See 29 CFR 516.2(a), 516.5(c) (1983). The subpoena directed the employee to appear with those records at the Wage and Hour Division of the Department of Labor in Bismarck, N. D. [464 U.S. 408, 412]
Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in the District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. Appellants counterclaimed for enforcement of the subpoena. The District Court concluded that the actions of appellants in issuing the administrative subpoena "unquestionably comport with the provisions of the Fair Labor Standards Act, as amended, 29 U.S.C. 201, et seq." App. A to Juris. Statement 6a. Relying on our decision in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978), however, the District Court held that the applicable provisions of the FLSA violate the Fourth Amendment insofar as they authorize the Secretary of Labor to issue an administrative subpoena without previously having obtained a judicial warrant. In Barlow's this Court declared unconstitutional the provisions of the Occupational Safety and Health Act of 1970 (OSHA) which authorized inspectors to enter an employer's premises without a warrant to conduct inspections of work areas. The District Court rejected appellants' arguments that Barlow's is not dispositive of the issue here by stating:
The governmental actions which required antecedent administrative warrants in Marshall v. Barlow's, Inc., supra, and Camara v. Municipal Court, 387 U.S. 523 (1967), are quite different from the governmental action in this case. In Barlow's an OSHA inspector sought to conduct a search of nonpublic working areas of an electrical and plumbing installation business. In Camara a San Francisco housing inspector sought to inspect the premises of an apartment building in that city. See also See v. City of Seattle, 387 U.S. 541 (1967) (involving a similar search by a fire inspector of commercial premises). In each case, 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 (1946). In Oklahoma Press the Court rejected an employer's claim that the subpoena power conferred upon the Secretary of Labor by the FLSA violates the Fourth Amendment.
Thus although our cases make it clear that the Secretary of Labor may issue an administrative subpoena without a warrant, they nonetheless provide protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court. See v. City of Seattle, supra, at 544-545; Oklahoma Press, supra, at 208-209. Our holding here, which simply reaffirms our holding in Oklahoma Press, in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents. We hold only that the defenses available to an employer do not include the right to insist upon a judicial warrant as a condition precedent to a valid administrative subpoena.
Appellee insists that "[t]he official inspection procedure used by the appellants reveal[s] that the use of the administrative subpoena is inextricably intertwined with the entry process," Brief for Appellee 11, and states that it is appellants' [464 U.S. 408, 416] established policy to seek entry inspections by expressly relying on its inspection authority under 11 of the FLSA. Id., at 12. We need only observe that no nonconsensual entry into protected premises was involved in this case.
The judgment of the District Court is accordingly
[ Footnote 2 ] Section 9 of the FLSA provides that for the purpose of any hearing or investigation under the provisions of the Act, 9 of the Federal Trade Commission Act of 1914, 38 Stat. 722, as amended, 15 U.S.C. 49, is made applicable "to the jurisdiction, powers, and duties of the Administrator, the Secretary of Labor and the industry committees." Section 9 of the Federal Trade Commission Act of 1914, as set forth in 15 U.S.C. 49, provides in pertinent part:
[ Footnote 3 ] Because the District Court's order seemed only to bar "entry" onto appellee's premises, appellants filed a motion to alter or amend the judgment, arguing that the District Court's order did "not address the relief sought by the Secretary." App. A to Juris. Statement 15a. They sought to amend the District Court's order so as to compel appellee to produce documents at appellants' Bismarck office, emphasizing that compliance with such an order would not require an "entry" onto appellee's premises. The District Court denied the motion without opinion. Id., at 13a-14a. [464 U.S. 408, 417]