General Aluminum Mfg. Company v. Walsh, et al

Filing 11

Memorandum of Opinion and Order For the reasons set forth herein, Respondent's Motion to Dismiss (ECF No. 5 ) is granted, and Movant's Motion to Quash or for Protection From Subpoena (ECF No. 1 ) is dismissed without prejudice. Movant's Motion to Consolidate (ECF No. 7 ) No. 5:21MC0067 with the case at bar is denied as moot. The case is hereby closed. Judge Benita Y. Pearson on 9/22/2021. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

GENERAL ALUMINUM
MFG. COMPANY,
Movant,
v.
MARTIN J. WALSH, etc.,
Respondent.

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CASE NO. 5:21MC048

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER OF DISMISSAL
[Resolving ECF Nos. 1, 5, and 7]

Pending is Respondent Martin J. Walsh, Secretary of Labor’s Motion to Dismiss (ECF
No. 5) pursuant to Fed. R. Civ. P. 12(b)(1). The Court has been advised, having reviewed the
record, the parties’ briefs, and the applicable law. For the reasons that follow, the Court grants
the motion.
I.
On July 15, 2021, Respondent issued Administrative Subpoenas Ad Testificandum (ECF
Nos. 1-2 and 1-3) pursuant to the Secretary’s authority to enter, inspect, and investigate places of
employment, which includes requiring the attendance and testimony of witnesses under 29
U.S.C. § 657. On July 27, 2021, Movant General Aluminum Manufacturing Company initiated
the above-entitled pre-enforcement action by filing a Motion to Quash or for Protection From
Subpoena (ECF No. 1) on the Court’s miscellaneous docket. ECF No. 1 does not identify either
a basis of subject-matter jurisdiction or an applicable wavier of sovereign immunity permitting
an affirmative suit against Respondent. The subpoenas are directed to managers of Movant and
to its holding company, Park Ohio Holdings Corporation (“Park Ohio”) as part of an

(5:21MC048)
investigation into health and safety issues. The subpoenas require Craig Schlaugh, Director of
General Operations for Movant, and David Hill, Director of Environmental Health and Safety for
Park Ohio, to appear and testify regarding their knowledge of working conditions at Movant’s
facility in Ravenna, Ohio.
II.
Respondent correctly argues that the district court is without subject-matter jurisdiction
over Movant’s pre-emptive claims in the case at bar. The Occupational Safety and Health Act
(“OSH Act”) expressly authorizes the bringing of original actions in the U.S. District Court in
only a few situations. None of these includes the bringing of pre-enforcement actions by
employers in the district court. See, e.g., 29 U.S.C. § 657(b) (actions by the Secretary to enforce
administrative subpoenas).
It is to be noted that in August 2021, the Secretary filed a Petition to Enforce
Administrative Subpoenas Ad Testificandum, which remains pending. See Walsh v. General
Aluminum Manufacturing Company, et al, No. 5:21MC0067 (N.D. Ohio filed Aug. 31, 2021)
(Oliver, J.). Movant can therefore raise its procedural and substantive objections to the
Administrative Subpoenas Ad Testificandum (ECF Nos. 1-2 and 1-3) in that adversary
proceeding filed by the Secretary. See Reisman v. Caplin, 375 U.S. 440, 446 (1964) (an
enforcement action “afford[s] a judicial determination of the challenges to the [administrative]
summons”); Fleet/Norstar Fin. Group, Inc. v. S.E.C., 769 F. Supp. 19, 20 (D. Me. 1991);
Atlantic Richfield Co. v. F.T.C., 546 F.2d 646, 651 (5th Cir. 1977) (objections to investigatory
subpoena to obtain allegedly material information should be resolved in the enforcement and
adjudicative proceedings initiated by administrative agency).
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(5:21MC048)
“It is well established that pre-enforcement challenges to administrative subpoenas are
not ripe for judicial review. Administrative subpoenas are not self-executing, that is, they are
only binding upon court order.” Sight v. Resolution Trust Corp., 852 F. Supp. 28, 29 (D. Kan.
1994). As a leading administrative law treatise states: “Due to lack of jurisdiction, the courts
will not entertain motions brought by the subpoenaed party to quash or modify subpoenas. . . .
Since agencies lack the power to enforce their own subpoenas, they must apply to the district
courts for enforcement. Only then may substantive or procedural objections to the subpoena be
raised for judicial determination. Stein, Mitchell, and Mezines, Administrative Law, 21.01(1) at
21-4 (1990).
In Ne. Erectors Ass’n of BTEA v. Sec’y of Labor, 62 F.3d 37 (1st Cir. 1995), the court of
appeals held that the district court was without subject-matter jurisdiction over the plaintiff’s
estoppel-based pre-enforcement action. Id. at 39, 40; see also HA&W Wealth Mgmt., LLC v.
United States Dep’t of Lab., Emp. Benefits Sec. Admin., No. 1:16-cv-04446-RWS-RGV, 2017
WL 11113756, at *2 (N.D. Ga. Feb. 8, 2017) (finding that Reisman controls the disposition of
the Secretary of Labor’s administrative subpoena and motion to dismiss), report and
recommendation adopted, No. 1:16-CV-04446-RWS-RGV, 2017 WL 11114470 (N.D. Ga. April
6, 2017). “One of the most firmly established principles of administrative law is that courts
cannot entertain pre-enforcement challenges to administrative subpoenas.” Lopes v. Resolution
Trust Corp., 155 F.R.D. 14, 15 (D.R.I. 1994).
III.
Accordingly, Respondent’s Motion to Dismiss (ECF No. 5) is granted, and Movant’s
Motion to Quash or for Protection From Subpoena (ECF No. 1) is dismissed without prejudice.
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(5:21MC048)
Movant’s Motion to Consolidate (ECF No. 7) No. 5:21MC0067 with the case at bar is denied as
moot. The case is hereby closed.

IT IS SO ORDERED.

September 22, 2021
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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