US Department of Labor, Secretary of Labor v. R&L Carriers Shared Services, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martin J. Walsh, Secretary,
U.S. Department of Labor
v. 	Case No. 21-mc-67-SM
R&L Carriers Shared Services, LLC
Report and Recommendation
The Secretary of Labor initiated this action pursuant to 29
U.S.C. § 657(b) to enforce a subpoena for documents issued by
the Occupational Safety and Health Administration (“OSHA”) to
R&L Carriers Shared Services, LLC (“R&L”). 	The subpoena seeks
documents pertaining to certain issues at R&L’s facility in
Manchester, New Hampshire, that were raised in a complaint sent
to OSHA.
R&L opposes the petition to enforce the subpoena on the
grounds that the subpoena is moot and, if not moot, the subpoena
cannot be enforced because it is not reasonable and enforcement
would violate the Fourth Amendment. 	A hearing was held on
January 12, 2022, and the parties provided additional briefing
thereafter. 	The Secretary requests attorneys’ fees, and R&L
opposes that request.
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Background 1
R&L operates a freight shipping facility in Manchester, New
Hampshire. 	On June 9, 2021, the OSHA office in Concord, New
Hampshire, received a complaint report about issues at R&L’s
facility in Manchester, as follows:
Roof leaks into the facility onto the smooth concrete floor
creating slip hazards for foot traffic and fork lifts. Fork
lifts are not maintained. Issues noted during inspections
are not repaired, and equipment remains in use. Overhead
doors at loading docks are broken, and cannot be safely
secured for loading operations. Dock plates are not
properly secured to the building and are falling off. [sic]
multiple have come off of the building and have caused
injuries. Overhead hazard where junction box is damaged and
a sheet of steel is hanging overhead.
Doc. 1-2. 	In response to the complaint report, the Concord OSHA
office opened an investigation into the allegations about R&L’s
facility. 	Bill Todd, a Safety and Health Compliance Officer in
OSHA’s Concord office, was assigned to the R&L investigation.
Todd went to the R&L facility on June 17, 2021, for an
invited on-site inspection. 	While he was there, he met with
R&L’s service manager, Richard Fisher; R&L’s associate general
counsel, Dan Brake; R&L’s employee health and safety compliance
manager, Toni Scott; and R&L’s director of safety, Steve Maupin.
Todd reviewed inspection logs for some of the forklifts at the
facility and found that that at least in one instance
1 The background information is undisputed unless otherwise
noted.
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maintenance issues had not been repaired after they were
reported.
The service manager, Fisher, accompanied Todd on his tour
of part of the facility. 	Because it was not raining, Todd did
not have an opportunity to observe whether the roof leaked, and
Fisher refused to answer questions about that issue. 	The
employee health and safety compliance manager, Scott, gave Todd
OSHA 300 and 300A logs of work-related injuries and illnesses
for 2018-2021, which Todd had asked to see.
Todd asked Scott for additional information on June 22,
2021. 	Later in the day, Todd inspected the loading dock area at
R&L. 	He also took photographs at that time. 	Attorney Michael
Clarkson, instead of Scott, responded to Todd’s June 22 request
for information that had been sent to Scott. 	Clarkson stated
that Todd would have to show probable cause for the information
requested.
On June 30, 2021, Todd was informed that R&L was
represented by Clarkson. 	Thereafter, Todd directed his
investigatory requests to Clarkson.
Todd sought to arrange interviews with non-supervisory
employees at the facility about the complaint sent to OSHA.
Clarkson said that R&L could not consent to the interviews
without more information. 	After further communications between
Clarkson and Todd, Clarkson stated that R&L did not consent to
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the interviews and that Todd would not be permitted to interview
employees.
Todd then asked for maintenance records and inspection logs
for specific forklifts during a specified period. 	He also
sought contact information for employees who operated the
forklifts. 	Communications continued between Todd and Clarkson
about production of additional information from R&L and employee
contact information. 	R&L provided a “sampling” of forklift
maintenance records.
Clarkson contacted the Department of Labor’s Office of the
Solicitor about OSHA’s investigation of R&L. 	Emily Wilkinson, a
trial attorney in the Boston Regional Solicitor’s Office of the
Department of Labor, was the contact for the OSHA investigation
of R&L. 	Clarkson and Wilkinson held a telephone conference on
July 29, 2021, about the document requests. 	In response to the
conference and Wilkinson’s follow-up email, Clarkson produced
more forklift inspection records but not all of the information
Wilkinson was seeking.
The Area Director of the Concord OSHA office issued a
subpoena for documents on August 24, 2021. 	The subpoena was
issued to “Custodian of Records” at R&L. 2 	The Custodian was
2 When asked by Wilkinson, Clarkson represented that he was
not authorized to accept a subpoena on behalf of R&L. 	For that
reason, the subpoena was served on R&L directly.
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directed to appear before the Area Director at the Concord OSHA
office on August 31, 2021, at 12:00 p.m. and to bring and
produce books, papers, and documents with the following
information:
1. 	To the extent not already provided, all maintenance
records for the period 5/10/2021 to 6/9/2021 for the five
forklifts on your Job Site identified as: #F2159; F2092;
F1744; F2157; and F2228. 3
2. 	To the extent not already provided, all inspection
logs for the forklifts identified in Request 1 for the
period from 5/10/2021 to 6/9/2021. 4
3. 	A list of the employee(s) who operated one or more
forklifts at the Job Site between 5/10/2021 and 6/9/2021,
which identifies for each such employee: (a) the employee’s
first and last name, (b) the employee’s number; 5 (c) the
employee’s telephone number; (d) the employee’s last known
mailing address; and (e) the employee’s email address, if
known; or, if such a list does not exist, documents
sufficient to show the foregoing. 6
3 Since you had approximately 14 or more forklifts on site
during the relevant period, this request only seeks maintenance
records for the five specified forklifts for the specified 30-
day period, so as to minimize the burden on you. This request is
necessary because you previously provided only a sampling of
records for the five identified forklifts during the relevant
period.
4 As with Request 1, this request is directed to only the
five specified forklifts so as to minimize the burden on you.
5 You previously provided some documents that referred to
employees by number but not by name. The internal employee
number is necessary to understand which records refer to which
employees.
6 If it would be less burdensome for you to simply make
employees available for interview at the Job Site, OSHA will
consider withdrawing this request for contact information. (You
previously refused to allow any employees to be interviewed on
site, which is part of why this Subpoena is necessary.)
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4. 	Documents sufficient to show the Federal ID number for
the entity or entities that employ(s) the person(s) who
operated forklifts at the Job Site between 5/10/2021 and
6/9/2021.
Doc. 1-6, at 7.
In response to the subpoena, R&L, through Clarkson,
provided documents it had produced previously. 	R&L objected
generally to the subpoena as “beyond the scope of OSHA’s
authority and not reasonably related to any authority OSHA may
have with respect to its investigation of [the complaint against
R&L].” 	Doc. 1-4, at 2. 	With respect to the request for
information identifying employees, R&L stated that OSHA’s
request violated the employees’ right to privacy. 	The letter
included specific responses to the four categories of
information requested in the subpoena and provided a “sampling”
of maintenance records and inspection logs for the forklifts
identified in the subpoena in Requests (1) and (2), refused to
provide identifying information for Request (3), and did provide
the Federal ID number for item (4).
OSHA, through Wilkinson, sent a letter to Clarkson about
the subpoenaed records that had not been provided. 	Wilkinson
stated that if all requested records were not provided by
September 14, 2021, the Secretary would likely begin an
enforcement action in this court. 	No response to that letter
was received. 	The Secretary filed the petition to enforce the
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subpoena on October 4, 2021. 	R&L filed an answer. 	The
Secretary filed a reply in which he limited Request 3 to the
twenty-three forklift operators who previously had been
identified by R&L. 7
Todd held a “closing conference” with representatives from
R&L, including Clarkson. 	He discussed his findings to date from
his investigation and notified R&L’s representatives that R&L
would likely receive a citation for one of the forklifts that
had brake issues. 	In his affidavit, Todd states that he told
the representatives and Clarkson that he would submit his
findings to his supervisors who would decide whether to issue a
citation.
OSHA issued a “Citation and Notification of Penalty” to R&L
on December 8, 2021. 	Doc. 13-1. 	The violation cited was: “On
or about 6/7/2021, [R&L] did not ensure that a fork lift with
defective brakes was removed from service before repairs could
be made.” 	Id., at 8. 	The penalty assessed was $9,753.00. 	R&L
filed a notice of contest with OSHA.
7 In the reply, the Secretary stated that R&L had “already
provided OSHA with a roster of 23 forklift operators’ first
names, last initials, and work schedules.” 	If that list of
operators were accurate, the Secretary wrote, all that R&L would
have to do to respond to Request 3 “is determine which of the 23
total employees drove a forklift” during the designated period
and provided the requested contact information for those
operators.
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On January 10, 2022, R&L filed a supplemental memorandum in
opposition to the Secretary’s petition to enforce the subpoena
in this case. 	In the memorandum, R&L states that Todd told R&L
representatives and Clarkson during the closing conference that
the investigation of R&L had concluded. 	R&L argued that the
subpoena was moot in light of the closed investigation, the
citation, and the statute of limitations for issuing any other
citations. 	In response, the Secretary disputed the mootness
theories and provided Todd’s affidavit in which he denied saying
that the investigation had concluded.
The court held a hearing on January 12, 2022, at which the
Secretary was represented by Emily Wilkinson and R&L was
represented by Michael Clarkson. 	At the outset, R&L agreed that
OSHA had made a prima facie case for enforcement of the subpoena
by satisfying the four elements set out in United States v.
Sturm, Ruger & Co., 84 F.3d 1, 4 (1st Cir. 1996). 	OSHA
confirmed that Request 3 was limited to the twenty-three
forklift operators that R&L had previously identified. 	The
parties submitted additional briefing on the mootness issues
after the hearing.
Discussion
The Secretary petitions to enforce the subpoena under
§ 657(b), which grants jurisdiction to the district courts to
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order a person to produce evidence for purposes of the
Secretary’s investigation. 	As is noted above, R&L objects to
enforcement on the grounds that the subpoena is moot and
unenforceable. 	The Secretary asserts that the subpoena is not
moot and is enforceable.
A. 	Mootness
“Article III of the Constitution limits federal-court
jurisdiction to ‘cases’ and ‘controversies’.” 	Campbell-Ewald v.
Gomez, 577 U.S. 153, 160 (2016). 	“A case becomes moot—and
therefore no longer a Case or Controversy for the purposes of
Article III—when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.”
Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). 	Stated in
other terms, a case is moot “when the court cannot give any
effectual relief to the potentially prevailing party.” 	Bayley’s
Campground, Inc. v. Mills, 985 F.3d 153, 157 (1st Cir. 2021).
“The ‘heavy’ burden of mootness is on the party raising the
issue.” 	Boston Bit Labs, Inc. v. Baker, 11 F.4th 3, 8 (1st Cir.
2021).
R&L makes two arguments in support of its mootness theory.
It first contends that OSHA completed its investigation and
issued a citation in December of 2021, which makes the current
subpoena moot. 	Second, R&L contends that under 29 U.S.C.
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§ 658(c) the Secretary cannot issue a citation more than six
months after the cited violation occurred and because the
actions at issue occurred more than six months ago, the subpoena
is moot. 	The Secretary contends that the investigation was not
complete in December when the citation issued, that the citation
issued in December does not make this matter moot, and that
§ 658(c) does not bar the current enforcement action.
1. 	Status of Investigation
R&L argues that the Secretary’s authority under § 657(b) to
enforce a subpoena is limited to making investigations and that
the investigation of R&L concluded with the citation issued in
December of 2021. 8 	R&L cites no statute or case law to support
its theory that when OSHA issues a citation its investigation
into violations by the cited company is concluded. 	Instead, R&L
relies on parts of OSHA’s Field Operations Manual to show that
OSHA’s authority to issue subpoenas is limited to a reasonable
need for completing an investigation and that an OSHA
investigation concludes when a closing conference is held.
8 	To the extent R&L relies on statements made by Safety and
Health Compliance Officer Todd during the closing conference for
the citation issued in December of 2021, Todd denies, in his
sworn affidavit, that he made such statements. 	R&L provides no
contrary evidence. 	Therefore, for purposes of this action, Todd
did not tell R&L representatives as the closing conference that
the investigation had concluded.
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The cited parts of the Field Operations Manual do not
establish, as R&L asserts, that a citation issued on one
violation arising from an OSHA investigation concludes the
entire investigation. 	Even if the cited parts did support R&L’s
theory, that would not provide binding or even persuasive
authority for that result in this case. 	See, e.g., Triumph
Constr. Corp. v. Sec’y of Labor, 885 F.3d 95, 99 (2d Cir. 2018)
(“The Manual is only a guide for OSHA personnel to promote
efficiency and uniformity, is not binding on OSHA or the
Commission, and does not create any substantive rights for
employers.” (internal quotation marks omitted)).
R&L, who bears the burden of demonstrating mootness,
provides no basis to conclude that the subpoena at issue here is
moot based on the citation issued in December of 2021. 9
2. 	Time Limit
Because the actions and circumstances that are the subject
of the subpoena occurred in June of 2021, R&L argues that the
Secretary would be time barred from issuing a citation based on
any violation that might be discovered in documents that are the
9 The Secretary cites cases in which courts have held that
initiation of civil proceedings on administrative complaints
does not moot a pending subpoena. 	While those cases are
persuasive, they are not necessary given the lack of support
provided by R&L for its mootness theory.
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subject of the contested subpoena. 	R&L argues that the subpoena
is moot because any new citation based on the subpoenaed
documents would be time barred. 	The Secretary disputes that
theory.
The Secretary asks the court to find that equitable
tolling applies in this case in order to prospectively postpone
the onset of the limitations period. 	The six-month limitation
period under § 658(c) can be tolled in certain circumstances,
including when an employer’s failure to comply with an OSHA
subpoena has delayed issuance of the citation. 	See, e.g.,
Acosta v. Quality Construction, Inc., 2018 WL 7514591, at *2-*3
(D. Colo. Dec. 21, 2018) (citing cases) (adopted 2019 WL 1077430
(D. Colo. Jan. 24, 2019)). 	The Secretary provides persuasive
evidence and argument that R&L delayed the investigative process
through its resistance to Todd’s requests and then its failure
to comply with the subpoena, which required this enforcement
action.
Although R&L’s conduct to date may well meet the standard
for equitable tolling, in the particular circumstances of this
case, the timeliness issue is not yet ripe for decision. 10 	The
10 The Secretary argues that under the equitable authority
conferred pursuant to 29 U.S.C. § 657(b) the court can impose
equitable tolling as to any potential future citation. 	The
undersigned recommends that the court not reach the issue of the
bounds of the court’s equitable authority under § 657(b), as it
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Secretary issued a citation, based on some of the same conduct
and circumstances that are the subject of the pending subpoena.
As the Secretary acknowledges, depending on what is learned in
response to the subpoena, he may pursue different courses of
action. 	See Doc. no. 17, at 7, fn.7. 	If the documents
responsive to the subpoena demonstrate additional bases for the
existing citation, the Secretary may seek to amend the existing
citation to include those matters. 	See, e.g., Simplex Time
Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 585 (D.C. Cir.
1985); S. Colo. Prestress Co. v. OSH Review Comm’n¸ 586 F.2d
1342, 1346-47 (10th Cir. 1978); Bloomfield Mech. Contracting,
Inc. v. OSH Review Comm’n, 519 F.2d 1257, 1262-63 (3d Cir.
1975). 	Alternatively, if the new information shows different
violations, the Secretary may decide to issue a new citation for
those violations and, if the citation is challenged as untimely,
may seek equitable tolling of the limitations period, which
would be addressed in the administrative process in the first
instance. 11
is not necessary for purposes of enforcing the subpoena at issue
in this case.
11 The Secretary might also dispute R&L’s untimeliness
defense to a possible future citation based on the discovery
rule. 	See Austin Indus. Specialty Servs., L.P. v. Occupational
Safety & Health Review Comm’n, 765 F.3d 434, 442 (5th Cir. 2014)
(holding that the six-month time limit under § 658(c) does not
begin until the Secretary discovers or should have discovered
the violation); accord Delek Refining, Ltd. V. Occupational
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Because those procedural alternatives and possibilities
have not yet occurred, as acknowledged by the Secretary, the
issues of timeliness and equitable tolling are not before the
court. 	The timeliness of a citation that might arise from R&L’s
compliance with the subpoena cannot be determined in the context
of this subpoena enforcement action. 	Whether or not the
Secretary’s possible future actions based on documents produced
pursuant to the subpoena are time barred does not affect the
enforcement issue presented in this case.
The district court should conclude that R&L Carriers has
not shown that the Secretary’s petition to enforce the subpoena
is moot.
B. 	Enforceability
For an agency to “obtain judicial backing” for enforcement
of an administrative subpoena, the agency must prove four
factors. 	Sturm, Ruger & Co., 84 F.3d at 4 (citing United States
v. Morton Salt Co., 338 U.S. 632, 652 (1950). 	Those factors are
as follows: 	((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)
Safety & Health Review Comm’n¸845 F.3d 170, 179 n.10 (5th Cir.
2016).
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proper procedures have been employed in issuing the subpoena.”
Id. 	“As long as the agency satisfies these modest requirements,
the subpoena is per se reasonable and Fourth Amendment concerns
are deemed satisfied.” 	Id.
During the hearing, Clarkson on behalf of R&L agreed that
the Secretary had made the necessary showing to meet the Sturm,
Ruger factors. 	Doc. no. 14, at 8. 	At this point, the court
must enforce an administrative subpoena unless the employer, R&L
in this case, can show that the subpoena “is too indefinite, has
been issued for an illegitimate purpose, or is unduly
burdensome.” 	McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1165
(2017) (internal quotation marks omitted). 	Instead of relying
on those factors, however, R&L continued to argue at the
hearing, as it did in its answer, that enforcement of the
subpoena would be unreasonable in violation of its Fourth
Amendment rights.
Contrary to R&L’s arguments, compliance with the Sturm,
Ruger factors establishes that any Fourth Amendment concerns are
satisfied. 	84 F.3d at 4. 	Therefore, R&L’s arguments against
enforcement of the subpoena on the grounds that the subpoena is
unreasonable, under the Fourth Amendment, have been conceded and
are no longer viable in this case. 	To the extent R&L’s
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arguments can be construed to address appropriate defenses, as
provided in McLane, they are addressed as follows. 12
1. 	Requests 1 and 2 – Information about Forklifts
Requests 1 and 2 ask for the following:
1. 	To the extent not already provided, all maintenance
records for the period 5/10/2021 to 6/9/2021 for the five
forklifts on your Job Site identified as: #F2159; F2092;
F1744; F2157; and F2228. 13
2. 	To the extent not already provided, all inspection logs
for the forklifts identified in Request 1 for the period
from 5/10/2021 to 6/9/2021. 14
R&L contends that because it has provided some of the
information requested by the Secretary it cannot be compelled to
comply with the subpoena and provide the requested documents.
R&L further contends that (1) it is not required to maintain the
records and logs requested, (2) the complaint that was the basis
12 It appears to be undisputed that R&L provided its federal
identification number in compliance with Request 4, which
satisfied that request. 	Therefore, Requests 1, 2, and 3 are the
remaining disputed requests in the subpoena.
13 Since you had approximately 14 or more forklifts on site
during the relevant period, this request only seeks maintenance
records for the five specified forklifts for the specified 30-
day period, so as to minimize the burden on you. This request is
necessary because you previously provided only a sampling of
records for the five identified forklifts during the relevant
period.
14 As with Request 1, this request is directed to only the
five specified forklifts so as to minimize the burden on you.
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for the OSHA investigation did not specify the forklifts that
are listed in the requests, (3) R&L already allowed the
forklifts to be inspected and photographed and produced some
inspection and maintenance records for those forklifts, and (4)
OSHA has not justified a basis for continuing to request
information.
None of those bases for opposing the subpoena are viable.
R&L points to no statutory or regulatory limitation on OSHA’s
investigation authority that would require a showing that the
requested information or documents are required to be
maintained. 	This court has held to the contrary. 	See Reich v.
Sturm, Ruger & Co., Inc., 903 F. Supp. 239, 246 (D.N.H. 1995).
Similarly, R&L has not shown that only specific forklifts
identified in the initial complaint can be the subject of the
subpoena, and again, this court has held to the contrary. 	Id.
at 245-46. 	Although R&L has provided some of the information
requested, it admittedly has not provided all the information
requested. 	The requests are limited to records and logs that
have not already been provided. 	R&L objects to OSHA’s
continuing investigation arising from the initial complaint but
cites no authority that precludes OSHA’s practice.
Further, R&L does not show or even argue that Requests 1
and 2 are indefinite, were issued for an improper purpose, or
are unduly burdensome. 	In fact, those requests are limited to
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records and logs for four specific forklifts during a one-month
period, which is neither indefinite nor unduly burdensome. 	To
the extent R&L argues that the OSHA subpoena must conform to the
requirements for search warrants, R&L has not shown that to be
true, and McLane holds to the contrary. 	137 S. Ct. at 1169.
Therefore, the district court should enforce Requests 1 and
2 in the subpoena.
2. 	Request 3 – Employee Identification
Request 3 is directed to obtaining information to identify
and contact employees who operated forklifts during a one-month
period:
3. 	A list of the employee(s) who operated one or more
forklifts at the Job Site between 5/10/2021 and 6/9/2021,
which identifies for each such employee: (a) the employee’s
first and last name, (b) the employee’s number; 15 (c) the
employee’s telephone number; (d) the employee’s last known
mailing address; and (e) the employee’s email address, if
known; or, if such a list does not exist, documents
sufficient to show the foregoing. 16
15 You previously provided some documents that referred to
employees by number but not by name. The internal employee
number is necessary to understand which records refer to which
employees.
16 If it would be less burdensome for you to simply make
employees available for interview at the Job Site, OSHA will
consider withdrawing this request for contact information. (You
previously refused to allow any employees to be interviewed on
site, which is part of why this Subpoena is necessary.)
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Request 3 has been limited to the twenty-three employees who
were identified as forklift operators during the one-month
period. 	Therefore, R&L’s objection based on the number of
employees who might have operated a forklift has been resolved.
R&L disputes the statement in footnote 16 of Request 3 that
it previously refused to allow employees to be interviewed at
R&L’s facility. 	It also argues that the request is improper
because it requires R&L to create a list of information about
employees who operated forklifts, which would be burdensome,
because the employees have privacy rights that protect their
contact information, and because the Secretary has not
demonstrated that it needs information from employees about roof
leaks.
With respect to onsite interviews, it is undisputed that
R&L refused to allow employees to be interviewed. 	R&L asserts
that it would not consent to interviews because OSHA did not
explain the substance of the interviews. 	R&L has not shown that
it was entitled to know the subject matter to be addressed in
the interviews before consenting to the interviews. 	See, e.g.,
Sierra Resources, Inc. v. Herman, 213 F.3d 989 992-93 (7th Cir.
2000) (finding no due process violation when employer was
excluded from OSHA’s interviews with employees).
Request 3 gives R&L alternatives to compiling a list of the
requested contact information for employees. 	If R&L chooses to
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compile a list to comply with the request, it has not shown that
effort would be unduly burdensome for the twenty-three
identified employees. 	R&L has not shown that the twenty-three
employees have any protected privacy interest in their contact
information that has been provided to R&L. 	See Perez v.
Lasership, Inc., 2015 WL 11109330, at *3-*4 (D. Conn. Sept. 18,
2015).
With respect to seeking information about roof leaks, as is
noted above, OSHA’s investigation is not limited to the specific
matters raised in the initial complaint. 	Further, R&L is wrong
that the complaint lacks a report about roof leaks. 	The first
sentence of the complaint states: 	“Roof leaks into the facility
onto the smooth concrete floor creating slip hazards for foot
traffic and fork lifts.” 	Doc. no. 1-2. 	Therefore, information
from employees about roof leaks is highly relevant to the
complaint and to OSHA’s investigation.
The district court should enforce Request 3 in the subpoena
as limited by the Secretary.
C. 	Attorneys’ Fees
In the petition, the Secretary asks for an award of
attorneys’ fees without any further development. 	At the
hearing, Wilkinson on behalf of the Secretary explained that she
was relying on Federal Rule of Civil Procedure 37(a)(5) for an
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award of fees. 	She also stated that she intended to file a
motion for the purpose of requesting fees if the court ruled in
favor of the Secretary to enforce the subpoena. 	R&L opposes an
award of fees.
Nothing in the OSH Act provides for an award of attorneys’
fees to the prevailing party in an action to enforce a subpoena.
Nevertheless, courts have awarded fees in administrative
subpoena enforcement cases under Rule 37(a)(5), made applicable
by Federal Rule of Civil Procedure 81(a)(5). 	See, e.g., Walsh
v. UHS of Fuller, Inc., 2021 WL 4926124, at *2 (D. Mass. Oct.
21, 2021); Perez v. Beachside Home Care, LLC, 2016 WL 8117949,
at *4-*5 (D.S.C. Nov. 22, 2016); Lineback v. Cherry Creek Elec.,
Inc., at *2 (C.D. Ill. Aug. 6, 2015). 	Another court, however,
found that Federal Rule of Civil Procedure 45, not Rule
37(a)(5), governed fees in subpoena enforcement actions. 	HT
S.R.L. v. Velasco, 2015 WL 13759884, at *6 (D.D.C. Nov. 13,
2015). 	On the other side of the dispute, courts have found that
Rule 45 governed requests by the targets of administrative
subpoenas after unsuccessful enforcement actions. 	See, e.g.,
U.S. v. Tenn. Walking Horse Breeders’ & Exhibitors’ Ass’n, 727
F. App’x 119, 123-26 (6th Cir. 2018); United States v. Rakhit,
2021 WL 1817349, at *5 (N.D. Ohio May 4, 2021). 	As such, the
applicable legal standard may be unsettled.
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The Secretary’s request for fees is based on a presumption
of success on the petition. 	While the undersigned recommends
that the district judge issue an order to enforce the subpoena,
that order will not issue unless and until the district court
approves and adopts this report and recommendation. 	Further,
the parties have not briefed the issue of an award of fees in
this case, which would be helpful for determining the outcome.
Therefore, the undersigned recommends that if the district
judge orders enforcement of the subpoena, the parties be given
an opportunity to brief and provide evidence on the issue of an
award of attorneys’ fees.
Conclusion
For the foregoing reasons, the district judge should grant
the Secretary’s petition (doc. no. 1) and order R&L to provide
full responses to Requests 1, 2, and 3 in the Secretary’s
subpoena consistent with the recommended enforcement order
attached.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
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554, 564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 12, 2022
cc: 	Counsel of Record
__________________________
Andrea K 	Johnstone
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martin J. Walsh, Secretary,
U.S. Department of Labor
v. 	Case No. 21-mc-67-SM
R&L Carriers Shared Services, LLC
Recommended Enforcement Order
The Secretary of Labor initiated this action pursuant to 29
U.S.C. § 657(b) to enforce a subpoena for documents issued by
the Occupational Safety and Health Administration (“OSHA”) to
R&L Carriers Shared Services, LLC (“R&L”). 	The Area Director of
the Concord OSHA office issued a subpoena for documents on
August 24, 2021. 	The subpoena was issued to “Custodian of
Records” at R&L. 	The Custodian was directed to appear before
the Area Director at the Concord OSHA office on August 31, 2021,
at 12:00 p.m. and to bring and produce books, papers, and
documents with the following information:
1. 	To the extent not already provided, all maintenance
records for the period 5/10/2021 to 6/9/2021 for the five
forklifts on your Job Site identified as: #F2159; F2092;
F1744; F2157; and F2228. 1
1 Since you had approximately 14 or more forklifts on site
during the relevant period, this request only seeks maintenance
records for the five specified forklifts for the specified 30-
day period, so as to minimize the burden on you. This request is
necessary because you previously provided only a sampling of
records for the five identified forklifts during the relevant
period.
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2
2. 	To the extent not already provided, all inspection
logs for the forklifts identified in Request 1 for the
period from 5/10/2021 to 6/9/2021. 2
3. 	A list of the employee(s) who operated one or more
forklifts at the Job Site between 5/10/2021 and 6/9/2021,
which identifies for each such employee: (a) the employee’s
first and last name, (b) the employee’s number; 3 (c) the
employee’s telephone number; (d) the employee’s last known
mailing address; and (e) the employee’s email address, if
known; or, if such a list does not exist, documents
sufficient to show the foregoing. 4
4. 	Documents sufficient to show the Federal ID number for
the entity or entities that employ(s) the person(s) who
operated forklifts at the Job Site between 5/10/2021 and
6/9/2021.
Doc. 1-6, at 7. 	As addressed in the report and recommendation,
R&L did not fully comply with the subpoena. 	R&L did provide
documents sufficient to show its federal ID number, as stated in
Request 4. 	Therefore, Request 4 is satisfied.
In the course of the parties' communications and
interactions, the Secretary modified Request 3 to seek a list of
2 As with Request 1, this request is directed to only the
five specified forklifts so as to minimize the burden on you.
3 You previously provided some documents that referred to
employees by number but not by name. The internal employee
number is necessary to understand which records refer to which
employees.
4 If it would be less burdensome for you to simply make
employees available for interview at the Job Site, OSHA will
consider withdrawing this request for contact information. (You
previously refused to allow any employees to be interviewed on
site, which is part of why this Subpoena is necessary.)
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3
identifying information about the twenty-three employees that
R&L identified as those who operated forklifts during the
specified period. 	Therefore, Request 3 is amended, as shown in
bold, to state:
3. A list of the twenty-three previously identified
employee(s) who operated one or more forklifts at the Job
Site between 5/10/2021 and 6/9/2021, which identifies for
each such employee: (a) the employee’s first and last name,
(b) the employee’s number; 5 (c) the employee’s telephone
number; (d) the employee’s last known mailing address; and
(e) the employee’s email address, if known; or, if such a
list does not exist, documents sufficient to show the
foregoing.
The court has approved and adopted the report and
recommendation to grant the Secretary’s petition to enforce the
subpoena, as modified.
Conclusion
R&L shall fully comply with Requests 1 and 2 in the
subpoena and Request 3, as modified and stated in this order,
within fourteen days of the date when this order is issued.
If the Secretary intends to seek an award of attorneys’
fees in this action, he shall file a motion to that effect, with
briefing to support an award and documentation for the amount of
5 You previously provided some documents that referred to
employees by number but not by name. The internal employee
number is necessary to understand which records refer to which
employees.
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fees requested within fourteen days of the date when this order
is issued. 	R&L will then have fourteen days to respond.
SO ORDERED.
______________________________
Steven J. McAuliffe
United States District Judge
Date: 	___________
cc: 	Counsel of Record
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