RAYMOND J. DONOVAN, SECRETARY OF LABOR, ET AL., APPELLANTS v. LONE STEER, INC. No. 82-1684 In the Supreme Court of the United States October Term, 1982 On Appeal From the United States District Court for the District of North Dakota JURISDICTIONAL STATEMENT PARTIES TO THE PROCEEDING The Secretary of Labor and Al Godes and Loren Gilbert, two officers of the Department of Labor, were named as defendants in the district court and are appellants here. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement The question is substantial Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the district court (App. A, infra, 1a-9a) is not reported. The order of the district court denying the motion to alter or amend the judgment (App. D, infra, 14a-15a) is not reported. JURISDICTION The judgment of the district court (App. B, infra, 9a-10a) was entered on October 28, 1982. A motion to alter or amend the judgment was denied on November 24, 1982 (App. D, infra, 13a-14a). The notices of appeal to this Court were filed on December 15, 1982 (App. C, infra, 11a-12a). On February 4, 1983, Justice Blackmun extended the time within which to docket the appeal to and including April 14, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. See page 7 note 4, infra. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fourth Amendment to the Constitution provides: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Section 11(a) of the Fair Labor Standards Act of 1938, 29 U.S.C. 211(a), provides: The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter. Except as provided in section 212 of this title and in subsection (b) of this section, the Administrator shall utilize the bureaus and divisions of the Department of Labor for all the investigations and inspections necessary under this section. Except as provided in section 212 of this title, the Administrator shall bring all actions under section 217 of this title to restrain violations of this chapter. Section 9 of the Fair Labor Standards Act of 1938, 29 U.S.C. 209, provides: For the purpose of any hearing or investigation provided for in this chapter, the provisions of sections 49 and 50 of title 15 (relating to the attendance of witnesses and the production of books, papers and documents), are 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 amended, 15 U.S.C. 49, provides in pertinent part: For the purposes of this subchapter the Commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examinination, and the right to copy any documentary evidence of any person, partnership or corporation being investigated or proceeded against; and the Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the Commission may sign subpoenas, and members and examiners of the Commission may administer oaths and affirmations, examine witnesses, and receive evidence. Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience of a subpoena the Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation, issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof. QUESTION PRESENTED Whether the subpoena provisions of the Fair Labor Standards Act, 29 U.S.C. 209 and 211, which authorize the Secretary of Labor to compel the production of documentary evidence without a warrant, violate the Fourth Amendment. STATEMENT 1. On January 6, 1982, Al Godes, a compliance officer with the Wage and Hour Division of the United States Department of Labor, telephoned appellee, a motel-restaurant located in Steele, North Dakota, and informed its manager, Susanne White, that he would commence an investigation of the establishment the following morning. He requested White to have available for inspection time, wage, and payroll records for all employees for the past two years (App. A, infra, 2a). The investigation was to be conducted pursuant to Section 11 of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 211, and its purpose was to determine whether appellee was in compliance with the FLSA. /1/ After the investigation was rescheduled at the request of appellee, its attorney sent a letter to Godes inquiring about the scope of and reason for the investigation (App. A, infra 3a). The Department of Labor, represented by Loren Gilbert, Assistant Regional Administrator for the Wage and Hour Division, replied by letter on January 20, 1982, outlining the general scope of an FLSA investigation, but refusing to give the motive for the investigation of appellee because the Secretary's investigatory powers under the FLSA do not depend upon the filing of a complaint (id. at 3a-4a). Gilbert also asked appellee to inform him if it intended to withhold consent for the rescheduled investigation, "so that I can request an administrative subpoena in order to conduct the investigation" (id. at 4a). Shortly thereafter, appellee's attorney informed Gilbert that appellee would not permit the investigation without a search warrant from an independent magistrate (ibid.). Under instructions to attempt the investigation of appellee and, if permission was refused, to serve an administrative subpoena duces tecum, Godes entered the public lobby area of appellee's premises on February 2, 1982. When the manager did not appear, he served the subpoena on an employee of appellee (App. A, infra, 4a). /2/ The subpoena, signed by the Administrator of the Wage-Hour Division, requested that an officer, agent, or employee having custody and personal knowledge of appellee's records appear to testify regarding appellee's wage practices and to produce certain records at the Wage-Hour office in Bismarck, North Dakota, on February 9, 1982. The request was specifically limited to certain records required by law to be kept by employers, namely, payroll data and sales records relevant to whether the company was covered by the FLSA (id. at 5a; Stipulation of Facts No. 11). /3/ Appellee's attorney subsequently informed the Department of Labor that appellee would not comply with the administrative subpoena on the ground that it was invalid under Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) (App. A, infra, 5a). 2. Appellee challenged the validity of the subpoena by commencing this action against appellants, the Secretary of Labor, Godes, and Gilbert, in the United States District Court for the District of North Dakota. In its amended complaint, appellee sought to enjoin appellants from "entering (its) premises or seizing any of (its) property with an administrative (s)ubpoena, without obtaining a warrant." Second Verified Complaint at 4. Appellee's complaint also sought a declaratory judgment that the FLSA "is unconstitutional insofar as it purports to authorize a warrantless inspection of records by way of administrative (s)ubpoena after entry to inspect has been denied." Id. at 5. On March 3, 1982, the Secretary petitioned the district court to compel appellee to comply with the administrative subpoena. The district court consolidated appellee's injunctive and declaratory judgment action with the Secretary's enforcement action. The district court denied the Secretary's motion for summary judgment and granted summary judgment in favor of appellee in each case, holding that enforcement of the subpoena would violate the Fourth Amendment (App. A, infra, 1a-8a). The court first expressly found that "(t)he actions of the Secretary * * * unquestionably comport" with the provisions of the FLSA setting forth his investigative powers (id. at 6a). Hence, the court stated, the controlling issue was appellee's contention that "this statutory scheme is constitutionally impermissible," a contention based exclusively on Marshall v. Barlow's, Inc., supra (App. A, infra, 6a). The district court held that this Court's decision in Barlow's, which required a warrant based on probable cause prior to non-consensual searches of work areas under the Occupational Safety and Health Act of 1970, 29 U.S.C. 657(a), applies to FLSA investigations (App. A, infra, 7a-8a). Indeed, because there is a more compelling basis for proceeding with a warrantless safety and health inspection than one directed at compliance with wage and hour regulations, the court remarked that the reasoning of Barlow's "applies with equal -- if not greater -- force in the instant situation" (id. at 8a). Accordingly, the court concluded that "the Secretary * * * may not proceed to enter upon the premises of (appellee) for the purpose of inspecting its records under Section 11 of the Fair Labor Standards Act without first having obtained a valid warrant" (ibid.; emphasis in original). In effect, the court held unconstitutional Sections 9 and 11 of the FLSA, 29 U.S.C. 209 and 211, which, by reference to 15 U.S.C. 49, give the Secretary administrative subpoena power to inspect relevant documents without resort to a warrant. /4/ Because the language of the district court's order barred the Secretary from "enter(ing) upon (appellee's) premises" to inspect the records, the Secretary filed a motion to alter or amend the judgment (App. E, infra, 15a-17a) by ordering appellee to comply with the subpoena by producing the records at the place named therein -- a location away from the appellee's premises. The court denied the motion (App. D, infra, 13a-14a). THE QUESTION IS SUBSTANTIAL 1. The decision of the district court holds unconstitutional the power conferred upon the Secretary of Labor by Sections 9 and 11 of the Fair Labor Standards Act of 1938 to compel by subpoena the production of relevant documents in connection with an FLSA investigation. At a minimum, the decision seriously interferes with the longstanding mechanism established by Congress to enforce important federal legislation designed to assure fair minimum labor standards. Requiring a warrant based on probable cause as a precondition to government inspection of payroll and wage records of an employer will severely impair the Secretary's ability to monitor compliance with the FLSA. Moreover, the ramifications of the district court's decision, if it is permitted to stand, range far beyond the specific context of enforcement of fair labor standards. The subpoena provision of the FLSA simply incorporates by reference the subpoena provision of the Federal Trade Commission Act of 1914, 15 U.S.C. 49. Thus, as a practical matter, the decision below also invalidates the subpoena power of the FTC, as well as the subpoena powers of other governmental bodies who derive their authority by reference to the FTC Act. See, e.g., 42 U.S.C. (Supp. IV) 7255 (Department of Energy Act of 1978); 29 U.S.C. 1134(c) (Employee Retirement Income Security Act of 1974); 29 U.S.C. 521(b) (Labor-Management Reporting and Disclosure Act of 1959); 27 U.S.C. 202(c) (Federal Alcohol Administration Act); 21 U.S.C. 677 (Federal Meat Inspection Act). /5/ In sum, the district court's decision calls into question the constitutionality of the subpoena power across a broad spectrum of federal regulatory activity. This Court should grant review to remove the cloud placed on the validity of a long established investigative tool that is essential to enforcement of an array of important federal statutes. 2. Apart from the broad potential impact of the district court's decision, further review is required because the decision is manifestly erroneous. In the name of protecting against unreasonable searches and seizures, the decision strikes down a well established administrative enforcement system. Yet it does not significantly advance any legitimate privacy interest and is completely unsupported by established principles of Fourth Amendment jurisprudence. Indeed, the decision below is flatly inconsistent with a controlling precedent of this Court upholding the subpoena provisions of the FLSA, as well as more than 30 years of consistent decisions by this Court in analogous contexts. a. In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), this Court rejected the contention that the subpoena power conferred by the FLSA violates the Constitution and, in particular, the Fourth Amendment (id. at 195-214). The Court recognized that the statute authorizes the examination of documents without a warrant based on probable cause, but it held that this does not violate the Fourth Amendment's proscription against "unreasonable searches and seizures." The Court stated that the execution of a subpoena for specific documents is not an "actual search and seizure" (id. at 195), and ruled that the requirements of the Warrant Clause of the Fourth Amendment do not apply to it. The Court explained that in enforcing a subpoena "(n) o officer or other person (seeks) to enter petitioners' premises against their will, to search them, or to seize or examine their books, records or papers without their assent, otherwise than pursuant to orders of court authorized by law and made after adequate opportunity to present objections." Ibid. Rather, the Court held, the issuance of a subpoena is a "constructive search" (see generally id. at 202-208) that, to the extent the Fourth Amendment applies to it at all, is governed by the constitutional requirement that it not be "unreasonable." Id. at 208. The "reasonableness" of an administrative subpoena, the Court explained, is guaranteed by safeguards different from the warrant based on probable cause required in other contexts to support "actual searches." 327 U.S. at 209. The abuses against which the Fourth Amendment guards in the subpoena context are "too much indefiniteness or breadth in the things required to be 'particularly described'" and whether "the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant." Id. at 208. Affording the object of a subpoena the right to challenge its validity in court before enforcement protects against this kind of abuse. Id. at 209, 217. In the Court's words, protection analogous to the probable cause standard is provided in the subpoena context by "the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry * * * (and) specification of the documents to be produced (is) adequate, but not excessive, for the purposes of the relevant inquiry." Id. at 209. Accordingly, the Court held that, in the case of an FLSA administrative subpoena, "(i)t is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command." Id. at 208-209. Thus, Oklahoma Press unequivocally rejects the district court's holding that an FLSA subpoena is unconstitutional unless it is based upon probable cause. The principle of Oklahoma Press -- that specific, relevant administrative subpoenas satisfy Fourth Amendment standards -- has been repeatedly reaffirmed by this Court. See, e.g., United States v. Miller, 425 U.S. 435, 445-446 (1976); United States v. Powell, 379 U.S. 48, 57 (1964); United States v. Morton Salt Co., 338 U.S. 632, 652-653 (1950). As the Court stated in See v. City of Seattle, 387 U.S. 541, 544 (1967) (footnote omitted): "(i)t is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome." The district court did not suggest that the subpoena here was unduly general or burdensome (and it cannot seriously be contended that it is), and the documents sought plainly are relevant to an investigation authorized by the FLSA. See Oklahoma Press Publishing Co. v. Walling, supra, 327 U.S. at 210. Rather, the court's decision rests solely on the proposition that any FLSA subpoena is invalid unless it is issued by a neutral magistrate based on probable cause (App. A, infra, 8a). Accordingly, the decision below seeks to obliterate "the traditional distinction between a search warrant and a subpoena" (United States v. Miller, supra, 425 U.S. at 446), and cannot be squared with the settled rule of Oklahoma Press. b. The unstated premise of the district court's decision appears to be that Oklahoma Press and subsequent cases upholding administrative subpoenas were overruled sub silentio by Marshall v. Barlow's, Inc., 436 U.S. 307 (1978). That premise, however, is completely without foundation. Barlow's involved considerations quite different from those implicated by administrative subpoenas, and nothing said by the Court there casts any doubt on the validity of Oklahoma Press. Indeed, Barlow's relied heavily (see 436 U.S. at 312-313) on See v. City of Seattle, supra, which, while establishing an administrative warrant requirement for fire inspections, also confirmed the basic principle of Oklahoma Press that the Fourth Amendment constraints on an administrative subpoena duces tecum relate to relevance and burdensomeness, not probable cause. See pages 10-11, supra. In Barlow's, this Court held unconstitutional the inspection powers conferred on the Secretary of Labor by the Occupational Safety and Health Act of 1970, 29 U.S.C. 657(a), to search the work area of any employment facility for safety hazards and violations of OSHA regulations. The opinion in Barlow's makes clear, however, that the requirement that these searches be conducted pursuant to a warrant has no application to the "constructive search" involved in the enforcement of an administrative subpoena. The Court's concern in Barlow's was with a broad administrative power to enter and inspect private premises, and the consequent invasion of pricacy, that was unrestrained by any prior judicial review. The Court characterized the OSHA statute as "devolv(ing) almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search." 436 U.S. at 323. Moreover, the Court noted, the statute did not require the inspector to "advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed." Ibid.; footnote omitted. A warrant requirement, the Court concluded, would obviate both of those problems by delimiting the scope of the search and "provid(ing) assurances from a neutral officer" that the proposed search was reasonable and authorized by statute. Ibid.; see also Donovan v. Dewey, 452 U.S. 594, 601 (1981). These concerns are not implicated in the subpoena context. The FLSA subpoena does not confer unbridled discretion upon the officer in the field. It must be issued by the Wage-Hour Administrator, and, more important, it can be enforced only by resort to a court in which the subpoenaed party may raise objections to its reasonableness. See See v. City of Seattle, supra, 387 U.S. at 544-545. The subpoena is not open-ended like the search in Barlow's; it identifies the particular documents to be submitted. See id. at 544. And perhaps most important, a subpoena does not authorize or even require an entry onto the employer's non-public premises. Thus, the subpoena procedure itself provides the Fourth Amendment protection that the Court found lacking in Barlow's in the absence of a warrant, and, as the lower courts consistently have held, there is nothing in Barlow's that undercuts the long established validity of administrative subpoenas. See, e.g., Donovan v. Mehlenbacher, 652 F.2d 228, 230 (2d Cir. 1981); In re Grand Jury Proceedings, 601 F.2d 162, 168 & n.1 (5th Cir. 1979); Marshall v. American Olean Tile Co., 489 F. Supp. 32 (E.D. Pa.), Aff'd, 636 F.2d 1209 (3d Cir. 1980); Marshall v. Walbridge, 84 Lab. Cas. (CCH) Paragraph 33,723 (N.D. Ind. 1978). /6/ The district court's decision that a search warrant must be used instead of a subpoena turns accepted Fourth Amendment principles on their head. It is generally recognized that a subpoena duces tecum, which allows the recipient of the subpoena (rather than a law enforcement officer) to search for the relevant documents, is substantially less intrusive of privacy interests than a search warrant. See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 563 (1978); id. at 571, 573 (Stewart, J., dissenting). Indeed, despite Barlow's, some lower courts have held that, because of the additional safeguards provided by the subpoena process, Congress intended that OSHA inspectors always use a subpoena to inspect documents, and therefore they may not use a warrant for that purpose. See In re Kulp Foundry, Inc., 691 F.2d 1125, 1130-1133 (3d Cir. 1982); In re Inland Steel Co., 492 F. Supp. 1310 (N.D. Ind. 1980). These decisions highlight the error of the district court's invalidation on Fourth Amendment grounds of administrative subpoenas in favor of warrants. Finally, the contention that the FLSA subpoena issued here violates the Fourth Amendment is made even more untenable by the fact that the records sought are ones that are required by law to be maintained. See note 3, supra. Thus, the records have a public aspect that vitiates any claim by appellee of a reasonable expectation of privacy in their contents. See United States v. Miller, supra, 425 U.S. at 440-443; Shapiro v. United States, 335 U.S. 1, 32-36 (1948); Donovan v. Mehlenbacher, supra, 652 F.2d at 231. If the government is empowered to require employers to maintain certain records to help assure compliance with the FLSA, the government ought to be able to see those records without having to demonstrate probable cause that a statutory violation exists. In sum, the district court's invalidation of FLSA subpoenas on the ground that an inspection of documents is a "search" that may only be made pursuant to a warrant defies common sense and is directly contrary to longstanding precedents of this Court. /7/ CONCLUSION Probable jurisdiction should be noted. The Court may wish to consider summary reversal. Cf. FTC v. Crafts, 355 U.S. 9 (1957). Respectfully Submitted, REX E. LEE Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General T. TIMOTHY RYAN, JR. Solicitor of Labor KAREN I. WARD Associate Solicitor CHARLES I. HADDEN Counsel for Appellate Litigation STEVEN J. MANDEL Attorney Department of Labor APRIL 1983 /1/ Section 11 of the FLSA authorizes the Secretary of Labor to conduct investigations to determine whether any provision of the Act has been violated. Specifically, he is authorized to "enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices or matters as he may deem appropriate." These investigatory powers are augmented by Section 9 of the FLSA, 29 U.S.C. 209, which, by incorporating by reference Sections 9 and 10 of the Federal Trade Commission Act of 1914, 15 U.S.C. (& Supp. V) 49 and 50, authorizes the Secretary "to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation." In the event of refusal to comply with a subpoena, the Secretary "may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence." Failure to obey any order of the court to produce documentary evidence "may be punished by such court as a contempt thereof." (Under Reorg. Plan No. 6 of 1950, 3 C.F.R. 1004 (1949-1953 Comp.), reprinted in 5 U.S.C. App. at 743, all functions of all other officers of the Department of Labor are transferred to the Secretary of Labor, although the Secretary is free to delegate those functions to other officers.) /2/ It is uncontested that appellee was properly served with the subpoena (App. A, infra, 4a). /3/ Regulations implementing 29 U.S.C. 211(c) require employers to keep the type of information requested. See 29 C.F.R. 516.2(a) (payroll information) and 516.5(c) (sales and purchase records). /4/ Although the order and judgment of the district court do not expressly declare the FLSA unconstitutional, they clearly represent a holding of unconstitutionality. The court explicitly found that the subpoena was authorized by statute and that the question therefore was whether its enforcement was "constitutionally impermissible" (App. A, infra, 6a). There is no suggestion that the particular subpoena involved here was in any way invalid; hence, a determination of unconstitutionality "'was a necessary predicate to the relief that the lower court granted.'" California v. Grace Brethren Church, No. 81-31 (June 18, 1982), slip op. 11, quoting United States v. Clark, 445 U.S. 23, 26 n.2 (1980) (footnote omitted). The effect of the decision is to make officers of the United States "bound by a holding of unconstitutionality" (California v. Grace Brethren Church, supra, slip op. 11, quoting McLucas v. DeChamplain, 421 U.S. 21, 31 (1975), and thus there is no doubt that direct appeal of the decision to this Court lies under 28 U.S.C. 1252. /5/ In addition, the decision of the district court strongly suggests the unconstitutionality of subpoena powers under other statutes that also authorize compelling the production of records without a warrant although they do not expressly incorporate the FTC Act by reference. See, e.g., 49 U.S.C. (Supp. IV) 10321(c) (Interstate Commerce Act); 47 U.S.C. 409(e) (Federal Communications Act); 30 U.S.C. 813(d) (Federal Mine Safety and Health Act); 29 U.S.C. 657(b) (Occupational Safety and Health Act of 1970); 29 U.S.C. (& Supp. V) 161 (National Labor Relations Act); 26 U.S.C. 7602 (Internal Revenue Code); 15 U.S.C. 1401(c) (National Traffic and Motor Vehicle Safety Act). /6/ The Court's opinion in Barlow's did note that its invalidation of OSHA's unrestricted statutory inspection power also applied to an inspection of documents. 436 U.S. at 324 n.22. That comment was made, however, in the context of an entry onto the employer's non-public premises to effect, inter alia, a broad inspection of documents in the absence of either a warrant or a subpoena. It certainly does not suggest that a warrant, rather than a subpoena, is necessary for every inspection of documents. Indeed, the Court's primary objection to the document search was the failure to "delineat(e) the scope of (the) search" (ibid.), a function that manifestly is performed satisfactorily by a subpoena. /7/ Because the district court's opinion and judgment specifically bar the Secretary of Labor from "enter(ing) upon the premises of appellee" (App. A, infra, 8a; App. B, infra, 9a-10a), a superficial reading suggests that the court did not necessarily hold that inspection of the documents themselves would violate the Fourth Amendment, but rather held only that a physical entry onto appellee's premises to execute the subpoena would be unconstitutional without a warrant. Upon further examination, however, it is clear that such a reading is erroneous. First, and foremost, the subpoena at issue specifically requested production of the documents at the local Wage-Hour office (see Stipulation of Facts No. 11), and thus the validity of an entry onto appellee's premises was not even before the court. The papers filed by the parties confirm that the issue litigaged in the district court was the warrantless "search" involved in the inspection of the documents, rather than an entry that the government did not even seek. The stated basis for appellee's contention that the subpoena violated the Fourth Amendment was the allegation that the subpoena "purports to authorize inspection of (appellee's) records without a warrant or its equivalent * * * (and) probable cause." Second Verified Complaint at 3-4. The government emphasized in its papers that the subpoena did not require entry onto appellee's premises, stating that compliance officers "are instructed not to enter any non-public area of any establishment without the employer's permission" and that, if an employer does not want to have records reviewed on his premises, "compliance officers will agree to any other reasonable arrangements to review the records off the employer's premises." Memorandum in Support of Petition to Compel Respondent to Attend, Testify and Produce Documentary Evidence, at 13. Finally, the fact that the subpoena did not contemplate entry onto appellee's premises was again brought to the district court's attention in the government's Motion to Alter or Amend the Judgment (App. E, infra, 15a-17a). The court's denial of that motion (App. D, infra, 13a-14a) plainly demonstrates that its decision holds unconstitutional the use of an administrative subpoena to inspect documents even off the employer's premises. Appendix Omitted