National Labor Relations Board v. Cooper Tire & Rubber Co.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2005 Decided February 28, 2006

No. 04-5418

NATIONAL LABOR RELATIONS BOARD,
APPELLEE

v.

COOPER TIRE & RUBBER COMPANY,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 03mc03898)

Michael McMenamin argued the cause for appellant. With
him on the briefs were Nancy A. Noall and Morris L. Hawk.
Jennifer J. Illingworth entered an appearance.

Stanley R. Zirkin, Assistant General Counsel, National
Labor Relations Board, argued the cause for appellee. With him
on the brief was Helene D. Lerner, Trial Attorney.

Before: HENDERSON, BROWN and GRIFFITH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge BROWN.
 2

Dissenting opinion filed by Circuit Judge GRIFFITH.

BROWN, Circuit Judge: The threshold issue in this case is
whether the United States District Court for the District of
Columbia had jurisdiction to enforce subpoenas issued by the
National Labor Relations Board (“NLRB”) in the course of the
NLRB’s investigation of appellant Cooper Tire & Rubber
Company (“Cooper Tire”) for possible contempt of a 1992
cease-and-desist order. We conclude that the district court
lacked jurisdiction, and therefore we vacate its order without
addressing the other issues Cooper Tire raises.

I

In the late 1980s, activities surrounding an unsuccessful
union-organizing campaign at Cooper Tire’s manufacturing
plant in Tupelo, Mississippi, led to an unfair labor practice
charge, an NLRB finding against Cooper Tire, and a cease-and-
desist order. Cooper Tire appealed the order to the Fifth Circuit,
and the Fifth Circuit ruled in favor of Cooper Tire on several
points, narrowing the cease-and-desist order significantly.
Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1252 &
n.11, 1257 & n.23 (5th Cir. 1992). After a subsequent
amendment, the Fifth Circuit’s 1992 judgment barred Cooper
Tire from:

(a) Maintaining and enforcing a no-solicitation rule that
bans solicitation during any break times or in any break
areas . . . when both the solicitor and solicitee are on break
time, whether informal or scheduled, and are in a break
area.
(b) Suspending, discharging, or otherwise disciplining its
employees for violations of a no-solicitation rule that bans
solicitation during any break times or in any break areas . . .
 3

when both the solicitor and solicitee are on break time,
whether informal or scheduled, and are in a break area.
(c) Creating the impression that its employees’ union
activities are under surveillance.
(d) Threatening its employees with reprisals because of
their union activities.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the National Labor
Relations Act . . . .

In 2002, United Steel Workers of America (“the Union”)
began a new campaign to unionize employees at Cooper Tire’s
Tupelo plant. Prior to the election, Cooper Tire showed certain
videotapes to its employees. According to Cooper Tire, the
employees voted against the Union, 641 to 329. The Union then
filed an unfair labor practice charge, complaining that, during
the union-organizing campaign, Cooper Tire prohibited
leafleting activities inside the parking area of the plant,
surveilled pro-union employees as they distributed leaflets, and
focused a surveillance camera on these same employees. The
NLRB regional office referred the matter to the NLRB’s
Contempt Litigation and Compliance Branch (“Contempt
Branch”) here in Washington, D.C., for a determination as to
whether Cooper Tire had acted in contempt of the 1992 cease-
and-desist order. The Contempt Branch then subpoenaed
records related to security at the Tupelo plant. Cooper Tire
responded to the subpoena, sending the requested records to the
Contempt Branch offices in Washington, D.C., and the
Contempt Branch subsequently took depositions of several
security guards.

In April 2003, the Contempt Branch issued two more
subpoenas, seeking the videotapes Cooper Tire showed to
employees during the 2002 union-organizing campaign and
 4

information surrounding the showing of these tapes. (The
subpoenas sought other items, but disputes as to those items
have been resolved.) What was unusual about the Contempt
Branch’s new subpoenas (and what forms the basis of Cooper
Tire’s appeal) is that no party had ever filed a charge asserting
any unlawful practice with respect to the showing of the
videotapes, and the six-month period for filing such a charge
had elapsed. In Cooper Tire’s view, the NLRB was attempting
to circumvent the statute of limitations by characterizing the
videotapes as a violation of the 1992 cease-and-desist order.

Cooper Tire filed a petition with the NLRB to revoke the
subpoenas, and the NLRB denied this petition on October 24,
2003. A few days later, Cooper Tire informed the Contempt
Branch that it would not comply with the subpoenas, and on
December 16, 2003, the Contempt Branch filed an application
in the United States District Court for the District of Columbia,
seeking to enforce the subpoenas. The district court referred the
matter to a magistrate judge.

On January 16, 2004, Cooper Tire moved to dismiss for
lack of subject matter jurisdiction, or in the alternative to
transfer the matter to the Northern District of Mississippi.
Cooper Tire also challenged the subpoenas on their merits,
claiming they exceeded the investigatory authority of the NLRB.

On March 29, 2004, the magistrate judge ruled (1) the
district court had jurisdiction, (2) venue in the District of
Columbia was appropriate, and (3) the Contempt Branch had
authority to issue the subpoenas. On May 10, 2004, the
magistrate judge denied Cooper Tire’s motion for
reconsideration. On May 20, 2004, Cooper Tire appealed the
magistrate judge’s order to the district court, and the district
court rejected the appeal on September 2, 2004, ordering Cooper
 5

Tire to comply with the March 29, 2004 order. Cooper Tire then
filed this appeal.

II

29 U.S.C. § 161(2) permits the NLRB to apply to enforce
a subpoena before the district court “within the jurisdiction of
which the inquiry is carried on or within the jurisdiction of
which said person guilty of contumacy or refusal to obey is
found or resides or transacts business.” (Emphasis added.) A
very similar subpoena enforcement provision appears in the
governing statutes of several other federal administrative
agencies. To establish the jurisdiction of the United States
District Court for the District of Columbia, the NLRB relies on
a broad reading of the phrase “inquiry is carried on.” The
NLRB reasons that its Contempt Branch is located in the District
of Columbia, and therefore the inquiry is being carried on in the
District of Columbia. The NLRB’s interpretation would, of
course, give the NLRB the choice of any forum it liked, simply
by locating its investigation in that jurisdiction, though as a
practical matter the NLRB’s choice is more limited because its
Contempt Branch is located in the District of Columbia. In any
case, the NLRB’s interpretation would allow the NLRB to pick
a forum convenient to its legal staff, while possibly forcing the
subpoenaed party to go to court in a distant and inconvenient
jurisdiction.

Cooper Tire reads the phrase “inquiry is carried on” in
§ 161(2) more narrowly, focusing on the subject matter of the
inquiry. Cooper Tire argues the “inquiry” relates only to the
union-organizing activities at its Tupelo plant, and therefore
Mississippi is the “jurisdiction of which the inquiry is carried
on.” 29 U.S.C. § 161(2). No one is investigating anything that
happened in the District of Columbia, Cooper Tire asserts;
rather, the Contempt Branch just happens to be located there.
 6

The opposite inferences the litigants draw from the
language of the statute are both at least plausible, and therefore
they establish one point: the phrase “within the jurisdiction of
which the inquiry is carried on” is ambiguous. Certainly, if an
actual hearing is underway before an administrative law judge,
and evidence is being presented for the judge to examine on the
record, then the location of that hearing is the location of the
inquiry. FTC v. Browning, 435 F.2d 96, 99 n.7 and 100 (D.C.
Cir. 1970); see also U.S. Int’l Trade Comm’n v. ASAT, Inc., 411
F.3d 245 (D.C. Cir. 2005); FTC v. MacArthur, 532 F.2d 1135
(7th Cir. 1976). In that case, the “inquiry” is the hearing itself,
and the evidence to be offered at the hearing is the subject
matter of the inquiry.

Quite a different question is presented, however, where no
formal hearing is underway, and the agency has issued the
subpoena as part of a preliminary investigation of possible
wrongdoing. In that case, the investigators might be in one
place, the matter under investigation might be in another, and
the location of the “inquiry” might be one, the other, or both. Of
course, the NLRB’s regional offices often conduct
investigations, but the NRLB has chosen to conduct contempt
investigations in Washington, D.C., which in this case has
placed its investigators a great distance from the matter they are
investigating. Where, in those circumstances, is the inquiry
“carried on”?

Browning supports a broad reading of § 161(2) that would
include the location of the investigative office as one of the
places where the inquiry is carried on. If a hearing located in
Washington, D.C., gives the district court in Washington, D.C.,
jurisdiction to enforce agency subpoenas, see Browning, 435
F.2d at 100, then why not an investigating office located in
Washington, D.C.? Browning, however, is not the only
precedent on point, and in fact it is not the most relevant
 7

precedent. Where the inquiry is an agency investigation, not a
formal hearing, we focus on, among other things, the location of
the subject matter of the inquiry. FEC v. Comm. to Elect
Lyndon La Rouche, 613 F.2d 849, 856-57 (D.C. Cir. 1979).
This focus is not a gloss on the statutory terms that alters their
plain meaning; rather, it is our effort to define those terms.
Specifically, we have articulated a two-part test for determining
the location of an investigative inquiry for purposes of district
court jurisdiction to enforce agency subpoenas: “(1) whether
[the location bears] a sufficiently reasonable relation to the
subject matter of the investigation . . . , and (2) whether the
agency’s choice of this [location for enforcement] . . . exceed[s]
the bound of reasonableness.” Id. (internal quotation marks and
citation omitted); cf. dis. op. at 11 (relying on the location of the
Contempt Branch’s office, rather than the subject matter of the
inquiry, to satisfy the first part of the two-part test).

In La Rouche, the court concluded that enforcement in the
District of Columbia was proper because of the nexus between
the District and the Federal Election Commission’s
investigation. The court noted the FEC’s Washington, D.C.,
headquarters was the “hub” of its national investigative activity.
La Rouche, 613 F.2d at 857. The court also identified several
factors that aid in the application of the two-part test, id. at 855,
and ASAT, 411 F.3d at 249, further clarified these factors, listing
them as follows:

the place where the [agency] held its hearing, the place
where it made the decision to authorize the investigation,
the place where the subpoenas were issued, the place where
its correspondence emanated, the place where the [agency]
determined that unlawful actions had occurred, the location
of the documents and witnesses, and the location of the
headquarters of the subpoenaed company.
 8

Id. Significantly, these factors are not weighted against one
another, and ASAT did not suggest a simplistic tallying of factors
would be determinative. The first four factors, for example,
favor the convenience of the agency, but in this context, the
burden on the subpoenaed party might be a more significant
consideration. Moreover, the factors do not replace the test.
The crucial question remains whether the jurisdiction bears a
“reasonable relation to the subject matter of the investigation,”
for it was our determination in La Rouche that the subject matter
of an investigation is an important consideration in locating the
investigation. 613 F.2d at 856-57.

The parties emphasize different aspects of the La Rouche
analysis. Cooper Tire emphasizes the La Rouche court’s
specific reference to the “subject matter” of the inquiry. Even
if the inquiry is arguably taking place in the District of
Columbia (by reason of being directed out of the NLRB’s
Contempt Branch office in Washington, D.C.), the subject
matter of the inquiry is surely located in Mississippi. Moreover,
Mississippi is in the Fifth Circuit, which is the court that issued
the cease-and-desist order that is the basis of the alleged
contempt, and Mississippi is also where the subpoenaed party is
located. The NLRB, on the other hand, relies on the several
factors that tie its investigation to the District of Columbia: (1)
its Contempt Branch is located in the District of Columbia, (2)
it issued its subpoenas in the District of Columbia, (3) it sent
letters to Cooper Tire from the District of Columbia, and (4)
Cooper Tire responded to the Contempt Branch’s earlier
subpoena by sending records and correspondence to the District
of Columbia. These factors, of course, do not make the District
of Columbia the location of the inquiry if (as La Rouche
requires) we must consider whether there is a reasonable relation
to the subject matter of the inquiry, not merely whether the
agency has chosen it as the command center of the inquiry.
 9

The NLRB and our dissenting colleague argue strenuously
that this court has repeatedly found agency subpoenas properly
enforced in the District when the subject matter of the
investigation—the alleged violation or misconduct—occurred
elsewhere. True. See ASAT, 411 F.3d 245; La Rouche, 613 F.2d
849; Browning, 435 F.2d 96; see also FTC v. Cockrell, 431
F. Supp. 558 (D.D.C. 1977) (cited approvingly in La Rouche,
613 F.2d at 855-56). However, every one of these cases
involved an investigation that encompassed multiple
jurisdictions and could be characterized as nationwide in scope.
When an investigation is nationwide in scope, its subject matter
is not located in any particular place, and the location of the
investigating office may well be the most reasonable choice for
purposes of subpoena enforcement. This case is different. The
investigation concerns a single employer and a single dispute
related to union-organizing activity at a single plant. The
subject matter of this inquiry is located in a particular place, and
that place is Tupelo, Mississippi. Therefore, if we accept the
NLRB’s argument, we will not be following precedent; we will
be breaking new trail.

The facts of La Rouche are informative. That case involved
a Federal Election Commission investigation of the Committee
to Elect Lyndon La Rouche, focusing on whether Lyndon La
Rouche qualified for federal matching funds. 613 F.2d 851.
The FEC was located in Washington, D.C., but much of the
subject matter of the investigation was in New York. Id. at 851-
53. Therefore, factually the case was somewhat like the one
before us. The FEC successfully enforced its subpoena in the
district court for the District of Columbia, and this circuit
affirmed. Id. Our opinion, however, focused particularly on the
fact that the FEC was conducting a nationwide investigation,
with the District of Columbia as the “hub” of that investigation.
Id. at 857. Specifically, the FEC was inquiring into possible
improprieties of a national political party in its certified record
 10

of donations from twenty states, prepared in the course of a
national political campaign. In the course of its investigation,
the FEC conducted field interviews in Delaware, Massachusetts,
Wisconsin, and Indiana, as well as an audit of records in New
York. Id. at 857-58. Though many of the activities under
investigation took place in New York, we concluded that the
nationwide scope of the investigation justified jurisdiction in the
District of Columbia where the investigative office was located.
Id. at 855-58. Our analysis could not have been more clear that
the nationwide scope of the investigation was determinative. In
the course of our discussion of existing circuit precedent, we
emphasized that “each [case] involv[ed] an essentially
nationwide investigation conducted from an agency’s national
office.” Id. at 855. We then selected quotations from these
precedents (including Browning) that emphasized the national
scope of the investigations at issue. Id. at 855-56. Finally, in
applying these precedents, we noted that the case before us also
involved an “investigation [that] was not localized . . . but rather
was nationwide in scope.” Id. at 857. We concluded: “It is our
view that here, as in [prior cases from our circuit], the
Commission was conducting an essentially nationwide
investigation from its national office in the District of Columbia
and, accordingly, it should be afforded broad discretion in
selecting this jurisdiction as its place of inquiry.” Id. at 858
(emphasis added).

Significantly, in La Rouche, we chose to distinguish, rather
than disapprove, FTC v. Western General Dairies, Inc., 432
F. Supp. 31 (N.D. Cal. 1977), in which the district court in the
Northern District of California, applying a similar jurisdictional
provision, held that it lacked jurisdiction to enforce subpoenas
issued as part of an investigation of matters in Utah and Idaho,
even though the investigation was being conducted from an
office in the Northern District of California. In La Rouche, we
agreed with the reasoning of Western General Dairies and
 11

distinguished it, explaining that the FEC could exercise
jurisdiction in the District of Columbia because a nationwide
investigation was being centrally directed from the District of
Columbia. La Rouche, 613 F.2d at 857 n.8. Our careful effort
to distinguish Western General Dairies, rather than simply to
reject the reasoning of that case, indicates we found the case
persuasive and is further evidence our holding in La Rouche
hinged upon the investigation having a national scope.

The NRLB relies on ASAT, arguing that where agency
investigations are carried out by an office in the District of
Columbia, “the district court for the District of Columbia often,
if not always, would have subject matter jurisdiction.” 411 F.3d
at 250. ASAT, however, involved a formal hearing being
conducted in the District of Columbia, not just a preliminary
investigation. That fact made it analogous to Browning, in
which we stated that the location of a formal adjudicatory
hearing is the place of the inquiry for purposes of subpoena
enforcement. Browning, 435 F.2d at 99 n.7 and 100. Moreover,
ASAT merely applied and reaffirmed our previous holding in
La Rouche; it did not call into question any of the reasoning of
La Rouche. The NLRB is correct that, in deciding ASAT, we put
little emphasis on La Rouche’s clear requirement that an
investigation must be nationwide in scope to justify subpoena
enforcement in a district that has no connection to the inquiry
other than the location of the investigating office. We did not,
however, need to emphasize this point, because the investigation
at issue in ASAT was unquestionably nationwide in scope. It
involved a patent infringement dispute that was proceeding in
the District of Columbia, which we described as the “‘hub’” of
the investigation. ASAT, 411 F.3d at 249 (quoting La Rouche,
613 F.2d at 857). The subpoenas at issue were directed to three
companies, two located overseas and one in California, and the
patent infringement investigation was not in any way limited to
activities occurring in one locality. Id. at 246-47.
 12

The dissent also notes that, under § 161(2), an agency may
enforce a subpoena in a district court “within the jurisdiction of
which [the subpoenaed party] . . . is found or resides or transacts
business.” According to the dissent, our holding renders this
provision superfluous. Dis. op. at 3. Not so. We hold only
that, under the specific circumstances of this case, involving a
pre-hearing investigation of matters that occurred in Mississippi,
the place of the inquiry does not include the District of
Columbia. It happens that, in this case, Mississippi would
probably qualify as the place of the inquiry and also as a place
where Cooper Tire is “found . . . or transacts business,” but in
another case, this conjunction of the provisions of § 161(2)
might not exist. Examples include circumstances where a third
party is subpoenaed, as occurred in ASAT, or where the subject
matter of the inquiry is in one state, but additional evidence is
sought from another state where the company under
investigation transacts business.

Accordingly, we decline to read ASAT as undermining the
principles we articulated in La Rouche. In the present case, we
are persuaded that, in the absence of the nationwide
investigation present in La Rouche and ASAT, the district court
for the District of Columbia does not have subject matter
jurisdiction to enforce the subpoenas. We do not, however, hold
that subpoena enforcement in the District of Columbia always
requires a national investigation; enforcement in the District, as
anywhere else, depends on an application of the factors listed in
La Rouche and ASAT, and a national investigation merely works
to tip the scale in favor of the District.

III

The district court lacked subject matter jurisdiction to
enforce the subpoenas at issue in this case. Accordingly, we
 13

vacate the order of the district court and remand with
instructions to dismiss the case.

So ordered.
 GRIFFITH, Circuit Judge, dissenting: The subpoena
enforcement statute for the National Labor Relations Board
(“NLRB” or “Board”), 29 U.S.C. § 161(2), authorizes the Board
to enforce its subpoenas in a jurisdiction in which its “inquiry is
carried on,” which we have previously determined encompasses
the location of an agency office investigating alleged
wrongdoing. Here, that office is in the District of Columbia.
The majority, however, concludes that Federal Election
Commission v. Committee to Elect Lyndon La Rouche, 613 F.2d
849 (D.C. Cir. 1979), contains a “clear requirement that an
investigation must be nationwide in scope” in order to enforce
a subpoena here based upon an agency’s administrative
activities in this jurisdiction. Maj. Op. at 11. Because I believe
the majority has misread our decision in La Rouche, created a
conflict with our decision last term in United States
International Trade Commission v. ASAT, Inc., 411 F.3d 245
(D.C. Cir. 2005), and fashioned a new requirement for agency
enforcement of subpoenas that is inconsistent with the plain
meaning of “inquiry is carried on,” I respectfully dissent.

I.

It is worth noting how far the majority has departed from a
plain reading of the statutory phrase “inquiry is carried on.”
According to the majority, it means that a District of Columbia-
based agency may enforce a subpoena here based upon its
administrative activities only when an investigation is
nationwide because courts should focus on the subject matter of
agency investigations. The majority never explains how a plain
reading of § 161(2) supports either its requirement of a
nationwide investigation or its assertion that courts should focus
solely or especially on the place where allegedly unlawful
activity occurred.
 2

Section 161(2) authorizes the Board to enforce its
subpoenas in “any district court . . . within the jurisdiction of
which the inquiry is carried on or within the jurisdiction of
which said person guilty of contumacy or refusal to obey is
found or resides or transacts business . . . .” Id. (emphasis
added). The common meaning of “inquiry” is “a request for
information” or “a systematic official investigation often of a
matter of public interest esp[ecially] by a body . . . with power
to compel testimony.” Merriam-Webster’s Dictionary of Law
(1996). Where “the statute’s language is plain, the sole function
of the court[]–at least where the disposition required by the text
is not absurd–is to enforce it according to its terms.” Dodd v.
United States, 125 S.Ct. 2478, ___ U.S. ___ (2005) (quotation
marks omitted). The text of § 161(2) includes jurisdictions in
which the Board interviews witnesses as part of its inquiry,
jurisdictions containing the target of its inquiry, and jurisdictions
in which it carries on investigative or enforcement tasks related
to its inquiry. Thus, before today, our cases have recognized
that “inquiry is carried on” includes not only where the alleged
misconduct occurred, but also where the Board carries on the
administrative aspects of its investigation. See ASAT, 411 F.3d
at 249-50; La Rouche, 613 F.2d at 857; Fed. Trade Comm’n v.
Browning, 435 F.2d 96, 100 n.7 (D.C. Cir. 1970).

Indeed, the other fora available in § 161(2) for Board
enforcement suggest that the purpose of the “inquiry is carried
on” phrase is to ensure that the Board can seek rapid
enforcement in the forum from which it operates its inquiry.1 By
limiting the “inquiry is carried on” prong to the subject matter

1
The “rapid exercise of the power to investigate” is “the very
backbone of an administrative agency’s effectiveness in carrying out
the congressionally mandated duties of industry regulation.” FTC v.
Texaco, Inc., 555 F.2d 862, 872 (D.C. Cir. 1977) (quotation marks and
alterations omitted).
 3

of the inquiry yet applying it to administrative activities only for
nationwide investigations, the majority renders much of § 161(2)
insignificant. “It is our duty ‘to give effect, if possible, to every
clause and word of a statute.’” Duncan v. Walker, 533 U.S. 167,
174 (2001) (quoting United States v. Menasche, 348 U.S. 528,
538-39 (1955) (citation omitted)). Under the second prong of
§ 161(2), the NLRB can already enforce its subpoena where the
subject of the subpoena is “found or resides.” That would
almost always include a location where the subject engaged in
allegedly unlawful activity, what the majority calls the “subject
matter” of the inquiry. Under the majority’s construction of
“inquiry is carried on,” however, there seems to be no need for
the “found or resides” prong. A plain reading of these clauses
together suggests that Congress sought to give the Board
authority to enforce its subpoena either where the target of its
investigation is found or resides, or where the Board operates its
inquiry.

The majority crafts its nationwide requirement not through
a construction of the statute, but by using La Rouche, a case that,
as I explain below, does not adopt such a requirement. Inherent
in the majority’s decision today is a policy choice not found in
the statutory text: regardless of the convenience to an agency, an
agency should not be able to enforce its subpoena in a
jurisdiction where the only nexus to its inquiry is administrative
activities, unless its investigation is nationwide in scope.
Without the majority’s nationwide requirement, the plain text of
§ 161(2) would allow the Board to enforce its subpoena here
even though this “investigation concerns a single employer and
a single dispute related to union-organizing activity at a single
plant.” Maj. Op. at 9. But these types of “policy arguments
regarding the most efficient or convenient enforcement of
[agency] subpoenas are best addressed to Congress.” ASAT, 411
F.3d at 252. If Congress shares the majority’s concerns about
subpoenas being enforced here only for nationwide
 4

investigations, it can certainly add that requirement to the
statute.2

II.

Last term in ASAT, we analyzed La Rouche and, under facts
nearly identical to this case, upheld the enforcement of a
subpoena in the District of Columbia based upon “wholly
administrative activities” occurring here. 411 F.3d at 250. Yet
nowhere did we conclude that La Rouche employed the
majority’s nationwide requirement. Had we done so, we should
have declined enforcement because ASAT did not involve a
nationwide investigation. 411 F.3d at 246-47.

The majority concludes that it need not apply ASAT here
because: (1) ASAT involved three subpoenas, two of which were
directed to companies overseas; (2) the investigation there was
not limited to activities in California; and (3) ASAT involved a

2
The original bill for what was to become the National Labor
Relations Act contained only a “found or resides” clause. Labor
Disputes Act, S. 2926, 73d Cong. § 208(2) (as introduced, Feb. 28,
1934). The Senate Committee on Education and Labor added the
“inquiry is carried on” clause. S. 2926, 73d Cong. § 208(2) (as
reported by S. Comm. on Educ. and Labor, May 10, 1934). In the
next Congress, the bill was reintroduced to give the Board even more
fora in which to enforce its subpoenas with the addition of a new
“transacts business” clause. S. 1958, 74th Cong. § 13(2) (as
introduced, Feb. 15, 1935). Congress knows how to limit or expand
fora for agency enforcement of subpoenas if it wishes to do so.
Indeed, as we noted in Browning, the Chairman of the FTC
specifically requested that Congress give the FTC the option of
enforcing a subpoena in a forum where a corporation or person is
found, resides, or transacts business. 435 F.2d at 100-01 (quoting
S. 3744, 74th Cong. (1936)). “Congress . . . declined to accede to this
request,” 435 F.2d at 101, for that agency.
 5

formal hearing being conducted in the District of Columbia.
Maj. Op. at 11. The agency in ASAT, however, quashed the two
international subpoenas for improper service and only the
California subpoena was at issue in the enforcement proceedings
before this Court. 411 F.3d at 247. Nothing in ASAT describes,
one way or the other, where the alleged patent infringement
under investigation occurred. Moreover, these first two
distinguishing facts are culled from the background section of
the opinion and none of ASAT’s analysis finds them to be of any
importance. And in ASAT, just like this case, “[t]he subpoena
underlying this appeal was issued during an investigation by [an
administrative agency] . . . .” Id. at 246 (emphasis added). The
“formal hearing” in ASAT of which the majority speaks refers to
an “evidentiary hearing regarding [the] actions [of a party under
investigation, which] was held in the District of Columbia” by
an ALJ, id. at 249, apparently with regard to whether
investigatory subpoenas should be issued. As the majority
notes, Cooper Tire & Rubber Company (“Cooper Tire”) litigated
the validity of the subpoenas at issue here before the Board in
the District of Columbia and the Board issued its decision from
here–a proceeding that would not appear to be much different
from the evidentiary hearing in ASAT.3

ASAT conflicts with much of the majority’s analysis,
including the majority’s suggestion that our precedent requires
us to “focus on . . . the location of the subject matter of the
inquiry.” Maj. Op. at 7 (emphasis in original). In ASAT,
looking to “wholly administrative activities,” 411 F.3d at 250,

3
In any event, ASAT expressly held that we would uphold
enforcement in the District based upon the administrative activities
occurring here “[e]ven if we were to ignore, as ASAT, Inc. suggests,
that the ALJ’s evidentiary hearing regarding [the] actions [of the party
under investigation] was held in the District of Columbia . . . .” Id. at
249.
 6

we allowed for enforcement in the District of Columbia of an
administrative subpoena directed at a California company
because

the Commission’s activities regarding the subpoena at
issue were conducted overwhelmingly in the District of
Columbia: The subpoena was signed, sealed, and
issued in the District of Columbia, the ALJ’s rulings on
ASAT’s motion to quash were issued in the District of
Columbia, and the Commission’s certification of the
subpoena for judicial enforcement occurred in the
District of Columbia. Because, as the district court
stated, the Commission conducted the administrative
activities essential to the investigation in the District of
Columbia, the district court here had subject matter
jurisdiction . . . .

411 F.3d at 249 (quotation marks, alterations, and internal
citation omitted).

We do not focus on any one place or weigh the ASAT
factors and choose our own preferred forum. Instead, “our
precedent is clear that an inquiry can be carried on in more than
one place.” ASAT, 411 F.3d at 250 (citations omitted). As
La Rouche explained, even if an agency “could have brought
[an] action to enforce its subpoenas in [another] district,” we
acknowledge that “the [agency] chose not to do so, and we
honor its choice.” La Rouche, 613 F.2d at 858 n.9. Interpreting
the first part of the La Rouche test and our precedent in
Browning, ASAT held that “[a]s long as the [following] factors
. . . so indicate, it properly can be said that an inquiry is carried
on in that place,” ASAT, 411 F.3d at 250:

[1] the place where the Commission held its hearing,
[2] the place where it made the decision to authorize
 7

the investigation, [3] the place where the subpoenas
were issued, [4] the place where its correspondence
emanated, [5] the place where the Commission
determined that unlawful actions had occurred, [6] the
location of the documents and witnesses, and [7] the
location of the headquarters of the subpoenaed
company.

Id. at 249 (citing La Rouche, 613 F.2d at 857; FTC v.
MacArthur, 532 F.2d 1135, 1140 (7th Cir. 1976); Browning, 435
F.2d at 99).

Prior to today, with several of the ASAT factors met in this
case, we would have concluded that the District of Columbia is
one place in which the Board’s “inquiry is carried on.” Here,
the NLRB officers investigating Cooper Tire’s alleged contempt
operate from the Contempt Branch in the Board’s District of
Columbia headquarters. They have made decisions related to
this investigation from there. The subpoenas were issued from
the Contempt Branch’s District office and were made returnable
there. The Contempt Branch will analyze and evaluate the
materials subpoenaed from Cooper Tire in that office. The
Contempt Branch’s correspondence to the parties has emanated
from the District and Cooper Tire has sent materials responsive
to prior subpoenas to the District. Cooper Tire moved to quash
the subpoenas at issue here before the Board in the District and
the Board issued its decision from here.

Despite the majority’s use of La Rouche for its
determination to “focus on . . . the location of the subject matter
of the inquiry,” Maj. Op. at 7 (emphasis in original), La Rouche
also enforced a subpoena in the District of Columbia based upon
entirely administrative activities:

[t]he nexus between this jurisdiction and the
 8

Commission’s investigation lies in the fact that the
District of Columbia, where the Commission maintains
its headquarters, was the hub of the Commission’s
investigative activity. It was in this jurisdiction where
the Commission authorized the auditing of CTEL’s
records and the interviewing of its contributors, where
the Commission determined that there was reason to
believe that appellants may have violated the federal
election laws, where all correspondence regarding
those possible violations emanated, and where the
subpoenas were in fact issued.

613 F.2d at 857. The majority bases its holding upon the phrase
“subject matter” in the first part of the La Rouche test. But in
asking “whether the District of Columbia bore a sufficiently
reasonable relation to the subject matter of the investigation,” id.
at 856-57 (quotation marks omitted), La Rouche did not require
that this jurisdiction contain the subject matter of an
investigation. It asked whether this jurisdiction bore a
“sufficiently reasonable relation” to the subject matter of an
investigation. And we know from La Rouche, ASAT, and
Browning that the presence of a sufficient number of “wholly
administrative activities,” ASAT, 411 F.3d at 250; see
La Rouche, 613 F.2d at 857; Browning, 435 F.2d 96, 100 n.7,
will constitute a reasonable relationship with the subject matter
of an inquiry. The majority acknowledges a conflict between
what Browning and ASAT require and its own reading of
La Rouche, but that conflict is one created by the majority and
not La Rouche.

Despite La Rouche having enforced an administrative
subpoena based upon wholly administrative activities and the
ASAT factors having been “derived from La Rouche, MacArthur,
and Browning,” ASAT, 411 F.3d at 250, in order to determine
what inquiry-related activities make this a permissible
 9

jurisdiction under the first part of the La Rouche test, the
majority concludes that the ASAT factors are no longer
controlling. Instead, under the majority’s reading of La Rouche,
“the nationwide scope of the investigation [is] determinative,”
Maj. Op. at 10, regarding whether enforcement may be sought
in the District of Columbia based upon an agency’s
administrative activities.4 ASAT did not find this holding in
La Rouche. Nor did the District Court and Magistrate Judge.
Indeed, no court has ever cited La Rouche for that proposition
in the nearly 30 years since La Rouche was decided. To the
contrary, after analyzing La Rouche, the United States District
Court for the District of Columbia has enforced subpoenas
involving alleged wrongdoing that takes place in a single state,
without finding the majority’s nationwide requirement in
La Rouche.5

4
The majority concludes by “not . . . hold[ing] that subpoena
enforcement in the District of Columbia always requires a national
investigation” and suggesting that “a national investigation merely
works to tip the scale in favor of the District.” Maj. Op. at 12. Earlier,
the majority indicates that La Rouche contains a “clear requirement
that an investigation must be nationwide in scope . . . .” Maj. Op. at
11. If La Rouche so holds, it is unclear why the majority suggests that
a nationwide investigation is less than determinative at the end of its
opinion and under what standard the majority would weigh the
absence of a nationwide investigation.
5
See United States v. Tesoro Petroleum Corp., 503 F. Supp. 868,
872-73 (D.D.C. 1980) (analyzing La Rouche and enforcing in this
jurisdiction a subpoena of a Texas-based energy company issued as
part of an investigation into whether that company had violated
regulations of the Department of Energy because “much of the
[administrative] activity concerning the . . . audit [of the company] has
occurred in the District of Columbia”), overruled in part on other
grounds by United States v. Hill, 694 F.2d 258 (D.C. Cir. 1982);
United States v. Stoltz, 525 F. Supp. 617, 618 (D.D.C. 1981) (same).
 10

The portion of La Rouche the majority relies upon addresses
a party’s argument that enforcing a subpoena in the District of
Columbia against a contributor to a minor political party could
raise a chilling of speech problem under the First Amendment
and thereby exceed the bound of reasonableness.6 That concern,

6
[A]ppellants argue that a substantial chilling effect
would result if the Commission, as part of a
nationwide investigation, could enforce in the District
of Columbia subpoenas issued to individual
contributors to a minor party across the United States.

It is our view that appellants are correct in suggesting
that the chilling effect of the Commission’s choice of
its place of inquiry ought to be considered in
determining whether the choice falls within the
“bound of reasonableness.” In the instant case,
however, which of course does not involve subpoenas
issued to individual contributors, the record is devoid
of any evidence of chill . . . .

What the record does reveal is that the Commission's
investigation was not localized in New York, but
rather was nationwide in scope. . . . It is our view
that here, as in Browning, [FTC v. Cockrell, 431 F.
Supp. 558 (D.D.C. 1977)], and [United States v.
Firestone Tire & Rubber Co., 455 F. Supp. 1072
(D.D.C. 1978)], the Commission was conducting an
essentially nationwide investigation from its national
office in the District of Columbia and, accordingly, it
should be afforded broad discretion in selecting this
jurisdiction as its place of inquiry. We cannot say,
given the breadth of that discretion and the absence
of any evidence of chill, that the Commission
exceeded the “bound of reasonableness . . . .”

613 F.2d at 857-58 (footnote omitted).
 11

the Court noted, was not present in La Rouche because the
activities of a national political candidate were at issue. Id. at
857. Thus, when La Rouche discusses the fact that the
investigation in that case was nationwide, it does so only in
showing that enforcement here as part of a nationwide
investigation cannot exceed the bound of reasonableness. The
only decision the majority is able to cite as an example of a court
declining enforcement because the activity under investigation
occurred in another jurisdiction is not to the contrary. As we
explained in La Rouche, the District Court in Federal Trade
Commission v. Western General Dairies, 432 F. Supp. 31 (N.D.
Cal. 1977), did not decline enforcement only because there had
not been a nationwide investigation; instead, the District Court
did so because an agency had “simply [issued] a subpoena . . .
from [its] regional office in the Northern District of California”
as part of an “investigation [that] was neither nationwide in
scope nor related in any manner to the Northern District of
California.” La Rouche, 613 F.2d at 858 n.8 (emphasis added).7

Given that the Contempt Branch has carried on a bona fide
inquiry of Cooper Tire from its District of Columbia office,
La Rouche next asks whether allowing enforcement here would
exceed a bound of reasonableness. “[T]he [bound of
reasonableness] criterion [from La Rouche] resembles a
traditional venue analysis that focuses on the convenience of the
forum to the parties [and] . . . implicates whether that court is a

7
See Stoltz, 525 F. Supp. at 619 (nothing that the only connection
to the Northern District of California in Western General Dairies was
an agency’s decision to issue, and make returnable, subpoenas from
there and that “[w]hether the [administrative] factors present here
would have swayed the district court in California cannot be known”).
 12

proper venue.” ASAT, 411 F.3d at 248 (citations omitted).8 As
the Magistrate Judge noted, Cooper directed the District Court
to nothing that would warrant restarting litigation in another
venue. Cooper did not claim that litigating the legal sufficiency
of these subpoenas in the District of Columbia would be
burdensome. Indeed, Cooper previously complied with an
earlier round of Board subpoenas by producing documents in the
District of Columbia. See NLRB v. Cooper Tire & Rubber Co.,
No. 03-03898, slip op. at 10 (D.D.C. Mar. 29, 2004). In
La Rouche, the presence of a nationwide investigation was
simply one factor that demonstrated that an agency did not
exceed the bound of reasonableness. Here, Cooper Tire’s prior
dealings with the Board in the District suffice to make that same
showing. Just as we recently concluded in ASAT, Cooper Tire
“has demonstrated no actual hardship of defending itself in the

8
La Rouche, with limited analysis, applied the Seventh Circuit’s
statement in MacArthur that even if an agency has demonstrated that
the forum it has selected is within the literal reach of its subpoena
enforcement statute, an agency’s “choice . . . is [still] subject to the
bound of reasonableness.” MacArthur, 532 F.2d at 1140 (citing
United States v. Morton Salt Co., 338 U.S. 632, 652-53 (1950)); see
La Rouche, 613 F.2d at 857. The bound of reasonableness of which
MacArthur spoke is not found in the text of the NLRB’s subpoena
enforcement statute. Morton Salt addresses the Fourth Amendment’s
protection from unreasonable searches and seizures. MacArthur did
not explain why the Fourth Amendment, and not due process, is the
proper vehicle for a litigant to challenge the fairness of litigating in a
particular forum. Courts writing on a clean slate and litigants seeking
to make a constitutional claim in this area would do well to avoid
relying generally on the bound of reasonableness and to focus instead
on a specific constitutional or venue claim. Companies and individual
litigants with no connection to the District of Columbia can, of course,
make constitutional arguments as to why being forced to litigate the
validity of a subpoena here would violate due process. See, e.g., Quill
Corp. v. North Dakota, 504 U.S. 298, 307 (1992).
 13

District of Columbia . . . , especially since it already had
participated in administrative proceedings in the District of
Columbia,” ASAT, 411 F.3d at 250, here, at the very least, by
responding to the Board’s prior subpoenas. “Hence, it is not
difficult to conclude that the [NLRB’s] choice of the District of
Columbia to enforce the subpoena is well-within the ‘bound of
reasonableness.’” ASAT, 411 F.3d at 250 (quoting La Rouche,
613 F.2d at 857 (quoting MacArthur, 532 F.2d at 1140)
(quotation marks omitted)).

III.

The NLRB may be able to avoid the majority’s nationwide
requirement in future cases because its subpoena enforcement
statute, unlike the statute at issue in La Rouche and that of many
other administrative agencies, also allows it to seek enforcement
“within the jurisdiction of which said person guilty of
contumacy or refusal to obey . . . transacts business . . . .” 29
U.S.C. § 161(2) (emphasis added).9 A large number of agency
subpoena enforcement statutes, however, contain only an
“inquiry is carried on” clause.10 The majority’s decision now

9
The Board has not argued the “transacts business” clause of
§ 161(2) in this case. By including jurisdictions in which a
subpoenaed party “transacts business,” Congress employed a well-
traveled standard often found in state long-arm personal jurisdiction
statutes, which are frequently interpreted to allow for jurisdiction over
an entity to the maximum extent permissible with due process. See,
e.g., Helmer v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004).
10
See, e.g., 2 U.S.C. § 437d(b) (Federal Election Commission);
5 U.S.C. § 1507(a) (Merit Systems Protection Board); 7 U.S.C.
§ 87f(c) (Department of Agriculture); 12 U.S.C. § 2617(c)(2)
(Department of Housing and Urban Development); 15 U.S.C. § 49
(Federal Trade Commission); 15 U.S.C. § 796(b)(3) (Federal Energy
Administration); 15 U.S.C. § 2076(c) (Consumer Product Safety
 14

places a burden on federal agencies not anticipated by those
statutes by requiring agencies that investigate wrongdoing from
their District of Columbia offices to enforce their subpoenas in
jurisdictions all over the country, unless they can demonstrate
that the conduct at issue is nationwide.

Parties that seek to delay agency investigations have a
powerful new tool for doing so because there is no ascertainable
standard for courts to determine which investigations are
“nationwide enough” to allow enforcement in the District of
Columbia. The administrative subpoena of a California-based
company with an international parent may be enforced in the
District of Columbia as part of an unfair trade investigation,
ASAT, 411 F.3d at 249, as can an administrative subpoena of a
Pennsylvania company issued as part of an investigation into
that company’s acquisition of firms in three states, Browning,
435 F.2d at 97-98, as can an administrative subpoena of a New
York-based minor political party as part of an investigation into
its activities in four states, La Rouche, 613 F.2d at 857-58. But
the administrative subpoena of an Ohio-based company’s
activities in Ohio and Mississippi cannot be enforced in the
District of Columbia. Maj. Op. at 12.

Commission); 19 U.S.C. § 1333(b) (United States International Trade
Commission); 19 U.S.C. § 1677f(f)(7)(B) (United States International
Trade Commission); 19 U.S.C. § 3433(b) (committees authorized by
the North American Free Trade Agreement); 22 U.S.C. § 1623(c)
(Foreign Claims Settlement Commission of the United States); 25
U.S.C. § 2715(c) (National Indian Gaming Commission); 38 U.S.C.
§ 5713 (Department of Veterans Affairs); 42 U.S.C. § 5413(d)
(Department of Housing and Urban Development); 42 U.S.C.
§ 6384(c) (Comptroller General); 47 U.S.C. § 409(g) (Federal
Communications Commission); see also 41 U.S.C. § 39 (Department
of Labor).
 15

Cooper Tire has successfully stalled enforcement of the
NLRB’s administrative subpoena and has delayed a preliminary
investigation by two years. Cooper Tire has forced the NLRB
to start anew in Ohio or Mississippi, where Cooper Tire can now
file the same briefing it filed in this litigation. As I see no
statutory or constitutional basis for placing such a burden on the
NLRB, I respectfully dissent.