FILED

NOT FOR PUBLICATION

OCT 15 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN J. WALSH, Secretary of Labor, No. 20-36002 United States Department of Labor, D.C. No. 4:20-cv-00371-DCN Plaintiff-Appellee,

v. MEMORANDUM*

GEORGE W. KATSILOMETES,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Argued and Submitted October 4, 2021 Portland, Oregon

Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.

George Katsilometes appeals the district court’s order that he comply with the

administrative subpoena issued by the U.S. Department of Labor’s (DOL) Wage and

Hour Division (WHD) within 30 days of the order. We have jurisdiction under 28

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

U.S.C. § 1291.

Although in the district court Katsilometes did not produce any documents in

response to the subpoena, at oral argument his counsel acknowledged that some of the

requested documents would be relevant to WHD’s identified investigation into

potential child labor violations at the Lava Hot Springs Inn, and that Katsilometes

could produce some of the documents without undue burden. Insofar as Katsilometes

argues that the WHD subpoena is categorically unenforceable, the district court

properly rejected that argument.

At the same time, and perhaps because Katsilometes did not focus his

objections on individual document requests, the district court did not address whether

the individual requests in the subpoena were excessive in relation to WHD’s identified

investigation. DOL’s apparent position at oral argument—that it may secure a court

order allowing it to obtain an extensive range of documents without identifying the

scope or purpose of its investigation, beyond merely stating that WHD was

investigating “whether any person had violated or was violating any provision of the

Fair Labor Standards Act (FLSA) or any regulations promulgated thereunder” and that

the documents requested were “relevant to the Secretary’s FLSA investigation”—is

unsupported. That lack of specificity regarding the “nature, purposes and scope of

[WHD’s] inquiry,” Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209 (1946),

2 provides an insufficient basis for the district court to exercise its discretion to

determine whether the documents sought by the agency were “relevant and material

to [its] investigation,” F.D.I.C. v. Garner, 126 F.3d 1138, 1142 (9th Cir. 1997)

(cleaned up), or whether the agency’s requests constituted a prohibited “fishing

expedition” into the Lava Hot Springs Inn, Peters v. United States, 853 F.2d 692, 700

(9th Cir. 1988).

On remand, the parties are expected to work together to determine a reasonable

scope of production on a manageable timetable. To the extent they are unable to reach

agreement, the district court will be required to decide, on a request by request basis,

whether the disputed document requests are relevant and material to DOL’s identified

investigation and whether they would impose an undue burden on Katsilometes.

We therefore vacate the district court’s order and remand for further

proceedings consistent with this memorandum disposition.

VACATED AND REMANDED.1

1 Costs shall be taxed against the government.

3