Elizabeth Hanford DOLE, Secretary of Labor, Petitioner-Appellee, v. John MILONAS, Respondent-Appellant

This is an appeal from an order enforcing an administrative subpoena issued by the Secretary of Labor (the “Secretary”) under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We affirm in part, reverse in part and remand with directions.

BACKGROUND

Appellant, an attorney, is a service provider to the Santa Clara County [California] Bartenders Culinary Workers Group Legal Fund (the “Fund”), which is a welfare benefit plan governed by ERISA. Eligible participants and beneficiaries of the Fund are members of Local No. 19 of the Hotel, Motel, Restaurant Employees and Bartenders and Culinary Workers Union and their dependents. In the course of an investigation of the Fund, the Secretary, acting through her Area Director of the Pension and Welfare Benefits Administration, issued a subpoena duces tecum requiring appellant to produce certain records relating to his work for the Fund. The “Documents to be Produced” were described in the subpoena, which was issued on October 27, 1987, as follows:

The subpoena was accompanied by a letter which, at least implicitly, recognized that some of the documents within the call of the subpoena might be…