Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2005

Secretary Labor v. Koresko
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3614




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                             Nos 04-3614, 05-1440,
                             05-1946 and 05-2673


                      ELAINE L. CHAO, Secretary of Labor,
                        United States Department of Labor

                                        v.

                JOHN J. KORESKO; REGIONAL EMPLOYERS'
                ASSURANCE LEAGUES; DELAWARE VALLEY
                 LEAGUE; PENN-MONT BENEFIT SERVICES,
                     INC.; KORESKO & ASSOCIATES,
                                        Appellants


                   Appeals from the United States District Court
                      for the Eastern District of Pennsylvania
                            (D.C. Misc. No. 04-mc-00074)
                  District Judge: Honorable Mary A. McLaughlin


                           Argued September 29, 2005

             Before: RENDELL, FUENTES and WEIS, Circuit Judges.

                            (Filed : October 12, 2005)


Virginia L. Miller [ARGUED]
Anderson, Kill & Olick
1600 Market Street, Suite 2500
Philadelphia, PA 19103
  Counsel for Appellants
Gail Perry [ARGUED]
Eleanor L. Beard
U.S. Department of Labor
Plan Benefits Security Division
P.O. Box 1914
Washington, DC 20013
  Counsel for Appellee


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       John J. Koresko, V (“Koresko”), Regional Employers’ Assurance Leagues,

Delaware Valley League, Penn-Mont Benefit Services, Inc. (“Penn Mont”), and Koresko

& Associates (together, “Respondents”), appeal two sets of orders issued by the District

Court. In the first set of orders, the “enforcement orders,” the District Court granted the

Department of Labor (“DOL”)’s Petition to Enforce Administrative Subpoenas (“May 11

Order”), rejected Respondents’ privilege claims and ordered Respondents to comply with

the subpoenas (“August 23 Order”). The second set of orders, the “contempt orders,”

denied DOL’s Renewed Motion for Adjudication of Contempt (“January 10 Order”),

adjudged Respondents Koresko, Penn-Mont and Koresko & Associates (the “Contempt

Respondents”) in contempt, ordered them to pay compensatory costs and coercive fines

(“March 17 Orders”), and directed the Contempt Respondents to pay $5,312.50 to DOL

in compensation for fees and costs associated with the contempt proceedings (“April 25

Order”).



                                              2
       Respondents raise myriad issues on appeal. We address their arguments with

respect to the enforcement orders and the contempt orders separately below. Because we

conclude that none of Respondents’ contentions rises to the level of legal error or abuse

of the District Court’s discretion, we will affirm all of the District Court’s orders.

       As we write solely for the parties, who are familiar with the facts and the

procedural history of this case, we will discuss only the legal issues presented and related

material facts.

I. The Enforcement Orders

       The District Court had jurisdiction over the subpoena enforcement proceedings

under section 9 of the Federal Trade Commission Act, 15 U.S.C. § 49, as made applicable

by section 504(c) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1134(c), and section 502(e)(1) of ERISA, 29 U.S.C. § 1132(e)(1). District court orders

enforcing administrative subpoenas are final and appealable under 28 U.S.C. § 1291

because “‘there is no ongoing judicial proceeding that would be delayed by an appeal.’”

Univ. of Med. & Dentistry of N.J. v. Corigan, 

, 63 (3d Cir. 2003) (quoting In

re Subpoena Duces Tecum, 

, 346 (4th Cir. 2000)).

       Respondents challenge both of the District Court’s enforcement orders. First, they

argue that District Court’s grant of DOL’s Petition to Enforce Administrative Subpoenas

in its May 11 Order was improper. Second, they dispute the District Court’s rejection of

their privilege claims in its August 23 Order. We address each of these issues in turn.



                                               3
       A. The District Court’s Order Enforcing the Administrative Subpoenas

       We review a district court’s order enforcing administrative subpoenas for abuse of

discretion. FDIC v. Wentz, 

, 908 (3d Cir. 1995). The procedure for

enforcing administrative subpoenas is well established. First, the agency must

demonstrate, through affidavits of its agents, that its subpoena meets the threshold

requirements for enforcement, SEC v. Wheeling-Pittsburgh Steel Corp., 

,

128 (3d Cir. 1981) (en banc): “(1) the inquiry must be within the authority of the agency,

(2) the demand for production must not be too indefinite, and (3) the information sought

must be reasonably relevant to the authorized inquiry.” United States v. Westinghouse

Elec. Corp., 

, 574 (3d Cir. 1980). “If the government makes this preliminary

showing, the burden then shifts to the respondent to prove that enforcement of the

subpoena would be improper . . . .” 

. Enforcement

of a subpoena is improper where it would amount to an abuse of the court’s process.

Powell v. United States, 

, 58 (1964). “Such an abuse would take place if the

[subpoena] had been issued for an improper purpose, such as to harass the [respondent] or

to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on

the good faith of the particular investigation.” 

party has had an

opportunity to argue its position, the District Judge may direct further proceedings,

including discovery, if she concludes that the record is inadequate to make a final

decision. On the other hand, if the judge finds that the record is sufficient, she may grant



                                              4
or deny the petition for enforcement. At all times during this procedure, the respondent

“bear[s] the initial burden of convincing the trial judge that the claimed abuse of process

is not frivolous.” 

.

       Respondents raise three main objections to the District Court’s enforcement of

DOL’s subpoenas. First, they argue that the District Court improperly relied on

“conclusory” statements to find that the subpoenas satisfied the threshold enforcement

criteria. Second, they contend that the District Court applied the wrong standard in

evaluating their claim that DOL’s investigation was improperly motivated. Third, they

assert that the District Court erred in refusing to inquire into DOL’s statutory authority to

issue the subpoenas. As we explain below, we conclude that the District Court’s grant of

DOL’s petition to enforce its subpoenas was proper in all respects.

       In this case, DOL supported its Petition for Enforcement with a declaration from

Investigator Bindu A. George, and the District Court found that the declaration satisfied

DOL’s obligation to establish that its subpoenas met the threshold requirements for

enforcement. Chao v. Koresko, No. 04-MC-74, slip op. at 3 (E.D. Pa. May 11, 2004).

Respondents argue that the District Court improperly relied on the “conclusory”

statements in Investigator George’s declaration. As described above, however, our

standard administrative subpoena enforcement procedure specifically contemplates that

an agency will use affidavits or sworn declarations to satisfy its initial burden. See

. Moreover, weighing the sufficiency of the parties’



                                              5
submissions is precisely the type of decision that is committed to the District Court’s

discretion. Although we wonder how DOL could possibly need all of the documents it

has listed in its subpoenas, we find no basis for concluding that the District Court abused

its discretion in this first phase of the enforcement analysis.1

       In the second phase of its enforcement analysis, the District Court evaluated

Respondents claims that DOL was improperly motivated and concluded that, even

assuming the facts that Respondents alleged were true, Respondents had failed to meet

their burden of establishing that DOL was acting in bad faith or for an improper purpose.

Koresko, No. 04-MC-74, slip op. at 4-5. Respondents contend that the District Court

erred by applying the standard from United States v. Aero Mayflower Transit Co., 

, 1145-47 (D.C. Cir. 1987), which held that a respondent had to show that the

agency was acting in bad faith or for an improper purpose to overcome the agency’s

prima facie enforcement showing, 

rather than analyzing their claims under the

framework that we laid out in Wheeling-Pittsburgh, which allows that a respondent might

be able to establish that enforcement of a subpoena would abuse the court’s process even

where the respondent fails to demonstrate bad 

. Respondents’

contention lacks merit. Even if we were to find that Wheeling-Pittsburgh articulates a

broader standard than Aero Mayflower, the outcome of the case would not change–the


  1
   Judge Weis considers the request for production of thousands of employee
applications for insurance which include medical and personal information to be unduly
burdensome and would deny DOL’s requests as to those documents.

                                               6
District Court has already determined that the facts alleged by Respondents do not meet

the Wheeling-Pittsburgh standard. Although the District Court’s analysis was framed in

terms of “bad faith” and “improper purpose,” the District Court compared the facts

alleged by Respondents to those alleged in Wheeling-Pittsburgh on its way to finding that

Respondents’ claims were insufficiently troubling to warrant further investigation. See

Koresko, No. 04-MC-74, slip op. at 5 (“Even assuming that the investigation was

prompted by a complaint by SCM, that fact does not rise to the level of bad faith or

improper purpose by the agency. See Securities and Exchange Commission v. Wheeling-

Pittsburgh Steel Corp., 

, 127 (3d Cir. 1981).”). Under these circumstances,

we cannot find that the District Court abused its discretion in the second phase of the

enforcement analysis.

       Respondents’ argument that the District Court erred by failing to inquire into

DOL’s jurisdiction to investigate Respondents is similarly unfounded. As the District

Court properly pointed out, the agency is not required to establish jurisdiction as an

element of its prima facie case. Koresko, No. 04-MC-74, slip op. at 3 (quoting Donovan

v. Shaw, 

, 989 (8th Cir. 1982)). The case that Respondents cite to support

their position, EEOC v. Shell Oil Co., 

(1984), is inapposite here because it is

based on Title VII. Title VII, unlike ERISA, requires a valid charge of discrimination as

a prerequisite to an EEOC investigation. A case decided by the Court of Appeals for the

Eighth Circuit considering a subpoena issued by DOL pursuant to ERISA provides a



                                             7
better comparison. The court there noted that “[i]t is well-settled that a subpoena

enforcement proceeding is not the proper forum in which to litigate the question of

coverage under a particular federal statute,” 

(citations omitted),

and concluded that the district court’s refusal to entertain the respondent’s defense of lack

of coverage under the statute was proper. 

the District Court found

that DOL had established a prima facie case for enforcement. Because coverage by the

statute is not an element of DOL’s prima facie case, and lack of coverage is not a defense

to enforcement, the District Court’s failure to inquire into DOL’s jurisdiction to

investigate Respondents was proper.

       In sum, none of the issues that Respondents raise regarding the District Court’s

enforcement of DOL’s subpoenas amounts to an abuse of discretion. We will accordingly

affirm the District Court’s May 11 Order.

       B. Respondents’ Privilege Claims

       Respondents assert that many of the documents requested by DOL in its subpoenas

are covered by various privileges. After reviewing Respondents’ privilege log and

various “samples” of the allegedly privileged documents, the District Court rejected

Respondents’ privilege claims.2 The Court expressed frustration with Respondents’




  2
   The Court allowed limited redaction of law firm bills to delete attorney-client
privileged or work product-protected information and insurance forms to protect personal
health and medical information. Chao v. Koresko, No. 04-MC-74 (E.D. Pa. Aug. 23,
2004).

                                              8
submissions and concluded that they should not be allowed more time to support their

claims. Chao v. Koresko, No. 04-MC-74, slip op. at 4 (E.D. Pa. Aug. 2, 2004). On

appeal, Respondents contest the District Court’s legal finding that the statutory tax

preparer privilege does not apply to this dispute, the Court’s factual findings as to the

applicability of the attorney-client and other privileges to the requested documents, and

the District Court’s refusal to allow Respondents to supplement their initial privilege

submission. We reject all of Respondents’ arguments and conclude that the District

Court’s privilege decisions were proper.

       Our review of the District Court’s determinations as to the scope of asserted

privileges is plenary. United States v. Liebman, 

, 809 (3d Cir. 1984). We

agree with the District Court’s that the tax preparer privilege does not apply here. The

language of the statute is clear–the “privilege” “may only be asserted in–(A) any

noncriminal tax matter before the Internal Revenue Service; and (B) any noncriminal tax

proceeding in Federal court brought by or against the United States.” 26 U.S.C. §

7525(a)(2) (emphasis added). This case, a civil proceeding by DOL to enforce an

administrative subpoena, is neither. Respondents’ primary concern seems to be that DOL

will share information it receives with the IRS, but they have not cited any authority that

expands the tax preparer privilege beyond its express statutory limits. Because this

proceeding is clearly outside of the statutory bounds of the tax preparer privilege, we

conclude that the privilege is inapplicable here.



                                              9
       Determinations of the applicability of privileges to particular documents are

committed to the District Judge’s discretion. Rossi v. Standard Roofing, Inc., 

, 477 n.16 (3d Cir. 1998). The burden rests upon the party who claims that requested

documents are privileged to “describe the nature of the documents . . . in a manner that . .

. will enable other parties to assess the applicability of the privilege or protection.” Fed.

R. Civ. P. 26(b)(5). In this case, the District Court specifically found that Respondents

had failed to carry that burden:

       [T]he respondents have not supported their claims with the kind of specific
       information that is required. The Court cannot tell what documents the
       respondents claim are protected by what privilege[s], by whom the document
       was prepared, from whom and to whom it was sent, and why it is a privileged
       communication.

Koresko, No. 04-MC-74, slip op. at 4 (E.D. Pa. Aug. 2, 2004). Respondents have

attempted to relitigate the privilege issues before us, explaining why they think that

various privileges apply to various documents. Their arguments establish only that they

disagree with the District Court’s decision; they do not establish that the District Court’s

ruling was incorrect or that the Court abused its discretion in any way. We will not

disturb that ruling.

       Finally, Respondents argue that the District Court “should have” allowed them

more time to clarify their privilege submissions and provide additional information. Like

determinations of whether the privilege applies, decisions as to the amount of information

that the District Court needs in order to make such determinations are committed to the



                                              10
District Judge’s discretion. Cf. Schwimmer v. United States, 

, 863-64 (8th

Cir. 1956) (finding that district court has “discretion or latitude in the receiving of proof”

on questions of waiver of attorney-client privilege). The District Court in this case “spent

hours” evaluating Respondents’ privilege claims, Koresko, No. 04-MC-74, slip op. at 5

(Aug. 2, 2004), and allowed Respondents the opportunity to present their privilege claims

both orally and in writing. 

The Court concluded that Respondents were “unable .

. . to state with any precision why any of the documents are privileged.” 

circumstances, we find that the District Court acted well within its discretion when it

declined to give Respondents a third opportunity to advance their privilege claims.

       Because Respondents have failed to show that the District Court committed a legal

error or abused its discretion with respect to the applicability of privilege to the

subpoenaed documents, we will affirm the District Court’s August 23 Order.

II. The Contempt Orders

       Respondents challenge the District Court’s March 17 contempt orders by arguing

(1) that the Court lacked jurisdiction to enter the orders; (2) that the District Court

violated Respondents’ procedural due process rights in the contempt proceedings; (3) that

the District Court erred in ignoring Respondents’ defenses to the contempt charges; and

(4) that the relief awarded by the District Court, in the form of compensatory costs and

coercive fines, was improper. We address each argument in turn.

       A. Jurisdiction



                                              11
       Respondents argue that the appeals that they filed from the District Court’s May

11, August 23 and January 10 Orders divested the District Court of jurisdiction over

further contempt proceedings. But the general rule on which Respondents rely, that filing

a notice of appeal immediately transfers jurisdiction from a district court to a court of

appeals, is subject to a number of exceptions that apply in this case. See generally 20

James Wm. Moore et al., Moore’s Federal Practice § 303.32[1] (3d ed. 1999). For

example, the district court retains authority to enforce a judgment that has not been

stayed. 

The District Court thus properly denied DOL’s Motion for

Adjudication of Civil Contempt on January 10, deferring enforcement of its May 11 and

August 23 Orders until Respondents’ Petitions for Rehearing and Rehearing En Banc of

its stay application were denied. Chao v. Koresko, No. 04-MC-74 (E.D. Pa. Jan. 10,

2005). Once the stay was finally denied, the District Court retained jurisdiction to

enforce its May 11 and August 23 orders.

       Respondents’ appeal of the District Court’s January 10 Order did not divest the

District Court of that jurisdiction. A district court may proceed with a case if an appeal is

filed from a non-appealable order. 20 Moore’s Federal Practice § 303.32[2][b][iv][B].

“Civil contempt becomes appealable only when the contemnor has refused to comply

with the remedial order and the court has exercised its authority either to punish or to

coerce compliance.” U.S. Steel Corp. v. Fraternal Ass’n of Steel Haulers, 

,

1273 (3d Cir. 1979). The District Court’s January 10 Order was not appealable–it simply



                                             12
denied DOL’s contempt motion and outlined the penalties for any future failures to

comply with the Court’s August 23 Order. As of January 10, then, the Court had not

“exercised its authority either to punish or to coerce compliance.” Thus, Respondents’

appeal of the January 10 Order could not disturb the District Court’s jurisdiction to

enforce its May 11 and August 23 Orders. The District Court therefore retained

jurisdiction to enter the March 17 Orders adjudging Respondents Koresko, Koresko &

Associates and Penn-Mont in contempt.

       B. Respondents’ Procedural Due Process Arguments

       Respondents contend that the District Court deprived them of their due process

rights when it “prospectively” adjudged them in contempt in its January 10 Order and

failed to give them adequate opportunity to explain in the hearings that led up to its

March 17 Orders. Respondents rely on Newton v. A.C. & S., Inc., 

(3d Cir.

1990), to support their due process theory. In that case, the district court issued an order

providing for the imposition of fines if the parties failed to settle by a court-imposed

deadline. 

When the parties failed to meet the deadline, the court

“summarily” and without a hearing imposed fines on defendants and defendants’ counsel.

and instructed the district court to vacate the fines because the district

court had failed to provide the parties with “customary procedural safeguards [to] ensure

that the parties or their attorneys have an opportunity to explain the conduct deemed

deficient before the fine is imposed and that a record will be available to facilitate



                                              13
appellate review.” 

      The comparison of this case to Newton is inept. Whereas the district court in

Newton imposed fines before any hearing, the District Court here provided Respondents

with two opportunities to explain themselves, at hearings on January 7 and March 16,

before it imposed any sanctions. Transcripts were made of those hearings and included in

the record for appellate review. The due process standard that we articulated for

contempt proceedings in Newton requires no more.

      C. Respondents’ Contempt Defenses

      We review a district court’s contempt findings for abuse of discretion. United

States v. Sarbello, 

, 725 (3d Cir. 1993). Abuse of discretion “may be

established by showing an error of law or a clearly erroneous judgment or finding of

fact.” 

not challenged the merits of the District Court’s contempt

findings, so we will not review them here. Instead, Respondents argue that the District

Court committed errors of law when it declined to consider Respondents’ “substantial

compliance” defense and rejected Respondents’ offer to produce privileged documents

with various protections. We disagree.

      The District Court was under no obligation to consider Respondents’ substantial

compliance defense. As Respondents themselves acknowledge, we have never

recognized substantial compliance as a defense to civil contempt. See Robin Woods, Inc.

v. Woods, 

, 399 (3d Cir. 1994). Courts that have recognized this defense



                                            14
define it as follows:

       [S]ubstantial compliance with a court order is a defense to an action for civil
       contempt. If a violating party has taken “all reasonable steps” to comply
       with the court order, technical or inadvertent violations of the order will not
       support a finding of civil contempt.

General Signal Corp. v. Donallco, Inc., 

, 1379 (9th Cir. 1986) (emphasis

added) (citations omitted). We need not consider here whether we should recognize the

substantial compliance defense in the future, because even if we were to recognize

substantial compliance as a defense to contempt, it would not apply to Respondents. See

Robin 

. Respondents’ failure to disclose the documents in this

case is neither “technical” nor “inadvertent.” Respondents have acknowledged that they

have documents responsive to the subpoena, but have repeatedly declined to produce

them. Although they sincerely believe that some of the documents covered by the

subpoenas are protected by privilege, that belief does not excuse their failure to comply

with the District Court’s order. “[G]ood faith is not a defense to civil contempt.” 

the District Court required to accept Respondents’ offer to produce

purportedly privileged documents with “protections.” The District Court had already

ruled on the merits of Respondents’ privilege claims, and Respondents’ applications to

stay the District Court’s order to produce the documents had been denied both by the

District Court and by us. The District Court was therefore free to enforce its order.

Respondents’ attempts to produce the documents in redacted or “protected” form amounts

to nothing more than an attempt to relitigate the privilege issue and was therefore

                                             15
properly disregarded by the District Court. See United States v. Rylander, 

,

756 (1983) (“‘[A] contempt proceeding does not open to reconsideration the legal or

factual basis of the order alleged to have been disobeyed and thus become a retrial of the

original controversy.’” (quoting Maggio v. Zeitz, 

, 69 (1948))).

       D. The Relief Awarded

       The District Court ordered Respondents to pay $5,312.50 in compensation for

attorneys’ fees (calculated at a rate of $250 per hour) and costs associated with filing

DOL’s contempt motion, Chao v. Koresko, No. 04-MC-74 (E.D. Pa. Apr. 25, 2005), and

a coercive fine of $250 per day beginning January 26, 2005. Chao v. Koresko, No. 04-

MC-74 (E.D. Pa. Mar. 17, 2005). Respondents argue that the District Court erred as a

matter of law in both awards. First, they assert that the Court erroneously awarded DOL

costs for motions that it lost and improperly assessed attorneys’ fees for DOL’s attorneys

at a rate comparable to that billed by attorneys in private practice. Second, they argue that

the coercive fine is “preempted” by ERISA. We review a district court’s civil contempt

sanctions for abuse of the court’s “wide discretion in fashioning a remedy.” Del. Valley

Citizens’ Council for Clean Air v. Pennsylvania, 

, 478 (3d Cir. 1982).

       The District Court’s award of compensatory costs was proper. The final amount

awarded included fees and costs associated with both the January 7 and March 16

hearings. Although it is true that the Court denied DOL’s contempt motion after the

January 7 hearing, it did so for a purely technical reason–because we had not yet denied



                                             16
Respondents’ Petitions for Rehearing and Rehearing En Banc of its stay applications.

When the District Court ultimately granted DOL’s motion in its March 17 Orders, it

relied on evidence adduced at both the January 7 and the March 16 hearings. In addition,

the District Court’s April 25 Order indicates that Respondents failed to object to DOL’s

submissions supporting its request for attorneys’ fees when they had the opportunity.

Koresko, No. 04-MC-74 (E.D. Pa. Apr. 25, 2005). Respondents have thus failed to

advance any basis for finding that the District Court abused its discretion in awarding fees

and costs associated with both hearings. Nor have they established that the District

Court’s award of fees at the rate of $250 per hour was excessive. We have expressly

authorized district courts to value government attorneys’ time at market rates for the

purpose of awarding sanctions. See Napier v. Thirty or More Unidentified Fed. Agents,

Employees, or Officers, 

, 1092-93 (3d Cir. 1988). We will accordingly

affirm the District Court’s April 25 Order.

       Respondents’ argument that the District Court erred in ordering them to pay

coercive fines is similarly unavailing. According to Respondents, the provision of ERISA

that sets statutory penalties for the failure of “plan administrators” to produce information

to DOL at $100 per day limited the District Court’s authority to order coercive fines in its

contempt proceedings. See 29 U.S.C. § 1132(c)(6). But the provision that Respondents

cite speaks only to the authority of the Secretary of DOL to assess civil penalties against

ERISA plan administrators; nowhere does it evince an intent to limit a district court’s



                                              17
discretion to fashion appropriate remedies in contempt proceedings. We conclude that

the $250 per day fine imposed by the District Court in this case was well within the

District Court’s discretion.

       Because none of the arguments that Respondents raise on appeal demonstrates that

the District Court abused its discretion or committed legal error during the enforcement or

contempt proceedings, we will affirm the District Court’s May 11 and August 23 Orders

enforcing DOL’s subpoenas and the District Court’s March 17 and April 25 Orders

adjudging Respondents Koresko, Koresko & Associates and Penn-Mont in contempt and

ordering them to pay coercive fines and compensatory costs.




                                            18