author: DYK, Circuit Judge.

text:
    MEDTRONIC, INC., Appellant v. ROBERT BOSCH HEALTHCARE SYSTEMS, INC., Appellee
    2015-1977
    2015-1986
    2015-1987
    United States Court of Appeals, Federal Circuit.
    Decided: October 20, 2016

      GebgoRY H. Lantier,- Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for appellant. Also represented by Joshua M. Koppel; Mark Christopher FlemiNG, Boston, MA; DaNiel W. Mo-dónald, Merchant & Gould P.C., Minneapolis, MN.
    Mare S. Davies, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for appel-lee. Also represented by Donald E. Day-bell, Irvine, CA; Bas De Blank, Menlo Park, CA; Rachel Wainer After, New York, NY.
    Before LOURIE, DYK, and HUGHES, Circuit Judges.
   ON PETITION FOR REHEARING

DYK, Circuit Judge.

Medtronic, Inc. (“Medtronic”) has filed a petition for rehearing. Robert Bosch Healthcare Systems, Inc. (“Bosch”) opposes.

The original panel decision, following our decision in GTNX, Inc. v. INTTRA, Inc., 789 F.3d 1309 (Fed. Cir. 2015), held that a determination by the Patent Trial and Appeal Board (“Board”) to discontinue inter partes review proceedings was not reviewable on appeal under 35 U.S.C. § 314(d). The question is whether that decision is correct in light of the Supreme Court’s decision in Cuozzo Speed Technologies, LLC v. Lee, — U.S. -, 136 S.Ct. 2131, 195 L.Ed.2d 423 (2016), which issued after our panel decision.

We now reaffirm our earlier order. The Board’s vacatur of its institution decisions and termination of the proceedings constitute decisions whether to institute inter partes review and are therefore “final and nonappealable” under § 314(d). Nothing in Cuozzo is to the contrary.

I

In 2013, Bosch brought suit in the United States District Court for the Eastern District of Texas against Cardiocom, LLC (“Cardiocom”), a subsidiary of Medtronic, alleging infringement of two patents owned by Bosch (U.S. Patent Nos. 7,769,-605 and 7,870,249). Cardiocom then petitioned for inter partes review, of those two patents. These petitions were denied in January 2014 because Cardiocom failed to show a reasonable likelihood that any of the challenged claims was unpatentable on the grounds asserted. Medtronic then filed three petitions seeking inter partes review of the same two patents and listed Med-tronic as the sole real party in interest. Bosch argued that the petitions should be denied because Medtronic had failed to name Cardiocom as a real party in interest as required by 35 U.S.C. § 312(a)(2). The Board instituted inter partes review proceedings, holding that Bosch had not established that Cardiocom was a real party in interest.

Thereafter the Board granted-in-part Bosch’s motions seeking additional discovery regarding Cardiocom’s status as a real party in interest. Based on that discovery, Bosch moved to terminate the proceedings because Medtronic had failed to name all real parties in interest. The Board granted Bosch’s motions, “persuaded [by the collective evidence] that Medtronic [was] acting as a proxy for Cardiocom,” J,A. 35, including evidence that Cardiocom was the defendant in district court infringement suits concerning the two patents, that Car-diocom had previously filed its own petitions for inter partes review, that Cardio-com’s senior executives communicated with Medtronic while Medtronic’s petitions were being prepared, and that Cardiocom paid a portion of the fees for preparing Medtronic’s petitions. The Board vacated the institution decisions and terminated the proceedings because of Medtronic’s failure to comply with the requirement that all real parties in interest be disclosed.

Medtronic appealed. Bosch moved to dismiss for lack of jurisdiction asserting that the Board’s decisions were not appeal-able under § 314(d). On November 17, 2015, we dismissed Medtronic’s appeals for lack of jurisdiction and denied mandamus relief in a non-precedential order. The mandate issued that same day. Medtronic then petitioned for rehearing. On June 30, 2016, we recalled the mandate, following the Supreme Court’s Cuozzo decision. We requested simultaneous supplemental briefing to “address the question of what action this court should take on the issue of appealability in view of the Supreme Court’s decision in Cuozzo.” Order Requesting Suppl. Briefing 1-2, EOF No. 50. The parties filed supplemental briefs on July 29, 2016.

II

A decision whether to institute inter partes review is “final and nonappealable” under 35 U.S.C. § 314(d). The Supreme Court addressed the scope of § 314(d) in Cuozzo, Specifically, the Court considered whether § 314(d) “bar[s] a court from considering whether the Patent Office wrongly determined ... to institute an inter partes review when it did so on grounds not specifically mentioned in a third party’s review request,” 136 S.Ct. at 2136 (internal quotations and citations omitted). There, the patentee argued that the petition had only “implicitly” challenged two claims for which the Board instituted inter partes review proceedings, id. at 2139, and the petition failed to comply with the requirement of 35 U.S.C. § 312(a)(3) that it “identify], in writing and with particularity, each claim chal-lenged_” See. 136 S.Ct. at 2139. While recognizing the “strong presumption” favoring judicial review on questions of statutory interpretation, id. at 2140, the Court held that § 3i4(d) operates to bar review in cases where the challenge “consist[s] of questions that are closely tied” or “closely related” to “the application and interpretation of statutes related to the Patent Office’s decision to initiate inter partes review,” id. at 2141-42.

We conclude that under Cuozzo a decision whether to institute inter partes review proceedings pursuant to § 314(a) (the issue in Cuozzo) and a reconsideration of that decision (the situation here) are both barred from review by § 314(d). Interpreting the “closely related” language in Cuozzo, we recently concluded that questions regarding the application and interpretation of “statutes ‘closely related’ to the decision whether to institute are necessarily, and at least, those that define the metes and bounds of the inter partes review process.” Husky Injection Molding Sys. Ltd. v. Athena Automation Ltd., No. 15-1726, 838 F.3d 1236, 1246, 2016 WL 5335500, at *6 (Fed. Cir. Sept. 23, 2016). It is difficult to conceive of a case more “closely related” to a decision to institute proceedings than a reconsideration of that very decision. It would be strange to hold that a decision to institute review would not be reviewable but a reconsideration of that decision would be reviewable. This is especially so when, as here, the Board’s reconsideration was predicated on a failure to meet the statutory requirements for filing a petition under § 312(a), a provision that “define[s] the metes and bounds, of the inter partes review process.” Husky, 838 F.3d at 1246, 2016 WL 5336600, at *6. The Board’s reconsideration in this case is fairly characterized as a decision whether to institute proceedings, the review of which is barred by § 314(d).

This conclusion is supported by our own cases after Cuozzo, holding § 314(d) to bar review of questions “closely related” to the institution decision such as assignor estop-pel or the time-bar of § 316(b). See Husky, 838 F.3d at 1246-47, 2016 WL 5335500, at *6; Wi-Fi One, LLC v. Broadcom Corp., No, 15-1944, 837 F.3d 1329, 1334-35, 2016 WL 4933298, at *4 (Fed. Cir. Sept. 16, 2016).

For instance, in Wi-Fi One, we recently considered the application of § 314(d) to the time-bar of § 315(b) in light of the Cuozzo decision. There, the patentee asserted that the party seeking inter partes review was barred “because it was in privity with a time-barred district court litigant.” Wi-Fi One, 837 F.3d at 1333, 2016 WL 4933298, at *2. It argued that Cuozzo implicitly overruled our prior decision in Achates holding that § 314(d) barred review. Id, at 1333-34, 2016 WL 4933298, at *3; see Achates Reference Publ’g, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015). We rejected the same argument, now advanced by Medtronic, that the “under this section” language of § 314(d) limits the bar on reviewability only to questions arising under § 314. Wi-Fi One, 837 F.3d at 1333-35, 2016 WL 4933298, at *3-4, Rather, we concluded that “[n]othing in Cuozzo casts doubt on that interpretation of the statute, especially in light of the fact that the Supreme Court held that the particularity requirement, which is-contained in section 312, is nonappealable.” Id. at 1335, 2016 WL 4933298 at *4.

Finally, the statute contemplates how appeals from final decisions will generally be limited to a “decision with respect to ... patentability.” 35 U.S.C. § 318(a). There was no such decision here. See GTNX, 789 F.3d at 1311.

Ill

Medtronic argues that Cuozzo reserved the question of § -314(d)’s effect on “appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond ‘this section.’” 136 S.Ct. at 2141. Thus, § 314(d) would not categorically bar review of a due process challenge based on insufficient notice that affects an entire proceeding. Id. Similarly, it would not “enable the agency to act outside its statutory limits by, for example, canceling a patent claim for ‘indefiniteness under § 112’ in inter partes review.” Id. at 2141-42.

Medtronic asserts that its particular challenge is reviewable because the Board “exceeded its [statutory] authority when it terminated Medtronic’s petitions after institution on a non-merits issue_” Medtronic Suppl, Br. 18. In other words, Medtronic argues that the Board lacked authority to reconsider its earlier decisions. But § 318(a) contemplates that a proceeding can be “dismissed” after it is instituted, and, as our prior cases have held, “administrative agencies possess inherent authority to reconsider their decisions, subject to certain limitations, regardless of whether they possess explicit statutory authority to do so.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). In GTNX we considered the application of this principle to the Patent Office. There the Board similarly vacated its initial institution decisions because a prior civil action barred the party from seeking review under 35 U.S.C. § 325(a)(1). 789 F.3d at 1311. We held that the Board has inherent authority to reconsider its decisions, noting that “nothing in the statute or regulations applicable here ... clearly deprives the Board of that default authority.” Id. at 1313. We also explained that “[i]t is strained to describe this as anything but a ‘determination ... whether to institute’ proceedings—statutory language that is not limited to an initial determination to the exclusion of a determination on reconsideration” and that such a decision is “final and nonappealable.” Id. at 1312 (citations omitted). The Board did not exceed its authority in reconsidering its institution decisions.

Medtronic also argues that this case involves a constitutional issue because the Board “deprived Medtronic of due process” given its inconsistent application of the real party in interest requirement. Medtronic Suppl. Br. 19. But there is no colorable constitutional issue.

In sum, as we previously held in GTNX, § 314(d) operates to bar review of the Board’s reconsideration of its decision to institute inter partes review proceedings.

IV

In the alternative, Medtronic requests that we treat this appeal as a petition for a writ of mandamus. But Medtronic has not demonstrated entitlement to mandamus relief.

In In re Dominion Dealer Solutions, LLC, 749 F.3d 1379 (Fed. Cir. 2014), which also involved a requested inter partes review, we denied mandamus based on the absence of a “clear and indisputable” right to relief in view of the statutory scheme precluding review of non-institution decisions. Id. at 1381 (citation and internal quotation marks omitted). Given that the same statutory provisions preclude Med-tronic from appealing the Board’s decision, here too it cannot be said that Medtronic has a clear and indisputable right to have this court hear its challenges to the Board’s decision.

Panel rehearing is not granted in this case.

      . If Cardiocom were a real party in interest, the petition would be time-barred under 35 U.S.C. § 315(b).

      . Medtronic also argues that the Board "does not treat a termination decision as a 'reconsider[ation]’ of the determination whether to institute.” Medtronic Suppl. Br. 12 (alteration in original). Specifically, Medtronic cites to Coming Optical Commc'ns RF, LLC v. PPC Broadband, Inc., IPR2014-00440, Paper 68 (P.T.A.B. Aug. 18, 2015), Similar to the case here, in Coming the Board vacated its institution decision and terminated proceedings on a motion to dismiss by the patent owner because of the petitioner’s failure to list all real parties in interest. Id. at 4. In a request for rehearing, the petitioner argued that the Board had erred by applying a “preponderance of the evidence” standard as opposed to an "abuse of discretion” standard as required by 37 C.F.R. § 42.71(c) for reviewing requests for rehearing. Corning Optical Commc’ns RF, LLC v. PPC Broadband, Inc., IPR2014-00440, Paper 70 at 6 (P.T.A.B. Dec. 9, 2015). On rehearing the Board rejected this argument because the decision to terminate proceedings was predicated on a motion to dismiss filed by the patent owner, not a request for rehearing of the institution decision as of right pursuant to 37 C.F.R. § 42.71(d). Corning, Paper 70 at 6. The Board held that the "preponderance of the evidence” standard was appropriate given the requirements for motions under 37 C.F.R. §§ 42.20(a), (c), 42.1(d). Corning, Paper 70 at 6-7. Coming does not hold that requests to dismiss pending proceedings are not requests for reconsideration. It merely holds that such requests do not fall within 37 C.F.R. § 42.71(d). See GTNX, 789 F.3d at 1312-13.


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Petitioner, Appellee, v. STURM, RUGER & COMPANY, INC., Respondent, Appellant.
    No. 95-1918.
    United States Court of Appeals, First Circuit.
    Heard April 5, 1996.
    Decided May 14, 1996.

      Richard D. Wayne, Boston, MA, with whom Willard Krasnow, Lara SanGiovanni, and Hinckley, Allen & Snyder were on brief, for appellant.
    Frederick D. Braid, Walter J. Johnson, Sharon N. Berlin, Rains & Pogrebin, P.C., Mineóla, NY, Daniel J. Popeo, and David A. Price on brief for Washington Legal Foundation, amicus curiae.
    John Shortall, Attorney, United States Dept, of Labor, with whom Joseph M. Woodward and Ann Rosenthal, United States Dept, of Labor, Paul M. Gagnon, United States Attorney, and Gretchen Leah Witt, Assistant United States Attorney, were on brief, for appellees.
    Before SELYA, STAHL and LYNCH, Circuit Judges.
   SELYA, Circuit Judge.

On the surface this ease appears to touch a sensitive nerve: how the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651-678 (1994), interfaces with the field of ergonomics (the study and design of workplace environments and job tasks and their effects on employee health). Indeed, the respondent-appellant, Sturm, Ruger & Co. (Sturmco), and the amicus, the Washington Legal Foundation (WLF), deliberately frame the appeal in these terms; they entreat us to declare that the Occupational Safety and Health Administration (OSHA) lacks the authority to regulate ergonomics in the workplace through the medium of the OSH Act’s general duty clause, id. § 654(a)(1), and to reverse the district court’s order on that basis. We turn a deaf ear to these blandishments because close perscrutation of the record discloses that they are premature. This is no more than a run-of-the-mine administrative subpoena enforcement proceeding which presents no legitimate opportunity to dwell on cosmic truths.

Deeming it unwise to make a long prologue and to be short in the story itself, cf. 2 Maccabees 2:32, we omit any further introduction and proceed directly to the particulars.

I. BACKGROUND

In August 1993 an OSHA representative arrived at Sturmco’s factory in Newport, New Hampshire, to look into an employee complaint about air quality. But the visitor did more than test for air contaminants; he also informed Sturmco of a Local Emphasis Program (LEP) inaugurated by OSHA’s area director. The LEP identified certain New Hampshire employers, based on the incidence of particular types of workers’ compensation claims filed with a state agency, whom the area director believed might have an unusually high number of employees afflicted with multiple movement disorders. The OSHA emissary reported that Sturmco had been so identified and requested that it voluntarily produce certain records detailing work-related injuries and illnesses. Sturmco complied.

In November of the same year, the OSHA functionary returned to videotape employees engaged in one of Sturmco’s manufacturing operations. He requested that the company complete a questionnaire that related to ergonomic issues at the factory. Sturmco took the matter under advisement and, in January, informed OSHA that it would not answer the questionnaire.

OSHA then served a subpoena demanding that Sturmco produce a myriad of documents concerning manufacturing processes, employee training, and on-the-job injuries. The company fenced with the agency, saying that it would comply with the subpoena only in the event that OSHA agreed not to use any of the resultant information to impose punitive sanctions. Refusing to accede to this condition, OSHA invoked 29 U.S.C. § 657(b) and obtained enforcement of the subpoena in the federal district court. See Reich v. Sturm, Ruger & Co., 903 F.Supp. 239 (D.N.H.1995). Sturmco appeals. We affirm.

II. SUBPOENA ENFORCEMENT

Although the parties—especially the respondent and the amicus—expend a great deal of energy debating the merits of ergonomic research and regulation, this exegesis is largely beside the point. The principal question before this court is much more mundane: did OSHA have the authority to issue the administrative subpoena? We hold that it did.

A

An administrative subpoena is not self-executing and is therefore technically not a “search.” It is at most a .constructive search, amounting to no more than a simple direction to produce documents, subject to judicial review and enforcement. See Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 195, 66 S.Ct. 494, 498, 90 L.Ed. 614 (1946); In re Grand Jury Subpoena Served Upon Simon Horowitz, 482 F.2d 72, 75-79 (2d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 64, 38 L.Ed.2d 86 (1973). Thus, unlike the subject of an actual search, the subject of an administrative subpoena has an opportunity to challenge the subpoena before yielding the information. In the course of that resistance, the Fourth Amendment is available to the challenger as a defense against.enforcement of the subpoena. See Donovan v. Lone Steer, Inc., 464 U.S. 408, 415, 104 S.Ct. 769, 773, 78 L.Ed.2d 567 (1984); see generally Jack W. Campbell IV, Note, Revoking the “Fishing License, ” 49 Vand. L.Rev. 395, 408-09 (1996).

The requirements for enforcement of an administrative subpoena are not onerous. In order to obtain judicial backing the agency must prove that (1) the subpoena is issued for a congressionally authorized purpose, the information sought is (2) relevant to the authorized purpose and (3) adequately described, and (4) proper procedures have been employed in issuing the subpoena. See United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368-69, 94 L.Ed. 401 (1950); Oklahoma Press, 327 U.S. at 208, 66 S.Ct. at 505; United States v. Comley, 890 F.2d 539, 541 (1st Cir.1989). As long as the agency satisfies these modest requirements, the subpoena is per se reasonable and Fourth Amendment concerns are deemed satisfied. See Oklahoma Press, 327 U.S. at 208, 66 S.Ct. at 505. These standards apply to OSHA subpoenas in exactly the same way that they apply to subpoenas issued by other agencies. See, e.g., Reich v. Manganas, 70 F.3d 434, 437 (6th Cir.1995); Reich v. National Eng’g & Contr’g Co., 13 F.3d 93, 98 (4th Cir.1993); Dole v. Trinity Indus., Inc., 904 F.2d 867, 871 (3d Cir.), cert. denied, 498 U.S. 998, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990); Donovan v. Union Packing Co., 714 F.2d 838, 840 (8th Cir.1983).

B

The respondent’s central thesis boils down to this: the subpoena should not be enforced because OSHA issued it pursuant to an inspection scheme (the LEP) that did not derive from within OSHA’s statutory authority. Sturmco casts this proposition in two modes. First, it focuses on the inspection scheme in the forlorn hope that we will apply to this subpoena the more stringent test applicable to administrative searches, namely, the requirement that on-site inspections be conducted pursuant to “reasonable legislative or administrative standards.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 320, 98 S.Ct. 1816, 1824, 56 L.Ed.2d 305 (1978).

We will not dance to the respondent’s tune. At present, OSHA is not seeking to conduct an inspection or any other physical search of Sturmco’s premises, but, rather, merely to enforce a subpoena duces tecum. The Supreme Court has made it pellucid that subpoenas—as opposed to inspections or other administrative searches—are subject to the minimal standards of Oklahoma Press and its progeny, not to the more rigorous Barlow’s criteria. See Lone Steer, 464 U.S. at 414, 104 S.Ct. at 772-73. Thus, to the extent that Sturmco’s animadversions are directed at whether the LEP drew its essence from a reasonable administrative standard, they have no bearing on the question we must decide.

C

In view of the frailty of its first asseveration, Sturmco’s appeal necessarily stands or falls on its second argument, namely, whether issuing the subpoena was within OSHA’s statutory authority. We think that it falls.

1. The Statutory Scheme. The OSH Act imposes two distinct duties on employers. First, employers must comply with specific workplace health and safety standards established by OSHA. See 29 U.S.C. § 654(a)(2). To this end, the Act grants OSHA authority to promulgate such standards. See id. § 655. Second, to fill whatever gaps may exist after rules delineating specific standards have been promulgated, the Act imposes on employers a general duty to provide “employment and a place of employment which are free from recognized hazards.” Id. § 654(a)(1). OSHA enforces this general duty clause, as it is called, through case-by-case adjudicative proceedings. See id. § 661(i) (establishing administrative adjudication mechanism); Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 17 (1st Cir.1984) (holding that the Secretary does not abuse his discretion by issuing citations in adjudicative proceedings under the general duty clause as opposed to establishing specific standards via rulemaking); see also Reich v. Montana Sulphur & Chem. Co., 32 F.3d 440, 445 (9th Cir.1994) (noting “OSHA’s statutory obligation to enforce the general duty clause as a minimum standard”), cert. denied, — U.S.-, 115 S.Ct. 1355, 131 L.Ed.2d 213 (1995); Matter of Establishment Inspection of Kelly-Springfield Tire Co., 13 F.3d 1160, 1167 (7th Cir.1994) (acknowledging the Secretary’s authority to enforce the general duty clause); UAW v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1577 (D.C.Cir.) (limning the standards OSHA must meet to prove a violation of the general duty clause), cert. denied, 484 U.S. 976, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987).

OSHA asserts as authority for the instant subpoena its power to investigate possible violations of the general duty clause. It is by now apodictic that enforcement of the general duty clause is a purpose properly authorized by Congress. See, e.g., Montana Sulphur, 32 F.3d at 449; Kelly-Springfield, 13 F.3d at 1166-67.

2. “Recognized Hazards”. In an effort to make an end run around these holdings, Sturmco and WLF question the validity of OSHA’s purpose by positing that ergonomic hazards are not “recognized hazards” within the purview of the general duty clause. This initiative features two decisions in which administrative law judges (ALJs) under the auspices of the Occupational Safety and Health Review Commission (OSHRC) refused to enforce citations for particular ergonomic hazards under the general duty clause. See Beverly Enters., Inc., OSHRC No. 91-3344 (A.L.J.1995); Pepperidge Farm, Inc., OSHRC No. 89-0265 (A.L.J.1993). Sturmco and WLF insist that these decisions show that OSHA lacks the rudimentary authority to regulate ergonomics under the general duty clause. In the absence of any more specific regulatory authority, they conclude, OSHA cannot demonstrate a proper purpose for the issuance of the instant subpoena.

This conclusion is built on shifting sands. In the first place, neither of the cited ALJ decisions holds that OSHA lacks authority in all instances to regulate ergonomics under the general duty clause. They therefore fail to provide convincing support for the proposition that OSHA will not be able to prove a violation of the general duty clause in this ease. In the second place—and more important—the respondent’s argument misconstrues the scope of the judicial inquiry that is appropriate at this stage.

We have repeatedly admonished that questions concerning the scope of an agency’s substantive authority to regulate are not to be resolved in subpoena enforcement proceedings. See FTC v. Monahan, 832 F.2d 688, 690 (1st Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1289, 99 L.Ed.2d 500 (1988); FTC v. Swanson, 560 F.2d 1, 2 (1st Cir.1977) (per curiam); SEC v. Howatt, 525 F.2d 226, 229-30 (1st Cir.1975). Subpoena enforcement proceedings are designed to be summary in nature, see Comley, 890 F.2d at 541, and an “agency’s investigations should not be bogged down by premature challenges to its regulatory jurisdiction,” Swanson, 560 F.2d at 2. As long as the agency’s assertion of authority is not obviously apocryphal, a proeedurally sound subpoena must be enforced. See id.; see also EEOC v. Kloster Cruise Ltd., 939 F.2d 920, 923 (11th Cir.1991).

Refined to bare essence, the respondent’s argument runs along the following lines. As part of its burden of proving a violation of the general duty clause, OSHA must show that an employer failed to keep its workplace free of a recognized hazard that caused (or was likely to cause) death or serious physical injury. See General Dynamics, 815 F.2d at 1577; Puffer’s Hardware, 742 F.2d at 18. Ergonomic hazards, Sturmco argues, are not such “recognized hazards,” and, therefore, OSHA. cannot cany its burden. Given the early stage of the proceedings, this argument falters.

To be sure, a debate rages in both legal and medical circles over the dangers posed by, for example, multiple movement disorders, as well as over the optimum method(s) by which so-called ergonomic dangers can be alleviated. But uncertainties of this sort do not provide a cognizable basis for concluding at this stage that OSHA would not be able to issue a citation. This is especially true when, as now, a subpoena is “designed to produce the very information that may be needed to shed light upon those questions.” Howatt, 525 F.2d at 230.

3. A Variation on the Theme. WLF comes at the problem from another angle. It asserts that once a subpoena is enforced the chance for an effective challenge evaporates because most employers are likely to settle with OSHA rather than proceed through the rigors of the administrative litigation process. As an initial matter, we doubt that this argument is properly before us. While amicus briefs are helpful in assessing litigants’ positions, an amicus cannot introduce a new argument into a case. See Lane v. First Nat’l Bank, 871 F.2d 166, 175 (1st Cir.1989) (explaining that an amicus may not “interject into a case issues which the litigants, whatever their reasons might be, have chosen to ignore”); accord Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 36 (1st Cir.1993).

In all events, WLF’s argument fails on the merits. It offers no empirical or statistical evidence in support of its conclusions about settlement rates. Moreover, it points to no case holding that the prospective burden of litigation constitutes a cognizable injury sufficient to breathe life into a pre-enforcement challenge to agency action notwithstanding the guaranteed availability of judicial review following final agency action. Put bluntly, WLF asks us to buy a pig in a poke, and we refuse to do so.

At any rate, we have already rejected a similar argument in repudiating an estoppel-based collateral attack on an OSHA citation. In Northeast Erectors Ass’n v. Secretary of Labor, 62 F.3d 37 (1st Cir.1995), we held that a party did not suffer substantial harm from being required to raise defenses to a citation only after the citation had issued. See id. at 40. We also warned that permitting parties to circumvent the administrative process by bringing collateral challenges in the district court would “subvert Congress’s intent to have such claims reviewed through the OSH Act’s detailed administrative procedure.” Id.

4. Recapitulation. We need go no further. OSHA’s authority to investigate ergonomic conditions in search of possible general duty clause violations easily passes the undemanding test for the enforceability of administrative subpoenas. Were we to succumb to the siren song that Sturmco sings and stop the subpoena for want of some sophisticated standard for systemically specifying ergonomic hazards, we would in effect be requiring OSHA to “charge first and investigate later.” Montana Sulphur, 32 F.3d at 444. This tergiversation would stand the administrative enforcement process on its head and in the bargain would both defy the will of Congress and ignore the teachings of the Court. We will not encourage so resupinate an exercise.

D

We must attend to a final detail. While the respondent does not seriously contend that the documents requested in the subpoena are irrelevant to OSHA’s asserted purpose or that the subpoena was issued in a proeedurally irregular manner, it does attempt to argue that enforcement should be withheld because the subpoena is abusive and overbroad. On appeal, Sturcnco’s sole stated basis for this contention is that, because there is no ergonomic standard or definition of ergonomic hazard, any document request must necessarily be abusive. This is nothing more than a cross-dressing of the argument, previously rejected, that OSHA lacks authority to issue a subpoena pursuant to an investigation of ergonomic hazards for possible violations of the general duty clause. We can conceive of no reason to give this importuning further attention. Accordingly, the subpoena must be enforced.

III. CITATION ENFORCEMENT

In July of 1994, while the respondent was in the midst of contesting the subpoena’s validity, OSHA issued a citation charging the company with failure to produce certain subpoenaed documents. The respondent requested that the district court prohibit enforcement of the citation. The court refused, citing a perceived lack of jurisdiction. See Sturm, Ruger, 90S F.Supp. at 250.

As the district court recognized, id. at 249-50, it is questionable whether OSHA citations issued for failure to comply with a subpoena that the employer is in the process of challenging may be enforced. See, e.g., Lone Steer, 464 U.S. at 415, 104 S.Ct. at 773 (explaining that an employer may “question the reasonableness of [a] subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in the district court”) (emphasis supplied); See v. City of Seattle, 387 U.S. 541, 544-45, 87 S.Ct. 1737, 1739-41, 18 L.Ed.2d 943 (1967) (similar); Brock v. Emerson Elec. Co., 834 F.2d 994, 997 (11th Cir.1987) (similar). But as the district court also recognized, Sturm, Ruger, 903 F.Supp. at 250, the law lodges exclusive jurisdiction over challenges to the validity of citations with OSHRC, subject to review by the court of appeals. See 29 U.S.C. §§ 659(c) & 660(a); see also Northeast Erectors, 62 F.3d at 39-40 (explaining jurisdictional structure of OSH Act and holding that the district court lacked subject matter jurisdiction over a pre-enforcement challenge to an OSHA citation).

The OSH Act provides only a few limited bases for original jurisdiction in the district court, and none of those bases exists here. The administrative review and appeals process thus remains “the exclusive procedure through which an employer can obtain review of OSHA [citation] enforcement proceedings.” Northeast Erectors, 62 F.3d at 39. Consequently, the district court did not err in refusing, on jurisdictional grounds, to entertain Sturmco’s complaint anent the citation.

IV. CONCLUSION

There is much less to this appeal than meets the eye. Because OSHA had authority to issue the subpoena to investigate possible violations of the general duty clause, we must affirm the judgment below. In so doing, we leave for another day the question whether OSHA will ultimately be able to enforce a citation against Sturmco (or anybody else, for that matter) on the ground that ergonomic hazards are recognized hazards within the meaning of the OSH Act’s general duty clause.

Affirmed.

      . We note that the subpoena at issue here seeks only corporate documents, and thus does not . raise any of the concerns discussed in In re Subpoena of Roger Gimbel, 77 F.3d 593, 596-600 (2d Cir.1996).

      . It is simply not true, as Sturmco seems to suggest, that OSHA may only issue subpoenas pursuant to inspections based on employee complaints. As the Eighth Circuit has observed:. "The statute does not mandate an inspection of the premises in order to enforce a limited subpoena to determine whether there is a probable violation of the law. Indeed, the Secretary should not be expected to do more than the circumstances require." Union Packing, 714 F.2d at 840 (citation omitted).

      . Although OSHA has never established health and safety standards relating specifically to ergonomics, the agency at one point issued an advance proposed notice of rulemaking, requesting information and comments on ergonomics from interested parties. See 57 Fed.Reg. 34,192 (Aug. 3, 1992). OSHA has yet to promulgate an official notice of proposed rulemaking adumbrating specific ergonomic standards.

      . Both decisions are presently on review before OSHRC. In any event, because the cases are merely first-tier ALJ decisions, they are entitled to no precedential value before this tribunal. See Matter of Establishment Inspection of Cerro Copper Prods. Co., 752 F.2d 280, 284 (7th Cir.1985) (per curiam) ("An unreviewed ALT decision does not bind OSHRC or the courts as precedent.”) (citing cases). Their utility depends solely on the persuasive power, if any, of their reasoning.

      . Sturmco is currently contesting the citation before OSHRC, and it will be entitled to all appropriate defenses against enforcement there and on any ensuing appeal. See, e.g., Emerson Elec., 834 F.2d at 997 (affirming OSHRC's vacation of citation issued for failure to produce documents). That route is the only available avenue of protest vis-a-vis the citation.


author: CYR, Circuit Judge.

text:
    Willie Victor ORTIZ-PIÑERO, Plaintiff, Appellant, v. Victor RIVERA-ARROYO, Individually and as Mayor of Gurabo, et al., Defendants, Appellees.
    No. 95-2167.
    United States Court of Appeals, First Circuit.
    Heard Feb. 28, 1996.
    Decided May 15, 1996.

      Carlos A. Del Valle Cruz, Hato Rey, PR, for appellant.
    Elisa Bobonis Lang, Hato Rey, PR, with whom José R. Gaztambide and Gaztambide & Plaza were on brief for appellees.

      Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
   CYR, Circuit Judge.

Plaintiff Willie Victor Ortiz Pinero (“Ortiz”) appeals from a district court judgment dismissing his political discrimination claims against the City of Gurabo, Puerto Rico, and its incumbent Mayor. We affirm.

I

BACKGROUND

In 1981, the City of Gurabo enacted an ordinance, pursuant to P.R. Laws Ann. tit. 3, § 1851, designating eleven municipal offices as positions of “trust” or “confidentiality,” including the directorship of the Office of Federal Programs (“OFP”), the municipal agency charged with obtaining and administering federal funding for various public works projects. See Municipal Ordinance No. 3, Series 1981-82 (Sept. 14,1981).

In August 1991, then-Mayor Ramon Garcia Caraballo appointed Ortiz, a fellow member of the Popular Democratic Party (PDP), as OFP Director, and allegedly described the position to Ortiz as a non-“confidenee” position. Mayor Caraballo later extended Ortiz’ appointment through August 1993. In November 1992, however, after the PDP mayoral candidate was rejected by the electorate, outgoing Mayor Caraballo notified Ortiz that he should resign forthwith because the OFP directorship was a “confidential” position which the new administration was entitled to fill. Ortiz refused to resign. Thereafter, the incoming New Progressive Party (NPP) mayor, defendant-appellee Willie Victor Rivera-Arroyo (“Rivera”), dismissed Ortiz.

In due course, Ortiz initiated the present action for damages and reinstatement under 42 U.S.C. § 1983 against the City of Gurabo and Mayor Rivera, claiming political discrimination and deprivation of his property interest in continued employment without the benefit of a pretermination hearing, in violation of the First and Fourteenth Amendments to the United States Constitution. The defendants moved for summary judgment on the ground that the OFP directorship is a “trust” position for which compatible political affiliation constitutes a legitimate qualification. See Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Their motion was accompanied by a written “certification” from the City personnel office defining the responsibilities of the OFP directorship. After determining that the evidence compelled a finding that the OFP directorship is a trust position, the district court granted summary judgment for defendants on all claims. Ortiz Pinero v. Rivera Acevedo, 900 F.Supp. 574 (D.P.R.1995).

II

DISCUSSION

A. Standard of Review

We review de novo, to determine whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See O’Connor v. Steeves, 994 F.2d 905, 906-07 (1st Cir.), cert. denied, — U.S.-, 114 S.Ct. 634, 126 L.Ed.2d 593 (1993). Although all competent evidence and reasonable inferences are viewed in the light most favorable to Ortiz, he cannot carry the day on mere “ ‘concluso-ry allegations, improbable inferences, and unsupported speculation.’ ” Id. (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).

B. First Amendment Claim

1. Applicable Law

In a political discrimination case, the plaintiff first must show that party affiliation was a substantial or motivating factor for the challenged action. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir.1994). The burden then shifts to defendants to establish either a nondiscriminatory reason for the dismissal, see Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir.1990), or that plaintiff held a “political” position for which party affiliation constituted an appropriate qualification for continued employment, see Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95; De Choudens v. Government Dev. Bank of P.R., 801 F.2d 5, 8 (1st Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). Thus, the Branti/Elrod defense is designed to ensure that “representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367, 96 S.Ct. at 2687.

Whether a government position is “political” does not depend upon such loose-fitting labels as “confidential” or “policymaking,” but on the substance of the duties inherent in the position itself. Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95 (noting: “a position may be appropriately considered political even though it is neither confidential nor policymaking in character,” and, by the same token, party affiliation is not a relevant consideration for all policymaking or confidential positions); see Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir.1987) (abjuring reliance on “rigid labels” in Branti /Elrod analysis).

We employ a two-part inquiry to identify “political” positions under the Branti /Elrod analysis:

First, we inquire whether the overall functions of the employee’s department or agency involve “decision making on issues where there is room for political disagreement on goals or their implementation.” Second, we decide whether the particular responsibilities of the plaintiff’s position, within the department or agency, resemble those of “a policymaker, privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement” for continued tenure.. Among the indicia material to the second element are “ ‘relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.’ ”

O’Connor, 994 F.2d at 910 (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987)) (other citations omitted).

Although obviously fact-intensive, the ultimate determination whether a government position is “political” presents a question of law for the court, rather than an issue of fact for jury resolution. See McGurrin Ehrhard v. Connolly, 867 F.2d 92, 93 (1st Cir.1989) (Breyer, J.) (noting that the “important constitutional and governmental interests surrounding the application of the [Branti/Elrod] exception” make it more suitable for determination by the court). Examining all competent evidence in the light most favorable to Ortiz, we conduct a de novo assessment of the relevant factors, see In re Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir.1993) (plenary appellate review generally accorded issues of law), and “make a common sense judgment in light of the fundamental purpose to be served [by the Bran-ti/Elrod analysis].” Jimenez Fuentes, 807 F.2d at 242.

2. The OFP and “Partisan Political Interests

The OFP is charged with marshaling and administering the million or so dollars obtained annually from federal agencies, and with doling it out for various public works projects within the municipality. Thus, the OFP unmistakably is a municipal “department or agency [whose overall functions] involve ‘decision making on issues where there is room for political disagreement on goals or their implementation.’ ” O’Connor, 994 F.2d at 910 (citations omitted). Indeed, its inherent responsibilities inevitably entail the kinds of discretionary decisions traditionally associated with municipal politics. Accordingly, we conclude that defendants met the first-prong test under Jimenez Fuentes.

3. The Duties Inherent in the OFP Directorship

Under the second prong, we examine any evidence the defendants may have adduced that “the particular responsibilities of the plaintiffs position, within the [OFP], resemble those of ‘a policymaker, privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement’ for continued tenure.” O’Connor, 994 F.2d at 910 (citations omitted) (emphasis added).

a) Lack of Written Job Description

Ortiz first argues that summary judgment is precluded because the City of Gurabo has no official, written job description (a.k.a. Form OP-16) for its OFP Director, nor indeed for any of its municipal employees. He relies upon cases in which we have held that courts should determine the duties inherent in a particular position by examining the governmental entity’s written, signed job descriptions, rather than the duties actually performed by the plaintiff or prior occupants of the position in question. See, e.g., Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir.1987). Ortiz would have us conclude that the absence of any written job description, combined with conflicting circumstantial evidence as to the duties performed by the OFP director, leaves unresolved issues of material fact which preclude summary judgment. See Romero Feliciano, 836 F.2d at 3 (“[W]e have considered the OP-16 dispositive in other Puerto Rico political discrimination cases_”). In so doing, Ortiz misconstrues our precedents and the nature of the issue under consideration.

Although written, signed job descriptions may provide highly probative evidence as to the responsibilities inherent in a particular government position, and may even prove “dispositive,” see id. at 3, we have never suggested that their absence is disposi-tive, cf. Mendez-Palou, 813 F.2d at 1260 (“Whenever possible, we will rely upon this document because it contains precisely the information we need _”) (emphasis added), or precludes a defendant from resorting to other evidence, see, e.g., Romero Feliciano, 836 F.2d at 3 (noting that defendant “may present additional evidence at trial” besides the disputed OP-16). Nor does the absence of a written, signed job description preclude summary judgment, so long as defendants adduce other competent evidence as to the responsibilities inherent in the OFP directorship from which the “political” nature of the position can be determined as a matter of law, see McGurrin Ehrhard, 867 F.2d at 93 (ultimately, the Branti/Elrod defense poses a question of law), even though some nonessential facts may remain in dispute. See Mariani Giron v. Acevedo Ruiz, 877 F.2d 1114, 1117 n. 5 (1st Cir.1989).

b) The Responsibilities Inherent in the Position

Ortiz contends that the district court incorrectly assessed the record evidence relating to the duties inherent in the OFP directorship. He claims that he administered the OFP in a politically-neutral fashion and took no meaningful part in mayoral “policymaking” or “political” decisions concerning federal funding allocations among the various constituencies within the municipality.

As previously noted, probative indicia that a position is “political” include ‘“relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.’” O’Connor,. 994 F.2d at 910 (citations omitted). Defendants adduced evidence that Ortiz had not had to compete with other candidates for the OFP directorship. Moreover, Ortiz concedes that he was no “expert” in the financial and accounting aspects of the OFP’s responsibilities. Thus, we think the evidence does not support a fair inference that Ortiz was selected for his managerial or technical expertise. Moreover, Ortiz’ prominent PDP affiliation, see Ortiz Deposition at 179-81 (acknowledging that, at various times, he was a “political activist,” electoral commissioner, and campaign finance director for the PDP and PDP candidates), plainly permits a fair inference that he was selected for the OFP directorship based on his “political” service and talents. See McGurrin Ehrhard, 867 F.2d at 98 (finding position “political” where plaintiff, formerly a clerical employee, was tapped for position as director of secretary of state’s regional office, after having worked on Secretary’s state senate campaign, and where Secretary “did not advertise the job, solicit applications, or ... consider any [other] applicant”).

More importantly, Ortiz was appointed to head the OFP, whose overall functions clearly involved “‘decision making on issués where there is room for political disagreement on goals or their implementation,’ ” under the first prong of the Jimenez Fuentes test. See supra Section II.B.2. By his own account, Ortiz was in complete charge of the OFP staff, as well as the applications for, and the administering of, all federal grant and loan programs involving the City, amounting to approximately one-third of its municipal budget. See Ortiz Deposition, at 29-30.

Ortiz reported directly to the mayor, rather than through intermediaries, meeting with him on an average of six or seven times a year. Cf. Mendez-Palou, 813 F.2d at 1260 (noting that plaintiff performed duties with “only general instructions and superficial supervision” from the administration). He served as the mayor’s “eyes” and “ears,” periodically visiting public work projects and reporting back to the mayor on their progress. See McGurrin Ehrhard, 867 F.2d at 95 (noting that employee who acted as “eyes and ears” for secretary of state engaged in an “overtly political task[]”). Such first-person (thus, more subjective) field assessments often influence policy formulation, and policymaking influence, even though indirect, is an important indicium of “political” positions.

Ortiz admittedly received and reviewed copies of federal audits and oversight reports, including the Federal Transit Administration’s Triennial Review of the City’s federally funded transit program, which identified areas where the City was not in compliance. See Defendant’s Exh. 6; see also 49 U.S.C. § 5S07(i)(2). This politically-sensitive report is precisely the type of document whose contents are not likely to be shared freely with any but the mayor’s trusted political confidants for fear it might become fodder for the political opposition. Cf. Mendez-Palou, 813 F.2d at 1262-63 (“[W]e believe that an official working in close contact with the head of a government agency is also more likely to be privy to a substantial amount of confidential information_”).

Finally, Municipal Ordinance No. 3, enacted in 1981 pursuant to P.R. Laws Ann. tit. 3, § 1351, designates only eleven municipal offices as positions of “trust” or “confidentiality,” including the Director of the Office of Federal Programs. Consistent with the ordinance, former Mayor Caraballo notified Ortiz in writing on December 24, 1992, that he was among the eleven municipal officials who must resign to make way for the incoming NPP administration.

Against this formidable array, Ortiz offers five arguments. First, he contends that Municipal Ordinance No. 3 is a nullity because the defendants have not shown that it was duly submitted to the Central Office of Personnel Administration for approval, as supposedly required by the Personnel Act. But see supra note 11. This claim is unavailing.

On its face, the ordinance reflects that it had been submitted to the Central Office of Personnel Administration (“Central Office”) for review. See Municipal Ordinance No. 3, § 3. Thus, the burden lay with Ortiz to show that the City did not comply with the statutory requirements, and he proffered no evidence that the ordinance was not duly submitted to the Central Office. See O’Con-nor, 994 F.2d at 906-07 (noting that summary judgment opponent must proffer more than “ ‘conclusory allegations, improbable inferences, and unsupported speculation’ ”) (citation omitted). In all, events, the statutory language does not purport to make submission to the Central Office a prerequisite to the validity of Municipal Ordinance No. 3. Rather, the requirement of post-enactment compliance “review” by the Central Office, in relation to a municipal ordinance, stands in sharp contrast to the heightened obligation of Commonwealth agencies to seek Central Office approval. See P.R. Laws Ann. tit. 3, § 1351 (mayor’s “plan” to be submitted to Central Office “for the sole purpose of ascertaining that the provisions of section 1350 of this title have been complied with”). See Appendix A for text of § 1350.

Second, Ortiz correctly notes that state laws identifying government positions as “trust” or “confidential” are not disposi-tive of the federal-law question whether a particular position is “political.” See Jimenez Fuentes, 807 F.2d at 243 n. 9. On the other hand, we have explained that state laws and municipal ordinances designating positions as “trust” or “confidential”—like P.R. Laws Ann. tit. 3, § 1351, and Municipal Ordinance No. 3—are entitled to “some deference” under the Branti/Elrod formula, see Jimenez Fuentes, 807 F.2d at 246; accord Juarbe-Angueira, 831 F.2d at 14, especially where other evidence clearly points in the same direction.

Third, Ortiz attempts to estop defendants from asserting a Branti/Elrod defense by pointing to the putative assurance made to him by Mayor Caraballo in August 1991, that the OFP directorship was not a “trust” position, see supra p.2. Even this evidence is not hefty enough to ward off summary judgment, however.

For one thing, application of the equitable estoppel doctrine against governmental entities, including municipalities, is narrowly circumscribed. See Heckler v. Community Health Servs. of Crawford County, 467 U.S. 51, 60-62, 104 S.Ct. 2218, 2224-25, 81 L.Ed.2d 42 (1984). Moreover, any attempt to interpose estoppel as a bar to the Branti/Elrod defense must fail, since reliance on the Caraballo representation would not have been objectively reasonable in the circumstances. See United States v. Javier Angueira, 951 F.2d 12, 16 (1st Cir.1991) (noting that even if estoppel is available against governmental entity, “ ‘the party raising the [estoppel] defense must have reasonably relied on some “affirmative misconduct” attributable to the sovereign.’”) (citations omitted); AE. Alie & Sons v. United States Postal Serv., 897 F.2d 591, 593 (1st Cir.1990) (same).

Immediately prior to his appointment to the OFP directorship, Ortiz, concededly a “political activist,” served for three years as City assemblyman, a position which would have brought all City ordinances within his constructive knowledge. See Texaco, Inc. v. Short, 454 U.S. 516, 531 n. 25, 102 S.Ct. 781, 793 n. 25, 70 L.Ed.2d 738 (1982) (noting that all persons are charged with knowledge of the provisions of duly enacted statutes/ordinances); Deibler v. City of Rehoboth Beach, 790 F.2d 328, 331 (3d Cir.1986) (same); cf. Good v. Dauphin County Social Servs. for Children and Youth, 891 F.2d 1087, 1091 (3d Cir.1989) (reasonably competent government officials should know laws governing their conduct). Similarly, Ortiz admitted to having served for four years in a previous “trust” position, as Regional Director of the Admin-istración de Derecho al Trabajo, making it highly unlikely that he was not on actual notice of P.R. Laws Ann. tit. 3, § 1351, or of the fact that municipalities were required to designate certain “trust” positions by ordinance.

Fourth, without citing either authority or a policy rationale, Ortiz argues that the OFP directorship cannot be considered a “political” position since there is no requirement that the municipal assembly approve the mayor’s selection for the post. We think this far too thin a reed to warrant rejection of the traditional Branti ¡Elrod criteria. Many “political” appointments (e.g., to the executive staff of a governor or mayor) are not subject to legislative approval, a requirement which correlates more closely to the issue of political accountability in the legislative branch, than to the partisan political attributes of an executive position.

Finally, Ortiz insists that the OFP directorship duties actually performed by him under Mayor Caraballo were merely administrative and technical, that Caraballo alone decided how federal funds were to be spent, and that Ortiz merely informed the mayor regarding the administrative status of federal funding applications. These claims are insufficient to overcome the well-supported legal determination, see supra pp. 14-16, that the OFP directorship is a “political” position. At most, Ortiz’ contrary characterizations, fully credited, establish the services actually rendered by Ortiz while he served as the director, as distinguished from the responsibilities inherent in the position itself. Cf. Mendez-Palou 813 F.2d at 1258 (actual duties not as probative as inherent duties). As the ultimate issue presented is one of law, rather than fact, McGurrin Ehrhard, 867 F.2d at 93, summary judgment was warranted on the political discrimination claim.

C. Due Process Claim

Ortiz advances essentially the same arguments as support for the due process .claim: that he had a legitimate expectation of continued employment under commonwealth law, which gave rise to a “property right” entitling him to a pretermination hearing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The pretermination process due a government employee is a matter of federal law, see Rivera-Flores v. Puerto Rico Tel. Co., 64 F.3d 742, 749 (1st Cir.1995), whereas the preliminary question whether a government employee possessed a protectable “property right,” or a legitimate expectation of continued employment, is controlled by the employment contract or state law. See id.

Since Ortiz’ employment contract included a clause permitting his unilateral, unconditional termination by the mayor at any time, commonwealth or local law would be the only possible basis for an actionable claim to continued employment. Accordingly, Municipal Ordinance No. 3 is dispositive of the due process claim, since it designates the OFP directorship as a “confidential” position, pursuant to P.R. Laws Ann. tit. 3, § 1351. The Personnel Act in turn defines “confidential” appointees as, inter alios, “those who intervene or collaborate substantially in the formulation of public policy, who advise directly or render direct services to the head of the agency,” and are subject to “free selection and removal.” Id. § 1350. Thus, Ortiz had neither a property right nor a contract right to continued employment as OFP Director, and defendant-appellee Rivera was under no constitutional obligation to afford him a pre-termination hearing.

Ill

CONCLUSION

The claims for damages are barred under the doctrine of qualified immunity, because Ortiz failed to demonstrate that it was “clearly established” that the OFP directorship was not a “political” position. See Mendez-Palou, 813 F.2d at 1259-60. Furthermore, since we conclude as a matter of law that the OFP directorship was indeed a “political” position, the claims for damages and reinstatement are foreclosed on the merits. Finally, the due-process claim fails because Ortiz possessed no right to, or reasonable expectation of, continued employment as OFP director.

The judgment is affirmed; costs to ap-pellees.

APPENDIX A

LAWS OF PUERTO RICO ANNOTATED

TITLE THREE. EXECUTIVE

CHAPTER 51. PUBLIC SERVICE PERSONNEL

SUBCHAPTER V. PERSONNEL ADMINISTRATION SYSTEM; STRUCTURE

§ 1350. Confidential employees

Confidential employees are those who intervene or collaborate substantially in the formulation of the public policy, who advise directly or render direct services to the head of the agency, such as:

(1) Officers appointed by the Governor, their personal secretaries and drivers; as well as their executive and administrative assistants who answer directly to them.

(2) Heads of agencies, their personal secretaries and drivers; as well as their executive and administrative assistants who answer directly to them.

(3) Assistant heads of agencies and their personal secretaries and drivers.

(4) Regional directors of agencies.

(5) Personal secretaries and drivers of officials selected by popular election, as well as their assistants who answer directly to them.

(6) Members of boards or standing committees appointed by the Governor and their respective personal secretaries.

(7) Members and personnel of boards or commissions appointed by the Governor having a specific period of effectiveness.

(8) Personnel of the offices of the Puerto Rico Ex-Governors.

Confidential employees shall be of free selection and removal. Likewise confidential shall be those employees who though of free selection may be removed only for good cause by provision of law or those whose appointment is for a term pre-fixed by law.

Every regular employee in a career position who is appointed to a confidential position shall be entitled to be reinstated in a position equal or similar to the last one he held in the career service.

      . The certification lists five responsibilities: (1) “[t]o direct, coordinate and supervise all the operations of the Federal Programs Office”; (2) ''[t]o see to the compliance and good functioning of said Office"; (3) “[t]o submit all the corresponding reports to the Municipal Services Administration Program, the State Agency delegated upon by the C.D.G.B. Program”; (4) "[t]o take part in seminars and training that are offered on the Federal Programs as well as to accompany the Mayor in all matters concerning the Program”; and (5) "[t]o perform other similar duties as assigned.”

      . We assume, without deciding, that there is sufficient competent evidence that political affiliation motivated the dismissal.

      . See id. (noting that the first prong of the Jimenez Fuentes test was readily met where the municipal department for which plaintiff worked was responsible for developing and implementing public works programs, since "[ejections often turn on the success or failure of the incumbent [administration] to provide these services”); Jimenez Fuentes, 807 F.2d at 242 (finding that regional director of commonwealth housing department, charged with ameliorating housing conditions among low and middle income families, was a position "relate[d] to partisan political interests”); accord Juarbe-Angueira v. Arias, 831 F.2d 11, 15 (1st Cir.1987) ("Where, how, and when the government will repair or reconstruct public buildings, ... when and where money is to be spent, may well be a matter of considerable interest to ... political leaders.”), cert. denied, 485 U.S. 960, 108 S.Ct. 1222, 99 L.Ed.2d 423 (1988); Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir.1987) (finding Administration for Environmental Quality Board engaged in a "politically-sensitive mission” for purposes of Brand /Elrod analysis).

      . Ortiz also contends that the first prong of the Jimenez Fuentes test should focus upon the City as the pertinent "department or agency,” not on the OFP. Ortiz does not contend that this shift in focus would alter the first-prong inquiry itself, since under either scenario the City or the OFP would have to undertake the politically sensitive mission of allocating federal funds among various constituencies within the municipality. He argues, instead, that the shift in focus could affect the inquiry under prong two, see infra Section II.B.3(b), since Ortiz could then be viewed as a subordinate City official rather than the head of the first-prong "department or agency” (i.e., the OFP). Be that as it may, the attempt to distance Ortiz from political decisionmaking not only distorts the function of the second-prong inquiry under Jimenez Fuentes, but runs counter to our precedent in O'Connor, where we focused the inquiry under prong one upon the municipal department of public works, rather than the municipality. See O'Connor, 994 F.2d at 907-08; supra note 3.

      . The district court relied on the lack of a written job description as probative evidence that the OFP directorship is a “political" position. Ortiz Pinero, 900 F.Supp. at 580 (citing Mendez-Palou, 813 F.2d at 1262-63 (" ‘[A]n employee with responsibilities that are not well defined or are of broad scope more likely functions in a policy-making position.'") (citing Elrod, 427 U.S. at 368, 96 S.Ct. at 2687)). But since the City had adopted no job description for any position, cf. supra note 1, and it obviously could not reasonably be inferred on that basis that all City positions are "political," we give no weight to such an inference in the present context.

      . See, e.g., O'Connor, 994 F.2d at 911 ("[Wjhat-ever difficulties we might face in applying the second prong of the Jimenez Fuentes test to subordinate positions within the Department, the Superintendent’s ‘inherent responsibilities’ ... plainly ‘ "had a bearing on the partisan goals and policies" ’ of the Department as a whole.”) (citations omitted); De Choudens, 801 F.2d at 9-10 (noting that it would have been much more likely that the position would be considered "political" had plaintiff been president of the bank, rather than senior vice-president); cf. Juarbe-Angueira, 831 F.2d at 15 (finding it not "clearly established" that regional directorship of public building authority was other than a "political” position, even though it involved only a " 'modicum' of 'policymaking responsibility,' ” given that supervisory position was "moderately-high-level position within the agency”).

      .Ortiz points out that he supervised an OFP staff of only four persons (accountant, secretary, and two clerks). As we have noted, however, the relative staff size, not its absolute size, affords the more illuminating insight. See, e.g., O’Connor, 994 F.2d at 911 n. 3 (noting that, on per-capita basis, plaintiff's supervision of smaller municipality-level staff may be equivalent to supervision of much bigger staff in a larger municipality); McGurrin Ehrhard, 867 F.2d at 95 (finding position '‘political" even though plaintiff supervised four-person regional office, where satellite branch was but one of two such offices in Massachusetts).

      . We reject the contention that the April 1993 certification of duties issued by the City personnel department, see supra note 1, is without any probative force because it is unsigned and was not prepared until after Ortiz left office. Of course, an OP-16 signed by the employee has added probative value since it constitutes the employee’s contemporaneous “admission” concerning the duties inherent in the position. But it does not follow that the unsigned certificate, by which the City prospectively commits itself to its description of the duties inherent in the OFP directorship, is without probative weight. Although we have noted that an unsigned OP-16 may leave a factual dispute as to its authenticity, see Romero Feliciano, 836 F.2d at 3-4, Ortiz asserts no challenge either to the authenticity or the validity of the certification. Nor did we suggest in Romero Feliciano that such evidence should be completely discounted in a trial on the merits.

      . See Jimenez Fuentes, 807 F.2d at 246 (noting that “political” position holders, like directors, "monitor the progress of the agency’s programs and thus gauge the success of the Administration’s ... policies”); cf Mendez-Palou, 813 F.2d at 1260 (finding it relevant that plaintiff "represents the President in activities ... [and gives] top level counselling [to] the President”).

      . See McGurrin Ehrhard, 867 F.2d at 94 (noting that plaintiff did not have "final authority to hire or fire employees, [but] she had ‘input’ ”); Jimenez Fuentes, 807 F.2d at 245 ("That Regional Directors do not have final decision-making authority is not determinative .... ‘because such positions [i.e., directorships] are a natural source of influential recommendations of changes in policy.'") (citation omitted).

      . Section 1351 of the Personnel Act provides, in pertinent part:
      1. Each [commonwealth] agency shall present for approval of the [Central] Office [of Personnel Administration] a plan containing the confidential positions by which it desires to operate. In the case of municipalities, the Municipal Assembly shall follow the ordinance or resolution approving the plan submitted by the mayor and shall send it to the Office for the sole purpose of ascertaining that the provisions of section 1350 of this title have been complied with.

      P.R. Laws Ann. tit. 3, § 1351 (emphasis added).

      . We recognize that the burden of proof normally shifts to the governmental entity to establish that the substantive requirements of its enactment comport with the First Amendment. But we have found no authority, nor can we discern any sound reason, for shifting the burden of proof where the challenging party alleges only procedural irregularities of nonconstitutional dimension in an ordinance-enactment process. See, e.g., Friends of the City Market v. Old Town Redev. Corp., 714 S.W.2d 569, 575 (Mo.Ct.App.1986) ("Ordinances are presumed to have been adopted in accordance with the requirements of the law_”).

      . We note, as a threshold matter, that its admissibility is far from clear. See Fed.R.Civ.P. 56(e). Even assuming that former Mayor Caraballo could bind the City by his representations, see Fed.R.Evid. 801 (permitting "admissions” of party-opponent ), it is extremely problematic whether the successor mayor, defendant Rivera, can be bound, especially since the very nature of the § 1983 claim made by Ortiz appears to preclude any characterization of former Mayor Caraballo as a party "opponent." As this evidence is otherwise deficient, however, we need not determine its competence at this time.


author: LYNCH, Circuit Judge.

text:
    Basimah R. ABDULLAH, et al., Plaintiffs-Appellants, v. COMMISSIONER OF INSURANCE OF the COMMONWEALTH OF MASSACHUSETTS, et al., Defendants-Appellees.
    No. 95-2316.
    United States Court of Appeals, First Circuit.
    Heard May 7, 1996.
    Decided May 20, 1996.

      Jack E. Robinson, with whom Carpenter & Robinson, LLP, was on brief, for appellants.
    Judith Fabricant, Assistant Attorney General, with whom Scott Harshbarger, Attorney General, E. Michael Sloman and Meyer, Connolly, Sloman & MacDonald, Boston, MA were on brief, for appellees.
    Before LYNCH,. Circuit Judge, COFFIN, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

       Of the Seventh Circuit, sitting by designation.

   LYNCH, Circuit Judge.

Plaintiffs mounted a facial challenge to the constitutionality of the Massachusetts statute requiring the Massachusetts Commissioner of Insurance to establish at least fifteen territories for use in classifying risks for setting automobile insurance rates. Mass.Gen. L. ch. 175E, § 4(d). It is claimed this requirement is irrational on its face and thus violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs also assert that the statute on its face results in an unconstitutional taking in violation of the Fifth and Fourteenth Amendments.

Plaintiff Basimah Abdullah fives in the Roxbury section of Boston and is aggrieved that policy holders who live in Roxbury, a mostly poor community of color, may pay automobile insurance rates more than two and a half times those paid by policy holders with similar driving records who live in Wellesley, Massachusetts, an affluent suburb of Boston. She is joined as plaintiff by the National Association of African Americans, Inc. After considering cross-motions for summary judgment on stipulated facts, the district court granted the defendants’ motion and denied the plaintiffs’ motion. We affirm.

It is important to be clear about the challenge plaintiffs have chosen to mount. This is a facial challenge to the statute. Plaintiffs have stipulated that no fundamental right is involved in the litigation and their challenge does not involve claims of race discrimination. They do not challenge the group discount provisions of the insurance regulatory scheme, although they do attempt to bring those issues to the attention of the court. Plaintiffs have appropriately stipulated that insurance risk does correlate with the territory in which the insured lives. In light of these stipulations and the very narrow review available in a constitutional challenge to economic regulation by a state, grant of summary judgment in favor of the defendants was plainly correct.

The challenged statute requires:

For motor vehicle insurance rates, the commissioner shall establish a classification of risks which shall include a designation of not less than fifteen territories.

Mass.Gen. L. ch. 175E, § 4(d).

In order to prevail, the plaintiffs would have to show that the establishment of a minimum of fifteen territories for use in classifying automobile insurance risks could not be rational. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984). Indeed, plaintiffs would have to show that no set of circumstances exist under which the statute could be validly applied. See Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 1446, 123 L.Ed.2d 1 (1993) (facial attack on due process grounds). Plaintiffs make two arguments, both demonstrating a misunderstanding of the role of the federal courts in reviewing state economic regulation. They argue that because there is no legislative history setting forth the statute’s purpose and because the statute allegedly results in unfairness it is unconstitutional.

Plaintiffs seek to reverse the burdens in constitutional economic regulation igation by saying that the state, in a situation where no fundamental rights are involved, must provide legislative history explaining the purpose of its choice of classifications. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500-04, 109 S.Ct. 706, 725-27, 102 L.Ed.2d 854 (1989) (when legislature employs suspect classification, court reviews legislative findings to support the discrimination visited). In the absence of legislative history plainly explaining the purpose of an economic regulatory provision, the plaintiffs posit, the statute must be presumed to be irrational. But there is no such requirement and no presumption. The Constitution does not impose on state legislatures the requirement of creating a legislative history record to justify economic regulatory legislation. See FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993) (“we never require a legislature to articulate its reasons for enacting a statute”).

Plaintiffs who claim a statute is irrational bear the burden of showing that it is so. Id. (“[T]hose attacking the rationality ... have the burden to negative every conceivable basis which might support it.” (internal quotation omitted)). That showing of irrationality is not made by simple arguments of perceived unfairness. The statutory scheme must stand so long as it bears “some rational relationship to a legitimate state purpose.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16 (1973). We cannot say that on its face the legislative choice of requiring at least fifteen territories is irrational. It is evident that insureds in different territories pose different risks and it is rational to permit the insurance companies to set premiums to reflect those different risks. The choice by the legislature to mandate the establishment of at least fifteen territories may reflect a judgment that that number will provide some approximate reflection of the proper number of categories into which this type of risk should be divided. That the state has chosen to classify purchasers into groupings based on objective characteristics and to use such groupings as a base on which to set rates is surely rational and promotes a more equitable insurance system.

In fact, the Commissioner has chosen to create 27 territories, a decision which is also rational on the theory that somewhat more territories more closely reflect the risk associated with the residents of those territories. The parties have appropriately stipulated that the risk of- loss “varies according to the town in which the [insured] vehicle[] [is] principally garaged.”. They have also stipulated that each state uses some form of territorial subdivision system to set rates and such use of territorial assignment has existed in this country since 1917. Prior rate-setting schemes in Massachusetts, also implementing some form of territorial system, have twice been held constitutional by the state courts. See Doherty v. Commissioner of Ins., 328 Mass. 161, 102 N.E.2d 496 (1951); Brest v. Commissioner of Ins., 270 Mass. 7, 169 N.E. 657 (1930).

The scheme itself has been tested in a manner consonant with democracy. Prior unhappiness about the territorial rating system once led to an initiative petition which would have abolished the use of territories. The voters rejected the petition by a margin of three to one. Commonwealth of Massachusetts Election Statistics, Pub. Doc. No. 43, at 343-45 (1950). The Commissioner establishes territories in a public proceeding which is subject to judicial review, and we do not understand plaintiffs to complain about these procedures. Indeed, the federal courts would abstain from considering the constitutionality of a particular decision of the Commissioner defining the territories or setting particular rates. See Allstate Ins. Co. v. Sabbagh, 603 F.2d 228, 233 (1st Cir.1979) (affirming decision of district court to abstain from such a suit due to intensity of local interest and because Massachusetts had “indicated the importance it place[d] on coherency by concentrating review of all regulatory decisions in one court”).

Even consideration of the facts surrounding Ms. Abdullah’s individual situation does not establish the irrationality of the statute. The territory in which Ms. Abdullah lives, the Roxbury section of Boston, does reflect greater insurance risks than the territory she has chosen as a comparator, the territory including the town of Wellesley, Massachusetts. The parties agree that in 1993, the Roxbury territory, Territory 22, had 3.5 times the state average of bodily injury claims, while the Wellesley territory, Territory 2, had half the claims. Further, if one looks at bodily injury per 100 accidents, the statewide average was 30.6. The territory in which Ms. Abdullah lives had 56.6 bodily injuries per 100 accidents, while the Welles-ley territory had 17.4. As a final example, although insurance coverage for theft is not compulsory (see Mass.Gen. L. ch. 90, §§ 34A, 34B, 340; ch. 175, § 1130), in the Roxbury territory, the theft rate is five times the state average, while the rate in the Wellesley territory is one-half the state average. These statistics support the rationality of the statutory scheme.

Plaintiffs’ efforts to bootstrap their Equal Protection claim into some form of takings analysis is neither supported by the case law nor the facts. Plaintiffs argue that because some ratings schemes have been held unconstitutionally confiscatory to the insurance company if the scheme deprives the company of an opportunity to achieve a fair return, see Aetna Casualty & Sur. Co. v. Commissioner of Ins., 358 Mass. 272, 263 N.E.2d 698, 703 (1970), Ms. Abdullah may assert a claim that the premiums she pays as an insurance purchaser are so high as to be unconstitutionally confiscatory. Without accepting the premise of the argument or its leap from the property rights of a regulated insurance company to the premiums paid by an insured, the argument suffers from fatal flaws. The facts asserted in support of the argument are not properly before us. Ms. Abdullah states in her brief before this court that she pays more than one-third of the value of her car to insure it each year. This, she says, effectively denies her the use of her automobile, as the Massachusetts legislature requires that automobiles be insured in order to be operated on á public way. See Mass. Gen. L. ch. 90, § 34B. And without a car, Ms. Abdullah says, her constitutional right to travel is infringed. However, the parties agreed to litigate this case on stipulated facts. The only facts with respect to Ms. Abdullah’s personal circumstances that are properly before us are that she “resides ... in the Roxbury section of Boston,” that she “owns a private passenger automobile which is garaged in Roxbury and is insured ... under the compulsory automobile insurance laws of the Commonwealth,” and that the average rate for the standard package of insurance was higher in the Roxbury territory than in the Wellesley territory.

Even were there facts in the record to support Ms. Abdullah’s claim, the argument collapses because a foundational piece is missing. The statutory provision under attack does not per se result in any particular rate being set or premium being charged. It simply requires that there be at least fifteen territories used in assessment of risk factors, and plaintiffs do not attempt to show that any possible designation of fifteen or more territories would result in a confiscatory rate for Ms. Abdullah. Moreover, other risk factors such as driver class (which includes number of years of driving experience) and group discounts also go into the assessment of an individual’s rates. The facts before the court do not establish a causal connection between the statute facially attacked and the rates claimed to be confiscatory. In essence, plaintiffs argument inappropriately asks us to turn this facial challenge to the statute into an as applied challenge. Cf. Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 494-95, 107 S.Ct. 1232, 1246-47, 94 L.Ed.2d 472 (1987) (in facial challenge, “mere enactment” of the statute must deprive plaintiff of economically viable use of her real property); Gilbert v. City of Cambridge, 932 F.2d 51, 56 (1st Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 192, 116 L.Ed.2d 153 (1991).

Plaintiffs’ claim at bottom is that the system is unfair. It may or may not be. There is evidence submitted by the defendants that in fact the Commissioner has required certain non-urban areas essentially to subsidize the insurance of persons, such as Ms. Abdullah, living in highly urban areas. Importantly, however, the question of fairness is not properly addressed to this court. Those arguments should be made to the state insurance regulatory authorities or to the Massachusetts legislature or directly to the citizenry through the petition process. Our review is restricted to whether there is any rational basis for this scheme. There is, and the constitutional challenge must fail.

For these reasons, the decision of the district eourt is affirmed.