a court to consider the place where the subpoena was issued. See La Rouche 613 F.2d at 857. Respondents also claim that the shift of authority to the District of Columbia was merely an attempt to buttress the propriety of a Washington enforcement proceeding. The mere change of a label as to who has authority over an agency matter should not be determinative as to jurisdiction, and although it appears that the Washington office delegated some authority to San Antonio, significantly it retained ultimate control over the Tesoro audit. Thus, both San Antonio and Washington may be proper places to bring this action. See La Rouche, 613 F.2d at 858 n.9.
It is reasonable, accordingly, to conclude that the inquiry is being carried on in the District of Columbia. With proper jurisdiction in this court, the motions to dismiss for lack of subject matter jurisdiction and for a change of venue will be denied.
Respondents have moved to modify the Order to Show Cause to allow limited discovery of OSC on the issues of good faith, harassment, and jurisdiction. Respondents bear a heavy burden to show very good cause or extreme circumstances justifying further inquiry into the propriety of the subpoena. Securities and Exchange Commission v. Dresser Industries, Inc., 202 U.S. App. D.C. 345, 628 F.2d 1368, at 1371 (D.C.Cir.1980); United States v. Exxon Corp., 202 U.S. App. D.C. 70, 628 F.2d 70 at 77 n.7 (D.C.Cir.1980).
It is not unusual for allegations of bad faith, harassment, and improper purpose to be made against regulatory agencies in connection with administrative investigations, which claims must be buttressed with specific facts. United States v. Church of Scientology, 520 F.2d 818, 824 (9th Cir. 1975); United States v. Salter, 432 F.2d 697, 700 (1st Cir. 1970).
Simply declaring that the subpoena was issued for an improper purpose, i. e., to force Tesoro to make concessions on discovery matters not covered by the subpoena, and that OSC is enforcing the subpoena because Tesoro has not been willing to comply with OSC's requests for voluntary production of materials, falls short of meeting respondents' heavy burden to prove that special circumstances justify discovery here.
Respondents' affidavits do not demonstrate that OSC has acted improperly. The agency's desire to enforce the subpoena arose after negotiations over the subpoena could not produce a settlement satisfactory to OSC. There appears to be no harassment, bad faith, or improper purpose in this circumstance where the agency's attempt to settle the dispute has not succeeded to its satisfaction.
It is unquestioned that the Court can modify the terms of the subpoena to avoid overbreadth. United States v. Exxon Corp., 202 U.S. App. D.C. 70, 628 F.2d 70 at 77 (D.C.Cir.1980). Specifications 7 and 8 of the subpoena do appear unusually broad, seeking "all documents which set forth or relate to each of Tesoro's transactions" for certain periods. Petitioner's counsel has indicated that these specifications seek those materials kept pursuant to 10 C.F.R. § 210.92, which Tesoro is required by the Regulations to turn over in the event of a DOE audit. To avoid confusion and to proceed more reasonably, yet in keeping with its purpose, specifications 7 and 8 of the subpoena will be enforced to the extent they request records kept by Tesoro pursuant to applicable regulations.
Petitioner, through counsel, has requested that Tesoro index the documents provided to avoid inability to identify them with the appropriate subject area. Although the court agrees with Tesoro's position that it is not charged with doing the petitioner's auditing work, nor does it have to index thoroughly or cross-reference the documents it produces, it is also evident that enormous production without some comprehensive, related flagging of its contents is a disservice to all, showing only token obeisance to the letter of the law, if even that. To facilitate compliance with the aims of the subpoena, Tesoro will be directed to identify each document, but only in such manner as to make immediately obvious to the reader the specification or subspecification pursuant to which that document is produced. This requirement is, of course, in addition to any other indexing requirements otherwise mandated.
The petition for enforcement of the subpoena will be granted subject to the qualifications noted in this Memorandum Opinion. The motions to dismiss for lack of jurisdiction, change of venue, and limited discovery shall be denied.