Virginia Petroleum Jobbers Association v. Federal Power Commission

• Decision Date: 11 December 1961
• Docket Number: No. 427,427
• Citation: 7 L.Ed.2d 339,82 S.Ct. 377,368 U.S. 940
• Parties: VIRGINIA PETROLEUM JOBBERS ASSOCIATION, petitioner, v. FEDERAL POWER COMMISSION et al
• Court: U.S. Supreme Court

368 U.S. 940

82 S.Ct. 377

7 L.Ed.2d 339

VIRGINIA PETROLEUM JOBBERS ASSOCIATION, petitioner,

v FEDERAL POWER COMMISSION et al.

No. 427.

Supreme Court of the United States

December 11, 1961

Rehearing Denied Jan. 22, 1962.

See 368 U.S. 979, 82 S.Ct. 477.

Petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

Denied.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting:

This case raises a very important question which I think we should grant certiorari to settle. That question is whether the Federal Power Commission has authority to refuse to summon a witness to testify to relevant facts in a hearing before it on the ground that the party summoning that witness refuses to compensate him as an expert witness over and above the amount authorized to be paid witnesses in courts under 28 U.S.C. § 1821, 28 U.S.C.A. § 1821.

The issue before the Federal Power Commission was the economic feasibility of a project of the Blue Ridge Gas Company to supply natural gas to Harrisonburg, Virginia. The witness desired was an engineer who had previously prepared a study of the project for Blue Ridge¹ and who had reported to it that the economic feasibility of the project was highly doubtful. The subpoena requested was for the engineer to appear and bring the papers and documents he had already prepared and used in his previous report. This would have been offered to rebut the evidence of Blue Ridge, favorable to the project, given by a second engineer who had been hired by Blue Ridge after the first engineer had given his unfavorable report. Since this evidence was heavily relied on by the Commission in finding that the project was feasible, there can be no doubt that the witness desired, the first engineer, could have given evidence highly relevant to a proper decision of the question before the Commission. Nevertheless, and in spite of the fact that Sec. 6(c) of the Administrative Procedure Act, 5 U.S.C. Sec. 1005(c), 5 U.S.C.A. § 1005(c), provides that agency subpoenas 'shall be issued to any party upon request * * * upon a statement or showing of general relevance and reasonable scope of the evidence sought,' the Commission refused to summon the witness on the ground that petitioner 'should arrange for compensation to be paid to him as an expert witness, and for his voluntary attendance at the hearing.' 21 F.P.C. 901, 902. This petition seeks certiorari to review the decision of the Court of Appeals, 110 U.S.App.D.C. 339, 293 F.2d 527, upholding the Commission.

Since petitioner was willing to pay the fees prescribed for witnesses by Congress in 28 U.S.C. § 1821, 28 U.S.C.A. § 1821, the issue presented here seems to be substantially the same as that in Henkel v. Chicago, St. Paul, Minneapolis, & Omaha R. Co., 284 U.S. 444, 52 S.Ct. 223, 76 L.Ed. 386. There the plaintiff, Henkel, who had recovered a judgment against the railroad under the FELA, asked the court for an order allowing fees above the amounts provided in 28 U.S.C. § 1821, 28 U.S.C.A. § 1821 for ordinary witnesses in order to give extra compensation to expert witnesses who had testified in his behalf. This Court, in an opinion by Mr. Chief Justice Hughes, unanimously held that the only...