C. A. B. v. Deutsche Lufthansa Aktiengesellschaft
| Decision Date | 08 January 1979 |
| Docket Number | No. 78-1851,78-1851 |
| Parties | CIVIL AERONAUTICS BOARD v. DEUTSCHE LUFTHANSA AKTIENGESELLSCHAFT, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William C. Clarke and Steven A. Swerdlow, New York City, were on the brief, for amicus curiae urging Reversal.
G. Nathan Calkins, Washington, D. C., with whom Morris R. Garfinkle, Washington, D. C., was on the brief, for appellant.
Mark H. Gallant, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Barbara Allen Babcock, Asst. Atty. Gen. and Ronald R. Glanz, Attys., Dept. of Justice, Washington, D. C., were on the brief, for appellee.
Before BAZELON, LEVENTHAL and ROBB, Circuit Judges.
Opinion PER CURIAM.
The Civil Aeronautics Board issued a subpoena directing Deutsche Lufthansa Aktiengesellschaft to produce certain documents sought in connection with an investigation of possible violations of the CAB's regulations pertaining to denied boarding ("bumping") of passengers who have confirmed reserved space. Lufthansa failed to comply fully. Upon application by the agency, the district court issued the order under appeal, which directed compliance with the administrative subpoena. We affirm.
In general, this court respects the doctrine that an agency has jurisdiction to determine the scope of its authority, in the first instance, and that such matters will not be determined in a proceeding to enforce a subpoena. FTC v. Texaco, Inc., 180 U.S.App.D.C. 390, 407, 555 F.2d 862, 879 (En banc ), Cert. denied, 431 U.S. 974, 97 S.Ct. 2940, 53 L.Ed.2d 1072 (1977); SEC v. Brigadoon Scotch Distributing Co., 480 F.2d 1047, 1052-53 (2d Cir. 1973), Cert. denied, 415 U.S. 915, 94 S.Ct. 1410, 39 L.Ed.2d 469 (1974). This doctrine is subject to exceptions, as where there is a patent lack of jurisdiction, but we do not find those exceptions to be applicable to the instant case.
Lufthansa, a carrier of German registry, has raised questions concerning the jurisdiction of the agency to regulate bumping practices by foreign airlines at foreign air terminals. The bumpings under investigation were not wholly foreign transactions, since what CAB is investigating are possible violations of regulations that are applicable only in case of a contractual relationship formed by a ticket sale or confirmation within the United States. The withheld documents are pertinent to bumpings on a flight that was destined for this country. In a filed tariff Lufthansa had certified its agreement to comply with these regulations. The CAB regulations are pertinent to the issue of contract liability for failure of performance, 1 and the investigation in this case concerns the extent to which Lufthansa has acted in accordance with its representation of compliance.
Lufthansa presents a contention that foreign law prohibits compliance with the subpoena. The sources cited do not support its argument that enforcement should be denied under the circumstances of this case. The subpoena duces tecum issued by the agency imposes an obligation on petitioner to use all good faith efforts to obtain permission from the German Government for release of the documents. See Societe Internationale Pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). The district court found that Lufthansa had...
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