Cudahy Packing Co. v. Fleming

• Decision Date: 03 November 1941
• Docket Number: No. 11956.,11956.
• Citation: 122 F.2d 1005
• Parties: CUDAHY PACKING CO. v. FLEMING.
• Court: U.S. Court of Appeals — Eighth Circuit

122 F.2d 1005 (1941)

CUDAHY PACKING CO. v. FLEMING.

No. 11956.

Circuit Court of Appeals, Eighth Circuit.

October 11, 1941.

Rehearing Denied November 3, 1941.

William C. Green, of St. Paul, Minn. (Thomas Creigh and John L. Church, both of Chicago, Ill., on the brief), for appellant.

Roy C. Frank, of Washington, D.C., Atty., United States Department of Labor (Gerard D. Reilly, Solicitor, and Irving J. Levy, Asst. Sol., both of Washington, D.C., Donald M. Murtha, Regional Attorney, of Minneapolis, Minn., and Robert S. Erdahl, Atty., United States Department of Labor, David Persinger, and Westley W. Silvian, all of Washington, D.C., Attys., on the brief), for appellee.

Before STONE, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The Cudahy Packing Company operates two meat-packing plants in the State of Minnesota, one at St. Paul and the other at Newport. It admits that it is engaged in interstate commerce at its Newport plant, but contends that the business of the St. Paul plant is intrastate only.

The Acting Regional Director of the Wage and Hour Division for the Minnesota area, claiming to have reasonable grounds to believe that the Company was violating the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 201 et seq., directed an investigation to be made at both its plants, under § 11 of the Act. The Company refused to allow access to its records at either plant, unless the Wage and Hour Division "would advise the names of any employees concerning whom complaint had been made", when it would produce the record as to such particular employees only.

The Acting Regional Director thereupon issued a subpoena duces tecum, under § 9 of the Act, requiring the Company to appear and produce the records of both the Newport and St. Paul plants, covering the wages paid to all of its employees, and the hours worked by each, from October 24, 1938, when the Act became effective, to November 16, 1940. The subpoena further required the production of all records of shipments into and out of both plants for the same period. The Company refused to obey the subpoena.

The Administrator then made application to the District Court, under § 9 of the Act, for an order to enforce compliance with the subpoena. On an order to show cause, the Company challenged the validity of the subpoena and the Administrator's right to seek enforcement of it. After a hearing, the District Court entered an order requiring the Company to comply with the subpoena, and the Company has appealed.

The first contention urged for reversal is that the District Court was without jurisdiction to enforce compliance with the subpoena, because the application was not filed by the Attorney General, nor was the proceeding shown to have been subject to his direction and control.

Section 4(b) of the Act provides that "Attorneys appointed under this section may appear for and represent the Administrator in any litigation, but all such litigation shall be subject to the direction and control of the Attorney General". In this case, as in all other such proceedings under the Fair Labor Standards Act appearing in the printed reports, the application was made by the Administrator through regular attorneys of the Wage and Hour Division. In none of the reported cases has the right of the Administrator's legal staff to appear thus for him ever been judicially denied. Such an application is, of course, not a proceeding in mandamus, and the provision of the statute¹ relating to the jurisdiction of the district courts to issue writs of mandamus upon the application of the Attorney General obviously does not apply.

The general contention that all litigation under the Fair Labor Standards Act must be instituted by the Attorney General was specifically considered in Lowell Sun Co. v. Fleming, Administrator, 1 Cir., 120 F.2d 213, and Fleming, Administrator v. Lowell Sun Co., D.C.Mass., 36 F.Supp. 320, and was decided adversely to appellant's present contention. There is no need to repeat the details of the argument here. We agree with the view expressed in those two decisions, that the power conferred upon the Attorney General under § 4(b) of the Act, to direct and control all litigation in which the Administrator is involved, is permissive and not mandatory, and that the manner and extent of his participation are wholly a matter of his official option. It may be added that appellant's present contention was urged also in Cudahy Packing Company of Louisiana v. Fleming, Administrator, 5 Cir., 119 F.2d 209, and seemingly was there regarded as not even meriting judicial comment, since it is not discussed in the opinion.

But it is said that the evidence shows that the present situation was one in which the Attorney General had specifically required that he be given notice by the Administrator, and that the District Court therefore had no right to permit the Administrator to proceed, without proof that notice had actually been given and that the Attorney General had consented to the continued handling of the matter by the legal staff of the Wage and Hour Division. This argument bases itself upon a provision in a letter from the Attorney General to the Administrator, which is in the record and which states: "The legal staffs of your Administration will handle your legal work, including litigation in the courts of a civil character, with the agreement that notice will be given to the Attorney General in any case involving an issue of constitutionality or if it is carried by any party to the court of last resort of any state or territory or to the Circuit Court of Appeals of the United States."

We find nothing in this interdepartmental arrangement that can in any way be said to be intended to prevent the Administrator from instituting a proceeding, such as the present one, through his own legal staff. Certainly, no case "involving an issue of constitutionality" can be claimed to exist until after the proceeding has been filed. The proceeding here thus being properly instituted, the court necessarily acquired jurisdiction of it, and the statute imposed no restriction upon the judicial right thereafter to proceed.

The situation is hardly analogous to that under 28 U.S.C.A. § 401, where the court itself is required to give notice to the Attorney General in any case in which "the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party". While the letter of the Attorney General to the Administrator may be presumed similarly to be intended to have application only to situations where the validity of some portion of the Fair Labor Standards Act is being attacked, and not to claimed invasions of private rights by allegedly unwarranted action beyond the scope of the statute, — to which appellant seeks to apply it here — the matter is, in any event, and whatever may be the scope of its intended application, a purely interdepartmental arrangement or relationship in an administrative field, as to which the judiciary owes no duty and should not undertake to engage in collateral inquiry. The particular question can hardly be said to be of great moment here, and perhaps our discussion of it has been longer than it soundly merits, but it may possibly serve to emphasize a caution as to the imaginary responsibility of the judiciary in the field of administrative duties. Administrative functions and relationships are no concern of the judiciary, unless fundamental rights are being violated, or unless the statute has imposed a specific duty on the courts with respect to them.

The next contention of appellant is that the subpoena here sought to be enforced is void, because it was signed by an Acting Regional Director, and not by the Administrator personally. The argument is that, since the right to issue a subpoena under § 9 of the Fair Labor Standards Act is governed by the provisions of § 9 of the Federal Trade Commission Act, 15 U.S.C. A. § 49, and since under the latter section subpoenas can only be issued by one of the Commissioners, it logically follows that all subpoenas under the Fair Labor Standards Act must be signed by the Administrator personally, and that the power cannot be delegated. But § 9 of the Fair Labor Standards Act was inserted by a conference committee of the Senate and the House concurrently with § 4(c), and, on the question here involved, we think the two sections must have been intended to have a complementary relationship. Section 4(c) provides that "The principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place". The power of Congress to permit a delegation of the right to issue subpoenas certainly is not open to question, and Congress also clearly must be said to have recognized the existence of the probable need therefor in the field of administrative process, as in the case of the Securities Exchange Commission, 15 U.S.C.A. §§ 77 uuu(a), 79r(c); the Federal Power Commission, 15 U.S.C. A. § 717m(c), 16 U.S.C.A. § 825f(b); the Federal Communications Commission, 47 U.S.C.A. § 409(a); and the United States Maritime Commission, 46 U.S.C.A. § 1124.

The issuance of a subpoena for the purpose of obtaining access to authorized data and records, in carrying out the provisions of § 11(a) of the Act, is, in administrative effect, a mere implementation of the power of inspection conferred by that section. The mere issuance of such a subpoena cannot be claimed to violate any fundamental right of the employer, since it can only be enforced by application to the District Court for a compliance order, and a judicial approval of the right, under the statute, to demand the required action. When thus viewed and the fact considered...