Fenton v. Walling

• Decision Date: 01 February 1944
• Docket Number: No. 10438,10439.,10438
• Parties: FENTON v. WALLING, Administrator of Wage and Hour Division, United States Department of Labor. SMITH v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

139 F.2d 608 (1943)

FENTON v. WALLING, Administrator of Wage and Hour Division, United States Department of Labor. SMITH v. SAME.

Nos. 10438, 10439.

Circuit Court of Appeals, Ninth Circuit.

December 30, 1943.

Rehearing Denied February 1, 1944.

Louis Ferrari, G. D. Schilling, Kenneth M. Johnson, and Philip S. Ehrlich, all of San Francisco, Cal., for appellants.

Douglas B. Maggs, Sol., Wage and Hour Division, U.S. Dept. of Labor, Irving J. Levy, Associate Sol., Bessie Margolin, Asst. Sol., and Morton Liftin and Joseph I. Nachman, Attys., all of Washington, D. C., and Dorothy M. Williams, Regional Atty., Wage and Hour Division, U.S. Dept. of Labor, of San Francisco, Cal., for appellee.

Before WILBUR, MATHEWS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

Involved here are two appeals from orders adjudging appellants severally guilty of contempt and committing them to the custody of the marshal until they should purge themselves thereof.

Appellee, as administrator of the Wage and Hour Division of the Department of Labor, instituted suit in the court below against the Bank of America National Trust & Savings Association, pursuant to the authority given by § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, 29 U.S.C.A. § 217, to restrain violations of the overtime and record-keeping provisions of the Act. The Bank moved for a dismissal of the complaint and its motion was denied. It then filed an answer, presumably denying, among other things, that it is amenable to the Act.¹

The case being at issue and ready for trial, appellee served notice on the Bank that the deposition of appellant Fenton would be taken by oral examination on a specified date, and subpoena to this end was served on Fenton. The latter is a vice president of the Bank and for the previous eighteen months had been chairman of its operating committee, prior to which time he had been personnel director. During the course of the examination Fenton was questioned concerning the nature of the wage and hour records kept, and the hours worked by and compensation paid to the Bank's employees. On instruction from the Bank's counsel Fenton declined to answer the questions. Appellee applied to the court, pursuant to Rule 37(a), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for an order compelling the witness to answer. After a hearing, Fenton was directed by the court to answer the questions, but again declined to do so.

While these events were in progress, appellee, pursuant to Rule 34 (relating to discovery and the production of documents), filed and served on the Bank a motion for an order directing the Bank to produce, and to permit appellee to inspect and copy, certain documents concerning the hours worked by and compensation paid to employees of the Bank.² After a hearing on the motion the court ordered the Bank, on a specified date at its main office, to produce and permit the inspection of the documents referred to. Appellant Smith, who was the executive vice president charged with the general administrative supervision and management of the Bank, and who had authority to comply with the court order, refused on appropriate request of counsel for appellee to arrange for the production of these records.

Appellee then instituted contempt proceedings against Smith and Fenton under Rule 37(b). In their verified returns to the show cause orders, the main ground of defense (and the only one urged here) was that the court lacked jurisdiction of the subject matter in that the Bank, so it was alleged, had no employees engaged in interstate commerce, hence was not subject to the provisions of the Fair Labor Standards Act. There followed a hearing at the conclusion of which the court found that the failure of Smith and Fenton to obey the orders impaired and impeded the suit and constituted civil contempt. The two were directed to be imprisoned until such time as they were ready to obey the orders. The commitments, however, were stayed by the trial court pending these appeals.

The preliminary question we have to decide is whether the commitment orders are final, hence appealable under the applicable statute, 28 U.S.C.A. § 225(a). Concededly the contempts are civil. "While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public," McCrone v. United States, 307 U.S. 61, 63, 59 S.Ct. 685, 686, 83 L.Ed. 1108. A civil contempt order directed against a party litigant is deemed interlocutory, and is reviewable only on appeal from the final decree in the main action, Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67. On the other hand it appears to be fairly well established that a civil contempt order directed toward a person not a party to the suit is final and appealable, Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997; Nelson v. United States, 201 U.S. 92, 98, 26 S.Ct. 358, 50 L.Ed. 673; Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Butler v. Fayerweather, 2 Cir., 91 F. 458. Two recent Supreme Court decisions, McCrone v. United States, supra, and Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, assume the appealability of such orders.

In support of his motion to dismiss the appeals, appellee argues that appellants are not "strangers" to the main action, but that legally and in fact they represent the party defendant. It is claimed that as representatives of a corporate litigant, they stand in the position of a party regardless of the fact that they were not named as such. Accordingly, it is argued, the orders appealed from are as to them interlocutory in character.

We do not find that the authorities cited support this view.³ The case principally relied on, Heinze v. Butte & B. Consol. Min. Co., 9 Cir., 129 F. 274, does not discuss the point or directly decide it. Other...