Hermann v. Civil Aeronautics Board, 14778.
| Decision Date | 02 August 1956 |
| Docket Number | No. 14778.,14778. |
| Citation | 237 F.2d 359 |
| Parties | Ida Mae HERMANN, Irving E. Hermann, Robert M. Smith, M. B. Scott, Harold Shein, H. C. Richards, George Patterson, Leonard Rosen, Orville Kelman and Captain G. D. Thompson, Appellants, v. CIVIL AERONAUTICS BOARD, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Keatinge, Arnold & Older, Roland E. Ginsburg, Los Angeles, Cal., for appellants.
Laughlin E. Waters, U. S. Atty., Max F. Deutz, Andrew J. Weisz, Asst. U. S. Attys., Los Angeles, Cal., Stanley N. Barnes, Asst. Atty. Gen., Earl E. Pollock, Atty., Dept. of Justice, Washington, D. C., Robert L. Griffith and Robert Burstein, Civil Aeronautics Board, Washington, D. C., for appellee.
Before STEPHENS, FEE and CHAMBERS, Circuit Judges.
This case is related to the enforcement of ten administrative subpoenas duces tecum served upon appellants in the course of a proceeding pending before a hearing examiner of the Civil Aeronautics Board.1 The period covered by the documents required under most of the subpoenas is thirty-eight months. The individual subpoenas are comprehensive of practically all records, books and documents of or concerning the companies engaged in Docket No. 6908. The recipients of the subpoenas here in question are officers or employees of the respondent companies in Docket No. 6908 for the most part. The remaining are independent contractors who perform accounting or advertising functions for some of these companies. The hearing examiner in the administrative proceeding ordered appellants to produce all of the documents called for in each of the subpoenas at his office in Los Angeles on a day certain. The objections of appellants and the respondents in Docket No. 6908 were overruled. Upon review, the action of the examiner was affirmed by the Civil Aeronautics Board. Thereupon, after appellants had failed to produce the documents, the Board brought this case in the District Court by filing a petition to enforce the administrative subpoenas under 1004(d) of the Civil Aeronautics Act of 1938, as amended. 49 U.S.C.A. § 644(d).2
An order to show cause, directed to appellants, was issued by the District Court. Appellants filed a return to the order and an answer to the petition, setting up that the subpoenas are "oppressive and unreasonable, and constitute an unreasonable search and seizure" and a "general fishing expedition of the affairs of the parties named in the said subpoenas," and further stated "that compliance with the said subpoenas would unduly and unreasonably hamper and interfere with the business conducted by the companies named in the said subpoenas." It is further alleged "the documents sought in the said subpoenas are not material to the issues in the proceeding known as Docket No. 6908." It was also claimed that "the said subpoenas call for the production of books, papers, records and documents which relate solely to the personal, financial and business affairs of respondents Ida Mae Hermann, Irving E. Hermann, Robert M. Smith and Leonard I. Rosen, which said documents are irrelevant and immaterial to the proceeding known as Docket No. 6908."
A hearing was held by the District Court in April, 1955, entirely upon affidavits filed by the respective parties. The District Court, after limiting counsel for appellants and the Board to statements of their respective positions, issued an order on April 7, 1955, staying temporarily the enforcement of the subpoenas and continuing the cause to a day certain upon condition that appellants permit inspection and copying of the documents sought in the subpoenas of certain of appellants, excepting only the personal income tax returns called for in the subpoenas served upon appellants, Ida Mae Hermann, Irving E. Hermann and Robert M. Smith. In accordance with this order, six employees and agents of the Board were permitted to inspect and copy certain documents called for in the subpoenas during the period between April 7 and April 15, 1955. The hearing was resumed before the District Court on April 18, 1955, at which time there were presented affidavits which purported to show that appellants had not complied with the inspection order of the District Court. Thereupon, without further notice or argument on the merits, the District Court ordered all of the subpoenas enforced exactly as written, excepting, however, the subpoena upon which the Board did not insist. Upon rehearing, the trial court issued a final order enforcing subpoenas requiring appellants to appear before the hearing examiner and produce all the documents sought in the subpoenas commencing May 31 through June 14, 1955. This order was stayed pending appeal. It seems to be conceded that there was no showing of relevancy or materiality of the documents sought in the administrative subpoenas at any time during the hearings. There was no showing that the Board did not have on file itself the documents sought therein, and there was no showing that appellants were in possession of the documents sought or that they had control of them. The position of the Board was that the enforcement proceedings, Docket No. 6908, were such that each and all of these documents might be relevant or material thereto. In the memorandum for the order, the court made no findings that any of the documents were material or relevant to the proceedings before the Board, and took no position upon the question of whether or not some of them might be documents relating entirely to the personal affairs of some of appellants. The only basis for the order enforcement is entitled "Memorandum for Order," which says in part:
"In laying the subpoenas alongside the charges in the Complaint, this Court cannot say that any of the documents or things called for in any of the subpoenas are immaterial or irrelevant to the proceedings before the Board, without an examination of all of the documents and things themselves, which this Court is not called upon to do at this stage of the proceedings."
The court also apparently ruled that, by spacing the subpoenas, two on May 31, one on June 1, two on June 2, and one each on June 6, 7, 9 and 14, the demands upon appellants would not be burdensome or oppressive.
The Civil Aeronautics Board is given broad powers of subpoena of individuals for the purpose of testifying to the matters which are before them. 49 U.S.C.A. § 644(a) et seq. Obviously, it will be assumed...
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...requirement was made evident in CAB v. Hermann, 353 U.S. 322, 77 S. Ct. 804, 1 L.Ed.2d 852 (1957), a per curiam opinion reversing 237 F.2d 359 (9 Cir. 1956). The subpoenas duces tecum there issued by the Civil Aeronautics Board in an investigation of alleged violations of the Civil Aeronaut......
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