Hubbard v. Southern Railway Company, Civ. A. No. 1593.

• Decision Date: 09 November 1959
• Docket Number: Civ. A. No. 1593.
• Citation: 179 F. Supp. 244
• Parties: Mrs. Emma Norris HUBBARD v. SOUTHERN RAILWAY COMPANY, a Virginia Corporation.
• Court: U.S. District Court — Middle District of Georgia

179 F. Supp. 244

Mrs. Emma Norris HUBBARD v. SOUTHERN RAILWAY COMPANY, a Virginia Corporation.

Civ. A. No. 1593.

United States District Court M. D. Georgia, Macon Division.

November 9, 1959.

Roy B. Rhodenhiser, Jr., Andrew W. McKenna, Buckner F. Melton, Macon, Ga., for plaintiff.

Charles J. Bloch, Ellsworth Hall, Jr., Denmark Groover, Jr., Macon, Ga., for defendant.

Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., Chas. F. McLaughlin, Railroad Retirement Bd., Chicago, Ill., for movant.

BOOTLE, District Judge.

Plaintiff, widow of a former employee of the defendant, Southern Railway Company, brought suit for injuries to and for the death of her husband under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The defendant caused a subpoena duces tecum to be served on H. H. Dashiell, Regional Director, Railroad Retirement Board, Atlanta, Georgia, requiring him to produce: "(a) The entire file related to Robert H. Hubbard, XXX-XX-XXXX, and payments made to him for sickness or injury benefits; (b) specifically, the application of Robert H. Hubbard dated March 26, 1956 for sickness benefits; (c) record showing payments made on account of such benefits; (d) any subsequent application made by Hubbard for sickness benefits; (e) any records pertaining to the determination that benefits paid Hubbard from June 19, 1956 through January 15, 1959 were for illness and not for injury; (f) any statement or application made or signed by the deceased in connection with any application made by him for sickness or injury benefits to the Railroad Retirement Board." Thereafter, Dashiell, through the United States Attorney, moved that the subpoena be quashed, contending that he was prohibited from producing the records by the provisions of the Railroad Unemployment Insurance Act, 45 U.S.C.A. § 362(d, n), the Railroad Retirement Board's regulations, 20 C.F.R. 262.16, and by instructions from his superior officers.

The courts have recognized the right of administrative agencies to make reasonable regulations regarding their records and reports and have upheld regulations forbidding agency employees from testifying in suits between private parties concerning the contents of secret official records. Appeal of United States Securities & Exchange Commission, 6 Cir., 1955, 226 F.2d 501, 518. The cited case holds that such regulations may be promulated by important administrative agencies created by Act of Congress, as well as by heads of departments of cabinet rank, page 518. The instant motion to quash the subpoena duces tecum is supported by Mr. Dashiell's testimony to the effect that he complied with the applicable regulations by reporting to the Board the fact that this subpoena duces tecum had been tendered to him, and was not thereafter authorized by the Board to comply with it.

The particular question before this court at this time is controlled by the cases of Boske v. Comingore, 1900, 177 U.S. 459, 469, 470, 20 S.Ct. 701, 44 L. Ed. 846, and United States ex rel. Touhy v. Ragen, 1951, 340 U.S. 462, 468, 71 S.Ct. 416, 95 L.Ed. 417. In each case a subordinate employee was held justified in refusing to produce (in Boske, by attaching to a deposition, and in Ragen, in response to a subpoena duces tecum) documents belonging to the department of the United States Government in which the witness was employed, the witness in each case relying upon a regulation promulgated by the head of his department. The Boske case involved a Collector of...