Lowell Sun Co. v. Fleming, 3654.

• Citation: 120 F.2d 213
• Decision Date: 06 June 1941
• Docket Number: No. 3654.,3654.
• Parties: LOWELL SUN Co. v. FLEMING, Administrator, Wage and Hour Division.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

120 F.2d 213 (1941)

LOWELL SUN Co. v. FLEMING, Administrator, Wage and Hour Division.

No. 3654.

Circuit Court of Appeals, First Circuit.

June 6, 1941.

Elisha Hanson, of Washington, D. C. (William R. Cook, of Boston, Mass., Frank Goldman, of Lowell, Mass., Johnson, Clapp, Ives & Knight, of Boston, Mass., and William K. Van Allen and Harold L. Cross, Jr., both of Washington, D. C., on the brief), for appellant.

Vernon C. Stoneman, of Washington, D. C. (Gerard D. Reilly, Irving J. Levy, Robert S. Erdahl, and David Persinger, all of Washington, D. C., on the brief), for appellee.

Before MAHONEY and WOODBURY, Circuit Judges, and SWEENEY, District Judge.

WOODBURY, Circuit Judge.

This appeal is from an order of the District Court requiring the appearance of the appellant before the Acting Regional Director of the Wage and Hour Division of the United States Department of Labor, or some other authorized representative of the Administrator of that Division, according to the terms of a certain subpoena duces tecum.

Jurisdiction to determine this appeal is conferred upon this court by § 128 of the Judicial Code, 28 U.S.C.A. § 225; jurisdiction to issue the order complained of is conferred upon the court below by § 9 of the Fair Labor Standards Act of 1938. 52 Stat. 1060, 29 U.S.C.A. § 201 et seq.

The appellant-respondent is, and for several years has been, engaged in Lowell, Massachusetts, in the business of printing and publishing a newspaper called the Lowell Sun. On October 5, 1940, the Acting Regional Director of the Wage and Hour Division issued and signed a subpoena duces tecum directed to the respondent requiring it to appear on October 9, 1940, at a specified time and place in Lowell and there to produce certain of its books and papers. The respondent failed to comply with it in any way.

On October 18, 1940, the Administrator of the Wage and Hour Division, acting through his attorneys, applied to the District Court under the provisions of § 9 of the Act for an order requiring the respondent to appear and show cause why it should not appear and produce its books and records in accordance with the subpoena. Such an order was forthwith issued and served and on October 28 the respondent answered and moved to vacate the show cause order and dismiss the proceeding. On November 29, the District Court denied the respondent's motion, granted the plaintiff's application, and ordered the respondent to appear and produce its books and records in accordance with the subpoena which, however, it modified in two respects. This is the order from which the respondent appeals.

The only contentions of the respondent which require consideration are (1) that the court below lacked jurisdiction, and (2) that the subpoena shows upon its face that it is a nullity.

The respondent's jurisdictional argument is not that the Fair Labor Standards Act of 1938 fails to authorize applications to the District Court of the kind here under consideration, but that such applications, to conform to the Act, may not be made by the Administrator but must be made by the Attorney General. Section 4(b) of the Act, after authorizing the Administrator to "appoint such employees as he deems necessary to carry out his functions and duties", provides: "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." It seems to us clear that the provisions above with respect to participation by the Attorney General in litigation in which the Administrator is involved are not mandatory but permissive; that they do not require that the Attorney General must exercise his power of direction and control in every litigated case but only that he may exercise those powers in any particular case if he deems that course advisable. We see no reason to extend the argument upon this point further, and pass on to the question of the validity of the subpoena.

This subpoena was issued and signed by the Acting Regional Director pursuant to authority conferred upon him by the Administrator in Administrative Order number 48 which is reproduced in the margin.¹ The question raised is whether or not under the Act the Administrator may delegate his power to issue subpoenas duces tecum to his representatives.

Section 9 of the Fair Labor Standards Act of 1938 reads: "For the purpose of any hearing or investigation provided for in this Act chapter, the provisions of sections 9 and 10 49 and 50 of Title 15 (relating to the attendance of witnesses and the production of books, papers, and documents) of the Federal Trade Commission Act of September 16, 1914, as amended (U.S.C., 1934 edition, title 15, §§ 49 and 50), are hereby made applicable to the jurisdiction, powers, and duties of the Administrator * * *." The pertinent part of section 9 of the Federal Trade Commission Act referred to above, after providing that the Commission or its agents shall have access to any documentary evidence of any corporation being investigated or proceeded against", reads: "the commission shall have power to require by subpœna the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpœnas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence."

Reading "Administrator" for "Commission", it seems clear that by the above provision Congress gave to the Administrator, and to him only, authority to issue and sign subpoenas duces tecum. This the Administrator practically concedes in his brief. But he contends that § 4(c) of the Fair Labor Standards Act authorizes him to delegate his power to issue subpoenas to representatives. This section reads: "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 question is whether these words mean, as the Administrator contends, that he may delegate the powers conferred upon him by the Act to any representative, or whether they mean, as the respondent contends, that, although the Administrator must maintain his principal office in the District of Columbia, he may exercise his powers, and his representatives may exercise theirs, in any other place.

To adopt the Administrator's view would be to hold that the statute confers blanket powers of delegation upon him, — that under it he may delegate any of his functions to any representative. It would mean that he could delegate as he saw fit his duty to report periodically to Congress, (§ 4(d), to appoint industry committees and the chairmen thereof, to fix their compensation and prescribe their procedure, (§ 5), to approve or disapprove their reports by orders the findings of fact in which, if supported by substantial...