MATTER OF ALLEGED PROHIBITED POLITICAL ACTIVITY, ETC.

• Decision Date: 22 December 1977
• Docket Number: Misc. No. 77-144.
• Citation: 443 F. Supp. 1194
• Parties: In the Matter of ALLEGED PROHIBITED POLITICAL ACTIVITY PHILADELPHIA REDEVELOPMENT AUTHORITY PHILADELPHIA, PENNSYLVANIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

443 F. Supp. 1194

In the Matter of ALLEGED PROHIBITED POLITICAL ACTIVITY PHILADELPHIA REDEVELOPMENT AUTHORITY PHILADELPHIA, PENNSYLVANIA.

Misc. No. 77-144.

United States District Court, E. D. Pennsylvania.

December 22, 1977.

Peter A. Galante, Robert E. Gabriel, Philadelphia, Pa., for plaintiff.

Lynn R. Collins, Washington, D. C., John T. Murphy, Jr., Alexandria, Va., U. S. Civil Service Commission, for defendant.

OPINION

DITTER, District Judge.

The question in this case is whether prior to the initiation of formal proceedings the United States Civil Service Commission (Commission) possesses subpoena power to aid in the investigation of alleged prohibited political activity. Movants seek to quash subpoenas served upon them which ordered the production of certain documents and required their attendance before Commission representatives for the purpose of giving testimony. For the reasons which follow, this motion must be denied.

I. The Factual Background

In September, 1976, the Commission received complaints and information alleging that employees of the Redevelopment Authority of the City of Philadelphia (Authority), an agency receiving federal funds, were being systematically required to make financial contributions for political purposes in violation of 5 U.S.C. § 1502(a)(2) (the Hatch Act).¹ An investigation of these allegations was authorized and Commission representatives requested that the Authority provide certain documents pertaining to the Authority's organization, staffing, and funding. Permission to interview some current Authority employees with respect to the matter under investigation was also sought. These requests were refused by the Authority's executive director, Augustine A. Salvitti.

Pursuant to 5 U.S.C. § 1507(a),² the Commission issued a subpoena to Richard E. Malone, the deputy executive director, ordering production of 1) the names of current Authority employees, their titles and organizational units; 2) information as to persons employed on December 5, 1973, but no longer with the Authority; and (3) all documents pertaining to loans or grants made to the Authority by the United States since July 31, 1974. In addition, 18 employees, including Mr. Malone, were individually subpoenaed to be deposed before a Commission representative. These subpoenas were served, but the documents were not produced and no persons appeared at the time and place specified.³ The Commission thereupon sought judicial enforcement of these subpoenas, also provided for in Section 1507(a),⁴ and I issued an ex parte order directing compliance. By agreement of the parties that order has been suspended until this court resolves the issue of the Commission's authority.

II. The Commission has the authority to issue subpoenas for investigatory purposes

a. The plain language of Section 1507 supports the Commission's position.

Movants, i. e., the Authority and the 18 individuals, argue that relevant sections of the Hatch Act disclose that it was the intent of Congress to give the Commission subpoena power at a formal hearing level but not at an investigatory stage. For support, they point to the continual references to a hearing in Section 1504⁵ which deals with investigations and notices, Section 1505,⁶ which sets out actions the Commission must take following a hearing, and one sentence extracted from Section 1507(a): "The attendance of witnesses and the production of documentary evidence may be required from any place in the United States at the designated place of hearing." They contend the cited language unmistakably demonstrates that if the Commission has sufficient evidence to warrant an investigation, it must proceed to a hearing where normal due process safeguards such as the right to counsel and cross-examination apply. I disagree.

While Sections 1504 and 1505 are somewhat pertinent, it is evident that Section 1507(b) disposes of movants' argument and demonstrates the availability of subpoena authority to compel depositions and the production of documents at a stage other than a formal hearing. The subsection provides, in part:

The Commission may order testimony to be taken by deposition at any stage of the proceeding or investigation before it as a result of this chapter (emphasis added).

That the Commission can require this testimony by way of subpoena is evident by reference to other language in Section 1507(b), i. e.:

Any person may be compelled to appear and depose and to produce documentary evidence before the Commission as provided by this section (emphasis added).

"As provided by this section" should not be limited to the provisions of subsection (b); rather, this phrase should be construed to include all the powers provided the Commission in Section 1507. Thus, the Commission may compel witness attendance and the production of other evidence by way of subpoena, as set out in Section 1507(a). In addition, and despite movants' contention to the contrary, Section 1507(b) also authorizes the Commission to seek the aid of this court in compelling attendance should the subpoenas be disobeyed.

b. The authority of other administrative agencies to issue subpoenas has been consistently upheld by the courts.

The Supreme Court has made it clear that this court's role in the enforcement of administrative process is limited. The first case to consider the issue was Endicott Johnson v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943), where the Court held that, on an application for enforcement of a subpoena issued by the Secretary of Labor, since the evidence sought by the subpoena was not "plainly incompetent or irrelevant to any lawful purpose," it was the district court's duty to order its production. Id. at 509, 63 S.Ct. at 343. Shortly thereafter, the Court applied the same principles to enforce subpoenas issued pursuant to an investigation under the Fair Labor Standards Act. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Emphasizing the importance of the administrative mandate to search out violations of the Act, Justice Rutledge stated that the Wage and Hour Administrator may not act arbitrarily or in excess of his statutory authority, but "this does not mean that his inquiry must be `limited . . . by . . . forecasts of the probable result of the investigation' . . ." Id. at 216, 66 S.Ct. at 509, quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). Just four years later, in a case dealing with the investigative powers of the Federal Trade Commission, United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), the Court once more enunciated the standard: ". . . it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." Id. at 652, 70 S.Ct. at 369. In upholding a Commission order, Justice Jackson, speaking for the Court, distinguished the judicial subpoena, which is subject to specific constitutional limitations, from an administrative subpoena. He recognized that early in the history of administrative tribunals, courts had been persuaded to engraft judicial limitations, such as "no-fishing expeditions" on administrative processes, but that more recent decisions had removed this restriction on the administrative investigation. Justice Jackson likened an agency's investigatory powers to those conferred upon a grand jury which is empowered to investigate on suspicion alone without the necessity of showing probable cause:

The only power that is involved here is the power to get information from those who best can give it and who are most interested in not doing so. Because judicial power is reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law (emphasis added). Id. at 642-43, 70 S.Ct. at 364.

. . . . .

Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest. Id. at 652, 70 S.Ct. at 369.

Neither my research nor that of counsel has disclosed any decision which deals directly with the Commission's power to issue subpoenas under Section 1507. However, the above principles have been consistently followed in cases involving other administrative agencies in many federal courts.⁷ The Third Circuit's treatment of this issue in F.T.C. v. Standard American, Inc., 306 F.2d 231 (3d Cir. 1962), is particularly dispositive. There, in enforcing subpoenas issued by the Federal Trade Commission requiring certain persons to appear, give testimony, and produce documents before a designated Commission examiner, the court interpreted language⁸ quite similar to the language which is at issue here, 5 U.S.C. § 1507.⁹ In addition, this position is supported in 1 K. Davis, Administrative Law Treatise, § 304, at 176 (1958 ed.), wherein Professor Davis states:

Long-standing tradition permits the use of subpoenas in and of grand jury proceedings (footnote omitted). The authorities are now clear that the same may be done in aid of the administrative counterpart of grand jury

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