Perkins v. Endicott Johnson Corporation, No. 218.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtAUGUSTUS N. HAND, CLARK, and FRANK, Circuit
Citation128 F.2d 208
PartiesPERKINS, Secretary of Labor, v. ENDICOTT JOHNSON CORPORATION et al.
Decision Date06 May 1942
Docket NumberNo. 218.

128 F.2d 208 (1942)

PERKINS, Secretary of Labor,
v.
ENDICOTT JOHNSON CORPORATION et al.

No. 218.

Circuit Court of Appeals, Second Circuit.

Argued March 23, 1942.

Decided May 6, 1942.


128 F.2d 209
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128 F.2d 210
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128 F.2d 211
Francis M. Shea, Asst. Atty. Gen., and Ralph L. Emmons, U. S. Atty., of Binghamton, N. Y. (Sidney J. Kaplan, Sp. Asst. to the Atty. Gen., and Melvin H. Siegel and Oscar H. Davis, Attys., Department of Justice, both of Washington D. C., of counsel), for plaintiff-appellant

Howard A. Swartwood and William H. Pritchard, Jr., both of Endicott, N. Y. (John C. Bruton, Jr., of New York City, of counsel), for defendants-appellees.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. The subpoenas called for data bearing on possible violations of the contract stipulations with reference to the tanneries, rubber, sole-cutting, counter and carton plants. As the defendants do not assert that the subpoenas were too broad if the data sought was relevant,3 or that such data was not relevant if those plants were covered by the contract, their sole objection was that the plants were not covered. We might dispose of the case on the ground that the testimony taken by the District Court amply proved the fact of coverage, as we are inclined to believe it did. But we have not gone into that matter and do not rest our decision on that ground, since we hold that the District Court should have enforced the subpoenas, on the pleadings, without taking any testimony whatever.

2. Defendants' contentions have as their background the principle (based on constitutional and related considerations) of opposition to efforts to pry into the affairs of citizens. But such a principle of government, like almost every other principle, is not an absolute; it cannot be isolationist, living a hermit-like life, but must adjust itself when it comes in contact with other principles.4 It is not a new judicial task to find a working compromise between the principle asserted by the defendants here and another governmental principle also deeply rooted in our legal history — that of avoiding undue complexity in, and prolongation of, litigation. ("To be effective, judicial administration must not be leaden-footed."5) The latter principle finds frequent expression in discouragement of interlocutory appeals. They are generally, pariahs in the federal judicial system. The "final judgment rule" goes back to the early days of the Republic,6 and it has shown no signs of weakness in recent years. The policy behind the rule has been to discourage delays, to prevent the cluttering of appellate dockets, and to permit the correction by the trial court itself of its own errors. These purposes have much in common, and it is not surprising that the "final judgment" rule has gone hand in hand with the doctrine of harmless error.7 As opposed to a judicial system where every technical slipup may be instantly appealed and will be automatically

128 F.2d 212
held to be fatal,8 ours is one in which correction is not ordinarily possible until the conclusion of the litigation, at which time only the seriously prejudicial defects will be dignified by appellate attention. The philosophy behind this practice is that many mistakes, apparently important at the time, will be seen to be trivial from the perspective of a final disposition of the case, and that disputes will therefore be more expeditiously settled. The principle is that of relatively speedy justice

The accommodation of that principle to that on which defendants fundamentally rest their case is well illustrated in Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. There a defendant in a criminal prosecution after indictment, but before trial, applied for a summary order requiring the district attorney to return papers which he alleged had been unconstitutionally taken from him without a warrant. The Supreme Court held that he could not appeal from an order denying his application. The court recognized that the result might be that the papers, unconstitutionally seized, would unlawfully be put in evidence in the criminal trial. But it concluded that, balancing that fact against the undesirability of interfering with the orderly progress of the trial, it was better to postpone appellate consideration of the question of wrongful seizure until, should the defendant be convicted, he appealed from the final judgment in the criminal suit. A similar conclusion is reached where a witness is ordered to answer a question or to respond to a subpoena duces tecum — issued in a pending suit or in aid of a grand jury inquiry — asserting that compliance will deprive him of his constitutional rights; such an order is not ordinarily appealable. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686. In Cobbledick v. United States, 309 U.S. 323, 325-327, 60 S.Ct. 540, 541, 84 L.Ed. 783, the court, dismissing an interlocutory appeal from an order refusing to quash a grand jury subpoena duces tecum, said: "The correctness of a trial court's rejection even of a constitutional claim, made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal." The reason for such a conclusion, said the court, is the desire to "safeguard against undue interruption," to avoid "obstructing the `orderly progress'" of the main proceeding, to "protect from delay the progress" of that proceeding, to eliminate the "piecemeal disposition * * * of what for practical purposes is a single controversy * * *," thereby "enfeebling judicial administration."9

There are exceptions to these rules: (a) If a criminal suit is pending, but not against the person whose papers have been unlawfully seized, he is regarded as a "stranger" to the pending suit, and an action for the return of the papers is considered as "independent," so that from an order denying relief he may have an immediate appeal. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915 and cases there cited. (b) Also, if a person, whether a party or a "stranger," refuses to obey a court order directing him to produce papers or to testify, and is punished for contempt, he may then maintain an interlocutory appeal. Alexander v. United States, supra; Union Tool Co. v. Wilson, 259 U.S. 107, 110, 111, 42 S.Ct. 427, 66 L.Ed. 848; Cogen v. United States, supra, 278 U.S. at page 224, 49 S.Ct. 118, 73 L.Ed. 275; Cobbledick v. United States, supra, 309 U.S. at page 327, 60 S.Ct. 540, 84 L.Ed. 783.

But it is essential to differentiate these two distinct questions: (a) immediate appealability and (b) the scope of the judicial inquiry in such cases. That, in some circumstances, an interlocutory appeal is allowed from an order directing a witness to respond to a subpoena, does not at all mean that the court, in an ancillary subpoena action, is at liberty to roam at large through all the issues in the main proceeding out of which the subpoena issues.

128 F.2d 213

Thus, although an interlocutory appeal is entertained from an order punishing for contempt for failure to answer questions, or produce books, in response to a subpoena duces tecum, before a grand jury, the witness cannot, either in the lower court or on appeal, attack the materiality of the information demanded, the jurisdiction of the grand jury or court over the subject matter of the inquiry, or the constitutionality of the statute. He is apparently limited to such "exceptional circumstances" as the possibility of self-incrimination, the existence of other special privileges, or the unreasonable breadth of the subpoena duces tecum. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979.10 The reason for such strictness is not only the historic repugnance to interlocutory interference, but also that there is a paramount "duty to disclose in a court all pertinent information within one's control" and that "the suppression of truth is a grievous necessity at best" which "can be justified at all only when the opposed private interest is supreme." L. Hand, J., in McMann v. S. E. C., 2 Cir., 87 F.2d 377, 378, 109 A.L.R. 1445.

When we turn to the problem of interlocutory attacks on administrative rulings — which resemble interlocutory appeals from lower to upper courts — we find that the factors operative in the historic federal opposition to such intermediate appeals have, in general, been adopted and adapted, and that they have been reinforced by a recognition that administrative bodies have been created by Congress to give "expert" and expeditious attention to their specialized fields, so that there is a reluctance on the part of the courts to interfere until the administrative agencies have finished their work.10a In spite of repeated efforts by respondents in administrative proceedings to induce the courts to interfere in the early stages of such proceedings, the Supreme Court, again and again, has ruled against premature attacks. Thus, federal courts will not entertain a suit by a respondent in an administrative proceeding to enjoin the proceeding on allegations that the administrative agency is without "jurisdiction" and that to allow the proceeding to continue in such circumstances will put the respondent to needless expense. Myers v. Bethlehem Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638; Newport News Co. v. Schauffler, 303 U.S. 54, 58 S.Ct. 466, 82 L.Ed. 646; cf. Federal Power Comm. v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408; Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 130, 59 S.Ct. 754, 83 L.Ed. 1147; United States v. Illinois Central R. R. Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007.11

As above noted, there can be no interlocutory appeal from an order directing a person, not a "stranger," to testify or produce...

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82 practice notes
  • Browder v. Gayle, No. 1147.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 5, 1956
    ...guaranties." To like effect is the opinion of Judge Frank for the Second Circuit in Perkins v. Endicott Johnson Corporation, 128 F. 2d 208, "We would stultify ourselves and unnecessarily burden the Supreme Court if—adhering to the dogma, obviously fictional to any reader of its history, tha......
  • Olson v. Paine, Webber, Jackson & Curtis, Inc., No. 86-1334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 21, 1986
    ...Inc. v. Walsh, 139 F.2d 809, 814 (2d Cir.), vacated, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Perkins v. Endicott Johnson Corp., 128 F.2d 208, 217-18 (2d Cir.1942), aff'd, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Healy v. Edwards, 363 F.Supp. 1110, 1117 (E.D.La.1973) (three-......
  • Zalkind v. Scheinman, No. 94.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 10, 1943
    ...cited in note 3, supra. 19 Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 633, 636; Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, 217, 218; The Attitude of Lower Courts to Changing Precedents, 50 Yale L.J. (1941) 20 See comment, note 3a, supra. 21 Certiorari denied 317 U.......
  • Gardella v. Chandler, No. 98
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 9, 1949
    ...U.S. 686, 694, 66 S.Ct. 785, 90 L.Ed. 945. See Sears v. Hassett, 1 Cir., 111 F.2d 961, 965; cf. Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, Under these circumstances it seems to me that our duty as a subordinate court is to follow the Federal Base Ball Club case. I find no nece......
  • Request a trial to view additional results
82 cases
  • Browder v. Gayle, No. 1147.
    • United States
    • United States District Courts. 11th Circuit. Middle District of Alabama
    • June 5, 1956
    ...guaranties." To like effect is the opinion of Judge Frank for the Second Circuit in Perkins v. Endicott Johnson Corporation, 128 F. 2d 208, "We would stultify ourselves and unnecessarily burden the Supreme Court if—adhering to the dogma, obviously fictional to any reader of its history, tha......
  • Olson v. Paine, Webber, Jackson & Curtis, Inc., No. 86-1334
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 21, 1986
    ...Inc. v. Walsh, 139 F.2d 809, 814 (2d Cir.), vacated, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Perkins v. Endicott Johnson Corp., 128 F.2d 208, 217-18 (2d Cir.1942), aff'd, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); Healy v. Edwards, 363 F.Supp. 1110, 1117 (E.D.La.1973) (three-......
  • Zalkind v. Scheinman, No. 94.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 10, 1943
    ...cited in note 3, supra. 19 Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 633, 636; Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, 217, 218; The Attitude of Lower Courts to Changing Precedents, 50 Yale L.J. (1941) 20 See comment, note 3a, supra. 21 Certiorari denied 317 U.......
  • Gardella v. Chandler, No. 98
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 9, 1949
    ...U.S. 686, 694, 66 S.Ct. 785, 90 L.Ed. 945. See Sears v. Hassett, 1 Cir., 111 F.2d 961, 965; cf. Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, Under these circumstances it seems to me that our duty as a subordinate court is to follow the Federal Base Ball Club case. I find no nece......
  • Request a trial to view additional results

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