Saunders v. Great Western Sugar Company, 10107.
| Decision Date | 24 May 1968 |
| Docket Number | No. 10107.,10107. |
| Citation | 396 F.2d 794 |
| Parties | George SAUNDERS, Lacy L. Wilkinson and Grant Kindwall, Appellants, v. The GREAT WESTERN SUGAR COMPANY, Great Western United Corporation, and the Colorado Milling & Elevator Company, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Michael C. Farrar, Atty., Department of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Lawrence M. Henry, U. S. Atty., Thomas C. Seawell, Asst. U. S. Atty., and Alan S. Rosenthal, Atty., Department of Justice, on the brief), for appellants.
Thomas S. Nichols, Denver, Colo. (Davis, Graham & Stubbs, Denver, Colo., Predovich & Ward, Pueblo, Colo., and M. B. Holt, Jr., Denver, Colo., and White & Case, New York City, of counsel, on the brief), for appellees.
Hugh A. Burns, Denver, Colo., for National Sugar Mfg. Co.
Before MURRAH, Chief Judge, and BREITENSTEIN, Circuit Judge.
The appellants, local officials of the Small Business Administration (SBA), appeal from a May 15, 1968, order of the United States District Court for the District of Colorado which was entered under Rule 37, F.R.Civ.P., and which compels them to respond to subpoenas duces tecum issued by that court. We granted a temporary stay so that a full hearing could be had. The order is appealable under our decision in Covey Oil Co. v. Continental Oil Co., 10 Cir., 340 F.2d 993, cert. denied 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155.
SBA is an agency of the United States Government. Its officials say that under agency regulations they may not disclose information or produce documents without authorization from the Assistant Administrator for Administration of the agency and that such authorization has been withheld. The statute establishing SBA empowers the Administrator to "make such rules and regulations as he deems necessary to carry out the authority vested in him." 15 U.S.C. § 634(b) (6). Pursuant thereto regulations were promulgated to govern "Disclosure of Information." See 13 C. F.R. §§ 102.1-102.7. Section 102.7 provides in part that when a subpoena is issued against an SBA officer or employee, he shall advise the Assistant Administrator and that if such officer does not authorize disclosure, "the employee shall respectfully decline to disclose the information or produce the files, documents and records demanded or requested, basing such refusal on this part." Here the disclosure was not authorized.
The SBA officials rely on Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846, and United States ex rel. Touhy v. Ragen, 340 U.S. 462, 469, 71 S.Ct. 416, 95 L.Ed. 417. In Boske the Court upheld regulations of the Secretary of the Treasury relating to the disclosure of information and in Touhy it gave effect to comparable regulations of the Attorney General.
The appellees seeking the disclosure rely on our decision in Sperandeo v. Milk Drivers and Dairy Employees Local Union No. 537, 10 Cir., 334 F.2d 381. Sperandeo is distinguishable from the case at bar because there the governmental agency brought suit seeking judicial action and then refused to disclose. Here the SBA and its officials are not parties to the antitrust suit in the district court in which the disclosure is sought.
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