U.S. v. Iannone, 78-1779

• Decision Date: 19 December 1979
• Docket Number: No. 78-1779,78-1779
• Citation: 610 F.2d 943
• Parties: UNITED STATES of America and J. Kenneth Mansfield, Inspector General of the Department of Energy, Appellants, v. John IANNONE, American Petroleum Institute.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 943

610 F.2d 943

198 U.S.App.D.C. 1

UNITED STATES of America and J. Kenneth Mansfield, Inspector General of the Department of Energy, Appellants, v. John IANNONE, American Petroleum Institute.

No. 78-1779.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 28, 1979.

Decided Aug. 31, 1979.

Rehearing denied Dec. 19, 1979.

Lynn R. Coleman, Gen. Counsel, Dept. of Energy, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Dept. of Justice, Earl J. Silbert, U. S. Atty., Robert E. Kopp, Neil H. Koslowe, Attys., Dept. of Justice and Henry A. Gill, Jr., Atty., Dept. of Energy, Washington, D. C., were on the brief for appellants.

Kenneth A. Lazarus, Washington, D. C., with whom James J. Bierbower, Washington, D. C., were on the brief for appellee.

Daniel Joseph and Harry R. Silver, Washington, D. C., were on the brief for Amicus Curiae urging affirmance.

John A. Terry and William H. Briggs, Jr., Asst. U. S. Attys., Washington, D. C., entered appearances for appellants.

Before MacKINNON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

The United States and J. Kenneth Mansfield, Inspector General of the Department of Energy (DOE), seek reversal of a District Court order denying enforcement of a subpoena Ad testificandum issued by the Inspector General. The subpoena was issued in the course of an investigation of alleged unauthorized disclosure of information by Department of Energy officials. It was directed to John Iannone, an employee of the American Petroleum Institute (API). When Iannone failed to comply with the subpoena the government filed its petition for enforcement in the District Court. The District Court declined to enforce the subpoena. We affirm the order denying enforcement.

I.

This case grew out of an investigation caused by news reports in the spring of 1978 that employees of DOE had "leaked" information to the American Petroleum Institute and Iannone. The news items were based upon Iannone's own report to his supervisors at API, which had indicated that he had received information and material from agency personnel, including drafts of DOE policy statements, drafts of congressional communications, and drafts of rules and regulations, prior to their promulgation or release to the public. The Iannone report also suggested that Iannone had influenced DOE action on several matters. Investigations into the alleged "leaks" followed. The Senate Committee on Energy and Natural Resources held hearings on the matter, and the Inspector General of DOE began an investigation.

In the course of his investigation the Inspector General issued three subpoenas Ad testificandum to Iannone. Citing other commitments Iannone failed to comply with any of them. The Inspector General and DOE then began this action in the District Court to enforce the third subpoena which was issued and served July 6, 1978 and required Iannone to appear and testify on July 12, 1978. In opposing the petition for enforcement Iannone challenged the Inspector General's authority, either in his own capacity or in the exercise of authority delegated by the Secretary of Energy, to compel the appearance of a witness to give testimony.

The District Court held that there was no statutory authority "for the compulsion of oral testimony under oath in connection with the investigation of alleged misconduct on the part of an agency employee." United States v. Iannone, 458 F.Supp. 41 at 42 (D.D.C. 1978). On appeal the government contends that the Inspector General's authority to compel Iannone's appearance to give testimony derives from either of two sources in the Department of Energy Organization Act: (1) the Inspector General's special subpoena power conferred by 42 U.S.C. § 7138(g)(2); and (2) delegation by the Secretary of Energy to the Inspector General, as the Secretary's agent, of the Secretary's general subpoena power under 42 U.S.C. § 7255. We agree with the District Court that the subpoena served on Iannone cannot be sustained on either basis advanced by the government.

II.

The 1977 Department of Energy Organization Act (the Act) creates within the Department the Office of Inspector General, to be headed by an Inspector General appointed by the President by and with the advice and consent of the Senate. The statute provides that the appointment shall be "solely on the basis of integrity and demonstrated ability and without regard to political affiliation. The Inspector General shall report to, and be under the general supervision of, the Secretary or, to the extent such authority is delegated, the Deputy Secretary, but shall not be under the control of, or subject to supervision by, any other officer of that Department." 42 U.S.C. § 7138(a)(1) (Supp. I 1977). The Inspector General's function, in part, is to "investigate activities relating to the promotion of economy and efficiency in the administration of, or the prevention or detection of fraud or abuse in, programs and operations of the Department." 42 U.S.C. § 7138(b)(1). He is charged with broad responsibility to oversee and maintain the agency's integrity and efficiency, and to keep the Secretary of Energy and Congress informed concerning those matters. 42 U.S.C. § 7138(a)-(g). The legislative history of the Act reflects the theme that the Inspector General, although subject to general supervision by the Secretary, is intended to act independently in fulfilling his duties. H.R.Rep.No.95-539, 95th Cong., 1st Sess. 63 (Joint Explanatory Statement of the Committee of Conference), Reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 854, 934.

Section 208(g)(2) of the Act, 42 U.S.C. § 7138(g)(2) authorizes the Inspector General:

(T)o require by subpena (sic) the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary in the performance of the functions assigned by this section . . . .

The Secretary's subpoena power is granted by section 645, 42 U.S.C. § 7255:

For the purpose of carrying out the provisions of this chapter, the Secretary, or his duly authorized agent or agents, shall have the same powers and authorities as the Federal Trade Commission under section 49 of Title 15 with respect to all functions vested in, or transferred or delegated to, the Secretary or such agents by this chapter.

Section 642 of the Act, 42 U.S.C. § 7252 states:

Except as otherwise expressly prohibited by law, and except as otherwise provided in this chapter, the Secretary may delegate any of his functions to such officers and employees of the Department as he may designate, and may authorize such successive redelegations of such functions within the Department as he may deem to be necessary or appropriate.

On June 16, 1978 the Secretary, purporting to act pursuant to 42 U.S.C. § 7252, delegated to the Inspector General

. . . all functions vested in me by law as the Secretary of Energy ("Secretary") relating to the issuance of subpoenas (as defined in Section 9 of the Federal Trade Commission Act, 15 U.S.C. 49) with respect to the following matters:

The alleged unauthorized disclosures of Department of Energy information to the American Petroleum Institute and John Iannone matters incidential (sic) thereto.

(J.A. 31)

The government in its brief on this appeal states that it "relies chiefly on the subpoena power which is delegated by the Secretary", and the government's brief does not discuss the authority of the Inspector General under section 7138(g)(2). We think however that the Secretary's authority to delegate cannot be considered in isolation from the provision whereby Congress granted specific subpoena power to the Inspector General, for that specific provision reflects the express congressional intent with respect to the subpoena power of the Inspector General. We therefore examine both possible statutory bases for the authority exercised.

III.

The words of 42 U.S.C. § 7138(g)(2) negate the argument that in the exercise of his special subpoena power the Inspector General could compel Iannone to appear to give testimony. There is no reference in that section to a subpoena requiring the attendance of a witness to give oral testimony. On the contrary, the section refers only to "the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence." In short, the language is directed at the production of documentary evidence, as contrasted to oral testimony. The general word "information" is we think defined and limited by the language that follows, specifying written materials and documentary evidence. That language does not suggest that appearance to give oral testimony may be demanded. Applying the maxim that "a word is known by the company it keeps", Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961), we conclude that "all information" means all information in the form of documents. See 2A. C. Sands, Sutherland Statutory Construction § 47.16 (4th ed. 1973).

That Congress in other statutes has explicitly provided for the power to subpoena the attendance and testimony of witnesses reinforces our conclusion that the subpoena authority under section 7138(g)(2) is restricted to documentary information. See, e. g., Defense Production Act of 1950, 50 U.S.C. App. § 2155 (1976); Federal Trade Commission Act, 15 U.S.C. § 49 (1976). The most striking example of such an explicit grant of power is found in the Federal Energy Administration Act, the predecessor of the Department of Energy Organization Act. In granting subpoena power to the Administrator the FEA Act expressly included the power to subpoena "the attendance and testimony of witnesses" in addition to the production of "all information, documents" and the like. 15 U.S.C. § 772(e)(1) (1976). This we believe makes it plain that if Congress had intended...