Walling v. Benson

• Decision Date: 09 September 1943
• Docket Number: No. 12534.,12534.
• Citation: 137 F.2d 501
• Parties: WALLING, Adm'r of Wage and Hour Division, United States Department of Labor, v. BENSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

137 F.2d 501 (1943)

WALLING, Adm'r of Wage and Hour Division, United States Department of Labor, v. BENSON et al.

No. 12534.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1943.

Rehearing Denied September 9, 1943.

COPYRIGHT MATERIAL OMITTED

Peter Seitz, Principal Atty., United States Department of Labor, of Washington, D. C. (Irving J. Levy, Acting Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Kenneth P. Montgomery, Regional Atty., of Kansas City, Mo., and Morton Liftin, Atty., United States Department of Labor, of Washington, D. C., on the brief), for appellant.

Edward W. Tobin, of St. Louis, Mo. (Roscoe Anderson and William R. Gilbert, both of St. Louis, Mo., on the brief), for appellees.

Before THOMAS and JOHNSEN, Circuit Judges, and VOGEL, District Judge.

JOHNSEN, Circuit Judge.

Does the Administrator of the Wage and Hour Division have an absolute right to a compliance order from the district court, for the enforcement of an investigatory subpoena duces tecum, under sections 9 and 11(a) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq., without regard to whether the business involved actually is under the Act or whether reasonable ground exists for believing that it is subject to the Act?

The question arises in an appeal taken by the Administrator from an order of the district court denying his application for such a compliance order against appellees, described in the application as being copartners "engaged in the practice of public accounting at 711 St. Charles Street, St. Louis, Missouri." The application did not allege, nor set forth any facts indicating, that appellees or any of their employees were engaged in interstate commerce or in the production of goods for interstate commerce, nor did it contain any allegation that the Administrator had reasonable ground to believe that this was the fact, and, on the hearing on appellees' motion to dismiss, the Administrator apparently did not offer to make any showing of any nature.

None of our previous decisions directly answers the question here. In Cudahy Packing Co. v. Fleming, 8 Cir., 122 F.2d 1005,¹ we held that where some phase of the general business conducted by an employer was admitted to be subject to the Fair Labor Standards Act, the Administrator, without further showing as to coverage, was entitled to a compliance order for the enforcement of a relevant and reasonable investigatory subpoena duces tecum for the business as a whole, even though it was being conducted in a number of separate plants. In that case, the employer operated two meat-packing plants in the State of Minnesota, one of which was admitted to be engaged in interstate commerce, but the other of which was claimed to be engaged in intrastate business only. We regarded the fact that part of the employer's business was admittedly subject to the Act as a sufficient warrant for judicial aid in enforcing an investigatory subpoena duces tecum for the business as a whole, to enable the Administrator to determine the exact extent of the subject operations and employee-coverage in the entire industry, including the relationships between the several plants.

We have thus recognized that the question of actual coverage under the Act, as to particular employees, business-departments, or plant-units, in an industry sought to be investigated by the Administrator, is not a matter which the employer is entitled to have formally tried out and adjudicated in the district court on an application to enforce an investigatory subpoena, where reasonable ground appears to exist for making the investigation. As indicated above, the fact in that case that part of the industry was admitted to be subject to the Act constituted, in our opinion, sufficient reasonable ground for an investigation of the business as a whole and the relation of all its operations to the Act. 122 F.2d at page 1009.

The Administrator argues that the Cudahy Packing Co. case is determinative of his right to a compliance order here, while appellees attempt to distinguish that case from the present situation on the ground that there is no admission here that any part of the employer's business is subject to the Act, nor has the Administrator alleged or offered to prove that such is the fact.

We think the principle applied by us in the Cudahy Packing Co. case is controlling here, but its reaches do not extend as far as either the Administrator or appellees antithetically contend. The implication of that decision simply is, as we have attempted to indicate above, that, in order to be entitled to a compliance order from the district court for the enforcement of an investigatory subpoena, the Administrator is only required to satisfy the court of the existence of reasonable ground for making the investigation, i.e. reasonable ground to believe that the industry is subject to the Act, and not to make proof of actual coverage under the Act, nor is the employer entitled to a trial and adjudication of the question of coverage on such an application.²

Thus, while it is our view that the employer is not entitled to a trial and adjudication of the question of coverage on the Administrator's application to enforce an investigatory subpoena, and that the Administrator is not required to make proof of actual coverage as a basis for judicial aid in its enforcement, we believe that the district court is entitled to the assurance that it is not giving judicial sanction and force to unwarranted or arbitrary action, but that reasonable ground exists for making the investigation. Judicial enforcement necessarily is the exercise of judicial power, and judicial function can never wholly escape the test of judicial responsibility.

The sound test of judicial responsibility is not, of course, its lavishness of concern, but its measured adherence to the actual legal need of, and its authority in, the situation with which it is required to deal. Over-responsibility may be as much an abuse of judicial power and function as irresponsibility. And in the collaboration of judicial power and function with administrative process, — which is a necessary part of the legal system of today — the courts must conscientiously guard against any instinct of over-protectiveness, which may unwarrantedly and needlessly impede proper administrative effort or result. In a field of declared public interest, — such as the Fair Labor Standards Act clearly is — the courts must give full, facilitating co-operation to the exercise of authorized administrative powers and duties, if no possible threat to fundamental rights and concepts is involved. But, in their desire to measure up to this obligation, they must not sweep aside the fundamental and inherent concept that a judicial responsibility is owing for any judicial function that they are called upon to perform — a responsibility that necessarily must soundly cover (but not attempt to extend beyond) the scope of the required function.

Where courts have been called upon to review administrative orders in the past, they have customarily required that the order sufficiently disclose the basis of the action to satisfy them that there has been a compliance with the express and implied conditions underlying the exercise of the power.³ This has been a sound means of testing and insuring the responsibility of administrative action,⁴ and doubtlessly of helping to win public acceptance for the processes of administrative law. In the present situation, the judicial function involved, of course, is not to review a formal order, but to enforce an investigatory subpoena. The extent of the relevant inquiry and the measure of the responsibility involved are thus necessarily somewhat different, but the issuance of the enforcement order still implies a judicial sanction and confirmation of the purpose and scope of the Administrator's investigatory action, and the court therefore analogously is entitled to know that a proper basis exists for the action.

The Administrator argues that section 11(a) of the Act⁵ gives him a plenary power to make any investigations "which may aid in the enforcement of the provisions of this Act." But the intended scope of the Administrator's powers under this general language must be read in conjunction with and subordinately to what Congress has itself declared to be the purpose and policy of the Act. That purpose and policy are declared in the Act to be to reach into and correct labor standards and conditions in industries engaged in interstate commerce or in the production of goods for interstate commerce.⁶ The subpoena power of the Administrator is an auxiliary to this reach and to this reach only. Congress clearly intended to allow the Administrator to traverse the terrain of the Act and to see that no subject industry was allowed to remain outside its boundaries. But, if it was intended to be implied that the Administrator should have the power also to make an investigation, through subpoena, of every industry in the country, regardless of whether it had even a probable or apparent relationship to the Act, the statute would in our opinion be going beyond any previous implied grant of administrative authority. It would require more explicit and unmistakable language than is contained in the present Act to induce us to believe "that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire."⁷ Whether Congress could have conferred such sweeping subpoena powers upon the Administrator if it had desired to do so, there is no occasion for us here to consider. As the language of the Act stands, we are of the opinion that the Administrator is not entitled to an order for the enforcement of an investigatory subpoena as to any industry which he knows is wholly outside the coverage of ...