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April 18, 1966


The opinion of the court was delivered by: Will, District Judge.

Petitioner, the Federal Maritime Commission, seeks aid of this court pursuant to § 29 of the Shipping Act of 1916, 46 U.S.C. § 828, to "enforce obedience" to subpoenas duces tecum issued by a Commission hearing examiner. Respondents have moved to quash the subpoenas and to vacate our order to show cause why compliance therewith should not be ordered.

As an independent regulatory agency the Commission has, inter alia, the responsibility to investigate alleged violations of the Shipping Act, § 27 of the Act, 46 U.S.C. § 826. Pursuant to § 22 of the Act, 46 U.S.C. § 821, Crown Steel Sales, Inc., et al., filed a complaint with the Commission against the respondents herein alleging violations of §§ 15, 16 First, 17 and 18 of the Act, 46 U.S.C. § 814, 815, 816 and 817(b), as amended. The complaint challenges the legality of truck loading charges imposed at the request of various steamship conferences which allegedly discriminate against certain commodities.

Complainants thereafter filed applications for subpoenas seeking production of documents. The hearing examiner found the documents prima facie relevant and material to a determination of the issues, and pursuant to § 27 issued the subpoenas. Respondents have failed to comply. The Commission, claiming that non-compliance will adversely effect its responsibilities under the Act, has brought the instant petition.

Jurisdiction of this court is based on §§ 27 and 29 of the Act. § 27, in addition to authorizing issuance of subpoenas, provides that obedience to any such subpoena "shall, on application by the Board [Commission], be enforced as are orders of the Board [Commission] other than for the payment of money." § 29 provides that:

Opposition by respondents is not to the court's jurisdiction in this case but to the procedure employed by the court, namely, the equitable nature of the rule to show cause and the hearing on the rule. Respondents further contend that the Commission is acting beyond the scope of its subpoena power here and therefore the subpoenas were not regularly made and duly issued by the Commission. Finally, respondents argue that disclosure of the materials sought would be highly prejudicial to their overall business operations.

That this court can order compliance with subpoenas of the Commission is evident from the language of § 29. The specific reference to injunctive relief plus the words "or other proper process" indicates that Congress has empowered federal district courts to fashion their enforcement proceedings to the nature of the specific order for which enforcement is sought. The import of § 29 and its relevance to the instant case is that where compliance is sought with orders for the production of documents deemed to be important to an investigation by the Commission, the interests of justice and the purposes of the Shipping Act are best served by the issuance of a rule to show cause followed by hearing and disposition. Enforcement proceedings for other Commission orders, and possibly in a special case even subpoena enforcement, perhaps should proceed in a different manner. This case, however, with its somewhat emergency nature because of the impending opening of the inland shipping season on the Great Lakes, ought to proceed before the Commission as expeditiously as possible.

Yet respondents urge that § 31 of the Act, 46 U.S.C. § 830,*fn1 requires the conclusion that the Commission must proceed by complaint and answer in all enforcement cases thus opening up the panoply of time consuming procedures which are a necessary part of most litigation.

The novel argument advanced by respondents is essentially as follows: § 31 states that procedure in suits brought to enforce Commission orders shall be the same as in similar suits brought to enforce orders of the Interstate Commerce Commission; and suits brought in district courts to enforce I.C.C. subpoenas are subject to the Federal Rules of Civil Procedure by virtue of Rule 81(a)(3).

49 U.S.C. § 12(2), the section of the Interstate Commerce laws comparable to section 27 of the Shipping Act providing for the issuance of subpoenas, states "* * * the Commission, may invoke the aid of any court of the United States in requiring the * * * production of books, papers, and documents under the provisions of this section." 49 U.S.C. § 16(12) entitled "Proceedings to enforce orders other than for payment of money" reads in relevant part as follows:

  If, after hearing, such court determines that the
  order was regularly made and duly served, and that
  the carrier is in disobedience of the same, such
  court shall enforce obedience to such order by a writ
  of injunction or other proper process, mandatory or
  otherwise, to restrain such carrier, its officers,
  agents, or representatives, from further disobedience
  of such

  order, or to enjoin upon it or them obedience to the

Neither of the two quoted provisions of the I.C.C. laws indicate that subpoena enforcement must proceed by complaint and answer. In fact, § 16(12) specifically provides for injunctive relief, an equitable proceeding which need not utilize the complaint and answer process. Nor can support for respondents' position be found in Rule 81(a)(3) of the Federal Rules which in part reads:

  These rules apply (1) to proceedings to compel the
  giving of testimony or production of documents in
  accordance with a subpoena issued by an officer or
  agency of the United States under any statute of the
  United States except as otherwise provided by statute
  or by rules of the district court or by order of the
  court in the proceedings * *. (Emphasis

Rule 81(a)(3) does not command that there be a complaint and answer in all civil actions. Were Rule 81 to require the lengthy complaint and answer procedure, the federal courts would be unable effectively to adjudicate emergency injunctive petitions. It is for that reason that Rule 81 contains the two exceptions allowing procedure to be governed by other statutory provisions or by court order in the proceedings. As noted above, both the I.C.C. Act and the Shipping Act provide that subpoena enforcement may be by writ of injunction. Moreover, the court is specifically permitted to utilize other procedures under Rule 81. That a district could proceed by order to show ...

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