In re Alleged Prohibited Political Activity Philadelphia Redevelopment Authority

443 F. Supp. 1194, 1977 U.S. Dist. LEXIS 12234
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 22, 1977
DocketMisc. No. 77-144
StatusPublished

This text of 443 F. Supp. 1194 (In re Alleged Prohibited Political Activity Philadelphia Redevelopment Authority) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Alleged Prohibited Political Activity Philadelphia Redevelopment Authority, 443 F. Supp. 1194, 1977 U.S. Dist. LEXIS 12234 (E.D. Pa. 1977).

Opinion

OPINION

DITTER, District Judge.

The question in this case is whether prior to the initiation of formal proceedings the United States Civil Service Commission (Commission) possesses subpoena power to aid in the investigation of alleged prohibited political activity. Movants seek to quash subpoenas served upon them which ordered the production of certain documents and required their attendance before Commission representatives for the purpose of giving testimony. For the reasons which follow, this motion must be denied.

1. The Factual Background

In September, 1976, the Commission received complaints and information alleging that employees of the Redevelopment Authority of the City of Philadelphia (Authority), an agency receiving federal funds, were being systematically required to make financial contributions for political purposes in violation of 5 U.S.C. § 1502(a)(2) (the Hatch Act).1 An investigation of these allegations was authorized and Commission representatives requested that the Authority provide certain documents pertaining to the Authority’s organization, staffing, and funding. Permission to interview some current Authority employees with respect to the matter under investigation was also sought. These requests were refused by the Authority’s executive director, Augustine A. Salvitti.

Pursuant to 5 U.S.C. § 1507(a),2 the Commission issued a subpoena to Richard E. Malone, the deputy executive director, ordering production of 1) the names of current Authority employees, their titles and [1196]*1196organizational units; 2) information as to persons employed on December 5, 1973, but no longer with the Authority; and (3) all documents pertaining to loans or grants made to the Authority by the United States since July 31,1974. In addition, 18 employees, including Mr. Malone, were individually subpoenaed to be deposed before a Commission representative. These subpoenas were served, but the documents were not produced and no persons appeared at the time and place specified.3 The Commission thereupon sought judicial enforcement of these subpoenas, also provided for in Section 1507(a),4 and I issued an ex parte order directing compliance. By agreement of the parties that order has been suspended until this court resolves the issue of the Commission’s authority.

II. The Commission has the authority to issue subpoenas for investigatory purposes

a. The plain language of Section 1507 supports the Commission’s position.

Movants, i. e., the Authority and the 18 individuals, argue that relevant sections of the Hatch Act disclose that it was the intent of Congress to give the Commission subpoena power at a formal hearing level but not at an investigatory stage. For support, they point to the continual references to a hearing in Section 15045 which deals with investigations and notices, Section 1505,6 which sets out actions the Commission must take following a hearing, and one sentence extracted from Section 1507(a): “The attendance of witnesses and the production of documentary evidence may be required from any place in the United States at the designated place of hearing.” They contend the cited language unmistakably demonstrates that if the Commission has sufficient evidence to warrant an investigation, it must proceed to a hearing where normal due process safeguards such as the right to counsel and cross-examination apply. I disagree.

While Sections 1504 and 1505 are somewhat pertinent, it is evident that Section 1507(b) disposes of movants’ argument and demonstrates the availability of subpoena authority to compel depositions and the pro[1197]*1197duction of documents at a stage other than a formal hearing. The subsection, provides, in part:

The Commission may order testimony to be taken by deposition at any stage of the proceeding or investigation before it as a result of this chapter (emphasis added).

That the Commission can require this testimony by way of subpoena is evident by reference to other language in Section 1507(b), i. e.:

Any person may be compelled to appear and depose and to produce documentary evidence before the Commission as provided by this section (emphasis added).

“[A]s provided by this section” should not be limited to the provisions of subsection (b); rather, this phrase should be construed to include all the powers provided the Commission in Section 1507. Thus, the Commission may compel witness attendance and the production of other evidence by way of subpoena, as set out in Section 1507(a). In addition, and despite movants’ contention to the contrary, Section 1507(b) also authorizes the Commission to seek the aid of this court in compelling attendance should the subpoenas be disobeyed.

b. The authority of other administrative agencies to issue subpoenas has been consistently upheld by the courts.

The Supreme Court has made it clear that this court’s role in the enforcement of administrative process is limited. The first case to consider the issue was Endicott Johnson v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943), where the Court held that, on an application for enforcement of a subpoena issued by the Secretary of Labor, since the evidence sought by the subpoena was not “plainly incompetent or irrelevant to any lawful purpose,” it was the district court’s duty to order its production. Id. at 509, 63 S.Ct. at 343. Shortly thereafter, the Court applied the same principles to enforce subpoenas issued pursuant to an investigation under the Fair Labor Standards Act. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). Emphasizing the importance of the administrative mandate to search out violations of the Act, Justice Rutledge stated that the Wage and Hour Administrator may not act arbitrarily or in excess of his statutory authority, but “this does not mean that his inquiry must be ‘limited by forecasts of the probable result of the investigation’ . ” Id. at 216, 66 S.Ct. at 509, quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). Just four years later, in a case dealing with the investigative powers of the Federal Trade Commission, United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950), the Court once more enunciated the standard: “ . . . it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” Id. at 652, 70 S.Ct. at 369. In upholding a Commission order, Justice Jackson, speaking for the Court, distinguished the judicial subpoena, which is subject to specific constitutional limitations, from an administrative subpoena.

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Related

Blair v. United States
250 U.S. 273 (Supreme Court, 1919)
Endicott Johnson Corp. v. Perkins
317 U.S. 501 (Supreme Court, 1943)
Oklahoma Press Publishing Co. v. Walling
327 U.S. 186 (Supreme Court, 1946)
United States v. Morton Salt Co.
338 U.S. 632 (Supreme Court, 1950)
Reisman v. Caplin
375 U.S. 440 (Supreme Court, 1964)
Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Garrity v. New Jersey
385 U.S. 493 (Supreme Court, 1967)
Spevack v. Klein
385 U.S. 511 (Supreme Court, 1967)
Gardner v. Broderick
392 U.S. 273 (Supreme Court, 1968)
Donaldson v. United States
400 U.S. 517 (Supreme Court, 1971)
Barnes v. Oddo
219 F.2d 137 (Second Circuit, 1955)
Anna Smith v. United States Civil Service Commission
520 F.2d 731 (Seventh Circuit, 1975)
Federal Maritime Commission v. Port of Seattle
521 F.2d 431 (Ninth Circuit, 1975)
Shaughnessy v. Bacolas
135 F. Supp. 15 (S.D. New York, 1955)
Securities and Exchange Commission v. Kaplan
397 F. Supp. 564 (E.D. New York, 1975)

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Bluebook (online)
443 F. Supp. 1194, 1977 U.S. Dist. LEXIS 12234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alleged-prohibited-political-activity-philadelphia-redevelopment-paed-1977.