February 12, 2002 chapter 4: pre-hearing requirements black letter: 1

Oklahoma Press Publishing Co., the Court stated that "as far as administrative subpoenas are concerned, the gist of the Fourth Amendment protection is the requirement that the disclosure sought shall not be unreasonable [in scope]." 327 U.S. at 208.

71 See In Re Office of Inspector General, Railroad Retirement Board, 933 F.2d 276, 277 (5^th Cir. 1991) (holding that judicial review in a subpoena enforcement proceeding is limited and to be handled summarily). But see United States v. Witmer, 835 F. Supp. 208, 220 (M.D.Pa. 1993), aff’d without opinion, 30 F.3d 1489 (3d Cir. 1994) (holding that a court must do more than "rubber stamp" the issuance of an administrative subpoena).

72 Dow Chemical Co. v. Allen, 672 F.2d 1262, 1267 (7th Cir. 1982) (burdensomeness decision reviewed under abuse of discretion standard).

73 ^ EEOC v. A.E. Staley Mfg. Co., 711 F.2d 780, 788 (7^th Cir. 1983), cert. denied, 466 U.S. 936 (1984) (abuse of process consists of wrongful conduct by the government, improper purpose of the government, or a purpose outside of agency's proper jurisdiction); SEC v. Wheeling Pittsburgh Steel Co., 648 F.2d 118 (3d Cir. 1981) (improper interference by Senator on behalf of competitor influenced SEC to launch investigation); . Similarly, if the agency engages in fraud or trickery, its subpoena could be an abuse of process. SEC v. ESM Government Securities, Inc., 645 F.2d 310, 317-18 (5^th Cir. 1981)) (fraud, deceit, or trickery in the context of the investigation constitutes an abuse of process). The opposing party has the burden of proving abuse of process or the unlawfulness of the subpoena and the party must establish facts that raise doubts about an agency's good faith before being permitted to conduct discovery. See United States v. Wilson, 864 F.2d 1219, 1222 (5th Cir.), cert. den. 492 U.S. 918 (1989); SEC v. Dresser Industries, Inc., 628 F.2d 1368 (D.C.Cir. 1980), cert. den. 449 U.S. 993 (1980).

74 See Reich v. Great Lakes Indian Fish and Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993). One court held that it could resolve both statutory questions of agency jurisdiction that are not clear on their face as well as First Amendment issues in a subpoena enforcement proceeding where these claims are otherwise ripe for review and the subpoena imposes a substantial burden. Commodity Trend Service, Inc. v. CFTC, 233 F.3d 981, 986-95 (7th Cir. 2000). This decision seems questionable in light of Supreme Court authority precluding judicial review of such issues at the subpoena enforcement stage.

75 Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1516 (D.C.Cir. 1993), citing FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C. Cir. 1992) and FTC v. Lonning, 539 F.2d 202, 210 n. 14 (D.C. Cir. 1976).

76 FTC v. Texaco, Inc., 555 F.2d 862, 874 (D.C.Cir.), cert. den. 431 U.S. 974 (1977).

77 See ¶4.049.

78 See CAB v. Hermann, 353 U.S. 322 (1957) (upholding subpoena for all books, records and documents of an airline and its stockholders for period of 38 months); EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981) (respondent must show subpopena would threaten normal operation of business); EEOC v. Maryland Cup Corp., 785 F.2d 471, 477 (4^th Cir. 1986), cert denied, 479 U.S. 815 (1986) (failure to show that subpoena was unduly burdensome in light of normal operating costs nor that gathering information would threaten normal business operations). Courts are skeptical about exaggerated claims of the cost of compliance. See EEOC v. Quad/Graphics, Inc., 63 F.3d 642, 648-49 (7th Cir. 1995).

79 SEC v. Arthur Young & Co., 584 F.2d 1018, 1033 (D.C. Cir. 1978), cert. denied, 439 U.S. 1071 (1979). See also EEOC v. Maryland Cup Corp., 785 F.2d 471, 477 (4^th Cir. 1986) (noting that some courts apply Rule 45 by analogy but that it would not be warranted here where the notes to the Federal Rules state that they do not apply under the NLRA).

80 Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993).

81 EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994) (limiting time period from twelve years to three years because information sought at beginning of period was of tenuous relevance and full compliance would be very costly).

82 See Grimm v. Brown, 291 F. Supp. 1011, 1014 (N.D.Cal. 1968), aff’d, 449 F.2d 654 (9^th Cir. 1971) (quoting Powhatan Mining Co. v. Ickes, 118 F.2d 105 (6^th Cir. 1941)). Because of the emphasis on the fairness of the hearing, the failure of an agency to issue subpoenas is only a reversible error when it deprives the party of relevant and substantial evidence, and when that deprivation is determined to be prejudicial. See NLRB v. Seine & Line Fishermen’s Union, 374 F.2d 974, 981 (9^th Cir. 1967), cert. denied, 389 U.S. 913 (1967).

83 Henley v. United States, 379 F. Supp. 1044, 1048 (M.D.PA 1974) (citing DeLong v. Hampton, 422 F.2d 21, 24-25 (3d Cir. 1970)).

84 See SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735 (1984) (agency not required to inform target of investigation that subpoenas have been issued to third parties).

85 See Upjohn Co. v. U.S., 449 U.S. 383, 389-97 (1981) (attorney-client privilege applies in tax investigation subpoena proceeding to communications between attorneys and corporate employees below the control-group level). .

86 Upjohn Co. v. United States, 449 U.S. 383, 398-99 (1981) (allowing work product privilege in tax summons enforcement proceeding).

87 SEC v. Lavin, 111 F.3d 921, 925 (D.C.Cir. 1997).

88 Detailed analysis of the Fifth Amendment privilege is beyond the scope of this book.

89 Detailed analysis of executive privilege or other privileges unique to government is beyond the scope of this book. The numerous authorities involving executive privilege under the Freedom of Information Act's exception for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency" are relevant to subpoena enforcement proceedings. APA §552(a)(5).

90 ^ University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).

91 APA §551(3) provides: "'party' includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;. . ."

92 Section 554(c) provides: "The agency shall give all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and (2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title."

93 Attorney General's Manual 48. See New York State Dep't of Law v. FCC, 984 F.2d 1209, 1218-19 (D.C.Cir. 1993) (this provision leaves agency with substantial discretion concerning settlement discussions and does not automatically require notice to all interested parties of pending settlement discussions).

94 APA §555(b) provides: "So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function."

95 See, e.g., American Communications Ass’n v. United States, 298 F.2d 648, 650 (2d Cir. 1962).

96 The Attorney General’s Manual states that “this provision is not to be construed as requiring an agency to give notice of its proposed action and to invite appearances by interested persons.” Instead, §555(b) provides for informal appearance by parties with an opportunity to discuss issues and decisions with responsible members of the agency. Further, there is no need to provide an opportunity for even an interested party to present an argument that has already been raised or proposed. Attorney General's Manual 63. Similarly, see David L. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 766 (1968), arguing that §555(b) does not confer all the rights of parties but may present an opportunity to be heard if worthwhile to the proceeding.

97 See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940) (observing, in pre-APA case, that intervention and similar questions were left to Commission). See also American Trucking Ass’n v. United States, 627 F.2d 1313 (D.C. Cir. 1980). But see National Welfare Rights Org. v. Finch, 429 F.2d 725 (D.C.Cir. 1970) (finding that party has right to intervene even in absence of any statute permitting intervention).

98 See, e.g., National Labor Relations Act § 10(b); 29 U.S.C. § 160(b) ("In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony.") The agency statutes governing intervention are often vague and imprecise in defining the procedural requirements for intervention and the extent of intervenors’ rights. Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise §16.10 at 65 (3d ed. 1994).

99 See, e.g., Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990); American Trucking Ass’n v. United States, 627 F.2d 1313, 1319 (D.C. Cir. 1980); S. C. Loveland Co., Inc. v. United States, 534 F.2d 958 (D.C. Cir. 1976).

100 See American Trucking Ass’n v. United States, 627 F.2d 1313, 1322-1323 (D.C. Cir. 1980) (citing 14 C.F.R. §302.15(b) as a rule similar to other agency intervention rules).

101 See, e.g., Nichols v. Board of Trustees, 835 F.2d 881, 896 (D.C. Cir. 1987) (beneficiaries of ERISA plan possessed an interest in a proceeding that might reduce their benefits). See generally Alleghany Corp. v. Breswick & Co., 353 U.S. 151, 173 (1957) (while "interest" may be defined as a legal right or interest that will be injuriously affected by an order, the definition is not easily applied and must always take into account the context of the situation and of the parties); American Trucking Ass’n v. United States, 627 F.2d 1313, 1319 (D.C. Cir. 1980) (no ready and convenient definition in the case law).

102 Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1946).

103 United Church of Christ v. FCC, 359 F.2d 994 (D.C.Cir. 1966); National Welfare Rights Org. v. Finch, 429 F.2d 725 (D.C.Cir. 1970). See also Nichols v. Board of Trustees, 835 F.2d 881, 896 (D.C. Cir. 1987) (citing numerous cases).

104 See Nichols, 835 F.2d at 896, n.108; Ecee, Inc. v. FERC, 645 F.2d 339, 349 (5^th Cir. 1981); Koniag, Inc. v. Andrus, 580 F.2d 601, 606 (D.C. Cir. 1978);

105 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (requiring courts to defer to agency's reasonable interpretation of ambiguous statute).

106 Envirocare, Inc. v. NRC, 194 F.3d 72, 74 (D.C. Cir. 1999) (NRC's rule excluding intervention by competitors of license applicant is reasonable since NRC feared that such intervention would likely serve as a dilatory tactic and an abuse of hearing process).

107 A pre-APA case states that intervenors deserved full rights of participation including cross-examination. FCC v. NBC, 319 U.S. 239 (1943). This decision would probably not be followed under the APA.

108 See United Church of Christ, supra note xx; Nichols v. Board of Trustees, 835 F.2d 881, 898-99 (D.C. Cir. 1987) (emphasizing that trial-type proceedings are not always required for intervenors).

109 Vinson v. Washington Gas Light Co., 321 U.S. 489, 498 (1944).

110 See, e.g., United Church of Christ, supra note xx; Dellums v. NRC, 863 F.2d 968 (D.C.Cir. 1988).

111 APA §555(b).

112 Consolidated Edison Co. v. Breznay, 873 F.2d 301, 307 (T.E.C.A. 1989).

113 Id. at 309-310.

114 Citizens for Fair Utility Regulation v. United States Nuclear Regulation, 898 F.2d 51, 54 (5^th Cir.), cert. denied, 498 U.S. 896 (1990).

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