Hyster Company, Appellant, v. United States of America, Appellee, 338 F.2d 183 (9th Cir. 1964)

Hyster Company attacks the constitutionality of the Antitrust Civil Process Act (76 Stat. 548, 15 U.S.C. §§ 1311-1314, Supp. 4, (1963)), and of a "civil investigative demand" issued under the Act and served upon Hyster. It also is claimed that the demand is invalid for non-compliance with the Act. The trial court upheld the Act and the demand in all respects. We are affirming.

The action was brought under section 5(b) of the Act (15 U.S.C. § 1314(b)). The petition has attached to it a copy of the demand, and alleges that it was received by Hyster on April 16, 1963, by registered mail.¹  Hyster then proceeds to allege various grounds upon which it contends that the demand is invalid.²  Certain of these were abandoned at the hearing. On this appeal, Hyster asserts:

1. That the Act violates the Fourth Amendment to the Constitution "because any civil investigative demand issuable thereunder is a form of compulsory process, and the permitted and authorized circumstances under which such a demand can be issued, the manner in which it can be served and employed, the scope of the documentary material which may be called for, the purposes for which it can be employed and the subsequent use to which the documentary material thus obtained can be put, alone and cumulatively, constitute an unlawful search and seizure."

2. The demand is an unlawful search and seizure, for the same reasons, and thus violates the Fourth Amendment.

3. The demand violates the Fifth Amendment³  to the Constitution "Because the Demand * * * would require implicit testimony by the executives and employees of Hyster in the process of making a selection of documentary material in response to the Demand without the opportunity of gaining immunity against self-incrimination under the Fifth Amendment * * * and for the same reasons, the said executives and employees would be denied the protection of the immunity provisions of 15 U.S.C. §§ 32-33."

4. The demand does not comply with the Act. The grounds are, as nearly as we can gather from the briefs:

(a) That there is no showing that Hyster is "under investigation" (§ 3 (a) and (b) (1), 15 U.S.C. § 1312(a) and (b) (1));⁴ 

(b) that there is no sufficient statement of the "nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable thereto" (§ 3(b) (1), 15 U.S.C. § 1312(b) (1));

(c) that there is no sufficient description of "the class or classes of documentary material to be produced thereunder with such definiteness and certainty as to permit such material to be fairly identified" (§ 3(b) (2), 15 U.S.C. § 1312(b) (2));⁵ 

(d) that it does "require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena * * * in aid of a grand jury investigation * * *." (§ 3(c) (2), 15 U.S.C. § 1312(c) (2)).

Arguments similar to those urged in support of grounds 1, 4(b), 4(c) and 4 (d) were considered at length by Judge Nordbye in a proceeding involving a comparable demand, Petition of Gold Bond Stamp Company, D.C.Minn., 1963, 221 F. Supp. 391. He rejected them. His decision was unanimously affirmed by the Court of Appeals for the Eighth Circuit, "on the basis of his opinion," which was said to contain an "excellent and comprehensive analysis of the Act." Gold Bond Stamp Company v. United States, 8 Cir., 1964, 325 F.2d 1018. We agree with that decision. We can see no benefit to be gained by anyone from an opinion by us restating the same conclusions.

In this case, Hyster makes much of the fact that the Attorney General, whose duties include prosecution, is the party on whom the power to demand is conferred. The theory is that while it may be proper to confer such authority upon the Federal Trade Commission (e. g., United States v. Morton Salt Co., 1950, 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401), or the Administrator of the Wage and Hour Division of the Department of Labor (e. g., Oklahoma Press Pub. Co. v. Walling, 1946, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614), or on other "quasi-judicial" or "administrative" bodies or officers, it is not proper to confer it upon the Attorney General.

We are not convinced. The F.T.C. and the Administrator have investigative and enforcement powers and duties, primarily civil in nature. So do many other commissions and administrators. (See 1 Davis, Administrative Law, § 3.03 (1958)) So does the Attorney General under the antitrust laws. (15 U.S.C. §§ 4, 9, 25) He also has the duty to institute prosecutions. We have no doubt that it is within the power of administrators or administrative boards or commissions, if in the course of authorized investigations they uncover evidence of the commission of crimes, to refer that evidence to the Attorney General. In some cases, Congress has expressly conferred such authority. (E. g., The Emergency Price Control Act of 1942, 56 Stat. 23, § 205(b), 56 Stat. 33) In our case the Act, section 4(d) (15 U.S.C. § 1313(d)) authorizes delivery of documents to an attorney authorized to appear before a grand jury in a proceeding involving antitrust violations. The fact that the Attorney General can himself institute a prosecution, instead of referring the information to someone else, may be a distinction, but we do not think that it makes a constitutional difference. He is still a public officer, exercising functions conferred upon him by law. There is no presumption that he will abuse his powers, quite the contrary, and there certainly is no showing that he is doing so in this case.

Ground 2 is based upon the same reasons as ground 1, and we likewise reject it. We would add that the demand is enforcible only in a judicial proceeding brought either by the Attorney General or the person served (section 5(a), (b), (d), 15 U.S.C. § 1314(a), (b), (d)).⁶  Moreover, section 5(e) (15 U.S.C. § 1314 (e)) makes the Federal Rules of Civil Procedure applicable to any petition under the Act. Thus there is available to Hyster, in a petition to modify or set aside the demand, the safeguards afforded by rules 34 and 30(b). The court has a broad discretion to protect Hyster from an unreasonable demand. And it is only "unreasonable" searches and seizures to which the Fourth Amendment refers. We do not find the demand unreasonable on its face, and Hyster has made no attempt to show that it is unreasonable in its actual application to Hyster. (Cf. Hunt Foods and Industries, Inc. v. F.T. C., 9 Cir., 1961, 286 F.2d 803, 810-812, where such a showing was made and an F.T.C. subpoena was modified by consent, accepted by the court, and enforced as so modified.)

As to ground 3, we note that Hyster is the only party before the court. As a corporation, it has no privilege against self-incrimination. Hale v. Henkle, 1906, 201 U.S. 43, 74-75, 26 S. Ct. 370, 50 L. Ed. 652; Baltimore & Ohio R. R. v. I.C.C., 1911, 221 U.S. 612, 622, 31 S. Ct. 621, 55 L. Ed. 878; Wilson v. United States, 1911, 221 U.S. 361, 382-384, 31 S. Ct. 538, 55 L. Ed. 771. It cannot assert the privilege on behalf of someone else. Hale v. Henkle, supra, 201 U.S. at 69-70, 26 S. Ct. 370; Rogers v. United States, 1951, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344. Moreover, for all that appears, there may be responsible officers or employees of Hyster who could do the necessary work of selecting the required documents without incriminating themselves even in the rather nebulous manner that Hyster conjures up, because they personally had nothing to do with the transactions to which the documents relate. We note, too, that the demand does not, and cannot under the Act, contain an ad testificandum clause. On its face, it does not compel anyone to be a witness, much less a witness against himself.

There remains ground 4(a). Under the Act, the demand can be served only on a "corporation, association, partnership, or other legal entity not a natural person" (section 2(f), 15 U.S.C. § 1311(f)) which is "under investigation" (section 3(a), 15 U.S.C. § 1312(a)). The Act does not require that the demand state that the addressee is "under investigation." The demand does state that it "is issued pursuant to the provisions of" the Act. (Footnote 4, supra) We think this a sufficient allegation. Hyster does not allege that it is not under investigation. There is a presumption that a public officer is acting lawfully. We have applied it in closely analogous situations. Bowles v. Northwest Poultry & Dairy Products Co., 9 Cir., 1946, 153 F.2d 32, 34; Hagen v. Porter, 9 Cir., 1946, 156 F.2d 362, 364-365. We see no reason for not applying it here.

Affirmed.