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July 13, 1964

Paul Rand DIXON, the Federal Trade Commission, et al., Defendants

The opinion of the court was delivered by: COOPER

Plaintiff's motion, brought on by order to show cause, is for a preliminary injunction arising out of its action filed here June 1, 1964. Defendants move to dismiss the complaint which seeks declaratory judgment, injunction and a writ of mandamus.

Over the issues raised here this Court has jurisdiction; proper venue lies, 28 U.S.C. § 1361 and § 1391(e).

In December, 1961, the Federal Trade Commission commenced an action against plaintiff alleging violation of Section 2(a) of the Clayton Act, 15 U.S.C. 13(a). Testimony has been adduced before defendant Hearing Examiner in the F.T.C. proceedings. He has not yet filed his report; the record before him is almost complete. It is principally with the conduct of the proceedings before the Hearing Examiner that plaintiff complains. We shall address ourselves to the gravamen of those grievances.

 Plaintiff claims that while in its employ, one Prosser, angered with his employer, took from its files without authorization certain documents which he promptly turned over to F.T.C. attorneys and offered himself as a witness in the F.T.C. proceedings against plaintiff. Most serious is the charge that such attorneys 'cooperated' with Prosser in the 'theft' of the documents, thereby invading plaintiff's constitutional rights; that the alleged unlawful removal of the documents constitutes an illegal search and seizure in violation of the Fourth Amendment to the Constitution; that Knoll's application to the Hearing Examiner, and interlocutory appeal to defendant Commission, calling for a direction 'that these attorneys be authorized and directed to testify concerning their complicity in the unauthorized removal of the documents' were erroneously refused (Plaintiff's memorandum p. 6); that the Hearing Examiner also denied plaintiff's motion 'for the production of documents in the files of the Commission relating to the Commission's communications with Prosser * * *' and thus blunted plaintiff's 'further attempt to bring out the facts concerning the relationship of the Commission's attorneys to the thief and the unlawful removal of the documents * * *' which were 'essential for a full presentation of the evidence concerning Commission counsel's involvement.' (Plaintiff's memorandum p. 6).

 Plaintiff further claims it has been aggrieved by the refusal of the Hearing Examiner to direct the production by the Government of a written statement signed by Prosser before taking the stand.

 In essence the situation briefly outlined in the two paragraphs immediately above constitutes the bases for plaintiff's action -- the allegations of the complaint, for purposes of this application, considered true -- and the instant proceeding for a temporary injunction.

 Certainly it is clear that if, in the course of the proceedings before the Hearing Examiner, any of plaintiff's constitutional rights were disregarded, or if a substantial unfairness were accorded plaintiff there so that a fair and impartial hearing was denied it, or the proceedings were tantamount to an unwarranted trespass upon its rights, this Court should not hesitate to step in. Under 28 U.S.C. 1361 the Court has jurisdiction to compel the performance of a duty, and this goes far beyond ministerial duties, for fundamental trial rights are not immaterial.

 Such judicial interference is not warranted, however, if the alleged irregularities are of such nature as would not prevent a valid order ultimately issuing from the administrative agency. Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 146, 60 S. Ct. 437, 84 L. Ed. 656 (1940); Public Utilities Commission v. United Fuel Co., 317 U.S. 456, 63 S. Ct. 369, 87 L. Ed. 396 (1943); National Lawyers Guild v. Brownell, 96 U.S.AppD.C. 252, 225 F.2d 552, 555 (1955), cert. denied, 351 U.S. 927, 76 S. Ct. 778, 100 L. Ed. 1457 (1956). In the case last-named, an observation pertinent here was made:

 'We cannot assume in advance of a hearing that a responsible executive official of the Government will fail to carry out his manifest duty. Our conclusion on the point is that the plaintiffs must await the event rather than attempt to anticipate it.'

 We have no hesitancy in declaring that if the record before us contains any one of the objections strenuously presented by plaintiff, judicial direction would be warranted here and now, provided plaintiff has met the test that it 'must make the strongest kind of showing; his jurisdictional 't's' must be crossed and the factual 'i's' dotted.' Wolf Corporation v. Securities and Exchange Commission, 317 F.2d 139, 143 (D.C.Cir.1963).

 What then does the record really show? It shows an orderly and considerate proceeding before the Hearing Examiner supporting this ruling:

 'The documents allegedly unlawfully seized have not been proven to be the property of the complaining party. The Federal Trade Commission, against whom complaint is made, had absolutely nothing to do with Prosser's reducing the documents to possession. In summary, there simply is no unlawful search and seizure proven or inferable in this record.'

 As to Prooser's statement signed by him prior to the hearing: While full opportunity existed to do so, no foundation was laid calling for its production. From the transcript of the hearings before the Hearing Examiner, it appears that plaintiff neither challenged Prosser's credibility nor charged inconsistencies in his testimony nor claimed the statement essential for impeachment purposes. The Jencks doctrine is applicable to statements made to government agents by government witnesses and in areas of trial substantially differing from the situation here where Prosser, after all, was plaintiff's witness even though a hostile one. Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957); Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959); 18 U.S.C. § 3500.

 Some of the contested documents have been received in evidence by the Hearing Examiner. Plaintiff's motion to strike them is sub judice. The Hearing Examiner has yet to make his decision on the merits, reviewable first by the Commission and then by the Court of Appeals. At his point in the administrative proceedings, we should remind ourselves of the ...

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