The opinion of the court was delivered by: MCLEAN
On August 12, 1965, a Hearing Examiner of the Federal Trade Commission issued an order directing respondents to produce certain documents by way of pre-trial discovery in a pending Federal Trade Commission proceeding charging respondents with violation of the Robinson-Patman Act (15 U.S.C. § 13). Respondents refused to comply with the order. Thereafter, by order dated January 19, 1966, the Commission decided to request the Attorney General to "initiate civil enforcement proceedings under Section 9 of the Federal Trade Commission Act against the aforesaid respondents to require compliance with the hearing examiner's order of August 12, 1965." Such a request was made and pursuant to it the United States Attorney moved this court, by order to show cause and supporting affidavit, for an order directing respondents to comply.
Respondents now move under Rule 12(b) (the particular subdivision of Rule 12(b) is not specified), for an order "dismissing petitioner's application." Respondents contend that this court is without jurisdiction to entertain the application in this summary fashion, and that the government must proceed by plenary action in order to obtain this relief.
Section 9 of the Federal Trade Commission Act (15 U.S.C. § 49) provides, among other things, as follows:
"Upon the application of the Attorney General of the United States, at the request of the commission, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of sections 41-46 and 47-58 of this title or any order of the commission made in pursuance thereof."
The reference to "the provisions of sections 41-46 and 47-58 of this title" in this statute includes another portion of Section 49 which empowers the Commission to require the production of documentary evidence. By regulations made pursuant to power granted by 15 U.S.C. § 46(g), the Commission has adopted rules of practice which include a Rule 3.11, similar to Federal Rule of Civil Procedure 34, providing for the production and inspection of documents before trial.
15 U.S.C. § 49 says that the district courts shall have jurisdiction to issue writs of mandamus. This section was enacted in 1914. Since then, writs of mandamus have been abolished. Federal Rule of Civil Procedure 81(b) provides that:
"Relief heretofore available by mandamus . . . may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules."
This provision is not helpful in resolving the present problem, for the precise question here is whether, in order to obtain the relief which Congress has said shall be obtainable by a "writ of mandamus," the government must proceed by action or motion. Rule 81(b) seems to provide for both an action and a motion, providing that they are "appropriate." I am called upon to determine whether a motion is appropriate under these circumstances.
In support of their contention that the government must proceed by plenary action, respondents rely most heavily upon a footnote in United States v. Powell, 379 U.S. 48, 58, 13 L. Ed. 2d 112, 85 S. Ct. 248 note 18 (1964). That was a proceeding to enforce an Internal Revenue summons requiring respondent to produce records. The Court treated the application as though it were made under 26 U.S.C. § 7402(b) and 26 U.S.C. § 7604(a), which are virtually identical. Section 7604(a) provides:
"(a) Jurisdiction of district court. - If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data."
The Court's opinion was devoted to the merits of the case before it, which are of no relevance here. However, in the footnote on p. 58, the Court said:
"Because § 7604(a) contains no provision specifying the procedure to be followed in invoking the court's jurisdiction, the Federal Rules of Civil Procedure apply, Martin v. Chandis Securities Co., 9 Cir., 128 F.2d 731. The proceedings are instituted by filing a complaint, followed by answer and hearing."
Martin v. Chandis Securities Co., 128 F.2d 731 (9th Cir. 1942), which the Supreme Court cited, did say that the Federal Rules of Civil Procedure apply to a proceeding to enforce an Internal Revenue summons. The only consequence of this ruling in that case, however, was that the ...