*1 inspection such who resists plaintiff COMMISSION, TRADE
instant case.69 FEDERAL Appellee, request for plaintiff’s Finally, to be motivated part seems in document has whether the CIA to determine a desire DE COMPAGNIE into or had a investigation
frustrated SAINT-GOBAIN-PONT-A-MOUSSON, Ken- of President the assassination role in Appellant. public has in which nedy event —an No. 78-2160. unending interest. almost demonstrated great in an area of request, an FOIA Such Appeals, Court of United States to demon- that seeks public interest and District of Columbia Circuit. Agency’s ac- of the impropriety strate Argued 18 Oct. tions, inspection especially makes in camera appropriate.70 Decided 17 Nov.
IV. CONCLUSION stated, we reverse the reasons herein
For judgment of the District portion applicable holding Exemption
Court con- routing instructions filing Further, we va- document.
tained in the holding judgment portion
cate the other applicable
Exemptions 1 and document, and remand
portions of inspection71 camera determine
an in exemptions. two
applicability of the part, part,
Reversed in vacated
remanded. however, as the other considerations Opposition inasmuch of In Camera
69. See to Submission CIA, Affidavit, in- that in camera Action No. themselves demonstrate Allen v. D.D.C. Civil 9, 1980, 78-1743, reprinted necessary.” January “plainly spection received App. 81-82. free, course, court is also 71. The trial reply appellant charges the CIA In his brief procedures it believes further undertake necessary, informing the trial court with bad faith in not requiring in camera affida- such as pertaining regulation to classifi- that a certain CIA, applicabili- to determine vits from had been cation under Executive Order 12065 por- ty Exemptions to the withheld 1 and 3 appellant reply at 18- amended. See brief for tions of the document. faith, 19. We do not the issue of bad address
1303 *4 Jr., Child, T. Synnestvedt, John John S. Lechner, Philadelphia, Pa., Synnestvedt & appellant. for Pa., Masterson, Philadelphia, Thomas A. Supreme Court of member of the bar of vice, by special States, hac pro the United court, Kirkpa- Miles W. with whom leave D. Edward trick, Charles W. Smith C., Wilson, Jr., D. were on Washington, brief, for appellant. C., Atty., F. T. M. Fitzgerald,
David C., whom Michael N. Washington, D. Norton, Counsel, P. Sohn, Gerald General Cross, Dennis W. Deputy Gen. Counsel C., Washington, Counsel, D. F. T. Asst. Gen. brief, C., appellee. on were for WILKEY, Cir Before McGOWAN *, Judges United States and GESELL cuit of Columbia. the District Judge District Opinion for the Court filed Circuit Judge WILKEY.
Opinion by Circuit concurring Judge filed McGOWAN.
* by designation pursuant Sitting 28 U.S.C. 292(a).
WILKEY,
Judge:
Circuit
within the area of the foreign country’s
sovereignty. Though
territorial
some tech-
This case
a narrow issue of
addresses
niques
may prove
of service
less obnoxious
consequence:
broad international
did Con-
sensibilities,
than others to
our rec-
gress expressly
impliedly authorize the
ognition of those sensibilities must affect
(FTC or
Federal Trade Commission
Com-
willingness
our
congressional
to infer
au-
mission)
investigatory subpoe-
to serve its
particular
thorization for a
mode of service
directly upon
nas
of other countries
citizens
from an otherwise silent statute.
In the
registered
Although
means of
mail?
foreign country’s
protest
face of the
direct
question appears
the surface this
to rest
here,
to the mode of service employed
solely upon statutory interpretation, our an-
congressional
in the absence of clear
intent
it
primarily guided by
recog-
swer to
our
at the time this
was served to
prin-
nition of established and fundamental
authorize that manner of exercise of Ameri-
ciples of international
law.
sovereign power,
can
we decline to infer the
long
Federal courts have
acknowl
necessary statutory authority for the FTC’s
edged
investigatory
regulat
chosen
of subpoena
mode
service.
ory2
agencies
reach of domestic
may, and
must,
often
extend across national bounda
I. BACKGROUND
previously recognized
ries. This court has
engaged
1977 the FTC has
Since
been
agencies may
those
certain cir
under
nonpublic
investigation
antitrust
compel production
cumstances
of documents
fiberglass
industry
U.S.
insulation
to deter-
cannot, however,
located abroad.3 We
sim
*5
fiberglass
mine whether a number of
manu-
ply
precedents
assume from these
that Con
facturers
engaged
and distributors have
in
gress
regulatory
intended to authorize
practices
acts or
in violation of section 5 of
agencies
general
partic
in
the
in
FTC
—and
principal targets
the FTC Act.4 One of the
employ
ular-—to
all
any and
methods to
investigation
Compag-
FTC
has been
compulsory process
conducting
serve
when
nie
investigations.
their
an American
de
Saint-Gobain-Pont-a-Mousson
When
(SGPM),
regulatory agency
holding
a French
directly
company
serves its com
head-
Paris,
pulsory process upon
quartered in
general
a citizen of a
but with a
dele-
country, the act
gate
City.5
Septem-
of service itself constitutes
based in New York
In
sovereign power
an exercise of American
ber 1977 the Commission issued four identi-
DeSmedt,
464,
(2d Cir.),
engaging
1. FMC v.
366 F.2d
471
bution or
sale
insulation are
or
denied,
engaged
practices
may
cert.
87 S.Ct.
have
in acts or
Artemisa,
(1966);
competition
L.Ed.2d 439
SEC v. Minas de
have restricted
in the manufac-
(9th
1945).
ture,
150 F.2d
Cir.
distribution or sale of insulation
...
including
practices
but not limited to acts or
Co.,
2. American Banana
v. United Fruit
Co.
relating
licensing
patents applicable
to
to
(1909);
U.S.
29 S.Ct.
Rule by regis- locutions)29 subpoenas rating engendered service of had authorized identical 4.4(a), as mail.27 Yet rule surprising controversy. tered or certified v. DeS FMC medt,30 service, suggested at the time of it existed Judge Friendly reviewed the legis where, whom, sub- limits or no history any place of the “from in the lative might properly be served. poenas provision language United States” nearly identical to that found in the FTC was challenged the When He found that phrase Act.31 the had first served, instruc- only statutory the source of original the Act32 in been added to ICC range permitted geographic to the tion as agency’s power the to com clarify order to subpoena service was FTC Act section pel appearance by a witness’ in the to re- empowered Commission States, the but outside the side United wit- by subpoena the attendance of quire judicial district in which boundaries production documentary the nesses and Despite the witness resided.33 note of investi- relating to a matter under evidence injected caution dissent any place “from in the United gation DeSmedt,34 adopt this Circuit chose to States, any designated place of hear- at seemingly unambiguous Judge Friendly’s' virtually This lan- rationale without ing.”28 tion, incorporated or association to be [sic] Id. at served. challenged was 27. At the time notices, (2) including All and other orders served, 4.4(a)(1) section er the FTC’s Rules access, subpoenas, requiring orders orders to provided: Practice and Procedure special reports, file annual and notices may Service of . .. be effected as default, may by any be served method rea- follows: sonably person, certain to inform the affected (1) By registered copy or certified mail—A partnership, corporation, unincorporated or to the of the document shall be addressed including any specified association method person, partnership, corporation or unincor- paragraph (a)(1) this section. his, porated to be served at her or association 56,903 (1978) (codified Fed.Reg. 43 at 16 C.F.R. principal place its residence or office or 4.4(a)). (emphasis added). § certified, business, registered or .. mailed. 28. 15 (1976) (emphasis added). For § U.S.C. 4.4(a) (1978) 16 C.F.R. § text, supra. full see note 8 Subsequent sub- to the service of the instant decision, poena and the district court’s 29. Section its lan- 9 of the FTC Act derives provide: Commission amended rule 4.4 to guage from § Interstate Commerce Act 4.4 Service § 12(2) (1976), phrases incorporates § U.S.C. (a) By (1) Service of Commission. provisions conferring subpoena identical to au- orders, decisions, complaints, initial final CAB, thority agencies, including on other processes other under 15 Commission FMC, 1484(c) (1976), 49 U.S.C. 46 U.S.C. § may be effected as follows: U.S.C. SEC, 826(a) (1976), 77s(b) and the § U.S.C. § (1976). (i) By registered copy or certified mail.—A of the document shall be addressed person, partnership, corporation or unincor- Cir.), denied, (2d F.2d 464 cert. his, porated association to be served at her or (1966). 87 S.Ct. L.Ed.2d 439 principal place its residence or office or business, certified, mailed; registered or 31. Section Shipping Act of 46 U.S.C. or (1976). § 826 copy (ii) By delivery to an individual.—A may person be delivered to be thereof 32. 49 U.S.C. originally As enact- served, partnership or to a member of the ed, amended, (1887), 24 Stat. and as first served, president, secretary, or be or (1889), 25 Stat. 859 Act did not contain ICC other executive officer or a director of the phrase any place “from in the United corporation unincorporated or association to States.” See 366 F.2d 470-71. served; or By delivery copy (iii) to an address. —A 33. Id. may principal thereof place be left at the office or person, partnership, of business of the Moore, DeSmedt, dissenting Judge 34. Circuit association, corporation unincorporated or observed: person it be left at the residence of tne Congress partnership authorized the a member of or of an When or of corpora- place of evidence “from in the United executive officer or director of
1309 neither Ak- legislative branch —in Lufthansa dorsed v. Deutsche analysis in CAB nor Lufthansa propriety was the DeSmedt tiengesellschaft,35 language finding that technique subpoena service at a limita- intended as “was not question Furthermore, authority, expressly but neither case issue. subpoena agency on tion geo- agency particular situation before free the considered ... to rather subpoenas foreign on citizen imposed subpoena upon limitations graphic us— 36 Thus, courts.” neither the residing the district soil.38 issued statute, cases nor the terms of the relevant clearly suggested these cases While terms, conclusively settle those interpreting subpoenaed might be that documents us. the novel issue before inside anywhere agencies from regulatory history cases, legislative and, Nor does the in some the United States — any statutes afford us Act or similar when located out even might be obtainable and the parties agreed,39 Both guidance. jurisdiction of the Unit territorial side the that acknowledged,40 suggested court below they by no means ed States37 — history of the Act was subpoena time of service the FTC Congress intended that regarding which modes “wholly limits silent” place or manner power to have no investigatory service of light cast on the opinion Neither whatever. proper. were or were not expressly en-
modes subpoena service
Artemisa,
215,
1945).
(9th
States,”
presumed
217
Cir.
150 F.2d
that
it was
it is to be
45.01,
territory
¶¶
embraced within
See also 5A Moore’s Federal Practice
aware of the
Smit,
Congress
1976);
(2d
intended to
If
had
As
United States.
ed.
International
45.07
authorizing
production
legislation
Procedure,
pects
such
enact
of Federal
61 Colum.L.
Civil
world,”
again
place
to
1031,
in the
it is
(1961);
Fugate, Foreign
“from
Rev.
1052
W.
sufficiently
3.10-,
presumed
it had available
13
Commerce and the Antitrust Laws §§
used
who could have
skilled draftsmen
(1958); Gill,
Discovery,
Foreign
Problems of
not
instead of “United States” —a
“world”
Brewster,
K.
Antitrust and American Business
draftsmanship.
altogether too difficult bit of
Note,
(1958);
Subpoena Doc
Abroad 474-88
difficulty
to have faced
The real
which seems
Foreign
Located in
Jurisdiction where
uments
majority
demonstrate that the
...
is to
Removal,
Prohibits
37 N.Y.U.L.
Law of Situs
“plain” meaning
States”
of “United
Rev. 295
day,
these terms
Even in this
when
“world.”
appear
becoming congruous,
I find the
to be
DeSmedt,
Friendly
Judge
relied
In
Congress
supposition
could not under-
early
holding
of the Secu
case
that section 19b
difference,
requires judi-
stand the
and hence
1933,
77s(b) (1976),
rities Act of
15 U.S.C. §
intent, quite
legislation
express its real
cial
broadly
empower
was intended
the SEC
incongruous.
require
attendance of witnesses
at 474.
Id
case,
In that
of documents.
By implication, the district court also cre- an accused in a criminal action nor the presumption ated a in favor of means status of a defendant in a civil action. Al- 41. Id. at 291. 46. Id.
42. Id. at 292. 47. Id. at 294. Id. Id. at 294-295. 292-293, citing Id. at CAB v. Deutsche Lufthansa 49. See Part B.1 infra. engesellschaft, Akti see notes 35-36 su DeSmedt, pra text; accompanying v. FMC 50. See Part B.2.a infra. text; supra accompanying see notes 30-34 Artemisa, SEC Minas de see note 38 supra. 51. See B.1 Part infra. Compagnie
45. FTC v. De Saint-Gobain-Pont-A- Mousson, F.Supp. (D.D.C.1980).
13H adjudicative respondent, charging him in an investiga- agency though as a result *11 or more of with violation of one proceeding a eventually be named tion, may SGPM administers, purpose the of action, it is the statutes it presently civil in a defendant notice, rather than com- primarily its service is on notice of witness merely third-party a is respondent Once the served pulsion53 The party a defendant. status as potential the complaint pro- the and accompa- copy with a of tecum and subpoena duces FTC’s order, options the of not, therefore, he then has posed be viewed ought letter nying the counsel to meeting with Commission’s notice giving merely as a summons proceeding order or of against negotiate a consent initiating a lawsuit complaint may which al- litigation, the result of Rather, issuance of a the FTC’s SGPM. any cease-and-de- ways appealed enforce- be before court’s and the district subpoena issue. Not until the cease- may exercise of sist order thereof, a classic represent ment final, through af- and-desist order becomes to secure the process, intended compulsory appeals or the Su- of firmance a court of of and appearance personal (if taken to that Court unwilling preme wit- Court by an otherwise documents certiorari), power of the will the coercive judicial sanctions for through threat of ness brought upon bear the directly courts be noncompliance.52 respondent.54 of notice between service The distinction with compulso- witness is served process is a cru- When a compulsory of and service investigatory process in the form of an ry both domestic principles under of cial one however, of subpoena, consequences agency When an law. and international noncompliance strikingly are different.55 pendency party with notice of serves a produce material action, recipi- the witness fail to thereby supplies Should of an it enforce- may responsive subpoena, the full upon which he with information ent im- the federal courts power When an ment of act or not. base a decision to upon him. mediately brought be to bear process upon a compulsory serves agency statutory a crime witness, the tech- Disobedience is itself both regardless of third-party money a imposition for effectively it and an occasion employed, nique of ju- Commission.may The seek a something penalty.56 and to do compels that witness or a find- directing compliance he dicial order sanctions should threatens him with contempt Thus, respondent is in ing when the FTC comply. choose not to be- Summary proceedings may be complaint upon a court.57 serves a formal issues and adjudicative proceedings respondent’s are might 53. Formal view the FTC therefore 52. We governed by Rules of Prac- position analogous Part 3 of the FTC that of an Ameri- here as tice, seq. (1978). target 16 C.F.R. 3.2 et company §§ of an about to become can investigation Division of the the Antitrust pro- (1976) (enforcement 54. See 15 U.S.C. § Department Division The Antitrust of Justice. visions). agents subpoena of the cor- could officers jury grand poration appear with before adju- “litigative” subpoenas Unlike issued documents, jury resulting grand in- and the agency proceedings, dicative see 16 C.F.R. produce quiry indictment then either an could (1978), investigatory subpoenas are is- 3.34 company civil action American or a Practice, sued under Part 2 of the Rules of against pertinent antitrust laws. it under nonadjudicative seq., governing at 2.1 et §§ id. however, event, In either procedures. agents stage, company the American autho- Federal Trade Commission Act 56. The third-party apprised witnesses would be mere year’s $1000 im- $5000 fine or a rizes a investigation. targets of an of their status as both, prisonment a court conviction give to them would directed jurisdiction, any person competent who ap- compel their them notice of that fact documentary produce evi- refuses to attend or company pearance, nor but neither “in or lawful dence obedience to par- agents would have assumed the status requirement 15 U.S.C. of the Commission.” complaint had been ties until a civil or criminal § 50 proper filed in the court. Rules of Practice for 57. The Procedures and Commission, amended to 1 Federal Trade 81(a)(3),58 gun Fed.R.Civ.P. with a The distinction between under notice and contempt penalty.59 compulsory process, the ultimate finding implications modes noncomplianee, permissible continued In the event of distinction for service, presumably district court could enforce its is well illustrated in the context of by seizing noncomplying respon- litigation. civil Federal Rule of Civil Proce order they might governs found process, dent’s assets wherever dure service of attached,60 by holding effectuating the offi- lawfully primarily concerned not end, corporation in con- ice.61 To that agents provides cers and rule for a *12 tempt, by exercising range or otherwise its discre- wide of alternative methods of ser vice, mail, punish potential including registered tion to a witness’ recalci- each de signed receipt of a to trance. Unlike service summons ensure actual notice defendant, named deliv- of the action complaint upon pendency by a def contrast, investigatory subpoena By 45(c), endant.62 Federal Rule ery of FTC’s service, upon array governing subpoena per a witness carries with it the full does not service, judicial power. any of American mit form of mail nor does it February 1980, (5) provide following range contempt To seek civil in cases where a penalties noncompliance compulsory enforcing compulsory process with court order processes: has been violated. Noncompliance compulsory 2.13 with 16 C.F.R. 2.13 § § processes states, (a) comply 81(a)(3) part: of failure to 58. Fed.R.Civ.P. in cases Com- compulsory processes, appropriate mission apply proceedings compel These rules by action be initiated or the Commission giving testimony 'or of doc- General, Attorney including the enforcement, forfeiture, actions for uments in accordance with a is- penalties or or crimi- by agency sued an office or of the United nal actions. any States under statute of the United States Counsel, (b) pursuant The General to dele- exceptas provided by otherwise statute or Commission, gation authority by with- rules of the district court or order of the power redelegation, out is authorized. proceedings. court in the (1) institute, To behalf of Commis- sion, proceeding an in enforcement connec- 45(f). 59. Fed.R.Civ.P. person, tion with the failure or refusal of a with, partnership, corporation comply or Compagnie 60. See FTC v. De Saint-Gobain- obey, subpoena, or to a if the return date or Pont-A-Mousson, F.Supp. 295-296 any passed; extension thereof has (D.D.C.1980). (2) proceedings To institute enforcement request on behalf of the Commission and to general 61. The on behalf of the attitude of the federal courts is Commission institution actions, conjunc- appropriate, provisions of civil as that the of Rule 4 should be liber- quarterly tion with ally the Commission’s finan- doing construed in the interest of sub- reporting program, cial any if the return date or justice propriety stantial and that the of ser- passed; extension thereof has vice in each case should turn on its own facts (3) approve prepared To and have and is- flexibility provided by within the limits of the sued, in the name of the when Commission the rule itself. This is consistent with the Counsel, appropriate by deemed the General conception process modem of service of a notice of default in connection with the primarily notice-giving a device. person, partnership, corpora- failure of a or Miller, Wright & C. A. Federal Practice and timely report pursuant tion to file a to section (1969 Procedure: Civil § & 6(b) of the Federal Act Trade Commission Supp.1977) (emphasis added). See also id. 46(b) title], [section of this if the return date 1063, at 204: any passed; or extension thereof has primary pro- function of Rule 4 is to (4) institute, To on behalf of the Commis- bringing vide the mechanisms for notice of sion, proceeding an enforcement re- the commencement of an action to defend- Commission, quest, on behalf of the the insti- provide ant’s attention and to a ritual that tution, appropriate by when deemed the Gen- marks the court’s assertion of Counsel, eral of a civil action in connection over the lawsuit. person, partnership, with the failure of a corporation (emphasis added). timely report pursuant file a 6(b) an order under section of the Federal 4(d) (giving options); 62. See Fed.R.Civ.P. seven 46(b) Trade Commission Act of this [section 4(e) (giving options); 4(i) (giving op- two five title], if the return date or extension tions). passed; thereof has served, merely by ign.65 compulsory process When service allow however,, the act of service itself constitutes dwellingplace.63 delivery to a witness’ sovereignty one exercise of nation’s an Rules, compulsory Thus, the Federal under sovereign.66 territory of another within unwilling upon served process may be constitutes a violation of an exercise Such within the person. Even witness law.67 Given its informational States, upon a United and even United nature, from the United service citizen, U.S. by registered States foreign country by registered a into States delivering a valid means of is never mail least intru may thus be viewed as the mail may be a although it process, compulsory service —i. e., the device sive means of and a serving a summons means of valid upon the imposition minimizes the complaint.64 authorities caused official U.S. local being served is the individual When government action within boundaries foreign American on U.S. soil but not an compulsory state.68 Given the na the local soil, be subject on the distinction however, ser subpoena, ture and the service tween the service notice mail citizen on vice direct *13 sig process takes on added compulsory soil, of warning without to the offi foreign of process When in the form nificance. without initial cials of the local state and overseas, complaint prior is served to established request summons for or resort process judicial that assista the informational nature of channels of international nce,69 relatively perhaps maximally ben is intrusive.70 the act of service renders 64. 65. See note 61 63. for that — to the 657, proceedings posed by ties” intervention vately probate of fying gal Civ.P. civil ed) Minn.L.Rev. & Trust service service addressee may [hereinafter national cy of the Case of The S.S. A., in Reports cedural Accommodation in a Test United States and Switzerland: Unilateral ... an informational Thus, Professor Miller Compare See, “[T]he example, documents issued No.10 not be served 94 L.Ed. litigation and documents failing contrary 4(d)(1). in Switzerland without the assistance apprise form e. Mullane v. provides “notice of matters, Cooperation Co., action”). g., recipient first, process of the before in the carefully appear or Fed.R.Civ.P. 865 —it interested (1935) supra. Miller], existence of 2 M. “Lotus,” [which] (1950) (due process permits privately. may federal or cantonal territory nature, a by attempt in foremost relating foreign [hereinafter distinguish in 306, 314, mail so not exercise perform Litigation Hudson, Central (1965) (emphasis add- law parties reasonably notes that tax connection may be served such as 45(c) [1927] to command a tribunal that are See deficiency another State.” permissive restriction Hanover of the an long any phase 70 S.Ct. World Court between Miller, with Fed.R. P.C.I.J., Between The S.S. papers noti- a State act, calculated Tube, 49 with the as such authori- penden powers Swiss, Inter- or of Bank 652, Pro- rule Ser. pri- “le- im Lo or 69. We should foreign mail the forms of service least ed.” See also C. must not American thorities Law § violate international within its borders tion.” government agencies by signing an internation- ess “[S]ervice al convention. than some other method of service to general consent to service of U.S.T. cial tion on the supra, Federal tus]. Convention XIII. See also signatory’s ments fringe lar Extrajudicial [hereinafter See, foreign request territory performance Matters, upon n.58 requires See also 1 144b “if it deems that country’s postal Civil e. in a (1961): sovereignty 1134, perform g., its right (8th specifically Hague of other done 15 November T.I.A.S. Procedure, foreign country Documents in Civil Service mail activity only note Smit, nationals note See, ed. at 564 of “since service [of L. for Wright on refuse to acts of ‘sovereign’ here that may Lauterpacht Convention]. e. Multilateral Conven- Oppenheim, law. International States”). No. abroad does Abroad of or behalf service g., recognizes, authorities, 61 infra. (1969 compliance would in- be less security.” likely & A nation Colum.L.Rev. sovereignty within honor on the A. compulsory proc- that frowns another nation’s direct service of or & to Miller, 1955) (“States foreign judicial docu- and Commer- 658 U.N.T.S. objectionable ‘judicial’ International Judicial and any particu- be Supp.1977): The process] Aspects not however, it is one of part Id. at art. may give [1969] prohibit- note 61 the au- always Hague litiga- 1031, upon of a acts by of a represent by a that no congressional Not does it deliberate clear authorization is passing of the official authorities necessary agency may employ before an a state,71 it allows the full range local particular form of service judicial noncompliance with sanctions for Although abroad.72 it is true that Federal agency subpoena triggered merely an to be 4(i)(1)(D) specifical Rule of Civil Procedure foreign unwillingness a citizen’s to com ly permits process “by any service of abroad ply with in an ordinary directives contained mail, requiring signed receipt,”73 form of registered letter. subprovision, together when read foreign the other four modes of service of recognize
The district court failed to 4(i), process provided in rule underlines consequences enforcing either of these in judicial rather than obviates the need for subpoena. Commission’s district sensitivity sovereignty territorial opinion court’s cited a number of state and when governing judicial scrutinizing particular federal statutes methods of process Furthermore, justify abroad to the assertion overseas service.74 the refer- Alternatively, may par- forfeiture), provided nation consent to a the witness is a citi- service, request specify ap- ticular an zen of the United States and otherwise is propriate procedural whereby subject court, duty mechanism to a testimonial in the forum serving compulsory may duty nation’s for his civic extend to con- citizens, minimizing served on its own thus duct abroad as well as at home. infringement upon sovereignty its own caused But . . . the forum court cannot issue a example specific commanding the service itself. One to a witness him to consul, appear in consent occurred November when the before the for this would be Embassy attempted power Swiss delivered an aide-memoire to exercise of state within Department protesting territory the by of State the service state —an intru- judicial impossible legal theory mail documents Swiss resi- sion interna- *14 by government agency. Observing understanding. dents a U.S. tional judicial per- Wigmore, 2195c, that “the service of documents on J. Evidence at 101 is, residing (McNaughton 1961) (emphasis added). sons in Switzerland under Swiss rev. ed. law, governmental function to be exercised precisely bypassing by It is to avoid such exclusively by appropriate the Swiss authori- authorities, foreign governments that the Swiss ties,” by and that “service of such documents example, examining for insist on the contents infringement mail constitutes an of Switzer- judicial of all try. documents sent into their coun- sovereign powers, incompatible land’s is which law,” with international the aide-memoire re- quested foreign that The need to examine the “documents destined for Switzer- contents of by integral documents is ... land should be transmitted sy the U.S. Embas- defended as an sovereignty in element of Swiss Berne to the Federal Division of Police.” and essential to Department officially policies neutrality apologized protec- The the national of State of Embassy tion of to the Swiss for its inadvertent commercial and industrial secrets. viola- theory applicable appears requests tion of responsible Swiss law and the The to be that if directed agency any through American service were not to “avoid fu- channeled and scru- officials, by appropriate ture tinized transmittals of such documents in a man- Swiss there Dept, way ner would inconsistent with Swiss law.” of be no effective to insure the ser- State, 711.331/11-1661, foreign vice of MS file the Nov. documents was not con- reprinted Contemporary trary public policy. to Swiss Practice of the Unit- Miller, Law, Relating supra, ed States to International note 66 1076-77. Am.J. Int’l L. Campagnie 72. FTC v. De Saint-Gobain-Pont-A- See, g., Wigmore’s e. Professor discussion of Mousson, F.Supp. (D.D.C. “Compelling unwilling residing witness 1980). abroad”: For states without the United States . . . 4(i)(1)(D). 73. Fed.R.Civ.P. apart rogatory, from letters what method can compelling testimony be used for of an 4(i) provides 74. Federal Rule for five alterna- unwilling residing? witness there by may party proc- tive methods which a serve prescribed by ess abroad: foreign country action; in the manner forum court the United States can [T]he for service there in a domestic witness, notify requesting appear by foreign authority him to as directed deposing, responding court; rogatory before the United States consul for to a letter from the federal appear by service; mail; personal by his failure there to or to and as punish contempt (by by 4(i) can answer him for fine directed order of the federal court. Rule violate the or laws of the Unit- 4(i) offi- Constitution rule to alternative enees made in jurisdictional indicate questions service75 channels for ed States. cial construing court erred in posed peculiarly complex that district this case by are regular authorizing as congressional silence jurisdiction of three institutions because the of a for- circumvention unrestrained jurisdiction is at of nations issue: In view judicial authorities76 eign nation’s involved, law, re- under international to conditionally significant sanctions of by a French quire production of documents by agency’s subpoena and the imposed soil; jurisdiction of citizen on French by the mode of aroused sensibilities agency’s courts to enforce the the federal here,77 the district court’s delivery used jurisdiction agen- of subpoena; and the finding Congress “intended” subpoena by regis- to cy effect service solely compulsory processes to deliver its tered mail. foreign postal authorities with the aid of seems mistaken. a. Jurisdiction The International States Jurisdiction In-
2. The Nature (Second) voked the FTC’s Service The Restatement Foreign Relations Law of the United States jurisdiction gov- The exercise distinguishes types jurisdiction two body in the United States sub- ernmental jurisdiction prescribe jurisdic state: to reflecting principles to ject limitations to prescribe tion enforce.78 Jurisdiction law, as and constitutional well international signifies laws authority a state’s enact the particular the strictures of statute relations, conduct, status or governing the When governing body’s conduct. more persons things, whether interests or involved, jurisdictional than one nation is order, legislation, executive or or admin act jurisdiction are issues often elusive. Some regulation.79 istrative rule or Jurisdiction governmental might bodies American enforce, contrast, state’s describes a consistently Consti- exercise with the U.S. compel impose compliance tution and laws could violate law, noncompliance sanctions for its admin while some exercises object judicial International which international law does not istrative or orders.80 Kaplan, originally proposed by adoption was the Commission of the rule. See Amend- *15 Procedure, Advisory Civil and Committee on International ments of the Federal Rules of Procedure, organi- 1961-1963(1), 601, Rules of Judicial an official 77 Harv.L.Rev. 635-36 Department having representation, (1964). Smit, Aspects zation State See also International of adopted grew coopera- 1031, Procedure, and the of the text out Federal Civil 61 Colum.L.Rev. agency tion between that and Columbia 1047 Project on International Procedure. supra. 75. note 74 See provisions The intention of these [was] provide attorneys American with an extreme- 149, (2d Ings Ferguson, 76. v. 282 F.2d 152 Cf. ly permit flexible framework to accommoda- 1960) (when procedure subpoe- foreign Cir. for widely divergent procedures tion to the for country, par- foreign na service exists in a process employed by of various procedure ties use that rather run- should than nations world. is of the This accommodation ning law). violating foreign of the risk violating necessary in order avoid the sov- ereignty by committing other of countries supra. 77. See note 18 they may acts their within borders con- sider to “official” and to maximize the (Second) Foreign 78. Restatement Relations judgment rendered likelihood that in the (1965) Law of the United 6-7 §§ States country [herein- recognized action in this will be (Second)]. after Restatement For a discussion enforced abroad. type jurisdiction, adjudicative jur- Cound, third al., J. et Civil Procedure: Cases and isdiction, accompanying see notes 97-105 and (2d 1974) (emphasis added). Materials ed. text infra. Miller, supra also See at 1075-86. note Reporter Advisory The Committee 4(i) 79. See id. at comment a. adopted § the Civil at the time was Rules rule has this further verified concern for territo- sovereignty rial countries which led 80. Id. na, imposes law limitations it jurisdiction, different a invokes the enforcement jurisdiction, depend- state’s exercise of prescriptive jurisdiction, its rather than the jurisdiction ing upon whether the exercised jur- The two types United States.87 prescriptive jurisdiction.81 is or enforcement isdiction geographically are not coextensive having jurisdiction state to prescribe —“[a] Traditionally, plenary a state has a rule necessarily of law not does have power rules prescribe within its own jurisdiction cases,”88 it in all to enforce for Conversely, territorial boundaries.82 under jurisdiction, unlike a prescriptive state’s principles traditional of absolute territorial which is strictly not limited territorial ity, laws of can have no “[the nation] boundaries, jurisdiction by enforcement force sovereignty rights control the large strictly continues to be territorial.89 jurisdict other within its own nation The disjunction Restatement this illustrates ion.”83 rigid principles Over time these with the following hypothetical: yielded Thus, have exceptions. to certain X is a residing national state A recognizes current Restatement that a jurisdiction jurisdiction prescribe state B. A has state has prescriptive not conduct, rule subjecting punishment over X to if things, status or interests he military within but fails to return for territory,84 also over conduct to A service. jurisdiction outside its X A territory has or is intend does not return. has no ed to have against substantial effects within to enforce its action rule X in territory conduct well as of its the territory nation of B.90 als even they when are outside its borders.86 If a state should enforce a rule jurisdiction American which it
When an
court orders
does not have
to en
force,
law,
subpoena requiring
enforcement of a
it violates
giv
thus
pen
ing
rise
adversely
documents
threatens
to a claim
state
alties
noncompliance
subpoe-
with that
adjudicated
affected which
then be
(Second)
excep-
Id at
6-7.
§§
89. Restatement
at § 20. For
rule,
(jurisdiction
tions to this
id. §§
see
McFaddon,
Exchange
82. The Schooner
by agreement);
(national forces,
conferred
32§
(7 Cranch) 116,
(1812)
U.S.
non-Americans as to the in substantive State orders.94 to enquire diction those into affairs and powers A its activities. State abuses if it Fifty-Second The Conference of the In- the process uses of courts to its reach Association, ternational Law held in Helsin- jurisdiction than legislative further its ki, a clear be- went on to draw distinction properly extends.96 production of in type tween the ordered type ordered DeSmedt95 and here: analysis, By this the district court’s enforce- jurisdic- principle basic is that ment of the FTC’s so [T]he served tion to order documents clearly extend American would enforce- with the limits of must be commensurate jurisdiction beyond ment the limits of its legislative [prescriptive] jurisdiction such, jurisdiction. As prescriptive the dis- regulate to matters to which doc- trict court’s order enforcement violated a Thus, legal posi- uments the true relate. principle fundamental law. tion will be as follows: Types Agency b. Federal and Court (1) requires Where a local a State Jurisdiction Distinguished foreign company] produce branch a to [of affairs, relating documents to its own jurisdiction When a state’s to merely demand cannot be resisted be- adjudicate,97 opposed to its enforcement cause the documents are not within the issue, prescriptive jurisdiction, or is at ques jurisdiction a they belong or non- subject process, tions of service of matter A may resident alien. case arise when jurisdiction jurisdiction, personal are prohibited discovery is his lex situs hence, invariably frequent intertwined and law of the residence of the alien and [the ly may confused. Before a court federal case, In such each State documents]. adjudicate possess a it must controversy, jurisdiction, is acting within the one in jurisdiction subject over both the matter of requiring production and the other for- persons action over the whose it, bidding a conflict arises. rights are to be affected determinat types jurisdiction Both
ion.98
are consti
(4)
however,
tutionally
subject
jur
limited.
matter
Where,
proceeds
a State
against
depends
isdiction
federal courts
total
pro-
a local branch to enforce the
ly upon congressional implementation
duction of
situate
of a
documents
abroad
relating
grant
subject
jurisd
moreover
to the
or to constitutional
matter
affairs
Furthermore,
jurisdiction
activities outside the
iction.99
federal courts are
alien,
subject
jurisdiction
head-office
personal
non-resident
limits of
—a
requirement
lawful if the enforc-
not
adjudicatory
court
exercise its
au-
Fifty-First Conference,
Report
caught
jurisdiction
94.
Inter-
the distinction between
(Tokyo
adjudicate
national Law Association
enforce and
when he
1964)
added).
(emphasis
decision;
said: “John Marshall
made
has
his
Hockett,
now let him enforce it!” H.
Political
supra
accompanying
95. See notes 30-34
(1492-
and Social Growth of the United States
text.
James,
1852)
(1937);
at 502
M.
The Life of
Andrew Jackson:
Portrait
President 603
Conference,
Report
Fifty-Second
96.
of The
In-
(1937).
regard
This remark
made in
was
(Helsinki
ternational Law Association
Chief Justice
Marshall’s decision Worcester
1966)
added).
(emphasis
Georgia,
Pet.) 515,
(6
v.
31 U.S.
1319 to, way in in other domestic pow- it has some obnoxious thority 'over individual unless or law. him, by the circumscribed due to reach as er Un- the Constitution.100 clause of process however, court, apparently The district doctrine,101 is process not due modern der central issue in the case as viewed the has sufficient unless the defendant satisfied power whether or not the FTC with the forum such contacts” “minimum in- validly serve could process abroad against of a lawsuit that the maintenance investigatory reg- ferred from its broad offend “tradi- in that forum does not him ulatory jurisdiction.106 The court read play fair and substantial notions of tional “unequivo- as v. United Blackmer States107 further, process Procedural due justice.”102 cally concluding] that the lawful exercise adjudi- requires that a court not exercise jurisdiction ef- confers the person, even a when catory authority over postulated It then that fect service.”108 so, person power to do unless it has upheld since the Blackmer had Con- Court oppor- given adequate been notice has gress’ power expressly to authorize issuance a court tunity to be heard103 Thus abroad, ap- must have also it personal jurisdiction an individual lack over proved Congress’ power to secure service of to affect his powerless it is either because delegating subpoenas. By subpoe- those give it has him rights or because failed FTC, court power na to the the district at rights his are issue. proper notice that concluded, Congress implication must delegated agency authority have service of properly accomplished, If any permissible effect service in jurisdiction upon personal a process confers manner.109 adjudicate party.104 rights court here, propriety analysis fundamentally is of a misreads the issue Such an When findings technique serving particular Supreme jurisdictional Court’s particular Blackmer, however, subject history as a review of process, neither type of jurisdic Upon discovery jurisdiction nor that case will demonstrate. personal matter 1923, Dome a num- “power” Teapot or the “notice” scandal tion —in either the involved, prominent at The basic in ber of the Americans directly sense —is issue.105 Blackmer, among them fled to Harry here thus whether the district quiry is compel testimony To their in the order should be vacated France. court’s enforcement proceedings, Congress criminal agency subsequent the manner used because authorizing the passed the Walsh Act110 by, serve its was unauthorized Neff, 714, party Pennoyer notice com- 24 and affords him due 100. v. 95 U.S. L.Ed. 565 (1877). mencement of the action. Miller, 1083, Wright 4 C. & A. 61 335 note presence Traditionally, 101. defendant’s supra (emphasis added). jurisdiction particular within territorial court and service that defendant within Rental, Equip. 105. National Szuk Cf. Ltd. v. necessary territory were considered hent, 311, 411, 11 354 375 U.S. 84 L.Ed.2d S.Ct. satisfy process. Id. sufficient to due (1964) (discussing technique proc of service of ess). Heitner, 186, Shaffer U.S. 97 S.Ct. 102. v. 433 2569, (1977); 53 International Shoe L.Ed.2d 683 accompanying supra *19 1320 to compel ing district its giving
federal
courts
attend-
courts
testimony
his
ance of American
abroad in
witnesses
con- whenever
properly
he is
summoned.”113
nection with
criminal proceedings.
domestic
respect
With
to the exercise of the United
expressly
The statute
authorized service of
adjudicative
States’
authority over Black-
subpoenas
judicial
outside
United States mer, the Court held that
the trial court’s
specified
of
the means
service to be
authority
give
to
constitutionally
Blackmer
employed.111
Act,
Pursuant
the Su-
required
necessary adjunct
notice was a
preme Court of the District of Columbia
him,
power
its
over
which in
judicial
turn
issued a
was
upon
served
was independently based
the contact
statutorily
Blackmer in the
authorized fash-
provided by
citizenship.114
his American
ion, requiring
appear
to
Blackmer
as a wit-
ness at a criminal
When
trial.
Blackmer
examination,
Upon
this case bears
respond,
failed to
he was found in contempt
little resemblance to Blackmer.
In Black
court.
Supreme
The U. S.
Court af-
mer, the primary
was
question
per
one of
the contempt
upheld
firmed
conviction and
jurisdiction:
sonal
whether Blackmer’s
against
the statute
due
attack
citizenship provided
American
a sufficient
solely
grounds
“was,
on the
that Blackmer
basis for
adjudi-
the court’s assertion of its
be,
citizen
and continued to
of the United
catory power
him.115 The
over
witness did
States.”112
subject
not challenge
jurisdic-
matter
The Blackmer
found the
Court
statute
court; Congress
tion of the
had
statute
consistent with both the Constitution and
explicitly delegated to the court the author-
law for two reasons. With
ity to issue
subpoenas
part
its
abroad as
respect to the
of the
exercise
United States’
general jurisdiction
its
adjudicate.
to
Nor
prescriptive
Blackmer,
over
did
question
Blackmer
Congress
whether
question
Court found “there is no
of inter-
particular
had
technique
authorized the
law,
solely
purport
national
but
Act,
employed.
the Walsh
Con-
municipal
law which establishes the
gress had
its
clearly
equip
stated
intent
duties of the citizen in relation to his own
courts with a means
which to serve
government,”
namely,
duty “which the
citizen owes
American
government
sup-
procure
to his
...
witnesses abroad to
their
port
justice
administration
proceedings.116
attend-
attendance in criminal
Thus
Act,
States,
437-38,
text of that
see Blackmer v. United
113.
Id. at
S.Ct. at
52
254-55.
421,
n.1,
n.1,
284 U.S.
52
S.Ct.
253
(1932).
jurisdiction
service,
reading
congressional
the best
contrary principles of
possible conflicts with
regard
permissible
intent with
modes of
law.130
authorizing
service was one
general
of this
The reverse side
customary
legitimate
FTC to use all
construction,
course,
statutory
canon of
compulsory process
methods of service of
is that
courts of the United States are
commonly employed by American courts
obligated
give
nevertheless
effect
to an
and administrative
tribunals.134
Such
unambiguous
by Congress
exercise
of its
reading
imposed
require
would have
prescribe
even if such an
personal
ment of
service found in Federal
limitations
im
exercise would exceed the
45(c),
Rule of
governing
Civil Procedure
posed by international
law.131 Given
permissible
methods of
national sover
plain intrusion
French
court,135 upon
a federal
resulting
direct ser
eignty
from
FTC’s
*22
well.
It
required
would have further
that
compulsory process
vice of its
abroad132 and
possible,
agency attempting
wherever
an
law which
the violation of international
subpoena service on foreign citizens resid
result
if the
court were to
would
district
ing
on
make
here,133
soil should
initial re
subpoena
the
the
issue
enforce
through
diplomatic
sort
established
provisions
governed
is whether
the
chan
procedures
the
Act at the
nels or
authorized
interna
service within
FTC
challenged
time
the
have
service could
tional convention.136
131. See Restatement
130. See
134. We cannot
133. See Part B.2.a
132. See Part B.l
129. See FTC v.
Pont-A-Mousson,
(D.C.
note 1.
tory government
flect
potentially
construed to
less
East
administrative
side the nation’s borders.
since the FTC Act was enacted in
seems
other
cuit. See Pacifíc
Betsy,
assume that
L.Ed.2d 784
(1804) (“[A]n
cert.
This
did not intend an
clear
late
[I]t
likely
Line, Inc.,
denied,
may fairly be
possible
principles
principle
congressional
reasonable,
showing
Murray
26 Nov.
than more recent
in conflict with
(1968):
regulation
(2 Cranch)
violate the law of
393 U.S.
act of
legislation
construction
agency investigatory
ignore
404 F.2d
has been
of international
Compagnie
supra.
No.
v. The Schooner
Seafarers,
1979).
has
supra.
when
application
congress ought
inferred,
(Second)
intent to
the fact that the
78-2160,
contrary,
expanded enormously
was less
64, 118,
construing
enacted when U.S.
adopted by
remains....”)
Inc. v. Pacific Far
De Saint-Gobain-
in the absence
legislation
89 S.Ct.
have effect out-
that would vio-
mem.
nations,
2 L.Ed.
law.
that
pervasive
1914. Yet
never to be
(D.C. Cir.),
Reporters’
Charming
a statute
Congress
this Cir
op.
scope
61,
regula-
law,
if
to re-
at 2
to
it
136. The
135. Fed.R.Civ.P.
judicial
Am.
in another
vate commercial or civil
fort to facilitate the
vention.
ritory
France have
tablishes
dence abroad —The
mercial
ram, Report
on Private International
The United States Joins the
Conference on Private International
Comments,
A
by
named therein shall be made
age need not be tendered.
or an officer or
poena is issued on behalf of the United States
the
to him the fees for one
not
age.
copy
Taking
subpoena may
J.
his
addition,
mileage
a
of one
thereof to such
Hague
(1965)
Int’l
Matters,
Service of a
party
Hague
deputy,
standard
contracting
extrajudicial
30 Law &
on the Tenth Session of the
L.
participated
Evidence Abroad Civil or Com-
contracting
France is a
and is not less than 18
allowed
Convention,
Convention,
both the United
or
45(c) provides:
done 18 March
agency
by any
90-91
Multilateral Convention
procedures
be served
subpoena upon
nation.
person
thereof,
litigation taking place
Contemp.
documents in the ter
Law, History
day’s
signatory
law. When the sub-
in a more recent ef-
nation in aid of
(1965); Nadelmann,
other
see
Hague
note 69
For a
A
attendance and
by delivering
generally
for service of
person
obtaining
fees and mile-
the
by tendering
States
of the Con
Conference
Prob.
discussion
supra,
a
[1972]
marshal,
Law,
years
person
who is
Hague
Am
evi-
pri
es
a
interpret
congressional
alternatively,
To
intent un-
corporation’s
to serve the
derlying
authorizing
Act as
meth-
FTC
agent Washington,
D.C.138 We cannot
agency subpoena
ods of
less
abroad
imagine that when Congress enacted the
rigorous
judi-
than the means-used to serve
FTC Act in 1914 it could have intended an
domestically
cial
have run coun-
agency
administrative
such as the FTC to
illustrate,
ter
intuition. To
if a
to common
procure witnesses and documents
from
litigant sought
civil
to
a Califor-
litigant
abroad means which no civil
had
corporation
appear
produce
nia
docu-
ever been
within the
employ
able
borders
Washington,
ments in a
D.C. federal court
imagine
of the United
Nor can we
States.
would,
proceeding,
litigant
under the
Congress originally
intended that
Rules,
required
have his
Federal
be
sub-
federal courts exercise their enforcement
poena
person by
delivered in
a United
powers
agency
to aid administrative
investi-
responsible
marshal or another
States
gations
by registered mail,
initiated
without
litigant
simply
adult.137 Were
to send
making provision for
in-
inevitable
by registered
letter
fringements
upon foreign
sovereignty
California,
corporation’s principal offices in
which would result from such exercises.139
corporation
compli-
and the
resist
were
ance,
Washington,
district court
D.C.
person-
Should
able
obtain
subpoena.
would refuse to enforce the
officer,
president,
al service
personal juris-
Even if the district court had
a director of
within the
SGPM
territorial
diction
corporation,
over
based
States,
boundaries of the
it
United
could
upon the existence of minimum contacts
validly
judicial
obtain a
enforcement order
corporation
between the
and the District of
subpoena. Furthermore,
for that
we take
Columbia, and even if the witness had re-
judicial notice
congressional
recent
proceeding,
ceived actual notice of the
Act,
enacted after
amendment
to the FTC
improper
technique
employed
of service
*23
issued,
the
challenged here
would cause the
citing
court to refrain from
express authority
apparently gives
the FTC
contempt.
the recalcitrant witness for
investigative
upon
to serve its civil
demands
45,
judge
accordance with rule
the district
“any person who
not
litigant
the
is
found within the
personal
would direct
to obtain
California,
upon
jurisdiction
service
the witness in
territorial
court of the
diplomatic
regularized intergo
U.S.T.
T.I.A.S. No.
of which the
efforts to create
Serving
judicial
Convention on
Judicial Documents is
vernmental channels of international
chapter
revised
government
assistance which enable
authori
Hague
apply
Even if the
Convention does not
ties to seek evidence abroad with a minimum
by
government agen
to service
a United States
infringement
sovereignty.
on national
See
cy,
Covey
see First Affidavit of Professor
T.
generally
Miller,
H. Smit
A.&
International
Oliver,
Remand,
attached to SGPM Brief on
at
Cooperation
Litigation
Report
in Civil
— A
5-6;
May
Second Affidavit of Professor Pierre
Prevailing
the Practices and Procedures
in the
er,
Remand,
attached to SGPM Brief on
at
(1961); Jones,
United States
International Judi
by
mutually accept
service
some other channel
cial Assistance: Procedural Chaos and a Pro
governments
precluded.
able to both
is not
Reform,
gram
(1953);
for
62 Yale L.J. 515
See,
g.,
(Lebanon),
e.
Tamari v. Bache & Co.
Note, Taking Evidence Outside of the United
aff’d,
F.Supp.
(N.D.Ill.)
431
1226
FTC Act as it existed at the time of described, service, issue challenged of whether it could ac express any we need not tually obtain the documents in question time as to whether opinion this FTC could now lawfully Proper far from settled. compulsory serve its process by registered merely abroad mail as a civil FTC’s would create an SGPM under American law investigative governed obligation upon demand provision. terms of the amended We note to furnish the documents. The zeal with that, only expressly even if authorized litigators which American have recently en statute, might gaged such mode of service still discovery antitrust abroad subject to a due attack if the willingness of American pro courts to order witness so served both refused to concede duction of documents have not personal agency triggered controversy143 and debate;144 requisite lacked the minimum with they contacts academic prompted have Furthermore, the United passage States.141 under of a fresh wave non-dis- 142. See Part B.1 141. See note 119 140. See the new section Westinghouse’s fixing conspiracy. investigative subpoenas, house troversy of Lords to American intent in this case. made, prospectively, they tends to authorize extraterritorial British witnesses to an 500, rather than phasis added). We have become aware of the passage of these amendments without the as- ferred conduct its titrust Act, (House sistance of counsel for either C.I.D. SGPM. These amendments subpoena sion sumer amendments buttresses the Since these amendments added Westinghouse invalidity See, Act were Improvements 94 Stat. 381 96th governing litigation, explicitly. authority virtually for it indicates that when Civil protection investigation e. Ironically, these amendments to the stimulated Lords). g., Cong., investigations. 13 of The Federal Trade Commis- *24 expanding Process If of the mode of service the reaction of the British House viewed Elec. efforts to take the Justice In re anything, supra. civil supra. (enacted May, 1980) (em- 1st Sess. at 23-26 For a discussion of the con- do not affect our in certain Commission con- Act of Corp., Rio Tinto Zinc Act, Westinghouse investigative government support Department by the FTC’s alleged 20(c)(6)(B) the Senate as identical to that con- obviously apply only it will 15 U.S.C. [1978] See ongoing Westing- replace argument already passage uranium S.Rep.No. Pub.L.No. 96- express the FTC or Congress testimony cases of The FTC Elec. analysis W.L.R. 81 service of 1312(d)(2) the FTC’s employed demands, Corp. of these limiting the An- (1979). price- Corp. 96- in- of to ing gality Excuse for Abroad Onkelinx, L.Rev. 791 ments almost three decades Note, Ordering Production of Documents from in U. S. Anti-trust ments in the Law Int’l L. 747 Federal Judicial Power to gation (1962). Foreign Non-disclosure Laws and Domestic Yale L.J. 612 Note, Discovery of Documents Located Abroad (D.D.C.1952), stated: lems Encountered in a U. S. district court’s order to F.2d 992 thora of Situs Prohibits Discovery rige, cated in covery Uranium Contracts uments which are located tempts of United States courts to secure doc- considers this ternational diction of the United States seems One (1963); Note, Subpoena Foreign From the See, commentator, remarking upon of World its in governmental protests quite e. (10th Foreign Westinghouse supra note sovereignty Violation of Orders in Antitrust g., Law, (1974) Evidence, (1964); Note, law. clear:- (1979) Onkelinx, many protests against Removal, Arrangements, attempt 63 Colum.L.Rev. Concerning Jurisdiction where Law of Litigation: Non-Production, [hereinafter Litigation (Rio Algom), 1977), every foreign government 93, [hereinafter 13 Int’l Law. 19 and as Foreign Seeking Foreign Uranium Case: Prob- at 499. supra 37 N.Y.U.L.Rev. 295 Compel as an Limitations on the see of Documents Lo- ago, abroad, beyond Recent according which followed generally Virginia Note]; Law, note produce Litigation, In re Investi- infringement Foreign Acts Violat- Yale 1441, F.R.D. 14 Va. J. 93; Note, one Develop- the at- (1979). U.Chi. Note]; 1458- to in- docu- juris- thing Meh- Dis- Ille- ple- dustrial, Indeed, since the financial or technical nature that laws as well.145 closure view, proof legal to or litigation began, govern- may the French constitute with a instant another proceedings which would not administrative coun- ment has enacted a statute try.” Though we here subject express to criminal and mone- no view only SGPM noncompliance the documents whether tary penalties producing for SGPM’s would ex- potentially properly also a served sought but would here,146 penalties light under cused in of the French statute148 subject the FTC to criminal “ask[ing] consequences properly ... dire merely potentially French law for obtained service for both economic, commercial, agency and in- information of 1979, imprisonment two to six months’ and a 145. At the close of six states 10,000 “blocking 120,000 [$2,500 provinces two had enacted fine of from francs Canadian statutes,” designed protect $30,000] penal- their citizens or either one of these two against inquiries official authorities of other alone. ties Foreign Yale Note at 613 nn.5-6. non- states. Id. types— statutes have been of two disclosure provides: 147. Article la of the French statute first, government providing official that a prejudice discretion, may, Without to international treaties prohibit in his agreements regu- documents, see, Foreign or lations, and to current laws and g., of a class of Proceedings (Prohibition e. for, person shall not ask seek or of Certain Evidence any writing, orally, Act), communicate in or in Austl. Acts No. § form, second, any information of an prohibiting production other documents or docu- economic, commercial, industrial, financial or requested by ments tribunal unless proof type normally technical nature that constitute those documents are of a sent legal pro- province regular with a view to or administrative out of the in the course of ceedings country business, see, in another or in the frame- g., e. Business Concerns Records proceedings. Act, 1964, work of such c. 278 Que.Rev.Stat. (emphasis added). Id. recently legislature The British has enacted Thus, not would the FTC’s act of deliv- legislation type, of the first see Protection of ering sovereignty, French threaten Act, Trading Interests c. 11 20 Mar. § request for the documents would itself con- government pro- while the French has prima stitute a facie violation of French law mulgated legislation in the few months last subject penalties. criminal enforcement type, the second see notes 146-47 infra. 80-538, 148. The district court would first have to deter- 146. French Law No. titled “Law con- applica- cerning mine whether the French statute was the communication of documents or (which economic, commercial, prior ble to this passage issued to the information of an indus- law) aliens, trial, of the French and to those sub- financial or technical nature to which, poenaed though persons,” provides documents under the whether natural or artificial SGPM, may control of be within the territorial in Article 1: Furthermore, jurisdiction of the United States. prejudice Without to international treaties the district court have to consider would agreements, person or nationality a natural of French good-faith whether had efforts to SGPM made customarily residing or on French permission govern- secure the French director, territory, representative, agent or or produce despite ment the documents headquar- person with official of an artificial statute, weigh respective French and then territory, ters or an establishment on French interests of the United States and France. See orally, writing, shall not communicate in 39-40, generally (Second) So- Restatement form, regardless place, other Rogers, ciete Internationale v. public country authorities of docu- another *25 (1958); In re West- S.Ct. L.Ed.2d 1255 economic, ments or mercial, industrial, of an com- information inghouse Litiga- Corp. Elec. Uranium Contracts or na- financial technical (Rio (10th Algom), tion 563 F.2d 997-99 ture is where such communication liable to 1977). Cir. For detailed discussion of how dis- sovereignty, security threaten France’s or ba- judges traditionally trict have made this deter- order, public sic economic interests or the mination, Onkelinx, generally supra see note authority administering defined when 93; Note, 144; Note, supra Virginia Yale note necessary. supra note 144. (17 Republique Journal July 1980) (translation provided by de la Francaise Officiel SGPM; interpretation un- In view of the French law by FTC) (emphasis added). necessary, Arti- which would be controverted see notes supra, specifies: might cle 3 of that law further district court see fit to defer to prejudice penal- judgment foreign regarding the Without to more serious court See, provided by law, any applicability g., Ings ties violations of arti- of the law. e. (2d 1960). punishable Ferguson, cles 1 and la of this law shall be 282 F.2d by Congress strict- mission had not been clothed respondent influence our decision congressional authority intent un- its ly investigative to construe the with the to serve statutory provisions relevant derlying the subpoena by registered mail directed to ap- deference to granting here. Without undue pellant general corporate headquaters foreign nondisclosure the mandate in Paris. Effective service of that subpoe- laws,149 simply we note that where two con- na, argued by appellant, so it was could the one possible, structions of a statute are only personal upon be made service of it directly regula- to conflict with likely less appellant an officer director of within chosen.150 tions of other nations should be the United States. investigative subpoena
The service of an
III. CONCLUSION
foreign
on a
national in a foreign country
sufficiently significant
seems to me to be a
Finding
investigatory
the Commission’s
require
Congress
speak
act as to
that
should
improperly
to be
served under
not, therefore,
clearly.
prepared,
it
I am
Act, as we have
Federal Trade Commission
Court,
requi-
as was the District
to infer the
general
with
conformity
construed it
site
from the breadth of Con-
law,
we order
principles of
gress’s power
foreign
to reach
documents in
the district court’s enforcement orders
September
February
power
regulate
of 29
1978 and 14
1980 the exercise of its
inter-
commerce,
be vacated and that
the case be dismissed
foreign
gen-
state and
or from a
by the district court. The order of dismiss-
delegation by Congress
eral
to the Commis-
prescribe
al should also
that all documents
rulemaking authority.
sion of
copies
to the FTC
submitted
SGPM
conclusion,
reaching
In
this
I am im
responsive
improperly
subpoe-
to the
served
pressed by
Congressional
course of con
sixty days
within
na be returned to SGPM
providing
duct in the area of
for service of
notes,
that all
entry
judgment,
after
investigative
demands abroad
the con
extracts, or other records derived from such
text of enforcement of our antitrust
laws.
destroyed.
documents be
years it
apparently
For
was
deemed neces
Ordered.
So
sary by
Department
of Justice to serve
investigative
officers or
demands
McGOWAN,
Judge, concurring
foreign corporations
Circuit
directors of
found in
separately.
appellant
the United
concedes
States —as
have done in this
Commission could
so,
doing
I concur in the result.
In
how-
1976, however, Congress
case.
acted to
ever,
necessary
explore
I do not find it
Department’s
authorize
service of
jurisdictional
distinctions and the intri-
investigative
civil
demands on
na
cacies of international
law which bulk so
tionals “in such manner as the Federal
large
majority opinion.
in the
prescribe
Rules of Civil Procedure
for ser
simplified by
greatly
This case was
foreign country.”
vice in a
15 U.S.C.
with re-
presented
fact
that no issue was
1312(d)(2).
by registered mail in
Service
spect
power
of the Federal Trade
encompassed in that
country
compel
production by
Commission
grant
authority.
appellant corporation of documents located
believe,
quite significant,
It is also
I
country
nationality,
in the
of its
France.
claim, rather,
respect
Congressional pur-
was
the Corn-
to the issue of
See,
Bank,
g.,
Principles
comity require
e.
In re Chase Manhattan
of international
*26
(2d
1962) (Panamanian
law);
F.2d 611
Cir.
that domestic courts not take action that
IRS,
City
(2d
First Nat’l
Bank v.
virtually FEDERAL ENERGY REGULATORY Justice, Department of respect COMMISSION, Respondent. investigative a civil power to serve same Supply Corporation, Consolidated Gas abroad foreign national upon a demand Brooklyn Company, Consoli Union Gas mail. registered York, Company dated Edison of New
Inc., Corpo Texas Eastern Transmission ration, of Somer Somerset Gas Service set, Kentucky, Carnegie Natural Gas Company, Electric Public Service Company, Bay Company, Gas State Gas al., Algonquin et Gas Transmission Com pany, Municipal Group, Distributors Public Commission of the State Service York, Corpora of New General Motors tion, Central Illinois Public Service Company, Intervenors. 77-1666,
Nos. 78-1041. Appeals, United States Court District of Columbia Circuit. Argued May Decided Dec. COMPANY, ELIZABETHTOWN GAS Petitioner,
FEDERAL ENERGY REGULATORY
COMMISSION, Respondent. Corporation,
Columbia Gas Transmission Company Consolidated Edison of New
York, Inc., Philadelphia Works, Gas Brooklyn Company, Union Bay Gas Company, al.,
State Gas Algonquin et Company, Gas Transmission Consolidat Supply ed Corporation, Gas Indiana Gas
Company, Inc., United Cities Gas Com pany, Somerset Somerset, Gas Service of Kentucky, Public Compa Service & Gas ny, Long Lighting Company, Island Gen Corporation,
eral Motors Public Service
Commission York, of the State of New
Central Illinois Company, Public Service Company,
Arkansas-Missouri Power As
sociated
Company,
Natural Gas
Texas
Gas
Corporation,
Transmission
Munici
106.
notes
See
41-48
310,
154,
Washington, 326
66 S.Ct.
Co. v.
U.S.
text.
(1945).
95
90 L.Ed.
375
107. 284 U.S.
52 S.Ct.
76 L.Ed.
v.
Hanover Bank & Trust
103. Mullane
Central
(1932).
Co.,
U.S.
S.Ct.
L.Ed.
Shevin,
(1950);
Fuentes v.
S.Ct.
Compagnie
De Saint-Gobain-Pont-