This action arises pursuant to Sections 7402(b) and 7604(a) of the Internal Revenue Code, under which petitioner seeks to enforce three Internal Revenue Service summonses issued to respondent. Upon the filing by respondent of a jury demand and notice to take the deposition of petitioner, this Court ordered the parties herein to submit briefs with regard to whether this proceeding is governed by the Federal Rules of Civil Procedure, and, if so, whether respondent is entitled to the rights and privileges demanded.
Any inquiry on this subject must begin with Rule 81(a) (3) of the Federal Rules of Civil Procedure, which provides in pertinent part:
“These rules apply * * * to proceedings to compel the giving of testimony or production of documents in accordance with a subpoena issued by an officer or agency of the United States under any statute of thе United States except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings * *
It is clear, initially; that the statutes at issue, Sections 7402(b) and 7604 (a), provide only that the United States District Court for the district in which respondent resides shall have jurisdiction by appropriate process to compel appearance, testimony and/or production. There is no indication that the Federal Rules would not apply to such an enforcement proceeding. In the absence of a clеar negative statutory pronouncement, or compelling circumstances requiring a contrary order by this Court, it would
*192
seem apparent under our reading of Rule 81(a) (3) that the Federal Rules generally applicable to civil proceedings must be utilized. Indeed, this apрroach has been indicated to be correct by the Supreme Court of the United States in United States v. Powell,
“Because § 7604(a) contains no provisions 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 .”
In
Chandis,
supra, the Court of Appeals for the Ninth Circuit held similarly that, inasmuch as the Internal Revenue Code contains no provision specifying what procedure is to be followed, the Federal Civil Rules must be applied. See also Falsone v. United Statеs, (5th Cir., 1953)
At best, petitioner may prevail only upon a strong showing of extraordinary circumstances which might justify suspension of the customarily applicable federal rules. Petitioner’s arguments relating to its need for “swift summary adjudication” do not meet this burden. Respondent has raised impоrtant defenses to the enforcement action instituted herein. While often the proverbial wheels of justice must grind slowly, it is just such deliberation,, resulting from formal procedure, which insures each party an orderly hearing and concordant full protection of the laws. Petitioner has demonstrated no instances of dilatory tactics indulged in by respondent which could indicate a need for deviation from normal procedure. Aid for petitioner’s plight concerning exhaustion of the criminal statute of limitations must come from Congress in the form of an аct tolling said statute. In the absence of such an enactment, however, we cannot summarily dispose of respondent’s defenses where summary treatment is not otherwise in order.
We are not impressed with petitioner’s further argument that the Internal Revenue Code of 1954 prоvides for such summary procedure, and thus, that this case must fall within the exception noted in Rule 81(a) (3). A close reading of Sections 7402(b) and 7604(a) reveals that Congress included no inference whatsoever, and,
a fortiori,
no express statement to the effect that the Federal Rules are inapplicable. While petitioner relies heavily on Goodyear Tire and Rubber Co. v. N. L. R. B., (6th Cir., 1941)
Petitioner cannot find support, in our view, in its additional suggestion that the Federal Rules do not apply to an action commenced by the filing of a
Petition
rather than a
Complaint
as contemplated by Rule 1. Such self-serving choice of nomenclature cannot alter the character of a proceeding. It would be absurd to hold that a party, by attaching a label of its own choosing to a pleading, could thwart the clear wording of Rule 81(a) (3), which provides, in the absence of enumerated alternatives, for application of the federal rules to all proceedings to compel production of documents in accordance with a subpoena issued by an officer оr agency of the United States. Indeed, in one of petitioner’s own cases, in which access to the federal rules was
denied,
proceedings were commenced by the filing of a “Complaint.” See United States v. Vivian, (7th Cir., 1955)
Finally, we cannot accept petitioner’s assertion that the Supreme Court erred in Powell when it cited Chañáis, a case decided before Rule 81 was amended. Such an argument may more properly be addressed to the Supreme Court should appeals in this action ever reach that juncture. It is sufficient for us to conclude that the “law of the land” as stated in Poivell is clear to the effect that the instant proceedings are to be governed by the Federal Rules of Civil Procedure. Until instructed by a higher court to the contrary, we must proceed as heretofore directed.
We shall turn then to the specific questions before us, whether respondent is entitled to conduct pretrial discovery under the Federal Rules, and, further, whether a jury demand filed herein must be honored.
We are convinced, pursuant to respondent’s argument, that denial to him of the opportunity to conduct pretrial discovery would render meaningless his right to challenge the summonses issued herein. Once we have decided to make use of orderly procedural principles calculated to insure fair adjudication of issues, and to deny application of summary procedure sought by petitioner, it would be defeating to deny respondent a very basic element thereof, and to reintroduce “surprise” into federal litigation. Indeed, it would seem mandatory to hold that no action falling under the Federal Rules should be exempt from discovery machinеry. See Moore, Federal Practice, (2d Edit., 1963) Vol. 4, p. 1073; Boeing Airplane Co. v. Coggeshall, (1960)
Petitioner argues that “it would be anomalous indeed if. the subject of an administrative investigation who lacks the power to compel disclosure of the facts adduced during the investigation, *194 could, through contumacy, require the investigative agency to invoke the aid of the Court to enforce compliance with a subpoena and in the judicial proceeding be enabled to gather information to which he was not entitled in the investigative proceeding.” This contention proceeds on the false assumptiоn that th, investigation, absent judicial intervention, is valid ab initio and is capable of “adducing facts.” Certainly, a “subject” could not depose' an Internal Revenue agent without the aid of the Court, as petitioner supposes, but similarly, where a challenge exists, the agent could not “invеstigate” without a judicial order. We are not granting to respondent “rights” which he would not have as the “subject of an investigation,” but, rather, we are merely giving him the opportunity to have the Court realistically determine whether the investigation itself shall validly continue.
Accordingly, we shаll permit respondent to depose petitioner herein in open court on Thursday, June 2, 1966, limiting such discovery to the following issues raised by fhe pleadings thus far filed:
1) What is the chief purpose of the investigation ?
2) Has a good faith determination been made that a second examination is necessary?
3) Does the Internal Rеvenue Service already have in its knowledge and possession the information it seeks?
4) Was this investigative proceeding instituted to obtain evidence against respondent for use in a criminal prosecution?
After due consideration, we must finally conclude that the instant аction brought to enforce an Internal Revenue Summons does not afford to respondent the right to trial by jury as demanded.
We are satisfied that this proceeding is brought solely under the provisions of a federal statute, Section 7604(a) of the Internal Revenue Code of 1954, is govеrned by the terms thereof, and is not subject to the provisions of the Seventh Amendment to the Constitution of the United States and Rule 38 (a) of the Federal Rules, whieh provide for trial by jury in suits at common law only. Section 7604(a) speaks only of adjudication of the issues by the United States District Court, аnd, in no manner bestows a right to trial by jury.
Furthermore, a suit to compel compliance with an administrative subpoena is, by nature of the relief sought, a mandatory injunction proceeding, equitable in character, and traditionally triable by a Court alone, without the aid of a jury. Injunctive proceedings are characteristically “equitable,” and, under the historical “jealousy of the Chancellor” need not be submitted to a jury for determination. See Moore, Federal Practice, supra, Vol. 5, pp. 115-119. The Seventh Amendment merely preserved the right to jury proceedings in actions triable to jury at common law at the time the Constitution was enacted. It clearly did not create any new rights, id. at pp. 85-86. Similarly, the Federal Rules neither enlarge nor abridge the rights granted by the Constitution, id. at p. 126.
Thus,, any right to jury consideration which respоndent might retain must rest on its argument that it has raised as a defense a common law tort, abuse of process, which was actionable at law as trespass on the case. Under the rationale of Beacon Theatres v. Westover,
We must conclude that the facts before this Court are far removed from those existing in Beacon Theatres, supra, wherein the only relief sought by either side is equitable in nature.
Accordingly, we must withhold from Respondent the opportunity to have the instant action tried to a jury.