It is worth mentioning that respondents have not claimed that the subpoenaed information undermines their privilege against self-incrimination or exceeds the scope of legitimate discovery under Fed. R. Crim. P. 16(b). This Court will not assume that the documents might incriminate respondents, or fall outside the legitimate scope of discovery, in some future prosecution. Without even an assertion that a Fifth Amendment privilege is threatened or that Rule 16(b) has come into effect, this Court cannot speculate on the implications of the materials' release. Securities and Exchange Commission v. Dresser Industries, 628 F.2d at 1376.
THE SUBPOENA ARE CONSISTENT WITH THE POWER AUTHORIZED BY CONGRESS.
Respondents also argue that, regardless of the legitimacy of DOD's investigation, the Inspector General exceeded his powers when he issued the contested subpoena. The Court disagrees.
Perhaps the Inspector General's most important tool for ferreting out waste, fraud, and abuse is the extensive subpoena power created by Congress to aid his investigations. 5 U.S.C. app. § 8. Congress considered this subpoena power "absolutely essential to the discharge of the [Inspector General's] functions." S Rep. 1071, at 1978 U.S. Code Cong. and Ad. News 2709.
Moreover, "[a] constricted interpretation would be at odds with the broad powers conferred on the Inspector General by the statute." Westinghouse, 788 F.2d at 170. Each Inspector General is empowered to subpoena all information "necessary in the performance of the functions assigned by this Act." Id. at § 6 (a)(4). The legislative history nowhere suggests that Congress intended to limit the wide latitude traditionally accorded agency subpoena power when it empowered Inspector Generals to subpoena information "necessary" for performance of their functions. As such, this Court must employ the well-established standards governing examination of agency subpoena, and those offer respondents little comfort.
An agency need show only that the investigation is within the scope of its authority and that the requested documents are minimally relevant to that inquiry. United States v. Balanced Financial Management, Inc., 769 F.2d 1440, 1443 (10th Cir. 1985); United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981), cert. denied, 455 U.S. 1018, 102 S. Ct. 1712, 72 L. Ed. 2d 135 (1982); United States v. Freedom Church, 613 F.2d 316, 321 (1st Cir. 1979). As the Court has discussed above, the DOD Inspector General is authorized to conduct the joint investigation at issue here. The affidavits supplied to this Court show that the requested information is more than minimally relevant to the Inspector General's permissible inquiry. See, Eberhardt Affidavit para. 11; Petition for Summary Enforcement, Exhibit 1.
Given the breadth of the Defense Department's inquiry, the subpoena are as narrowly focused as anyone could reasonably expect. The Department seeks documents relating to rate-setting by interstate van lines, agency agreements between interstate van lines and their local representatives, anti-competitive activities and the persons involved in them, suspension of moving and storage companies from Defense contracting, and destruction of documents. These are obviously pertinent to and necessary for the Department's investigation.
Respondents contend that, even if the subpoenaed documents are relevant, the subpoena themselves are overly burdensome and should not be enforced. But burden by itself does not deny enforcement. Courts have long recognized that a party must endure some burden when asked to respond to a legitimate agency inquiry, especially one as comprehensive as the investigation at issue. United States v. Powell, 379 U.S. at 58, Federal Trade Commission v. Texaco, Inc., 555 F.2d at 882. Only if compliance would "unduly disrupt or seriously hinder normal operations" of a business can a court even modify an agency subpoena. Id. Respondents have not shown that compliance would so cripple their business that the subpoena should be quashed or restricted. See, United States v. Firestone Tire and Rubber Co., 455 F. Supp. 1072 (D.D.C. 1978).
Any hardship these subpoena impose hardly compares to burdens countenanced by the courts with seemingly little difficulty. See, e.g., FTC v. Texaco, 555 F.2d at 868-69; Firestone Tire and Rubber Co., 455 F. Supp. 1072. Moreover, at least sixty-eight of the interstate carriers have fully complied with identical subpoena and apparently have not found it crippling to do so. Petitioner's Memorandum at 17. Moreover, respondents have refused DOD's offer to defer its requests for substantial document production. Eberhardt Affidavit, Exhibit 7. No evidence suggests that respondents even advanced a counter-schedule to minimize any burden they might experience. Because respondents have not sustained their burden of proof as to the irrelevance of the material sought or undue difficulty of compliance, the Court denies their motion.
RESPONDENTS HAVE NOT PROVED THAT DISCOVERY SHOULD BE ALLOWED.
Dresser Industries supplies the standard in this Circuit regarding the availability of discovery in subpoena enforcement proceedings. Dresser instructs district courts to be "cautious in granting discovery rights, lest they transform subpoena enforcement proceedings into exhaustive inquisitions into the practices of [government] agencies." 628 F.2d at 1388. Dresser dictates that:
discovery should be permitted only where the respondent is able to distinguish himself from 'the class of the ordinary (respondent),' . . . by citing special circumstances that raise doubts about the agency's good faith. Even then, district courts must limit discovery to the minimum necessary in the interests of justice . . . .
Id., citing United States v. Fensterwald, 180 U.S. App. D.C. 86, 553 F.2d 231, 231-32 (D.C. Cir. 1977)(per curiam).
As their sole evidence of bad faith, respondents once again point to the confluence of the DOD and Justice inquiries and the seemingly exclusive role of Justice Department officials in regulating the process by which discovery was conducted. But, as this Court has made evident, that alone proves nothing. The fact of the joint inquiry does not invalidate a legitimate investigation begun by Department of Defense officials for DOD's own purposes. Consequently, this Court cannot find allegations of bad faith substantial enough to justify discovery in this case.
THE SUBPOENA ARE CONSTITUTIONAL.
Respondents Bekins Van Lines and Bekins International Lines argue that the subpoena power on which the Department of Defense relies is unconstitutional and contrary to the hallowed principle that the armed forces are not to be used to enforce the laws of the United States. For support, respondents point to one case, Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972).
At issue in Tatum was Army surveillance of political protests. Both the majority and the impassioned dissenters registered the strongest disapprobation for military interference in civilian affairs. 408 U.S. at 15-16; 408 U.S. at 16-22 (Douglas, J., dissenting). Tatum leaves no doubt that courts can and should redress any injury resulting from such interference. See id. at 16. But these precepts, so deeply rooted in our history and traditions, are utterly irrelevant to matters that arise when the military polices its own house and seeks to impose a necessary discipline on contractors who may hope that they can evade the overworked eyes of Defense Department auditors. Of the Defense Department's power to control its contractors and unearth wrongdoers among them there can be no doubt. See, e.g., United States v. Westinghouse Electric Corp., 788 F.2d 164.
The Court finds that respondents have not adduced sufficient evidence to carry their burden of proving the subpoena impermissible. Nor have respondents carried their burden of proving that the Court should permit discovery about the permissibility of the subpoena. As a result, this Court must deny respondents' motion to quash the subpoena or to take limited discovery. By Order of even date herewith, the Court will order respondents to comply with the subpoena forthwith.
In accordance with the Opinion issued in the above-captioned case of even date herewith, and for the reasons set forth therein, it is this 31st day of October, 1986,
ORDERED that respondents' motion to quash administrative subpoena shall be and hereby is denied; and it is
FURTHER ORDERED that respondents' motion for leave to take limited discovery shall be and hereby is denied, and it is
FURTHER ORDERED that petitioner's motion for summary enforcement of administrative subpoena shall be and hereby is granted; and it is
FURTHER ORDERED that respondents shall have thirty (30) days from the date of this Order to produce all subpoenaed material at petitioner's offices in the District of Columbia.