Our earlier decisions are reported as follows: United States v. Feaster, 5 Cir. 1964, 330 F.2d 671; United States v. Feaster, 5 Cir. 1967, 376 F.2d 147, cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265. I.
The United States of America's Petition to Enforce the Directive of the National Mediation Board be, and the same is, hereby GRANTED, and Air Florida's Motion to Vacate the Show Cause Order is DENIED. The Court deems the said Petition to be a subpoena request, see United States v. Feaster, 376 F.2d 147, 149 (5th Cir. 1967), and Air Florida's Answer fails to set forth any basis at law to show why such a request should not be enforced. The request is made pursuant to the statutory authority of the Board under Section 2, Ninth, which specifically grants the Board authority to obtain and utilize such information as may be deemed necessary by it to carry out investigations into employee representational disputes.
It is well-settled that the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought is material and relevant to a lawful purpose of the agency. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209, 66 S.Ct. 494, 505, 90 L.Ed. 614 (1946); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L.Ed. 424 (1943); United States v. Feaster, 376 F.2d 147, 149 (5th Cir.),cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967); EEOC v. Institute of Gas Technology, 23 Fair Empl.Prac.Cas. (BNA) 825, 1980 WL 219 (N.D.Ill. 1980). "It can no longer be disputed that `a subpoena enforcement proceeding is not the proper forum in which to litigate the question of coverage under a particular statute.'"
The government's argument in this regard is bolstered by the rule in United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950), and its progeny, that an administrative subpoena issued for a lawfully authorized purpose, not too indefinite, and seeking relevant information cannot be challenged on grounds that the investigation is beyond the agency's jurisdiction or is in aid of invalid agency regulations. See, e.g., United States v. Empire Gas Corp., 547 F.2d 1147 (Temp.Em.Ct.App. 1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1326, 51 L.Ed.2d 592 (1977); United States v. Feaster, 376 F.2d 147 (5th Cir. 1967). But while Blair, Morton Salt and related cases lend considerable impetus to the government's insistence that we avoid deciding appellants' constitutional challenges, there are significant differences between these authorities and the current case.
Upon petition, however, the district court will issue a subpoena under Rule 45 of the Federal Rules of Civil Procedure for attendance at an administrative hearing. See, e. g., United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964) (IRS); FTC v. Atlantic Richfield Co., 185 U.S.App.D.C. 229, 567 F.2d 96, 106 n. 22 (1977) (FTC); Lynn v. Biderman, 536 F.2d 820, 823-24 (9th Cir.) (HUD), cert. denied, 429 U.S. 920, 97 S.Ct. 316, 50 L.Ed.2d 287 (1976); United States v. Feaster, 376 F.2d 147, 149 (5th Cir.) (National Mediation Board), cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967). Then the district court can use its contempt power under Rule 45(f) to compel appearance of the witness.
This is not a case in which the respondent argues that it is not within the category of entities the agency is clearly empowered to regulate. E. g., Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); FTC v. Gibson, 460 F.2d 605, 608 (5th Cir. 1972); United States v. Feaster, 376 F.2d 147 (5th Cir. 1967); NLRB v. Northern Trust Co., 148 F.2d 24 (7th Cir.), cert. denied, 326 U.S. 731, 66 S.Ct. 38, 90 L.Ed. 435 (1945). See also Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938).
The doctrine has also been consistently followed in other circuits. See, e. g., Federal Trade Commission v. Browning, 140 U.S.App.D.C. 292, 435 F.2d 96 (1970) (Federal Trade Commission subpoena duces tecum enforced against private company being investigated for antitrust violations); United States v. Feaster, 376 F.2d 147 (5th Cir. 1967), cert. den., 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967) (National Mediation Board subpoena enforced against Alabama State Docks Department). Recently, the Second Circuit in Securities and Exchange Commission v. Brigadoon Scotch Distributing Co., 480 F.2d 1047 (2d Cir. 1973) decided a case remarkably similar to the case at bar.
4"It is well-settled that the role of a district court in a proceeding to enforce an administrative subpoena is sharply limited; inquiry is appropriate only into whether the evidence sought is material and relevant to a lawful purpose of the agency." E.E.O.C. v. Kloster Cruise Ltd. , 939 F.2d 920, 922 (11th Cir. 1991) (citations omitted); see also United States v. Feaster , 376 F.2d 147, 149 (5th Cir. 1967) ("In subpoena cases the Supreme Court has rejected claims that the court must satisfy itself that probable cause exists for the agency's contention that the subject of the subponena [sic] is covered by the statute; the only judicial inquiry to be made in enforcing an agency subpoena is whether the evidence sought is ‘plainly incompetent or irrelevant to any lawful purpose’ of the agency.") (quoting Endicott Johnson Corp. v. Perkins , 317 U.S. 501, 509, 63 S.Ct. 339, 87 L.Ed. 424 (1943) ).In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.
With one exception, § 2 Ninth of the RLA invests the Board with no special means or powers whereby information can be obtained in the investigation of an employee representation dispute.See United States v. Feaster, 376 F.2d 147, 149 (5th Cir.), cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967). The Board is simply "authorized . . . to utilize any . . . appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by employees without interference, influence, or coercion exercised by the carrier."
The issues raised by Air Florida in its counterclaim and third-party complaint, and reiterated in its motion for rehearing, are not properly raised as defenses against this lawful subpoena request. See, United States v. Feaster, 376 F.2d 147 (5th Cir. 1967), cert. denied, 389 U.S. 920, 88 S.Ct. 237, 19 L.Ed.2d 265 (1967). Moreover, although on a motion to dismiss the well pleaded allegations of fact are taken as true, the court need not accept conclusions of law or sweeping legal conclusions cast in the form of factual allegations.