May 21, 1943.
Appeal from the District Court of the United States for the District of Maine; John A. Peters, Judge.
Petition by L. Metcalfe Walling, Administrator of the Wage and Hour Division, United States Department of Labor, against the Martin Typewriter Company, for an order in support of subpoena duces tecum which had been served on respondent and was ignored by it. From an adverse judgment, 48 F. Supp. 751, the defendant appeals.
Abraham Breitbard, of Portland, Me. (Wilfred A. Hay, of Portland, Me., of counsel), for appellant.
Morton Liftin, of Washington, D.C. (Bessie Margolin, of Washington, D.C., Vernon C. Stoneman, of Boston, Mass., and Irving J. Levy, Acting Sol., and Morton H. Rowen, Atty., United States Department of Labor, of Washington, D.C., of counsel), for appellee.
Before MAHONEY and WOODBURY, Circuit Judges, and WYZANSKI, District Judge.
The appellee, alleging on information and belief that the appellant was engaged "in the business of producing goods for interstate commerce, and engaged in interstate commerce", applied to the court below for an order requiring the appellant to appear and show cause why an order should not issue requiring it to comply with subpoena duces tecum which the appellee had prepared and served on the appellant but which it had ignored. The court issued the order to show cause and the appellant answered and moved to dismiss alleging that it was a "retail and servicing establishment, the greater part of whose selling and servicing is in intrastate commerce", and that therefore it was not subject to the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. It did not put in issue the scope of the subpoena or the relevancy of the data therein described. The court, after hearing, ordered the appellant to comply with the subpoena and set the time and place for its appearance with the books and records described, saying in the course of its memorandum opinion (D.C., 48 F. Supp. 751, 752): "This is an application to enforce a subpoena in what appears on its face to be an authorized and orderly investigation, and I do not feel justified in turning it into a lawsuit to decide a question which must be decided by the administrator in the course of his investigation, and which, if decided wrong, can be corrected later in a proceeding to enforce the orders of the administrator."
We are of the opinion that the order of the district court must be sustained on the authority of Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 63 S.Ct. 339, 87 L. Ed. ___. See, also, Walling v. Standard Dredging Corp., 2 Cir., 132 F.2d 322.
The order of the District Court is affirmed.