Virginia Petroleum Jobbers Ass'n v. Federal Power Commission

The issue before the Federal Power Commission was the economic feasibility of a project of the Blue Ridge Gas Company to supply natural gas to Harrisonburg, Virginia. The witness desired was an engineer who had previously prepared a study of the project for Blue Ridge^[1] and who had reported to it that the economic feasibility of the project was highly doubtful. The subpoena requested was for the engineer to appear and bring the papers and documents he had already prepared and used in his previous report. This would have been offered to rebut the evidence of Blue Ridge, favorable to the project, given by a second engineer who had been hired by Blue Ridge after the first engineer had given his unfavorable report. Since this evidence was heavily relied on by the Commission in finding that the project was feasible, there can be no doubt that the witness desired, the first engineer, could have given evidence highly relevant to a proper decision of the question before the Commission. Nevertheless, and in spite of the fact that § 6 (c) of the Administrative Procedure Act, 5 U. S. C. § 1005 (c), provides that agency subpoenas “shall be issued to any party upon request . . . upon a statement or showing of general relevance and reasonable scope of the evidence sought,” the Commission refused to summon the witness on the ground that petitioner “should arrange for compensation to be paid to him as an expert witness, and for his voluntary attendance at the hearing.” 21 F. P.

Since petitioner was willing to pay the fees prescribed for witnesses by Congress in 28 U. S. C. § 1821 , the issue presented here seems to be substantially the same as that in Henkel v. Chicago, St. P., M. & O. R. Co., 284 U. S. 444 . There the plaintiff, Henkel, who had recovered a judgment against the railroad under the FELA, asked the court for an order allowing fees above the amounts provided in 28 U. S. C. § 1821 for ordinary witnesses in order to give extra compensation to expert witnesses who had testified in his behalf. This Court, in an opinion by Mr. Chief Justice Hughes, unanimously held that the only fees to expert witnesses allowable as costs in the federal courts were those provided for in § 1821. Since that time this Court has never modified or criticized in any way its statement that:

“The Congress has dealt with the subject comprehensively and has made no exception of the fees of expert witnesses. Its legislation must be deemed controlling and excludes the application in the federal courts of any different state practice.” Id., at 447 .^[2]

Even so the Government seeks to justify enforced payment of extra fees by petitioner on two grounds: (1) that the Federal Power Commission acted within a discretion allowed it, and (2) that the error of the Commission, if any, in refusing to subpoena the witness was harmless. But administrative agencies, no more than courts, have inherent powers of discretion to nullify the mandatory provisions of 28 U. S. C. § 1821 , and the Commission has pointed to no statute which gives it power to compel the payment of greater fees to expert witnesses than are paid