GOODRICH, Circuit Judge.
This case deals with two points. One is the scope to be given to finality of administrative action. The other has to do with corporate answers to interrogatories under Rule 33.
The points come up in this fashion. In February, 1957, a libel was filed in the United States District Court in Massachusetts alleging that a drug called "Bee Royale Capsules" was misbranded while being held for sale following interstate commerce shipment, in that its label did not bear adequate directions for use.
In the meantime, in March, 1957, subsequent to the filing of the libel just described, the Post Office Department issued a fraud complaint against two companies called "Nature Food Centres" and "Nature Food Centres, Inc." of Cambridge, Massachusetts. The charge was that these concerns were obtaining money
In the meantime the Massachusetts case had been removed to the District of New Jersey under 21 U.S.C.A. § 344 (a) (Supp.1958). The claimant moved to dismiss the action basing its motion upon the Post Office's fraud complaint and subsequent settlement. This motion the trial court denied. D.C.D.N.J.1958, 160 F.Supp. 818. Written interrogatories, pursuant to Fed.R.Civ.P. 33, had been served on the claimant, Bee Royale, Inc., by the Government. The claimant objected to all the Government's interrogatories. The only objection now relevant is that of the Fifth Amendment. The district judge rejected the claimant's point that its refusal to answer the interrogatories was privileged under the Fifth Amendment. D.C.D.N.J.1958, 162 F.Supp. 944. Upon the further refusal of the claimant to answer the interrogatories he gave a default decree of condemnation under Fed.R.Civ.P. 37(d).
I. Res Administrata.
Bee Royale, Inc., readily admits that the orthodox established doctrine of res judicata does not help it in this case. That admission is well founded. The parties were not the same in the Post Office proceeding as they are in this action for seizure. If there is any privity between Bee Royale, Inc. and Mr. Rosenberger's Nature Food Centres, that fact is not disclosed. Neither are the issues the same. The Post Office proceeding was based upon an alleged fraud as the section of the statute cited will show.
The common element in the two proceedings has to do with the claim of alleged benefits to be derived from the consumption of Bee Royale Capsules. Based upon this common factor the appellant urges us that the court should create a doctrine known as "res administrata." It points out the confusion which may be created in the mind of a citizen by finishing up one matter with
It is hardly necessary to add that a court cannot swallow any such broad proposition as this. Yet such a broad assertion would be necessary if the appellant were to get any help here.
That the administrative process has created difficulties for citizens in their relation to Government is a truism.
Furthermore, while there may be cases where the administrative process works hardship, this is not one of them. As indicated above, there is not a single fibril to connect these two pieces of Government procedure except certain claims made on behalf of that product known as Bee Royale jelly.
II. The Unanswered Interrogatories.
We think it clear that if Judge Hartshorne was correct in overruling the claimant's appeal to the Fifth Amendment as a protection against answering the interrogatories that the imposition of the judgment against it was within
Bee Royale, Inc. does not claim that it, as a corporation, can raise the question of the constitutional provision of freedom from disclosure as applied to it. Its argument concedes that the corporation itself may not claim the Fifth Amendment. United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L. Ed. 1542; Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L. Ed. 771.
The argument has a further basis, however. It says that answers by a corporation to interrogatories addressed to it must, obviously, be made by some human being on its behalf. Now if the corporate officer who gives the answers, on behalf of the corporation, states things that may involve criminal responsibility, he may find himself involved in a criminal prosecution, especially since liability of corporate officers under the food and drug act is one at peril and no mens rea is involved. See United States v. Dotterweich, 1943, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48. But personal criminal liability was the very point involved in the White case, supra.
This argument would present more possibilities for hardship if the questions were to be answered only by an officer who would be competent to testify on the corporation's behalf, as was the rule prior to the 1948 amendment. See 4 Moore, Federal Practice ¶ 33.07 (2d ed. 1950). Under the amended rule the agent who answers on behalf of the corporation does not need to have personal knowledge. The corporation's attorney will do. 4 Moore, Federal Practice ¶ 33.07 (2d ed. 1950).
But we are getting into unnecessary difficulties here. The Fifth Amendment plea is a personal one and a corporation cannot take advantage of it. That is really all that is involved as this case came to the district court and as it comes to us. Accord: United States v. 48 Jars, etc., D.C.D.C.1958, 23 F.R.D. 192.
The judgment of the district court will be affirmed.
"1. it will `rejuvenate failing or wornout glandular activities in human beings';
"2. it constitutes `a fountain of youth' and a `restorer of sexual vigor', or that it will restore sexual vitality to impotent persons;
"3. it will grow hair on bald heads or where the hair is thinning;
"4. it will restore youthful sex functions to women in menopause;
"5. it will insure good health to users."