Full opinion text
HALL, Chief Judge. The within proceeding was commenced on September 9, 1960, with the filing of what is designated as “Petition To Enforce Administrative Subpoenas And For Other Relief.” It is difficult to state in summary form either the factual or the legal contentions and questions which must be resolved, but they will become apparent as this memorandum proceeds. I. By F.R.Civ.P. 81(a)(3) the Federal Rules of Civil Procedure apply to proceedings to compel the giving of testimony or the production of documents in accordance with a subpoena issued by an officer or an agency of the United States under any statute of the United States except as “otherwise provided” by statute or rules of the District Court, or by an order of the court in the proceedings. The Administrative Procedure Act [5 U.S.C.A. § 1001 et seq.] and Section 503 (d)(1) of the Housing Act of 1954 [12 U.S.C.A. § 1464] permit the issuance of subpoenas by the Federal Home Loan Bank Board or its designated representatives. The Housing Act of 1954 in Section 503 (d) (1) specifically provides for the enforcement of subpoenas by the United States District Court in the District where the hearing is designated — this court in this instance — which section reads, inter alia, as follows: “The board or any member thereof or its designated representative shall have power to administer oaths and affirmations and shall have the power to issue subpenas (sic) and subpenas (sic) duces tecum, and shall issue such at the request of any interested party, and the board or any interested party may apply to the United States District Court where such hearing is designated for the enforcement of such subpoena or subpoena duces tecum and such court shall have power to order and require compliance therewith.” Section 6(c) of the Administrative Procedure Act provides as follows: “(c) Subpenas (sic). — Agency subpenas (sic) authorized by law shall be issued to any party upon request and, as may be required by rules of procedure, upon a statement or showing of general relevance and reasonable scope of the evidence • sought. Upon contest the court shall sustain such subpena (sic) or similar process or demand to the extent that it is found to be in accordance with law and, in any proceeding for enforcement, shall issue an order requiring the appearance of the witness or the production .of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply.” That section must be read and applied in conjunction with the above-quoted provisions of Section 503 of the Housing Act of 1954. The sections are not in conflict, and if anything, Section 6(c) of the Administrative Procedure Act complements the provision of the Housing Act of 1954 in that it permits the production of documents or data without the necessity of having a witness present at all times while the documents or data are under examination. Thus, there is no statute by which the procedure for enforcement of administrative subpoenas is “otherwise provided” than by Federal Rules of Civil Procedure as provided in F.R.Civ.P. 81(a)(3). There are no rules of this court, or order of this court in this proceeding “providing otherwise,” and if there were, it is at least doubtful if either would prevail over the statutory command just above quoted. The proceeding is and must be considered to be a proceeding on a motion under F.R.Civ.P. 7(b) (1) and (2), and the Federal Rules of Civil Procedure control it. This proceeding to enforce subpoenas is completely independent of the proceedings before the Board or the Hearing Examiner. The Ninth Circuit, in July of this year, in Flotill Products, Inc. v. Federal Trade Commission, 278 F.2d 850, had under consideration the enforcement of subpoenas under Section 9 of the Federal Trade Commission Act [15 U.S.C.A. § 49] which is substantially the same as the heretofore-quoted portion of Section 503 of the Housing Act of 1954. As to the nature of the proceeding in the District Court, that Court said, at page 852: “The proceeding in the district court was not ancillary to prior administrative action but formed an independent cause of action framed by the pleadings therein. I.C.C. v. Brimson (1894) 154 U.S. 447, 487 [14 S.Ct. 1125, 38 L.Ed. 1047]. Once the order of the trial court was entered, the hearing examiner’s subpoena was superceded and became inoperative and irrelevant.” See also Hubner v. Tucker, 9 Cir., 1957, 245 F.2d 35. The motion is therefore, the pleading taking the place of the complaint in an ordinary civil action. Parties may rely on affidavits —F.R.Civ.P. 6(d) — or on oral or documentary evidence adduced at the hearing, or both. It is a summary proceeding. Pursuant to the accepted practice, the Court issued an Order to Show Cause in lieu of a summons [see F.R.Civ.P. 4(e); 28 U.S.C. § 1651(b)] as to why the subpoenas should not be enforced. Service of the Order to Show Cause was made in accordance with the terms thereof and the Federal Rules of Civil Procedure, and was accepted by counsel for all of the above-named respondents. The respondents filed what was designated as a “Motion To Dismiss,” but which contained a prayer for affirmative relief, was verified generally by one of defendants’ counsel, and had attached to it a transcript of the proceedings before the Hearing Officer, and an affidavit of the above-named Robertson and Dixon. The affidavit denied generally any bias or prejudice. Counsel for respondents, on the last day of the hearing, stated that 16 subpoenas should have been attached to the response, but the Court denied the motion to attach the subpoenas, and ordered the subpoenas filed merely as a part of the record. The “Motion” of respondents was, therefore, more than a mere motion to dismiss. It was a legal and factual response, and in a summary proceeding of this nature must be considered as the answer of respondents raising, as it may, questions of law, F.R.Civ.P. 12(b). Hearings were had on September 7, 12, 13, 14 and 15, 1960, devoted mostly to argument and the admission of documentary evidence. The litigious history between the Long Beach Federal Savings and Loan Association and the Federal Home Loan Bank Board and its various members and officers, and agencies under its control, has been going for 14 years. In addition to many unreported memoranda, opinions, decisions and orders contained in the files and records, that litigation has been the subject of the following reported decisions: Mallonee v. Fahey, D.C.1946, 68 F.Supp. 418; Fahey v. Mallonee, 1947, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030; Ex Parte Fahey, 1947,. 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Mallonee v. Fahey, D.C.1949, 14 F.R.D. 273; Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336, certiorari denied Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374; Mallonee v. Fahey, 9 Cir., 1952, 200 F.2d 918; Fahey v. O’Melveny & Myers, 9 Cir., 1952, 200 F.2d 420, rehearing denied 12/17/52, cer-tiorari denied Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374, rehearing denied 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1393; Fahey v. Calverley, 9 Cir., 1953, 208 F.2d 197, rehearing denied 12/29/53, certiorari denied Utley v. Fahey, 347 U.S. 955, 74 S.Ct. 681, 98 L.Ed. 1100; Mallonee v. Fahey, D.C. 1953, 117 F.Supp. 259; Federal Home Loan Bank of San Francisco v. Long Beach Federal Savings & Loan Ass’n, D.C.1954, 122 F.Supp. 401; Mallonee v. Fahey, D.C.1954, 122 F.Supp. 472; Federal Home Loan Bank of San Francisco v. Long Beach Federal Savings & Loan Ass’n, D.C.1954, 122 F.Supp. 960; Federal Home Loan Bank of San Francisco v. Hall, 9 Cir., 1955, 225 F.2d 349, rehearing denied 10/12/55, certiorari denied Mallonee, Bucklin & Fergus v. Federal Home Loan Bank, 350 U.S. 968, 76 S.Ct. 438, 100 L.Ed. 840; Long Beach Federal Savings & Loan Ass’n v. Federal Home Loan Bank of San Francisco, 1955, 76 S.Ct. 32, 100 L.Ed. 1517; Ammann v. Home Investment Co., 9 Cir., 1957, 243 F.2d 748. The seizure of the Association in 1946, mentioned in Footnote 3, and the ensuing litigation was the subject of hearings and an investigation by Special Sub-committee of Congress in 1950, 1951 and 1952, and finally resulted in the adoption and passage of the National Housing Act of 1954 on August 2, 1954. That Act provides specific procedures — by Section 503 (d) (1) — in connection with the appointed of a conservator, and by Section 503 (d)(2) thereof permits the appointment of a Supervisory Representative in Charge by the Board without notice in case of an emergency if “a ground for the appointment of a -conservator or receiver as herein provided exists.” II. The Board, on April 19, 1960, adopted its Order Number 13,372 (Appendix “A”) appointing C. E. Ault, an employee of the Board (or one of its agencies), as Supervisory Representative in Charge, who took possession and control of the Association’s premises, assets and property on the evening of April 22, 1960. The Association had no notice of either the Board’s Order of April 19,1960, or of the intention to execute it until it was executed on April 22, 1960. Thereafter, the Board, by its Order Number 13,340 (Appendix “B”) dated May 12, 1960, set June 27, 1960, at Los Angeles, as the time and place for the commencement of an administrative hearing on whether the grounds specified therein exist for the appointment of a conservator. The date for commencement of the hearings was continued from time to time until September 1, 1960, when proceedings actually began before Honorable Robert N. Hislop as Hearing Examiner. The proceedings were at once charged with the tensions and anxieties which have permeated the entire litigation for the past 14 years. The Association secured subpoenas and subpoenas duces tecum from the Hearing Officer for respondents and others, supporting the application therefor with verified charges of disqualification, bias, prejudice and interest on the part of the members of the Board who had, as such Board, adopted both Orders No. 13,372 and No. 13,440, and on the part of A. V. Ammann. The Board moved before the Hearing Officer to quash the subpoenas and the subpoenas duces tecum to Board members Robertson and Dixon, and to Board employees Wyman and Ammann, theretofore issued by the Hearing Officer at the behest of the Association. The grounds asserted therein were four: (1) that the oral and documentary testimony sought by petitioner’s subpoenas relating to the appointment of the Supervisory Representative in Charge under the Board’s Order No. 13,372 was not within the jurisdiction of the Hearing Examiner as his appointment was limited to a hearing under the Board’s Order No. 13,440; (2) that oral and documentary evidence sought by the subpoenas which might go to Petitioner’s charge of bias, prejudice and disqualification of the Board is irrelevant and immaterial upon a hearing under the Board’s Order No. 13,440; (3) that the subpoenas are burdensome, unreasonable and oppressive, and for that reason should be quashed; and (4) that no authority exists to require the four above-named persons who reside in Washington, D. C., which is out of this District and more than 100 miles from Los Angeles, to come to Los Angeles, and give testimony. It must be observed that such grounds for quashing are urged only to the Hearing Examiner, and were not stated in Respondents’ response as grounds for the denial of Petitioner’s Complaint to enforce the subpoenas. They are before the Court only as an exhibit (No. 9) offered by the Petitioner. They will, however, be considered. The verified application for the subpoenas filed by the Association, dated June 20, 1960, contained a “Statement or Showing of General' Relevance and Reasonable Scope of the Evidence Sought,” (Appendix “C”), [Administrative Procedure Act, Section 6(c), 5 U.S.C.A. § 1005(c)] which alleged that the Board and the members thereof were collectively and personally biased, prejudiced, interested and disqualified to consider, hear, or decide, either as hearing officers or otherwise, the issues of fact and law presented by the allegations and charges in both Order No. 13,372 and Order No. 13,440. In the Association’s verified denial of accusations filed on September 1, 1960, before the Hearing Officer, three separate affirmative defenses were set out, enlarging the charges of bias and prejudice. [For text see Appendix “D”]. It should be mentioned that the only denial of the charges by any of the parties who were subpoenaed was the affidavit of Board Members Robertson and Dixon attached to Respondents’ response in the within proceedings, which denial is in general terms. [For text see Appendix “E”]. The Association filed with the Hearing Examiner a response to the Motion to Quash, asserting, among other things, that the question of disqualification, bias, prejudice and personal interest must be heard and decided first before any hearing could proceed on the merits either as to Order No. 13,372 or Order No. 13,440, and that if Petitioner participated in the hearing without such procedure, the Association would be held to waive its point. The witnesses did not and have not responded to the subpoenas. The Hearing Examiner did not make any written order. He did make several statements from which it appears that he had decided he would not hear any testimony of “motivation” (presumably bias, prejudice, interest or other grounds of disqualification) of the Board or its members, and would not hear any evidence relating to the Board Order of April 19, 1960 (No. 13,372), appointing the Supervisory Representative in Charge. But this proceeding is not to review the rulings of the Hearing Examiner on the admissibility of evidence — it is a proceeding to enforce subpoenas, i. e., to compel certain specified persons to be present, with documents, and to testify when called. And the long and the short of it is that those persons were not present when the subpoenas required them to be, nor were the documents produced; and the Hearing Examiner did not, by his statements or otherwise, make any definitive indication that he would require the subpoenas to be honored, but left Petitioners, at best, in a position of present non-compliance and uncertainty as to future compliance. In that state of the record, the Petitioners were and are entitled to have recourse to this court for enforcement of the subpoenas under the provisions of Section 503 of the Housing Act of 1954, unless there are other reasons why the subpoenas should not presently be enforced. III. Among other things, Petitioner contends that neither the Hearing Officer nor the Board has the power to revoke or quash subpoenas. It is right in this contention. Congress could have granted such power to Hearing Officers appointed under the Administrative Procedure Act, or to the Board or Hearing Officers in the Housing Act of 1954, as Congress did to the National Labor Relations Board by 29 U.S.C.A. § 161(1), but Congress did not do so in the Housing Act of 1954, but limited the power of the Board to-the issuance of such subpoenas. The Housing Act of 1954, Section 503-(d)(1) provides, as heretofore quoted: “The Board or any member thereof or its designated representative-shall have power to administer oaths, and affirmations and shall have power to issue subpoenas and subpoenas, duces tecum, and shall issue such at. the request of any interested party, and the Board or any interested: party may apply to the United States, district court of the district where-such hearing is designated for the enforcement of such subpoena or subpoena duces tecum, and such courts shall have the power to order and require compliance therewith.” (Emphasis added.) It is a matter of mere logic that the-power to order and require “compliance” carries with it the power to withhold.' compliance, i. e., to revoke or quash or-modify. Nor does the Administrative Procedure-Act grant any such power. Section 7(b) of that Act [5 U.S.C.A. § 1006(b)] limits, the powers of Hearing Officers to nine things, none of which include the power-to revoke or quash subpoenas. And Section 6(c) of the Administrative Procedure Act [5 U.S.C.A. § 1005(c)] provides, that “upon contest,” i. e., motion to enforce or quash, “the Court” shall have-the power to enforce or withhold enforcement of such subpoenas. While Cudahy Packing Co. v. Holland, 1942, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, dealt with the power of an administrator to delegate-his subpoena power to another, the con— -tent of the decision supports the principle that subpoena powers, whether to issue or quash, should not be upheld unless the .power is expressly granted in the Statute. If a witness does not appear in response to a subpoena and testify, the means to compel compliance or withhold it, under both Section 6 of the Administrative Procedure Act and Section 503 (d) (1) of the Housing Act of 1954, is by seeking the power of the District ‘Court in the District of the hearing, by a proceeding filed under the Federal Rules of Civil Procedure which are made .applicable to such proceedings by Rule 81(a) (3). And the fundamental elements of due process require that the pjarty who does not respond either to the subpoena, or who appears and refuses to testify, shall be made a party to such proceeding and given an opportunity to ,be heard. The power to enforce is the power to impose sanctions, i. e., punishment for disobedience; or to withhold sanctions, i. e., to quash. Both of these are judicial powers and neither is committed to the Board or a Hearing Officer under either the Administrative Procedure Act or the Housing Act of 1954. I hold that neither the Board nor the Hearing Officer has the right or power to revoke or quash any of the subpoenas issued, and that the power to enforce or withhold enforcement, i. e., to quash, lies only in the United States District Court in which the hearing is held, upon an application therefor filed as a .separate proceeding or proceedings in .such District Court, naming as respondents the person or persons against whom enforcement is sought; or, if a motion to quash, naming as respondents the party who, or which, secured the subpoenas; and that any such proceedings .are subject to the Federal Rules of Civil Procedure, and that the respondents are entitled, not only under the Rules, but as a fundamental element of due process, to be served and to be heard in the District Court. Such motions to enforce or quash should be timely filed. They are in no sense review proceedings to await the final order of the agency. And the court may issue its order independent of and different in character from the administrative subpoena. Flotill Products, Inc. v. F. T. C., supra. Thus the procedure followed by the Petitioner, while summary in nature, in seeking enforcement of the subpoenas before this Court, is the proper procedure. It was filed as a separate civil proceeding; it named the parties upon whom the process of the court is sought to be invoked; and service was made in accordance with the order and the Federal Rules of Civil Procedure, and accepted by counsel who have appeared and represented the respondents; and they have had their opportunity to be heard. IV. But the “shot gun” request of Respondents contained in the prayer of their “Motion To Dismiss” that “this court rule * * * that all witnesses duly subpoenaed to give testimony and produce documents before the examiner * * * shall do so * * *,” is not in compliance with any provision of any law. No notice was given to, or service of any order or process was had upon, any of the 16 persons or entities named in the subpoenas. Should this Court grant such motion, it would be violating the most fundamental concepts of due process which have been expounded at length by the Supreme Court in cases too numerous to mention or here repeat. Thus there is no proceeding properly before this court to enforce — or to quash for that matter — the 16 subpoenas which were issued by the Hearing Examiner, and filed with this Court on September 15, 1960, the last day of the hearing in the within matter, and which named the following persons or entitles: Leon Frazer, Roy H. Wolfers, Louis D. Brunt, Thomas A. Gregory, Pacific Insurance Agency of Long Beach, Bernice M. Powers, First Escrow & Title Company, Title Service Company, Charles K. Chapman, A. G. Maspero, Mason E. Eight, Wm. H. Campbell, Lewis E. Williams, Earle W. Sundall, Farmers & Merchants Trust Company of Long Beach, and E. V. Van Dusen. The above-mentioned “prayer” of Respondents is denied. V. The subpoenas on Robertson, Dixon, Hallahan, Wyman, Ammann, and Husband were each served in Washington, D. C., and were accompanied with a check for $500 for the payment of mileage to Los Angeles. . One of the grounds of Respondents in opposition to enforcement of the subpoenas is that by F.R.Civ.P. 45(e) a court has no jurisdiction to enforce subpoenas served outside the District unless it is within 100 miles of the place of holding court. This argument overlooks the last clause of the above Rule which provides: “When a statute of the United States provides therefor, the court, upon proper application and cause shown may authorize the service of a subpoena at any other place.” Section 818 of the Housing Act of 1954, 12 U.S.C.A. § 1703 note provides: “Insofar as the provisions of any other law are inconsistent with the provisions of this Act, the provisions of this Act shall be controlling.” Thus any inconsistency in F.R.Civ.P. 45(e) must yield to the direct provisions of Section 503 of the Housing Act of 1954 heretofore quoted. The Housing Act of 1954, Section 503 (d) (1), specifically provides that the administrative hearing shall be in the Federal Judicial District of the association, and that the Board or any member or any designated representative (the Hearing Officer) “shall have the power to issue subpoenas and subpoenas duces tecum, and shall issue such at the request of any interested party.” This section further provides that the District Court of such District “shall have power to order and require compliance” with such subpoenas. This is clearly a grant of original power and jurisdiction to the Board to issue, and to this Court to enforce, the above-mentioned subpoenas by requiring said persons to appear and attend at the hearing in Los Angeles, and is clearly within the exception contained in the last clause of F.R.Civ.P. 45(e). The whole tenor of the Housing Act of 1954 is to relieve associations, their officers, employees and attorneys from the harassment and burden of traveling from distant points to Washington to-give, or to get, testimony which may be given only by officials or employees of the government, or which may repose in government files. [See House Hearings on Housing Act of 1954], I therefore hold that this Court has the power to compel the attendance of, and the production of documents and the giving of testimony by, the named Respondent witnesses at a hearing under the Housing Act of 1954 called in Los Angeles, in response to said subpoenas and subpoenas duces tecum, and in doing so, to use all of the means provided by the law to enforce compliance with its order. VI. While the Respondents did not raise the point in their “Motion” which I have held to be an answering response, their Motion to Quash the subpoenas addressed to the Hearing Examiner did claim the subpoenas should be quashed because they called for oral and documentary testimony relating to the appointment by the- Board of “C. E. Ault as Supervisory Representative in Charge” to “take care of” the Association under Board Order No. 13,372 (Appendix “A”), and that the Hearing Examiner’s appointment by Board Order No. 13,512 is “limited to a hearing under Resolution No. 13,440 (Appendix “B”) to determine whether the 17 specific grounds therein stated exist for the appointment of a conservator of said Association.” As heretofore mentioned, many of the things charged in Order No. 13,372 appointing the Supervisory Agent, and in Order No. 13,440 are the same, or substantially so. It is to be noted that before the Board can appoint a Supervisory Representative in Charge, it must find two things to be true: First, that “a ground for the appointment of a conservator or receiver as herein provided exists;” and second, that an emergency exists. They did appoint the Supervisory Representative in Charge; he did take possession of all the Association’s assets, property, records and premises on April 22, 1960; he is still in possession thereof; he has “all the powers herein provided for conservators * * and “unless sooner removed,” he may stay in possession of the assets, property, records and premises “until a conservator or receiver, appointed by the Board after notice as herein provided, takes charge of the Association and its affairs, or for six months, or until 30 days after the termination of the Administrative hearing and final proceedings herein provided, or until 60 days after the final termination of any litigation affecting such temporary appointment.” Inasmuch as the Supervisory Representative has been in charge and possession of the property and records of the Association since April 22, 1960, and inasmuch as he has all of the records and property in his possession, it seems to me that it is inescapable that the Hearing Examiner must take testimony and evidence under Order No. 13,440 which goes to the question as to whether or not grounds existed, as set forth in Order No. 13,372, for the appointment of a conservator on April 19, 1960, the date of that Order. While the Supervisory Representative has been in charge and possession of the Association, deposits of the Association were withdrawn in the sum of approximately 60 million dollars between April 22, 1960, when its deposits were approximately 95 million dollars, and July 31, 1960, when its deposits had dropped to approximately 35 million. To limit the hearing to whether or not grounds “currently” exist for the appointment of a conservator would make a dead letter of the provisions of Section 503(d) (1) of the Housing Act of 1954 relating to the appointment of a conservator, and would press dangerously close to a denial of due process. April 22, 1960 was the last date the Association had possession and control of their property and records, and the last it or its management can be held responsible for any of the things charged in either Order No. 13,372 or Order No. 13,440. Neither it nor its officers can be held responsible for what the Supervisory Representative in Charge, acting under the control of the accusing Board during that period, has done since. In Beacon Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, D.C.Wis.1958, 162 F.Supp. 350, a Supervisory Representative in Charge had been appointed, followed by administrative hearings, the appointment of a conservator and a court review. That Court stated, at page 353: “Any question as to the correctness of the Board’s opinion, at the time when it summarily appointed a Supervisory Representative in Charge, that ground for the appointment of a conservator or receiver existed and that an emergency existed which required immediate action, is merged in the issue before the court on review of the administrative action. Fahey v. Mallonee, 1947, 332 U.S. 245, 253-254, 67 S.Ct. 1552, 91 L.Ed. 2030; Beacon Federal Sav. & Loan Ass’n v. Federal Home Loan Bank Board, D.C.E.D.Wis. 1956, 143 F.Supp. 534-536.” (Emphasis added.) The Court then went on to review the evidence which antedated the appointment of the Supervisory Representative in Charge, and held that the Board’s findings of fact were “clearly supported by the weight of the evidence.” This case was affirmed on a procedural matter by the Seventh Circuit in 266 F.2d 246, certiorari denied 361 U.S. 823, 80 S.Ct. 70, 4 L.Ed.2d 67, but the Circuit Court took occasion to approve the opinion of the District Court. To hold that only the current condition of the affairs of the Association can be inquired into under Order No. 13,440 without examining whether grounds existed for the appointment of a conservator on April 19, 1960, would be similar to executing a judgment on the filing of a complaint, and then limiting the trial to whether or' not the defendant had any property at the time of trial. It is like trying to “unring a bell.” The illustration may seem harsh, but it is apposite, and illustrates the unsoundness of Respondents’ objection above-mentioned, not only as being contrary to the Act, but fraught, as well, with' violation of due process. I hold that evidence concerning whether or not grounds existed for the appointment of a conservator at the time of the adoption of Board Order No. 13,372 is proper and required in a hearing conducted under Board Order No. 13,440. While it has been held that anticipatory judicial intervention with the Board’s action in appointing a Supervisory Representative in Charge is improper, in Greater Delaware Valley Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, 3 Cir., 1958, 262 F.2d 371 [cited with approval in Beacon Federal Savings & Loan Ass’n v. Federal Home Loan Bank Board, 7 Cir., 266 F.2d 246, supra], it is also held in that case that Section 503(d) of the Housing Act of 1954 expressly provides for judicial review after culmination of the administrative hearings, thus indicating that the question of whether or not there was an emergency should be the subject of evidence before the Hearing Examiner, and review by the Court. VII. Another ground urged before the Hearing Examiner, but not included in the response of Respondents before this Court, is that the duces- tecum subpoenas are too general and are unreasonable and burdensome and oppressive in that they call for documents, et cetera, as far back as 1952, and thus should not be enforced. No showing was made either before the Hearing Examiner or before this Court as to the extent of the documents and things called for by the subpoenas duces tecum, whether it is merely a brief case full or a filing cabinet full. The mere assertion that compliance with a subpoena is burdensome and onerous is alone not sufficient without showing of the manner and extent of the burden and the injurious consequences of compliance. Moreover, both Order No. 13,372 and Order No. 13,440 contain charges of conduct of the Association going back as far as 1947. (See Appendices “A” and “B”.) In light of this fact and the holdings of the Supreme Court in the following eases, I hold that, the subpoenas are not too general and are not oppressive or burdensome or unreasonable. Oklahoma Press Pub. Co. v. Walling, 1945, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614; Wheeler v. United States, 1913, 226 U.S. 478, 33 S.Ct. 158, 57 L.Ed. 309; Consolidated Rendering Co. v. State of Vermont, 1908, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327; Brown v. United States, 1928, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; and Consolidated Mines of California v. Securities and Exchange Commission, 9 Cir., 1938, 97 F.2d 704. VIII. Before considering the objection of Respondents that the Hearing Examiner has no power to take evidence of bias and prejudice of the Board under the Order appointing him, and other questions, I will turn to the procedural question involved in the filing of the amendment to Petitioner’s petition proffered on September 15, 1960, the last day of the hearing, and Respondents’ objection thereto. By that proposed amendment, Petitioner asserts that the Hearing Examiner is “disqualified” for failure of the Board to comply with the terms of the Administrative Procedure Act in the selection and appointment of the Hearing Examiner. The position taken in the proposed amendment raises a question not theretofore raised as to the legality of the appointment of the Hearing Examiner, as throughout the three days of hearings before the Hearing Examiner (during which no evidence was taken), it was the position of Petitioner that it was not contending that the Hearing Examiner was personally biased, prejudiced or disqualified, but that the Order appointing him was void (Order No. 13,372) as well as all orders of the Board relating to the appointment of the Supervisory Agent in Charge, and the hearing on conserva-torship, for the reason that the Board and its members were disqualified because of bias, prejudice and personal interest in the outcome of the hearings. That was the position of Petitioner’s counsel at the hearing before this Court until September 13, 1960, when counsel for Respondents produced, under Court order, copies of the correspondence leading up to the orders of the Board appointing the Hearing Officer, whereupon Petitioner promptly, at the next session of the court, presented the proposed amendment raising the new question that the Hearing Examiner was not properly selected. Petitioner contends, among other things, that the filing of the proposed Amended Petition was timely, and that it has the right to file the amendment under F.R.Civ.P. 15(b). In that connection, it is necessary to briefly review the evidence of the history of the appointment of the Hearing Examiner, and the time when Petitioner had knowledge of the antecedent actions of the Board member Robertson and the General Counsel for the Board. On June 15, 1960, there was mailed (Exhibit 10) by regular mail to Petitioner’s counsel, a copy of Board Resolution No. 13,512 dated June 3,1960. (See Footnote 9). The hearing was then set to begin in Los Angeles on June 27,1960. A copy of Board Resolution No. 13,511 dated June 3, 1960, was first produced by Respondents’ counsel on September 13, 1960, in court. All parties waived foundation of the various exhibits. Later on the same day, Exhibits 11-A, 11-B, 11-C, 11-D, 11-E, 11-F, 11-G, 11-H, 11-1 and 11-J were produced by Respondents’ counsel and admitted into evidence. From these exhibits it appears by a letter dated May 24, 1960, from Mr. Robertson, Board Chairman, to the Chairman of the Securities Exchange Commission, that they had previously had a conversation wherein the loan of a.hearing examiner was requested from the Securities Exchange Commission, and as the letter stated: “It is our understanding that Robert Hislop * * * can be made available to conduct this hearing.” This was followed by a letter dated May 27, 1960, from the Securities Exchange Commission to Mr. Robertson, Board Chairman, confirming the fact that Mr. Hislop would be made available. There then followed a letter dated June 1, 1960, to the United States Civil Service Commission, by the General Counsel of the Board, stating that negotiations for a hearing examiner had been conducted with the Securities Exchange Commission, and that the Commission has “agreed to make available to the Board Mr. Hislop on a reimbursable basis,” and that “it would be appreciated if you will give your approval for Mr. Hislop to act for the period not to exceed September 1, 1960.” This was in turn followed by a letter dated June 2, 1960 from the Civil Service Commission to the General Counsel of the Federal Home Loan Bank Board confirming that Mr. Hislop would be assigned. Subsequently, by letter dated July 25, 1960, from the Securities and Exchange' Commission, the loan of Mr. Hislop was confirmed to be agreeable for hearings to commence on September 1,-1960, and by letters of July 29, August 9, August 11 and August 19, 1960, the period of Mr. Hislop’s service as Hearing Examiner for the Board was extended to November 30, 1960. It must be added that Part I of the printed transcript (1110 pages) of the Congressional Committee hearings of June and July, 1960, are in evidence as Exhibit 12, and that the General Counsel of the Board, on June 21, 1960 (page 599), in response to a question by Congressman Holifield: “And you selected Mr. Hislop?” testified: “I selected him because he was in the Securities Exchange Commission, and I understood that he was an outstanding examiner.” While Petitioner contends that this testimony-conflicts with the letters of Exhibit 11 series, it is mentioned because Respondents contend that Petitioner, by that testimony, had notice on June 21, 1960, that Mr. Hislop was not selected by the Civil Service Commission and any objection to his qualifications on that ground has been waived as not timely. In view of the fact that Petitioner did not have knowledge of the correspondence in the Exhibit 11 series, or of the facts disclosed therein until September 13, 1960, and had only a copy of Board Order No. 13,512 appointing the Hearing Examiner, I hold that F.R.Civ.P. 15(b) is applicable to these proceedings, and that by filing the amendment to the Complaint, based on such correspondence, on September 15, 1960, the next court day, Petitioner acted promptly, and had not waived its right to object to the method of selection of the Hearing Examiner, and the proposed amendment was timely if the amendment was otherwise proper. The Petitioner makes two contentions on the merits in connection with proposed amendment to the complaint, viz.: (a) that under Section 11 of the Administrative Procedure Act, agencies not having hearing examiners (it is conceded that the Board is such an agency) may only use hearing examiners “selected” by the Civil Service Commission, and that the hearing examiner in this instance was selected by the Board or one of its members, and hence is not a qualified hearing examiner under Sections 5, 7 and 8 of the Administrative Procedure Act; (b) that the provisions of 5 C.F.R. 34.14(b) of the Rules and Regulations of the Civil Service Commission, which Respondents claim validates the appointment of the hearing examiner, is void as being contrary to the express terms of Section 11 of the Administrative Procedure Act and its whole intent and purpose to prevent administrative officers and agencies from being both the accuser and the judge, or selecting one of their choice to make the decision in a proceeding where the agency is the accuser, and that this court in this proceeding has the power to declare such rule of the Civil Service Commission void, and the hearing examiner unlawfully “selected.” In view of the conclusions which will shortly appear, this court will not reach those questions in this proceeding. IX. Before considering any other contentions of the parties, I will examine the general principles pertaining to bias, prejudice, interest, and other grounds of disqualification of judicial and quasi-judicial officers and agencies. Proceedings of the kind instituted here are often described as quasi-judicial proceedings. Morgan v. United States, 1936, 298 U.S. 468-480, 56 S.Ct. 906, 80 L.Ed. 1288. And in considering the question of disqualification of administrative officers and agencies, and hearing examiners, the Courts have analogized them to judges, when a charge of disqualification — for whatever ground — is made. This principle is probably best stated in National Labor Relations Board v. Phelps, 5 Cir., 1943, 136 F.2d 562, at pages 563-564, where the Court stated: “A fair trial by an unbiased and non-partisan trier of the facts is of the essence of the adjudicatory process as well when the judging is done in an administrative proceeding by an administrative functionary as when it is done in a court by a judge. Indeed, if there is any difference, the rigidity of the requirement that the trier be im-. partial and unconcerned in the result applies more strictly to an administrative adjudication where many of the safe guards which have been thrown around court proceedings have, in the interest of expedition and a supposed administrative efficiency been relaxed. Nor will the fact that an examination of the record shows that there was evidence which would support the judgment, at all save a trial from the charge of unfairness, for when the fault of bias and prejudice in a judge first rears its ugly head, its effect remains throughout the whole proceeding. Once partiality appears, and particularly when, though challenged, it is unrelieved against, it taints and vitiates all of the proceedings, and no judgment based upon them may stand.” (Emphasis added.) In Berkshire Knitting Mills v. N. L. R. B., 3 Cir., 1941, 121 F.2d 235, at pages 238-239, the court held that it was essential that the resolution of contested questions be made by an impartial and disinterested tribunal, and said: “Certain rules, of more or less definiteness, have been worked out through judicial decision by judges to regulate their own conduct. The rules disqualifying a judge for bias are illustrations. Other rules have been provided by legislatures to secure fairness in the trier of the facts. Thus prospective jurors may be examined for views which indicate predilections for either party to the controversy. * * * Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.” In Inland Steel Co. v. N. L. R. B., 7 Cir., 1940, 109 F.2d 9, at page 20, it is stated: “The Act authorizes the Board to enter an order upon a complaint alleging unfair labor practices, only after a ‘hearing.’ This must mean a trial by a tribunal free from bias and prejudice and imbued with the desire to accord to the parties equal consideration. There is perhaps no more important right to which litigants are entitled than that they be given such a trial. Its impairment, ipso facto, brings the court, and administrative bodies as well, into public disrepute, and destroys the esteem and confidence which they have enjoyed so generally. Time and experience have demonstrated that the public, as well as litigants, will tolerate the honest mistakes of those who pass judgment, but not the biased acts of those who would deprive litigants of a fair and impartial trial. Foremost among the responsibilities imposed upon a reviewing court, is to make sure that this foundation of our Judicial system be not undermined.” (Emphasis added.) The Court then went on to quote and cite with approval the leading case of Judicial disqualification — Tumey v. State of Ohio, 1927, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 — and the much cited case of Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 1936, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093, which in turn, cited with approval the concurring opinion of Justice Brandéis in St. Joseph Stock Yards Co. v. United States, 1936, 298 U.S. 38, 56 S.Ct. 720, 735, 80 L.Ed. 1033, where Justice Brandéis stated that one of the “inexorable” safeguards which the due process clause assures is that the “trier of the facts shall be an impartial tribunal.” In that case the trier of facts was the Secretary of Agriculture, an administrative officer in the Executive Department. In United States v. L. A. Tucker Truck Lines, Inc., 1952, 344 U.S. 33, at page 38, 73 S.Ct. 67, at page 69, 97 L.Ed. 54, the Court, while holding that the objections to the qualifications of the hearing examiner came too late, nevertheless said: “ * * * The defect in the examiner’s appointment was an irregularity which would invalidate a resulting order if the Commission had overruled an appropriate objection made during the hearings.” A three-judge court in Riss & Co. v. United States and Interstate Commerce Commission, D.C.W.D.Mo.1950, 96 F. Supp. 452, had under consideration a review of the denial of plaintiff’s application for a certificate of convenience and necessity. Plaintiff contended that no hearing had been had as required by Sections 5, 7 and 8 of the Administrative Procedure Act, in that the hearing examiner was not appointed in accordance with Section 11 of the Administrative Procedure Act. The three-judge court held the Administrative Procedure Act inapplicable, but the Supreme Court reversed without opinion (341 U.S. 907, 71 S.Ct. 620, 95 L.Ed. 1345) on the authority of Wong Yang Sung v. McGrath, 1949, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, which held that a denial of a hearing was lack of constitutional due process. Hence, the reversal of Riss on authority of Wong Yang Sung was a holding that due process was denied to Riss by a hearing before a hearing examiner not selected in compliance with Section 11 of the Administrative Procedure Act. In Reliance Steel Products Co. v. United States et al., 1957, 150 F.Supp. 118, 123, the District Court for the Western District of Pennsylvania granted an injunction against an order of the Interstate Commerce Commission on the ground that the hearing examiner had not been appointed in accordance with Section 11 of the Administrative Procedure Act, and said, concerning the Riss case, supra: “The case of Riss & Co. v. United States * * * is significant * * *. Constitutional considerations rather than a statute required a hearing in that case. The hearing was conducted by a non-hearing examiner who admitted in evidence all testimony that the plaintiff offered on the decisive issue, and denied the application for a certificate of authority, in which the Commission concurred. The facts as alleged by the plaintiff were for the purposes of the decision admitted. There was no issue of admissibility of evidence or credibility of witnesses involved, and the plaintiff admitted that the hearing was fair and the examiner competent. Yet the decision was reversed (Riss & Co. v. United States, 341 U.S. 907, 71 S.Ct. 620, 95 L. Ed. 1345) on the authority of Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L.Ed. 616, because the hearing [examiner] was not qualified as prescribed by the Administrative Procedure Act. See also: United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54.” I agree with the foregoing statement that the reversal of the Riss case, supra, by the Supreme Court on the authority Wong Yang Sung v. McGrath, supra, was a holding that a hearing by a disqualified hearing examiner not appointed under the terms of the Administrative Procedure Act is a denial of constitutional due process. From the foregoing cases it is seen that the same standards concerning bias, prejudice, interest and disqualification must be applied to hearing examiners and members of administrative boards when acting in a “quasi-judicial” capacity, as are applied to judges. In the Federal system, Sections 144 and 455 of Title 28 United States Code, deal with the matter of disqualifications of Federal Judges and the time and manner of raising and deciding it. The courts, in construing these sections, have imposed rigid requirements on judges. Illustrative thereof is the Ninth Circuit case of In re Honolulu Consol. Oil Co., 1917, 243 F. 348, 352, where that Company sought and secured a writ of mandamus compelling Judge Bledsoe of this court to disqualify himself because of a possible stockholder’s liability, not then asserted or alleged to be threatened or impending, on account of his former ownership of stock of the value of $16.90 in a corporation, not a party to the case, but a party to another case wherein the United States was seeking relief on the same general grounds as the Honolulu case. The court adopted the doctrine followed in California as announced in North Bloomfield Gold Min. Co. v. Keyser, 58 Cal. 315, where the City of Marysville brought a suit against the Gold Mining Company to restrain it from allowing its detritus from mining operations to be deposited on lands in the City of Marysville. The court held that because Judge Keyser owned a lot in Yuba City, across the Feather River from Marysville and not in the city limits of Marysville, he was “interested” under Section 170, California C.C.P., in the outcome of the litigation because the same thing might happen to Yuba City. The Ninth Circuit quoted with approval from that case, in part, as follows: “It is an ancient maxim, and one founded in the most obvious principles of natural right, that no man ought to be a judge in his own cause. That principle finds expression in our statute in these words: ‘No justice, judge, or justice of the peace shall sit or act in any action or proceeding: 1. To which he is a party, or in which he is interested.’ Section 170 Code of Civil Procedure. This provision should not receive a technical or strict construction, but one that is broad and, liberal. ‘The court ought not to be astute to discover,’ said the Supreme Court of Michigan in Stockweil v. Township Board of White Lake, 22 Mich. 350, ‘refined and subtle distinctions to save a case from the operation of the maxim, when the principle it embodies bespeaks the propriety of its application. The immediate rights of litigants are not the only objects of the rule. A sound public policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance.’ ” While Tumey v. State of Ohio, 1927, 273 U.S. 510, 47 S.Ct. 437, 441, 71 L.Ed. 749, dealt with a State Judge, it is still the leading case dealing with the disr qualification of judicial and quasi-judicial officers, and its principles have been applied to administrative agencies. In it, Chief Judge Taft said: “That Officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the controversy to be decided is of course the general rule * * *. No matter what the evidence was against him, he had the right to have an impartial judge. He seasonably raised the objection, and was entitled to halt the trial because of the disqualification of the judge, * * * because of his direct pecuniary interest in the outcome, and because of his official motive to convict.” (Emphasis added.) It may be said from a distillation of the doctrine of the foi'egoing cases and many others dealing with the subject, that the right to an impartial judge or quasi-judicial officer, free from bias, prejudice, interest or other ground of disqualification, is a fundamental right, protected by the due-process clause of the Fifth Amendment, and thus a constitutional ifight which is, however, subject to waiver if not timely and sufficiently raised. Under Sections 144 and 455 of Title 28 United States Code, and the cases construing those sections, the allegations contained in an affidavit must be accepted as true, and the judge has the right and the duty to determine whether or not, on their face, they are legally sufficient to constitute a disqualification. If so, he must recuse himself. Mitchell v. United States, 10 Cir., 1942, 126 F.2d 560, certiorari denied 316 U.S. 702, 62 S. Ct. 1307, 86 L.Ed. 1771, rehearing denied 324 U.S. 887, 65 S.Ct. 855, 89 L.Ed. 1436; and cases cited following 28 U.S. C.A. §§ 144 and 455. An appeal from the order made by the Judge has sometimes been held to be appealable — Minnesota & Ontario Paper Co. v. Molyneaux, 8 Cir., 1934, 70 F.2d 545; In re Lisman, 2 Cir., 1937, 89 F.2d 898 — and may also be reviewed by mandamus or prohibition. In re Lisman, supra; In re Honolulu Consol. Oil Co., supra. But whether by one method or the other, the asserted disqualification of a judge may be reviewed before a trial of the case is had on the merits. With the foregoing in mind, I will turn to the Administrative Procedure Act and the Housing Act of 1954, and examine such provisions as may exist concerning the subject. X. The Housing Act of 1954 is silent on the subject of disqualification of hearing officers and board members, and the procedure to be followed. But the Administrative Procedure Act is not, either as to the method and time of raising, or the time of hearing such charges. Section 7(a) (3) of the Administrative Procedure Act provides, in its pertinent part, as follows: “The functions of all presiding officers and officers participating in decisions in conformity with Section 8 shall he conducted in an impartial manner. Any such officer may at any time withdraw if he deems himself disqualified, and upon filing in good faith of a timely and sufficient affidavit of personal [interest] or disqualification of any such officer, the agency shall determine the matter as a part of the record and decision in the case.” (Emphasis added.) In keeping with the Ninth Circuit case of Honolulu Consolidated Oil Co., supra, “This provision should not receive a technical or strict construction, but rather one that is broad and liberal. ‘The court (Agency) ought not to be astute to discover’, * * * refined and subtle distinctions to save a case from the operation of the maxim (statute), when the principle it embodies bespeaks the propriety of its application.” The hearing officer appointed by the Board is clearly a “presiding officer,” under the above quoted section. And the Board members are not only “officers participating in such decisions” which must be made under Section 8 of the Administrative Procedure Act, after hearing by a hearing officer, but the above section [Section 7(a) (3)] specifically requires that the “agency,” i. e., the Board, must make the decisions as to all matters covered by the above section. Thus, the above section applies to both the charges of disqualification of the hearing officer and also to the charges of bias, prejudice and interest made against the Board. And what is said, and the conclusions reached in this section of this Memorandum, apply to the charge of disqualification against the hearing officer and the charges of bias, prejudice, interest and disqualification of the members of the Board. The words “upon,” “timely,” “sufficient,” and “good faith,” as used in Section 7(a) (3) of the Administrative Procedure Act, are words in common use in the law, and must take their meanings from general law and adjudicated cases inasmuch as no definitions thereof are made in the Administrative Procedure Act, and inasmuch as no period of time before or after any given event is fixed for the filing, or hearing, or review of charges of bias, prejudice, interest, or disqualification, in either the Administrative Procedure Act or the Housing Act of 1954. “Timely” means at the first reasonable opportunity after discovery of the facts tending to show disqualification, Chafin v. United States, 4 Cir., 1925, 5 F.2d 592, in time to avoid useless costs, Bishop v. United States, 8 Cir., 1926, 16 F.2d 410. It can mean after commencement of trial or other proceeding when facts upon which the affidavit is based were not known prior thereto. Hurd v. Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121. “Sufficient” means allegations of fact as distinguished from conclusions. And the facts must be such that, taken to be true as stated, they would be sufficient to convince an unbiased, unprejudiced, and disinterested mind. Foster v. Medina, 2 Cir., 1948, 170 F.2d 632; Field-crest Dairies v. City of Chicago, D.C.Ill. 1939, 27 F.Supp. 258. It may be considered sufficient, if made on information and belief — Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 — and the affidavit must be viewed in light of the whole situation. United States v. Murphy, D.C.Mo.1937, 19 F. Supp. 987. “The word ‘upon’, as a preposition indicating when something happens or is to be done, means, according to Webster, ‘with little or no interval thereafter.’ ” Kirk v. United States, 9 Cir., 1950, 185 F.2d 185, at page 188. It means “at the time of” the happening of an event, as, when something is required to be done “upon” the death of a person, it means as soon after the moment of death as preparations and arrangements can reasonably be made. See 43 Words and Phrases 429 et seq. and Pocket Part. “Good faith” is of such common use in the law that citations would be superfluous. It means just what it says. It is the opposite of bad faith. It means with good intentions, and that a person advocating a thing in good faith has an abiding and honest belief that the facts advanced are true, and that the legal position taken is sound in law. If a timely and sufficient affidavit is not filed with the Board, grounds of disqualification are waived under the general rule that disqualification, if not timely raised, is waived. United States v. L. A. Tucker Truck Lines, 1952, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54; Adams v. Witmer, 9 Cir., 1958, 271 F.2d 29; Gilligan, Will & Co. v. S. E. C., 2 Cir., 1959, 267 F.2d 461, certiorari denied 361 U.S. 896, 80 S.Ct 200, 4 L.Ed.2d 152; Marquette Cement Mfg. Co. v. F. T. C., 7 Cir., 1945, 147 F.2d 589; N. L. R. B. v. Baldwin Locomotive Works, 3 Cir., 1942, 128 F.2d 39. It follows that before the reviewing court has the jurisdiction to hear and determine the merits of any charges of bias, prejudice, interest or disqualification, a timely and sufficient affidavit to that effect must be filed with the agency, i. e., the Board. Upon the filing of such affidavit, that is, before taking any proceedings on the merits of the matter pending before the agency (Board) — in this case, the question of whether or not a conservator should be appointed — the Board must determine whether or not the affidavits are timely and sufficient, and made in good faith, and in doing so, they must accept the facts therein stated to be true. If the Board affirmatively so finds, then the Board must, either by itself or by one of its members or a hearing examiner designated for that purpose, proceed to hear the evidence that may be proffered on the merits in support of such charges, and make a determination thereon. In view of the holdings of the cases cited in Section IX hereof to the effect that a hearing or trial conducted by a biased, prejudiced, interested, and disqualified tribunal or officer is a denial of constitutional due process, and nullifies such proceedings, and that the requirements for an unbiased and disinterested tribunal apply more strictly to an administrative adjudication than to a judicial one, it is clear to me, and I so hold, that the procedure outlined above is a preliminary prerequisite to the right of the Board to hear the charges contained in either or both Board Orders No. 13,372 and No. 13,440, and that such procedure must be followed whether the disqualification is urged against the Hearing Examiner or the Board members, or both. It is further clear that this court does not have jurisdiction to determine the timeliness, sufficiency, or good faith of the charges, or their merits, until there has been an administrative adjudication by the Board on such matters. Mallonee v. Fahey, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030; Home Loan Bank Board v. Mallonee, 9 Cir., 196 F.2d 336. Whether or not a reviewing court would have jurisdiction after such administrative determination prior to the time to review the final Board “decision in the case” is not now necessary to decide. XI. It affirmatively appears by notice filed in the within case that promptly after filing the Amended Complaint in the within proceeding, Petitioner asserted the disqualification of the Hearing Examiner by filing charges with the Board. Thus the Board has, and since June 20, 1960, has had before it charges of bias, prejudice, interest and disqualification on the part of the members thereof, and since at least September 20, 1960, has had before it charges of disqualification of the Hearing Examiner on the ground that he was not appointed under the terms of Section 11 of the Administrative Procedure Act. Neither of these charges has been passed upon by the Board, either as to their timeliness, sufficiency, or good faith, or on the merits. The Hearing Examiner issued the subpoenas here sought to be enforced. If he is disqualified, his act in issuing those subpoenas is void, and the subpoenas would be of no force and effect. The Board issued the Orders for the appointment of the Hearing Examiner, and for the hearing to be held, and the charges against Petitioner. If the Board Members are disqualified because of bias, prejudice, intere