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mission, and once having segregated that evidence it has no authority to look at the record any further, and I think the courts have said that in their decisions.

Commissioner Freer is exactly right in what he says. That is the law as it has been interpreted by the Supreme Court of the United States. But that construction of the law results in placing the findings of fact by the Commission in a category higher than findings of fact by a district court of the United States.

Another difficulty which a trial attorney has in his cases before the Commission is that he finds little of value to guide him in prior decisions by that body. As is generally known, the Commission really very rarely renders an opinion to accompany its decisions. It usually hands down findings of fact and an injunctive order without accompanying conclusions of law. Nor does the Commission consider that it is bound by its prior decision on similar facts. I was reading the other day from a brief submitted by chief counsel for the Commission in a case pending—now decided—in the Second Circuit Court of Appeals. The attorney for the defendant had contended that the Commission's order would be in consistent with a prior decision by the Commission, and in its brief the Commission replied:

A short and sufficient answer to this contention is that the Commission is no more a prisoner of the doctrine of stare decisis than are the courts. Consequently, even if the Dodson case were identical with the case at bar the Commission would not be bound to follow it if it deemed the decision erroneous.

That is pretty phraseology. It almost sounds as though it migḥt be good law. However, I quoted that statement not for the purpose of entering into a debate on dialectics, or debate the question with my good friend, Mr. Kelly, who is here, of what stare decisis really means, but for the purpose of illustrating the additional burden that is placed on the trial attorney before the Commission.

Mr. O'HARA. Was that statement made before or after one of the Supreme Court Justices had something to say on that same subject?

Mr. Digges. Well, Mr. O'Hara, we could get into a very lengthy discussion here on stare decisis, and time is very much of the essence. If you will pardon me, I would rather stick a little more closely to my knitting at this stage. This statement was made in the year 1945, about the month of April.

My friends at the Commission—and I have a great many thereinsist that lawyers who take the view that I have stated here, are taking on an unnecessary burden, because they say the Commission only decides cases on the preponderance of the evidence anyway. Well, my own view is that these gentlemen have confused substantial evidence with the preponderance of proof. They are entirely different things. Obviously, there must be some substantial evidence, or the Commission's order will fall. But if there is any substantial evidence the court is without discretion in looking to the weight of the evidence. Now, there may very well be some shreds of substantial evidence from which the Commission may weave an order; there may be some shreds of evidence on every point at issue before the Commission, but that is a very different thing from making an order of the Commission stand up by a fair preponderance of the evidence based on the entire record. In any event, I see no reason, no justifiable reason, why the rule of proof which the Commissioners say they enforce

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anyway should not be written into the statute if that, in fact, is the rule of proof which they enforce. But as you gentlemen well know, an attorney for a private party has no right to assume that in his particular case before the Commission it is going to decide on the preponderance of the evidence when the courts have said it is not necessary, when the quotation from the Commission I have just given you shows they know it is not necessary, and when members of the Commission are changing from time to time, and they may change their rules from time to time as the Commissioners change. Or they may change their rules if the Commissioners do not change.

Mr. O'HARA. Your contention is that every case is a new horse race?

Mr. DIGGES. That is right, and no doctrine of stare decisis is ever going to bind them.

Mr. O'HARA. It is refreshing. You never know where you are at any time.

Mr. DIGGES. It is a little difficult, of course, for a trial lawyer who is given the responsibility of protecting his client's interest, to be put in that situation where you don't dare give him any judgment on his course of conduct.

Mr. O'HARA. You are a practicing attorney. Might I ask you, if you please, how do you ever advise any client on any proposition of law, after the pronouncement you just read, and also directing your attention to what one of our Supreme Court Justices said. curious about that.

Mr. DIGGES. Well, sir, I think the only way a conscientious lawyer can advise his client today--although this is apart from what we are talking about—is to look at the statute, look at the decisions, read into the statute and read into the decisions, reasonable and unreasonable, and then if there is any segment of freedom left for his client, to tell him to take that course.

Mr. O'HARA. And then tell him the story about "the uncertainty of the law.”

Mr. Digges. There is another point which the Commission raises in their statement, and I think it is a point of substance and deserves some scrutiny. They say, “Well, now gentlemen, if you are going to limit our powers with regard to passing on facts, you ought to limit the powers of the other administrative agencies," and they cite in their brief the Interstate Commerce Commission, the Securities and Exchange Commission, the National Labor Relations Board, and so forth.

Mr. O'HARA. They are all very sensitive on that point, I understand.

Mr. Digges. My answer to that, as a private lawyer, is this: If I go before the Commission charged with an act of unfair competition and say to the Commission, “Well, now, gentlemen, I don't think I should be enjoined here because my competitors are doing the same thing,” I don't think I'd get to first base. And they would be right about it, because two wrongs have never yet made a right.

But I would like to go a little deeper into that observation, and that requires that we look squarely at what this thing is called administra

tive process.

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There are two kinds of actions which are taken by administrative agencies. There are those which are quasi-legislative in nature, sometimes called the rule-making function, and then there are those which are quasi judicial in nature. And I think we should all keep clearly in mind that whenever the Federal Trade Commission acts pursuant to a specific complaint, it is always acting in a quasi judicial capacity, because its acts are affecting the conduct of a particular person. Sometimes they put companies out of business, sometimes they destroy their trade-mark, or cause them to divest themselves of corporate assets. That function is, and I pray God always will be, a judicial function.

Now, it has always been true, and I hope always will be true, that the judicial acts or quasi-judicial acts of administrative agencies are appealable, just as the decisions of our inferior courts are appealable. So far, so good. But the real essence of this question is, What kind of an appeal? And that again, I think, in this particular situation, comes down to the more specific question, Is the Federal Trade Commission so expert in its domain that its findings of fact should be given greater weight than those of the Federal district courts of the United States? I think not.

The Commission, of course, has experts on its staff, and expert witnesses are adduced before the Commission in litigated matters. But let us make it clear that every member of the Federal Trade Commission is himself a layman with regard to the technical questions which come before him.

Mr. ROGERS. Let me ask you a question right there. Is it true that the members of the Commission delegate their functions with regard to the preparation of decisions to assistants ?

Mr. DIGGES. Well, sir, there are members of the commission here. I can only state to you what my understanding is in that regard. understand that each Commissioner has a legal assistant who is assigned to him, who reads the records, examines briefs, attends the arguments, but so far as I know does not attend the trials. What those legal assistants do with regard to preparing decisions, I don't know.

Now, the members of this Commission are lawyers—at least, the present members of the Commission are lawyers; they are not bacteriologists, doctors, chemists, or nutritionists. They are triers of the facts, just as our Federal district courts are triers of the facts. They are like a jury in some respects. But in one very important respect they are quite unlike a jury, and that is, in the case of a jury the jury sees, appraises, evaluates the witnesses themselves. Now, the Federal Trade Commissioners never see a witness. They pass upon the record, just as an appellate court passes upon the record.

What transpires is that there are hearings before a trial examiner of the Commission, who summarizes the evidence that is taken but who has no power to determine questions of weight, of credibility. All that he does is to pass on a summary of the evidence that has been adduced before the Commission.

Mr. O'HARA. It seems almost ironical, does it not?

Mr. Digges. Well, this is the nature of the administrative process which I think we are here to talk about today.

Now, I ask this question: Can it be said that in those circumstances, where there is no opportunity for a member of the Commission, who have the responsibility of passing on these questions, to see the witnesses, to view them, whether their views should have greater weight than the findings of the Federal district courts of the United States? I think not. I cannot bring myself to believe that there is any special attribute held by the members of the Federal Trade Commission, with a 7-year tenure of office, which is not held by the members of our Federal judiciary, who are appointed for life, subject to good behaviour. I cannot bring myself to believe that the members of the Federal Trade Commission are greater experts on the law of unfair competition than a Learned Hand or a Parker or a Huddleston or a Knox.

Mr. O'HARA. Will you let me ask a question there?
Mr. Digges. Yes, sir.

Mr. O'HARA. Let me call your attention to the fact that patent cases may be tried before the district courts. Most of the Federal judges are certainly not experts on patent laws or on the mechanics of the different patents involved. But that seems to have worked out rather satisfactorily, has it not?

Mr. Digges. I think so. And you have the same sort of questions with regard to the three industries most particularly concerned here, where the appellate courts are passing on the identical questions coming up through the Food and Drug Administration as they pass on coming up from the Federal Trade Commission. But, curiously enough, with regard to the Food and Drug Administration, they have got a greater power of review than they have here.

I hope, gentlemen, that I have contributed something to this hearing by presenting a point of view which I honestly believe is imperfectly understood at the Federal Trade Commission. The appropriations of Congress pay the expenses of this Commission in the preparation of its cases. There are no similar subsidies for a private party before the Commission. In more cases than not is the small businessman unable to afford expensive lawyers, and any relief which would result in giving that man the same standing and the same dignity before the Federal Trade Commission that he is entitled to as a matter of law in the Federal district courts of the United States, would, in my view and in the view of my client, be decidedly in the public interest.

I don't know whether you gentlemen have any questions; that is all I have.

Mr. REECE. In the trial of cases before the Commission, are the employees of other Federal agencies equally available to the Commission and the defendant?

Mr. DIGGES. Mr. Reece, I have had only one experience in that regard. It was several years ago. We desired, in behalf of the respondent, to have the testimony of a representative of the Bureau of Standards. We thought it was important to our case.

He replied to us that he could not testify for the respondent without the prior consent of the Federal Trade Commission, that there was an interdepartmental rule of comity in that respect. This was a number of years ago; I think in 1939. Whether such a rule actually exists, or whether it presently exists, I don't know.

Mr. O'HARA. Don't you have any power of subpena on behalf of your client?

Mr. Digges. Well, there is a point that I brought up in connection with the Attorney General's Committee on Administrative Procedure or Practices, in 1938, where I think an inequity exists.

On a subpena duces tecum, a subpena to produce documentary evidence, or documents, you must file a request for that with the Commission itself, supported by an affidavit showing the alleged materiality of the documents sought to be examined. Now, the Commission can either grant that or turn it down. But the effect is, gentlemen, to put your adversary on notice in advance of the testimony of what you are going to prove. I think that is a real hardship, particularly since you have no right to get a bill of particulars from the Federal Trade Commission as to the particulars of their case against you.

Now, as regards the other subpenas, they may be issued either upon request of the trial examiner, or the Secretary of the Commission. In that respect I have never had any experience of a subpena being unreasonably withheld. But on this question of subpenas to produce documents, I think the rule is harsh and inequitable.

Mr. O'HARA. Permit me to ask, What did happen to this witness from the Bureau of Standards? Did he appear?

Mr. DIGGES. No, sir. The consent and the permission of the trial counsel was not forthcoming, and I didn't get him.

Mr. REECE. The rule you refer to as to subpena duces tecum, is applicable to other departments as well as the Federal Trade Commission ? Mr. Digges. I assume so; yes,

sir. Mr. O'HARA. Mr. Digges, in your practice in appellate matters, I assume the appellate court, or the circuit court, from time to time, have stated that if it was the trier of facts it would have found the facts differently in stated cases, but under the rule established it would not disturb if there was any evidence to support, and affirmed the decision. Mr. Digges. That has been the language of the court, sir, in some

It doesn't happen to have been my own personal experience. I want to say this in all fairness to the Commission: I have never had to appeal a Commission decision, so that what has happened on appeal is something of which I do not have any personal knowledge. But there are cases where the courts, although you can see from the language they were resentful of the harshness of the Commission's orders, felt themselves unable to do anything about it.

In the Segal case, to which reference, I think, was made by prior witness, the Circuit Court of Appeals for the Second Circuit said this in commenting on the obvious bias of one witness for the Commission, and the great body of testimony the other way—it ended up by saying:

Even so, if the Commission wish to rely upon such testimony, we may not intervene whatever may be our own indisposition to accept what he said.

In the Smithsonian Institute case, Judge Swann, of the second circuit, said this:

Until recently this court would have regarded itself as competent to modify an order which imposed a restraint broader than the necessities of the case required. Now the court is forbidden to disturb that measure of relief which the Commission thinks necessary.

That goes back to the point which Dean Stason was discussing. Only because I feel constrained to follow the Herzfeld decision, regardless of my personal viewssays Judge Swannam I willing to concur in affirming paragraph 5 of the order.


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