time it would mean quadrupling, perhaps far more, the personnel of the courts, if the courts were to take it over. If the district courts were to take over. the quasi-judicial administrative duties of the various administrative agencies, the courts would be so overwhelmed that they would have to be many times as large as they are now. The very large personnel rosters of the various. agencies and the complexity of the matters with which those agencies are concerned clearly demonstrate, I think, that the courts could not handle the agency quasi-judicial functions without incurring a tremendous burden, practically impossible to bear without such an expansion of the courts as is not in my view even within the bounds of contemplation. I am not sure such a step would be a wise thing. I am not sure it would have been wise even in the beginning to place all adjudicative functions in the courts rather than the administrative agencies because it is true that the administrators do build up a body of expert knowledge. At the beginning they are probably no more expert than the rest of us. They are lawyers, and some of them are laymen. They acquire their expertness as time goes on. However, they do eventually build up over the years a body of knowledge, and they do build up, it must be said with respect to most of them, a judicial attitude of mind in their hearings, so that they really desire to hold fair hearings and to reach a fair and judicial conclusion in their initial adjudicatory proceeding. It seems to me on the whole that it is better that the initial adjudicatory action should not be put in either the United States district courts or in the circuit court of appeals. Certainly it should never be put in the latter, because they are courts of review and not trial courts. Mr. WOLVERTON. Your views in that respect apply to whether it is the circuit court of appeals or the district court? Judge STEPHENS. I am sorry, sir? Mr. WOLVERTON. I say, your views then are that it would be equally inadvisable to place it in the district court or the circuit court of appeals? Judge STEPHENS. Yes, sir; that is my view, and I feel sure that it would be the view of the entire Judicial Conference of the United States. I wish to add, if I may, that I am in sympathy with the requirements of Congress in the Administrative Procedure Act, and I am sure that all judges in the district courts and circuit courts of appeal are fully in sympathy with the requirements of the Congress in the Administrative Procedure Act. Wherever we do review the actions of the commissions we do so upon the whole record in determining whether the administrative ruling is supported by substantial evidence. While I had to obey the rule, because I am bound by the decisions of the Supreme Court as a circuit judge, I did not at all sympathize with--and I am sure I reflect the view of the whole circuit court of appeals when I say we did not at all sympathize with restricted powers of review accorded to us by the earlier decisions of the Supreme Court.. But the Supreme Court has recanted and confessed its error in those respects. in these two recent cases-the Universal Camera and the Pittsburgh cases. And the Congress has also corrected the rule governing our scope of review in the Administrative Procedure Act. I think that the litigants in court and the industries of the country under the supervision of the Administrators are sufficiently protected by the requirements of Congress under the Administrative Procedure Act and by these new decisions of the Supreme Court. I should add, in answer to Congressman O'Hara's question in respect of the advis ability of putting a review of the Administrator's orders under H. R. 3298 in the United States district courts, one further point, to wit: That to do so would be undesirable because of the extreme delay that this would cause in the administrative-judicial process. This process, if the review were put in the United States district courts, would include four steps: (1) The hearing before the Administrator; (2) review in a district court; (3) appeal to a United States court of appeals; and (4) possible review in the Supreme Court on certiorari. I would answer your question, Congressman Wolverton, by saying I think it would be unwise from the standpoint of business of the country to put review of proceedings of the Administrators in the United States district courts, and it would be unthinkable to put it in the circuit court of appeals. Mr. WOLVERTON. I am personally of the opinion that you have given very substantial reasons for the conclusions you have reached both with respect to the circuit court of appeals and the district courts. I am inclined to believe that the recent decisions of the Supreme Court, to which you have referred, the Universal Camera case and the Pittsburgh case, go a long way toward removing many of the arguments that I have heard presented before this committee many, many, many times in hearings on legislation that has been before us with respect to the necessity of a trial de novo. I am in full accord with the views you have expressed that with that expansion of review, as outlined by the Supreme Court. It will prove most helpful. I am also impressed with the fact that the adjudicatory powers that have been assigned by State legislatures, as well as by the Congress, to these different regulatory commissions, has become so general and has become so great a part of our system that it would be difficult to justify in a particular instance why there should be a deviation from the general practice at the present time. I think the importance of this has been recognized, if I may make a personal reference, by Chief Justice Vanderbilt of the New Jersey Supreme Court, whom you probably know as a former president of the American Bar Association, and of the work that he has done and the interest he has taken over a period of years in developing administrative procedure before the different commissions, both State and Federal. That is all I have to say. We are glad to have your opinion, and I am certain that if Mr. O'Hara were here he would appreciate the importance of your statement. Judge STEPHENS. Thank you, sir. I would like to add just this, before I close: I can assure you that the circuit courts of appeals of this country, who are the courts of last resort in the Federal system except in the few cases that go to the Supreme Court, feel a very real responsibility in dealing with these Commission appeals. We feel the same responsibility we do in reviewing the decisions of the United States district courts, to see to it that the litigants have had a fair hearing and that the Administrator's findings are supported by substantial evidence and are not arbitrary. I might remind you that in the Administrative Procedure Act passed by this Congress, in the review section it has been made. necessary for the circuit courts of appeals to go as far as this: You have said to us: So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence. viewed on the whole record. So we do have, imposed by you, a solemn responsibility, and I assure you we discharge it with deliberation and pains. I thank you very much for your attention. Before I close may I express the regret of my colleague, Judge Biggs of the Third Circuit Court of Appeals, at not being able to be here today. Chief Justice Vinson asked both of us to come to be of assistance to the committee. Judge Biggs was unavoidably detained by judicial duties. He is familiar with my views. He has read my statement and participates in it. The CHAIRMAN. We appreciate your statement. Mr. DOLLIVER. Mr. Chairman? The CHAIRMAN. Mr. Dolliver. Mr. DOLLIVER. I just want to clear up one point of perhaps a misunderstanding in my mind. Actually what you are saying here is that you are not in favor of a trial de novo either in the district court or in the circuit court of appeals. Judge STEPHENS. That is right, sir. Mr. DOLLIVER. But you have no particular objection to a review? Judge STEPHENS. Not at all. Mr. DOLLIVER. You think that would be a proper procedure, to review the decision of this or any other administrative group? Judge STEPHENS. Of course that is a matter of congressional policy, but since you asked me I would be glad to answer you frankly. Mr. DOLLIVER. I would like to have you do so. Judge STEPHENS. I think that the ultimate orders of all administrators ought to be subject to judicial review. Mr. DOLLIVER. Would you say that they should go to the district court or to the circuit court of appeals? Judge STEPHENS. I think that the pattern already established by Congress of having the Administrator hold a hearing, if his action is adjudicatory or of a quasi judicial character, having him hold a hearing and make a record and take evidence and make findings of fact, and then having the review go immediately to the circuit court of appeals, just as the district court decisions go to the circuit court of appeals, is sufficient. Mr. DOLLIVER. In other words the record would be made by the administrator for review by the circuit court of appeals? Judge STEPHENS. That is right. Mr. DOLLIVER. Thank you. That is all. 84416-51-15 Mr. CARLYLE. Mr. Chairman? The CHAIRMAN. Mr. Carlyle. Mr. CARLYLE. Judge Stephens, a jury trial is never allowed in the circuit court of appeals, is it? Judge STEPHENS. I have never heard of one, sir. It is anomalous to have any trial in the circuit court of appeals. There is a minor exception, to be quite explicit. Sometimes when a particular type of case comes into the circuit court of appeals pendente lite relief must be allowed. It is extremely rare, but, for example, in the Circuit Court of Appeals for the District of Columbia Circuit, of which I am the chief judge, because Congress has the power to legislate for the District as well as the country generally, we have all the power of a circuit court of appeals and also the power of the common law courts, because there are no State courts. We perform both functions. Therefore, we get cases such as a divorce appeal, from the United States district court, which also has both common law and the Federal functions, in the circuit court of appeals. If such an appeal reached us, there might be an application to the court of appeals for support money for the wife pending the appeal. We would have to act upon it. In that event we might have to receive some evidence in the form of affidavits. That is as close as we ever get to a trial, except in a contempt proceeding originating in a court of appeals, and that is a rare occurrence. Mr. CARLYLE. If a trial de novo should be written into this statute where would the jury come from? Judge STEPHENS. It is not understandable where it would come from. I think I ought to preface my answer by saying this: The action of the Administrator under this bill is not, I think, in the nature of action in a criminal proceeding. It is true, of course, that the violation of the Food, Drug and Cosmetic Act may be followed by criminal prosecution, but so far as the Administrator's action under this bill is concerned, it is not in the nature of a criminal proceeding, and, therefore, a jury would ordinarily not be contemplated at all. But if the jury were required I do not know where we would get it. We have no witness facilities. We have no court reporter. It is utterly an anomalous proposition to have a de novo trial in the usual sense of that term in a circuit court of appeals. Mr. CARLYLE. You do not have a jury box. Judge STEPHENS. We have no jury box. We have no witness chair. We sit and listen to arguments. We read records and we read briefs, and we write opinions. Perhaps I should say that both Mr. Waller, the attorney for the Retail Druggists Association, whom I have been told is one of the proponents of this Act, and Mr. Goodrich, one of the counsel for the Administrator, have indicated to me that they have no interest at all in the de novo provision in the circuit court of appeals. I think Mr. Ewing in his statement made a similar declaration. I am sorry to have taken so much of your time, gentlemen, but from the standpoint of the Judicial Conference of the United States it is extremely important that we do not have a precedent established by Congress of having trials in the circuit courts of appeals. The CHAIRMAN. We appreciate your statement. Judge STEPHENS. Yes, sir. Mr. HESELTON. It is my recollection, Judge, that you said the other day the Universal Camera case was an unanimous opinion. Judge STEPHENS. I believe so. I have it here. Mr. HESELTON. In view of the importance of the decision I did want this fact in this record. Judge STEPHENS. Yes; Congressman Heselton. It is the unanimous opinion in the subject with which we are now dealing. There was a separate opinion by Mr. Justice Black and Mr. Justice Douglas on one aspect of the case, but it does not have to do with the subject we are now discussing. Mr. HESELTON. Thank you. The CHAIRMAN. Thank you, Judge, for your fine presentation. Judge STEPHENS. Thank you, gentlemen, for the privilege of coming here. The CHAIRMAN. The committee will stand adjourned until further order of the Chair. Mr. WOLVERTON. The witness who preceded Judge Stephens stepped aside after his statement without opportunity for the committee to question him. I am wondering whether any members desire to do so. The CHAIRMAN. If there are no questions, this will conclude the hearings on this bill. Mr. WOLVERTON. Mr. Chairman, I would request that Mr. Fischelis be allowed to submit for the record certain material which has a bearing upon the bill. I understood he had made the request when he gave his testimony. I assume he will have the right to do so. I ask that it be granted. I have had an opportunity to look over it, and it is very important material. The CHAIRMAN. That will be allowed. (The information referred to appears on p. 132.) Mr. HALE. Mr. Chairman, I have a very brief letter here from Pierce's Proprietaries, Inc., in reference to this bill, which is succinct and helpful. I would like to have unanimous consent to include it in the record. The CHAIRMAN. That will be all right. (The letter is as follows:) Re: Durham bill, H. R. 3298. Representative ROBERT HALE, PIERCE'S PROPRIETARIES, INC., Buffalo 11, N. Y., May 2, 1951. House Office Building, Washington, D. C. DEAR MR. HALE: H. R. 3298 by Mr. Durham would authorize the Food and Drug Administration to place practically any drug on the list that must be sold only on prescription. The Food and Drug Administration should not have this life-and-death power to prevent drugs from being sold over the counter to consumers, and this authority isn't necessary. The present food and drug law adequately protects the consumer and I urge you to oppose the Durham bill and particularly this provision. Sincerely yours, R. V. PIERCE, President. |