UNITED STATES COURT OF APPEALS FOR ADMINISTRATION FRIDAY, APRIL, 1, 1938 UNITED STATES SENATE, SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY, Washington, D. C. The subcommittee met, pursuant to call, in the committee room, Capitol, at 10:30 a. m., Senator M. M. Logan (chairman) presiding. Present: Senators Logan (chairman), King, Norris, and Austin. Senator LOGAN. The subcommittee will now come to order. We have met for the purpose of considering S. 3676, a bill to establish a United States Court of Appeals for Administration. At this point the bill may be included in the record. (S, 3676 is here set forth in full, as follows:) [S. 3676, 75th Cong., 3d sess.] A BILL To establish a United States Court of Appeals for Administration to receive, decide, and expedite appeals from Federal commissions, administrative authorities, and tribunals in which the United States is a party or has an interest, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. TITLE I-UNITED STATES COURT OF APPEALS FOR ADMINISTRATION SECTION 1. There is hereby created a United States Court of Appeals for Administration (hereinafter referred to as the court), organized and constituted as follows: (a) The court shall be composed of a chief justice and ten associate justices who shall be selected solely with regard only to their qualifications and fitness to perform the special duties of the court. (b) The chief justice and the associate justices shall be appointed by the President by and with the advice and consent of the Senate. They shall hold office during good behavior and may be retired as provided in section 714 of the Revised Statutes, as amended. (c) The chief justice and each associate justice shall receive a salary of $12,500 per year payable monthly out of the Treasury of the United States. THE CHIEF JUSTICE SEC. 2. In addition to the duties of an associate justice of the court, the chief justice shall have powers and duties as follows: (a) He shall preside over all sessions of the entire court. (b) He shall preside at any hearing or other proceeding before the court or before any division thereof in which he shall participate, unless he shall otherwise direct. (c) In case of inability to attend any session of the entire court, he shall designate an associate justice to preside over that session. (d) He shall have power to divide the court into divisions and shall assign to each division such duties as he may deem necessary and proper. Where a division consists of three or more associate justices he shall designate the presiding justice. 1 (e) He shall, so far as his other duties permit, perform the duties of an associate justice and may assign himself as such to any division of the court. (f) He shall perform such other duties as necessarily attach to his office as chief justice. ORGANIZATION OF THE COURT SEC. 3. The court shall be organized by the chief justice as follows: (a) The chief justice and associate justices may each constitute a division of the court for the purpose of hearing and deciding appeals coming before the court. (b) Special divisions, consisting of three or more associate justices, may froin time to time be formed by the chief justice for the purpose of hearing and deciding appeals when in the judgment of the chief justice such special division is necessary to effect the expeditious administration of justice or a hearing by more than one justice is required by law. The chief justice shall designate the presiding justice of such division. (c) The court may from time to time be divided by the chief justice into sections when in his judgment such division will expedite the administration of justice and permit the handling of related cases by justices who are expert and experienced in the subject matter thereof. The justices to constitute each section shall from time to time be designated by the chief justice with due regard for their several qualifications by way of learning, experience, and special training for the work of the section to which they are assigned. (d) The decision of any division shall be deemed the decision of the court and shall be final unless, within thirty days from the date the decision is entered, the party of record adversely affected by the judgment files a petition for a review of such decision by the whole court. (e) The decision of any division of the court shall be reviewed by the court whenever, in the opinion of the chief justice, such review is necessary, or upon the written request of any associate justice. JURISDICTION SEC. 4. THE JURISDICTION OF THE COURT.-(a) The jurisdiction of the court shall extend to those cases hereinafter enumerated in subsection (d) hereof in which there is a dispute between administrative authority and an individual or individuals or between the administrative authority and a corporation or corporations, but it shall not extend to cases where there is a dispute between individuals or private corporations or between an individual or individuals and a private corporation or corporations arising out of administrative action. (b) Preliminary to any right to a review on appeal by this court of any administrative decision or by order of an administrative authority or tribunal (1) the order or decision appealed from must have become a final order or decision of the authority or tribunal issuing or promulgating it. (2) the parties affected by such order or decision must have had notice and an opportunity to be heard and present evidence including the testimony of witnesses at a hearing. (3) there must be a record of the proceedings before such authority or tribunal. (4) there must be a statutory right either to a review of such final order or decision by a United States court or to proceed de novo before a United States court. (c) The court shall have exclusive jurisdiction to review on appeal all final orders and decisions of the following administrative authorities and tribunals which are now subject to review by the Federal courts as indicated in section (d) of this Act and such other jurisdiction as Congress may from time to time confer upon it. All such jurisdiction now vested in the United States circuit courts of appeals, the United States Court of Appeals for the District of Columbia, the United States district courts, and the United States Court for the District of Columbia is hereby abolished as to all such orders and decisions becoming final ninety days after the effective date of the passage of this Act. (d) The jurisdiction of the court shall extend to the following orders and decisions: (1) Decisions of the United States Board of Tax Appeals (26 U. S. C. 641). (2) Decisions of the Processing Tax Board of Review in the Treasury Department in respect to the processing tax (7 U. S. C. 648). (3) Orders of the Interstate Commerce Commission, except orders for the payment of money, as follows: (A) Orders under the Interstate Commerce Act. (B) Cease and desist orders under the Clayton Act (15 U. S. C. 21). (C) Cease and desist orders under the Motor Vehicle Act. (D) Orders issued under the authority of the Motor Carriers Act (49 U. S. C. 305 (h); 36 Stat. 1148-1149; 38 Stat. 219; 28 U. S. C. 43). (E) Negative orders under Motors Carriers Act issued solely because of a supposed lack of power (49 U. S. C. 305 (h); 28 U. S. C. 43). (4) The following orders of the Federal Communications Commission: (A) General Orders of the Commission (47 U. S. C. 402 (a)). (C) Orders and decisions in respect to construction permit, radio-station license and renewal, and modification and suspension of license (47 U. S. C. 402 (b)). (D) Decisions in respect to radio requirements, installations, or exemptions from prescribed radio requirements on board ship (47 U. S. C. 361). (5) Orders and decisions of the Commodities Exchange Commission (A) In refusal to designate a board of trade as a contract market (7 U. S. C. 8). (B) In re suspension or revocation of the designation of a board of trade as a contract market (7 U. S. C. 8). (6) Orders of the Federal Power Commission in respect to the regulation of electric companies engaged in interstate commerce (49 Stat. 860-861). (7) Orders of the Federal Trade Commission: (A) Cease and desist orders under the Clayton Act (15 U. S. C. 21). (B) Cease and desist orders under the Federal Trade Commission Act (15 U. S. C. 45). (8) Orders of the National Bituminous Coal Commission under the Bituminous Coal Act of 1937 (sec. 6 (b), 50 Stat. 85). (9) Orders of the National Labor Relations Board: Cease and desist orders from unfair labor practices (29 U. S. C. 160 (e) (i)). (10) Orders of the Securities and Exchange Commission (A) In respect to the issue of securities (15 U. S. C. 77 (i)). (B) In respect to security exchanges (15 U. S. C. 78 (y)). (C) Under Public Utilities Act of 1935 (15 U. S. C. 79). (11) Orders of the United States Maritime Commission: Orders of the Commission under Shipping Act of 1916 (39 Stat. -) and the Merchant Marine Act of 1936 (46 U. S. C. 1114). (12) Orders of the Secretary of Agriculture as follows: (A) Cease and desist orders under the Packers and Stockyards Act (7 U. S. C. 194). (B) Orders suspending or revoking the privilege of trading in a contract market (7 U. S. Č. 9). (C) Cease and desist orders to prevent monopolizing or restraining trade and unduly enhancing prices of associations of producers of agricultural products (7 U. S. C. 292). (13) Cease and desist orders of the Board of Governors of the Federal Reserve System in respect to interlocking directorates and officers (15 U. S. C. 19, 21). (14) Cease and desist orders of the Secretary of Commerce in respect to monopolization or restraint of trade in the fishing industry (15 U. S. C. 522). (15) Orders of the Post Office Department requiring publications to be sent by freight (39 U. S. C. 576). (16) Orders of the Federal Alcohol Administration in the Treasury Department: In re denying application for or the revocation, suspension, or annulment of a basic permit (27 U. S. C. 204 (h)). SEC. 5. (a) The decisions and orders of the commissions, administrative tribunals, and authorities designated in section 5 may be reviewed by the court if a petition for such review is filed with the clerk of the court by either party within sixty days after the decision or order is promulgated or issued. (b) No objection to an order or decision shall be considered by the court unless such objection shall have been urged before the commission, tribunal, or authority issuing the decision or order from which the appeal is taken. SEC. 6. Questions coming before the court may be certified to the Supreme Court of the United States as provided in section 239 of the Judicial Code, as amended. SEC. 7. The judgment of the court shall be final, except that it shall be subject to review by the Supreme Court of the United States upon certiorari in the manner provided in section 240 of the Judicial Code, as amended. SEC. 8. The court and the Supreme Court shall have power to impose damages in any case where the decision or order is affirmed and it appears that the petition for review was filed merely for delay. SEC. 9. (a) The filing of a petition for review shall not operate as a stay of execution of the order or decision appealed from; but the appellant may, at the time of filing the petition for review, petition the court for such stay of execution which may be granted at the discretion of the court. (b) In any case where a stay of execution is granted, the court may require a bond in such amount as it may consider reasonable and adequate. SEC. 10. The court is authorized to adopt rules respecting review of the orders and decisions coming before it and the conduct of proceedings upon review, and the proceedings of the court and its divisions shall be conducted in accordance with such rules of procedure and practice as the court may prescribe. SEC. 11. The review by the court shall be limited to questions of law, and the findings of fact of the commission, administrative authority, or tribunal, if supported by substantial evidence, shall be conclusive. SEC. 12. If either party shall apply to the court to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence Iat the hearing of the cause, the court may order additional evidence to be taken before the tribunal or authority and the tribunal or authority may modify its findings as to facts by reason of the additional evidence, and it shall file such modified new findings which if supported by evidence shall be conclusive, and it may file its recommendations for the modifying or setting aside of the original order or decision. MISCELLANEOUS SEC. 13. (a) The chief justice, with the approval of a majority of the court, may appoint and fix the salaries of a chief clerk, who shall act as clerk of the court, and such deputy clerks as in the opinion of the chief justice may be necessary; a reporter who shall be in charge of the collection and reporting of decisions of the court and each division thereof; a legal staff, not to exceed one attorney to each division; and such law clerks as in the opinion of the chief justice may be necessary. (b) The chief justice and each associate justice may appoint and prescribe the duties of a secretary at an annual salary not to exceed $3,000. (c) The chief clerk shall receive a salary not to exceed $7,500 per annum. The deputy clerks shall receive a salary not to exceed $2,500 per annum. The reporter shall receive a salary not to exceed $5,000 per annum. The attorneys shall each receive a salary not to exceed $7,500 per annum. The law clerks shall each receive a salary not to exceed $3,600 per annum. (d) The chief justice, with the approval of a majority of the court, shall have authority, subject to the provisions of the civil-service laws and the Classification Act of 1923, as amended, to appoint such stenographers, clerks, and other employees as are necessary in the execution of its functions. SEC. 14. The court may make such expenditures (including expenditures for rent and personal services at the seat of government and elsewhere, for office furniture and supplies, lawbooks, periodicals, and books of reference; and for printing and binding) as may be necessary for the execution of its functions and as from time to time may be appropriated for by Congress. All expenditures of the court, including all necessary expenses for transportation incurred by the justices or employees of the court upon any official business of the court at places other than in the District of Columbia, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the chief clerk of the court. SEC. 15. The court shall provide for the publication of reports of its decisions in such form and manner as may be best adapted for public information and use, and such authorized publications shall be competent evidence of the decisions of the court therein contained in all courts of the United States without any further proof or authentication thereof. SEC. 16. The court shall be located in the District of Columbia, where its general sessions shall be held; but whenever, in the opinion of the chief justice, the convenience of the public or of the parties may be promoted or delay or expense prevented thereby, a division of the court may hold special sessions in any part of the United States. ADMINISTRATIVE PROVISIONS SEC. 17. (a) If any person fails or neglects to obey any order of a commission or administrative authority which may be reviewed on appeal as provided in this Act, when such order has become final and no stay of execution has been granted by the court, and while the same is in effect, whether a petition for review has been filed or not, the commission or any party injured thereby, or the United States by its Attorney General, may apply to the appropriate district court of the United States for the enforcement of such order. If, after hearing, that court determines that the order was regularly made and duly served, that it has become final, and that the person is in disobedience of the same, the court shall enforce obedience to such order by writ of injunction or other proper process, mandatory or otherwise, to restrain such person or the officers, agents, or representatives of such person, from further disobedience of such order, or to enjoin upon it or them obedience to same. And the court shall assess a fine not to exceed $100 per day for each day such person fails or neglects to obey such order. (b) DEFINITIONS. As used in this section, the word "person" includes a corporation, partnership, or trust. Senator LOGAN. I asked Mr. Sebree, of the Board of Tax Appeals, to come this morning to testify. I might say requests have been made by the American Bar Association to be heard. I will take this occasion to say that everyone who desires to be heard, with certain exceptions which I will not mention here, will be heard at any time to suit the convenience of the witnesses and the committee. Colonel McGuire is here. He has been working on this matter for a long time. I want to hear his testimony, which I am sure the committee will be interested in. We will first hear Mr. Sebree this morning, and then consider when we will have another hearing. STATEMENT OF J. EMMETT SEBREE, WASHINGTON, D. C. Senator LOGAN. Please state your name for the record. Senator LOGAN. Where do you reside? Mr. SEBREE. I reside at 1629 Columbia Road. Senator LOGAN. What is your position here? Mr. SEBREE. I am a member of the legal staff of the Board of Tax Appeals, and I am professor of administrative law in National University. Senator LOGAN. How long have you been connected with the Board of Tax Appeals? Mr. SEBREE. About 18 years. Senator LOGAN. How long have you been interested in this program? Mr. SEBREE. Well, since 1918; not all the time, of course. Senator LOGAN. I will ask you to proceed and make any statement about this bill that may occur to you and, after you have finished your statement, the members of the subcommittee will perhaps desire to ask you certain questions touching the matter. You may proceed. Senator KING. You drew this bill, did you not? Mr. SEBREE. I assisted in drawing it. I had a good deal of help. In order to get the picture before the committee, I have noted some historical facts as a background leading up to the necessity for such a court as is included in this bill. I would like to read this into the record as my statement. Senator LOGAN. You may proceed to do so. Mr. SEBREE. One of the most important and the most difficult problems of government today is that of public administration, and arising out of public administration is the problem of the adjudication of controversies arising out of administrative action. Perhaps we can better appreciate the problem if we first examine our administrative system as it has been developed by the demands of a country which has grown from the Thirteen Colonies of 1789 to the greatest commercial Nation in the world in 1938. |