ADDITIONAL VIEWS

Although we join with the majority in the favorable report on this bill, we dissent from committee amendments Nos. 5, 14, and 23.

We believe that the interests of substantial justice will be better served by having the control of the important litigation which affects these governmental agencies rest with the agencies themselves. At the outset, it should be stated, as will appear from the hearings, the Attorney General stands alone in requesting the amendments which the committee has adopted. On the other side are arrayed not only the members of the agencies affected and their counsel, but also the members and counsel for other Government agencies affected by legislation which will be considered concurrently, as well as the practicing bar of all of these agencies and most important of all the Judicial Conference of Senior Circuit Judges of all 10 circuits. This group has worked for 4 years in the preparation of the legislation culminating in H. R. 1470 and the accompanying measures, H. R. 1468 and H. R. 2271. Their conclusions represent a unanimous viewpoint.

In fact, it also appears that the position of the Attorney General has changed in this matter. Originally, through the Solicitor General, approval was accorded to the report of the Judicial Conference, embodying the recommendations of senior circuit judges. This, however, was later withdrawn. The Attorney General appeared in person before the full committee. As a result, his position has been sustained as against that of the eminent and impressive array of witnesses on the other side.

Apart from the "weight of the evidence" which, it is submitted, is overwhelmingly opposed to the suggested committee amendments, there are sound reasons why the control of litigation should rest with the agencies affected, always with the right of the United States to intervene in the person of the Attorney General.

To adopt the committee amendments is objectionable for the following reasons:

(1) They would give to an executive officer, whose tenure of office is particularly subject to political reactions, a control equivalent to a veto power upon the enforceability of the quasi-judicial determinations of the agencies.

(2) They would make the Attorney General the judge in his own case whenever (as is frequently the case) the United States or one of its departments is a litigant before one of the agencies, and review of the order is sought in order to reverse the agency decision.

(3) From the standpoint of efficiency, and to give the reviewing court the most help, defense of the order challenged should be left to the agency, with the right of the United States to intervene carefully protected.

The situation of the Department of Agriculture and the Federal Communications Commission in this respect is closely analogous to

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that of the Interstate Commerce Commission. There have been many instances involving review of orders of the Interstate Commerce Commission which have thrown into bold relief the folly of granting the Attorney General too much control over litigation, and illustrating the soundness of the expert views of the affected agency. Because of this, the ensuing discussion is directed to actual cases involving the Interstate Commerce Commission, but which exemplify by analogy the inadvisability of enlarging the powers of the Attorney General with respect to litigation involving the Department of Agriculture and the Federal Communications Commission.

The argument is advanced by the Attorney General and those who have accepted his viewpoint that the United States has been the party and the Interstate Commerce Commission the intervener since 1910, and that the present system has the merit of antiquity. The debate appearing in the Congressional Record for April 1, 1910, shows clearly that it was never envisaged at that time that the Attorney General would ever be placed in any position except that of defending the Commission's orders to the utmost of his professional ability. The following colloquy between Senator Joseph L. Bristow and Senator Elihu Root is revealing:

Mr. BRISTOW. Suppose that the Commission should make an order and the railroad should attack it, do I understand that the Attorney General would have the discretion as to whether or not he should defend that order? Suppose he believed that the order of the Commission was not justified?

Mr. Rooт. Mr. President, I will answer that without any hesitation or doubt. The Attorney General would be bound upon all and the highest considerations of his professional honor and his official duty to defend the order of the Interstate Commerce Commission in all courts having jurisdiction to review it.

Mr. BRISTOW. Then, he would not have any supervisory authority as to whether or not it should be defended?

Mr. ROOT. Certainly not. It is his business to defend. He is no judge; he is no legislator; he is no reviewing authority.

Senator Root could not foresee developments which would make his prophecy inaccurate in actual results.

The right of the ICC to conduct an independent appeal to the Supreme Court, even when the Attorney General refused to appeal and was content to let a judgment against the validity of the order of the Commission stand, was thoroughly considered and clearly established in Interstate Commerce Commission v. Oregon-Washington R. R. and Navigation Co. (288 U. S. 14).

Generally the Department of Justice and the Interstate Commerce Commission have worked together in the administrative enforcement of the Interstate Commerce Act and in defense of the Commission's orders thereunder. But from time to time, since the United States was required to be named as the defendant, as might be expected there have been differences in view between the Commission and the Department as to questions of policy and of statutory construction. The right of independent representation of the Commission has made it possible for the reviewing courts in such cases to have the benefit of the full development of the facts and the law when the officers of the Department of Justice appointed by the administration in power and the nonpartisan Commission happened to disagree.

There have been a number of such cases. Because the Commission exercised its right to defend its orders, in some of these proceedings the Commission's orders were sustained or constructions of law have

statutory district courts under the Urgent Deficiencies Act, appeal could be taken, as of right, directly to the Supreme Court, which compelled that Court to review many cases where the questions involved were of minor importance, thus adding heavily to the burden of the Supreme Court. He therefore suggested that the Supreme Court be relieved of that superadded burden. Accordingly, the Committee of the Judicial Conference was created in 1942. included as its Chairman, Judge Orie L. Phillips, Senior Circuit Judge of the Tenth Circuit, Commissioner, now Chairman of the Interstate Commerce Commission, Clyde B. Aitchison, and certain circuit and district judges; with whom sat and collaborated the General Counsel of the Interstate Commerce Commission, the Solicitor of the Department of Agriculture, the General Counsel of the Federal Communications Commission, attorneys for the United States Maritime Commission, and the Solicitor General.

This Committee worked for 4 years, doing remarkably thorough research into the practice and review procedure of every one of the agencies affected, through the Supreme Court. Judge Phillips' Committee sent out many tentative drafts of the proposed pieces of legislation to the circuit and district court judges and to practitioners before the administrative bodies. It received all the advice and help it could. The final result was three bills, H. R. 1468, H. R. 1470, and H. R. 2271. These were the fruit of the Committee's considered judgment and were each approved by the Committee, by the Judicial Conference of Senior Circuit Judges, by every one of the judicial councils except one which did not reply, and by a large number of practitioners and other interested parties. The only group of practitioners which did not entirely approve all three bills, objected only to H. R. 1468. They preferred the old three-judge district court practice prescribed by the Urgent Deficiencies Act of 1913 giving direct appeal to the Supreme Court as a matter of right, rather than the procedure prescribed by H. R. 1468, to wit, appeal in most cases from the decision of the agency, on the record therein made, to the circuit court of appeals and certiorari from the decision of the circuit court of appeals to the Supreme Court as in other cases of certiorari. In accordance with Chief Justice Stone's initial suggestion of need, it seemed obvious to Judge Phillips' Committee that the situation now prevailing in the Supreme Court should be remedied by providing for review in that Court upon certiorari and certification under sections 239 and 240 of the Judicial Code. The underlying reason for this conclusion was that this procedure was in keeping with the tradition in our judicial system, assuring a litigant an appeal as of right to some appellate court of real review.

The objectives of the three bills presented by Judge Phillips' Committee were:

1. Relief of the Supreme Court by substituting certiorari for direct appeal, and

2. Creating appeal and full review in a regular three-judge circuit court of appeals for review by a special three-judge district court composed of two district judges and one circuit judge. In most cases these objectives were attained by providing review on the record made by the administrative agency, plus remand to the agency for more evidence where it was shown to be material and excusably not introduced initially.

WHAT H. R. 1470 DOES

1. Provides a simple, fair, clear venue provision instead of one hardly understandable. Here venue is fixed in the circuit wherein the party, or one of the parties, filing a petition for review, resides or has a principal place of business, or in the District of Columbia. In considering this change it should be borne in mind that frequently the initial movement needs no review-he may have won his case, or otherwise become satisfied; and the right of all persons interested to intervene has been preserved.

2. Provides review of Department of Agriculture and Federal Communications Commission orders made after hearings and preparation of the record; and in some cases where the necessity appears, the case may be remanded to the agency for perfection of the record, and possibly for trial de novo in a regular district court.

Shortly thereafter, the United States, as the other defendant in the case, by the Department of Justice, filed an answer to its own petition, in the name of the United States. In other words, counsel for the Department of Justice filed the petition, and then answered it. The answer alleges in substance that, as provided by the law, the United States "is a defendant" in the proceeding, that the Commission is a defendant, and "is authorized by law to appear by its own attorneys and to defend its order without regard to the position which the United States, as a statutory defendant, may take in the case," and that the United States neither admits nor denies any of the allegations of the petition. The Department evidently looks to the Commission to develop what is to be said for the order attacked. Hearing before the three-judge court will be held soon, and it is obvious that here, again, counsel for the Department of Justice will oppose counsel of the Commission.

Other cases might be cited in which the Department of Justice, for its own reasons, has failed to join the Commission. But for the absolute right of independent representation in defense of its orders the Commission, which is "authorized and required to execute and enforce the provisions of the Interstate Commerce Act" (U. S. Code, title 49, sec. 12 (1)), would be powerless to express itself in defense of its own action taken as an agent of Congress, taken by express direction of Congress.

The bill as drafted and approved by the Judicial Conference safeguards all proper rights of the United States in the new types of proceedings by giving the unqualified right of intervention to the Government for the protection of its interests. It should not be amended so as to give "control" of the proceedings at any stage to any interested party-even to the Department of Justice. The "interests of the United States" are either proprietary, and hence are those of a private litigant, or go no farther than to see that the laws are enforced by the agencies charged with the duty of enforcing them. We share the views of the Judicial Conference of Senior Circuit Judges who recommended disapproval of the proposal of the Department of Justice in the following language:

We believe that the provision for unqualified right of intervention by the United States adequately protects the public interest and properly leaves the defense of the order challenged on review proceedings to the administrative agency which entered the order. Counsel for the administrative agency are usually experts in the field, and, in the normal case, take the laboring oar in the defense of proceedings challenging an order. When, in an exceptional case, it is deemed necessary in the public interest for the United States to become a party to the proceeding, the right of intervention is absolute, and the Department of Justice may intervene in the proceeding in behalf of the United States.

Finally, on the point of efficiency and economy, the suggested amendment of the committee will serve to prolong the present "me too" practice to which Judge Maris refers in his testimony. At present, since the United States is the party, a representative of the Attorney General's office must be present during any court review, although the laboring oar is almost invariably borne by the counsel for the agencies who are acknowledged experts in such types of litigation. In the great majority of cases, of course, the interests of the agencies and the United States are identical. The representative of the Attorney General's office contributes little more than pleasant