Professional Documents
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Source: Harvard Law Review, Vol. 71, No. 8 (Jun., 1958), pp. 1541-1555
Published by: The Harvard Law Review Association
Stable URL: http://www.jstor.org/stable/1337928
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I958] CONCERTED REFUSALS TO DEAL I54I
the league could not survive without the existence of the weaker teams
seems highly speculative, and should not justify the artificial support of
teams which cannot survive free competition.
The extent to which a particular refusal to deal by a joint venture
restrains trade may make such a refusal to deal unreasonable although
it otherwise reasonably furthers the joint venture. Although the Su-
preme Court has suggested in one case that the relative size and power
of the boycotters are irrelevant to the legality of the refusal to deal,68
a position supported by several commentators,69 its other opinions gen-
erally suggest a contrary philosophy,70 as do those of the great major-
ity of lower federal courts.7' It seems clear that as the economic power
of the group increases the need for intervention becomes more certain.72
To permit a group of individuals collectively to refuse to deal is to
grant them the privilege of acting as one individual for certain pur-
poses; thus group boycotts should be restrained, just as individual boy-
cotts are restrained,73 when they result in too much economic power.74
68 Apex Hosiery Co. v. Leader, 3I0 U.S. 469, 485 (I940) (dictum).
69 E.g., Kirkpatrick, supra note 57, at 392-93.
70Thus in most boycott cases the Court has mentioned the extent of market
control by the group. E.g., United States v. First Nat'l Pictures, Inc., 282 U.S. 44, 54
(I930).
71 E.g., Mines v. Scribner, I47 Fed. 927 (S.D.N.Y. i906).
72 See generally Adelman, Effective Competition and the A
HARV. L. REV. I289 (1948); Stocking, The Rule of Reason, Workable Competition,
and Monopoly, 64 YALE L.J. II07 (I955).
73 See p. I533 supra.
74 It would seem, however, that monopoly power "thrust upon" the group
should be excepted from such restraint. See ATTORNEY GENERAL'S NATIONAL COM-
MITTEE TO STUDY THE ANTITRUST LAWS, REPORT 56-6o (I955).
1 The term "subpoena" means those commands directed at obtaining documentary
or testimonial evidence before an agency investigation or hearing. The term
"order" refers to any disposition which is the final result of the agency's hearing
or investigation.
2 By this term is meant those large agencies with a commission type of organ-
ization, established by Congress and independent of the executive branch, with
regulatory duties in the enforcement of a statute, generally within the area of the
commerce clause. No sharp line of distinction exists between these dozen agencies
and the numerous others with important regulatory powers. See Evins, Federal
Regulatory Commissions-Arms of Congress, 24 ICC PRAC. J. 699 (I957).
3A variety of other sanctions may be available including power to apply for
an injunction, e.g., 52 Stat. I025 (I938), as amended, 49 U.S.C. ? 647 (I952)
(CAB); the right to suspend or cancel privileges or licenses, see Note, 5I HARV.
L. REV. 3I2, 319 (I937); the "private administrative remedies," e.g., 48 Stat. 82
(933), I5 U.S.C. ? 77k (I952) (SEC); and criminal sanctions, e.g., 38 Stat. 722,
723 (1914), I5 U.S.C. ?? 49, 50 (1952) (FTC). See generally DAVIS, ADMINISTRA-
TIVE LAW 750-52 (I95I).
4 Criminal sanctions are contained in a majority of the statutes. See, e.g., 52
Stat. 828 (1938), I5 U.S.C. ?? 717m(c), (d) (FPC).
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I542 HARVARD LAW REVIEW [Vol. 7I
the power to cite for contempt has never been put directly into the
hands of a federal agency; rather the assistance of a federal court is
obtained and its contempt power enlisted in support of the agency
by "enforcement" of the subpoena or order.5 The procedures which
the courts have developed to this end represent a compromise between
an effort to preserve their position as independent judicial overseers
of the administrative process and a desire not to interfere unduly
with the performance by the agencies of their statutory duties. It is
the purpose of this Note to describe the present balance struck by the
courts, to illustrate the limitations of this development, and to suggest
some considerations relevant to any legislative action in this area.6
I. EXISTING PROCEDURE
See Penfield Co. v. SEC, 330 U.S. 585, 603-04 (I947) (dissenting opinion).
6A specific discussion of the policy considerations involved in further g
of power to administrative agencies is beyond the scope of this Note. For brief
excerpts representing a number of diverse views, see GELLHORN & BYSE, ADMIN-
ISTRATIVE LAW I-59 (I954).
"E.g., 38 Stat. 722 (I9I4), I5 U.S.C. ? 49 (i952) (subpoena); 48 Stat. 899
0934), as amended, I5 U.S.C. ? 78u(e) (1952) (order). In a few cases, instead of
conferring the power on the agency to apply for enforcement, the statute confers
jurisdiction on the court to hear the application for subpoena enforcement. E.g.,
49 Stat. 456 (i935), as amended, 29 U.S.C. ? i6i(2) (1952) (NLRB). Procedure,
however, is the same. In the case of the NLRB, 49 Stat. 454 (i935), as amended,
29 U.S.C. ? i6o(e) (0952), even if there has been compliance with the order,
enforcement may be obtained. NLRB v. Mexia Textile Mills, Inc., 339 U.S. 563
(1950). The respondent may seek review which, if there has been disobedience,
may also result in enforcement of the order. FTC v. Ruberoid Co., 343 U.S. 470
(I952) (dictum). In those cases in which the statute provides penalties for
violation of the unenforced order, see note 4 supra, the party subject to the order
would appear to have the burden of taking the initiative to seek review. However,
although he may be under the same sanction for refusing to obey an agency
subpoena, the respondent cannot similarly have it reviewed until the agency
petitions for enforcement. FTC v. Claire Furnace Co., 274 U.S. i6o (I927). While
any other rule would be seriously disruptive of the administrative process, there
would appear to be some doubt, especially in light of the lack of discretion in
the courts when enforcing subpoenas, see p. I544 infra, as to the appropriateness of
the use of criminal sanctions. See Note, 35 COLUM. L. REV. 578, 589 (I935).
8 Although statutes do not expressly provide for appeal from enforcement of
a subpoena, it has been held an appealable final order. Penfield Co. v. SEC, I43
F.2d 746 (gth Cir.), cert. denied, 323 U.S. 768 (i944).
9 The statutes are silent with regard to second-stage enforcement of orders.
As concerns subpoenas, they provide only that in the event of contumacy the
court may adjudge respondent in contempt. E.g., 48 Stat. IO96 (i934), 47 U.S.C.
? 409(g) (1952). In both cases the contempt seems one within the general con-
tempt power of the federal courts. See iX U.S.C. ? 40I(3) (1952).
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I958] CONTEMPT OF FEDERAL AGENCIES I543
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1544 HARVARD LAW REVIEW [Vol. 7I
19 Hermann v. CAB, 237 F.2d 359, 362 (gth Cir. I956), 45 GEO. L.J. 683 (I957).
The opinion of the trial court is not reported.
20 The Court cited Endicott Johnson, Oklahoma Press and Brown v. United
States, 276 U.S. I34 (I928). The Court noted that respondent had "ample
opportunities for objecting, on relevant grounds, to the admissibility into evidence
of any particular document." 353 U.S. at 324. This appears to have reference
to the agency hearing. The issue would then be reviewable with the final agency
order but, being interlocutory, seemingly not before. Cf. Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 4I (I938).
21 Compare Ex parte Young, 209 U.S. I23 (ig08), with Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 4I (I938).
22 NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292 (I939). The
subsequent enactment of ? io(e) of the Administrative Procedure Act, 6o Stat.
243 (0946), 5 U.S.C. ? ioog(e) (1952), has been held merely to restate existing
law. Atchison, T. & S.F. Ry. v. United States, I30 F. Supp. 76 (E.D. Mo.), aff'd
per curiam, 350 U.S. 892 (I955).
23 NLRB v. Express Publishing Co., 3I2 U.S. 426 (I94I). When respondent
has shown a disposition to violate the act in any way he can, the order may be a
blanket prohibition against any violation of the act. May Dep't Stores Co. v.
NLRB, 326 U.S. 376 (I945). The agency will draw its order as broadly as
possible in the first instance to impose the greatest restraint on respondent and to
facilitate showing a violation when that is a condition precedent to enforcement.
Allowing the agency to "particularize" its order after enforcement tends to
encourage it to draw the original order broadly. See 6o HARV. L. REV. 973 (I9
In those cases in which the court enforces a broad order, the respondent may be
deprived of a first-stage proceeding in the event of a later, unrelated violation.
The agency may, however, proceed against the respondent de novo since, though
the agency's order is merged in the court's degree, the respondent is still covered by
the act. Wallace Corp. v. NLRB, I59 F.2d 952 (4th Cir. I947). If the order
as enforced is too narrow, however, the respondent may accomplish his illegal
purpose before an effective sanction can be applied. The courts are likely to use
the contempt sanction more freely if the enforced order is narrow. See Note, 54
COLUM. L. REV. 603, 6II-I2 (I954). If the order is so broad as to be ambiguous,
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I958] CONTEMPT OF FEDERAL AGENCIES I545
the court will not adjudge a violation of it contempt. NLRB v. Bell Oil & Gas Co.,
98 F.2d 406 (5th Cir. I938).
24 United States v. Morton Salt Co., 338 U.S. 632 (1950).
25 See American Chain & Cable Co. v. FTC, I42 F.2d gog (4th Cir. I944) (type
of relief essentially administrative and within primary jurisdiction of agency alone).
26 See NLRB v. New York Merchandise Co., I34 F.2d 949 (2d Cir. I943). When
disobedience is a condition precedent to enforcement, it will be necessary for the
agency to make a new showing of violation of the new order.
27 Kansas City Power & Light Co. v. NLRB, I37 F.2d 77, 79 (8th Cir. I943).
28 Bowman Dairy Co. v. United States, 34I U.S. 2I4, 22I (1950). In the case
of an order, good in part and bad in part, if the violation is of the acceptable
portion, a contempt citation is not necessarily barred. Cf. NLRB v. M. Lowen-
stein & Sons, Inc., I2I F.2d 673 (2d Cir. I941).
29 See Kansas City Power & Light Co. v. NLRB, I37 F.2d 77 (8th Cir. I943).
30 See, e.g., NLRB v. Giannasca, II9 F.2d 756 (2d Cir. I941).
3' NLRB v. Retail Clerks, 203 F.2d i65 (gth Cir. I953); NLRB v. Western
Cartridge Co., Civil No. I5, 2d Cir., Jan. i8, I945 (unreported). But see NLRB
v. Bird Mach. Co., I74 F.2d 404 (ist Cir. I949); Wallace v. NLRB, I59 F.2d 952
(4th Cir. I947).
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I546 HARVARD LAW REVIEW [Vol. 7I
32 NLRB v. Remington Rand, Inc., I30 F.2d 919, 937 (2d Cir. I942) (co
curring opinion). See also Corning Glass Works v. NLRB, I29 F.2d 967, 973
(2d Cir. I942) (dissenting opinion); NLRB v. Giannasca, II9 F.2d 756, 759
(2d Cir. I94I) (concurring opinion).
" Cf. NLRB v. Warren Co., 350 U.S. I07 (I955); United States v. Morton
Salt Co., 338 U.S. 632 (I950).
34 Note, 54 COLUM. L. REV. 603 (I954). The author points out that the
present procedure results in a shift of primary jurisdiction from the agency to
the court, and of the question to be decided from whetlher there has been a
violation of the basic act to whether there has been a violation of the enforced
order. This, however, seems to be a basic fault with the two-stage proceeding
and is not cured by referral back to the agency at the second stage.
3 See FED. R. CIV. P. 53(e) (2). See also NLRB v. Remington Rand, Inc.,
I30 F.2d 9g9 (2d Cir. I942).
36 See NLRB v. Retail Clerks Ass'n, 203 F.2d i65, i68-69 (gth Cir. I953)
(dictum); NLRB v. Remington Rand, Inc., I30 F.2d gig, 937 (2d Cir. I942)
(concurring opinion). Arguably, however, ? io(e) of the Administrative Procedure
Act applies also to findings by the agency in this proceeding, and requires that
they be judged by the same standards as an original agency finding.
37 For examples of delays of many years, in some instances beyond the statute
of limitations on the substantive offense, see Parker, Contempt Procedure in the
Enforcement of Administrative Orders, 40 ILL. L. REV. 344, 347 (I946).
38 See Endicott Johnson Corp. v. Perkins, 3I7 U.S. 50I, 50-17 (I943) (dis-
senting opinion).
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i958] CONTEMPT OF FEDERAL AGENCIES
A. Judicial Development
3 See, e.g., 48 Stat. goo (I934), I5 U.S.C. ? 78u(c) (I952) (SEC): "In case of
. . . refusal to obey a subpena . . . the Commission may invoke the aid of any
court . . . . And such court may issue an order ... and any failure to obey such
order . .. may be punished . . . as a contempt .
40 See General Tobacco & Grocery Co. v. Fleming, I25 F.2d 596 (6th Cir.
I942); In the Matter of Pacific Ry. Comm'n, 32 Fed. 24I (C.C.N.D. Cal. i887).
41 But cf. Ex parte Grossman, 267 U.S. 87 (I925).
42 See p. I552 infra; cf. Penfield Co. v. SEC, 330 U.S. 585, 603-04 (I947)
(dissenting opinion).
43 Cf. In the Matter of Pacific Ry. Comm'n., 32 Fed. 24I (C.C.N.D. Cal. i887).
4 See Ex parte Rowland, I04 U.S. 604 (I88i). Several of the statutes are
framed in these terms. See note 7 supra.
4 See, e.g., 38 Stat. 735 (I9I4), as amended, I5 U.S.C. ? 2I (I952) (ICC, FCC,
CAB, FRB, FTC): "If such person fails . . . to obey such order of the Com-
mission . . . [it] may apply to . . . [the court which] shall have power to
make . . . a decree affirming, modifying, or setting aside the order . . . The
findings of the Commission . . . as to the facts, if supported by substantial
evidence, shall be conclusive."
46 See In re Savin, I3' U.S. 267 (I889).
47 "Agency subpenas authorized by law shall be issued to any party upon
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I548 HARVARD LAW REVIEW [Vol. 7I
request . . . . Upon contest the court shall sustain any such subpena . . . 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." 6o Stat.
240 (I946), 5 U.S.C. ? I005(c) (I952).
48 "[The reviewing court shall] . . . hold unlawful and set aside agency
action, findings, and conclusions found to be (i) arbitrary . . . (2) contrary to
constitutional right . . . (3) in excess of statutory jurisdiction . . . (4) without
observance of procedure required by law; (5) unsupported by substantial evidence
*. . or (6) unwarranted by the facts . . ... 6o Stat. 243 (I946), 5 U.S.C. ? ioo8(e)
(I952).
49With respect to ? 6(c), see S. Doc. No. 248, 79th Cong., 2d Sess. 227, 363,
4I5 (I946). But see id. at 27-28, 206. With respect to ? io(e), see id. at 39-40.
The cases discussed as examples of the practices that ? io(e) was intended to pro-
hibit, see id. at 370, 386, would almost certainly have been held violative of the
prevailing law had they been appealed.
50 See notes i6 & 22 supra.
51 It appears however, that ? 6(c) reverses the rule in FTC v. Claire Furnace
Co., 274 U.S. i6o (1927), and that respondent may sue to enjoin a subpoena prior
to enforcement, at least in those cases in which there is a criminal sanction for dis-
obedience. See S. Doc. No. 248, 79th Cong., 2d Sess. 27, 206, 319, 363 (1946).
52 The phrase "in accordance with law" appears in the first clause of the last
sentence of ? 6(c), but not in the second clause. See note 47 supra. This seems to
leave open the argument that proceedings by the respondent for a court subpoena
are to be contrasted with proceedings by the agency for enforcement, the court
having discretion only in the former case to determine whether the subpoena is
"in accordance with law." But cf. NLRB v. Anchor Rome Mills, Inc., 197 F.2d
447 (5th Cir. 1952).
53Agency action is defined in ? 2(g) of the act, 6o Stat. 237 (1946), 5 U.S.C.
? IOOI(g) (1952), as "every agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act."
54 See S. Doc. No. 248, 79th Cong., 2d Sess. 40, 278-80, 370 (1946). Apparently
? io(e) has never been applied to a subpoena.
55See id. at 370, 386.
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I958] CONTEMPT OF FEDERAL AGENCIES I549
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I550 HARVARD LAW REVIEW [Vol. 7I
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I958] CONTEMPT OF FEDERAL AGENCIES I55I
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I552 HARVARD LAW REVIEW [Vol. 7I
A. Constitutional Authority
Congress has never attempted to grant to any independent admin-
istrative agency the direct power of contempt.92 Principally by reason
of a dictum in ICC v. Brimson,93 it has generally been assumed that
such an authorization would violate due process and the doctrine of
separation of powers.94 Several state courts have declared similar
statutes void under constitutional provisions akin to those in the
federal constitution.95 However, Supreme Court decisions since Brim-
son have made it unlikely that a statute granting to an administrative
agency the power to punish for contempt in certain circumstances
would be held unconstitutional today.
(i) Separation of Powers.- The contempt power, it is argued, is
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i958] CONTEMPT OF FEDERAL AGENCIES I553
96 See Langenberg v. Decker, I3I Ind. 47I, 3I N.E. I90 (I892). But cf. In re
Huron, 58 Kan. I52, 48 Pac. 574 (I897).
" The real difficulty appears to be that, in view of the modern complexit
of government, it is no longer possible to categorize bodies and functions of bodies
in any meaningful way as legislative, executive, or judicial, if indeed it ever was
possible. See FTC v. Ruberoid Co., 343 U.S. 470, 488-89 (I952) (Jackson
J., dissenting).
98 E.g., Rhinehart v. State, I2I Tenn. 420, II7 S.W. 508 (I908).
9 U.S. CONST. art. I, ? 4.
100 I03 U.S. i68 (i88o).
101 I9 U.S. (6 Wheat.) 204 (I82I).
102 See I54 U.S. at 478-79, 485.
103 273 U.S. I35 (I927).
104 294 U.S. I25 (I935).
105 See Humphrey's Ex'r v. United States, 295 U.S. 602 (I935).
106 Cf. Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320 (I909).
107 See ICC v. Brimson, I54 U.S. 447, 485 (I894) (dictum) (dissent reported al
I55 U.S. 3 (I894)); Langenberg v. Decker, I3 Ind. 47I, 477, 3I N.E. I90, I95
(I892) (concurring opinion).
108 Cf. Hibben v. Smith, I9I U.S. 3IO (1903).
109 See Ritholz v. Indiana State Bd., 45 F. Supp. 423 (N.D. Ind. I937).
110 See In re Groban, 352 U.S. 330 (I957).
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I554 HARVARD LAW REVIEW [Vol. 7I
B. Suggested Legislation
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I958] CONTEMPT OF FEDERAL AGENCIES
120 Compare 8 U. PITT. L. REV. 66 (I94I), with 54 HARV. L. REV. I29, I3I
(I940).
121 See In re Oliver, 333 U.S. 257 (I948).
122 This would apply, seemingly, also to any grant of the contem
maintain order during hearings. But see 39 Stat. 747 (I9I6), as amended, 5 U.S.C.
? 773(c) (I952).
123 See Goodrich, Amendment of the Federal Food, Drug, and Cosmetic Act
to Provide Administrative Subpoena Power, 4 FoOD DRUG CosM. L.J. 304, 3IO
(I949).
124 See GELLHORN & BYSE, ADMINISTRATIVE LAW 630-40 (I954).
125 The matter would be interlocutory and liable to be rendered moot unless the
hearing resulted in a final order against the party. See note 20 supra. See also
NLRB v. Dahlstrom Metallic Door Co., II2 F.2d 756 (2d Cir. I940).
126 See, e.g., Merchant Truckmen's Bureau v. Reardon, io F. Supp. 358 (S.D.
N.Y. I935).
127 Although the language of ? 6(c) of the Administrative Procedure Act, supra
note 47, appears to leave adequate discretion in the agency, there is some ma-
terial in the legislative history indicating that a greater right was intended for the
party. See S. Doc. No. 248, 79th Cong., 2d Sess. 27, 206 (1946).
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