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interlocutory relief before the expiration of the 5-day period. The council therefore recommended to the Judicial Conference of the United States that the 5-day notice provision be eliminated.
The Judicial Conference of the United States was of the view, however, that the purpose could best be accomplished by the substitution of a requirement for "reasonable notice” in lieu of the fixed provision for 5-days' notice, and recommended the enactment of the bill which is now H. R. 6631 pending before this committee.
The “reasonable notice” provisions contained in the bill conform to the practice which has always been followed by the Court of Appeals for the District of Columbia with respect to stay orders. That is to say, the court of appeals for this circuit never acts upon an applicaiton for the stay of an order of any agency without reasonable notice to the agency and an opportunity to be heard. The council is of the view that the provisions of the bill are sound and proper. Accordingly, the judicial council of the District of Columbia circuit now recommends that the bill be approved. I am glad to state to this committee that at the present time the various boards and agencies are cooperating with the court by maintaining the status quo with respect to the orders sought to be stayed until the court of appeals can hold an orderly hearing with respect to the application for stay, after reasonable notice to the boards or agencies.
Mr. HARRIS. For my own information, I believe you said that the proposed bill, H. R. 6631, is sponsored by your council.
Judge PRETTYMAN. Yes, we initiated it, at any rate.
Mr. HARRIS. I see that the bill amends the Civil Aeronautics Act of 1934.
Judge PRETTYMAN. Yes, sir.
Mr. Harris. I also notice that the title of the bill reads "To provide for reasonable notice to the agency of applications to the court of appeals for interlocutory relief against orders of the Civil Aeronautics Board, the Federal Communications Commission, the Secretary of Agriculture, the Federal Maritime Board, and the Atomic Energy Commission."
It occurred to me that amending the Civil Aeronautics Act by bringing in all of these other agencies might bring about some confusion. Judge, you would certainly be more qualified to express an opinion on that than I would be.
Judge PRETTYMAN. You see, the second section, Mr. Chairman, also amends the so-called Hobbs Act. That statute took its name from former Congressman Hobbs of Alabama. It used to be that the review from various agencies, including the Communications Commission, Secretary of Agriculture, the Maritime Board and the Atomic Energy Commission and the Interstate Commerce Commission went to a 3-judge court. The so-called Hobbs Act changed the law in that respect and as to 4 of those agencies made an appeal, a direct petition for review or appeal to the appellate court, eliminating this 3-judge court business. So that the Hobbs Act controls the appeals from these other agencies.
Mr. HARRIS. That was done by amendment of the United States Code.
Judge PRETTYMAN. That is right.
Mr. HARRIS. I am asking for information about the desirability or the necessity of amending the Civil Aeronautics Act. That is probably a technical situation that we could look into.
Judge PRETTYMAN. Both the Civil Aeronautics Act and the applicable provisions of the Code have this 5-day business in it, and so in presenting the bill it was proposed to take it out of both places and put "reasonable notice” in them.
Mr. Harris. Does the code itself include all of the Federal agencies?
Judge PRETTYMAN. No, sir; this particular statute only includes these named ones.
Mr. HARRIS. Why, then, do we not have to amend the Federal Communications Act as you would the Civil Aeronautics Act!
Judge PRETTYMAN. That is pretty complicated. When you come from the Communications Commission, you can come either 1 or 2 ways. The Hobbs Act applies to certain appeals from the Federal Communications Act, and the Hobbs Act has this 5-day requirement in it.
Mr. HARRIS. I know, but the Hobbs Act is applicable to the Federal Communications Commission, the Civil Aeronautics Board, the Maritime Board, and the Atomic Energy Commission, and so forth; is it not?
Judge PRETTYMAN. Yes, sir.
Mr. HARRIS. Since they included all of these, why then is it necessary to amend the Civil Aeronautics Act, to bring this into effect !
Judge PRETTYMAN. The Hobbs Act does not apply to the Civil Aeronautics Board.
Mr. HARRIS. But it does apply to these others.
Judge PRETTYMAN. That is right. The Hobbs Act contains that provision.
Mr. HARRIS. I am trying to get straightened out in my mind why it was necessary to single out one agency when you cover all of the others, I assume, in the amendment to the Hobbs Act.
Judge PRETTYMAN. The Hobbs Act contains a list of the agencies that it covers, and it covers these four.
Mr. HARRIS. I wonder if you would recite to us the provision of the code or the section which the Hobbs Act controls, for the record.
Judge PRETTYMAN. It is in the code at title 5, section 1032. It is rather a long section.
Mr. HARRIS. I suppose you discuss that in the information you filed for the record; did you not?
Judge PRETTYMAN. Yes, it lists the Federal Communications Commission, the Secretary of Agriculture under the Packers and Stockyards Act, and under the Perishable Agricultural Commodities Act, and the Maritime Commission, and the Maritime Board entered under authority of the Shipping Act of 1916 and the Intercoastal Shipping Act, and the Atomic Energy Commission. So the Hobbs Act applies to them and to them only.
Mr. HARRIS. The reason for my pointing this up, Judge Prettyman, is the fact that the Civil Aeronautics Board has filed an adverse report with this committee in which they strenuously oppose the amendment of the Civil Aeronautics Act as has been suggested by this bill. That is the reason why I was trying to find out just what the purpose was of including this particular act.
Judge PRETTYMAN. The only reason is that that is the only other act besides the Hobbs bill that has the 5-day notice.
Mr. HARRIS. Thank you very much.
Mr. DOLLIVER. I want to join the committee in welcoming you before our committee.
As I understand this measure, you propose to eliminate the 5-day period as it affects certain of the agencies and substitute therefor "a reasonable time"; is that true?
Judge PRETTYMAN. That is right.
Mr. DOLLIVER. Would you develop the reasoning behind the judicial council as to their desire to change from a specific period of 5 days to a "reasonable period" ?
Judge PRETTYMAN. It arose in a number of instances where an agency order was going to affect-let us take a purely hypothetical case and let us suppose the Federal Communications Commission ordered a station off the air, and there are only 3 days remaining before the order went into effect. Under this provision, the station would go off the air and there would be no way the court could stop it or hold up the order because you have to give 5 days' notice.
Now, it has not actually happened because on an informal hearing before the court, if the court suggests that there would be irreparable damage here, usually the Commission, especially the Communications Commission, will postpone the effective date a couple of days so as to comply with the statute. But nevertheless the problem is awkward, so that the court felt that your attention ought to be called to the problem and that “reasonable notice" should be substitued.
Now, reasonable notice applies to all of the other agencies and these are the only ones that have this 5 days' business in them. That is the whole sum and substance of it.
Mr. DOLLIVER. The change does not necessarily mean either a shortening or lengthening of the 5-day period, but it simply means it gives the court a little additional discretion as to what period of time the order should be suspended.
Judge PRETTYMAN. That is right; yes, sir. The court takes a look at these petitions, and of course there is a motion for interlocutory relief and the court would sit formally or informally, and hear counsel and if it appears that great damage would result or something or other, we might give a little longer notice. And on the other hand, if it appears like public damage is going to be done if the order does not go into effect, we would make a short notice.
Mr. DOLLIVER. It is really a matter of giving the circuit court of appeals and the judges an additional discretion that does not presently exist under the statute.
Judge PRETTYMAN. That is the whole sum and substance of it.
Mr. HALE. I just wanted to say, Mr. Chairman, that I remember very well how helpful Judge Stephens was to us in the FCC legislation. We are always glad to have the court appear before the committee. It is very helpful to have the judge here this morning.
Judge PRETTYMAN. Thank you, sir.
Mr. HARRIS. Thank you very much. Do you have anyone else with you that would like to testify on this?
Judge PRETTYMAN. Nobody from our court. I believe there is another witness or two on the bill.
Mr. HARRIS. I notice the Honorable John J. O'Connor is listed. Mr. O'Connor is a former colleague of ours in the House here, and we are glad to welcome
STATEMENT OF HON. JOHN J. O'CONNOR, WASHINGTON, D. C.
Mr. O'CONNOR. May it please the committee, my name is O'Connor, John J. O'Connor, with law offices in the Washington Building.
In my practice before the court of appeals here I have run into at least 2 situations where this particular existing clause requiring 5 days' notice was not in the interest of justice. About 3 years ago there was an order of the Federal Maritime Board which would
go into effect the very next day, and its effectiveness would be started in Japan. We sought an injunction and brought a proceeding to review and asked for an interlocutory injunction and a temporary stay.
In order to get the temporary stay to be effective, we had to request the judges to sit immediately, and they were convened, and Judge Stephens and Judge Prettyman and Judge Bazelon were convened at night. They met at 9 or 10 o'clock at night and did not finish until after midnight.
At that time, in the interest of justice, they granted a temporary stay, but they felt concerned about it because they had to proceed under what they thought the general equitable powers of the court were. They had this 5 days' notice staring them in the face and if that had to be complied with they would be in difficulty.
Then, just this year, or early this year, we had an identical situation where an order of the Maritime Board was going into effect on the 1st of January and again it was going into effect abroad. The court, of course, was in its Christmas recess and would not convene again ordinarily until 1 day after Christmas. I think it was December 22. If the 5-day period was required, it would have required the court to call back its judges who might have been away for over the Christmas holiday and so forth. That would have worked a great injustice.
Of course, this all stems, as has been discussed here by your chairman, from the Hobbs Act. The Hobbs Act, of course, provided for review of the orders of these 4 agencies, and not all agencies or not all orders of the 4 agencies. There is plenty of room for remodeling and amending the Hobbs Act. But this particular provision in here is worthwhile and it would help in the interest o: justice.
The court, of course, is not likely to grant a temporary stay unless it is needed immediately and as has been suggested by Representative Hale, instead of 5 days there might be a much longer notice given to the agencies involved.
I believe this amendment, irrespective of its slight confusion in this particular bill, should be passed.
Mr. HALE. You think the amendment should be adopted; is that your position ?
Mr. O'CONNOR. Yes; I think it is worthwhile.
Mr. DOLLIVER. Do you know of any opposition to the measure among the members of the bar in practice before the courts?
Mr. O'CONNOR. I do not know of any, but that would not mean much because I am not in contact with the members who practice in reference to aviation and so forth. I do not know the attitude of those gentlemen.
Mr. HARRIS. Thank you very much. We are glad to see you back here and glad to see you looking so well.
Are there any questions from any members of the committee?
I am delighted to see our colleague, present with us this morning, Mr. O'Neill. I understand you have an interest in another bill—H. R. 7789.
STATEMENT OF HON. THOMAS P. O'NEILL, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MASSACHUSETTS Mr. O'NEILL. I was here on H. R. 7789, of which I am the sponsor.
Mr. HARRIS. We have a number of bills proposing to amend the Communications Act on which we are trying to have hearings today. We are endeavoring to conclude the hearings on these various proposed amendments so that the committee can consider them in executive session. I am going to say that I am glad that you revised your earlier bill and that you came here today in order to let us know of your interest in this bill.
Of course, the fact that you introduced these two bills indicates your interest. We would be glad to have your explanation of them.
Mr. O'NEILL. I am very grateful for the opportunity to appear before the committee and grateful for your cutting me in this way because I have a meeting of the Committee on Rules this morning.
This particular amendment that I am interested in, H. R. 7789, I understand, is similar to a bill filed by my colleague from Massachusetts who is a member of your committee, Mr. Torbert Macdonald, who recently appeared as a witness before the committee on the same legislation. I have read his testimony, and the testimony, in my belief, was really excellent.
The real reason for filing this legislation occurred because of the fact that on June 12, 1955, the Pilgrim Belle, a Wilson Line excursion boat ran aground on Spectacle Island in Boston, during a fog, with 272 passengers aboard. Now, the Wilson Line in Boston Harbor plies between Nantasket, which' is a summer resort in Boston Harborthey run excursions hourly during the day from about 9 o'clock in the morning until probably 11 o'clock at night. They also run an excursion boat from Boston Harbor down to Provincetown. And they also, at night, use the same boats for dancing parties and excursions of that type.
Now, it is almost inconceivable that a boat of the size of this ship would go aground with 272 passengers. And there was no ship-toshore telephone on it. I understand that there was a ship-to-shore telephone on it, but it was not in use. It really is a sad commentary.
I notice here that in the news clippings that followed the grounding of the ship, it said that, the vessel's galley and fireroom are in that section of the ship damaged when the steamer struck a rock in Boston Harbor Wednesday afternoon. The passengers, mostly teen-agers, were transferred to other rescue crafts speedily and without injury, after the steamer's captain quickly ran the vessel aground. Because no lives were lost, Coast Guard Headquarters has refrained from convening a formal board of inquiry.
Now, it seems to me as though the Federal Government has an obligation to take care of the safety of the public when the steamboat companies and excursion lines refuse that obligation themselves.
I think that this bill here calls the excursion boats ferries, fishing boats for hire, and on those the public should be protected.
Now, in this day and age there are about 40,000 boats that have ship-to-shore telephones on them. The modern fisherman today, who has a small boat and goes out into Boston Harbor or goes out to Cape Cod Bay, he is equipped with a ship-to-shore phone. The ordinary prices of these vary, but it is somewhere in the vicinity of $400 to