Use of Contempt Power to Enforce Subpoenas and Orders of Administrative Agencies

Source: Harvard Law Review, Vol. 71, No. 8 (Jun., 1958), pp. 1541-1555
Published by: The Harvard Law Review Association
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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

USE OF CONTEMPT POWER To ENFORCE SUBPOENAS

AND ORDERS OF ADMINISTRATIVE AGENCIES
When the order or "subpoena"'1 of an independent federal ad-
ministrative agency 2 is disobeyed, probably the most effective direct
sanction commonly available to coerce obedience is civil contempt.3
Though it may be a crime to disobey an agency order or subpoena,4

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

The general process by which an agency obtains judicial effectua-

tion of its final order or subpoena is in two stages. When the subpoena
or order issued by the agency has been disobeyed, statutes empower
the agency to apply to a court for assistance.7 The court, after
hearing, may issue an order under its own authority either in the form
requested by the agency or as modified by the court. Appeal will lie
whether or not enforcement is granted.8 In the event of continued
recalcitrance, there may be a second stage of court proceedings. Al-
though apparently the court of its own motion could order the re-
spondent to show cause why he should not be adjudged in contempt,9

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

the normal second-stage practice is for the agency to petition the

court to compel obedience.'0 If a contempt citation results, it may
be appealed. Since the issues are quite different, it is not surprising
that the cases have developed a different view of the function of the
court at each of the two stages. Similarly, a diverse treatment has
evolved dependent on whether the proceeding involves an order or
subpoena.
(i) First-Stage Subpoena. - The Supreme Court has steadily nar-
rowed the discretion of the courts and the scope of the issues presented
for adjudication in the first-stage enforcement of an agency subpoena."
The early judicial reluctance to grant broad subpoena powers to an
agency derived from the feeling that no one serving a judicial func-
tion should be given investigatory powers.12 Gradually, however, the
Supreme Court came to accept the fact that an agency, when it issues
a subpoena, is acting as an adverse party and therefore should be
allowed broad discovery powers appropriate to the role.'3 The rule
today, as set out in Endicott Johnson Corp. v. Perkins 14 and Okla-
homa Press Publishing Co. v. Walling,'5 is that the enforcing court
may only require that the subpoena particularly describe matter which
is relevant to an inquiry within the agency's authority, and not be
unduly burdensome.'6 There is no necessity that a specific complaint
be pending before the agency, nor must probable cause be shown beyond
an allegation that the respondent is within the coverage of the agency's
enabling act.'7 These lenient criteria make it almost certain that the
agency will be able to obtain a court subpoena. Until the Supreme
Court ruling in CAB v. Hermann,'8 however, the application of the
criteria was assumed to require a full hearing with its attendant delay
and expense.

10 Only the agency may commence the second-stage proceeding. Amalgamated

Util. Workers v. Consolidated Edison Co., 309 U.S. 26i (I940). If the court
finds a violation of its order, it must hold the contemnor in civil contempt. Pen-
field Co. v. SEC, 330 U.S. 585 (i947). Since the same conduct may invoke both
civil- and criminal-contempt sanctions, Lamb v. Cramer, 285 U.S. 2I7 (1932), it
may be appropriate as a deterrent that the court also impose a criminal punish-
ment, since by at last obeying the order or subpoena the contemnor can purge
himself of civil contempt and may have succeeded in delaying the agency for a
long period without penalty. See, e.g., NLRB v. Rico, I82 F.2d 254 (gth Cir.
I950). However, the courts are slow to inflict both civil- and criminal-contempt
sanctions for the same action. See, e.g., NLRB v. International Hod Carriers
Union, 228 F.2d 589 (2d Cir. I955).
" Compare Harriman v. ICC, 2II U.S. 407 (ig08), with Oklahoma Press
Publishing Co. v. Walling, 327 U.S. i86 (1946).
12 See, e.g., FTC v. American Tobacco Co., 264 U.S. 298, 305-06 (I924).
13 See United States v. Morton Salt Co., 338 U.S. 632 (I950); cf. I
Minker, ii8 F. Supp. 264, 266 (E.D. Pa. I953).
14 37 U.S. 50I (I943)1
327 U.S. i86 (I946).
16The enactment of the Administrative Procedure Act, 6o Stat.
as amended, 5 U.S.C. ?? IOOI-II (1952), subsequent to these decisions, effected
no change in the law. Tobin v. Banks & Rumbaugh, 20I F.2d 223 (5th Cir.),
cert. denied, 345 U.S. 942 (I953).
17 See Sherwood, The Enforcement of Administrative Subpoenas, 44 COLUM.
L. REV. 53I (I944).
18353 U.S. 322 (I957)

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 1544 HARVARD LAW REVIEW [Vol. 7I

The trial court in Hermann refused a hearing to the respondent and

enforced the subpoena, giving as the only basis for its decision that
"in laying the subpoena alongside the charges in the Complaint, this
Court cannot say that any of the documents or things called for in
any of the subpoenas are immaterial or irrelevant . . ." The court of
appeals reversed unanimously on the ground that the trial court had
not inquired sufficiently into the merits to be able to decide whether the
material was relevant.19 The Supreme Court reversed per curiam.
The selection of the cases cited in the opinion indicates that the Court
felt that the trial court's procedure adequately applied the established
substantive criteria.20 The Hermann decision insures a speedy con-
clusion of the first-stage proceeding by attributing to the subpoena an
irrefutable presumption of relevancy if it is relevant on its face.
(2) First-Stage Order. -Because the consequences of enforcement
of an order may be more drastic to the respondent than those of en-
forcement of a subpoena, and because orders come at the end rather
than at the beginning of the administrative process, the courts have not
been as hesitant to grant a full review of all of the issues on applica-
tion for enforcement of an order.2' In general, the agency must show
that its findings of fact are based on substantial evidence 22 and that its
order, considered particularly in the light of violations previously
found to have occurred, is no more broad than is reasonably necessary
to prevent future violations.28

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

After enforcement of the order but prior to the commencement of

second-stage proceedings, the agency has been allowed a wide range of
independent action by the courts. It may, without application to the
court, require such reports as it believes necessary to ascertain com-
pliance,24 stay the order, or modify the order in any way which does
not increase the burden on the respondent. 25 It may broaden or par-
ticularize the order, but such a modification must be enforced pro tanto
by an additional enforcement proceeding.26 As the agency performs
these duties for the court with respect to the enforced order, it is by the
same act gathering evidence for its second-stage case; thus the lines
between the first- and second-stage proceedings tend to become blurred.
(3) Second-Stage Subpoena. - In view of the "heavy" burden of
proof resting on the party urging contempt 27 and the requirement that
a subpoena be good in its entirety in order to support contempt of any
part,28 it is likely that a party willing to take the risk of the generally
light sanctions imposed will have more success in delaying the agency
in the contempt proceeding than at the first stage. However, from the
paucity of cases reported, it appears that prior to the Hermann case,
compliance with enforced subpoenas was nearly invariable. But as the
Hermann doctrine is applied, increased noncompliance is probable,
since the respondent must now disobey the subpoena to obtain a hear-
ing on the merits as to the validity of the subpoena. Under the Her-
mann doctrine, those issues not open to contest at the first stage may be
raised at the second stage.
(4) Second-Stage Order. -Whereas in the first-stage proceedings
the court's function is limited to a review of the agency findings, with
deference to the agency's expertness, in the second stage the court it-
self performs the fact-finding function and, in addition, imposes a
heavy burden of proof on one who asserts that the order has been vio-
lated.29 The court usually delegates its fact-finding job to a master.80
In at least two cases, however, the cause has been remanded to the
agency for a determination of the fact of compliance.31 These two
cases represent a further development in the continuing shift to the

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

agencies of functions which in the usual proceeding for violation of an

injunction the courts themselves would perform. The use of this re-
manding technique resulted from a dissastisfaction with the services
rendered by masters and a belief that this "last and most delicate
task of all" should be put in the hands of the agency created and
equipped for it.32 There are indications that the Supreme Court might
approve of this approach.33 It has been suggested that this procedure
would have merit only where complex orders are involved.34 Since the
complexity of an order or subpoena may not be evident before a hear-
ing, however, an attempt to distinguish complex orders from others
does not seem practical.
The findings of a master will ordinarily be accepted by the court
unless clearly erroneous.35 While it is not clear what weight will be
accorded to the agency's findings when it is in effect acting as master,
several cases indicate that they will not be given the benefit of this pre-
sumption, nor even of the "substantial evidence" rule.36
(5) Limitations of the Present Procedure. -Notwithstanding the
developments which have placed a large part of the power to effectuate
its own orders and subpoenas in the agency's hands, the two-stage
proceeding still affords the determined recalcitrant an easy opportunity
for procedural delay.37 Moreover, the courts in their efforts to ob-
viate these delays have occasionally abandoned their characteristic
supervisory capacity and become mere "rubber stamps" of legality
for agency action.38

II. THE POSSIBILITY OF DEVELOPMENT WITHIN THE PRESENT

STATUTORY FRAMEWORK

The core of the difficulty in the existing practices is the substantive

and procedural repetition involved in the two-stage process. The

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

efforts to eliminate this repetition without resorting to new legislation

seem to be approaching both statutory and constitutional limits.

A. Judicial Development

(i) Enabling Statutes. - The statutes prescribing the procedures

to be followed by each particular agency probably would not prevent
the courts from enforcing subpoenas without any consideration as to
their validity. However, the provisions dealing with judicial enforce-
ment of subpoenas are in most cases permissively worded.89 It has been
argued, therefore, that since the administrative desirability of the
individual subpoena is a matter in the agency's discretion, and since
the courts do not need a statutory grant in order to consider the issue
of constitutionality, the permissive wording must have been intended to
require a full exercise of judgment by the court on the merits of each
subpoena.40 Moreover, the use of similar permissive language to describe
the second-stage proceedings, for which a full hearing is apparently re-
quired,41 might be evidence that a like procedure was intended for
the first stage. This construction is difficult to reconcile with the Her-
mann doctrine, however, and it is at least as likely that the habitual
use of this language by Congress was simply a response to the general-
ly held assumption that agencies could not constitutionally be given
the enforcement power directly.42 Under this view, the use of permis-
sive language is seen as a desire to avoid the constitutional doubt that
would arise if the statute were construed as leaving the court no dis-
cretion.43 Finally, the language can be read as merely a grant of
jurisdiction to the designated courts.44
In the area of first-stage enforcement of agency orders, on the con-
trary, the statutes clearly require a full court hearing.45 They provide
no guidance for the second-stage proceeding, however; at this level the
courts have open to them the wide discretion allowed by the common
law.46
(2) Administrative Procedure Act. -Both sections 6(c) 47 and

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

io(e) 48 of the Administrative Procedure Act were apparently in-

tended 49 and have been held to be 50 restatements of the existing law.5l
To what extent they will inhibit future development toward a simplified
procedure for effectuating agency orders and subpoenas is difficult
to determine. Section 6(c) requires the court to enforce the subpoena
if it is "in accordance with law." 52 Even if this is read as meaning in
accordance with the substantive law of Oklahoma Press and Endicott
Johnson, further procedural refinements like Hermann do not seem
to be forestalled.
Section io(e) lists six substantive criteria to be used by the court
in judging the lawfulness of "agency action." 53 Read literally, these
words would encompass subpoenas as well as orders; but this construc-
tion would render section 6(c) superflous and was probably not in-
tended.54 As applied to orders, section io(e) certainly impedes the
judicial evolution of any substantive criteria permitting more expeditious
enforcement of agency orders. The section also seems to stand in the
way of any procedural development, since the adoption of Hermann-
like procedures in the enforcement of orders might render all the ap-
plication of the substantive criteria so perfunctory as to be an evasion
of the statutory standards. Finally, the legislative history of the act
indicates a general desire for more rather than less judicial supervision
of administrative agencies.55

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

(3) Constitution. - The major constitutional lim

velopment of more simplified procedures occurs in the first-stage pro-
ceeding: If courts are deprived of their discretion and become mere
"automata" it becomes difficult to find a "case or controversy" upon
which to base the court's jurisdiction.56 It was the presence of a real
contest before the trial court that was the ratio decidendi used by the
Supreme Court in upholding the statute which first established the
subpoena-enforcement practice.57 This limitation cannot be avoided
by a cursory ex parte application of substantive standards, since the
presence of a "case or controversy" may be largely a matter of form.58
Although it is true that first-stage proceedings are not civil suits but
actions of a summary nature controlled by statute,59 this fact does not
alter the constitutional jurisdictional requirements. The Hermann
decision, however, indicates that these jurisdictional limitations may
have been substantially relaxed, although the point was not argued
before the Court.
There appear to be no similar limitations on the second stage. The
contempt is of the court and the jurisdiction of courts over contempts
is an ancillary power included within the general power to decide
cases.60 Once, therefore, it is decided that the court could in the first
instance issue its order, there is no doubt that it can punish disobedi-
ence. Similarly, since within broad limits the court is constitutionally
free to adopt any procedure to try the contempt,61 referring questions
of fact back to the agency at the second stage does not weaken the
court's jurisdiction.
The Supreme Court held in Boyd v. United States that a subpoena
duces tecum may be illegal as a violation of the fourth amendment.62
If no real judicial review is available to the respondent at the first stage,
therefore, the question then arises whether the test of the amend-
ment's guarantee against unreasonable search and seizure has been
satisfied.63 There are some indications that this difficulty may be
resolved by backing away from the whole concept of applicability of
the amendment to subpoenas. In Oklahoma Press, Mr. Justice Rut-
ledge cast doubt on the applicability of the fourth amendment to
corporations and their officers.64 Manifestly this would be an importan
exception; the object of an agency subpoena will often be corporate
records. Moreover, by describing the subpoena as constituting only a
56 See Penfield Co. v. SEC, 330 U.S. 585, 604 (I947) (dissenting opinion).
57 See ICC v. Brimson, 154 U.S. 447 (1894) (dissent reported at I55 U.S. 3
(1804) ).
"See Parker, Separation of Powers Revisited, 49 MICH. L. REV. 1009,
1034-7-5 (I9-5I)-I
59 Goodyear Tire & Rubber Co. v. NLRB, 122 i.2d 450 (6th Cir. I94I).
60 Michaelson v. United States ex rel. Chicago, St. P., M. & 0. Ry., 266 U.S.
42 (I924).
61 In re Savin, I3I U.S. 267 (I889). See also In re Lee, I7
560, cert. denied, 298 U.S. 68o (1936).
62 ii6 U.S. 6i6 (i886). See also Hale v. Henkel, 201 U.S. 43 (I906).
63 See FTC v. American Tobacco Co., 264 U.S. 298, 305-o6 (1924) (dictum).
64 327 U.S. i86, 208 (1946). Only natural persons can invoke the self-
incrimination clause of the fifth amendment as an objection to a subpoena.
Hale v. Henkel, 20I U.S. 43, 74-75 (i9o6).

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 I550 HARVARD LAW REVIEW [Vol. 7I

"constructive" search and seizure an

Press may have been the beginning wedge towards an effectual reversal
of Boyd.66 In any case the limitation, if it is one, has not had a great
impact in practice; when raised as an argument it is often summarily
dismissed.67 Those disturbed by the use of a very broad subpoena
power have suggested that the court subpoena the documents and, ap-
parently with the agency's advice, decide what is really necessary to
the agency,68 or that the court order access for the agency to all of the
documents in order to decide which are relevant.69 However, these sug-
gested procedures are only more cumbersome and dilatory and do not
fully meet the constitutional objection, since the protection is as much
from the original search as it is from the subsequent seizure.
The fifth amendment poses another possible limitation. In some
respects, the arguments with regard to the fourth amendment are
here also involved since it has been held that a violation of the guaran-
tee of due process and protection from self-incrimination with regard
to a subpoena duces tecum is also an unreasonable search and seizure.70
If there is a fair second-stage hearing, however, it is doubtful whether
the due-process clause draws any practical limits on the first stage.
The fact that the respondent can obtain this hearing only by first placing
himself in putative contempt does not seem determinative, since he can
avoid all punishment by purging himself; even the provisions in the
enabling statutes imposing criminal sanctions for disobedience of un-
enforced agency subpoenas are apparently constitutional.71 In view
of the ease of obtaining subpoenas to command appearance before a
federal court,72 there would seem to be no due-process objection even
were the court to issue them to the agency without a hearing. More-
over, even if the court procedures do not themselves satisfy due-
process requirements, intra-agency hearings and appeals are generally
available to the respondent before commencement in the court of the
first stage,73 and upon response to the subpoena objections may again
be urged in the agency.74
Before an agency final order becomes effective, due process requires a

65 327 U.S. at 202-I4.

66 See Comment, 20 SO. CALIF. L. REV. 66 (I946).
67 See, e.g., Menzies v. FTC, 242 F.2d 8i, 84 (4th Cir.), cert. denied, 353
U.S. 957 (0957).
68 See Local I74, International Brotherhood of Teamsters v. United States,
240 F.2d 387 (gth Cir. 1956).
69 See Hermann v. CAB, 237 F.2d 359 (gth Cir. I956), rev'd per curiam, 353
U.S. 322 (i957).
70 Boyd v. United States, ii6 U.S. 6i6 (i886). It appears, therefore, that no
protection would be lost were subpoenas read out of the fourth amendment.
71 Cf. Oceanic Steam Nav. Co. v. Stranahan, 2I4 U.S. 320 (I909). But see
FTC v. Millers' Nat'l Federation, 47 F.2d 428 (D.C. Cir. I93I). The statute
which makes it a misdemeanor to disobey the subpoena of a congressional com-
mittee has been upheld. See In re Chapman, i66 U.S. 66i (I897).
72 Fed. R. Civ. P. 45(a) requires the clerk of court to issue subpoenas, in blank,
on request. Certain governmental agencies may have subpoenas issue automatically
on request in connection with agency hearings. See, e.g., 35 U.S.C. ? 24 (1952).
73 See ATTORNEY GENERAL'S COMMITTEE ON ADMINISTRATIVE PROCEDURE, FINAL
REPORT app. K (I94I).
74 See Note, 54 HARV. L. REV. I214 (1941). See also note 20 supra.

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 I958] CONTEMPT OF FEDERAL AGENCIES I55I

hearing.75 But since due process is not necessarily judicial process,78

this requirement can be satisfied on the agency level, leaving the court
only to insure that the agency had provided a "strictly fair" hearing.77

B. Development by the Agencies

No statute specifically denies to federal agencies the power to cite
directly for contempt, nor does there seem to be any constitutional
objection to this power existing in an agency.78 On the contrary,
several state courts have held that the contempt power is necessary
to the expressly granted powers to order and to subpoena.79 This
argument has force. The power of contempt is said to inhere in courts
only because they must have it to perform their functions.80 The ju-
dicial extension of the power to Congress was justified solely on grounds
of expediency.81 To the extent, therefore, that the agency requires the
contempt power for the proper performance of its duties, the theoretical
argument seems as strong as that which justifies the existence of the
contempt powers of the other branches of government.82 Though no
case has been found in which a federal agency has attempted to cite
for contempt without prior court enforcement, should it do so, the re-
spondent could not convincingly argue unfair surprise, since the orders
and subpoenas of an agency are, presumably, entitled in the first in-
stance to obedience. Indeed, the existing statutes permit disobedience
to be punished as a misdemeanor.83
It may be, however, that the contempt power is impliedly denied to
the agencies by statute. Section 6(c) of the Administrative Procedure
Act, which provides for court enforcement of agency subpoenas,84 is
probably intended to provide an exclusive procedure.85 Similarly, the
statutory provisions pertinent to enlisting the contempt power of the
court 86 apparently allow enforcement of the subpoena 87 or order 88
only upon application to the judiciary. Finally, section 9(a) of the
act,89 which deals with the imposition of sanctions by agencies, may
"Opp Cotton Mills, Inc. v. Administrator, 3I2 U.S. I26, I52 (I94i).
76Public Clearing House v. Coyne, I94 U.S. 497, 508-IO (I904).
7 NLRB v. Western Cartridge Co., I38 F.2d 55I (2d Cir.), cert. denied,
32I U.S. 786 (i943).
78 See pp. I552-55 infra.
79In re Sanford, 236 Mo. 665, I39 S.W. 376 (i9ii); In re Hayes, 200 N.C.
I33, I56 S.E. 79I (1931); People v. Learned, 5 Hun. 626, 637 (N.Y. Sup. Ct.
I875). Contra, Noyes v. Byxbee, 45 Conn. 382 (1877). See also In re Clark, 65
Conn. I7, 32, 3I Atl. 522, 524 (I894).
80 Michaelson v. United States ex rel. Chicago, St. P., M. & 0. Ry., 266 U.S.
42, 65-66 (I924) (dictum).
81 See Anderson v. Dunn, I9 U.S. (6 Wheat.) 204 (I82I).
82 Hbwever, as the contempt power existed in the legislature and the courts at
common law, it might be argued that the Constitution is the direct source of their
power through the grants of judicial power to the courts and legislative powers to
Congress. See Anderson v. Dunn, I9 U.S. (6 Wheat.) 204, 233-34 (I82I).
83 See note 4 supra.
84 See note 47 supra.
85 See S. Doc. No. 248, 79th Cong., 2d Sess. 363 (I946) (by implication).
86 See note 7 supra.
87 See FPC v. Metropolitan Edison Co., 304 U.S. 375, 386 (1938) (dictum).
88 See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 4I, 48 (1938) (dictum).
8960 Stat. 242 (I946), 5 U.S.C. ? ioo8(a) (1952). "In the exercise of any

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 I552 HARVARD LAW REVIEW [Vol. 7I

be construed as a positive prohibition of the contempt power where

not specifically authorized by statute.90 At any rate, in light of the
long practice of court enforcement, as well as the doubt under the
present statutes of the validity of direct agency action, it is unlikely
that any agency will exercise the power without express statutory
authority.

III. POSSIBILITY OF CONGRESSIONAL ACTION

The courts and agencies probably can proceed no further in their
attempts to improve the subpoena- and order-enforcement procedures
within the existing statutory framework. It is suggested that the best
method to meet the need of the agencies for a quick, sure sanction, con-
sistent with the rights of the respondents, is a statute9l giving the
agencies the direct power to cite for contempt.

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

power . . . no sanction shall be imposed . . . except within jurisdiction delegated

to the agency and as authorized by law." "Sanction" is defined in ? 2(f), 6o Stat.
237 (I946), 5 U.S.C. ? IOOI(f) (I952), as, inter alia, any "prohibition, requirement,
limitation, or other condition affecting the freedom of any person . . . imposition
of any form of penalty or fine . . . [or] taking of other compulsory or restrictive
action."
9 Cf. Stanard v. Oelsen, 74 Sup. Ct. 768 (1954) (Douglas, Circuit Justice);
Regents v. Carroll, 338 U.S. 586 (1950).
91 This is the solution being adopted by increasing numbers of states. See Tre-
solini, The Use of Summary Contempt Powers by Administrative Agencies, 54
DICK. L. REV. 395, 398-404 (I950). Apparently, though the advantages of uniform-
ity in this method are large, see Samuels, Power of Administrative Agencies to
Compel Testimony in Tennessee, i6 TENN. L. REv. 928 (I94I), the prospect of
a federal grant is slight since the number of cases involving inconvenience and
expense to the agency is not great enough to outweigh legislative inertia and the
general. fear that such a grant might be unconstitutional. See generally Davis, The
Administrative Power of Investigation, 56 YALE L.J. iiII, II 39-40 (I947).
92 But cf. 39 Stat. 747 (I9I6), as amended, 5 U.S.C. ? 773(c).
93 I54 U.S. 447, 485 (I894) (dissent reported at I55 U.S. 3 (I894)). See also Ex
parte Doll, 7 Fed. Cas. 854, No. 3968 (E.D. Pa. I870) (dictum).
94 See, e.g., Parker, Contempt Procedure in the Enforcement of Administrative
Orders, 40 ILL. L. REV. 344, 345, 350 (I946); cf. Brody v. United States, 243 F.2d
378 (Ist Cir.), cert. denied, 354 U.S. 923 (I957), 7I HARV. L. REV. 746 (I958).
" People v. Swena, 88 Colo. 337, 296 Pac. 27I (i93i); Langenberg v. Decker,
I3I Ind. 471, 3I N.E. I90 (1892). But cf. Mayor v. Board of Equalization, 74
N.J.L. 753, 67 Atl. 38 (Ct. Err. & App. I907); People v. Learned, 5 Hun. 626 (N.Y.
Sup. Ct. I875). See also LENTZ, THE ENFORCEMENT OF THE ORDERS OF STATE
PUBLIC SERvIcE COMMIssIONS 68-78 (I940). Several states have made this grant by
constitutional amendment. See, e.g., CAL. CONST. art. 12, ? 22.

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i958] CONTEMPT OF FEDERAL AGENCIES I553

exclusively a judicial power and may not be exercised by an administra-

tive agency.96 However, the exercise of the contempt power by an
agency is no more judicial in nature than the exercise of its powers to
conduct hearings, to arrive at findings of fact, and to issue orders,
all of which are constitutional.97 Furthermore, the independent admin-
istrative agencies, as presently constituted, combine legislative, execu-
tive, and judicial functions; it seems illogical to argue, therefore, that
the addition of one more "judicial" power -if contempt is to be so
characterized - will violate the doctrine of separation of powers.
Several state statutes giving contempt powers to agencies have been
upheld under state constitutions providing for a separation of powers.98
The only disciplinary power given Congress by the Constitution is the
power to "punish its Members for disorderly Behavior." 99 Kilbourn v.
Thompson,100 overruling in part Anderson v. Dunn,101 held that
Congress had no general power to punish for contempt. This state of
the law unquestionably influenced the decision in Brimson.102 Since
Brimson, however, the Court in McGrain v. Daugherty 103 and Jurney
v. McCracken104 has allowed Congress in certain instances to exercise
the general contempt power. The principle that contempt is an exclu-
sively judicial function now seems unsupportable. In addition, it might
be argued that since the independent administrative agencies are arms
of the legislature,105 that body may delegate its contempt power
to them.106
(2) Due Process. - Despite some opinion to the contrary,107 there
seems to be no reason why the exercise of the contempt power by an
agency must conflict with the requirements of procedural due pro-
cess.108 A federal court has upheld under the fourteenth amendment a
state statute making mandatory the issuance of a subpoena by the
court on application by the agency,109 and, sub silentio, a statute
granting to a state agency the direct power of contempt.110 In light
of the contention that the fourteenth-amendment due-process clause
affnrdsl thp sqmp nrntpctinn frnm ctntp actinn that thp fifth-aimPndmPnt

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

due-process clause affords from federal action, these decisions might

indicate that the fifth amendment would not necessarily bar a grant
of the contempt power to an administrative agency.1"' Arguments
that an agency charged with the execution of a statute might be
inclined to abuse the contempt power involve questions of policy rather
than of constitutionality.112 A law could be drafted so as to obviate
this danger as well as any objection based on the fourth amendment.113

B. Suggested Legislation

It is suggested that the best method for expediting the enforcement

of agency subpoenas is to eliminate the present judicial enforcement
proceedings. Subpoenas are used prior to or in the course of agency
proceedings, and in most instances obedience does not involve undue
hardship to the respondent. Consequently, the interest in smooth
functioning of agency investigations seems to override the possible
harshness involved in requiring the respondent to risk being in con-
tempt in order to test the validity of the subpoena. There are several
means by which this elimination could be effected. The devices most
frequently suggested are that the court's enforcement issue automatic-
ally upon the agency's request114 or that the agency be given the
power to enforce its own subpoenas.115 The latter would be preferable
since it avoids both jurisdictional 116 problems and the inappropriate-
ness of placing the court in a subordinate position.117 The best method,
however, would be to allow the agency to conduct both stages, with
a court review of the contempt citation. This would impose sanctions
on a respondent immediately following his disobedience rather than
after the time necessary for judicial action had elapsed. However, the
constitutionality of this method is less certain than either of the other
two methods.
Most writers who have urged a grant of contempt powers to admin-
istrative agencies have limited their recommendations to the enforce-
ment of subpoenas.118 While this would accord with the prevailing
practice in the states,119 the same unnecessary delays arising from the
two-stage process that exist in the enforcement of subpoenas are also
present in the enforcement of orders. An order comes at the end of the
administrative proceedings and may have very serious consequences
for the respondent. Unlike the subpoena, therefore, the more appro-

"'See Albertsworth, Administrative Contempt Powers: A Problem in Tech-

nique, 25 A.B.A.J. 954, 956 (I939).
112 See Anderson v. Dunn, I9 U.S. (6 Wheat.) 204, 232 (i82I).
113 However, a state statute giving the contempt power to an agency has been
held violative of federal constitutional due process. See Commonwealth ex rel.
Chidsey v. Mallen, 360 Pa. 6o6, 63 A.2d 49 (I949).
114 See Note, 37 HARv. L. REv. 747, 749 (I924); 44 Stat. 582 (I926), 45 U.S.C.
? I$7(h) (I952).
115 See Note, 35 COLUM. L. REv. 578, 59o-9I (935)-
116 See p. I549 supra.
117 See i8 U.S.C. ? 40I (I952).
118 See, e.g., Note, 37 HARV. L. REV 747 (I924).
119 See LENTz, op. cit. supra note 95.

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I958] CONTEMPT OF FEDERAL AGENCIES

priate time for court action in order enforcement seems to be at the

first stage.120 This could be accomplished in either of two ways: the
second stage could be eliminated entirely, the agency being empowered
to punish violations of the order as contempt subject to appeal to a
court; or the referral-back technique could be made mandatory, with
the agency findings subject only to limited review.
The statutory procedures suggested represent a logical continuation
of the present trend of judicial thinking. This is manifest in the
Hermann decision's reduction of the first-stage subpoena procedures
to a formality; their complete removal by statute, as here suggested,
seems a natural sequel. Those instances in which courts of appeal have
remanded second-stage-order proceedings back to the agencies for
findings of fact indicate that the same judicial attitude may there have
been present. None of the case-law development has involved criminal
contempt; nor is it suggested here that the power to punish criminally
be given to the agencies. The sole justification both practical and
constitutional for conferring the contempt power is the agency's shown
need; the power should exist only to a degree adequate to the end
proposed.121 There seems no necessity, therefore, for giving agencies
the criminal-contempt power,122 in view of the fact that even the
existing criminal sanction has rarely been utilized.123
A problem would result if the enforcement power of the agency
extended to subpoenas issued by it in behalf of a party to the agency
proceeding.124 Under present procedures, refusal by the agency may
be contested only upon judicial review of the final order.125 If a
subpoena issues and the respondent fails to comply, before the con-
tempt sanction is available the party must apply to the court for
enforcement of the subpoena.126 If, however, the agency were required
to issue the subpoena at the party's request,127 and if the respondent
had to comply or be subject without more to contempt, the possibility
of abuse would be great. Accordingly, it is suggested either that the
agency be given discretion in issuing the subpoena, or if it must do so
automatically, that this type of subpoena be supported by the con-
tempt power only after enforcement by the court.

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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