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action, or other proceeding to be maintained by or against the successor of such head of the agency or officer under the reorganization effected by such plan. This section actually contemplates that at the time of the taking effect of a reorganization plan there might not be in existence a successor to the office abolished since it makes provision that pending suits, actions, or proceedings may be allowed by the court to be maintained, where there is no successor, against such agency or officer as the President shall designate. From the latter it is clear that even a pending suit, action, or other proceeding might rest in thin air or a legal vacuum until the President designated a successor. It is interesting to note th:t where there is no successor to an abolished office, then it is the President and not the Secretary who designates the successor to be sued.
And, moreover, there is implicit in section 1332-7 of title 5, U. S. C., the possibility that all pending suits, actions, or proceedings which are now pending in the Customs Court (approximately 135,000) would be abated by the taking effect of Reorganization Plan No. 3 unless they were revived in the manner provided for by section 1332–7 (b).
Doubts and uncertainties in respect to the jurisdictional subject matter of the Customs Court and the right of judicial review by importers, consignees, agents, or attorneys may possibly be further aggravated by the self-limiting, selfdefeating, and self-negating character of paragraph (2) of section 1332–7 of title 5. Thus, paragraph (a), while stating affirmatively that any statute enacted, and any regulation or other action made, issued, granted, prescribed, or performed in respect of or by any agency or function affected by the reorganization plan shall have the same effect as if such reorganization plan had not been made, nevertheless within the very physical extent as well as the scope of the language used the paragraph contains an exception which expressly rescinds, modifies, supersedes, or makes inapplicable the very statutes, regulations, or actions mentioned to the extent that such statutes, regulations, or action mentioned are rescinded, modified, or superseded by the reorganization plan or made inapplicable by authority of law or abolition of function by the reorganization plan adopted. The effert of the exception contained in paragraph (a) of section 1332–7 of title 5 may be to cast doubt upon the existence, effect, and statutory authority or warrant of law of all other sections of the United States Code in respect to the Customs Court's jurisdictional subject matter and the right of judicial review wherever those other sections of statutes are contrary to or inconsistent with the provisions of Reorganization Plan No. 3.
Reorganization Act of 1949 (saving provisions, sec. 1332–7) (5 U. S. C., sec.
1337-1 et seq.).
(The following is a suggested saving provision which might be inserted in Reorganization Plan No. 3 of 1952 in the event that the plan is withdrawn and later resubmitted :)
Provided, That all rights of judicial review, including causes of action not reduced to suit, action, or proceeding, as well as suits, actions, or proceedings now pending, which are now by law within the jurisdiction of the United States Customs Court, shall remain in full force and effect and shall continue unimpaired by reason of anything contained in this reorganization plan or elsewhere; and the said rights may be exercised in respect to the functions, decisions, acts, or omissions of the holder or occupant of any office who may be desionated to perform the functions, powers, and duties, or any part thereof, of any offi'e abolished by this reorganization plan, or, in the absence of such designation, in respect to the functions, decisions, acts, or omissions of the Secretary of the Treasury in such matters.
Mr. BARNES. I had perhaps better introduce myself. My name is Albert Mac C. Barnes. My address is 25 Broadway, New York. I have practiced customs law throughout the United States continuously for more than 40 years, both for the Government and private interests.
I appear before the committee today on behalf of The Association of The Customs Bar, which is composed of lawyers practicing before the Treasury Department and before the Customs Court and the Court of Customs and Patent Appeals.
Plan No. 3 has been submitted not only to the board of directors and discussed there, but it has been submitted to the membership and has been studied and discussed there. In addition to that we have had communications addressed to us from various parts of the country calling attention to what I regard as the most serious factor in connection with Plan 3 which has apparently been entirely overlooked.
I have nothing to say about the over-all purpose of plan 3, but I have something to say about its effect on the independent judicial review now existing for importers and for American manufacturers, who comprise a very large segment of our trade population.
The members of this association represent an estimated minimum of 10,000 or more importing houses. I don't mean any single importers. I mean houses that have employees of from 1 to 10,000 each.
The right of judicial review as given to them originally in the Tariff Act of 1890, and as since built up over more than 60 years of effort, and the sound body of law which exists in connection therewith and found in some 200 volumes of reports, are imperiled, seriously imperiled, by the phraseology of this plan.
I have nothing to say about the question or the advisability of transferring certain officers of customs to the civil service. But proponents of this plan and the Treasury Department were not content to simply transfer existing offices, existing functions, and existing personnel to the civil service. They used an ax. They abolished the offices of collector and the office of one appraiser and other customs officers.
In doing that they have run afoul of the plan set up by Congress to give this vast number of interested citizens a right of judicial review of administrative decisions.
The CHAIRMAN. Does the plan abolish that right? Mr. BARNES. Yes. The plan by its phraseology and by vesting in the Secretary of the Treasury a variety of powers, one of which is that he has absolute power over the officers of customs and over all of their functions, can render judicial review impossible. I say that for these reasons, among others:
Sections 501 and 505 of the Tariff Act of 1930 comprise the basic mandatory instructions to collectors of customs and appraisers of customs by which the importing public is advised of official action. Without advice of official action, there is no possibility of filing a complaint against it.
There is a statute of limitations which runs beginning with that official action and carrying through to the time when a protest finally becomes invalid because it is overdue.
Those things covered in section 3 (10) of this plan abolish sections 33, 34, and 35 of title 19 of the United States Code. Those sections require the action to be taken by collectors of customs at local ports where the duty is paid, where the collections are reported, where records are kept, where you must file a protest if you object to the action of the administrative official. All are rubbed out in one sentence.
The impracticability of litigating or attempting to litigate without advance knowledge of where the importer is located, where he has paid his duty, is immeasurable. The right of appeal is substantially killed by that abolition.
Further, in these sections, that is, 501 and 505, the duty of giving notice is set up. Now, that duty was set up in the Tariff Act of 1930 as preliminary to the provisions of sections 514, 515, and 516, which gave to the importer the right to independent judicial review, provided he did certain things. Those things were tied up with the office of collector of customs by name and by function and by personnel. A complete system of independent judicial review was given by Congress after years and years of litigation in the Federal district court or circuit court, from the time of the organization of the Republic down to 1890, and now vested in two courts.
If the exercise of the power is given to the Secretary of the Treasury in this bill and the abolition as found in subsection (10) of the plan goes into effect, it is within the power of the Secretary to entirely wipe out what Congress took 50 or 60 years to complete in the way of independent judicial review.
It seems like a little thing. The Treasury Department comes back with the statement made before this committee by Mr. Graham and perhaps by others that that isn't their intention. Well, I am not unfamiliar with the disposition made of good intentions. I am not unfamiliar with the fact that the best intentions in the hands of an unknown person in the future may go, as the Scotch say, much agley. · We object to the emasculation of a judicial right of review spelled out word for word by the Congress and the substitution therefor of an uncontrolled and nonreviewable discretionary power by the Secretary of the Treasury. For that reason and because we believe that is exactly what this does, in spite of what our friends in the Treasury tell us they don't intend to do, and in spite of what the counsel for your committee says about that already being taken care of in special phraseology here, we deny both of those statements, on the ground that we don't care what the intentions are, it is what power is given to the Secretary of the Treasury which can delete and ruin the action of Congress because it is obvious that you cannot file a complaint against a collector of customs if the collector of customs is abolished. You have either got to file a complaint against the commissionercall him what you will, an examiner—or you have to file against a collector, as Congress has said you should file—and there is no such animal.
Now, this question was, in some of its phases, argued before this committee in plan No. 1. I happen to be chairman of the standing committee on customs law of the American Bar Association. I know what happened in connection with what was presented to this committee. But I want to call the committee's attention—and I hope they will read what I said about it, because this is extremely importantto the effect that this is entirely different from the action which is the basis of a proceeding in internal revenue. There the action is still in the nature of an action in assumpsit for money had and received under the common law. There is every reason to accept the argument that the common law right, especially in States that recognize it, is not abolished. It survives no matter what Congress wants to do with
it nor what they have to say about it. It will survive because it is a basic right.
That is not so in the case of customs. The customs right to appeal to a proceeding before the customs court and to appeal to the Court of Customs and Patent Appeals is spelled out in the statute, and that is the only place it is found. The right of action under the common law was abolished prior to 1890 and substituted was this plan of proceeding that is now sought to be upset-not sought to be upset, no, I am sorry. I should not have said that. Now upset by either the refusal or the inability to understand or the bureaucratic attitude that they want sometime to get this power into an administrative body and out of the courts.
Now, the people who form the backbone of the importing interests of this country are not going to stand for that. Why should it be necessary to do that except for the fact that while I do not say that this plan was conceived in sin or born in iniquity, I do say that it was born much too soon and that adequate time for consideration of questions like this has not been given.
This plan is not the committee's baby, it was handed to them. It was not generated within this committee. I take it your functions here are those of a referee, if any.
So we are confronted with the necessity of asking some member of this committee to introduce a resolution disapproving this plan, unless it is resubmitted containing a provision something like this: Provided that nothing contained in Reorganization Plan No. 26 of 1950 and so forth. And that is where we were asleep. We should have opposed that, but nobody knew it was happening until it was all over, automatic legislation taking effect not by the express will of Congress, but by the failure to disapprove it. We are confronted with the same thing here.
Nothing contained in Reorganization Plan No. 26 of 1950 or in plan No. 3, or in any other plan
The CHAIRMAN. Mr. Barnes, if you will permit an interruption, there is no resolution of disapproval pending before the committee. However, it has been our custom here to hold hearings on all plans. The hearing is held in order to give those who oppose the plan an opportunity to place their views upon the record.
Unless some Senator introduces a resolution of disapproval, the plan will go into effect as is. Now, I do not know whether any other member of the committee will introduce such a resolution, but I thought I had better mention that because if you simply rely upon the committee and some member of it, or the chairman, to bring out a resolution of disapproval, that might not happen.
If you feel as deeply about it as you seem to, you should try to interest some Senator in introducing such a resloution.
Mr. BARNES. I am not only serious about it, but importing organizations and importers throughout the country have sent to us and I think they have sent to this committee complaints about this very fact.
The CHAIRMAN. Assuming that they are wholly meritorious, still you are not going to get relief unless someone introduces a resolution of disapproval.
Mr. BARNES. I appreciate that fact. That is why I am sorry that there is only a quorum of the brains of this committee present this morning.
The CHAIRMAN. You do exaggerate most pleasantly. Mr. BARNES. There is an alternative to that. After all, I do not feel that we are unreasonable in asking
The CHAIRMAN. I am interested in that alternative now, because we cannot amend this language nor can we insert a provision in it. Mr. BARNES. No; but you can kill it unless it contains this language. The CHAIRMAN. No; the committee cannot. Mr. BARNES. You can report it out.
The CHAIRMAN. We can report it out, but unless a resolution of disapproval is introduced, the plan will go into effect no matter if the committee's report is as black as can be.
Mr. BARNES. I will try to see that a resolution of disapproval is introduced. I only hope that the time within which it can be done does not render it a gesture.
The language I was reading states further: Nothing in this plan or regulations made in connection therewith shall impair, deprive, alter, or curtail the rights which employers' consigneesI am reading this out of the statutehad on May 1, 1949, to notice of appraisement and of liquidation and to a complete, independent judicial review by the customs court arising out of the administration of the customs laws existing on that date.
I take that date because I don't know—and I am pretty sure quite a number of the Members of the Congress don't know—what they intended doing in that reorganization Act of 1949. I am sure that had the perils of this thing been brought to the attention of the Senate when plan No. 26 of 1951 was being considered there would have been no wholesale transfer of all of the rights and duties of all customs officers to the Secretary of the Treasury. That is putting too many eggs in one basket.
Now, in lieu of any other action, and because I still feel that it is the duty of this committee when they find a thing like this existing to take some affirmative action either through individual members or as a committee—and I do not think the citizens should have to go around in the Senate to find somebody to introduce a resolution of disapproval—I think that could come from this committee which knows more about it than anybody else.
The CHAIRMAN. Well, the committee would have to act, though an individual Senator introducing a resolution. Some member of the committee would have to introduce it.
Mr. BARNES. The second thing is this: If the mechanics of this thing render it impossible, the mechanics do not necessarily render impossible the introduction of concurrent legislation containing this reservation of all the rights that Congress has heretofore given for judicial review. It seems to me that that is something again which could be offered by any member of this committee or by the committee, a bill containing the provision that nothing in these acts shall be construed as limiting or impairing the right of importers to judicial review as that right existed in 1949. That is the least we can ask.