Camp v. Herzog, 4941-51.

• Decision Date: 30 April 1952
• Docket Number: No. 4941-51.,4941-51.
• Citation: 104 F. Supp. 134
• Parties: CAMP v. HERZOG et al.
• Court: U.S. District Court — District of Columbia

104 F. Supp. 134

CAMP v. HERZOG et al.

No. 4941-51.

United States District Court District of Columbia.

April 7, 1952.

Motion for Modification Denied April 30, 1952.

C. E. Rhetts (of Reilly, Rhetts & Ruckelshaus), Washington, D. C., for plaintiff.

A. Norman Somers, Asst. Gen. Counsel, N.L.R.B., Irving M. Herman, Attorney, N.L.R.B., Rosemary Filipowicz, Managing Attorney, N.L.R.B., all of Washington, D. C., for defendants.

MORRIS, Judge.

This action is brought to secure certain relief from an order entered on September 10, 1951, wherein the plaintiff was barred and prohibited from practicing or appearing before the National Labor Relations Board as counsel, attorney, representative or agent for a period of two years from the date thereof, it being alleged that said order is without authority of law. The defendants assert that the plaintiff, while appearing as an attorney at a hearing before a trial examiner at Rankin, Texas, on October 26, 1949, made an unprovoked assault upon E. Don Wilson, who was participating in said hearing as attorney for the General Counsel of the defendant Board. Following the assault, the trial examiner excluded the plaintiff from further participation in the case pursuant to Section 102.44 of the Board's Rules and Regulations, Series, 5, 29 U.S.C.A.Appendix, which provided for the exclusion from the hearing of persons engaged in contemptuous conduct. Upon petition of the General Counsel, the Board issued an order on November 25, 1949, directing the plaintiff to show cause on or before December 8, 1949, why he should not be barred from further practice before the Board, or why the Board should not take other appropriate disciplinary action because of the conduct alleged in the General Counsel's petition. Thereafter the plaintiff brought action in this Court to restrain the Board from proceeding with the hearing, which action was dismissed upon motion upon the ground that the same was premature. Upon appeal, the action of this Court was affirmed. After numerous continuances a hearing was commenced before the Chief Trial Examiner at Fort Worth, Texas, on October 17, 1950, continued through October 19th, and adjourned to Abiline, Texas, where testimony was taken on October 20th. On October 23rd the hearing was resumed and continued at Rankin, Texas, through October 24th. The hearing was completed and closed with the taking of testimony at Washington, D. C., on November 10, 1950. At these hearings testimony of many witnesses was taken relating to the assault made by the plaintiff.

The only controversy as to the facts in the case concerns the provocation on the part of the attorney for the General Counsel which led to the striking of him by the plaintiff, who insists that he was so provoked that he lost control of his temper, which he immediately regretted. The Board considered the assault to be of such character that it required the suspension of the plaintiff as ordered, giving consideration to his previous good record in limiting the disciplinary action to suspension rather than permanent disbarment. One member of the Board considered the penalty too severe; another member of the Board did not consider it severe enough.

I do not consider it to be the function of this Court in these proceedings to weigh the evidence taken at the hearings. Undoubtedly the conduct of the plaintiff was contemptuous and justified the imposition of the sanction which was visited upon him pursuant to the rule of the Board by excluding him from further participation in the hearings in that case. If the Board has the legal power and authority to further discipline the plaintiff by suspension or disbarment from practice before it, I do not believe it can be said that the Board's action in this case was arbitrary and capricious.

The sole issue to be determined in these proceedings is one of law, and that is whether or not the Board has the power to suspend or disbar a person from practice before it, and, if so, has that power been exercised as contemplated by the Congress. Undoubtedly the power to control, by admission and disciplinary action, persons who appear before an administrative agency as representatives of the parties at interest is a highly important one, but it is not, as is the case in judicial courts of general jurisdiction, an inherent power, but is one which, if it exists, is given by the legislative authority creating such agency. The Congress has in many instances specifically provided that certain of the executive departments and administrative agencies shall have control of the admission or enrollment of persons authorized to practice before such department or agency, and in one instance, the Commissioner of Patents, provision is made for statutory judicial review of disciplinary action taken by him. As stated, the power is so important that the Supreme Court, in the case of Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 217, 70 L.Ed. 494, speaking through Chief Justice Taft, said:

"We think that the character of the work to be done by the board, the quasi judicial nature of its duties, the magnitude of the interests to be affected by its decisions, all require that those who represent the taxpayers in the hearings should be persons whose qualities as lawyers or accountants will secure proper service to their clients and to help the board in the discharge of its important duties. In most of the executive departments in which interests of individuals as claimants or taxpayers are to be passed on by executive officers or boards, authority is exercised to limit those who act for them as attorneys to persons of proper character and qualification to do so. Not infrequently, statutory provision is made for requiring a list of enrolled attorneys to which a practitioner must be admitted by the executive officer or tribunal. Act July 7, 1884, 23 St. 236, 258, c. 334 5 U.S.C.A. § 261; Act July 4, 1884, 23 Stat. 98, 101, c. 181, § 5 5 U.S.C.A. § 493; Act June 10, 1921, 42 Stat. 25, c. 18, § 311 31 U.S.C.A. § 52. In view of these express provisions, it is urged that the absence of such authority in case of the Board of Tax Appeals should indicate that it was not intended by Congress to give it the power. Our view, on the contrary, is that so necessary is the power and so usual is it that the general words by which the board is vested with the authority to prescribe the procedure in accordance with which its business shall be conducted include as part of the procedure rules of practice for the admission of attorneys. It would be a very curious situation if such power did not exist in the Board of Tax Appeals when in the Treasury Department and the office of the Commissioner of Internal Revenue there is a list of attorneys enrolled for practice in the very cases which are to be appealed to the board." (Emphasis supplied.)

In that case Goldsmith had sought admission to practice before the Board of Tax Appeals, which had been denied pursuant to rules adopted by the Board, regulating the admission of persons entitled to practice before it, and providing that the Board, in its discretion, may deny admission to any applicant or suspend or disbar any person after admission. The Court stated:

"Our conclusion in this case is sustained by the decision of the Supreme Judicial Court of Massachusetts in Manning v. French, 149 Mass. 391, 21 N.E. 945, 4 L.R.A. 339 382. That was a suit for tort against members of the Court of Commissioners of Alabama Claims for unjustly depriving an attorney of the privilege of practicing before it. The court was given by statute power to make rules for regulating the forms and mode of procedure for the court, and this was held to include the power to make rules for the admission of persons to prosecute claims before the court as agents or attorneys for the claimants. It was pointed out in support of the construction that claimants were not compelled to appear in person to present their claims as the taxpayers are not before the Board of Tax Appeals. The fact that in the Manning Case the body was called a court, and that here the board was an executive tribunal, does not make the decision inapplicable. The Court of Alabama Claims was certainly not a United States court under the third article of the Constitution. It was rather a commission to aid the fulfillment of an international award with judicial powers." (Emphasis supplied.)

It is to be noted that, in the case of Manning v. French, not only did the Congress give the power to the Court of Alabama Claims to make rules for regulating the forms and mode of procedure...