The opinion
PRETTYMAN, Senior Circuit
Judge (dissenting).
I agree with my brethren that the granting at this stage of the proceedings of the petitions for leave to adduce additional evidence before the Commission would have several unfortunate results in relation to or affecting administrative procedure. But it seems to me that we are bound by the ruling of the Supreme Court in the Consolidated Edison case. 1 That case involved a petition to review an order of the National Labor Relations Board. In the course of the hearing before the Board the companies, which were the respondents, proffered the testimony of two witnesses, and the hearing examiner rejected the proffer. Before the Court of Appeals the companies contended that this rejection deprived the hearing of its necessary fairness. The contention was pressed in the Supreme Court. That Court said:
“We agree with the Court of Appeals that the refusal to receive the testimony was unreasonable and arbitrary. Assuming, as the Board contends, that it had a discretionary control over the conduct of the proceeding, we cannot but regard this action as an abuse of discretion. But the statute did not leave the petitioners without remedy. The court below pointed to that remedy, that is, to apply to the Court of Appeals for leave to adduce the additional evience; on such an application and a showing of reasonable grounds the court could have ordered it to be taken. § 10(e) (f). 5 Petitioners did not avail themselves of this appropriate procedure.”
The Court declined to sustain the point.
When the Communist Party ease was before us, 3 the point was made by the Party that the Board had denied production of certain memoranda to which the Party claimed it was entitled under the Jencks doctrine. In a memorandum filed in this court by the Board on August 2, 1957, and signed by its General Counsel, its Assistant General Counsel, and an attorney from the Department of Justice, one heading was:
“Petitioner has waived its claim of error by failing to use the exclusive statutory remedy under section 14(a)”
(Section 14(a) of the Subversive Activities Control Act corresponds to Section 10(e) (f) of the National Labor Relations Act and to Section 19(b) of the Natural Gas Act, 4 relating to adducing additional evidence.) In its argument under the foregoing heading the Government said:
“Assuming, arguendo, that the failure to order production of the documents in question was error, petitioner is barred from relief because it has failed to invoke its statutory remedy, section 14(a) of the Act. Substantially the same provision in the National Labor Relations Act (29 U.S.C. 160(e)) and the Federal Trade Commission Act (15 U.S.C. 45(e)) has been held to be an exclusive remedy under circumstances analogous to those here presented. The Supreme Court and several circuits have so held. Not having invoked it, petitioner is now precluded from doing so.”
The Government then discussed the Consolidated Edison case and named nine cases in which it said Circuit Courts of Appeals had so construed the Consolidated Edison case. The Government said that the petitioner’s request in that case for production of the documents fitted *230 squarely into the purposes of the procedure set forth in the statutory provisions mentioned. The Government said, “Petitioner is, therefore, barred from the relief sought on the document questions under Consolidated Edison, and the other eases cited, supra, to the same effect.” We agreed with the argument thus made by the Government and so construed the Consolidated Edison case in our opinion in the Communist Party case. 5 In so doing we pointed to the apparent results of the ruling and said:. “There is much force to these various suggestions, and perhaps we misconstrue the opinion of the Supreme Court. But we are bound by the opinion as we read it.”
Upon reexamination of the question and a re-reading of the cases cited, I am still of the same opinion. It seems to me that the Supreme Court said quite clearly that if proffered evidence is rejected the profferor has an exclusive remedy, which is a motion in the Court of Appeals for leave to adduce the evidence, and if he does not make that motion he cannot raise the point upon a petition to review the final order. In saying that the profferor of the evidence must make such a motion in the Court of Appeals, it seems to me that the Court must have meant that the Court of Appeals must pass upon the motion; it does not seem to me that the Court could have meant that the profferor should merely file the motion as an empty gesture for the record. This latter is the effect of the contention now made to us by the Commission. Its contention is that the motion to adduce additional evidence can only be made when there is both a final agency order and a petition to review that order filed in the Court of Appeals. The motion should then be made to the court, prior to submission of the case on the merits, the court to dispose of the motion either at that point or in reviewing the order of which review is sought. But, absent the specific motion following a petition to review the final agency order, and prior to submission of the case, the profferor of rejected evidence is forever precluded from raising the issue of the admissibility of that evidence. This suggestion on the part of the Commission seems to me to be the suggestion of a wholly meaningless gesture on the part of the profferor of rejected evidence, and I do not think the Supreme Court meant that it was necessary for such an empty gesture to be made. To say that a motion to adduce the evidence must be made to the Court of Appeals, that such a motion can be made only after a final order is entered by the Commission and a petition to review has been filed, but that the point cannot be part of the petition to review and cannot be argued unless a separate motion has been made in such manner and at such time, makes no sense to me.
Since I am writing for myself alone, I feel free to say that I hope the Supreme Court will agree with my brethren and will conclude that I misconstrue the opinion in the Consolidated Edison case.
“5. 29 U.S.C. 160(e) (f) 2
. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 , 59 S.Ct. 206 , 83 L.Ed. 126 (1938).
. Id. at 226 .
. Communist Party of the United States v. Subversive Activities Control Board, 102 U.S.App.D.C. 395 , 254 F.2d 314 (1958).
. 52 Stat. 831 (1938), as amended, 15 Ü.S.C. § 717r(b).
. Supra note 3, 102 U.S.App.D.C. at 403-404, 254 F.2d at 322-323 .