The opinion
On Petition for Rehearing
SCHNACKENBERG, Circuit Judge.
On their petition for rehearing, G. H. Miller and Company and Gilbert H. Miller, petitioners, ask us to modify the disciplinary order entered against them by the Secretary of Agriculture.
The penalties imposed by the Secretary are- too harsh. I would modify said order so as to reduce the penalty imposed on Miller and Company so that its registration as a futures commission merchant would be suspended for six months rather than revoked, and the registration of Gilbert H. Miller as a floor broker would be suspended for a period of six months rather than revoked; and further that both of said petitioners be prohibited, directly or indirectly, from *291 trading speculatively on any contract market for a period of one year, and that during said period futures contracts may be executed providing they are clearly bona fide hedges against the cash commodity actually possessed by G. II. Miller and Company or Gilbert H. Miller, and all contract markets shall refuse to said G. H. Miller and Company and Gilbert H. Miller the right to so trade speculatively on their exchanges for a period of one year.
Our right to make such modifications has not been challenged by respondents. Counsel for respondents notified the clerk of this court that no reply would be filed to the petition for rehearing “inasmuch as” it consists “merely of a reargument of the issues which have been previously briefed and argued”.
As to other points presented in the petition for rehearing, I vote to deny the same.
MAJOR, Circuit Judge.
I agree with Judge SCHNACKEN-BERG that the penalties imposed in this matter are too severe. I agree with his opinion on the petition for rehearing and vote to deny under the same conditions as he has.
PARKINSON, Circuit Judge.
The petition for rehearing should be denied.
This court has no power or right to reduce a penalty imposed by the respondent which is within the statute. In the case of Moog Industries v. Federal Trade Comm. (Federal Trade Commission v. C. E. Niehoff & Co.), 355 U.S. 411 , 78 S.Ct. 377, 379 , 2 L.Ed.2d 370 , the Supreme Court reversed this court for changing a forthwith cease and desist order to take effect at a future time and held as follows:
“In view of the scope of administrative discretion that Congress has given the Federal Trade Commission, it is ordinarily not for courts to modify ancillary features of a valid Commission order. This is but recognition of the fact that in the shaping of its remedies within the framework of regulatory legislation, an agency is called upon to exercise its specialized, experienced judgment.”
Accordingly we have no right to substitute our judgment for that of the respondent. The penalty affixed by the respondent was within the statutory limits. Whether we believe it to be too severe or otherwise is not within our power to determine.
To paraphrase the language of the Supreme Court in Niehoff the respondent alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress.
I would deny the petition for rehearing.