The opinion
SCHNACKENBERG, Circuit Judge
(dissenting).
By this court’s order the rehearing en banc was limited to this question: Does the Court of Appeals have the power and jurisdiction to change a penalty fixed by respondent Secretary of Agriculture, which penalty is within the statutory limits? In effect, Judge Parkinson’s opinion answers this question in the negative. Inasmuch as I find myself in dissent, I deem it essential to state my reasons. The prior proceedings herein are partly set forth in Judge Parkinson’s opinion, supra. His statement in that regard needs the following supplementation and clarification.
1. After retired Circuit Judge Major and I modified the original panel opinion written by Judge Parkinson, over his objection that this court “has no power or right to reduce a penalty imposed by this respondent which is within the statute”, the order for the en banc hearing eliminated Judge Major from further consideration of the case (to which he had been regularly assigned). Thereby, not only his vote, but the benefit of his mature judgment in conference with the other members of the court, were lost. The only reason given for excluding Judge Major at that point was reliance upon 28 U.S.C.A, § 46(c), which reads:
“(c) Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.”
This reasoning, however, overlooks other relevant sections of the statute. They are 28 U.S.C.A. § 294 (b) and § 296, which in their present form were enacted on June 25, 1948, 62 Stat. 901 , which is the same day § 46 was enacted in its present form.
Sec. 294(b) provides:
“Any retired circuit * * * judge may be designated and assigned to perform such judicial duties in any circuit as he is willing to undertake. Designation and assignment of such judge for service within his circuit shall be made by the chief judge *
Sec. 296 provides:
“A * * '* judge shall discharge, during the period of his designation and assignment, all judicial duties for which he is designated and assigned. He may be required to perform any duty which might be required of a judge of the court * * * to which he is designated and assigned.
“Such * * * judge shall have all the powers of a judge of the court, * * * to which he is designated and assigned, except the power to appoint any person to a statutory position or to designate permanently a depository of funds or a newspaper for publication of legal notices.
“A * * * judge who has sat by designation and assignment in another district or circuit may, notwithstanding his absence from such district or circuit or the expiration of the period of his designation and assignment, decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition of applications for rehearing or further proceedings in such matters.” (Emphasis supplied.)
Judge Major, being willing to undertake the judicial duties to which he was assigned, sat on the three-judge panel which decided the case at bar and he concurred in the opinion of the court and the panel’s modification of the order entered by the respondents. The designation and assignment to hear this case had not expired when a rehearing en banc was ordered and will not expire until this case is finally disposed of in this *306 court, because § 296 makes it clear that he may be required to perform any duty which might be required of a judge of this court, and certainly that would include participating in the final action on a petition for rehearing in this case. That function is included in the language of the second paragraph of § 296, which is to the effect that such a designated and assigned judge “shall have all the powers of a judge of the court, * * * to which he is designated and assigned”, with cexiain irrelevant exceptions. Moreover, the third paragraph of § 296 is clear that, even if he were designated to sit in another circuit, neither his absence from said circuit or the expiration of the period of his designation and assignment would deprive him of the power to “decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition of applications for rehearing or further proceedings in such matters.” (Emphasis supplied.) A fortiori, Judge Major, having been designated and assigned to sit in his own circuit, the Seventh, does not have less power than if he had been designated and assigned to sit in another circuit.
W'e are not justified in attributing to congress an intention, by § 46, to prevent a judge, who actively sits on the panel which decides an appeal, from participating in an en banc hearing on a petition for rehearing, the object of which is to overturn a major part of the panel’s decision. A reading of both § 294(b) and § 296, in conjunction with § 46, dispels any such legislative intention. The only reasonable construction which can be given to the entire pertinent legislative language, in its application to this case, is that the designation and assignment of Judge Major to this case bestowed upon him the duty of acting as a judge therein and in the consideration and disposition of such applications for rehearing as have been or will be filed therein. It would be incredible that congress intended that an experienced and capable retired judge, who voluntarily accepts an assignment to hear a case in his own circuit and in the decision of which he has joined, should be excluded from the consideration of a petition for rehearing thereof, whether or not it is to be heard by the original panel of which he is a member or the court sitting en banc. Such a result would be incongruous and contrary to common sense. Even if it could be urged that this construction involves a “sacrifice of literalness for common sense,” I call attention to the apt language of Justice Douglas in Textile Mills Securities Corp. v. Com’r, 314 U.S. 326, 334 , 62 S.Ct. 272, 277 , 86 L.Ed. 249 , where he said:
“ * * * any sacrifice of literalness for common sense does no violence * * *. Certainly, the result reached makes for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases. Such considerations are, of course, not for us to weigh in case Congress has devised a system where the judges of a court are prohibited from sitting en banc. But where, as here, the case on the statute is not foreclosed, they aid in tipping the scales in favor of the more practical interpretation.”
To me, the legislative intent in enacting § 46 was to prevent the overturning of a panel decision by the loading of the court on an en banc hearing by bringing in a number of retired judges who had not been members of the original panel. That intent is based upon- an obviously sound purpose, but the section should not be extended beyond that objective.
The views herein expressed find support in United States ex rel. Paetau v. Watkins, 2 Cir., 164 F.2d 457 . There Justice Holtzoff of the District of Columbia was designated to sit in the District Court for the Southern District of New York. His first ruling was to amend *307 the warrant of deportation there involved. He thereafter granted respondent’s motion for reargument, and, after further hearing, changed his holding to agree with respondent and dismissed the writ of habeas corpus. It was held, at page 460, that, although his designation had already expired when he granted re-argument, he was the proper judge to hear same. The court in a footnote cited Frad v. Kelly, 302 U.S. 312, 316 , 58 S.Ct. 188, 191 , 82 L.Ed. 282 , where the Supreme Court said:
“When an assigned judge has presided at the trial of a cause, he is to have power, though the period of his service has expired, and though he may have returned to his own district, to perform the functions which are incidental and supplementary to the duties performed by him while present and acting in the designated district. And where a cause has been submitted to him in the designated district, after his return to his own district he may enter decrees or orders and file opinions necessary to dispose of the case, notwithstanding the termination of his period of service in the foreign district. * * * ” (Emphasis supplied.)
I believe that Judge Major is entitled to participate in this case until its final disposition in this court.
2. Judge Parkinson’s opinion reveals no disagreement among members of the court as to the harshness of the penalty imposed by the administrative agency,— but disagreement only as to the court’s power to restrain the agency when it seeks to inflict an unreasonable and harsh penalty. Here Judge Major and I have relied upon the heretofore undisputed power of courts to protect citizens from such a penalty. This court has exercised its jurisdiction to review the sanctions imposed by the Secretary of Agriculture, under the Packers and Stockyards Act, in Daniels v. United States, 7 Cir., 242 F.2d 39 . Chief Judge Duffy, who wrote the court’s opinion in that case, did not in any way indicate that this court had no power to pass upon a contention that the sanctions imposed by the Secretary of Agriculture were excessive. Instead he proceeded, at page 42, to review the facts in the record bearing upon that contention and came to the conclusion that the record supported the sanctions imposed.
Traditionally, courts who find their historical roots in Anglo-Saxon jurisprudence have always been alert to strike down harsh or excessive penalties.
Legislatively, congress has expressly bestowed upon this court power to “modify” orders of the administrative agency here involved. 7 U.S.C.A. § 9 provides:
“After the issuance of the order by the Secretary of Agriculture, as aforesaid, the person against whom it is issued may obtain a review of such order or such other equitable relief as to the court may seem just by filing in the United States court of appeals of the circuit in which the petitioner is doing business a written petition praying that the order of the Secretary of Agriculture be set aside. * * * the court shall have jurisdiction to affirm, to set aside, or modify the order of the Secretary of Agriculture, * (Italics supplied.)
Both Judge Parkinson and the respondents have mistakenly relied upon Federal Trade Commission v. C. E. Niehoff & Co., 355 U.S. 411 , 78 S.Ct. 377 , 2 L.Ed.2d 370 , which held, in a Federal Trade Commission case, that we were correct in our holding, 7 Cir., 241 F.2d 37 , at page 42, where we said:
“The commission takes the position that it has no power to stay compliance with its order. It relies upon a part of section 11 of the amended Clayton Act, contending that it has no discretion as to the enforcement of the law. It fails to cite that part of section 11 which provides that the commission ‘shall issue * * * an order requiring such person to cease and desist from such violations * * * within the *308 time fixed by said order.’ * * * It is our opinion that this statutory language vests in the commission power to postpone the time at which an order is to take effect.” (Italics supplied for emphasis.)
It is true that, in order to induce the Federal Trade Commission to seek a review in the United States Supreme Court in the Niehoff ease, we modified the Commission’s order sua sponte, in view of the Commission’s assertion that it had no power to stay compliance with its order. The Commission thereupon took the case to the Supreme Court which inter alia sustained our holding that the Commission did have such power. It is apparent, therefore, that the Supreme Court agreed with us that the Commission had power to postpone the date for compliance with its order and that the Commission was mistaken in its stated position that it did not have that power. That was the principal question involved in the Niehoff case, as we had held that we would affirm the Commission’s order on the merits.
Judge Parkinson’s opinion in the en banc proceeding avoids the language of 7 U.S.C.A. § 9 , supra, as to our power to grant “such other equitable relief as to the court may seem just” and our power to “modify the order of the Secretary of Agriculture”, by simply not mentioning it. Why this crucial language in the statute is swept under the rug is not explained. Judge Parkinson does not in any way explain why the panel’s changing of the order of the Secretary of Agriculture, by reducing the penalties imposed on G. H. Miller and Company and Gilbert H. Miller, did not amount to a modification of the order, as is expressly authorized by the Act. He has ignored the Act in that critical aspect. It would be interesting if Judge Parkinson or counsel for the Secretary of Agriculture had stated what the words “modify the order” mean. Do the words bestow upon this court the mere power to “cross the t’s and dot the i’s” in an agency’s order? Judge Parkinson instead emphasizes the statutory grant of power to the agency to “revoke” a license. 1 Our cleavage is over the question of our power — not the power of the agency. Here we have express authority to affirm, set aside or modify the administrative order, and to grant equitable relief as to us may seem just. Those are the words of congress. While congress has adopted a policy which recognizes the usefulness of a system of administrative agencies, it has seen the need for judicial control of such agencies, which usually exercise the multiple functions of instigating proceedings, gathering evidence, as well as prosecuting and acting as judges of those proceedings. Moreover, most Americans realize the need for judicial control because they see in the history of commissions and other administrative agencies no proof that they are infallible. The majority opinion would sustain in all cases the most severe penalty which the agency may be authorized by congress to impose in the most aggravated case, taking the position that we are powerless to restrain such abuse of authority. The mere statement of such a doctrine exhibits its utter speciousness.
While this is an obscure case, it is one which will shock all observers of the American scene, when its full import is realized. It marks a court’s retreat from a long-established line of defense. The publication of the court's opinion will emerge as an outright abdication of a judicial protection upon which our citizens have hitherto justifiably and proudly relied.
In a nutshell we have here a situation in which an agency has imposed upon two citizens what is virtually economic death. To review the harshness of this action they came to the court designated by congress to review the agency’s decisions. They are met by a refusal by that court to perform its function in this regard. Asserting its impotence, it ab *309 dicates its functions and leaves the citizens remediless.
The action of the original panel in modifying the order of the Secretary of Agriculture, as to the penalty imposed, was correct.
. 7 U.S.C.A. § 9 . It will be noted that this section does not require a revocation. Other alternatives are provided.