- Congress was principally concerned with preventing adjudication by those who have developed, through investigative or prosecutorial zeal, a “will to win” that is incompatible with objective adjudication, section 554(d) applies only to those employed in the actual investigative and prosecutive branches of the FTC.
- Since attorney-advisors are employed in neither of those branches, the FTC contends that ALJ von Brand is not disqualified by section 554(d);
- attorney-advisors are “precluded only from participating in the adjudication of cases in which they have actually performed such (“investigative and prosecuting”) functions, and in ‘factually related’ cases.” Au Yi Lau v. I. N. S., supra, 181 U.S.App.D.C. at 106, 555 F.2d at 1043;
The position of court was explained by next reasons:
- First crucial reason – “The investigators, if allowed to participate (in adjudication), would be likely to interpolate facts and information discovered by them ex parte and not adduced at the hearing, where the testimony is sworn and subject to cross-examination and rebuttal” Report of the Attorney General’s Committee on Administrative Procedure 50 (1941), S.Doc. No. 8, 77th Cong., 1st Sess. 50 (1941) (footnote omitted).;
- Second crucial reason – “A man who has buried himself in one side of an issue is disabled from bringing to its decision that dispassionate judgment which Anglo-American tradition demands of officials who decide questions.” Senate Judiciary Committee Print, 79th Cong., 1st Sess. 15 (1945), reprinted in Administrative Procedure Act-Legislative History, 79th Congress 1944-46, at 25 (1946) (hereinafter “APA Legislative History”);
- Grolier, who has the burden of proof on the disqualification issue, was rightful and competent to be “obliged either to offer evidence contradicting the sworn statements of the (FTC), or to point out the inadequacy and inconsistency, if any, in the sworn statements” before it will be permitted to subpoena FTC records. R. A. Holman & Co. v. S. E. C., supra, 366 F.2d at 454.
The decision on analyzed case is ORDER SET ASIDE AND CAUSE REMANDED.
615 F.2d 1215 53 A.L.R.Fed. 711, 1980-1 Trade Cases 63,153 GROLIER INCORPORATED, a corporation and American Peoples Press, etc., et al., Petitioners, v. FEDERAL TRADE COMMISSION, Respondent. No. 78-2159. Web. 12 Oct 2011. http://openjurist.org/615/f2d/1215