COMBINING OF LIKE COMPLAINTS

Senator PASTORE. Let's assume, Judge, that throughout the country in different ports of entry you had, let's say, 50 importers who raised the question of the constitutional legality of the surtax. In that particular case the surcharge rather-would you have the authority under the procedures to join the 50 together?

Judge BOE. This could be done.

Senator PASTORE. That can be done now?
Judge BOE. Yes.

Senator PASTORE. That would facilitate it; wouldn't it?

Judge BOE. Yes. In other words, where you do have the same issues and matters of that character, you can join the cases and we also have the facility of consolidating cases where you have the same attorneys, and the same issues and the same subject matter.

You can consolidate several of these. But where you have different attorneys and different plaintiffs, these also can be joined for the purpose of a joint trial.

Senator HRUSKA. In those cases it is often the same kind of merchandise. Under the old system they tried each of these separately, yet, the issues were exactly the same.

With respect to the 100,000 cases abandoned or dismissed, that October 1 rule was really the equivalent of calling the docket; wasn't it? In the old days in my county courthouse, the presiding judge would bring out those great big Philadelphia ledgers. In every case that was more than 2 years old, he summoned the bar there and had a grand meeting. The fellow who couldn't justify a case that was 2 or 3 years old was off the docket.

Will a calling of the docket be held from time to time to get rid of stale cases or can you keep up with it on a contemporaneous basis? Judge BOE. Every month, let's just refer back. As of October 1, 1970, there were approximately, as I indicated, 177,000 cases. Under the rule of the Court, as established pursuant to the new 1970 act, the Court said these 177,000 cases automatically are going to go into what we call an October 1970 reserve file. They may stay there for 2 years. Now Mr. Jones or Mr. Smith, who are representing these plaintiffs, "It is up to you to take such action under the rules, under the law as you deem proper. You have got 2 years to do so. Otherwise, they will be dismissed."

Now comes November 1970. You have those cases which were filed in the month of November 1970 and you would give them 2 years for disposition. In other words, we have every month a reserve file coming due. But the big bulk, of course, was the October 1970 one, where we transformed the old law into the new. But we, so to speak, as you say, do call the docket that way every month. Senator HRUSKA. In monthly segments?

Judge BOE. Yes.

Senator PASTORE. But much of the fault, as I understood you, has been with the Attorney General's Department. They have been asking for more time to answer complaints.

Judge BOE. No. You probably misunderstood me there, Mr. Chairman. October 31, 1972, was the due date. Plaintiffs had to file complaints or move for extensions. We have a flood of papers coming in.

FLOOD OF COMPLAINTS IN A FEW MONTHS

We had a total of 13,000-plus complaints coming in. It is a tremendous task over a period of just a few months to analyze each one of those complaints and respond with a proper answer that will protect the government. These complaints have been coming in, because there have been meritorious reasons for extensions given to the plaintiffs as to why they didn't get them in by October 31.

Really the government has been doing everything possible, the Civil Division of the Attorney General's Office, as I said, sent up a special task force, to New York to assist the Division there. Just for the purpose of aiding and assisting the Custom Bureau, the Treasury Department has put in a task force. Their office is in New York.

So I think we are getting the fullest cooperation.

Senator PASTORE. I didn't mean that they deliberately were lacking in cooperation. Sometimes it is a matter of manpower. I was just wondering what you meant when you said a request was made for a postponement and that you granted it.

Judge BOE. I must say that it was humanely impossible to respond and answer the volume of complaints within a 60-day period which they ordinarily would have for answer. This way we are going to insure that a proper attention is being given.

Let me say this, in so doing they are also exploring each individual case so that if there is merit in submitting to the court an agreed statement of facts for settlement, they will do so which will again avoid the necessity of having to come to trial.

A comparison of the 100,000 cases terminated by our court during the past year with the number of civil actions pending in all of the U.S. district courts throughout the country is interesting and instructive. According to the last annual report of the Director of the Administrative Office of the U.S. Courts, there were 100,000 civil cases pending in the 94 district courts. Thus, our court has disposed of that many cases in less than 1 year.

So there is no misunderstanding, I don't wish to compare the cases in district courts with our Court. I am speaking here particularly with the administrative and the clerical force and work that is necessary in disposing of the paperwork, particularly with these cases.

EXPANDED ACTIVITY OF COURT

The court has been advised of the results of a survey made by the Department of Justice with respect to the recently filed complaints. This information shows that there presently is pending in excess of 500 triable issues, which would indicate a projection of 3 years of trial work-based upon an average of 200 trials a year prior to October 1970.

We further have been advised that the Civil Division of the Department of Justice has assembled a task force of assistant U.S. attorneys from throughout the country to come to New York, together with necessary clerical assistants to work with the local customs section, Civil Division, Department of Justice. We have also been advised that the Customs Bureau has sent a task force of attorneys and clerical assistants to New York to work in the office of the Assistant Chief Counsel, Customs Court Litigation, Department of the Treasury.

The national policy points to the continued expanded activity of this Court. The recent relaxation of trade restrictions with the Soviet Union and the People's Republic of China is certain to increase importations from these countries, which importations, undoubtedly, in time, will result in an increased number of disputes between importers and the Customs Bureau.

As is well known to the members of this committee, President Nixon proclaimed, on August 15, 1971, the imposition of a 10 percent surcharge on all dutiable imports. The President removed the surcharge on December 20, 1971. This supplemental and cumulative duty of 10 percent ad valorem while in effect applied to approximately 50 percent of all goods imported into the United States.

It appears that as many as 500,000 protests may have been filed throughout the country challenging the validity of the imposition of the surcharge. We understand that during the period it was in effect the surcharge resulted in the collection of approximately $500 million in supplemental duties.

This has sometimes been indicated even up to three-quarters of a billion dollars and more. We do not know exactly at this point.

An action challenging the President's authority to impose the surcharge and seeking recovery of the amount collected has been instituted in our court. Because of the significance of the issue involved in this test case, it is certain that appeals will be pursued through the Court of Customs and Patent Appeals to the Supreme Court of the United States.

Pending the final resolution of the issue, importers involved in the hundreds of thousands of protests filed against the imposition of the surcharge can be expected to institute actions in this Court.

PERSONNEL MANAGEMENT SYSTEM

Separate and apart from the workload of the Court, but relevant to our budgetary requirements, are the actions taken by the Court concerning its employees. During the past calendar year, it became apparent to the members of the Court, that our personnel management system was in need of a critical examination and restructing.

Toward that end, after several months' study, the Court adopted an entirely new personnel management system. Included as part of the new system was a complete reorganization of our administrative and clerical activities.

With particular regard to the personnel situation, the Court established, and is supervising, an appointment and promotion system predicated on merit and ability. Position descriptions specifying the duties of the employee seeking to fill the position have been prepared for the offices of the Clerk and Marshal.

Our Clerk and Marshal have been assigned strict accountability for the proper implementation of the new system under the supervision of the Chief Judge and subject to the approval of the Court. The extraordinary efforts of our employees in recent months are in large part, I believe, attributable to the new personnel management system. I should also like to advise the committee of the budgetary actions taken by the Court concerning the moneys appropriated for the current fiscal year.

For the fiscal year 1973, we requested $2,455,000, including $100,000 required for the Federal Salary Act pay increase effective in January 1972. The House of Representatives provided for an appropriation of $2,241,000, or $214,000 below the amount requested.

We were advised by the Administrative Office of the U.S. Courts that, pending final determination of our budgetary requests by both Houses of Congress, we were required by law to assume that no more than the amount provided by the House of Representatives would be available and, consequently, we were required to apportion that amount as of July 1, 1972.

Accordingly, the court, at special meetings held in May and June, approved reapportionments necessary to absorb the $214,000 reduction. The major reductions were made in the line items categories for travel, personnel compensation, and personnel benefits. Travel was reduced from $55,000 to $30,000. Personnel compensation was reduced by $175,000, from $2,145,000 to $1,970,000. Personnel benefits were reduced by $14,000, from $161,000 to $147,000.

To absorb the reduction in the amounts available for personnel compensation and related benefits, the court reduced the number of authorized budget positions from 136 to 128, and adopted a new budgeted positions structure to reflect the reduction.

The effect of the appropriation reduction on the continued employment of our personnel fortuitously was minimized to some extent by a number of retirements prompted by the 4 percent cost-of-livingincrease benefit given to employees who retire on or before July 1,

1972.

However, it was still necessary to place four employees on a leavewithout-pay status pending a determination of our request for the restoration of $100,000 of the $214,000 reduction provided by the House. When the requested restoration was received-I wish to express the gratitude of our court to this committee in so doing-the four employees thereupon were invited to return to a pay status and they are in such a status now.

NO INCREASED APPROPRIATION SOUGHT

Despite the projected increased workload for the next fiscal year, resulting in part from the filing of approximately 13,000 complaints relating to actions in the October 1970 reserve file in addition to the customary volume of complaints filed in connection with newly instituted actions, the court seeks no increased appropriation for the fiscal year 1974.

The court is aware of the belief of this committee that the appropriation of funds from the Public Treasury in turn requires the most efficient and economical administration. We sincerely hope that our efforts during the past year have evidenced an equal concern and interest in this objective, which will merit your continued understanding and support.

We thank you for the opportunity to appear before you today. Senator PASTORE. As I get it, your request this year is the same as last year which includes the restoration of the $100,000?

Judge BOE. Yes; which includes the restoration of the $100,000, which was granted upon our application.

Senator PASTORE. Excuse me. It is $114,000 less than the budget estimate of last year.

Judge BOE. In addition, we can absorb within-grade salary advances that would be made in fiscal 1974.

Senator PASTORE. What is the present authorized strength of the court?

Judge BOE. 128.

Senator HRUSKA. Are they all on board?

Judge BOE. We have a few vacancies. We have two law assistants, we have one librarian who has just left, last Friday, and we are filling that position this month.

Senator PASTORE. You have all nine judges aboard?

Judge BOE. All nine judges.

Senator HRUSKA. This came 20 years too late.
Senator PASTORE. Thank you very much.

Judge BOE. We certainly appreciate your efforts.