The question in this case is whether an enforceable cease-and-desist order of the Federal Trade Commission requires the concurrence of a majority of the full Commission, or only of a majority of the quorum that participated in the decision to issue the order.
The Commission has five Commissioners, 15 U. S. C. § 41.
The Federal Trade Commission Act does not specify the number of Commissioners who may constitute a quorum.
The rationale of the Court of Appeals was that the FTC could act only on the concurrence of a majority of the full Commission "absent statutory authority or instruction to the contrary." 358 F. 2d, at 228. The court cited no authority affirmatively supporting that proposition; the court simply rejected—on the ground that it is inapplicable to "a statutorily created administrative tribunal like the Federal Trade Commission," 358 F. 2d, at 229—the rule stated by the Court of Customs and Patent Appeals in Frischer & Co. v. Bakelite Corp., 39 F.2d 247, 255, that ". . . in collective bodies other than courts, even though they may exercise judicial
Insofar as the Court of Appeals' holding implies that the proposition stated by it is the common-law rule, the court was manifestly in error. The almost universally accepted common-law rule is the precise converse—that is, in the absence of a contrary statutory provision, a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body.
Respondent does not undertake to support the Court of Appeals' proposition as stated. Rather respondent concedes that the common-law rule is as we have stated it to be but argues that an exception allegedly recognized at common law in the case of courts should be applied to an agency like the FTC exercising quasi-judicial functions; respondent cites the statement in Frischer, supra, at 255, that "[w]here courts are concerned, it has been uniformly held, so far as we can ascertain, that a clear majority of all the legally constituted members thereof shall concur or no valid judgment may be entered except such as may follow no decision." But even on the doubtful premise that there is an exception in the case of courts,
The Court of Appeals' opinion may be read as having found an implicit contrary declaration because Congress wrote the common-law rule into later statutes creating other agencies: ". . . when Congress wanted to authorize the exercise of the powers of an administrative body by less than the full body in other situations, it did not lack the words to do so expressly. Cf. National Labor Relations Board, 29 U. S. C. § 153 (b); Interstate Commerce Commission, 49 U. S. C. § 17 (1) [sic]; Federal Power Commission, 16 U. S. C. § 792," 358 F. 2d, at 229.
The Court of Appeals seems also to have been of the view that there is a basis for inferring a contrary
Respondent's final argument is that there is a basis for the inference in the action of Congress in 1961 in not disapproving the Reorganization Plan for the Commission submitted by President Kennedy.
The inconsistency in congressional treatment of quorum voting—sometimes allowing agency action on the concurrence of a majority of the quorum, in other cases requiring unanimous concurrence, and in several statutes saying nothing at all—refutes any suggestion that Congress has regarded the problem to be such as to justify a single rule for federal regulatory agencies. Surely, if Congress at any time has regarded the case of the FTC as specially calling for unanimity in quorum voting, we might expect that Congress would have at some time addressed itself to the question during the more than half century of the Commission's existence.
We therefore reverse the judgment of the Court of Appeals insofar as the matter of the Commission's § 2 (c) order was "remanded to the FTC for further proceedings to determine whether a majority of the Commission join in the section 2 (c) findings," and remand to that court with direction to proceed to judgment on the merits of respondent's petition to review and set aside that order.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
In its original version the quorum provision was stated: "Three members of the Commission shall constitute a quorum for the transaction of business." 1 F. T. C. 595 (Rule adopted June 17, 1915). See also Henderson, supra, n. 1, at 71: "The case is then set for oral argument before the full Commission (or at least a quorum of three members) . . . ."
Three courts of appeals have expressed approval of the rule. See Drath v. FTC, 99 U. S. App. D. C. 289, 239 F.2d 452; Atlantic Refining Co. v. FTC, 344 F.2d 599 (C. A. 6th Cir.); LaPeyre v. FTC, 366 F.2d 117 (C. A. 5th Cir.). However, both the Fifth and Sixth Circuit decisions erroneously read the rule as providing, of itself, "for decision by the majority of panels of three members." 366 F. 2d, at 122; 344 F. 2d, at 607.
In addition, respondent cites Paine v. Foster, 9 Okla. 213, 53 P. 109 (1896), 9 Okla. 257, 59 P. 252 (1899). Its holding was, however, predicated on a statutory requirement that three judges of a five-judge court must concur in order to reverse a lower court judgment. See 9 Okla. 257, 259, 260, 60 P. 24 (dissenting opinion).
Congress has prescribed a quorum of six Justices for this Court but has not provided how many of the quorum can act for the Court. 28 U. S. C. § 1. Congress has, however, dealt expressly with the latter matter in the statutes concerning the courts of appeals, 28 U. S. C. § 46 (d); the Court of Claims, 28 U. S. C. § 175 (f) (1964 ed., Supp. II); and the Court of Customs and Patent Appeals, 28 U. S. C. § 215.
The Atomic Energy Commission, 42 U. S. C. § 2031, and the Renegotiation Board, 50 U. S. C. App. § 1217 (b), also are expressly authorized to act on the majority vote of a quorum. The Federal Maritime Commission, 46 U. S. C. § 1111, as amended by Reorganization Plan No. 7 of 1961, on the other hand may act only on the unanimous vote of a quorum. Like the act creating the FTC, the acts creating the Civil Aeronautics Board, 49 U. S. C. § 1321 (c), the Federal Communications Commission, 47 U. S. C. § 154 (h), the Federal Power Commission, 16 U. S. C. § 792, the Securities and Exchange Commission, 15 U. S. C. § 78d, and the Tariff Commission, 19 U. S. C. § 1330 (c), say nothing on the subject. These latter agencies nonetheless act on the majority vote of a quorum and in the cases of the CAB, the FCC, the SEC, and the Tariff Commission, the practice has been judicially approved. Braniff Airways, Inc. v. CAB, ___ U. S. App. D. C. ___, ___, 379 F.2d 453, 460 (dictum); WIBC, Inc. v. FCC, 104 U. S. App. D. C. 126, 128, 259 F.2d 941, 943 (dictum); Gearhart & Otis, Inc. v. SEC, 121 U. S. App. D. C. 186, 189, 348 F.2d 798, 801 (dictum); Frischer & Co. v. Bakelite Corp., supra (Tariff Commission). In the case of the FTC, the practice has been judicially approved in Atlantic Refining Co. v. FTC, supra, and LaPeyre v. FTC, supra. The earliest FTC decision noting the practice is apparently Luria Bros., 62 F. T. C. 243, 646, 655, decided in 1963. The first court challenge to the practice seems to have been that in 1965 in Atlantic Refining Co. v. FTC, supra. Cf. Forster Mfg. Co. v. FTC, 361 F.2d 340 (C. A. 1st Cir.). See generally 35 Geo. Wash. L. Rev. 398 (1966); 80 Harv. L. Rev. 1589 (1967).