novo, except that the finding shall be prima facie of the facts and not subject to attack for lack of supporting evidence unless the evidence offered before the Secretary is produced in the trial. It authorized a trial de novo as in other civil suits for damages with only one exception, and that is, that such findings and orders shall be prima facie of the facts therein stated. It establishes a rule of evidence and does not prevent any defense. Spano v. Western Fruit Growers, 10 Cir., 83 F.2d 150.
It is the contention of American that Runzo, appellant, failed to comply with the provisions of the Act and regulations promulgated by the Secretary, in that Runzo failed to file an answer to the claim of American before the Secretary of Agriculture. This neglect resulted in the Secretary entering default judgment in favor of American and against Runzo.
Pursuant to the provisions of said Act, 7 U.S.C.A. §§ 499f(a) and 499g(a), the Secretary established rules of practice which provided, inter alia, that within twenty days after service of the formal complaint, an answer shall be filed by the respondent and that a failure to file said answer within the time prescribed by the Secretary shall constitute a waiver of hearing and an admission of the facts alleged in the complaint. Section 47.8(a), 47.8(c) Rules of Practice promulgated by the Secretary of Agriculture.
There is no question that the Secretary of Agriculture, being the head of an administrative agency, had inherent power to adopt and promulgate rules of procedure, which have the force and effect of law, providing they are reasonable. Hill v. Federal Trade Commission, 5 Cir., 124 F.2d 104.
The Act makes no exceptions in specifically giving an adverse party affected by the reparation order of the Secretary a right to appeal to the United States District Court. It is necessary to read the Act as a whole to determine the intent of Congress relative to the appeal provisions.
In view of the provisions in the Act which set forth the circumstances under which the Secretary may enter a reparation order, one of which is the failure of the party complained against to answer a complaint, if Congress intended that a right to appeal did not exist, where the Secretary entered a reparation order by default, it would have been so provided.
The motion to dismiss the appeal amounts to an admission of all facts set forth in the appeal. A motion to dismiss must be denied unless it clearly appears that the allegations of fact set forth in the pleading, which is attached, is insufficient to entitle the complaining party to recover. Kroese v. General Steel Castings Corp., 3 Cir., 179 F.2d 760. The motion to dismiss the appeal is denied.
3. Motion to Strike Answer of Runzo to Claim Originally Filed by American With Secretary of Agriculture.
Proceedings on appeal to the federal district court from reparation order of the Secretary of Agriculture under the Act are governed by Federal Rules of Civil Procedure, 28 U.S.C.A., except with respect to the manner of commencement of the proceeding. Login Corp. v. Botner, D.C., 74 F.Supp. 133.
The fact that defenses were not raised in the proceeding before the Secretary of Agriculture, does not preclude a party adversely affected by a reparation order to present any proper defense after the perfection of his appeal to the United States District Court. Ernest E. Fadler Co. v. Hesser, 10 Cir., 166 F.2d 904.
The appeal proceeding clearly sets forth the defense to the action of American against Runzo. The answer filed by Runzo amounts to not more than a re-affirmation of the facts set forth in the appeal.
The Federal Rules of Civil Procedure should be liberally construed in order to bring about a fair and impartial administration of justice. Since the appeal is heard de novo, I believe it proper under the Act to permit an answer to be filed in this court which raises matters to be adjudicated in a trial de novo.
The motion to strike the answer of the appellant in this court is denied.
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