author: J. SKELLY WRIGHT, Circuit Judge:

text:
    Constancia A. Vda de DAYLO v. ADMINISTRATOR OF VETERANS’ AFFAIRS, Appellant
    No. 71-1241.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 19, 1973.
    Decided June 26, 1974.

      David V. Seaman, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, was on the brief, for appellant.
    Harold J. Nussbaum, Washington, D. C., for appellee.
    Before FAHY, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.
   J. SKELLY WRIGHT, Circuit Judge:

The Administrator of Veterans’ Affairs appeals denial of his motion, under Rule 60(b), Federal Rules of Civil Procedure, for relief from a final, unap-pealed judgment in the nature of mandamus ordering him to pay certain death compensation benefits to appellee Daylo, the widow of a serviceman killed in World War II. The Administrator grounds his motion on certain veterans’ legislation, Section 8(a) and (b) of the Act of August 12, 1970, 38 U.S.C. §§ 211(a) and 3111 (1970), enacted after the final judgment became unappealable. If, as the Administrator contends, these provisions aim to upset judgments, like Mrs. Daylo’s, which are final, no longer subject to appeal, and concerned with past legal and factual relationships, the provisions are of dubious constitutionality. Wherever such is fairly possible, we must construe congressional enactments so as to preserve them from constitutional doubt. Reading the language of these enactments against their legislative history, we are not persuaded that Congress intended to disturb judgments like Mrs. Daylo’s. Accordingly, denial of the Administrator’s motion for relief from the judgment was proper, and it is affirmed.

I

From 1945 to 1951 the Veterans’ Administration (VA) paid widow’s benefits to Mrs. Daylo under 38 U.S.C. § 321. In 1951, however, the Administration notified her that benefits would cease unless she could prove that she had “not remarried” — a statutory condition of eligibility. This action conformed to the VA’s administrative practice of shifting the burden of proof on the remarriage question to any widow-beneficiary living with another man and holding herself out to the community as his wife. Mrs. Daylo sought to prove she had not remarried, but the Administrator found otherwise and terminated her benefits.

In no other circuit but ours would this controversy have found its way into the courts. Since 1940 benefits disputes had been subject to a “no review” statute which, until its amendment in 1970, provided that decisions of the Administrator

on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.

38 U.S.C. § 211(a) (1964). The view developed in this circuit, but in no other, that the phrase “claim for benefits or payments” referred not to all benefits disputes but only to those involving initial benefit claims. It was our lonesome opinion that judicial review remained for disputes involving termination of benefits by the VA.

Needless to say, this position brought us a great deal of business. Many of these cases involved the VA’s practice, in administering widows’ benefits, of shifting the burden of proof on the remarriage question to the beneficiary. We were unable to find statutory authority for the practice. See Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959). In 1962 Congress entered the dialogue by amending 38 U. S.C. § 101(3) to provide that a “widow,” to be eligible for benefits, must not have “lived with another man and held herself out openly to the public to be the wife of such other man." By establishing a hard and fast rule this amendment went beyond the VA’s own practice of merely shifting the burden of proof as to ceremonial remarriage. Recognizing this, Congress expressly gave the 1962 amendment prospective effect only. But the Senate Committee reporting out the amendment stated its understanding that the VA could apply its burden-shifting rule to instances of alleged remarriage occurring prior to 1962. This understanding, having no statutory force, was not adopted by the courts in this circuit.

With this background, we may again pick up the thread of Mrs. Daylo’s story. In 1969 she brought a mandamus action in the District Court to compel payment of the death compensation benefits denied her since the early 1950’s. On May 7, 1970 the court granted partial summary judgment for Mrs. Daylo “with respect to benefits payable prior to September 19, 1962” (i.e., prior to the amendment, mentioned above, of 38 U.S.C. § 101(3)). The post-1962 claims were reserved for later decision, but the District Judge made the partial judgment final and appealable under Rule 54(b). The judgment required the Administrator to pay Mrs. Daylo her pre-1962 benefits “within 120 days.” Deliberately, but for reasons not vouchsafed to us, the Government chose not to appeal Mrs. Daylo’s judgment.

After the 60-day period for noting appeal had lapsed, but still within the “120 days” granted by the District Court to the VA for compliance, Congress passed the Act of August 12, 1970, Pub.L. 91-376, 84 Stat. 787. Armed with this legislation, the Administrator moved under Rule 60(b) for relief from the judgment. Mrs. Daylo resisted the motion, but has not yet invoked court process to force compliance with the judgment. The court agreed to dismiss Mrs. Daylo’s pending claims for post-1962 benefits, which decision Mrs. Daylo does not contest, but the court refused to vacate the final judgment involving pre-1962 benefits because it “was legally entered and no appeal was taken therefrom, and * * * the validity of that judgment is unaffected by the passage of Public Law 91-376.”

II

The Administrator contends that Section 8(a) and (b) of the new Act directly conflicts with Mrs. Daylo’s judgment in the nature of mandamus. Section 8(a) retroactively amended the “no review” statute, 38 U.S.C. § 211(a), to erase the distinction, located by this circuit alone, between initial benefit claims and benefit terminations. The “no review” provision now reads:

On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.

Section 8(b) added a new provision, 38 U.S.C. § 3111, to ratify the VA’s burden-shifting rule with respect to pre-1962 instances of alleged remarriage.

There shall be no payment of dependency and indemnity compensation, death compensation, or death pension which, because of a widow’s relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans’ Administration under the standard for determining remarriage applied by that agency before said enactment.

In the Administrator’s view, 38 U.S.C. § 211(a) conflicts with Mrs. Daylo’s judgment by retroactively withdrawing the jurisdiction of the court which entered the judgment, thus rendering the judgment void. The Administrator finds a second conflict with the judgment by construing 38 U.S.C. § 3111 as a legislative command directly contrary to the mandamus incorporated in the judgment. According to the VA, the court’s mandate requires exactly that which the statutory provision forbids, i. e., “payment of * * * death compensation * * * which, because of a widow’s relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans’ Administration under the standard for determining remarriage applied by that agency before said enactment.”

The Administrator’s several contentions go an important step further than those considered, and accepted, in de Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, cert. denied, 409 U. S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972). There, judgment had been entered in the District Court against the VA in a benefits dispute, and the VA had appealed only the accompanying award of attorneys’ fees, allowing the judgment for the beneficiaries themselves to become final. While the appeal of the fee award was pending here, Congress enacted the amendment to 38 U.S. C. § 211(a), and the Administrator urged that the fee award accordingly be vacated on jurisdictional grounds. Recognizing that judgments awaiting decision on appeal are not “final,” we agreed:

* * * We cannot reconcile the specification in the amended section of a date almost 30 years earlier with any notion that Congress intended these proscriptions to apply only to litigation commenced from the date of amendment forward. We see no purpose to be served by reaching back to the effective date of the older finality statute than to impart to it a meaning Congress felt it should always have had. That objective could be achieved only by intercepting noncontractual claims already in court as well as those that had not arrived, and that is obviously what Congress' did. We hold that Section 211(a) in amended form was directed at pending as well as future judicial reviews of the Administrator’s determinations on claims for noncontractual benefits.

149 U.S.App.D.C. at 163-164, 461 F.2d at 1249-1250 (emphasis added). We took pains to restrict this holding to judgments pending appeal.

We agree that the judgments exclusive of the fee awards — that is, the portions directing payment of benefits to the widow-claimants — are beyond the purview of these appeals. Those portions are adjudications by the District Court that became final, because they were not appealed, before the change in Section 211(a) was forthcoming. Nothing we can do on the present appeals can affect them, and nothing we say now is intended to reflect upon them. * * *

149 U.S.App.D.C. at 160, 461 F.2d at 1246. We were also careful to point out the many constitutional “holdings that a change of law does not retroactively affect a proceeding which has already been terminated by a final judgment prior to the change.” 149 U.S.App.D.C. at 166, 461 F.2d at 1252.

If, as the Administrator asserts, Sections 211(a) and 3111 aim to upset final judgments no longer subject to appeal, we are confronted with a serious constitutional dilemma. The applicable general rule is of long standing:

* * * It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. * * *

McCullough v. Virginia, 172 U.S. 102, 123-124, 19 S.Ct. 134, 142, 43 L.Ed. 382 (1898). A contrary general rule would subject all judicial action to superior legislative review, a regime obviously inconsistent with due process of law and subversive of the constitutional independence of the judicial branch of government. We recognize that there are exceptional circumstances where final judgments may be upset or altered by subsequent legislation, but we have great difficulty fitting Mrs. Daylo’s judgment within the established exceptions to the general rule.

In the seminal case, State of Pennsylvania v. Wheeling & Belmont Bridge Co. {Wheeling Bridge Case), 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855), the Supreme Court held that Congress could retroactively legalize a bridge, built over an interstate waterway, despite a prior judicial decree ordering that the bridge be raised or removed to permit passage of shipping. The decree had been won by a private party alleging that this obstruction of commerce caused him special damage for which there existed no adequate remedy at law. The Court, in vacating the decree, accepted “as a general proposition, * * * especially as it respects adjudication upon the private rights of parties,” that legislation “cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff.” Id. at 431. But the Court distinguished the case before it “so far as it respects that portion of the decree directing the abatement of the bridge.” Id. The judgment was vulnerable to retroactive legislation only to the extent that the remedy chosen — an injunctive decree rather than damages at law — directly affected public rights. Accordingly, the award of costs to the plaintiff which had accompanied the decree was left undisturbed by the Court. Id. at 436. This emphasis upon remedies chosen was reaffirmed in The Clinton Bridge, 77 U. S. (10 Wall.) 454, 19 L.Ed. 969 (1870), which held that an enactment validating the legality of a bridge required dismissal of a pending suit in equity to have the bridge removed but might not similarly require dismissal of a pending suit at law for damages occasioned by the bridge.

In Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819 (1923), it was held that legislation could validate consolidation of a school district despite a prior decree enjoining the consolidation:

[A] suit brought for the enforcement of a public right * * * even after it has been established by the judgment of the court, may be annulled by subsequent legislation and should not be thereafter enforced; although, in so far as a private right has been incidentally established by such judgment, as for special damages to the plaintiff or for his costs, it may not be thus taken away.

Id. at 603-604, 43 S.Ct. at 436. In System Federation v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961), the Court held that amendment of the Railway Labor Act required modification of a consent decree, entered under the original Act, which had permanently enjoined a labor union arrangement expressly legalized by the amendment.

There is * * * no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. * * *

Id. at 647, 81 S.Ct. at 371. See Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 S.Ct. 552, 85 L.Ed. 836 (1941), and United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Finally, in McGrath v. Potash, 91 U.S.App.D.C. 94, 199 F.2d 166 (1952), there was at issue the continuing validity of a final decree requiring that certain private litigants not be deported except by procedures set out in the Administrative Procedure Act. Subsequent to entry of the injunctive decree, Congress had expressly exempted deportation proceedings from that Act. We vacated the decree, “[t]he statutory basis for the injunction having been removed by Congress.” 91 U.S.App.D.C. at 96,199 F.2d at 167.

Mrs. Daylo’s judgment, like those upset by legislation in these earlier cases, had a prospective effect in that the Administrator was given “120 days” in which to comply. But this crude resemblance can hardly be considered dispositive. An award of damages at law, which all authorities'agree is immune from legislative alteration, is also “prospective” to the extent that compliance by the judgment debtor may be less than instantaneous. Like an action for damages, a mandamus action sounds in law, not equity, and when the mandate calls merely for payment of a past obligation, it can be distinguished from a conventional money judgment only on the most formal of grounds. No case has yet held that a judgment is vulnerable to legislative annullment merely because the judgment had not yet been complied with when the legislation was enacted. Rather, such vulnerability would seem to depend on the character of the compliance called for. Thus, in Wheeling Bridge Case, supra, The Clinton Bridge, supra, Hodges v. Snyder, supra, and System Federation v. Wright, supra, the judicial decrees at issue called for actions which would have directly affected the rights of many persons not privy to the judgments, i. e., would have trenched upon “public rights.” In McGrath v. Potash, supra, the decree was addressed only to the parties to the litigation but it did purport to freeze their legal relations for the indefinite future: The immigration authorities were required to use a complex set of procedures in any future attempt to deport the plaintiffs. What appears to unite these cases is that the injunctive decrees at issue were “legislative” in function, attempting to control the legal status of a variety of future actions which the parties, or others, might or might not wish to take.

The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative.

United States v. Swift & Co., supra, 286 U.S. at 114, 52 S.Ct. at 462. The mandamus issued in the present case does not serve “legislative” functions. No more than would a money judgment does this mandamus speak to the VA’s future relations with Mrs. Daylo, or with any other claimant, concerning as yet undecided benefits disputes. Nor is the mandamus directed at Mrs. Daylo’s right to future benefits and thus at facts and conditions “provisional and tentative” in nature. The mandamus was issued entirely on the basis of events long since concluded. Like that of a money judgment, the force of the mandamus is self-terminating upon a single act of compliance; the VA is not bedevilled here by continuing judicial supervision or a “permanent” decree.

In sum, to hold that Congress could annul Mrs. Daylo’s judgment would be to enlarge substantially the exception carved by applicable precedent in the general, constitutional rule that rights vested in final judgments, no longer subject to appeal, are immune from legislative alteration. Thus, were we to accept the VA’s construction of 38 U.S.C. §§ 211(a) and 3111, serious doubts would arise as to the constitutionality of those provisions. Where there exist “serious questions concerning the constitutionality” of legislation, “it is a cardinal principle” that the courts “will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question[s] may be avoided.” Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974), quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). See also Lynch v. Overhol-ser, 369 U.S. 705, 710-711, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); International Assn of Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Furthermore, where a statute lies in the shadow of constitutional doubt, its proper construction will usually require an exploration of legislative history.

[W]hen one interpretation of a statute would create a substantial doubt as to the statute’s constitutional validity, the courts will avoid that interpretation absent a “clear statement” of a contrary legislative intent.

United States v. Thompson, 147 U.S. App.D.C. 1, 5, 452 F.2d 1333, 1337 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972).

III

We consider first 38 U.S.C. § 211(a), the amended “no review” statute. The Administrator locates an intent to annul final judgments in the fact that Congress made the amendment retroactive to October 17, 1940, the date of enactment of the first “no review” statute. This is not an untenable argument, but it overlooks another possible explanation for the retroactivity language. Congress might well have thought that, absent such language, the amendment would be judicially construed to apply only prospectively, with no effect on pending suits and judgments not yet final at the time of enactment. The Supreme Court has long held that “ [r] etroactivity, even where permissible, is not favored, except upon the clearest mandate.” Claridge Apartments Co. v. Comm’r of Internal Revenue, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944). For this reason, our conclusion in de Rodulfa v. United States, supra, that 38 U.S.C. § 211(a) applies to pending as well as new cases relied very heavily on the retroactivity language in the provision, 149 U.S.App.D.C. at 161, 163-164, 461 F.2d at 1247, 1249-1250. It might be objected that Congress would not have stretched retroactivity back 30 years if the only purpose were to intercept pending cases and nonfinal judgments. But this argument overlooks the fact that many of the suits pending in the courts when the provision was debated dealt with benefits owing for years “as early as the 1940’s.”

Indeed, we think the 30-year reach of the retroactivity language militates rather strongly against the view that the language aimed to nullify final judgments no longer subject to appeal. It would be an extraordinary gesture for Congress to obliterate judgments rendered over a 30-year period and thereby empower the VA to sue for return of all moneys paid out on those old judgments. At oral argument the VA informed us that it has decided not to bring suit against judgments already paid, presumably because such a course would be an affront to both common sense and fair play. But the VA’s formal interpretation of 38 U.S.C. § 211(a) imputes to Congress an intent to authorize just such a course. Nowhere in the legislative history of the provision can we find any reference to such an intent; certainly there is no “clear statement” of it.

The retroactive amendment of 38 U. S.C. § 211(a) had its origin in a proposal, supported by the VA, to redefine the term “claim” in all of Title 38 of the Code; the redefinition was to make clear that the term covered benefit terminations as well as initial benefits claims. The VA urged that the redefinition be made retroactive to October 17, 1940:

* * * From an examination of the legislative history of Public Law 866, 76th Congress [which enacted the first “no review” statute on October 17, 1940], it seems quite clear that the Congress intended the exemption from judicial review therein enacted to be all-inclusive and did not contemplate the construction adopted in the Well-man, Thompson, and Tracy decisions [of the D.C. Circuit]. Since the pending bill would, if enacted, remove all doubt as to the intended scope of the existing finality provisions, the Veterans’ Administration strongly endorses the bill’s enactment.
While we cannot furnish any precise estimate of the savings to be effected through the enactment of H.R. 17564, a study by the Veterans’ Administration of the first 32 judgments adverse to the Administrator, has shown that accrued and estimated future payments in those cases alone will total in excess of $1.4 million. As heretofore noted, nearly all of these judgments involved application of the presumption of * * * remarriage rule.

We think there is a clear distinction between an intent to “remove all doubt as to the intended scope of the existing finality provisions” and an intent to upset final, unappealable judgments entered— perhaps years earlier — under those provisions. The quoted statement does of course mention “32 judgments adverse to the Administrator,” but there is no clear statement that these would be overturned by the proposed amendment or, indeed, that these judgments were, at the time, final and no longer subject to appeal. Elsewhere in its statement, the VA focused on cases then moving through the courts (i. e., pending cases) and on the possibility of “millions” of new cases in the future.

The House Committee decided to amend 38 U.S.C. § 211(a) directly, and retroactively, rather than to redefine “claim” retroactively for all of Title 38. In defending its proposed amendment, the Committee retraced the story of this circuit’s aberrant reading of the former 38 U.S.C. § 211(a) and expressed alarm that “suits in constantly increasing numbers have been filed in the U. S. District Court for the District of Columbia by plaintiffs seeking a resumption of terminated benefits.” These general comments give no indication that the proposed amendment was to upset final judgments no longer subject to appeal. On this issue the Committee’s specific remarks directed at the proposed amendment are at best ambiguous:

It seems to this committee that it is quite clear that the Congress, in enacting the exemption from judicial review in Public Law 866, 76th Congress, intended that exemption to be all inclusive and did not intend the fairly tortured construction adopted by the court of appeals in the Well-man, Thompson, and Tracy holdings. * * *
In view of the foregoing, this committee has included in H.R. 17958, a new subsection 8(a) which restates the provisions of subsection 211(a) of title 38, United States Code, to eliminate the word “claim” from that subsection. * * * The provision is specifically made effective October 17, 1940, the date of enactment of Public Law 866, 76th Congress. The committee believes that this approach to solving the problem is preferable to that employed in H.R. 17564, i. e., adding a definition of the word “claim” to title 38, United States Code. The restated section 211(a) will make it perfectly clear that the Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits provided for veterans and their dependents and survivors.
* •>:• -» * * *
As noted above, a large percentage of the suits filed to date have involved the presumption of remarriage rule. A study of the first 32 judgments adverse to the Administrator of Veterans’ Affairs has shown that accrued and estimated future payments in those cases alone will total in excess of $1.4 million. It is therefore apparent that the enactment of these provisions will result in substantial savings to the Government.

It is arguable that the final paragraph implies an intent to upset the “first 32 judgments,” but the ambiguities remain: Conceivably the Committee cited those judgments simply as a portent of future losses should the amendment not be enacted; and even if those judgments were a target of the amendment, it is not clear that the Committee thought them final and unappealable. The simple fact is that the Committee did not focus its attention on whether final judgments, no longer subject to appeal, should be upset. Rather, the Committee’s conscious and stated objective was merely to “make it perfectly clear that the Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits.” This objective can of course be met without providing renewed judicial review to reopen judgments already final.

Congress adopted the Committee’s proposed amendment of Section 211(a) with a minimum of floor debate. The scattered remarks directed at the amendment were entirely general in character and indicated no awareness or intent that the amendment would come into conflict with final judgments no longer subject to appeal.

We turn next to the new section, 38 U.S.C. § 3111, which provides that “[t]here shall be no payment of -x- -x- * death compensation” when such “would not have been payable” under the VA’s pre-1962 “standard for determining remarriage.” The House Committee’s explanation of this provision is very brief.

The committee has also added subsection 8(b) to H.R. 17958. This language, which stems from H.R. 7624, 91st Congress, will expressly ratify the application of the Veterans’ Administration administrative presumption of remarriage rule with respect to all pre-1962 cases. This action is deemed necessary because the judiciary has ignored the Congressional endorsement, in 1962, of that administrative practice.

The question is whether the provision’s no-payment command to the VA was meant by Congress to apply even where the payment is mandated by a final judgment no longer subject to appeal. The language of the provision does not say so; nor does the legislative history so indicate, the floor debates adding nothing to the House Committee’s explanation' of the provision’s purpose. Certainly we cannot hold that 38 U.S.C. § 3111 applies to final judgments merely because no express exemption for such judgments is carved into the provision. Such an exemption is rarely if ever contained in new legislation. The exemption is to be assumed unless the legislature speaks clearly to the contrary. Congress has not done so in this case.

We conclude that 38 U.S.C. §§ 211(a) and 3111 do not conflict with the validity and force of final judgments, like Mrs. Daylo’s, which were no longer subject to appeal on the effective date of those statutory provisions, which adjudicated only past events, and which required merely a payment of benefits past due at the time of judgment. It is conceivable that Congress intended such judgments to fall. But, if so, the intent was nowhere clearly expressed. In view of the serious constitutional problems which such an intent would raise, we are unwilling to impute it to Congress on the basis of ambiguous and fragmentary evidence. As passage of the two statutory provisions had no effect on the validity and force of Mrs. Daylo’s judgment, the Administrator’s motion under Rule 60(b) was properly denied.

Affirmed.

      . Daylo v. Administrator of Veterans’ Affairs, D. D.C., Civil Action No. 1604-69 (order of Jan. 25, 1971), JA at 26a.

      . So far as liere pertinent, Rule 60(b) provides :
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons : * * * (4) the judgment is void; (5) * * * it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time

      . Daylo v. Administrator of Veterans’ Affairs, D. D.C., Civil Action No. 1604-69 (order of May 7, 1970 granting partial summary judgment to plaintiff), JA at 21a-22a.

      . Pub.L. 91-376, 84 Stat. 787-790.

      . This basic entitlement statute has undergone several amendments since World War II which are not relevant to the present case. The provision now reads :
      The surviving widow, child or children, and dependent parent or parents of any veteran who died before January 1, 1957 (or after April 30, 1957, under the circumstances described in section 417(a) of this title) as the result of injury or disease incurred in or aggravated by active military, naval, or air service, in line of duty, during a period of war, shall be entitled to receive compensation at the monthly rates specified in section 322 of this title.
      38 U.S.C. § 321 (1970).

      . Prior to Sept. 19, 1962, the term “widow” was defined as follows, for purposes of Title 38:
      The term “widow” means * * * a woman who was the wife of a veteran * * * and who lias not remarried (unless the purported remarriage is void).
      38 U.S.C. § 101(3) (1958). The provision was amended by the Act of Sept. 19, 1962, § 1, Pub.L. 87-674, 76 Stat. 558, so that it now reads, in pertinent part:
      The term “widow” means * * * a woman who was the- wife of a veteran * * * and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another man and held herself out openly to the public to be the wife of such other man.
      38 U.S.C. § 101(3) (1970).

      . This administrative practice is outlined in a letter from the Administrator to the Chairman of the House Committee on Veterans’ Affairs dated June 9, 1970, included in H.R. Rep.No. 91-1166, 91st Cong., 2d Sess. (to accompany H.R. 17958) at 22 (1970).

      . The administrative history of Mrs. Daylo’s case is traced in the affidavit of Theodore K. Chamberlain, Attorney, Office of the General Counsel, Veterans’ Administration, filed with the District Court on Nov. 17, 1969.' JA at 13a-15a.

      . See generally Johnson v. Robison, 415 U.S. 361, 366-374, 94 S.Ct. 1160, 1165-1169, 39 L. 13d.2d 389 (1974), and de Rodulfa v. United States, 149 U.S.App.D.C. 154, 158-164, 461 F.2d 1240, 1244-1250, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972).

      . The first “no review” provision was actually contained in § 5 of the Economy Act of 1933, 48 Stat. 9, which created the present Veterans’ Administration. That statute provided:
      All decisions rendered by the Administrator of Veterans’ Affairs under the provisions of this title * * * shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision.
      The statute was amended in 1940, 54 Stat. 1197, to read:
      Notwithstanding any other provisions of law * * * the decisions of the Administrator of Veterans’ Affairs on any question of law or fact concerning a claim for benefits or payments under this or any other Act administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions.
      A final and minor rewording appeared in the Veterans’ Benefits Act of 1957, 71 Stat. 92, yielding the language quoted in text.

      . Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967) ; Thompson v. Gleason, 115 U.S.App.D.C. 201, 317 F.2d 901 (1962) ; Wellman v. Whittier, 104 U.S.App.D.C. 6, 259 F.2d 163 (1958).

      . See, e. g., Redfield v. Driver, 9 Cir., 364 F.2d 812 (1966) ; Milliken v. Gleason, 1 Cir., 332 F.2d 122 (1964), cert. denied, 379 U.S. 1002, 85 S.Ct. 723, 13 L.Ed.2d 703 (1965) ; Smith v. Settle, 8 Cir., 286 F.2d 420, cert. denied, 366 U.S. 969, 81 S.Ct. 1932, 6 L.Ed.2d 1259 (1961) ; Magnus v. United States, 7 Cir., 234 F.2d 673 (1956).

      . See H.R.Rep.No.91-1166, supra note 7, at 9-10.

      . See note 6 supra.

      . See S.Rep.No.1842 (Committee on Finance), 87th Cong., 2d Sess., 2 & 6 (1962). The House Committee on Veterans’ Affairs had proposed the same amendment without language limiting its effect to future cases. See H.R.Rep.No.1459, 87th Cong., 2d Sess., 2 (1962).

      . H.R.Rep.No.91-1166, supra note 7, at 23.

      . See note 3 supra.

      . Rule 54(b), Fed.R.Civ.P.:

        Judgment upon multiple claims or involving multiple parties.

      When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . See Rule 4(a), Fed.R.App.P., and 28 U.S. O. § 2107 (1970).

      . See note 1 supra.

      . The Administrator also raises three other arguments for upsetting her judgment which do not require extended discussion :
      (1) The Administrator urges that we take this opportunity to overrule retroactively Tracy v. Gleason, supra note 11, on the basis of which the court entering Mrs. Daylo’s judgment had founded its jurisdiction. This would “void” the judgment. The argument ignores the status of this litigation. If the Administrator thought Mrs. Daylo’s judgment had been*for whatever reason, mistakenly entered, an appeal should have been prosecuted. Instead, after the opportunity for appeal had lapsed the Administrator brought a Rule 60(b) motion in the District Court. It is the denial of that motion, not the original entry of judgment for Mrs. Day-lo, which is presently before us.
      An appeal from a denial of the 60(b) motion brings up for review only the correctness of that order, and does not bring up for review the final judgment.
      7 W. Moore, Federal Practice 1[ 60.29 at 414-415 (2d ed. 1974).
      (2) The Administrator argues that legislation can always cancel veterans’ benefits because no person has a “vested right” to these. This argument is irrelevant to the case before us. Mrs. Daylo claims no vested right to veterans’ benefits as such but only to the award of benefits incorporated in a final judgment no longer subject to appeal. The “vesting” in question is that assertedly accomplished by the final judgment.
      (3) The Administrator contends that Mrs. Daylo’s judgment has become functus officio by its own terms. The judgment commands the YA to pay Mrs. Daylo her pre-1962 benefits “in accordance with the applicable statutes and regulations,” and the Administrator argues that § 8 of the Act of Aug. 12, 1970 altered the “applicable statutes.” We are unpersuaded that the District Court intended the quoted phrase to subject its ruling to retroactive changes in statutory law; the phrase appears to mean only that the time, place, and manner of the payment are to be controlled by statutes and regulations prevailing at the time of judgment. At any rate, we hold below that § 8 was not intended by Congress to upset final judgments, no longer subject to appeal, which deal with benefit periods occurring prior to entry of judgment. For this reason alone the new legislation is not “applicable” under the terms of the judgment.

      . But, although this right of navigation be a public right common to all, yet, a private party sustaining special damage by the obstruction may, as lias been held in this case, maintain an action at law against the party creating it, to recover his damages; or, to prevent, irreparable injury, file a bill in chancery for the purpose of removing the obstruction. Tn both cases, the private right to damages, or to the removal, arises out of the unlawful interference with the enjoyment of the public right, which, as we have seen, is under the regulation of congress. Now, we agree, if the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress. It would have depended, not upon the public right of the free navigation of the river, but upon the judgment of the court. The decree before us, so far as it respect the costs adjudged, stands upon the same principles, and is unaffected by the subsequent law. But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance. Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation. If, in the mean time, since the decree, this right has been modified by the competent authority, so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. There is no longer any interference with the enjoyment of the public right inconsistent with law, no more than there would be where the plaintiff himself had consented to it, after the rendition of the decree. Suppose the decree had been executed, and after that the passage of the law in question, can it be doubted but that the defendants would have had a right to reconstruct it? And is it not equally clear that the right to maintain it, if not abated, existed from the moment of the enactment?

        Wheeling Bridge Case, 59 U.S. (18 How.) 421, 431-432,15 L.Ed. 435 (1855).

      . See H.R.Rep.No. 91-1166, supra note 7, at 24.

      . This proposal was H.R. 17564, 91st Cong., explained by the Administrator in a letter to the Chairman of the House Committee on Veterans’ Affairs included in II.R.Rep.No. 91-1166, supra note 7, at 19-24.

      . Id. at 24.

      . Returning now to our discussion of judicial review of the Veterans’ Administration’s benefit determinations and I-I.R. 17564, it seems obvious that suits similar to the several hundred already filed can— and undoubtedly will — subject nearly every aspect of our benefit determinations to judicial review, including rating decisions, related Veterans’ Administration regulations, Administrator’s decisions, and various adjudication procedures. Moreover, in the cases considered so far, the U. S. District Court has not been governed by the time limitations and conditions usually applicable under Federal statutes and rules governing suits against the United States or its officials when specific statutory authority lias been granted for judicial review. One consequence of this is that judgments for retroactive benefits of over $18,000 for installments accruing from a period commencing as early as the 1940’s have been rendered, and these judgments have also ordered the Administrator to deduct as much as 25 percent attorneys’ fees from the benefits due and to become due. The scope of the Tracy decision and the decisions upon which it is based is so broad that it could well afford a basis for judicial review of millions of decisions terminating or reducing many types of benefits provided under laws administered by the Veterans’ Administration. Such review might even extend to the decisions of predecessor agencies made many years ago. On the other hand, this judicially authorized form of review is inherently unfair since it does not permit review of any decisions denying an original claim for benefits.
      Officials of the Department of Justice have expressed grave concern regarding the scope and volume of litigation stemming from the Tracy decision. This, of course, is also a matter of great concern to the Veterans’ Administration.

        Id. at 23-24.

      . Id. at 10.

      . Id.

      . Id. at 10-11.

      . Id.

      . The House debates are unilluminating. After Congressman Teague, Chairman of the Committee on Veterans’ Affairs, read the Committee’s report into the record, 116 Cong.Rec. (Part 15) 19732-19734 (1970), Congressman Saylor rose to support the amendment to 38 U.S.C. § 211(a) :
      * * * I believe there is considerable merit in the proposition of court review of certain decisions of the Veterans’ Administration * * *. * * *
      Hs * * *
      If we are to have judicial review, Mr. Speaker, I hope it will result from the mature deliberations of 435 Members of the House of Representatives and the 100 Members of the other body, rather than from the erroneous interpretations of a small panel of jurists. The bill before the House makes clear the longstanding intent of Congress that all decisions of the Administrator involving noncontractual benefits should be exempt from judicial review.

        Id. at 19736. The bill was then passed 313 to O. The bill originally passed by the Senate had not contained what eventually became § 8(a) & (b) of the Act. See S.Rep. No. 91-784, 91st Cong., 2d Sess. (to accompany S. 3348) (1970). Later, in recommending these House provisions to the Senate, Senator Talmadge stated that they would
      [strengthen the language of present law to clarify congressional intent that all decisions of the Administrator of Veterans’ Affairs on questions of entitlement to veterans’ benefits are final and not subject to judicial review * * *.
      116 Cong.Rec. (Part 17) 23377 (1970). No further comments on the measures are recorded in the Senate. The bill was once more before the House on July 30, 1970, at which time Congressman Teague stated:
      Mr. Speaker, section 8 of the bill which we have under consideration in effect reiterates the longstanding policy and requirement found in VA laws, namely, that in any question of law or fact concerning a claim for benefits under any law administered by the Veterans’ Administration the judgment of the Administrator of Veterans’ Affairs shall be final and conclusive, and no court of the United States shall have power to review any such decision.
      * * * [T]here is no parliamentary question on this section. Both Houses have passed this language without any change and thus it is not in disagreement between the two Houses.
      * * * * *
      The reason for the inclusion of section 8 in this bill is because a recent court decision gave preferential treatment to a limited group of beneficiaries. If we are going to have court review it must apply to all beneficiaries with equal force. This the court is unable to do under existing law and sought to do in piecemeal fashion and, in my opinion, erroneously.
      :K * * * *
      I am opposed to a windfall going to a particular class of beneficiaries or a particular group of lawyers who have interested themselves in the type of cases which are involved in this question and which are set forth in detail in the report on this bill ***.***
      116 Cong.Rec. (Part 20) 26489-26490 (1970). We acknowledge that none of these statements is inconsistent with an intent to upset final judgments no longer subject to appeal. But the fact remains that this intent is nowhere clearly expressed.

      . H.R.Rep.No.91-1166, supra note 7, at 11.

      . As indicated in note 31 supra, all discussion on the floor was directed to amendment of 38 U.S.C. § 211(a).

      . Put otherwise, we hold that the new legislative provisions do not affect judgments which are, in all but formal respects, identical with final money judgments. This statutory construction draws upon our examination of the constitutional precedents in Part II of this opinion. We note that money judgments themselves are not available in cases dealing with federal pension programs. See 28 U.S.C. § 1346(d) (1970).


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    INTERNATIONAL LADIES’ GARMENT WORKERS UNION, LOCAL 415-475, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1676.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 29, 1974.
    Decided June 28, 1974.

      Allan M. Elster, North Miami Beach, Fla., for petitioner.
    Abigail Cooley Baskir, Atty., National Labor Relations Board, with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Acting Asst. Gen. Counsel, National Labor Relations Board, and Glen M. Bendixsen, Chief of Sp. Litigation, National Labor Relations Board, at the time the brief was filed, were on the brief for respondent.
    Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
   MacKINNON, Circuit Judge:

The International Ladies’ Garment Workers Union, Local 415, AFL-CIO (the Union) has petitioned this court to review the withdrawal of a complaint by a Regional Director of the National Labor Relations Board (the Board) prior to hearing as part of an informal settlement agreement entered into by the charged party Arosa Knitting Corporation (the Company), and the Regional Director. Two principal issues are presented: (1) whether this court has jurisdiction under Section 10(f) of the National Labor Relations Act to review such a withdrawal of a complaint in the absence of a formal order of the Board, and (2) whether the Union was entitled to a hearing on its objections to the informal settlement agreement. We hold that this court has jurisdiction to entertain the petition, but dismiss it on the merits.

I

In September 1971 the Union filed unfair labor practice charges against the Company with the Regional Director, alleging that the Company had violated Sections 8(a)(1) and (3) of the Act by laying off and refusing to reinstate three employees because of their Union membership or activities. The Regional Director issued a complaint based on these allegations as to two of the employees but determined that there was insufficient evidence as to the third. The General Counsel on appeal by the Union caused an amended complaint to issue to include the third employee. The hearing on the complaint, originally set for January 11, 1972, was rescheduled for January 24. On January 20, the hearing was postponed indefinitely and Board counsel informed the Union by letter of January 21 that the Company had executed an informal settlement agreement on that date. Although the Union contends that it was never requested to join in the settlement negotiations and was never informed that the Board had contacted the three employees, it must have known that resolution by settlement might be forthcoming since the Company had answered both the original and the amended complaint, on December 9 and January 10, respectively, with the affirmative defense of amicable settlement with the three employees and copies of these answers had been served on the Union’s attorneys. The informal “Settlement Agreement,” executed on a standard Board form, was signed by the Company on January 21, 1972, and approved by the Regional Director on January 27, 1972.

The agreement recited that the Company “has made whole the employees . by payment [of $450] to each of them” and stipulated that the three employees “have refused and would refuse an offer of reinstatement.” The agreement also contained a “nonadmission clause” stating that “[b]y the execution of this Agreement the Employer does not thereby admit that it has violated any provisions of the” Act and provided for the posting of an appropriate notice in both Spanish and English. Pursuant to the standardized provisions of the agreement, the unfair labor practice complaint and the notice of hearing were withdrawn.

The January 21 letter advised the Union that the Settlement Agreement “appears to give as full a remedy as could be obtained even if the case was successfully litigated” and that “in the event you do not wish to participate in the agreement, please submit your reasons therefor within five (5) days . so that the Regional Director can consider your position.” By letter of January 24 the Union refused to execute the agreement, failed to submit its reasons for objecting and requested a héaring to place its objections on the record. The Regional Director responded to the Union’s letter that for his previously stated reasons “it does not appear that it would effectuate the purposes of the National Labor Relations Act to institute further proceedings at this time.” J.A. at 39.

On appeal of this ruling to the General Counsel the Union asserted two objections: (1) “an informal settlement agreement with a ‘non-admission clause’ . will not cure the extensive violations of the Act engaged in, by the [Company],” and (2) the Union was never consulted with respect to the monetary settlement with the employees. J. A. at 44-45. The Union also requested a hearing so that its “objections can be voiced on the record.” On March 16 the General Counsel denied the appeal on the grounds that the agreement “adequately remedied the [charged] unfair labor practices,” that the Union had been afforded an opportunity to object to the Regional Director, that it had so objected, and that this obviated the need for a hearing. It was also noted that the Union, even on appeal to the General Counsel, did not contend that the employees were entitled to more back pay than they had received in the settlement.

On July 21, 1972 the Union filed the instant petition to review these actions.

II

Our jurisdiction to entertain on direct appeal a petition to review Board action rests upon Section 10(f) of the Act, 29 U.S.C. § 160(f) (1970):

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in [an appropriate] United States court of appeals ....

The narrow question presented is whether the withdrawal of a complaint as part of an informal settlement agreement by the General Counsel constitutes a “final order of the Board.” The answer to this ultimate question depends in turn upon a resolution of two subsidiary issues: whether the General Counsel’s action in this case constitutes Board action, and if so, whether this action is of the type made reviewable under Section 10(f). We conclude that such action by the General Counsel does constitute a final order of the Board reviewable by this court under Section 10(f). This conclusion is compelled by an analysis of: (1) the Board’s settlement procedures as set forth in its rules and regulations, (2) the Board’s argument that we lack jurisdiction, and (3) the Act and its legislative history, with particular emphasis on the effect of the 1947 Taft-Hartley amendments.

A. Board Settlement Procedures

Amicable settlements between parties to a dispute have been called the “lifeblood of the administrative process.” The Board has promulgated procedures to facilitate such settlements at all stages of unfair labor practice proceedings. The method of settlement may vary. Prior to the issuance of a formal complaint, all parties are afforded an opportunity to settle disagreements consistently with the public interest; such settlements must be approved by the Regional Director and his decision may be appealed to the General Counsel. The Board itself does not become involved.

Once a complaint has issued, thus triggering the formal administrative process, full settlement opportunities still exist and may be in either of two modes: formal or informal. The mode chosen, so argues the Board, has a dis-positive impact on a Court of Appeals’ jurisdiction to review the settlement at the urging of an aggrieved party. After a complaint has issued the Board

favors a formal settlement agreement, which is subject to the approval of the Board .... Ordinarily the formal settlement agreement also contains the respondent’s consent to the Board’s application for the entry of a decree by the appropriate circuit court of appeals enforcing the Board’s order.

A formal settlement agreement, then, provides for the entry of a Board order clearly reviewable by a Court of Appeals.

By contrast, the informal settlement agreement proceeds by a different route:

In some cases, however, the regional director, pursuant to his authority to withdraw the complaint before the hearing (§ 102.18 of this chapter), may conclude that an informal settlement agreement of the type described in § 101.7 [settlement prior to complaint, described above] is appropriate. Such an agreement is not subject to approval by the Board and does not provide for a Board order. It provides for the withdrawal of the complaint.

29 C.F.R. § 101.9(b)(2) (1973). By providing for the withdrawal of the complaint without formal action by the Board, this section purports to revert the situation to that obtaining prior to the issuance of a complaint. The exercise of the Regional Director’s discretion to “withdraw” the complaint, based on completely undefined standards, is the fulcrum on which the Board’s jurisdictional argument rests.

B. The Board’s J-urisdictional Argument

The Board argues that the withdrawal of a complaint by the General Counsel as part of an informal settlement agreement is not subject to review by a Court of Appeals. The essential elements of that argument as propounded by the Board may be briefly stated:

Section 10(f) of the Act provides that “[a]ny person aggrieved by a final order of the Board” (emphasis supplied) may petition for review in an appropriate Court of Appeals. The phrase a final order of the Board has consistently been held to refer to “an order of the Board either dismissing a complaint in whole or in part or directing a remedy for unfair labor practices found — in either case an order entered as the culmination of the procedure described in Section 10(b) and (c) of the Act.” Laundry Workers Union v. N. L. R. B., 197 F.2d 701, 703 (C.A. 5, 1972).
•x- -x- * * -x- -si-
Action taken by the General Counsel in the exercise of his [Section] 3(d) powers cannot be viewed as action by the Board necessary to vest a court of appeals or a district court with jurisdiction under Section 10(f).

The crux of this argument is that the Board itself has not formalized the action of the General Counsel by issuing an “order” as the culmination of the process embodied in Sections 10(b) and (c) and that lacking such formal action, direct review of the General Counsel’s actions in a Court of Appeals must fail for lack of jurisdiction. The Board, moreover, would persuade us that the legislative history of the Act mandates acceptance of their argument and it is to that legislative history we now turn.

C. The Act and Its Legislative History

Analysis of the evolution of the Act, from the original statute enacted in 1935 (49 Stat. 449) to the 1947 TaftHartley amendments (61 Stat. 136) makes clear that this court has jurisdiction to review the withdrawal of the complaint by the General Counsel in this case. Prior to 1947 the Board itself was charged with the duty of determining whether to issue unfair labor practice complaints and how they should be prosecuted, for there was no office of the General Counsel. Thus the Board simultaneously played the roles of prosecutor, jury and judge. Under this statutory structure, it was held that the courts lacked jurisdiction to review a refusal by the Board to issue a complaint. Once issued, however, the courts could review either the complaint’s dismissal or the grant of remedial relief premised on the charges contained in such complaint. Thus the issuance of a complaint initiated an administrative process whose end result was subject to review in the Courts of Appeals.

This statutory scheme remained unchanged until 1947 when the Taft-Hartley amendments created the office of the General Counsel. This office was created in response to heavy criticism of the unfair and uneven results obtained from the amalgamation of prosecutorial and judicial functions in the old Board. The General Counsel was now to act independently of the Board, but in its name and on its behalf, in the issuance and prosecution of unfair labor practice complaints.

The Hartley Bill, as it originally passed the House, would have created “as an independent agency of the executive branch of the Government an office of Administrator of the National Labor Relations Act ... to issue complaints [and] to prosecute such complaints before the Board. . . . ” The Administrator thus would issue complaints on his own and not on the Board’s behalf.

By contrast, the Taft Bill passed by the Senate would not have changed the procedure for issuing and prosecuting complaints. It would have left such authority to the Board and would not have provided for an independent “Administrator.” Rather, insofar as any express provisions were concerned, the procedures of the 1935 Act were continued so that a complaint, once issued, would be disposed of by a Board order either dismissing it or remedying the proven unfair labor practices.

As it emerged from the Conference Committee, Section 10(b) of the compromise version finally enacted into law as the Taft-Hartley amendménts continued to and presently provides that

[wjhenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board . . . shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect ....

This power, however, was now to be exercised pursuant to Section 3(d) by

a General Counsel of the Board who shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law.

29 U.S.C. § 153(d) (1970). In order, then, to correct certain perceived flaws in the administration of the Wagner Act, the Congress provided for a General Counsel whose prosecutorial acts were not to be subject to Board countermand but who nonetheless was to act in the name of and on behalf of the Board. Although the Congress intended the General Counsel in Section 3(d) matters to be completely independent of a Board with which it had grown dissatisfied, the conscious decision not to create an “Administrator” as a separate and independent agency and Section 3(d)’s explicit provision “on behalf of the Board” indicates a congressional intent that the actions of the General Counsel in dealing with unfair labor practices were to constitute Board action. Therefore such putative Board action reviewable under Section 10(f) is not made unreviewable because taken by the General Counsel.

We conclude, then, that the jurisdiction of the Courts of Appeals under the 1935 Act continued unchanged by the 1947 amendments. Although the Courts of Appeals generally are without jurisdiction to review a refusal to issue a complaint, they clearly may review a “formal” settlement agreement approved by the Board. There is, moreover, substantial similarity between a “formal” and an “informal” settlement. Each finally ends an unfair labor practice proceeding by “granting or denying in whole or in part the relief sought,” the former by a Board “order” and the latter by action of the General Counsel “on behalf of the Board.”

We must look rather to the language of the statute, read in the light of its purpose and its legislative history, to ascertain whether the “order” for which the review in court is provided, is contrasted with forms of administrative action differently described as a purposeful means of excluding them from the review provisions.

American Federation of Labor v. NLRB, 308 U.S. 401, 408, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940). The substantive elements of the formal and the informal settlement are essentially identical and we discern no intent by the Congress to exclude post-complaint, informal settlement agreements entered into by the General Counsel “on behalf of the Board” from the review provisions of Section 10(f).

Before leaving the jurisdictional issue, however, we again emphasize the narrow contours of our holding. Section 3(d) invests the General Counsel with broad and “final authority” over the prosecu-torial aspects of the Board’s administrative process. Yet it is readily apparent that the prosecutorial role may at times blend with the adjudicatory role. Also, even in its most elemental form — for example, the unreviewable decision whether to issue a complaint — the prosecutor-ial act often might, quite properly, encompass basic policy considerations. Thus, after a complaint has issued and the administrative process initiated, certain actions which broadly conceived might be characterized as “prosecutor-ial” assume essentially adjudicatory attributes. Such is the case where the General Counsel, acting for the Board, withdraws a complaint on the basis of an informal settlement agreement which provides for an adjustment of the conflicting interests of the private parties and thus partially or wholly remedies the underlying labor dispute. This action cannot meaningfully be distinguished from other types of Board action traditionally held to be within the review provisions of Section 10(f).

Ill

Turning to the merits, the principal issue is whether the General Counsel could accept the settlement agreement and conclude the unfair labor practice proceeding without a hearing over the objections of the Union. We think the General Counsel clearly acted within the broad range of discretion accorded him under the law of this circuit. Although the circuits have taken divergent courses on the right of a charging party to a hearing on his objections to a settlement agreement, the law in this circuit was settled in Textile Workers Union of America, AFL-CIO v. NLRB, 111 U.S.App.D.C. 109, 294 F.2d 738 (1961). In Textile Workers we considered the right to such a hearing in the context of an order of the Board approving a formal settlement agreement, but the guidelines set forth there are equally applicable in the informal settlement context. Although the charging party may not. veto a settlement agreement found to be in the public interest, we stated that we were

unwilling to lay down a general rule that in no circumstances, though the Board has issued a complaint, is the charging party to be heard on the question of acceptance by the Board of a settlement stipulated between the Board’s General Counsel and a respondent employer. Regard must be had to the particular circumstances bearing upon whether or not there would be an abuse of discretion in entering a consent order without a hearing notwithstanding detailed and substantial objections and request for a hearing thereon.

Id. at 112, 294 F.2d at 741. Although the case was “rather unusual and complicated” and the charging party had presented detailed and substantial objections, the Board tersely denied “the objections and request for a hearing as lacking in merit.” Id. at 111, 294 F.2d at 740.

We held, therefore, in view of the union’s detailed and substantial objections, that the Board order approving the settlement agreement could not stand

without either (1) a reasonable opportunity for the Union to be heard on its objections or (2) a presentation on the record of reasons for acceptance of the stipulation as the basis for the order notwithstanding the Union's objections ....

Id. at 112, 294 F.2d at 741. After remand we reviewed the Board’s supplemental decision in which it explained on the record the reasons for approving the agreement over the union’s objections. Alluding to “the broad discretion the Board may exercise in the settlement of unfair labor practice eases,” we granted enforcement. Textile Workers Union of America, AFL-CIO v. NLRB, 114 U.S. App.D.C. 295, 296, 315 F.2d 41, 42 (1963).

Taken together, the Textile Workers cases teach the following: if the Board is properly to exercise its discretion to settle a case without a hearing over substantial objections of the charging party, it must state reasons adequate to satisfy a reviewing court. That standard is clearly satisfied in this case. First, the Union was given an opportunity to state its objections before both the Regional Director and the General Counsel and it did so. Second, the objections raised by the Union, which do not assert any disputed issues of material facts, pale by comparison to those raised in Textile Workers, The Union did not contend that the monetary settlement was insufficient in any sense, but objected only to the non-admission clause and to the fact that it was not consulted in advance of the settlement. Finally, the General Counsel, in contrast to the initial, conclusory statement in Textile Workers, here provided full and adequate reasons for accepting the settlement agreement without a hearing. We think that the failure of the Kegional Director to notify the Union in advance of his approval of the settlement is not arbitrary or capricious per se in view of the Union’s opportunity to raise, and have considered, its objections to the agreement. In these circumstances it was a proper exercise of discretion to accept the settlement agreement without a hearing.

Accordingly, the petition for review will be dismissed on the merits.

It is so ordered.

      . 29U.S.C. 160(f) (1970).

      . The Union also contends that the employees involved in this case were denied due process of the law. /S'ee note 28 infra.

      . Union Br. at 2-3.

      . Answer, December 9, 1971, J.A. at 26-27; Answer to Amendment to Complaint, January 10, 1971, J.A. 33-35. Also, in its motion for a continuance on December 9, 1971, the Company represented that “the monetary and employment aspects of [the employees’] eases have already been amicably settled.” J.A. at 29.

      . Record, Exhibit 5.

      . Id., Exhibit 6.

      . The letter stated, inter alia:

      You are hereby advised that charging party objects to this informal settlement agreement and will not execute same. Further, charging party requests a hearing before a trial examiner or a hearing officer so that our objections to the informal settlement agreement can be voiced on the record.
      J.A. at 38.

      . The General Counsel’s letter to the attorneys for the Union stated :
      Your appeal in the above matter has been duly considered.
      The appeal is denied. Inasmuch as the undertakings in the Settlement Agreement adequately remedied the unfair labor practices alleged in the charge, further proceedings herein were deemed unwarranted. In this connection it was noted that while you complained about not being consulted with respect to the amount of back pay, you do not allege that the discriminatees are entitled to more back pay than they received.
      In regard to the contention on appeal that under the principle enunciated in Leeds and Northrup Co. v. N. L. R. B., [3 Cir.) 357 F.2d 527, the Union was entitled to a hearing before a Trial Examiner on its objections to the Agreement, it was noted that pursuant to the Board’s Statement of Procedure, Section 101.9(c)(1), the Union had been afforded an opportunity, and in fact did, submit such objections to the Regional Director. Accordingly, it could not be held that the Union had been denied due process and an opportunity to be heard. See Farmers Cooperative Gin Asoseiation, 168 NLRB 367, fn. 2.
      J.A. at 48-49.

      . There is no question but that the Union, as charging party, lias been aggrieved by the withdrawal of the complaint, that the “order” is final for review purposes, and that the relief sought has been denied in part.

      . Atty. Gen.’s Comm, on Administrative Procedure, Final Report, Sen. Doc. No. 8, 77th Cong., 1st Sess. at 35 (1941) ; Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. NLRB, 339 F.2d 795, 797 (2d Cir. 1964).

      . Board Statements of Procedure § 101.1 et seq., 29 C.F.R. § 101.1 et seq. (1973).

      . Id. § 101.7.

      . Id. § 101.9.

      . Id. § 101.9(b)(1). This section also provides :
      In such an agreement, the parties agree to waive their right to hearing and agree further that the Board may issue an order requiring the respondent to take action appropriate to the terms of the settlement.

      . Id. § 101.9(c) (2).

      . The withdrawal of a complaint by the regional director, or his refusal to issue a complaint in the first instance, may be appealed to the General Counsel. Board Rules and Regulations § 102.19; 29 C.F.R. § 102.-19 (1973).

      . NLRB Br. at 7-8 (footnote omitted). For the relevant text of Section 3(d), 29 U.S.C. § 153(d) (1970), detailing the General Counsel’s powers, see text at 829 infra.

      . Rep. Hartley commented during the debates on the Taft-Hartley amendments:
      The National Labor Relations Board has been investigator, prosecutor, jury and judge all rolled into one.
      1 NLRB, Legislative History of the Labor Management Relations Act of 1947 613 (1947) (hereinafter “Legislative History”).
      Unlike the old Board, [the new Board] will not act as prosecutor, judge and jury. Its sole function will be to decide cases.
      H.R.Rfep.No. 245, 80th Gong., 1st Sess. 6 (1947) ; 1 Legislative History 297.

      . General Drivers, Chauffeurs, and Helpers, Local 886, AFL v. NLRB, 179 F.2d 492, 494 (10th Cir. 1950) ; Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948) ; see NLRB v. Indiana & Michigan Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 87 L.Ed. 579 (1943) ;
      NLRB v. National Broadcasting Co., 150 F. 2d 895, 899 (2d Cir. 1945) ; NLRB v. Barrett Co., 120 F.2d 583, 586 (7th Cir. 1941).

      . For example, in Jacobsen v. NLRB, 120 F.2d 96, 100 (3d Cir. 1941), the court stated :
      The Board having taken jurisdiction of the cause and having entered a final order dismissing the complaint . . . this court, pursuant to Section 10(f) . . . has jurisdiction ... to review it.

        See American Federation of Labor v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1939) ; Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948).

      . See H.R.Rep.No. 245, 80th Cong., 1st Sess. 5-6 (1947) ; 1 Legislative History 296-97; M. Forkosch, A Treatise on Labor Law § 302 (1965) ; International Union of Electrical, Radio and Machine Wkrs., AFL-CIO v. NLRB, 110 U.S.App.D.C. 91, 95, 289 F.2d 757, 761 (1960).

      . H.R. 3020, § 4, 80tli Cong., 1st Sess. (1947) ; 1 Legislative History 173-75.
      If the Administrator concluded that a complaint should issue, he was to proceed in the manner defined under the 1935 Act:
      In unfair-labor-practice cases, the Administrator will determine whether or not an alleged unfair labor practice is, indeed, such a practice under the act, and if so, he will proceed as members of the Board’s field staff have proceeded in the past.
      H.R.Rep.Xo. 245, 80th Cong., 1st Sess. 26 (1947) ; 1 Legislative History 317.

      . H.R. 3020 (as passed by the Senate), 80th Cong., 1st Sess. (1947) ; 1 Legislative History 226-91.

      . Act § 3(d), 29 U.S.C. § 153(d) (1970) ; II.Conf.Rep. on II.R. 3020, 80th Cong., 1st Sess. 37 (1947) ; 1 Legislative History 541; see 29 C.F.R. § 102.15 (1973). The reference in Section 10(b) to the Board’s power, actually to be exercised by the General Counsel pursuant to Section 3(d), with respect to the issuance and prosecution of complaints was explained as follows :
      Mr. HARTLEY: The reference to the Board was necessary because, in order to have this man independent of the Board, we had to use the term “Board.” Otherwise we would have had to set up a completely independent agency .... He acts on behalf of the Board but completely independent of the board.
      Mr. MacKINNOX: But while he is completely independent of the Board, he is authorized, insofar as his duties are concerned to act in the name of the Board ? Mr. HARTLEY : Yes ; in the name of the Board.
      1 Legislative History 883.
      The Section 10(b) powers exercised by the General Counsel in the Board’s name include the power to amend the complaint prior to the issuance of an order based on such complaint. International Union of Electrical, Radio & Machine Wkrs., AFL-CIO v. NLRB, 110 U.S.App.D.C. 91, 289 F.2d 757 (1960).

      . Considering tlie magnitude of the changes wrought by the 1947 amendments, one justifiably would expect to find some evidence in the legislative history indicating an intent by the Congress to restrict the jurisdiction of the courts, if that indeed were the case. Although there are allusions in the legislative history to the fact that the General Counsel would be a “labor czar” with vast and unreviewable authority, the precise implication of Section 3(d) goes to the decision to issue a complaint in the first instance and to review by the Board :
      The General Counsel . . . is to have the final authority to act in the name of, but independently of any direction, control, or review by, the Board in respect of the investigation of charges and the issuance of complaints of unfair labor practices, and in respect of the prosecution of such complaints before the Board.
      H.R.Conf.Rep.No.510, on H.R. 3020, 80th Cong., 1st Sess. 37 (1947) U.S.Code Cong. Serv. 1947, p. 1142; 1 Legislative History 541 (emphasis added). Indeed, the broadening of the scope of review powers of the Courts of Appeals by the 1947 amendments suggests an even greater reliance on judicial review of unfair labor practice proceedings. See id. at 56-57, 1 Legislative History 560-61.

      . Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; General Drivers, Chauffeurs, and Helpers, Local 886, AFL v. NLRB, 179 F.2d 492, 494-495 (10th Cir. 1950) ; Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948). Compare, however, NLRB v. International Brotherhood of Electrical Wkrs., Local Union 357, 445 F.2d 1015, 1016 n. 2 (9th Cir. 1971) :
      But it may be that where the decision of the general counsel not to issue an unfair labor practices complaint is wholly without basis in law, a federal district court may mandate issuance of the complaint. Cf. Retail Store Employees Union, etc. v. Rothman, 112 U.S.App.D.C. 2, 298 F.2d 330 (1962).
      In Rothman and in Hourihan v. NLRB, 91 U.S.App.D.C. 316, 201 F.2d 187 (1952), cert. denied, 345 U.S. 930, 73 S.Ct. 792, 97 L.Ed. 1359 (1953), we expressly pretermitted the issue of the district court’s power in this regard and we do the same today.

      . It is arguable, of course, that the power of the General Counsel to choose the mode of settlement without minimal standards in either the Act or the Board’s regulations and concomitantly delineate the jurisdictional parameters of the Courts of Appeals itself would be intrinsically arbitrary, except that it may be saved by the power of the courts to review both the choice and the ensuing result in order to guard against arbitrary and capricious action. The Third Circuit accepted the argument in Leeds & Northrup Co. v. NLRB, 357 F.2d 527, 531 (3d Cir. 1966), that it is
      anomalous in that mere choice of the procedural form in these matters can foreclose judicial review, and this despite the absence of minimal standards in the Act and in the Board’s own rules and regulations for determining the choice of procedure.

        The court also stated in Leeds that
      [t]he distinction of formal or informal final disposition under the facts of this case confuses incidence with substance. The absence of a formal order of the Board, which respondent insists is a fatal jurisdictional defect here, does not preclude review by this Court of a final disposition by an administrative agency.

        Id.

      The Third Circuit appears to be the only circuit to have explicitly passed upon the precise jurisdictional issue in this ease, when it held in Leeds that the Courts of Appeals have jurisdiction to review the withdrawal of a complaint by the General Counsel as part of an informal settlement agreement. Although we agree with the result in Leeds as to jurisdiction and share many of the concerns discussed by that court, we find it unnecessary to rely, as did the court in Leeds, on the Administrative Procedure Act, 5 U. S.C. § 551 et seq. (1970), in aid of our jurisdiction. The Third Circuit reaffirmed its reasoning in Leeds in Terminal Freight Cooperative Ass’n v. NLRB, 447 F.2d 1099, 1101 (3d Cir. 1971), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972), but held that it lacked jurisdiction to review the informal settlement agreement involved in that case because a complaint had never been issued by the Regional Director in the first instance.

      . The argument is also urged upon us that counsel for the Union represented the three employees as their attorney in the proceedings and the failure of the Board or its agents to include counsel in the settlement negotiations violated the employees’ due process rights. At oral argument, however, counsel stated that he represented the employees for some purposes but not for others ; he could not state whether he in fact represents them on this appeal which attempts to overturn a settlement agreement which appears to satisfy the employees’ interests. The Union’s standing to raise this issue in these circumstances is dubious at best, and we dispose of this issue as lacking in merit without further discussion pursuant to local rule 13.

      . The various approaches taken by the circuits on this issue are detailed in Concrete Materials of Georgia, Inc. v. NLRB, 440 F.2d 61 (5th Cir. 1971).

      . Textile Workers “assumed” this to be the case, and the enforcement of the order of the Board after remand raised the assumption to a holding. Textile Wkrs. Union of America, AFL-CIO v. NLRB, 114 U.S.App. D.C. 295, 315 F.2d 41 (1963) ; Concrete Materials of Georgia, Inc. v. NLRB, 440 F. 2d 61 (5th Cir. 1971) ; Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. NLRB, 339 F.2d 795 (2d Cir. 1964).

      . We note also that the Union never explained the nature of its objections to the Regional Director but only stated that it “objects.” See note 7 supra. On appeal to the General Counsel it finally specified the precise nature of its objections. See text at 825 - 826, supra.

      . As the court noted in Textile Workers: Detailed objections were filed claiming, inter alia, that the back pay provision was greatly inadequate in that the computation of the amount was based on improper dates, that the proposal to offer to employees jobs in a new location is such that it cannot practically be accepted, that certain limitations impressed on the terms of the order, e. g., that the offer of employment at the new location be accepted within five days, are unfair in the circumstances, and that the relief in various other respects works an undue hardship upon the employees.
      Ill U.S.App.D.C. at 112, 294 F.2d at 741.

      . See note 8 supra.