author: Mr. Justice White Mr. Justice Harlan, Mr. Justice Stewart, Me. Justice Black,

text:
    UNITED STATES v. THIRTY-SEVEN (37) PHOTOGRAPHS (LUROS, CLAIMANT)
    No. 133.
    Argued January 20, 1971
    Decided May 3, 1971

      White, J., announced the Court’s judgment and delivered an opinion in which (as to Part I) Burger, C. J., and Harlan, Brennan, Stewart, and Blackmun, JJ., joined, and in which (as to Part II), Burger, C. J., and Brennan and Blackmun, JJ., joined. Harlan, J., post, p. 377, and Stewart, J., post, p. 378, filed opinions concurring in the judgment and concurring in Part I of White, J.’s opinion. Black, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 379. Marshall, J., filed a dissenting opinion, ante, p. 360.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson and Roger A. Pauley.

      Stanley Fleishman argued the cause for appellees. With him on the brief was Sam Rosenwein.

   Mr. Justice White

announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Brennan, and Mr. Justice Blackmun join.

When Milton Luros returned to the United States from Europe on October 24, 1969, he brought with him in his luggage the 37 photographs here involved. United States customs agents, acting pursuant to § 305 of the Tariff Act of 1930, as amended, 46 Stat. 688, 19 U. S. C. § 1305 (a), seized the photographs as obscene. They referred the matter to the United States Attorney, who on November 6 instituted proceedings in the United States District Court for forfeiture of the material. Luros, as claimant, answered, denying the photographs were obscene and setting up a counterclaim alleging the unconstitutionality of § 1305 (a) on its face and as applied to him. He demanded that a three-judge court be convened to issue an injunction prayed for in the counterclaim. The parties stipulated a time for hearing the three-judge court motion. A formal order convening the court was entered on November 20. The parties then stipulated a briefing schedule expiring on December 16. The court ordered a hearing for January 9, 1970, also suggesting the parties stipulate facts, which they did. The stipulation revealed, among other things, that some or all of the 37 photographs were intended to be incorporated in a hard cover edition of The Kama Sutra of Yatsyayana, a widely distributed book candidly describing a large number of sexual positions. Hearing was held as scheduled on January 9, and on January 27 the three-judge court filed its judgment and opinion declaring § 1305 (a) unconstitutional and enjoining its enforcement against the 37 photographs, which were ordered returned to Luros. 309 F. Supp. 36 (CD Cal. 1970). The judgment of invalidity rested on two grounds: first, that the section failed to comply with the procedural requirements of Freedman v. Maryland, 380 U. S. 51 (1965), and second, that under Stanley v. Georgia, 394 U. S. 557 (1969), § 1305 (a) could not validly be applied to the seized material. We shall deal with each of these grounds separately.

I

In Freedman v. Maryland, supra, we struck down a state scheme for administrative licensing of motion pictures, holding “that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.” 380 U. S., at 58. To insure that a judicial determination occurs promptly so that administrative delay does not in itself become a form of censorship, we further held, (1) there must be assurance, “by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film”; (2) “[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution”; and (3) “the procedure must also assure a prompt final judicial decision” to minimize the impact of possibly erroneous administrative action. Id., at 58-59.

Subsequently, we invalidated Chicago’s motion picture censorship ordinance because it permitted an unduly long administrative procedure before the invocation of judicial action and also because the ordinance, although requiring prompt resort to the courts after administrative decision and an early hearing, did not assure “a prompt judicial decision of the question of the alleged obscenity of the film.” Teitel Film Corp. v. Cusack, 390 U. S. 139, 141 (1968). So, too, in Blount v. Rizzi, 400 U. S. 410 (1971), we held unconstitutional certain provisions of the postal laws designed to control use of the mails for commerce in obscene materials. Under those laws an administrative order restricting use of the mails could become effective without judicial approval, the burden of obtaining prompt judicial review was placed upon the user of the mails rather than the Government, and the interim judicial order, which the Government was permitted, though not required, to obtain pending completion of administrative action, was not limited to preserving the status quo for the shortest fixed period compatible with sound judicial administration.

As enacted by Congress, § 1305 (a) does not contain explicit time limits of the sort required by Freedman, Teitel, and Blount. These cases do not, however, require that we pass upon the constitutionality of § 1305 (a), for it is possible to construe the section to bring it in harmony with constitutional requirements. It is true that we noted in Blount that “it is for Congress, not this Court, to rewrite the statute,” 400 U. S., at 419, and that we similarly refused to rewrite Maryland’s statute and Chicago’s ordinance in Freedman and Teitel. On the other hand, we must remember that, “[w]hen the validity of an act of the Congress is drawn in question, and ... a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). Accord, e. g., Haynes v. United States, 390 U. S. 85, 92 (1968) (dictum); Schneider v. Smith, 390 U. S. 17, 27 (1968); United States v. Rumely, 345 U. S. 41, 45 (1953); Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring). This cardinal principle did not govern Freedman, Teitel, and Blount only because the statutes there involved could not be construed so as to avoid all constitutional difficulties.

The obstacle in Freedman and Teitel was that the statutes were enacted pursuant to state rather than federal authority; while Freedman recognized that a statute failing to specify time limits could be saved by judicial construction, it held that such construction had to be “authoritative,” 380 U. S., at 59, and we lack jurisdiction authoritatively to construe state legislation. Cf. General Trading Co. v. State Tax Comm’n, 322 U. S. 335, 337 (1944). In Blount, we were dealing with a federal statute and thus had power to give it an authoritative construction; salvation of that statute, however, would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors. For the statute at issue in Blount not only failed to specify time limits within which judicial proceedings must be instituted and completed; it also failed to give any authorization at all to the administrative agency, upon a determination that material was obscene, to seek judicial review. To have saved the statute we would thus have been required to give such authorization and to create mechanisms for carrying it into effect, and we would have had to do this in the face of legislative history indicating that the Postmaster General, when he had testified before Congress, had expressly sought to forestall judicial review pending completion of administrative proceedings. See 400 U. S., at 420 n. 8.

No such obstacles confront us in construing § 1305 (a). In fact, the reading into the section of the time limits required by Freedman is fully consistent with its legislative purpose. When the statute, which in its present form dates back to 1930, was first presented to the Senate, concern immediately arose that it did not provide for determinations of obscenity to be made by courts rather than administrative officers and that it did not require that judicial rulings be obtained promptly. In language strikingly parallel to that of the Court in Freedman, Senator Walsh protested against the “attempt to enact a law that would vest an administrative officer with power to take books and confiscate them and destroy them, because, in his judgment, they were obscene or indecent,” and urged that the law “oblige him to go into court and file his information there . . . and have it determined in the usual way, the same as every other crime is determined.” 72 Cong. Rec. 5419. Senator Wheeler likewise could not “conceive how any man” could “possibly object” to an amendment to the proposed legislation that required a customs officer, if he concluded material was obscene, to “tur[n] it over to the district attorney, and the district attorney prosecutes the man, and he has the right of trial by jury in that case.” 71 Cong. Rec. 4466. Other Senators similarly indicated their aversion to censorship “by customs clerks and bureaucratic officials,” id., at 4437 (remarks of Sen. Dill), preferring that determinations of obscenity should be left to courts and juries. See, e. g., id., at 4433—4439, 4448, 4452-4459; 72 Cong. Rec. 5417-5423, 5492, 5497. Senators also expressed the concern later expressed in Freedman that judicial proceedings be commenced and concluded promptly. Speaking in favor of another amendment, Senator Pittman noted that a customs officer seizing obscene matter “should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate . . . Id., at 5420 (emphasis added). Commenting on an early draft of another amendment that was ultimately adopted, Senator Swanson noted that officers would be required to go to court “immediately.” Id., at 5422. Then he added:

“The minute there is a suspicion on the part of a revenue or customs officer that a certain book is improper to be admitted into this country, he presents the matter to the district court, and there will be a prompt determination of the matter by a decision of that court.” Id., at 5424 (emphasis added).

Before it finally emerged from Congress, § 1305 (a) was amended in response to objections of the sort voiced above: it thus reflects the same policy considerations that induced this Court to hold in Freedman that censors must resort to the courts “within a specified brief period” and that such resort must be followed by “a prompt final judicial decision . . . .” 380 U. S., at 59. Congress' sole omission was its failure to specify exact time limits within which resort to the courts must be had and judicial proceedings be completed. No one during the congressional debates ever suggested inclusion of such limits, perhaps because experience had not yet demonstrated a need for them. Since 1930, however, the need has become clear. Our researches have disclosed cases sanctioning delays of as long as 40 days and even six months between seizure of obscene goods and commencement of judicial proceedings. See United States v. 77 Cartons of Magazines, 300 F. Supp. 851 (ND Cal. 1969); United States v. One Carton Positive Motion Picture Film Entitled “491,” 247 F. Supp. 450 (SDNY 1965), rev’d on other grounds, 367 F. 2d 889 (CA2 1966). Similarly, we have found cases in which completion of judicial proceedings has taken as long as three, four, and even seven months. See United States v. Ten Erotic Paintings, 311 F. Supp. 884 (Md. 1970); United States v. 35 MM Color Motion Picture Film Entitled “Language of Love,” 311 F. Supp. 108 (SDNY 1970); United States v. One Carton Positive Motion Picture Film Entitled “491,” supra. We conclude that to sanction such delays would be clearly inconsistent with the concern for promptness that was so frequently articulated during the course of the Senate’s debates, and that fidelity to Congress’ purpose dictates that we read explicit time limits into the section. The only alternative would be to hold § 1305 (a) unconstitutional in its entirety, but Congress has explicitly directed that the section not be invalidated in its entirety merely because its application to some persons be adjudged unlawful. See 19 U. S. C. § 1652. Nor does the construction of § 1305 (a) to include specific time limits require us to decide issues of policy appropriately left to the Congress or raise other questions upon which Congress possesses special legislative expertise, for Congress has already set its course in favor of promptness and we possess as much expertise as Congress in determining the sole remaining question — that of the speed with which prosecutorial and judicial institutions can, as a practical matter, be expected to function in adjudicating § 1305 (a) matters. We accordingly see no reason for declining to specify the time limits which must be incorporated into § 1305 (a) — a specification that is fully consistent with congressional purpose and that will obviate the constitutional objections raised by claimant. Indeed, we conclude that the legislative history of the section and the policy of giving legislation a saving construction in order to avoid decision of constitutional questions require that we undertake this task of statutory construction.

We begin by examining cases in the lower federal courts in which proceedings have been brought under § 1305 (a). That examination indicates that in many of the cases that have come to our attention the Government in fact instituted forfeiture proceedings within 14 days of the date of seizure of the allegedly obscene goods, see United States v. Reliable Sales Co., 376 F. 2d 803 (CA4 1967); United States v. 1,000 Copies of a Magazine Entitled “Solis,” 254 F. Supp. 595 (Md. 1966); United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled “Hellenic Sun,” 253 F. Supp. 498 (Md. 1966), aff’d, 373 F. 2d 635 (CA4 1967); United States v. 392 Copies of a Magazine Entitled “Exclusive,” 253 F. Supp. 485 (Md. 1966); and judicial proceedings were completed within 60 days of their commencement. See United States v. Reliable Sales Co., supra; United States v. 1,000 Copies of a Magazine Entitled “Solis,” supra; United States v. 56 Cartons Containing 19,500 Copies of a Magazine Entitled “Hellenic Sun,” supra; United States v. 392 Copies of a Magazine Entitled “Exclusive,” supra; United States v. 127,295 Copies of Magazines, More or Less, 295 F. Supp. 1186 (Md. 1968). Given this record, it seems clear that no undue hardship will be imposed upon the Government and the lower federal courts by requiring that forfeiture proceedings be commenced within 14 days and completed within 60 days of their commencement; nor does a delay of as much as 74 days seem undue for importers engaged in the lengthy process of bringing goods into this country from abroad. Accordingly, we construe § 1305 (a) to require intervals of no more than 14 days from seizure of the goods to the institution of judicial proceedings for their forfeiture and no longer than 60 days from the filing of the action to final decision in the district court. No seizure or forfeiture will be invalidated for delay, however, where the claimant is responsible for extending either administrative action or judicial determination beyond the allowable time limits or where administrative or judicial proceedings are postponed pending the consideration of constitutional issues appropriate only for a three-judge court.

Of course, we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts; in other contexts, such as a claim by a state censor that a movie is obscene, the Constitution may impose different requirements with respect to the time between the making of the claim and the institution of judicial proceedings or between their commencement and completion than in the context of a claim of obscenity made by customs officials at the border. We decide none of these questions today. We do nothing in this case but construe § 1305 (a) in its present form, fully cognizant that Congress may re-enact it in a new form specifying mew time limits, upon whose constitutionality we may then be required to pass.

So construed, § 1305 (a) may constitutionally be applied to the case before us. Seizure in the present case took place on October 24 and forfeiture proceedings were instituted on November 6 — a mere 13 days after seizure. Moreover, decision on the obscenity of Luros’ materials might well have been forthcoming within 60 days had claimant not challenged the validity of the statute and caused a three-judge court to be convened. We hold that proceedings of such brevity fully meet the constitutional standards set out in Freedman, Teitel, and Blount. Section 1305 (a) accordingly may be applied to the 37 photographs, providing that on remand the obscenity issue is resolved in the District Court within 60 days, excluding any delays caused by Luros.

II

We next consider Luros’ second claim, which is based upon Stanley v. Georgia, supra. On the authority of Stanley, Luros urged the trial court to construe the First Amendment as forbidding any restraints on obscenity except where necessary to protect children or where it intruded itself upon the sensitivity or privacy of an unwilling adult. Without rejecting this position, the trial court read Stanley as protecting, at the very least, the right to read obscene material in the privacy of one’s own home and to receive it for that purpose. It therefore held that § 1305 (a), which bars the importation of obscenity for private use as well as for commercial distribution, is overbroad and hence unconstitutional.

The trial court erred in reading Stanley as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use. In United States v. Reidel, ante, p. 351, we have today held that Congress may constitutionally prevent the mails from being used for distributing pornography. In this case, neither Luros nor his putative buyers have rights that are infringed by the exclusion of obscenity from incoming foreign commerce. By the same token, obscene materials may be removed from the channels of commerce when discovered in the luggage of a returning foreign traveler even though intended solely for his private use. That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce. Stanley’s emphasis was on the freedom of thought and mind in the privacy of the home. But a port of entry is not a traveler's home. His right to be let alone neither prevents the search of his luggage nor the seizure of unprotected, but illegal, materials when his possession of them is discovered during such a search. Customs officers characteristically inspect luggage and their power to do so is not questioned in this case; it is an old practice and is intimately associated with excluding illegal articles from the country. Whatever the scope of the right to receive obscenity adumbrated in Stanley, that right, as we said in Reidel, does not extend to one who is seeking, as was Luros here, to distribute obscene materials to the public, nor does it extend to one seeking to import obscene materials from abroad, whether for private use or public distribution. As we held in Roth v. United States, 354 U. S. 476 (1957), and reiterated today in Reidel, supra, obscenity is not within the scope of First Amendment protection. Hence Congress may declare it contraband and prohibit its importation, as it has elected in § 1305 (a) to do.

The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[For dissenting opinion of Mr. Justice Marshall, see ante, p. 360.]

Mr. Justice Harlan,

concurring in the judgment and in Part I of Mr. Justice White’s opinion.

I agree, for the reasons set forth in Part I of Mr. Justice White’s opinion, that this statute may and should be construed as requiring administrative and judicial action within specified time limits that will avoid the constitutional issue that would otherwise be presented by Freedman v. Maryland, 380 U. S. 51 (1965). Our decision today in United States v. Reidel, ante, p. 351, forecloses Luros’ claim that the Government may not prohibit the importation of obscene materials for commercial distribution.

Luros also attacked the statute on its face as overbroad because of its apparent prohibition of importation for private use. A statutory scheme purporting to proscribe only importation for commercial purposes would certainly be sufficiently clear to withstand a facial attack on the statute based on the notion that the line between commercial and private importation is so unclear as to inhibit the alleged right to import for private use. Cf. Breard v. Alexandria, 341 U. S. 622 (1951). It is incontestable that 19 U. S. C. § 1305 (a) is intended to cover at the very least importation of obscene materials for commercial purposes. See n. 1 of Mr. Justice White’s opinion. Since the parties stipulated that the materials were imported for commercial purposes, Luros cannot claim that his primary conduct was not intended to be within the statute’s sweep. Cf. Dombrowski v. Pfister, 380 U. S. 479, 491-492 (1965). Finally, the statute includes a severability clause. 19 U. S. C. § 1652.

Thus it is apparent that we could only narrow the statute’s sweep to commercial importation, were we to determine that importation for private use is constitutionally privileged. In these circumstances, the argument that Luros should be allowed to raise the question of constitutional privilege to import for private use, in order to protect the alleged First Amendment rights of private importers of obscenity from the “chilling effects” of the statute’s presence on the books, seems to me to be clearly outweighed by the policy that the resolution of constitutional questions should be avoided where not necessary to the decision of the case at hand.

I would hold that Luros lacked standing to raise the overbreadth claim. See Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 910 (1970).

On the foregoing premises I join Part I of the Court’s opinion and as to Part II, concur in the judgment.

Mr. Justice Stewart,

concurring in the judgment and in Part I of Mr. Justice White’s opinion.

I agree that the First Amendment does not prevent the border seizure of obscene materials sought to be imported for commercial dissemination. For the reasons expressed in Part I of Mr. Justice White’s opinion, I also agree that Freedman v. Maryland, 380 U. S. 51, requires that there be time limits for the initiation of forfeiture proceedings and for the completion of the judicial determination of obscenity.

But I would not in this case decide, even by way of dicta, that the Government may lawfully seize literary material intended for the purely private use of the importer. The terms of the statute appear to apply to an American tourist who, after exercising his constitutionally protected liberty to travel abroad, returns home with a single book in his luggage, with no intention of selling it or otherwise using it, except to read it. If the Government can constitutionally take the book away from him as he passes through customs, then I do not understand the meaning of Stanley v. Georgia, 394 U. S. 557.

Me. Justice Black,

with whom Mr. Justice Douglas joins, dissenting.

I

I dissent from the judgments of the Court for the reasons stated in many of my prior opinions. See, e. g., Smith v. California, 361 U. S. 147, 155 (1959) (Black, J., concurring); Ginzburg v. United States, 383 U. S. 463, 476 (1966) (Black, J., dissenting). In my view the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch.

I particularly regret to see the Court revive the doctrine of Roth v. United States, 354 U. S. 476 (1957), that “obscenity” is speech for some reason unprotected by the First Amendment. As the Court’s many decisions in this area demonstrate, it is extremely difficult for judges or any other citizens to agree on what is “obscene.” Since the distinctions between protected speech and “obscenity” are so elusive and obscure, almost every “obscenity” case involves difficult constitutional issues. After Roth our docket and those of other courts have constantly been crowded with cases where judges are called upon to decide whether a particular book, magazine, or movie may be banned. I have expressed before my view that I can imagine no task for which this Court of lifetime judges is less equipped to deal. Smith v. California, supra, (Black, J., concurring).

In view of the difficulties with the Roth approach, it is not surprising that many recent decisions have at least implicitly suggested that it should be abandoned. See Stanley v. Georgia, 394 U. S. 557 (1969); Redrup v. New York, 386 U. S. 767 (1967). Despite the proved shortcomings of Roth, the majority in Reidel today reaffirms the validity of that dubious decision. Thus, for the foreseeable future this Court must sit as a Board of Supreme Censors, sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex. I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has “redeeming social value.” This absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”

II

Wholly aside from my own views of what the First Amendment demands, I do not see how the reasoning of Mr. Justice White’s opinion today in Thirty-Seven Photographs can be reconciled with the holdings of earlier cases. That opinion insists that the trial court erred in reading Stanley v. Georgia, supra, “as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use.” Ante, at 376. But it is never satisfactorily explained just why the trial court’s reading of Stanley was erroneous. It would seem to me that if a citizen had a right to possess “obscene” material in the privacy of his home he should have the right to receive it voluntarily through the mail. Certainly when a man legally purchases such material abroad he should be able to bring it with him through customs to read later in his home. The mere act of importation for private use can hardly be more offensive to others than is private perusal in one’s home. The right to read and view any literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one’s luggage when entering the country.

The plurality opinion seems to suggest that Thirty-Seven Photographs differs from Stanley because “Customs officers characteristically inspect luggage and their power to do so is not questioned in this case . . . .” Ante, at 376. But surely this observation does not distinguish Stanley, because police frequently search private homes as well, and their power to do so is unquestioned so long as the search is reasonable within the meaning of the Fourth Amendment.

Perhaps, however, the plurality reasons silently that a prohibition against importation of obscene materials for private use is constitutionally permissible because it is necessary to prevent ultimate commercial distribution of obscenity. It may feel that an importer’s intent to distribute obscene materials commercially is so difficult to prove that all such importation may be outlawed without offending the First Amendment. A very similar argument was made by the State in Stanley when it urged that enforcement of a possession law was necessary because of the difficulties of proving intent to distribute or actual distribution. However, the Court unequivocally rejected that argument because an individual’s right to “read or observe what he pleases” is so “fundamental to our scheme of individual liberty.” 394 U. S., at 568.

Furthermore, any argument that all importation may be banned to stop possible commercial distribution simply ignores numerous holdings of this Court that legislation touching on First Amendment freedoms must be precisely and narrowly drawn to avoid stifling the expression the Amendment was designed to protect. Certainly the Court has repeatedly applied the rule against overbreadth in past censorship cases, as in Butler v. Michigan, 352 U. S. 380 (1957), where we held that the State could not quarantine “the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence.” Id., at 383. Cf. Thornhill v. Alabama, 310 U. S. 88 (1940); United States v. Robel, 389 U. S. 258 (1967).

Since the plurality opinion offers no plausible reason to distinguish private possession of “obscenity” from importation for private use, I can only conclude that at least four members of the Court would overrule Stanley. Or perhaps in the future that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room.

The plurality opinion appears to concede that the customs obscenity statute is unconstitutional on its face after the Court’s decision in Freedman v. Maryland, 380 U. S. 51 (1965), because this law specifies no time limits within which forfeiture proceedings must be started against seized books or pictures, and it does not require a prompt final judicial hearing on obscenity. Ante, at 368-369. Once the plurality has reached this determination, the proper course would be to affirm the lower court’s de-cisión. But the plurality goes on to rewrite the statute by adding specific time limits. The plurality then notes that the Government here has conveniently stayed within these judicially manufactured limits by one day, and on that premise it concludes the statute may be enforced in this case. In my view the plurality’s action in rewriting this statute represents a seizure of legislative power that we simply do not possess under the Constitution.

Certainly claimant Luros has standing to raise the claim that the customs statute’s failure to provide for prompt judicial decision renders it unconstitutional. Our previous decisions make clear that such censorship statutes may be challenged on their face as a violation of First Amendment rights “whether or not [a defendant’s] conduct could be proscribed by a properly drawn statute.” Freedman v. Maryland, supra, at 56. This is true because of the “danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” NAACP v. Button, 371 U. S. 415, 433 (1963). Since this censorship statute is unconstitutional on its face, and claimant has standing to challenge it as such, that should end the case without further ado. But the plurality nimbly avoids this result by writing a new censorship statute.

I simply cannot understand how the plurality determines it has the power to substitute the new statute for the one that the duly elected representatives of the people have enacted. The plurality betrays its uneasiness when it concedes that we specifically refused to undertake any such legislative task in Freedman, supra, and in Blount v. Rizzi, 400 U. S. 410 (1971). After holding the Maryland movie censorship law unconstitutional in Freedman, the Court stated:

“How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide.” 380 U. S., at 60.

With all deference, I would suggest that the decision whether and how the customs obscenity law should be rewritten is a task for the Congress, not this Court. Congress might decide to write an entirely different law, or even decide that the Nation can well live without such a statute.

The plurality claims to find power to rewrite the customs obscenity law in the statute's legislative history and in the rule that statutes should be construed to avoid constitutional questions. Ante, at 373. I agree, of course, that statutes should be construed to uphold their constitutionality when this can be done without misusing the legislative history and substituting a new statute for the one that Congress has passed. But this rule of construction does not justify the plurality’s acting like a legislature or one of its committees and redrafting the statute in a manner not supported by the deliberations of Congress or by our previous decisions in censorship eases.

The plurality relies principally on statements made by Senators Swanson and Pittman when the customs obscenity legislation was under discussion on the Senate floor. The defect in the Court’s reliance is that the Senators’ statements did not refer to the version of the law that was passed by Congress. Senator Pittman, objecting to one of the very first drafts of the law, said:

“Why would it not protect the public entirely if we were to provide for the seizure as now provided and that the property should be held by the officer seizing, and that he should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate....” 72 Cong. Rec. 5240.

A few minutes later Senator Walsh of Montana announced he would propose an amendment “that would meet the suggestion made by the Senator from Nevada [Mr. Pittman] . . . Id., at 5421. As Senator Walsh first presented his amendment it read:

“Upon the appearance of any such book or other matter at any customs office the collector thereof shall immediately transmit information thereof to the district attorney of the district in which such port is situated, who shall immediately institute proceedings in the district court for the forfeiture and destruction of the same . . . .” Ibid. (Emphasis added.)

Senator Swanson was referring to this first draft of the Walsh amendment when he made the remarks cited by the plurality that officers would be required to go to court “immediately” and that there would be a “prompt” decision on the matter. Id., at 5422, 5424. But just after Swanson’s statement the Walsh amendment was changed on the Senate floor to read as follows:

“Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized.” Id., at 5424. (Emphasis added.)

Thus the requirement that officers go to court “immediately” was dropped in the second draft of the Walsh amendment, and the language of this second draft was enacted into law. The comments quoted and relied upon by the plurality were made with reference to an amendment draft that was not adopted by the Senate and is not now the law. This legislative history just referred to provides no support that I can see for the Court’s action today. To the extent that these debates tell us anything about the Senate’s attitude toward prompt judicial review of censorship decisions they show simply that the issue was put before the Senate but that it did not choose to require prompt judicial review.

The plurality concedes that in previous censorship cases we have considered the validity of the statutes before us on their face, and we have refused to rewrite them. Although some of these cases did involve state statutes, in Blount v. Rizzi, 400 U. S. 410 (1971), we specifically declined to attempt to save a federal obscenity mail-blocking statute by redrafting it. The Court there plainly declared: “it is for Congress, not this Court, to rewrite the statute.” Id., at 419. The plurality in its opinion now seeks to distinguish Blount because saving the mail-blocking statute by requiring prompt judicial review “would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors.” Ante, at 369. But the only “expressed intention” cited by the plurality to support this argument is testimony by the Postmaster General that he wanted to forestall judicial review pending completion of administrative mail-blocking proceedings. Ante, at 370. That insignificant piece of legislative history would have posed no obstacle to the Court’s saving the mail-blocking statute by requiring prompt judicial review after prompt administrative proceedings. Yet the Court in Blount properly refused to undertake such a legislative task, just as it did in the cases involving state censorship statutes.

The plurality also purports to justify its judicial legislation by pointing to the severability provisions contained in 19 U. S. C. § 1652. It is difficult to see how this distinguishes earlier cases, since the statutes struck down in Freedman v. Maryland, supra, and Teitel Film Corp. v. Cusack, 390 U. S. 139 (1968), also contained severability provisions. See Md. Ann. Code, Art. 66A, § 24 (1957), Municipal Code of Chicago § 155-7.4 (1961).

The plurality is not entirely clear whether the time limits it imposes stem from the legislative history of the customs law or from the demands of the First Amendment. At one point we are told that 14 days and 60 days are not the “only constitutionally permissible time limits,” and that if Congress imposes new rules this would present a new constitutional question. Ante, at 374. This strongly suggests the time limits stem from the Court’s power to “interpret” or “construe” federal statutes, not from the Constitution. But since the Court’s action today has no support in the legislative history or the wording of the statute, it appears much more likely that the time limits are derived from the First Amendment itself. If the plurality is really drawing its rules from the First Amendment, I find the process of derivation both peculiar and disturbing. The rules are not derived by considering what the First Amendment demands, but by surveying previously litigated cases and then guessing what limits would not pose an “undue hardship” on the Government and the lower federal courts. Ante, at 373. Scant attention is given to the First Amendment rights of persons entering the country. Certainly it gives little comfort to an American bringing a book home to Colorado or Alabama for personal reading to be informed without explanation that a 74-day delay at New York harbor is not “undue.” Faced with such lengthy legal proceedings and the need to hire a lawyer far from home, he is likely to be coerced into giving up his First Amendment rights. Thus the whims' of customs clerks or the congestion of their business will determine what Americans may read.

I would simply leave this statute as the Congress wrote it and affirm the judgment of the District Court.

I do not understand why the plurality feels so free to abandon previous precedents protecting the cherished freedoms of press and speech. I cannot, of course, believe it is bowing to popular passions and what it perceives to be the temper of the times. As I have said before, “Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power.” Turner v. United States, 396 U. S. 398, 426 (1970) (Black, J., dissenting). In any society there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, “that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.” Dennis v. United States, 341 U. S. 494, 581 (1951) (Black, J., dissenting).

      Mr. Justice HarlaN and Mr. Justice Stewart also join Part I of the opinion.

       19 U. S. C. § 1305 (a) provides in pertinent part:
      “AH persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material, or any cast, instrument, or other article which is obscene or immoral .... No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the collector that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the importer, owner, agent, or consignee, the entire contents of the package in which such articles are contained, shall be subject to seizure and forfeiture as hereinafter provided .... Provided, further, That the Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.
      “Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; and no protest shall be taken to the United States Customs Court from the decision of the collector. Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.
      “In any such proceeding any party in interest may upon demand have the facts at issue determined by a jury and any party may have an appeal or the right of review as in the case of ordinaria actions or suits.”

       The United States urges that we find time limits in 19 U. S. C. §§ 1602 and 1604. Section 1602 provides that customs agents who seize goods must "report every such seizure immediately” to the collector of the district, while § 1604 provides that, once a case has been turned over to a United States Attorney, it shall be his duty “immediately to inquire into the facts” and “forthwith to cause the proper proceedings to be commenced and prosecuted, without delay,” if he concludes judicial proceedings are appropriate. We need not decide, however, whether §§ 1602 and 1604 can properly be applied to cure the invalidity of § 1305 (a), for even if they were applicable, they would not provide adequate time limits and would not cure its invalidity. The two sections contain no specific time limits, nor do they require the collector to act promptly in referring a matter to the United States Attorney for prosecution. Another flaw is that § 1604 requires that, if the United States Attorney declines to prosecute, he must report the facts to the Secretary of the Treasury for his direction, but the Secretary is under no duty to act with speed. The final flaw is that neither section requires the District Court in which a case is commenced to come promptly to a final decision.

       The District Court’s opinion is not entirely clear. The court may have reasoned that Luros had a right to import the 37 photographs in question for planned distribution to the general public, but our decision today in United States v. Reidel, ante, p. 351, makes it clear that such reasoning would have been in error. On the other hand, the District Court may have reasoned that, while Luros had no right to import the photographs for distribution, a person would have a right under Stanley to import them for his own private use and that § 1305 (a) was therefore void as over-broad because it prohibits both sorts of importation. If this was the court’s reasoning, the proper approach, however, was not to invalidate the section in its entirety, but to construe it narrowly and hold it valid in its application to Luros. This was made clear in Dombrowski v. Pfister, 380 U. S. 479, 491-492 (1965), where the Court noted that, once the overbreadth of a statute has been sufficiently dealt with, it may be applied to prior conduct foreseeably within its valid sweep.

       Again, as in United States v. Reidel, supra, the obscenity vel non of the seized materials is not presented at this juncture of the case.

       As Mr. Justice White’s opinion correctly says, even if seizure of material for private use is unconstitutional, the statute can still stand in appropriately narrowed form, and the seizure in this case clearly falls within the valid sweep of such a narrowed statute. Ante, at 375, n. 3.

        Aptheker v. Secretary of State, 378 U. S. 500.

      [This opinion applies also to No. 534, United States v. Reidel, ante, p. 351.]


source: Caselaw Access Project

author:
      Me. Justice Blackmun
      Mr. Justice Douglas,

license: Public Domain

text:
    RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. PERALES
    No. 108.
    Argued January 13, 1971
    Decided May 3, 1971
    Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Harlan, Stewart, White, and Marshall, JJ., joined. Douglas, J., filed a dissenting opinion, in which Black and Brennan, JJ., joined, post, p. 411.

      Deputy Solicitor General Friedman argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Ruckels-haus, Assistant Attorney General Gray, Lawrence G. Wallace, Kathryn H. Baldwin, and Michael C. Farrar.

      Richard Tinsman, by appointment of the Court, 398 U. S. 902, argued the cause and filed a brief for respondent.
    Briefs of amici curiae were filed by Franklin M. Schultz and John T. Miller, Jr., for the American Bar Association; by Frank P. Christian, Harry B. Adams III, and Melvin N. Eichelbaum for the Bexar County Legal Aid Association; and by Jonathan Weiss for the Appalachian Research and Defense Fund et al.
   Me. Justice Blackmun

delivered the opinion of the Court.

In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 6' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216 (i) (1), 68 Stat. 1080, and 223 (d)(1), 81 Stat. 868, of that Act, 42 U. S. C. § 416 (i) (1) and 42 U. S. C. § 423 (d)(1) (1964 ed., Supp. V), both provide that the term “disability” means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . ,” Section 205 (g), 42 TJ. S. C. §405 (g), relating to judicial review, states, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . . .”

The issue here is whether physicians’ written reports of medical examinations they have made of a disability claimant may constitute “substantial evidence” supportive of a finding of nondisability, within the § 205 (g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports.

I

In his claim Perales asserted that on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L-5 was advised. The patient at first hesitated about surgery and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin. No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: “Nerve root compression syndrome, left.” The patient was discharged from Dr. Munslow’s care on January 25, 1966, with a final diagnosis of “Neuritis, lumbar, mild.”

Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work.

In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final discharge diagnosis was: “Back sprain, lumbo-sacral spine.”

Perales then filed his claim. As required by § 221 of the Act, 42 U. S. C. § 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: “Back sprain — lumbo-sacral spine,” this time “moderately severe,” with “Ruptured disk not ruled out.” The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25.

Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales’ being “on crutches or cane” since his injury. He noted a slightly edematous condition in the legs, attributed to “inactivity and sitting around”; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and “a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move.” Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a “big physical healthy specimen . . . obviously holding back and limiting all of his motions, intentionally. . . . His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. . . . Neurological examination is entirely normal to detailed sensory examination with pinwheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere.” The orthopedist’s summarization, impression, and prognosis are in the margin.

The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant’s attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient’s constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled. He recommended against any further surgery.

The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey’s report to the agency on August 30, 1966, concluded with the following diagnosis:

“Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships.
“I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc.”

The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant’s attending physician, were considered, as were those of the other examining physicians. The claim was again denied.

Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson’s notes referred to “some chronic or past disturbance of function in the nerve supply” to the left and right anterior tibialis muscles and right extensor digitorium brevis muscles that was “strongly suggestive of lack of maximal effort” and was “the kind of finding that is typically associated with a functional or psychogenic component to weakness.” There was no evidence of “any active process effecting [sic] the nerves at present.” Dr. Langston advised the agency that Dr. Mattson’s finding of “very poor effort” verified what Dr. Langston had found on the earlier physical examination.

The requested hearing was set for January 12, 1967, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer.

The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant’s counsel and admitted.

At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent “medical adviser,” that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant’s attorney. He stated that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin.

The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, “There is objective medical evidence of impairment which the heavy preponderance of the evidence indicates to be of mild severity. . . . Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof.” He specifically found that the claimant “is suffering from a low back syndrome of musculo-liga-mentous origin, and of mild severity”; that while he “has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity”; that “[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined” in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner’s decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits.

It is to be noted at this point that § 205 (d) of the Act, 42 U. S. C. § 405 (d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary’s regulations, authorized by § 205 (a), 42 U. S. C. § 405 (a), provide that a claimant may request the issuance of subpoenas, 20 CFR § 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings.

The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment dated June 2, 1967, in Perales’ favor against an insurance company for workmen’s compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, “I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole.” The Appeals Council ruled that the decision of the hearing examiner was correct.

Upon this adverse ruling the claimant instituted the present action for review pursuant to § 205 (g). Each side moved for summary judgment on the administrative transcript. The District Court stated that it was reluctant to accept as substantial evidence the opinions of medical experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. Perales v. Secretary, 288 F. Supp. 313 (WD Tex. 1968). On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt’s testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. Cohen v. Perales, 412 F. 2d 44 (1969).

On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner’s decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Cohen v. Perales, 416 F. 2d 1250 (1969). Certiorari was granted in order to review and resolve this important procedural due process issue. 397 U. S. 1035 (1970).

II

We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient’s unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant’s and his personal physician’s earnest pleas that significant and disabling residuals from the mishap of September 1966 are indeed present.

The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be “substantial evidence” when it stands alone and is opposed by live medical evidence and the client’s own contrary personal testimony? The courts below have held that it may not.

III

The Social Security Act has been with us since 1935. Act of August 14, 1936, 49 Stat. 620. It affects nearly all of us. The system’s administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government’s brief here accurately pronounces, “Such a system must be fair — and it must work.”

Congress has provided that the Secretary

“shall have full power and authority to make rules and regulations and to establish procedures . . . necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.” § 205 (a), 42 U. S. C. §405 (a).

Section 205 (b) directs the Secretary to make findings and decisions; on request to give reasonable notice and opportunity for a hearing; and in the course of any hearing to receive evidence. It then provides:

“Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure.”

In carrying out these statutory duties the Secretary has adopted regulations that state, among other things:

“The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. . . . The . . . procedure at the hearing generally . . . shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing.” 20 CFR § 404.927.

From this it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner’s discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair.

IV

With this background and this atmosphere in mind, we turn to the statutory standard of “substantial evidence” prescribed by § 205 (g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, § 10 (e), in its original form, provided that the NLRB’s findings of fact “if supported by evidence, shall be conclusive.” 49 Stat. 454. The Court said this meant “supported by substantial evidence” and that this was ’

“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938).

The Court has adhered to that definition in varying statutory situations. See NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939); Universal Camera Corp. v. NLRB, 340 U. S. 474, 477-487 (1951) ; Consolo v. Federal Maritime Comm’n, 383 U. S. 607, 619-620 (1966).

V

We may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving “the differing rules of fair play, which through the years, have become associated with differing types of proceedings,” Hannah v. Larche, 363 U. S. 420, 442 (1960); that “the 'right’ to Social Security benefits is in one sense 'earned,’ ” Flemming v. Nestor, 363 U. S. 603, 610 (1960); and that the

“extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss’.... Accordingly . . . 'consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ ” Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970).

The question, then, is as to what procedural due process requires with respect to examining physicians’ reports in a social security disability claim hearing.

We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.

We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value:

1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant. A majority (Drs. Langston, Bailey, and Mattson) were called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses.

2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly.

3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his pre-operative observations and diagnosis, his findings at surgery, his post-operative diagnosis, and his post-operative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales’ complaints, the physical examination and neu-rologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same post-operatively, and described the orthopedic tests and neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did the post-operative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient’s complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination.

These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales’ claim is not in itself bias or an indication of nonprobative character.

4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth.

5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer’s field of specialized training.

6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR § 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental hearing could be requested. In fact, in this very case there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant’s part supports the Court of Appeals’ view, 412 F. 2d, at 50-51, that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.

7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker’s well-known ruling in the war-risk insurance case of Long v. United States, 59 F. 2d 602, 603-604 (CA4 1932),. which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in White v. Zutell, 263 P. 2d 613, 615 (1959), and in so doing, relied on the Business Records Act, 28 U. S. C. § 1732.

8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice, uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt. In these cases admissibility was not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases.

9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as “[t]he sheer magnitude of that administrative burden,” and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony.” Page v. Celebrezze, 311 F. 2d 757, 760 (CA5 1963). With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply.

VI

1. Perales relies heavily on the Court’s holding and statements in Goldberg v, Kelly, supra, particularly the comment that due process requires notice “and an effective opportunity to defend by confronting any adverse witnesses . . . .” 397 U. S., at 267-268. Kelly, however, had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, “where credibility and veracity are at issue, as they must be in many termination proceedings.” 397 U. S., at 269.

The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians’ reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors’ credibility or veracity. Kelly affords little comfort to the claimant.

2. Perales also, as the Court of Appeals stated, 412 F. 2d, at 53, 416 F. 2d, at 1251, would describe the medical reports in question as “mere uncorroborated hearsay” and would relate this to Mr. Chief Justice Hughes’ sentence in Consolidated Edison Co. v. NLRB, 305 U. S., at 230: “Mere uncorroborated hearsay or rumor does not constitute substantial evidence.”

Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material “without a basis in evidence having rational probative force.” This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case.

3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical adviser. 288 F. Supp., at 314, 412 F. 2d, at 53-54. See also Mefford v. Gardner, 383 F. 2d 748, 759-761 (CA6 1967). Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing “reprehensible” in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral adviser. This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant’s condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See Doe v. Department of Transportation, 412 F. 2d 674, 678-680 (CA8 1969). We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing.

4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U. S. C. § 556 (d) (1964 ed., Supp. V). The claimant goes on to assert that in any event the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and “to make the Government’s case as strong as possible”; that naturally he leans toward a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing Offutt v. United States, 348 U. S. 11, 14 (1954), and In re Murchison, 349 U. S. 133, 136 (1955); and that an “independent hearing examiner such as in the” Longshoremen’s and Harbor Workers’ Compensation Act should be provided.

We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General’s Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155. The cited § 556 (d) provides that any documentary evidence “may be received” subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a “party is entitled to present his case or defense by oral or documentary evidence . . . and to conduct such cross-examination as may be required for a full and true disclosure of the facts” and in “determining claims for money or benefits ... an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.”

These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act’s §§ 205 (a) and (b) “to establish procedures,” and “to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits,” and to receive evidence “even though inadmissible under rules of evidence applicable to court procedure.” Hearsay, under either Act, is thus admissible up to the point of relevancy.

The matter comes down to the question of the procedure’s integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants’ reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed “cross-examination as may be required for a full and true disclosure of the facts.” That is the standard. It is clear and workable and does not fall short of procedural due process.

Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity. The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts. The 44.2% reversal rate for all federal disability hearings in cases where the state agency does not grant benefits, M. Rock, An Evaluation of the SSA Appeals Process, Report No. 7, U. S. Department of HEW, p. 9 (1970), attests to the fairness of the system and refutes the implication of impropriety.

We therefore reverse and remand for further proceedings. We intimate no view as to the merits. It is for the District Court now to determine whether the Secretary’s findings, in the light of all material proffered and admissible, are supported by “substantial evidence” within the command of §205 (g).

It is so ordered.

Mr. Justice Douglas,

with whom Mr. Justice Black and Mr. Justice Brennan concur, dissenting.

This claimant for social security disability benefits had a serious back injury. The doctor who examined him testified that he was permanently disabled. His case is defeated, however, by hearsay evidence of doctors and their medical reports about this claimant. Only one doctor who examined him testified at the hearing. Five other doctors who had once examined the claimant did not testify and were not subject to cross-examination. But their reports were admitted in evidence. Still another doctor testified on the hearsay in the documents of the other doctors. All of this hearsay may be received, as the Administrative Procedure Act (5 U. S. C. § 556 (d) (1964 ed., Supp. V)) provides that “[a]ny oral or documentary evidence may be received.” But this hearsay evidence cannot by itself be the basis for an adverse ruling. The same section of the Act states that “[a] party is entitled ... to conduct such cross-examination as may be required for a full and true disclosure of the facts.”

As a consequence the Court of Appeals said:

“Our opinion holds, and we reaffirm, that mere uncorroborated hearsay evidence as to the physical condition of a claimant, standing alone and without more, in a social security disability case tried before a hearing examiner, as in our case, is not substantial evidence that will support a decision of the examiner adverse to the claimant, if the claimant objects to the hearsay evidence and if the hearsay evidence is directly contradicted by the testimony of live medical witnesses and by the claimant who [testifies] in person before the examiner, as was done in the case at bar.” 416 F. 2d 1250, 1251.

Cross-examination of doctors in these physical injury cases is, I think, essential to a full and fair disclosure of the facts.

The conclusion reached by the Court of Appeals that hearsay evidence alone is not “substantial” enough to sustain a judgment adverse to the claimant is supported not only by the Administrative Procedure Act but also by the Social Security Act itself. Although Congress provided in the Social Security Act that “[ejvidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure,” see 42 U. S. C. § 405 (b), Congress also provided that findings of the Secretary were to be conclusive only “if supported by substantial evidence.” 42 U. S. C. § 405 (g). (Emphasis added.) Uncorroborated hearsay untested by cross-examination does not by itself constitute “substantial evidence.” See Consolidated Edison Co. v. NLRB, 305 U. S. 197, 230 (1938). Particularly where, as in this case, a disability claimant appears and testifies as to the nature and extent of his injury and his family doctor testifies in his behalf supporting the fact of his disability, the Secretary should not be able to support an adverse determination on the basis of medical reports from doctors who did not testify or the testimony of an HEW employee who never even examined the claimant as a patient.

This case is minuscule in relation to the staggering problems of the Nation. But when a grave injustice is wreaked on an individual by the presently powerful federal bureaucracy, it is a matter of concern to everyone, for these days the average man can say: “There but for the grace of God go I.”

One doctor whose word cast this claimant into limbo never saw him, never examined him, never took his vital statistics or saw him try to walk or bend or lift weights.

He was a “medical adviser” to HEW. The use of circuit-riding doctors who never see or examine claimants to defeat their claims should be beneath the dignity of a great nation. Three other doctors who were not subject to cross-examination were experts retained and paid by the Government. Some, we are told, who were subject to no cross-examination were employed by the workmen’s compensation insurance company to defeat respondent’s claim.

Judge Spears who first heard this case said that the way hearing officers parrot “almost word for word the conclusions” of the “medical adviser” produced “nausea” in him. Judge Spears added:

“[H]earsay evidence in the nature of ex parte statements of doctors on the critical issue of a man's present physical condition is just a violation of the concept with which I am familiar and which bears upon the issue of fundamental fair play in a hearing.
“Then, when you pyramid hearsay from a so-called medical advisor, who, himself, has never examined the man who claims benefits, then you just compound it — compound a situation that I simply cannot tolerate in my own mind, and I can’t see why a hearing examiner wants to abrogate his duty and his responsibility and turn it over to some medical advisor.”

Review of the evidence is of no value to us. The vice is in the procedure which allows it in without testing it by cross-examination. Those defending a claim look to defense-minded experts for their salvation. Those who press for recognition of a claim look to other experts. The problem of the law is to give advantage to neither, but to let trial by ordeal of cross-examination distill the truth.

The use by HEW of its stable of defense doctors without submitting them to cross-examination is the cutting of corners — a practice in which certainly the Government should not indulge. The practice is barred by the rules which Congress has provided; and we should enforce them in the spirit in which they were written.

I would affirm this judgment.

       Not pertinent here are the durational aspects of disability-specified in the statute’s definition.

       “Midline incision is made in upper border of the spine of L4 downward in the midline to the upper sacrum. Dissection is carried down and in the subperiosteal space exposing the interspaces at L4-5 and L5 SI. At each interspace, partial laminectomy is carried out on the left and of the bone adjacent to the interspace followed by resection of the intervening ligament in order that the interspace could be thoroughly explored both by inspection as well as by palpation. In each instance, there was no protrusion of the disc identified. Further resection downward over the sacrum is carried out in order that we do not overlook the fragment of disc that may have extruded extra-durally in this space but none is found.
      “There seems to be more tightness of structures particularly of the roots in the dural sac and the lumbar area than one usually encountered. It is felt that this is the situation representing the root compression syndrome, the exact mechanics of which is not apparent. It is felt that for this reason that hemilaminectomy of the left L-5 would afford the patient additional decompression and this is carried out. After this had been done the dural sac bulges upward in a more normal position. Repeat inspection through the intact dura reveals no evidence of an intradural mass. Likewise the anterior aspect of the canal appears normal. . . .”

       “IMPRESSION: He may have a very mild chronic back sprain associated with the congenital anomalies as seen on x-ray, but it has been a long time since I have been so impressed with the obvious attempt of a patient to exaggerate his difficulties by simply just standing there and not moving — -not even the uninvolved upper extremities. Thus, he has a tremendous psychological overlay to this illness, and I sincerely suggest that he be seen by a psychiatrist.
      “PROGNOSIS: He should have intensive physio-therapy m the form of active exercise, including walking, bicycling, and an all out attempt at conservative rehabilitation. Were he to follow this program, and were it to be effective, I would estimate the time necessary at about three to six months. This is also considering that he does not have any serious psychiatric disease, though he obviously does have a tremendous psychological overlay to his illness.”

       “Diagnosis in this case should be considered as crush injury to disc in the lumbo-sacral region of the spine resulting in either a ruptured disc or a slipped disc which was subsequently operated on by Dr. Ralph Munslow. Since the operation, the patient has not made a complete recovery; on the contrary, the patient continues to complain as bitterly now as he did prior to surgery.
      “Since I started seeing this patient on April 13, I have had occasion to see and talk with him over 30 times. During this period and with this number of visits, I have become thoroughly convinced that this man is not malingering. I am completely convinced of his sincerity and of the genuine and truthful nature of his complaints. From my own observations and from physical examination, it is my considered opinion that this patient has indeed an injury to the lumbo-sacral region of the spine which has not been corrected by surgery. My opinion is that the injury sustained is of a permanent nature and that as things presently stand, the patient is totally, completely, and permanently disabled. It is my considered opinion that this patient in the condition in which he finds himself at this time would not be able to continue gainful employment as a common laborer. Inasmuch as this patient has had previous surgery to the affected area, I do not know that further surgery would have anything to offer him, and have told him that about the most I could offer him would be a support belt to help relieve the symptoms, by the use of a walking cane, and analgesics for relief of the symptoms.”

       Brief 14.

       Although, as noted above, one stated ground of objection was the absence of proof of the physicians’ Texas licensure, we do not understand that there is any serious issue as to the possession of Texas licenses by Drs. Munslow, Lampert, Langston, Bailey, and Mattson.

       We are advised by the Government’s brief, p. 18, nn. 7 and 8, that in fiscal 1968, 515,938 disability claims were processed; that, of these, 343,628 (66.601%) were allowed prior to the hearing stage; that approximately one-third of the claims that went to hearing were allowed; and that 320,164 consultant examinations were obtained.

        Ratliff v. Celebrezze, 338 F. 2d 978, 982 (CA6 1964); but see Miracle v. Celebrezze, 351 F. 2d 361, 365, 382-383 (CA6 1965).

         Ber v. Celebrezze, 332 F. 2d 293, 296-298 (CA2 1964); Stancavage v. Celebrezze, 323 F. 2d 373, 374 (CA3 1963); Dupkunis v. Celebrezze, 323 F. 2d 380, 382 (CA3 1963); Cochran v. Celebrezze, 325 F. 2d 137, 138 (CA4 1963); Cuthrell v. Celebrezze, 330 F. 2d 48, 50-51 (CA4 1964); Aldridge v. Celebrezze, 339 F. 2d 190, 191 (CA5 1964); Dodsworth v. Celebrezze, 349 F. 2d 312, 313-314 (CA5 1965); Bridges v. Gardner, 368 F. 2d 86, 89 (CA5 1966); Green v. Gardner, 391 F. 2d 606 (CA5 1968); Martin v. Finch, 415 F. 2d 793, 794 (CA5 1969); Breaux v. Finch, 421 F. 2d 687, 689 (CA5 1970); Phillips v. Celebrezze, 330 F. 2d 687, 689 (CA6 1964); Justice v. Gardner, 360 F. 2d 998, 1000-1001 (CA6 1966); Moon v. Celebrezze, 340 F. 2d 926, 928 (CA7 1965); Pierce v. Gardner, 388 F. 2d 846, 847 (CA7 1967), cert. denied, 393 U. S. 885; Celebrezze v. Sutton, 338 F. 2d 417, 419-420 (CA8 1964); Brasher v. Celebrezze, 340 F. 2d 413, 414 (CA8 1965); McMullen v. Celebrezze, 335 F. 2d 811, 815 (CA9 1964), cert. denied, 382 U. S. 854; Flake v. Gardner, 399 F. 2d 532, 534 (CA9 1968); Celebrezze v. Warren, 339 F. 2d 833, 836 (CA10 1964); McMillin v. Gardner, 384 F. 2d 596, 597 (CA10 1967).

      S. Rep. No. 752, 79th Cong., 1st Sess., 22-23.
      “The right of cross-examination extends, in a proper case, to written evidence submitted pursuant to the last sentence of the subsection as well as to cases in which oral or documentary evidence is received in open hearing. ... To the extent that cross-examination is necessary to bring out the truth, the party should have it. . .
      The House Judiciary Committee expressed a like view.
      “The provision on its face does not confer a right of so-called ‘unlimited’ cross-examination. Presiding officers will have to make the necessary initial determination whether the cross-examination is pressed to unreasonable lengths by a party or whether it is required for the ‘full and true disclosure of the facts’ stated in the provision. Nor is it the intention to eliminate the authority of agencies to confer sound discretion upon presiding officers in the matter of its extent. The test is — as the section states — whether it is required 'for a full and true disclosure of the facts.’. . . The right of cross-examination extends, in a proper case, to written evidence submitted pursuant to the last sentence of the section as well as to cases in which oral or documentary evidence is received in open hearing. . . . To the extent that cross-examination is necessary to bring out the truth, the party must have it. . . .” H. R. Rep. No. 1980, 79th Cong., 2d Sess., 37.

       While the Administrative Procedure Act allows statutory exceptions of procedures different from those in the Act, 5 U. S. C. § 556 (1964 ed., Supp. V), there is no explicit ban in the Social Security Act (42 U. S. C. § 405) against the right of cross-examination. And the Regulations of the Secretary provide that there must be “a reasonable opportunity for a fair hearing.” 20 CFR § 404.927.