The implications are so far-reaching that the subject needs full and searching study. Several of the other measures for reform, as they affect the problems of administrative justice, do not raise such difficulties. A potentially useful general measure is the proposed independent Office of Federal Administrative Practice. Judge Prettyman's committee, which investigated the shortcomings of administrative procedure, said: "Much discussion of the administrative process in action suffers from a lack of precise and up-to-date factual information as to how various procedures currently operate.' "63 As already shown, such an office has been established on an experimental basis within the Department of Justice. Since this agency would not deal with law enforcement problems, it seems preferable for it to be an independent body, as proposed in the pending bill. This kind of agency has already been established in California and could beneficially be created by other states, as well as local governments in large cities. Also warranting favorable action is the suggested establishment of an independent corps of hearing commissioners. This may help surmount the shortcomings in the present examiner system. Here, too, it should be noted, California has already taken the lead. And supplementing these controls over adjudicative functions, much undoubtedly can be said in favor of a code of agency conduct now under active consideration by an ABA committee. More questionable are several of the changes which would be effected by the substitution of the proposed Code of Federal Administrative Procedure for the existing Administrative Procedure Act. The most significant, as they affect the administrative adjudicative function, are the enlarged scope of judicial review and the extension of the separation of functions provisions to agency heads and to questions of law. The substitution of the "clearly erroneous" rule for the “substantial evidence" rule, as the basis for review of administrative determinations of fact, cannot be written off as merely a change in language. For many courts it would undoubtedly constitute a green light to enlarge the scope of review. It has not been shown that the existing rule has malfunctioned. And it seems desirable to retain the distinction in scope of review as between an administrative 63 REPORT OF PRESIDENT'S CONFERENCE ON ADMINISTRATIVE PROCEDURE 47 (1955). agency, whose expertness may be an important factor, and a court in a civil non-jury case. Also unwarranted are the excessively broad restrictions of the proposed separation of functions provision. Is it practical to require agency heads to insulate themselves, sometimes for extended periods of time, from members of their own staff and from some of the people whose business they are regulating? Is it not going too far to forbid hearing officers to consult others on questions of law, as the Code proposes to do? (Judges, it should be noted, are not so restricted.) Although it may be possible to narrow the scope of application to include only those concerned with the particular proceeding, it is doubtful that an adequate provision of this kind can be written. This is so because incompatible forces are involved. On the one hand, particularly in the regulatory agencies, the most convincing arguments can be made in favor of the combination of various functions, including the adjudicative. As we have seen, the need for expertness, flexibility, uniformity and continuity of application and the need for preventive measures, all are persuasive in behalf of a central and unitary administrative organ. On the other hand, we have also seen that it is the nature of the regulatory agency to require contacts with, and exposure to, the people in the industry regulated and their elected representatives and thereby to almost irresistible pressures. In lieu of continued refinement of the separation of functions provision or emasculation of the adjudicatory function, the following proposal is submitted. Supplementing the measures which would give judicial independence to hearing commissioners, consideration might also be given to the establishment of a new type of intraagency appeal board. This would consist of three or more hearing commissioners and would have final appellate authority in adjudicatory proceedings within an agency. The board's decisions would not be subject to review by agency heads, although they would be reviewable by the courts. The board decisions, however, would be within the context of agency policy as established by the agency heads either by rule or otherwise. If, in a particular instance, an appeal board interpreted a rule or policy which the agency head considered wrong, the decision in the particular case could not be reversed by the agency head. But he could clarify the policy for the future, in the same way that a legislature can change a judicial statutory interpretation. This would relieve the agency heads of exacting and time-consuming tasks, which have rarely been satisfactorily performed by them, and dispense with the necessity of debilitating their authority within the agency under a logically necessary separation of functions provision. LIST OF PANELISTS PARTICIPATING IN JUNE 1959 PANEL DISCUSSION HEARINGS ON MAJOR ADMINISTRATIVE PROCESS PROBLEMS Adams, Joseph P., executive director and general counsel, Association of Local Transport Airlines, room 242 Wyatt Building, Washington, D.C. Alper, Jerome M. Esq., 425 13th Street NW., Washington, D.C. Arpaia, Anthony F., Commissioner, Interstate Commerce Commission, Washington, D.C. Babcock, Harry A., executive director, Federal Trade Commission, Washington, D.C. Beardsley, Peter T., general counsel, American Trucking Associations, Washington, D.C. Beelar, Donald C., Esq., World Center Building, Washington, D.C. Bond, J .D., Federal Trial Examiners Conference, 1415 North Adams Street, Arlington, Va. Boss, Harold P., Federal Trial Examiners Conference, 306 Windsor Street, Silver Spring, Md. Broderick, Vincent L., general counsel, National Association of Investment Cos., 61 Broadway, New York, N.Y. Brown, Francis W., chief examiner, Civil Aeronautics Board, Washington, D.C. Brown, H. Templeton. Esq., Mayer, Friedlich, Spiess, Tierney, Brown & Platt, 231 South La Salle Street, Chicago, Ill. Brownell, George A., Esq. Davis, Polk, Wardell, Sunderland & Kiendl, 15 Broad Street, New York, N.Y. Burt, William C., Esq., 836 Wyatt Building, Washington, D.C. Conner, Richard J., president, Federal Power Bar Association, 821 15th Street NW., Washington, D.C. Cooper, C. William, vice president and general counsel, Consolidated Natural Gas Co., 30 Rockefeller Plaza, New York, N.Y. Cowgill, Harold G., Chief, Broadcast Bureau, Federal Communications Commission, Washington, D.C. Coyle, Paul, director, Bureau of Operating Rights, Interstate Commerce Commission, Washington, D.C. Creyke, Geoffrey, Jr., chairman, Administrative Law Section of the District of Columbia Bar Association, Washington Building, Washington, D.C. Crosland, E. B.. vice president, American Telephone & Telegraph Co., 195 Broadway, New York, N.Y. Cunningham, James D., Chief Hearing Examiner, Federal Communications Commission, Washington, D.C. Curry, R. Granville, Association of ICC Practitioners, 631 Southern Building, Deale, Valentine B., Esq., 1001 Connecticut Avenue NW., Washington, D.C. DeVoursney, Andrew M., vice president and treasurer, United Airlines, 5959 Dickey, Raymond R., Esq., 1406 G Street NW., Washington, D.C. Dixon, Arthur J., general attorney, Southern Railway System, 15th and K Streets NW., Washington, D.C. Doerfer, John C., Chairman, Federal Communications Commission, Washington, D.C. Donelan, John F., Esq., Pope, Ballard & Loos, Munsey Building, Washington, Durfee, James R., Chairman, Civil Aeronautics Board, Washington, D.C. Feldman, Justin N., chairman. Committee on Administrative Law of the Association of the Bar of the City of New York, 415 Madison Avenue, New York, N.Y. Fitzgerald, John L., general counsel, Federal Communications Commission, Washington, D.C. Fletcher, Frank U., Esq., Munsey Building, Washington, D. C. Fournier, Leslie T., vice president and treasurer, Panhandle Eastern Pipe Line Co., 120 Broadway, New York, N.Y. Freas, Howard G., Commisioner, Interstate Commerce Commission, Washington, D.C. Gadsby, Edward N., chairman, Securities and Exchange Commission, Washington, D.C. Gatchell, Willard W., General Counsel, Federal Power Commission, Washington, D.C. Ginnane, Robert W., General Counsel, Interstate Commerce Commission, Washington, D.C. Gray, Edward C., executive vice president, New York Stock Exchange, 11 Wall Street, New York, N.Y. Haffer, Louis P., executive vice president and counsel, Air Freight Forwarders Association, 802 Ring Building, Washington, D.C. Hall, Robert E. Lee, general counsel. National Coal Association and secretary, Fuels Research Council, Southern Building, suite 802, Washington, D.C. Hammond, Harold F., executive vice president, Transportation Association of America, 1000 Connecticut Avenue NW., Washington, D.C. Hancock, Parker D., Esq., Hogan & Hartson, Colorado Building, Washington, D.C. Hansen, T. Vernon, Southern States Cooperative (TAA) 1000 Connecticut Avenue NW., Washington, D.C. Haycraft, Everett F., Director, Hearing Examiners, Federal Trade Commission, Washington, D.C. Henkel, David S., Esq., Sullivan & Cromwell, 48 Wall Street, New York. N.Y. Hislop, Robert N., hearing examiner, Securities and Exchange Commission, Washington, D.C. Jaffe, Louis L., professor, Law School of Harvard University, Cambridge, Mass. Johnson, Stanfield, Association of American Railroads, Transportation Building, Washington, D.C. Kallina, Carl T., Chief, Bureau of Rates and Gas Certificates, Federal Power Commission, Washington, D.C. Kintner, Earl W., Chairman, Federal Trade Commission, Washington, D.C. Koplovitz, William C., Esq., Bowen Building, 815 15th Street NW., Washington, D.C. Kuykendall, Jerome K., Chairman, Federal Power Commission, Washington. D.C. Layne, A. Alvis, Jr., Esq., Pennsylvania Building, Washington, D.C. Lear, Coates, Esq., 1625 I Street NW., Washington, D.C. LeBoeuf, Randall J., Jr., Esq., LeBoeuf, Lamb & Leiby, 15 Broad Street, New York, N.Y. Locke, Gordon C., general counsel, Committee for Oil Pipelines, 418 Munsey Building, Washington, D.C. MacIver, Robert R., assistant counsel, Pittsburgh Plate Glass Co., One Gateway Center, Pittsburgh, Pa. Mann, J. David, Jr., Esq., 1230 Pennsylvania Building, Washington, D.C. Marks, Leonard H., president, Federal Communications Bar Association, Cafritz Building, Washington, D.C. Marsh, Edward B., chief hearing examiner, Federal Power Commission, Washington, D.C. May, Robert E., former chairman, Federal Power Bar Association, 1700 K Street NW., Washington, D.C. McCormick, Edward T., president, American Stock Exchange, 86 Trinity Place, New York, N.Y. McGannon, Donald H., president, Westinghouse Broadcasting Corp., 122 East 42d Street, New York, N.Y. Meeker, Thomas G., General Counsel, Securities and Exchange Commission. Washington, D.C. Meer, Julian M., Esq., 1900 Mercantile-Dallas Building, Dallas, Texas. Mulligan, M. C., Director, Bureau of Air Operations, Civil Aeronautics Board, Washington, D.C. Pfeiffer, Paul N., Federal Trial Examiners Conference, 412 Basset Road, Alexandria, Va. Pinkney, James F., vice president-law, Ryder System, Inc., 3401 Main Highway, Miami, Fla. Pirie, John C., vice president and associate general counsel, Pan American Prizer, John B., vice president and general counsel, the Pennsylvania Railroad Natural Gas Co., Watts Building. |