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highest importance. On those subjects, such as the separation of examiners from the agencies they serve, there has been a wide divergence of views. The committee has in such cases taken the course which it believes will suffice without going too far at this time. Moreover, amendatory or supplementary legislation can supply any, deficiency which experience discloses.

The committee believes that special note should be made of the following situations:

The exemption of rule making and determining initial applications for licenses from provisions of sections 5 (c), 7 (c), and 8 (a) may require change if, in practice, it develops that they are too broad. The committee feels that, where cases present sharply contested issues of fact, agencies should not as a matter of good practice take advantage of the exemptions.

Should the preservation in section 7 (a), of the “conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute," prove to be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners, but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties a fair and impartial procedure.

The basic provision respecting dence in section (c)-requiring that any agency action must be supported by plainly “relevant, reliable, and probative evidence”—will require full compliance by agencies and diligent enforcement by reviewing courts. Should that language prove insufficient to fix and maintain the standards of proof, supplemental legislation will become necessary. The standards and principles of probity and reliability of evidence must be the same as those prevailing in courts of law or equity in nonadministrative cases. There are no real rules of probity and reliability even in courts of law, but there are certain standards and principles usually applied tacitly and resting mainly upon common sense--which people engaged in the conduct of responsible affairs instinctively understand and act upon. They may vary with the circumstances and kind of case, but they exist and must be rationally applied. These principles to govern in administrative proceedings.

The "substantial evidence” rule set forth in section 10 (e) is exceedingly important. As a matter of language, substantial evidence would seem to be an adequate expression of law. The difficulty comes about in the practice of agencies to rely upon (and of courts to tacitly approve) something less-to rely upon suspicion, surmise, implications, or plainly incredible evidence. It will be the duty of the courts to determine in the final analysis and in the exercise of their independent judgment, whether on the whole record the evidence in a given instance is sufficiently substantial to support a finding, conclusion, or other agency action as a matter of law. In the first instance, however, it will be the function of the agency to determine the sufficiency of the evidence upon which it actsand the proper performance of its public duties will require it to undertake this inquiry in a careful and dispassionate manner. Should these objectives of the bill as worded fail, supplemental legislation will be required. “Substantial evidence" means evidence which on the whole record is clearly substantial, sufficient to support a finding or compulsion under section 7 (c), and material to the issues.

The foregoing are by no means all the provisions which will require vigilant attention to assure their proper operation. Almost any provision of the bill, if wrongly interpreted or minimized, may present occasion for supplemental legislation. On the other hand, should it appear at any time that the requirements result in some undue impairment of a particular administrative function, appropriate amendments or exceptions may be in order.

This is not a measure conferring administrative powers but is one laying down definitions and stating limitations. These definitions and limitations must be interpreted and applied by agencies affected by them in the first instance. But the enforcement of the bill, by the in endent judicial interpretation and application of its terms, is a function which is clearly conferred upon the courts in the final analysis.

It will thus be the duty of reviewing courts to prevent avoidance of the requirements of the bill by any manner or form of indirection, and to determine the meaning of the words and phrases used. In several provisions the expression “good cause” is used. The cause so specified must be interpreted by the context of the provision in which it is found and by the purpose of the entire section and bill. Cause found must be real and demonstrable. If the agency is proceeding upon a statutory hearing and record, the cause will appear there; otherwise it must be such that the agency may show the facts and considerations warranting the finding in any proceeding in which the finding is challenged. The same would be true in the case of findings other than of good cause, required in the bill. As has been said, these findings must in the first instance be made by the agency concerned; but, in the final analysis, their propriety in law and on the facts must be sustainable upon inquiry by a reviewing court. The committee recommends that the bill as reported be enacted.

(Following are inserts which were also printed in the above pages in December 1945 American Bar Association Journal and which are referred to by Mr. Montague:) ATTORNEY GENERAL'S STATEMENT APPROVING PROPOSED ADMINISTRATIVE PROCEDURE


(On October 19, 1945, there was delivered to the chairmen of the Committees on the Judiciary in the Senate and House of Representatives of the Congress of the United States from Attorney General Tom C. Clark a letter which, apart from its recitals and formal paragraphs, reads as follows:)

I appreciate the opportunity to comment on this proposed legislation.

For more than a decade there has been pending in the Congress legislation in one form or another designed to deal horizontally with the subject of administrative procedure, so as to overcome the confusion which inevitably has resulted from leaving to basic agency statutes the prescription of the procedures to be followed or, in many instances, the delegation of authority to agencies to prescribe their own procedures. Previous attempts to enact general procedural legislation have been unsuccessful generally because they failed to recognize the significant and inherent differences between the tasks of courts and those of administrative agencies or because, in their zeal for simplicity and uniformity, they proposed too narrow and rigid a mold.

Nevertheless, the goal toward which these efforts have been directed is, in my opinion, worth while. Despite difficulties of draftsmanship, I believe that overall procedural legislation is possible and desirable. The administrative process is now well developed. It has been subject in recent years to the most intensive and informed study—by various congressional committees, by the Attorney General's Committee on Administrative Procedure, by organizations such as the American Bar Association, and by many individual practitioners and legal scholars. We have in general—as we did not have until fairly recently—the materials and facts at hand. I think the time is ripe for some measure of control and prescription by legislation. I cannot agree that there is anything inherent in the subject of administrative procedure, however complex it may be, which defies workable codification.


The bill appears to offer a hopeful prospect of achieving reasonable uniformity and fairness in administrative procedures without at the same time interfering unduly with the efficient and economical operation of the Government. Insofar as possible, the bill recognizes the needs of individual agencies by appropriate exemption of certain of their functions.

After reviewing the committee print, therefore, I have concluded that this Department should recommend its enactment.


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For convenient study by association members, the following summary compares and contrasts the provisions of the pending bill (S. 7 as revised) emanating from the minority in the Attorney General's committee in 1941 (approved in principle and supported by the association) and the Walter-Logan bill (drafted and supported by the association in 1939). The comparison shows the reasons which lead the association's committee on administrative law to regard the present bill, now reported favorably in the Senate, to be an improvement upon the previous bills as well as a long and remedial step in the right direction.

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(S. 7 and H. R. 1203, 79th Cong. For revised text and comments thereon, see S. Rept. 752 of November 19, 1945.);

SEC. 1. Title.-"Administrative Proce-
dure Act.”

SEC. 2. Definitions.-Defines (a) agency,
excepting representative and war agencies,
(b) person and party, (c) rule and rule
making, (d) order and adjudication, (e)
license and licensing, (f) sanction and re-
lief, (g) agency proceeding and action.

Definitions not as complete (sec. 102). Subdelegations of authority authorized (sec. 103).

Agencies defined by form or independ-
ence (sec. 1 (3) and (4)] but many
exempted by name or subject matter [(sec.
7 (b)]. Only "interpretative” rules de-
fined [sec. 1 (1)], thereby excluding rules
of substance, procedure, and policy as well
as forms and instructions. Adjudication
defined as “specific controversies” or dis-
putes respecting any claim, right, obliga-
tion, privilege, or license (sec. 1 (8) and
(9)]. No definition of sanction or relief.

No provision except that no one to be
held liable for compliance with rescinded
or invalid rules except after published
rescission or declaration of invalidity (sec.
2 (d)).

Similar provisions respecting the issuance of rules [secs. 202, 203, 205). Decisions must be published (sec. 308 (m) (7)] but no provision for access to public records.

Sec. 3. Public information.-Except se-
cret functions and internal management:
(a) Agencies are required to publish or-
ganization, procedure, and other formu-
lated rules, (b) opinions and orders are to
be published or open to inspection, and (c)
official records are to be made available to
properly interested persons.

SEC. 4. Rule making.-Except war, for-
eign affairs, management, and proprietary
functions: (a) Notice of rule making is to
be published in certain instances, (b) there-

Similar general exceptions (sec. 201]; protection for reliance on published rules (sec. 204] ; similar notice (sec. 208]; similar procedure (sec. 209); has less definite

Rules to be made on notice of proposed rule and hearing ; existing rules to be subject to mandatory reconsideration; and rules to be effective only upon publication





provision for deferred effective dates [sec.
207] ; similar right of petition (sec. 210];
rulings not to serve as rules (sec. 212); and
provides for annual transmission of rules
to Congress [sec. 213].

except upon Presidential declaration of emergency [sec. 2 (a)-(c)]. No provision for petitions.

after interested persons are to be per-
mitted to make at least written submittals
for agency consideration, except that if
other statutes require an agency hearing
then sections 7 and 8 apply, (c) effective
date of rules is to be 30 days following pub-
lication, and (d) any interested person may
petition for issuance, amendment, or re-
peal of a rule.

SEC. 5. Adjudication.—Where statutes
require a hearing: (a) Contents of notice
are specified, (b) hearings are to be held
under sections 7 and 8 to the extent issues
cannot first be settled informally, (c) hear-
ing officers are required to operate entirely
separate from prosecuting officers and to
make or recommend the decision in the
case, and (d) agencies are authorized to
issue declaratory orders.

No provision as to notice or contents
thereof. Nothing respecting separation of
prosecuting from hearing or deciding func-
tions. No declaratory orders. Agency
hearings required in every case (sec. 4 (a)
and (d)], thereby impliedly destroying
rights of judicial trial de novo since judi-
cial review would presumably be confined
to the administrative record.

Provisions apply in all cases not spe-
cially excepted and whether or not other
statutes require a hearing [sec. 301]; simi-
lar notice requirements (secs. 305, 306] ;
similar procedure (secs. 303, 307] ; similar
separation of functions [sec. 308 (a)]; and
similar provision as to declaratory rulings
(sec. 304). Would, in effect, presumably
eliminate trials de novo on judicial review
by providing for administrative hearings
and record in all subjects not specially ex-

Similar provisions as to appearance (sec.
104]; statement as to admissions to prac-
tice, suspension, or debarment (sec. 105] ;
similar requirement for expediting cases
[sec. 302] ; more elaborate limitations on
investigations (sec. 106] ; more limited pro-
vision respecting subpenas [sec. 107].

SEC. 6. Ancillary matters.--(a) Parties
are entitled to counsel. (b) Investigations
are to be confined to authority granted
agencies and witnesses are entitled to
copies of testimony. (c) Subpenas are to
be issued to parties on request and reason-
able showing, and are to be judicially en-
forced if in accordance with law. (d)
Written notice and statement of grounds
is to be given in denying any request in any
agency proceeding.

SEC. 7. Hearings.-In hearings which
sections 4 or 5 require to be conducted
under this section : (a) Presiding officers
are to be the agency or its members, ex-

No specification of rights of appearance
or counsel, except attorneys to be eligible
to practice before agencies "unless other-
wise prohibited by law” [sec. 7 (c)]. No
limitations on investigative powers. Sub-
pena powers affirmatively granted but only
in the case of adjudications by noninde-
pendent agencies (sec. 4 (c)]. No provi-
sions respecting administrative denials of

Similar provision respecting presiding
officers [sec. 308 (b)) as well as their dis-
qualification (sec. 308 (d)] and powers
[sec. 308 (e) and (g)). Provision for en-

Employee-boards to hear adjudications
in nonindependent agencies, in which any-
one showing “substantial interest” may in-
tervene [sec. 4 (a) and (b)]. Examiners

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