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may hear cases in independent agencies
of three or more members [sec. 4 (d)].
No specification of hearing powers except
authority to administer oaths in adjudica-
tions by nonindependent agencies (sec. 4
(C)). No specification of evidence re-
quirements, except rights of examination
and cross examination in cases of adjudica-
tion [sec. 4 (c)). Provision for record in
adjudications by nonindependent agencies
(sec. 4 (b)], but no provision respecting
taking of official notice. However, these
provisions do not apply to rule making.

Adjudications to be made by employee-
boards of nonindependent agencies, subject
to revision by agency head (sec. 4 (b)].
Independent agencies of less than three
members to proceed similarly; those of
three or more members may have examiners
hear cases, subject to rehearing by three
members (sec. 4 (d)]. In either case
there are to be written findings and deci-
sion [sec. 4 (b) and (d)]. No provision
for decisions in rule making.

No provision.

Examiners to make initial decisions (sec.
308 (b), (k), and (m)] subject to appeal
or review by the agency [sec. 308 (n) and
(0)). All decisions to be accompanied by
reasons and findings (sec. 308 (m)].
However, these provisions do not apply to
rule making.

Contains only general limitations (sec. 309] and limitations on publicity [sec. 108].

forcement of process (sec. 308 (f)]. Simi-
lar provisions as to evidence (sec. 308 (h)
and (i)] and record [sec. 308 (1) and (j)).
However, these provisions do not apply to
rule making (see sec. 209 (d)].

aminers, or others specially provided for
in other statutes, all to act impartially and
be subject to disqualification, (b) presid-
ing officers are to have authority necessary
to conduct the hearing and dispose of mo-
tions, (c) irrelevant and repetitious evi-
dence is to be excluded as a matter of
policy and no sanction is to be imposed
or rule or order issued except as supported
by relevant, reliable, and probative evi-
dence, and (d) record of the hearing is to
be exclusive for purposes of decision.

SEC. 8. Decisions.-Where hearing is re-
quired under section 7: (a) Examiners
are to make either initial decision or recom-
mended decision, as the agency may deter-
mine, and (b) prior to any recommended
or other decision the parties are entitled
to submit suggested findings, exceptions,
and supporting reasons and all decisions
are to include findings on material issues
and a statement of the appropriate action.

SEC. 9. Sanctions and powers.-In exer-
cise of any power or authority: (a) No
sanction is to be imposed or rule or order
issued save within jurisdiction delegated
and authority granted by law, (b) license
applications are to be acted upon promptly,
revocation is not to be attempted except
upon notice and opportunity for the licensee
to comply with lawful requirements, and
renewals are not to be deemed denied until
finally acted upon.

SEC. 10. Judicial review.-Except so far
as statutes preclude judicial review or
agency action is by law committed to

As to rules, provision for judicial review through declaratory judgment procedure respecting constitutional, statutory, or

In the case of rules, judicial review within 30 days or publication in District of Columbia Appeals Court, without preWALTER-LOGAN BILL (1939)

judice to other review authorized by law;
scope of review limited to constitutional,
statutory authority, or procedural ques-
tions (sec. 3]. In the case of adjudica-
tions, within 30 days petition for review
may be filed with Disrict of Columbia
Appeals Court or Circuit Court of Appeals
or Court of Claims for review respecting
constitutional or statutory questions, sub-
stantial evidence, support by findings of
fact, agency jurisdiction, or adequacy of
notice and hearing [sec. 5). No specifi-
cation of remedies for situations arising
before or after the review so provided.
No statement of reviewable acts. No pro-
vision for interim relief except that ad-
judications impliedly not enforceable
pending review [sec. 4 (b)). No recogni-
tion of rights of trial of facts de novo.
“Insubstantial” petitions for review to be
penalized by costs (sec. 6].

No provision. The importance of an Administrative Procedure Act is greater than its precise terms. Such a statute will provide a juristic new start in the field of administrative law. It will define some of the fundamental and essential procedural rights, one of which is that every agency shall publish its procedures in detail for all to

BILL NOW PENDING (1945)

MINORITY BILL FROM THE ATTORNEY-GENERAL

COMMITTEE (1941)

procedural questions; but facts of applic-
ability to be determined by agency [sec.
211]. As to adjudications, similar provi-
sions (sec. 310] but no provision for com-
pelling agencies to act, authorizing interim
relief, or recognizing rights to trials de

novo.

agency discretion : (a) any person suffer-
ing legal wrong is entitled to judicial re-
view, (b) the form of action is to be that
specially provided by any statute or, in
the absence or inadequacy thereof, any
appropriate common-law action, (c) every
action for which there is no other adequate
remedy is made subject to such review,
(d) agencies or courts may stay agency
action or preserve status or rights pending
review, and (e) reviewing courts, upon
the whole record and with due regard for
the rule of prejudicial error, are to deter-
mine all questions of law, compel agency
action unlawfully withheld, and hold un-
lawful action found, (1) arbitrary, (2)
not in accord with the Constitution, (3) in
violation of any statute, (4) without ob-
servance of procedure required by law,
(5) unsupported by substantial evidence
on the record in cases subject to sections
7 and 8, or (6) unwarranted by the facts to
extent that facts are subject to trial de
novo by the reviewing court.

SEC. 11. Examiners.--Examiners are to
be appointed pursuant to Civil Service for
proceedings under section 7 and 8 and may
perform no inconsistent duties. They are
removable only for good cause determined
by Civil Service Commission after hearing,
which is subject to judicial review. They
are to receive compensation prescribed and
adjusted by Civil Service Commission in-
dependently of agency recommendations or
ratings.

Elaborate provision for an Office of Fed-
eral Administrative Procedure with a di-
rector appointed by the President who,
with a judge and the Director of the Ad-
ministrative Office of the United States
Courts, would conduct research [sec. 109]
and approve, determine compensation of,
and remove examiners (sec. 308 (c)].

It will lay the foundation for further legislation as future need and further experience point the way. It will free the Congress, when new administrative powers are proposed or old ones are being revised, to give attention to matters of substance without endlessly reconsidering and revising procedures of particular agencies. It will thus make possible a greater and growing measure of justice through government under law. It thus may become perhaps the most important event in improving the administration of justice in the modern sense since the Judiciary Act of 1789.

SEC. 12. Construction and Effect --The Declarations of policy [secs. 101, 200, Existing judicial remedies preserved
act is not to impair other or additional 300). Other legal requirements preserved [sec. 7 (a)].
legal rights. Procedure is to apply equally [secs. 209 (g) and 310 (a)). Special en-
Saving clause. Authority is granted to forcement provisions (sec. 110). Provi-
agencies to comply with the act. Sub- sion for Presidential suspension (sec. 111].
sequent repeals are to be express. Effec- Saving clause (sec. 112] and effective dates
tive dates are to be deferred and the act is [sec. 113].
not to apply to proceedings previously
begun.

ow.

Following the pages above quoted from December 1945 American Bar Association Journal is the editorial in the same issue to which Mr. Montague referred, in which the Journal editors refer to the address of Circuit Judge John D. Martin which has several times been quoted in these hearings by Congressman Reece and James F. Hoge, following which the Journal editors disagree with Judge Martin and say:

By no means all lawyers and judges would go as far as Circuit Judge John D. Martin did in his recent address before the Sixth Circuit Judicial Conference, quoted elsewhere in this issue, and by no means all would agree with his informal statement of the present court-made limitations on reviewand so forth. The complete editorial is as follows:

THE ADMINISTRATIVE PROCEDURE BILL

One of the most gratifying steps forward, in the history of the American Bar Association's long fight for reforms in administrative law and procedure, was taken on November 19, when the Senate Committee on the Judiciary reported favorably the bill of its chairman, Senator Pat McCarran, of Nevada (S, 7 as revised), with a strong and persuasive recommendation for its enactment.

The action of the committee was taken under circumstances so auspicious and favorable as to give an unusual significance and encouragement. The members of the committee had devoted most paintaking consideration to the provisions and text of the bill, had taken into account the views and suggestions of public-minded members of the administrative agencies as well as of interested organizations and individuals, and had worked closely and cooperatively with the Attorney General of the United States.

The result is a bill which is strongly supported by the committee, in a cogent report which will be a landmark in the struggle to bring the administrative agencies within the framework of American justice according to law. The bill as reported had been approved unanimously by the American Bar Association's committee on administrative law, and is fully in line with the action voted by the association, as to the earlier draft, through its representative house of delegates in 1944 (30 A. B. A. J. 185–193) and by its board of governors last April (31 A. B. A. J. 245).

Most fortunately for the prospects of the early enactment of this long-needed measure of reform, the bill is approved and recommended by the Department of Justice, through Attorney General Tom C. Clark, whose statement is quoted elsewhere in this issue.

Our columns this month contain in convenient form such information and analyses as our readers will wish, as to the bill as recommended and the committee's presentation of it. Appropriately, the extended synopsis of the bill is not our own, but is taken from the committee's clear and comprehensive report, which becomes a part of the important legislative history of the measure if it becomes law. Our readers will find that many of the committee's declarations concerning the bill, the need and reasons for it, and the intended effect of its provisions, have the utmost significance.

The bill as first drafted was introduced also in the House of Representatives (H. R. 1203) by the chairman of its Committee on the Judiciary, Judge Hatton W. Sumners, of Texas; and the measure has many strong adherents, in the committees and on the floor, of each the Senate and the House.

The previous debate and vote in the house of delegates in recommending strongly the enactment of the administrative procedure bill as first drafted by the association's special committee, together with the favorable action of the board of governors this year in authorizing and approving the present bill, have alined the association in full and hearty support of it. The fortunate results secured, for the public and the profession, under the authorizations voted by the house of delegates and the board of governors, will be reported to the house when it convenes in Cincinnati on December 17.

It seems to be appropriate and fully warranted to say at this time that the favorable report on the bill and the support which it is receiving from Attorney General Clark and others, reflect a remedial and common-sense approach to the

assure.

subject, on the part of spokesmen for the administrative agencies as well as in the Congress. There seems to be now a general realization that substantial reforms in this field of law have long been needed, were deplorably delayed by the war, and should now be undertaken in a spirit of fairness and conformance to American standards of due notice, fair hearing, and impartial decision.

By some members of the association it will be regretted that the present provisions for "judicial review” do not go as far as they would have wished, and there may be fears that the language of the bill will be construed to permit less of judicial scrutiny than the committee has stated that its measure is drafted to

Other members of the association may feel that the bill goes too far, in enlarging the scope of judicial review. In the American Bar Association and its house of delegates, the views of the members have been strongly on the side of a more substantial and searching judicial review than has been accorded under many of the recent decisions of the courts. By no means all lawyers and judges would go as far as Circuit Judge John D. Martin did in his recent address before the Sixth Circuit Judicial Conference, quoted elsewhere in this issue, and by no means all would agree with his informal statement of the present court-made limitations on review; but there is undoubtedly a feeling of concern and dissatisfaction, widely held among lawyers, their clients, and some judges, that the substance of rights is imperiled by the substitution of administrative agencies for law-governed courts and the curbing of the judicial power to see to it that justice has not been denied.

The report of the Senate committee makes it clear that as to judicial review, as on other subjects, the present bill makes a substantial beginning of progress in the right direction, not the ultimate of legislative action. On more than a few points, the committee states its awareness that the bill's provisions could be evaded or whittled away, by an agency or court hostile to the legislative purpose. The Senate committee admonishes that it does not propose to permit such a thing to last long if it does transpire; it promises that corrective legislation will be sponsored, to assure the carrying out of the legislative intent. If enacted by the present Congress, the measure will in any event be improved and strengthened from time to time, in the light of the experience under it. The report leaves no doubt of the firmness of the committee's purpose to deal adequately with the abuses and to require their elimination or correction.

At a time when so many voices in the world are confused and anxious, and when the restoration of law-governed liberties seems to hang in the balance in so many lands, it is heartening news indeed that the Senate of the United States, through its Committee on the Judiciary, is taking the first step toward remedying abuses which have long been evident and seem now to be generally admitted. Members of the American Bar Association have reason for satisfaction in the fact that their organization "stuck to its guns” in the long uphill struggle against administrative absolutism, and that an important step forward has now been taken in the Congress, under circumstances which give reasonable assurance of success if lawyers and other citizens rally in support of the pending measure.

We felicitate the Senate committee, the Attorney General, the representatives of agencies, the association's special committee, and all concerned, on the equable spirit in which this vital bill has been perfected and the admirable way in which it is now reported and supported.

Mr. Sadowski. Have we any witnesses here who have a short statement to make ?

Mr. Davis. We do not have any witnesses who will get through in half an hour.

We have, as I indicated before, assigned certain phases of the hearings to different members of the staff to cover that, instead of trying to have a lot of short witnesses, and the next witness we would introduce would be the assistant chief counsel, Mr. Whiteley. He will discuss the proposals with respect to reducing the penalties and certain other things which have been brought out by the proponents of the bill in their testimony.

He cannot finish in half an hour.

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