Administrative Procedure

At the annual convention in Boston, in 1936, the special committee on administrative law submitted a report summarizing the provisions of the Logan-Celler bill, and recommended the adoption of a resolution approving in principle the establishment of a Federal Administrative Court, but without approving or disapproving any then pending bill (61 A. B. A. Rept. 720-794 (1936)). The subject of the composition, scope, and jurisdiction of the court was re-referred to the committee for further study and consideration, with directions to report at the next annual convention (61 A. B. A. Rept. 235 (1936)).

The Report on Administrative Management in the Executive Branch of the Government of the United States, submitted January 8, 1937, by the President's Committee on Administrative Management, through Louis Brownlow, Chairman, Charles Merriam and Luther Guelick, and the accompanying study, The Problem of the Independent Regulatory Commission, by Robert E. Cushman, contained recommendations very closely parallel to one of the two alternative plans presented to the American Bar Association at its annual convention in Milwaukee in 1934 (59 A. B. A. Rept. 539–546 (1934)). These alternatives, each designed to segregate judicial functions so far as practicable, were (1) a Federal Administrative Court or (2) an appropriate number of independent tribunals having judicial functions only and analogous to the United States Board of Tax Appeals. In its report submitted to the American Bar Association at its annual convention in Kansas City in 1937, the special committee on administrative law stated that it had concluded to drop any attempt to create an Administrative Court or to consolidate existing legislative courts, and submitted, in lieu thereof, a proposal similar in principle to S. 916 and H. R. 4235, introduced in the first session of the Seventy-sixth Congress by Senator Logan and Congressman Celler, respectively. These bills, however, were not American Bar Association bills, and did not have the endorsement of that association (62 A. B. A. Rept. 789-850 (1937)). The house of delegates approved the recommendations of the committee with respect to intradepartmental boards of review and judicial review "as a declaration of principle," with the contents of the bill to be subject to approval by the board of governors. A revised draft was approved by the board of governors, and introduced by Senator Logan as S. 3676, Seventy-fifth Congress, third session (62 A. B. A. Rept. 334 (1937)).

S. 3676, Seventy-fifth Congress, third session, proposed to establish a United States Court of Appeals and Administration to receive, decide, and expedite appeals from Federal commissions, administrative authorities, and tribunals in which the United States is a party or has an interest. The court would have consisted of a chief justice and not to exceed 40 associate justices. This proposal was not new. It was discussed in the August 1933 American Bar Association Journal, beginning at page 471. It had been commented upon by the special committee on administrative law in 1933 and 1934 (58 A. B. A. Rept. 203, 427 (1933); 59 A. B. A. Rept. 550 (1934)). Hearings on S. 3676 were held by a subcommittee of the Senate Committee on the Judiciary on April 1, and 5, 1938, but no further action thereon was taken.

At the annual meeting of the American Bar Association in Cleveland, in 1938, the only action taken on the report submitted by the committee on administrative law was that of the house of delegates directing that a bill be submitted to the house of delegates and the board of governors for consideration (63 A. B. A. Rept. 331-368 (1938)).

On January 3, 1939, Congressman Celler introduced H. R. 234, Seventy-sixth Congress, first session, to establish a United States Administrative Court to expedite the hearing and determination of controversies with the United States, and for other purposes. This bill was similar to the Logan bill, S. 3676, Seventyfifth Congress, third session. It was superseded by S. 916 and H. R. 4235, Seventysixth Congress, first session.

Up to this time all proposals had been directed toward the establishment of a Federal Administrative Court, or the equivalent thereof. The first of the so-called administrative law bills was S. 915, introduced in the first session of the Seventysixth Congress by Senator Logan, to provide for the more expeditious settlement of disputes with the United States. An identical bill, H. R. 4236, was introduced by Congressman Celler.

The Logan-Celler bill (S. 915 and H. R. 4236) represented the first introduction in Congress of the American Bar Association legislative proposals on this subject, these bills having received formal approval of the American Bar Association by action of its board of governors and its house of delegates at their meetings in Chicago in January 1939. (See American Bar Association Journal, February 1939, pages 93-102.) The bill as submitted by the association's special committee on

administrative law was amended before being approved. The committee was directed by the house of delegates to take such action as might be necessary to obtain enactment of the endorsed bill (64 A. B. A. Rept. 281 (1939)).

S. 915 was reported by the Senate Committee on the Judiciary, with amendments, on May 17, 1939 (S. Rept. 442, 76th Cong., 1st sess.). The bill was passed by the Senate on July 1, 1939, but restored to the calendar by adoption of a motion to reconsider. H. R. 6324, practically identical with S. 915, as amended and passed by the Senate, was introduced by Congressman Walter.

An annotated copy of S. 915 as passed by the Senate was published on February 8, 1940, as Senate Document 145, Seventy-sixth Congress, third session. An analysis of this proposed legislation was printed in the Congressional Record of April 18, 1940, at pages 7225-7228. An article discussing it was printed in the

Congressional Record of May 1, 1940, at page 8242-8248.

S. 915, H. R. 4236, and H. R. 6324 departed from the administrative court bills by providing for the "implementing" of administrative rules.

The administrative court bills, however, continued to be presented to the Congress. S. 916 was introduced by Senator Logan, and H. R. 4235 was introduced by Congressman Celler. These bills, proposing an administrative court of a chief justice and 10 associate justices were similar to earlier bills on that subject. On February 24, 1939, the Attorney General announced the appointment of a committee to be known as the Attorney General's Committee on Administrative Procedure, to study the practices and procedure of the various administrative agencies of the Government, with a view to determining to what extent improvements were desirable. The Attorney General's Committee requested the committees of the respective Houses of Congress to defer action on any of the administrative law or procedure measures then pending until after the Committee had completed its study and made its report and recommendations.

H. R. 6324, which was practically identical with S. 915 as passed by the Senate, was reported by the House Committee on the Judiciary, with slight amendments, on July 13, 1939 (H. Rept. 1149, 76th Cong., 1st sess.). It was passed by the House on April 21, 1940, by a vote of 287 to 97, and sent to the Senate. The bill was reported by the Senate Committee on the Judiciary on May 9, 1940, and passed by the Senate, with amendments, on November 26, 1940. The Senate amendments were agreed to by the House on December 2, 1940. This bill, which had become known as the Logan-Walter bill, was vetoed by the President on December 17, 1940. The veto was sustained by the House by a vote of 153 to 127, making Senate action unnecessary.

In view of the fact that the Logan-Walter bill, S. 915-H. R. 6324, was pending in the Congress, the report of the special committee on administrative law was received at the annual convention of the American Bar Association, at Philadelphia, in 1940, and no action taken thereon (65 A. B. A. Rept. 215–220 (1940)). The final report of the Attorney General's Committee on Administrative Procedure was dated January 22, 1941, and transmitted to the Senate by the Attorney General on January 24, 1941 (S. Doc. 8, 77th Cong., 1st sess).

The report of the Attorney General's Committee on Administrative Procedure was followed by the submission to the Congress of three sets of bills. Bills to carry out the recommendations of the minority of that Committee were introduced as S. 674 and H. R. 4238, in the first session of the Seventy-seventh Congress. Bills to carry out the recommendations of the majority of the Committee were introduced as S. 675 and H. R. 4782.

At practically the same time there were introduced S. 918 and H. R. 3464. This bill soon obtained the label of "A. B. A. bill," although it did not represent the views of the American Bar Association. At the annual convention of the American Bar Association in Indianapolis, in 1941, the special committee on administrative law submitted, for adoption by the house of delegates, a resolution approving a "statement of principles" set forth in its report (66 A. B. A. Rept. 439-454 (1941)). This "statement of principles" was immediately followed by a paragraph stating that S. 918 and its companion bill H. R. 3464 "substantially comply with the foregoing statement of principles. The fact is mentioned here as a matter of record only, as we are not recommending the approval of the exact terms of any of these bills." A somewhat similar statement is found in an article in the American Bar Association Journal of March 1941, at pages 151-152.

The "statement of principles" was amended by the board of governors, the amendment being concurred in by the committee. The amendment expressed the opinion that S. 674 "is the bill which up to this time best embodies the above statement of principles." The statement of principles, as amended, was adopted

Then came Pearl Harbor, and the war. For the next 2 years the special committee on administrative law devoted its energies to the development of the Conference on Administrative Law and other matters covered in its annual report (67 A. B. A. Rept. 226 (1942)).

The situation was reviewed by the committee in its report for 1943. In a supplemental report submitted at the annual meeting in Chicago, in 1943, the committee noted indications of renewed public and congressional interest in the subject of administrative procedure, and submitted a tentative draft of material for Federal legislation on the subject, and urged the perfecting of a comprehensive proposal in order to provide detailed proposals upon which attention could be focused, serve as mutual provisions for reference, and furnish a draft for consideration in the adoption of a general administrative procedure statute (68 A. B. A. Rept. 249-253, 254-257 (1943)). The house of delegates approved the recommendations of the committee (68 A. B. A. Rept. 148 (1943)).

At a meeting of the house of delegates of the American Bar Association, on February 28-29, 1944, a comprehensive bill to improve the administration of justice by prescribing fair standards of procedure was approved without a dissenting vote. American Bar Association Journal, April 1944, pages 181-189.

On March 2, 1944, Congressman Gwynne introduced H. R. 4314, Seventy-eight Congress, second session, which would give effect to many of the American Bar Association recommendations in the form in which they were embodied in earlier drafts. The Gwynne bill was not, however, the American Bar Association bill in the perfected form which was approved by the house of delegates.

The American Bar Association approved bill was introduced in the second session of the Seventy-eighth Congress, by Senator McCarran, as S. 2030 and by Congressman Sumners, of Texas, as H. R. 5081. No action was taken on either of these bills.

Also introduced in the second session of the Seventy-eighth Congress was H. R. 5237, by Congressman Smith, of Virginia, to carry out the recommendations of his Select Committee to Investigate Executive Agencies, as contained in the sixth intermediate report of that committee (H. Rept. 1797, 78th Cong., 2d sess.).

S. 7 and H. R. 1203, introduced in the first session of the Seventy-ninth Congress, are similar to S. 2030 and H. R. 5081, and represent the latest recommendations of the American Bar Association for legislation to improve the administration of justice.

(The following bills relating to administrative procedure have also been introduced in the Seventy-ninth Congress: H. R. 184 (Celler), similar to S. 675, H. R. 4782, Seventy-seventh Congress, to carry out recommendations of majority of Attorney General's committee. H. R. 339 (Smith) similar to H. R. 5327, Seventyeighth Congress. H. R. 1206 (Walter), similar to S. 674, H. R. 4238, Seventyseventh Congress, to carry out recommendations of minority of Attorney General's committee.)

Mr. MILLER. I come now to a subject that I think I shall have to discuss at some length, and I promise you, first of all, I am going to be as brief as I possibly can in all of my presentation and it may be of some interest to say I hope to complete it this forenoon.

The CHAIRMAN. That is very gratifying.

The committee has, of course, full knowledge of the report of the Attorney General's Committee on Administrative Procedure. I would like, with the permission of the Chair, to take a little time to discuss that report.

Mr. WALTER. Which one of the reports are you referring to?

Mr. MILLER. The Attorney General's committee report on administrative procedure.

Mr. WALTER. There were four filed.

Mr. MILLER. I am thinking of it as a whole; and between the minority and majority there were differences, but I am trying to deal here with all of them.

The CHAIRMAN. Mr. Miller, I am not quite sure what you have in mind, but I am sure what the committee needs. The historical aspect of this matter is of interest to the commitee and probably of general

legislation in the judgment of the gentleman who is addressing the committee, and his associates, ought to be enacted.

Mr. WALTER. If I may interrupt: Certainly, with regard to the review of the courts themselves of decisions of administrative agencies. The CHAIRMAN. I do not want to disturb what you have in mind as to an orderly procedure, but what we are anxious to get is usable information.

Mr. MILLER. Mr. Chairman, I think if I explained to you what I propose to do, you will be able to judge as to whether you want it discussed, bearing in mind that I am simply trying to be just as helpful to the committee as I can.

The CHAIRMAN. I understand.

Mr. MILLER. In the consideration of this subject, quite naturally since 1941, when the Attorney General's committee submitted its report, the consideration has been based upon what that committee did. The CHAIRMAN. We are not interested in going into that now; we are interested in what you want us to do now.

Mr. MILLER. What I have proposed to discuss, what I had planned to do, was to try to state what this committee pointed out it thought should be done.

The CHAIRMAN. We want you to point out what you think ought to be done. A great deal of this has shifted; changes have occurred along the road, and what we want you to do now is to discuss it from the standpoint of what you think we should do.

Mr. MILLER. That phase of it will be discussed by Mr. McFarland, and I will not attempt to repeat; and I do not want to put anything in the record except what is agreeable to the committee.

Mr. Chairman, what I had planned to do was to give you the picture as presented by the report of the Attorney General's committee.

The CHAIRMAN. I do not believe we are particularly interested in that at this time. What we want to know now is what the gentleman who is here before us believes should be done.

Mr. WALTER. Some of us are aware of the reasons for the creation of the Attorney General's committee.

Mr. MILLER. I know that is true.

The CHAIRMAN. I know that the committee is tremendously interested in what should be done now.

Mr. MILLER. I appreciate that, Mr. Chairman, and that matter will be the subject which Mr. McFarland will present to you.

The CHAIRMAN. That is what we want to get at.

Mr. MILLER. I think that being true, Mr. Chairman, I would simply state that we are trying to make our presentation as flexible as possible as we did not know what the committee would want.

The CHAIRMAN. We need help and we need help badly.

Mr. MILLER. In view of what the chairman has said, and in view of the fact that Mr. McFarland is to discuss the details of the bill I will give way to him now.

The CHAIRMAN. You have done a very helpful thing; you have given us for the record the history of the development of this bill and we appreciate it, but we do want to get at the facts.

Mr. MILLER. I appreciate that very much, Mr. Chairman, and as I say, we were trying to make our presentation as flexible as possible,