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ADMINISTRATIVE PROCEDURE

THURSDAY, JUNE 21, 1945

HOUSE OF REPRESENTATIVE,
COMMITTEE ON THE JUDICIARY,

Washington, D.O. The committee met at 10 a. m., Hon. Hatton W. Sumners (chairman) presiding.

The CHAIRMAN. The committee will come to order at least for the purpose of straightening out in a preliminary way our procedure.

Mr. McFarland, I believe you are going to have some responsibility. for the presentation in order of the views of yourself and your group who have had much responsibility and rendered much service in the drafting, for consideration of the committee, of the matters that are to be considered today.

Several bills have been introduced and are now pending in this committee dealing with this important subject matter. As I indicated to you a moment ago and will state now, if we get the discussion in some order dealing with this subject matter, it will materially shorten the hearing. I suppose you want to make some introductory statement about the need, in the judgment of its proponents, of this proposed legislation. It seems to me it would then fall under some general subheadings.

First, you would deal, I suppose, with the formation of the directives, giving us the benefit of your judgment as to how those directives are to be formulated and what opportunity the people who are to be affected by them have of presenting their views with regard to what those directives should be.

Then it seems to me perhaps the next thing of importance would be a suggestion as to what agency and how it should be created for hearing the matters in dispute; then the general machinery on up through the structure of the Department, the right of appeal to the court, what questions would be subject to review in the court; whether or not there would be any de novo trial in any circumstances.

I hope you will understand the indications of the chairman do not convey any certainty of judgment on his part. He has certainly no disposition to limit or even direct the proceedings. There are going to be some other members of the committee here soon. Unfortunately, this committee, as is true of many of the committees of the House, is considerably disorganized now by reason of the draft which has been made upon its membership to constitute other committees dealing with specific matters. I think, however, we have the real brains of the committee here now and it would save some time if you proceed. All right, Mr. McFarland.

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Mr. McFARLAND. Mr. Chairman, Mr. Simmons will introduce the subject for our group; then will be followed by Mr. Miller, and then by myself, if necessary.

STATEMENT OF DAVID A. SIMMONS, PRESIDENT, AMERICAN BAR

ASSOCIATION

Mr. SIMMONS. My name is David A. Simmons, from Houston, Tex.

Mr. Chairman and gentlemen of the committee, I appear here as president of the American Bar Association. For the record, I might say that for 5 years before that I was president of the American Judicaturė Society, a group of 6,500 lawyers and judges throughout the country who dedicate their spare time to the improvement in the judicial administrative process. Before that I was president of the Texas Bar Association, of the Houston bar and, in my private practice, am a member of a small law firm in a middle-sized city, I might perhaps call myself a country lawyer. I find that is a little unusual in the membership of the American Bar Association; but at least it is current in Government practice.

I have served as first assistant attorney general of Texas; assistant United States district attorney under the Wilson administration in south Texas, and have represented a number of administrative bodies and boards in Texas and in my community.

I have a short statement introductory of this subject and in order, lawyerlike, that I may not get off on too many other subjects, having just come from 7 weeks at San Francisco as a consultant of the State Department, where I helped to "revise and reorganize the world," with your permission I will restrict myself to this short statement.

It is not my purpose to review in detail the several proposals now before you nor to dwell upon the objectives of particular provisions. Mr. Clarence A. Miller—who is a former president of the Interstate Commerce Commission Practitioners, former chairman of the Section on Administrative Law of the District of Columbia Bar Association, and presently chairman of the American Bar Association's Committee on Administrative Law for the District of Columbia—will present to you the history of the proposals and the basis for the provisions therein. I think Î can say, however, that the measures which are now before you are parts of an unbroken chain of development in which a thoroughly democratic process is evident. Every branch of the legal profession has participated. Lawyers, judges, and administrators have been members of the committees which have made valuable contributions and constructive suggestions.

These bills—and particularly H. R. 1203 with some modifications which I shall presently mention-mark the culmination of more than 10 years

of consideration, studies, reports, and recommendations by various public and private bodies. Beginning in 1933 a committee of the American Bar Association proposed the creation of a special administrative court. In 1937 the President of the United States recommended a reorganization of the Federal executive branch upon the ground that the present form of administrative tribunal, which performs "administrative work in addition to judicial work, threatens to develop a 'fourth branch' of the Government for which there is

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by a proposed administrative procedure act known generally as the
Walter-Logan bill. The latter was passed by Congress, but vetoed
by the President to await the conclusion of studies and the report
of a committee composed of Government officers, judges, and law-
yers-appointed to study the subject. The so-called Attorney Gen-
eral's Committee on Administrative Procedure made its report early
in 1941. Thereafter a subcommittee of the Senate Judiciary Com-
mittee held extensive hearings, but suspended consideration with the
imminence of war. During the past 2 years there has been a marked
revival of interest which has been directed toward two related
objectives:

I wish to interpolate here that in the last year I have, as president
of the American Bar Association, had to go in every corner of the
country and I find everywhere the greatest interest, Mr. Chairman
and gentlemen, in these bills and in this subject matter. I think I
can say without fear of contradiction and without being an advocate
about it but merely a spokesman for the bar that there is very great
interest and very great hope that something will be done which is
constructive, and at no long-distant date, on this subject. I find that
sentiment in the smallest hamlets. I believe the feeling is more
urgent among the lawyers in the smaller States and country districts
among the people generally. I do not limit it to lawyers, although
I stand here only as spokesman for the lawyers.

As I say, during the past 2 years there has been a marked revival of interest which has been directed toward two related objectives ::

First, the adoption of a general administrative procedure statute. Secondly, the more specific definition of administrative powers as individual pieces of legislation involving administrative agencies come before Congress for adoption, revision, or renewal.

Practically all of these bills have three basic features, although they differ in language and detail. Those features are

1. Provision for publicity of administrative law and procedure. I need not tell this committee of the confusion in that field.

2. A statement of the minimum procedural requirements of the two basic types of administrative operations—that is, (a) the making of general regulations, and (b) the adjudication of particular

3. A simplified statement of the right, procedure, and scope of judicial review.

The purpose of these is threefold: (1) to simplify the subject; (2) to state minimum standards; and (3) to notify the citizen so that the mystery may be removed from the American system so far as administrative agencies are concerned.

Since no one desires to injure the legitimate operations of government, there is no reason why the provisions of any bill adopted should not bring general acceptance and approval. As evidence of this fact, the Senate Judiciary Committee has recently issued a print in which certain suggestions are made as the result of extended conferences between the representatives of the Attorney General and other parties. I understand that an agent of the Attorney General is or will be here to discuss the matter. Mr. Carl McFarland, who was formerly an Assistant Attorney General of the United States, a member of the Attorney General's Committee on Administrative Pro

cases.

cedure, and is now the chairman of the American Bar Association's administrative law activities, will present for you a discussion of the suggested draft developed in cooperation with the representatives of the Attorney General at the suggestion of the chairman of the Senate Judiciary Committee as well as the way in which the detailed provisions of the proposed bills reflect the basic recommendations of the Attorney General's Committee on Administrative Procedure.

The one matter upon which no printed document reveals common agreement is the appointment of hearing officers for administrative cases. In that respect three different proposals have been made, as follows:

First is the suggestion that they be appointed and removed within the usual framework of the public service, which means the civilservice system.

Second is the proposal for an office of administrative procedure, headed by Presidential appointees, to make or approve appointments and removals of examiners as well as to exercise general supervisory and research powers.

Third is a suggestion that the Judicial Conference appoint an officer to appoint and remove examiners. This suggestion is attractive,

but may present constitutional problems as to the appointing power. Perhaps a solution would be for the Presidential appointment of such an officer or officers, with provision for the Judicial Conference to make recommendations to the President.

Now we have a suggestion that we want to leave for your consideration as to, perhaps, a joint legislative committee.

Legislation of the character we are discussing is designed, as I have said, merely to simplify the law, lay down minimum standards, and notify the citizen of his procedural rights. It provides no code of procedure and leaves many vital matters untouched. But, more important, it does not touch at all the more serious problem of making the substantive powers of administrative officers more specific. Indeed, there is so much that needs to be done in this field that any statute such as is here pending is but a start.

Some means must be found for Congress itself to exercise continuing supervision and improvement in the matter of administrative justice. To that end, it is suggested that there ought to be provided-preferably in any bill which

this committee may report and as an addition to the subjects now proposed to be contained in it—a joint committee on administrative law and procedure. That committee should have an adequate staff. It should operate like the Joint Committee on Taxation. It should engage in the drafting of legislation conferring administrative powers. It should conduct investigations. It should make recommendations for further procedural legislation.

I wish to do no more at this time than to leave this thought with you. We need an administrative procedure act, but it is only a beginning. In order that it may not be a stopping point, our suggestion is that means be provided in any bill reported whereby continuing improvements may be made.

Now, to that written statement, with your permission, I will add just one thought. I have gone about this country this year, as president of the American Bar Association and as an ordinary lawyer from

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