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 Аст

(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.

85257-46-16

COMPARISON OF BILLS AS TO ADMINISTRATIVE LAW AND PROCEDURE

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.

BILL NOW PENDING (1945)

(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.

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-

MINORITY BILL FROM THE ATTORNEY-GENERAL
COMMITTEE (1941)

(S. 674, 77th Cong. For correct text see
Senate hearings (1941), p. 1402, and H. R.
1203, 76th Cong.)

Same title [sec. 100].

Definitions not as complete [sec. 102]. Subdelegations of authority authorized [sec. 103].

Similar provisions respecting the issu-
ance of rules [secs. 202, 203, 205]. Deci-
sions must be published [sec. 308 (m) (7)]
but no provision for access to public rec-
ords.

Similar general exceptions [sec. 2011; protection for reliance on published rules [sec. 204]; similar notice [sec. 208]; similar procedure [sec. 209]; has less definite

WALTER-LOGAN BILL (1939)

(H. R. 6324, 76th Cong. For final text,
see H. Doc. No. 986, 76th Cong., 3d sess.)
No title.

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)].

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

BILL NOW PENDING (1945)

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.

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-

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-
cepted.

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].

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-

WALTER-LOGAN BILL (1939)

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

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.

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
requests.

Employee-boards to hear adjudications in nonindependent agencies, in which anyone showing "substantial interest" may intervene [sec. 4 (a) and (b)]. Examiners

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

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)].

Examiners to make initial decisions [sec.
308 (b), (k), and (m)] subject to appeal
or review by the agency [sec. 308 (n) and
(o)]. 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].

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

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.

In the case of rules, judicial review
within 30 days or publication in District
of Columbia Appeals Court, without pre-