79th Congress, 2d Session -- ---- House Report No. 1980

ADM1NISTRATIVE PROCEDURE ACT

REPORTOF THE

COMMITTEE ON THE JUDICIARYHOUSE OF REPRESENTATIVES

ON

S. 7A BILL TO IMPROVE THE ADMINISTRATION

OF JUSTICE BY PRESCRIBING FAIRADMINISTRATIVE PROCEDURE

MAY 3, 1943.-Committed to the Committee of the Whole Houseon the State of the Union and ordered to be printed

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COMMITTEE ON THE JUDICIARYHATTON W. SUMNERS, Texas, Chairman

EMANUEL CELLER, New YorkZEBULON WEAVER, North CarolinaFRANCIS E. WALTER, PennsylvaniaSAM HOBBS, AlabamaJOHN H. TOLAN, CaliforniaWILLIAM T. BYRNE, New YorkESTES KEFAUVER, TennesseeJOSEPH R. BRYSON, South CarolinaFADJO CRAVENS, ArlansasSAM M. RUSSELL, Texas *THOMAS 3. LANE, MassachusettsMARTIN GORSKI, IllinoisMICHAEL A. FEIGHAN, OhioFRANK L. CHELF, Kentucky

CLARENCE E. HANCOCK, New YorkEARL C. MICHENER, MichiganJOHN M. ROBSION, KentickyCHAUNCEY W. REED, IllinoisJOHN W. GWYNNE, IowaLOUIS E. GRAHAM, PennsylvaniaRAYMOND S. SPRINGER, IndianaJOSEPH E. TALBOT, ConnecticutFRANK FELLOWS, MaineEARL R. LEWIS, OhioJOHN JENNINGS, JR., TennesseeANGIER L. GOODWIN, Massachusetts

VLEMA SMEDLEr, ClerkBONNIE ROBERTS, As8i8tant Clerk

CHARLES B. LONG, Jr., COUn861

SUBCOMMITTEE NO. 3MR. WALTER, Chairman

MR. KEPAUVER MR. GWYNNEMR. BRYSON MR. TALBOTMR. LANE 'MR. LEWIS

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interest permit" does not mean that formal proceedings, to theexclusion of prior opportunity for informal settlement, may be re-quired at will by an agency. It is intended to exempt only situationsin which (1) time is unavoidably lacking, (2) the nature of the pro-ceeding is such that the number of parties makes it unlikely that anyadjustment could be reached, and (3) the administrative functionrequires immediate execution in order to protect the demonstrablerequirements of public interest in the due and timely execution ofthe laws. Where settlements do not dispose of the whole- case,sections 7 and 8 as well as section 5 (c) apply. .

SECTION 5(C). SEPARATION OF PROSECUTING FUNCTIONS

Ofecers who preside at the taking of evidence must make the decisionor recommended -decision in the case. They may not consult with anyperson or party except openly and upon notice save in the disposition ofcustomary ex parte matters, and they may not be made subject to thesupervision of prosecuting officers. The latter may not -participate inthe decisions except as witness or counsel in public proceedings. How-ever, the subsection is not to apply in determining applications for initiallicenses or the validity or application of rates, facilities, or practices ofpublic utilities or carriers; nor does it apply to the top agency or membersthereof.

The purpose of the section is to assure that no investigating orprosecuting officer shall directly or ind'rectly in apy manner influenceor control the operations of hearing and deciding officers, except as aparticipant in public proceedings, and even then iri no differentfashion than the private parties or their representatives. The separa-tion of functions here required must be reflected in the rules i organi-zation and procedure issued pursuant to section 3 (it). "Ei partematters authorized by law" means passing on requests for adjourn-ments, continuances, filing of papers, and so forth. The exemptionof applications for. initial licenses frees from the requirements of thesection such matters as the granting of certificates of convemience andnecessity, upon the .theory that in most licensing cases the o'riginalapplication may be much like rule making. The latter, of -course, isnot subject to any.provision of section 5. The exemption of easesinvolving the validity or application of utility or carriers' rates,facilities, or practices is included for a similar reason--since they mayoften be consolidated with rule making. There are, however, someinstances of either kind of case which tend to be accusatory in formand involve sharply controverted factual issues, to which agenciesshould not apply the exceptions because they are not to be interpretedas precluding fair procedure where it is required.

The last exemption-of the agency itself or the members of the boardwho comprise it-is required by the very nature of administrativeagencies, where the same authority is responsible for both the investi-gation-prosecution and the hearing and decision of cases. There, too,the exemption is not to be taken as meaning that the top -authoritymust reserve to itself both prosecuting and deciding functions. It isultimately responsible for all functions committed to it, but it. myand should confine itself to determining policy and delegate the actualsuiervision of investigations and initiation of cases to responsible

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subordinate officers. Agencies, such as heads of bureaus or depart-ments, performing mamly executive functions should delegate to ex-aminers or boards of examiners at least the initial decision of casesand should confine their own review to important issues of law orpolicy.

SECTION 5 JD). DECLARATORY ADJUDICATIONS

Every agency is authorized in its sound discretion to issue declaratory-orders with the same effect as other orders.

This section does not mean that any agency empowered to issueorders may issue declaratory orders, because it is limited by the intro-ductory clauses of section 5 so that such orders may be issued onlywhere the agency is empowered by statute to hold hearings and thesubject is not otherwise expressly exempted there. Where authorizedto do so by this section, agencies are not required to issue declaratoryorders merely because request is made therefor. Such applicationshave no greater effect than they now have under existing comparablelegislation. "Sound discretion," moreover, would preclude the issu-ance of improvident orders. The administrative issuance of declara-tory orders would be governed by the same basic principles that governdeclaratory judgments in the courts. Such orders, if issued, would notbind those not parties to them or determine subject matter not pre-sented. They would be subject to judicial review as in the case ofother orders.

SECTION 6. ANCILLARY MATTERS

The provisions of section 6 relating to incidental or miscellaneousrights, powers, and procedures do not override contrary provisions inother parts of the bill

The purpose of this introductory exception, which reads "except asotherwise provided in this act," is to limit, for example, the right ofappearance provided in section 6 (a) so as not to authorize improperex parte conferences during formal hearings and pending formal de-cisions under sections 7 and 8. This section 6 contains provisionsrespecting various procedural rights which may be incident al to eitherrule making or adjudication or mndependent of either.

SECTION 6 (A). AP'PEARANCE OR REPRESENTATION OF PARTIESAny person compelled to appear in person before any agency or its

representative is entitled to counsel. In other cases, every party mayappear 'in person or by counsel. So far as the orderly conduct of publicbusiness permits, any 'interested person may appear before any agencyor its responsible oftcers at any time for the presentation or adjustmentof any mailer. Agencies are to proceed with reasonable dispatch to con-clude any mailer so presented, with due regard for the convenience andnecessdtU of the parties. Nothing. in the subsection is to be taken asrecoynizing or denying the propriety of nonlawyers representing parties..The section is a statement of statutory and mandatory right of

mnterested persons to appear themselves or through or with counselbefore any agency m connection with any function, matter, or processwhether formal,. informal, public, or private. The word "party" inthe second sentence is to be understood as meaning any person show-

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