Page images

its way to be sure they are being made right much more than it does in a normal case, where you can count on the parties to appeal and a higher level of the Agency to review the matter.

What this recommendation proposes is a system for taking samplings, for example, of determinations in these mass benefit programs, reviewing that sample-let's say a 5-percent sample-at a higher level within the Agency and finding out what decisions are right and what are wrong. Is there any common factor that can explain why you are getting wrong decisions in one case or another? Incidentally, soine of those wrong decisions may be wrong to the prejudice of the Government and they would never be appealed in any event.

Mr. ROBISON. Are we reaching here the area of social security disability claims?

Mr. Scalia. Yes, sir, that is one of the major areas.

Mr. ROBISON. I think all of us who are Members of Congress have experienced some problems in this area. With the Veterans' Administration, for instance, finding the same person is disabled while Social Security may not. Would you try to touch on that sort of a situation?

Mr. SCALIA. A continuation of this study now under way will address that.

Mr. ROBISON. What is the status of this particular study at the moment?

Mr. SCALIA. The status is referred to in my prepared statement. We have a followup on the initial study done by Professor Mashaw which will be done by Professor Popkin, which will essentially focus upon five separate disability programs: Social Security, VĂ, Civil Service, Federal Employees' Compensation, and Longshoremen's and Harbor Workers' Compensation.

The main focus of that study, not an exclusive focus, will be upon the representation aspects. To what extent are decisions better or worse by reason of having representation for the claimant?

Mr. ŘOBISON. Why would HEW contract with you, indirectly at least, to do this sort of study rather than do it themselves? They want your independent viewpoint?

Mr. SCALIA. I think that is part of it and I would also like to think that they have respect for our ability to do it well.


Mr. Robison. The one that really intrigues me is your so-called down to earth study, which is near completion, wherein you are going to look at the Department of Agriculture farm production controls, specifically the administration of such programs. It is to serve two purposes: First, to assess the fairness of such procedures and, second, to evaluate the extent to which standards of decision under application are consistent with stated goals of substantive policy.

You know, before you get this one done it is possible we might change these particular laws. I don't think it is likely, but it is at least possible.

Mr. SCALIA. I understand that.

Any study takes some time to do, and in the intervening period things can happen. We had a study completed and a recommendation adopted last December concerning the procedures for Selective Service, which procedures will continue in existence, as I understand it, but just on a standby basis. I am afraid that is an inevitable risk,

although I think I would bet the way you would as to whether we will see this one disappear in the immediate future.

Mr. Robison. It will probably only disappear over a period of time, a phasing out sort of process. Mr. SCALIA.

This study has also been of particular interest to us because it is a very unusual program. The act is administered not by bureaucrats, but essentially by committees of farmers in the various areas. We thought this was a procedure that ought to be looked into to see what lessons may be learned for possible use in other areas.

SPECIAL ENVIRONMENTAL COURT Mr. RoBISON. My work on my other subcommittee, that on Public Works, brings me face to face with environmental problems and issues of the day, and so I am interested in your reference to inquiring as to the feasibility of a special environmental court. Can you tell me something about this, and what conclusions you have drawn so far?

Mr. SCALIA. This is a study that does not fall within the category of our formal recomendations, but rather the other mode of action I indicated we sometimes apply—that of informal advice giving.

Under the water pollution control amendments of last year, the Department of Justice was charged with providing to the Congress & study of the feasibility of a special environmental court. The Department of Justice asked us to assist them in making that study. The study has not yet been completed, so I cannot speak to its conclusion, but that is how it came up.

Mr. ROBISON. Again, that is an example of how useful this agency can be.

Mr. SCALIA. Yes, sir, I think it is.

Mr. ROBISON. Mr. Chairman, I notice on page 8 of the justifications a sort of gratuitous suggestion on the part of the House Judiciary Committee which states that it was its estimate that committee's that the Administrative Conference:

Will be able to persuade the Appropriations Committee that the Conference should be funded up to the limit provided in the amended bill for fiscal years 1974 through 1978.

T! would indicate, Mr. Steed, that the House Judiciary Committee is going to do our work for us. Mr. STEED.

Also in that case, they haven't much notion about how the appropriation process works. There is very little we can do until they themselves have taken some action.

Mr. SCALIA. I hope you gentlemen take no offense at our including that. It was a great temptation. It indicates we were able to convince somebody of some intelligence, whether we are able to convince you or not.

Mr. STEED. You are here to persuade us, is that correct?
Mr. Scalia. That is correct.

[ocr errors][merged small]


Mr. STEED. We hope we are always able to be persuaded on any matter when the merit of it is persuasive.


7 it,

Mr. ROBISON. You have a small summer intern program?
Mr. SCALIA. Yes, sir.

34-174 O - 73 - pt. 4 - 5

Mr. ROBISON. How many interns would that entail in this budget request?

Mr. SCALIA. Only three.
Mr. ROBISON. Only three?

Mr. Scalia. Yes, sir. We are having three in this summer. It comes under the line item 11.3, "Positions other than permanent.”


Mr. Robison. You also use some part-time per diem research consultants. These are people not working on the long-term, or more detailed study papers?

Mr. SCALIA. Yes, sir. Normally, when we know what we want, we will enter into a fixed contract for an end product. Often, however, a committee is doing some investigation that just requires a knowledgeable person in a particular field, and that doesn't look to any immediate end product. It is for that purpose we need per diem consultants.

Mr. Robison. Your academicians are paid at the rate equivalent to their regular university salary but, by statute, that may not exceed $128 per day.

Mr. Scalia. That is correct. We have never gone above $100 per day. We may be forced to by competition. There are private foundations. There are extensive opportunities for a good law professor to obtain employment during the summer, or to consult during the course of the year—the Ford Foundation, government agencies, the Bar foundation, and so forth.

TRAVEL Mr. ROBISON. You have $32,000 to $42,000, a $10,000 increase in travel funds. Is this because of more people?

Mr. Scalia. The conference has gotten a bit larger. We are now about to reach our statutory limit of 91 members of the assembly. We have made a conscious effort to get geographical distribution. We now even have a member from Hawaii. We try to arrange things so that his committee meeting will coincide with the session of the assembly. As a national organization we think it is important that we not confine ourselves to just a group of Washington lawyers who come out with a conference recommendation. I don't think that would be desirable.

Mr. ROBISON. Try not to recruit one from Guam. That would be more expensive, too.

Mr. EDWARDS. We have none from Alabama.

Mr. Scalia. I would also point out that transportation costs have increased.

Mr. ROBison. Would you respond to Mr. Edwards' statement that you have no one from Alabama?

Mr. CUSHMAN. I don't believe we do.


Mr. ROBISON. Your biggest increase is in the item called Other services, which jumps from $68,000 to $210,000 and I guess you told us why. Would you summarize that, again, in a nutshell? This is to enable

you to meet the workload increase that others expect you to carry, is that about it.?

Mr. SCALIA. No, sir. That was Item 11.1 for new personnel. It is mainly my own staff that handles the informal advice-giving function.

The item you mention is essentially to enable us to undertake these major projects that have been waiting in the wings for several years, which we have never even asked to do because of the ceiling in our statutory authorization. The reason for the elimination of the statutory limit was essentially to enable us to try to do some of these big projects.

Mr. Robison. I have no further questions, Mr. Chairman.
Mr. STEED. Mr. Roybal?


Mr. ROYBAL. You refer to the revision of the Administrative Procedure Act. You state that the American Bar Association had recently adopted 12 resolutions calling for revision of the Act. You go on to say that, if possible, you would like to expand this project beyond the specific suggestion of the American Bar Association. Can you tell us what you mean by that?

Mr. SCALIA. We think there are areas in which the Administrative Procedure Act could be improved beyond the specific suggestions of the ABA. In fact, I don't think the ABA would say there is nothing else wrong with the Act beyond these 12 resolutions, but they addressed themselves to what they considered the most significant areas where improvements were needed.

We, ourselves, in some of our past recommendations, have made suggestions for possible changes in legislation affecting administrative procedure. We think that it is quite likely that a thorough study of the entire Administrative Procedure Act would enable us to make suggestions beyond those already adopted by the ABA.

Mr. RoyBAL. Apparently, you don't wish to be specific as to what changes you would be making?

Mr. SCALIA. No, sir. I am not prepared to say just what they will be and that is the reason we need

Mr. ROYBAL. And you are not even prepared to take a stand for or against the recommendations made by the bar association?

Mr. SCALIA. I personally am prepared to, but the conference as a body has not taken a position. I may add we have put in an enormous amount of staff time and committee time over the past year in considering each one of those 12 recommendations. We have done a lot of work on them and will take a position on the resolutions at our coming session in June.

Mr. Roybal. Your are saying there is still a very wide area in which you could work. to improve the situation, that you are working on it, and you will make your recommendations in the future?

Mr. SCALIA. Yes, sir. We are anxious to tie together whatever recommendations we make concerning the APA with the proposals of the ABA because we have been least successful in getting implementation of proposals which call for legislative change. For various reasons, including the fact that we are not a lobbying organization and should not be.

If there is brought to the Hill a major bill involving the Administrative Procedure Act, I would like to see that bill include all of the

changes that have to be made, because they can't be made piecemeal. I don't think the Congress will devote its attention to this matter now and then. They will want to do it all at once. So, in addition to taking a position on the ABA proposals, I think we have to sit back and review the whole act and say, "Is there anything else we would like to get done."

Mr. RoyBAL. Would you go back to the conference before final determination is made?

Mr. Scalia. Yes, sir, we certainly would, on any major position.

Mr. ROYBAL. Any recommendation that would be made with regard to a change of policy?

Mr. Scalia. Yes. If it were just a recommendation that might come within the category of technical conformance within the act, the chairman's office could take a position in congressional testimony on its own without feeling the need to go to the body of the conference.

Mr. ROYBAL. That is all, Mr. Chairman.


Mr. EDWARDS. As well as you get along with the Judiciary Committee, you shouldn't have any difficulty getting your views across.

Would it be fair to call your organization the Federal Busybody"?

Mr. SCALIA. No, sir; that would not be fair. I will answer that categorically. We really do, as Mr. Cushman indicated in an earlier response, try to stay very much out of any individual cases, and to avoid playing the role of an ombudsman-sticking our noses in. We don't do that. Also, we stay clear of policy matters, simply because of our makeup; more than half of our assembly is composed of agency people.

If there is any criticism at all that might be leveled, it might be in the other direction; that since the majority of the assembly is composed of Government people, they might be more tolerant of existing administrative procedures. I don't think that criticism would be justified, either, but it would be more likely than yours, I think.


Mr. EDWARDS. You have spoken glowingly about the cooperation you have had from the various agencies, and so forth. Conversely, do you have some agencies that don't cooperate? Do you have any problems of cooperation with any agencies?

Mr. SCALIA. Yes, sir; we do and it is a problem. What we can do in some cases is to try to induce the mother agency of the subagency involved to induce that latter agency to comply with our recommendations. If that doesn't work, we ultimately have to go to the Hill and try to induce the oversight committee to give its attention to the problem.

We are now engaged in one such problem with the U.S. Board of Parole with respect to which

we have a recommendation that I think is entirely sound. Many of its provisions might even be constitutionally required. We have not been able to get the parole board's cooperation in implementing that recommendation.

« PreviousContinue »