It will be noted that these comments do not cover all of the recommendations which would involve amendments to the Administrative Procedure Act, the provisions of which are not, for the most part, presently applicable to this agency. The Commission apparently included a number of recommendations of the task force concerning procedures under the Administrative Procedure Act without endorsing the same, and in fact stated (p. 51 of the Commission's report) that it did not endorse the legislation proposed by the task force for revising the Administrative Procedure Act. However, the enclosed comments do relate to some of the recommendations in this latter area for the purpose of indicating special problems with respect to this agency.

Advice has been received from the Bureau of the Budget that there would be no objection to the submission of these comments to the committees for its consideration. The Bureau has requested that the committee be advised that the relationship of the views on the recommendations of the mentioned Commission expressed in the comments to the program of the President has not been determined, and that the comments should not be construed as a commitment regarding legislation which has been or may be proposed to carry out the recommendations of the Commission.

Sincerely yours,

H. V. HIGLEY, Administrator.

REPORT ON LEGAL SERVICES AND PROCEDURE

RECOMMENDATION NO. 1

"Congress should review the justification for any existing legal staff not having been created by express statutory authority, and also such authority presently granted to those agencies having small legal staffs."

Comments of Veterans' Administration

Both the task force and the Commission appear to have recognized in the discussion leading up to this recommendation that it is necessary for the Veterans' Administration to maintain a legal staff. However, the Veterans' Administration is cited as 1 of 3 agencies having large legal staffs which were not expressly authorized by law. It is evident, therefore, that the recommendation was intended to include the Veterans' Administration as one of the agencies affected.

The Commission's premise, with respect to the Veterans' Administration, is a mistaken one. The act of July 3, 1930 (46 Stat. 1016), authorized the consolidation of various agencies engaged in administering laws relating to veterans into an establishment to be known as the Veterans' Administration. This act specifically provided that all the functions, powers, and duties prior to July 3, 1930, conferred by law upon the Director of the United States Veterans' Bureau and the heads of the other constituent agencies were conferred upon and vested in the Administrator of Veterans' Affairs (38 U. S. C. 11a). The act also authorized the Administrator, under the direction of the President, to consolidate, eliminate, or redistribute the functions of the bureaus, agencies, offices, or activities in the Veterans' Administration and to create new ones (38 U. S. C. 11 (b)). The second paragraph of section 4 of the World War Veterans' Act, 1924, specifically author

ized the Director of the United States Veterans' Bureau to include on the technical and administrative staff of the Director "such staff officers, experts, inspectors, and assistants as the Director shall prescribe." Section 9 of the same act specifically recognized the authority of the Director to employ attorneys and maintain legal staffs by the provision that "in addition to the services of the legal assistants employed by the Bureau, the Director may require the opinion of the Attorney General on any questions of law arising in the administration of the Bureau."

Both section 4 and section 9 of the World War Veterans' Act were saved from repeal by section 7 of title I, Public No. 2, 73d Congress, approved March 20, 1933 (38 U. S. C. 707). Section 9 of the World War Veterans' Act is contained in the United States Code (38 U. S. C. 433), and the omission of the second paragraph of section 4 in the code is clearly erroneous. The codifier's note at 38, United States Code, section 425, to the effect that section 4 is no longer effective in view of sections 11, et seq., of title 38, is incorrect as applied to the second paragraph of section 4, since the referenced provisions are from the mentioned act of July 3, 1930, section 2 of which specifically conferred upon the Administrator all of the functions, powers, and duties theretofore conferred by law on the constitutent elements of the new organization, thereby clearly transferring to the Administrator the power previously possessed by the Director of the United States Veterans' Bureau under the pertinent paragraph of section 4 of the World War Veterans' Act. In addition to the foregoing basic statutory authorization which, by association with section 9 of the World War Veterans' Act, expressly includes the authority to maintain a legal staff, there have been several statutory recognitions of this authority in other enactments. These include section 19 of the World War Veterans' Act, as amended (38 U. S. C. 445), referring to the assignment of attorneys to assist in the trial of insurance cases; section 21 of the World War Veterans' Act, as amended (38 U. S. C. 450), with respect to representation of the Administrator by his "duly authorized attorney" in guardianship proceedings; section 6 of the act of June 25, 1910, as amended (38 U. S. C. 17e), dealing with representation of the Administrator "through his authorized attorneys" in certain legal proceedings to recover assets; and section 509 of the act of June 22, 1944, as amended (38 U. S. C. 694j), providing that the Administrator may sue and be sued in his official capacity in any court of competent jurisdiction, State or Federal, in connection with certain matters arising under the veterans' loan-guaranty program.

In view of the existence of statutory provisions which plainly authorize the maintenance of necessary legal staff within this agency, and the further fact that the existence and size of such staff has been subject to examination through the Appropriations Committees of both Houses of Congress through the years, there appears to be no special reason for differentiating the Veterans' Administration from other large agencies having express authority to employ legal staff in respect to a congressional review of the justification for such staff. However, this is certainly a matter within the prerogative of the Congress, and the Veterans' Administration would not object to such review of the existing situation as the Congress may deem proper. It may be added that, in any event, there is much to be said in

favor of leaving the matter of determining the size and distribution of a legal staff within the Veterans Administration to the discretion of the Administrator in order that any changes may readily be made as conditions require. This flexibility is basic to the Administrator's existing statutory authority in regard to the organization and reorganization of the Veterans' Administration and the assignment of functions within the organization.

RECOMMENDATION NO. 2

"The Department of Justice should be recognized as the chief law office of the Government. It should conduct all litigation before the courts on behalf of the Government and its executive departments and agencies, except as Congress authorizes otherwise."

Comments of Veterans' Administration

In the light of the accompanying text, this recommendation is apparently intended not merely to center the conduct of all litigation in the Department of Justice, but to strengthen the coordinating functions of that Department in order to avoid differences in legal interpretations among agencies of the executive branch and to assure a greater unity of approach and method in the performance of legal services. As recognized by the Commission and its task force, this has been a general theory of Government since the original Judiciary Act of 1789. However, it has been found impracticable of accomplishment on anything like a universal basis.

The Congress has specifically authorized the employment of attorneys by various agencies, and the judiciary has taken cognizance of the fact that while the Attorney General must represent the United States in all actions on its behalf in the Federal courts, this does not necessarily apply to actions on behalf of agencies if the Congress has authorized such agencies to utilize their attorneys for such purpose, nor does it apply to actions in State courts as authorized by statute. The activities of the Veterans' Administration are largely devoted to the administration of gratuitous benefits, as to which the Congress has generally provided that the determination of the Administrator shall be final. These determinations and the legal criteria governing them are of a highly specialized character. The legal questions which arise are many and varied, requiring a high degree of expertness and special knowledge on the part of agency representatives who are engaged in a career activity. Continuity and uniformity of policy are important attributes of an effectively administered system of benefits for veterans and their dependents. It is believed that on all matters of mutual interest to the Veterans' Administration and the Department of Justice the present organization and cooperative agreements with the Department of Justice assure proper and positive coordination.

RECOMMENDATION NO. 3

"Congress should create a procedure permitting any department, agency, or regulatory body to refer differences of interpretation of applicable law to the Attorney General, assisted by the Office of Legal Counsel, for resolution. Adoption of this procedure jointly by departments, agencies, and regulatory bodies which are parties to

such difference of interpretation or dispute shall be voluntary, but when employed, the decision of the Attorney General shall be binding on all parties involved."

Comments of Veterans' Administration

This recommendation is related to recommendation No. 2 and raises similar questions. In theory it is quite plausible. In practice it may not be completely acceptable or workable.

The departments and agencies of the Federal Government have authority to request opinions of the Attorney General, and many of them avail themselves of this authority. One drawback to the application of this recommendation on a general scale might well be the reluctance of the Attorney General to express an opinion on a matter which is justiciable and as to which he might be called upon to defend his opinion in the courts.

The Veterans' Administration has the authority to request an opinion of the Attorney General (38 U. S. C. 433), but is not required to do so. The Administrator's decision is made final by statute as to most matters affecting claims for benefits which he administers, and, accordingly, he is not bound by the opinion of the Attorney General any more than that of his own General Counsel. It is the view of the Veterans' Administration that the wisdom of the Congress in vesting this degree of finality in the determinations of the Administrator has been well demonstrated by experience. In order to effectuate this legislative policy, the occasion arises but rarely in which the Administrator may find it helpful to obtain the views of the Attorney General on a legal question affecting benefits.

Aside from the broad area in which the Administrator's decisions are statutorily final, it should be noted that the Congress has seen fit to vest final administrative authority in the Comptroller General on questions affecting the expenditure of appropriations. It would seem highly questionable whether the Congress would be willing to authorize the Attorney General to overrule decisions of the Comptroller in this field.

Finally, it may be stated that, from the standpoint of the Veterans' Administration, there has arisen no demonstrated need for the procedure outlined in recommendation No. 3 for the reason that conflicts with other agencies and departments arising out of interpretation of the law have been relatively few in number and have not created a significant problem. This is in large part due, of course, to the principle of finality of decision which applies to this agency on matters concerning claims for veterans' benefits and the laws governing the same.

RECOMMENDATION NO. 4

"The legal staff of each department, agency, and regulatory body should be integrated under an Assistant Secretary for Legal Affairs or a General Counsel, except those small staffs in regulatory agencies which would advise and assist agency members in the performance of their quasi-judicial functions."

Comments of Veterans' Administration

This recommendation must be considered in connection with the overall organization of the Veterans' Administration and the circumstances under which this organization evolved to its present point. A

major reorganization has only recently been completed. A part of this reorganization involved separating the Guardianship Service from the Office of the General Counsel. To integrate the guardianship legal activities with those of the General Counsel would be contrary to the intent and purpose of the reorganization plan since it would once again intermingle what this agency considers to be line and staff functions.

On June 10, 1953, the Director of the Bureau of the Budget directed the Veterans' Administration to proceed with the reorganization plan along the lines of the plan submitted by Gen. Carl R. Gray, Jr., former Administrator of Veterans' Affairs, as modified and approved by the President's Advisory Committee on Government Organization. Two of the approved recommendations of the President's Advisory Committee on Government Organization read in part as follows:

Support the Administrator's proposed establishment of three major operating units

*** Under the Administrator's proposed organization, three major operating units are to be established: (1) Department of Medicine and Surgery headed by a Chief Medical Director; (2) an Insurance Department, headed by a Deputy Administrator; and (3) a Veterans' Benefits Department, also headed by a Deputy Administrator. This change will materially reduce the span of control and permit improved administrative leadership throughout the agency. Clarify the line and staff relationships within the agency and increase the delegations of authority to the field

The usual problem of dual supervision-line and technical-exists in the Veterans' Administration in an aggravated form. The various program personnel in field installations look to and receive from their central office counterparts detailed direction. On the other hand the managers of field installations have no effective central office contact because of the great span of control. This situation has produced a diffusion of responsibility and loose administration throughout the agency.

The Administrator's proposed organization plan establishing three operating departments can *** be the basis for bringing into balance field installationcentral office relationships and for improving administration. * * *

The Legal Service of the Veterans' Administration for many years consisted in the Office of the Solicitor (Legal Service, central office) and in the chief attorneys in the field offices (Legal Service, Field). Under the then existing regulations, each chief attorney was administratively responsible to the manager of the regional office and was professionally responsible to the Solicitor. The reorganization above mentioned required a change in the status of the Legal Field Service. Insofar as it is concerned with guardianship matters, it was made a direct responsibility of the manager of the regional office, with line responsibility to the Deputy Administrator for Veterans' Benefits. There is a staff component in the Department of Veterans' Benefits comprised of attorneys who evaluate the work of the chief attorneys in connection with guardianship matters and advise the Deputy Administrator or other line officer in connection therewith.

In the reorganization, the former Office of Solicitor was abolished and there was created the Office of the General Counsel, a staff position. The principal function of the Chief Law Officer is to advise the Administrator and all staff and top operative officials on all legal matters arising in the administration of laws which are the responsibility of the Administrator of Veterans' Affairs and on adjunct legal matters pertaining thereto, both substantive and adjective law. The General Counsel also is responsible for operational functions in connection