This plan has had a period of more than two years of trial as to the District of Columbia compensation statute. Shortly after it was enacted, the statute was implemented under the able direction of the then Corporation Counsel. During its two or more years of operation there has been no litigation thereunder while a very similar statute in one of the States has resulted in several hundred law suits during the corresponding period. Moreover it stands to reason that such would be the result of careful and correct implementation of statutes. The practice is a common one in both France and Germany. Sec. 2. JUDICIAL REVIEW OF RULES AND REGULATIONS.-That in addition to the jurisdiction heretofore conferred upon the United States Court of Claims, such court shall have exclusive jurisdiction, upon petition filed in accordance with the rules of the said court, to hear and determine whether any rule or regulation issued in accordance with Section 1 of this act is in accordance with the Constitution of the United States and the statute under which it is issued. Upon the filing of any petition alleging the invalidity of a rule or regulation, the Court of Claims, may refer such petition and any reply thereto, whether by answer, demurrer, or otherwise, to a commissioner of said court for the taking of such evidence as shall be material and relevant thereto. The Court of Claims shall have no power except to approve or annul the rule or regulation, and if annulled, the said rule or regulation thereafter shall not have any force or effect except as to the period of immunity as provided in section 1 hereof: Provided, That nothing contained in this section shall prevent the determination of the legality of any rule or regulation which may be involved in any suit in any court of the United States as now or hereafter authorized by law.

Explanation.-The United States Court of Claims was established in 1855 and it now has the jurisdiction defined in Chapter 7, Title 28, Section 241 to 293, U. S. Code. It is not a constitutional but a legislative court. See Williams v. United States, 289 U. S. 559, with which compare United States v. O'Donoghue, 289 U. S. 516. This means that the jurisdiction of the Court of Claims is not limited to a "case or controversy" as are the courts organized under Article III of the Constitution but may have such jurisdiction as the Congress sees fit to confer on that court.

It is a court of more than three-quarters of a century of experience and its opinions are reported in some eighty volumes of reports. Except for customs matters that court hears and determines money claims and demands against the United States arising under practically the entire field of Federal statutes. It is thus familiar with a great deal of Federal law, rules and regulations and it has functioned exceedingly well during the long period of its existence. It has earned, and we think, commands the respect of the Supreme Court of the United States and of the litigants before said court. Absolute perfection can not be expected of human institutions but by and large, the Court of Claims has discharged its important and responsible duties toward both the Government and private litigants in a most acceptable manner.

The proceedings before that court is by a suit de novo against the United States except in a few instances set forth in Chapter 7, Title 28, U. S. Code, which are not material here. The court is equipped with commissioners who hear the evidence and submit their findings of facts to the court which the court may accept, modify, or reject as it sees fit in particular cases. The judgments of the court are reviewable by certiorari in the Supreme Court of the United States and questions may be certified for decision-the review procedure being substantially identical with that relative to the United States Circuit Courts of Appeal.

The validity of a rule or regulation may now be raised in any case where the courts have jurisdiction of the particular classes of actions. The procedure is illustrated in the cases which have been cited in the EXPLAÑATION to section 1 of the draft, sixth paragraph. The proviso to this section 2 would continue that procedure. However, there are a considerable number of cases where no court has such jurisdiction of the controversy that the merits of the case may be placed in issue and the validity of the rule or regulation judicially tested.

The first purpose of this section 2 is to correct that defect in our procedure by conferring jurisdiction on the Court of Claims to determine whether the rule or regulation is in accordance with the Constitution and statute or statutes under which issued. The procedure selected for that purpose is by petition to the court.

This procedure will enable the citizen or other person affected to test the legality of the rule or regulation before such person takes action in accordance

therewith if for any reason it is believed that the rule or regulation is in excess of the powers conferred on the particular Department or other agency. The effect of a negativing judgment of the court in such a proceeding will be to annul the regulation; render it invalid for all future purposes. However, as to action taken by others prior to the invalidity having been declared by the Court of Claims, any question as to such action may be raised by others in the merits of their particular cases invalid by the Court of Claims the individuals affected may nevertheless raise the validity of the regulation in a suit by them on the merits of their cases or if and when the United States should bring suit against such persons.

That is to say, section 2 gives a right where none now exists and does not take away any existing right.

The English procedure is generally to lay the rules and regulations before Parliament. The Procurator-General and Treasury-Solicitor, in the above referred to statement before the Committee on Ministers' Powers, said:

"On the second point, viz., the need of securing some means whereby the public are protected against the undue exercise of Departmental powers, the two main safeguards are, or should be, parliamentary criticism and the action of the courts.' Also, that the protection of the public which is not represented by organized minorities "must necessarily rest in the hands of their parliamentary representative, who can at a later date criticise the action of the Minister of Parliament, a fact which the Minister is bound to bear in mind before the regulations are actually made."

We need not particularize the fact that in England the heads of the principal Departments are members of the House of Lords or of the House of Commons and that a Minister is answerable on the floor of his respective House for the discharge of the duties of his particular department—a form of procedure which we do not have in this Country.

The procedure for laying rules and regulations before Parliament to be annulled within a given period would not be satisfactory in this Country because the head of Departments, independent agencies, etc., are not members of either the Senate or the House of Representatives and consequently to questioning on the floor of either House; there is not a procedure of dissolution of Congress and going to the Country for reelection when a vote of confidence is denied; the vast extent of this Country and the volume of business make it practically impossible for members of Congress to take on further duties; and the considerable turnover in personnel in Congress deprives the Federal government of the services of many experienced men, a situation not obtaining in England where membership in the House of Lords is hereditary and where members of the House of Commons may stand from any constituency.

As stated, the Court of Claims is a legislative court, created to assist the Congress in disposing of many detailed matters, principally of claims, and that court could very properly consider, annul, or affirm rules and regulations.

We have somewhat similar procedure in the Federal Declaratory Judgment Act of June 14, 1934, Public, No. 343, and the Court of Claims has exercised a somewhat similar jurisdiction for many years. See Chapter 7, Title 28, Sections 253, 254, 255, 256, and 257, U. Š. Code. Further, the Supreme Courts of a number of the States have jurisdiction to render advisory opinions. No concrete case is submitted for such advisory opinions. Also, the Attorney General of the United States, since the foundation of the Government, and the Comptroller since 1894, have had jurisdiction to render advisory opinions to certain officers of the Government; these opinions are frequently rendered on the abstract questions of law; and the procedure is a necessity in the conduct of the administrative machinery of the Federal Government.

We think that section 2 of the bill will give a much needed, expeditious, and inexpensive method of determining the validity of rules and regulations and that such action will uphold the hands of law officers of the Government who are not infrequently influenced in their decisions or opinions by lay direction. The procedure will insure the rules and regulations being issued within the four corners of the constitutional and statutory authority of the Governmental agency concerned.

Sec. 3. (a) STATUTORY APPROVAL AND AUTHORITY FOR ADMINISTRATIVE BOARDS AND PRESCRIBING THEIR PROCEDURE.—That every head of a department shall from time to time designate three employees of such department for each intradepartmental board (including the field services of such department) which may

be necessary and desirable. Whenever practicable, such boards shall be designated in the various sections of the United States. At least one employee designated for each such board shall be a lawyer who shall act as chairman of the board. When the members of any board are not engaged in the hearing of administrative appeals as hereinafter provided, such employees shall be assigned to other appropriate duties in the service of the department concerned. No member of a board hearing a particular case shall have previously decided the case or shall have been responsible for the issuance of any rule or regulations which may be involved. Each such board shall be free and independent in the hearing of administrative appeals and it shall be the duty of such board to make in writing impartial and just findings of facts and decisions thereon.

(b) That when any person (which term wherever used in this Act shall include a corporation, partnership or other business organization) is aggrieved by a decision, act or failure to act by any officer or employee of a department, such person may notify the head of department in writing as to his objections thereto, specifically requesting that the claim or controversy be referred to a board for hearing or determination; Provided, such notice be given not more than thirty calendar days after the date of receipt of a registered letter notifying him of the decision, act or failure to act. Upon receipt of such written objections, they shall promptly be referred to an intra-departmental board for the department concerned. At a time and place to be designated and communicated to the aggrieved person he shall have an opportunity at an early day for a full and fair hearing before said board, at which time there shall be introduced into the record the testimony and any documents or objects relating to the administrative appeal before said board. A stenographer shall be assigned to the hearings before said board to take and transcribe the testimony. The testimony and other evidence shall be reduced to a written record and filed in the department concerned and a copy thereof shall be furnished the aggrieved person upon his written request therefor, at a charge not exceeding fifteen cents per page. Within thirty calendar days from the day the evidence and arguments are closed the said board shall make separate findings of facts and decision thereon, which shall be subject to the written approval, disapproval or modification of the head of the department concerned or of such person as he shall designate in writing to act for him. copy of said findings of fact and decisions, showing the action of the head of the department concerned or his representative, shall be filed in the department as a part of the written record in the case and a similar copy shall be sent by registered mail to the aggrieved person. The United States shall take such action as may now or hereafter be provided by law to enforce the decision of the department unless there be an appeal therefrom as hereinafter provided.

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(c) That the chairman of any board, upon request of any party, shall have the power to require by subpoena the attendance and testimony of witnesses and the production of documents and all other objects shown to be necessary in the proceedings before said board. In event of disobedience to a subpoena, the said chairman, or any party to a proceeding before said board, may apply to any district court of the United States having jurisdiction of the witness for an order requiring his attendance and testimony and the production of all documents and objects necessary to the hearing and decision of the board. The chairman of the board shall be authorized to administer oaths to witnesses and there shall be a right of examination and cross-examination of witnesses.

(d) That when the matter in controversy is such that the delay incident to the hearing and decision of the case is contrary to the public interests and there is administrative action or inaction to the detriment of the aggrieved person, the findings of facts and decision made by the board shall state the amount of pecuniary damage suffered by the aggrieved person and upon approval thereof by the head of department concerned, the amount of damages so approved, if acceptable to the aggrieved person, shall be certified to the Congress for an appropriation with which to pay the same.

(e) That where the matter arises out of the conduct of the activities of any commission, board or other agency consisting of not less than three members, hereinafter referred to as independent agency, it may be provided by rule or regulation that such matter shall be heard in the first instance by one of its trial examiners, who shall file with the independent agency his written findings of facts and decision, and shall forward a copy or copies thereof by registered mail to the other party or parties concerned. The independent agency may thereupon enter such order as it may deem proper: Provided, however, that if the other party or any of the other parties concerned, within thirty calendar days after the mailing of the trial examiner's findings of fact and decision, shall file with the independent agency written objection to such findings of fact or to such decision or both, the inde

pendent agency shall not enter its order without first holding a public hearing upon notice to such other party or parties concerned.

Explanation. The point can not be too strongly emphasized that the above section 3 of the draft is designed to improve the administrative processes for the administrative determination of appeals and controversies. An analysis of the procedure now obtaining in the various departments, etc., of the Federal government which has been made for this Committee by Brookings Institution and copies of which will be mailed to the Members of the House of Delegates shows that much of the work is done by such boards.

This section is not a part of the judicial machinery except to the extent that a record may be built for an appeal to the circuit courts of appeal or to the Court of Claims as provided in section 4. The section is intended to bring contested matters before a responsible intra-departmental board in such a manner as will result in informing these officials as to the facts and to give such officials the benefit of a formularized and regularized procedure. Incidentally the section will result in the procedure of administrative appeals being the same before all of the departments and establishments of the Government and before the several boards, commissions, and other agencies set forth in Report No. 10 made by the Brookings Institution to the Byrd Committee, a copy of which has been sent to each member of the House of Delegates.

The General Council of the English Bar submitted to the Committee on Ministers' Powers, above referred to, a summary of principal suggestions, in pertinent part, as follows:

(1) That in all cases of at least other than purely administrative decisions, the applicant or person aggrieved should be entitled, on demand, to an oral hearing, which should be public, and at which witnesses on both sides should give evidence and be subject to cross examination. (2) That the parties should have the right to be represented by counsel or solicitor.

(3) That those who inquire into the facts should decide the cases. (4) That all decisions should, on their face, state the reasons on which they are founded.

(5) That the practice of publishing the reports of decisions should be extended.

(6) That in all cases departmental tribunals should possess the following powers

(a) To compel the attendance of witnesses.

(b) To administer oaths.

(c) To require the production of documents.

(d) To state questions of law for the opinion of the court.

(7) That, in all cases, an aggrieved person should have the right of appeal on questions of law to the High Court.

(8) That, in important cases, the aggrieved person should have a right of appeal on questions of fact to the High Court, subject to the permission of the Minister.

(9) That the procedure on appeal should be simplified and the expenses restricted.

As will be noted, section 3 of this draft follows quite closely the above stated principal suggestions made by the General Council of the English Bar as to the powers of departmental tribunals. That part of the recommendations as to appeal to the courts will be taken up at its appropriate place following section 4 of this draft.

Mr. Robson, testifying before the same Committee on Ministers' Powers, summed up the advantages and disadvantages of departmental tribunals as they then existed in England as follows:

Conducive to efficient administration.

Introduction of special knowledge and experience.

Accumulated departmental information made available for use.
Flexibility.

Ability to promote a policy of social improvement.

Development of new standards.

Infusion of new moral ideas.

DISADVANTAGES

Secrecy or lack of publicity.

Poor quality of investigations into facts.

Inability to compel production of documents and attendance of witnesses.
Anonymity.

Failure to give reasons for decisions.

Absence of report of cases.

Refusal of oral hearings.

Careful study of the above section 3 will show that it meets every one of the stated advantages of departmental tribunals and specifically every one of the stated disadvantages except the requirement for publication of reports. We think that such a matter may be left to the discretion of the head of the agency concerned, it now being the practice of the more important commissions to publish their decisions. Also of both the Attorney General and the Comptroller General to publish their decisions.

We now have these intra-departmental boards in operation in many of the departments and establishments of the Government with many of the disadvantages of the English boards and this is due to the failure to regularize and formularize by statute their procedure which was, in effect, the recommendation of the organized lawyers of England to the Committee on Ministers' Powers.

These Federal boards have been established in nearly all instances by rules and regulations to act as an alter ego of the head of the department or establishment. The statutes quite generally and almost uniformly confer on the head of the respective departments and establishments certain jurisdiction and duties. It is physicially impossible for such head to personally perform any quantum of such duties or to exercise a fraction of the jurisdiction so conferred. These heads have been driven by grim necessity to establish the departmental boards to hear and determine cases and controversies.

The most striking example, known to most lawyers, was the act of March 2, 1919, authorizing and directing the Secretary of War to settle and adjust contracts which had been terminated at the end of hostilities in Europe. There were literally thousands of such contracts and, of course, the Secretary of War could not personally perform these duties. Secretary Baker, being an eminent lawyer, versed in administrative technique, and surrounded by Army officers who had spent their mature careers in the Army and who were likewise familiar with such technique, established a Board of Contract Adjustments to hear and determine these claims in the first instance. The claims following the Civil War dragged on for years and years but so efficient were these contract boards established by Secretary Baker that the bulk of these claims were settled in the next two years. They were settled so well that notwithstanding there was free and open access to the courts, a mere handful of cases reached the courts. What was so well done in the vast job of settling war claims is being done on a smaller scale by a large number of boards in the various departments and establishments today in the settlement of many and varied controversies.

The reason these boards have not functioned better is because they have had no statutory procedure for their existence, with the safeguards which this section 3 would give to the person aggrieved and which safeguards were recommended by the lawyers of England for their departmental boards. There is in course of preparation, with the aid of research men of Brookings Institution, a pamphlet which will be distributed by this Committee at an early date giving the set-up of these intra-departmental boards in the various departments, etc., of the Government and showing that the Commissions, etc., function largely through examiners. Such pamphlet will show that this section 3 is based on the existing system but throws around the system the safeguards of the law which do not now exist.

This section 3 does not make a formal hearing mandatory on the person aggrieved in attempting to secure relief from an unjust administrative decision made by some officer or employee. Section 3 (b) specifically provides that such hearing must be specially requested. This will permit informal negotiations with a superior administrative officer in an attempt to adjust a controversy with a subordinate officer or employee. However, if such an attempt should fail, the aggrieved person or his counsel may then elect whether to appeal to the departmental board or pursue such other remedy as may now exist to sue the United States or one of its officers. The latter right is specifically preserved in section 6 of the bill.