wherein such claimant resides, or has his principal place of business, or, if none, in the United States Court of Appeals for the District of Columbia, or any such court which may be designated by the Commissioner and the claimant by stipulation in writing, within three months after the date of the mailing to the claimant and the Commissioner of the copy of the findings and decision of the Board. A copy of such petition shall forthwith be served upon the Commission or upon any officer designated by him for that purpose, or upon the claimant, according to which party files such petition, and upon the Board. Thereupon the Board shall certify and file in the court, in which such petition has been filed, a transcript of the record upon which the findings and decision complained of were based. Upon the filing of such transcript such court shall have exclusive jurisdiction to affirm the decision of the Board, or to modify or reverse such decision, if it is not in accordance with law, with or without remanding the cause for a rehearing, as justice may require. No objection shall be considered by the court unless such objection shall have been urged before the Board or division and the presiding officer, or unless there were reasonable grounds for failure so to do. If the claimant or the Commissioner shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material, and that there were reasonable grounds for failure to adduce such evidence in the hearing before the presiding officer, the court may order such additional evidence to be taken before such officer, and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. The Board may modify its findings of fact and decision by reason of the additional evidence so taken and it shall file with the court such modified or new findings and decision. The judgment of the court shall be final, subject to review by the Supreme Court of the United States, upon certification or certiorari as provided in sections 239 and 240 of the Judicial Code as amended. "" 27 Finally, the values of judicial review of administrative decisions are not always found in the books or in the report of cases. As Lord Chief Justice Hewart pointed out in "The New Despotism," the ever-present knowledge in the minds of the administrative tribunals that their decisoins may be challenged in the courts at any time and in any case is a constant spur to these tribunals to attempt to make their decisions square with the facts. This is reflected in a higher grade of work than is otherwise obtainable and tends to show up inefficiency in departmental officers as nothing else can do. The excuse of inefficient employees that in a trial de novo the court did not have before it the record of the case as it appeared to the administrative board does not hold water when the court has before it the identical record on which the board took action. As to subsidiary matters in the section, it has been thought in the interest of proper administration of the law for the Attorney General to have the defense of the appeals in the courts, rather than the administrative officers of the particular departments, etc. The citizen should not be forced into the courts when the case does not justify it, and the Attorney General, whoever he may be, may be depended upon in most cases to insist upon an administrative settlement when he concludes that the case cannot be defended in the courts. Also, the Department of Justice was established for the purpose of centralizing the work of handling cases in the courts. There is nothing in the section which would prevent the Attorney General from using qualified lawyers in the respective agencies to defend or prosecute particular cases- -and he should do so rather than to build up a top-heavy department. The jurisdiction of the Court of Claims extends generally to money claims against the United States, not including claims for refund of customs duties or objections to deficiencies in assessment of taxes. The jurisdiction of that court does not extend to regulatory matters. It has been thought well to preserve the Court of Claims' jurisdiction so that the aggrieved person in money claims, except the ones mentioned, may continue to go to that Court if it is so desired. 27 There has been some complaint as to the Processing Tax Board of Appeals and the scope of review in the Circuit Court of Appeals, it being stated that "the appeal provided for in the 1936 Income Tax Law from the decision of the Administrative Board on the establishment of claims for refund of processing taxes, makes it impossible, I think, for many just claims to be won." If this be true, the fault, of course, is not in the principle of the intra-departmental board of Processing Tax Appeals but in the Congress as to the restricted and limited jurisdiction conferred on the board and on the reviewing court. As the United States may not be sued except with its consent, the Congress may expand or restrict the right in the courts as it sees fit, except possibly where constitutional rights are involved. EXCEPTIONS AND RESERVATIONS The exceptions and reservations in section 6 of the draft are self-explanatory. It is sufficient to say that the terms of this draft do not propose to modify or repeal any right or procedure now provided by law to have any case covered by this draft-and it covers all of them where not specifically excepted-heard and determined in any district or circuit court of appeals. That is to say, this reservation is to maintain the status quo as to any existing legal remedy to secure an independent review in the courts of an administrative decision. It is to make clear that no existing legal right to a judicial review is taken away. The rights to review as contained in this draft are alternate rights. Those who prefer to do so may continue to use such legal remedies, by suits against the United States or against an officer thereof, as may now be provided by law. But to those who see fit to use it, the proposed statute would furnish a more expeditious and less expensive independent review of the controversy and incidentally a broader review in the United States Circuit Courts of Appeals or the Court of Claims than will be available from the district courts in the said Circuit Courts of Appeals if Rule 59 of the proposed rules of Civil Procedure, as above quoted, is adopted by the Supreme Court, and a broader review under the formula stated in the concluding sentence of section 4 (a) of the draft than is now available in all cases. Further, there are excepted from the judicial reviews provided for in this draft the cases specifically enumerated in section 6 (b) of the draft. No comment thereon seems necessary. SUMMARY AS TO PROPOSED RESOLUTION NO. V It has been publicly charged, in all good humor and sincerity, by an able professor of law in one of our largest university law schools, thoroughly familiar with law making from the Code of Hammurabi, the Justinian Code, and others since dim antiquity to the present day, that the American Bar Association is incapable of drafting and agreeing upon any bill which-if enacted into law-would codify and simplify the administrative determination of controversies with the United States with adequate but not ham-stringing judicial reviews of such decisions. We have accepted the challenge and now lay before you this draft and this report with respect thereto, with our recommendation that the draft be approved in the form of Resolution No. V of this report. In so doing we invite attention to the cases cited in this report to the effect that the courts do and will review the law and, in proper cases, the facts involved in the decisions of both independent and departmental boards. We conclude with an extract from an address delivered by Mr. Justice Stone of the Supreme Court of the United States at Harvard University in 1936 as follows: "Rarely in the history of the law has such an opportunity come to our profession to carry forward a creative work which would enable the law to satisfy the pressing needs of a changing order without the loss of essential values. The ultimate establishment of equity, after a period of resistance, as a coordinate branch of the law, ameliorating the rigors of the common-law system and translating in some measure moral into juristic obligations, is a comparable transition in the law. The profession of our day, like its predecessors who saw in the pretensions of the chancellor but a new danger to the common law, has given little evidence that it sees in this new method of administrative control any opportunity except for resistance to a strange and therefore unwelcome innovation." Respectfully, O. R. MCGUIRE, Chairman, I approve of Resolution V and the proposed bill as drafted by the Committee. I agree to Resolution I that the Special Committee on Administrative Law be continued, for the sole purpose, however, of securing enactment by Congress of the bill if it is approved by the American Bar Association. I reserve final judgment on Resolutions II, III, and IV. KENNETH C. SEARS. I enter a general dissent to Resolution V and the draft of bill "To provide for the more expeditious settlement of disputes with the United States and for other purposes." MONTE APPEL. APPENDIX A BILL To amend section 113 of the Criminal Code of March 4, 1909, 35 Stat. 1109 (U. S. C. Title 18. sec. 203), and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That Section 113 of the Criminal Code of March 4, 1909, 35 Stat. 1109 (U. S. C. title 18, sec. 203) be, and it is hereby, amended to read as follows: "SEC. 113. Whoever, being elected or appointed a Senator, Member or Delegate to Congress, or a Resident Commissioner, or a national or state committeeman or committee woman or state or national officer of any political party, shall, after his or here election or appointment, and either before or after he or she has qualified, and during his or her continuance in office, or being the head of a department, independent establishment, board, commission, or other instrumentality of the United States, including corporations in which the United States shall own any part of its capital stock, or other officer or clerk in the employ of the United States in any such department, independent establishment, board, commission, or other instrumentality of the United States, including corporations in which the United States shall own any part of its capital stock, shall, before any such department, independent establishment, board, commission, or other instrumentality of the United States, including corporations in which the United States may own any part of its capital stock whatever, render any service or assistance of whatever character for or on behalf of any person, firm, corporation, or any other association in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, imprisonment or other matter or thing in which the United States is a party or directly or indirectly interested, shall be fined not more than $10,000 or imprisoned not more than two years; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the government of the United States. SENATOR LOGAN. In behalf of the committee, I want to thank you, Colonel McGuire, and Mr. Sebree, for the vast amount of information you have given us. Mr. Sebree has been cooperating with others in getting up some very interesting and informative data for the benefit of the committee. The committee will stand adjourned until next Tuesday at 10:30. (Whereupon, at 11:30 a. m., the committee adjourned until Tuesday, April 5, 1938, at 10:30 a. m.) |