decisions of the Administrator of Veterans' Affairs. Instead, I will outline briefly why I think that irrespective of these issues, this bill should be passed.

Some years ago, judicial review of most administrative decisions was very difficult and expensive to obtain. Although in theory the opportunity for review was presumed, in practical terms various doctrines of the law such as standing, ripeness, and exhaustion inhibited the progress of such cases. During the sixties and early seventies, the Supreme Court made a number of decisions sharply reducing the effect of these doctrines and allowing more and more cases to reach the courts where there was no specific preclusion of judicial review. And even in those situations where Congress might have thought that review was effectively precluded, the court construed the statutes in such ways as to make judicial review available. Despite the general lessening of obstacles to obtaining a judicial determination of the legality of administrative action, one area has remained intractably immune-decisions of the Veterans' Administration. So that while students can receive judicial review of the appropriateness of suspensions, welfare recipients have access to the courts to contest benefit levels, citizens can challenge an order of a Government agency which may affect the environment, veterans, who have as great a claim to fair treatment by their Government as anyone else, continue to be shut off from any day in court concerning matters which are vital to their health, welfare and life itself. It is fundamentally unfair. I do not think that it is intended to be so, but rather that time and sentiment has just not caught up with the plight of the veteran in this regard. And it is no longer likely to, except through this legislation. Recently, the judiciary has become increasingly hostile to further expansions of the avenues to the courts. In very modern cases, the Supreme Court has resurrected some of the restrictions which earlier prevented people from obtaining judicial review. It has invented some new ones, and does not seem to be in any mood to view favorably expansive arguments concerning access to the courts. This may or may not be a good trend in the overall picture. Despite the answer to that question, however, the effect is unfair to the veteran because he has been left splendidly high and dry; having no prior precedent to assert and having no likelihood of receiving a new one. Only special direction from Congress to the Supreme Court will rescue the veteran in the foreseeable future.

In addition to being unfair, the present situation is unjustifiable from an administrative law point of view. There are some good reasons why judicial review should be restricted or precluded. Where there is no real need for supervision to protect individual rights from being lost in the bureaucratic shuffle, where the agency is performing largely managerial and proprietary functions, where judicial review is otherwise inappropriate because the nature of the issues is exceedingly complex or where there is no judicially manageable means of rectifying error or where matters of military expediency overwhelm all else, judicial review probably should be at least deferred if not totally precluded. But none of these considerations are present in this situation. Despite its concern with veteran of military service, the Veterans' Administration is most like a social welfare agency distributing bene

fits to eligible recipients. There is no military exigency here which can justify preclusion of judicial review. The cases about which we are concerned are particularized and individual. Precisely the kind of case that the judiciary is most competent to decide. There are no really complex issues, nor is the judiciary incapable of formulating remedies. And there is a need to provide the individual veteran an opportunity to contest a decision of the Administrator since there is no other protection available to the veteran.

Some would argue that the VA should be autonomous and immune from meddling courts, that the Veterans' Administration looks well after the interests of veterans. Without diminishing the record of the Veterans' Administration, that argument proves too much. The same argument can be made against any form of judicial review of any governmental action. It is a bankrupt argument today.

Once judicial review is available, the provisions which would provide for the payment of attorney's fees is absolutely necessary. The service representatives who presently assist veterans with claims are of great importance, and their role should not be lessened. But with all deference, when a complex case is being prepared for eventual appeal to the courts, it is imperative that an attorney acquainted with the intricacies of Federal practice be involved. In order for that involvement to take place, however, in most cases, attorney's fees will have to be made available, unless we are going to put a price on justice. Thank you very much.

Senator THURMOND. We wish to thank you for your appearance. Now, I have a few questions here I would like to ask you.

Professor Wedlock, the VFW and the American Legion have consistently and vehemently maintained that veterans are adequately represented before the VA under present laws and that judicial review is not warranted. Would you please comment on this position?

Mr. WEDLOCK. I can't speak to the question of whether or not they are adequately represented before the Veterans' Administration. Hopefully, the service representatives are very good in most cases and this legislation would not affect their position in any way, shape, or form. Service representatives would still be allowed to perform their services for the veteran who wants them before the Veterans' Administration.

So I don't see that there is any threat or any difficulty from that prospective. Again, we have to ask the question, though, once the service representative is through with his case, in other words, not through with his case, but the case is adjudicated, what happens at that point?

That veteran does not have any recourse, service representative or not. And that is why judicial review is necessary, not because the Veterans' Administration is prejudicial or acts prejudicially to the veteran or particular classes of veterans or what have you, but because when dealing with large governmental agencies, rules sometimes get in the way of individual justice and that is what the institution of judicial review is all about.

Senator THURMOND. Now, there has been concern expressed that the adoption of S. 364 would result in the formalization proceedings before the Board of Veterans' Appeals for adjustment of claims, to the detri

ment of claimants. Specifically, it has been pointed out that the current rules of practice are simple and direct and permit claimants to pursue their cases without the assistance of an attorney.

What is your response to this concern?

Mr. WEDLOCK. Again, this bill would have no effect on that in my estimation. The proceedings before the Board of Veterans' Appeals could continue to be as informal as they are today. The judicial review that would take place later would be upon the record, that is, presented at that hearing and it would not necessarily be any additional formalization at the board level.

Of course, there would be formalization, well, not formalization, but we would have to abide by the standard rules of Federal practice once you got into court. But it would not necessarily affect the board.

One other thing that I would like to comment on in the same regard. Mr. Bowen stated about the problems of res judicata. That also seems to be, in large measure, up to the Veterans' Administration on how to handle that problem.

They could reopen the case and find new evidence as an administrative matter. It would then become a new case, per new case and judicial review of that case would not be lost.

It is only when you try to go into court twice. Then without going before the administrative body again that you run into trouble. And if the Veterans' Administration is as concerned as it claims to be on the position of the veteran, it should permit cases to be reopened in that fashion.

Senator THURMOND. I was just getting ready to ask you a question on that.

Opponents of S. 364 argue that once a court of law has ruled adversely upon a particular claim, that claim would not again be considered by the VA. I believe your answer was that you felt that they could reopen the case.

Mr. WEDLOCK. They could reopen the case, but then it would be a new claim. It wouldn't be the same claim. If new evidence were presented, you couldn't go into court again. Once you have a claim go through the administrative process and you have got judicial review and you lost, you couldn't come up with new evidence and go directly back to court.

You would have to go back to the Veterans' Administration first. Senator THURMOND. Now, testimony here today alleged that judicial precedents could restrict the future award of benefits to the disadvantage of veterans. What is your view of the role of legal precedents if S. 364 were adopted?

Mr. WEDLOCK. It wouldn't be any more restrictive than the precedents being set by the Administrator in the present. Somebody has to set precedent. Somebody has to decide the case. And it seems the bill poses to shift that final determination from the Administrator in the cases where the individual is relieved by the decision of the Administrator to the judiciary.

Senator THURMOND. Mr. Jack Wickes, associate general counsel of the committee would like to ask some questions.

Mr. Wickes.

Mr. WICKES. Let me return to the question of res judicata. Under present law an unfavorable determination by the Board of Veterans' Appeals can be reconsidered upon submission of new and material evidence.

My understanding from your testimony today is that such would remain the case-upon the application by the veteran.

Mr. WEDLOCK. That is what my thinking is.

Mr. WICKES. The DAV has recommended a court of veterans appeals. You have heard their testimony this morning. Do you have any comment with regard to that recommendation?

Mr. WEDLOCK. That was the first that I have heard of it. Generally, my feeling is against it. It is going to fragment the cost. And basically for the reason that I think one rule of law, one form of procedure should be available to everyone. What I perceive likely to happen with a special court for Veterans' Affairs is it would just become another level of quasi-administration.

Although, this is more judicial inquiry. But the man would still be there for judicial review of these decisions by the regular Federal

court.

Now, you might solve the problem in the same way via a court of military justice, military court of appeals, by having review directly to the Supreme Court or one of the District of Columbia Circuit courts directly from the Veterans' Affairs court.

But it seems to me that you are just adding something on, not really gaining anything, not solving the problem.

Mr. WICKES. Would you, if you so desire, think further on this issue and forward to the committee your views on the recommendation?

Mr. WEDLOCK. Certainly. I would be happy to.

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Mr. WICKES. You have heard the testimony of Dr. Waldroup concerning the VA practices of establishing liability against an educational institution. Would application of chapter 5 of title 5 USC assure adequate protection to institutions in administrative proceedings such as in the collection of educational liability? Would S. 364 protect educational institutions?

Mr. WEDLOCK. Yes, I think it would. I think it would be a great deal of help to them.

Mr. WICKES. The testimony which is to be given today by the Justice Department, spends some time discussing the crowding of the court docket. Could you comment as to the merits of this argument insofar as extension of the right of judicial review to the veterans is concerned?

Mr. WEDLOCK. Crowding of the court docket is a very serious problem. But it doesn't seem to me that you are going to get very far with the problem which is with us by strict judicial review or keeping judicial review away from the veteran. It seems to me a drop in the bucket. You are going to have to address this problem on a very broad scale across the board of judicial review, administrative action and action to the courts generally.

I don't know exactly how that is to be done, but it seems to me that in order to keep the veterans in a special place with judicial review is unfair. Why pick on that? That is sort of my reaction.

Mr. WICKES. Again, if you so desire, if you want to forward to the committee any additional views on that matter it would be appreciated.

Mr. WEDLOCK. Thank you.

Mr. WICKES. As you are aware, other Federal programs such as social security and black lung provide standards for awarding of attorney's fees. Should a formula be established by statute or should it be left to the discretion of the Administrator?

Mr. WEDLOCK. I think probably it should be a mix of those two approaches. There should be some formula for compensation, but that there shouldn't be discretion for the Administrator to reduce or increase the award depending on whether or not he feels the case warrants more or less than the standard award.

I think that there is some discretion necessary in this area. I do find it a little amusing to hear some of the witnesses talking about not giving the discretion to make the award via the Administrator because they don't want him to have that kind of discretion.

Yet they are willing to have all the other kinds of discretion that the current law provides.

Mr. WICKES. Again, if you have any recommendations you would want to make insofar as the proper mix or the appropriate mix of the two processes, the committee would appreciate your recommendations. Mr. WEDLOCK. Thank you. I would be pleased to. Mr. WICKES. Thank you, Senator.

Senator THURMOND. All right. We want to thank you, Professor, for your appearance here and for the testimony that you have presented at this hearing.

Now, our next and last witness is Mr. Paul Nejelski, Deputy Assistant Attorney General for the Office of Improvements in the Administration of Justice, Department of Justice. We are glad to have you here.

Mr. Nejelski, I see you have done a lot of work here in preparation. You have a very long statement. Would you want to put the entire statement in the record and then just hit the high points? Mr. NEJELSKI. Yes, I would, Senator. I will highlight it.

Senator THURMOND. You can do that in about 5 minutes maybe. I understand you have to catch a plane anyway.

TESTIMONY OF PAUL NEJELSKI, ESQ., DEPUTY ASSISTANT ATTORNEY GENERAL FOR THE OFFICE FOR IMPROVEMENTS IN THE ADMINISTRATION OF JUSTICE, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

Mr. NEJELSKI. I am pleased and honored to be here, Senator. It is very appropriate since our office was created by Attorney General Bell to try and improve the administration of justice and worry about some of the issues that you have raised here at these hearings.

I am pleased to have this opportunity to convey to the Committee the views of the Department of Justice on the impact of the enactment of S. 364 on the workload of the Federal court system. And in a way, Senator, we are making history here this morning. To our knowledge, this is the first time the judicial and court system impact