ministrative agencies or by a jury, this Court may reverse findings of fact by a trial court where 'clearly erroneous. The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Scope of Agency Review The Administrative Procedure Act now provides in subsection (a) of Section 8 that "on appeal from or review of the initial decisions of such [subordinate] officers the agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it would have in making the initial decision. The ABA Proposed Code does not contain this provision. Its absence suggests an intent to limit the authority of the various agencies over those decisions for which they have statutory responsibility. Judicial Review Section 1009 (g) under the heading "Proceedings in Excess of Jurisdiction" provides: "Upon a showing of irreparable injury, any federal court of competent jurisdiction may enjoin at any time the conduct of any agency proceeding in which the proceeding itself or the action proposed to be taken therein is clearly beyond the constitutional or statutory jurisdiction or authority of the agency.” I am opposed to this recommendation for the fundamental reason that it would result in numerous delays, and possible frustration of the administrative process. In most instances it is necessary to have the facts developed in the record before the question of jurisdiction could be determined and this can only be done at the administrative level. This recommendation provides that courts of competent jurisdiction may intervene at any stage of an agency proceeding to enjoin agency action which is beyond the constitutional or statutory jurisdiction or authority of the agency. This subjects the agency proceeding to litigation at any time, upon the allegation that it is attempting to exceed its jurisdiction or authority. This provision, plus other provisions with respect to interlocutory judicial reviews, make it certain that in a hotly contested proceeding it would be substantially impossible to bring the proceeding to a conclusion within any reasonable time and without many intervening court proceedings. In total, the several review provisions amount to discarding the heretofore established principle of exhaustion of administrative remedies prior to judicial review. In contrast to the current "abuse" of discretion jurisdiction of the courts, the courts would be empowered to enjoin administrative action at any stage upon finding that such action is "clearly in excess of constitutional or statutory authority," provided that irreparable damage be shown. The requirement of damage apparently could be satisfied in most cases by an affidavit stating that the issuance of a complaint has cast doubt on the legality of a business practice of the plaintiff and has disturbed his business connections; or that plaintiff's patronage has decreased as a result of the proceeding. Having made out the element of irreparable damage, a respondent could so harass and impede further proceedings as to come close to frustrating their completion. If the court should undertake to decide jurisdiction on the basis of incomplete data, there is a strong likelihood that effectiveness of administrative procedure would greatly suffer. The proceedings proposed by the recommendation could be brought in any court of "competent jurisdiction," presumably any U. S. district court. Thus the agencies would have to stand ready to vindicate their administrative complaints throughout the extent of the land, and instead of there being only eleven appellate courts sitting in judgment on the complicated matters handled by the agencies, there would be about a hundred courts in addition. When the possibility of appeals from the decisions of the district courts is considered, the peril to a speedy administrative process becomes apparent. The possibility of assessment of costs and attorneys' fees is so trivial a monetary consideration as to offer no real deterrent to the bringing of nuisance suits. Normally the plaintiff bears the court costs in injunction suits against the Government whether he wins or not and there is no way that he can avoid paying the fees of his own attorneys. So all that a court could do in the way of imposing extra costs and attorneys' fees on the frivolous plaintiff would be to tax him with costs equivalent to the salaries and expenses of the Government attorneys connected with the suit. Many respondents would no doubt find this a small cost to pay for the advantage of paralyzing a proceeding. Limitations of Authority Under Section 1010 we find two very insidious provisions which would limit the agencies' efforts to take effective action in the public interest. Subsection (a) provides: No rule or order shall be issued except within the jurisdiction delegated to the agency and as authorized by law. Agency action shall not be deemed to be within the statutory authority and jurisdiction of the agency merely because such action is not contrary to the specific provisions of a statute. This identical recommendation was made by the Hoover Commission. This recommendation marks an instance where the recommendation on its face appears harmless but where the supporting discussion in the Hoover Commission Report strongly indicates an intent to go farther than the specific language of the recommendation. The language of the discussion "changes in standards should be based directly upon controlling legislation or agency rule before sanctions are imposed for violations thereof" broadens the recommendation. But even this language is not seriously objectionable. It is only when we go back farther and read the previous paragraph and the case there cited that we encounter the serious dangers. In support of its recommendation the Hoover Commission cites Matlack, Inc. v. United States, 119 F. Supp. 617, reversing an order of the Interstate Commerce Commission. Withholding a certificate of public convenience and necessity is certainly not equivalent to imposition of a sanction. If this recommendation meant what it says, I would not object but if it means what is indicated by the discussion, I offer strenuous objection, for it could make it impossible for agencies to carry out their duties. Subsection (b) of Section 1010 provides: Agency publicity, which a reviewing court finds was issued to discredit or disparage a person under investigation or a party to an agency proceeding, may be held to be a prejudicial prejudging of the issues in controversy, and the court may set aside any action taken by the agency against such person or party or enter such other order as it deems appropriate. This recommendation is again identical to the recommendation of the Hoover Commission. It provides that "agency publicity," which a reviewing court finds was issued to discredit a person under investigation or a party to an agency proceeding may be treated by a court as a prejudicial prejudging of the issues in controversy, and that the court may set aside any action taken by the agency against such person. At least two objections appear to this provision: first, the action prohibited is not clearly defined to make certain that mere publication of the contents of a formal administrative complaint should not be deemed to violate the provision; and, second, in the setting of any regulatory agency, it is not apparent why the public should suffer for the misconduct of the agency with respect to publicity issued. If a sanction is to be imposed, it should be against the agency rather than against the public. As I see it, there is only one serious and very basic problem confronting the administrative process today. That is our perennial enemy, delay. This enemy is not the exclusive property of the administrative agencies. As you all know, responsible officials are sorely troubled by existing delays in court trials. The Code revision compiled by the ABA and circulated on April 13, 1957, attempts to legislate speed for administrative agencies. Subsection (d) of Section 1005 "Expedition and Denials" provides that "every agency shall proceed with reasonable dispatch to conclude any matter presented to it." This section, however, far from remedying delay, would serve to increase it. This section would inject the courts into administrative proceedings at any stage for the purpose of determining whether an agency has been guilty of "undue delay. The courts are then authorized to direct the agencies "to decide the matter promptly." Provision is made for the agency to show in defense "that the delay was necessary and unavoidable. While I have no sympathy for unnecessary delay, I believe we must proceed cautiously in this area. We must aim not only at expediting decisions, but at expediting justice. All cases could, of course, be decided quickly by Police State techniques. Hence, our goal is not speed alone. Some cases by their very nature, require lengthy proceedings. And length alone is not necessarily an indication of delay. Interested parties must be afforded an opportunity to be heard. The time there involved is the price we pay for liberty and justice. In sum, these ABA proposals which I have discussed appear fundamentally to alter the Administrative Procedure Act in important respects. While I recognize that the Administrative Procedure Act is not an optimum piece of legislation, it seems to me that we would do well to stay with it untll we can improve upon it. This could be done by selective amendment of the Act, but in my judgment the most fruitful possibilities lie in self-improvement of the administrative process by the agencies. Self-Improvement of the Administrative Process Adaptation to changing public needs and conditions is the essence of the administrative process. Its flexibility and capability of improving itself constitute its most precious assets. I have no magic formula or program for correcting whatever shortcomings there be in the administrative process. However, I suggest that the agency heads, their staffs, and those who practice before the administrative agencies should make a common and determined effort more diligently to explore the possibilities of voluntary self-improvement of the administrative process, in lieu of the outside practitioner's current ex parte practice of relying upon long-range, usually bitter programs to settle their gripes and grievances about the practices and procedures of individual agencies. Surely the average practitioner is familiar enough with administrative law to realize that there exist basic differences in duties, in needs, in practices and procedures among the fifty-odd Federal administrative agencies. Any legislation providing for too much uniformity is apt to defeat its purpose, to place the administrative process in a straight jacket and thus ultimately destroy its usefulness. For example, if there is any unnecessary delay in the administrative process today, the remedy clearly should come from within. The administrative process has the capability and must improve itself by finding new or improved methods to complete its task with proper speed. In many areas this has been done. At my own agency, the Federal Trade Commission, we have in the past few years more than cut in half, all along the line, time consumed in all our procedures. The agencies, and those who practice before them, should give further consideration to the recommendations of the 1953-1954 President's Conference on Administrative Procedure, and perhaps to the desirability of holding periodic conferences of this nature for the purpose of improving the administrative process. Of course, I recognized that the recommendations of such conferences have varying applicability to a given agency, dependent upon the nature of its work. But the agencies, just as much as some of our ABA brethren, must acquire the habit in this respect of less negative and more positive, constructive thinking of procedural changes, of more willingness to apply trial and error methods to such problems. In all this, those who practice before agencies should be co-equal partners and willing to assume the role of helpful adviser rather than carping critic. To cite an example with which I am familiar, a small working subcommittee of the Section of Antitrust Law under the chairmanship of Curtis C. Williams, Jr., of the Cleveland Bar, labored for nearly a year preparing a draft of suggested rules of practice for the Federal Trade Commission, consulting all the while with staff members having most experience with particular procedures. This draft was of material assistance to the FTC staff committee which in turn formulated a draft of rules of practice for submission to the agency heads. Today, three years later, that same ABA subcommittee is being activated for a further look at our rules of practice in the light of our intervening experience with the redrafted rules. I have no doubt that further improvements can and will be made. Thus we are receiving the benefit of the advice of practitioners as familiar with our procedural problems as we are ourselves and just as interested in making the administrative process work successfully and efficiently at the Federal Trade Commission. I am convinced that this same technique of cooperation in selfimprovement of the administrative process can be made to work successfully in every agency, with a spirit of good will and give and take on the part of those who sit on opposite sides of the counsel table, and at the head of the table. I conclude by suggesting that the administrative process has exhibited growing pains and failings just as the courts have done. However, throughout the years there has been a steady improvement in character, in responsibility and in value of the administrative process. All of us, no matter what our connection with the administrative process, must assume a measure of responsibility to insure that this steady improvement continues. DINKLER PLAZA HOTEL, ATLANTA, GEORGIA, CHOSEN AS The Executive Committee has selected Thursday and Friday, May 14 and 15, 1959 for the 30th Annual Meeting of the Association of Interstate Commerce Commission Practitioners. The meeting will be in Atlanta, Georgia, at the Dinkler Plaza Hotel. |