Commissioner Abe McGregor Goff Presents His Views on the American Bar Association Proposed Code of Administrative Procedure Mr. Goff BY THE HONORABLE ABE MCGREGOR GOFF As lawyers and specialized nonlawyer practitioners, we, of course, are intimately concerned with the statutes which relate to our professional activities. Their background, their present status, and their future form are all highly significant things to us. They should not be taken lightly or altered merely to fit somebody's theories or unsupported preconceptions. Right now the most important measure under discussion in Administrative Law Circles is the American Bar Association's Proposed Code of Administrative Procedure.1 Of course you know that the application of the Administrative Procedure Act is not confined to regulatory boards and commissions. It covers also a wide variety of activities of our government executive departments. I had more than a nodding acquaintance with the Act in the Post Office Department. While the principal business of this Department is to quickly and safely deliver letters, publications, and parcels all over the wide world. some materials are necessarily excluded. These include soliciting the sale and sending of obscene materials through the mails and the mailing of communications in furtherance of fraudulent schemes. Statutes concerning fraud and obscenity in the mails are both punitive and preventive. The Department of Justice prosecutes the criminal charges and the Post Office Department is responsible for enforcing the administrative statutes to cut off mail addressed to the offending concern. This administrative power is an effective preventive measure because it generally puts the operator out of business. The proceedings are instituted by complaint before a hearing examiner and carried through for final adjudication. My job in this, under a delegation from the Postmaster General, was to render the final agency decision. I had no experience with such administrative action until I came to Washington from my far-western law practice in 1954. I gave hearty Extracts from his Remarks before the Metropolitan Chapter, Association of Interstate Commerce Commission Practitioners, May 20, 1958, New York, New York. Commissioner Goff, prior to taking up his duties as a member of the Interstate Commerce Commission in February, 1958, was General Counsel of the Post Office Department. 1 S. 4094, introduced in U. S. Senate, July 1, 1958, by Senator Sam J. Ervin, Jr., Democrat, North Carolina, for himself and Senator John M. Butler, Republican, Maryland. endorsement to the basic reasons for the Administrative Procedure Act which are: (1) to guarantee fundamental rights to litigants in administrative proceedings and insure safeguards of due process required by our Constitution; and (2) to provide a speedy hearing. I twice revised and supplemented our rules of practice, the last time to provide a full administrative hearing on the granting or attempted revocation of the valuable second-class mailing privileges for magazines and newspapers. As the representative of the Post Office Department I attended the deliberations of the President's Conference in 1954 held under the Chairmanship of Judge Prettyman. I enrolled as a member of the Administrative Law Section of the American Bar Association and served through the Philadelphia, Dallas, and New York sessions as a member and later as vice-chairman of one of its sub-committees. At the Dallas Convention in 1956 I heard with misgivings a discussion of the proposals already approved to change the Administrative Procedure Act and came home to study the recommendations of the Hoover Committee Task Force on the subject. In 1957 I made a special point to attend the joint session of the Public Utility and Administrative Law Sections of the A. B. A. held here in New York. I listened in one of the front rows to the devastating criticism of the proposed code by Starr Thomas of the Practitioners' Association, ably supplemented by extempore discussions by my friend. Willard Gatchell of the Federal Power Commission and my fellow Idaho Law School graduate A. J. Gustin Priest, a veteran practitioner, now at the University of Virginia. The Starr Thomas remarks were published in the February 1958 issue of your Journal. A. J. Priest's brilliant formal exposition is in the Journal of May 1957, and Gatchell's sound reasoning for his position is found in 16 Fed. Bar Journal 453, 464. Those of you at the Annual Convention heard the address by guest speaker Earl W. Kintner. This should eventually appear in your Journal. He not only flattens the Administrative Court boys but suggests that any needed improvement of the administrative processes can best be made in our rules voluntarily, in lieu of statutory changes. I served with, and respected Kintner's abilities, in World War II days. He not only has been an outstanding President of the Federal Bar Association but really knows his regulatory commission onions. You should also watch for an article by Commissioner Robert W. Minor to appear in an early issue of the American Bar Association Journal. I'm proud to climb in with such good company. At the Post Office Department I felt we had just as well close up shop on fraud and commercialized obscenity cases if the proposed code were enacted. 2 Please see "Voluntary Improvement of Administrative Processes in Lieu of Statutory Changes," by Earl W. Kintner, General Counsel, Federal Trade Commission, printed in this issue. I. C. C. Practitioners' Comprehensive Study of I was delighted to learn of the comprehensive study the I. C. C. practitioners have devoted to these Hoover Task Force proposals and to the American Bar Association drafts of statutes to implement them. I assume that all of you read of at the time, and some actually participated, as members of the Special Research Committee of 100, in the special meeting on the Impact of the Proposed Administrative Code, an account of which appears in Section II of the Journal for November 1955.3 I did not even know you had made such a study until after I became a member of the Commission. I think it was an able, profound, and extremely valuable effort. That so much time, knowledge, and energy was brought to bear on it speaks impressively for your devotion to your profession. I assume you have kept up on your homework so I am not going into details about the proposed code. Acting on the resolutions pushed through the 1956 Midyear Meeting of the House of Delegates of the A. B. A., a draft was prepared embodying the proposed procedural changes. At least two watered-down versions have since been drafted. Bills to set up an Office of Administrative Practice and to create a Trade Court are now pending in the Congress. Apparently there is still some disagreement as to the language among proponents and the A. B. A. procedural code to date has not made its appearance. Action by the present Congress seems unlikely. But that does not mean we should call the guards down off the watchtowers. The membership of the American Bar Association are still being plied with arguments supporting the stand officially endorsed. Thus, in the March 1958 issue of the American Bar Association Journal, there appears an article of considerable interest, illustrative of the propositions for so-called "reform" which carry a veneer of surface appeal but are wholly impracticable of operation. This article carries as its thesis two so-called "deficiencies" in the process of institutional decision. While I do not question the good intentions, the article boils down to an extension of the continuing attack upon the administrative process. Some of you may have seen it. It was written by Frank E. Cooper, a Professor of Law at the University of Michigan, who was a consultant to the Hoover Commission Task Force, and is based on a recent study made in the academic halls. Entitled Administrative Law: The Process of Decision, it begins, as though announcing some new and startling discovery, with the following keynote sentence: "The process of decision in a case before an administrative agency is often much different from that in a case before a regularly constituted court." And, pray, why not different? Does anyone with any actual experience handling cases before a regulatory board, or with knowledge of the purpose or principles underlying their creation, really entertain the view that they were intended to be courts? 3 I. C. C. Practitioners' Journal, Vol. XXIII: No. 2 (Section II). The two "deficiencies" which the author believes that the ABA Administrative Code can remedy assertedly lie in the fact that (1) administrative agency members are often forced to rely upon memoranda of the record that is not seen by counsel for the parties and the fact that (2) the evidence in a given proceeding is "reweighed" by staff members. As to the first of these, the writer goes on to state that agency members, as a matter of practicality, are compelled to rely on digests, memoranda and abstracts prepared by staff assistants which are not available for examination by counsel even though they represent the actual basis of decision and may be inadequate or guilty of omission. With regard to the second, it appears that the primary objection is that the agency staff in weighing and appraising the evidence does not have the benefit of having seen or heard the witnesses and thus can be in no better position than the hearing examiner who is "an experienced judicial officer' to make conclusions with respect to the weight of the evidence on closely balanced issues of fact. Now, there is a degree of merit to the contention that the two situations mentioned constitute deficiencies. If each case could personally and individually be heard, from inception to close, by a Solomon, combining with his wisdom all the technical knowledge and skill of the expert in every phase of transportation, and capable of recalling every detail of the evidence or pleadings, without referring to a record, then he would need no staff. Certainly, we can't claim that we now have a perfect situation, for no process conceived by man is claimed to be perfect. But insofar as the Interstate Commerce Commission is concerned, I am greatly afraid that the procedural remedies proposed are far worse than the sickness, if any. He proposes that all factual summaries and legal memoranda prepared by the staff, including even those by the Commissioner's personal staff, be made a part of the official record, available to counsel for comment and then these super-rebuttals be considered before rendition of the agency decision. He even goes on in a footnote to say: "It has been suggested that agencies might substitute oral interviews for written memoranda, and thus evade the proposed requirement; but it would seem that such contingency could be avoided by appropriate statutory provisions." His other "deficiency" on the weighing of evidence by a staff after the initial hearing examiner decision is premised on the standard Task Force proposal that "the findings of fact made by the presiding officer shall not be set aside by the agency unless clearly erroneous on the whole record." Section 1005 (d) of the Proposed Code-October 1956 Version His first proposal was actually contained in Section 1005 (d) of the October 1956 version of the proposed code. This was modified by subsequent deletions in the 1957 draft. The author of the article states that one purpose of his article is to suggest that further careful consideration be given the 1956 draft. Of course the second proposal is a major point in all changes now urged. Actually, looking over the latest draft there still appear recognizable vestiges of his make-everything-part-of-therecord plan. Of course a practitioner is curious to know every confidential thought, every possible angle considered in reaching the ultimate decision. There is a certain surface appeal and plausibility in a rule which permits challenge of a confidential summary of the law or the evidence. But in this imperfect world where mere men have limitations of time and intellect and decisions must be made with some reasonable dispatch, we must compromise between the ideal and the practical job of getting things done. I think there is a point where the right of rebuttal must end just as it does to the memorandum of the law clerk for the judge after a court case has been finally submitted. I might here interject that during the month of April, there were circulated to Division 1 of the Commission, of which I am a member, 155 separate application proceedings. In addition, there were around 125 separate matters involving entire Commission reports, petitions for reconsideration, and so on. That wasn't all. We also were called upon to consider approximately 45 miscellaneous orders and petitions from such sources as the Temporary Authorities Board. And, on top of all this, April was a normal month in that there was oral argument to attend, Commission conference to prepare for and attend, budget matters to consider, legislative policy to discuss, ordinary correspondence to handle, and even some inadequate hours for preparing addresses such as this one. I think I can safety say that we are kept reasonably occupied so that the passage of time is not unbearably sluggard. In this age of specialization no man can be all things. Without the composite knowledge of our experts in such bureaus as Accounts, Cost Finding, and Valuation; Traffic; Safety and Service, etc., the Interstate Commerce Commission simply could not function. Without taking anything away from our experienced and capable staff of hearing examiners, and they are all highly qualified men, the fact remains that it is in the public interest to have their findings reviewed by others, expert in rates and tariffs, financial matters, operating principles, and so on. Every litigant before the Commission, and I use that word advisedly, as well as the public to whom our primary duty is owed, is entitled to the best and most expert decision possible. That is accomplished when staff members, familiar with the Commission's policies, are in a position to analyze the findings of fact and the record as a whole for those of us who must ultimately decide a given issue. ultimate goal is a "right policy" within the Congressional mandate, not merely a "right finding." One of Professor Cooper's arguments against use of staff reviewers of examiners' findings is that the staff member did not have the benefit of having seen or heard the witnesses. This perhaps may be of consequence in certain types of proceeding where it is important to observe the bearing of a witness and to see, for example, if he is lying. In many more instances, however, I see little merit to the point. I understand that in a great number of rate cases, for example, a witness will appear and proceed to read into the record a lengthy prepared statement which has already been given to counsel for the opposition. Does observing |