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be 723, making a grand total of 918 required for operations under the Administrative Procedures Act.
This is in addition to a force of 195 (65 examiners and 130 clerks) which, prior to the Sung decision, were engaged full time upon warrant hearings.
Since the minimum grades for hearing examiners and hearing stenographers under the APA are GS-11 and GS-6 respectively, funds are required to meet the increase in salary obligation resulting from these mandatory reallocations. The detail of the cost estimate for personal services appears on page 13 of the justifications.
Money is included in the estimate to pay the salary of the additional force for a period of only 10 months assuming that it will be September 1 before recruitment will be completed following the availability of funds. The total additional amount required for personal services $2,552,600.
The estimate for “other obligations” is detailed on page 13 and explained on pages 15 and 16 of the justifications.
tifications. The total amo
amount required for this purpose is $1,427,400. The principal item is detention, $810,000. As I mentioned before, an increase in detention is inevitable in the Mexican cases which heretofore have been handled informally with great dispatch. Additional travel expenses will be involved because it is cheaper to detail officers to less active areas to dispose of an accumulation of cases than to have hearings personnel stationed there full time. We estimate an average of 6 weeks travel time per officer. Additional space must be provided for the conduct of the hearings and working space for the examining officers and stenographers. Likewise typewriters, desks and the usual minor items of office equipment will need to be supplied.
That, in summary, covers the supplemental estimate of $3,980,000,
NUMBER OF SUBVERSIVES ENTITLED TO NEW HEARINGS
Mr. ROONEY. Can you now give us an approximate figure of the number of subversives who, under the decision of the Supreme Court, are entitled to a new hearing?
Mr. MACKEY. I will submit it for the record, sir.
Mr. ROONEY. The difficulty with that procedure is that it does not give us the opportunity to cross-examine with regard to it.
Mr. MACKEY. I understand. How many of those cases where they will have to be heard de novo?
Mr. ROONEY. Exactly.
Mr. ROONEY. Yes; I am now talking of subversives and subversives only. Mr. LOUGHRAN. The number of cases that will be reopened?
Mr. ROONEY. Yes; of subversives only. I am trying to divorce this Mexican, situation from these cases at the port of New York and at the other big ports, the cases of the felons and the subversives.
Mr. ANDRETTA. They estimate 10,000 cases would be non-Mexican
Mr. MACKEY. We figure 15,000 non-Mexican cases. shown on page 11 of the justifications.
NUMBER OF CASES
Mr. ROONEY. You have an estimated total annual volume of 15,000 non-Mexican cases?
Mr. Mackey. That is right.
Mr. MACKEY. Of that, an estimated 5,000 cases which must be reopened, because the warrants of arrest were served prior to September 11, 1946. But to break that down into subversives and criminal classes we have not done that.
Mr. Rooney. You have given us a pretty big order here and it would seem that that would be a very interesting phase of the situation.
QUESTION AS TO NEED FOR NUMBER OF ADDITIONAL PERSONNEL
How many inspectors did you have examining these cases previous to the Supreme Court decision?
Mr. LOUGHRAN. Sixty-five, full time.
Mr. LOUGHRAN. That is right. Previous to the Sung decision we estimated 65 who spent their time exclusively on that.
Mr. ROONEY. Will you repeat that?
Mr. LOUGHRAN. Previous to the Sung decision any immigrant, inspector could conduct the deportation hearing.
Mr. ROONEY. The inspectors were doing it and they were carrying on? Mr. LOUGHRAN. That is right.
Mr. ROONEY. And you had 65 of them doing it.. Now you want 80 more, which would make 145 people doing what 65 inspectors formerly did; is that right?
Mr. Mackey. They would be sitting as hearing examiners, Mr. Chairman.
Mr. ROONEY. I will ask the reporter to repeat the question.
(The reporter repeated Mr. Rooney's last question as above recorded.)
Mr. MACKEY. That is right.
Mr. Rooney. So you are asking for approximately 300 or, to be exact, 297 new employees to carry on the work formerly done by 65 inspectors?
Mr. MACKEY. That is right.
Mr. WININGS. Under the Sung decision, the Supreme Court said that we were under the Administrative Procedures Act and that act requires a complete separation of the functions between the hearing officer from any other work of the service-investigation, prosecution, and things like that. Accordingly no longer may an immigrant inspector, in the general flow of cases
Mr. ROONEY. You are repeating exactly what Commissioner Mackey said. I want to know why you need 297 additional people to carry on the work formerly performed by 65 inspectors.
Mr. WININGS. First, because the hearing examiner must hear his cases, make his findings of fact and conclusions of law and make a decision.
Mr. ROONEY. Of course he must.
Mr. WININGS. And the formality is thereby more extended, because in the general flow of cases he must go through the same procedure as in the most difficult case.
Mr. ROONEY. Not necessarily, isn't that so?
Mr. WININGS. I think it will certainly be more so than it ever has been in the past.
Mr. ROONEY. For instance, where the case is not contested?
Mr. WININGS. If the case is not contested, we can enter into an agreement with him.
Mr. ROONEY. Exactly. I am asking a very simple question. I just do not understand why, having been carrying on with 65 inspectors you now want not only 65 full-time positions, you want 297 more.
Mr. WININGS. May I state it in a different way? Before, the 65 persons carried on their proceedings in this manner. The hearing officer acted both as interrogator and as tentative judge and made the record himself. Now he cannot make the record. He sits as a judge on the bench and someone has to make the record in the case and present the record to him.
Mr. ROONEY. That being so, why would not the proper figure be 65 hearing examiners to replace the 65 inspectors; your inspectors acting as the prosecutors and the hearing examiner as the judge? Why do you have to come to a figure of 297?
Mr. MACKEY. Because it takes so much longer to handle a case under this more complex procedure.
Mr. Rooney. Not necessarily.
Mr. Mackey. The case must be presented by the examining officer to the hearing examiner. The hearing examiner when he has heard that case then makes his findings of fact and conclusions of law and while he is doing that another case is brought on before this hearing examiner.
Mr. ROONEY. Previously, your contested cases, let us say, involved subversives, some of these Communist union officials who were tried by you up in New York. Was not the inspector in those cases making findings of fact and conclusions of law there?
Mr. MACKEY. He was.
Mr. MACKEY. Yes, sir. But he was not only the public advocate, but he was also the hearing examiner in those cases.
Mr. Rooney. I understand that, but, Mr. Mackey, I cannot understand why, if you had 65 people doing a job, and we were to give you 65 to replace them and permit the inspector who was formerly the judge to act as the prosecutor, you need more than 65 fulltime examiners.
Mr. WININGS. That has been the experience.
Mr. ANDRETTA. Mr. Chairman, they had to revise their procedures completely. Before, it was a very informal hearing, just across the table.
Mr. ROONEY. No; previously it was very formal in many cases. Take the Santo case, or any number of similar cases, where you had top legal talent appearing for these people; that is true, is it not?
Mr. MACKEY. Yes, Mr. Chairman; we did. And in order to play safe in those cases, not knowing whether we would be brought under the Administrative Procedure Act, we did have a separation of functions, in those cases. We did have a hearing examiner in those cases, even though we were not required to operate under that act.
Mr. ROONEY. In most of these cases there are not very involved findings of fact or conclusions of law, are there?
Mr. Mackey. In the average so-called Mexican case, Mr. Chairman—we regard them as very simple cases.
Mr. Rooney. Yes. And would not a felony conviction case be a simple case?
Mr. MACKEY. Where one inspector could handle perhaps three or four of those cases in a day, from my experience on the border. He cannot do it now under this more complex procedure. He can handle possibly two; he can handle about one-half as many cases as he handled prior to coming within the Administrative Procedure Act.
Mr. LOUGHRAN. A hearing examiner, in a Mexican case, can handle two cases a day. This is the experience which we have had since the operation under the Sung decision starting approximately the last week in March of this year. That is two a day. We have figured 440 a year per examiner on the Mexican border cases.
Mr. MACKEY. Previously, one man propounded the questions and acted as interpreter-propounded the questions in Spanish, got the response in Spanish and then interpreted for the record. One man could conduct those hearings where now it takes a hearing examiner and an examining officer, or prosecutor, and a stenographer.
NEED FOR LEGISLATION EXEMPTING THE SERVICE FROM THE
ADMINISTRATIVE PROCEDURE ACT
Mr. ROONEY. I am one member of this committee who has always felt that one of the real great outfits in our Government is the Immigration and Naturalization Service. I always felt they did a fine job. You have heard them commended here many times. You have heard them commended in connection with the IŘO program, the bringing of displaced persons to this country. You were right on the job. You sent your people to Europe so that they didn't arrive here without previously being examined and many returned after they got here. We want to go along with you, but how can we save this $4,000,000?
Mr. LOUGHRAN. It would have to be provided for in the law.
Mr. ROONEY. What is the position of the Immigration and Natur-
Mr. Mackey. The bill has not been put into the hopper as yet, but I understand that it is up here and we are recommending its passage. The Department of Justice is recommending the passage It has been approved by the Bureau of the Budget.
Mr. ROONEY. And all that would be necessary to save $4,000,000 would be to exempt the Immigration and Naturalization Service from the act?
Mr. MACKEY. That is right.
Mr. ANDRETTA. That may be only the beginning, that is, the $4,000,000. We have estimates of up to $30,000,000 on these procedures. If this thing mushrooms the way we think it will, everyone will think he is entitled to a hearing, and we cannot tell how far it is going to go.
Mr. LOUGHRAN. It may be $25,000,000 or $30,000,000 if the Mexican border wetbacks insist on hearings.
Mr. ROONEY. How does the general world situation at the moment and the question of subversives getting into our country affect this matter?
Mr. WININGS. It affects our ability to expel the Communists, because they could demand every technical provision which the act provides for
Mr. ROONEY. But it would not affect your apprehension of them or your right to apprehend them, or your right to either hold them or bail them until they have a hearing; is that correct?
Mr. WININGS. That is correct.
Mr. WININGS. The Attorney General sets the bail, but if he sets it high or it is thought to be unduly high, the courts will review that and ascertain what they think is a fair amount of bail.
Mr. Mackey. I would like to speak off the record.
Mr. ROONEY. Well, gentlemen, it is now about 12:15, and I am going to suggest a possible solution, if it is agreeable to the other members of the committee and to everybody concerned. We cannot proceed at 2 o'clock this afternoon because of previous commitments that have been made. Suppose we hold this matter in abeyance for a day or 2 or 3 days? You will be in town, will you not, Commissioner?
Mr. MacKEY. Yes, sir.
Mr. ROONEY. By that time you will have your figures, and in the interim we can inquire what possibility there is of this legislation getting out of committee. It may be that some members of the Judiciary Committee feel that these people, no matter how subversive they are, are entitled to certain rights. Let us see what we can find out on this.
The committee will stand in recess.