Evening star., 1947-04-27
New Blood Needed in
Trial Examiner Field
Older Agencies Apt to Resist
Selection Method Changes
Bu Cerard D. Reillu.

Selection Method Changes
By Gerard D. Reilly.
The results thus far Of the Admins
trative Procedure Act have been disap-
pointing to the bar as wei as its con-
gressional sponsors. An act to insure
litigants in the Federal administrative
agencies the same degree OF due process
and impartial consideration expected OF
the courts, the statute has been found
to contain so many exemptions that sew
eral agencies most notorious for their
disregard of these principles have COM
pletely escaped Its impact. Because OF
the somewhat loose wording of the
statute, moreover, other agencies have
simply elected to comply with its bare
literal requirements, thereby avoiding
any fundamental reforms in their
procedure.
An opportunity to give real meaning
to one important section OF the statute
lies In the hands OF the Civil Service
Commission This is the section which
relates to the selection and tenure of
the trial examiners for the different
agencies. These men, numbering about
$50. play an important role In the ad-
ministrative processes. The volume OF
cases before most of the independent
boards and commissions is too great to
permit the commissioners themselves to
bear evidence or make any findings Of
fact. Consequently, nearly all these
agencies have delegated to the trial ex-
aminers the duty of presiding at the
hearings, appraising the credibility of
the witnesses, ruling on questions of evi-
dence, resolving conflicts of testimony
and making findings of fact and law.
Under the Administrative Procedure Act
their intermediate reports, as they are
called, embodying these findings may
even be accorded the finality Of decision
if no exceptions are fled.
The problem of seeing to it that
these trial examiners are men of quail
fed and impartial caliber was con-
sidered by the authors of the Admins
tratiye Procedure Act One school OF
thought favored separate pool OF trial
examiners, completely independent of
the agencies, with rotating assignments
among the different branches OF the
Government This was opposed by
many of the agencies on the ground
that the specialized character of their
work would make such plan impracti-
\ cable. The final result was compro-
mise contained in section IL of the act.
This section provides that the exam
iners who conduct statutory hearings
are to be appointed under the competi-
tive civil service system after June IL,
1s47. 1t directs the commission to
determine the qualifications to be re-
quired of the examiners. Regular civil
service examinations for these positions
are being planned.
Inasmuch as the present staff of the
commission is not equipped to handle
matters of this sort, Congress inserted
clause under which an Advisory Com
mittee made up of experts in this field
could be established. Upon the f1rmness
of this Advisory Committee in resisting
the pressures of the agencies and per-
'suading the commission of the sound
ness of its own approach the success OF
the scheme largely depends While the
members of this committee are all
lawyers of standing, it was nevertheless
somewhat disappointing that the prac-
ticing bar was not given greater repre-
sentation. All of the committee mem
bers, with the exception of Carl Nc
Farland former chairman Of the admin
istrative law section of the American
Bar Association, are in the Government
service. ....,, ,.-...
One of the most controversial issues
which has to be met before June ii is
the problem of whether or not these $50
positions are to be thrown open to
competitive examination. Most OF the
examiners now employed already have
civil service status as result OF the
covering-in process authorized under
the Ranspeck Act of 1940 Many OF
the present examiners consequently
feel that it would be unjust to compel
them to compete with outsiders in order
to retain their positions.
The Commissions staff in the tenta-
tive regulation issued seems to be IN
clined to go along with this contention.
It would be extremely unfortunate II
the commission itself permits this de-
cision to stand. In period in which
the size of the executive establishment
is contracting, this would mean that
many of the examiners whose conduct
has brought about demand for reform
would be retained to the exclusion OF
qualified lawyers in private practice. So
far as the better trial examiners are
concerned there is no need for this
extreme protection. Since the examina-
ton which is contemplated would con-
tain not only questions relating to a
general legal knowledge but also give
weight to experience and successful per-
formance in the past, the incumbents
have a heavy advantage to begin with.
X X X
The worst feature of the tentative
regulations, however, relates to the
policy of promotions. Under the system
proposed, an agency would be permitted
{ to ignore the register of eligibles and
transfer to trial examining duties en-
ployes on It's staff who have civil
service status This would mean in
practice that an agency like the Inter
state Commerce Commission could pro-