Such a proposal will doubtless encounter objection that the sheer mass of cases in the 6-percent block constitutes an impossible burden. It is by no means clear that every dissatisfied claimant will seek judicial relief, if only because of the cost of litigation and the fact that fees for contingent representation are severely limited. Many cases can be submitted on stipulation for resolution of a point of law. Many cases involve disputed points of law which ought to be judicially settled and which, it may be anticipated, will not be repeatedly relitigated. It will be found that the cases will fall into fairly simple patterns and will lend themselves to expeditious handling. The important thing is to provide dissatisfied claimants with the assurance of impartial determination, and I venture to hazard that a well-staffed board, assisted by enough commissioners or hearing examiners, can handle the mass of disputes.

One who has been called up for military service, who perhaps stormed the beaches in Normandy or Guadacanal, or froze in Korea, especially when he has been disabled in course of such service, should not be left with a sense of resentment that he cannot obtain an impartial review of what he considers the Administrator's wrongful rejection of his claim. He may in fact have received fairplay. But he is entitled to be treated in a manner which he believes to be entirely impartial. How can a veteran feel when he observes that a claimant who is dissatisfied with the decision of a Board of Contract Appeals may sue in the Court of Claims whereas his claim for disability compensation or pension is cut off by a final administrative determination. Bear in mind too, as Justice Jackson somewhere noted, that administrators through sheer pressure of detail begin to think of cases in terms of documents rather than the human problems involved. The problem was graphically portrayed in Menotti's opera, "The Counsel," showing the hopeless plight of refugees who represented only pieces of paper to the officials.

It cannot be sufficiently emphasized that the confidence of the public in the impartiality of adjudications is a foundation stone of our Government. What the Sir Oliver Franks committee said about England is no less true here:

"In this country government rest fundamentally on the consent of the governed. The general acceptability of these adjudications is one of the vital ele ments in sustaining that consent." Supra, at 5.

The impartiality of adjudicatory proceedings, like Caesar's wife, must be beyond suspicion. We submit our disputes to courts because of our confidence in their impartiality. It is a regrettable but incontrovertible fact that administrative adjudication does not enjoy equal confidence.

Mr. BERGER. I appreciate your courtesy, sir.

I am going to depart from my statement in part, because of thoughts that have been raised in my mind by Congressman Devine, suggestions made by Congressman Saylor, but in the main I will follow the statement.

You will notice at the top of page 2 that the decisions of the International Claims Commission are unreviewable by the terms of 22 U.S.C. 1363 (h).

We need to bear in mind that the International Claims Commission adjudicates claims under international agreements wherein the United States has surrendered claims of its citizens against foreign countries; which means that really an American is appearing there and asserting a claim that is a substitute for the claim that he had against the foreign country. The United States substituted itself for that claim, and it is not acting as a gratuity. It is in a way seeking to compensate him with moneys that have been put at the disposal of the International Claims Commission.

I emphasize these things because there is a basic flaw in all of this. I want to mention one other thing. The Agricultural Adjustment Act likewise bars review of the Commissioner's determination with respect to refund of certain processing taxes (7 U.S.C. 641 (e)).

Now, observe the consequence. In Swift and Company v. United States, the Court of Claims said:

The Commissioner has denied to the plaintiff the right which in our opinion the statute creates, and to which the petitioner upon the facts set out in its petition is entitled.

But nevertheless, the Court of Claims held that his determination was not reviewable because of a finality provision.

So you wind up with the court saying, "This person has acted virtually illegally, and there is nothing we can do about it."

This is a sad state of affairs. I could dig out cases in the alien property field and doubtles other fields where this obtains.

Now, it was because of the effects of such insulation of agency action from judicial review that the ABA concludes that the statutory preclusion of review can be justified in any instance only by the strongest arguments of policy. And then when the ABA proceeded to revise the Administrative Procedure Act by its proposed administrative code, which is presently S. 1070 in the Senate Judiciary Committee, it provided in section 1009 (b) of the proposed code that judicial review should be barred only where expressly precluded by act of Congress hereafter enacted.

Now, the object of that provision is to impel the Congress to do just what you are doing here, take a fresh hard look at how existing preclusory provisions have operated, and decide anew whether they desire them to be perpetuated.

Now, I hope that I can make a slight contribution to your analysis by responding to your request to comment on the general philosophy involved.

Let me begin by saying that certainly lawless action by an administrative official, that is to say, action which is unauthorized by or contrary to statute, as in the Swift case that I just cited, in the Court of Claims, or action that is arbitrary and capricious, has no place in our system of government. The Supreme Court has said that, "There is no place in our constitutional system for the exercise of arbitrary (Garfield v. Goldsby).

power

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To insure that it finds no place in our Government, illegal or arbitrary action must be subject to judicial review. We cannot leave an administrator to be the final judge of his own powers. That seems to me to lie at the very root of your whole problem. You have got a delegation of powers. The Supreme Court in Mahler v. Eby, not cited here, said that to make a delegation proper, Congress has to circumscribe the delegation, lay out standards, and then the official has to act within those standards. And the only way of making sure that he does act within the standards, forgetting about the poor, suffering veteran for a moment, is to have the court take a look at it when he has acted beyond his power.

Now, these are not novel concepts. Back in 1946, in the course of the enactment of the Administrative Procedure Act, both the House and Senate committees stated:

It has never been the policy of Congress to prevent the administration of its own statutes from being judicially confined to the scope of authority granted or to the objectives specified. Its policy could not be otherwise, for in such a case statutes would in effect be blank checks drawn to the credit of some administrative officer or board.

Unhappily, after saying this noble sentiment, they proceeded to draft all sorts of exceptions, ands, ifs, or buts. So the Administrative Procedure Act is riddled with exceptions which in fact do pre

clude judicial review and permit officers to act lawlessly, under provisions such as yours.

I don't say they do it intentionally. It so happens, I think, just from the cursory review I have obtained, the Veterans' Administration is doing a gargantuan job, and getting rid of about 94 percent of the cases of a mass of claims without complaint, for which it deserves the utmost credit.

But a fine administrator should not want to be insulated from his own mistakes. And he cannot perceive them. That is the nature of fallible men. We never know when we are mistaken, until afterwards it is pointed out to us.

You need scarcely be reminded of Lord Acton's famous maxim, "Absolute power corrupts absolutely." I am now speaking from the depths of my long experience in Government practice, inside the Government, outside the Government. My own experience has convinced me that insulation from judicial review inevitably breeds callousness, persistence in obvious error and arbitrariness.

I wish the record would permit me to give you an example that was before Senator Hennings, where I had no ax to grind, where the Commission, caught in flagrante delicto, and only under utmost pressure admitted it was wrong and corrected it. I have a beautiful example which was publicized. In the course of oral argument before the Supreme Court in 1958, as a prelude to Harmon v. Brucker, 355 U.S. 579, wherein a soldier sought relief against a discharge in form "other than honorable."

The Washington Post, the Times Herald, and also the Star, I might add, January 16, 1958, reported that :

The Justice Department told the Supreme Court yesterday that its client, the Army, had acted illegally in issuing two less-than-honorable discharges but that the courts can do nothing about it.

I might say by the way of background that there was quite a behindthe-curtains struggle. The Defense Department insisted that there was no power to review. Is it not shocking, gentlemen, that disclosure of administrative illegality should prompt not revision or reform, but a plea that the power of correction had been withheld from the courts?

Now, that happens often enough, all over the area of Government, so that I submit to you there just should not be any question that, given an argument that an officer is acting in excess of his authority, not complying with the statute, acting arbitrarily, an American can get into court and have that corrected.

That is the basic difference between us and Soviet Russia. That possibility that the vast huge power we vest in administrative officers is subject to supervision and correction--and you on the congressional end know how hard it is for you to get all the information you want from the executive branch. If the courts cannot delve into it, you really seal off these people with tremendous power. And they are exercising this power sometimes for the benefit of the American public, and sometimes the American public thinks-so as a basic principle, not only in this bill but in every bill, you have got to provide for judicial review.

Now, to be sure, Harmon v. Brucker said: "You acted illegally, and we can hold you under the doctrine that when an officer acts

illegally he is just an individual wrongdoer who can be sued." And somebody will say to you, "With that doctrine, why do you have to provide anything?"

Well, first of all, that doctrine is strewn with the bones of good causes. It is beset with difficulties, complexities. It takes the seventh son of a seventh son to tell you when you can sue.

No. 2, query, whether you can have such a suit? I doubt it.

And No. 3, it was rendered utterly ridiculous in the famous Land v. Dollar proceedings. You may remember the Dollar Lines had sued the Federal Reserve Board for 13 years in an individual suit on the ground they were acting wrongly. And after 13 years, they recovered and were sustained in the Court of Appeals of the District of Columbia. No sooner did they score this victory than the officers tore out to California, brought a suit on behalf of the United States, which was not bound by the decision against the individuals, and procured an injunction, in California.

What kind of a remedy is that? After 13 years of wild goose chase, Uncle Sam can begin all over again.

I say to you that there should be no doubt. Congressman Devine spoke justly about the consent to be sued. The United States is immune from suit. There should be no doubt that when a veteran says, "I have been wronged" and he can be wronged-that he can go into court. The law should be so simple and clear that a child can read it, that he can go into court and test the illegality of that action.

As a practical matter, nothing is better calculated to promote reasoned, careful decision than the knowledge that it may be upset on review. I was in the Government for 8 years. And I am very proud of my Government service. And I am not one of those who inveighs about those damn bureaucrats. I was one. They do a terrific job. They need more help.

But it is a very salutary and healthy thing we act under pressure, hastily to know there is going to be a cold, clammy eye looking at this. And that promotes better judgment.

I may say to you in one case-and if it would be interesting to you I will give you the citation-in one case with a provision such as you have here for finality, the district court here in the District of Columbia found the administrative action "appalling" and set it aside. The court of appeals regretfully said, "You have no jurisdiction."

And so what happened? There was a string of constituents doing just what the veterans do to you, haunting the Halls of Congress for 3 years until you provided remedial legislation. Think of the burden that you can get off of your shoulders if you cut that stream of protests short, if instead of coming to you there can be correction in the court. Your energies are needed for bigger jobs than looking at an individual case. The judicial review has this function.

On this score, also, consider that to the extent the veteran's claim has any aspects of insurance, how would you feel if house counsel of a private insurance company could make the final judgment on whether you were entitled to the claim that your policy asserts?

Now, let me address myself to the advisability of establishing an independent agency, taken outside of the Veterans' Administration, and call your attention to a quotation by the Sir Oliver Franks com

mittee, reporting on "administrative tribunals and enquiries," to Parliament in 1957. They reported that:

When Parliament sets up a tribunal (as differentiated from a court) to decide cases, the adjudication is placed outside the department concerned. The members of the tribunal are neutral and impartial in relation to the policy of the Minister, except insofar as that policy contained in the rules which the tribunal has been set up to apply. But the Minister

In our case substitute the Administrator

(in cases left to him for determination) is committed to a policy which he has been charged by Parliament to carry out. In this sense he is not, and cannot be, impartial.

Let me remind you, gentlemen, that the Board of Tax Appeals, the predecessor of our respected Tax Court, was established entirely outside the Treasury Department, in part to meet the demand for review by an impartial outside body. This was House Report No. 179 of the 68th Congress, 1st session.

So, too, the ABA now sponsors S. 1275, a bill to transfer the adjudicatory functions of the Federal Trade Commission to a trade court, because it is our considered judgment that an independent adjudicatory tribunal will not be suspected of partiality and will acquire more expertise in consequence of judicial tenure than now obtains with respect to the FTC, where Commissioners are shifted every 2d, 3d, and 4th year.

So you are on the wave of the future, in my judgment, gentlemen. In looking at your own problem, part of a larger problem, the idea is that you have got to have, in those exacerbated situations where a claimant feels, rightly or wrongly, that he has not had justice, the assurance that there will be an impartial outside tribunal.

Now we come to an important problem that is before you. Your bills are sort of split. Some of them provide for district court suits. For my part, I join with Congressman Devine in saying, "They are overloaded. We will just hurt the judicial process all over the field if we add still more trouble to their shoulders."

Some of your bills provide for review, as does Congressman Devine's, by appeal on a record, preponderance of evidence, substantial evidence.

Now, your difficulty in using terms like those, especially "records”— they subsume or they proceed from a premise that there has been a formal hearing, that a record has been made of it, that people have had a chance to come in and give testimony.

Now, it is very difficult-the Congressman addressed himself to this and recognizes this to have a judicial review of really a nonjudicial proceeding. That is what it has been. And the difficulty is a grave one. And before I try to suggest our answer to it, let me just pause to remind you that the Board of Tax Appeals, despite the fact that it was called a court of appeals, is really a trial court de novo.

I believe that this is what we ought to have for veterans' appeals. Now let me tell you why.

That court would not, of course, preclude existing procedures within the agency for the settlement of claims. When the Committee on Judicial Review of the ABA Section on Administrative Law looked into the matter, several years ago, it found approximately 2,600,000 claims for compensation for disability incurred in or aggravated by