Mr. BERNHARDT. I should have mentioned one final thing. The Commissioner's salary, set by law, is $19,000 a year.

Mr. MITCHELL. The salary of the judges?

Mr. BERNHARDT. $25,500 a year. They are on the circuit level. Mr. MITCHELL. What is the number of cases that you have now awaiting trial?

Mr. BERNHARDT. I have not examined the statistics, Mr. Mitchell, but I have the impression that we have perhaps about 6,000 cases pending right now, enough to last for perhaps a generation.

That may be a little misleading. It is characteristic in our court that we will get many cases, so-called pay cases, either civilian or military, and sometimes we will have as many as a thousand plaintiffs urging this same kind of claim. So that 6,000 figure would include this so-called group or class of cases.

Mr. MITCHELL. What are the requirements to be appointed a Commissioner?

Mr. BERNHARDT. The Commissioners, sir, must be lawyers. They must give their full time and attention to their duties. They are not allowed to have any other remunerative occupation. And those are about the only formal qualifications that there are.

Mr. MITCHELL. Mr. Saylor?

Mr. SAYLOR. First, Mr. Bernhardt, I would like to thank you for coming up here and giving us the benefit of your experience and procedure, because your Court of Claims has been one that has been referred to as the type of court that might be set up if some of the bills which have been introduced are followed.

Let me ask you this question. And it particularly has to do with your last statement, that you might have as many as 12,000 pay cases. Mr. BERNHARDT. One thousand.

Mr. SAYLOR. One thousand; of the same type.

Once the Court of Claims have made a determination of one of those cases, does that case then become sort of a sign post? And you dispose of a large number of cases?

Mr. BERNHARDT. That is often the case, Congressman; but it also often happens that we will have a large group of pay cases which we think are all identical, and when an adverse decision comes down on one of those lead cases, the other litigants sometimes think of slight distinctions between their case and that case. And so they split off into various categories, oftentimes.

We have pending now before our court perhaps about 2,000 suits by fire fighters on Government installations, involving what we thought was a rather simple issue of overtime compensation. But we have found about a dozen different varieties in digging into them.

Mr. SAYLOR. Now, some people who have voiced opposition to the type of court which is being considered by this committee claim that this is giving preference treatment to lawyers. Do you feel that all of the people who appear before you, as Commissioners, should be lawyers? Or do you feel that, maybe following the precedent of the Tax Court, certain qualifications might be set down by the court for those people to appear before Commissioners?

Mr. BERNHARDT. We are a court, sir, and our rules require that parties be represented by lawyers who are licensed to practice before the court. And I do not know how I could relate that to the nature

of these bills, because I do not know much about these bills, beyond reading, 10 minutes ago, your analysis of the various proposals before you.

Mr. SAYLOR. Thank you, sir, for coming up.

Mr. BERNHARDT. You are welcome, sir. It has been a pleasure. Mr. SAYLOR (presiding). Any questions, Mr. Teague?

Mr. TEAGUE of California. No; just a comment.

It seems to me that any person not a lawyer appearing before a court of the type that might be set up would be under a severe handicap if he had to deal with rules of evidence similar to the Federal rules of evidence.

Mr. BERNHARDT. I think that is true, sir. They would be. I realize that before the Tax Court they have accountants appearing consistently, and in some other bodies-the ICC Commissioners have their special practitioners. But those bodies are not as much of a court, strictly speaking, as the Court of Claims.

Mr. TEAGUE. I am a country lawyer, and I feel sorry for anyone who has not at least been exposed to these problems.

Mr. BERNHARDT. Congressman, I am sure you would feel quite at home in the Court of Claims.

Mr. MITCHELL (presiding). We certainly appreciate your coming around on short notice and giving us the benefit of your experience with the Court of Claims.

Mr. BERNHARDT. It is a pleasure, Mr. Chairman. I spent several very happy years just a little bit down the hall, here.

Mr. MITCHELL. Thank you very much, sir.

We are privileged to have with us Mr. Bradford Morse, who will present the testimony for the Veterans' Administration.

Mr. Morse, I understand you have others with you. Would you like some of them to come up with you?

STATEMENT OF BRADFORD MORSE, DEPUTY ADMINISTRATOR, VETERANS' ADMINISTRATION; ACCOMPANIED BY A. H. MONK, ASSISTANT DEPUTY ADMINISTRATOR; JAMES W. STANCIL, CHAIRMAN OF THE BOARD OF VETERANS' APPEALS; A. W. STRATTON, DIRECTOR, COMPENSATION AND PENSION SERVICE, DEPARTMENT OF VETERANS' BENEFITS; AND FRED B. RHODES, GENERAL COUNSEL

Mr. MORSE. Well, I will try to go it alone, Mr. Congressman, until I find my own inadequacies, which are immense, believe me.

Mr. Chairman and gentlemen of the committee, I am very pleased to have an opportunity to meet with you today to talk about our thoughts on some of the bills which the committee is considering and to join with you in your efforts to advance the cause of veterans' affairs.

I am Deputy Administrator of Veterans' Affairs. I am an attorney. After having been away from the law for a number of years, I have the distinction of being known as an attorney among administrators and as an administrator among attorneys, so I probably do not qualify as an expert.

I have a prepared statement, which, with the permission of the committee, I would like to read. And I of course would encourage

any questions that any one of the members might have at any time during my presentation.

The procedure for deciding claims by veterans for gratuitous benefits is something that has been debated since the very earliest days of this Republic and the post-Revolutionary times. In our early judicial history the courts held that claims for gratuities did not pose a case or controversy which might be entertained by constitutional

courts.

For some years, to give us a little bit of historical development of it, the Congress itself adjudicated pension claims through the device of private bills. The burden, however, was too great. By 1833, the Pension Office was organized; first under the War Department and then under Interior. No appeal was authorized by statute but the Secretary administratively authorized an appeal to him from the action of the Commissioner of Pensions. In 1881, a select committee of the House recommended that a court or independent board of appeals be established but the bill was defeated and the administrative system of appeals in the Pension Office continued until 1930.

That was the year in which VA was organized, by merger of the Veterans Bureau, the Pension Bureau, and the National Home System. The courts have consistently ruled, and had consistently ruled, as I mentioned earlier, that because of the absence of a case or controversy, judicial review was not authorized and the Court of Claims, despite initial overtures at accepting jurisdiction, ruled in 1881 and 1885 that it clearly had none. In U.S. v. Scott (25 Fed. 470, 1885), the court stated:

Nothing is plainer than that the Interior Department is a special tribunal of judicial or quasi-judicial powers appointed by law to ascertain and determine all facts and to adjudicate and allow a pension to the party entitled and that its action is final and conclusive.

Three years later the Supreme Court in U.S. ex rel Dunlap v. Black (128 U.S. 40) ruled:

The courts have no appellate power or right to review the decision of the Commissioner of Pensions.

In 1887, the Congress, in the Tucker Act, specifically precluded judicial review of agency findings in claims for pensions. The World War Veterans Act, 1924, and the act of July 3, 1930, affirmed this position. Since 1937, a number of bills to grant judicial review of one sort or another have been introduced.

Among the reasons for maintenance of the traditional view that decisions on these claims should not be judicially reviewed were those expressed by the Court of Appeals, Fifth Circuit, in Armstrong v. U.S. (16 F. (2d) 387, 1926):

The consideration of these matters involves not only technical knowledge but exacting investigation and computation. The application of the schedules and the determination of the compensation due cannot well be made except through the elaborate organization provided by law within the Bureau itself.

The problem was also considered by the Attorney General's Committee in 1941, by the President's Commission on Veterans' Pensions in 1956, and by the Attorney General in 1958 and 1960, with the unanimous and invariable conclusion that the specific statutory exclusion of judicial review of agency findings on claims for gratuitous benefits should be retained.

With your permission, I would like to insert pertinent extracts for the record.

Mr. MITCHELL. If there is no objection, this material you have provided will be made a part of the record.

Mr. MORSE. Thank you, Mr. Chairman. (The extracts referred to follow :)

COMMENT OF THE DEPARTMENT OF JUSTICE DATED JANUARY 4, 1960, TO THE SENATE COMMITTEE ON THE JUDICIARY ON S. 1070, 86TH CONGRESS

REPEAL OF EXEMPTIONS FROM THE APA

It is difficult to estimate the extent to which the blanket repealer sought by this subsection would increase the workload of the Department of Justice in handling or supervising litigation for the many *** agencies. To cite a single example, the Veterans' Administration each year renders decisions in almost 2 million informal adjudications. These are not adversary proceedings, they are not subject to the adjudication requirements of the APA, and no formal record is made which would be suitable for judicial review. Claimants in these proceedings may possess no vested or contractual rights which require resort to court proceedings to satisfy the due process clause of the Constitution. Yet. the bill would afford a right of trial de novo in each of these cases, plus access to the courts in many other ways in aid of any claim substantial enough to warrant extensive prosecution.

bill

The Department of Justice is unable to recommend enactment of this

COMMENT OF THE DEPARTMENT OF JUSTICE DATED MARCH 13, 1958, TO THE COMMITTEE ON VETERANS' AFFAIRS (COMMITTEE PRINT No. 185)

VIEWS OF JUSTICE DEPARTMENT OF FINALITY OF VETERANS'
ADMINISTRATION DECISIONS

Heretofore, the decisions of the Veterans' Administration, with respect to gratuitous benefits, have been made final by Congress and not subject to judicial review. The proposed legislation would represent a radical departure from that policy. It is believed the policy heretofore followed by Congress limiting the review of administrative decisions with respect to gratuitous benefits to administrative boards such as the Veterans Appeals Board, is soundly conceived and should be continued.

A REPORT TO THE PRESIDENT BY THE PRESIDENT'S COMMISSION ON VETERANS PENSIONS (BRADLEY COMMISSION) (HOUSE COMMITTEE PRINT No. 236, 84TH CONGRESS) APRIL 23, 1956

After careful consideration, the Commission decided that final decisions of the Administrator * * * should not be subject to judicial review * * *. Judicial review *** slow and expensive. It would overburden the courts and would place on the Veterans' Administration an administrative load out of all proportion to the good that might be achieved. Even the creation of a special tribunal would have serious problems.

Mr. MORSE. In substance, these several excerpts set forth the reasons for this particular conclusion as (1) the volume and complexity of the claims, something with which I am sure the committee is concerned; (2) the ex parte, nonadversary character of actions; and (3) the nature of the benefits-gratuities-it being felt that the gratuities are peculiarly better served by expert administrative determination than by a judicial determination.

Although I understand fully that none of the proposals which the committee is considering will directly affect the existing appellate structure within the Board of Veterans Appeals, perhaps it might be well to talk for a few moments about its organization and its operation.

Now, the Board of Veterans Appeals is presently organized as shown in the chart here on my left (chart 1). It consists of a Chairman and a Vice Chairman. It consists of a group of Board members, 37 in all, who are highly competent, highly qualified individuals, who work under an organizational setup of 11 separate sections.

Now, supporting the Board members, there is the consultant service, either medical consultants or legal consultants, predominately the latter, which support and in effect do clerkship work for the members of the several Boards.

Additionally, the chairman has special medical advisers in unique medical areas. We have a neurologist there whose professional skill and professional knowledge can be made available to any of the several sections, if it is appropriate and needed.

Additionally, there are legal advisers to the chairman, who also serve when needed for special advice to the several sections.

We have within the entire organization, including our administrative and clerical assistants, 267 employees. As I said, there are 37 associate members of the Board of Veterans Appeals. The consultant service consists of 84 medical and legal advisers.

Now the associate members, those who constitute the several sections, are selected from the very best available men we can find, either within or without the agency. They are appointed by the Administrator of Veterans Affairs personally and must be approved their appointment must be approved-in each individual case by the President of the United States.

Now the composition of the Board permits the specialization which is really essential in a group which must review actions from the great variety of benefits, the great variety of programs and disabilities, which flow from every conceivable kind of disease or kind of illness or injury.