A motor carrier applied to the Interstate Commerce Commission
for a certificate of convenience and necessity under § 207(a) of
the Interstate Commerce Act. Appellee intervened in opposition. The
hearings were conducted by an examiner not appointed pursuant to §
11 of the Administrative Procedure Act, but appellee did not object
at any stage of the administrative proceedings, although it had
ample opportunity to do so. The Commission granted the certificate.
Appellee petitioned a district court to set aside the Commission's
action, and for the first time challenged its validity on the
ground that the examiner was not appointed pursuant to § 11 of the
Administrative Procedure Act. It offered no excuse for its failure
to raise the question sooner, and made no claim of actual prejudice
by the conduct of the examiner or the manner of his
The district court should not entertain this
objection when first made at that stage of the proceedings. Pp.
344 U. S.
(a) The defect in the examiner's appointment was an irregularity
which would invalidate a resulting order if the Commission had
overruled an appropriate objection made during the hearings. P.
344 U. S.
(b) But it is not one which deprives the Commission of power or
jurisdiction, so that, even in the absence of timely objection, its
order should be set aside as a nullity. P. 344 U. S.
(c) Riss & Co. v. United States,
341 U.S. 907, and
Wong Yang Sung v. McGrath, 339 U. S.
, distinguished. Pp. 344 U. S.
100 F. Supp. 432, reversed.
The District Court set aside an order issued by the Interstate
Commerce Commission under § 207(a) of the Interstate Commerce Act,
on the sole ground that the hearing on the application therefor was
conducted by an examiner not appointed pursuant to § 11 of the
Page 344 U. S. 34
Procedure Act. 100 F. Supp. 432. On appeal to this Court,
reversed and remanded,
p. 344 U. S.
MR. JUSTICE JACKSON delivered the opinion of the Court.
One Cunningham applied to the Interstate Commerce Commission for
a certificate of public convenience and necessity to authorize
extension of his existing motor carrier route. [Footnote 1
] A railroad and eleven motor carriers,
including appellee, intervened to oppose. The issues were referred
to an examiner, who, after hearing, recommended that, with
exceptions not material here, a certificate be granted. Appellee
excepted, whereupon Division 5 of the Commission, in substance,
approved the recommendation. Appellee requested reconsideration by
the full Commission, which was denied, and then petitioned for
"extraordinary relief," which also was refused. The Commission
thereupon issued a certificate to Cunningham. Appellee, upon the
ground that the evidence did not show need for the additional
transportation service, petitioned the District Court to set aside
the certificate and order. The Commission and the United States
answered, and a three-judge court was convened.
Page 344 U. S. 35
On the day appointed for hearing, appellee moved for leave to
amend its petition to raise, for the first time, a contention that
the Commission's action was invalid for want of jurisdiction
because the examiner had not been appointed pursuant to § 11 of the
Administrative Procedure Act. [Footnote 2
] The District Court allowed amendment, and,
upon proof that the appointment had not been in accordance with
that Act, invalidated the order and certificate without going into
the merits of the issue tendered in the original complaint.
] This appeal by the
United States and the Interstate Commerce Commission raises but a
single question -- whether such an objection, first made at that
stage of the proceedings, was not erroneously entertained. We hold
that it was.
Appellee did not. offer nor did the court require, any excuse
for its failure to raise the objection upon at least one of its
many opportunities during the administrative proceeding. Appellee
does not claim to have been misled or in any way hampered in
ascertaining the facts about the examiner's appointment. It did not
bestir itself to learn the facts until long after the
administrative proceeding was closed and months after the case was
at issue in the District Court, at which time the Commission
promptly supplied the facts upon which the contention was based and
The apparent reason for complacency was that it was not actually
prejudiced by the conduct or manner of appointment of the examiner.
There is no suggestion that he exhibited bias, favoritism, or
unfairness. Nor is there ground for assuming it from the
relationships in the proceeding. He did not act, and was not
expected to act, both as prosecutor and judge. The Commission,
which appointed him, did not institute or become a party in
Page 344 U. S. 36
interest to the proceeding. Neither it nor its examiner had any
function except to decide justly between contestants in an
adversary proceeding. The issue is clearly an afterthought, brought
forward at the last possible moment to undo the administrative
proceedings without consideration of the merits, and can prevail
only from technical compulsion irrespective of considerations of
In Riss & Co. v. United States,
341 U.S. 907, this
Court held that officers hearing applications for certificates of
convenience and necessity under § 207(a) of the Interstate Commerce
Act are subject to the provisions of the Administrative Procedure
Act. [Footnote 4
timeliness of the objection was not before us, because, in that
case, the examiner's appointment had been twice challenged in the
administrative proceedings, once, as it should have been, before
the examiner at the hearings and again before the Commission on a
petition for rehearing. That decision established only that a
litigant in such a case as this who does make such demand at the
time of hearing is entitled to an examiner chosen as the Act
We have recognized in more than a few decisions, [Footnote 5
] and Congress has recognized in
more than a few statutes, [Footnote
Page 344 U. S. 37
that orderly procedure and good administration require that
objections to the proceedings of an administrative agency be made
while it has opportunity for correction in order to raise issues
reviewable by the courts. It is urged in this case that the
Commission had a predetermined policy on this subject which would
have required it to overrule the objection if made. While this may
well be true, the Commission is obliged to deal with a large number
of like cases. Repetition of the objection in them might lead to a
change of policy, or, if it did not, the Commission would at least
be put on notice of the accumulating risk of wholesale reversals
being incurred by its persistence. [Footnote 7
] Simple fairness to those who are engaged in
the tasks of administration, and to litigants, requires as a
general rule that courts should not topple over administrative
decisions unless the administrative body not only has erred but has
erred against objection made at the time appropriate under its
It is argued, however, that this case falls outside of this
general rule, and the result below is technically compelled
because, if the appointment of the hearing examiner was irregular,
the Commission in some manner lost jurisdiction, and its order is
totally void. This inference is drawn from our decision in Wong
Yang Sung v. McGrath, 339 U. S. 33
it is contended we could not have sustained a collateral attack by
writ of habeas corpus in that case unless we found the defect in
that examiner's appointment to be one of jurisdictional magnitude.
Page 344 U. S. 38
not inquire what should have been the result upon that case had
the Government denied or the Court considered whether the objection
there sustained was taken in time. The effect of the omission was
not there raised in briefs or argument, nor discussed in the
opinion of the Court. Therefore, the case is not a binding
precedent on this point. [Footnote
] Even as to our own judicial power or jurisdiction, this
Court has followed the lead of Chief Justice Marshall, who held
that this Court is not bound by a prior exercise of jurisdiction in
a case where it was not questioned and it was passed sub
The question not being foreclosed by precedent, we hold that the
defect in the examiner's appointment was an irregularity which
would invalidate a resulting order if the Commission had overruled
an appropriate objection made during the hearings. But it is not
one which deprives the Commission of power or jurisdiction, so
that, even in the absence of timely objection, its order should be
set aside as a nullity.
The judgment is reversed, and the cause remanded to the District
Court for determination on the merits.
Reversed and remanded.
49 U.S.C. § 307.
5 U.S.C. § 1010.
100 F. Supp. 432.
Our decision in the Riss
case was announced after the
administrative proceeding herein, but before the District Court's
apparently prompted appellee to raise the
point about the examiner's qualifications in the District
Spiller v. Atchison, T. & S.F. R. Co., 253 U.
, 253 U. S. 130
United States ex rel. Vajtauer v. Commissioner,
273 U. S. 103
273 U. S. 113
United States v. Northern Pacific R. Co., 288 U.
, 288 U. S. 494
Unemployment Compensation Commission of Alaska v. Aragon,
329 U. S. 143
329 U. S.
Section 9(a) of the Securities Act of 1933, 15 U.S.C. § 77i; §
25(a) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y; § 24
of the Public Utility Holding Company Act, 15 U.S.C. § 79x; § 10 of
the Fair Labor Standards Act, 29 U.S.C. § 210; § 10(e) of the
National Labor Relations Act, 29 U.S.C. § 160(e).
The Government informs us that, in about five thousand cases
commenced after the effective date of the Administrative Procedure
Act, orders are for an indefinite period vulnerable to attack if no
timely objection during the administrative process is required. The
policy of the Commission is to grant application for rehearing in
cases where applicant made the objection before the examiner. Since
its established practice is not to consider issues not raised
before the examiner, it will refuse rehearings in other cases.
Webster v. Fall, 266 U. S. 507
United States v.
3 Cranch 159, 7 U. S. 172
Snow v. United States, 118 U. S. 346
118 U. S. 354
Cross v. Burke, 146 U. S. 82
146 U. S. 87
Louisville Trust Co. v. Knott, 191 U.
, 191 U. S. 236
Arant v. Lane, 245 U. S. 166
245 U. S. 170
MR. JUSTICE FRANKFURTER, dissenting.
Were we dispensing what is complacently called oriental justice,
according to which the merits of the individual case alone, so one
is told, determine the result, I would join my brethren in
reversing this judgment. For I see no reason to disagree with the
Court's view that, in this case noncompliance by the Interstate
Commerce Commission with the requirements of the Administrative
Page 344 U. S. 39
Procedure Act did not prejudice the appellee. Nor do I deny that
some rights personal to a party may be waived, either explicitly or
by failure to assert them.
But I find no explicit waiver here, nor is it clear to me how
the appellee can be charged with knowledge of the official status
of the examiner on the basis of whose report the Commission took
action adverse to it. In any event, the requirement of the
Administrative Procedure Act that proceedings which lead to an
administrative adjudication must be conducted by an independent
hearing examiner is not something personal to a party. It is a
requirement designed to assure confidence in the administrative
process by defining and limiting the various organs through which
that process is allowed to function.
I do not use the term "jurisdiction," because it is a verbal
coat of too many colors. But we are dealing with legislation which
sought to remedy what were believed to be evils in the way in which
administrative agencies exercised their authority prior to the
enactment of the Administrative Procedure Act of June 11, 1946.
That Act accordingly prohibited the commingling of the conflicting
functions exercised by these agencies. I do say, therefore, that it
created unwaivable limitations upon the power of these agencies, as
much so as do the definitions in judiciary acts of the different
categories of cases which different courts are empowered to hear
and decide. The limitations upon the power of the Interstate
Commerce Commission to act, imposed by the command that it must do
so only in accordance with the requirements of the Administrative
Procedure Act, are thus not within the dispensing power of any
litigant. They bind and confine the Commission itself.
I cannot otherwise read what we decided in Wong Yang Sung v.
McGrath, 339 U. S. 33
Riss & Co., Inc. v. United States,
341 U.S. 907. I do
not rest my conclusion on any assumption of jurisdiction sub
in the Wong
Page 344 U. S. 40
Yang Sung case.
What I am resting on is the
significance we attached to the requirement of independent hearing
examiners as inherent in the process of administrative
After we decided Wong Yang Sung v. McGrath, supra,
Congress was promptly asked to relieve the deportation process of
this requirement, and it did so. See
Chapter III of The
Supplemental Appropriations Act, 1951, Act of September 27, 1950,
Pub.L. No. 843. After we made the same ruling as to the Interstate
Commerce Commission, Congress was promptly asked to validate
proceedings previously conducted by the Commission in disregard of
the requirements for independent hearing examiners. Congress has
chosen not to enact such remedial legislation. *
I do not construe
this want of action as controlling upon the issue before us. I
refer to this subsequent legislative history merely as an
indication of the path by which undesirable consequences flowing
from our decision in Riss & Co., Inc. v. United States,
may be corrected without injustice. Situations like
this arise from time to time when decisions of this Court in the
observance of law suggest corrective legislation. See, e.g.,
United States v. Heinszen & Co., 206 U.
* A remedial bill was successful in the House, but failed in the
Senate. The bill was H.R. 5045. See
Cong., 2d Sess.
MR. JUSTICE DOUGLAS, dissenting.
This decision gives a capricious twist to the law. One would
assume from a reading of the opinion in Wong Yang Sung v.
McGrath, 339 U. S. 33
the failure of a federal agency to use the type of examiner
prescribed by Congress in the Administrative Procedure Act, 60
Stat. 237, 5 U.S.C. § 1001 et seq.,
proceedings whether objection was raised or not. The Congress
Page 344 U. S. 41
to separate the judicial functions of examiners from the
investigative and prosecuting functions. It required the separation
in cases involving property interests, as well as those involving
personal liberty. It condemned as unfair a practice which had grown
up of allowing one man to be the police officer, the prosecutor,
and the judge.
Violation of that requirement led the Court in Wong Yang
case to issue a writ of habeas corpus to save an alien
from deportation where the hearing examiner did not meet the
requirements of the Administrative Procedure Act. That was a
collateral attack on the administrative proceeding, successfully
made even though no objection to the examiner was raised at the
The objection raised in the present case likewise was not made
at the hearing, but it was made before review of the order had been
completed. It would seem, therefore, that reversal of this
administrative order would follow a fortiori
No one knows how the commingling of police, prosecutor, and
judicial functions in one person may affect a particular decision.
In some situations, it might make no difference; in others, it
might subtly corrupt the administrative process. The only important
consideration for us is that Congress has condemned the practice,
and we, as supervisors of the federal system, should see to it that
the law is enforced not selectively, but in all cases coming before
Of course, an agency that flouts the mandate for fair examiners
does not lose jurisdiction of the case. Even habeas corpus is no
longer restricted to the testing of "jurisdiction" in the historic
sense. See Johnson v. Zerbst, 304 U.
, 304 U. S. 467
Page 344 U. S. 42
19, 306 U. S. 24
But the action of the Commission in the present case created an
error that permeates the entire proceeding. It is error that goes
to the very vitals of the case. I would therefore set aside the
order and send the case back for a hearing that meets the statutory
standards of fairness. I would make the rule of Wong Yang
case good for more than the day and the occasion.
* And the alien in that case, like the respondent here, was
represented by counsel in the administrative proceedings.