Certain provisions of regulations promulgated by the Civil
Service Commission under § 11 of the Administrative Procedure Act
and governing the classification, promotion, compensation and
tenure of trial examiners and the assignment of cases to them are
here sustained as conforming to the statute and carrying out the
purpose and intent of Congress. Pp. 345 U. S.
1. The provision of § 11 of the Act that hearing examiners shall
receive compensation prescribed by the Commission "in accordance
with the Classification Act" authorizes the Commission to establish
more than one salary grade for hearing examiners employed by a
particular agency, and § 34.10 of the Regulations is valid. Pp.
345 U. S.
2. Section 34.4 of the Regulations, which provides for the
promotion of individual hearing examiners and gives the agency a
choice as to how a vacancy in a higher grade may be filled --
by promotion from within or otherwise -- does not
violate § 11 of the Act. Pp. 345 U. S.
3. The provision of § 11 of the Act that hearing examiners
"shall be assigned to cases in rotation so far as practicable" does
not require that all hearing examiners employed by a particular
agency be assigned to cases in mechanical rotation without regard
to the difficulty or complexity of particular cases or the
experience or competence of particular examiners, and § 34.12 of
the Regulations is valid. Pp. 345 U. S.
4. Section 34.15 of the Regulations, which provides for a
reduction in force of examiners under circumstances governing the
reduction in force of other federal employees, is not inconsistent
with the provision of § 11 of the Act that examiners "shall be
removable . . . only for good cause established and determined by
the Civil Service Commission. . . ." Pp. 345 U. S.
91 U.S.App.D.C. 164, 202 F.2d 312, reversed.
Page 345 U. S. 129
The District Court enjoined enforcement of four Civil Service
Rules concerning trial examiners. 104 F.
. The Court of Appeals affirmed. 91 U.S.App.D.C. 164,
202 F.2d 312. This Court granted certiorari. 344 U.S. 853.
Reversed and remanded with directions to dismiss the
p. 345 U. S.
MR. JUSTICE MINTON delivered the opinion of the Court.
The present suit was brought by the Federal Trial Examiners
Conference, [Footnote 1
unincorporated association of trial examiners, and by a number of
individual trial examiners, against the members of the United
States Civil Service Commission and the National Labor Relations
Board. The plaintiffs, who had been appointed pursuant to § 11 of
the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. § 1010,
sought a declaratory judgment that certain rules relating to their
promotion, compensation, tenure, and the assignment of cases,
promulgated by the Civil Service Commission pursuant to § 11, were
invalid, and asked that their enforcement be enjoined. The District
Court held that these four rules were invalid, interpreting § 11 as
requiring: (1) that
Page 345 U. S. 130
hearing examiners employed by a particular federal
administrative agency must be placed in the same salary grade; (2)
that a hearing examiner may not be promoted from one salary grade
to another within the same agency; (3) that hearing examiners must
be assigned to cases in mechanical rotation, without regard to the
difficulty or importance of particular cases or the competence or
experience of particular examiners, and (4) that the employment of
hearing examiners may not be terminated by reduction in force
procedures where there is a lack of work or of funds with which to
pay them. The District Court granted a permanent injunction against
the enforcement of these four Civil Service rules, 104 F.
. The Court of Appeals affirmed in a short per curiam
opinion, one judge dissenting. 91 U.S.App.D.C. 164, 202 F.2d 312.
We granted certiorari, 344 U.S. 853.
Prior to the passage of the Administrative Procedure Act,
hearing examiners' tenure and status were governed by the
Classification Act of 1923, as amended. Under the Classification
Act, as employees of an agency, their classification was determined
by the ratings given them by the agency, and their compensation and
promotion depended upon their classification. The examiners were in
a dependent status.
With the rapid growth of administrative law in the last few
decades, the role of these quasi
-judicial officers became
increasingly significant and controversial. Many of the regulatory
powers which Congress has assigned federal administrative agencies
can be exercised only after notice and hearing required by the
Constitution or by statute. These agencies have such a volume of
business, including cases in which a hearing is required, that the
agency heads, the members of boards or commissions, can rarely
preside over hearings in which evidence is required. The agencies
met this problem long before
Page 345 U. S. 131
the Administrative Procedure Act by designating hearing or trial
examiners to preside over hearings for the reception of evidence.
Such an examiner generally made a report to the agency setting
forth proposed findings of fact and recommended action. The parties
could address to the agency exceptions to the findings, and, after
receiving briefs and hearing oral argument, the agency heads would
make the final decision.
Many complaints were voiced against the actions of the hearing
examiners, it being charged that they were mere tools of the agency
concerned, and subservient to the agency heads in making their
proposed findings of fact and recommendations. A study by President
Roosevelt's Committee on Administrative Management resulted in a
report in 1937 recommending separation of adjudicatory functions
and personnel from investigative and prosecution personnel in the
agencies. The Attorney General's Committee on Administrative
Procedure was appointed in 1939 to study the decisional process in
administrative agencies, and the final report of this Committee was
published in 1941. Both the majority and minority members of the
Committee recommended that hearing examiners be made partially
independent of the agency by which they were employed; the majority
recommended hearing examiners be appointed for a term of seven
years, and the minority recommended a term of twelve years.
Although extensive hearings were held on bills to carry out the
recommendations of this Committee, World War II delayed final
congressional action on the subject. After the war, the
McCarran-Sumners Bill, which became the Administrative Procedure
Act, was introduced. The Senate Judiciary Committee Print of June,
1945, reveals that, at that time, there was still great diversity
of opinion as to how the status of hearing examiners should be
enhanced. Several proposals were considered, and, in the final
bill, Congress provided that
Page 345 U. S. 132
hearing examiners should be given independence and tenure within
the existing Civil Service system. [Footnote 2
Congress intended to make hearing examiners "a special class of
semi-independent subordinate hearing officers" [Footnote 3
] by vesting control of their
compensation, promotion and tenure in the Civil Service Commission
to a much greater extent than in the case of other federal
employees. Section 11 is as follows:
"Subject to the civil service and other laws to the extent not
inconsistent with this act, there shall be appointed by and for
each agency as many qualified and competent examiners as may be
necessary for proceedings pursuant to sections 7 and 8, who shall
be assigned to cases in rotation so far as practicable and shall
perform no duties inconsistent with their duties and
responsibilities as examiners. Examiners shall be removable by the
agency in which they are employed only for good cause established
and determined by the Civil Service Commission (hereinafter called
the Commission) after opportunity for hearing and upon the record
thereof. Examiners shall receive compensation prescribed by the
Commission independently of agency recommendations
Page 345 U. S. 133
or ratings and in accordance with the Classification Act of
1923, as amended, except that the provisions of paragraphs (2) and
(3) of subsection (b) of section 7 of said act, as amended, and the
provisions of section 9 of said act, as amended, shall not be
applicable. Agencies occasionally or temporarily insufficiently
staffed may utilize examiners selected by the Commission from and
with the consent of other agencies. For the purposes of this
section, the Commission is authorized to make investigations,
require reports by agencies, issue reports, including an annual
report to the Congress, promulgate rates, appoint such advisory
committees as may be deemed necessary, recommend legislation,
subpoena witnesses or records, and pay witness fees as established
for the United States courts."
An examination of § 11 shows that Congress retained the
examiners as classified Civil Service employees, but made
inapplicable to them paragraphs (2) and (3) of subsection (b) of §
7 of the Classification Act and § 9 of that Act. These sections had
made the examiners dependent upon the agencies' ratings for their
classification. Freed from this dependence upon the agencies, the
examiners were specifically declared to be otherwise under the
other provisions of the Classification Act of 1923, as amended (now
the Classification Act of 1949, 5 U.S.C. (Supp. V) § 1071 et
The position of hearing examiners is not a constitutionally
protected position. It is a creature of congressional enactment.
The respondents have no vested right to positions as examiners.
They hold their posts by such tenure as Congress sees fit to give
them. Their positions may be regulated completely by Congress, or
Congress may delegate the exercise of its regulatory power, under
proper standards, to the Civil Service Commission, which it has
done in his case.
Page 345 U. S. 134
The question we have presented is whether the Civil Service
Commission, in the adoption of these rules, followed or departed
from the directions given it by § 11 of the Administrative
Procedure Act. Did it implement the statute, or did it enlarge
Respondents do not contend that all hearing examiners should be
classified in the same grade; they contend only that all hearing
examiners in any one agency
should be classified in the
same grade. Petitioners argue that cases in a given agency are of
varying levels of difficulty and importance, and that the examiners
hearing them must possess varying degrees of competency and types
of qualifications. Petitioners point to the experience of the Civil
Aeronautics Board, where there are safety cases heard by one group
of examiners and economic cases heard by another. The examiners
assigned to the safety cases have pilots' certificates, while those
assigned to the economic cases have completely different types of
qualifications. Again, certain cases before the Interstate Commerce
Commission involve relatively simple applications for extensions of
motor carrier certificates, while others involve complicated and
difficult railroad rate proceedings. Petitioners' argument
indicates the need for specialization among examiners in the same
agency to meet the diverse types of cases presented.
Proceeding under the provisions of the Classification Act, the
Commission still classified the examiners according to their
experience, skill, and ability, [Footnote 4
] but without seeking or receiving rating of the
examiners by the
Page 345 U. S. 135
agencies and wholly independent thereof. A classification of the
examiners into grades, with salaries appropriate to each grade, was
set up by the Commission in each federal agency using examiners.
This classification ranged from just one grade in several agencies
to five grades in two agencies. Allocation of examiners in
accordance with these classifications is provided for in Rule
34.10, [Footnote 5
specifically states, "Allocations shall
independently of agency recommendations and ratings." (Emphasis
When the Commission classified the examiners according to the
Classification Act, it was doing just what Congress directed it to
do. As has been previously shown, § 11 specifically directs that
"Examiners shall receive
Page 345 U. S. 136
compensation . . . in accordance with the Classification Act of
1923, as amended," with the exception provided in the statute and
in the rules that this is to be done independently of agency
influence. This contradicts the contention that Congress did not
intend to permit classification of examiner positions by the
Commission. The Act clearly provides, as Congress thought it did,
] for the allocation
of positions within an agency to be made in various salary grades,
which reflect the competence and experience of the person in the
grade. Congress must have recognized the right of the Commission so
to classify when it amended the Classification Act in 1949. At that
time, it specifically excluded thirty-two categories of government
employees, but not examiners, 5 U.S.C. (Supp. V) § 1082, although
the Commission then was classifying examiners under regulations
similar to the present ones.
The District Court was critical of the specifications used by
the Commission to classify the examiners as being "nebulous and
subjective." (104 F. Supp. 740.) To classify the positions into the
different grades from GS 11 to GS 15, the Commission used
specifications as to job content as "moderately difficult and
important," "difficult and important," "unusually difficult and
Page 345 U. S. 137
difficult and important," and "exceptionally difficult and
important." These specifications of necessity must be subjective.
They are not based so much on evidence as on judgment. It is a
discriminating judgment and one Congress committed to the
experience and expertise of the Civil Service Commission, not the
courts. The specifications evidently had practical content and
meaning to Congress, as it repeatedly used similar phrases to
describe relative methods in § 602 of the Classification Act of
1949, 5 U.S.C. (Supp. V) § 1112.
We come next to Rule 34.4 of the Commission, relating to
promotions, [Footnote 7
is set forth in the margin. This
Page 345 U. S. 138
rule was held invalid by the District Court, consistent with its
view that there can be no classification of examiners, and
therefore there can be only one grade. Since we disagree with the
court below as to the right of the Commission to classify examiners
into grades within an agency, and hold that such classification can
be made, it must follow that promotions from one grade to another
may be made.
But respondents also challenge the method by which promotions
are made. The rule provides that the agency shall decide if there
is a vacancy to be filled, and, further, that the agency shall
decide if this vacancy is to be filled by promotion from among the
present examiners. The examiners insist that thus the agency can
control and coerce its examiners, and has an absolute veto power
over promotions. But it is the Commission which chooses the
examiner who shall receive the promotion. Respondents imagine all
sorts of devious schemes by which the agencies shrewdly analyze
their staffs to pick out which examiners would probably be chosen
by the Commission for promotion, and then create vacancies for them
as a reward for favorable decisions, or else fill vacancies from
outside in order to discipline recalcitrant examiners. Respondents
have not shown any actual examples of this, nor do they show that,
in such circumstances the Commission would not correct the
situation. As a practical matter, the Commission must always turn
to the agency for advice on the number of examiners needed at the
various levels. The statute declares that
Page 345 U. S. 139
"there shall be appointed by and for each agency
as many qualified and competent examiners as may be necessary."
(Emphasis supplied.) It then puts sufficient responsibility in the
Commission's hands to ensure independent judgments from the
examiners. It does not reduce the responsibility of the agency to
see that it has a sufficient number of competent examiners to
handle its business properly.
We come next to Rule 34.12, Rotation of Examiners. It
"Insofar as practicable, examiners shall be assigned in rotation
to cases of the level of difficulty and importance that are
normally assigned to positions of the salary grade they hold."
5 CFR, 1951 Supp., § 34.12.
This rule purports to implement the provision of § 11 that
examiners "shall be assigned to cases in rotation so far as
" (Emphasis supplied.) The respondents contend
that this means mechanical rotation -- that a case must be assigned
to an examiner when his name comes up on the register, unless he is
on leave or sick or disqualified or has not completed another
assignment, etc. The lower courts accepted the respondents' view,
and held Rule 34.12 invalid.
The Commission gave to § 11's requirement of assignment of cases
in rotation "so far as practicable" consideration beyond the mere
mechanics of bringing the next case on the docket opposite the top
name on the register of available examiners. It gave consideration
to the kind of case involved, as well as the kind of examiner
available. The Commission had classified the examiners on that
basis, and it considered it was practicable to assign cases to
examiners who were, according to their classification, qualified to
handle the case at hand, having regard to the complexity and
Page 345 U. S. 140
thereof, together with the experience and ability of the
examiner available. If assigned by mechanical rotation, the value
and use of such classification, which Congress had authorized,
would be lost. To use the classification, it was not practicable to
use mechanical rotation. Congress did not provide for the
classification of examiners by the Commission, and then provide for
the Commission to ignore such classification by a mechanical
rotation. The rotation, for practical reasons, was adjusted to the
classifications. This was an allowable judgment by the Commission
as to what was practicable.
Finally, we come to the consideration of Rule 34.15, [Footnote 8
] which provides for a
reduction in force of examiners
Page 345 U. S. 141
under circumstances governing the reduction in force of other
federal employees. Respondents' contention, sustained by the courts
below, is that the provision of § 11 that examiners
"shall be removable . . . only for good
Page 345 U. S. 142
cause established and determined by the Civil Service Commission
. . . after opportunity for hearing and upon the record
gives them a lifetime position, subject to removal only for
cause, and that the reduction in force procedures of the Commission
have no application to them.
In this, we think the respondents are mistaken. Congress
intended to provide tenure for the examiners in the tradition of
the Civil Service Commission. They were not to be paid, promoted,
or discharged at the whim or caprice of the agency or for political
reasons. One of the individual examiners suing here was discharged
by the Labor Board for lack of funds. The Commission has
traditionally provided for a reduction in force for lack of funds,
personnel ceilings, reorganizations, decrease of work, and similar
reasons. 5 CFR, 1951 Supp., § 20.2(a).
Part of respondents' argument seems to direct itself to the
point that it is the agency which makes the reduction in force.
Rule 34.15 provides for the dropping of examiners with the lowest
number of "retention credits" after the agency finds that it must
reduce its force. These credits are based on length of service, and
are beyond the power of the agency to affect. As with promotions,
the Commission will always need to consult with the agency to
ascertain that there is occasion for a reduction. Just as the
statute leaves with the agency the duty to see that there are an
adequate number of the right type of examiners, it leaves with the
agency the responsibility to declare that there are a lesser number
of examiners necessary at this time. It must be assumed that the
Commission will prevent any devious practice by an agency which
would abuse this Rule. The Rule provides for examiner appeal to the
Commission, so there is opportunity to bring abuses to the
Commission's attention. Also challenged is the statement in the
Page 345 U. S. 143
Retention Preference Regulations for Reduction in Force (5 CFR,
1951, § 20.2) allowing reduction in force "for other reasons." This
is obviously to provide for legitimate reasons for reduction not
now foreseen, and it must be assumed that the Commission will not
permit an agency to misuse it.
We find no evidence that Congress intended to make hearing
examiners a class with lifetime employment, whether there was work
for them to do or not, as contended by the respondents. A reduction
in force for the reasons heretofore provided by the Civil Service
Commission and removal of an examiner in accordance therewith is
"good cause" within the meaning of § 11.
The rules conform to the statute and carry out the purpose and
intent [Footnote 9
Congress, and they are therefore valid.
The judgment is reversed, and the cause is remanded to the
District Court with directions to dismiss the complaint.
Since the question was not raised before us, we do not rule on
the standing of the Federal Trial Examiners Conference to be a
party in this suit.
The Senate Report described the alternatives before the Congress
and the purpose of § 11 as follows:
"The purpose of this section is to render examiners independent
and secure in their tenure and compensation. The section thus takes
a different ground than the present situation, in which examiners
are mere employees of an agency, and other proposals for a
completely separate 'examiners' pool' from which agencies might
draw for hearing officers. Recognizing that the entire tradition of
the Civil Service Commission is directed toward security of tenure,
it seems wise to put that tradition to use in the present case.
However, additional powers are conferred upon the Commission."
Administrative Procedure Act-Legislative History, S.Doc. No.
248, 79th Cong., 2d Sess., p. 215.
Legislative History, p. 192.
Section 11 of the Administrative Procedure Act became effective
June 11, 1947, one year after the Act's approval. The Commission
accepted the examiner positions in the five different grades
established by the agencies. After notice and hearing, regulations
were promulgated on September 23, 1947. The Commission appointed a
Board of Examiners from outside the Government to pass on the
qualifications of incumbent status examiners, and to conduct a
competitive examination for nonstatus incumbents and new
applicants. When the results were announced in March, 1949, 25.5%
of the 212 status incumbents rated by the Board were found
disqualified, but appeals were taken and ultimately all were found
qualified. The action of the Board of Examiners was much
Thomas, The Selection of Federal Hearing
Examiners: Pressure Groups and the Administrative Process (1950),
59 Yale L.J. 431, 433; Fuchs, The Hearing Examiner Fiasco Under the
Administrative Procedure Act (1950), 63 Har v.L.Re v. 737, 767.
Meanwhile, dispute had arisen as to what part the agencies had in
the promotion of examiners -- the existing regulations permitted
the agency to select the examiner to be promoted subject to the
retroactive approval of the Commission. On February 23, 1951, the
Attorney General issued an opinion holding the promotion regulation
invalid. 41 Op.Atty.Gen. No. 14. On September 21, 1951, the
Commission promulgated the present regulations involved in this
(a) Hearing examiner positions
shall be allocated by the Commission in accordance with the
regulations and procedures adopted by the Commission for
allocations under the Classification Act of 1949. Allocations shall
be made independently of agency recommendations and ratings."
"(b) Hearing examiners shall receive within-grade salary
advancements in accordance with Part 25 of this chapter:
that the requirement of a satisfactory or better
performance rating shall not apply."
"5 CFR, 1951 Supp., § 34.10."
"In the matter of examiners' compensation, the section adds
greatly to the Commission's powers and function. It must prescribe
and adjust examiners' salaries, independently of agency ratings and
recommendations. The stated inapplicability of specified sections
of the Classification Act carries into effect that authority. The
Commission would exercise its powers by classifying examiners'
positions and, upon customary examination through its agents, shift
examiners to superior classifications or higher grades as their
experience and duties may require. The Commission might consult the
agency, as it now does in setting up positions or reclassifying
positions, but it would act upon its own responsibility and with
the objects of the bill in mind."
Legislative History, p. 215 (Senate Report). See also
pp. 280-281 (House Report).
"§ 34.4 Promotion
-- (a) From a hearing examiner
When an agency decides that a hearing examiner
position should be filled by the promotion of one of its hearing
examiners, the Commission will select the examiner who is to be
promoted. To be eligible to compete for promotion, hearing
examiners must be serving in the agency, in the area of competition
designated by the Commission, under absolute appointments, in
grades lower than the position to be filled. In addition, hearing
examiners must meet the current recruiting standards (including the
requirement of at least one year of experience of a level of
difficulty comparable to that of the next lower grade). After
examining the qualifications of all candidates, the Commission will
select the best qualified. The hearing examiner selected by the
Commission must be promoted not later than the beginning of the
second pay period following the period in which the Commission's
decision is reached, unless the Commission directs that the
promotion be delayed pending adjudication of appeals. Once an
agency elects to have a position filled by promotion and the
Commission undertakes an examination to fill the position, the
hearing examiner selected by the Commission must be promoted."
"(b) From a position other than a hearing examiner
When an agency desires to fill a vacancy in a
hearing examiner position by the promotion of an employee who is
serving in a position other than a hearing examiner position, with
competitive status but without absolute status as a hearing
examiner, it shall submit the name of the person to the Commission
with an application form executed by him. The Commission will rate
the qualifications of the applicant in accordance with the
experience and training requirements of the open competitive
examination (except the maximum age requirement) including an
investigation of character and suitability. If on the basis of the
rating assigned, the applicant would be within reach for
certification if his name were on the open competitive register
with the same rating, the Commission will approve the promotion;
otherwise it will disapprove the request."
5 CFR, 1951 Supp., § 34.4.
"§ 34.15 Reductions in force
-- (a) Retention
Retention credits for purposes of reductions in the
force of hearing examiners are credits for length of service in
determining retention order in each retention subgroup. They are
computed by allowing one point for each full year of Federal
"(b) Retention preference, classification.
purpose of determining relative retention preference in reduction
in force, hearing examiners shall be classified according to tenure
of employment in competitive retention groups and subgroups in the
manner prescribed in § 20.3 of the Retention Preference Regulations
for Use in Reductions in Force (Part 20 of this chapter):
That no distinction will be made in subgroups on
the basis of a satisfactory or better performance rating, as
opposed to performance ratings of less than satisfactory."
"(c) Status of hearing examiners who are reached in
reduction in force.
When a hearing examiner has been
separated, furloughed, or reduced in rank or compensation because
of a reduction in force, his name shall be placed at the top of the
open competitive register for the grade in which he formerly served
and for all lower grades. Where more than one hearing examiner is
affected, the qualifications of the several hearing examiners shall
be rated by the Commission and relative standing at the top of the
register will be on the basis of these ratings."
(1) Any hearing examiner who feels that
there has been a violation of his rights under the regulations
governing reductions in force may appeal to the Commission
(attention, Chief Law Officer) within 10 days from the date he
received his notice of the action to be taken."
"(2) Each appeal shall state clearly the grounds on which it is
based, whether error in the records; violation of the rule of
selection; restriction of the competitive area or level; disregard
of a specified right under the law or regulations; or denial of the
right to examine the regulations, retention register, or
"(3) The agency in which the hearing examiner is employed shall
be notified of the appeal and shall be allowed to file an answer
thereto. The agency's answer must be submitted to the Commission's
Chief Law Officer within 10 days from the date the agency is
"(4) Upon receipt of an appeal, the Chief Law Officer will refer
the case to the Personnel Classification Division for
investigation. The Personnel Classification Division will make
investigation and submit its report to the Chief Law Officer. If
the investigation discloses violations of the rights of the
appellant, the Chief Law Officer shall notify the agency as to the
corrective action to be taken. The agency may appeal the decision
of the Chief Law Officer within 10 days of its receipt to the
Commission's Board of Appeals and Review. If the Board of Appeals
and Review disagrees with the decision of the Chief Law Officer, it
shall refer the case to the Commission's Chief Hearing Examiner for
a hearing in accordance with subparagraph (5) of this
"(5) Appeals in which the Chief Law Officer cannot make initial
finding in favor of the appellant shall be referred to the
Commission's Chief Hearing Examiner for a hearing. The hearing
shall be conducted in accordance with the provisions of the
Administrative Procedure Act. The appellant, the agency concerned,
and the Commission's Chief Law Officer may be represented at the
hearing. Upon completion of the hearing the presiding hearing
examiner shall transmit the entire file with his recommended
decision to the Commission for decision."
"(e) Retention preference regulations.
Preference Regulations for Use in Reductions in Force (Part 20 of
this chapter), except as modified by this section, shall apply to
reductions in the force of hearing examiners."
Respondents' brief and the dissenting opinion filed herein quote
a sentence from a letter of September 6, 1951, from Senator
McCarran, Chairman of the Senate Judiciary Committee, to Chairman
Ramspeck of the Civil Service Commission, as follows:
"It was intended that (examiners) be very nearly the equivalent
of judges, even though operating within the Federal system of
S.Doc. No. 82, 82d Cong., 1st Sess., p. 9. We do not feel
justified in regarding this sentence, taken out of context and
written over five years after the Administrative Procedure Act was
enacted, as illustrative of the intent of Congress at the time it
passed the Act.
MR. JUSTICE BLACK, with whom MR. JUSTICE FRANKFURTER and MR.
JUSTICE DOUGLAS concur, dissenting.
I think these regulations should be held invalid and the
judgment affirmed for substantially the reasons given in the
opinion of Chief Judge Laws of the District Court for the District
of Columbia. 104 F.
. I wish
Page 345 U. S. 144
to add a few words merely to emphasize certain aspects of that
The Administrative Procedure Act was designed to give trial
examiners in the various administrative agencies a new status of
freedom from agency control. Henceforth, they were to be "very
nearly the equivalent of judges even though operating within the
Federal system of administrative justice." [Footnote 2/1
] Agencies were stripped of power to remove
examiners working with them. Henceforth, removal could be effected
only after hearings by the Civil Service Commission. That same
Commission was empowered to prescribe an examiner's compensation
independently of recommendations or ratings by the agency in which
the examiner worked. And, to deprive regulatory agencies of all
power to pick particular examiners for particular cases, § 11 of
the Act commanded that examiners be "assigned to cases in rotation
so far as practicable. . . ." I agree with the District Court and
the Court of Appeals that the regulations here sustained go a long
way toward frustrating the purposes of Congress to give examiners
independence. [Footnote 2/2
Section 11 of the Administrative Procedure Act, as pointed out,
provides that examiners may be removed "only for good cause
established" after hearings. One of the regulations here approved
authorizes their removal when an agency finds it necessary to
reduce its force. We have been pointed to no act of Congress which
justifies this regulation.
Another regulation here approved permits the assignment of cases
to examiners by "classification," instead of by "rotation," as § 11
requires. I do not agree with the Court that the Classification Act
of 1923 or any other
Page 345 U. S. 145
act of Congress authorizes the distinctions here made between
examiners. In fact, the Administrative Procedure Act appears to
contemplate that all examiners employed by a particular agency
stand on equal footing in regard to service and pay. A central
objective was to prevent agency heads from using powers over
assignments to influence cases. Unlimited discretion in assignment
would lead to subservient examiners, it was thought. But the effect
of the Civil Service classifications is to restore the unlimited
discretion existing before passage of the Administrative Procedure
The distinctions depended upon to support the different
classifications are so nebulous that the head of an agency is left
practically free to select any examiner he chooses for any case he
chooses. For the regulations permit the head of an agency to assign
a particular case on the basis of whether the head of the agency
believes it to be "moderately difficult and important," "difficult
and important," "unusually difficult and important," "exceedingly
difficult and important," or "exceptionally difficult and
important." And administrative agencies are permitted to attribute
choice of a particular examiner for a particular case to
considerations whether "complex legal, economic, financial, or
technical questions or matters" are merely "moderately complex,"
"fairly complex," "extremely complex," "exceptionally complex," or
just "complex." I think all these conceptualistic distinctions mean
is that the congressional command for a nonagency controlled
rotation of cases is buried under words.
S.Doc. No. 82, 82d Cong., 1st Sess. 9.
Support of the foregoing statements as to the purpose of the Act
can be found in Wong Yang Sung v. McGrath, 339 U. S.
, and in the opinion of Chief Judge Laws, 104 F.