CONGRESSIONAL DETERMINATION AND CHOOSES, INSTEAD, TO FOCUS ON A PERCEIVED
AND UNQUALIFIED "SIMILARITY" BETWEEN BOARD AND DEPARTMENT OF LABOR CASES.
WE WOULD SUGGEST THAT THE SIMILARITY IS MUCH MORE THEORETICAL THAN THE
"THEORETICAL DIMUNITION SIC OF SUBJECT MATTER EXPERTISE" THE PROPONENTS
OF THE RESOLUTION ENVISION.

WE DO AGREE WITH THE RECOMMENDATION CONTAINED IN PART 2 OF THE
ACTION RESOLUTION THAT ALUS BE APPOINTED SOLELY ON THE BASIS OF MERIT.
WE BELIEVE, GIVEN SELECTIVE CERTIFICATION, THAT THEY NOW ARE. WE ARE ALSO
FULLY AWAPE, AS ARE THE MEMBERS OF THIS SECTION, THAT THERE IS NO SPECIAL
RELATIONSHIP BETWEEN ELIMINATION OF VETERANS' PREFERENCE AND ALJ UNIFICATION.
TO THE EXTENT YOU FEEL THAT VETERANS' PREFERENCE MAY HANDICAP THE APPOINTMENT
OF ABLE ALUS. THE PRESIDENT HAS A LEGISLATIVE PROPOSAL NOW BEFORE THE
CONGRESS ADDRESSED TO THIS ISSUE. WE ARE, HOWEVER, OPPOSED TO APPOINTMENT
BY THE CIVIL SERVICE COMMISSION WITH PARTICIPATION BY THE BAR. THE INTERESTS
CONGRESS SOUGHT TO SERVE IN MANDATING THAT ALUS BE APPOINTED BY THE AGENCIES
THEY SERVE HAVE NOT CHANGED IN THE LAST 30 YEARS. WE, AND WE ALONE, ARE
ENTRUSTED WITH THE STATUTE'S ADMINISTRATION. FROM THAT TRUST FLOWS OUR

LEGITIMATE ACCOUNTABILITY TO THE CONGRESS AND, THROUGH IT, THE PEOPLE.
KHETHER OR NOT THE PROPONENTS OF THIS RESOLUTION ARE SUCCESSFUL IN
LEGISLATING THE RESOLUTION'S RECOMMENDATION, THAT ACCOUNTABILITY WILL,
AS IT MUST, REMAIN WITH US. ADMINISTRATIVE LAW ADJUDICATION IS FUNDAMENTAL
TO OUR FUNCTION AND, FOR THAT REASON, WE ARE UNALTERABLY OPPOSED TO ANY
METHOD OF APPOINTMENT WHICH WILL LODGE APPOINTMENT IN AN ENTITY OTHER THAN
THE ONE ACCOUNTABLE FOR THE STATUTE'S ADMINISTRATION.

FURTHERMORE, WE

BELIEVE THAT THE LEGITIMATE INTERESTS OF BOTH THE CIVIL SERVICE COMMISSION
AND THE BAR ARE ADEQUATELY SERVED BY THEIR CURRENT PARTICIPATION IN THE
ALS CERTIFICATION PROCESS.

FINALLY, WE DO NOT OPPOSE THE PRINCIPLES OF ALJ ACCOUNTABILITY

FOR PERFORMANCE AND PRODUCTIVITY. WE HAVE BEEN IN THE FOREFRONT OF THAT

ENDEAVOR. BUT WE WOULD SUGGEST TO YOU THAT THE REASON THE ACTION RESOLUTION SEEKS NO MORE THAN A NEBULOUS "EFFECTIVE ORGANIZATION AND PROCEDURE" DESIGNED TO FURTHER THAT ALJ ACCOUNTABILITY IS BECAUSE ITS PROPONENTS ARE KEENLY

AWARE THAT UNIFICATION DOES NOT AUTOMATICALLY INCREASE MEANINGFUL ACCOUNTABILITY.
APART FROM HISTORICAL CONSIDERATIONS UNDERMINING THE LIKELIHOOD OF SELF-POLICED
ACCOUNTABILITY, THE LACK OF COMPARABILITY BETWEEN BOARD CASES AND THOSE

OF ALL OTHER AGENCIES, AND FOR THAT MATTER THE LACK OF COMPARABILITY
BETWEEN SEC, OR FTC CASES AND THOSE OF OTHER REGULATORY AGENCIES, CAN ONLY
SERVE TO MAKE TRUE ACCOUNTABILITY AN UNLIKELY REALITY,

WE SHARE WITH YOU, I EMPHASIZE, AN ABIDING CONCERN WITH THE PRINCIPLE
OBJECTIVES OF THE COMMITTEE'S ACTION RESOLUTION. THE APPEARANCE OF ALJ
INDEPENDENCE, THE INTEGRITY OF THE FEDERAL ADMINISTRATIVE PROCESS, THE
STATURE OF ADMINISTRATIVE LAW JUDGES AND THE ATTRACTIVENESS OF ADMINISTRATIVE
LAW JUDGESHIPS MUST NECESSARILY BE OUR CONCERN NO LESS THAN WE KNOW IT IS
YOURS, FEW, IF ANY, HAVE ADVANCED FOR A LONGER TIME THAN I HAVE THE NEED
FOR GREATER FINALITY TO ALJ DECISIONS. FEW, IF ANY, AGENCIES HAVE SOUGHT
HARDER, AND MORE EFFECTIVELY, TO IMPRESS UPON THE CIVIL SERVICE COMMISSION,
THE CONGRESS, EVEN THE PRESIDENT, THE CRUCIAL IMPORTANCE OF ADMINISTRATIVE
LAW JUDGES TO FEDERAL POLICY.

I REITERATE THAT OUR RESPECT AND ADMIRATION FOR, OUR SENSE OF WILLING COOPERATION WITH, THIS SECTION DOES NOT HINGE ON THE CHOICE YOU MAKE. WE ARE AS UNALTERABLY COMMITTED TO THAT AS WE ARE TO OPPOSING THIS AND WE WILL OPPOSE IT, IF THE NEED ARISES BEFORE THE HOUSE OF DELEGATES, BEFORE OB, BEFORE THE CONGRESS, AND IF LEGISLATION ALONG

RESOLUTION.

-

-&

THESE LINES EVENTUATES, BEFORE THE PRESIDENT. WE WILL DO THAT FOR PRECISELY
THE SAME REASON WE CHOOSE TO ASSURE YOU OUR DISAGREEMENT WITH THE RESOLUTION
WILL NOT GO BEYOND THAT. WE WILL DO IT BECAUSE, LIKE YOU, WE ARE DEEPLY
COMMITTED, NOT TO THE PRESERVATION OF THE STATUS QUO, BUT TO WHAT WE
BELIEVE IS THE PRESERVATION OF THE DELIVERY OF ADMINISTRATIVE JUSTICE.

WE APPRECIATE THE TIME YOU HAVE ALLOTTED ME. THANK YOU.

Senator MATHIAS. Thank you very much, Mr. Chairman.

If you have the time, we will hear the remaining statements, and I think it might be useful, then, to address questions to the group and get your colleague's wisdom along with yours.

Mr. Miller?

TESTIMONY OF JOHN T. MILLER, JR., ESQUIRE, WASHINGTON,

D.C.

Mr. MILLER. Mr. Chairman, my name is John T. Miller, Jr. I am a lawyer in private practice. For 20 years, I have been an adjunct professor of law at Georgetown. I would like to take advantage of your offer to have my statement copied into the record.

What I would like to do is to direct your attention to the appendix to my statement. It consists of a resolution adopted on May 10 by the Federal Energy Bar Association opposing term appointments for administrative law judges in the pending legislation, and attached to that is a copy of a committee report which was the genesis of the bar position.

I would like to direct your attention particularly to this language in that report.

This committee recommends that the FEBA go on record as opposed to the concept of limited term appointments for ALJ's. Such a practice will lower the quality of candidates for such appointments, discourage applicants from the private bar, expose the judges unduly to pressures from the agency staff and outside political forces, and undermine the independence of the ALJ's which has been a keystone of the Administrative Procedures Act since its original enactment.

I might note that this bar is one of those working in one of the most complex areas of administrative law in this city. The membership is made up of lawyers from all over the country. They practice largely before what used to be the Federal Power Commission, now the FERC, and before other departments of the Department of Energy. They are members who represent the entire spectrum, including consumer interests, the regulated companies, et cetera, so that this resolution, which was adopted unanimously, expresses many different viewpoints, or is a conclusion based on many different viewpoints.

I have obtained most of my experience about the ALJ examiner program as a member of the American Bar Association. I have been chairman of the administrative law section, as Professor Rosenblum. I am not here speaking on the association's behalf. I will say I have read the resolution adopted by the Board of Governors and I support its conclusions.

For 16 years, I have had experience with the Civil Service Commission's recruitment program, and its successor, the Office of Personnel Management.

One difficulty I had with the legislation is that I don't think it gives sufficient appreciation to the ground already covered; in other words, the mistakes made in the past and the efforts made to improve things for the future. There was a time when we had an evaluation procedure in the last 1940's after the Administrative Procedure Act was enacted and an attempt was made to evaluate all the hearing examiners then in office. It was a charade. What ended up is that plenty of very competent judges were charged with incompetence when it wasn't justified, and unfortunately, many who were not qualified were left in office because nobody was removed from office as a result of the evaluations.

That is one of the reasons why we are apprehensive of an evaluation system that is tied to reappointment. We think it will become a political football and the kind of lawyers who will come to that kind of profession for limited terms will be those who feel they can best survive in an area where political pull rather than competence would be the standard of reappointment.

I am glad that Chairman Fanning has taken the time to mention selective certification. I feel a great deal has been done to improve the present system, and I outline some of it in my paper. Among the vices that remain is selective certification. I wrote an article "The Vice of Selective Certification" back in 1968. Obviously, I have not been on the winning side during the intervening years. But I think it is one practice that has got to be removed if we are to attract the best candidates for the administrative law bench. I believe that I practice in an area that is as complex as any, and to hear an agency argue on the basis of 100 years of experience that you can't obtain the expertise necessary after appointment to the bench at that agency I find ridiculous.

It is not the tradition of the bar to appoint men to the bench on the basis of specialized experience. That is not a criterion for appointment to the NLRB or for being hired there as a lawyer. Yet the way it works is that you have to serve your life in the ranks of the NLRB in order to be appointed a judge.

I think one has to have a considerable lack of understanding about how things are done elsewhere to argue in public that that is the way it must be. I am not sure why the labor bar supports the present system. I have been a practitioner in a specialized field enough years to know that the specialized bar often remains silent when they practice continuously before an agency for fear of injury to themselves or their clients should they be highly critical of the system in being. Whether this is true at the NLRB I am not in a position to say, but I know this is a fact of life.

The limited term appointments will work a sort of Gresham's law. During the first 6 or 8 years when the present system of recruitment was in effect, and in fact right from its beginning in 1963, I served as liaison between the American Bar and the Civil Service Commission, and during that time I personally interviewed roughly 8 percent of all the lawyers who ended up on the registers from which appointments were made. It was that experience which gave me some sense of the quality of the candidates who were

coming through, and a sensitivity of the system of appointment and examination.

One thing I am convinced of is that if you have appointments for 7 years, the young, the energetic lawyers from both the private and public bar will not look upon the appointments as a ALJ as something to be sought after. We have seen considerable improvement in the quality of appointees since we did such things as improve the title, and as we made efforts to try to broaden the recruitment on a national basis. In that connection, I think it quite unfortunate that people are using the experience of the Superior Court of the District of Columbia as an example for how a nationwide judiciary should be organized under the Administrative Procedure Act as amended.

The superior court is a city court with its parochial problems and interests. It has been enhanced in stature. There has been improvement in the quality of appointments in recent years. But it remains a simple local court situation.

We are trying to recruit ALJ's on a national basis. People are not going to leave the Midwest and other parts of the country to come to Washington, or to come to a port city, if they are going to be a Coast Guard ALJ, or elsewhere, and pull up the roots and give up their connections to the community for a flier of 7 years with no chance for reappointment.

Within the last 2 weeks I argued a matter before an ALJ where the staff lawyer bitterly opposed me. When the judge finally ruled, I found myself uneasily musing, "Suppose he was up for reappointment. Would I have received the same ruling?" I don't think so.

I would invite the committee to look at the experience of the reappointment procedure of the District of Columbia in connection with superior court judges. I am not in a position to judge the quality of the reappointed judges or those who have been rejected, but there is one experience which vividly points out to me what is going to happen with 7-year appointments. Assistant U.S. attorneys prepared a dossier on one of the judges who recently came up for review, and this played a large part in the fact that he was not reappointed. In every administrative agency, they will keep book on the judge.

Senator MATHIAS. I am not sure it was a large part. I won't argue that point, however.

Mr. MILLER. All right, sir. But what I am getting at is that when you have a judge who is exposed to a continuous number of lawyers from the same spectrum, it is reasonable to expect that a dossier will be prepared on the judge, and every ruling the staff lawyers think not favorable will go into that, These will be collected, and over the years will provide an overwhelming case against the judges whom the staff thinks doesn't think right.

Senator MATHIAS. That possibility exists.

Mr. MILLER. That possibility, I think, is a real one.

Beyond that, I have some comments here to which I would direct your attention as to the evaluation processes which are contemplated. I do support an evaluation process, but I think a great deal of care has got to be taken on how it is structured. I suggest that it be organized in such a way that the judge's independence is not jeopardized; and that the review process be used as a vehicle for