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Attorney General's Manual on the Administrative Procedure Act

Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.

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V    SECTION 6--ANCILLARY MATTERS

Section 6 defines various procedural rights of private parties which may be incidental to rule making, adjudication, or the exercise of any other agency authority. The introductory words of section 6, "Except as otherwise provided in this Act," are intended to assure that its provisions do not override contrary provisions in other parts of the act. Thus, the opportunity for informal appearance contemplated by section 6 (a) is not to be construed so as to authorize ex parte conferences during formal proceedings when such conferences are forbidden by other sections of the act. Sen. Rep. p. 18, H.R. Rep. p. 31 (Sen. Doc. pp. 204, 263).

Governing Definitions. The provisions of section 6 hinge to a considerable extent upon the definition of the terms "party", "person" and "agency proceeding". These terms are defined in section 2 of the act as follows:

(b) "Person" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies. "Party" includes any person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any agency proceeding; but nothing herein shall be construed to prevent an agency from admitting any person or agency as a party for limited purposes.

* * * *

(g) "Agency proceeding" means any agency process as defined in subsections (c), (d), and (e) of this section. [Defining rule making, adjudication and licensing, respectively.]

SECTION 6 (a)--APPEARANCE

Formal Appearance. The first sentence of section 6 (a) provides that "Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." This restates existing law and practice that persons compelled to appear in person before an agency or its representative must be accorded the right to be accompanied by counsel and to consult with or be advised by such counsel. Such persons are also entitled to have counsel act as their spokesmen in argument and where otherwise appropriate. Senate Comparative Print of June 1945, p. 10 (Sen. Doc. p. 26). It is clear, of course, that this provision relates only to persons whose appearance is compelled or commanded, and does not extend to persons who appear volun-[62]tarily or in response to mere request by an agency. Where appearance is compelled, whether as a party or as a witness, the right to counsel exists.

The phrase "or, if permitted by the agency, by other qualified representative" refers to the present practice of some agencies of permitting appearance or representation in certain matters by non-lawyers, such as accountants. The phrasing of this clause, together with the last sentence of the subsection, makes it clear that nothing in the first sentence was intended to change the existing powers of agencies in this respect. See discussion, infra at pp. 65-6.

The second sentence of the subsection relates to the rights of "parties" to "agency proceedings". It provides that every "party" shall have the right to appear in any agency proceeding "in person or by or with counsel or other duly qualified representative."(1)

The right of a party to appear personally or by or with counsel extends, in view of the definition of "agency proceeding", to proceedings involving rule making, adjudication or licensing. The identity of the "parties" is usually clear in adjudication, licensing and formal rule making proceedings. However, since the provision is not limited to formal proceedings (those governed by sections 7 and 8), but extends to informal rule making proceedings, the term "party", in the latter type of proceeding, means any person showing the requisite interest in the matters involved. Sen. Rep. p. 19; H.R. Rep. p. 31 (Sen. Doc. pp. 205, 263). It is entirely clear that this right to appear in informal rule making proceedings is limited by the nature of the procedure adopted by an agency, pursuant to section 4 (b). If the agency, under section 4 (b), provides interested persons an opportunity to present their views orally, the agency must allow any person with the requisite interest to appear personally or by counsel or other qualified representative. On the other hand, if the agency desires to hold informal rule making proceedings consisting of the submission of written data, views, or arguments, nothing in section 6 (a) requires the agency to provide in addition for personal appearance. In other words, the second sentence of section 6 (a) is not intended to limit an agency's discretion as to the type of rule making proceedings to be held in a particular case. (See opening clause of section 6: "Except as otherwise provided in this Act").

[63] Informal Appearance. The third sentence of section 6 (a) provides that "So far as the orderly conduct of public business permits, any interested person may appear before any agency or its responsible officers or employees for the presentation, adjustment, or determination of any issue, request, or controversy in any proceeding (interlocutory, summary, or otherwise) or in connection with any agency function." This sentence contemplates that interested persons may appear not only in matters involving rule making, adjudication, and licensing, but also in connection with other agency functions. This provision is not to be construed as requiring an agency to give notice of its proposed action and to invite appearances by interested persons; an agency is not required to provide an opportunity for appearance and adjustment to interested persons unless they request it. Sen. Rep. p. 19 (Sen. Doc. p. 205).

The opportunity for informal appearance contemplated by the third sentence of section 6 (a) means that any person should be given an opportunity to confer or discuss with responsible officers or employees of the agency matters in which he is properly interested. This opportunity should be with a responsible officer or employee--one who can decide the matter or whose function it is to make recommendations on such matters--rather than officers or employees whose duties are merely mechanical or formal. Sen. Rep. p. 19; H.R. Rep. p. 32 (Sen. Doc. pp. 205, 264).

This provision for informal appearance is expressly limited by the subsection to "so far as the orderly conduct of public business permits." Clearly, both the right and its limitation should be construed to achieve practical and fair results. Appearance should be allowed except where it would be inconsistent with the orderly conduct of public business. A properly interested person who is permitted to appear should be accorded an opportunity to present his case or proposals to a responsible officer or employee as defined above. Repeated opportunities to present the same arguments or proposals are not required. Further, the act does not require that every interested person be permitted to follow the chain of command to the head of the agency. It was not intended to require the directors of the Reconstruction Finance Corporation, for example, to confer personally with every applicant for a loan. It is sufficient if the opportunity to confer is with an official of such status that he knows the agency's policy, and is able to [64] bring unusual or meritorious cases to the attention of the officials who shape the policy or make final decisions.

The opportunity thus to appear "for the presentation, adjustment, or determination of any issue, request, or controversy in any proceeding"--or "in connection with any agency function" relates not only to "agency proceedings" as defined in section 2 (g), but also to all other agency functions. It means, for example, that upon request any person should be allowed, where this is feasible, to present his reasons as to why a particular loan or benefit should be made or granted to him. It would also seem to mean that he can present his reasons as to why a particular controversy should be settled informally rather than in formal proceedings with attendant publicity. However, there is no requirement that the agency accept such proposals for informal settlement; if, for example, the agency believes that formal public proceedings will best serve the public interest, it is free to conduct such proceedings.

The reference to "interlocutory" or "summary" proceedings appears to be intended to provide an opportunity for informal appearance and discussion in those situations where an agency takes significant action without prior formal proceedings. H.R. Rep. p. 32 (Sen. Doc. p. 264). For example, section 609 of the Civil Aeronautics Act of 1938 (49 U.S.C. 559) provides that "In cases of emergency, any such certificate [airworthiness certificate, airman certificate, etc.] may be suspended, in whole or in part, for a period not in excess of thirty days, without regard to any requirement as to notice and hearing." Under section 6 (a) of the Administrative Procedure Act, the persons who would be affected by such summary action should, if feasible, be allowed to appear and present their views on the proposed action. It is absolutely clear, however, that nothing in this subsection was intended to interfere with the primary objective of assuring safety in air travel. To the extent that the timely execution of the Administrator's duties, i.e., the "orderly conduct of public business," precludes discussion and negotiation, he need not hold such discussions.

There will doubtless be many cases in which an agency will find it necessary to notice a matter for public hearing without preliminary discussion because a statute or the subject matter or the special circumstances so require. Sen. Rep. p. 41 (Sen. Doc. p. 227).

[65] The fourth sentence of section 6 (a) provides that "Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties or their representatives." This provision merely restates a principle of good administration.

Practice Before Agencies. The last sentence of section 6 (a) provides that "Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency or in any agency proceeding." The question of the extent to which non-lawyers should be permitted to practice before administrative agencies was deliberately left to the determination of the various agencies, as, heretofore. House Hearings (1945) p. 34 (Sen. Doc. p. 80); H. R. Rep. p. 32 (Sen. Doc. p. 264).

More broadly, section 6 (a) leaves intact the agencies' control over both lawyers and non-lawyers who practice before them. The reports of the Senate and House Judiciary Committees contain expressions of opinion to the effect that, as to lawyers desiring to practice before an agency, the agency should normally require no more than a statement from a lawyer that he is in good standing before the courts. Sen. Rep. p. 19; H.R. Rep. p. 39. (Sen. Doc. pp. 205, 264). However, the legislative history leaves no doubt that the Congress intended to keep unchanged the agencies' existing powers to regulate practice before them. When the House Committee on the Judiciary held hearings in 1945 on H.R. 1203 (79th Cong., lst sess.) which, under the title of S. 7, was enacted as the Administrative Procedure Act, the Committee was specifically aware of the fact that H.R. 1203 contained no provision relating to attorneys practicing before agencies, while H.R. 339, and H.R. 1117, also pending before the Committee, contained such provisions. House Hearings (1945) p. 34 (Sen. Doc. p. 80). Finally, during the House debate on S. 7, Representative Kefauver offered the following amendment to section 6:

Any member of the bar who is in good standing and who has been admitted to the bar of the Supreme Court of the United States or of the highest court of the State of his or her residence shall be eligible to practice before any agency: Provided, however, That an agency shall for good cause be authorized by order to suspend or deny the right to practice before such agency.

The amendment was rejected by the House, apparently on the ground that the subject should be covered by separate legislation. 92 Cong. Rec. 5666-8 (Sen. Doc. pp. 401-405).

[66] It is clear, therefore, that the existing powers of the agencies to control practice before them are not changed by the Administrative Procedure Act. For example, an agency may exclude, after notice and opportunity for hearing, persons of improper character from practice before it, Goldsmith v. Board of Tax Appeals, 270 U.S. 117 (1926), or exclude parties or counsel from participation in proceedings by reason of unruly conduct, Okin v. Securities and Exchange Commission, 137 F. (2d) 398 (C.C.A. 2, 1943), or impose reasonable time limits during which former employees may not practice before the agency.

SECTION 6 (b)--INVESTIGATIONS

The first sentence of section 6 (b) provides that "No process, requirement of a report, inspection, or other investigative act or demand shall be issued, made, or enforced in any manner or for any purpose except as authorized by law." This is a restatement of existing law. Senate Comparative Print of June 1945, p. 11, Sen. Rep. p. 41 (Sen. Doc. pp. 27, 227).

The second sentence of subsection 6 (b) provides that "Every person compelled to submit data or evidence shall be entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony." Under this, any person compelled to submit data or evidence, either as a party or as a witness, must be accorded the right to retain copies of written data submitted in response to a subpena duces tecum or other demand, or, upon payment of lawfully prescribed costs, to procure from the agency a copy of the data thus submitted or a transcript of the oral testimony which he was required to give. This right, it will be noted, is limited to the data and evidence submitted by the particular witness, and does not entitle him to copies or transcripts of the data and evidence submitted by other persons. Moreover, it extends only to persons "compelled" to testify or to submit data, and not to those who are merely requested to do so or who do so voluntarily.

The right defined in the second sentence of section 6 (b) is subject to the limitation "That in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony." In the Committee reports, it is stated that this limitation was deemed necessary "where [67] evidence is taken in a case in which prosecutions may be brought later and it is obviously detrimental to the due execution of the laws to permit copies to be circulated." Sen. Rep. p. 19, H.R. Rep. p. 33 (Sen. Doc. pp. 205, 265). Thus, the phrase "nonpublic investigatory proceeding" covers all confidential phases of investigations, formal or informal, conducted by agencies to determine whether there have been violations of law. In such situations, the witness may be limited to inspection of such portions of the transcript of investigation as contain his own testimony. This right to inspect the transcript extends only to persons who have been compelled to testify.

SECTION 6 (c)--SUBPENAS

The first sentence of section 6 (c) provides that "Agency subpenas authorized by law shall be issued to any party upon request and, as may be required by rules of procedure, upon a statement or showing of general relevance and reasonable scope of the evidence sought." The purpose of this provision is to make agency subpenas available to private parties to the same extent as to agency representatives. Sen. Rep. p. 20, H.R. Rep. p. 33 (Sen. Doc. pp. 206, 265); 92 Cong. Rec. 5652 (Sen. Doc. p. 363). It applies to both subpenas ad testificandum and subpenas duces tecum. It should be emphasized that section 6 (c) relates only to existing subpena powers conferred upon agencies; it does not grant power to issue subpenas to agencies which are not so empowered by other statutes. Senate Comparative Print of June 1945, p. 14 (Sen. Doc. pp. 29-30).

The subsection requires the issuance of subpenas to any party "upon request and, as may be required by rules of procedure, upon a statement or showing of general relevance and reasonable scope of the evidence sought." It may be argued from the quoted language that agency subpenas must be issued merely upon request of a party unless the agency requires, by its published procedural rules, a "statement or showing of general relevance and reasonable scope of the evidence sought"; accordingly, each agency which is empowered to issue subpenas should issue rules of procedure stating the manner in which parties are to request subpenas and the contents of such requests. The standard of "general relevance and reasonable scope" should be interpreted and applied in the light of the statutory purpose of making administrative subpenas equally available to private parties and [68] agency representatives. (See the second sentence of section 12). On the other hand, agencies should consider that subpenas which it may issue to aid private parties, like subpenas issued to assist the agencies themselves, are subject to the legal requirements and limitations restated in the second sentence of section 6(c). Thus, agencies may refuse to issue to private parties subpenas which appear to be so irrelevant or unreasonable that a court would refuse to enforce them.

The right to subpenas stated in section 6 (c) is limited to "parties", as defined in section 2 (b). Accordingly, the right to administrative subpenas is applicable to parties to rule making, adjudication and licensing proceedings.

The Act is silent as to the responsibility for payment of fees to witnesses called by private parties pursuant to subpenas issued by an agency.(2) It was apparently thought that such a provision should be the subject of separate legislation. Senate Comparative Print of June 1945, p. 11 (Sen. Doc. p. 28). In view of this, it appears that the question of payment of witness fees may be dealt with by reasonable administrative regulations such as many agencies have already adopted.(3)

The second sentence of section 6 (c) provides that "Upon contest the court shall sustain any such subpena or similar process or demand to the extent that it is found to be in accordance with law and, in any proceeding for enforcement, shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under penalty of punishment for contempt in case of contumacious failure to comply." Upon its face, the subsection in requiring judicial enforcement of subpenas "found to be in accordance with law" is a reference to and an adoption of the existing law with respect to subpenas. For example, nothing in section 6 (c) seems intended to [69] change existing law as to the reasonableness and scope of subpenas. Similarly, the subsection leaves unchanged existing law as to the scope of judicial inquiry where enforcement of a subpena is sought. In Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943), the Supreme Court held that where the Secretary of Labor sought judicial enforcement of a subpena issued in a proceeding under the Walsh-Healey Public Contracts Act, the District Court was not authorized to determine whether the respondent was subject to that act, as a condition precedent to enforcement of the subpena. Accord, under the Fair Labor Standards Act, Oklahoma Press Publishing Company v. Walling, 327 U.S. 186 (1946). Nothing in the language of section 6 (c) suggests any purpose to change this established rule. It is said only that the court shall enforce a subpena "to the extent that it is found to be in accordance with law." "Law" refers to the statutes which a particular agency administers, together with relevant judicial decisions.

This natural and literal construction of the second sentence of section 6 (c) finds conclusive support in the legislative history of the provision. When S. 7 was introduced by Senator McCarran on January 6, 1945, section 6 (c) provided that "Upon any contest of the validity of a subpena or similar process or demand, the court shall determine all relevant questions of law raised by the parties, including the authority or jurisdiction of the agency." (Italics supplied). Clearly this language could be construed as intended to change the rule stated in Endicott Johnson Corp. v. Perkins, supra. However, when S. 7 was reported by the Senate Committee on the Judiciary on November 19, 1945 (Sen. Rep. p. 34 (Sen. Doc. p. 220) ), section 6 was rephrased in its present form. This significant change in language, as well as the natural and literal reading of section 6 (c), is persuasive that the subsection leaves unchanged the scope of judicial inquiry upon an application for the enforcement of a subpena. See also Sen. Rep. p. 41 (Sen. Doc. p. 227); 92 Cong. Rec. A2988 (Sen. Doc. p. 415).

SECTION 6 (d)--DENIALS

Section 6 (d) provides that "prompt notice shall be given of the denial in whole or in part of any written application, petition, or other request of any interested person made in connection with any agency proceeding. Except in affirming a prior denial or [70] where the denial is self-explanatory, such notice shall be accompanied by a simple statement of procedural or other grounds." This requirement relates to applications, petitions and requests made by "interested persons" in connection with any "agency proceeding", i.e., rule making, adjudication and licensing proceedings. It applies to such proceedings regardless of whether they are formal or informal. Sen. Rep. p. 20, H.R. Rep. p. 33 (Sen. Doc. pp. 206, 265). As in the case of section 4 (d), an "interested person" may be defined generally as one whose interests are or will be affected by the agency action which may result from the proceeding. It is clear that with respect to formal proceedings, the only interested persons are those who are "parties" to such proceedings within the meaning of section 2 (b).

Section 6 (d) has no application to matters which do not relate to rule making, adjudication or licensing. Generally, it is not applicable to the mass of administrative routine unrelated to those proceedings.

The prompt notice of denial required by section 6 (d) may be given in writing, addressed to the applicant, or orally (e.g., in the case of a proceeding conducted by an examiner). The required statement of grounds for denial, while simple in nature, must be sufficient to advise the party of the general basis of the denial.

Where the denial is self-explanatory or affirms a previous denial, it need not be accompanied by a statement of reasons; in such cases, it is assumed that the applicant has knowledge of the grounds for denial.

 1. The phrase "qualified representative", as used in the second sentence of subsection 6 (a), relates to non-lawyers whose appearance as representatives for others is left, as under the first sentence of the subsection, to the control of the agencies. See infra, pp. 65-6.

 2. Section 10 of the Act of August 2, 1946 (Public Law 600, 79th Cong., 2d sess.) provides that "Whenever a department is authorized by law to hold hearings and to subpena witnesses for appearance at said hearings, witnesses summoned to and attending such hearings shall be entitled to the same fees and mileage, or expenses in the case of Government officers and employees, as provided by law for witnesses attending in the United States courts."

 3. The following examples appear to be reasonable and appropriate:

Federal Power Commission--Rules of Practice Under the Federal Power Act.

Rule 1.131. "Fees of witnesses.--Witnesses who are summoned are entitled to the same fees as are paid for like services in the courts of the United States, such fees to be paid by the party at whose instance the testimony is taken, and the Commission before issuing subpoena may require a deposit of an amount adequate to covcr the fees and milage involved." [16 U.S.C. 825f].

Interstate Commerce Commission--Rules of Practice.

Rule 66(e). "Witness fees. A witness who is summoned and responds thereto is entitled to the same fee as is paid for like service in the courts of the United States, such fee to be paid by the party at whose instance the testimony is taken at the time the subpena is served." [49 U.S.C. 18].

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