not subject to the formalized procedure specified by the APA. As a result, BVA cases are processed more expeditiously and at less cost to the taxpayer. For example, in fiscal year 1976, BVA took an average of 3 months to resolve cases which were appealed from the Veterans Administration regional office process. This is in contrast to the 10 months that BHA took to resolve the claims from its regional process.

The Veterans Administration maintains a number of regional offices throughout the United States, each having an adjudication division to handle the claims of veterans or their dependents. This division develops the record, holds a hearing if the claimant desires, and makes a decision on each claim. In instances where an adverse decision is made, there is a right to an appeal to the Administrator of Veterans Affairs. BVA, composed of panels of three individuals supported by seven or eight attorney advisors, processes each appeal. It processes about 25,000 to 30,000 appeals each year. decisions are final and not appealable to any court.

Its

Only 20 percent of the 750 ALJs responding to our guestionnaire believed the informal BVA system could be used to adjudicate SSA disability cases. The primary objection to its use was the provision that claimants could not appeal BVA's final decision. This lack of appeal right should not, however, foreclose using the Veterans Administration system. Modifications, including reinstatement of appeal rights, can readily be made to the system to make its use acceptable in other individual benefit type cases.

Guidelines for applying the APA

The former Chairman of CSC and others have expressed concern about the increased number of cases requiring formal adjudication and the lack of standards or parameters for the Congress to use in determining when the APA provisions should apply. In a letter to Senator Eastland, Chairman, Committee on the Judiciary, the former CSC Chairman Hampton expressed his concern about a recent "*** rather unusual departure from one of the fundamental concepts underlying enactment of the APA." He went on to state that during the first 20 years after passage of the APA, the number of regulatory agencies subject to its coverage did not change significantly, but that recently "* * the basic concept underly

ing APA and the lines that have limited the agencies (and the types of cases) subject to its provisions have become blurred * * *." In commenting on a tendency to extend provisions akin to those of the APA to a variety of new programs, the Chairman said:

"The language of the bills which have been of
particular concern to the Commission is undoubtedly
intended to insure that due process is extended to
all classes of claimants through fair hearing pro-
cedures. However, the basic procedural safeguards
which constitute due process do not require the
application of the APA to all types of administra-
tive hearings."

The former Chairman also noted that a proliferation of congressional committees now propose APA-oriented bills without any apparent overall coordination and that several recent statutes are unclear or ambiguous as to whether the proceedings should be conducted under APA provisions. He further added that this latter situation places the Commission in a untenable position. If it concludes erroneourly that ALJS are required by an agency, the Commission would contribute to overjudicialization. Conversely, a decision that ALJS are not required when in fact they are, could lead to readjudicating vast numbers of cases.

The Research Director of the Administrative Conference of the United States expressed similar concerns. He believes some cases now adjudicated formally by ALJS may not need the formality of the APA to provide due process, while others now adjudicated informally may need the additional formality. He believes this is a significant issue because criteria does not exist for the Congress to use in deciding when to apply formal APA provisions. He also noted that applying the APA to cases in which it is not needed is overjudicialization, which results in delays and higher costs than necessary to provide due process.

Too little formalization, on the other hand,

leads to inadequate due process protections.

The testimony of Robert G. Dixon, Jr., Professor of Law at Washington University of St. Louis, Mo., before the Subcommittee on Social Security, House Committee on Ways and Means, on September 26, 1975, is further indication of the problem. He stated:

* * The handling of benefits and awards to millions of people is a feature of the welfare state unknown to past generations and not well-handled simply by applying the highly formalized procedures of the ICC and other regulatory agencies. We need a fresh approach to procedure and to concepts of basic fairness in this developing era of mass justice. A tendency simply to expand the coverage of the old Administrative Procedure Act is not the answer."

Professor Dixon went on to quote Judge Henry J. Friendly of the Second Circuit, U.S. Court of Appeals, who said:

"As government impinges more and more upon the
citizen and the citizen demands more and more
from the government, our traditional systems of
adversary administrative hearings and full-scale
judicial review has become unworkable. If we per-
sist in it, the country will become ungovernable.
Yet we cannot abandon it without devising substi-
tutes that will assure the citizen, not of perfec-
tion but of reasonable fairness."

Professor Dixon concluded:

"It is time for the Congress, with all the aid
it can muster, to rise above the traditional
piecemeal approach to welfare benefit determina-
tion, and applications of the Administrative
Procedure Act, and grade assignments for hearing
officers, and engage in new thinking and tidying
up."

Effect of a lack of guidelines

The lack of guidelines or criteria has resulted in (1) a significant increase in the number and types of cases subject to formal APA adjudication, (2) an increase in the number of ALJS required to hear them, and (3) extensive delays. For example, in 1947, 15 agencies employed 196 ALJS, while in April 1977, 28 agencies employed 826 permanent and 199 temporary ALJS. Most of the increase is attributed to SSA, which employs more than 615 ALJS--over half the total.

The number of ALJS is continuing to increase. CSC, in November 1977, was acting on requests for ALJs from SSA (105), Labor (3), the Interior (5), and the International Trade Commission (1). While NLRB has not yet made a formal request, it is seeking 30 more ALJS to handle its increasing workload. Further, the Congress has increased the number of supergrade ALJ positions by 100, and statutes have been enacted creating the Federal Energy Regulatory Commission and the Federal Coal Mine Health and Safety Commission. Both statutes will require more formal adjudications and more ALJs. Other major programs enacted since 1970, which require formal hearings and appointment of ALJS include occupational safety and health cases, consumer product safety cases, longshoremen and harbor workers compensation cases, and water pollution cases.

The following table showing the number of requests for hearings at SSA is further indication of the growth in the number of cases being formally adjudicated.

The increased number of cases subject to formal APA adjudication coupled with the limited agency resources to process such cases will inevitably lead to even greater administrative cost and delays unless steps are taken to simplify the process. As stated by Professor Dixon during his congressional testimony (see p. 22):

"There is a need for Congress to give more attention
to the significant difference between the adjudica-
tion to benefit claims, where the intake numbers mil-
lions per year, and the older and more familiar type
of regulatory administration exemplified by the Inter-
state Commerce Commission and later independent commis-
sions. Our perceptions of the administrative process,
of administrative laws, and of the proper content of
the Administrative Procedure Act have been drawn almost
exclusively from the leisurely, low-volume, high visi-
bility, rich-litigant world of regulatory administra-
tion.

"We have all heard the expression: 'you get the
justice you pay for.' The unspoken premise is that
in a properly organized society there would be
enough resources to pay for all the justice desired.
Only when pushed as we are being pushed, I suggest,
in the rapidly expanding field of claim adjudication,
do we begrudgingly face the question: how nearly
judicial should administrative claims determination
be? Is it feasible to give every one of the millions
of claimants annually in the programs I have mentioned
an attorney, a full evidentiary hearing, an adminis-
trative appeal, and court review? Indeed, is it

necessary, in order to achieve an acceptable level of accuracy and consistency in treatment of similar claimants? An even more serious question is whether such high formality does achieve the virtues of accuracy and consistency among claimants. The answer is no, according to some provocative evidence I gathered for my book, Social Security Disability and Mass Justice: A Problem in Welfare Adjudication (Praeger, 1973).

"And yet, despite the problems and doubts suggested by this series of questions, I feel that it is the high-formality model developed for regulatory administration, and sanctified by the Administrative Procedure Act, which many feel to be part of the American birthright for all benefit program claimants against the government. I number here the American Bar Association, the so-called Public Interest Group firms, and private-client-oriented lawyers generally. I too, have a thirst for perfection. But resources of both time and talent are not in infinite supply."