20 summary suspension of a license may be ordered pending proceed21 ings for revocation or other action. These proceedings shall be 22 promptly instituted and determined.

COMMENT

In this revision of the Model State Administrative Procedure Act licensing has been specifically included among "contested cases" (see Section 1(2) and (3), and, in view of the widespread importance of the subject in state affairs, it would seem desirable to take notice of certain other facets of the matter. Hence this section is included. There is a corresponding provision in the Federal Administrative Procedure Act reading as follows:

"SEC. 9(b). In any case in which application is made for a license required by law the agency, with due regard to the rights or privileges of all the interested parties or adversely affected persons and with reasonable dispatch, shall set and complete any proceedings required to be conducted pursuant to sections 1006 and 1007 of this title or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety requires otherwise, no withdrawal, suspension, revocation, or annulment of any license shall be lawful unless, prior to the institution of agency proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee by the agency in writing and the licensee shall have been accorded opportunity to demonstrate or achieve compliance with all lawful requirements. In any case in which the licensee has, in accordance with agency rules, made timely and sufficient application for a renewal or a new license, no license with reference to any activity of a continuing nature shall expire until such application shall have been finally determined by the agency."

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SECTION 15. [Judicial Review of Contested Cases.]

(a) A person who has exhausted all administrative remedies 3 available within the agency and who is aggrieved by a final de4 cision in a contested case is entitled to judicial review under this 5 Act. This Section does not limit utilization of or the scope of 6 judicial review available under other means of review, redress, 7 relief, or trial de novo provided by law. A preliminary, procedural, 8 or intermediate agency action or ruling is immediately reviewable 9 if review of the final agency decision would not provide an ade10 quate remedy.

11 (b) Proceedings for review are instituted by filing a petition 12 in the [District Court of the County] within [30] 13 days after [mailing notice of] the final decision of the agency or, 14 if a rehearing is requested, within [30] days after the decision 15 thereon. Copies of the petition shall be served upon the agency 16 and all parties of record.

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(c) The filing of the petition does not itself stay enforcement 18 of the agency decision. The agency may grant, or the reviewing 19 court may order, a stay upon appropriate terms.

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(d) Within [30] days after the service of the petition, or 21 within further time allowed by the court, the agency shall transmit

22 to the reviewing court the original or a certified copy of the entire 23 record of the proceeding under review. By stipulation of all 24 parties to the review proceedings, the record may be shortened. 25 A party unreasonably refusing to stipulate to limit the record may 26 be taxed by the court for the additional costs. The court may 27 require or permit subsequent corrections or additions to the record. 28 (e) If, before the date set for hearing, application is made to 29 the court for leave to present additional evidence, and it is shown 30 to the satisfaction of the court that the additional evidence is 31 material and that there were good reasons for failure to present 32 it in the proceeding before the agency, the court may order that 33 the additional evidence be taken before the agency upon conditions 34 determined by the court. The agency may modify its findings and 35 decision by reason of the additional evidence and shall file that 36 evidence and any modifications, new findings, or decisions with 37 the reviewing court.

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(f) The review shall be conducted by the court without à jury 39 and shall be confined to the record. In cases of alleged irregulari40 ties in procedure before the agency, not shown in the record, proof 41 thereon may be taken in the court. The court, upon request, shall 42 hear oral argument and receive written briefs.

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(g) The court shall not substitute its judgment for that of the 44 agency as to the weight of the evidence on questions of fact. The 45 court may affirm the decision of the agency or remand the case 46 for further proceedings. The court may reverse or modify the 47 decision if substantial rights of the appellant have been prejudiced 48 because the administrative findings, inferences, conclusions, or 49 decisions are:

(1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency;

(3) made upon unlawful procedure;

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(5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

COMMENT

An important question that arises under subsection (a) is whether or not the review provisions should be made exclusive and all other review provisions on the statute books should be repealed. Each state will have to deal with this matter as the local circumstances dictate. On the one hand, if there is but one mode and scope of review, the state procedural structure is greatly simplified. On the other hand, local considerations, including practical considerations connected with obtaining adoption of the Model Act, may indicate or even require the retention, at least for the moment, of the pre-existing methods of judicial review.

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Two important changes are made in subsection (g) from the corresponding provisions in the original Model Act.

First, the "substantial evidence rule" has been replaced by the "clearly erroneous rule," thus following the recommendation of the Hoover Commission Task Force and the American Bar Association Special Committee on Legal Services and Procedure. This change places court review of administrative decisions on fact questions under the same principle as that applied under the Federal Rules of Civil Procedure in connection with review of trial court decision. See Rule 52(a). Also see United States v. US. Gypsum Company (1948), 333 U.S. 364, 68 Sup. Ct. 525, and Barron and Holtzoff, Federal Practice and Procedure, Par. 1133. This standard of review does not permit the court to "weigh" the evidence, or to substitute its judgment on discretionary matters, but it does permit setting aside "clearly" erroneous decisions. Certainly a clearly erroneous decision should not be permitted to stand.

Second, it should be noted that "clearly unwarranted exercise of discretion" has been specifically equated to "arbitrary action"-as it should be. A clearly unwarranted exercise of discretion should be set aside.

The following are the corresponding provisions of the Federal Administrative Procedure Act:

"SEC. 10. Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion

“(a) Right of Review.-Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.

"(b) Form and Venue of Action.-The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.

"(c) Reviewable Acts.-Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action. Except as otherwise expressly required by statute, agency action otherwise final shall be final for the purposes of this subsection whether or not there has been presented or determined any application for a declaratory order, for any form of reconsideration, or (unless the agency otherwise requires by rule and provides that the action meanwhile shall be inoperative) for an appeal to superior agency authority.

"(d) Interim Relief.-Pending judicial review any agency is authorized, where it finds that justice so requires, to postpone the effective date of any action taken by it. Upon such conditions as may be required and to the extent necessary to prevent irreparable injury, every reviewing court (including every court to which a case may be taken on appeal from or upon application for certiorari or other writ to a reviewing court) is authorized to issue all necessary and appropriate process to postpone the effective date of any agency action or to preserve status or rights pending conclusion of the review proceedings.

"(e) Scope of Review-So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms

of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error."

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[SECTION 16. [Appeals.] An aggrieved party may obtain a review of any final judgment of the [District Court] under this 3 Act by appeal to the [Supreme Court]. The appeal shall be taken as in other civil cases.]

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[SECTION 17. [Severability.] If any provision of this Act or 2 the application thereof to any person or circumstance is held in3 valid, the invalidity does not affect other provisions or applica4 tions of the Act which can be given effect without the invalid 5 provision or application, and for this purpose the provisions of 6 this Act are severable.]

SECTION 18. [Repeal.] The following acts and parts of acts are repealed:

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The preparation of this section will require careful and detailed work in each state. General repealers will ordinarily not suffice, and hence attention must be paid to each agency enabling act and the changes necessary therein.

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2 This Act takes effect ...

SECTION 19. [Time of Taking Effect and Scope of Application.] and (except as to proceedings 3 then pending) applies to all agencies and agency proceedings not 4 expressly exempted.

Mr. WHITENER. In section 11, on page 15, the bill provides:

The review of all administrative orders and decisions by the court shall be limited to such issues of law or fact as are subject to review on appeal under applicable statutory law, other than this Act.

Then it goes on to say:

In all other cases the review by the court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings.

I suppose that last statement refers to the general proposition that unless the administrative agencies have handed down an order which is incompatible with the evidence or is arbitrary or capricious, that the order stands?

Mr. SCANLAN. That is right.

Mr. WHITENER. What do you mean by the first part I referred to? Mr. SCANLAN. I think the first part you referred to takes into account, in the case of the public utilities commission, for example, the statute itself has certain requirements of judicial review and the precedents have grown up under that statute. It was the intention not to change that because Congress had spoken.

However, most of the reviews of the agencies of the District of Columbia take the form of the traditional equity action for an injunction. It is an injunction from the district court. As a matter of fact, all the appeals from the Board of Appeals and Review now go into the district court. So, the language you first mentioned would not affect that at all. If our bill came into play and were adopted, then those appeals would lie to the Court of Appeals of the District of Columbia. In reviewing decisions coming from the Board of Appeals and Review, the Court of Appeals of the District of Columbia would have to apply all the second party that you have mentioned; all these other standards. If you will look at those, you probably will recognize they are the traditional standards of judicial review found now in the Federal act and, to some extent, found in the model State act and traditionally applied by the courts. The courts have built up an expertise in this field, too. We have had a lot of experience at this, and I think generally the standards we spell out there in the latter part of section 11 are the traditional standards of judicial review. The problem of exhaustion of administrative remedies, all those doctrines are either expressly or impliedly incorporated in the statute.

Mr. WHITENER. You do not feel there is any language here which would substitute the court for the administrative agency as a factfinder or having the court act as jury overlooking the administrative agency in its role as jury and factfinder?

Mr. SCANLAN. No. I think again on page 16 we refer to and incorporate here the traditional substantial evidence rule. I do not think either the words or the spirit of this statute would substitute the court for administrative agencies as finders of the fact. As long as the agencies' findings rest on substantial evidence, as long as they are not arbitrary and capricious, as long as they do not rest on evidence which is not in the record, then I would say the agencies' findings would stand. Mr. WHITENER. You have here in the District certain administrative agencies which have extraterritorial jurisdiction. I believe the WMACT and others have such jurisdiction, have they not?