Mr. STEIGER. I hope you will have the opportunity, but in his testimony, he indicated there is only one possible determination of section 1631(d) (2) and that the Civil Service Commission and the Department of Justice fully subscribe to that determination.

I would like to ask whether it would be fair to call that an overstatement of the opinion you rendered on this subject 2 years ago?

As I recall your opinion, you said that, yes, there were policy reasons for what the Civil Service Commission did, but solely on legal grounds, it is obvious that it would be safest to act on the assumption that 1631(d) (2) only allows the Secretary to bypass "under the circumstances stated."

I thought you asked this be submited to Congress for some clarification. Would you comment?

Mr. DIXON. I would comment in this way: I would, I believe, stand on what was said in the document you referred to 2 years ago when I was serving as Assistant Attorney General, and my recollection is that on the legal question, our conclusion was that there was an ambiguity in the statue, and the legislative history. There also was language about power of the Secretary of HEW, after making a certain finding of need, to appoint hearing examiners outside the APA-Civil Service process, and our conclusion was that given the ambeguity and that exception clause, he had power to go either way.

The Civil Service Commission, I believe, was pleased that we did not say that the Secretary had no power to appoint outside the APA. Others were displeased that we did not say that he had power to appoint only through the APA.

We had said, in effect, that given the conditions, he had power to appoint and conduct hearings without using the APA certification process.

so if you

Mr. STEIGER. I hope you will have a chance to read the statement, and as a matter of fact, staff will be sure you get it, have any further comments on it, I would be grateful. Mr. DIXON. I will read what I said 2 years ago, and also that document.

Mr. STEIGER. I think we owe this panel a great debt of gratitude. They must be the longest running panel in the recent history of the House. I don't remember quite having had the kind of interruptions that we have had, and I therefore will not go into questions that I would like to, because of your time constraints and ours. But I am deeply grateful to you.

Mr. BURKE. Are there any further questions?

On behalf of the committee, we wish to thank the entire panel for your appearance and your contribution. You have been very patient, as Mr. Steiger pointed out. We regret the interruptions.

Thank

you for

your appearances. Mr. DIXON. Thank you.

Mr. BURKE. Our next group is a joint appearance of four witnesses, a distinguished former colleague of ours, Mr. Albert Watson, president, Association of HEW Administrative Law Judges, Columbia, S.C.; Morris H. Kross, president, Association of SSI Hearing Examiners, Kansas City, Mo.; Jack R. Reed, chairman, Black Lung Administrative Law Judges Association, Knoxville, Tenn.; and William

Fauver, President, Federal Administrative Law Judges Conference, Arlington, Va.

We welcome the committee. Once we get your name plates in place, we will proceed.

A PANEL CONSISTING OF ALBERT W. WATSON, PRESIDENT, ASSOCIATION OF HEW ADMINISTRATIVE LAW JUDGES, COLUMBIA, S.C.; MORRIS H. KROSS, PRESIDENT, ASSOCIATION OF SSI HEARING EXAMINERS, KANSAS CITY, MO.; JACK R. REED, CHAIRMAN, BLACK LUNG ADMINISTRATIVE LAW JUDGES ASSOCIATION, KNOXVILLE, TENN.; AND WILLIAM FAUVER, PRESIDENT, FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE, ARLINGTON, VA.

Mr. BURKE. I think we will go in the order that you appear on our schedule. We will hear first from our former colleague whom we welcome back to Washington.

We recognize, you, Mr. Watson.

STATEMENT OF HON. ALBERT W. WATSON

Mr. WATSON. Thank you, Mr. Chairman, and members of the subcommittee. Let me say that I appreciate your position, and the problem of the mental exercise that you have to go through, but additionally the physical exercise that you have had in running back and forth trying to meet the various rollcalls that you have tried to meet since we commenced the proceedings here this morning.

While I shall always cherish the honor of serving in your august body for 8 years, I deeply appreicate this opportunity to appear before you and give you the benefit of my experience as an administrative law judge for the past 3 years and, more specifically, testify_as president of the Administrative Law Judges' Assoication in the Department of Health, Education, and Welfare. In preparation for this hearing, I studied your staff reoprt on the problem before us, and let me commend them for an exceptionally fine work which is well researched and reflects a most comprehensive knowledge of the hearings and appeals process.

Let me say initially that, although we administrative law judges are naturally concerned about our own personal welfare, I sincerely believe that any selfish interest in this particular matter has been subordinated to the overall best interests of the claimant and individual citizen whom both of us seek to serve. Also, I would be less than candid if I did not say that I have some reservations about some of the provisions of the various pieces of legislation before your committee, even H.R. 8018 which our Association strongly supports. In that regard, I personally thought that some of the provisions of this particular piece of legislation were more properly subjects of administrative regulation and policy rather than legislation; but, quite frankly, it appears that accomplishment of these changes is very difficult administratively. While initiatives have been taken to effectuate some of the objectives of this bill, we still urge your favorable consideration

First, let me say that while some, for reasons best known to themselves, persist in questioning the APA status of the hearings being conducted by the administrative law judges in the Department of HEW, I shall not infringe upon your time nor insult your intelligence by dwelling at length on that issue. You have heard an eloquent discussion on that by the professors here who preceded us. Suffice it to say that in the passage of the Administrative Procedure Act itself in 1946 Congress specifically provided that all agencies not expressly exempted are covered, and nowhere have those who question the applicability of the APA to SSA and SSI cases cited any legislative exemption whatsoever.

Even were that provision of law not clear enough, it has been reinforced by your committee which has reaffirmed that coverage in both committee reports and in the legislative history on the bills. Additionally, the Attorney General's Manual of 1947 made it very clear that we were included in the provisions of the Administrative Procedure Act. Therefore, I would never be so bold as to question either your intent or your wisdom in the inclusion of our proceedings under the Administrative Procedure Act, and I know that you will require definitive authority and justification from those who would exclude us. While I have no doubts, specific language in one of the bills would put that issue to rest once and for all.

Furthermore, may I respectfully suggest that, while some have recommended the use of non-APA-certified administrative law judges as advantageous from either a managerial or a strictly dispositive standpoint, they disregard the guarantees of the APA. Certainly their recommendation is not tempered with the common bond a Congressman and an administrative law judge share; namely, a vis-a-vis relationship with the claimant. We both face the claimant directly, you in the election process and we in the hearing and decisional process. Therefore, others, regardless of how well intentioned, may theorize on solutions from an administrative or managerial standpoint, but only you and we have been in the trenches, so to speak, and most importantly, only you and we must return to face the flak from the action taken in this matter. No doubt, using non-APA-certified judges would increase production, as would the use of a clerk in a mass justice assembly line scheme. However, assembly line justice is not justice, and both the law and equity demand a full APA hearing with an APA judge. We should all remember that there is only one thing worse than justice delayed and that is justice denied.

Another important point will be considered by you, I know. Since our claimants are individual citizens, unorganized and often uneducated, their right to have their case heard by a fully independent administrative law judge, duly qualified under the Administrative Procedure Act, could be compromised or perhaps even denied altogether without the protest one would ordinarily expect from well organized and financed corporate interests faced with the same prospect. But these citizens deserve just as fair a hearing, with ALJ's just as qualified, as any corporation, and I know you gentlemen well enough to believe that you will insure that the individual claimants receive no less, despite their lack of organization and resources. With the passage of the Administrative Procedure Act in 1946, the Congress wisely ended the era of the agency-controlled circuit rider with his Washing

ton-dictated decision, and I know Congressmen of your dedication will not permit a return of any system-be it only temporary-which would deprive the individual of those rights which are accorded a corporation under the APA. That some would suggest a distinction because of the dollar value difference is unconscionable. Although the projected monetary value of a social security disability case is in excess of $50,000, who is to say that even a $250 monthly payment to a claimant to sustain his family is not equal in importance to the thousands at stake for a corporation.

In appealing to you gentlemen to refrain from taking any action which would do irreparable violence to the APA, and more importantly, would compromise the rights of the individual American claiming benefits under social security, may I add that we ALJ's feel the direct impact of the current delays being encountered in the decisional process much more dramatically than anyone other than you and the claimant. The claimant is no statistic to us; he is an individual, and he is generally an individual in need. While we lack the direct continuing contact with them as you who serve them in the Halls of Congress, we do face the claimant personally in the hearing and indirectly in the decisional process. Our sensitivities to their problems and needs are certainly more intimate and personal than some of those who today are advocating a compromise in the hearing process with less than fully qualified administrative law judges to conduct the hearing and render the decision. We face the claimant; we hear his testimony and that of his supporting witnesses, and then we wrestle with a decision in the light of the law and regulations. Certainly these direct pressures upon us are far greater and make us more sensitive to the claimant's best interests than the pressures on those who sit in an administrative capacity and are therefore insulated from the claimant. In making that statement, we are not finding fault with anyone, but are merely setting forth our respective vantage points in an effort to assist you in an equitable resolution of this problem. We ALJ's are deeply concerned, as you are deeply concerned, with the problems of management. But at the same time we are unapologetic in saying that our paramount concern is the preservation of the rights of the individual claimant under the Administrative Procedure Act. To do otherwise than support that preservation would be a dereliction of our responsibility under the law, a breach of our oaths of office as administrative law judges, and most importantly, a callous disregard for the rights of our fellow citizens.

Well do I realize that you have manifold problems confronting you, of which this is only one, and in the minds of some perhaps one of the less important ones. Nevertheless, let me say that I personally have labored long and hard over this problem, earnestly trying to project myself into your position inasmuch as I was honored to serve with you for some 8 years.

Mr. BURKE. I do not want to interrupt you, Mr. Watson, but this is a regular quorum call, so I think for the convenience of the rest of the hearing, we will transfer the hearing to H-208 so we will be able to vote on the House floor. It will not take us so long to go back and forth.

[Whereupon, the hearing was recessed, to reconvene in room H-208, the Capitol.]

Mr. BURKE. The subcommittee will come to order.

Mr. Watson, you may proceed.

Mr. WATSON. I will continue with my statement. Despite protestations from many ALJ's, I honestly believe that our responsibility as administrative law judges is not just to oppose the proposed granting of temporary authority as contained in H.R. 8911, which we believe would be a diminution and erosion of the hearing process for individual Americans, but frankly, to support alternatives in the light of our experiences. Since I earlier contended that we regular ALJ's are in the best position to know the hearing problems confronting all SSA claimants, its naturally follows that we should be in the best position to recommend reasonable solutions. In that regard, we support H.R. 8018 and companion bills which were authored initially by Congressman Sisk.

As stated earlier, I would not be so presumptive as to suggest that this is a perfect solution, but this legislation does provide for a reduction in the time frame within which hearings will be held, give the claimant the factual and legal basis upon which his claim is denied, set forth reasonable grounds for basing an appeal, at the least, it provides a basic framework upon which you and your committee staff can formulate final legislation. Furthermore, it provides for parity of pay for all ALJ's appointed under the APA. I say without reservation that those ALJ's who conduct the hearings and, indeed, decide the well-being of individual Americans, are personally entitled to the same pay as those who decide corporate matters. This is particularly true in light of the equities of the matter, the difficulties of the various jobs, and the fact that all ALJ's must meet the same qualifications of written and oral examination and legal experience. There is no legal or equitable justification for the difference in pay, and to perpetuate the present inequity of salary, despite precisely the same qualifications, is not so much an insult to the ALJ as to the claimant, which certainly was never intended by the Congress.

The question was raised earlier about why we were unable to get ALJ's insert areas. We lose ALJ's every day from our agency to other agencies that offer them GS-16's, so we are unable to compete.

Also, I would underscore that this request is made of you on the basis of fairness and equity.

As I reiterate and underscore our opposition to the enactment of section 3 of H.R. 8911, the temporary appointment provisions of that bill, may I add that, even if this bill should be passed, it would still not obviate the need for passage of H.R. 8018. They are not mutually exclusive. May I strongly suggest that should you decide to move forward with H.R. 8911, and without deletion of section 3 thereof, that you could somewhat vitiate the adverse impact of that legislation by incorporating therein the provisions of H.R. 8018. To do otherwise, in my humble judgment, would indicate a subordination of equity to expediency and, more importantly, would be construed as placing a higher value on corporate rights than on individual rights— neither of which any of you desire or would consciously permit. Might I say that there is no argument between our association and other associations of hearing examiners. Frankly, we are all trying to do the same job. So far as we are concerned, those who may have suggested that we are trying to keep our ranks exclusive, we have