Senator ERVIN. You haven't answered my question, and the question, I submit, with all due deference, is comparatively simple. I asked if under the methods of procedure established by the first sentence of section 604 of rewritten title VI, would not the findings of fact of the agencies in many cases be given artificial weight and the aggrieved party denied the right to a trial de novo upon the whole facts and the law?

Attorney General KENNEDY. Well, when you say "artificial," it would be given the weight that Congress has determined it should be given, Senator.

Senator ERVIN. Read my question to him. I wish you would listen to it.

Attorney General KENNEDY. Very well, Senator.

(Question read.)

Attorney General KENNEDY. Do you want to read my answer? (Answer read.)

Senator ERVIN. I respectfully submit, Mr. Attorney General, that is no answer. You have said given the weight Congress has specified. I am asking what weight Congress has specified in some of these distorted procedures

Attorney General KENNEDY. When you said it was artificial weight, I wanted to establish the fact that your definition of artificial is the procedure established by Congress in dealing with these particular programs. I think I answered the question.

Senator ERVIN. To put it a little simpler, don't you know Congress has specified in some of these instances that the findings of fact made by the agency or the department shall be binding upon the court when it reviews them if such findings are supported by any evidence? Attorney General KENNEDY. I understand that.

Senator KEATING. Will the Senator yield on that point?

Senator ERVIN. Yes.

Senator KEATING. Mr. Chairman, I have asked the Legislative Reference Service to furnish a list of the judicial review provisions of the Federal grant-in-aid statutes. In order that we may know what we are discussing here, I suggest that the Federal review sections of these various statutes be inserted at this point in the record.

The CHAIRMAN. It may be.

Senator ERVIN. I would certainly have no objection, because I think they would give a good deal of elucidation to what the Attorney General said in discussing section 604.

(The material referred to follows:)

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[Excerpts from title 20, United States Code]
PRACTICAL NURSE TRAINING PROGRAM

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(d) Appeals; Commissioner's findings; jurisdiction; Supreme Court review. (1) If any State is dissatisfied with the Commissioner's action under subsection (c) of this section, such State may appeal to the United States court of appeals for the circuit in which the State is located. The summons and notice of appeal may be served at any place in the United States.

(2) The findings of fact by the Commissioner, unless substantially contrary to the weight of the evidence, shall be conclusive; but the court, for good cause shown, may remand the case to the Commissioner to take further evidence, and the Commissioner may thereupon make new or modified findings of fact and may modify his previous action. Such new or modified findings of fact shall likewise be conclusive unless substantially contrary to the weight of the evidence.

1

(5) The court shall have jurisdiction to affirm the action of the Commissioner or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28. (Aug. 1, 1946, ch. 725, title II, § 203, as added Aug. 2, 1956, ch. 871, title III, § 301, 70 Stat. 926.)

AREA VOCATIONAL TRAINING PROGRAM

(d) Appeals; Commissioner's findings; jurisdiction; Supreme Court review. (1) If any State is dissatisfied with the Commissioner's action under subsection (c) of this section, such State may appeal to the United States court of appeals for the circuit in which such State is located. The summons and notice of appeal may be served at any place in the United States. The Commissioner shall forthwith certify and file in the court the transcript of the proceedings and the record on which he based his action.

(2) The findings of fact by the Commissioner, unless substantially contrary to the weight of the evidence, shall be conclusive; but the court, for good cause shown, may remand the case to the Commissioner to take further evidence, and the Commissioner may thereupon make new or modified findings of fact and may modify his previous action, and shall certify to the court the transcript and record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive unless substantially contrary to the weight of the evidence. (3) The court shall have jurisdiction to affirm the action of the Commissioner or to set it aside, in whole or in part. The judgment of the court shall be subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28. (Aug. 1, 1946, ch. 725, title III, § 305, as added Sept. 2, 1958, Pub. L. 85-864, title VIII, § 802, 72 Stat. 1599.)

PUBLIC LIBRARY SERVICES FOR RURAL AREAS PROGRAM

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§ 356. Withholding of payments; notice and hearing; judicial review.

If the Commissioner finds after reasonable notice and opportunity for hearing to the State agency administering or supervising the administration of the State plan approved under this chapter, that the State plan has been so changed that it no longer complies with the requirements of this chapter or that in the administration of the plan there is a failure to comply substantially with the provisions required to be included in the plan, he shall notify such State agency that further payments will not be made to the State under this chapter until he is satisfied that there is no longer any such failure to comply. Until he is so satisfied, he shall make no further certification to the Secretary of the Treasury with respect to such State: Provided, That any State or State agency is entitled to judicial review in the United States District Court wherein the State or State agency is located of any such withholding determination in accordance with applicable provisions of the Administrative Procedures Act. (June 19, 1956. ch. 407, § 7, 70 Stat. 295.)

NATIONAL DEFENSE EDUCATION PROGRAM

§ 585. Judicial review.

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(a) If any State is dissatisfied with the Commissioner's final action with respect to the approval of its State plan submitted under this Act, or with respect to his final action under section 584 (c) of this title, such State may, within sixty days after notice of such action, file in the United States district court for the district in which the capital of the State is located, a petition to review such action. The petition for review shall (1) contain a concise statement of the facts upon which the appeal is based and (2) designate that part of the Commissioner's decision sought to be reviewed.

(b) Notification of the filing of the petition for review shall be given by the clerk of the court by mailing a copy of the petition to the Commissioner. (c) No costs or docket fees shall be charged or imposed with respect to any judicial review proceedings, or appeal therefrom, taken under this Act.

1 So in original. Probably should be "(3)".

(d) Upon receipt of the petition for review the Commissioner shall, within twenty days thereafter, certify and file in the court the record on review, consisting of the complete transcript of the proceedings before the Commissioner. No party to such review shall be required, by rule of court or otherwise, to print the contents of such record filed in the court.

(e) The court after review may dismiss the petition or deny the relief prayed for, or may suspend, modify, or set aside, in whole or in part, the action of the Commissioner, or may compel action unlawfully withheld. The judgment of the court shall be subject to review as provided in section 1291 and 1254 of Title 28. (Pub. L. 85-864, title X, § 1005, Sept. 2, 1958, 72 Stat. 1604.)

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SCHOOL CONSTRUCTION IN AREAS AFFECTED BY FEDERAL ACTIVITIES

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§ 641. Withholding of payments for noncompliance; judicial review of Commissioner's action in disapproving applications or withholding payments. (a) Whenever the Commissioner of Education, after reasonable notice and opportunity for hearing to a local educational agency, finds (1) that there is a substantial failure to comply with the drawings and specifications for the project, (2) that any funds paid to a local educational agency under this chapter have been diverted from the purposes for which paid, or (3) that any assurance given in an application is not being or cannot be carried out, the Commissioner may forthwith notify such agency that no further payment will be made under this chapter with respect to such agency until there is no longer any failure to comply or the diversion or default has been corrected or, if compliance or correction is impossible, until such agency repays or arranges for the repayment of Federal moneys which have been diverted or improperly expanded.

(b) The final refusal of the Commission to approve part or all of any application under this Act, and the Commissioner's final action under subsection (a) of this section, shall be subject to judicial review on the record, in the United States court of appeals for the circuit in which the local educational agency is located, in accordance with the provisions of the Administrative Procedure Act. (Sept. 23, 1950, ch. 995, § 11, as added Aug. 12, 1958, Pub. L. 85-620, title I, § 101, 72 Stat. 554.) [Excerpt from title 29, United States Code]

VOCATIONAL REHABILITATION SERVICE FOR PERSONS INJURED IN
INDUSTRY PROGRAM

(d) Judicial review.

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If any State is dissatisfied with the Secretary's action under subsection (c) of this section, such State may appeal to the United States district court for the district where the capital of such State is located and judicial review of such action shall be on the record in accordance wtih the provisions of the Administrative Procedure Act. (June 2, 1920, ch. 219, § 5, 41 Stat. 736; June 30, 1932, ch. 324, § 3, 47 Stat. 450; July 6, 1943, ch. 190, § 1, 57 Stat. 377; Aug. 3, 1954, ch. 655, § 2, 68 Stat. 656.)

(b) (1) If the Surgeon General refuses to approve any application under section 291h or 291v of this title the State agency through which the application was submitted, or if any State is dissatisfied with the Surgeon General's action under subsection (a) of this section, such State may appeal to the United States court of appeals for the circuit in which such State is located by filing with such court a notice of appeal. The jurisdiction of the court shall attach upon the filing of such notice. A copy of the notice of appeal shall be forthwith transmitted by the clerk of the court to the Surgeon General, or any officer designated by him for that purpose. The Surgeon General shall thereupon file in the court the record of the proceedings on which he based his action, as provided in section 2112 of title 28.

FEDERAL OLD AGE AND SURVIVORS' INSURANCE PROGRAM

(g) Review.

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court shall, on motion of the Secretary made before he files his answer, remand the case to the Secretary for further action by the Secretary, and may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or its decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.

UNEMPLOYMENT COMPENSATION FOR FEDERAL EMPLOYEES PROGRAM

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(c) Hearings for denied claims.

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守

Any Federal employee whose claim for compensation under subsection (a) or (b) of this section has been denied shall be entitled to a fair hearing in accordance with regulations prescribed by the Secretary. Any final determination by the Secretary with respect to entitlement to compensation under this section shall be subject to review by the courts in the same manner and to the same extent as is provided in section 405 (g) of this title with respect to final decisions of the Secretary of Health, Education, and Welfare under subchapter II of this chapter. TEMPORARY UNEMPLOYMENT COMPENSATION PROGRAM

(c) Review of denial of benefits.

Any individual referred to in subsection (b) of this section whose claim for temporary unemployment compensation under this chapter has been denied shall be entitled to a fair hearing and review as provided in section 1363 (c) of this title. (Pub. L. 85-441, title I, § 103, June 4, 1958, 72 Stat. 173.)

(b) Venue; limitations; process; jurisdiction; amount in controversy. Upon disallowance of any claim against the Administrator under color of any insurance or reinsurance made available under this chapter, or upon refusal of the claimant to accept the amount allowed upon any such claim, the claimant may

institute an action against the Administrator on such claim in the United States district court in which a major portion (in terms of value) of the insured property is located. Any such action must be begun within one year after the date upon which the claimant receives from the Administrator written notice of disallowance or partial disallowance of the claim. For the purposes of this section, the Administrator may be sued and he shall appoint one or more agents within the jurisdiction of each United States district court upon whom service of process can be made in any action instituted under this section. Exclusive jurisdiction is conferred upon all United States district courts to hear and determine such actions without regard to the amount in controversy. (Aug. 7, 1956, ch. 1025, § 14, 70 Stat. 1083.)

Senator ERVIN. Why should the bill not establish a fair procedure of judicial review for the person aggrieved like it does for the Federal Government?

Attorney General KENNEDY. What we attempted to do is to follow the procedure that has been established by Congress.

Senator ERVIN. The procedures established at the instance of some of the agencies hog-tie adverse litigants and deny adverse litigants a trial de novo upon the facts and law in a court where fair trial procedures prevail.

Attorney General KENNEDY. I would think that is something Congress can take up if it feels as you do, Senator.

I don't know if it is that unfair, but this is something that has been established by Congress. If Congress has been bulldozed into doing that by various Government agencies; I am not aware of that.

Senator ERVIN. Am I to understand that the Department of Justice and administration are unwilling to let section 603 apply to individuals aggrieved just as it applies to the Government?

Attorney General KENNEDY. If I could obtain your support for the bill, I think we could accept that modification, Senator.

Senator ERVIN. I would not give my support to a bill that would permit such governmental tyranny as this bill would permit.

Attorney General KENNEDY. If we change that section of the bill, will you support the bill?

Senator ERVIN. No, I will not. There are too many other bad provisions in it. There are too many legal and commonsense inequities in other provisions of the bill. But that change would be an improvement in the bill. It would show at least that the Justice Department thinks that justice ought to be administered by the same procedures in respect to the parties aggrieved as would be with respect to the Government.

If it should pass this bill, could Congress anticipate that among the regulations issued, there would be some similar to the regulations issued by the district engineer's office of the Corps of Engineers at New Orleans, La., with respect to employment?

Attorney General KENNEDY. I have no idea, Senator. What group is that?

Senator ERVIN. It is one of the agencies of the Federal Government, the U.S. Army Engineer district, the Corps of Engineers in New Orleans.

Attorney General KENNEDY. I am not familiar with the regulations. Senator ERVIN. Let me read it to you. On the 24th day of January, 1963, this agency issued what it called an equal employment opportunity directive to "secure equal employment opportunity consistent