1See statements of Carl McFarland,
Chairman of the Committee on Administrative Procedure of the American Bar Association, in House
Hearings (1945) pp. 37-39 (Sen. Doc. pp. 83-84), and of the Attorney General in Sen. Rep. pp. 38.
41 (Sen. Doc. pp. 224, 229) ; 92 Cong. Rec. A2982 (Sen. Doc. pp. 406-407).
2Recognizing the delicacy of this
problem and the obligation of Government counsel to render every assistance to the courts in this
task, the Attorney General has established a committee within the Department of Justice to assist in
developing a uniform approach to the problems which arise in litigation.
3See section 12 of the Act as to the
effective dates of the various provisions of the Act.
4As S. 7 was introduced in the Senate
in January 1945, the introductory phrase of section 30 read "Except (1) so far as statutes
expressly preclude Judicial review". [Italics supplied]. As reported in its present form by the
Senate Committee on the Judiciary, the word "expressly" was omitted. This omission
provides strong support for the conclusion that the courts remain free to deduce from the statutory
context of particular agency action that the Congress intended to preclude judicial review of such
action.
5This conclusion is supported by the
following statement in the Senate Comparative Print, p. 18 (Sen. Doc. p. 36): "The
introductory exceptions state the two present general or basic situations In which judicial review is
precluded-where (1) the matter is discretionary or (2) statutes withhold judicial
powers." [Italics supplied].
6Compare original provision of S. 7
as introduced in the Senate: "Any person adversely affected by any agency action hall be
entitled to judicial review thereof in accordance with this section."
7See section 9 of the Securities Act
(15 U.S.C. 77i), "any person aggrieved"; section 402(b) (2) of the Communications Act
(46 U.S.C. 402), "person aggrieved or whose interests are adversely affected"; section
1006 of the Civil Aeronautics Act (49 U.S.C. 646). "person disclosing a substantial interest
in such order".
8See American Stevedores, Inc.
v. Porello, 320 U.S. 446 (1947).
9See section 5(c) of the Federal Trade
Commission Act (15 U.S.C. 45(c)); section 9 of the Securities Act (15 U.S.C. 77i); and section 701
of the Federal Food Drug and Cosmetic Act (21 U.S.C. 371(f)).
10"The expression 'special
statutory review' means not only special review proceedings wholly created by statute, but so-called
common-law forms referred to and adopted by other statutes and the appropriate mode of review in
given cases." Sen. Rep. p. 26; H.R. Rep. P. 42 (Sen. Doc. PP. 212. 276).
11For other examples, see 28
U.S.C. 43 for venue of suits to enjoin orders of the Interstate Commerce Commission, section
1006(b) of the Civil Aeronautics Act (49 U.S.C. 646(b)), and section 21 of the Longshoremen's and
Harbor Workers' Compensation Act (33 U.S.C. 921).
12The Senate Committee charged
the last phrase of the provision from "Provided by statute" to "provided by
law". See also Senate Comparative Print, June 1945, P. 18 (Sen. Doc. p. 87). stating that
"The second sentence states the present rule as to enforcement proceedings." See
Representative Walter's statement to the House, 92 Cong. Rec. 5654 (Sen. Doc. p. 369):
"These provisions summarize the situation as it is now generally understood. The section does
not disturb special proceedings which Congress has provided, nor does it disturb the venue
arrangements under existing law."
13See section 204(d) of the
Emergency Price Control Act of 1942.
14See also Walling v.
Cohen, 48F. Supp. 859 (E.D. Pa. 1941), affirmed 140 F. 2d 453 (C.C.A. 3, 1944) under
the Fair Labor Standards Act, and Piuma v. United States 126 F. 2d 601 (C.C.A. 9, 1942),
certiorari denied, 317 U.S. 637. under the Federal Trade Commission Act.
15In the Attorney General's
memorandum to the Senate Committee, he stated that "'Courts' includes the Tax Court. Court
of Customs and Patent Appeals. the Court of Claims. and similar courts. This act does not apply to
their procedure nor affect the requirement of resort thereto." Sen. Rep. P. 38 (Sen. Doc. p.
224).
17This conclusion is corollary to
the following statement made with respect to section 10(d): "This section permits either
agencies or courts, if the proper showing be made, to maintain the status quo. While It would not
permit a court to grant an initial license, it provides Intermediate judicial relief for every other
situation in order to make judicial review effective." Sen. Rep. p. 27, H.R. Rep. p. 43 (Sen.
Doc. pp. 213, 277),
18This distinction and the
Congressional intent with respect to it are clearly illustrated by the fact that when S. 7 was
Introduced in the Senate, it read: "to the extent necessary to preserve status or rights, afford
an opportunity for judicial review of any question of law or prevent irreparable
injury." [Emphasis supplied]
19This was the holding in
Avon Dairy Company v. Eiseman, 69 F. Supp. 500 (N. D. Ohio. 1946).
20See also Rule 65 of the Federal
Rules of Civil Procedure.
21"Subsection (e), therefore,
seeks merely to restate the several categories of law subject to judicial review."
22Vajtauer v.
Commissioner, 273 U.S. 103. 106 (1927) and Bridges v. Wixom, 326 U.S. 136 149
(1945) (deportation). In deportation proceedings, a judicial trial de novo may be had on the
issue of citizenship. Kessler v. Strecker, 307 U.S. 22, 35 (1939). See Farleyv.Simmons, 99 F.2d 343, 347 (App. D.C. 1938) certiorari denied, 806 U.S. 651,
for review of mail fraud orders; also Senate Hearings, (1941) p. 59.