Ramspeck v. Federal Trial Examiners Conference/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting.

I think these regulations should be held invalid and the judgment affirmed for substantially the reasons given in the opinion of Chief Judge Laws of the District Court for the District of Columbia. 104 F.Supp. 734. I wish to add a few words merely to emphasize certain aspects of that opinion.

The Administrative Procedure Act was designed to give trial examiners in the various administrative agencies a new status of freedom from agency control. Henceforth they were to be 'very nearly the equivalent of judges even though operating within the Federal system of administrative justice.'  Agencies were stripped of power to remove examiners working with them. Henceforth removal could be effected only after hearings by the Civil Service Commission. That same Commission was empowered to prescribe an examiner's compensation independently of recommendations or ratings by the agency in which the examiner worked. And to deprive regulatory agencies of all power to pick particular examiners for particular cases, § 11 of the Act commanded that examiners be 'assigned to cases in rotation so far as practicable * * *.' I agree with the District Court and the Court of Appeals that the regulations here sustained go a long way toward frustrating the purposes of Congress to give examiners independence. 

Section 11 of the Administrative Procedure Act, as pointed out, provides that examiners may be removed 'only for good cause established' after hearings. One of the regulations here approved authorizes their removal when an agency finds it necessary to reduce its force. We have been pointed to no act of Congress which justifies this regulation.

Another regulation here approved permits the assignment of cases to examiners by 'classification' instead of by 'rotation' as § 11 requires. I do not agree with the Court that the Classification Act of 1923 or any other act of Congress authorizes the distinctions here made between examiners. In fact, the Administrative Procedure Act appears to contemplate that all examiners employed by a particular agency stand on equal footing in regard to service and pay. A central objective was to prevent agency heads from using powers over assignments to influence cases. Unlimited discretion in assignment would lead to subservient examiners, it was thought. But the effect of the Civil Service classifications is to restore the unlimited discretion existing before passage of the Administrative Procedure Act.

The distinctions depended upon to support the different classifications are so nebulous that the head of an agency is left practically free to select any examiner he chooses for any case he chooses. For the regulations permit the head of an agency to assign a particular case on the basis of whether the head of the agency believes it to be 'moderately difficult and important,' 'difficult and important,' 'unusually difficult and important,' 'exceedingly difficult and important,' or 'exceptionally difficult and important.' And administrative agencies are permitted to attribute choice of a particular examiner for a particular case to considerations whether 'complex legal, economic, financial, or technical questions or matters' are merely 'moderately complex,' 'fairly complex,' 'extremely complex,' 'exceptionally complex,' or just 'complex.' I think all these conceptualistic distinctions mean is that the congressional command for a nonagency controlled rotation of cases is buried under words. 

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