Attorney General KENNEDY. If the individual who is a recipient, the individual participating in the program, does not want to take it to court, then it would not end up in court.

Senator ERVIN. I am asking a very simple question. Does not section 602 of this rewritten title VI authorize the Federal agency to terminate assistance or cut off funds without going to court?

Attorney General KENNEDY. He could cut off funds without going to court with the added proviso, Senator, that under section 604, if the individual who is the recipient of the program against whom this action has been taken wishes to contest the matter he can go to court.

So it would be entirely up to the individual or individuals who are recipients of the program, or those who are involved in the program. It would always go to court if those against whom this action has been taken wish to go to court.

Senator ERVIN. The party aggrieved can go to court provided he is financially able to do so."

Attorney General KENNEDY. Or if he wishes to do so.

Senator ERVIN. He must not only wish to do so, but must be financially able to do so; must he not?

Attorney General KENNEDY. Well, financially able to do so. I expect he would have to get the funds someplace, Senator.

Senator ERVIN. Let us talk about that. If the advocates of this bill really want the party aggrieved to have a right to judicial review of the action of the Federal department or agency, why do they not allow him to go to court in the same way in which the Federal Government can go to court under section 603 of title VI as rewritten? Why are the proponents of the bill not willing to allow the party aggrieved to have the judicial remedy granted the Government by section 603, which provides that at the suit of the Government the case can be tried de novo on the facts and the law in a Federal district court governed by the Federal Rules of Civil Procedure which are well known to all lawyers or easily accessible to them. Under title VI as rewritten, the party aggrieved can go to court, if he can go to court at all, in a way quite different from that in which the Government can go to court. Is this not so?

Attorney General KENNEDY. In what way, Senator?

Senator ERVIN. The Government can go to court under section 603. The Government can go into a district court and have the case tried de novo upon the facts and the law according to the Federal Rules of Civil Procedure. But the individual who is adjudged guilty by the executive branch of the Government and has assistance cut off cannot do that.

Attorney General KENNEDY. Senator, why do you think the individual cannot go into a Federal court also?

Senator ERVIN. Because of what is said in section 604. Section 603 says any requirement adopted by any of these executive agencies shall be enforceable in the district courts of the United States by means of a civil action or other proper proceeding, brought by or on behalf of the United States or any agency or officer expressly authorized to bring suits by act of Congress.

In other words, the Federal Government can go into a district court and have the case tried de novo on the facts and the law according to the Federal Rules of Civil Procedure, which are well known to virtually all the lawyers of the country.

Attorney General KENNEDY. He can obtain judicial review under section 604, Senator:

In the case of action, not otherwise subject to judicial review, terminating financial assistance by reason of failure to comply with any requirement imposed pursuant to section 602, any person aggrieved (including any State or political subdivision thereof and any agency of either) may obtain judicial review of such action in accordance with section 10 of the Administrative Procedure Act.

That is the procedure which is always followed.

Senator ERVIN. Mr. Attorney General, my point is quite simple. Why are the proponents of title VI as rewritten unwilling to give equality of procedural rights to the Federal Government on the one hand and the aggrieved State, political subdivision of a State, charitable institution, business enterprise, or individual on the other? Why do they not write a provision giving a State, the political subdivision of a State, the charitable institution, the business enterprise, or the individual injured by the cutting off of Federal assistance the right to go to the nearest district court and have the controversy settled by a trial de novo upon both the facts and the law according to the Federal Rules of Civil Procedure as they do in the case of the Government? Attorney General KENNEDY. Senator, this is the procedure that has always been followed according to Administrative Procedure Act.

Senator ERVIN. People have been murdering each other and stealing the property of each other for generations. Such action has not made murder meritorious or larceny legal. As any practicing lawyer will know, Congress has all too often heeded the requests of Federal departments and agencies and permitted them to enjoy the benefits of legal procedures which really deny persons wronged by their actions fair methods of judicial review. To use the vernacular, Congress permits the Federal Government in a number of instances to play its legal games with loaded dice. Besides, the first sentence of section 604 of title VI as rewritten authorizes may diverse kinds of so-called judicial review, most of which are unknown to the general run of lawyers and most of which drastically limit the right of review in a number of ways such as giving artificial weight in the courts to the finding of a department or agency or requiring review to be made upon the record made in the department or agency. The American Bar Association has complained of the diversity of the procedures established by the rules of various departments and agencies and has requested me to introduce a bill designed to establish a uniformity of procedures to remove the present state of confusion arising out of the many different methods of review.

Attorney General KENNEDY. That didn't originate with this bill, Senator. You have had that for many, many years. That is the procedure that has always been followed." If Congress wants to change that procedure

Senator ERVIN. Why does not the Department of Justice have enough desire to see that justice is administered to individuals as it is to the Government and allow the individuals to have the same kind of procedures that it would give to the Government in section 603?

Attorney General KENNEDY. We give them judicial review. They can go into court and get judicial review of the decision. We follow the procedure that has been established by Congress over many, many years as to how to proceed on these matters.

Senator ERVIN. Not these kinds of matters, because these have never been involved before.

Attorney General KENNEDY. This is the procedure that Congress has established for many, many years in reviewing the orders or actions of any of the executive agencies. We are not doing anything differently here from the way it has always been done.

Senator ERVIN. How many different methods and procedures are prescribed by the laws referred to in the first sentence of section 604, where it says any department or agency action taken pursuant to section 602 shall be subject to such judicial review as many otherwise be provided by law for similar action taken by such department or agency on other grounds?

Will you explain to the committee how many different kinds of procedures are established by the laws referred to in that one sentence?

Attorney General KENNEDY. I don't have that figure, Senator. I am sure we can obtain it for you. What I would say, Senator, once again, is that it goes back to the substantive legislation which authorizes the particular program.

Senator ERVIN. Not the substantive legislation; the procedure legislation. We are dealing with procedure.

How are we going to act intelligently on this bill and determine whether we want to incorporate this first sentence of section 604 of rewritten title VI unless we can be informed as to what that section means and how many different laws are involved in that?

Attorney General KENNEDY. Well, this has been done by Congress long before this legislation was suggested. Congress passed laws prescribing the way they wanted to have any particular program reviewed. We are just following that procedure.

We thought that this would be a more orderly way of proceeding, and Congress has passed on that.

Senator ERVIN. But you are not prepared to inform us as to the various procedures referred to in the first sentence of section 604 of rewritten title VI.

Attorney General KENNEDY. It varies in each individual program. But that is up to Congress

Senator ERVIN. In order to ascertain the meaning of the first sentence of section 604 of rewritten title VI one has to read hundreds of different statutes to ascertain whether any judicial review is authorized or what procedures must be followed in case such review is permitted at all.

Attorney General KENNEDY. But, Senator, Congress has made that decision. Instead of passing one overall piece of legislation dealing with every program, they wrote it into each particular program. And we followed that same procedure. That is not difficult.

Senator ERVIN. But you are asking us to enact title VI into lawand you can't tell us what the effect of this first sentence of this title is. Attorney General KENNEDY. Senator, the same thing existed long before we suggested this legislation. You didn't have uniformity in all these programs for judicial review.

Senator ERVIN. When the statutes relating to the various Federal departments or agencies were enacted, the programs and activities of such departments and agencies were very restricted in nature. Conse

quently, such methods of judicial review as were provided for then are too inadequate and diverse to govern in a fair manner determinations concerning the cutting off of appropriations totaling untold billions of dollars. Can you tell me, at the present moment, how many different procedures would be authorized by the first sentence of section 604 or rewritten title VI?

Attorney General KENNEDY. This does not authorize any particular procedure, Senator. The procedure has already been established by the laws that have been passed by Congress.

Senator ERVIN. Mr. Attorney General, the first sentence of section 604 would authorize the use of particular procedures. In fact, it provides that the aggrieved party cannot have any remedy unless he follows one of these particular procedures. I want to know how many different methods of judicial review would be made available under the first sentence of section 604 of rewritten title VI?

Attorney General KENNEDY. There are as many as Congress has already authorized.

Senator ERVIN. How many are there?

Attorney General KENNEDY. We can go back and look, Senator, and find out for you. Congress has already established that. These procedures were on the books, prior to the time we wrote this legislation. Senator ERVIN. It seems to me, Mr. Attorney General, since you are here urging us to pass this law, that you would tell us that. Attorney General KENNEDY. I would be glad to find out for you, Senator.

Senator ERVIN. You can't tell us now?

Attorney General KENNEDY. I haven't got that information.

Senator ERVIN. Don't you know that some of these procedures would require the party aggrieved to go into the circuit court of appeals, rather than the nearest district court?

Attorney General KENNEDY. I think that is true, Senator.

Senator ERVIN. Don't you know that many of the procedures would restrict the courts to a consideration of the record made in the agency and give artificial weight to the findings made by the agency and thus deny the party aggrieved the right to a hearing de novo upon the facts?

Attorney General KENNEDY. Congress is the one that did that. I didn't do that, Senator.

Senator ERVIN. But you are the one who is now asking Congress to enact title VI.

Attorney General KENNEDY. Congress already established those practices in passing these programs.

Congress did that. You can change all those procedures, if you wish, but Congress did that, I didn't do it.

Senator ERVIN. But you are asking Congress to broaden these procedures.

Attorney General KENNEDY. No, no, Senator, I am not asking you to broaden it. I am asking you to follow the procedures Congress has already established.

Senator ERVIN. But you are asking Congress to do this in an entirely different field in which Congress has never legislated before.

Attorney General KENNEDY. If your complaint is against procedures, these are procedures established by Congress.

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 respect fully 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.

(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.