Prepared by the United States Department of Justice Tom C. Clark, Attorney General, 1947.
VII SECTION 8--DECISIONS
The provisions of section 8, together with those of section 5 (c), govern the procedure
subsequent to hearing. Section 8 applies to cases of rule making and adjudication which are
required by sections 4 and 5 to be conducted in accordance with sections 7 and 8. It became
effective on December 11, 1946, and is applicable to proceedings commenced on and after that
date. See section 12.
SECTION 8 (a)--WHO DECIDES
Section 8 (a) provides for intermediate and final decisions, prescribes who shall make
them, and defines the decisional relationship between the agency heads and presiding officers.(1)
The subsection reads as follows:
Action by subordinates. In cases in which the agency has not presided at the reception of
the evidence, the officer who presided (or, in cases not subject to subsection (c) of section
5, any other officer or officers qualified to preside at hearings pursuant to section 7) shall
initially decide the case or the agency shall require (in specific cases or by general rule) the
entire record to be certified to it for initial decision. Whenever such officers make the
initial decision and in the absence of either an appeal to the agency or review upon motion
of the agency within time provided by rule, such decision shall without further proceedings
then become the decision of the agency. On appeal from or review of the initial decisions
of such officers the agency shall, except as it may limit the issues upon notice or by rule,
have all the powers which it would have in making the initial decision. Whenever the
agency makes the initial decision without having presided at the reception of the evidence,
such officers shall first recommend a decision except that in rule making or determining
applications for initial licenses (1) in lieu thereof the agency may issue a tentative decision
or any of its responsible officers may recommend a decision or (2) any such procedure
may be omitted in any case in which the agency finds upon the record that due and timely
execution of its functions imperatively and unavoidably so requires.
At the outset, it should be noted that section 8 (a) has no application to cases in which the
agency itself has presided at the reception of the evidence. The procedures required by this
subsection are intended "to bridge the gap between the officials who hear and those who decide
cases." H.R. Rep. p. 38 (Sen. Doc. p. 272). If the agency itself, e.g., the Interstate Commerce
Commission, hears the evidence, it may decide the case without the use of any intermediate
decision. In such cases, however, the agency may, if it desires, preface its final decision with a
tentative decision to which the parties may file exceptions.
 In cases of adjudication subject to section 5 (c) and in which the agency itself has not
presided at the reception of evidence, the presiding officer(2) must "initially decide the case or the
agency shall require (in specific cases or by general rule) the entire record to be certified to it for
initial decision." It is further provided that "Whenever the agency makes the initial decision
without having presided at the reception of the evidence [the presiding officer] shall first
recommend a decision." That is, in cases of adjudication subject to section 5 (c), the presiding
officer must make either (a) an "initial" decision which will become the agency's final decision in
the absence of an appeal to or review by the agency, or (b) a "recommended" decision which will
be followed by an "initial" decision by the agency.
Under the terms of the subsection, the presiding officer's decision will constitute an initial
decision unless the agency provides otherwise either by general rule published in the Federal
Register or by order in the particular case. Accordingly, each agency should determine whether it
desires the decisions of its presiding officers to be "initial" decisions or recommended decisions.
In cases not subject to section 5 (c), the agency may provide for the making of initial
decisions by "any other officer or officers qualified to preside at hearings pursuant to section 7."
That is, in rule making, in "determining applications for initial licenses," and in "proceedings
involving the validity or application of rates, facilities, or practices of public utilities or carriers,"
an "initial" decision may be made, for example, by a hearing examiner other than the one who
heard the evidence. Further, the fourth sentence of section 8 (a) provides that in rule making and
in determining applications for initial licenses the agency may issue a tentative decision or any of
its responsible officers may recommend a decision in lieu of a recommended decision by the
hearing examiner who conducted the hearing. This last clause permits, in rule making and
determining applications for initial licenses, "the continuation of the widespread agency practice
of serving upon the parties, as a substitute for either an examiner's report or a tentative agency
report, a report prepared by the staff of specialists and technicians normally engaged in that
portion of  the agency's operations to which the proceeding in question relates." Sen. Rep. p.
43(3) (Sen. Doc. p. 229).
Finally, in rule making or determining applications for initial licenses the agency may itself
decide the case without any prior initial, recommended or tentative decision, even though it has
not presided at the reception of the evidence, "in any case in which the agency finds upon the
record that due and timely execution of its functions imperatively and unavoidably so requires."
Appeals and review. Where the agency permits a hearing officer to make an "initial"
decision, "in the absence of either an appeal to the agency or review upon motion of the agency
within time provided by rule, such decision shall without further proceedings then become the
decision of the agency." Parties may appeal from the hearing officer's initial decision to the
agency, which must thereupon itself consider and decide the case. Also, the agency may review
the hearing officer's initial decision even though the parties fail to appeal. Each agency should
publish a rule prescribing the time within which parties may appeal or the agency may call up the
case for review.(4) Where the hearing examiner (or other officer where permitted by the subsection
makes a recommended decision, the agency must always make an "initial" or final decision.
In making its decision, whether following an initial or recommended decision, the agency is in no
way bound by the decision of its subordinate officer; it retains complete freedom of decision--as
though it had heard the evidence itself. This follows from the fact that a recommended decision is
advisory in nature. See National Labor Relations Board v. Elkland Leather Co., 114 F. 2d 221,
225 (C.C.A. 3, 1940), certiorari denied, 311 U.S. 705. Similarly, the third sentence of section 8
(a) provides that "On appeal from or review of the initial decisions of such [hearing] officers the
agency shall, except as it may limit the issues upon notice or by rule, have all the powers which it
would have in making the initial decision." This is not to say that hearing  examiners' initial or
recommended decisions are without effect. "They become a part of the record [as required by
subsection 8 (b)] and are of consequence, for example, to the extent that material facts in any case
depend on the determination of credibility of witnesses as shown by their demeanor or conduct at
the hearing." Sen. Rep. p. 24, H.R. Rep. p. 38 (Sen. Doc. pp. 210, 272). In such cases, it is
apparently assumed that agencies will attach considerable weight to the findings of the examiner
who saw and heard the witnesses. However, in cases where the credibility of witnesses is not a
material factor, or cases where the recommended or initial decision is made by an officer other
than the one who heard the evidence, the function of such decision will be, rather, the sharpening
of the issues for subsequent proceedings.
Section 8 (a) empowers agencies to "limit the issues upon notice or by rule" on appeal
from or review of the initial decisions of hearing officers. That is, an agency may limit the issues
which it will consider in such cases by notice in a particular case or by a general rule published in
the Federal Register. It may restrict its review to questions of law and policy or, where it is
alleged that erroneous findings of fact have been made by the hearing officer, to determining
whether cited portions of the record disclose that the findings are clearly wrong. Final Report,
p. 51. See also Sen. Rep. p. 43 (Sen. Doc. p. 229).
Where the hearing officer makes a recommended decision, the agency must itself consider
and determine all issues properly presented. However, it may provide that it will consider only
such objections to its subordinates' decisions (recommended or initial) as are presented to it as
exceptions to such decisions. See Marshall Field & Co. v. National Labor Relations Board, 318
U.S. 253, 255 (1943); National Labor Relations Board v. Cheney California Lumber Co., 327
U.S. 385, 387-88 (1946). It may also require that exceptions be precise and supported by specific
citations, to the record.(5) The agency in reviewing either initial or recommended decisions may
adopt in whole or in part the findings, conclusions, and basis therefor stated by the presiding 
officer. On the other hand, it may make entirely new findings either upon the record or upon new
evidence which it takes. Also, it may remand the case to the hearing officer for any appropriate
further proceedings. Sen. Rep. p. 43, H.R. Rep. pp. 38-39 (Sen. Doc. pp. 229, 272-273).
SECTION 8 (b)--SUBMITTALS AND DECISIONS
Submittals. The first sentence of section 8 (b) provides that "Prior to each recommended,
initial, or tentative decision, or decision upon agency review of the decision of subordinate
officers the parties shall be afforded a reasonable opportunity to submit for the consideration of
the officers participating in such decisions (1) proposed findings and conclusions, or (2)
exceptions to the decisions or recommended decisions of subordinate officers or to tentative
agency decisions, and (3) supporting reasons for such exceptions or proposed findings or
conclusions." [Italics supplied]. The procedure thus prescribed for the focusing of issues and
arguments is a codification of the present general practice. Senate Comparative Print, June 1945,
p. 16 (Sen. Doc. p. 33). "Ordinarily proposed findings and conclusions are submitted only to the
officers making the initial [or recommended] decision, and the parties present exceptions
thereafter if they contest the result. However, such exceptions may in form or effect include
proposed findings or conclusions for the reviewing authority to consider as part of the
exceptions." Sen. Rep. pp. 24, 43 (Sen. Doc. pp. 210, 229).
Agencies may require that proposed findings and conclusions and exceptions be supported
by precise citation of the record or legal authorities as the case may be. Reasonable time limits for
the submission of such materials may be imposed. The opportunity to submit supporting reasons
means that briefs on the law and facts which are filed by parties in support of their proposed
findings and conclusions and exceptions must be received and considered. Sen. Rep. p. 24, H.R.
Rep. p. 39 (Sen. Doc. pp. 210, 273). Section 8 (b) does not purport to prescribe opportunities
for oral argument. Accordingly, subject to the provisions of particular statutes, each agency must
itself determine in what cases oral argument before hearing officers or the agency is necessary or
 Decisions. Section 8 (b) further provides: "The record shall show the ruling upon each
such finding, conclusion, or exception presented. All decisions (including initial, recommended,
or tentative decisions) shall become a part of the record and include a statement of (1) findings
and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law,
or discretion presented on the record; and (2) the appropriate rule, order, sanction, relief, or
Since all decisions, whether made by the agency or by a subordinate officer, become a part
of the record, the requirement of the first quoted sentence will be satisfied if such decisions in
some way indicate the ruling of the agency or such officer upon each requested finding or
conclusion or exception presented to the agency or to such officer. The purpose of this
requirement is "to preclude later controversy as to what the agency had done." H.R. Rep. p. 54,
fn. 19 (Sen. Doc. p. 288).
The form and content of decisions, as prescribed in the last sentence of section 8 (b), are
discussed in the Committee reports as follows:
The requirement that the agency must state the basis for its findings and
conclusions means that such findings and conclusions must be sufficiently related to the
record as to advise the parties of their record basis. Most agencies will do so by opinions
which reason and relate the issues of fact, law, and discretion. Statements of reasons,
however, may be long or short as the nature of the case and the novelty or complexity of
the issues may require.
Findings and conclusions must include all the relevant issues presented by the
record in the light of the law involved. They may be few or many. A particular
conclusion of law may render certain issues and findings immaterial, or vice versa. Where
oral testimony is conflicting or subject to doubt of its credibility, the credibility of
witnesses would be a necessary finding if the facts are material. It should also be noted
that the relevant issues extend to matters of administrative discretion as well as of law and
fact. This is important because agencies often determine whether they have power to act
rather than whether their discretion should be exercised or how it should be exercised.
Furthermore, without a disclosure of the basis for the exercise of, or failure to exercise,
discretion, the parties are unable to determine what other or additional facts they might
offer by way of rehearing or reconsideration of decisions. Sen. Rep. pp. 24-25, H.R. Rep.
p. 39. (Sen. Doc. pp. 210-211, 273).
An agency which issues opinions in narrative and expository form may continue to do so
without making separate findings of fact and conclusions of law. However, such opinions must
indicate the agency's findings and conclusions on material issues of fact, law or discretion with
such specificity "as to advise the parties and any reviewing court of their record and legal basis."(7)
The  requirement that such decisions indicate the reasons for the exercise of discretionary
power is a codification of existing good practice. See Phelps Dodge Corp. v. National Labor
Relations Board, 313 U.S. 177, 194-197 (1941).
Nothing in the Act is intended to preclude agency heads from utilizing the services of
agency employees as assistants for analysis and drafting. Morgan v. United States, 298 U.S. 468,
481 (1936). Of course, in adjudicatory cases subject to section 5 (c), such assistants could not
have performed investigative or prosecuting functions in the cases (or in factually related cases) in
which they are so employed. Also, the agency heads are free to employ the hearing officer who
heard a particular case as the draftsman of their final decision and otherwise to assist in its
formulation. Compare generally section 4 (a) of the National Labor Relations Act, as amended.
Appeals to superior agency. Nothing in section 8 is intended to cut off any rights which
parties may have for appeal to or review by a superior agency. Sen. Rep. p. 23 (Sen. Doc. p.
209). The requirements of subsection 8 (b) as to the form and content of decisions do not apply
to decisions of a superior agency upon such appeal from or review of the agency's decision.
1. Any of the requirements of section 8 may be waived by the parties. Sen. Rep. p. 23 (Sen.
Doc. p. 209).
2. As here used, presiding officer means the member of the agency, the examiner appointed
pursuant to section 11, or the special statutory board or hearing officer who conducted the
hearing. See section 7 (a). Where the presiding officer becomes unavailable as by illness or
leaving the agency, the agency may direct another hearing officer to make an initial or
recommended decision, or it may issue a tentative decision, or it may order a rehearing.
3. It is to be noted that in "proceedings involving the validity or application of rates,
facilities, or practices of public utilities or carriers" (if they do not constitute either rule making or
the determination of an application for an initial license), an intermediate (i.e., "initial" or
"recommended") decision must be made by the hearing examiner who conducted the hearing or
by some other officer or officers qualified to preside at hearings pursuant to section 7 (a).
4. It is important to note that section 10 (c) permits an agency to require parties to appeal
from hearing officers' initial decisions to the agency as a prerequisite to obtaining judicial review.
Such a requirement must be set forth in a published rule which must further provide that the
hearing officer's initial decision shall be inoperative pending the agency's review of the case. Sen.
Rep. p. 27, H.R. Rep. pp. 43, 55, fn. 21 (Sen. Doc. p. 213, 277, 289).
5. See Final Report, p. 52: "The Committee strongly urges that the agencies abandon the
notion that no matter how unspecified or unconvincing the grounds set out for appeal, there is yet
a duty to reexamine the record minutely and reach fresh conclusions without reference to the
hearing commissioner's decision. Agencies should insist upon meaningful content and exactness
in the appeal from the hearing commissioner's decision and in the subsequent oral argument
before the agency. Too often, at present, exceptions are blanket in character, without reference to
pages in the record and without in any way narrowing the issues. They simply seek to impose
upon the agency the burden of complete reexamination. Review of the hearing commissioner's
decision should in general and in the absence of clear error be limited to grounds specified in the
6. See Morgan v. United States, 298 U.S. 468, 481 (1936): "Argument may be oral or
7. Agencies should keep in mind that pursuant to section 3 (b) they may cite as precedents
only such previous orders and opinions as have been published or made available for public
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