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typing and retyping of the manuscript in its numerous earlier phases.

I thank Judges Melford Cleveland, Lenore Ehrig, William J. Madden, Robert Mullin, Seymour Wenner, and Joseph Zwerdling, and Norbert Halloran of the Administrative Office of the United States Courts, for the information, advice, and editing assistance they provided.

I am grateful to numerous Administrative Law Judges, agency staff, and private practitioners who gave invaluable assistance.

Initially, however, only the translation, cleaning up, and typing of my handwritten rough drafts by my wife, Florence, made this project possible.

April 22, 1974

Merritt Ruhlen

I. Introduction The powers and responsibilities of Administrative Law Judges are defined in the Administrative Procedure Act' and in the enabling acts and procedural rules of the various agencies. Their rights and duties have been considered on several occasions by the federal courts.'

Historically, administrative hearing officers were subject to the direction and control of the agency. Considerations of fairness led to the granting of increasing degrees of independence, culminating in the provisions of section 11 of the Administrative Procedure Act 4 which accords the Administrative Law Judge a unique status. He is an employee of the

agency, charged with the interpretation and enforcement of its policies and the achievement of its distinct mission; yet to insure his independence his appointment is absolute, he is not subject to agency efficiency ratings, promotions, or demotions, and his compensation is established by the Civil Service Commission independent of agency recommendations.”

1 Administrative Procedure Act, 5 U.S.C. 88 551-559, 701-706, 1305, 3105, 3344, 5362, and 7521 (1970), formerly ch. 324, 60 Stat. 237 (1946). This statute is printed at the back of this Manual.

2 A list of the procedural rules of the Federal agencies that conduct APA adjudicative hearings is set forth in the bibliography.

3Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953); Riss & Co. v. United States, 341 U.S. 907 (1951); Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); Wong Yang Sung v. McGrath, 339 U.S. 33 (1950); Benton v. United States, 488 F.2d 1017 (Ct. Cl. 1973).

45 U.S.C. 88 3105, 5362, and 7521 (1970).

5 The title was changed to Administrative Law Judge by United States Civil Service Commission regulation on Aug. 19, 1972, 37 Fed. Reg. 16787.

6 See Local 134, IBEW v. NLRB, 486 F.2d 863, 867 (7th Cir. 1973).

The task of presiding at formal APA proceedings may properly be undertaken by the agency itself, or by one of its members. In practice, however, Administrative Law Judges preside in most formal proceedings. In cases involving rulemaking and initial licenses, the agency may direct that the Judge's decision be omitted and the formal record be certified directly to the agency for decision. But even in such cases the Judge will often be directed to issue either an initial or a recommended decision, orally or in writing. The Judge's decision is subject to review by the agency (a function sometimes delegated to an agency official or to a review board) and the agency's decision is in turn subject to review by the courts.

To an increasing extent, however, agencies are adopting the decisions of their Judges as final by declining to exercise discretionary review..? In the Department of Interior the Judge's decision in certain types of cases constitutes final agency action.13

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? The discussion in this Manual assumes that the Administrative Law Judge is an employee of an agency charged with enforcement and policy making responsibilities for its substantive program. This is not true of the Occupational Safety and Health Review Commission, an independent agency with its own corps of Administrative Law Judges which hears cases brought by the Department of Labor to enforce policy of that Department. Accordingly, some of the discussion in the text dealing with the relationship of the Judge to his agency is not directly applicable to OSHRC.

5 U.S.C. $ 556(b) (1970). 9 Id. 8 557(b).

10 See, e.g., FCC, 47 C.F.R. $ 0.161 (1972); ICC, 49 U.S.C. 88 17 (2)(5) (1970); and SEC, 17 C.F.R. $ 200.30–6 (1973).

11 5 U.S.C. 88 701-706 (1970).

12 See, e.g., CAB, 14 C.F.R. SS 302.27-28 (1973); Occupational Safety and Health Act of 1970, 29 U.S.C. § 661 (i); OSHRC, 29 C.F.R. § 2200.91 (1973); See also Recommendation 68–6, Discretionary Review by the Agency, 1 C.F.R. $ 305.68–6 (1974).

13 See, e.g., Bureau of Sport Fisheries and Wildlife, 50 C.F.R. & 1713 (8) (1972).

II. Prehearing Procedures

A prehearing conference is frequently the best means of organizing a formal administrative proceeding. It permits joint advance consideration of procedural problems and enables assessment of the need for preliminary procedural steps such as the submission of evidence before hearing, stipulations, and various forms of discovery. Requiring only a day or two as compared to days and weeks of hearing, a well-run conference can make succeeding steps easier for all parties. Where a prehearing conference is at the discretion of the Judge,"4 his first responsibility should be to examine the pleadings and consider the desirability of such a conference.

A. Preparation for Prehearing Conference

A prehearing conference should not be the participants' introduction to the case. To the contrary it represents the first opportunity to clarify, isolate, and dispose of the problems involved in the case and therefore presumes careful advance preparation by all involved. As soon as the case is assigned the Judge should obtain the docket and study the documents it contains. It may be useful to direct interested persons to submit to the Judge and the known parties in advance of the conference proposed statements of issues, proposed stipulations, requests for information, statements of position, and proposed procedural dates. This direction may appear in the

14 See, e.8., FCC, 47 C.F.R. § 1.248 (1972) and SEC, 17 C.F.R. 201.8(d) (1973).

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