STATEMENT OF JAMES D. CUNNINGHAM, CHIEF HEARING EXAMINER, The Administrative Procedure Act of 1946 had as one of its principal objectives the removal of the inconsistent union of prosecutory and adjudicatory functions which, by necessity perhaps, existed in Government agencies for many years. In hearings before congressional committees leading to the passage of this measure, it was emphasized that the final decisions or conclusions of agencies affecting private rights were suspected of being rationalizations of preliminary findings which the agency, in the role of prosecutor, presented to itself when the proceedings involved were instituted. In an effort to separate these functions and to assure fairness and impartiality in adjudications, Congress, in the Administrative Procedure Act, created the independent position of hearing examiner, and the process of adjudication was wholly separated from the investigatory and prosecutory functions of the agencies. The establishment of this independence, as well as the separation of functions concept, would appear to have been the sole basis for the creation of the hearing examiner system. Section 7(b) of the Administrative Procedure Act outlines the powers vested in the hearing examiner as presiding officer in proceedings, viz., to (1) administer oaths and affirmations, (2) issue subpenas authorized by law, (3) rule upon offers of proof and receive relevant evidence, (4) take or cause depositions to be taken whenever the ends of justice would be served thereby, (5) regulate the course of the hearing, (6) hold conferences for the settlement or simplification of the issues by consent of the parties, (7) dispose of procedural requests or similar matters, (8) make decisions or recommend decisions, and (9) take any other action authorized by agency rule consistent with this act. The hearing examiner system has been in operation for the past 12 years. My purpose here is to outline and discuss briefly what, in my judgment, are its principal strengths and weaknesses and to indicate the legislative measures required to increase the stature and the effectiveness of the hearing examiners. A. STRENGTHS (1) The obvious strength of the hearing examiner system is that, if properly administered, it ensures to litigating parties before Government agencies that their cases will be heard by a competent judicial officer who hears the testimony of witnesses, judges their credibility (if evidence is oral), rules upon the admissibility of evidence, controls and directs the conduct of proceedings, prepares and issues initial or recommended decisions based upon evidence of record, in short, one who functions almost indistinguishably as a trial judge. The system permits independent, judicious treatment of litigation by a hearing officer who is entirely free from agency or outside influences. (2) In large measure, the system has the effect of freeing agency members from the burden of judicial detail and thus enables them to devote more time and energy to the consideration and formulation of agency policy. (3) The system encourages lawyers and litigants to prepare cases properly so that an adequate record will be presented ultimately for agency consideration. In this area, however, much depends upon the skill of practitioners and of individual hearing examiners in separating essentials from unessentials. A strong and aggressive hearing examiner is in a position to stimulate litigants to develop an orderly and logical evidentiary record free from trivia. B. WEAKNESSES (1) Insofar as the Federal Communications Commission is concerned, the hearing examiner system, because of restrictions and limitations imposed chiefly in the Communications Act, and to some extent in the Administrative Procedure Act, does not permit the individual hearing examiners employed by the agency to discuss their day-to-day case problems even among themselves. Section 5(c) of the Administrative Procedure Act provides, in part, as follows: "*** Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer (hearing examiner) shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; * * In section 409 (c) (1) of the Communications Act, as amended in the year 1952, it is provided that in any case of adjudication no examiner conducting or participating in the conduct of such hearing shall, except to the extent required for the disposition of ex parte matters authorized by law, consult any person (except another examiner participating in the conduct of such hearing) on any fact or question of law in issue, unless upon notice and opportunity for all parties to participate * Thus, for all practical purposes, each hearing examiner of the Federal Communications Commission is isolated unto himself with regard to the proceedings assigned to him for adjudication. While it is possible that Congress may not have intended the statutes to have this effect, for it is common knowledge trial judges are not precluded from discussing their cases with other trial judges, the provisions cited do so operate, with the result that errors of judgment, which are bound to occur, might have been avoided if the individual hearing examiners could have felt free to discuss their problems with their conferees. In the event consultations among hearing examiners were permitted, it is believed that substantial economies in time, effort, and Government funds would result. Thus, it is likely that legal problems presently confronting one hearing examiner may have been thoroughly studied and briefed by an associate hearing examiner in another case, and the results of the latter's studies could be utilized by the former. Frequently, the same problems are under consideration in different proceedings being conducted at the same time by several hearing examiners. Full and free consultations among them would not only save time but would result undoubtedly in substantial unanimity of rulings and decisions with regard to the problems involved. Moreover, this lack of flexibility is calculated to result in conflicting treatment of the same problem or question by different hearing examiners. (2) Due to the fact that stress is laid upon the desirability or necessity of independence on the part of hearing examiners, even by the agency employing them, it is difficult, if not impossible, for such agency to impose effective supervision of their work. While this absolute independence may be desirable to the extent that substantive matters in the process of reaching abjudications are involved, it is, nevertheless, undesirable where the hearing examiners, because of heavy workloads or for other reasons, are unable to dispose of litigation with the degree of expedition reasonably expected, not only from the standpoint of the interests of the litigants, but, as well, from the standpoint of the public interest itself. Under the 1952 amendments to the Communications Act, "The officer or officers conducting a hearing to which subsection (a) applies shall prepare and file an initial decision, except where the hearing officer becomes unavailable to the Commission or where the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably require that the record be certified to the Commission for initial or final de cision." (3) If one of the objectives of the hearing examiner system is to expedite the judicial functions of administrative agencies, the requirement that their initial decisions in all instances contain conclusions of law as well as findings of fact sometimes operates to thwart this purpose. Instances arise where the conclusions of hearing examiners on legal and policy questions are of little or no assistance in resolving the basic problem presented, and if the agencies were by law given latitude in the matter of directing certifications of records, together with the findings of basic facts by the hearing examiners, the decisional process would be substantially expedited in such cases. (4) Notwithstanding the stress laid by the system upon the desirability of having independence of judgment on the part of hearing examiners, the system does not provide them with the dignity and stature commensurate with the importance of their work. If hearing examiners are to be considered as performing judicial functions, and they must be so considered, the positions which they hold should be elevated both in title and in salary to conform more closely with the status held by certain judicial officers of some of the Federal courts, viz, commissioners of the U.S. Court of Claims. The Attorney General's Committee studying the Administrative Procedure Act of 1946 recomended that the salary of "hearing commissioners" should be $7,500 per annum at a time when Members of Congress, agency heads, and Federal district judges were receiv ing $10,000 per annum. Congress, however, provided in the Administrative Procedure Act that hearing examiners should receive compensation prescribed by the Civil Service Commission independent of agency recommendations or ratings and in accordance with the Classification Act of 1923. Under the Federal Employees Salary Increase Act of 1958, the salary range for the GS-15 hearing examiner grade (the maximum) is from $12,770 to $13,970 per annum, in com parison to salaries of Members of Congress and U.S. district judges of $22,500 per annum, and agency heads of $20,000 per annum. If qualified persons are to be attracted to these important hearing examiner posts, and if capable incumbents of such posts are to be retained in the service, it is imperative that legislative measures be adopted whereby the payment of salaries commensurate with the importance of duties is provided. (5) Although it achieved effectively the desired separation of adjudicatory functions within the several agencies, the Administrative Procedure Act would appear to have nullified one of the basic benefits which was sought by the measure, for in section 8 it conferred upon the agency the identical powers which it gave to hearing examiners, viz, "whenever such officers [hearing examiners] make the initial decision and in the absence of either an appeal to the agency or review upon motion of the agency within the 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." Thus, the agency still occupies the dual status it held prior to the passage of the act, for it is free, upon its own motion or motion of any party to a proceeding, to revise or to reject totally both the findings of fact and the conclusions of the hearing examiners. The purpose of the creation of the independent position of hearing examiner would, accordingly, appear to have been defeated in large measure, and the stature of hearing examiners remains dependent upon the reliance which the agency places in them. This is believed to be a fundamental weakness in the role of hearing examiners which detracts substantially from their stature and effectiveness. It is a condition which apparently was not given detailed consideration at the time of adoption of the Administrative Procedure Act. It would appear that the full potential value of the hearing examiner system to the agencies cannot now be realized, for an applicant, if unsuccessful before the hearing examiner, may further advance his claims before this second tribunal, the agency itelf. Legislative proposals have been advanced with the intent of correcting different fundamental weaknesses in the Administrative Procedure Act. The American Bar Association proposed Code of Federal Administrative Procedure (proposed sec. 1007) would severely limit the power of agencies in the review of the findings of fact of the hearing officers. The Commission on Organization of the Executive Branch of the Government (Hoover Commision), by its report, would limit the review functions of the agency, except for questions of policy delegated to the agency by Congress, to the review that a court has upon appeals from agency decisions. In considering these or other similar legislative proposals, it should be understood that it is the agencies, and not their hearing examiners, which, under the present organizational plan of Congress, have the responsibility for the end-product of their administrative proceedings. That end-product in the adjudicatory functions must rest on basic relevant facts in all cases. Similarly, it is the agencies and not the hearing examiners which are the interpreters of the law and the policymakers, and their decisions in these respects are binding upon the hearing examiners. Thus, it is the agencies under existing law which possess the power and any attempt to limit this power and place any portion of it in the hearing examiners could result in a basic change in the organizational scheme prescribed by Congress, the consequences of which must be fully comprehended in advance. This point is raised only out of an abundance of caution, for, as subsequently appears, I am recommending legislation similar to but somewhat stronger than the proposal of the American Bar Association. Legislation carrying out any of these recommendations should, in my judgment, be so framed as to avoid encroachment on the delegated powers of the agencies. C. LEGISLATIVE MEASURES NECESSARY TO INCREASE THE STATURE AND EFFECTIVENESS OF HEARING EXAMINERS (1) Amend the Administrative Procedure Act of 1946 and the Communications Act of 1934, to make clear that hearing examiners may consult with one another (but with no outside source, however) with regard to their day-to-day case problems. (2) Amend the Administrative Procedure Act of 1946 to provide greater latitude for agencies to determine for themselves the form of decision to be required of hearing examiners in specific instances, viz, whether the decisions |