subpenas in investigations relating to section 18(b) (5) of the actsince that section "merely" gives the Commission the power to disapprove rates which after a hearing it finds to be so unreasonably high or low as to be determintal to the commerce of the United States. (Caragher is now on appeal in the Court of Appeals for the Second Circuit).

2. Provide the Commission with statutory authority to authorize prehearing interparty discovery at least to the extent of production of documents. This was provided by the Commission's former Rule 12(k), which was held to be without proper authority in Federal Maritime Commission v. Anglo-Canadian Shipping Co., Ltd., 335 F. 2d 255 (1964). The opinion in Anglo-Canadian sets forth the former rule. I am not convinced that prehearing discovery is necessary to the extent permitted in the Federal district courts under the Rules of Civil Procedure, but discovery as to documents, and compulsory depositions of witnesses, should be authorized upon order of the hearing officer. Cf. 49 U.S.C. 12 (4), (5), (6), and (7), pertaining to the Interstate Commerce Commission.

Apart from the above, such unusual delays as occur in this agency do not seem to arise out of matters that could be cured by statute or rule. Much of the lost time results from the maneuvers of the parties themselves, either in tactical motions or in requests for enlargements of time which are generally agreeable to all parties involved. Occasionally an unusual amount of time clapses between oral argument before the Commission (following initial decision by the examiner) and the Commission's decision. To the examiner, who concededly is prejudiced, it usually seems as though a substantial part of this time could have been saved if the Commission had (in those cases where it does not depart substantially from his decision) simply adopted his decision, perhaps with a supplementary note concerning any exceptions not completely disposed of in the initial decision. Instead, the Commission usually causes the initial decision to be rewritten more or less completely.

Doubtless there are occasions when this is desirable or necessary; but there are also occasions where the rewrite does not improve upon the initial decision, and even where factual error creeps in as a result of attempts to paraphrase. Certainly this sort of thing is not susceptible to rule, but it might be in order to suggest that consideration be given to avoidance of unnecessary rewriting, as a means of cutting delay.

33. BENJAMIN A. THEEMAN, HEARING EXAMINER

It is my experience that the administrative process as it exists today is adequate to obtain a speedy conclusion provided the parties to the proceeding adhere to its requirements. By "parties" I include the persons doing the investigation, making the decisions and the ad

vocates.

It is my firm belief that unnecessary delay is attributable mainly to the human factors involved rather than the mechanics of administrative process. By this I mean that unnecessary delay is a matter of human causation. This is separate and apart from individual differences among people, i.e., those who consume considerably more time in the accomplishment of their work than others.

Simply unnecessary delay is avoidable. In my opinion the machinery of the administrative process is not its basic cause. Unnecessary delay would be considerably reduced if the people participating in the administrative process made a stalwart effort neither to seek nor to condone delay.

34. CHARLES E. MORGAN, HEARING EXAMINER

I would like briefly to emphasize one matter; that is, flexibility in the hearing process. Under any laws or rules of procedure that may be adopted, the parties should be left free to suggest, and the hearing examiner should be left free to decide, on what type of hearing procedure most likely will develop without unnecessary delay all of the facts required to resolve the issues in a proceeding.

An appropriate procedure in one proceeding may be to require the reduction of substantially all direct testimony of the parties' cases in chief to writing, thereby leaving only cross-examination of in-chief testimony and rebuttal testimony to be taken orally. In another proceeding it may be appropriate to take all of the testimony orally. One type of testimony may be clearly understood only when it is in writing with attached exhibits, and when it affords an opportunity for study before cross-examination. Another type of testimony may be understood fully only if made orally, so as to observe the emphasis made by, and the demeanor of, the witness. A type of procedure which may expedite one case may delay another case. Generally, only those persons closest to the case, the parties and the hearing examiner, can determine which of the above procedures, or whether any other procedure or variation of procedures, will expedite the proceeding. The hearing procedure should remain flexible.

35. E. ROBERT SEAVER, HEARING EXAMINER

1

(2) Negotiating a settlement: Settlement negotiations often take place in proceedings after the case is assigned to the examiner. This is particularly true of complaint cases, although in investigation cases negotiations sometimes take place between agency counsel and counsel for private interests to explore the possibility of stipulating some or all of the facts or agreeing upon some change in the practices, agreements, or rates of respondents that will bring them in line with the statutes (in the opinion of agency counsel).

Such negotiations can save much time, if successful, but they sometimes cause delay. If counsel enter into negotiations to settle certain issues or stipulate facts, an inordinate amount of time is often consumed by their sparring and inaction unless the examiner keeps in close touch with developments and imposes firm deadlines for the conclusion of the negotiations. The failure of the parties to stipulate the facts as to issues where there really should be no substantial dispute and, of course, the failure to negotiate settlements in cases where they might do so with a little encouragement from the examiner, cause extensive delay because a part or all of the hearing and decision

1 Under the practice followed by the Federal Maritime Commission, our trial-type proceedings fall within three categories: (1) formal investigations initiated by the Commission under sec. 22 of the Shipping Act, 1916, (2) proceedings initiated by the filing of a formal complaint, under sec. 22, by a private party, and (3) an evidentiary hearing incident to a formal rulemaking proceeding. The line of demarcation between the first and third types is not always entirely clear.

process would be eliminated, in the particular case, by a settlement or stipulation.

Rule 6(a) of the Commission's rules of practice and procedure is designed to encourage settlements. Rule 6(c) is intended to obviate the need for unnecessary hearings by setting up a procedure for the satisfaction of formal complaints and the subsequent dismissal of the proceeding. Rule 6(d), covering prehearing conferences, provides that one of the matters to be taken up at a prehearing conference is the possibility of settlement. Thus the tools are at hand in this agency to prevent delays by failure to stipulate facts and to settle cases.

(3) Pleading, proposed findings, and filing briefs: The pleading stage has not caused delay in our proceedings except motions and applications relating to discovery and subpenas. Nearly 3 years ago the courts decided that the Commission's rule, permitting the discovery and requiring the production of documents and data was not authorized by statute. More recently, the courts have held that even our subpena power is limited to cases where a violation of the statute is alleged. This excludes the use of subpenas in licensing cases and rate cases wherein a violation is not alleged.

The elimination of our discovery power has resulted in a classic demonstration of the frustrations and delays that are caused by the use of "trial by intervals" or "hearing in interludes" where the subpena power alone must be relied upon. Many of our proceedings also have been delayed substantially by a war of motions over the issuance of subpenas. These delays were seldom experienced when the examiner, armed with discovery powers, worked with the parties to reach reasonable solutions on the question of production of data and documents. The matter of filing briefs has, in a few instances, caused delay because counsel have insisted on taking excessive periods of time for preparing benefits.

(4) Waiting for and conducting hearing: In some cases there is too much delay between the pleading (prehearing) stage and the hearing. In my own cases this has resulted on some occasions from the fact that counsel for all the parties insist that they cannot be ready sooner. This ordinarly occurs when the real delaying party is the applicant who is seeking a rule, license, or approval of the Commission. Delay does not prejudice any other party, so there is a tendency to go along with the applicant's requests for delay. Unfortunately, such justified delays are not taken into account when the cold, unexplained statistics of the agency are studied.

The writer has not encountered delay in the hearing itself. It is my practice to discourage repetitious and cumulative evidence: Stipulations and encouraged. Adjournments and interruptions of the hearing are permitted only where they are absolutely necessary. "Hearing by interlude" can be a major cause of delay.

(5) Waiting for initial decisions: In this agency, the time between filing briefs and issuance of initial decisions is relatively short.. Our Chief Examiner employs a most effective system for balancing the caseload between examiners with the result that we can usually start preparing the initial decision as soon as the briefs are filed. He does this by means of keeping a constant check on the docket of each examiner not to press the examiner but, rather, to see that his decisions are not delayed due to an overload of cases when related to the load of the other examiners. While we are proud of our record

in expediting the conclusion of cases, we do not feel that expedition should be permitted to interfere with the deliberation and care that is vital to sound decisions.

(7) Matters affecting the total process: Several years ago, the writer conducted the staff work in arranging the Attorney General Conference on Court Congestion and Delay in Litigation and served as editor of the published proceedings of that Conference. The writer was convinced at that time that delay in litigation is caused, fundamentally, by the attitude of lawyers (all of us) that delay is just a fact of life. We are either unconcerned or feel that nothing can be done to eliminate delay. American lawyers have grown so accustomed to a 2-year wait, or more, between the date of filing a suit in court and final judgment that they take this as the norm. After 8 years' experience in administrative trial type proceedings, I am convinced that this same attitude prevails in this field too.

This is not to say that there are not procedural devices that will help speed the administrative process. However, I do feel that if all lawyers were caused to feel that all cases can and should be expedited-and that dilatory tactics should never be employed-delays would soon be reduced to a minimum.

2. Possible causes.-Only one distinguishing feature between the proceedings of the various agencies that causes some to experience greater delays than others occurs to me. In agencies where the examiners have many relatively small cases on their individual dockets at any one time and have to schedule an itinerary where the hearing in one case must follow immediately the hearing in another, the examiner is less likely to be swayed by requests of counsel for postponements. He cannot permit delays and still maintain his schedule. The bar realizes this and undoubtedly make a greater effort to meet the schedule.

3. Trends. The only trend I see just now at FMC is the result of a modernization of our rules of practice and procedure which went into effect October 26, 1965. One very important change therein is the delegation of authority to examiners to rule on motions to dismiss. This saves a great deal of time. Another important timesaving improvement brought about by the new rules was the closing of a loophole in the old rules that permitted interlocutory appeals to the the Commission. Such appeals were extremely time consuming, of

course.

4. Priorities.-The following order of priorities is ordinarily observed in the Office of Hearing Examiners of this agency:

(1) Proceedings which the Commission is required by law to expedite. This would include (a) cases in which Congress has established a deadline, such as in the dual-rate cases; (b) suspension cases under section 3 of the Intercoastal Shipping Act, 1933; (c) cases concerning Governor's protests under section 16 of the Shipping Act, 1916 as amended by section 6 of Public Law 87-346.

(2) Cases in which imminent harm or irreparable injury would result if quick relief were not afforded. Depending upon the urgency and importance of the matters involved, such as the threat of rate wars, loss of licenses, this type of case would be given top priority.

(3) Cases as to which a committee of Congress or a court has directed expedition, and which expedition the Commission finds

to be in accord with the purposes and policy of the shipping acts which it administers.

(4) Cases which the Commission believes involve the greatest public interest. For example, cases instituted to correct violations or regulate practices on a nationwide basis, cases concerning the validity of entire rate structures involving the economy of areas such as Hawaii, Alaska, and Puerto Rico, and of the carriers which serve such trades.

(5) As to cases not in the first four classifications, we observe the rule of first come, first served, as do the courts, otherwise, due process would be denied some who have the lowest priority. 5. Adopted remedies.

(a) Settlements: The writer, at the prehearing conference in every proceeding, explores with counsel possibility of settlement or the stipulation of the facts on issues that are not seriously contested.

(b) Pleadings: As stated above, the FMC revised its rules of practice and procedure in October 1965. Two major changes have expedited the handling of motions. The examiners are now authorized to rule on motions to dismiss. A loophole in the old rules that permitted interlocutory appeals to the Commission from various rulings of the examiner has been eliminated. Both of these changes have expedited the proceedings in this Agency.

(c) Briefs: Delays will result if counsel are given all the time they wish for preparation of briefs. If a lawyer has 60 days to prepare a brief, it takes him 60 days to prepare it (often because he does not start until the 50th day). If he has 10 days, it takes 10 days to prepare the same brief.

(d) Prehearing: The importance of a properly conducted prehearing conference in reducing delays cannot be overemphasized. Prehearings are held in substantially every proceeding before the FMC examiners. At each conference the following points are taken up, insofar as they are applicable to the particular proceeding:

a. Possibility of settlement.

b. Possibility of stipulation of facts on uncontested issues.
c. Formulation and simplication of the issues.

d. Amendments to the pleadings.

e. Admissions of facts and documents and discovery of facts and documents (on a voluntary basis).

f. Distribution among the parties, prior to hearing, of written testimony and exhibits.

g. Exchange of names of witnesses.

h. Consolidation of examination of witnesses by counsel.

i. Such other matters as may aid in the disposition of the proceeding.

The success of the prehearing depends upon the examiner taking an active part in order to see that its purposes are accomplished.

(e) Waiting for hearing: Here again, the examiner must keep firm control of the proceeding and see that the hearing is set down a reasonably short time after the case is ready for trial. Firmness in this ruling is essential because counsel on one side or both-often the applicant-will have many reasons why the matter cannot be heard for another 30, 60, or 90 days.

(f) Initial decision: Time can be saved at this stage by the examiner making his digest and analysis of the record without waiting