(d) Normal contentions or issues.
(e) Relatively small records.
(f) Narrow effect of decisions.
'Unusually difficult and important' cases are said to contain three or more of the following elements:
(a) Many complicated or controverted facts.
(b) Strong protestations against proposals made, authority sought, existing rates, practices, or violations.
(c) Complex legal, technical, economic, or financial questions or matters.
(d) Normal contentions or issues.
(e) Large records.
(f) Fairly wide effect of decisions.
The characteristics of 'exceedingly difficult and important' cases are said to be three or more of the following:
(a) Numerous complicated or controverted facts.
(b) Vigorous protestations against proposals made, authority sought, existing rates, practices, or violations.
(c) Extremely complex legal, economic, financial, or technical questions or matters.
(d) Novel contentions or issues.
(e) Extremely large records.
(f) Wide effect of decisions.
Three or more of the following elements are said to characterize 'exceptionally difficult and important' cases:
(a) Many highly complicated or controverted facts.
(b) Many vigorous protestations against proposals made, authority sought, existing rules or practices, or violations.
(c) Exceptionally complex legal, economic, financial or technical questions or matters.
(d) Many novel contentions or issues.
(e) Voluminous records.
(f) Very broad effect of decisions.
These general criteria are supplemented with brief summaries of actual cases which are deemed by the Commission to illustrate the difficulty and importance of the class of cases involved.
The vagueness and lack of objectivity in these criteria is apparent from a reading of them. What rational distinction can be drawn between 'extremely' complex legal questions and 'exceptionally' complex legal questions? How can one measure the vehemence of protestations so as to distinguish 'strong' protestations from 'vigorous' protestations, especially in advance of the hearing at which the protestations are to be urged? The regulations leave these and many similar questions unanswered. A practical illustration of the uncertainty of these criteria is found in an affidavit of plaintiff Curtis C. Henderson in which he deposes that an audit by the Civil Service Commission of work being performed by examiners in his agency disclosed that four GS-11 examiners were doing work of a level of difficulty and importance equal to GS-13 examiners, and that a GS-12 examiner was doing work of a level of difficulty and importance equal to GS-14 examiners. Although portions of this affidavit are controverted by defendants, the above assertions are not controverted and in at least one instance are corroborated by the affidavit of Paul Pfeiffer, filed on behalf of defendants.
Another grave flaw in the regulations is their failure to specify who shall apply these criteria in assigning cases. There can be no question that if the regulations make possible the participation of a litigating agency in selecting or avoiding any trial examiner, they offend the act. It is equally without question that the nebulous and subjective character of the criteria makes it possible for the one who assigns cases to select and avoid particular examiners in making assignments, and that the failure to specify who shall apply the criteria makes possible the participation of litigating agencies in such selection and avoidance.
Defendants have argued that the practice in most of the large agencies is to have the assignments made by chief trial examiners independently of the litigating agency. Plaintiffs dispute this assertion and have filed affidavits specifying agencies which have exercised and now exercise a part in making assignments. But whatever the true facts may be, defendants do not meet the objection by asserting that most agencies do not offend. The regulations themselves must be clear and definite in putting the power of assignment beyond the control or suggestion of litigating agencies.
The court does not now pass upon the validity of assigning administrative work to chief examiners. It is sufficient for the purpose of this case to note that neither the act nor the regulations makes provision for a chief examiner who is granted discretion as to assignment of business of agencies.
As to the provisions of the regulations authorizing separation of hearing examiners by reductions in force, the court is of opinion that these, too, are contrary to section 11 of the act. The importance of security of tenure to independence of judgment needs no argument, and was clearly recognized by the Attorney General's Committee on Administrative Procedure in their final report of 1941, which recommended fixed terms of 7 years for examiners. (Final report of Attorney General's Committee on Administrative Procedure, pp. 46-47). The court finds it significant that reduction in force provisions in earlier drafts of legislation governing administrative procedure were omitted from the Administrative Procedure Act as passed, which provides in section 11 that examiners shall be removed only for good cause established after hearing and upon the record thereof. (Emphasis added.) See H.R. 184, Seventy-ninth Congress, first session, section 302(5)(c); H.R. 1206, Seventy-ninth Congress, first session, section 308(c)(3)(a). Both sides appear to agree that this provision of the act does not comprehend separation by way of reduction in force. But counsel for defendants argues that the status given hearing examiners by section 11 of the act is made subject to the other laws governing Federal employment to the extent not inconsistent therewith, and that reduction in force procedures are thereby made applicable to hearing examiners. Counsel for defendants has also urged the absurdity of having to retain hearing examiners on the payroll with no work for them to do. In view of the provisions of section 11 which authorizes inter-agency 'borrowing' of hearing examiners, however, the court cannot say that Congress did not contemplate such possibility and undertake to meet it accordingly.
The remaining provision of the regulations under attack is that which relates to conditional appointments. Plaintiffs claim that the provision enables agencies to hold a club over the heads of new examiners by keeping them in a conditional status if their decisions are unsatisfactory. The court is not impressed by this argument, since it appears that such conditional status is intended chiefly to meet emergency situations where the services of extra hearing examiners are immediately needed, and that an examiner's transfer from conditional to unconditional status is determined upon independent inquiry by the Civil Service Commission. The court also notes that the final report of the Attorney General's Committee on Administrative Procedure, which contains abundant evidence of that body's awareness of the dangers of agency influence, recommended conditional appointments of hearing examiners in certain situations. Final report of Attorney General's Committee on Administrative Procedure, page 48.
Plaintiff's motion for summary judgment will be granted as to section 34.4, 34.10, 34.12, and 34.15 of the regulations, and denied as to section 34.3(c), concerning conditional appointments. Defendant's motion for summary judgment will be denied except as to section 34.3(c) of the regulations.
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