"The Act sought to afford all affected by administrative powers a means of knowing what their rights are and how they may be protected, to prescribe minimum procedural requirements for making general regulations and for adjudicating particular cases; and to state clearly the jurisdiction of the courts."

Thus, APA seeks to provide justice, in a fundamentally fair way, to those who are affected by the actions of administrative agencies. This goal, however, is not being fully achieved.

DELAYS IN THE PROCESS

After hearing cases, which take an average of 1 to 5 days each, the Administrative Law Judges and agencies together take hundreds, in some instances thousands, of days to reach final decisions. The following chart shows the average (mean and median) time involved in completing hearings, reaching initial decisions, and performing the agency reviews for high volume type cases handled by the Department of Labor, Occupational Safety and Health Review Commission, Interstate Commerce Commission, and National Labor Relations Board.

The Senate Committee on Governmental Affairs 1/ also was concerned with delay in the process. It looked at 11 types of cases at 7 different agencies 2/ and determined that on an average none took less than 800 days from referral to the final decision. Of the 11 types of cases, 5 took from 1,109 to 1,377 days to reach the final decision. The Committee concluded that most Federal regulatory proceedings are characterized by seemingly interminable delays and noted that, in addition to being very costly for. Government and consumers and industry, undue delay prevents agencies from fully achieving their purpose.

Of the 692 ALJS responding to our question on delay, 67 percent said there is unnecessary delay in the adjudication process. Other individuals knowledgeable about the process also have cited delay as a critical problem to achieving fair and expeditious resolution of conflicts. For example, in 1971 the chairman of the Administrative Conference of the United States wrote:

"While administrative agencies were created to pro-
vide expeditious determinations of matters that courts
and legislatures could not effectively handle, a con-
tinuing chorus of complaints of delay in the admin-
istrative process indicates that the ideal has not yet
been achieved."

The President's Advisory Council on Executive Organization (the Ash Council Report) also concluded in 1971 that

"over judicialization of the administrative adjudi-
catory process as evidenced by systematic full com-
mission review of agency hearing examiner decisions,
frequently characterized by de novo review [3/] of
findings and legal issues raised in hearings has un-
duly prolonged proceedings and nurtured high case
backlogs leading to ineffective uses of agency re-
sources and unjust burdens on the parties."

1/See footnote 1/, p. 4.

2/Five of the 11 cases involved ratemaking at CAB, FMC, ICC, and FPC. The other six cases involve approvals of mergers and securities issues at ICC, antitrust cases at FTC, nuclear powerplant licensing at NRC, merger cases at CAB and AM radio cases at FCC.

3/de novo review is essentially a complete review of the

case.

Numerous causes have been identified as contributing to delay; cumbersome and over formalized agency procedures; tactics outside parties use to forestall action; generic problems--the system itself; lack of penalties for parties or protestors who do delay; and lack of clear policies, priorities, standards, and deadlines. This chapter focuses on two factors--the agency review process and over formalization.

AGENCY REVIEW OF ALJ DECISIONS

The agency review of ALJ decisions for the selected cases at Labor, ICC, and OSHRC involves multiple review layers and numerous personnel and highlights the problems inherent in the current review process. For example, before the Assistant Secretary for Labor-Management Relations at Labor makes a final decision in a Federal Labor-Management Relations case an ALJ adjudicates, the ALJ decision will have been reviewed by:

--The Director, Division of Operations, Office of
Federal Labor-Management Relations.

--A GS-15 supervisor in the Division of Operations.
--A staff member in the Division.

--The agenda committee consisting of the Director and
Députy Director of the Office of Federal Labor-Manage-
ment Relations; the Director, Division of Operations,
and his three supervisors; and the Director, Division
of Regulations and Appeals.

--The case committee consisting of an associate
solicitor or deputy associate solicitor, Director or
Deputy Director of the Office of Federal Labor-
Management Relations, Director of the Division of
Operations, and Director of the Division of Regula-
tions and Appeals and sometimes a representa-
tive of the Assistant Secretary's office. 1/

1/Since completing our review work in November 1977, Labor is proposing a change to its unfair labor practice proceedings that will provide for the Assistant Secretary to accept the recommendations of ALJS to the extent they are consonant with law and regulations of other appropriate authorities unless timely exceptions are filed.

An internal study at ICC points out that section 17 of the Interstate Commerce Act "mandates a cumbersome appellate process resulting in repetitious reviews." With the exception of railroad cases, current procedures at the agency provide as many as four administrative appeals before an ALJ's decision becomes administratively final. ICC has been unsuccessful in having the Congress amend the legislation to generally allow only one administrative appeal after the ALJ's initial decision and a further appeal only if ICC finds the case involves an issue of general transportation importance, new evidence or changed circumstances.

The review process at OSHRC is also extremely cumbersome. The Office of Central Review, staffed with seven people, prepares an initial memo summarizing the facts, identifying problems or issues, and recommending whether the Commissioners should direct the case for review. Central Review sends the memo to the Commissioners who have their staffs (each Commissioner has 11 people on his staff) review the decision, Central Review's initial memo, and a Petition for Discretionary Review, 1/ if filed. The staff then recommends whether to direct the case for review. Directed cases are returned to Central Review which after about a year, prepares a decision memo recommending how Central Review believes the Commissioners should decide the case. year was taken because the Commissioners, specifically one Commissioner, directed so many cases for review. (In 1976, 92 percent of the ALJ decisions were directed for review but now the Commissioners intend to use more discretion and to limit review primarily to cases where one of the parties objects to the ALJ decision.) Since a year has gone by, Central Review must, however, analyze the case again. Central Review then sends the decision memo to the Commissioners, who give it to their staffs for review.

One Commissioner's staff:

--Limits review to issues the parties raised in the Petition for Discretionary Review, including reviewing the record.

--Applies limited review standards to ALJ findings of fact.

--Reviews extensively the Central Review memo because they believe it contains many errors.

1/A party uses a Petition for Discretionary Review to ask the Commissioners to review certain aspects of the case.

--Prepares a separate decision memo for the Commis-
sioner.

The other commissioner's staff: 1/

--Reviews all significant issues raised in the hearing, and the ALJ's findings of fact and conclusions of law. --Applies preponderance of evidence standards to ALJ findings of fact, and, except for credibility determinations, does a complete review of the record.

--Usually prepares a supplementary memo for the Commissioner.

After the staffs have completed their review, the Commissioners' Chief Counsels meet to reach agreement on the final decision. If they cannot agree, the Commissioners must meet to reach a final decision.

Agencies review ALJs' decisions primarily because (1) they want to maintain decision and policymaking authority and (2) in some instances, because agencies have little assurance that some ALJS' decisions are reasonable and in accordance with agency policy. (Ch. 3 discusses the reasons for agency lack of confidence in ALJS in more detail.) While agencies have the authority to review ALJ decisions, it would seem that less expensive review alternatives are available. For example, NLRB reviews ALJ decisions on unfair labor practice cases only when one of the parties files exceptions. From fiscal years 1975 to 1977, parties have filed 693, 824, and 910 exceptions, respectively. Since the number of exceptions are increasing, NLRB is trying to change its procedure to review only those exceptions deemed to have merit. A provision of the Labor Reform Bill will allow NLRB to summarily affirm ALJ decisions in appropriate

cases.

In 1968 the Administrative Conference of the United States recommended that the Congress amend the APA to authorize an agency to accord finality to the ALJ's decision in the absence of a prejudicial procedural error, a clearly erroneous finding or an exercise of discretion or decision of law or policy which is important and which the agency should review. While the Congress has not amended the APA, it has taken some steps in this direction.

1/The third Commission position was vacant at the time of our review.