Hearst Corporation

Text (OCR of the scan at left; may contain errors)

1028 FEDERAL TRADE COMMISSION: . DECISIONS Otder 81 FTC.

On September 6, 1972, the staff'of the Commission filed with the Commission an‘ answer to respondents’ petition. The Commission has determined that, pursuant to-Section 4.7 of the Commission’s Rules of Practice, respondents shall receive a copy of any opinion or recommendation’ adverse to their petition of August 7, 1972, which is submitted either by.a person who is not employed by the Commission or ~ an attorney of the Commission who performs any investigative or prosecuting function in connection with the proceeding. ‘Therefore, respondents should be furnished ‘with a copy of the answer to their pétition. The Commission has also determined that respondents’. petition ‘of August’7, 1972, and the answer thereto contain sufficient information to: enable the’Commission to render:an informed: decision on the issues raised therein and that the submission of further responses or the presentation of oral argument are unnecessary. Accordingly, “It is ordered, That. respondents be furhished witha copy of the answer to respondents’ Petition for Modificationof the Order in Docket No. 022945: eo ce ‘Itis further ordered, That respondents’ requests to submit:a, written brief and to ‘present oral-argument be,-and they, hereby. are,,denied.. . THE HEARST CORPORATION, ET AL.

Docket 8832. Order, Oct. 30, 1972.

Order dealing with question of re-employment of administrative law judge who is scheduled to retire prior to his completion of this case. Orver Disposine oF CERTIFICATION OF Motion Before the Commission is a certification by Administrative Law Judge Goodhope of a motion by respondents requesting the Commission to determine and recommend to the President that the public interest requires the temporary re-employment of Administrative Law Judge John B. Poindexter for purposes of completion of the trial and rendition of an initial decision in this matter. In support of their motion respondents show that commencing on April 11, 1972, twentytwo days of hearings have been held in four cities and some fifty-five witnesses called by complaint counsel have testified. Additional hearings are to be scheduled with complaint counsel and respondent calling additional witnesses.

On September 21, 1972, the Acting Director, Office of Administrative Law Judges, issued an order substituting Administrative Law Judge Andrew C. Goodhope for Judge Poindexter. The latter will INTERLOCUTORY ORDERS, ETC. . 1029 1021 Order reach mandatory retirement. age in November.1972 and under the Civil Service Retirement Act. will automatically be separated from Federal Service on-the last day.of that month. Jt appears the. hearings cannot beconcluded by thattime..§ 5 0 oo: _. : .

Respondents ‘move: in. the alternative for an order, striking. the present record.and directing de novo hearings, contending that credibility of witnesses will be an issue in this case, and that one hearing officer should observeall the witnesses. ned oo bho. 7 dn their answer, complaint counsel join the respondents’ request that Administrative Law Judge Poindexter be reemployed for the purpose, but. do‘not agree that de novo, hearings is the only other available option. © 82 § oe yah A ote ee ee ee a . As:.to..respondents’.. motion. that. the Commission. determine and recommend \to.the, President that. the public interest: requires the tem- ‘porary re-employment, of Administrative Law Judge Poindexter, the question. of requesting extension: of employment of,a hearing officer:is not within. the scope, iof. the. Commission’s .adjudicatory. powers, but is.an administrative, decision that lies:solely within the authority. of ‘the: Chairman of, the Federal. Trade Commission:, Reorganiz atio Act of 1949,:63 Stat. 203,:as- amended, and Reorganization Plan. No. 8 of 1950, 64 Stat. 1264,-As. indicated ;in :previous. interlocutory orders in this case, the Chairman is not participating in any adjudicative aspects of this proceeding. However, in his role as head of administrative operations of this agency, he has informed the Commission that itis his policy not to seek extensions of employment beyond the compulsory retirement age of employees under his supervision, including hearing officers, and that no such extension or re-employment will be sought in this instance.

In his certification of the above motion, Administrative Law J udge Goodhope indicated that “under controlling authorities” respondents’ alternative motion to strike the record and commence de novo hearings would have to be granted should Judge Poindexter’s employment not be extended. Complaint counsel, as an alternative, urged that Judge Poindexter could be requested to submit a report to the new administrative law judge including his assessment of the credibility of witnesses whom he saw and heard. Administrative Law J udge Goodhope did not comment on this proposed alternative, but cited Gamble- Skogmo, Inc. v. Federal Trade Commission, 211 F. 2d 106 (8th Cir. 1954) and 2 Davis, Adm. Law Treatise, § 11.18, p. 113, as “controlling” and as requiring de novo hearings.

However, we do not read the decision in Gamble-Skogmo as automatically foreclosing other possible alternatives. In that case, the one 1030 FEDERAL TRADE: COMMISSION “DECISIONS Order 81 F.Tic.

hearing examiner who heard’ all the witnesses ‘retired ‘and ‘the ‘initial decision was prepared” ‘by his successor ‘who’ did not: hear:any of the witnesses and who had not received & report from'the first examiner as to his assessment of the credibility of those ‘witnesses who: gave conflicting’ testimony. The ‘case’ stands ‘for ' the ‘proposition: that ‘where credibility ‘evaluation of witnesses constitutes an important aspect of the case, démeanor evidence shouldbe: preserved. 2-Davis, Adm. Law Treatise § 11.18; Appalachia Power Co. v. FP.C., 328 F. 9d: 287 (4th ‘Cir. 1960). But ‘as Professor Davis has ‘suggested, this can be accomplished ' ‘by having the first hearing officer make-a report: on’ the credibility of ‘witnesses he has’ heard prior to the titne. he‘ becomes unavailable to the agency. 2 Davis, Adm. Law Treatise, p. 113.* As to ‘questions of credibility that may arise should: respondents call ‘witnesses whose testimony’ ‘directly conflicts with the testimony given by witnesses’ who ‘have already: testified, ‘respondents can always'be given the ‘opportunity to have'the latter witnesses recalled:so: that the new administrative law judge én also observe their demeanor while'on the witness stand. See George McKibbin & Son; 56 F.T.C. 1645. (1959) 2 We think the administrative jaw judge, ‘in ruling'on the respondents’ alternative motion, should ‘consider whether ‘these alternative: procedures would be appropriate ‘in ‘the’ circumstances of this ‘case: In making such a determination, he should feel free to consult with Administrative Law Judge Poindexter, as well as hearing from the parties.

The-matter is remanded for further proceedings. It is so ordered. Without the participation of Chairman Kirkpatrick and with Commissioner MacIntyre agreeing only to the result of the remand for further proceedings.

11t is not unprecedented for more than one hearing officer to each file-reports on the part of a case in which each presided. See Note, “Replacing Finders of Fact—Judge, Juror, Administrative Hearing Officer,” 68 Col. L. Rev. 1317, 1334 n. 97 (1968) (“it is common practice in the ICC to have different examiners hear the evidence offered by different parties”) ; Davis, Adm. Law Treatise, 1970 Supp., p. 431. 2In the McKibbin case, the Commission reviewed the holding in Gamble-Skogmo, and stated:

“This case cannot be considered as authority for respondents’ broad position that a trial de novo must be granted whenever the credibility of witnesses who have testified before the original hearing examiner is in issue. * * * [I]t is believed that in most instances the parties’ procedural rights would be fully protected if the witnesses who have given conflicting testimony are recalled solely for the purpose of cross-examination.” The Commission upheld the hearing examiner’s denial of a motion for a trial de novo.