Further, about 40 new field attorneys have recently been recruited for the field offices. These new additions should greatly facilitate the handling of field investigation of cases, special projects, etc., as soon as they receive the neces sary training. Remarks: This is the memorandum I referred to yesterday which I think will be helpful to the Chairman in the Budget hearing on October 17, 1969 in responding to Question I A (1) concerning criticisms with respect to delay in handling case workloads. In addition to the procedures in the attached memorandum, the Chairman may also desire to refer to the Commission's publication in the Federal Register on 8-11-69 delegating authority to Bureau Directors and Assistants to issue investigational subpoenas, which was essentially for the purpose of reducing delays in investigations. He may also desire to note that on 6-4-69 the Commission referred to the General Counsel suggestions by several hearing examiners (in response to Commission Minute of 2-26-69) for reducing delays in trials; and that the General Counsel referred this to the Rules Committee which now has under consideration specific proposals of this sort to submit to the Commission. MEMORANDUM To: John N. Wheelock, Executive Director. JULY 28, 1969. From: Cecil G. Miles, Director, Bureau of Restraint of Trade. By Minute date June 11, 1969, the Commission directed the Bureaus of Re straint of Trade and Field Operations to inform the Commission of procedures which can be adopted to eliminate the type of delay which occurred in File No. 631 0235. The investigation in this matter was initiated in 1963. On May 13, 1963, the file was forwarded to the Bureau of Field Operations: on May 3, 1968, the Bureau of Field Operations forwarded the investigational files to this Bureau; and, on March 12, 1969, this Bureau forwarded the files, with recommendation for clos ing, to the Commission. (The Bureau of Field Operations is submitting a sep arate memorandum which deals with the history of assignments in the field of fices to date of completion of the investigation. The assignments and transfers to field offices will not, therefore, be repeated here.) This Bureau has been dealing with this subject for some time. In an effort to solve, administratively, the joint problems of manpower and delay, this Bureau proposed a Planning and Priorities Program to the Commission by memorandum dated December 24, 1968. I recommend, again, that the Commission consider and approve the pending Planning and Priorities Program as a basis for selection of cases, initiation of investigations, evaluation of pending cases and a system for re-evaluation of cases in relation to manpower and workloads. The Bureau has made a great effort to adjust its caseload and complete the highest priority assignments of the Commission in relation to its available manpower. With our memorandum of June 13, 1969, we forwarded a list of 109 directives, covering a broad range of Commission directives to the Bureau in a without evaluation as to manpower commitments. However, in adjusting the directives, covering a broad range of Commission directives to the Bureau in a six month period. All Commission directives are accorded the highest priority without evaluation as to manpower commitments. However, in adjusting the special directives to manpower, we are aware that such adjusting displaces another assignment. It does result in cases getting older. Even with the adjustments being made, this Bureau completed over 300 cases which were pending 18 months or more. The Bureau has developed and is currently using procedures which will head off delays occurring during the various phases of a case. However, these procedures have been developed on an ad hoc basis. In brief, these procedures are as follows: 1. A memorandum of April 18, 1969 by the Director, of this Bureau provides in effect, that proposed complaints submitted by the staff will be forwarded to the Director within 30 days, or that a report will be submitted as to why not. This is intended, of course, to avoid prolonged delays in connection with matters in which staff attorneys have prepared and submitted complaints. 2. A memorandum of June 10, 1969 by the Director of this Bureau provides in effect, that when a 7-digit matter is received from the Bureau of Field Operations, a copy of the history sheet be sent to Mr. Lipsky. This will enable the Director's Office to keep track of such matters and their progress. This is limited to 7-digit matters received from the Bureau of Field Operations. I find no comparable procedure, however, for dealing with 7-digit matters in this Bureau which have not been assigned to the field. 3. In response to a request of January 28, 1969 by the Chief, Compliance Division of this Bureau, the Acting Director of the Bureau of Field Operations, on April 16, 1969, instituted a procedure in the field offices to provide more meaningful progress reports and completion dates, and to provide for regular re-evaluation by the Attorney in Charge for reassignment of cases which are aging unduly. 4. By a notice to the staff of this Bureau, on October 11, 1968, the Acting Director reported a procedure agreed upon with the Bureau of Field Operations to enable the staff to make an informative status or interim report on matters returned to the staff by the Commission. Essentially this procedure provides for inquiry by the responsible attorney in this Bureau to the Bureau of Field Operations concerning the status of the matter at least 10 days before expiration of the time limit. This procedure is designed to deal particularly with matters involving responses to Commission directives. 5. AM 6-051.14D (4) provides for a simplified procedure for submitting acceptable recommendations by the field attorneys for closing 7-digit investigations. This procedure was intended, among other things, to expedite the handling of such matters and to avoid the preparation of extensive memoranda which would do no more than summarize the memoranda of the field attorneys. 6. AM 6-055.4 provides, in effect, that assurances of voluntary compliance shall be forwarded to the Commission within 60 days after they are received from the field or are executed by attorneys in this Bureau, subject to extension by the Division Chief. 7. AM 6-051.15 provides, in effect, for expedition in the handling of this Bureau of recommendations by field offices for complaint. Such recommendations are to be immediately assigned, and within 30 days a time is to be fixed for their submission. While the foregoing measures suggest steps taken by this Bureau to eliminate problems of delay, they do not provide for the basis of dealing with the overall problem of manpower and expedition of cases. The Bureau of Field Operations and this Bureau make every effort to coordinate work demands in the framework of available manpower. In specific cases, as they occur, the staff of this Bureau contacts the Bureau of Field Operations. While the Bureaus have coordinated their efforts and have moved particular cases, it is at the expense of other cases. I recommend, again, that the Commission consider and approve the Planning and Priorities Program, proposed by this Bureau on December 24, 1968. Respectfully submitted, CECIL G. MILES, Director, Bureau of Restraint of Trade. BUREAU OF THE BUDGET QUESTIONS (Submitted by Frank C. Hale-1969) Question I. A (1). Delay in handling case workloads. You have asked for views on specific criticisms of the ABA study with respect to delay in the handling of case workloads. The ABA study accurately reports that "the problems of delay have vexed the FTC ever since it was established-". Practically every study made of the Commission, whether by persons outside the Commission or by staff members, has devoted considerable attention to the problem of delay. When I came to the Commission 1961, this was one of the first problems I attempted to deal with Through various changes in our rules of practices for adjudicative proceedings. we have succeeded in eliminating much of the delay in disposing of matters in which complaints have issued. For example, we have adopted a rule which requires that, wherever practicable, hearings shall be held in one place and continue without suspension until concluded. Our prehearing discovery procedures were revised, as were procedures for interlocutory appeals. These and other revisions were designed to speed up adjudicative proceedings. Delay in the handling of investigations can result from (1) lethragy or ineptness on the part of individuals, or (2) from inappropriate or cumbersome pro cedures, such as, for example, excessive review, or (3) from too large workloads. There is no question but that too large workloads is the principle cause for the delay in the handling of investigations criticized by the ABA commission. We are simply trying to do too much with too little. Let me cite some statistics about the workload in our Bureau of Deceptive Practices. At the end of Fiscal year 1967, there were 1210 investigations pending. During that year a total of 666 new investigations were open. 1210 investigations are simply too many for the staff to handle. Delays were bound to and did occur. In Fiscal 1968, we began a concentrated effort to reduce the caseload to manageable limits. Since a majority of the Bureaus' resources are committed to required programs such as, Fair Packaging and Labeling, D.C. Consumer Protection, Cigarette Advertising, etc. the only way the workload could be reduced was by not opening new investigations. In Fiscal 1968, only 388 new investigations were initiated and at the end of that year, the caseload had been reduced to 1076 investigations. But this was still too large especially since the Bureau had been given the additional assignment of administering a Truth in Lending Law, as well as, a number of other project-type assignments. The policy of being highly selective in opening new cases was continued through Fiscal 1969, when only 192 investigations were initiated. By the end of Fiscal 1969, the Bureaus caseload had been reduced to 781 investigations. We are attempting to deal with the problem of delay every way we can think of, including demanding more from the professional staff, streamlining pro cedures wherever possible, and reducing the workload to manageable limits. MEMORANDUM SEPTEMBER 24, 1969 To: Professional Staff, Bureau of Deceptive Practices. The Commission has directed that all field office recommendations for consent orders or assurances of voluntary compliance be acted upon by the headquarters staff within 30 days and moved to the Commission or returned to the field within that period of time. It was further directed that exceptions to this policy should not be made by supervisory personnel except for the most compelling reasons, which should not include the normal shortage of manpower or pending assignments to "higher priority" matters, and that consent orders and AVC's should themselves be regarded as high priority matters. MEMORANDUM FRANK C. HALE SEPTEMBER 8, 1969. To: Executive Director. From: Frank C. Hale, Director, Bureau of Deceptive Practices. This is in response to your request for comment on the proposal that the Commission direct that "all formal investigations opened by the staff be limited to a maximum authorization of 400 man hours and a maximum duration of six months, unless the Eexecutive Director personally waives the limitation upon a request made personally by the Bureau Director on a showing of good cause". The objectives of the proposal, as I understand it, are to insure that the staff does not spend an excessive amount of time on cases in which there is little public interest, sometimes characterized as trivia, and to insure that unnecessary delay does not occur in the handling of cases. I certainly do not quarrel with these objectives. Mr. Rogal and I have spent a considerable amount of time during the past 15 months in an effort to accomplish these objectives. We have instituted numerous procedures and controls to deal with the problem and progress has been made, but we recognize that it has not been solved. There are investigations still in the Bureau on which it appears that an excessive number of man hours have been spent and there are investigations which have been pending too long. Everyone of these investigations is being reviewed and action is being and will be taken to clean up our docket. While I am in complete accord with the objectives of the proposal, I believe that adopting it in its present form would create more problems than it would solve. Among other things, the procedures it would be necessary to establish to comply with such a directive would be unduly burdensome and would require considerable time. For example, suppose a case is being investigated in a field office and the attorney has spent around 350 hours on it. He knows that it is going to take more than 50 hours to complete his work. He would have to take time out and write an explanation and ask for an extension. His request would have to be reviewed by the Attorney-in-Charge of his office, by the Director of Field Operations, by the Director of the cognizant bureau, and by the Executive Director. If an extension should be granted for the investigating attorney to complete his work. I assume the headquarters attorney would have to request another extension when the case reaches him. In short, I think the proposal is impractical and, I would like to think, unnecessary. It is true that we have had cases on which too much time was spent and in which there was too much delay. We have been severely criticized. Other cases like these will be going to the Commission and, no doubt, there will be more criticism. These relatively few "horrible examples", in my opinion, should not prompt the Commission to issue impractical directions. The problem which the proposal seems designed to deal with is a management problem which should be dealt with at the bureau level. The Commission has made it very clear that it does not want the staff to spend its time on trivia (but what is trivia to some is not always trivia to others) and that all unnecessary delay should be eliminated. That should be all the direction bureau and management needs from the Commission. The proposed limit of 400 man hours on an investigation would be ample for most of the cases originating in the Bureau of Deceptive Practices, but the practical problems mentioned above seem to me to outweigh any advantages from imposing such a limitation. In fiscal 1968, the average number of manhours spent on 477 cases closed was 227; in fiscal 1969 the average was 288 on 451 cases. The six months duration limitation would cause problems. Obviously, if we could assign a matter to an attorney and give him no other assignment, he could complete almost any matter in less than six months. But we simply cannot work that way. Every attorney has a sizeable docket and priorities have to be determined. The Attorneys-in-Charge of field offices and the management of the Washington bureaus must work together in determining priorities. There is need for all attorneys, and particularly the division chiefs. to continuously review their dockets to be sure that investigations are not unduly delayed. This is being done in our Bureau. Instead of the specific direction which has been proposed, I suggest that consideration be given to directing that a periodic review (possibly at the end of each six months) be made of every investigation which has been pending for a specified period of time (one year for deceptive practice cases is suggested) and that a report setting forth results of the review be submitted to the Commission. Respectfully submitted, FRANK C. HALE. MEMORANDUM SEPTEMBER 3, 1969. To: Mr. Frank C. Hale; Mr. Cecil G. Miles, Mr. C. R. Moore. To confirm my telephone conversation with you as of this date, the following motion was presented today at the table: I move that all formal investigations opened by the staff be limited to a maximum authorization of 400 man hours and a maximum duration of six months, unless the Executive Director personally waives the limitation upon a request made personally by the Bureau Director on a showing of good cause. Please consider the above in light of the usual manhours required for an investigation and also the time limitation. I believe the consensus of the Commis sion is that this type of directive should be issued. In other words, they wish to place the responsibility for longer investigations on the Bureau Directors and the Executive Director. Please have in mind alternatives as to specifics. As indicated, we will meet in Mr. Miles' office at 9:30 A.M. on Friday morn ing, September 5. JOHN N. WHEELOCK, Executive Director. MEMORANDUM To: The Professional Staff, Bureau of Deceptive Practices. JUNE 27, 1969. Until further notice, all requests for extensions of the time in which to negoti ate a consent settlement will be filed in the Office of the Chairman. At least three (3) copies of the requests and attachments should be presented. Requests for an extension should give a clear and concise reason why the requests should be granted and should indicate whether any extensions have been previously granted. Approved: WILLIAM W. ROGAL FRANK C. HALE, Director, Bureau of Deceptive Practices. MEMORANDUM MARCH 17, 1969. To: John N. Wheelock, Executive Director. From: Frank C. Hale, Director, Bureau of Deceptive Practices. It has been the policy of this Bureau to treat complaint matters on an expedite basis. In some instances, because of manpower shortages, heavy work assignments, resignations, inexperience of new personnel and other uncontrollable factors, we do encounter some delays. Concentrated efforts have been made to reduce the caseload, which has been unbelievably large. This has been done in a two-prong fashion: (1) by reducing the number of investigations initiated and (2) a mass effort to reduce the investigations pending. For example, a year ago there were almost 1,200 investigations pending in the Bureau and by using every bit of manpower available and by the use of personnel outside the Bureau, we managed to reduce the number of pending cases to approximately 700 pending investigations. In addition, delays |