MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 81               The value of telephone conferences to the attorney
is discussed in Victor W. Palmer, Administrative Hearings
for the General Practitioner, 73  A.B.A.J. 86 (March 1,
1987). For examples of federal regulations authorizing
telephone prehearing conferences, see 5 CFR § 2434.24(d)
(2000)(Federal Labor Relations Authority, unfair labor
practice proceedings); 9 CFR 202.110(b)(2000)(Department of
Agriculture, proceedings applicable to reparations
proceedings under Packers and Stockyards Act); 28 CFR §
76.19(2000)(Department of Justice, civil penalties for
possession of certain controlled substances; stating,
“Prehearing conferences normally shall be conducted by
telephone . . . .”). An interesting booklet, which contains
not only valuable suggestions, but also a page of additional
information sources, is: American Bar Association (Action
Commission to Reduce Court Costs and Delay, Telephone-
Conferenced Court Hearings: A How-To Guide for Judges,
Attorneys, and Clerks (1983). ⁸²See, 9 CFR § 202.110(b)(2000)(Department of Agriculture, reparations proceedings under Packers and
Stockyards Act; 28 CFR § 76.19(2000)(Department of Justice,
civil penalties for possession of certain controlled
substances). ⁸³See, 19 CFR § 354.11(b)(2000) (Department of Commerce, International Trade Administration; “If a 27 II.  PREHEARING CONFERENCES & SETTLEMENTS           As soon as a case is assigned, the ALJ should thoroughly
study the pleadings (and other filings) in order to assess the
need for a pre-hearing conference and the possibilities for
settlement.  Not every case will require a full-blown
conference, with all of the features described later in this
chapter.  The issues may be relatively simple, the substantive
law or regulations fairly specific, and the facts subject to only
a limited range of disagreement.  In many kinds of proceedings,
the typical case may need only a simple telephone conference call
with the parties⁸¹ and a brief conference report summarizing the
matters which were agreed upon.  Sometimes, the objectives served
by a prehearing conference can be achieved by correspondence
between the ALJ and the parties,⁸²  or by the ALJ directing the
parties to correspond or confer by telephone with each other⁸³.

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES prehearing conference is impractical, the presiding official
will direct the parties to correspond with each other or to
confer by telephone or otherwise to achieve the purposes of
such a conference.”). 84               In response to a search request on the Lexis CFR
data base, on August 12, 2000, for the term "prehearing
conference," Lexis reported 420 documents. 85 For example, the Department of Agriculture's rules of practice governing formal adjudicatory proceedings under
various statutes empower the ALJ, upon motion of any party
or on the ALJ's own motion, to "direct the parties or their
counsel to attend a conference at any reasonable time, prior
to or during the course of the hearing," if the ALJ finds
the proceeding would be expedited by a conference.  The rule
also refers, in open-ended fashion to "Such other matters as 28 After all, the prehearing conference is a tool -- a means to an
end, not an end in itself.  Prehearing conferences are primarily
a way to organize the proceedings to achieve optimum productivity
and avoid wasting time and effort.  An effective prehearing
conference can be useful in identifying areas of disagreement
(and agreement), setting a schedule or agenda for any pre-trial
discovery, and taking other steps to lay the groundwork for
either: (a) settlement, or (b) an efficient, orderly, and fair
hearing.  Moreover, a prehearing conference usually is not
limited to any set form or time.  Parties, agencies and ALJs can
hold conferences of various types, for various purposes, at
different times during a case.           The main point is: whatever form it may take, there should
be prehearing assessment and preparation which is adequate and
appropriate to the case.           Adequacy and appropriateness, however, are not always
simple matters.  Formal administrative proceedings vary so much
in complexity, type and number of issues, length of hearing, or
other factors, that special prehearing procedures may be
necessary.  The ALJ may have to devise individually tailored
procedures to insure that all parties will receive an equitable
and expeditious decision. (This may help explain why there seems
to be at least one common thread running through the mind-
staggering number and variety of agency procedural regulations
dealing with [or mentioning] prehearing conferences⁸⁴ and
procedures.  Most of them give considerable discretion, one way
or another, to the ALJ or presiding officer.⁸⁵)

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES may expedite and aid in the disposition of the proceeding."
7 CFR § 1.140(a)(2000). For another example, see 10 CFR §
1013.19(a) (2000)(Department of Energy, Program Fraud Civil
Remedies and Procedures: "The ALJ may schedule prehearing
conferences as appropriate.") 86                For a rule which contemplates a prehearing
conference before discovery, see 10 CFR § 2.740(b)(1)
2000)(NRC, proceeding on application for construction permit
or operating license for a production or utilization
facility). For an example of a regulation which permits
discovery to be initiated before or after prehearing
conference, see 47 CFR § 1.311 (2000)(FCC). 29           Sometimes, the issues and facts are so complex or the number
or identity of the parties so uncertain that several preliminary
steps are necessary before evidence even can be obtained. In such
situations, the need for a fairly elaborate and carefully
prepared prehearing conference is obvious.  Furthermore, in such
cases exhibits and other direct evidence often cannot be prepared
until discovery produces the necessary information or data⁸⁶.
Several prehearing conferences ultimately may be needed.  The ALJ
must adapt procedures to each individual case.           Because a prehearing conference is one of the most practical
and efficient methods of starting a complex, formal proceeding, a
detailed discussion of conferences in such cases follows.  It
should be emphasized, however, many of the tactics, techniques,
and concepts described below can be used, or adapted for use, in
any type of case.  Although many cases will not require all of
the steps and tactics described below, efficient management of
any proceeding can be enhanced by familiarity with them.  Also,
it goes without saying that the ALJ always should be alert
before, during, and after any conferences -- and at all times --
to the possibility of aiding the parties to settle the case and
to the use of other alternatives to full-scale litigation.
However, rather than belabor these points throughout the
following discussion of prehearing conference procedures, the
topics of settlement and alternative dispute resolution will be
accorded a separate section in their own right, at the end of
this chapter. A.  Preparation for Prehearing Conference, With Emphasis on                          Complex, Multiparty Proceedings
Although a conference serves many purposes, it is almost indispensable as a means of organizing a complex, formal,

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 87                For example, see 7 CFR § 1.140 (2000)(Department of
Agriculture, material to be submitted at or subsequent to
the conference); 10 CFR § 820.28(c)(2000)(Department of
Energy)(rule itself requires parties to exchange names of
expert witnesses, summaries of expected testimony, copies of
documents and exhibits); 14 CFR §16.211(a)(2)(2000)
(prehearing conference notice may direct parties to exchange
proposed witness lists requests for evidence and production
of documents, admissions, and other matter prior to the date
of the conference). 30 multiparty administrative proceeding.  A conference in such cases
permits joint consideration of various procedural matters, such
as the need for exchange of information and evidence before the
hearing, arrangements for stipulations, and the time and place of
hearing.  A well-run conference, requiring only a day or two
(compared to days or weeks of hearing) will usually ease all
succeeding steps.  However, preparation for the conference is
necessary.           An ALJ always should be familiar with the pleadings and all
known facts regarding the case before setting a prehearing
conference. The ALJ who sets a prehearing conference and goes
into it ignorant of the pleadings and with no effort to obtain at
least some basic information about the case is asking for serious
trouble -- and wasted time.  Nor should the ALJ allow the parties
to come to the conference unprepared.  A prehearing conference
should not be the participants' introduction to a case.  To the
contrary, all interested persons should prepare for it in
advance.  The conference can be crucial in shaping the course of
the later proceedings. It should serve as the first opportunity
to clarify, isolate, and dispose of the problems involved.           However, the ALJ need not, and should not, conduct a
personal investigation in order to obtain more information about
the case. (Special situations and conditions exist for  Social
Security Administrative Law Judges, as indicated in cases such as
Burnett v. Commissioner, 220 F. 3d 112, 120 (3d Cir. 2000)).
Instead, the ALJ should motivate the parties to provide
information.           There may be available at least one important device which
can provide information and, at the same time, impel the parties
to prepare for the conference.  The ALJ may direct interested
persons to submit to him and to all known parties proposed
statements of issues, proposed stipulations, requests for
information, statements of position, proposed procedural dates,
and other informational material.⁸⁷ This direction may appear in

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ⁸⁸Forms 1-a and 1-b in Appendix I are samples related
to notices of a prehearing conference.           ⁸⁹See, Office of Communication v. FCC, 359 F.2d 994
(D.C. Cir. 1966) (intervention as party in license renewal
proceedings for commercial television broadcaster) and ECEE
v. FERC, 645 F. 2d 339 (5th Cir. 1981) (standing in certain
FERC proceeding). Sometimes, agency rules may deal expressly
with party status. For example, 30 CFR § 44.3 (2000)(Mine
Safety and Health Administration, petitions for modification
of mandatory safety standards); 47 CFR § 1.223 (2000)(FCC
general procedures for intervening as a party). 31 the prehearing conference notice or in a supplemental letter.                                                B.  Notice
In many agencies the ALJ establishes the date and issues the prehearing conference notice⁸⁸.  For complex, multiparty cases,
however, there may be some problems.  For instance, there may be
questions concerning who is, or can be, a party⁸⁹.  Therefore,
regardless of minimum legal requirements for notice, such as
publication in the Federal Register, the public may be best
served in a complex, potentially multi-party case, if actual
notice is given to all those with an apparent interest.  If
particular individuals or associations, few in number, are
directly affected, they could be notified directly.  If a
specific geographic area is involved, it may be appropriate to
notify local governmental authorities and civic groups
individually.  If many persons or groups may be interested, or if
the identity of interested persons is not known, news media,
including trade journals, might be used. Frequently, trade or
professional associations will notify their members through
regular or special circulations.  The ALJ should use ingenuity to
devise ways to notify all interested persons. It must be
emphasized, of course, that all of these remarks are relevant
only to truly complex, multi-party cases.                                C.  Conference Transcript
Some ALJs believe that transcribing a conference inhibits frank exchange.  Whether or not this is so, it is an expense that
may be avoided if the ALJ is authorized simply to record
agreements and rulings in notes or by dictation to his secretary

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 90                For examples of agency regulations which indicate
that the ALJ has discretion on whether a transcription of a
prehearing conference is to be made, see 7 CFR § 1.140(b)
(2000)(Agriculture: prehearing conference will not be
stenographically reported unless so directed by the ALJ); 7
CFR § 283.11(d)(1)(2000)(prehearing conference will not be
stenographically recorded unless directed by ALJ); 10 CFR §
10.104(2000)(Commodities Futures Trading Commission;
reference to the record of prehearing conference, “if
recorded”);  12 CFR § 19.31 (2000)(Comptroller of Currency
rules of practice and procedure: "{ALJ]”in his or her
discretion may require that a scheduling or prehearing
conference be recorded by a court reporter.”); 16 CFR
3.21(g) (2000) (FTC; ALJ discretion to determine whether
prehearing conference will be stenographically reported); 40
CFR § 85.1807(k)(2)(2000) (EPA: results of conference, if
not transcribed, shall be summarized in writing). However,
the ALJ may be required by rule to record or transcribe the
prehearing conference. For example, 24 CFR § 26.21
(2000)(HUD; prehearing conference “shall . . . be recorded
or transcribed” at request of any party.) 91 See for example 24 CFR § 26.21(c) (2000)(requiring an order after the prehearing conference stating the rulings
on matters considered at the conference and any directions
to the parties). Also see infra, text at note 99.           ⁹²See for example, 10 CFR § 2.1021(c) (2000)(Nuclear
Regulatory Commission); 47 CFR § 1.248(e) (2000)(FCC); 16
CFR § 1025.21(d)(2000)(Consumer Product Safety Commission). 32 or into a recorder⁹⁰.  Since the ALJ ordinarily will provide to
the parties a report or order summarizing the outcome of the
conference,⁹¹ the need for a verbatim transcript may be marginal.           In complex cases, however, any inhibiting effect is usually
outweighed by the need to prevent any later dispute about the
conference conditions, rulings, and agreements, and it is better
to have a verbatim transcript.  Some agencies require an official
transcript of prehearing conferences.⁹²           If funds for a verbatim transcript are not available in the
agency, major parties may agree to divide the cost.  In any
event, if a transcript is made, the ALJ should ensure that all
interested persons can see the agency's copy at its offices and

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ⁹³See, 21 CFR § 12.89(a) (2000) (FDA, participation of
"nonparty participant"). For examples of agency rules
dealing expressly with obtaining party status, see 30 CFR §
44.3 (2000)(Mine Safety and Health Administration, petitions
for modification of mandatory safety standards); 47 CFR §
1.223 (FCC general procedures) 94 Form 2 in Appendix I is a sample appearance sheet. 33 obtain copies pursuant to agency rules.                         D.  Management of the Conference
The ALJ should prepare, and may circulate in advance, a conference agenda.  Obviously those proposals or suggestions
which affect the scope of the proceeding should be scheduled
first.  Although the conference may be informal, all remarks
should be addressed to the ALJ, who should permit reasonable
discussion. However, when a subject is fully aired, the ALJ
should rule and move on. Most conferences involve at least the following steps:
1.                    Opening Statement -- The ALJ should announce the name of
the case, the tentative agenda, conference procedures, the rights
of persons to participate in the conference, and other pertinent
matters. 2.                    Appearances -- (Again, it should be emphasized that
complex formal proceedings often have a number of parties, or
would-be parties,⁹³ participating.)  Blank appearance sheets
should be available, which provide for the name and address of
the person appearing and the name and the interest of each person
he is representing⁹⁴.  The ALJ should direct that each party or
interested person notify the reporter, or the ALJ if no
transcript is made, of the name and address of one person to whom
all documents should be sent.  For convenience, oral appearances
should also be entered. 3.                    Preliminary Matters -- The ALJ should permit each
participant to propose additional items and to raise preliminary
matters -- for example, an inquiry as to the anticipated duration
of the conference. 4.                    Participation -- The ALJ should rule immediately on
requests to participate.  Even if final rulings as to the right
to participate are made by the agency, the ALJ can frequently
make a tentative ruling, based on his knowledge of agency
standards, as to each person's right to participate in the
conference and in the entire proceeding.

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 34 5.                    Issues -- If final determination of the issues to be
tried has been made before the conference, the conferees may
consider the interpretation of the issues as framed.  The ALJ
should make any necessary rulings.           If, on the other hand, determination of the scope of the
proceeding is still tentative, the participants may submit any
proposals for modification, clarification, or limitation.  After
discussion, the ALJ should rule, for conference-planning
purposes, and the conference should continue on that basis.  (If
the agency should later disagree, a further conference may be
necessary.) 6.                    Discovery -- In complex cases, an early prehearing
conference may need to address issues pertaining to discovery.
Moreover, the prehearing conference itself can serve a discovery
role.  Each party, including agency staff, may request other
parties to submit information, including specially prepared
studies.  Disposing of such requests and arranging for the
preparation and exchange of the evidentiary material are
frequently the most difficult conference functions.  The ALJ, as
well as agency staff, even though well-trained, experienced, and
familiar with the subject matter, may not be able to determine
whether objections to producing the requested material are
induced by its lack of relevance, the burden of producing it, or
a party's belief that it will be adverse to its interests.
Moreover, even counsel for the party from whom the material is
sought may not know the importance of the requested information,
its availability, or the difficulty of assembly.           As difficult as these problems may be, it is preferable to
face them at the conference.  Otherwise they are merely delayed
and will still have to be dealt with later in requests for
subpoenas, depositions, and interrogatories, or by extensive
correspondence.  It is frequently quicker, easier, and more
equitable to decide these questions after a full informal
discussion at the conference than it is after formal motions to
quash subpoenas or to strike material after it has been supplied.
Moreover, if the rulings are made at the conference there may be
time to modify them without delaying the proceeding if later
developments show that some of the requested material is not
necessary or obtainable or cannot be assembled as proposed.           When a party resists requests for necessary information the
ALJ should direct that it be submitted.  But in considering
information requests the ALJ should reduce them to the minimum
consistent with obtaining sufficient information to decide the
issues.  Most parties, including agency staff, tend to ask for
the maximum data available so that they will have more from which
to choose.  The parties may agree to furnish requested material,

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ⁹⁵See for example 18 CFR § 157.6 (2000)(FERC); 18 CFR §
385.601(c)(2)(2000)(FERC)(discretionary with presiding
officer).           ⁹⁶See for example 12 CFR § 19.31(b)(8)(2000)
(Comptroller of Currency, typical omnibus authority to
address “Such other matters as may aid in the orderly
disposition of the proceeding.”); 29 CFR § 2200.51
(2000)(Occupational Safety and Health Review Commission,
prehearing conferences and orders, omnibus provisions re:
“any other matter that may expedite the hearing”).  For an
example of a case, see Bluestone Energy Design, Inc., 58
F.E.R.C. 63,025 (1992), where the Commission refers to an
earlier hearing order directing parties to exchange
narrative summaries of material points, exhibits, etc.           ⁹⁷See for example 46 CFR § 502.94(c)(2000)(Federal
Maritime Commission). The possibility for more than one
prehearing conference is indicated by the casual reference
to “a series of prehearing conferences.” Ellis v. Director,
1999 U.S. App. Lexis 21638 (4th Cir.)(“unreported” case) 35 even though they believe some of the data to be irrelevant or
immaterial, because they do not want to antagonize agency staff
or other parties or because the information is easily accessible.           The ALJ should not acquiesce in this course of least
resistance.  The difficulty in striking trivia at the hearing and
in sorting out the important facts when deciding the case is
compounded if the ALJ has to examine voluminous data that should
never have been required or approved at the conference.           The difficulty in determining at the conference what
information is needed may be mitigated in several ways: (1)
agency rules may require that some or all of the direct evidence
be filed with the application or petition;⁹⁵ (2) the agency's
hearing order may require the parties to prepare and exchange
direct, and perhaps rebuttal, evidence before the conference;⁹⁶
and (3) the ALJ at a preliminary conference may arrange for the
exchange of requests for information which, if objected to, will
be resolved at a reconvened conference⁹⁷.  The feasibility and
utility of such devices depend on agency rules, the nature of the
case, the number of known parties or interested persons, the
extent of divergent interests, and the amount and type of
material requested. 7. Exchange of Information and Proposed Evidence -- Dates

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES ⁹⁸Form 3 in Appendix I is a sample set of ground rules.           ⁹⁹Forms 4-a, 4-b, and 4-c in Appendix I are sample
prehearing conference reports. For examples of agency
regulations pertaining to the ALJ's or presiding officer's
duty to prepare a summary reporting what transpired at a
conference, see 10 CFR § 2.751a(d) (2000) (Nuclear
Regulatory Commission, construction permit and operating
licensing proceedings; report referred to as an “order”); 14
CFR 302.22(c)(2000)(Department of Transportation; Aviation
Proceedings) 49 CFR § 386.55(b)(2000)(DoT, Federal Highway 36 for the exchange of information and proposed evidence should be
established, with the consent of the parties if possible.  The
time allowed should depend upon the nature of the material
sought, the difficulty of preparation, the complexity of the
issues, and the procedural time limits imposed by law or agency
regulation.           Sometimes, in multi-party proceedings, a party or interested
person may desire that a document be served on two or more
persons in his organization, or he may not require some of the
material requested by other parties. Consequently, the ALJ may
request each interested person to state what material he needs,
the number of copies, and the names and addresses of the persons
to be served.           The ALJ's secretary (assuming the ALJ has a secretary) may
compile this information to be circulated to all parties either
as a part of the prehearing conference report or in a separate
document. 8.                    Ground Rules -- To supplement the relevant statutes, the
APA, and agency rules, the ALJ may establish special rules,
frequently called "ground rules," for each individual case,
covering such matters as order of presentation, motions, and
cross-examination.  These may be adaptations of rules commonly
used by the agency's ALJs or they may be tailor-made for the
particular case⁹⁸.  Such rules may be unnecessary in relatively
simple cases with experienced counsel, or the agency may have
standard rules which are adequate for most proceedings.                                               E.  Conference Report
A conference report consisting of a list of appearances,
agreements reached, the ALJ's rulings, and other matters decided
should, and sometimes must, be prepared and served on all persons
who entered appearances.⁹⁹

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES Administration; report referred to as an “order”). ¹⁰⁰Form 5 in Appendix I is a sample interlocutory order. 37           If final determination of the issues to be tried depends on
a post conference ruling by the agency itself, then the ALJ's
conference report should include his recommendations.  If the
agency disagrees with the ALJ as to the issues, and modifies
them, the ALJ will have to decide whether another conference is
necessary.  Often the ALJ can rectify the difference in a
supplemental report.           Exceptions should be limited to errors of substance. Further
argument of a point decided at the conference should not be
considered unless there are unusual circumstances.  The ALJ
should rule in a supplemental report on the exceptions, or make
modifications or corrections.  This does not necessarily commit
the ALJ to the prescribed procedures; they can be modified later
if necessary. F.  Preliminary Motions and Rulings           All prehearing motions that are within the ALJ's
jurisdiction should be decided promptly.  Unless the ruling is
self-explanatory or is the affirmance of a prior ruling, it
should include a statement of reasons¹⁰⁰.  Many motions,
petitions, and requests can be disposed of without a formal
order; a notice or letter to all interested persons is
sufficient. G.  Other Prehearing Procedures           At the risk of being repetitious, it should be emphasized
that a full-fledged prehearing conference is not always
appropriate.  If the issues are simple and the parties few, it
may be unnecessary; if the proceeding is to be held in the field,
it may be inconvenient.  Any number of factors and variables may
make a full-scale prehearing conference uneconomical or otherwise
inadvisable.           When a conference is not feasible or desirable, other
methods to organize and expedite a proceeding are available.  For
example, the ALJ may by written notice suggest the type of

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ¹⁰¹Forms 6-a-c in Appendix I are samples of prehearing
orders and instructions to the parties. 102 Since the first edition of this Manual, this court has been variously referred to as the Court of Claims and as the U.S.
Claims Court. In 1992, it was officially designated as the U.S.
Court of Federal Claims. P.L. 102-572 (Title IX, § 902(a)), 106
Stat. 4516 (October 29, 1992). This Manual generally will use the
1992 designation, although lapses in usage will be likely. 103                 Appendix G of the present Rules of the Court of
Federal Claims still provides an excellent model for an ALJ
who wants to assure that the parties engage in substantial
pre-conference development of their cases.  Among other
things, Appendix G provides for early communication between
counsel to identify each party's factual and legal
contentions, discuss discovery needs, scheduling, and
possible settlement. It also requires a Joint Preliminary
Status Report be filed by the parties. This Appendix (G) to
the Court of Claims Rules can be found in 28 U.S.C. Appx
(1994), among the appendices to the Federal Court of Claims
Rules. ¹⁰⁴See Forms 18-a through 18-e in Appendix I. 38 evidence needed,¹⁰¹  or may direct the submission prior to the
hearing of such material as a list of witnesses, a description of
the material to be offered in evidence, and proposed
stipulations.  However, if a prehearing conference is not held,
the ALJ should at least consult informally with all parties or
their counsel prior to the official opening of the hearing to
discuss and decide on hearing procedures.           In addition, a procedure formerly adopted by the U.S. Court
of Federal Claims¹⁰² provided for the development of information
by the parties before the hearing without a prehearing
conference¹⁰³.  This procedure, which is described in the Court of
Federal Claims forms set forth in Appendix I,¹⁰⁴ appears adaptable
to many administrative proceedings. H.  Settlement Negotiations and ADR Possibilities 1.  Settlements. Settlement by negotiation should be considered at every step and stage of a proceeding.  Depending on
such variables as the nature of the issues, the parties, and

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 105 See supra,  text at notes 47-53. 106                 For examples of agency regulations pertaining to
settlement judges, see 5 CFR § 2423.25(d)(2000)(Federal
Labor Relations Authority; unfair labor practice
proceedings); 18 CFR § 385.603 (2000)(FERC); 24 CFR §180.445
(2000)(HUD; proceedings for civil rights matters); 29 CFR
18.9 (2000)(Department of Labor); 29 CFR § 2200.101 (2000)
(Occupational Safety & Health Review Commission); 47 CFR §
1.244 (2000) (FCC); 48 CFR § 6302.30 (1991)(DOT Board of
Contract Appeals). For a case which refers to the use of a
settlement judge, see Oxy USA, Inc. v. FERC, 64 F. 3d 679,
687 (D.C., 1995). 39 applicable rules, a case might be settled as soon as assigned to
an ALJ, shortly afterwards, during any of the usual prehearing
procedures, during the hearing, at the close of the hearing,
before decision by the ALJ, or even between the decision of the
ALJ and the decision of the agency.  Subject to agency rules, a
settlement conference may be organized and conducted by the ALJ,
or the ALJ may organize it and turn it over to the parties for
action, or the parties may, with or without the ALJ's consent,
hold private discussions so long as the rights of other parties
or the public are not impaired.           Whenever it seems opportune, the ALJ should suggest
settlement discussions.  Sometimes, as the hearing proceeds and
the parties hear the testimony and learn the facts, they will be
more amenable to settlement. This applies not only to a full or
partial settlement of the case but also to procedural questions.
Frequently the parties may, after conferences, make important
factual or procedural agreements.           The extent to which the ALJ should participate in settlement
negotiations depends on agency practice and personal judgment.
It is not uncommon for an ALJ to take an active role in such
negotiation, especially in enforcement cases.  However, too much
involvement, or too active a role might raise doubts concerning
the ALJ's ability to conduct a fair hearing or reach an equitable
decision if negotiations fail.  In such situations recusal might
be appropriate.           As indicated earlier in this Manual,¹⁰⁵ one way to avoid the
problems which could arise if the ALJ becomes too active in
settlement negotiations is to use a Settlement Judge¹⁰⁶ or some
other form of mediator.           More than twenty years ago, a survey of ALJs, including
Chiefs, at eleven agencies indicated that, in addition to saving

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ¹⁰⁷Coast Guard, Federal Communications Commission,
Federal Energy Regulatory Commission, Federal Trade
Commission, Interstate Commerce Commission, National Labor
Relations Board, Occupational Safety and Health Review
Commission, Securities and Exchange Commission, and the
Departments of Health and Human Services, Interior, and
Labor.  The survey was conducted in 1979 and 1980.                                                                                                              See G.
Lawrence, Settlement Practices of Administrative Law Judges
(March 18, 1981).  Unpublished paper submitted to the
Administrative Conference of the United States. 40 the time, cost, and energy involved in a formal hearing, a
settlement can neutralize hostilities that might be aggravated by
litigation¹⁰⁷.  Many of the lessons garnered from that survey
remain valid today and helped in the development of ADR in
federal agencies, so it is worth discussing further at this
point.           The principal questions investigated in the survey were how
to persuade parties to get together to consider settling their
differences (whether substantive or procedural), and, once a
meeting is arranged, how to get them to reach some agreement.           The survey suggested several ways of encouraging
negotiations.  Agencies could assign ALJs who are particularly
adept at negotiating to handle settlement discussions.  They
could arrange training for ALJs in how to encourage negotiations
without compromising their judicial independence.  Techniques
available to individual ALJs include the following:           (1)  Directing the parties to meet prior to the hearing to
discuss settlement.           (2)  Issuing discovery orders requiring the exchange of
basic facts and documents.           (3)  Holding telephone conferences to discuss settlement
possibilities.  The ALJ can suggest issues that appear amenable
to settlement.           (4)  Submitting to the parties and interested persons
pretrial statements on technical matters at issue, prepared by
the ALJ's staff.           (5)  Setting early hearing dates to compel immediate
consideration of the issues.           (6)  Holding in camera negotiating sessions immediately
prior to the hearing, when the merits of each party's claims and
his chance of success have been thoroughly explored.           Of course, the use of settlement techniques depends on the
type of issues, the agency rules, and the personality, attitude,

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES           ¹⁰⁸See Roger Fisher & William Ury, GETTING TO YES  --
NEGOTIATING  AGREEMENT  WITHOUT  GIVING  IN (2d ed. 1991), and Roger
Fisher & Danny Ertel, GETTING  READY TO NEGOTIATE:  THE  GETTING TO
YES  WORKBOOK (1995). 109 See supra, text at notes 64-80. 110 See text supra at notes 30-80. Moreover, in some agencies, relevant regulations contemplate the potential for
ALJs or other hearing officers themselves to perform an ADR
role or to rule on parties’ motions. 18 CFR § 385.604(c)(3)
(2000) (ALJs may serve as neutrals); 47 CFR § 1.722(d)(1)
(2000) (ALJs as mediators in voluntary mediation of damages
where liability is clear); and 40 CFR § 22.18 (Presiding
Officer to rule on parties’ motion for appointment of a
neutral). 111                 See for example 65 FR 38986, 39003 (June 22,
2000)(Commodities Futures Trading Commission) (Notice of
Proposed Rulemaking; new regulatory framework for
multilateral transaction execution facilities, etc.); 65 CFR
36888 (June 12, 2000)(Department of Commerce, International
Trade Administration, Notice Announcing Reopening of Public
Comment Period re: ADR for online consumer transactions); 65
FR 31131 (May 16, 2000)(Department of Defense Proposed Rule
re: Defense Logistics Agency solicitations); 64 FR 61236,
61237 (November 10, 1999)(Federal Mine Safety and Health
Review Commission Notice of Proposed Rulemaking re:
procedural rules); 64 FR 40138, 40158 (July 23, 1999)
(Environmental Protection Agency, Final Rule, consolidated
rules of practice for civil penalties, compliance orders,
etc.). 41 and training of the ALJ.  Many cases cannot be settled,
regardless of agency procedures or the ALJ's ability.  But if the
case is of the type in which settlement is possible, the ALJ
should support all legitimate settlement efforts.¹⁰⁸           2.  ADR. As previously mentioned,¹⁰⁹ federal agency use of ADR
increased substantially during the 1980's and culminated in a
sense with the ADR Act of 1990.  ADR is now -- and for the
foreseeable future -- a subject of considerable significance to
administrative law judges.  For that reason, ADR was described
and examined in some detail early in this Manual.¹¹⁰           Moreover, the specifics of each agency's ADR programs are
still being developed¹¹¹.  This development probably will be, and

MANUAL FOR ADMINISTRATIVE  LAW  JUDGES 112                 Lieberman & Henry, Lessons from the Alternative
Dispute Resolution Movement, 53 U.  CHI.  L.  REV. 424, 438
(1986). 113 See,  Freije, The Use of Discovery Sanctions in Administrative Agency Adjudication, 59 IND.  L.  J. 113
(1983); Tomlinson, Discovery in Agency Adjudication, Report
in Support of Recommendation [70-4], 1 ACUS 37, 571, 577
(1971); 1 CFR § 305.70-4 (1993). 114                 See for example 29 CFR § 2200.57 (2000)
(Occupational Safety & Health Review Commission). 42 certainly should be, an ongoing process.  ADR is still at an
early stage as far as its use in administrative agencies is
concerned.  Indeed, as one article regarding ADR in general put
it, "[W]e have only begun to identify the kinds of disputes
likely to be amenable to the techniques of ADR."¹¹²  One task for
administrative law judges will be to aid in realizing the
potential of ADR for the administrative process. III.  DISCOVERY           If authorized by statute and agency rule, the ALJ may
require the parties to submit to discovery.  This may consist of
subpoenas  ad testificandum and duces tecum, depositions, written
interrogatories, cross-interrogatories, inspections, physical or
mental examinations, requests for admissions, production of
documents or things, or permission to enter upon land or other
property, or the preparation of studies, summaries, forecasts,
surveys, polls, or other relevant materials.           Discovery rulings may be made if the ALJ finds it necessary
to apply compulsion to obtain the necessary information¹¹³.
Supplemental discovery orders may be issued as needed. The ALJ
should be attentive, throughout the discovery stage, to the
possibility of delay resulting from abuse of the discovery
process.                                             A.  Subpoenas
In some agencies, the ALJ must issue a subpoena upon request, subject to a motion to quash¹¹⁴.  In other agencies, the
ALJ may refuse to issue a subpoena absent a showing of relevance