Although the Commission has conducted an adjudicative function
throughout its existence, in recent years the Commission has undertaken
an extensive effort to modernize and expedite its adjudicative
proceedings. For example, the Commission amended its Rules of
Practice in 2009 to impose deadlines by which evidentiary hearings must
commence and for the issuance of decisions. In cases in which the
Commission is seeking preliminary injunctive relief in federal district
court, the evidentiary hearing in the ancillary administrative proceeding
normally must begin within five months after the date on which the
administrative complaint was issued. In all other cases, the
Administrative Law Judge’s (ALJ’s) evidentiary hearing must begin
within eight months after the date on which the administrative complaint
was issued.
Although the Commission has retained the discretion to alter
these deadlines,
neither the parties to the proceeding nor the ALJ may
alter them. Likewise, the Commission limited the length of the ALJ’s
evidentiary hearing to 210 hours, unless the Commission determines
there is good cause to extend the deadline.
The Commission also amended its Rules of Practice in 2009 to
require the ALJ to issue an initial decision within seventy days after the
filing of the last filed initial or reply proposed findings of fact and
conclusions of law and order pursuant to Rule 3.46; within eighty-five
days after the closing of the hearing record pursuant to Rule 3.44(c)
where the parties have waived the filing of proposed findings; or within
fourteen days after the granting of a motion for summary decision
following a referral of such motion from the Commission.
unilaterally may extend any of these deadlines by up to thirty days for
“good cause,” and has done so in some (although not all) cases since this
rule change.
The Commission may further extend any of these time
periods for “good cause.”
Finally, the Commission amended its Rules of
. Id.
. Id. § 3.41(b).
. Id. § 3.51(a).
. See Initial Decision, POM Wonderful LLC, Dkt. No. 9344, at 2-3
(May 17, 2012), available at
d9344/120521pom decision.pdf.
. Id.
232 FTC Practice and Procedure Manual
Practice in 2009 to impose deadlines by which the full Commission will
issue final decisions on appeal from initial decisions. For cases in which
the Commission sought preliminary relief in federal court, it will issue its
final decision within forty-five days after oral argument; within forty-
five days after the deadline for filing reply briefs if no oral argument is
scheduled; or within forty-five days after the deadline for filing
objections to the initial decision, if no party files objections and no oral
argument is scheduled.
In al l other cases, the Commission will issue its
final decision within 100 days after oral argument, or, if no oral
argument is scheduled, within 100 days after the deadline for filing reply
Although the Commission characterized its self-imposed
deadlines for rendering final decisions as “tight deadlines,”
and the
specific Rule (§§ 3.52(a)-(b)) imposing the deadlines do not permit the
Commission to extend them for good cause, the Commission on one
occasion extended its deadline for issuing a final decision pursuant to
Rule 4.3,
which permits the Commission to extend any deadlines in the
Rules of Practice for good cause shown.
In 2009 the Commission also eliminated Rule 3.11A fast-track
proceedings. The Commission determined that fast-track proceedings
were unnecessary in light of the generally-applicable expedited deadlines
it had approved for administrative proceedings.
A. Separation of Functions
One of the unique characteristics of the FTC is its ability, as an
independent administrative agency, to choose between litigating its cases
in federal district court or through administrative adjudication. The
FTC’s adjudicative functions are governed by Section 5(b) of the FTC
the Administrative Procedure Act (APA),
and Parts 3 and 4 of
. Id. § 3.52(b)(2).
. 74 Fed. Reg. 1,804, 1,806 (Jan. 13, 2009).
. 16 C.F.R. § 4.3(b).
. See Order Extending Timetable for Issuing Final Decisio n & Order, POM
Wonderful LLC, Dkt. No. 9344 (Nov. 27, 2012), available at
ord.pdf (timetable extended to permit the Commission to “give full
consideration to the many i ssues presented by the cross-appeals in this
matter . . . .”).
. See 74 Fed. Reg. 20,205, 20,206 (May 1, 2009).
. 15 U.S.C. § 45(b).
Part 3 Adjudication 233
the FTC Rules of Practice (FTC’s Rules or Rules).
The Federal Rules
of Civil Procedure and the Commission’s Operating Manual
provide guidance.
Adjudicative proceedings are often described as “Part 3” matters,
referring to the Part in Title 16 of the Code of Federal Regulations that
contains the agency’s Rules of Practice for Adjudicative Proceedings.
Part 3 adjudication tracks federal court procedures in many respects. The
process begins once the Commission votes to issue an administrative
A significant difference from federal court practice,
however, is that the adjudicative function is carried out by the same
agency that investigates and prosecutes the alleged violation.
The trial
of a Part 3 matter is handled by an ALJ, whose independence from
agency management is intended to be protected in a number of ways.
Appeals from an initial decision of an ALJ, however, are heard by the
full Commission. In order to preserve the impartiality and independence
of decision-makers, the APA prohibits any employee engaged in the
investigation or prosecution of a matter from participating in the decision
or agency review of the matter.
Additionally, the FTC’s Rules strictly
regulate communication within the agency and with nonemployees
regarding Part 3 matters.
. 16 C.F.R. § § 3.1.-3.72, 4.1-4.7. These regulations specifically apply to
adjudicative proceedings.
. FTC, FTC OPERATING MANUAL § 10, available at
foia/adminstaffmanuals.shtm [hereinafter FTC OPERATING MANUAL].
. 5 U.S.C. § 554. The Supreme Court has held that a state agency’s power
to investigate and adjudicate the same matter do es not in itself violate due
process. According to the Court, “The initial charge or determination of
probable cause and the ultimate adjudication have different bases and
purposes. The fact that the same agency makes them in tandem and that
they relate to the same issues does not result in a procedural due process
violation.” Withrow v. Larkin, 421 U.S. 35, 58 (1975). Likewise, it is
well settled in the federal circuit courts that the FTC may act as an
investigator, prosecutor, and judge without violating due process. See,
e.g., Kennecott Copper Corp. v. FTC, 467 F.2d 67, 79 (10th Cir. 1972) ;
FTC v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308, 1315
(D.C. Cir. 1968).
. See Section A(2), infra.

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