Comments/Notes on Adjudication Structure:
CFTC's reparations program website says that voluntary proceedings are decided about 6 months after the JO receives the case, while summary and formal proceedings typically require 12-18 months.
Comments/Notes on Adjudication Type(s):
Per 17 CFR part 12, ALJs are only available in formal decisional proceedings. However, despite the text of the regulations, a recent CFTC rulemaking makes the availability of ALJs -- even for formal decisional proceedings -- unclear. In 2013, CFTC issued a final rule that revised the definition of "Judgment Officer" to read: "[A]n employee of the Commission who is authorized to conduct all reparations proceedings. In appropriate circumstances, the functions of a Judgment Officer may be performed by an Administrative Law Judge." (See 78 Fed. Reg. 12,933, 12,936 (Feb. 26 2013)). CFTC interprets this language as affording the agency discretion to select either a JO or ALJ for formal decisional proceedings.
Comments/Notes on Related Schemes:
The Commission hears appeals from Initial Decisions issued in reparation cases pursued through either summary or formal decisional proceedings. (Participants in voluntary decisional proceedings, by rule, waive the right of administrative appeal, though the Commission may still take discretionary "own motion" review to correct manifest injustice.)
Resources & Articles:
CFTC Final Rule Amending Reparations Rules: 78 Fed. Reg. 12.933 (Feb. 26, 2013)
CFTC Reparations Program: http://www.cftc.gov/ConsumerProtection/ReparationsProgram/index.htm
H. Rep. 113-116 (113th Cong, 1st Sess.) (pp 58-59): http://www.gpo.gov/fdsys/pkg/CRPT-113hrpt116/pdf/CRPT-113hrpt116.pdf
GAO Ruling on CFTC Reprogramming Allegation: http://www.gao.gov/assets/660/651588.pdf
Distinctive Features:
CFTC's tripartite reparation adjudication program presents a distinctive approach. Key aspects of each of the 3 programs are:
(1) Voluntary decisional proceedings: Described by CFTC as "the quickest procedure." Both parties must elect. Counterclaims and written discovery permitted. No oral hearing; record hearing only. Initial Decisions by Judgment Officer "briefly state conclusions," but no findings of fact. Parties also forgo right to appeal to Commission (or US Court of Appeals) and to prejudgment interest; (2) Summary decisional proceedings: For claims not exceeding $30,000. Counterclaims, written discovery, pre-decision conferences, and summary disposition permitted. Oral hearings available at Judgment Officer discretion. Initial Decision provides findings of fact and conclusions of law; (3) Formal decisional proceedings: Claims over $30,000. Procedures generally similar to summary decisional proceedings with addition that JO/ALJ may certify issue for interlocutory review, JO/ALJ has authority to subpoena witnesses, and oral hearings (in-person or telephonic) are the default mode.
Is this a Major Adjudication:
