The question here is whether the District Court sitting in Texas erred in enjoining proceedings taking place in Washington, D. C. pursuant to a remand order of the Federal Trade Commission. This presents questions of jurisdiction and, assuming jurisdiction, whether an injunction was proper in light of the facts of this particular case.

Sometime in 1955, the Commission began an investigation relating, among other things, to a possible violation by Weingarten of § 5 of the Federal Trade Commission Act.1 The investigation culminated in the filing on January 5, 1960, of a complaint alleging that Weingarten had violated § 5 by the inducement or receipt of promotional allowances from suppliers which it knew were granted in violation of § 2(d) of the Clayton Act,2 because the allowances had not been made available on proportionally equal terms to competitors of Weingarten selling the suppliers' products.3 On the same day, the Commission instituted proceedings against eight suppliers who were alleged to have given the unlawful allowances to Weingarten.4 After what all concede were the usual administrative preliminaries, hearings on the Weingarten complaint began on June 30, 1960.5 After full hearings terminating in the spring of 1961, the parties filed briefs, proposed findings of fact and conclusions of law, and presented oral argument to the Hearing Examiner. On May 1, 1962, the Examiner issued his initial decision finding that the charge against Weingarten here involved had been established.6 Weingarten gave notice on May 22 of its intention to appeal the initial decision to the Commission, and after extensions of time for filing briefs had been granted to both Weingarten and Complaint Counsel, the matter was submitted on oral argument on October 23, 1962. Five months later, on March 25, 1962, the Commission entered the order enjoined by the District Court which remanded the case for further, but limited, hearing before the Examiner.

The gist of the Commission's opinion and order of March 25 was that the initial decision could not stand because of certain defects in proof and certain procedural defects in the fact findings of the Examiner's initial decision.

The District Judge held that by virtue of the remand, the Commission had violated the command of § 6(a) of the Administrative Procedure Act7 to "proceed with reasonable dispatch to conclude any matter presented to it." Consequently he enjoined the Commission and the Hearing Examiner from proceeding with the remand. He did not tell the Commission what disposition to make of the Weingarten complaint, but he did order that the Commission dispose of it on its own with no remand to an Examiner, and that it be finally disposed of within 30 days. Its motion for stay pending appeal having been denied, the Commission dismissed the complaint without prejudice to its being reopened in the event the litigation in this Court was concluded in its favor.

The Commission contends at the outset that the District Court was without jurisdiction to interfere with the orderly course of the administrative proceedings.8 Urging that the statutory appeal to the Court of Appeals provided in § 5 (c)9 of the Federal Trade Commission Act is exclusive,10 the Commission asserts that it constitutes a plain, speedy, and adequate remedy at law which bars an injunction suit.11 Weingarten, on the other hand, contends that the remedy provided by § 5(c) is inadequate to protect its right to a disposition with reasonable dispatch and that jurisdiction was properly invoked pursuant to decisions like Leedom v. Kyne, 1958, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210; McCulloch v. Sociedad Nacional, 1963, 372 U.S. 10, 83 S. Ct. 671, 9 L. Ed. 2d 547; Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 489, 1962, 306 F.2d 260; and Deering Milliken, Inc. v. Johnston, 4 Cir., 1961, 295 F.2d 856.

Although we recognize that the grant of jurisdiction in Leedom-type cases is a narrow one, Boire v. Greyhound Corp., 1964, 376 U.S. 473, 84 S. Ct. 894, 11 L. Ed. 2d 849, 854, we think we should not express any opinion in this area of jurisdiction when it is not necessary to a disposition of the case. Assuming, without deciding, that the District Court had jurisdiction to enjoin the remand proceedings, we conclude that the order did not violate the command of § 6(a) to proceed with reasonable dispatch, nor were the proceedings otherwise defective as claimed. Consequently, the District Court erroneously enjoined the Commission and its staff from proceeding under it.

Weingarten builds its argument that § 6(a) has been violated by charging (1) that the Commission is guilty of unexcused delay in the disposition of the administrative proceedings and (2) that the remand was an attempt by a biased Commission to implement an arbitrary prejudgment that Weingarten had violated the Act.

With respect to delay, Weingarten's claim rests on the simple contention that as a matter of law the Commission is not proceeding with dispatch when a complaint pends for some 2 and ½ years before a Hearing Examiner and 11 months thereafter before the whole Commission. Absent proof of the normal time necessary to dispose of a similar proceeding or of facts tending to show a dilatory attitude on the part of the Commission or its staff — matters totally undeveloped on this record — we are unable to say that a Judge can so hold. So far as this record shows, this case not only proceeded at a rate comparable to that normally experienced in cases of its kind, it also proceeded at a rate satisfactory to Weingarten. This record is barren of any suggestion that Weingarten at any time between January 5, 1960, the date the complaint was filed, and March 25, 1963, the date the Commission entered its order of remand, ever complained about the pace of the proceedings. The record does reveal that extensions of time for filing briefs before the full Commission were granted to both Weingarten and Complaint Counsel, and doubtless other extensions at other stages were granted to both parties.

Of course the Supreme Court and all Courts in a supervisory role are concerned with delay. It has recently had occasion to deplore the "nigh interminable" delay in connection with some administrative agency proceedings. FPC v. Hunt, 1964, 376 U.S. 515, 84 S. Ct. 861, 11 L. Ed. 2d 878, 886. And we are the first to emphasize that agencies must exert the greatest resourceful, imaginative ingenuity in devising procedures which in a day of ever-expanding dockets will permit the regulatory process to function properly with reasonable dispatch. Hill v. FPC, 5 Cir., 1964, 335 F.2d 355 [1964]. But we think it would be the extremely rare case where a Court would be justified in holding — as Weingarten urges us to do here — that the passage of time and nothing more presents an occasion for the peremptory intervention of an outside12 Court in the conduct of an agency's adjudicative proceedings. This is certainly not such a case, and the decision of the District Judge, insofar as it rests on this foundation, is clearly wrong and cannot stand.13

The other contention with respect to the asserted denial of the § 6(a) right to a disposition with reasonable dispatch must be considered in light of the Commission's established power of remand for further hearing before an examiner. Weingarten concedes, as it must, that the Commission has the power to remand a case for the taking of additional evidence.14 But, says Weingarten, the Commission violates the command of § 6(a) because its purpose in the subsequent proceedings is to implement the Commission's arbitrary prejudgment of Weingarten's guilt even though the proceeding to adjudge that, legally and factually, has not yet been concluded.

The basis of the charge is this. The Commission, with candor, held in its March 25, 1963, order that it could not enter a cease and desist order against Weingarten on the administrative record as then developed. The reasons were two-fold. First, the Commission agreed with Weingarten that the record did not then contain evidence qualitatively sufficient to establish that at the time of the solicitation and receipt by Weingarten of promotional allowances from the suppliers, other customers of such supplier were competing with Weingarten in the distribution of goods of like grade and quality sold by such supplier. Second, the Commission found that the initial decision of the Hearing Examiner did not conform to the requirement of both the Administrative Procedure Act and the Commission's Rules that the reasons or basis for findings and conclusions upon all material issues of fact, law or discretion presented on the record be stated.15

Noting that Weingarten did not question that element [1] of the violation16 was made out, the Commission made this observation about element [2]:

"Proof sufficient to establish the second criteria should not be difficult to adduce, since it involves merely a showing of the exact identity of the products purchased by the respondent from a supplier who granted it an allegedly discriminatory promotional allowance and the same showing for any of respondent's competitors who did not receive the allowance."

The Commission then remarked that the 10 witnesses relied upon by Complaint Counsel to prove this element of the case17 "were probably in command of the facts needed to satisfy this criteria but the examination by counsel failed to elicit them."

At this point, the Commission presented detailed examples by way of illustration of "the defects in the evidence." Organizing the examples into distinct categories of retailer18 and wholesaler19 testimony, the Commission found a number of things which made the testimony of these witnesses inadequate on which to then base a conclusion. After reviewing this evidence, the Commission concluded that although "a good deal of reliable and important information was secured from the ten `competitor' witnesses," the evidence was not then sufficient on which to base a conclusion as to element [2]. Observing that a "definitive finding" on elements [3] and [4]20 could not be made until element [2] was resolved, the Commission deferred consideration of these matters.

Expressly recognizing that a "remand of a case to a hearing examiner for further proceedings is never lightly ordered," the Commission proceeded to state its justification for the action being taken.

"This matter has now been in litigation for slightly more than three years and both the public and respondent have incurred substantial expense in its trial. As we stated earlier, this case is attended with a great deal of public interest21 and to now order dismissal for failure of proof without finally deciding the legality or illegality of the respondent's acts would waste all of the money and effort heretofore expended. This would be a disservice both to the respondent and to the public and cannot be seriously contemplated. There is no question but that the public interest cannot be permitted to suffer because of the mistakes of Commission personnel."

The Commission concludes that the remand "does not envision a complete retrial of all of the issues involved in [the] proceeding." It confined the hearing on remand to receipt of evidence "pertaining to questions which [the] opinion points out cannot be decided on the present record," and suggests that not "more than five full hearing days for each side will be needed to adequately shore up [the] record." It then suggested that the hearing "be concluded with dispatch and * * * [ordered] that the hearing examiner and the parties make every effort to complete the reception of evidence within 90 days."22

To this Weingarten responds that the language of the opinion, the uncertainty of Complaint Counsel and the Hearing Examiner as to how to proceed on remand, and the alleged inability of Complaint Counsel to adduce the evidence required by the Commission's opinion demonstrate that the remand is purely and simply the attempt of a biased Commission to effectuate the prejudgment of Weingarten's guilt.

Weingarten attempts to demonstrate prejudgment by quoting excerpts such as "proof to establish the second criteria should not be difficult to adduce," "these witnesses [10 `competitor' witnesses] were probably in command of the facts needed to satisfy this criteria but the examination of counsel failed to elicit them," the "public interest should not be permitted to suffer because of mistakes of Commission personnel," not "more than five full hearing days for each side will be needed to adequately shore up this record," and the like.

Weingarten then tries to build a structure of prejudgment out of the colloquy between the Examiner and Counsel on the initial exploratory conference after the remand order.

Finally, Weingarten suggests that if the evidence was not uncovered by the five years of investigation and three years of trial by experienced counsel, it does not exist. Support for this proposition is generated, says Weingarten, by the fact that the Commission did not take the evidence itself, rather than remanding to the Hearing Examiner.

In our view, none of these factors, whether considered singly or in the aggregate, demonstrate the alleged prejudgment. The Commission opinion, taken as a whole represented a proper adjustment of the rights of the public and Weingarten. It was not prejudgment at that stage for the Commission to indicate some likely, even though tentative, views. For example, there was no real question about the solicitation and receipt of allowances by Weingarten. This, of course, is not unlawful. But the record also revealed that business organizations which operated or supplied two or more retail outlets had purchased goods from the same suppliers without receiving allowances. With the record in this stage of development, the Commission's action shows no prejudgment. On the contrary, it shows the Commission's careful regard for the protection of the rights of both Weingarten and the public in its insistence on evidence which not only pointed the finger accusingly at the respondent, but qualitatively afforded a reliable basis for a final adjudication:

"Antitrust cases and, in particular, Robinson-Patman cases require a meticulous attention to minute details. When dealing with prices, allowances and goods of like grade and quality, the Commission may not indulge in assumptions or presumptions, for these matters are susceptible of exact proof and this is the type of showing which must be made. The evidence adduced in this record in support of the element under consideration is, of course, not totally lacking in probative value, for a good deal of reliable and important information was secured from the ten `competitor' witnesses. But the evidence does not quite reach the level of reliability and substantiality necessary for a concrete finding on this particular point."

The Commission's analysis of the deficiencies of this testimony, notes 18 and 19, supra, reflects that there was good basis for the conclusion that the evidentiary details thought desirable to give complete trustworthiness to the testimony would be readily forthcoming, probably from these very witnesses themselves. If not, it seems plain to us that apart from mechanical difficulties, there could hardly be any real problem in getting data as to exact sales and purchases, item by item, made by these suppliers and competitors.

Under such circumstances, what is a Commission charged by statute with the serious responsibility of effectuating statutory policy to do? Must it, on the one hand, in the face of a record indicating substantial basis for a likely finding of statutory transgressions, simply acquiesce in a default, largely for technical, not substantive, deficiencies? Or must it, out of some supposed attitude of administrative advocacy, press on, leaving the respondent to its appeal to the Court of Appeals whose dockets are already overcrowded without adding as grist to the judicial mill deficiencies which the administrative body is perfectly willing procedurally to correct? Cf. McDowell v. Celebrezze, 5 Cir., 1962, 310 F.2d 43, 44.

If — and fortunately the if does not exist — due process is measured by mere externals, there might be some concern that a tribunal had "prejudged" by making a tentative, though uncertain, judgment. But in the light of actions by Courts, it would be a strange thing for Courts to censure administrative agencies for doing what Courts often do. Thus, for example, under Bryan v. United States, 1950, 338 U.S. 552, 70 S. Ct. 317, 94 L. Ed. 335, and cases such as our own Gulf Oil Corp. v. Wright, 5 Cir., 1956, 236 F.2d 46, we frequently remand both criminal and civil cases for a full or partial retrial. Such situations are, in effect, a holding that while the evidence was legally deficient, nevertheless the record indicates that more or better evidence is available on a new or further trial and a system of justice dedicated to the objective of finding the truth ought not to balk at affording an opportunity of "shoring up" the case. That the Examiner expressed some quandary is of no moment. Doubtless many times both the District Judge and the lawyers are uncertain whether in remands we meant what we said or said what we meant.23 But no one has yet argued that merely because the exact nature of the proceeding on remand is left to the rather loosely confined discretion of the District Judge in light of what in some cases may arguably be unhelpful direction from an appellate court, the remand is itself somehow defective. That is in essence what Weingarten urges here, and it is plain that we do not agree.

Actually the District Judge, by permitting the Commission itself to take action within 30 days, recognized that it was proper for the Commission to obtain additional or clarifying evidence. But this prohibition on the use of an Examiner is an unwarranted intrusion into the administrative process by a Judge. Unlike traditional court proceedings which have a constitutional genesis and function so that judging must ordinarily be done by Judges, not Masters, LaBuy v. Howes Leather Co., 1957, 352 U.S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290, Congress recognizes that in administrative adjudication much must be left to hearing officers. Indeed, it is the fact finding function through the inescapable use of hearing officers, their sense of independence, and the review of their findings which has been at the core of the concern for improving the quality of such actions. With the wide range of its statutory responsibilities, the number and complexities of the kind of matters it must handle,24 there is simply no basis for the District Judge taking it on himself to tell the Commission how it should husband and deploy its resources and manpower.

In light of what we have said in Part II concerning the alleged prejudgment of Weingarten's case, the argument that the proceedings before the Commission must be stopped because bias and prejudice has reared "its ugly head," NLRB v. Phelps, 5 Cir., 1943, 136 F.2d 562, 564, is equally lacking in merit. This is not a case like Accardi25 where the authority having the ultimate decision dictated the result to the body charged with the initial decision. Neither is it a case like Amos Treat26 where one who actively engaged in the prosecution of a case at its initial stages became a judge of guilt or innocence at a later stage. There is here no direction to convict — no intimation as to how the initial decision should be made. Indeed, in light of the strict standard of proof announced by the Commission and the rigid directions in regard to the making of findings of fact by the Hearing Examiner, the initial decision may well be in favor of Weingarten.

In light of the foregoing, it is apparent that the injunction must be dissolved.27 That means, of course, that the Commission is free to reinstate the case on its docket and proceed pursuant to the remand.

Nothing we have said is to be interpreted as a gratuitous effort to influence any Court of Appeals to which the final order, if issued, may be appealed. Ours is quite a different function in reviewing the intrusion of an "outside" Court into the incompleted administrative proceedings. Approached from this vantage point, the reasonableness of agency action of the sort here involved must be tested in light of our recent observation that "Courts are finding day by day that there is both a need to meet extraordinary problems and ample procedural resources to do the job."28 We cannot say here that the Commission's adoption of a procedure somewhat akin to the two-bite process approved in Hill for some Federal Power cases is an unreasonable accommodation of procedural resources to the job at hand.

Reversed with directions to dissolve the injunction.