Indiana Manufactured Housing Ass'n Inc. v. F. T. C., 80-2088
| Decision Date | 11 February 1981 |
| Docket Number | No. 80-2088,80-2088 |
| Parties | 1980-81 Trade Cases 63,795 INDIANA MANUFACTURED HOUSING ASSOCIATION INC., Liberty Homes, Inc., Meadow Acres Manufactured Housing, Inc., South Side Trailer Sales, Inc., Plaintiffs-Appellants, v. FEDERAL TRADE COMMISSION, Michael Pertschuk, Chairman, Paul Rand Dixon, David A. Clanton, Robert Pitofsky, Patricia P. Bailey, Commissioners, Raymond L. Rhine, Presiding Officer, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David M. Fitzgerald, F. T. C., Washington, D. C., for defendants-appellees.
Before PELL, BAUER, Circuit Judges, and WILL, Senior District Judge. **
Plaintiffs-appellants Indiana Manufactured Housing Association, and others, filed a verified complaint for injunctive and declaratory relief contesting various actions and decisions of a Presiding Officer in a rulemaking proceeding. The district court granted the motion of defendant-appellee Federal Trade Commission (FTC) to dismiss. We affirm.
Appellants complain, first, that the Presiding Officer failed to make findings of fact concerning the "prevalence" of the acts and practices addressed by the proposed rule. Second, appellants complain that they were denied the opportunity to cross-examine an FTC economist whose statements were relied upon by the presiding officer.
Appellants seek review of decisions made in an admittedly preliminary step in the FTC rulemaking procedure. The proposed rule has yet to go before the full Commission for consideration. Review by the court of appeals is usually barred until administrative procedures are exhausted. FTC v. Standard Oil of Calif., --- U.S. ----, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980); Myers v. Bethlehem Shipbuilding Co., 303 U.S. 41, 50-5, 58 S.Ct. 459, 463-465, 82 L.Ed.2d 638 (1938); Hunt v. Commodity Futures Trading Commission, 596 F.2d 1234, 1236 (7th Cir. 1979). We conclude that there is no reason to depart from this rule in the present case.
The Presiding Officer refused to certify the issues to the Commission for extraordinary interlocutory review under 16 C.F.R. § 1.13(c). This did not amount to exhaustion of remedies, however, because appellants' contentions are reviewable by the Commission upon the final report of the presiding officer. Appellants may submit comments on the presiding officer's report and may seek "review by the Commission of determinations made by the presiding officer." 16 C.F.R. § 1.13(h). On review of the presiding officer's report, the Commission may allow "persons who have previously participated in the proceeding to make oral presentations," id. § 1.13(i), and "may issue, modify, or decline to issue any rule." Id. § 1.14(a); see also Ass'n. of National Advertisers, Inc. v. FTC, 565 F.2d 237, 239 (2d Cir. 1977) ().
Appellants concede that the presiding officer's report is not a final order, but contend that their grievances will not be reviewable in the courts after final agency action. Appellants base their argument on section 18 of the FTC Act, which provides that
the contents and adequacy of any statement (of basis and purpose) shall not be subject to judicial review in any respect.
15 U.S.C. § 57A(e)(5)(C). The statement of basis and purpose includes a "statement as to the prevalence of the acts or practices treated by the rule." 16 C.F.R. § 1.14(a)(1). Appellants claim that this section forecloses judicial review of their complaints and that review now is therefore appropriate. See Jewel Companies, Inc. v. FTC, 432 F.2d 1155 (7th Cir. 1970). We disagree. First, the Commission has yet to write the...
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