Indiana Manufactured Housing Ass'n Inc. v. F. T. C., No. 80-2088

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore PELL, BAUER, Circuit Judges, and WILL; PER CURIAM
Citation641 F.2d 481
Parties1980-81 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.
Docket NumberNo. 80-2088
Decision Date11 February 1981

Page 481

641 F.2d 481
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.
No. 80-2088.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 2, 1980.
Decided Feb. 11, 1981. *
Rehearing and Rehearing En Banc Denied March 9, 1981.

Richard S. Harrell, Washington, D. C., for plaintiffs-appellants.

David M. Fitzgerald, F. T. C., Washington, D. C., for defendants-appellees.

Before PELL, BAUER, Circuit Judges, and WILL, Senior District Judge. **

PER CURIAM.

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.

Page 482

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...

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