Martin Marietta Corporation v. FTC

• Decision Date: 08 May 1967
• Docket Number: No. 15618.,15618.
• Citation: 376 F.2d 430
• Parties: MARTIN MARIETTA CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

376 F.2d 430 (1967)

MARTIN MARIETTA CORPORATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

No. 15618.

United States Court of Appeals Seventh Circuit.

April 11, 1967.

Rehearing Denied May 8, 1967.

Harold F. Baker, Terrence C. Sheehy, Washington, D. C., for petitioner, Howrey, Simon, Baker & Murchison, Washington, D. C., Clarence W. Miles, Clark C. Vogel, Edwin V. Petz, New York City, of counsel.

J. B. Truly, Asst. Gen. Counsel, and Charles C. Moore, Jr., Atty., F. T. C., James McI. Henderson, Gen. Counsel, Washington, D. C., for the Federal Trade Commission.

Before HASTINGS, Chief Judge, and SCHNACKENBERG, and SWYGERT, Circuit Judges.

Rehearing Denied May 8, 1967, en banc.

SWYGERT, Circuit Judge.

Martin Marietta Corporation petitions for review of an order of the Federal Trade Commission granting in part and denying in part a motion for modification of an order of divestiture previously entered by consent. The question presented concerns the reviewability of the Commission's order.

The Commission issued a complaint against the petitioner¹ in January 1961 charging that the petitioner's acquisition of various concrete pipe, cement, lime, and construction aggregates² properties was in violation of section 7 of the Clayton Act, 15 U.S.C. § 18, and section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45. Negotiations between the petitioner and the Commission staff resulted in the execution of a consent agreement on February 5, 1963, which was effectuated by order of the Commission on March 12, 1963. The consent order, in part, required the petitioner to divest itself of sixty-one concrete pipe plants, thirteen construction-aggregates quarries or quarry sites, and two lime plants within a period of twenty-four months.³

In September 1964 the petitioner requested the Commission to modify the consent order by deleting eight of the thirteen quarries⁴ from the divestiture provisions because of changed conditions of fact. The Commission's Bureau of Restraint of Trade responded to the petitioner's application, challenging the allegations contained in it. Subsequently, in March 1965, the petitioner filed a reply alleging additional information and submitted a request that the Commission permit oral argument "prior to any negative action" on the motion to modify. In December 1965, at the Commission's request, the reply was supplemented by the petitioner's current data, at which time the petitioner renewed its request to be heard orally prior to any unfavorable action.

On January 12, 1966, the Commission, without hearing argument, entered the order challenged in this proceeding. The order modified the earlier consent order by striking one quarry from the list of those required to be divested, but denied the petitioner's motion as to the remaining quarries, stating that "there has been no showing made that changed conditions of fact or law or the public interest warrant modification."⁵

The petitioner contends that the Commission's order must be set aside on review because, in denying the petitioner's motion to make additional modifications in the consent order, the Commission did not afford the petitioner an evidentiary hearing with respect to the seven quarries not deleted and did not comply with its own rules regarding the procedure for modifying existing orders. The Commission, on the other hand, contends that insofar as its order denies the petitioner's motion to modify the consent order it is not subject to review by this court. We agree with the Commission.

The pertinent statutory provisions relating to modification of the Commission's orders after the time for review has elapsed are section 5(b) of the Federal Trade Commission Act, 15 U.S.C. § 45(b), and section 11(b) of the Clayton Act, 15 U.S.C. § 21(b), whose terms are identical in all important respects. Section 5(b) of the Federal Trade Commission Act provides in part:

After the expiration of the time allowed for filing a petition for review, if no such petition has been duly filed within such time, the Commission may at any time, after notice and opportunity for hearing, reopen and alter, modify, or set aside, in whole or in part, any report or order made or issued by it under this section, whenever in the opinion of the Commission conditions of fact or of law have so changed as to require such action or if the public interest shall so require: Provided, however, That the said person, partnership, or corporation may, within sixty days after service upon him or it of said report or order entered after such a reopening, obtain a review thereof in the appropriate court of appeals of the United States, in the manner provided in subsection (c) of this section.

The "review" which may be obtained under this section is a review of the "order entered after * * * reopening," not a review of the original order. The review must therefore confine itself to the modifying order, more specifically, to that portion of the order which effects changes in the original order.

The portion of an "order entered after * * * reopening" which refuses any further modification of the original order is not reviewable. Any other interpretation of the statute is logically inconsistent with the finality of the original order. Further, a different construction would place the Commission in a position which we think Congress did not intend. Neither the Federal Trade Commission Act nor the Clayton Act provides for review by courts of appeals of any action of the Commission denying a motion to reopen or modify a final order. If the Commission had summarily denied the petitioner's motion, its action would not be subject to review. If, on the other hand, by modifying in one particular an order previously entered the Commission thereby opens its previous order to a second review in all particulars challenged, the Commission is faced with a dilemma; it is likely to be discouraged from granting relief which it is not obliged to extend but which it might otherwise grant, at least in part, at the request of persons bound by orders which have become final.

We think the statute was intended to provide judicial review of action taken by the Commission which is unfavorable to or is resisted by a person subject to an existing order. It is for this reason that the statute requires the Commission to provide "notice and opportunity for hearing" prior to modifying such an order. In the instant case, the only modification occurred as a result of the petitioner's request, and the petitioner does not object that a portion of its request was granted. The petitioner's objection is that its request was not granted in its entirety. It seeks a review of the Commission's refusal to make further modifications in the consent...