RSR Corp. v. F. T. C.
| Decision Date | 30 April 1981 |
| Docket Number | No. 80-2131,80-2131 |
| Citation | 656 F.2d 718 |
| Parties | , 1981-1 Trade Cases 63,986 RSR CORPORATION, Appellant, v. FEDERAL TRADE COMMISSION. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joshua F. Greenberg, New York City, with whom William C. Lane, Jr., Washington, D. C., was on the brief, for appellant.
John D. Bates, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth, Kenneth M. Raisler, Asst. U. S. Attys., James H. Sneed, Acting Gen. Counsel, Jerald D. Cummins, Deputy Asst. Gen. Counsel and Jane P. Schlaifer, Atty., F. T. C., Washington, D. C., were on the brief, for appellee.
Before ROBINSON and MacKINNON, Circuit Judges and JUNE L. GREEN, District Judge. *
OPINION PER CURIAM.
Under attack on this appeal is a summary judgment for the Federal Trade Commission in an action brought by RSR Corporation (RSR) to compel the Commission to reopen a lengthy antitrust proceeding. After unsuccessfully seeking the Commission's leave to present evidence bearing on the current propriety of a divestiture order emanating from that proceeding, RSR asserted in the District Court that the Commission's refusal to reopen was not only arbitrary but also contaminated by ex parte communications with its staff. The District Court concluded that RSR had not shown circumstances extraordinary enough to justify setting aside the decision against reopening. 1 We affirm. 2
RSR engages primarily in the recovery of recycled or "secondary" lead from scrap sources such as used batteries. 3 In 1972 RSR acquired through merger substantially all of the assets of another secondary lead smelting firm, Quemetco, Inc., and thereby increased its share of the secondary lead market in the United States from 12.16 to 19.18 percent. 4 Resultantly, in 1974 the Commission issued a complaint 5 charging RSR with a violation of Section 7 of the Clayton Act. 6 After a three-month hearing, an administrative law judge ruled, inter alia, that RSR's merger with Quemetco contravened Section 7 because it could substantially lessen competition in the national market for secondary lead, 7 and recommended divestiture of one of four smelting plants RSR had derived from the merger. 8 The Commission accepted the judge's finding of a Section 7 transgression, 9 but ordered RSR to divest itself of almost all of its Quemetco assets. 10 The Ninth Circuit affirmed, 11 and the Supreme Court declined further review. 12
RSR thereafter petitioned the Commission to reopen the proceeding on the ground that changed conditions in the secondary lead smelting industry had rendered the divestiture order unnecessary to remove any prior anticompetitive effect. 13 RSR also alleged that ex parte communications of an undisclosed nature had occurred between the Commission and its prosecutive staff regarding the decision to reopen, 14 and sought to bar any such future contacts. 15 The Commission ruled that RSR's proffered evidence was insufficient on its face to warrant reopening, 16 and that consideration of RSR's petition to reopen was not a process subject to ex parte constraints. 17
RSR then came to the District Court for an order to reopen. The grounds of suit were that the Commission's refusal to reopen was arbitrary, and was vitiated by ex parte contacts with the prosecutive staff. 18 This appeal followed the District Court's grant of summary judgment in favor of the Commission.
RSR argues that the Commission's decision not to reopen the Clayton Act proceeding was incorrect on the merits. 19 RSR further contends that the claimed communications between the staff and the Commission regarding the decision to reopen violated RSR's procedural due process rights as well as relevant provisions of the Administrative Procedure Act. 20 We consider each of these contentions in turn.
In ruling that the Commission did not err in declining to reopen a proceeding that already had spanned six years, 21 the District Court considered the submissions of both parties, including the extensive record compiled before the Commission, and found that it had made a "reasoned and reasonable statement on the record denying (RSR's) administrative application for reconsideration." 22 The court acted in full accord with the applicable law, and we readily affirm on this aspect of the appeal.
Both the Supreme Court and this court consistently have subscribed to the rule that administrative agencies are not to be required to reopen their final orders "except in the most extraordinary circumstances." 23 The need for that principle is evident, for "(i)f upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening;" 24 moreover, "there would (be) little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become 'stale.' " 25 Consequently, "(i)t has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion(,) (a)nd likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body." 26 As the Supreme Court has admonished, "there is sound basis for adhering to (the) practice of declining to require reopening of the record, except in the most extraordinary circumstances." 27
The record before us amply supports the District Court's view that the Commission acted reasonably in declining to reopen the proceeding leading to the divestiture order. RSR contends vigorously that changed circumstances in the secondary lead smelting industry most notably the advent of a new maintenance-free battery 28 has rendered the Commission's divestiture order unnecessary to counteract whatever anticompetitive effects RSR's 1972 merger with Quemetco may have occasioned. 29 This same argument, however, was advanced unsuccessfully not only before the administrative law judge 30 but also before both the Commission 31 and the Ninth Circuit on appeal. 32 All three tribunals felt that the speculative nature of RSR's claim sapped whatever strength it might otherwise have had. Moreover, both the administrative law judge and the Commission ruled that even if taken as true, RSR's thesis would not justify setting aside the divestiture order. 33 In denying RSR's petition to reopen the proceeding, the Commission stated:
Given that the affidavits submitted, if accepted at face value, serve at most to undermine, to some limited degree, the validity of one of the Brown Shoe criteria, 34 the Commission cannot conclude that a basis has been shown that would warrant reopening as to the product market and conducting a second trial as to the merits of the various claims made.
With respect to (RSR's) claim that a national market for secondary lead no longer exists, the facts asserted by the affiants are at most slight variants of those that were considered in detail by the administrative law judge and the Commission in the original trial of this matter. While the market definition question was undoubtedly open to reasonable disagreement, it was fully litigated, and the Commission's disposition was affirmed by the Court of Appeals with certiorari denied by the Supreme Court. The facts presented in the instant motion to reopen are not such as would warrant a re-adjudication of the geographic market question. 35
In these circumstances, we cannot say that the District Court was amiss in ruling as it did.
RSR's complaint of ex parte communications refers exclusively to a presentation the prosecutive staff is said to have made to the Commission's members on the petition to reopen. 36 There is no claim of any sort of contact between the agency and outsiders. 37 The question, then, is whether it was improper for those who had to pass on the petition to make use of the staff in reaching their decision.
The Administrative Procedure Act states pertinently, with exceptions not applicable here, that
in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, ... (a)n employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review ... except as witness or counsel in public proceedings. 38
That, of course, is a command that the Commission must scrupulously observe. But, as the legislative language itself makes evident, this prohibition obtains only when some statute necessitates adjudication of the matter in question on the administrative record. 39 The statute governing Commission consideration of a proposal to reopen imposes no such procedure; it simply authorizes reopening "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." 40
RSR nevertheless asserts that the Commission's consideration of a request to reopen "has all the hallmarks of an adjudicative proceeding." 41 Certainly the Commission does not think so, for its regulation on reopenings prescribes no procedure whatsoever beyond the filing of a reopening request containing specified information. 42 Indeed, the Commission fashioned this regulation in that manner for reasons directly pertinent here. As it then explained,
no provision of the FTC Act ... requires notice and opportunity for hearing with respect to the Commission's predecisional deliberations on petitions to reopen; hence, the APA adjudicatory provisions are...
To continue reading
Request your trial
-
DR PEPPER/SEVEN-UP COMPANIES, INC. v. FTC, Civ. A. No. 91-2712 (GHR).
... ... Co., 894 F.2d at 1389; Sealy Mattress Co. of Michigan v. Sealy, Inc., 789 F.2d 582, 585 (7th Cir.1986) ... This principle may give way, however, when the settlement agreement concerns matters within an agency's "statutory field of administration." MCI Telecommunications Corp. v. F.C.C., 822 F.2d 80, 84 (D.C.Cir.1987). The court of appeals for this circuit has repeatedly endorsed the view that, in such circumstances, an agency's interpretation of a settlement agreement negotiated by agency staff and subject to agency approval is entitled to judicial deference for ... ...
-
Gomes v. University of Maine System, No. CIV.03-123-B-W.
... ... 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant." Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001). "By like token, `genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party." Id. at 94 (citing McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). The party ... ...
-
Town of Brookline v. Commissioner of Dept. of Environmental Quality Engineering
... ... We disagree ... Like any administrative agency, the DEQE may, at its discretion, announce and apply new rules and standards in an adjudicatory proceeding. SEC v. Chenery Corp., 332 U.S. 194, 202-204, 67 S.Ct. 1575, 1580-1581, 91 L.Ed. 1995 (1947). "[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency." Id. at 203, 67 S.Ct. at 1580. Massachusetts ... ...
-
Northern Indiana Public Service Co. v. F.E.R.C., s. 84-1416
... ... These fifteen wholesalers under the DMQ-1 schedule (e.g., Illinois Power Co., Interstate Power Co., Iowa Electric Light and Power Co., Iowa-Illinois Gas and Electric Co., Mississippi River Transportation Corp., North Shore Gas Co., NIGAS, NIPSCO, Peoples Gas, Associated Natutal Gas Co., Iowa Gas., Iowa Southern Utilities Co., Nebraska City, Nebraska, Salem, Illinois and Wisconsin Southern Gas Co.) account for approximately 93% of Natural's sales of natural gas. Only one percent of Natural's sales are ... ...