Sterling Drug Inc

Text (OCR of the scan at left; may contain errors)

IN THE MATTERS OF BRISTOL-MYERS COMPANY, ET AL. D. 8917 AMERICAN HOME PRODUCTS CORPORATION, ET AL. D. 8918 STERLING DRUG INC. , ET AL. D. 8919 Dokets 8917, 8.918, 891.9. Interlocutory Order, Aug. 11, 1977 Denial of motion by complaint counsel for extension of time in which to fie application for interlocutory appeal.

ORDER DENYING MOTION FOR EXTENSION OF TIME Complaint counsel in these three related proceedings jointly move for an extension oftime for filing with the Commission an application for interlocutory review under Section 3.23(a)(I) of our Rules of Practice. Applications for review under this provision are required to be fied "within five (5) days after notice of the Administrative Law Judge s ruling. " The order from which counsel intend to appeal would grant respondents access to what are described as "two noncontemporaneous interview reports prepared by a staff attorney. An extension of time is sought, in complaint counsel' s words, " order to seek appeal alternatively under Section 3. 23(b) ofthe Rules, evidently because of counsel's view that the Administrative Law Judge would be inclined to rule that the question presented was suitable for interlocutory appeal. Delaying their fiing under subsection (a)(I) until the filing under subsection (b) is due would assertedly avoid the needless duplication in filing essentially identical motions before both the Commission and the Administrative Law Judge. We have great diffculty in following complaint counsel' s reasoning in this matter. An application for review under Section 3.23(a)(I) addresses itself directly to the Commission s discretion, without the necessity for a ruling by the Administrative Law Judge. On the other hand, no application may be fied with the Commission under Section 23(b) in the absence of:

a determination by the Administrative Law Judge in writing, with justification in support thereof, that the ruling involves a controllng question oflaw or policy as to which there is substantial ground for difference of opinion and that an immediate appeal from the ruling may materially advance the ultimate termination of the litigation or subsequent review will be an inadequate remedy. Even if such a determination is made, the decision whether or not to entertain an appeal would stil be committed to the Commission 142 Interlocutory Order discretion; that is, the posture of the appeal would in no way have been advanced by the additional time and effort involved in pursuing subsection (b) procedures.

Moreover, the granting of complaint counsel's request would make a nullty of the 5-day time limit contained in subsection (a). Similarly situated applicants could always seek subsection (b) certification well as a subsection (a) appeal, thereby avoiding the time constraint. Because the time limitation serves the important purpose of reinforcing the AU' control over the orderly progress of adjudicative hearings, we cannot countenance such a result. It is therefore ordered. That the motion is denied. Complaint 90 FTC.