American Home Products Corporation

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IN THE MATTER OF AMERICAN HOME PRODUCTS CORPORATION, ET AL. Doket 8918. Interlocutory Order, Aug. 18, 1977 Denial of complaint counsel's application for review of ALJ's order denying reconsideration of prior order which disallowed request for substitution of witnesses on previously submitted list.

ORDER DENYING Application FOR REVIEW Complaint counsel here seek interlocutory review of a July 13, 1977 order by Administrative Law Judge Hyun, denying reconsideration of his June 14, 1977 order, which, in essence, disallowed a request for substitution of witnesses on a previously submitted list. Complaint counsel' s application is fied notwithstanding the Administrative Law Judge s denial, by order of July 20, 1977, of a requested determination under Rules of Practice Section 3.23(b) which would have allowed interlocutory appeal.

Section 3.23 of our Rules, by its terms, exhausts the available avenues for interlocutory appeal to the Commission. Since contention is or could be made that an appeal wil lie in this case under subsection (a) of this section, and the requisite determination under subsection (b) was denied, there would appear to be no basis for entertaining the present application.

Complaint counsel nonetheless urge that the assertedly grave impact of the Administrative Law Judge s ruling invokes our inherent power to review a ruling by an administrative law judge even where the requirements of Section 3.23 are not met. As authority for the existence of such a power, they cite two rulings in Kellogg Co.. et al. reported at 83 F. C. 1756 (1974) and 86 F. C. 650 (1975). Both of these rulings dealt with applications, like the present one, premised upon our inherent power to review interlocutory rulings. In both instances the applications were denied. To be sure, there is language in both rulings indicating that review might be granted on a showing of clear abuse of discretion on the part of the Administrative Law Judge. 83 F. C. at 1758; 86 F. C. at 651. Another ruling in the same matter, reported at 86 F. C. 318, may be read as suggesting that a showing of irreparable harm to the appealing party is also requisite to its exercise. See 86 F. C. at 319, n. These tests are not met here. Moreover, the decision we are asked to review is peculiarly of the sort best left to the discretion of the Administrative Law Judge. Far from being an issue of "law or policy 148 Interlocutory Order which we might appropriately resolve on interlocutory appeal, it goes to the heart of the Administrative Law Judge s duty to ensure that the hearing proceeds fairly and expeditiously. It is therefore ordered That the application is denied. . .

Interlocutory Order 90 F.T.