Herbert R. Gibson, Sr

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IN THE MATTER OF HERBERT R GIBSON, SR, ET AL.

Docket 9016. Interlocutory Order. Oct. 12. 1977 Denial of respondents' motion to dismiss for lack of public interest. ORDER GRANTING RESPONDENTS' Appeal Of ADMINISTRATIVE LAW JUDGE S REFUSAL To CERTIFY MOTION To DISMISS FOR LACK OF PUH!.C INTEREST, AND DENYING AFORESAID MOTION On June 10, 1977 respondents moved (1) for summary decision on Counts I and III of the complaint, (2) for removal of Count II from adjudication because they agreed to accept complaint counsel' suggested consent order as to that count, and (3) in the alternative, for certification to the Commission of their req est for dismissal for lack of public interest. On the 19th and 20th of July 1977, the law judge denied all three motions.

On July 26, 1977 respondents fied an application for an interlocutory appeal from the order denying their motions for summary decision and for certification of the public interest question. On August 10, 1977, the law judge entered an order denying authorization to fie an interlocutory appeal of the denial of their motion for summary decision and granting authorization to file an interlocutory appeal of the denial of their request for certification of the motion to dismiss.

The threshold question, then, is whether the motion to dismiss for asserted lack of public interest is properly before the Commission. We conclude it is because the law judge lacks authority to rule on it.' It is well established that an administrative law judge lacks authority to rule on and must certify motions to dismiss for lack of public interest and other motions containing questions pertaining to the Commission s exercise of administrative discretion. See Exxon Corp. Dkt. 8934, CCH Trade Reg. Rep. 299 (April 19 , 1977); Amrep Corporation. 87 F. T.C. 283 (1976); Crush International Ltd., 80 F. G 1023 (1972); Philip Morris, Inc., 79 FTC. 1023 (1971); First Buckingham Community, Inc., 73 F. C. 938 (1968); and Suburban Propane Gas Corporation, 71 F. C. 1695 (1967).

The asserted facts as to the lack of public interest on which the motion rests are essentially the same as those that formed the basis for respondents' June 10, 1977 motion for summary decision. The , Commissinn Rules, Section 3.22(11), providf' that " (aJny motion n?no which the Administrative Law Judr;e has no authority to rule shall bccertified by him to the Commission with his recommendatilJn .. , Respondents were not. prejudiced by the law judge s July refusal to certify their.June motion to dismiss. The matter is now before the Commission forde novo consideration and determination.Suburban Propane, supra at 1697 Interlocutory Order 90 YTG respondents argued that H. R. Gibson, Sr. had no interest in any retailer, that no monies received by the Gibson Trade Show were paid to any retailer, and that the trade show was open to any retailer. The law judge in ruling on that motion, explained that respondents assertions involved factual issues that were in dispute. the resolution of which would require a hearing. With the proof in this posture, the motion to dismiss is no riper for decision than was the motion for summary decision. Accordingly, It is ordered, That the aforesaid motion to dismiss for lack of public interest be, and it hereby is denied.

Complaint