Amrep Corp

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IN THE IdATTER OF AMREP CORPORATION Docket 9018. Interlo-w Orr, Feb. 1980 ORDER DENYING MOTION FOR A HEARING To INTRODUCE EVIDENCE COMMENT AND ARGUMENT CONCERNING Ex PARTE COMMICATIONS By motion dated January 23, 1980, respondent AMREP Corporation requests an opportunity for comment and an evidentiary hearing on parte communications between the investigative and prosecutorial staff and the Commission in this proceeding. The respondents' motion also requests leave to introduce evidence as to whether all ex part communications concerning matters litigated in this case have been disclosed to the respondent. Finally, AMREP seeks to place into evidence communications that are not part of the record. The respondent argues that its motion for comment and a hearing on ex parte matters finds support both in AMREP v. Pertschuk No. 79- 0491 (D. , fied April 6 , 1979), appeal docketed No. 79-1592 (D. Cir. 1979) and in the Commission s order of July 12, 1979. We agree that the court' s opinion and our order affirmed the respondents' right to comment on ex parte communications. Nevertheless, it was apparent in both instances that such comments were to be made in the course of the Commission s normal appellate procedure. The respondent should thus have been well aware that its opportunity to address ex part matters was in its appeal brief and, to the extent full discussion would have required, in its answer and reply briefs. See Rule 3.52. Furthermore, while the court's opinion and our order note that the Commission was empowered to take evidence on appeal, they did not indicate the respondent had any right to an evidentiary hearing. Rule 54 makes it clear, in fact, that such hearings arc to be held only if the Commission deems them necessary.

Here, AMREP has evidently decided to forego its right to address parte matters in the context of normal appellate procedures. It has instead raised the issue in a motion fied eleven days after its answer brief. The motion docs not explain what the nature of its comments on ex parte communications might be, why it feels any evidentiary hearing is required, or even why it waited until the eleventh hour to seck such relief. At this late stage in the proceedings, the Commission is not prepared to grant the respondents' requests on such an insubstantial showing.

Weare similarly unprepared to grant AMREP's request to introduce evidence as to whether it has been fully informed of all ex part communications concerning matters in litigation before the agency. _.__._ .

308 Interlocutory Order The respondent has already received assurances from counsel representing the Commission in AMREP v. Pertschuk that aU such communications have been disclosed. Indeed, in his opinion disposing of the case, Judge Gasch concluded that " an existing ex part communications even remotely related to (AMREPJ have been disclosed and placed on the public record.

The final aspect oj' AMREP's motion is its request to place into evidence all ex parte communications not previously made part of the record. The communications involved in this request are few in number and unrelated to the facts at issue in the matter before us on appeal.' Therefore, nothing in the Commission s rules would require us to place the communications on the record. AMREP has, moreover, offered us no indication as to the purpose or the significance of its request. However, while we do not believe that the communications should be introduced into evidence, we have no objection to the communications being placed on the record. Accordingly, It is O'rdered That all ex part commuoications not previously placed on the record be placed on the record, and It is further ordered That in all other respects the respondents' motion be, and hereby is, denied.

, Ilustrative of the communications involved ar a. Commi!Jion minute of May 17. 1978 authoring the Bureau of Consumer Protetion to submit comments to Fede""l District Cour Judge La.qkcr on civil C8es involving AMREP, and a March 13, 1979 affidavit by John F. Dugnn to the effect that speifie land Bales ca were not disclo at a Commi3Sion budg-et meeting.

2 Rule 4.7(c) reuire ex part communications to be plac in the docket binder of the prong, but prohibits the Commi3Sion from considering them for purps of its decision. Beuse all otherex part communication1 ar in this cate ory, we deem it appropriate for those documents to be locte in the same plRC. Complaint 95 F.