Boise Cascade Corporation

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

IN THE MATTER OF BOISE CASCADE CORPORATION Docket 9133. Interlocutory Order Jan. , 1983 ORDER DENYING RESPONDENT S APPUCATION FOR INTERLOCUTORY APPEAL At the conclusion ofthe presentation of complaint counsel's case this proceeding, respondent fied with the ALJ a motion to dismiss the complaint. On November 23, 1982, the ALJ issued an order declaring his decision to defer ruling on the motion until after the presentation of respondent's defense and the fiing of proposed findings and conclusions oflaw by the parties. On December 9, respondent fied with the Commission a motion requesting an order directing the ALJ to rule now on respondent's motion to dismiss.

Respondent's motion is not permitted by either Commission Rule 22(e), which provides specifically for the treatment of motions for dismissal, or by Rule 3. , which governs interlocutory appeals. The Commission, of course, retains the authority to grant review of an interlocutory ruling where the requirements of Rule 3.23 are not met but it has said that it wil consider doing so only on a showing of a clear abuse of discretion by the ALJ and irreparable harm to the appealing party. , American Home Products Corp., 90 F. C. 148 (1977); General Motors Corp. 90 F. C. 172 (1977). This occasion does not present such a case.

Even when its standards for review were less stringent, the Commission repeatedly declined to review ALJ determinations denying motions to dismiss or for summary decision. E.g., Vulcanized Rubber and Plastics Co. 52 F. C. 533 (1955); School Services, Inc. 72 F. 1003 (1967); The Hearst Corp. 80 F. C. 1011 (1972). As the Commission noted in those cases, denial of such motions does not affect the ultimate outcome of a case. Moreover, a decision whether to continue a proceeding with the presentation of respondent's defense is peculiarly within the grasp ofthe ALJ.

The ALJ's discretion in ruling on motions to dismiss is broad. Indeed, Rule 3.22(e) expressly provides that the ALJ may defer ruling until the close of the case. Like interlocutory appeals from discovery rulings, appeals from determinations under Rule 3.22(e) merit a par. I These dDcisioos were i sutJd under rules permitting review "upon a showing that the ruling complained 0 involves substantial right! and wi1 materiaUy affect the final decision, and that a determitJation of its CDrrectnef before conclusion of the hearing is esontiaJ to serve the interest. of justice." The current rules provide for review only upon certification by the ALJ under Rule 3-23(b) or in narrow circumstances, dearly Dot applicable her delineated in Rule 3-23(a).

Interlocutory Order 101 F. ticularly skeptical reception. See, Bristol-Myers Co. 90 F. C. 273 (1977). It is inappropriate for the Commission to entertain an appeal of such a determination when the factual record is clearly in dispute and the ALJ has concluded that the proceeding should continue. Accordingly, it is ordered that respondent's application for review is denied.

SOUTHERN MARYLAND CREDIT BUREAU, mv.

Complaint