Topps Ciiewikg Gldi, Inc

Text (OCR of the scan; may contain errors)

interlocutory appeal is analogous to that applied to appeals from the interlocutory orders of district courts in judicial proceedings, pursuant to 28 U.S.C. § 1292(b), ie., that the order appealed from ‘Gnvolves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”

The need for affording wide discretion to hearing examiners in the conduct of adjudicative proceedings is particularly clear with respect to the handling of pretrial procedures, including requests for depositions. The proper disposition of such requests cannot be determined by reference to abstract legal principles or “controlling question{s] of law”, but depends upon an intimate knowledge of the facts of the proceeding, and a careful balancing of the needs of the parties, together with the public interest in the fair and expeditious disposition of the proceedings. For the Commission to entertain interlocutory appeals from every such pretrial ruling of the examiner would, in effect, require the Commission to take over the entire conduct of the proceeding and would result in delaying the proceeding to the same extent as if the appeal had been deliberately taken for that purpose. The only reason urged by respondent in support of its request that the Commission entertain its appeal is that the denial of the depositions which it has requested would be reversible error. This is obviously insufficient; any procedural ruling may ultimately constitute reversible error if it is later determined to be incorrect and if it has resulted in substantial prejudice. The test for interlocutory review under Rule 3.17 (f) is not whether the examiner’s ruling could result in reversible error but whether the question presented is of the type which should be considered by the Commission in interlocutory, piecemeal appeals prior to the termination of the proceeding before the examiner.

Moreover, under the Commission’s Rules of Practice, respondent need not request an interlocutory appeal in order to preserve its right to show that it has been prejudiced by the examiner’s ruling when and if this proceeding should come before the Commission upon appeal from the initial decision of the hearing examiner. At such time, when the entire proceeding is before the Commission, the Commission will be able to determine whether any prejudice to respondent has resulted from the examiner’s conduct of the proceeding and to take such action as may be necessary and appropriate to remedy any prejudice found toexist. Accordingly, It ts ordered, That respondent’s supplemental request to appeal be, _and it hereby is, denied.