Kellogg Company

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

IN THE MATTER OF KELLOGG COMPANY, ET AL.

Docket 888.1. Interlocutory Order, Jan. 29, 1979 Order denying motion to dismiss the complaint, or in the alternative, to withdraw the proceedings from adjudication and to hold an evidentiary hearing. ORDER On November 29, 1978, General Mils fied a motion and supporting memorandum seeking dismissal of the complaint, or alternative relief including withdrawal of the proceedings from adjudication and an evidentiary hearing on the negotiations with Judge Rinkes. Complaint counsel responded on December 12, 1978. The Commission has reviewed these submissions as well as the Order, separate statement of Chairman Pertchuk, and accompanying materials issued on December 8, 1978, and has determined that the relief requested by General Mils should be, and hereby is denied. With respect to General Mils' assertion that the complaint must be dismissed because any continuation of the proceedings wil violate General Mils' statutory and constitutional rights, the Commission has concluded that the grounds stated do not warrant the relief requested. In the first place, members of the Commission other than Chairman Pertschuk were unaware of the negotiations with Judge Rinkes at the time that they occurred. Hence, no basis exists in support of a claim that the Commission as a body violated General Mils' rights. Second, Chairman Pertschuk' s conduct with respect to the Rinkes contract neither demonstrates a lack of impartiality nor creates an appearance thereof. On the contrary, his conduct was motivated solely by considerations of sound administration and a desire to accomodate the interests of all the parties in bringing these proceedings to an expeditious conclusion. Clearly, the circumstances surrounding his actions would not lead a reasonable person to conclude otherwise.

To the extent that General Mils' motion is based upon contacts between Chairman Pertschuk and Judge Rinkes, it is important to note that Chairman Pertschuk was not acting as an interested party or on behalf of an interested party, but as the "administrative head of the agency." Rules of Practice Section 0.8(a); Reorganization Plan No. 8 of 1950, Section l(a), 64 Stat. 1264 reprinted in 15 D. C. 41 App. Further, the Chairman s actions were not related to the merits ), Interlocutory Order 93 FT. of the proceeding in any way, nor did he discuss the merits with Judge Rinkes. In light of these facts, the Commission has concluded that there is no actual or apparent lack of impartiality on the part of the Chairman or of any other Commissioner, and that the Course of negotiations did not prejudice General Mils' rights in any manner. While General Mils argues that the Commission has an "affrmative duty" to hold an evidentiary hearing, the authorities cited do not warrant such a conclusion. The facts here are clearly distinguishable from the circumstances involved in United Air Lines, Inc. v. CAB 281 F. 2d 53 (D.C. Cir. 1960), and Sangamon Valley Television Corp. v. United States, 269 F.2d 221 (D.C. Cir. 1959). Moreover, to the extent that the motion otherwse seeks the information contained in or appended to the Commission s order of December 8, it is dismissed as moot. To the extent that it seeks to probe beyond the explanation already offered, it is denied. General Mils seeks in effect, to probe the predecisional "mental processess" of an agency. Such probing of the mental processes is disfavored, especially where, as here, the reasons for an agency decision are stated. United States v. Morgan. 313 U.s. 409 , 422 (1941); National Nutritional Foods Ass v. FDA. 491 F.2d 1141, 1144-46 (2d Cir. cert. denied, 419 U.s. 874 (1974). In this case, the Chairman has given an ample statement concerning his actions, and related memoranda have been released. See Order of December 8, 1978. Nor has there been any showing of bad faith or improper behavior. On the contrary, the Commission believes that the documents in the record demonstrate the absence of improper behavior or bad faith.

Finally, the Commission declines to entertain General Mms request to withdraw this matter from adjudication and to consider the possibilty of settlement. General Mils is entirely free to follow the procedures set forth in Rules of Practice Section 3. , should it choose to do so.

It is ordered, That (1) General Mils' motion of November 29 , 1978 is dismissed as moot to the extent it seeks relief already granted; and (2) To the extent it seeks relief not previously granted, it is denied in all respects.

Commissioner Pitofsky did not participate. 213 Interlocutory Order