Kroger Company

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

IN THE MATTER OF THE KROGER COMPANY Doket 9102. Interloto Orr, Feb. , 1979 ORDER AFFIRMING ORDER RULING ON RESPONDENT S MOTION FOR PRODUCTION OF DOCUMENTS PURSUANT To Administrative Law Judge Montgomery K. Hyun (the "ALJ") has sua sponte certified to the Commission for discretionary review s motion forcertain of his rulings in connection with respondent' camera production of documents in the fies of the Commission. We decline to disturb the ALJ's discovery rulings and, accordingly, we affrm. Our disposition of this matter also moots respondent' application for a stay of further proceedings before the ALJ and for oral argument before the Commission.

The ALJ certified his rulings only because of suggestions by respondent that his continued participation in this matter might be inappropriate in light of the Commission s refusal to grant clearance to one of respondent' s attorneys, Mr. Mark Tuller, notwithstanding that both previously served at different times as attorney-advisors to former Chairman Engman.

The standards governing the appearance of former agencyemployees in Commission proceedings address issues different from those concerning the propriety of participation by administrative law judges. The clearance rules concern impropriety resulting from access to inside information whereas the principal question involving an ALJ's participation is one of bias or prejudgment. Thus, application of these standards may lead to differing results concerning the continued participation of Mr. Tuller and Judge Hyun in this proceeding, notwithstanding that each avers that during his tenure with Chairman Engman he did not participate in any matter pertaining to the respondent.

Here, no question of possible bias of or prejudgment by the has been raised by the respondent and we can perceive none. Certainly mere access to information in the possession of the Commission casts no shadow on Judge Hyun s ability to render an impartial decision in this matter. Indeed, to suggest otherwise would call into question a judge s ability to review assertedly privileged information in camera for the purpose of determining whether the attorney requesting the information is entitled to see it. For these reasons, we find nothing inconsistent about the fact that Mr. Tuller 220 Interlocutory Order has been denied clearance in this proceeding while Judge Hyun may continue to serve in his altogether different role. It is ordered, That the ALJ's rulings of January 15, 1979 be, and they hereby are, affrmed; and It is further ordered, That respondent's motions for a stay and for oral argument, dated January 30, 1979, be, and they hereby are denied.

Commissioner Pitofsky did not participate. Complaint 93 F.