Boise Cascade Corporation

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IN THE MATTER OF BOISE CASCADE CORPORATION Docket 91;U. Interlocutory Order, March 1:2. 1981 Denial of motions to disqualify Commissioner and dismiss complaint. ORDER On January 5, 1981, respondent filed a motion seeking recusal and alternatively, disqualification, of Commissioner Paul Rand Dixon based upon his public statement on April 23, 1980, which elucidated his reason for voting for the issuance of the complaint in this proceeding. On October 24, 1980, respondent had previously sought dismissal of the complaint from Administrative Law Judge Parker on the same basis. Although Judge Parker denied respondent' motion for dismissal and refused to certify this issue to the full Commission, respondent now seeks dismissal as a remedy from the Commission based upon Commissioner Dixon s statement. Complaint counsel seeks to have the motion returned to respondent without Commission action" because Judge Parker had previously refused to certify the issue for Commission disposition. * On January , 1981 , Commissioner Dixon placed a statement on the record in which he declined to recuse himself and stated his belief that would be appropriate for the Commission to address the issue. On February 26, 1981 , respondent filed a document denominated Answer of Respondent Boise Cascade Corporation to Statement of Commissioner Dixon in Response to Motion for Recusal." The Commission has determined that respondent's motion should be denied.

We see no reason to disqualify Commissioner Dixon, since we do not believe that any bias, prejudgment or apparent unfairness has been demonstrated. Cinderella Career Finishing School, Inc. FTC, 425 F. 2d 583, 591 (D.C. Cir. 1970); Amos Treat Co. v. SEC, 306 2d 260, 267 (D.C. Cir. 1962). Commissioner Dixon s statement, in context, was an official, on-the-record expression of his view that the statutory requirement that the Commission s complaint be based on reason to believe " had been fulfiled. Cf, FTC v. Standard Oil Co., 101 S.Ct. 488, 493- , 496-97 n. 14 (1980); FTC v. Cement Institute, 33:1 U.s. 68:1, 700- 03 (1948); Duffield v. Charleston Area Medical Center 503 F. 2d 512, 517- 19 (4th Cir. 1974); Pangburn v. CAB. 311 2d 349, 356-58 (1st Cir. 1962). It is axiomatic that in determining . The ALJ certified uther claims preRl!nted in the motion to dismiss which will be treated in a separate order atalaterdate . ., 200 FEDERAL TRADE COMMJSSION DECISIONS Interlocutorx Qrder 97 F.T. whether the Commission has "reason to believe" sufficient to issue a complaint, the Commissioners must be able to review information gathered by the staff in the investigation, which may ultimately be offered in evidence in the adjudicative proceeding. In his statement issued simultaneously with the complaint Commissioner Dixon said, in pertinent part (FJrom my review of the investigatory record I have reason to believe that there is sufficient evidence to find a violation Respondent contends that Commissioner Dixon s statement "shows that he has weighed the evidence and concluded before any trial that (respondent) is guilty. " In particular, respondent argues that Commissioner Dixon should have said only that he had reason to believe there may be evidence sufficient to find a violation, not that he had reason to believe ther2 is evidence sufficient to find a violation. Section 5(b) of the Federal Trade Commission Act, 15 C. 45(b), clearly provides however, that the Commission may issue a complaint only when it has " reason to believe any. corporation has been or is using any unfair method of competition. . . . " (emphasis added). See FTC Standard Oil Co. 101 S. Ct. 488, 493-94 (1980). Section ll(b) of the Clayton Act, 15 C. 21(b), contains a parallel provision. We conclude there is no basis to disqualify Commissioner Dixon or to dismiss the complaint.

It is ordered, (1) That respondent' s motion to disqualify Commissioner Dixon be, and hereby is, denied;

(2) That respondent's motion to dismiss the complaint based on the alleged prejudgment of Commissioner Dixon be, and hereby is denied.

Commissioner Dixon not participating.

JIM WALl1!f' 0VJ.U. '-A 201 Interlocutory Order