Exxon Corporation

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IN THE MATTER OF EXXON CORPORATION, ET AL Docket 8934. Interlocutory Order, March 27, 1.981 Denial of motion for review of ALJ' s orders of Jan. 29 , 1981 and Feb. 13, 1981. ORDER On February 19, 1981, Respondent Standard Oil of California SOCAL") sought Commission review of ALJ Timony s January 29 1981, order denying respondent SOCAL, Standard Oil of Indiana SOIND") and Exxon Corporations' ("Exxon ) renewed application for discovery on the "reason to believe issue, SOCAL additionally sought "correction" of ALJ Timony s February 13, 1981 , order denying interlocutory review of that order. Respondents SOIND and Exxon have joined in SOCAL's request for Commission review of these two ALJ orders.

Under the Commission s Rule of Practice 3. 22 all discovery motions are to be addressed to the ALJ, and wil be ruled upon by him, Pursuant to his authority, Judge Timony has denied respondents' discovery request. Respondents now request the Commission to exercise its discretion to review the ALJ's orders. While we may exercise such discretion under Rule of Practice 3. 23(a) as to certain limited categories of fiings, ALJ Timony s orders of January 29 1981 , and February 13, 1981 , do not fall within any of these categories.

In addition, pursuant to Rule of Practice 3.23(b), ALJ Timony by his order of February 13 , 1981, made the determination that his January 29, 1981, order does not involve a controlling question oflaw or policy.

Therefore, the respondents' motion is denied. , ), JjUl;:l' t.;J\;:GAUt; CUKP. 247 246 Interlocutory Order courts. Once the Commission has resolved these q estions and issued the complaint the issue to be litigated is not the adequacy of the Commission s pre-complaint information or the diligence of its study of the material in question but whether the violation has in fact occurred, Exxon Corp. 3 F. C. 1759, 1760 (1974). See Roise Cascade Corp. v. FTC, No. 80-305 (D. Del. , Sept. , 1980) at 7- affd, No. 80- 2462 (3d Cil Feb. 4. 1981).

Respondent also contends that "industry and congressional pressure impermissibly influenced the filing of this complaint." Respondent, however, does not allege any facts which would even remotely support this allegation.

Aside from its bald claim of "congressional pressure," respondent neither alleges nor describes any congressional contact or involvement, proper or otherwise, with the Commission s investigation of respondent. The industry "pressure" apparently consists of complaints which were brought to this agency s staff by business rivals of respondent who might benefit if respondent were ordered to alter its practices, That the Commission may have investigated allegations by interested complainants, and ultimately made an independent determination it had "reason to believe" the law was being violated, imparts no impropriety to the Commission, Respondent has failed to allege, let alone establish, facts sufficient to overcome the strong presumption of regularity that attaches to the Commission s law enforcement actions. See, g., United States v. Chemical Foundation, Inc.. 272 U. S. 1, 14- 15 (1926); FTC v, Owens-Corning Fiberglas Corp.. 626 F. 2d 966, 975 (D. C, Cir. 1980); Willapoint Oysters, Inc. v. Ewing, 174 F. 2d 676, 696 (9th Cir. cert. denied, 338 U. S. 860 (1949). Nor has respondent shown that the Commission improperly failed to name suppliers of respondent as parties. The selection of alleged law violators to be named in a complaint is a matter of prosecutorial discretion, As the Supreme Court stated in Moog Industries, Inc. FTC, 355 U. S. 411, 413 (1958), "(TJhe Commission alone is empowered to develop that enforcement policy best calculated to achieve the , FTC v. Standard Oil Co" 101 S.Ct. 4BH (19HO), decided after respolldent fied this motioll, held that .. issuance ofa complaint"' by theCommissJon is neither " final agency action" nor otherwise "directly review;"able " 5 lJ, G 704, before the administrative adjudication concludes. It did not reach the question whether the issuance or a complaint is .'committed to agency discretion by law "' 5 U. G 701(a)(2), and hence is excepted from judicial review once the agency issues a linal order 101 SCt. at 492-9:: n, 7 496'1, 1::. , Once a complaint issues only in the most extnmrdinary circumstances" will the Commission review its reason to bf'lieve and public interest determinations,g.. TRW. Inc..rib F, C 544 (197!;). Respondent has made no showing that any such extraordinary circumstances are present h ere Interlocutory Order 97 F. ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and Corp.. 387 U.s, 244economically. " See also FTC v, Universal-Rundle (1967); Ger-Ro-Mar, Inc. v. FTC, 518 F,2d 33 (2d Cir. 1975). The Court has specifically recognized the Commission s discretion not to name sellers as respondents in a Section 2(1) case. See Automatic Canteen Co, v. FTC, 346 U.s. 61, 79 (1953). In view of the availability of discovery, respondent has not shown that the absence of suppliers as issues inparties wil preclude adequate litigation of the Section 2(a) this proceeding.

Finally, respondent argues that the adjudicatory proceeding is in fact a disguised rulemaking because one of the issues, "whether the competing principles of Doubleday or of Mueller' should be applied to dual distributors under the Robinson-Patman Act " is a "legislative issue which "impacts upon all suppliers to dual distributors However, "the choice made between proceeding by general rule or by individual ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency, NLRB v. Bell Aerospace Co. 416 U. S. 267, 293 (1974); SEC v. Chenery Corp. , 332 U.S. 194 203 (1947); see Beltone Electronics Corp. v. FTC, 402 F.Supp. 590 (N.D. Ill. 1975), It is well recognized that "adjudicated cases may and do *.. serve as vehicles for the formulation of agency policies which are applied and announced therein, " and that such cases generally provide a guide to action that the agency may be expected to take in future cases. NLRB v. Bell Aerospace Co., 416 U.s. at 294. Respondent has not persuaded us that the legal issues to be addressed in this case are inappropriate for resolution in the course of an adjudicatory proceeding, Accordingly, It is ordered. That the aforesaid motion, insofar as it was certified to the Commission, be, and it hereby is, denied. . Complaint counsel have fp.presented that bef()r: trial they will furnish respondent a list of betwp.en five and ten manufacturers whose sales will provide the basis for the Section 2(a) violations. &ospondent therefore will not be "confronted with a universe of conceiv"ble claims that might be advanced concerning anyone or more of hunclr"ds of thousands of transactions involving over 24,O()() different products, sold by many hundreds of suppliers '. (Respondent' s Brief at 1:J. Moreover, nun-party suppliers who believe that their interests may be advi,rsely affected by the proceeding moy move to intervene pursuant to Section 3. 14 of the Rules of Practice. Mueller Co. Iin F, C. 120 (19Ii2), a/rd. ::123 F, 2d 44(7their. \%:!):Doubledoy& Co" 52 FTC. 169 (1955) OWENS-CORNING jo'IBERGLAS CORP. 249 249 Complaint