International Harvester Company

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IN THE MATTER OF INTERNATIONAL HARVESTER COMPANY Docket 9147. Interlocutory Order, July 15, 1981 ORDER DENYING MOTION FOR STAY On June 25, 1981, Administrative Law Judge Mathias certified to the Commission the question whether further proceedings in this matter are in the public interest.

On June 30, 1981, Judge Mathias refused respondent International Harvester Company s ("IH") request for a stay of further proceedings pending a Commission ruling on the certified question. On July , 1981 IH fied a motion for a stay with the Commission pursuant to Section 3.23(c) of the Commission s Rules of Practice. Complaint counsel opposed the motion for a stay iri an answer fied on July 7 1981. On July 9, 1981 IH moved for leave to file, and submitted, a reply memorandum to complaint counsel' s answer. IH's reply memorandum is accepted. Because the active pretrial schedule begins on July 13, 1981 IH asks that the Commission grant a stay at the earliest possible time in order to avoid potentially unnecessary costs of litigation.

Section 23(c) of the Commission s Rules of Practice provides that an application for review and appeal shall not stay proceedings unless the ALJ or the Commission shall so order. This provision presumes that proceedings will continue unless a stay is appropriate in the opinion of the ALJ or the Commission. An important purpose of this provision is to facilitate discovery and trial with a minimum of interruption due to interlocutory issues that may arise. Generally speaking, the public interest in expeditious disposition of adjudicatory matters disfavors interlocutory suspensions of proceedings except in extraordinary circumstances. In addition, responsibilty for resolving procedural questions of this type in adjudicatory matters generally has been left by the Commission to the sound discretion of the administrative law judges. The Commission does not lightly disturb their rulings on the course and conduct of the proceedings over which they preside.

IH argues that Judge Mathias' order places in serious issue whether this case is any longer in the public interest. In light of this development IH argues that it would be wasteful to incur further costs of litigation during the pendency of Judge Mathias' order before the Commission. The Commission is in no position yet to judge the validity of the real premise for IH's motion for a stay, namely, that a decision to withdraw this matter from litigation is a likely lnt!,HNAT1UNAL HAHVESTER co.

Interlocutory Order consequence of Judge Mathias' action and that further expense of litigation thus should be avoided. Until and unless the Commission finds such a likelihood or actually decides that this matter should be withdrawn from litigation, the public interest in expeditious completion of discovery and trial requires that the case go forward. IH argues that the cost of pretrial litigation wil be substantial heightening the need for a stay. While the Commission is sensitive to IH' s alleged financial diffculties and the added stress created by this case, Motion for Stay at 6- , the cost of litigation, even if considerable, ordinarily is insuffcient to support a stay. For these reasons, and because of the broad discretion our administrative law judges have on questions of this kind, the Commission does not believe that Judge Mathias' denial of IH' motion for a stay below should be set aside. Accordingly, it is ordered that respondent IH's motion for a stay filed with the Commission is hereby denied. Commissioner Dixon voted in the negative.

1 S€ction 3.23 of the Commission s Rules is modeled after the appeal procedure of 2R 1292(b), in which interlocutory appeals do not RQ'y further proceedings une!'.' the district Or appellate court so orders. Precedents under that provision thus can be useful to the Commission in interpreting its own rule governing stays pending appeal The Commission knows that federal court have rejected costs of litigation as a ground for a stay Pfmding appeal 8f1(, e. Long u. Robinson, 432 F. 2d 977, 980 (4th Cir. 1970),quotint;. Virginia. FPtmleu.m Jobbers Association v. Federal Power Commi. si"n. 259 F. 2d 921, 925, (D.C. Cir. 1958);Reynolds Metal Co. v Secretary of Lahor. 453 F. Supp. 4, 6-7 (W.o. Va. 1977). , IH allege that in denying a stay, Judge Mathia! indicated that ifthe Commission felt the certified que tion raised a substantilll issue, then the Commission was the appropriate body issue a stay. Reply Memo lit 2. To the extent In is arguing that Judge Mathias suggl'sted a stay is appropriate, we note that there is nO recommendation fora stay in his order.

Complaint 98 F.