Kennecott Copper Corporation v. Federal Trade Commission
542 F.2d 801
10th Cir.
1976
Check Treatment

*1 the court in United before to that similar Potts, (CA9 1975), F.2d 883 v.

States majority the view that express case, in that when read

concurring opinions support our conclusions. fully

together, of the con analysis careful

Judge Sneed’s equally ap law Potts

trolling federal before us. See also to the record

plicable (CA8 Kelly, 519 F.2d 794 v. States

United denied 423 U.S. 96 S.Ct.

1975), cert. v. United States 46 L.Ed.2d

Mostad, (CA8 1973), cert. de 1468, 39

nied charged

Because the crimes here specific intent, require a United

do (CA9 Quiroz, v.

States appellant may have

1971), the fact defender that he advised

been felon, has no relevance. not a convicted Mathews, 518 F.2d United States also

See (CA9 1975).

AFFIRMED. CORPORATION, COPPER

KENNECOTT

Petitioner, COMMISSION, TRADE

FEDERAL

Respondent.

No. 75-1699. Appeals, Court of

United States

Tenth Circuit. May

Argued Submitted Aug.

Decided Rehearing

Rehearing En Banc 12, 1976. Oct.

Denied *2 Cromwell, 40 L.Ed.2d Jr., Piel, & Sullivan William 22, 1974, peti- a the Court denied McKinlay April of On Donald C. and City, York New rehearing, 416 Owen, Denver, (Ar- for Colo. tion Holme, Roberts & L.Ed.2d 314. As that latter John L. Dean, Steyer H. and Roy H. thur date, then, pursuant final Cromwell, the order became New York & of Sullivan Warden Adair, Simon, John to the J. Wallace City, William 1, 1974, April the Commission 21(g)(3). How- On Jr., A. O’Brien of Bodner, Francis and 1, 1975, the time C., until October Simon, D. on the extended Washington, rey & filing of a final order governed brief), petitioner. for comply- detailing plans its for by Kennecott C., Ogden, Atty., F. T. Wash- Baldwin W. ing the order of divestiture. On mo- Lewis, (Robert J. Gen. Coun- ington, D. C. Kennecott, stay granted a was until tion Counsel, Harwood, sel, Asst. Gen. Gerald 14, 1975. October C., Duncan, Atty. F. T. E. Robert and C., brief), respon- for D. on the Washington, accept the final- has refused to Kennecott apparent from its dent. order. This is ity of the the FTC to persuade efforts to numerous MeWILLIAMS, BARRETT and Before persistence its in the case and DOYLE, Judges. Circuit that it seeking persuade this court should to in its behalf. action take some DOYLE, Judge. E. Circuit WILLIAM 21(c) provides that this is before us on occasion on The cause affirming the motion “shall judgment seeking per- to of Kennecott the motion subject final, except that the same shall be affirmance this court its suade Supreme Court on certio- review of enforcement of FTC order and order * * *” sought has been Certiorari rari. to divest itself of the Kennecott requiring Hence under 15 U.S.C. Section and denied. Peabody Company which it had ac- Coal again is once final. Ken- 21(g)(3), the order quired. would, however, have us hold that necott 15, 1972, we September was on that It equitable proceedings here are the review the order of the FTC approved continuing jurisdiction have a that we and Company itself Copper to divest Kennecott There- our order of affirmance. to review Company. that Peabody Coal On arguments, fore, according to its further upheld we the Commission’s deter- occasion economic conditions have as the inasmuch acquisition the effect of the that mination entry of our order drastically since changed substantially competition be to lessen may obligated we are judgment, monopoly. The had to create a or tend the case. reconsider May 1971. In our its decision on issued Corporation v. Copper opinion, point to show they facts which The 1972), we noted 467 F.2d the fuel short change of condition are ing a question “in the case pivotal that alleged fact that both the FTC age plus the merger Kennecott was prior to the affirming in the Trade Com and this court potential entrant into the coal recognized wrong projections made were in mission whether the elimi- business and producing would be a trend toward concen that there (as a potential such of Kennecott nation They rely also of the coal tration entrant) Peabody may purchase its wrong argument the FTC was on the substantially competition lessened shortage prediction that there was a in its monopoly.” create a 467 F.2d at tended production strong entrants into coal Peabody would become projecting essence, In 13, 1972, petition firm. Kennecott’s entrenched dominant an On October develop subsequent then, was denied en banc this contend rehearing they for palpably it was 1, 1974, Supreme proven Court ments have April On court. certiorari, to divest itself compel Kennecott unjust denied tion, Peabody Company, they nothing so seek but this case is far different from the attempted rehearing retrial or problem less than at bar. It is one thing to invoke reject must the issues. We all of these the court’s authority to facilitate agen- contentions. cy’s performance duties; of its quite it is thing another to ask go us to outside the ordering In order be en- FTC’s *3 authority granted to us so as to interfere forced, fully we considered FTC’s argument with or overturn the agency’s decision. likely that Kennecott was the most entrant Here the FTC completed has its review and coal business and into the the coal has issued its order. To interfere with this tending industry was toward concentration. in fact would and in law constitute not a upheld finding the We FTC’s that Kenne- protection agency jurisdiction, but in- acquisition Peabody cott’s eliminated a fringement jurisdiction. of its competitor thereby substantial substan- tially competition lessened in the applicable statute, The analysis This was the result of a careful 21(c), spells out when the order shall be issues of fact and law. For the us to now final. The 45, FTC is deny provisions enforcement of the of the substantially the same. reading From a or, order divestiture in the alter- statutes, these the only FTC would have native, require the Commission to authority a case when changes in only would not be action outside the law facts the or the law or the judgment final, since our it would also necessitate a modification of the order. See justification from a purely lack factual H.R.Rep.No.580, Cong., 86th Sess., 1st U.S. standpoint. agree We do not with Kenne- Cong. 1959, & Code Admin.News p. 1804. has been change cott that there a of circum- Report The House cited American Chain since 1972 which stances makes divestiture Co., FTC, Inc. v. and Cable 142 F.2d 909 unjust. 1944). (4th Cir. It is true that a court inherent has In American Chain and Cable the Com- authority clarify to construe and its order mission had refused to review an order that action, following review of agency entered had been reviewed the court. It said such clarification appropriate could be it power did have the to do so at only ambiguous if the order were or un stage. In rejecting this the Court of Engman, U.S.App. clear. Floersheim v. 161 Appeals carefully pointed out that its deci- 30, (1973). 494 949 Regal D.C. See also depends sion on the agency’s order and is NLRB, 9, Knitwear Co. v. 324 65 U.S. S.Ct. product not the of the underlying condition. 478, (1945). 89 L.Ed. 661 Kennecott does We do not consider the fact that the case clarify judgment. not wish for us to the It arose under the FTC Act rather than the obtaining interested in a is substantial mod Clayton Act makes the case less authorita- ification of it. tive since the provisions review Clay- Co., The case of FTC v. Dean 384 Foods ton Act follow those found in the FTC Act. 597, 1738, 16 S.Ct. L.Ed.2d 802 Since, then, there has been no modifica- (1966), is relied on Kennecott. There the divestiture, tion of the FTC’s order of we Supreme holding Court’s was that where jurisdictional see no modifying basis for our complaint pursuant FTC had issued a the the decree. If we were to do so we would Clayton against 7 of the Act Section a usurping be the function which Congress merger, prospective Commission had granted has to the Commission. preliminary injunction standing to seek restraining merger pending position take, therefore, the out- The we is opinion the action. In its general come of with the principle Court consistent jurisdiction that there was no preclud- respect stated basis for the court’s to re agency from ing asking agency the Court of view of administrative action ex grant Appeals preliminary equitable far re- tends as and no further than the statute protect in order to agency’s jurisdic- lief authorizes. SEC v. Louisiana Public Serv- 855, 1 granted jurisdiction Commission, 368, not been 77 S.Ct. we have 353 U.S. ice Act; Corpo Martin Marietta and that we do not under the L.Ed.2d (7th Cir.), cert. equitable powers to review inherent ration denied, 389 U.S. order or decree. the 1972 enforcement said As was motion modification Federation of in American Supreme Court enforcing the order of the court’s decree NLRB, Labor therefore, is, denied. (1940), jurisdic L.Ed. 347 ac agency to review courts of federal tion BARRETT, (dissenting): Judge Circuit leg conferred specially “. . .is tion dissent. respectfully relating to the specifically determi islation subject made agencies such nations seeking to that Kennecott review, prescribing the manner and in- the same issues which were reheard on *4 the review.” extent original proceed- in the divestiture volved ing, agree I not that Kennecott do has that the significant it We deem strongly indicating forth facts failed to set 21(b), provides that projections assumptions the and lead- that change of a of facts or the event law or in upon by conclusions ing to the relied the require, interest shall so the public if the for the its divesti- 1972 “meat” of FTC in may reopen a case modify and Commission properly this ture order —which Court then with this are order. Consistent the hold an upon predicated to substantial evi- held be judicial only that review is ings available simply pass. not come to dence—-have reopen the FTC has decided to the where good indication that the 1972 FTC There is 21(b); Martin case. See That, how- FTC, analysis is not now valid. faith Corporation v. 376 F.2d 430 Marietta ever, by 923, is a determination to be made the Cir.), denied, cert. 389 U.S. 88 (7th S.Ct. initially and not this Court. 237, FTC Rettinger 19 L.Ed.2d 265 v. 1968); (2d 392 454 Cir. see also Nye with FTC Commissioners and v. Louisiana Public Service Commis SEC Thompson 2 who dissented in the 3 to vote 855, sion, 77 1 upon petition July cast Kennecott’s 1975 proceedings. reopen to administrative recognize spe- Kennecott has We not petition upon changes That was based we review cifically requested that the deni- industry in the coal structure request the FTC of its made al to origi- have its occurred since FTC filed reopen. Yet, essence, agency to years ago. nal about five Commis- order seeking. Kennecott is If we at what were Nye Thompson sioners observed that to stage revise our 1972 decree this the dramatic need for coal which because of denying enforcement of the divestiture or- concern, paramount has become national der, this would in the Commission’s result aggressive massive and under- generating at having proceedings to conduct further takings major companies to enter to its To do so it would least order. fields, acquisition-exploration coal case. This have to would no substantial there is spirit and the contrary to the letter the benefit to be derived weigh against law. relative examining the evidence from developments in the coal present policy,

Finally, standpoint from the all including adjudica- administrative litigation July order of hold that would finality. accept To tions must some denying Kennecott’s “Petition to argument would be tanta- Proceeding” constitutes an Reopen the litigants to allowing thwart en- mount this abuse of discretion by protracted proceedings. court forcement us, Court, the record before order the on complete to undertake full and Commission jurisdic- We conclude that this court lacks motion; in accordance proceedings administrative tion to entertain the findings said and render with review, presented. if our

conclusions America, Appellee, UNITED STATES of specifically an order is authorized un- Such v. provisions of 5 der the terms U.S.C. al., Appellants. Jesse Lee et EVANS 706. § Nos. 75-1483 to 75-1486. Celebrezze, Cappardova In United Appeals, States Court of 1966),Judge Friendly (2nd Cir. held that an Tenth Circuit. not to what agency decision had binding a final and become determination Argued and Submitted March agency was reviewable and that discretion Decided Oct. reopening regard U.S.C. [see 701(a)] did immunize such decision § any judicial

from examination determine the administrative decision consti 10(e)

tutes an abuse discretion under § APA, 706, supra. 5 U.S.C. See also § Flemming, 276 F.2d 215

Langford v. 1960); Miller Co. Eck Transfer v. Unit States, F.Supp. (D.C.Ky.1956);

ed (D.C.N. Ewing, F.Supp.

McMahon

Y.1953). *5 jurisdictional there is no Court to our

basis for this decree in Copper Corporation v. 1972). would, however,

direct the FTC the case for full complete proceedings administrative as to

upon Kennecott’s so deter-

mine there have been sufficient

changes in the structure coal of the indus-

try and the to be served alteration, may justify modifica- setting prior

tion or aside of its final dives- changed

titure order on basis of condi-

tions of fact law or both. Citizens to Volpe, Park

Preserve Overton 28 L.Ed.2d 136 3.72(b)(2)of

Section the FTC’s Procedures Practice; 11(b)

and Rules of Section Davis, 21(b); U.S.C. Ad- § Treatise, 28.08,

ministrative Law Vol. §§

28.21.