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United States Court of Appeals for the Ninth Circuit
August 14, 1979
[*221] This administrative action was commenced September 19, 1972, upon issuance by the Federal Trade Commission (FTC) of a complaint against Congoleum Industries, Inc. (Congoleum) alleging that Congoleum had sold carpeting, type Endureze 9113, [*222] which failed to conform to the Flammable Fabrics Act, as amended. 15 U.S.C. §§ 1191, Et seq. (App. 17-21). 2 [**2] There ensued a trial before a FTC Administrative Law Judge (ALJ) on February 20, 1973, and the record was closed in July 1973. On May 14, 1973, the newly created Consumer Product Safety Commission (CPSC) began operations and this proceeding was then transferred from the FTC to the CPSC. 3 This court has jurisdiction pursuant to 15 U.S.C. § 1193(e)(1).
Based upon the record made at trial, beginning on August 3, 1973, the complaint counsel, the Director, Bureau of Compliance of the CPSC and the attorney for respondent, Congoleum, filed a joint stipulation requesting the ALJ to enter an initial decision dismissing the complaint against Congoleum with prejudice (App. 50-51), and to certify such initial decision to the CPSC with a favorable recommendation that the Commission concur in such dismissal. 4
On August 3, 1973, the ALJ, without acting on the motion to dismiss the complaint, certified said motion to the Commission "for consideration of the policy questions raised therein." By order of October 9, 1973, the Commission ordered petitioner and complaint counsel to file briefs in support of their respective positions. On November 6, 1973, the parties filed a "Summary of Proceeding," a joint statement of facts and circumstances in support of the stipulated motion for dismissal. This Summary was again signed by complaint counsel, the Director, Bureau of Compliance, Consumer Product Safety Commission, and the attorney for respondent, Congoleum. (App. 52-67). The Summary goes to some length in reciting the history of the complaint, the relationship of the FTC as well as the CPSC to the complaint and some of the many tests that had been made of the flammability of the carpeting with a predominately passing mark of the product. It concluded by again saying in part:
"Based on the evidence and particularly the overwhelming predominance of passing test results over failing test results, the parties believe that the recommended action would strictly adhere to currently [**4] published policies of this Commission relating to Flammable Fabrics Act enforcement.
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602 F.2d 220 *; 1979 U.S. App. LEXIS 12518 **
CONGOLEUM INDUSTRIES, INC., Petitioner, v. CONSUMER PRODUCT SAFETY COMMISSION, Respondent.
Prior History: [**1] Petition to Review a Decision of The Consumer Product Safety Commission.
carpet, tests, Flammable, rolls, test result, laboratories, samples, cease and desist order, stipulate, conform, parties
Civil Procedure, Discovery, Methods of Discovery, Stipulations, Antitrust & Trade Law, Consumer Protection, Consumer Product Safety Act, General Overview, Flammable Fabrics Act, Judgments, Relief From Judgments