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CONSUMER PROD. SAFETY COMMN. v. ANACONDA CO.

December 13, 1977

CONSUMER PRODUCT SAFETY COMMISSION, Plaintiff,
v.
THE ANACONDA COMPANY, et al., Defendants


Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

UNITED STATES DISTRICT JUDGE

 This matter comes before the court on the motions of certain defendants to dismiss or if the motions to dismiss are denied, to certify certain questions to the court of appeals pursuant to 28 U.S.C. § 1292(b). This is an action brought by the Consumer Product Safety Commission (Commission) to have "old technology" aluminum wiring systems declared "imminently hazardous consumer products." For relief the Commission requests that the court enter an order requiring the defendants to give public notice of the hazards allegedly associated with the aluminum wiring systems. *fn1" The court also has before it the motion of certain defendants to set a discovery, briefing, and hearing schedule on plaintiff's motion for temporary relief. Plaintiff's motion for temporary relief is, in effect, a motion for a preliminary injunction. Finally, Kaiser Aluminum & Chemical Corp. (Kaiser) has moved to dismiss, alleging that the Commission is collaterally estopped from pursuing its claims against Kaiser. Two other companies also are attempting to assert a unique applicability of collateral estoppel grounds because they allege that they merely processed wire manufactured by Kaiser.

 The first issue is the motion of most of the defendants to dismiss or, in the alternative, for certification of the two issues raised under § 1292(b). Defendants assert that the Commission lacks jurisdiction to proceed against the aluminum wire manufacturers because aluminum wiring systems are not consumer products for the purposes of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (Supp. V 1975). The defendants further assert that this jurisdictional holding is required by the collateral estoppel effect of Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F. Supp. 177 (D.Del. 1977), appeal pending, No. 77-1874 (3rd Cir.). In support of their motion, the defendants incorporate by reference the arguments raised and rejected by this court in United States v. Anaconda Co., 445 F. Supp. 486 (D.D.C. 1977), appeal pending, No. 77-1628 (D.C. Cir.). This court, having reconsidered the issues presented, again rejects these arguments and hereby adopts and incorporates by reference its decision in United States v. Anaconda Co.

 In Anaconda Co., a subpoena enforcement action, this court rejected the respondents assertion that "the Commission lacks jurisdiction over aluminum wiring systems because they are not 'consumer products' within the meaning of the Consumer Product Safety Act, and, in any case, the court is bound on a collateral estoppel basis by a prior ruling on this point . . . ." 445 F. Supp. at 490 (D.D.C. 1977). The court found that aluminum home wiring systems were consumer products and therefore, it was within the Commission's jurisdiction to investigate the wiring systems. Misc. No. 77-24, slip op. at 10. Similarly, this court is of the opinion that this action under § 12(a) of the Act, 15 U.S.C. § 2061(a) is also within the Commission's jurisdiction to proceed "against an imminently hazardous consumer product " (emphasis added). As to the collateral estoppel issue, in its earlier opinion this court found that collateral estoppel principles did not prevent the Commission from proceeding against respondents other than Kaiser despite the holding of the Delaware court. Misc. No. 77-24, slip op. at 12-15; see Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F. Supp. 177, 180-82 (D. Del. 1977). In the context of this case, this court again concludes that collateral estoppel principles do not preclude the Commission from proceeding against the defendants other than Kaiser.

 Defendants assert, however, that the court of appeals has indicated that it might not reach the issues in question in that appeal. In its order denying appellants' motion for a stay pending appeal, the court stated that it:

 
"[Appears] to the court that the issue of whether aluminum wiring systems are within the jurisdiction of the Consumer Product Safety Commission may involve factual determinations as to the use and marketing practices of that product, and it
 
Further [appears] that this question of coverage raised by appellants is for the Commission to investigate in the first instance, and it is not appropriate for adjudication by the courts prior to enforcement of the subpoenas and the agency's completion of its investigation, Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494 (1946); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 87 L. Ed. 424, 63 S. Ct. 339 (1943) . . ."

 United States v. Anaconda Co., No. 77-1628 (D.C. Cir. August 24, 1977) (as amended August 25, 1977). Thus, defendants fear that the court of appeals might not reach the jurisdictional issues in the subpoena enforcement appeal and, therefore, there will be no review of this court's decision until the merits of this case are decided unless an interlocutory appeal is permitted. Although the absence of review until the merits have been decided is normal, the defendants contend that the conflicting Delaware decision on a basic jurisdictional issue renders this case appropriate for 1292(b) review.

 Defendants assert further that interlocutory review would promote judicial economy because the "order involves a controlling question of law as to which there is substantial ground for difference of opinion and . . . an immediate appeal from the order may materially advance the ultimate termination of the litigation . . . " 28 U.S.C. § 1292(b). The Commission contends that certification at this point would be premature and that the issue could be certified if, and when, the court decides to grant plaintiff's motion for temporary relief. If the relief granted or denied took the form of a preliminary injunction, the defendants could appeal under 28 U.S.C. § 1292(a)(1) (1970). The Commission asserts that certification would unnecessarily delay consideration of the merits of this case and result in harm to the public from the allegedly hazardous aluminum wiring. The court is not convinced that the hazard is sufficiently certain, dangerous, or imminent so as to render any delay unwarranted. Furthermore, other institutions besides this court and the Commission, such as Congress and state authorities, could provide the requested notice if necessary. An additional factor to be considered is that protracted and expensive litigation may needlessly result if this court's decision is ultimately overturned. Therefore, this court is of the opinion that the unique circumstances of this case warrant § 1292(b) certification so that a controlling question of law as to which there is substantial difference of opinion may be decided by the court of appeals in order to materially advance the ultimate termination of this litigation. It also should be noted that the parties have indicated that they will attempt to have this appeal consolidated with the appeal in the Anaconda Co. case and that they will seek an expedited briefing schedule merely to supplement the existing briefs.

 The next issue to be considered is Kaiser's motion to dismiss. Kaiser relies on the collateral estoppel effect of the Delaware court's decision in Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F. Supp. 177 (D. Del. 1977) that was recognized by this court in United States v. Anaconda Co. In Kaiser Aluminum & Chemical Corp., the court held that aluminum branch wiring systems are not "consumer products" for purposes of the Consumer Product Safety Act, 15 U.S.C. § 2051, et seq. and thus, the Commission has no authority to regulate such products. 428 F. Supp. at 180-82. Based on this holding, this court denied enforcement of a Commission subpoena against Kaiser because of the effect of collateral estoppel. United States v. Anaconda Co., 445 F. Supp. 486, slip op. at 10-15 (1977).

 The Commission asserts that the Delaware decision does not have the same effect in this case. The Commission contends that under § 12(a) of the Act, 15 U.S.C. § 2061(a) this action "may be filed notwithstanding the . . . pendency of any administrative or judicial proceedings under any other provision of the Act". The Delaware action, according to the Commission, is a pending judicial proceeding under § 6(b) of the Act, 15 U.S.C. § 2055(b), and therefore, it believes that § 12(a) preempts collateral estoppel principles and this case should proceed. The Commission asserts that § 12 supersedes the common law collateral estoppel doctrine when there is a pending action. Under the Commission's reading of the statute the Delaware case is still pending because there has been an appeal. See MacKenzie v. A. Engelhard Co., 266 U.S. 131, 132-133, 69 L. Ed. 205, 45 S. Ct. 68 (1924).

 Kaiser responds that the Commission's authority under § 12(a) is limited to actions involving "imminently hazardous consumer products." Kaiser asserts that under the Delaware decision aluminum branch wiring systems are not consumer products and therefore, the Commission lacks authority to file a § 12 action against it. Furthermore, Kaiser contends that the Commission's assertion that Congress intended to preclude the application of collateral estoppel principles to agency ...


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