The Elmo Division of Drive-X Company, Inc. v. Paul Rand Dixon, the Federal Trade Commission

FAHY, Circuit Judge

(dissenting):

I agree with the District Court in its dismissal of the complaint, so I respectfully dissent from this court’s reversal and remand.

The complaint in the District Court of Elmo Division of Drive-X Co., Inc., prayed the court to enjoin the Federal Trade Commission and its members from proceeding further against Elmo by means of a Federal Trade Commission complaint rather than by procedures available under Commission rules of practice for reopening for possible amendment a previous consent decree entered into between Elmo and the Commission.

The Federal Trade Act provides for judicial review of orders of the Commission, entered in complaint proceedings, by the Courts of Appeals of the United States, 38 Stat. 719 (1914), 15 U.S.C. § 45 , particularly §§ 45(c) and (d) (1958). This method of review was specially designed by Congress and necessarily enables the Commission, without prior judicial intervention, to pursue its own administrative procedures which might lead to an order. This Congressional plan cannot be preserved if the District Courts may exercise their general equity jurisdiction to forestall or interrupt the statutory process.

Elmo claims, as above indicated, that it is injured by the Commission having erroneously issued a new complaint, instead of reopening a previous consent decree. But a claim in the District Court that the Commission is using erroneous procedure in a particular case, and is thus subjecting a party to the expense and inconvenience of litigation, does not vest jurisdiction in the court in contravention of normal statutory review provisions. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51 , 58 S.Ct. 459 , 82 L.Ed. 638 (1938). The question is not whether a procedural error may have occurred at the Commission level, as to which I express no opinion, but rather how and when an alleged error of the Commission is to be judicially considered. Congress has provided the method in the Act itself, thus precluding it to a District Court exercising equity jurisdiction. Cf. Whitney Nat’l Bank v. Bank of New Orleans, 85 S.Ct. 551 , decided January 19, 1965.

The court’s reliance on Leedom v. Kyne, 358 U.S. 184 , 79 S.Ct. 180 , 3 L. Ed.2d 210 (1958), a case of very limited scope, I think is unfounded. There the Labor Board had violated the statute in the course of a proceeding resulting in a union certification, ordinarily non-reviewable under the Labor Act. Jurisdiction in the District Court was sustained to enjoin the Board from depriving some of the affected employees of a substantive right clearly granted to them by statute. Unless the District Court had intervened the deprivation could not have been reviewed at the instance of the employees whose rights were obliterated by the Board action, a situation not comparable to that here present. And in B. F. Goodrich Co. v. FTC, 93 U.S.App.D.C. 50 , 208 F.2d 829 (1953), appeal after remand, 100 U.S.App.D.C. 58 , 242 F.2d 31 (1957), the Commission order was in the form of a rule of general application not subject to the ordinary judicial review proce *349 dures of the Federal Trade Act. In both Goodrich and Leedom v. Kyne the agency had taken action which had a direct impact upon the plaintiffs. In the former the companies had been subjected to a Commission order affecting their business operations, compliance or noncompliance with which order caused immediate consequences to such operations without further agency action. 93 U.S.App.D.C. 50 , 208 F.2d 829 . 1 And in Leedom v. Kyne, as I have said, the Board action had brought about the deprivation of a substantive statutory right. In neither case was the challenged action reviewable, by those affected, under the specially designed statutory review procedures. In contrast, no action of like impact had been taken by the Commission in this case. Only a Commission proceeding on a complaint had been initiated. Should it eventuate in a Commission order adverse to appellant the order would be reviewable by a Circuit Court of Appeals, for procedural as well as substantive error. In the meantime the possible injury or impact upon appellant is only that which Myers, supra, clearly holds insufficient as a basis for departing from the statutory procedures. 2

The mistake of my brethren, I respectfully suggest, is emphasized by the concluding paragraph of the opinion which directs the District Court to compare the practices now complained of with those involved in the consent order. If the former differ significantly from the latter, the court concludes, the new complaint may issue. Surely, as it seems to me, this is a very cumbersome as well as a mistaken substitute for the statutory provisions for review of such order,, if any, as the Commission may issue in its complaint proceedings.

. In Skinner & Eddy Corp. v. United States, 249 U.S. 557 , 39 S.Ct. 375 , 63 L. Ed. 772 (1919), relied upon by the court, an order of the Interstate Commerce Commission, claimed to be in excess of its statutory authority, with immediate impact upon the plaintiffs, was involved. No order of this character has been issued by the Commission in our case.

. Mandamus by way of 28 U.S.C. § 1361 is an extraordinary remedy which invokes the equity powers of a district court. Even if the Commission’s action could be classified as ministerial, mandamus in this case is barred because Congress has provided an adequate remedy. Cf. Indiana & Michigan Elec. Co. v. FPC, 224 F.Supp. 166 (N.D.Ind.1963), and cases cited therein.