Ford Motor Company v. Coleman

toothbrush, towel, soap, and washcloth

toothpaste paper. and toilet agree plain- 22. The defendants Wendy Schiller, attorney, shall

tiffs’ W. permitted

be free T.S.B. access therein, juveniles confined dating period years for a two entry this decree. shall She any juvenile informed the transfer of jail. Also, county

of the T.S.B. to a holding

she shall be informed of the juvenile unit for the detention as an if incarceration

trial adult days. exceed

will seven In the event of death, resignation

her or her from the Center, prior

National Juvenile Law expiration period, two-year attorney who Director of is then

the National Law shall Juvenile Center attorney another

chose staff who shall

have such access to the and the T.S.B. juveniles confined therein. COMPANY, Plaintiff, MOTOR

FORD Secretary COLEMAN, T.

William Transportation, al., et Defendants.

Civ. A. No. 75-1340. Court,

United States District

District of Columbia.

Sept. tolling

seeks until is able to obtain a determina of the Administra underlying premise pin tor’s that seat breakage “a defect which re constitutes safety” motor lates to vehicle within meaning of Act.3 Ford main Spaeth, Leonard Melvin Krash, Abe provision permitting a tains that Simon, Beckel, Arnold H. Leonard B. $800,000 for C., plain- Washington, Porter, D. & atmosphere in terrorem cal creates an tiff. from ex culated to deter manufacturers Lee, Kelson, Harland Rex E. M. John ercising hear their to a de novo Justice, Leathers, Dept, Wash- F. require court, and district there Henry Berndt, C., and ington, D. Frank to meet the of Government burden Transporta- Lederman, Department of showing by preponderance evi C., Washington, for defendants. tion, D. dence, safety-related there exists Judge, LEVENTHAL, Circuit Before exposure objects defect. 4Ford HART, District and and PARKER penalties noncompli for the initial Judges. asserting ance, statutory pro obtaining stay pending cedure for outcome of the de novo district court Judge. LEVENTHAL, Circuit hearing inadequate constitutionally is Company in case Ford Motor burden onto the because shifts the challenges constitutionality of §§ noncom show that his 155(b) 109, 152(a) 108(a)(1)(D), and pliance “he was “reasonable” and to the National aihendments likely merits”;5 prevail is and Safety Act and Motor Vehicle Traffic (2) possible noncompliance with future 1897(a)(1) 1966, (Act), 15 U.S.C. §§ give provisional an additional order to 1415(b). 1412(a) It (D), and notification, the Administrator which preliminary injunction in this seeks staying may issue Ford succeed in should restraining three-judge district court1 penal operation first set statutory operation ties, and which avoided even cannot be with the order ultimately if Ford on the merits.6 wins Safety Highway and Traffic National give (NHTSA) noti view, proper Administration In our construction purchasers taking of 1968 and Act, fication into the statu- account Mustang Codgar legislative tory language, history, and and automobiles and charge any remedy back interpreta- without seat sound doctrine that calls for pivot pin in Ford light those cars.2 principles brackets in tion of traditional performance sign, 1. 28 U.S.C. 2282. § of motor construction or unreasonable vehicles and Mustang 2. All 1968 and and Cou- 1969 model injury persons risk of death gars folding front vehicles with two-door nonop- occur, do and includes event accidents permit seat backs. The brackets safety erational of such vehicles.” sides seat to fold forward are welded to 1391(1). §C. pins frame; pivot of the seat bottom allowing hinge frame the brackets and Authorities 4. Memorandum Points Failure, pivot result- back to seat Support Tempo- forward. Plaintiff in of Motions weld, ing a. claimed Preliminary from fracture of the is rary Restraining In- Order potential safe- Government to involve junction at 30-33. ty hazards of vehicle control loss Reply 14-15, 25; 5. Plaintiff’s Memo- Id. at collapse jury the seat the rearward Support Prelimi- randum in Motion for at itself. See Government Exh. nary Injunction at 4. 102(1) vehicle safe- Section defines “motor Authorities, “against ty” protection risk 6. Memorandum Points as unreasonable supra occurring de- 26-30. of accidents a result of the note as owners, courts, of the defect to equity consis- nish notification federal is purchasers remedy In ac- and dealers and dictates. tent with constitutional charge. construction, it without The determination cordance with pendent jurisdiction, defect made on the the exercise of its investiga- operation basis of the Administrator’s this court restrains hearing statutory Ford’s motion and after an informal until oppor- preliminary injunction ruled on which the manufacturer has “an action, data, argu- tunity present views and enforcement the Government’s safety- day Ford’s ments” to show the absence of as which was filed same assigned complaint, to Dis- relatedness.9 and has been Judge Hart a related case.1 trict Noncompliance 152(b) with a § injunction That conformance 108(a) (1) a violation under constitutes § predicated un- on the Act’s Act, expos- (D), 1397(a)(1)(D), 15 U.S.C. § constitutionality. to a civil under id. not to exceed § (presumably for each violation $1000 AND I. STATUTORY FRAMEWORK vehicle) each defect-marked motor FACTUAL BACKGROUND $800,000 “for related series of vio- 1412(b) 152(b), Secretary Section 15 U.S.C. § lations.” The determines the Administrator, empowers sought Sec- amount of the to be delegate,7 Transportation’s retary light appropriateness of “the of such require the manufacturer of a motor penalty to the size of the business of the person charged contains defect which gravity vehicle “which a and the ”10 safety” to fur- relates to motor vehicle violation. . . . But it Co., persons 7. United Motor Ac- opportunity present data, States v. Ford Civil an to August 18, (D.D.C., views, arguments tion No. filed respecting 75-1345 and the de- 1975). Secretary. termination of the (b) If, presentations by such after 1.51(a) 8. 49 § C.F.R. persons, manufacturer and interested provides in Secretary Section 15 U.S.C. § determines that such vehicle or part: relevant replacement equipment item of not does (a) through inspection, testing, comply If applicable inves- with an Federal motor tigation, pursuant safety standard, or research carried out vehicle de- or contains a chapter, safety, to this or examination of commu- fect which relates to motor vehicle 1418(a) (1) Secretary nications under section shall order the manufactur- title, Secretary otherwise, (1) deter- respecting or er to furnish notification any item of replacement equip- mines motor vehicle or such vehicle or item of replacement equipment— owners, purchasers, ment to and dealers (2) to title, contains a defect which relates accordance with section 1413 of this immediately safety; remedy motor vehicle shall he to such defect or failure notify comply motor ve- the manufacturer of such to in accordance with section 1414 equipment replacement hicle or item of of this title. publish determination, such no- and shall Federal tice of such in the 10. The full text of § U.S.C. § Register. provides: manu- notification to upon (a) any facturer shall include all information provision Whoever violates Secretary any regula- determination of the title, section 1397 of this or (including subject is based. thereunder, Such notification tion issued shall be to any information) penalty such to shall be available $1,000 a civil of not to exceed person, subject section interested to each such violation. Such violation of 1418(a)(2)(B) provision of this The Secre- title, title. of section 1397 of this or tary regulations an shall manufacturer thereunder, afford such issued shall consti- opportunity present data, views, separate respect to tute a violation with arguments there is no to establish each motor vehicle or item of motor vehi- comply equipment al- respect defect or failure or cle or with to each fail- leged defect vehicle perform does not affect motor ure or refusal to allow or an act safety; required thereby, .except and shall afford other interested maxi- penal- action whether district court such an that determines court may ty hold amount. liable for shall be ordered what noncompliance 152(b) with the order § place in the context Enforcement takes only upon finding, after a de novo hear- 110(a), 15 under of either action § ing,12 Secretary has establish- 1399(a), violation to restrain a U.S.C. § preponderance ed of the evidence 152(b) or under § § the existence of a defect which relates penalty respect with collect safety. Moreover, motor vehicle § action violation. The enforcement such (c)(1), 1415(c)(1), id. authorizes § brought by is to be Government court “restrain enforcement district District of determines, if Columbia district for a (A) that the failure furnish notifica- incorporation state the manufactur- reasonable, (B) man- that the 155(a), requires er. Section id. § ufacturer has demonstrated that he expedited consideration consolidation likely prevail on the merits.” Liabili- brought of “all actions ty 155(b) with a § respect order,” in accordance same provisional order, however, order of the court which regardless attaches brought. During pen- first action is underlying 152(b) determination, § relating 152(b) dency of an action to a §(cid:127) pendente stay and no pro- similar lite Secretary may, order, under § cedure is set forth the Act.13 (b), 1415(b), id. order the manufac- turer issue notification of court, In the case before the Ad- the existence the defect.11 ministrator Ford notified on March mum civil $800,000 shall exceed since there would be a trial de novo with proof viola- related series of burden of Government evidence, prove, by preponderance tions. (b) Any such civil com- defect or promised by Secretary. determin- exists” before penalty, H.Rep. No.93-1191, the the of such or amount could be held liable. upon compromise, agreed Cong., the (1974) ; amount in 93d 2d U.S.Code Sess. 17 appropriateness Cong. Admin.News, p. to the of such & See 6052. charged person Corp., size of business of the United States v. General Motors gravity (D.C.Cir., 1975) ; and the shall be of the violation F.2d United States penalty, (D. Motors, F.Supp. considered. The amount such of v. General finally determined, D.C.1974). Congress when amount or It should be noted that upon agreed compromise, may expected conducting de- be de court the district any owing by give proceeding ducted from sums the Unit- due novo “to consideration person charged. expertise agency ed States its considera as to not there tion of facts whether or 11. The additional would notice a defect and whether such was safe was ty defect Secretary’s deter- contain a statement of H.Rep. Cong., No.93-1452, related.” 93d safety-related mination of the existence of a (1974) ; Cong. Ad 2d Sess. & U.S.Code defect, determination, his for that basis min.News, 1974, p. 6096. ve- attendant to motor evaluation risk safety believes hicle necessary he and measures 155(c), § The full 15 U.S.C. § text hazard an unreasonable to “avoid provides: 1415(c), resulting com- or failure to the defect notify (c) fails to If a manufacturer ply” ; will statement purchasers with owners or accordance remedy with- defect or pe- 1413(c) this section title within charge merits; and out if he loses 1413(b) specified riod under section prescribe may Secretary other matters title, liable this him the court hold by regulation order. or respect for a civil disposition notify, expedite failure to unless the order “to prevails safety-related noncompliance in subsec- in an action described defect (a) violating section unless constitutional this matters without provided Congress rights process,” en- court such an action restrains of due 152(b) (in procedures he case § forcement of such informal any pe- respect stage, satisfied shall not liable with and “due would be investigation “that indicated Government’s enforcement ac- pivot jurisdictional tion.15 This back arm contention the front inboard seat Mustang argument,16 and was abandoned at oral pin on 1968-69 bracket Cougars subject failure which can is without merit. control, accident of vehicle in loss result theory, 155(c)(1) Under Ford’s the § given oppor- injury.” Ford was or tunity stay procedure comes too late because arguments present data al- have rebuttal, presented on was and rebuttal ready chilling worked their effect August April 1975. On right to seek review the or- the Ad- received notification Ford der, constitutionally inadequate ministrator’s final places also because the burden of es- breakage pivot pin bracket back seat tablishing equitable relief on defect, ac- constitutes companied by Ford, require rather than Govern- 152(b) to fur- a § ment to convince the court of the need remedy without and to nish charge. coercing compliance. immediate The August 1975, Ford filed On challenge here the constitutional court, ap- complaint in district adequacy 155(c)(1) stay § restraining order, temporary plied for a accruing context of civil penalties im- injunction preliminary and convocation upon noncompliance. mediately The three-judge The court. district jurisdictional objection would foreclose day, en- filed its same the Government effective consideration of Ford’s court. in the district forcement action objections. constitutional Ford is en- Judge granted temporary re- Hart three-judge titled to court review of the straining three-judge court order. This constitutionality statutory scheme argument, duly convened. At this as a whole. court continued the restraint Moreover, embody Act this not does penalty provisions enforcement Congressional confining judi- direction pending further order the court. jurisdiction proceed- cial ings. to enforcement 155(a)(1) statute, Section

II. JURISDICTION 1415(a)(1), expressly pro- 15 U.S.C. § vides for brief contend consolidation actions Government’s “[a] (including juris brought actions) enforcement ed that have does respect constitutional the same order under” diction to hear Ford’s 152(b). challenge stay 155(c)(1) provides procedure itself is not because § stay in, obtaining a restricted enforcement exclusive means terms ac- penalties provision 155(c)(1) stay motion tions.17 Even if the § —as 15. riod for the or- Government’s Motion to Dismiss at which the effectiveness of 10-12. stayed). der was court shall restrain hearing 16. The Government conceded at only the enforcement an if of such order jurisdiction, that this court has but asked determines, (A) it to fur- that jurisdiction that we decline to exercise (B) reasonable, nish notification where an enforcement has action been has demonstrated promptly filed. Tr. 47-49. likely prevail that he is on the merits. (cid:127) provisional 155(b), notify § 17. Unlike notifica- If a manufacturer fails provision, 155(c)(1) purchasers required § tion is not limited owners or as an (b) section, “a civil action an which relates to order un- order under subsection of this 152(b)] title, der [§ of this and to which [§ the court hold him liable for 155(a)(1)]' applies. Although penalty regard .” without to whether or not legislative history pre-en- prevails (to indicates he in an subsec- action which subject (a) applies) forcement review actions would tion of this section re- 155(a)(1), H.Bep. spect validity consolidation under see § to the issued of the order Cong., No.93-1452, (1974), 93d 1412(b) 2d Sess. 32 under section this title. of stay it is silent on whether action for a Complaint Declaratory 152(b) 14. Verified for not seek review of the § does Injunctive Belief, A. can Exhibit order itself be obtained outside proceeding. consolidated noncompliance liability for Ford’s should begin to enforcement restricted procedure were language to run. un- of actions, absence in the withdrawing equitable all mistakably up further do take Ford’s We the enforcement jurisdiction outside objection provisional notification have in- would proceeding18 chilling exacerbating provision, equity the face power do herent exposing penalty scheme effect rather But statute. an unconstitutional noncompliance liability even Ford to for Congress withdrawal, legislate such than agency underlying if determination pre-enforce- willing permit even was ultimately The Ad deemed unlawful. express- orders, 152(b) review of § ment ly provisional ordered ministrator has not leaving question courts.19 In the absence this case. the “clear provisions fall short These agency implementation of this sec re- convincing” congressional intent have no basis Act, we construed will be quired a statute before determining reach, alone for its let review,20 judicial access to restrict measuring it the command whole. penalty as a scheme here of The Administrator the Constitution. authority provi may view his SCHEME III. THE PENALTY emergency sion notification limited to claim that Ford’s basic be cor situations —where the defect can it to deter is calculated scheme significant related with incidence review, exercising judicial its highway injury.22 The accident and by putting it to the Hobson’s choice possibility the Administrator mere might submitting it either to what considers in this case power exerisé that agency based erroneous speculative is too to warrant challenging procedures or informal juncture. consideration at this penal- the risk of a the courts at ty argues $800,000.21 claim, principal that due As to Ford Ford’s tolling read, period statute, requires fairly dur- our view permits complete can secure a which it the manufacturer who has challenge validity substantial, review of the nonfrivolous upon order, of the Adminstrator’s deter Government’s judgment preliminary injunc- favor mination to obtain a final Government’s 204(d) (1974) ; Weinberger See, Emergency Salfi, g., e. § January (1975). Act Price Control 45 L.Ed.2d 522 United in Yakus v. Stat. 32-33 issue hearing suggested 21. Plaintiff States, L.Ed. exposure $1,600,000 $800,000 total was — (1944). noneompliance maximum specifically provided 152(b) $800,000 § Bill order and another While the Senate provisional review, S.Rep.No.93- 155(b) pre-enforcement with a § Cong., (1973), notifications order. 1st Tr. 3-4. The Govern- Sess. 93d bill, provisions possibility ultimate- ment conceded the penalty of a double whose were House ly ques- premise separate position enacted, on the refus- no on the took als, Cong., “separate tion, H.Rep.N0.93-1191, 2d hence violations” 93d within Sess. conference, position the terms Tr. 67. involved. House adopted. notifica- Since we decide that “The discussed but conferees position provision ripe for constitutional on or not tion is not to take no whether decided pre-enforcement infra, judicial here, do attack see text at note 22 we review was available penalty reach double substitute. the issue. under the turn of the conference question leave decided to The conferees construction, properly limited Under Cong., H.Kep. No.93-1452, 93d to the courts.” fair, 155(b) may bal- strike a constitutional Cong. (1974), & 2d Admin. Sess. U.S.Code ju- the ance between manufacturer’s News, p. driving public’s right dicial review the attending Robison, dangers alerted continued be operation 20. See Johnson 373-74, 39 L.Ed.2d of defect-marked automobiles. 94 S.Ct. law, ade- no enforce- of due where in the Government’s tion either quate opportunity car- is afforded the or, does not if the ment suit Government safely appropri- suit, bringing testing, in an rier for promptly such act proceeding, validity has ate the pre-enforcement court action. The liability temporary order the . . . before jurisdiction rate to issue a penalties restraining penal- attaches. . . . operation for the the the pending its determination ties also is such And it true where injunction, preliminary for motion opportunity is afforded and the rate injunction preliminary will issue a valid, adjudged is the carrier fails penalties until stay accrual of the the opportunity, it to avail itself completion enforce- de novo admissible, proc- then so far as due proceeding in district court ment concerned, for State ess of law However, underlying order. if by im- to enforce adherence to the rate hearing injunction mo- preliminary posing penalties substantial for devia- insubstantial, challenge deems tions from it. deny and start relief such full it temporarily up it sus- clock that has provided In that case state law event, pended. penalty dollars, In that the manufacturer fifty of “not less than remedy in ac- give must nor more than three hundred dollars direc- Administrator’s suit, including cordance costs at reasonable payment of torney’s tive or risk the for fee” each instance of a rail it lose Gov- should on the merits passenger exceeding road’s rates statu ernment’s enforcement action. tory limits, id. at 40 S.Ct. at 72. Justice Devanter Van found there infirmity carry Ford’s contentions constitutionally adequate opportu causing forbid Constitution nity safely testing” “for rate Congress placing barriers judicial proceeding because of rail path litigation, embark- insubstantial ability road’s “to secure a determination upon delay hope ed and in the that an validity statutorily pre [the agency may protection for settle for less scribed equity a suit in rates] public contemplates. than the law State, the Railroad Commission view, reading cases, our our during pendency opera of which the requirement basic constitutional penalty provision tion of the have could op- if satisfied has injunction.” suspended by been Id. at portunity to convince a court 65, 40 S.Ct. 72. The crucial element grounds contesting validity —that “could have sus been substantial, adequacy pended” order are and the far removed from Ford’s —is opportunity contention that auto where is established matically suspended liability it while it is liti is made available before gating. adequate Ford is afforded an attaches. opportunity testing, safely “for in an registered pertinent doctrine was appropriate proceeding,” acknowledged Justice Van Devanter — directive, of the Administrator’s learning jurisdic- for his matters because it has the sus means to seek a Louis, tion —in St. Iron Mountain & pension preventing penalties from accru Railway Williams, Company Southern ing during litigation, assuming can it grounds injunctive re demonstrate (1919): L.Ed. 139 assuming show, Su can what the lief — imposition preme uniformly It is true that required has Court cases, including severe Operat as a means of enforc- Oklahoma ing places a rate is in contravention Co. v. Love which Ford em 484 penalty system litigant phasis, a nature as had “reasonable of that the judicial ground order.23 create virtual roadblock to to contest” the a parte Young, In where the review. Ex line cit^o the of cases have studied We sanctions, provided statutes criminal Young,

by parte notably, Wad Ex Ford — Supreme noted that the the Court Georgia, ley Railway v. Southern imprisonment may risk of deter all chal Operating Oklahoma Co. v. Love — and lenge, be unable as the manufacturer will they consistent with clear that are among willing his find a em violator that teaching, Iron Mountain ployees, jury in a criminal and the trial provi Constitution satisfied adequately will not be able scrutinize safely opportunity test an “for sion of validity underlying regulatory They ing” do action.24 administrative statute order.25 In this context proposition support as the broader impose party Court held a by Ford, serted Constitution obtaining burden of a decision litigation. These de dictates risk-free upon that, “only the condition if unsuc up separate point, do take a cisions cessful, imprisonment he must suffer is offended when the Constitution penalties pendente Love, Operating automatic cessation In v. 252 Oklahoma Co. 331, 338, 340, 338, lite. L.Ed. 40 64 U.S. S.Ct. Brandéis, reviewing (1920), indicate a More recent decisions of Court 596 Justice opportunity Wadley requires imposing that what is an for scheme noncompliance cumulative sanctions stay upon showing the tra- to obtain a a with an administrative order grounds Specif- laundry work, equitable setting ditional for relief. maximum rates ically addressing Woi?iej/-based required stay a attack a held that the Constitution barring lite, “pro- price legislation statutory pendente all war-time control relief, plaintiff interlocutory v. in Yakus the Court vided it also be found that States, 414, 660, ground United 64 88 321 U.S. S.Ct. rates] had reasonable to contest [the (1944), confiscatory.” being it- that “the statute L.Ed. 834 noted in United as Court provides expeditious meaning 632, 654, Co., self an of test- States v. Morton Salt 338 U.S. ing validity any regulation, price (1950), with- cit- 94 L.Ed. 70 S.Ct. 401 penal- necessarily incurring opinion, out of the the con- Brandéis’ characterized 438, Act,” requirement id. 64 at 674 ties S.Ct. a “chance stitutional (emphasis objections supplied), award “[t]he and that a test of reasonable interlocutory injunction of an courts strictly equity regarded European a has never been United v. Coast States Pacific irreparable though right, (9th 1971), matter even Conference, 451 F.2d 712 Cir. jury may plaintiff,” by Ford, required otherwise result restraint of also cited recently, 440, penalties during id. at 64 S.Ct. at 674. More re- the course of Regis Paper specifically view, the Court v. United Co. found St. but there 289, States, 226-27, 208, at- U.S. 82 S.Ct. that “defendants mounted substantial 300, rejected upon (1961), validity 7 L.Ed.2d Wad- tack der,” statute and or- petitioners ley-type argument, stay because since and that a would been inef- have “stay” upon opportunity stop accruing. had the obtain a fective enforce- commencement of the Government’s Id. at 719. penal- prior ment action or ties, accrual parte Young, Ex say it had “we not therefore could only opportu (1908), 52 L.Ed. 714 running prevent ‘no chance’ to nity contesting validity the statu pending forfeitures test jury tory rates trial for defense has con- The Fifth Circuit the orders.” Operating felony. Similarly, Oklahoma Regis Paper Co. condition strued St. only judicial Love, supra, review Co. v. showing stay grant “the chal- on a contempt proceeding. in a obtainable was ‘appears suspect’ lenged re- and the Wadley Railway Co. The Court in Southern ‘good ‘reasonable faith test’ of view seeks a Georgia, S.Ct. 235 U.S. objections’ Parts to the order.” Genuine plaintiff (1915), that had 59 L.Ed. 405 noted (5th FTC, Cir. Co. F.2d opportunity for railroad utilized the available judicial 1971). su- in note 23 also cases cited See agency it could review pra. occur- be held liable 145-46, Young, parte adjudication ring 25. Ex va- after of the order’s lidity. La- L.Ed. 714 no in Justice There is indication any right opinion, however, mar’s

485 acts, is, pay provided fines, authority these tended plenary provide in the court to effect, up approaches through to close all protection a “restraint” ” 26 appropriate the courts . . In the case at in an case. think it We Congress contemplated bar, contrast, plain, as Government counsel acknowl- judicial stay edged provided argument, a has for at oral the stat- assuming contestant, protect provision will a ute’s for a “restraint” encom- showing, passes restraining if temporary threshold even unsuccessful both the against penal merits, preliminary injunction order accrual and the (Tr. Furthermore, pendent very 35), ties lite. in Ex that “a low threshold of cases, showing parte Young, ap need temporary and its line be made” for a pearance restraining providing (Tr. 37-38), of a scheme cumula order and that penalties, mounting day temporary tive each se restraint could have a effect, operated impost staying verity, direct inflat retroactive as a the accrual ing of, with, requir and because the time the date the Admini- very (Tr. 38). ed for the exercise of directive That re- strator’s. binding straint review.27 remains whether ruling granting further deny- is one or view, In the 1974 Amend our preliminary injunction. a Traffic and ments to National Safe legislative ty light Act, case read where the manu against gen history backdrop presents facturer ques a nonfrivolous tion, temporary principles equity practice, a restraining ap eral federal order provide propriate, constitutionally adequate question tol for the nonfrivolous ling shows procedure, sanc that “the ultimate furnish [im reasonable,” properly discretionary tions and noncu notification is mediate] equitable and the mulative in nature. context the statute power temporary establishes to issue a Constitutionally Adequate Tolling A. A restraining order until the court has had Procedure opportunity to hear and consider preliminary injunction motion for 155(c)(1) the Act Section opposition thereto. expressly provides for a Furthermore, en “restraint” the Government’s it is our view encompasses although this forcement action—and a manufacturer can obtain restraining well temporary orders as this relief in a nonfrivolous ease Congress preliminary injunctions. action, jurisdic- there is enforcement 148, really goes 28 at 449. Id. at S.ct. That line of cases cumulative nature of some finds 145, (penalty support 441 not Id. at 28 S.Ct. in the commentaries. See W. Gellhorn imprisonment, years’ $5,000 Byse, exceed 5or & C. Administrative Law: Cases separate both, felony, (1970) (“If money pen ticket sale each Comments 477 n. Railway lation) ; Wadley alty delay Southern vio [in the commencement of Gov Georgia, 651, proceedings] large Co. v. S. U.S. ernment enforcement is so (1916) (penalty inescapable respondent not Ct. 59 L.Ed. 405 and so could per day day $5,000 challenging thought of continued exceed for each not risk an order he in lation) Operating ; valid, process might result,” Co. vio Oklahoma a denial of due Love, citing parte Young, supra; Operating v. Ex Oklahoma (1920) (penalty Love, supra) ; Jaffe, to exceed L.Ed. 596 not L. Ju Co noncompli day per day dicial $500 for each Control of Administrative Action 708 ance) Regis Paper ; (1965) (“Love United Co. v. St. doctrine” does not extend to “every States, 212 n. administrative becomes day (flat pendente may eventually effective $100 7 L.Ed.2d 240 lite [and] noncompli day by penalties,” each continued enforced but “is directed 30-day period) ; huge smacking grace United anee after cumulative European purpose review”). of a States to block Coast Confer Pacific 1971) (9th ence, 451 F.2d Cir. $1,000 day (penalty each to exceed day violation). 155(c)(1) permits the manu- entertain a tion in a district court Section preliminary injunc- petition of notifica- to obtain a to review an order facturer though tion-and-remedy, in the filed before en- tion if he can convince the court forcement, “that one district enforcement action if filed in Government’s Congress contemplated is as the failure to furnish courts which arising likely having reasonable,” under is venue of matters and that “he 31 prevail the manu- for the If District Court on the merits.” this statute —the showing, Columbia, ob- he and the district makes this District facturer incorpo- injunction preliminary which a where tains meaningful liability jud- noncom- concept him of rated.28 The absolves pendente not pliance he has permit Even if that court lite. icial restraint would temporary re- previously a pending the institu- enter a restraint obtained jurisdic- pend- straining order, the court has tion of an enforcement action by of “restraint” an order the court tion to issue further consideration tolling effect, pen- in If the en- a retroactive that enforcement action. has by period brought promptly interim between alties forcement action ruling, by point Government,29 and its action filed pre- application way, on be either should consolidated liminary injunction.32 as Ford Insofar with the action.30 enforcement brought Congress above, in case 28. left it to the Government As discussed Since prompt- requisite per suit with the statute its enforcement courts determine whether fact, pre-enforcement same it its suit on the challenge to its face- of a substantial discharge forward. It can that burden validity. by producing its some evidence that challenge undergirded is with substance. argues 155(c) that the Ford That in burden is substance no different constitutionally (1) stay procedure is showing generally required from the contemplates defective because it litigants seeking opera- to restrain the only grant injunction preliminary of a regulation which, tion of a statute or it “likely plaintiff to where shows he is claimed, invalidly is their restricts ac- merits,” this, prevail is it on the Ordinarily, regula- tions. the statute or argued, works a shift in the burden presumed regardless valid, tion is challeng proof raises the cost of injury claimed to from the flow constitutionally pro the order to a operation, preliminary statute’s a opinion, Ford level.34 In our hibitive junction probable not issue will unless language statutory misconstrues the success on the merits is demonstrated. thereby plight. overstates its Since proof with There ultimate burden of remains is no automatic to inter Government, probable locutory on the success relief in the law. Even highly area, in Ford’s sensitive merits for a manufacturer First Amendment position only, where means as the Government courts alert to remove 43-44), (Tr. 41-42, “prior protected expres here concedes restraints” sion, (prob “persuasive he need a show that the evidence demonstration” of ably) likely equipoise. By “evidence success the merits is a neces equipoise” sary predicate obtaining preliminary mean that on some item we to a injunction.35 Moreover, preser it is material for Government where establish, party quo operates the burden vation of the as the status fairly say non-moving proof, the active court cannot detriment of the contrary party, probable whether the item or is the its success on the merits entirely importance probable. more It is sound and takes on added criti as the straightforward Particularly analysis, though per prerequisite cal for relief.36 haps formulation, say public may that at where novel sac interest injunction stage grant preliminary by preliminary a manu rificed of a requisite injunction, equity require likeli facturer establishes courts of merits, moving showing by party hood of ultimate success on substantial prayer continuing prelimi- preliminary injunction. and that for a motion Memo- injunction nary randum is denied. The Government of Points and Authorities Plain- point (Tr. appears Support Temporary tiff to have conceded this of Motions 38). Injunc- Restraining Preliminary Order and 14-15, tion at 25. Support Reply 33. Plaintiff’s Memorandum Injunction Preliminary See, g., Group at 4. Motion for 35. e. A Quaker Action Hickel, U.S.App.D.C. judi- penalties Rather than have attend 1111, 1116-17 (1969). F.2d cial aft- of the order’s hearing Railway See, g., er a de Govern- novo at which the e. & Hudson Delaware justify prepon- U.S.App. Transportation, ment its actions Co. v. United argues evidence, 603, 619-20, 142, 158-59, Ford derance of F.2d D.C. agency denied, coercive the statute arms cert. penalties immediately, (action by (1971) rail carriers which take effect L.Ed.2d 689 places enjoin by union). striking the burden on the manufacturer selective tolling by proving case on the secure a notwithstanding strength equipoise, of mere “Courts claim its claim. do, go proof manufacturer. may, frequently much tendered equity injunction preliminary If give relief and withhold farther both to may denied, continue public than interest furtherance of only litigate, go compliance, and resist they when are accustomed shouldering exposure an private assess- If an involved.” interests are enough, it the merits. important ment if it loses on public interest outright all justify ban on an even Discretionary, Pen- B. Noncumulative though ef interlocutory relief, even alties pow coercive immediate fect is to confer attacking Ford would have basis Act, orders.38 This er on administrative statutory if at- scheme go nearly course, far. does not inflexibly tached to were above, light we cannot heavy set at erect an amount “so injury say 155(c)(1) works that § unfair the endeavor barrier dimension because constitutional litigant judg- an honest obtain coming places for the of initial burden Casualty Co. ment a court.” & of Life manufacturer, to some ward the make on 566, 574-75, McCray, v. 291 U.S. showing on, sub to establish at least 482, 486, (1934). 78 L.Ed. 987 stantiality for, invalidity of of the claim plainly It But not a case. this is such give con an order notification to existing infirmity does not bear the may driving ve sumers who unsafe plaintiff, most of the relied on cases hicles. involved criminal sanc- where reality is the of the This “restraint” tions, including imprisonment,39 or was procedure under the Act: per day of violation —so cumulative — that (1) naturally required for sub- forward with the time Once Ford comes litigation substantiality penalize the establishing stantial served to evidence litigating.40 upholding objections, preliminary of act of The its a cases obtains provi- injunction, (2). substantially subject in- similar junction sion of and Motor denied if the the National Traffic will be Govern- Act, proving its its amendment ment meets Vehicle before the burden 1974,41 safety-relat- con- case, this distinction a have found existence of defect, sufficiently even a minimum ed overcome clusive. Nor there System temporarily, impairment, Virginian Ry. No. 37. Federation whose even v. compensate, 601, junction 40, 515, 552, 592, bond cannot the court 81 300 U.S. S.Ct. 57 ' may public (1937). re- interest withhold Yakus United L.Ed. 789 See v. supra, States, lief a final S.Ct. until at 64 321 U.S. parties, postpone- rights though 834; v. L.Ed. Abbott Laboratories 88 plaintiff. may Gardner, 136, 155-56, ment be burdensome S.Ct. 387 87 U.S. Associated, ; (1967) Securities 18 L.Ed.2d 674 supra, States, Yakus v. United SEC, p. 775 F.2d Cor 283 held in Yakus The Court 64 660. S.Ct. Weinberger, (10th 1960) ; Floersheim v. Cir. integrity preservation war F.Supp. (D.D.C.1972), dismissed statutory 346 956 justified price time controls U.S.App.D.C. juridsiction, lack 161 seek manufacturers scheme which restricted generally, (1973). 11 F.2d See regula 494 949 price contest Wright Miller, Pro & Federal Practice & procedure, an exclusive review Civil cedure: 457-60 granting precluded any court from principal Staggers, Representative au interlocutory injunction staying enforcement amendments, specifically thor 1974 adjudication regulation final before determining urged courts, or whether validity. the Adminis restrain enforcement of supra. accompanying 39. See 25 and text directive, note trator’s to consider “whether public adversely by [the would not be affected accompanying supra. text 27 and See note notify.” Cong. manufacturer’s] 15,1974). (daily H ed. Oct. Rec. 10571 Corp. Volpe, F. 41. General Motors (D.Del.1970), Supp. 1112, injunction 1126 n. is asked which But where an aff'd (3d modified, adversely public Cir. F.2d will affect interest good assessing 109(a) purposes penalty. the Act42 faith for civil Section sep- penalties protects with two can take it into ac prescribing on count maxima manu case at hand the arate limitations $1,000 strengths penalties. facturer had maximum is substantial One merits, merely relying overall per is the and was not The other violation. related $800,000 for disinclination to treat even maximum gross, dispute weak Even as sham. “The essence series of violations. $800,000 jurisdiction figure equity power in con- must be taken has been equity junction class the fact Chancellor do mould each decree to the necessities of which will be affected-—manufacturers particular Flexibility motor vehicles or of motor case. rather assemblers rigidity distinguished denied ac- than equipment not be has vehicle it. —will qualities mercy practicality within It well be have cess to courts. litigation range equity for made cost of the instrument for nice challenges.43 important, adjustment More and reconsideration between maximum, figure public $800,000 represents private interest and needs clearly Bowles, room There . .” not a minimum. The Hecht Co. v. substantially 321, 329, lower for the court to set a figure. 88 L.Ed. expressly (1944) authorizes

The statute “the size of the the court to consider context, In this overall the statute charged person and the business of the give does not consid determining gravity of the violation” illusory eration that is “nominal and Moreover, penalty. the amount of the party to be affected can [because] (Tr. as the 42-43), to concede Government seems appeal only to the courts at the risk of good faith the reasonableness having great pay it so may of the manufacturer’s yield better to orders of uncertain mitigation properly be considered legality pro rather for the than to ask statutory must And it maximum.44 Wadley tection of the law.” Southern exposure will be reiterated even this Ry. Georgia, 651, 661, v. 235 U.S. 35 S. has denied a attach if the court 214, 218, (1915). Ct. L.Ed. 59 405 There preliminary injunction because party is no risk unless is unable convinced, time, proof as of that preliminary convince restraint, court to issue a equipoise, was not in rather more but exposure and in that case its side., The denial the Government’s price is “no more than fair moreover, preliminary injunction, order; contesting adventure” of “the regard penal- not conclusive with litigant pay experience, like for his ultimately assessed, appraising ties for in others who have tried and lost.” Life 1972) ; v. Motors United States General only $100,000, assessed because this was a Corp., F.Supp. 598, (D.D.C.1974). 385 604 impression case of first and therefore Gen- only significant pertinent here, change, The acting eral Motors was “not in blatant disre- penalty wrought by scheme the 1974 gard of a well-defined area of the law.” maximum amendments was to double The courts have exercised similar discre penalty $400,000 $800,000. from analogous provision tion under Act, of the Federal supra. Trade 15 Commission 42. at 10 The text found note 45(1). U.S.C. See United States ITT v. v. See United States General Motors Bahing Co., 223, Continental 420 229 n. ; F.Supp. 598, (D.D.C.1974) Corp., 385 604 6, 926, (1975); 95 S.Ct. 43 Unit L.Ed.2d 148 Eng Corp. & v. Brown Tobacco Williamson Co., ed v. States J. Williams 498 F.2d B. August man, (S.D.N.Y. C.A. No. 75 Civ. 4047 (2d 1974); Engman, v. 438 Cir. Floersheim slip op. 1975), at 6. U.S.App.D.C. 30, 33-35, 161 494 F.2d (1973) ; Although 952-54 Brown & Tobacco Williamson United States Government rp. Engmam, supra, 5; F.Supp. 598, Co United Corp., v. General Motors (D.D.C.1974), sought Co., F.Supp. $400,000, the stat States v. Beatrice Foods 603 utory Judge time, maximum at Gaseh (D.Minn.1971). ments, remedy”, McCray, “timely prompt Casualty Co. relating adjudication of 78 L.Ed. 987 controversies safety.46 highway and motor vehicle public interest embraces REVIEW EXPEDITED IV. surcharge to add a to deter measures temporary litigation.47 procedure for frivolous The 1974 amend a fore Motor envisions ments the National Traffic and relief above outlined sought shortening Safety review district Vehicle to deter frivo Act challenges litigation by Many, attaching process. most if not lous a cost chal pur lenges, merit, resolved, main all intents without substantial will be delaying disposition purposes motion im poses, tained for injunction plementation statutory than preliminary rather mandate Litigants Congress can a more extensive trial. We believe that constitu after challenges, par temporary tionally penalize relief fail who to obtain press public prefer ticularly than interest well rather where action, changing safety hope prompt the court’s on in the demands corrective litigation long appraisal, the risk of both can as manufacturers obtain pro they hearing penalties.45 expedited due But can costs and civil at which by expedition, immunity petition cess is not offended long showing pendente upon be rea claims can lite their as nonfrivolous challenge sonably non-compliance rests on a aired. is substantial. Moreover, does the statute insofar as give preliminary a "free ride” Plaintiff's motion for penal litigate enjoining injunction, risk of —to without enforcement of public important Act, ties —it advances as unconsti- scheme tutional, policy, compliance amend in the 1974 embodied is denied. It is litigation problems & in Delaware Hud 45. As this court stated 47. On of frivolous Transportation Railway area, son Co. v. United labor International Union see Union, U.S.App.D.C. 450 F. Prod [Tiidee Electrical v. NLRB Workers ucts], U.S.App.D.C. 249, 426 2d 603 at 620: F.2d 239, duty appraise 950, at the merits The denied 400 27 cert. duty stage preliminary injunction (1970) ; Note, ais NLRB Remedie L.Ed.2d 256 of. appellate Attorney’s Refusal-to-Bargain courts. well as trial as Fees in Cas s— phrased Usually appraisal es, in terms this is Duke 1975 352. L.J. probability likelihood of or substantial Citing recalci- 48. instances of manufacturer however, Sometimes, after trial. success remedy give and with- trance to by pro justice "furthered interest charge, H.Rep. No.93-1191, supra note out merits, viding both a determination on 16, at the House Committee on Inter- appeal, if and to and the trial court on provided Foreign that and Commerce state ripe, matter not the extent that noti- with Administrator’s technically only withstanding mat that pro- fication-and-remedy order constituted prelimi request for a ter submitted is act, a manufacturer so that “when hibited nary injunction. Youngstown Sheet & Secretary’s determina- decides to contest 584-85, Sawyer, Tube v.Co. comply, he does of a defect or tion (1952). 1153 72 96 L.Ed. facing pro- risk of an enforcement so Co., Youngstown Tube Su & Sheet ceeding brought by in- and Government great preme consti issues of Court decided penalty curring a civil for violations of sec- power implied presidential tutional moment-— by Act, the 1966 as amended mills— to order seizure of the nation’s .steel bill,” id. at 18. though proceeded no further n case even hearings that in the House indicate The injunction stage. preliminary than the provision as an al- was viewed securing impor- Congress great stress on the to criminal sanctions for laid ternative compliance Hearings give “timely remedy,” the driv- before tance of a with the Act. possible Foreign ing public quickest notice on Interstate and House Committee remedy Commerce, safety-related defects, consistent on Commerce Subcommittee H.Rep. No.93-11, process. Finance, 5529, and on H.R. H.R. S. See due (1973). Cong., Cong. (1974). 93d 1st 2d Pt. Sess. 93d Sess. teeth, Act, Secretary quest Transportation in its jurisdic- pendent and the the exercise Administrator of NHTSA. The preliminary re- tion this court issues United of America is named as a States ruling straint, pending brought against the District defendant since suit plain- brought Ford under in the enforcement action the Act would Court be timely application in that action name of the United Juris- tiff’s States. pursuant preliminary injunction. diction is invoked for a to 28 U.S.C. 1331 and 1337 §§ Judge respects all PARKER concurs foregoing opihion. opposed have defendants the de- claratory injunctive sought by relief Judge (dissenting). HART, District Plaintiff Ford and have moved to dis- argue miss action. Defendants I. INTRODUCTION remedy stay the exclusive for a of the provided by civil section National arises under This case 155(c)(1) amended, of the Act Safety Motor Act Traffic and Vehicle 1415(e)(1). U.S.C. fur- (the “Act”), § Defendants 15 U.S.C. 80 Stat. argue pre-enforcement ther seq., the Mo- et as amended § permitted review Safety should not tor and Schoolbus Vehicle plaintiff failed has A demonstrate Stat. Amendments probability of success on the merits pur- judge court convened three has been charge to the of a defect suant to 28 U.S.C. 2282-2284 plaintiff and that the has Company’s failed to satis- Motor examine Plaintiff Ford fy any prerequisites of the other complaint have this court which seeks to junctive relief. What defendants’ con- the enforce- invalid and restrain declare ignore, however, tentions is the fact that operation ment, of certain and execution stay Ford not seek to does Act’s civil provisions amend- Act as penalties until the conclusion the en- grounds these ed in 1974 brought against forcement action Ford provisions repugnant to the due are separate the United States in a case Amendment clause of Fifth (Civil 75-1345). Rather, Action No. of the United States. Constitution very pen- Ford seeks to have those nullify not seek the Act but Ford does alty provisions declared unconstitutional. opera- restrain rather seeks For reasons which will follow I would penalty provisions which tion of the grant requested Ford’s relief. argues designed coerce mo- Ford foregoing into tor vehicle manufacturers II. THE STATUTE AS AMENDED of noti- their review High- framework Act as amended orders the National fication way Safety creates a substantial Traffic Administration obstacle challenges (NHTSA), manufacturer Ford who a determi- orders contends which nation of to the NHTSA without the re- Administrator. issued adherence 152, provides 1412, Section quirements process. 15 U.S.C. of due Defendant § if, testing, Secretary inspection that of after and re- T. is William Coleman search, charged Secretary Transportation the of Transportation and is re- any sponsibility determines that motor vehicle con- for administration safety-related Gregory defect, tains a he shall no- B. is Act. Defendant James tify NHTSA, the of to whom manufacturer this determina- the of Administrator Secretary tion and Transportation has include in the all of the of del- upon egated responsibilities the information determi- under the which the his nation was Further the Secre- H. Levi is the based. Defendant Edward Act. tary Attorney shall afford the an of United States. manufacturer the General bring opportunity present data, to to views and Act he is Under the authorized arguments establish no that there is name of the United States suit alleged defect or Company on re- that the defect does Motor Ford any safety. If, penalty after mum related series vehicle affect motor Consequent- $800,000. presentation, set at violations the manufacturer’s ly, Secretary vehicle who receives notice a manufacturer determines Transportation defect, Secretary safety-related he has then that the contains safety-related furnish defect determined that a the manufacturer shall order owners, purchasers and vehicle and exists the manufacturer’s notification to concerning Secretary and to the manufac- the defect orders dealers notification, notify purchasers remedy as This turer owners and the defect. safety-related subject provided Act as vehicle that section contain manufacturer amended, 15 must and that the U.S.C. defect exists § defect; charge description remedy evalua- an defect without will causes; comply order face a tion of the risk it a statement with such or must remedy $800,000 depending up taken to on the measures to be fine defect; that the manu- a statement vehicles involved. number of defective remedy 155(c)(1), without facturer the defect will 15 U.S.C. § Section charge; provides manu- 1415(c)(1), the earliest date which if the remedied; descrip- pur- notify defect will be and a or fails to owners facturer chasers, procedure may tion to be followed hold him liable the court Secretary informing recipient unless manufac- for the civil manufacturer, prevails or dis- action whenever a dealer in an enforcement turer remedy brought 155(a), tributor fails or is unable under section 15 U.S.C. charge. 1415(a), defect This notification the court in the en- without unless § must time, prescribed by a reasonable action restrains the enforce- be furnished within forcement Secretary, order, after in which the notification ment not liable the manufacturer receives notice case any period during manufacturer is safety-re- Secretary’s the effective- However, stayed. must order was lated defect and the notification be ness person restrain enforcement first to each the court sent class mail registered as the if it deter- state law the notification order who under subject demon- whose mines that manufacturer has owner of a vehicle and reasonably to furnish the ascer- the failure name and address is strated through he and that notification was reasonable tainable the manufacturer likely prevail on the of the Act as merits. state records. Section amended, re- further 15 U.S.C. § 155(b) Furthermore, section any quires that, where notifica- case 1415(b), amended, 15 U.S.C. Act § required under tion section exposes addi- containing a of the vehicle up $800,000. tional civil remedy must defect 155(b) enforce- states Section charge.1 defect without relating or- to a notification ment action amended, U.S.C. § der issued under section Section 108 of the Act Secretary may persons the manu- provides that no U.S.C. § provisional notifica- facturer to issue or rem- shall fail to furnish notification purchasers of the edy any owners defect or fail subject noti- This applicable any any vehicles. manufactur- statement pro- fication contain er. Section U.S.C. Secretary that a has determined that, of section violation vides safety-related the and that mandate,- defect exists be sub- the violator will 108’s contesting determi- is manufacturer ject not to exceed to civil a description court; clear in nation the maxi- for each violation with $1000 during Nor apply does however, action under section 155. forcement not does 1. Section apply has set the court period where any or section 154 of the which enforcement by in an aside the order. a court en der has been restrained automatically by stayed Secretary’s not for his de- manufac- stated basis the challenge agency safety-related turer’s to defect the determi- termination Secretary’s exists; nation in of the an enforcement action in fed- the evaluation Indeed, safety reasonably eral court. the manufacturer is motor vehicle risk to defect; any penalties liable measures nec- for the civil he to related unless hazard; prevails essary in the enforcement action or un- unreasonable avoid preliminarily less the court that the manufacturer restrains and a statement charge order, remedy initial may if notification without will the defect pro- provide only Secretary prevails if in the court restraint the ceeding. provisional manufacturer of this demonstrates his fail- Issuance 155(b), 15 ure to U. furnish notification rea- under section was notification likely prevail 1415(b), the man- sonable and that he does relieve S.C. § failing liability Thus, preliminarily on the merits. for ufacturer least, by required proof section the burden the enforce- issue the notification Furthermore, brought government by ment un- action 15 U.S.C. § prove safety-related 155(c)(2), that a ex- section U.S.C. defect der § pur- 1415(c)(2), ists shifts to the poses if the manufacturer fails manufacturer avoiding liability provisional notification re- civil viola- send very 155(b), challenged. tion of Therefore, quired 15 U.S.C. order section 1415(b), may civil he be held liable manufacturer dem- must regardless arguments or not onstrate the of whether he merits of his preponderance prevails in action in the enforcement evidence. The most challenges accepted meaning given which validity this elusive Secretary’s concept “proof jury of the determination which leads the safety-related find defect. that the existence contested probable fact is more its non-exis- than Essentially provides this statute (2d McCormick, tence.” Evidence 794 hearing informal administrative lack- an ing assertion, 1972). majority’s ed. procedural process due safe- therefore, the manufacturer could guards. on administra- Predicated prevail preliminarily in the enforcement tive determination of a penalties stay action and thus the civil defect, pro- at from informal arrived merely demonstrating their ceeding, are the initial notification and proof equipoise govern- with remedy provisional notifi- order and plain proof ment’s runs afoul of penalties order and resultant civil cation meaning accepted proof of burden of either order. The man- for violations specific words of statute. pen- civil ufacturer avoid initial always The law is and been that has by prevailing merits alties proof party equipoise where the is in However, if his enforcement action. proof who the burden has not met has challenge agency prevail. do burden and cannot Nor fails, subject he determination provide words statute that the penalties. It this initial those civil is at manufacturer must mount such evi- stage fails that the first statute government’s dence as meets submis- Fifth Amendment due re- meet procedure sion. I would find this initial quirements since penal- notification and resultant the initial notifica- either operates ties unconstitutional because thereby remedy ex- tion and discourage and deter review very money pend substantial sums by placing a of administrative action agency pursuant to untested determi- high price on access to the courts. challenge nation, predicated merits in an enforcement action Also informal ad- on the hearing of substantial civil risk the sanctions ministrative is the ultimately which, requirement if he loses applies penalties, These initial civil re- concomitant civil suit. gardless disposition of the ultimate safety-re- March 1975 that a challenge. the manufacturer’s The sanc- lated defect existed in the front seat up $800,000 pins tions of for violation of year back and 1969 model provisional Mustangs notification order are Cougars, and of which there triggered by approximately identical to those violation 625,000 are still in use remedy of the initial notification and or- the United States. The staff NHTSA point der. The present manufacturer is at this any did testimony. sworn deprived property of his without due complainants testify. No were called to process for granted a second time. The manu- right Ford was not or the up facturer opportunity faces a civil to cross-examine $800,000 failing comply with this witnesses who testified Ford. provisional notification order which is agency’s And under the rules Ford did proceeding based on a which did not ade- power subpoena not have the adverse quately permit parties him to persons answer and coun- testify or who would charges agency, by ter made short, agency proceed- behalf. applied ing approval, without and August 12, was informal. On imposed which is whether or not the man- by NHTSA notified Ford letter that the ultimately prevails agency ufacturer mer- had determined the existence of summary its. Such a action born defect and ordered Ford proceeding informal and untouched to send the notice of the NHTSA deter- light present review cannot sur- mination to the owners required process vive tests question replace the due automobiles and to Amendment, pins charge clause of the Fifth I and so seat free of to the own- would hold it compli- ers. unconstitutional. Ford estimates the cost of million, ance with this order at and $19

III. THE sending AGENCY the cost of PROCEEDING noti- AND $500,000. PROVISIONAL fication at NOTIFICATION agency hearing itself troubles me 152(a) (2) greatly Section the Act proceed- since it was an informal amended, 1412(a)(2), pro- 15 U.S.C. which did not accord the manufac- “Secretary vides that procedural shall afford turer the basic incidents of opportunity process such manufacturer yet due subsequently and ex- present data, views, arguments posed to substantial establish that there is no or fail- agency defect as a result of the comply alleged ure to or that defect proceed- derived safety.” ing. does not affect motor vehicle aspects Several fundamental 152(b), 1412(b), procedural Section process lacking U.S.C. § due were provides “[i]f, presenta- agency hearing, after such such as “the , tions . manufacturer . . to confront and cross-examine witness- Secretary McKeithen, determines such vehicle es.” Jenkins v. 395 U.S. appli- . does not with an 89 S.Ct. 23 L.Ed.2d safety (1969); cable Federal motor vehicle stand- Willner v. Committee on ard, or contains a Fitness, defect which relates Character 373 U.S. safety, Secretary motor vehicle shall 10 L.Ed.2d (1) (procedural order the (1963) to furnish often due respecting requires such vehicle confrontation and cross-exami- owners, purchasers, deprives nation of those whose word remedy (2) person livelihood); dealers of his Greene comply McElroy, 474, 496-97, such defect April 22, .”. On 1975 the Plain- re- 3 L.Ed.2d 1377 tiff, Company, Ford quirements Motor was afforded of cross-examination opportunity present apply its views ad- confrontation in cases where response regulatory to NHTSA’s initial determina- ministrative and actions

495 right agency process to scrutiny). elements at the level was also is So under Indeed, Re- no accident. port the Conference present to the fair “essential evidence hearing on the bill which became required Due Process rejected pro- perforce in- amendments the Senate’s And this Clause.” posal required “right present testimo- which would have oral clude the ny Secretary Transportation power provide of and from other witnesses compel witnesses.” manufacturer with “a statement of those attendance findings McKeithen, supra, at his reasons and basis for the Jenkins v. a granted defect” and would have As the Jenkins 1853. say stated, the manufacturer a limited that the do not mean to “We right H.R.Rep. impose reasonable cross-examination. Commission 93-1452, Cong., No. 93d 2d Sess. on number witnesses restrictions Cong. testimony; (1974), Admin. & substance of U.S.Code their person’s to News 6084. we hold that a present left to the not be his ease should troubling aspect The of this adminis- of the Commis- unfettered discretion that, procedure trative is Admin- particularly true in Id. This is sion.” determination, istrator’s derived from consequence of at bar since the the case hearing, an informal the manufacturer exposure agency’s exposed penalties up first to civil penalties for non- civil to substantial $800,000 comply for failure to compliance or to a sub- with the order, second, the initial notification expenditure of the manufactur- stantial penalties up $800,000 to civil complies funds if it er’s own comply failure to with an send Supreme remarks order. The provisional notification. Now it is States, Morgan v. United Court may prevail true that the manufacturer 1, 14-15, 82 L.Ed. 58 S.Ct. stage preliminary injunction at the appropri- particularly (1938), avoid the civil initial ate this context: period during which the or- notification of ad expansion this field The vast stayed. And, course, der if the response regulation ministrative ultimately prevails manufacturer pressure is made needs the possible of social action, enforcement he will avoid these system adher our under 3 However, penalties.2 civil even if the principles basic ence to the ultimately prevails on the legislature appropriately deter shall action, merits in the may he enforcement of administrative mine the standards liable for civil still be pro in administrative and that action ceedings $800,000 up to quasi-judicial character aof portion with the liberty property the citizen provision of the statute. This cannot rudimentary protected shall be imposes penalties solely stand for it play. These de requirements of fair on the basis of an informal administra- hearing,” open es “a fair and mand lacking process proceeding tive protections, totally due validity legal sential alike untested regulation the administrative Essentially forum. exposed public confidence maintenance property deprivation of to a im of this and soundness in the value determina- based on administrative process.2 governmental portant rights were not tion where due granted opportunity history legislative amend- and without an de- of due review the the absence indicates that ments procedure since I be- 3. I do not endorse this R. R. United & Ohio also Baltimore See States, erects unconstitutional barriers lieve it speak I and will access to the federal courts 80 L.Ed. 1209 opinion. part to it IY. of this deprivation prior sions.” Id. at S.Ct. at termination injury, court went on to state that:

property. if to add insult As of provisional section notification the principle is constitu- “This no new of penalties applies civil statute the right prior The tional law. to a hear- regardless out- comply ing long recognized by has been this despite action, come of the enforcement under the and Court Fourteenth Fifth might manufacturer the fact Although Court Amendments. prevail. it is I do think well process has held due tolerates validity pass of premature to hearing in the form of a variances provision. The provisional notification “appropriate of nature already government en- filed has upon “depending case” . . . and there in this court action forcement importance of interests in- government is no indication of the subse- volved and the nature provisional invoke the ” not seek to it will quent proceedings any] [if requirement of the statute. traditionally insisted has Court form, that, opportunity of its notification section whatever hearing provided Fifth for that must be be- contravenes statute depriva- deprivation takes ef- it works a fore the at issue because Amendment (ci- process 82, of property of due fect.4 Id. at 92 S.Ct. at 1995 without application omitted). is law insofar its based tations proceeding the informal administrative requirement” of Thus the “root due denies earlier and insofar as it discussed given process be is that an “individual right to a opportunity hearing an for a before he agency examination of the merits of the any significant deprived property is determination before civil interest, extraordinary except for situa- imposed manu- thus before governmental tions valid some where deprived property. is facturer his justifies postpon- is terest at stake that concept Supreme Court stated this ing hearing until after the event.” succinctly Shevin, U.S. in 407 Fuentes unlikely present Id. It is that the set of 1983, L.Ed.2d 32 poses extraordinary facts an de- (1972): compliance Depart- mand for since the hearing right is to notice and a If Transportation ment of has been aware then, purpose, it to serve its full problems pins with seat back granted must be it clear are, course, 1969. There since differ- deprivation still be can time when the ences the facts at bar and case prevented. impact Fuentes. But of that deci- replev- prejudgment sion is unmistakable. The Court has dealt with Fuentes rejected prejudgment deprivations provisions statutes. in two state procedural property precisely due and that is what Ford The issue was whether Company required opportunity for Motor as a faces process manufacturer yet adjudged hearing in this suit. No has state authorized before the posses- agents property NHTSA’s in the to seize application upon that a defect exists person one sion of Cougars. Mustangs both The court invalidated of another. Notwithstanding this “constitu- absence and stated statutes gloss, aspect is liable sub- is a basic be heard tional challenging duty government stantial follow failing decisionmaking this it with untested process when fair posses- does not deprive person conclusion. Such effect his acts to point Administra- Opp Mills, be held some before the v. Administra- Inc. Cotton See final). L. tor, tive Order becomes 61 S.Ct. hearing requisite (the Ed. 624 concepts process show that it is untrue. important While comport due documentary it in line case expressed in Fuentes. Nor evidence, important is even more Gold- described the due the evidence Kelly, where timony consists the tes- berg memory of individuals whose The issue L.Ed.2d 287 might faulty might who, fact, be or state Goldberg was whether perjurers persons payments motivated public assistance terminated vindictiveness, malice, intolerance, recipient afford- particular without to a jealousy. prejudice or We have for- eviden- opportunity for an him the protections malized these in hearing the re- tiary prior of his to termination quirements procedural confrontation and recipient denied benefits cross-examination. . This Four- process in of the violation due protect Court has been zealous to held The court Amendment. teenth rights spo- adequate these erosion. It has process requires hear- an “due ken out not in criminal cases ing bene- of welfare termination before types in of cases but also all fits, is a later there the fact that regulatory where administrative and proceeding not constitutionally does fair scrutiny. actions were under [Cita- 90 S.Ct. Id. at the result.” alter tations respect omitted.] to the civil 1017. With resulting from failure provisional Application of this statute’s requirements provisional notification provision the resultant notification statute, a “later even there is not of the constitutionally penalty deprives manufacturer civil pass proceeding” to fair challenge process due of his validity comply with on the merits of failure agency determination be- demands. from it. fore he suffers sanctions summarily declares the Act as amended Family v. Finance The case Sniadach requirements provisional notification rp., 337, 89 Co 395 U.S. S.Ct. violations, all imposes sanctions (1969), speaks also to the 23 L.Ed.2d 349 granting the manufacturer without summary procedures concern for process within which context due deprivation property. In result regard for present case, without his struck down a state the Court Sniadach ulti- manufacturer or not the whether garnishment prejudgment procedure for mately and with- prevails the merits on Wages wages. a cred frozen on were agency out examination request frozen until and remained itor's of the Su- words determination. wage pre earner trial was had and McElroy, 360 preme v. in Greene Court In the interim on the vailed wage merits. S.Ct. enjoy deprived of his earner was strongly bear L.Ed.2d 1377 any op wages ment of earned without point: this portunity and to tender to be heard principles bar, provi rela- have remained Certain the case at defense. jurisprudence. tively in our immutable the statute notification section of sional governmen- similarly summary proce that where of these is provides One for a seriously injures individ- an penal tal action no to avoid dure with chance ual, of the ac- ultimately and the reasonableness even if the manufacturer ties findings, depends evi- on fact prevails merits in the enforce on the prove Government’s dence used places This ment. gar individu- position must be disclosed than the case more untoward Application opportunity an nishee al that he has Sniadach.5 so appropriate (1969). Summary procedures may But 23 L.Ed.2d 349 process requirements investigation which has such as meet due an years extraordinary dragged before See Sniadach on for six situations. adjective “extraordinary” issued, Family Corp., 395 U.S. was Finance guarantees expressed contravening process due tutional as due lim- Fuentes and Sniadach has been clause Fifth Amendment. recently individuals. ited to Most pre- Supreme Court extended its ban IV. THE PENALTY PROVISIONS garnishment corporate judgment FOR VIOLATION OF THE ORDER Georgia, Finishing, Inc. in North funds TO NOTIFY AND REMEDY Inc., Di-Chem,, 152(b) section Under of the Act as In this 42 L.Ed.2d 751 amended, 1412(b), 15 U.S.C. corporation of a case the bank account may, NHTSA after Administrator hear- and, bond, put impounded absent a ing presentation the manufacturer’s during pendency beyond totally use proceeding determining the informal alleged litigation involving indebt- safety-related defect, the existence of a goods and delivered. edness for sold notify order the manufacturer own- gar- accomplished by a writ This was ers, purchasers dealers of the deter- by a clerk without nishment issued remedy mination and to defect with- early hear- opportunity for an notice or charge. out If the fails judi- participation and without notify purchasers, so owners or he is lia- The of dissolv- method cial officer. penalties up $800,000 ble for civil garnishment defend- for the was 155(c)(1) under section of the as Act protect plaintiff bond ant to file a amended, 1415(c)(1). The U.S.C. § creditor, way defendant in this only statutory prescribed method challenge garnishment. could debtor avoiding penalties such civil lies in a Supreme down Court struck The challenge agency to the determination stating: statutory procedure state in an enforce- defect deprived of may It be consumers govern- proceeding brought by ment likely appliances more household will ment after the refuses to manufacturer corporations irreparably than suffer remedy comply with the notification and accounts, deprived of bank but pursuant 152(b), order issued to section injury in irreparable probability of 1412(b). 15 U.S.C. Constitutional dif- great sufficiently so latter case is penalties ficulties arise the civil because necessary procedures are that some stayed during pendency of are not against guard error. of initial the risk litigation and are the enforcement than we no more inclined now We are only imposed fact if the manufacturer distinguish past in the have been Preliminarily the suit. court loses among property different kinds may no- restrain the enforcement of the applying the Due Process Clause. remedy in which tification at 723. 95 S.Ct. U.S. not liable for case the is manufacturer during any period order was portion of which The prelimi- may only stayed. But insofar amended cannot stand the Act as narily if the manufac- summarily assigns the order restrain as it that his comply demonstrates admin- turer on an for failure based reasonable was the notification furnish at with- determination arrived istrative prevail safeguards likely on the he is and that procedural due out statutory locks This framework merits. prior to manufacturer, for the dilemma agency difficult testing de- of the agency was determination regard termination, if he feels and without obey capitulate may He disposition There- correct. case. not

ultimate incurring very order, substan- thus provision find the unconsti- fore I would process. See procedural investigations hardly due which bounds of For warranted. Hearings one, ongoing Com- are Before the Senate Commerce there as this are not so Cong., objective accomplishing 1st Sess. mittee on S. 93d same methods (1973). staying protecting driving public with- remedy expenditures ther, notify tial in an amount rea- good sonably may proportional defect he to the which faith be- loss or incon- may safety-related.6 likely Or lieve not he venience be suffered beneficiary policy. However, choose with Mr. Justice he faces an enforcement suit Cardozo indicated case that: essentially de novo a trial which is price may heavy of error sobe government. proof on the burden to erect an unfair barrier Corp., Motors v. General United States litigant endeavor of an honest to ob- 1975). (D.C.Cir., 518 F.2d at 426 judgment tain the of a court. 155(a)(1) of the Act Under section event, the Constitution intervenes and 1415(a)(1), any amended, ac- 15 U.S.C. § keeps open. the courtroom brought by manufacturer chal- at 486. lenging consolidated the order would be leading point case in this Ex Concur- action. the enforcement parte Young, course, novo, of rent trial de with the L.Ed. Two Minnesota provisions mentioned the civil passed statutes were 1907 which di- impo- earlier, risks and the rected in that state to railroads establish challenges penalties if he of these sition transportation pas- certain rates for agency in a sengers and commodities. Violations This forum and unsuccessful. passenger felony the punishable by rate statute was apprehension in necessity create fine of and 5 $5000 the mind of the manufacturer years imprisonment while violation of courts, he deed chills his access the commodities rates was a misdemean- losing knows that or. of a number Stockholders $800,000.7 a bar suit Such companies railroad filed suit in federal by not be tolerated federal courts will against companies seeking court their Fifth of Due the the Process Clause enjoin companies pub- the from railroad inhibiting Amendment, provi- and lishing adopting or set in rates forth by down the Su- sions struck have been enjoin two Acts other and to defend- preme many times. Court including Attorney ants state General guiding principle Young in this of attempting area enforce from expressed any in by instituting courts is access to federal statutes action McCray, against companies & Cas. Ins. Co. v. or their railroad Life alleged L.Ed. 987 S.Ct. officers. The also that the suits upheld unjust, There a state statute the court new rates were unreasonable and surcharge imposing confiscatory deprived on insurance com- of them their and panies pay property when which failed claims without due law. speci- Attorney demand the time was made within The lower court restrained policies. Young enforcing pen- fied in The court noted from General penalized injunction alties, the insurer was and he violated taking against controversy validity enforcing by one of pe- Consequently, companies. the claim into court but was rather the railroad Young refusing payment contempt adjudged in nalized make in and, by fur- with its contract court court. The officers accordance lower 6. A defect is one which creates a manufacturer states “when decides to Secretary’s accidents or an un- unreasonable risk of contest aof injury persons comply, death reasonable risk of or defect or failure he does at so proceeding facing occur. risk of event accidents U.S.C. an enforcement Motors, brought by incurring, v. General See United States the Government and (D.C.Cir. 1975). penalty.” H.R.Rep.No.93-1191, 518 F.2d at 93d Cong., (1974), 2d Sess. 18 1974 U.S.Oode Congress Cong. exactly 7. This is what intended. & Admin.News 6052. Report The House on the 1974 amendments companies and of the railroad directors the result is the same as if law prohibited to file suit to have company

had declined the stat- terms from illegal seeking because of the utes declared se- construction of laws verity penalties prescribed deeply rights. for vi- which affect its consequences olations and “ruinous 145-7, Id. at 28 S.Ct. at 448-49. inevitably from which would result fail- rejected suggestion The court part obey ure on their the said laws proper testing method of the acts’ by orders,- and result no action —a validity was disobedience: themselves, their stockholders or direc- tors, possibly prevent.” Id. at could proceedings To await 445. The S.Ct. at were al- company court, grounded up- in a state leged “so drastic that no be owner or then, act, on a disobedience of the operator property railway could necessary, if obtain review in this jurisdiction voke the court to test highest writ of error thereof, except at the risk of court, place company state would property, confiscation of its and the im- peril large agents in great loss its long prisonment for terms ... imprisonment risks of fines and agents employees.” officers, its Id. finally if it should be determined that Thus at 445. the com- the act was valid. This risk the com- pany deprived was liable be of its ought pany required not to be take. property ju- it could seek a because Over eleven thousand millions dol- hearing unconstitutionality dicial lars, estimated, are invested mistaken, risk, if the statutes at the many property, railroad owned being subjected penal- to substantial people thousands they resulting prop- ties confiscation protection equal are entitled to erty, the statutes while obedience to courts, from the laws and might long run also result with the owners of other all kinds process. same confiscation a slower property, more, no less. The —no Id. preme The Su- having jurisdiction, courts Federal held Court that the statutes were should, times, state, open to at all pen- invalid on their face because of the others, pur- well them as as to for the alties. Id. pose protecting property their legal rights. their company, in to test acts, validity find must disobey some 209 at S.Ct. agent employé or to them message parte Young The of Ex is clear. necessary The effect risk stated. employed by legisla- Penalties cannot be legislation of such result be judicial tures to inhibit review of preclude to a to the resort courts validity of statutes or de- administrative testing purpose for principle terminations. fol- This was validity. its ployé The officers and em- Operating lowed in Oklahoma Co. expected not be to diso- could Love, L. 252 U.S. bey any provisions of the of the acts (1920). corporation Ed. 596 There a or at the orders risk such fines and corporation sued the state commission being penalties upon imposed them, in seeking enjoin to the commission from case the court should decide that the enforcing limiting its order certain may It there- law was valid. ... rates. state statute there was Under a penalties fore be said that when opportunity no a for review of by for are fines so enor- disobedience legislative by rate fixed commission imprisonment so mous and severe contempt except by way of to defense company to intimidate the and its of- proceedings. disobeying penalty The resorting ficers from to courts to up to a order a fine of commission legislation, day. per Relying parte Ex test $500 penalty- legality Young, orders of court held the uncertain rather protection to ask unconstitutional: than for the scheme law. only judicial order review of an [T]he fixing possible under the laws of rates Wadley Ry. Georgia, Southern arising proceed- the state was 214, 218, S.Ct. L.Ed. 405 ings contempt. punish boldly violating party By an order a Wadley, disputing railroad, or may against whom it was directed Commission, der of the chose Railroad complaint; provoke and if the com- order, plac not to thus plaint in a citation to show results init violation of a statute re which why punished he be cause should quired compliance every may contempt, justify before he by subject persons the Commission showing Commission public utility the subject law. were Violators unjust invalid, violated was Discussing to a fine of $5000. satisfy If he unreasonable. fails involving penalties cases for violations in this it erred Commission that the respect, legislative commissions, orders opened review including Young,8 parte Ex the court by way appeal on the whole him said: Supreme But the Court. record proceed upon These cases do not may possibly im- penalties, be which power idea that there is want of pursues posed, if this course with- he enough prescribe heavy penalties might success, de- well out are such compel or- obedience administrative confi- most ter even the boldest ders, they upon but all based are obey for refusal dent. proposition fundamental under day’s may $500; each an order be the Constitution cannot be serv- the refusal after continuance of they operate collected if to deter an be it declared ‘shall ice of the order testing party va- interested lidity separate offense.’ legislative rates or orders imposed apparently for each legislative in Their le- their nature.. order. of violation stance gality apparent is not on the face of judical Obviously review showing orders, depends on but not sat- such deterrents does beset statute, there- of extrinsic facts. A isfy requirements, the constitutional fore, imposes heavy penalties adequate, if and there- even otherwise for violation commands an unas- relating provisions of the acts fore is, nature, quality certained the enforcement the rates post ex somewhat to an akin facto unconstitutional without law, punishes since act done regard question of the sufficien- legality when command has cy of those rates. authoritatively not been determined. 252 U.S. at at 340. Liability penalty for violation controlling point cases out These orders, validity has such their before law of administrative rule of for review put party determined, been would orders federal courts: position in a he himself affected where right judicial review must, risk, pass upon to a [T]he at his own safely substantial, adequate, and question. obey be He must either what right merely available; order, may finally that but a be held be void illusory party be may ultimately if the disobey nominal and be what only appeal affected the courts can held to be lawful order. If a statute having penalties pay constitutionally impose heavy at risk of could yield great it is better to so of commands of violation 961, Co., 340, 350-51, 212 L.Ed. See Willcox v. Consolidated Gas 57 U.S. 33 S.Ct. 19, 53-4, (1913) L.Ed. 382 results. U.S. 29 S.Ct. 53 for similar 1507 Ry. Tucker, 230 and Missouri Pac. v. 502 validity legality, testing of that Act. The disputable uncertain such statutorily mandated fate of the defend inevitably would be the result during orders, yield conferences Coast void ant

carrier would Pacific litigation pendency of their was cumu- the enormous than risk rather very confiscatory than punishment that real sense less burdensome lative or might by they in the should that faced imposed if be ei at bar. The conferences could to be valid. ease be declared thereafter accept Commission’s dual-rate ther at 218. 35 S.Ct. 235 U.S. forego any contracts order or dual-rate Regis Paper v. States St. United they pursued judicial their reme while (2d 1960), Co., Cir. 285 F.2d dy. appellate quickly dis aff’d, L.Ed. by noting remedy” missed this “riskless daily (1961), upheld 2d 240 the court apart acceptance from the fact that penalty provision in Federal Trade might moot of the Commission’s order by triggered Commission Act which was remedy “comports case, neither corporation’s re to submit a failure right con defendant’s constitutional penal quested special report. The annual by except impaired tract where valid by ty provision saved, however, or administrative order.” 451 statute Judg availability Declaratory I submit that F.2d at 718. would ment Proce Act and the Administrative rights Fifth Amendment due dure Act the court held would be which important every issue here are bit as corporation pre-en available to the this of contract and constitutional period. In the case at it bar forcement consideration this demand same appear pre-enforcement does not re may court. Penalties not be assessed view is available.9 Cir Thus Second very under a statute whose apposite: cuit’s remarks are challenged against party whom judicial If in fact limited review were sought. pattern all sanctions are in. proceedings to enforcement instituted emerges same from the of these cases Commission, daily forfei- examine in this loom whose fabric we ture were collected for pattern of a statuto case. That ry consists might comply, procedure meet not designed to deter framework proc- the established standards of due legislative or administrative review ess. conse It is of little determinations. Love, Operating v. Oklahoma Co. Cf. quence in this case the sanctions L. penalties. civil rather than criminal Ed. F.2d at 615. significant that the it of moment Nor is Finally, in United States Pacific penalties imposed statute are European Conference, F.2d Coast penal daily on a basis. The cumulative brought by (9th 1971), Cir. a suit amended are substan in this Act as ties government statutory pen to assess they tial; deprive manufacturers shipping three conferences alties purpose property; to inhib and their using shipping unlawful dual-rate is the common review. This citing contracts, appeals, court of through of these runs all thread which Operating Love, Missou Oklahoma Co. present case binds our cases Ry. Nebraska and Ex ri v.Co. Pacific price precedents. to those The “fair specifically parte Young, supra, and argu high,10 is too and the adventure” Ry. relying Wadley Co. v. Southern ment automobile manufacturers Georgia, supra, apply refused to able afford statutory non-compliance penalty chilling inevitably does not overcome the during Shipping Act of 1961 with provisions judically in time were effect which the the defendants Corp. McCray, Volpe, v. & Ins. Co. General Motors See Cas. 321 F. See Life aff'd, (D.Del.1970), Supp. 1112, L.Ed. (3d 1972). F.2d 922 Cir. legacy parte Young is of Ex still. erection of inhibit directed ing legisla j to udicial review barriers proper action in

tive or administrative suggest I cases. do not mean federal in motor ve defects expeditiously recti should

hicles

fied; that the burden nor do I intimate remedy on the manu should not fall expedition However, must be

facturer. through

accomplished constitutional procedural comport with

methods dealing process concepts of due accompa property. The scheme remedy

nying notification and not meet does

in the Act amended requirements Fifth Amendment

such unconstitutional.

and I therefore find it

V. CONCLUSION accompa-

Finding penalty schemes

nying notification order remedy provi-

and notification repugnant Act as amended sions of the Fifth clause

to Amendment, due provi- I declare would 155(c)(1) section in section

sions

155(c)(2) in concert sec- as read unconstitutional 109 and 152

tions operation and their restrain and I would

enforcement. Mary HEBERT

Edna Leboeuf CANDIES, Horace

OTTO INC. Boats, Inc. Savoie

Civ. A. No. 73-1834. Court,

United States District

E. D. Louisiana.

Aug. 20, 1975. notes ness—in day filed mitted review. See complaint 16, accompanying supra. find Ford its In line filed 19 and text —we prejudice Circuit, if its mo- Ford will suffer no with the see General Motors Third injunction preliminary Corp. F.Supp. Volpe, decided v. 1121 tion a 321 modified, (D.Del.1970), F.2d in the Government’s action. 457 aff’d (3d 1972), hold that 923-24 Cir. we 155(a)(1) contemplates 30. consolida- Section jurisdiction specified district there is in the district of the first enforcement tion courts, § 5 § under 28 U.S.C. U.S.C. action, providing be “in ac- that consolidation 2201-02, 701-06, to enter and 28 U.S.C. the court which cordance pre-enforcement a action. tain brought .” the first such action is . . possibili- however, to com it address itself to the 29. fails But ty does not If the Government pre-enforcement rea a action a a manufac- mence its enforcement action within possibility learning a manufac turer. While we entertain the sonable time after pre-enforcement challenge action, notifica need for a we think turer’s intention to contrary spirit tion-and-remedy order, court it the Act encour- the district age forum-shopping properly ex the manufacturer. could the manufacturer’s action agree the Third General manufactur Circuit its hear the We ercise discretion to Volpe, supra, 923-24, injunction. preliminary Motors 457 at See v. F.2d er’s motion for F.Supp. pre-enforcement supra, Volpe, be action should General Motors aff’d, transferred to the district the enforcement 457 F.2d Gov pre action, promptly if full that action has been ernment in this case concedes if en stituted. review is available enforcement promptly filed. Tr. is not forcement action 1415(c)(1). It should be noted this 31. Id. % Supreme in United States As Court 47. v. review, provision, rather than encumber Co., S. Morton Salt 338 U.S. makes it for a manufacturer obtain easier responded (1950), Ct. 94 L.Ed. requirement by eliminating stay the usual a charge de the Government harm, showing irreparable of a may seeking lay accumu in order to enforcement case, type difficulty in this pre penalties,” “we are not late “ruinous effect is little or where there no powerless pared say that courts would be See Gen current business. manufacturer’s poli pursues a if the Government supra, Corp. Volpe, F. eral Motors avoiding cy accumulating while Supp. at 1129. bring by refusing action test pursuing Paper Regis in over-elab- the matter Co. v Without recover them.” See St. jurisdic- detail, have would States, orate 82 S. United appropriate (1961). issue an order in an case to also See W. 7 L.Ed.2d Ct. though period Byse, even for this Law: of restraint Administrative C. Gellhorn & henceforth, issue restraint will rules that no n. Cases Comments “ 'grace period’ in if he shows at that time that the case claims it wants [injunc- equipoise try preliminary is in to material item the for the which to penal- pre- Government establish free from the threat tion] ties,”33 ponderance permits that. The evidence the ultimate the statute meaning- finding. have had manufacturer will agency’s day court; order will ful statutory procedure put does coercive effect have obtained coming the manufacturer a burden

Case Details

Case Name: Ford Motor Company v. Coleman

Court Name: District Court, District of Columbia

Date Published: Sep 22, 1975

Citation: 402 F. Supp. 475

Docket Number: Civ. A. 75-1340

Court Abbreviation: D.D.C.