Thе Securities and Exchange Commission appeals from an order of the District Court granting a preliminary injunction 1 against the Commission from further conduct of certain proceedings pending before it relating to the issuance and sale of 175,000 shares of stock of Pearson Corporation as issuer of which appellee R. A. Holman & Co., Inc., was underwriter. The District Cоurt granted the injunction on the claim that one of the members of the Commission was disqualified from acting in an adjudicatory capacity in an administrative proceeding involving appellee because the Commissioner had previously been chief of a division with responsibility for the processing of registration statements, including the registration statement filed by Peаrson Corporation which is the subject of the pending hearing.
The order appealed from enjoined further administrative proceedings in which appellee is respondеnt. In the complaint it was claimed by appellee that two Commissioners were disqualified from conducting adjudicatory proceedings because of prior staff service.
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On the record
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before us only the alleged disqualification of Commissioner Woodside is in issue, Commissioner Cohen having taken no part. The District Court while observing that an injunction would “put a tremendous hardship оn the S.E.C. * * * ” concluded that appellant’s claim of the applicability of Amos Treat & Co. v. Securities and Exchange Commission,
In the District Court apрellee contended first that Commissioner Wood-side’s position of responsibility while a member of the staff was sufficient to disqualify him even though he did not in fact participate in the investigаtion or recommendations affecting appellee; second appellee contended that if disqualification did not result automatically from the fact that Woоdside had a responsibility as a director of the unit,' then the District Court was bound to conduct an r/identiary hearing in which the Commission would be required to demonstrate exactly the nature and еxtent of Wood-side’s involvement in the steps which led to the Commission’s proposed hearing. In the Amos Treat case the Commission did not deny plaintiff’s allegations of the claimed disqualifying factors. In the instant case the affidavits filed on behalf of the Commission affirmatively assert there was no participation by Woodside in processing Holman’s application оr the recommendations by the Staff to the Commission to conduct a hearing. The Commission argues that this case is therefore factually distinguishable from the Amos Treat case. We agrеe.
The basis on which this court acted in the Amos Treat case is summarized in that opinion:
“We are unable to accept the view that a member of an investigative or prosеcuting staff may initiate an investigation, weigh its results, perhaps then recommend the filing of charges, and thereafter become a member of that commission or agency, participate in adjudicatory proceedings, join in commission or agency rulings and ultimately pass upon the possible' amenability of the respondents to the administrative orders of thе commission or agency. So to hold, in our view, would be tantamount to that denial of administrative due process against which both the Congress and the courts have inveighed.”306 F.2d 266 -267.
Accordingly it will be seen that we emphasized that the District Court’s jurisdiction in that case rested solely on due process grounds, so clearly established on the record made there. ' (
We are satisfied that such claims as the appellеe has here presented should be adduced in the first instance at the administrative level and any challenge to the resolution of these issues is subject to judicial review when the administrative record reaches us in due course. In Trans World Airlines v. Civil Aeronautics Board,
We pointed out recently in The Wolf Corporation case
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that Congress, in vesting broad powers in regulatory agencies, was not unaware of possible risks but “except in very unusual and limited circumstances Congress did not contеmplate a grant of jurisdiction to the courts to prevent abuse or misuse of power by
prior
restraint * * *.” to stay the administrative process. This case does not present claims warrаnting judicial intervention before the regulatory agency has completed its processes. See McCulloch v. Sociedad Nacional de Marineros de Honduras,
Congress hаs made no specific provision for considering challenges of disqualification addressed to members of regulatory or administrative agencies acting as such, as it has, for еxample, concerning hearing examiners, Section 7(a) of the Administrative Procedure Act,
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5 U.S.C. § 1006(a), and also United States District Judges, 28 U.S.C. § 144. See 28 U.S.C. § 455. The Third Circuit has held that the National Labor Relаtions Board was required to consider evidence on the issue of disqualification of one of its members. Berkshire Employees Ass’n v. National Labor Relations Board,
Reversed.
Notes
. The proceedings now subject to restraint under the District Court’s preliminary injunction are the same proceedings this court dealt with in R. A. Holman & Co., Inc. v. Securities аnd Exchange Commission, 112 U.S.App.D.C.
43,
. Commissioner Cohen, a former staff member, was shown to have taken no part as a Commissioner except to act on a motion for a continuance.
. The Amos Treat case was heard by a motions division on a motion to stay the order of the District Court which denied a preliminary injunction to stop revocation proceeding. Appeal on the merits was then consolidated with hearing on the motion and the ease was disposed of forthwith.
. Columbia Broadcasting System v. United States,
. Anniston Mfg. Co. v. Davis,
. The Wolf Corporation v. Securities and Exchange Commission, D.C.Cir.,
. Prior to the enactment of the Administrative Procedure Act, the Federal Communications Commission acting as a body held that it could prevent one of its members from sitting even over his objection. In the matter of Segal and Smith, 5 F.C. C. 3 (1937). The Securities and Exchange Commission however has held that it does not have аuthority to pass on a challenge to qualifications of one of its members and that each member must resolve the issue for himself. Otis & Co., 31 S.E.C. 380 (1950); The United Corporation, 32 S.E.C. 633 (1951); cf. Gilligan, Will & Co. v. Securities and Exchange Commission,