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November 3, 1948

McCABE et al.

The opinion of the court was delivered by: MORRIS

This is an action in which the plaintiff seeks a declaratory judgment and injunctive relief against the defendant members of the Board of Governors of the Federal Reserve System with respect to a proceeding instituted by the Board under the provision of Section 11 of the Clayton Act, 15 U.S.C.A. § 21, *fn1" in which the plaintiff is charged with violation of Section 7 of the Clayton Act, 15 U.S.C.A. § 18. *fn2" The complaint in the instant action asserts that the complaint in the administrative proceedings fails to charge a violation of law with sufficient particularity to enable the plaintiff, respondent therein, to make proper answer and defense thereto; that the plaintiff has sought a more particular statement with respect to the alleged violation, which has been denied by the Board; and that the complaint in the administrative proceedings does not set forth 'the legal authority and jurisdiction under which the hearing is to be held.' The plaintiff insists that in this situation the declaratory judgment and injunctive relief sought should be granted to prevent irreparable injury, and that such relief should be granted on the further ground that the complaint in the administrative proceedings is insufficient to meet the requirements of the Administrative Procedure Act, approved June 11, 1946, 5 U.S.C.A. § 1001 et seq

Upon motion a rule was issued to the defendants to show cause why a temporary restraining order and preliminary injunction should not be granted. Before the return of this rule, the defendants filed a motion to dismiss the complaint upon the ground that this Court is without jurisdiction to interfere at an interlocutory stage in the administrative hearing authorized by the Clayton Act. A hearing was had upon the rule to show cause and the motion to dismiss on October 20, 1948. By leave of Court brief and supplementary brief were filed by the plaintiff.

 At the threshold it must be pointed out that the statute which authorizes the administrative proceedings here in question specifically provides for complete judicial review of any order directing the plaintiff to cease and desist from any violation of the Act, or to divest itself of any stock held in violation thereof. *fn3" It is well established that ordinarily relief by judicial action may not be had until an administrative remedy has been exhausted, and certainly where there is full and adequate statutory review of administrative action, recourse to the District Court for equitable relief to prevent such administrative action cannot be had. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638; Macauley v. Waterman Steamship Corp., 327 U.S. 540, 66 S. Ct. 712, 90 L. Ed. 839; and Federal Power Commission v. Arkansas Power & Light Co., 330 U.S. 802, 67 S. Ct. 963, 91 L. Ed. 1261. It is here insisted by the plaintiff that the statutory judicial review is not adequate, and that the plaintiff would suffer irreparable injury if resort to a judicial remedy is delayed until after the administrative proceedings. The complaint does not show such irreparable injury as would justify an exception to the well recognized rules just stated. Several cases are cited which sanction the exercise of equitable intervention in situations which are not here shown to exist. The Supreme Court stated in the case of Myers v. Bethlehem Shipbuilding Corporation, supra, 303 page 51, 58 S. page 464, 82 L. Ed. 638: 'Obviously, the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage. Lawsuits also often prove to have been groundless; but no way has been discovered of relieving a defendant from the necessity of a trial to establish the fact.

 Moreover, the Supreme Court has said, with particular respect to administrative proceedings where statutory judicial review is provided, 'Whatever may be the scope allowed generally for equity to intervene upon the ground of inadequacy of legal remedies, where no explicit congressional command exists for following a prescribed procedure, the problem when such a mandate is present is entirely different from one tendered in its absence. The very fact that Congress has made the direction must be cast into the scales as against the factors which, without that fact, would or might be of sufficient weight to turn the balance in favor of allowing utilization of equity's resources.' Aircraft & Diesel Equipment Corp. v. Hirsch et al., 331 U.S. 752, at page 774, 67 S. Ct. 1493, 1504, 91 L. Ed. 1796.

 It is urged that the lack of subpoena power in the Federal Reserve Board would work to the prejudice of the plaintiff in securing and offering evidence needed to meet the allegations of the complaint. Should the plaintiff, during the course of the administrative proceedings, be deprived of a fair and adequate hearing because of the lack of such subpoena power, I have not the slightest doubt that the Court of Appeals, either in proceedings to enforce the Board's order, or to review the same, would be competent to require the evidence which was lacking, or give relief to the plaintiff because of the failure to supply the same. *fn3"

 The plaintiff insists that the Administrative Procedure Act qualifies the rules stated in the authorities here cited, as to which said Act was not operative. In so far as it affects the application of the rules to the situation here involved, I am in no doubt that the Administrative Procedure Act left judicial review, when statutory judicial review is provided, where it found it. Unquestionably this Act imposed certain procedures upon administrative action, and equally without question the Act requires a reversal of administrative action where its procedures have not been in accordance with the Act, and prejudice to the aggrieved party has resulted. There can be no doubt that, if the complaint in the administrative proceedings here is as inadequate as the plaintiff insists and, by reason thereof, the rights of the plaintiff are prejudiced by the Board's action, relief can be had when the judicial power comes into play upon the enforcement or review of such action. The requirements of the Administrative Procedure Act are no less important and effective because they are to be enforced by the reviewing, rather than by a court of equity before final action in the administrative proceedings. The latter would require consideration almost in vacuo.

 For the reasons stated, I must conclude that this Court does not have the power to grant the relief sought by the plaintiff, and the complaint must, therefore, be dismissed.

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