benefit of the Hearing Examiner's Initial Decision dismissing the complaint. Plaintiff further asserts that unless further proceedings are enjoined it will be forced to incur great expense, time and effort in defending against a complaint which has been dismissed and is, therefore, no longer pending before the Commission.
As has been noted, the Court has before it plaintiff's motion for summary judgment and prayer for an injunction, and defendants' motion to dismiss or in the alternative for a summary judgment. Defendants' motion to dismiss is based on the ground that the Court lacks jurisdiction over the subject matter in that the doctrine of exhaustion of administrative remedies applies. With this the Court agrees and thus does not reach the merits of plaintiff's claim.
Under the Clayton Act, as amended, exclusive jurisdiction is vested in a Court of Appeals of the United States to review any cease and desist order which might be made and issued by defendant Commission against plaintiff in the Docket 8069 proceeding. 15 U.S.C. § 21(c) and (d). Preliminary, procedural or intermediate agency action is subject to review upon the review of a cease and desist order of defendant Commission. 5 U.S.C. § 1009(c). Therefore, after exhaustion of the prescribed administrative remedy, plaintiff would have an adequate remedy at law for a judicial determination of the claim it asserts here. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638.
Contrary to the position taken by the plaintiff that the Commission's order vacating the Initial Decision and remanding the matter for further proceedings was a gross and substantial error of the most fundamental character, it is the opinion of the Court that such action by the Commission was at most a procedural irregularity and that this Court does not have jurisdiction to grant the relief prayed for by plaintiff. R. A. Holman & Co. v. Securities and Exchange Commission, 112 U.S.App.D.C. 43, 299 F.2d 127, 129, cert. denied 370 U.S. 911, 82 S. Ct. 1257, 8 L. Ed. 2d 404 (1962); Riss & Co. v. Interstate Commerce Commission, 86 U.S.App.D.C. 79, 80, 179 F.2d 810, 811 (1950); Miles Laboratories v. Federal Trade Commission, 78 U.S.App.D.C. 326, 328, 140 F.2d 683, 685, cert. denied 322 U.S. 752, 64 S. Ct. 1263, 88 L. Ed. 1582 (1944).
Defendants' motion to dismiss for lack of jurisdiction is granted. Counsel for defendants will present appropriate order.