of fact are still in dispute. In addition, the Court, sitting as a court of equity, must hear evidence before acting on a prayer for injunctive relief. This is particularly true in light of the statutory language noted above, which favors prior consultation, and of plaintiff's decision simultaneously to seek monetary and injunctive relief.
The parties also disagree with regard to the scope of the Court's review at trial. Defendant asserts that it is entitled to a trial de novo at which the Government must justify its proposed sanctions by a preponderance of the evidence. Plaintiff, on the other hand, contends that judicial review of the propriety of those sanctions is barred altogether because the assessment of penalties under the National Traffic and Motor Vehicle Safety Act is "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Alternatively, plaintiff argues that the Secretary's decision may only be overturned if it is found to have been "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Plaintiff fails to attach sufficient significance to the fact that this case involves not a company's attempt to gain judicial review of agency action but rather the Government's attempt to obtain judicial enforcement of such action. In such a situation, the Court will not lightly assume that Congress intended it blindly to enforce an executive decision, cf. United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974), and in fact the legislative history indicates that the court as well as the agency is expected to determine the appropriateness of sanctions under the National Traffic and Motor Vehicle Safety Act. See S.Rep. No. 1301, 89th Cong., 2d Sess. 11 (1966). In any case, the enforcement standards set forth at 15 U.S.C. § 1398 (b) clearly take that statute out of the narrow exemption from judicial review carved out for wholly discretionary agency decisions. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); Wong Wing Hang v. Immigration and Naturalization Service, 360 F.2d 715, 718-719 (2d Cir. 1966).
Some judicial review prior to enforcement is therefore required. Its scope will depend upon the procedures followed by the agency. Where, as here, a formal hearing on an administrative record is neither required nor provided, the Court is usually limited to the "arbitrary or capricious" standard suggested by the plaintiff. However, a trial de novo is appropriate in those unusual circumstances "when the action is adjudicatory in nature and the agency factfinding procedures are inadequate. . . ." Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 415, 91 S. Ct. at 823. An agency's procedures are not inadequate simply because no formal hearing is held, Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973), but the Government's decision in the instant case to file suit before permitting the defendant even to present its views in writing or to request reconsideration provided a wholly inadequate basis for administrative factfinding and, in the absence of a subsequent judicial hearing de novo, would violate defendant's right to due process of law. See Jones v. Freeman, 400 F.2d 383 (8th Cir. 1968); Jordan v. American Eagle Fire Ins. Co., 83 U.S.App.D.C. 192, 169 F.2d 281 (1948); New Hampshire Fire Ins. Co. v. Murray, 105 F.2d 212 (7th Cir. 1939); Sierra Club v. Hardin, 325 F. Supp. 99, 113-114 (D.Alaska 1971). See also Administrative Procedure Act, Legislative History, 79th Cong., 2d Sess. 281-282 (1946). This case will therefore be set down for a prompt trial de novo.
The Court adopts this course reluctantly, because it shares the traditional judicial distaste for de novo factfinding concerning matters properly delegated by Congress to the expertise of a regulatory agency. No other course is available in the instant case, however, because the agency has refused to discuss the matter with defendant, let alone conduct even minimally adequate factfinding to insure procedural fairness. Defendant has demanded a hearing and now correctly but belatedly maintains that the agency lacks the authority to conduct hearings without first publishing its procedures. If adequate rulemaking and hearing procedures are eventually established, the courts may be able to limit their review of future agency enforcement decisions to the traditional determination of whether or not such action was arbitrary or capricious. For now, however, the Government must be prepared to demonstrate by a preponderance of the evidence that its proposed sanctions against International Harvester are justified factually and legally.
It is therefore
Ordered that defendant's motions for dismissal, stay, or summary judgment are denied; and it is further
Ordered that plaintiff's motion for summary judgment is denied; and it is further
Ordered that there shall be a final pretrial conference in open court on September 19, 1974, at 4:00 p.m., by which time
(1) All discovery shall be completed;
(2) Written stipulations, if any, shall be filed;