plaintiffs the relief they seek in this motion would be to require the Commission to retract the statement. This the Commission does not wish to do. Nor can the court conceive of any reason why it should have to.
The court is persuaded that judicial review of the Commission's policy statement is inappropriate at this time; that the jurisdictional requirements of section 704 of the Administrative Procedure Act, 5 U.S.C. § 704, have not been satisfied. Unlike Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), this is not a case "in which the impact of the regulations upon the petitioners is . . . direct and immediate . . . ." Id. at 152. The policy statement does not, like the regulations at issue in Abbott, "purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business" of plaintiffs. Id. On the contrary, the statement simply informs the plaintiffs of the Commission's belief that interlocks of this sort may be unlawful -- something plaintiffs could infer from the Commission's decision to proceed against Perpetual -- and of the Commission's intention to name individual directors in complaints issued after January 1 -- something plaintiffs concede the Commission has the right to do in any event. Moreover, the policy statement itself does not place plaintiffs in a quandary they would not otherwise be in. Plaintiffs concede the Commission's right to issue complaints against them; thus they face the possibility that they will be put to the defense of a lawsuit whether or not the policy statement continues to exist. And the Commission concedes the policy statement does not create a present obligation to resign. In any event, the possibility that plaintiffs may face an administrative complaint, prospective in application and subject to judicial review, is not the sort of threat contemplated in Abbott and its sister cases, Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 18 L. Ed. 2d 697, 87 S. Ct. 1520 (1967), and Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 18 L. Ed. 2d 704, 87 S. Ct. 1526 (1967). Finally, since the Commission has the right to develop a rule through the adjudicatory process, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426 (1969); and SEC v. Chenery, 332 U.S. 194, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947), and since the Commission has expressed its belief that interlocks of this nature may be illegal in some circumstances but legal in others, see Defendant's Memorandum in Opposition to Motion for Preliminary Injunction at 8n. 7, the court concludes it is most sensible to permit the adjudicatory process to run its course before examining the Commission's policy.
Finding the policy statement inappropriate for review at this time, the court must deny plaintiff's motion for a preliminary injunction. Moreover, in view of the Commission's concessions that the policy statement is not a rule and that plaintiffs are under no present obligation to resign from either of their directorships, no case or controversy exists concerning matters raised in plaintiffs' application for declaratory relief. Accordingly, this action must be dismissed.
It is so ordered.
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