MEMORANDUM OPINION AND ORDER
UNITED STATES DISTRICT JUDGE
This matter comes before the court on the motions of certain defendants to dismiss or if the motions to dismiss are denied, to certify certain questions to the court of appeals pursuant to 28 U.S.C. § 1292(b). This is an action brought by the Consumer Product Safety Commission (Commission) to have "old technology" aluminum wiring systems declared "imminently hazardous consumer products." For relief the Commission requests that the court enter an order requiring the defendants to give public notice of the hazards allegedly associated with the aluminum wiring systems.
The court also has before it the motion of certain defendants to set a discovery, briefing, and hearing schedule on plaintiff's motion for temporary relief. Plaintiff's motion for temporary relief is, in effect, a motion for a preliminary injunction. Finally, Kaiser Aluminum & Chemical Corp. (Kaiser) has moved to dismiss, alleging that the Commission is collaterally estopped from pursuing its claims against Kaiser. Two other companies also are attempting to assert a unique applicability of collateral estoppel grounds because they allege that they merely processed wire manufactured by Kaiser.
The first issue is the motion of most of the defendants to dismiss or, in the alternative, for certification of the two issues raised under § 1292(b). Defendants assert that the Commission lacks jurisdiction to proceed against the aluminum wire manufacturers because aluminum wiring systems are not consumer products for the purposes of the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq. (Supp. V 1975). The defendants further assert that this jurisdictional holding is required by the collateral estoppel effect of Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F. Supp. 177 (D.Del. 1977), appeal pending, No. 77-1874 (3rd Cir.). In support of their motion, the defendants incorporate by reference the arguments raised and rejected by this court in United States v. Anaconda Co., 445 F. Supp. 486 (D.D.C. 1977), appeal pending, No. 77-1628 (D.C. Cir.). This court, having reconsidered the issues presented, again rejects these arguments and hereby adopts and incorporates by reference its decision in United States v. Anaconda Co.
In Anaconda Co., a subpoena enforcement action, this court rejected the respondents assertion that "the Commission lacks jurisdiction over aluminum wiring systems because they are not 'consumer products' within the meaning of the Consumer Product Safety Act, and, in any case, the court is bound on a collateral estoppel basis by a prior ruling on this point . . . ." 445 F. Supp. at 490 (D.D.C. 1977). The court found that aluminum home wiring systems were consumer products and therefore, it was within the Commission's jurisdiction to investigate the wiring systems. Misc. No. 77-24, slip op. at 10. Similarly, this court is of the opinion that this action under § 12(a) of the Act, 15 U.S.C. § 2061(a) is also within the Commission's jurisdiction to proceed "against an imminently hazardous consumer product " (emphasis added). As to the collateral estoppel issue, in its earlier opinion this court found that collateral estoppel principles did not prevent the Commission from proceeding against respondents other than Kaiser despite the holding of the Delaware court. Misc. No. 77-24, slip op. at 12-15; see Kaiser Aluminum & Chemical Corp. v. CPSC, 428 F. Supp. 177, 180-82 (D. Del. 1977). In the context of this case, this court again concludes that collateral estoppel principles do not preclude the Commission from proceeding against the defendants other than Kaiser.
The main issue, therefore, is whether the court should certify the issues of the Commission's jurisdiction and collateral estoppel for review by the court of appeals via § 1292(b). The jurisdictional issue will be heard by the United States Court of Appeals for the Third Circuit in the appeal from the Delaware case on January 6, 1978. The Court of Appeals for this Circuit will be faced with both issues in the appeal from this court's decision in United States v. Anaconda Co. Briefing has been completed in that appeal, but argument has not yet been scheduled.
Defendants assert, however, that the court of appeals has indicated that it might not reach the issues in question in that appeal. In its order denying appellants' motion for a stay pending appeal, the court stated that it:
"[Appears] to the court that the issue of whether aluminum wiring systems are within the jurisdiction of the Consumer Product Safety Commission may involve factual determinations as to the use and marketing practices of that product, and it
Further [appears] that this question of coverage raised by appellants is for the Commission to investigate in the first instance, and it is not appropriate for adjudication by the courts prior to enforcement of the subpoenas and the agency's completion of its investigation, Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 90 L. Ed. 614, 66 S. Ct. 494 (1946); Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 87 L. Ed. 424, 63 S. Ct. 339 (1943) . . ."