The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, U.S.D.J.
On January 7, 1985, the defendant Federal Trade Commission ("FTC") initiated proceedings against plaintiffs, six title insurance companies, pursuant to its enforcement authority in 15 U.S.C. § 45(b). Plaintiffs subsequently brought this action, seeking a declaration that the delegation of law enforcement powers to the FTC is unconstitutional because the Commissioners are given the exclusive power to initiate enforcement proceedings, and are not subject to the President's supervisory control. Plaintiffs also seek permanent injunctive relief against all future prosecutions by the FTC, and against the proceeding presently pending against them.
This Circuit held in TRAC that "where a statute commits final agency action to review by the Court of Appeals, the appellate court has exclusive jurisdiction to hear suits seeking relief that might affect its future statutory power of review." 750 F.2d at 72. Review of cease and desist orders issued by the FTC is committed by statute to the Court of Appeals, 15 U.S.C. § 45(c), and defendant accordingly concludes that an action challenging the FTC's power to initiate proceedings that could result in entry of a cease and desist order must be brought in the appellate court. Plaintiffs assert that TRAC is limited to claims seeking review of agency process, and does not encompass constitutional challenges to the agency's enabling statute. The Court agrees.
The language in TRAC admittedly is broad, but it must be read within the context of the Court's discussion of the nature of their exclusive jurisdiction. In concluding that District Courts have no jurisdiction over requests to compel FCC action, the Court of Appeals emphasized that Congress, in its statutory allocation of review, intended the "class of claims covered by the statutory grant of review power" to be solely in the appellate courts. TRAC, 750 F.2d at 77. A constitutional challenge to the FTC's enabling statute would not appear to be within the 'class of claims' contemplated by § 45(c), which only determines the forum in which FTC cease and desist orders shall be reviewed. Had Congress also allocated review of constitutional claims to the Court of Appeals, the holding of TRAC would compel transfer of this case. See, e.g., Public Utilities Commission of Oregon v. Bonneville Power Administration, 767 F.2d 622 (9th Cir. 1985) (constitutional challenge to ongoing agency proceedings held to be within Circuit Court's exclusive jurisdiction under TRAC when judicial review provision of relevant statute allocated review of suits challenging constitutionality of statute or actions thereunder to Court of Appeals).
Further, cases which have been transferred to appellate courts under TRAC have only presented claims challenging the manner in which agency process was implemented. E.g., Oil, Chemical and Atomic Workers Int'l v. Zegeer, 248 U.S. App. D.C. 47, 768 F.2d 1480 (D.C. Cir. 1985) (claim of unreasonably delayed agency action); Zantop International Airlines, Inc. v. Engen, 601 F. Supp. 667 (D.D.C. 1985) (challenge to agency's allegedly improper amendment of operating certificate). See also Independent Bankers Association of America v. Conover, 603 F. Supp. 948, 956-57 (D.D.C. 1985) (denial of motion for Order of Referral to agency for decision on merits). This limitation is entirely consistent with the intended scope of TRAC : in an effort to clarify the law of this Circuit, the Court of Appeals catalogued a series of cases intended to fall within TRAC's holding. 750 F.2d at 75 n.23. All of the cases involve challenges to agency process. It would strain credulity to deduce from the generalized terms of TRAC's holding that it was meant to preclude District Court review in all circumstances of any case involving an agency which would have "an effect" on appellate jurisdiction. Otherwise, because of the necessary overlap of federal claims and federal agencies, TRAC would cut a swath through this Court's jurisdiction akin to Sherman's march through Georgia. TRAC accordingly does not apply to remove the present matter from this Court's jurisdiction. Defendant's motion to transfer must be denied.
The issue next presented is whether plaintiffs' constitutional claim is ripe for review by this Court prior to completion of ongoing administrative proceedings on the underlying non-constitutional claims. To determine whether plaintiffs' constitutional claim is ripe for review, the Court must look at two factors: the fitness of the claim for judicial review, and the hardship to the parties from the timing of review. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). The constitutional claim plaintiffs present meets the first prong of the ripeness test. Although the issuance of a complaint is not final, reviewable agency action, Federal Trade Commission v. Standard Oil, 449 U.S. 232, 237, 101 S. Ct. 488, 66 L. Ed. 2d 416 (1980), it does satisfy the finality requirement of the ripeness doctrine in a case which challenges the agency's authority to act, rather than the merits of the action taken. Athlone Industries, Inc. v. Consumer Product Safety Commission, 228 U.S. App. D.C. 80, 707 F.2d 1485, 1489 n.30 (D.C. Cir. 1983). Thus, for purposes of this prong of the ripeness test, the FTC's issuance of a complaint against plaintiffs was "final" action. In addition, the issue plaintiffs present is purely legal and no further action at the agency level will either flesh out or resolve the claim.
At oral argument, defendant conceded that plaintiffs' claim was adequately framed for review, satisfying the Article III component of the ripeness doctrine. The second prong of the test, however, implicates prudential concerns, which require the Court to explore the posture of plaintiffs' case and the extra-judicial framework in which this case arose and where the impact of a ruling on the merits will be felt. E.g., Atlantic Richfield Co. v. Department of Energy, 248 U.S. App. D.C. 82, 769 F.2d 771, 783 (D.C. Cir. 1984) ("ARCO"). Because of the particular sensitivity of this, and any constitutional issue, the Court is also under a duty to ensure that the merits will not be reached prematurely. E.g., Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring).
The obstacle to judicial review in this case is the pendency of the FTC action against plaintiffs. The general rule is that judicial review will not be granted when there are pending administrative proceedings, unless the plaintiff will otherwise suffer irreparable injury. E.g., Abbott Laboratories, 387 U.S. at 153. While this rule is clearly appropriate when the challenge is to the conduct or merits of agency proceedings, the same result is not as clearly dictated when the claim presented for review does not depend for its legal or factual development on the administrative process. This Circuit's most recent pronouncement on the issue, however, forecloses such a distinction. See Hastings v. Judicial Conference of the United States, 248 U.S. App. D.C. 180, 770 F.2d 1093 (D.C. Cir. 1985). In Hastings, the Court of Appeals sua sponte raised the issue of ripeness to preclude review of plaintiff's challenge to the constitutionality of a statute when administrative proceedings levied against plaintiff pursuant to the statute had not concluded. Id. at 1102.
Absent "serious and irremediable injury," the court concluded, ongoing proceedings would not be interrupted by judicial review of their propriety.
Plaintiffs allege that the litigation expenses they will be forced to incur in the defense of allegedly unconstitutional administrative proceedings produce sufficient injury to overcome the ripeness restraint. Such expenses alone do not provide a compelling reason to decide a constitutional question which it might not be necessary to reach. Standard Oil, 449 U.S. at 244. Plaintiffs assert, however, that the injury reaches beyond the pocketbook to implicate more fundamental rights to be free from the unconstitutional exercise of power. Although the Court does not see such a right vested in plaintiffs in this context, there is no doubt that plaintiffs raise a serious and substantial issue of considerable public importance. The constitutionality of independent federal agencies has never been fully adjudicated; as the Assistant Attorney General for the United States candidly admitted, the issue has been avoided for years. Plaintiffs correctly state that questions of similar gravity as to an agency's authority to act have led this Circuit to grant immediate review, even though administrative proceedings were pending. ARCO, 769 F.2d at 783-84. ARCO, however, involved a challenge only to an agency's authority under statute to act, and did not present a constitutional issue. Because plaintiffs' challenge in this case raises a constitutional issue, under Hastings, application of the ripeness doctrine must reflect prudential concerns.
The Court is convinced of the gravity of plaintiffs' claim. However, the injury asserted by Judge Hastings in his challenge to the legality of the Judicial Conference's proceedings was also substantial. Exposure of a federal judge to a probing investigation of immediate and devastating personal impact, by a possibly unconstitutionally constituted administrative body appears to be a compelling circumstance for exercising judicial review. Judge Hastings' petition for rehearing on this ground was denied. Although plaintiffs' constitutional challenge stands at the same level of severity as that presented in Hastings, the injury they assert is not of comparable magnitude. Plaintiffs, six corporations, have not pointed to any present effect of the investigation, other than litigation expenses. They would not be required to change any of their business operations - even those challenged by the FTC - until the Court of Appeals has placed its imprimatur on any cease and desist order ...