Ford Motor Company v. Coleman

402 F. Supp. 475

• Court: District Court, District of Columbia
• Decided: September 22, 1975
• Docket: Civ. A. 75-1340
• Status: Published

Opinions

LEVENTHAL, Circuit Judge.

Ford Motor Company in this case challenges the constitutionality of §§ 108(a)(1)(D), 109, 152(a) and 155(b) of the 1974 aihendments to the National Traffic and Motor Vehicle Safety Act of 1966, (Act), 15 U.S.C. §§ 1897(a)(1) (D), 1398, 1412(a) and 1415(b). It seeks a preliminary injunction in this three-judge district court¹ restraining the operation of the statutory penalties for noncompliance with the order of the National Highway and Traffic Safety Administration (NHTSA) to give notification to purchasers of 1968 and 1969 Mustang and Codgar automobiles and to remedy without charge any seat back pivot pin brackets in those cars.² Ford seeks a tolling of the penalties until it is able to obtain a judicial determination of the validity of the Administrator’s underlying premise that seat pin breakage constitutes “a defect which relates to motor vehicle safety” within the meaning of the Act.³ Ford maintains that the provision permitting a penalty of $800,000 for noncompliance creates an in terrorem atmosphere calculated to deter manufacturers from exercising their right to a de novo hearing in district court, and there to require the Government to meet the burden of showing by a preponderance of the evidence, that there exists a safety-related defect.⁴Ford objects to its exposure to penalties for (1) the initial noncompliance, asserting that the statutory procedure for obtaining a stay pending the outcome of the de novo district court hearing is constitutionally inadequate because it shifts the burden onto the manufacturer to show that his noncompliance was “reasonable” and that “he is likely to prevail on the merits”;⁵ and (2) possible future noncompliance with an additional order to give provisional notification, which the Administrator may issue should Ford succeed in staying the operation of the first set of penalties, and which cannot be avoided even if Ford ultimately wins on the merits.⁶

In our view, the proper construction of the Act, taking into account the statutory language, legislative history, and the sound doctrine that calls for interpretation in the light of traditional principles of equity in the federal courts, is consistent with constitutional dictates. In accordance with that construction, and in the exercise of its pendent jurisdiction, this court restrains the operation of the statutory penalties until Ford’s motion for a preliminary injunction is ruled on in the Government’s enforcement action, which was filed the same day as Ford’s complaint, and has been assigned to District Judge Hart as a related case.¹ That injunction is in conformance with the Act, not predicated on the Act’s unconstitutionality.

I. STATUTORY FRAMEWORK AND FACTUAL BACKGROUND

Section 152(b), 15 U.S.C. § 1412(b) empowers the Administrator, as the Secretary of Transportation’s delegate,^{7 8} to require the manufacturer of a motor vehicle “which contains a defect which relates to motor vehicle safety” to furnish notification of the defect to owners, purchasers and dealers and to remedy it without charge. The determination of a safety-related defect is made on the basis of the Administrator’s investigation and after an informal hearing at which the manufacturer has “an opportunity to present data, views and arguments” to show the absence of safety-relatedness.⁹

Noncompliance with a § 152(b) order constitutes a violation under § 108(a) (1) (D), 15 U.S.C. § 1397(a)(1)(D), exposing the manufacturer to a civil penalty under § 109, id. § 1398, not to exceed $1000 for each violation (presumably for each defect-marked motor vehicle) and $800,000 “for any related series of violations.” The Secretary determines the amount of the penalty to be sought in light of “the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation. . . . ”¹⁰ But it is the court that determines whether a penalty shall be ordered and in what amount.

Enforcement takes place in the context of either an action under § 110(a), 15 U.S.C. § 1399(a), to restrain a violation of the § 152(b) order or under § 109 to collect a civil penalty with respect to such violation. The enforcement action is to be brought by the Government in the district court for the District of Columbia or for a judicial district in the state of incorporation of the manufacturer. Section 155(a), id. § 1415 requires expedited consideration and consolidation of “all actions . . . brought with respect to the same order,” in accordance with the order of the court in which the first action is brought. During the pendency of an action relating to a §• 152(b) order, the Secretary may, under § 155 (b), id. § 1415(b), order the manufacturer to issue provisional notification of the existence of the defect.¹¹

The district court in such an action may hold the manufacturer liable for noncompliance with the § 152(b) order only upon finding, after a de novo hearing,¹² that the Secretary has established by a preponderance of the evidence the existence of a defect which relates to motor vehicle safety. Moreover, § 155 (c)(1), id. § 1415(c)(1), authorizes the court to “restrain the enforcement of such an order only if it determines, (A) that the failure to furnish notification is reasonable, and (B) that the manufacturer has demonstrated that he is likely to prevail on the merits.” Liability for noncompliance with a § 155(b) provisional notification order, however, attaches regardless of the validity of the underlying § 152(b) determination, and no similar stay pendente lite procedure is set forth in the Act.¹³

In the case before the court, the Administrator notified Ford on March 13, 1975, that investigation indicated “that the front inboard seat back pivot arm pin bracket on 1968-69 Mustang and Cougars is subject to failure which can result in loss of vehicle control, accident or injury.” ¹⁴ Ford was given an opportunity to present arguments and data in rebuttal, and rebuttal was presented on April 22, 1975. On August 12, 1975, Ford received notification of the Administrator’s final determination that seat back pivot pin bracket breakage constitutes a safety-related defect, accompanied by a § 152(b) order to furnish notification and to remedy without charge. On August 18, 1975, Ford filed its complaint in district court, and applied for a temporary restraining order, preliminary injunction and convocation of a three-judge district court. The same day, the Government filed its enforcement action in the district court. Judge Hart granted the temporary restraining order. This three-judge court was duly convened. At argument, this court continued the restraint against enforcement of the penalty provisions pending further order of the court.

II. JURISDICTION

The Government’s brief contended that this court does not have jurisdiction to hear Ford’s constitutional challenge because § 155(c)(1) provides the exclusive means for obtaining a stay of the penalties provision — as a motion in the Government’s enforcement action.¹⁵ This jurisdictional contention was abandoned at oral argument,¹⁶ and is without merit.

Under Ford’s theory, the § 155(c)(1) stay procedure comes too late because the penalties for noncompliance have already worked their chilling effect on the right to seek judicial review of the order, and is constitutionally inadequate also because it places the burden of establishing a right to equitable relief on Ford, rather than require the Government to convince the court of the need for coercing immediate compliance. The challenge here is to the constitutional adequacy of the § 155(c)(1) stay in the context of civil penalties accruing immediately upon noncompliance. The jurisdictional objection would foreclose effective judicial consideration of Ford’s constitutional objections. Ford is entitled to three-judge court review of the constitutionality of the statutory scheme as a whole.

Moreover, this Act does not embody a Congressional direction confining judicial jurisdiction to enforcement proceedings. Section 155(a)(1) of the statute, 15 U.S.C. § 1415(a)(1), expressly provides for consolidation of “[a] 11 actions (including enforcement actions) brought with respect to the same order under” § 152(b). The stay procedure itself is not restricted in, terms to enforcement actions.¹⁷ Even if the § 155(c)(1) stay procedure were restricted to enforcement actions, in the absence of language unmistakably withdrawing all equitable jurisdiction outside of the enforcement proceeding¹⁸ this court would have inherent power to do equity in the face of an unconstitutional statute. But rather than legislate such withdrawal, Congress was willing to permit even pre-enforcement review of § 152(b) orders, expressly leaving the question to the courts.¹⁹ These provisions fall short of the “clear and convincing” congressional intent required before a statute will be construed to restrict access to judicial review,²⁰ here of the penalty scheme as a whole.

III. THE PENALTY SCHEME

Ford’s basic claim is that the penalty scheme is calculated to deter it from exercising its right to judicial review, by putting it to the Hobson’s choice of either submitting to what it considers an erroneous agency determination based on informal procedures or challenging the order in the courts at the risk of a penalty of $800,000.²¹ Ford argues that due process requires a tolling period during which it can secure a complete judicial review of the validity of the Government’s order, and only upon a final judgment in the Government’s favor should Ford’s liability for noncompliance begin to run.

We do not take up Ford’s further objection to the provisional notification provision, as exacerbating the chilling effect of the penalty scheme by exposing Ford to liability for noncompliance even if the underlying agency determination is ultimately deemed unlawful. The Administrator has not ordered provisional notification in this case. In the absence of agency implementation of this section of the Act, we have no basis for determining its reach, let alone for measuring it against the command of the Constitution. The Administrator may view his authority to order provision notification as limited to emergency situations — where the defect can be correlated with a significant incidence of highway accident and injury.²² The mere possibility that the Administrator might exerisé that power in this case is too speculative to warrant judicial consideration at this juncture.

As to Ford’s principal claim, it our view that the statute, fairly read, permits the manufacturer who has a substantial, nonfrivolous challenge to the validity of the Adminstrator’s determination to obtain a preliminary injunction either in the Government’s enforcement suit or, if the Government does not act promptly in bringing such a suit, in a pre-enforcement action. The court has jurisdiction to issue a temporary order restraining the operation of the penalties pending its determination of the motion for preliminary injunction, and to issue a preliminary injunction that will stay the accrual of the penalties until the completion of the de novo enforcement proceeding in district court on the underlying order. However, if the court hearing the preliminary injunction motion deems the challenge insubstantial, it may deny such full relief and start up the clock that it has temporarily suspended. In that event, the manufacturer must give notification and remedy in accordance with the Administrator’s directive or risk the payment of penalties should it lose on the merits in the Government’s enforcement action.

Ford’s contentions carry the infirmity of causing the Constitution to forbid Congress from placing barriers in the path of insubstantial litigation, embarked upon for delay and in the hope that an agency may settle for less protection for the public than the law contemplates. In our view, and our reading of the cases, the basic constitutional requirement is satisfied if the manufacturer has an opportunity to convince a court that its grounds for contesting the validity of the order are substantial, and the adequacy of that opportunity is established where it is made available before liability for noncompliance attaches.

The pertinent doctrine was registered by Justice Van Devanter — acknowledged for his learning in matters of jurisdiction — in St. Louis, Iron Mountain & Southern Railway Company v. Williams, 251 U.S. 63, 64-65, 40 S.Ct. 71, 72, 64 L.Ed. 139 (1919):

It is true that the imposition of severe penalties as a means of enforcing a rate . . . is in contravention of due process of law, where no adequate opportunity is afforded the carrier for safely testing, in an appropriate judicial proceeding, the validity of the rate . . . before any liability for the penalties attaches. . . .

And it also is true that where such an opportunity is afforded and the rate is adjudged valid, or the carrier fails to avail itself of the opportunity, it then is admissible, so far as due process of law is concerned, for the State to enforce adherence to the rate by imposing substantial penalties for deviations from it.

In that case the state law provided a penalty of “not less than fifty dollars, nor more than three hundred dollars and costs of suit, including a reasonable attorney’s fee” for each instance of a railroad’s passenger rates exceeding statutory limits, id. at 64, 40 S.Ct. at 72. Justice Van Devanter found that there was constitutionally adequate opportunity “for safely testing” the rate in a judicial proceeding because of the railroad’s ability “to secure a determination of [the validity of the statutorily prescribed rates] by a suit in equity against the Railroad Commission of the State, during the pendency of which the operation of the penalty provision could have been suspended by injunction.” Id. at 65, 40 S.Ct. at 72. The crucial element —that the penalty “could have been suspended” — is far removed from Ford’s contention that the penalty must automatically be suspended while it is litigating. Ford is afforded an adequate opportunity “for safely testing, in an appropriate judicial proceeding,” the validity of the Administrator’s directive, because it has the means to seek a suspension preventing penalties from accruing during litigation, assuming it can demonstrate grounds for injunctive relief — assuming it can show, what the Supreme Court has uniformly required in such cases, including Oklahoma Operating Co. v. Love on which Ford places emphasis, that the litigant had “reasonable ground to contest” the order.²³

We have studied the line of cases cit^o by Ford — notably, Ex parte Young, Wadley Southern Railway v. Georgia, and Oklahoma Operating Co. v. Love—and are clear that they are consistent with the Iron Mountain teaching, that the Constitution is satisfied by the provision of an opportunity “for safely testing” administrative action.²⁴ They do not support the broader proposition asserted by Ford, that the Constitution dictates risk-free litigation. These decisions do take up a separate point, that the Constitution is offended when the penalty system is of such a nature as to create a virtual roadblock to judicial review. In Ex parte Young, where the statutes provided criminal sanctions, the Supreme Court noted that the risk of imprisonment may deter all challenge, as the manufacturer will be unable to find a willing violator among his employees, and the jury in a criminal trial will not be able to adequately scrutinize the validity of the underlying regulatory statute or order.²⁵ In this context the Court held that to impose on a party the burden of obtaining a judicial decision “only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the courts . . . . ” ²⁶ In the case at bar, by contrast, Congress contemplated and has provided for a judicial stay that will protect the contestant, assuming a threshold showing, even if unsuccessful on the merits, against accrual of penalties pendent lite. Furthermore, in Ex parte Young, and its line of cases, the appearance of a scheme providing cumulative penalties, mounting each day in severity, operated as a direct impost inflating with, and because of, the time required for the very exercise of the right to judicial review.²⁷

In our view, the 1974 Amendments to the National Traffic and Safety Act, read in light of the legislative history and against the backdrop of general principles of federal equity practice, provide a constitutionally adequate tolling procedure, with the ultimate sanctions properly discretionary and noncumulative in nature.

A. A Constitutionally Adequate Tolling Procedure

Section 155(c)(1) of the Act expressly provides for a judicial order of “restraint” in the Government’s enforcement action — and this encompasses temporary restraining orders as well as preliminary injunctions. Congress intended authority in the court to provide plenary protection through a “restraint” in an appropriate case. We think it plain, as Government counsel acknowledged at oral argument, that the statute’s provision for a “restraint” encompasses both the temporary restraining order and the preliminary injunction (Tr. 35), that “a very low threshold of showing need be made” for a temporary restraining order (Tr. 37-38), and that the temporary restraint could have a retroactive effect, staying the accrual of penalties from the date of the Administrator’s. directive (Tr. 38). That restraint remains binding whether the further ruling is one granting or denying a preliminary injunction.

In any case where the manufacturer presents a nonfrivolous question, a temporary restraining order is appropriate, for the nonfrivolous question shows that “the failure to furnish [immediate] notification is reasonable,” and the equitable context of the statute establishes power to issue a temporary restraining order until the court has had opportunity to hear and consider the motion for preliminary injunction and opposition thereto.

Furthermore, it is our view that although a manufacturer can obtain this relief in a nonfrivolous ease in the enforcement action, there is jurisdiction in a district court to entertain a petition to review an order of notification-and-remedy, though filed before enforcement, if filed in one of the district courts which Congress contemplated as having venue of matters arising under this statute — the District Court for the District of Columbia, and the district where the manufacturer is incorporated.²⁸ The concept of meaningful judicial restraint would permit that court to enter a restraint pending the institution of an enforcement action and pending further consideration by the court in that enforcement action. If the enforcement action is brought promptly by the Government,²⁹ the action filed by the manufacturer should be consolidated with the enforcement action.³⁰

Section 155(c)(1) permits the manufacturer to obtain a preliminary injunction if he can convince the court in the Government’s enforcement action “that the failure to furnish notification is reasonable,” and that “he is likely to prevail on the merits.” ³¹ If the manufacturer makes this showing, he obtains a preliminary injunction which absolves him of liability for noncompliance pendente lite. Even if he has not previously obtained a temporary restraining order, the court has jurisdiction to issue an order of “restraint” that has a retroactive effect, tolling the penalties for the interim period between the point of noncompliance and its ruling, either way, on the application for preliminary injunction.³² Insofar as Ford claims it wants a “ 'grace period’ in which to try for the preliminary [injunction] free from the threat of penalties,”³³ the statute permits that. The manufacturer will have had a meaningful day in court; the agency’s order will not have obtained coercive effect in the face- of a substantial challenge to its validity.

Ford argues that the § 155(c) (1) stay procedure is constitutionally defective because it contemplates the grant of a preliminary injunction only where plaintiff shows he is “likely to prevail on the merits,” and this, it is argued, works a shift in the burden of proof which raises the cost of challenging the order to a constitutionally prohibitive level.³⁴ In our opinion, Ford misconstrues the statutory language and thereby overstates its plight. Since the ultimate burden of proof remains with the Government, probable success on the merits for a manufacturer in Ford’s position means only, as the Government here concedes (Tr. 41-42, 43-44), that he need show that the evidence is (probably) in equipoise. By “evidence in equipoise” we mean that on some item that it is material for the Government to establish, as the party with the burden of proof, the court cannot fairly say whether the item or its contrary is the more probable. It is entirely sound and straightforward analysis, though perhaps novel in formulation, to say that at the preliminary injunction stage a manufacturer establishes a requisite likelihood of ultimate success on the merits, if he shows at that time that the case is in equipoise as to a material item the Government must establish by a preponderance of evidence in the ultimate finding.

The statutory procedure does put on the manufacturer a burden of coming forward. It can discharge that burden by producing some evidence that its challenge is undergirded with substance. That burden is in substance no different from the showing generally required of litigants seeking to restrain the operation of a statute or regulation which, it is claimed, invalidly restricts their actions. Ordinarily, the statute or regulation is presumed valid, and regardless of the injury claimed to flow from the statute’s operation, a preliminary injunction will not issue unless probable success on the merits is demonstrated.

There is no automatic right to interlocutory relief in the law. Even in the highly sensitive First Amendment area, where the courts are alert to remove “prior restraints” on protected expression, a “persuasive demonstration” of likely success on the merits is a necessary predicate to obtaining a preliminary injunction.³⁵ Moreover, where preservation of the status quo operates to the active detriment of the non-moving party, probable success on the merits takes on added importance as the critical prerequisite for relief.³⁶ Particularly where the public interest may be sacrificed by the grant of a preliminary injunction, courts of equity require a substantial showing by the moving party of the strength of its claim. “Courts of equity may, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.” ³⁷ If the public interest is important enough, it may even justify an outright ban on all interlocutory relief, even though the effect is to confer immediate coercive power on administrative orders.³⁸ This Act, of course, does not go nearly that far.

In light of the above, we cannot say that § 155(c)(1) works an injury of constitutional dimension because it places the initial burden of . coming forward on the manufacturer, to make some showing on, to establish at least substantiality for, the claim of invalidity of an order to give notification to consumers who may be driving unsafe vehicles.

This is the reality of the “restraint” procedure under the Act:

(1) Once Ford comes forward with evidence establishing the substantiality of its objections, it obtains a preliminary injunction, subject to (2). (2) The injunction will be denied if the Government meets the burden of proving its case, as to the existence of a safety-related defect, sufficiently to overcome the claim of mere equipoise, notwithstanding the proof tendered by the manufacturer. (3) If the preliminary injunction is denied, the manufacturer may continue to resist compliance, and to litigate, only by shouldering an exposure to an assessment of penalties if it loses on the merits.

B. Discretionary, Noncumulative Penalties

Ford would have a basis for attacking the statutory scheme if the penalties attached to noncompliance were inflexibly set at an amount “so heavy as to erect an unfair barrier against the endeavor of an honest litigant to obtain the judgment of a court.” Life & Casualty Co. v. McCray, 291 U.S. 566, 574-75, 54 S.Ct. 482, 486, 78 L.Ed. 987 (1934).

But this is plainly not such a case. It does not bear the infirmity existing in most of the cases relied on by plaintiff, where the penalty involved criminal sanctions, including imprisonment,³⁹ or was cumulative — per day of violation — so that the time naturally required for substantial litigation served to penalize the act of litigating.⁴⁰ The cases upholding the substantially similar penalty provision of the National Traffic and Motor Vehicle Act, before its amendment in 1974,⁴¹ have found this distinction conclusive. Nor is there even a minimum penalty. Section 109(a) of the Act⁴² protects the manufacturer with two separate limitations prescribing maxima on civil penalties. One maximum is $1,000 per violation. The other is the overall maximum of $800,000 for any related series of violations. Even in gross, the $800,000 figure must be taken in conjunction with the fact that the class which will be affected- — manufacturers or assemblers of motor vehicles or motor vehicle equipment — will not be denied access to the courts. It may well be within the range of the cost of litigation for such challenges.⁴³ More important, the $800,000 figure represents a maximum, not a minimum. There clearly is room for the court to set a substantially lower figure. The statute expressly authorizes the court to consider “the size of the business of the person charged and the gravity of the violation” in determining the amount of the penalty. Moreover, as the Government seems to concede (Tr. 42-43), the reasonableness and good faith of the manufacturer’s noncompliance may properly be considered in mitigation of the statutory maximum.⁴⁴ And it must be reiterated that even this exposure will attach only if the court has denied a preliminary injunction because it was convinced, as of that time, that the proof was not in equipoise, but rather more on the Government’s side., The denial of a preliminary injunction, moreover, is not conclusive with regard to the penalties ultimately assessed, for in appraising good faith for purposes of assessing civil penalties the court can take it into account that in the case at hand the manufacturer had substantial strengths on the merits, and was not merely relying on judicial disinclination to treat even a weak dispute as sham. “The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconsideration between the public interest and private needs . .” The Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 592, 88 L.Ed. 754 (1944).

In this overall context, the statute does not give a right to judicial consideration that is only “nominal and illusory [because] the party to be affected can appeal to the courts only at the risk of having to pay penalties so great that it is better to yield to orders of uncertain legality rather than to ask for the protection of the law.” Wadley Southern Ry. v. Georgia, 235 U.S. 651, 661, 35 S.Ct. 214, 218, 59 L.Ed. 405 (1915). There is no risk unless the party is unable to convince the court to issue a preliminary restraint, and in that case its exposure is “no more than the fair price of the adventure” of contesting the order; “the litigant must pay for his experience, like others who have tried and lost.” Life and Casualty Co. v. McCray, 291 U.S. 566, 575, 54 S.Ct. 482, 486, 78 L.Ed. 987 (1934).

IV. EXPEDITED REVIEW

The procedure for temporary relief outlined above envisions a foreshortening of the district court review process. Many, if not most challenges will be resolved, for all intents and purposes, by the disposition of the motion for preliminary injunction rather than after a more extensive trial. Litigants who fail to obtain temporary relief may well prefer to comply rather than press on in the hope of changing the court’s appraisal, with the risk of both litigation costs and civil penalties.⁴⁵ But due process is not offended by expedition, as long as nonfrivolous claims can be reasonably aired.

Moreover, insofar as the statute does not give the manufacturer a "free ride” —to litigate without any risk of penalties — it advances the important public policy, embodied in the 1974 amendments, of a “timely remedy”, and prompt adjudication of controversies relating to highway and motor vehicle safety.⁴⁶

The public interest embraces measures to add a surcharge to deter frivolous litigation.⁴⁷ The 1974 amendments to the National Traffic and Motor Vehicle Safety Act sought to deter frivolous litigation by attaching a cost to challenges, without substantial merit, maintained for purposes of delaying the implementation of the statutory mandate ⁴⁸ We believe that Congress can constitutionally penalize such challenges, particularly where the public interest in safety demands prompt corrective action, as long as manufacturers can obtain an expedited hearing at which they can petition for immunity from penalties pendente lite upon a showing that their non-compliance rests on a challenge that is substantial.

Plaintiff's motion for a preliminary injunction, enjoining enforcement of the penalty scheme of the Act, as unconstitutional, is denied. It is in compliance with the Act, and not in its teeth, that in the exercise of its pendent jurisdiction this court issues a preliminary restraint, pending ruling by the District Court in the enforcement action on plaintiff’s timely application in that action for a preliminary injunction.

Judge PARKER concurs in all respects in the foregoing opihion.

1 . 28 U.S.C. § 2282.

2 . All 1968 and 1969 model Mustang and Cougars are two-door vehicles with folding front seat backs. The brackets which permit the seat to fold forward are welded to the sides of the seat bottom frame; the pivot pins hinge the brackets to the frame allowing the seat back to pivot forward. Failure, resulting from a. fracture of the weld, is claimed by the Government to involve potential safety hazards in loss of vehicle control and injury from the rearward collapse of the seat itself. See Government Exh. 1, at 5, 29.

3 . Section 102(1) defines “motor vehicle safety” as protection “against unreasonable risk of accidents occurring as a result of the design, construction or performance of motor vehicles and . . . against unreasonable risk of death or injury to persons in the event accidents do occur, and includes nonoperational safety of such vehicles.” 15 U.S. C. § 1391(1).

4 . Memorandum of Points and Authorities of Plaintiff in Support of Motions for Temporary Restraining Order and Preliminary Injunction at 19-20, 30-33.

5 . Id. at 14-15, 25; Plaintiff’s Reply Memorandum in Support of Motion for Preliminary Injunction at 4.

6 . Memorandum of Points and Authorities, supra note 4, at 22, 26-30.

7 . United States v. Ford Motor Co., Civil Action No. 75-1345 (D.D.C., filed August 18, 1975).

8 . 49 C.F.R. § 1.51(a) (1974).

9 . Section 152, 15 U.S.C. § 1412, provides in relevant part:

(a) If through testing, inspection, investigation, or research carried out pursuant to this chapter, or examination of communications under section 1418(a) (1) of this title, or otherwise, the Secretary determines that any motor vehicle or item of replacement equipment—

(2) contains a defect which relates to motor vehicle safety; he shall immediately notify the manufacturer of such motor vehicle or item of replacement equipment of such determination, and shall publish notice of such determination in the Federal Register. The notification to the manufacturer shall include all information upon which the determination of the Secretary is based. Such notification (including such information) shall be available to any interested person, subject to section 1418(a)(2)(B) of this title. The Secretary shall afford such manufacturer an opportunity to present data, views, and arguments to establish that there is no defect or failure to comply or that the alleged defect does not affect motor vehicle safety; and shall afford other interested persons an opportunity to present data, views, and arguments respecting the determination of the Secretary.

(b) If, after such presentations by the manufacturer and interested persons, the Secretary determines that such vehicle or item of replacement equipment does not comply with an applicable Federal motor vehicle safety standard, or contains a defect which relates to motor vehicle safety, the Secretary shall order the manufacturer (1) to furnish notification respecting such vehicle or item of replacement equipment to owners, purchasers, and dealers in accordance with section 1413 of this title, and (2) to remedy such defect or failure to comply in accordance with section 1414 of this title.

10 . The full text of § 109, 15 U.S.C. § 1398, provides:

(a) Whoever violates any provision of section 1397 of this title, or any regulation issued thereunder, shall be subject to a civil penalty of not to exceed $1,000 for each such violation. Such violation of a provision of section 1397 of this title, or regulations issued thereunder, shall constitute a separate violation with respect to each motor vehicle or item of motor vehicle equipment or with respect to each failure or refusal to allow or perform an act required thereby, .except that the maximum civil penalty shall not exceed $800,000 for any related series of violations.

(b) Any such civil penalty may be compromised by the Secretary. In determining the amount of such penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The amount of such penalty, when finally determined, or the amount agreed upon in compromise, may be deducted from any sums owing by the United States to the person charged.

11 . The additional provisional notice would contain a statement of the Secretary’s determination of the existence of a safety-related defect, the basis for that determination, his evaluation of the attendant risk to motor vehicle safety and any measures he believes necessary to “avoid an unreasonable hazard resulting from the defect or failure to comply” ; a statement that the manufacturer will remedy the defect or failure to comply without charge if he loses on the merits; and other matters the Secretary may prescribe by regulation or order.

12 . In order “to expedite the disposition of safety-related defect and noncompliance matters without violating the constitutional rights of due process,” Congress provided for informal procedures at the § 152(b) stage, and “due process would be satisfied since there would be a trial de novo with the burden of proof on the Government to prove, by a preponderance of the evidence, that a safety-related defect or failure to comply exists” before the manufacturer could be held liable. H.Rep. No.93-1191, 93d Cong., 2d Sess. 17 (1974) ; U.S.Code Cong. & Admin.News, 1974, p. 6052. See United States v. General Motors Corp., 518 F.2d 420, 426 (D.C.Cir., 1975); United States v. General Motors, 377 F.Supp. 242, 250 (D.D.C.1974). It should be noted that Congress expected the district court conducting the de novo proceeding “to give due consideration to the expertise of the agency in its consideration of the facts as to whether or not there was a defect and whether such defect was safety related.” H.Rep. No.93-1452, 93d Cong., 2d Sess. 32 (1974) ; U.S.Code Cong. & Admin.News, 1974, p. 6096.

13 . The full text of § 155(c), 15 U.S.C. § 1415(c), provides:

(c) (1) If a manufacturer fails to notify owners or purchasers in accordance with section 1413(c) of this title within the period specified under section 1413(b) of this title, the court may hold him liable for a civil penalty with respect to such failure to notify, unless the manufacturer prevails in an action described in subsection (a) of this section or unless the court in such an action restrains the enforcement of such order (in which case he shall not be liable with respect to any period for which the effectiveness of the order was stayed). The court shall restrain the enforcement of such an order only if it determines, (A) that the failure to furnish notification is reasonable, and (B) that the manufacturer has demonstrated that he is likely to prevail on the merits.

(2) If a manufacturer fails to notify • owners or purchasers as required by an order under subsection (b) of this section, the court may hold him liable for a civil penalty without regard to whether or not he prevails in an action (to which subsection (a) of this section applies) with respect to the validity of the order issued under section 1412(b) of this title.

14 . Verified Complaint for Declaratory and Injunctive Belief, Exhibit A.

15 . Government’s Motion to Dismiss at 10-12.

16 . The Government conceded at the hearing that this court has jurisdiction, but asked that we decline to exercise jurisdiction where an enforcement action has been promptly filed. Tr. 47-49.

17 . Unlike § 155(b), the provisional notification provision, § 155(c)(1) is not limited to “a civil action which relates to an order under [§ 152(b)] of this title, and to which [§ 155(a)(1)]' applies. . . .” Although the legislative history indicates that pre-enforcement review actions would be subject to consolidation under § 155(a)(1), see H.Bep. No.93-1452, 93d Cong., 2d Sess. 32 (1974), it is silent on whether an action for a stay which does not seek review of the § 152(b) order itself can be obtained outside of the consolidated proceeding.

18 . See, e. g., § 204(d) of the Emergency Price Control Act of January 30, 1942, 56 Stat. 23, 32-33 at issue in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

19 . While the Senate Bill specifically provided for pre-enforcement review, S.Rep.No.93-150, 93d Cong., 1st Sess. 6, 17 (1973), the House bill, whose provisions were ultimately enacted, took no position on the question, H.Rep.N0.93-1191, 93d Cong., 2d Sess. 28 (1974). In conference, the House position was adopted. “The conferees discussed but decided to take no position on whether or not pre-enforcement judicial review was available under the turn of the conference substitute. The conferees decided to leave that question to the courts.” H.Kep. No.93-1452, 93d Cong., 2d Sess. 32 (1974), U.S.Code Cong. & Admin. News, 1974, p. 6095.

20 . See Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).

21 . Plaintiff at the hearing suggested that its total exposure was $1,600,000 — $800,000 maximum penalty for noneompliance with the § 152(b) order and another $800,000 for noncompliance with a § 155(b) provisional notifications order. Tr. 3-4. The Government conceded the possibility of a double penalty on the premise that separate refusals, and hence “separate violations” within the terms of § 109, are involved. Tr. 67. Since we decide that the provisional notification provision is not ripe for constitutional attack here, see text at note 22 infra, we do not reach the double penalty issue.

22 . Under a properly limited construction, § 155(b) may strike a fair, constitutional balance between the manufacturer’s right to judicial review and the driving public’s right to be alerted to dangers attending continued operation of defect-marked automobiles.

23 . In Oklahoma Operating Co. v. Love, 252 U.S. 331, 338, 40 S.Ct. 338, 340, 64 L.Ed. 596 (1920), Justice Brandéis, reviewing a scheme imposing cumulative sanctions for noncompliance with an administrative order setting maximum rates for laundry work, held that the Constitution required a stay of the statutory penalties pendente lite, “provided that it also be found that the plaintiff had reasonable ground to contest [the rates] as being confiscatory.” The Court in United States v. Morton Salt Co., 338 U.S. 632, 654, 70 S.Ct. 357, 370, 94 L.Ed. 401 (1950), citing Brandéis’ opinion, characterized the constitutional requirement as a “chance . . . for a test of reasonable objections

United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir. 1971), also cited by Ford, required a restraint of penalties during the course of judicial review, but the court there specifically found that “defendants mounted a substantial attack upon the validity of the statute and order,” and that a stay would have been ineffective to stop the penalties from accruing. Id. at 719.

24 . In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the only opportunity for contesting the validity of the statutory rates was by defense in a jury trial for felony. Similarly, in Oklahoma Operating Co. v. Love, supra, the only judicial review obtainable was in a contempt proceeding.

The Court in Wadley Southern Railway Co. v. Georgia, 235 U.S. 651, 669, 35 S.Ct. 214, 59 L.Ed. 405 (1915), noted that had plaintiff railroad utilized the available opportunity for judicial review of the agency order it could be held liable only for noncompliance occurring after an adjudication of the order’s validity. There is no indication in Justice Lamar’s opinion, however, of any right to an automatic cessation of the penalties pendente lite.

More recent decisions of the Court indicate that what Wadley requires is an opportunity to obtain a stay upon a showing of the traditional grounds for equitable relief. Specifically addressing a Woi?iej/-based attack on war-time price control legislation barring all interlocutory relief, the Court in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), noted that “the statute itself provides an expeditious meaning of testing the validity of any price regulation, without necessarily incurring any of the penalties of the Act,” id. at 438, 64 S.Ct. at 674 (emphasis supplied), and that “[t]he award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff,” id. at 440, 64 S.Ct. at 674. More recently, the Court in St. Regis Paper Co. v. United States, 368 U.S. 208, 226-27, 82 S.Ct. 289, 300, 7 L.Ed.2d 240 (1961), rejected a Wadley-type argument, because since petitioners had the opportunity to obtain a “stay” upon commencement of the Government’s enforcement action or prior to the accrual of penalties, “we could not therefore say that it had ‘no chance’ to prevent the running of the forfeitures pending a test of the validity of the orders.” The Fifth Circuit has construed St. Regis Paper Co. to condition the grant of a stay on a showing that “the challenged order ‘appears suspect’ and the review seeks a ‘good faith test’ of ‘reasonable objections’ to the order.” Genuine Parts Co. v. FTC, 445 F.2d 1382, 1394 (5th Cir. 1971). See also cases cited in note 23 supra.

25 . Ex parte Young, 209 U.S. 123, 145-46, 164-65, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

26 . Id. at 148, 28 S.ct. at 449.

27 . Id. at 145, 28 S.Ct. 441 (penalty not to exceed $5,000 or 5 years’ imprisonment, or both, for felony, with each ticket sale a separate violation); Wadley Southern Railway Co. v. Georgia, 235 U.S. 651, 653-54, 35 S.Ct. 214, 59 L.Ed. 405 (1916) (penalty not to exceed $5,000 per day for each day of continued violation); Oklahoma Operating Co. v. Love, 252 U.S. 331, 335, 337, 40 S.Ct. 338, 64 L.Ed. 596 (1920) (penalty not to exceed $500 per day for each day of noncompliance); St. Regis Paper Co. v. United States, 368 U.S. 208, 212 n. 1, 225, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961) (flat $100 a day penalty for each day of continued noncomplianee after 30-day grace period); United States v. Pacific Coast European Conference, 451 F.2d 712, 714 (9th Cir. 1971) (penalty not to exceed $1,000 a day for each day of violation).

That this line of cases really goes to the cumulative nature of the penalty finds some support in the commentaries. See W. Gellhorn & C. Byse, Administrative Law: Cases and Comments 477 n. 24 (1970) (“If a money penalty for delay [in the commencement of Government enforcement proceedings] is so large and so inescapable that a respondent could not risk challenging an order he thought invalid, a denial of due process might result,” citing Ex parte Young, supra; Oklahoma Operating Co. v. Love, supra); L. Jaffe, Judicial Control of Administrative Action 708 (1965) (“Love doctrine” does not extend to “every administrative order which becomes effective pendente lite [and] may eventually be enforced by penalties,” but “is directed against huge cumulative penalties smacking of a purpose to block review”).

28 . As discussed above, Congress left it to the courts to determine whether the statute permitted pre-enforcement review. See notes 16, 19 and accompanying text supra. In line with the Third Circuit, see General Motors Corp. v. Volpe, 321 F.Supp. 1112, 1121 (D.Del.1970), aff’d as modified, 457 F.2d 922, 923-24 (3d Cir. 1972), we hold that there is jurisdiction in the specified district courts, under 28 U.S.C. § 1337, 5 U.S.C. § 701-06, and 28 U.S.C. § 2201-02, to entertain a pre-enforcement action.

29 . If however, the Government fails to commence its enforcement action within a reasonable time after learning of the manufacturer’s intention to challenge the notification-and-remedy order, the district court in the manufacturer’s action could properly exercise its discretion to hear the manufacturer’s motion for preliminary injunction. See General Motors v. Volpe, supra, 321 F.Supp. at 1130, aff’d, 457 F.2d at 924. The Government in this case concedes that full preenforcement review is available if its enforcement action is not promptly filed. Tr. 47. As the Supreme Court in United States v. Morton Salt Co., 338 U.S. 632, 654, 70 S.Ct. 357, 369, 94 L.Ed. 401 (1950), responded to the charge that the Government may delay seeking enforcement in order to accumulate “ruinous penalties,” “we are not prepared to say that courts would be powerless if the Government pursues a policy of accumulating penalties while avoiding a judicial test by refusing to bring action to recover them.” See St. Regis Paper Co. v. United States, 368 U.S. 208, 226-27, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961). See also W. . Gellhorn & C. Byse, Administrative Law: Cases and Comments 477 n. 24 (1970).

Since the Government in this case brought its enforcement suit with requisite promptness — in fact, it filed its suit on the same day that Ford filed its complaint — we find that Ford will suffer no prejudice if its motion for a preliminary injunction is decided in the Government’s action.

30 . Section 155(a)(1) contemplates consolidation in the district of the first enforcement action, providing that consolidation be “in accordance with an order of the court in which the first such action is brought . . . .” But it does not address itself to the possibility of a pre-enforcement action by a manufacturer. While we entertain the possibility of a need for a pre-enforcement action, we think it contrary to the spirit of the Act to encourage forum-shopping by the manufacturer. We agree with the Third Circuit in General Motors v. Volpe, supra, 457 F.2d at 923-24, that the pre-enforcement action should be transferred to the district of the enforcement action, if that action has been promptly instituted.

31 . Id. % 1415(c)(1). It should be noted this provision, rather than encumber review, makes it easier for a manufacturer to obtain a stay by eliminating the usual requirement of a showing of irreparable harm, which may be a difficulty in this type of case, where there is little or no effect on the manufacturer’s current business. See General Motors Corp. v. Volpe, supra, 321 F.Supp. at 1129.

32 . Without pursuing the matter in over-elaborate detail, the court would have jurisdiction in an appropriate case to issue an order of restraint for this period even though it rules that no restraint will issue henceforth, and that the prayer for a continuing preliminary injunction is denied. The Government appears to have conceded this point (Tr. 38).

33 . Plaintiff’s Reply Memorandum in Support of Motion for Preliminary Injunction at 4.

34 . Rather than have penalties attend a judicial determination of the order’s validity after a de novo hearing at which the Government must justify its actions by a preponderance of the evidence, Ford argues that the statute arms the agency with coercive penalties which take effect immediately, and places the burden on the manufacturer to secure a tolling by proving its case on the motion for a preliminary injunction. Memorandum of Points and Authorities of Plaintiff in Support of Motions for Temporary Restraining Order and Preliminary Injunction at 14-15, 25.

35 . See, e. g., A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 181-82, 421 F.2d 1111, 1116-17 (1969).

36 . See, e. g., Delaware & Hudson Railway Co. v. United Transportation, 146 U.S.App.D.C. 142, 158-59, 450 F.2d 603, 619-20, cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971) (action by rail carriers to enjoin selective striking by union).

37 . Virginian Ry. v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 601, 81 L.Ed. 789 (1937). See Yakus v. United States, supra, 321 U.S. at 440-42, 64 S.Ct. 660, 88 L.Ed. 834; Abbott Laboratories v. Gardner, 387 U.S. 136, 155-56, 87 S.Ct. 1507, 18 L.Ed.2d 674 (1967); Associated, Securities Corp. v. SEC, 283 F.2d 773, 775 (10th Cir. 1960); Floersheim v. Weinberger, 346 F.Supp. 950, 956 (D.D.C.1972), dismissed for lack of juridsiction, 161 U.S.App.D.C. 30, 494 F.2d 949 (1973). See generally, 11 Wright & Miller, Federal Practice & Procedure: Civil § 2948, at 457-60 (1973).

Representative Staggers, the principal author of the 1974 amendments, specifically urged the courts, in determining whether or not to restrain enforcement of the Administrator’s directive, to consider “whether the public would not be adversely affected by [the manufacturer’s] failure to notify.” Cong. Rec. H 10571 (daily ed. Oct. 15,1974).

38 . But where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest ' withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.

Yakus v. United States, supra, 321 U.S. at 440, 64 S.Ct. 660. The Court in Yakus held that preservation of the integrity of wartime price controls justified a statutory scheme which restricted manufacturers seeking to contest the validity of a price regulation to an exclusive review procedure, and which precluded any court from granting an interlocutory injunction staying enforcement of the regulation before final adjudication of its validity.

39 . See note 25 and accompanying text supra.

40 . See note 27 and accompanying text supra.

41 . General Motors Corp. v. Volpe, 321 F.Supp. 1112, 1126 n. 25 (D.Del.1970), aff'd as modified, 457 F.2d 922, 923 (3d Cir. 1972); United States v. General Motors Corp., 385 F.Supp. 598, 604 (D.D.C.1974).

The only significant change, pertinent here, in the penalty scheme wrought by the 1974 amendments was to double the maximum penalty from $400,000 to $800,000.

42 . The text is found at note 10 supra.

43 . See United States v. General Motors Corp., 385 F.Supp. 598, 604 (D.D.C.1974); Brown & Williamson Tobacco Corp. v. Engman, C.A. No. 75 Civ. 4047 (S.D.N.Y. August 28, 1975), slip op. at 6.

44 . Although the Government in United States v. General Motors Corp., 385 F.Supp. 598, 603 (D.D.C.1974), sought $400,000, the statutory maximum at that time, Judge Gaseh assessed only $100,000, because this was a case of first impression and therefore General Motors was “not acting in blatant disregard of a well-defined area of the law.”

The courts have exercised similar discretion under the analogous penalty provision of the Federal Trade Commission Act, 15 U.S.C. § 45(1). See United States v. ITT Continental Bahing Co., 420 U.S. 223, 229 n. 6, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975); United States v. J. B. Williams Co., 498 F.2d 414, 438 (2d Cir. 1974); Floersheim v. Engman, 161 U.S.App.D.C. 30, 33-35, 494 F.2d 949, 952-54 (1973); Brown & Williamson Tobacco Corp. v. Engmam, supra, at 5; United States v. Beatrice Foods Co., 322 F.Supp. 139, 141 (D.Minn.1971).

45 . As this court stated in Delaware & Hudson Railway Co. v. United Transportation Union, 146 U.S.App.D.C. 142 at 159, 450 F. 2d 603 at 620:

The duty to appraise the merits at the stage of. preliminary injunction is a duty of appellate as well as trial courts. Usually this appraisal is phrased in terms of probability or substantial likelihood of success after trial. Sometimes, however, the interest of justice is "furthered by providing a determination on the merits, both at the trial court and on appeal, if and to the extent that the matter is ripe, notwithstanding that technically the only matter submitted is a request for a preliminary injunction. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-85, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

In Youngstown Sheet & Tube Co., the Supreme Court decided issues of great constitutional moment- — presidential implied power to order seizure of the nation’s .steel mills— even though the case proceeded no further than the preliminary injunction stage.

46 . Congress laid great stress on the importance of a “timely remedy,” to give the driving public the quickest possible notice and remedy of safety-related defects, consistent with due process. See H.Rep. No.93-11, 93d Cong. 2d Sess. 16-17, 29 (1974).

47 . On the problems of frivolous litigation in the labor area, see International Union of Electrical Workers v. NLRB [Tiidee Products], 138 U.S.App.D.C. 249, 426 F.2d 1243, cert. denied 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970) ; Note, NLRB Remedies — Attorney’s Fees in Refusal-to-Bargain Cases, 1975 Duke L.J. 352.

48 . Citing instances of manufacturer recalcitrance to give notification and remedy without charge, H.Rep. No.93-1191, supra note 46, at 16, the House Committee on Interstate and Foreign Commerce provided that noncompliance with the Administrator’s notification-and-remedy order constituted a prohibited act, so that “when a manufacturer decides to contest the Secretary’s determination of a defect or failure to comply, he does so at the risk of facing an enforcement proceeding brought by the Government and incurring a civil penalty for violations of section 108 of the 1966 Act, as amended by this bill,” id. at 18.

■ The hearings in the House indicate that the penalty provision was viewed as an alternative to criminal sanctions for securing compliance with the Act. . Hearings before House Committee on Interstate and Foreign Commerce, Subcommittee on Commerce and Finance, on H.R. 7505, H.R. 5529, and S. 355, Pt. 1, 93d Cong., 1st Sess. 389 (1973).