SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
The National Traffic and Motor Vehicle Safety Act of 1966
directs the Secretary of Transportation to establish federal standards for motor vehicles to meet the need for increased safety on the Nation's highways.
On March 3, 1971, pursuant to that mandate, the National Highway Traffic Safety Administration, a unit of the Department of Transportation, issued an order
promulgating Motor Vehicle Standard No. 208, which would inaugurate passive occupant restraint systems in automobiles manufactured on and after August 15, 1973.
Standard No. 208 requires the installation in 1976 and later models
of systems meeting specified performance criteria for the protection of all occupants against all types of crashes.
The standard, however, extended to manufacturers an option to provide in 1974 and 1975 models
systems affording protection only to front-seat occupants against head-on collisions.
Automakers filed petitions with the Administration for reconsideration of Standard No. 208,
and in the Court of Appeals for the Sixth Circuit for judicial review.
On September 29, 1971, the Administration, in response to the petitions for reconsideration, issued its Notices 12 and 13 in the proceeding. Notice 12, among other things, acknowledged the Administration’s recognition of some merit in manufacturers’ protests that there was not enough time to permit the large-scale introduction of passive restraint systems in 1974 model cars, even for just front-seat occupants.
Accordingly, Notice 12 stated the Administration’s intention to offer manufacturers a third option as to installations in 1974 and 1975 models.
Notice 13, in turn, specified as that option front-seat belts with an ignition interlock in lieu of a passive restraint system,
and fixed November 2, 1971, as the date by which any comments on the proposed change were to be submitted to the Administration.
Appellants oppose elimination of the minimum requirement of Standard No. 208 that passive restraint systems for front-seat occupants be installed in 1974 and 1975 model automobiles. They complained to the Administration that there were reports, published and unpublished, that just prior to issuance of Notices 12 and 13 personnel in the Office of the President had communicated with the Department and the Administration in support of the manufacturers’ effort to ease the interim 1974-75 edict. Appellants endeavored to have the alleged cornmunieations made a part of the agency’s public docket so that their own comments could be directed in part to what they believed to be political pressure to delay the advent of passivity in occupant protection.
Failing in that effort, appellants filed an action in the District Court on October 18, 1971, approximately three weeks before the deadline for comments on the modification contemplated by the new notices. The action sought a mandatory injunction directing that all written communications between the Office of the President and the Department or the Administration be placed in the public docket, and that memoranda describing all oral communications between them be prepared and likewise placed in the docket. Appellants asserted that unless the docket was so implemented they would not be able to effectively exercise their right to comment on the proposals contained in the notices.
Appellees vigorously resisted appellants’ bid for such disclosure. They argued that intra-governmental communications need not be included in an informal rule-making docket, and that appellants had not demonstrated such a likelihood of success on the merits as would justify a preliminary injunction. They pointed to the fact that the administrative record was already under review — as to Standard No. 208 — in the Sixth Circuit, and urged that appellants’ effort to supplement the record could properly be made only there. Their opposition also included a motion to dismiss appellants’ action on the ground
that the statutory scheme for judicial review of automotive safety standards deprived the District Court of subject-matter jurisdiction.
The District Court heard argument on appellants’ motion for a preliminary injunction on October 28, 1971, just a week before the deadline for comments. The court also conducted an
in camera
examination of a number of documents which it ordered the Administration to produce for that purpose. During the course of the proceedings, the court restrained the issuance of any new regulations based on Notices 12 and 13 until the expiration of ten days from its disposition of the ease unless appellants commented in the meantime. By orders entered on January 28, 1972, the motion for preliminary injunction was denied and the complaint was dismissed.
The District Court’s order on the motion for preliminary injunction was accompanied by comprehensive findings of fact and conclusions of law.
In the court’s view, some of the documents submitted for
in camera
inspection were “intra-government communications,”
and the others were “working documents, reports and memoranda relating to the studies, deliberations and considerations of an inter-agency
ad hoc
committee involving costs, technological feasibilities, scientific developments and other matters relating to automotive transportation.”
None of these documents, the court ruled, was required to be included in the administrative docket,
and their absence therefrom precluded neither commentary by appellants on the proposed change nor their participation in the rulemaking proceeding.
The court further ruled that the statutory procedure for review of Administration orders in an appropriate court of appeals
afforded appellants an adequate remedy for their grievances;
that appellants had failed to show irreparable injury from the inaccessibility of the communications sought ;
that appellants had similarly failed to show a substantial probability of ultimately prevailing on the merits because “it appears that this Court lacks jurisdiction over the subject matter of this litigation”;
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SPOTTSWOOD W. ROBINSON, III, Circuit Judge.
The National Traffic and Motor Vehicle Safety Act of 1966
directs the Secretary of Transportation to establish federal standards for motor vehicles to meet the need for increased safety on the Nation's highways.
On March 3, 1971, pursuant to that mandate, the National Highway Traffic Safety Administration, a unit of the Department of Transportation, issued an order
promulgating Motor Vehicle Standard No. 208, which would inaugurate passive occupant restraint systems in automobiles manufactured on and after August 15, 1973.
Standard No. 208 requires the installation in 1976 and later models
of systems meeting specified performance criteria for the protection of all occupants against all types of crashes.
The standard, however, extended to manufacturers an option to provide in 1974 and 1975 models
systems affording protection only to front-seat occupants against head-on collisions.
Automakers filed petitions with the Administration for reconsideration of Standard No. 208,
and in the Court of Appeals for the Sixth Circuit for judicial review.
On September 29, 1971, the Administration, in response to the petitions for reconsideration, issued its Notices 12 and 13 in the proceeding. Notice 12, among other things, acknowledged the Administration’s recognition of some merit in manufacturers’ protests that there was not enough time to permit the large-scale introduction of passive restraint systems in 1974 model cars, even for just front-seat occupants.
Accordingly, Notice 12 stated the Administration’s intention to offer manufacturers a third option as to installations in 1974 and 1975 models.
Notice 13, in turn, specified as that option front-seat belts with an ignition interlock in lieu of a passive restraint system,
and fixed November 2, 1971, as the date by which any comments on the proposed change were to be submitted to the Administration.
Appellants oppose elimination of the minimum requirement of Standard No. 208 that passive restraint systems for front-seat occupants be installed in 1974 and 1975 model automobiles. They complained to the Administration that there were reports, published and unpublished, that just prior to issuance of Notices 12 and 13 personnel in the Office of the President had communicated with the Department and the Administration in support of the manufacturers’ effort to ease the interim 1974-75 edict. Appellants endeavored to have the alleged cornmunieations made a part of the agency’s public docket so that their own comments could be directed in part to what they believed to be political pressure to delay the advent of passivity in occupant protection.
Failing in that effort, appellants filed an action in the District Court on October 18, 1971, approximately three weeks before the deadline for comments on the modification contemplated by the new notices. The action sought a mandatory injunction directing that all written communications between the Office of the President and the Department or the Administration be placed in the public docket, and that memoranda describing all oral communications between them be prepared and likewise placed in the docket. Appellants asserted that unless the docket was so implemented they would not be able to effectively exercise their right to comment on the proposals contained in the notices.
Appellees vigorously resisted appellants’ bid for such disclosure. They argued that intra-governmental communications need not be included in an informal rule-making docket, and that appellants had not demonstrated such a likelihood of success on the merits as would justify a preliminary injunction. They pointed to the fact that the administrative record was already under review — as to Standard No. 208 — in the Sixth Circuit, and urged that appellants’ effort to supplement the record could properly be made only there. Their opposition also included a motion to dismiss appellants’ action on the ground
that the statutory scheme for judicial review of automotive safety standards deprived the District Court of subject-matter jurisdiction.
The District Court heard argument on appellants’ motion for a preliminary injunction on October 28, 1971, just a week before the deadline for comments. The court also conducted an
in camera
examination of a number of documents which it ordered the Administration to produce for that purpose. During the course of the proceedings, the court restrained the issuance of any new regulations based on Notices 12 and 13 until the expiration of ten days from its disposition of the ease unless appellants commented in the meantime. By orders entered on January 28, 1972, the motion for preliminary injunction was denied and the complaint was dismissed.
The District Court’s order on the motion for preliminary injunction was accompanied by comprehensive findings of fact and conclusions of law.
In the court’s view, some of the documents submitted for
in camera
inspection were “intra-government communications,”
and the others were “working documents, reports and memoranda relating to the studies, deliberations and considerations of an inter-agency
ad hoc
committee involving costs, technological feasibilities, scientific developments and other matters relating to automotive transportation.”
None of these documents, the court ruled, was required to be included in the administrative docket,
and their absence therefrom precluded neither commentary by appellants on the proposed change nor their participation in the rulemaking proceeding.
The court further ruled that the statutory procedure for review of Administration orders in an appropriate court of appeals
afforded appellants an adequate remedy for their grievances;
that appellants had failed to show irreparable injury from the inaccessibility of the communications sought ;
that appellants had similarly failed to show a substantial probability of ultimately prevailing on the merits because “it appears that this Court lacks jurisdiction over the subject matter of this litigation”;
and that, in consequence, appellants had not demonstrated their entitlement to a preliminary injunction.
And by a separate order reciting its conclusion “that this Court lacks jurisdiction over the subject matter of this action,” the court granted appellees’ motion to dismiss.
An appeal to this court was noted from the District Court’s orders, and a motion for summary reversal or a further restraint on issuance of a new regulation pending appeal was filed. We granted a temporary stay on February 16, 1972, to permit fuller consideration of the motion, and on the next day heard argument and announced our decision. We denied appellants’ motion, vacated our temporary stay, and dismissed the appeal. We also, as a matter of precaution, vacated the District Court’s order of dismissal to insure that it would not have any binding effect upon any effort by appellants to again raise the merits-questions they sought to litigate in that court. Our order noted that an opinion would follow as promptly as the business of the court permitted, and we now elucidate the reasons for the action we then took.
I
The threshold question emerging on appeal was whether the District Court had subject-matter jurisdiction of the suit instituted by appellants. The National Traffic and Motor Vehicle Safety Act entitles any person adversely affected by an order promulgating a safety standard to judicial review in a court of appeals,
and authorizes that court to remand the administrative record for supplementation in the event that it is found to be inadequate.
Appellants followed, however, not the statutory path by petition in a court of appeals for review with related record supplementation, but a nonstatutory course in a district court for an injunction mandating augmentation of the administrative record while the administrative proceeding was still in progress.
The legislative history of the Act is almost completely silent as to the
exclusivity or concurrency of the review procedure which it specifies
Generally, however, when Congress has specified a procedure for judicial review of administrative action, courts will not make nonstatutory remedies available without a showing of patent violation of agency authority
or manifest infringement of substantial rights irremediable by the statutorily-prescribed method of review,
and this is so for a number of reasons. Respect for “administrative autonomy”
derived from the grant of administrative jurisdiction
demands “the avoidance of premature interruption of the administrative process.”
Administrative expertise and discretion should first be brought to bear upon problems — ofttimes specialized and complex — which are committed to the agency for initial solution,
and in any event “it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based.”
The implicit legislative concept of separateness in the functioning of agencies and courts is ill served by improvident judicial interference in ongoing administrative proceedings.
Equally important is the conservation of administrative and judicial energies, which only close adherence to the concept of functional separateness can promote. Surely “it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages.”
Moreover, absent imperative need to correct erroneous agency action immediately, transgressions encountered during agency proceedings can ordinarily be rectified in the regular course of review.
Indeed, prior to final administrative action parties cannot be certain that they will be aggrieved,
and “only upon completion of the [administrative] proceedings can any meaningful evaluation of the effect of the supposed irregularities be made.”
Furthermore, departures from statutory modes of judicial review may well
. . . result in unnecessary duplication and conflicting litigation. Some opponents might participate before the [agency] ; others might well wait for termination of the [agency’s] activities and then sue in the district courts for
an injunction accomplishing the same ultimate end. The different records, applications of different standards and conflicting determinations that would surely result from such duplicative procedures all militate in favor of the conclusion that the statutory steps provided in the [governing] [a]ct are exclusive.
These considerations argue as forcefully against piecemeal view of administrative action as they do against appellate review of interlocutory judicial action.
They dictate that judicial intervention in uncompleted administrative proceedings, as distinguished from judicial checking by statutorily-established method of review, must remain very much the execption rather than the rule. Not only do they lie at the very foundation of the settled rule that administrative remedies must be fully exhausted prior to resort to the courts,
but in cases like the present they also assert themselves powerfully against jurisdiction of the courts while the administrative process is continuing. As the Supreme Court has declared, when Congress “has enacted a specific statutory scheme for obtaining review, . the doctrine of exhaustion of administrative remedies comes into play and requires that the statutory mode of review be adhered to notwithstanding the absence of an express statutory command of exclusiveness.”
That, we think, is the inevitable result here.
II
There can be no doubt as to the route which tests of administrative proceedings under the National Traffic and Motor Vehicle Safety Act of 1966 must normally pursue. That route, as we have mentioned, is a petition to a court of appeals for review of the action complained of.
Statutory review schemes such as this, it is generally conceded, have their genesis in the Federal Trade Commission Act,
which perhaps germinated the modern trend from common law remedies in district courts to petitions in courts of appeals as the favored vehicles for judicial review.
More than two decades ago, Congress described the petition-for-review mechanism as the “more modern . . . and generally . . . the best method for the review of orders of the administra
tive agencies,”
and since then it has consistently emerged ás the congressional choice.
So too in the passage of the National Traffic and Motor Vehicle Safety Act of 1966 did Congress signify a similar preference, and courts are bound to give that manifestation the respect it commands.
The Act before us also provides, moreover, that the court in which a petition for review is filed “shall have jurisdiction to review the [agency’s] order in accordance with section 10 of the Administrative Procedure Act. . . . ”
Section 10, in turn, makes two stipulations bearing importantly on this litigation. It limits “[t]he form of proceeding for judicial review” to the “special statutory review proceeding relevant to the subject matter in [a] court specified by statute” unless that proceeding would be inadequate.
It also defers review of “ [any] preliminary, procedural, or intermediate agency action or ruling not directly reviewable” until “review of the final agency action.”
We think it clear that, no less than is generally the case, judicial review under the Act is to occur in the form and in the forum the Act specifies in the absence of extraordinary circumstances.
III
There are, to be sure, exceptional situations in which a litigant has been permitted to invoke the equitable powers of a district court to preserve a substantial right from irretrievable subversion in an administrative proceeding,
but the case at bar is hardly such a situation. An agency’s refusal to accede to a party’s demands for production of infor
mation in pending proceedings is not ordinarily subject to immediate judicial revision,
and we are not persuaded that the conditions appearing here make for a different result.
Appellants lay claim to communications from the Office of the President to the Administration as a
sine qua, non
of efficacious comment on the proposed relaxation of Standard No. 208, and to the processes of the District Court as the only hope for judicial redress in time to enable meaningful comment. They argue that any attempt to gain access to the communications by way of judicial review of a new regulation emanating from Notices 12 and 13 is apt to require so long a period as to leave the Administration insufficient time to reconsider the contemplated postponement of Standard No. 208’s criteria for the 1974 and 1975 model years.
On analysis, however, these premises are no more acceptable to us than they were to the District Court.
Comment on the proposed change unrelated to the communications obviously could have been offered by appellants without further ado. Comments based on the communications could be presented were any production of them directed in a statutory review of the forthcoming order, and the Administration would not be immune to an instruction to reconsider its action in light thereof. Beyond that, the timeliness of comment addressed to the communications derived no significantly greater assurance from a non-statutory proceeding in a district court than one initiated under the Act in a court of appeals.
Appellants filed their action in the District Court just three weeks before the deadline for comments on the changes envisioned by Notices 12 and 13. The time for promulgation of an order pursuant to those notices became administratively ripe on November 2, 1971, when that deadline passed. The stay, however, which appellants themselves obtained in the District Court precluded issuance of any such order prior to February 7, 1972. In these circumstances, appellants are hardly in position to argue from an assumption that an order would not have emitted promptly. Indeed, appellees have represented to this court that but for the stay an order would have issued in early November— very shortly after suit in the District Court was instituted. That representation stands unchallenged by appellants, and we have no reason whatever to question it.
Nor do we perceive any basis for a firm belief that a district court action could lead to possible relief for appellants on the merits of their claim faster than a statutory proceeding in a court of appeals. Had appellants pursued the latter, they would in all probability have wound up in the Court of Appeals for the Sixth Circuit,
wherein cognate litigation was
pending and already had been set for expedited consideration. In contrast, their suit in the District Court, despite earmarks of diligence by all concerned, spanned a period of three and a half months, and reached its terminus while still in its preliminary stages.
We cannot conclude confidently that the course appellants took held out greater promise of an opportunity for timely comment than the course charted by the Act. And it goes without saying that the mere speculative possibility that appellants might have saved some time by proceeding as they did suffices to summon the District Court to a jurisdictional exercise.
We are mindful of the provision of the Act that “[t]he remedies provided for . shall be in addition to and not in substitution for any other remedies provided by law.”
Unlike appellants, however, we do not construe that provision as a license to resort to nonstatutory remedies in the District Court in the circumstances of this case. Such a construction would not only remove judicial review under the Act from the mainstream of jurisprudence,
but would also wage war with the Act’s explicit reference to Section 10 of the Administrative Procedure Act
and that section’s restriction on utilization of nonstatutory remedies to instances where the statutory procedure for review would be inadequate.
We interpret the quoted language as a reservation — fully consistent with current doctrine,
which Section 10 incorporates
— of nonstatutory remedies to instances of agency action which is
ultra vires
or damaging beyond the capability of the statutory procedure to repair
As we have said,
we do not consider the case at bar exceptional in that sense.
Our conclusion, then, is that the case did not present such circumstances as would exempt appellants from the need to pursue the statutory method of judicial review. The District Court had but limited jurisdiction of the case at the outset — for the purpose of taking a peek to see whether it had jurisdiction of the subject matter by virtue of exceptional circumstances. When it found no such circumstances it rightly dismissed the action for lack of subject-matter jurisdiction.
It so happened that by the time the District Court reached that point, it was also prepared to rule on appellants’ motion for a preliminary injunction, and for reasons already summarized it also denied the motion.
The dismissal, by our lights, was eminently correct, and that is as much as we need decide.
Our view of the case obviously foreclosed a grant of summary reversal to appellants on the merits, and with no occasion to consider the validity of the District Court’s ruling on the motion for injunction, we dissolved our stay and dismissed the appeal. We realized, too, that appellants might wish to pursue their litigative objectives in the Sixth Circuit,
and to free them from potential embarrassment by any claim of res judicata or collateral estoppel, we also vacated the District Court’s order of dismissal.
And now, with this explanation of the basis for our own action, we ring down the curtain on this appeal.