Consumer Federation of America et al., Petitioners, v. Federal Trade Commission, Respondent.consumer Federation of America et al., Petitioners, v. Federal Trade Commission, Respondent,ted Bates & Company, Inc., and Itt Continental Bakingcompany, Inc., Intervenors.consumer Federation of America et al., Petitioners, v. Federal Trade Commission, Respondent,ted Bates & Company, Inc., and Itt Continental Bakingcompany, Inc., Intervenors.itt Continental Baking Company, Petitioner, v. Federal Trade Commission, Respondent,consumer Federation of America et al., Intervenors.ted Bates & Company, Inc., Petitioner, v. Federal Trade Commission, Respondent.itt Continental Baking Company, Inc., Petitioner, v. Federal Trade Commission, Respondent.ted Bates & Company, Inc., Petitioner, v. Federal Trade Commission, Respondent, 515 F.2d 367 (D.C. Cir. 1975)

Thomas R. Trowbridge, III, New York City, filed a brief on behalf of American Association of Advertising Agencies, Inc., as amicus curiae in Nos. 74-1173 and 74-1199.

Before ROBINSON and ROBB, Circuit Judges, and SOLOMON,^*  Senior United States District Judge for the District of Oregon.

Opinion for the Court filed by Senior District Judge SOLOMON.

SOLOMON, Senior District Judge:

The Consumer Federation of America (Consumers),¹  ITT Continental Baking Company, Inc. (ITT Continental), and Ted Bates & Company, Inc. (Bates) petition this Court to review a Federal Trade Commission (FTC or Commission) order. For reasons set forth below, we dismiss for lack of jurisdiction the petitions of Consumers and we transfer the petitions of ITT Continental and Bates to the Court of Appeals for the Second Circuit.

In August, 1971, the FTC issued a complaint against ITT Continental and its advertising agency, Bates. The complaint alleged that ITT Continental and Bates violated Sections 5 and 12 of the Federal Trade Commission Act (FTCA), 15 U.S.C. §§ 45, 52, by falsely and deceptively advertising Wonder Bread and Hostess Snack Cakes, two of ITT Continental's products. The complaint proposed "corrective advertising" as a remedy for the deceptive advertising.

In June, 1972, the Administrative Law Judge began extensive hearings on the complaint. On December 18, 1972, he issued an initial decision recommending that the complaint be dismissed. The FTC complaints counsel appealed to the full Commission.

On January 5, 1973, Consumers moved to intervene as a party to support the complaint before the full Commission.²  The Commission denied the motion,³  but allowed Consumers to file a brief and present oral argument as amici curiae. Consumers urged the Commission to reverse the initial decision and to order extensive corrective advertising.

On October 19, 1973, the FTC, in its final order on the merits, dismissed most of the complaint. Nevertheless, it sustained an allegation that ITT Continental and Bates had misrepresented Wonder Bread as "an extraordinary food for producing dramatic growth in children". The FTC issued a broad cease and desist order but did not order corrective advertising.

On November 5, 1973, Consumers petitioned this Court to review the FTC's refusal to order corrective advertising.⁴  Shortly thereafter, ITT Continental and Bates petitioned the United States Court of Appeals for the Second Circuit to review the FTC's cease and desist order. On December 11, 1973, the Second Circuit, pursuant to 28 U.S.C. § 2112(a), transferred those cases to this Court.⁵ 

During November, 1973, ITT Continental and Bates filed motions to reconsider with the FTC. On December 14, 1973, the Commission issued an order which revised its October 19th order. Consumers petitioned this Court for review of the December 14th order.⁶  ITT Continental and Bates again filed for review in the Second Circuit; that Court again transferred the cases here.⁷  The petitions of ITT Continental, Bates, and Consumers were consolidated here.

ITT Continental and Bates were granted leave to intervene in the petitions for review filed by Consumers. On January 21, 1974, the intervenors filed a motion to dismiss Consumers' petitions; they also filed a motion to transfer their petitions back to the Second Circuit.

We grant both motions.

This Court does not have jurisdiction to hear Consumers' petitions.

Section 5(c) of the FTCA, 15 U.S.C. § 45(c), provides that:

"Any person, partnership, or corporation required by an order of the (Federal Trade) Commission to cease and desist from using any method of competition or act or practice may obtain a review of such order in the court of appeals of the United States . . .."

Consumers concede that Section 5(c) does not grant this Court jurisdiction to hear their petition. They contend, however, that we have jurisdiction under Section 10(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 702:

"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

Under the APA, judicial review of administrative action is the rule, Barlow v. Collins, 397 U.S. 159, 166, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970), unless there is a statutory prohibition of judicial review or unless agency action is committed to agency discretion by law. Section 10(a), 5 U.S.C. § 701. ITT Continental and Bates contend that Section 5(c) of the FTCA only allows judicial review for parties subject to an FTC cease and desist order and therefore Consumers are not entitled to review under the APA. We agree.

Consumers rely on language in Pepsico, Inc. v. FTC, 472 F.2d 179, 185-86 (2d Cir. 1972), which suggests that a non-party to FTC proceedings may be entitled to seek review of an FTC order in a district court. This, Consumers contend, supports their argument that Section 5 does not limit judicial review to parties subject to FTC orders. We disagree.

The issue before the Pepsico Court was whether the FTC's denial of motions to dismiss a complaint for failure to join indispensible parties was "final agency action" subject to judicial review under Section 10(c) of the APA, 5 U.S.C. § 704. In its analysis, the Court referred to a cease and desist order as a clear example of final FTC action. The Court noted that in that hypothetical situation, not before the Court, a party subject to a cease and desist order could seek review in a court of appeals; the Court went on to suggest that even a non-party who was "adversely affected or aggrieved" by the agency action, 5 U.S.C. § 702, could seek review in a district court.

The Pepsico Court was not required to nor did it decide whether Section 5(c) of the FTCA precludes judicial review for a person not subject to an FTC cease and desist order. The issue was whether the FTC's denial of motions to dismiss was final agency action, not whether persons not named in a cease and desist order were entitled to review.

A statutory prohibition of judicial review will be found only upon a showing of "clear and convincing evidence" of legislative intent to prohibit review. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Nevertheless, the prohibition need not be express. Legislative intent to prohibit review may be shown by legislative history. Air Line Dispatchers Association v. National Mediation Board, 89 U.S.App.D.C. 24, 189 F.2d 685, 688 (1951); see also National Welfare Rights Organization (NWRO) v. Finch, 139 U.S.App.D.C. 46, 429 F.2d 725, 736 (1970).⁸ 

We believe that the legislative history of Section 5(c) presents clear and convincing evidence of a legislative intent to allow review of FTC cease and desist orders only on the petition of parties subject to the orders.

Section 5, as originally drafted, precluded anyone other than the Commission itself from seeking judicial review of an FTC order.⁹  Several Senators proposed amendments which included provisions to expand the class of persons entitled to review.

The principal amendments on judicial review were proposed by Senators Cummins and Pomerene. The main difference between their proposals was the broad review under the Pomerene amendment and the narrow review under the Cummins amendment.¹⁰  The amendments differed on who were entitled to initiate review proceedings and the scope of such review.

The narrow amendment, proposed by Senator Cummins, authorized the FTC to bring an enforcement action; it also allowed judicial review of an FTC order for any "person, partnership, or corporation named in the complaint."¹¹  Complainants were not entitled to review.¹²  Senator Cummins thought that this restriction was proper because he believed that the FTC would protect both the rights of persons injured by unfair competition and the rights of society in general.¹³ 

The broader amendment, proposed by Senator Pomerene, extended review to FTC complainants and to the Attorney General of the United States.¹⁴  Before the Senate voted on Section 5, the Committee on Interstate Commerce withdrew its original Section 5¹⁵  and inserted the Pomerene amendment.¹⁶ 

On August 1, 1914, the Senate, as in Committee of the Whole, rejected the Pomerene amendment and adopted the Cummins amendment.¹⁷ 

Several days later, Senator Pomerene again proposed an amendment to Section 5 which contained a provision allowing review for persons other than those subject to an FTC order.¹⁸  The debate on the amendment focused on whether a complainant had a right to review.¹⁹  The Senate, as in Committee of the Whole, again defeated the amendment.²⁰  The Senate did adopt another amendment proposed by Senator Pomerene to permit a complainant to participate in judicial proceedings brought by a person subject to the FTC order.²¹  The Senate passed the bill²²  and sent it to the House-Senate Conference Committee.

Section 5 of the bill reported out of the Conference Committee²³  differed significantly from the Senate bill. The Conference Committee version was the one enacted into law. September 26, 1914, ch. 311, 38 Stat. 719. It provided that both enforcement proceedings brought by the FTC and petitions for review by those subject to cease and desist orders could be heard in courts of appeals, rather than in district courts.²⁴  Senator Pomerene's provision allowing limited participation in judicial proceedings by a complainant was deleted.

In our view the Conference Committee changes negative any intent by the conferees to broaden the category of persons who could seek judicial review. Apparently Senator Cummins was of the same opinion. In reporting the Conference bill to the Senate, Senator Cummins, who was on the Conference Committee, discussed both the substantive and language changes in the review provisions.²⁵  Because of his strong opposition to the Pomerene amendment, it is significant that Senator Cummins did not object to any change in the provisions for review.

This legislative history is clear and convincing evidence that Congress intended to allow judicial review of FTC cease and desist orders only for parties subject to the orders. Competitors who had suffered direct and tangible injury from unfair competition were twice denied the right to seek review. The legislative history of Section 5 shows that Congress did not intend to permit persons and organizations like Consumers, who suffer only remote and intangible injury, to obtain judicial review of FTC orders.

None of the amendments to the FTCA removed any of the limitations on who could seek review. The Wheeler-Lea Amendments, March 21, 1938, ch. 49, § 3, 52 Stat. 111, changed the wording of Section 5(c) to its present form; they also made FTC orders final and eliminated the need for commission enforcement proceedings. But these changes did not expand or alter the class of persons who could petition to review an FTC cease and desist order. Cf. Holloway v. Bristol-Myers Corporation, 158 U.S.App.D.C. 207, 485 F.2d 986, 997 (1973).

Section 10(b) of the APA does not give this Court jurisdiction to hear Consumers' petitions because Section 5(c) of the FTCA, together with Section 10(a) of the APA, denies judicial review to parties not subject to an FTC cease and desist order.²⁶ 

We grant the motion to dismiss Consumers' petitions.

Consumers filed their petitions in this Court before ITT Continental and Bates petitioned to the Second Circuit. These cases were transferred to this Court only because of the prior filings by Consumers. Because we hold that this Court has no jurisdiction to hear Consumers' petitions, we grant the motion of ITT Continental and Bates to transfer their cases to the Second Circuit.