Appeal from an order of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, denying a motion for a stay of the accrual of statutory penalties under Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l).
Mulligan, Oakes and Meskill, Circuit Judges.
This appeal is from the denial of appellants' motion for a stay of penalties under Section 5(l) of the Federal Trade Commission Act, 15 U.S.C. § 45(l) (1975 Supp.). The motion for a stay was sought by the six appellants who collectively produce about 99 per cent of the cigarettes manufactured in the United States. They have instituted declaratory judgment actions to obtain review of the Federal Trade Commission's interpretation of six cease and desist consent orders previously entered against them. Appellants have sought review prior to any enforcement proceedings brought by the FTC. The United States District Court for the Southern District of New York, Charles H. Tenney, Judge, denied the motion for a stay. He concluded that appellants were not entitled to a stay as a matter of law and that they had failed to show that without the stay they will suffer irreparable injury or that the balance of the equities tipped decidedly in their favor. We affirm.*fn1
The consent orders here involved were formally issued by the FTC on March 30, 1972. Essentially they require, in very detailed terms as to size of print, location, color and shape, that appellants include in their newspaper, magazine and other periodical advertising the now famous Surgeon General's warning reading "Warning: The Surgeon General has determined that cigarette smoking is dangerous to your health." The history underlying the consent orders is not particularly relevant for present purposes, so that it is set out only in the margin.*fn2 Suffice it to say that the orders were entered into after negotiations resulting from the FTC's serving appellants with proposed complaints charging them with deceptive practices under 15 U.S.C. § 45(a) for the failure to disclose in their advertising the hazards of using cigarettes. The important thing for our purposes is that in the consent order each of the appellants waived "any further procedural steps" and "all rights to seek judicial review or otherwise to challenge or contest the validity of the order entered pursuant to this agreement." It should also be mentioned that the consent orders required the submission of compliance reports. These reports were filed in September 1972, with the result that the FTC reported to Congress in December 1972 and January 1974 that industry practice was in substantial compliance with the orders. Subsequently, however, the FTC claimed that prior to and since September 1972 appellants had engaged in practices which did not comply with the consent orders' detailed requirements. Accordingly the Commission initiated a compliance investigation. From November 1974 through January 1975 attempts apparently were made to settle the FTC's claims of violations of the orders, but the settlement negotiations broke down. The companies claim that the FTC demanded too high a sum as a penalty for past violations and the FTC counters that such a sum was not a condition to further negotiation, and that appellants had refused to accept the staff's interpretation of the consent orders. On March 17, 1975, appellants asked the FTC Commissioners to reject the staff's interpretation. On August 1, 1975, the Commission, by letters to the companies, formally indicated that the Commissioners supported the staff's interpretation and that pursuant to the provisions of 15 U.S.C. § 56(a)*fn3 it would notify the Attorney General of its intention to commence an action for civil penalties and for other relief on the basis of these violations. The letters of August 1 stated, however, that for certain of the alleged violations of the orders the Commission would hold the civil penalty action in abeyance for 180 days.*fn4 Appellants thereafter, on August 14, 1975, commenced actions for a judgment declaring that the "determinations" in the Commission's letters of August 1 are inconsistent with the provisions of the orders and that the appellants are not liable for civil penalties. They also sought an order staying pending final judgment the accumulation of penalties for alleged violations of the orders under Section 5 of the Act, 15 U.S.C. § 45.*fn5 The six complaints were consolidated, since they contain identical questions of law, and after a hearing the court denied the motion for a stay of penalties, treating it essentially as an application for a preliminary injunction.
Appellants principally argue that they are entitled to a stay of the accrual of civil penalties as a matter of law. They do so on the basis of a series of Supreme Court decisions which commenced with Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), and include Wadley Southern Railway Co. v. Georgia, 235 U.S. 651, 59 L. Ed. 405, 35 S. Ct. 214 (1915); Oklahoma Operating Co. v. Love, 252 U.S. 331, 64 L. Ed. 596, 40 S. Ct. 338 (1920); and St. Regis Paper Co. v. United States, 368 U.S. 208, 7 L. Ed. 2d 240, 82 S. Ct. 289 (1961).*fn6 The argument is that a party whose conduct is made subject to administrative action must be given the opportunity to obtain a judicial test of the validity of such action and, further, as a matter of due process of law, cannot be subjected to the risk that substantial penalties will accumulate during the course of the judicial proceeding. This line of cases is based on the reasoning that, regardless of the ultimate determination on the merits, due process requires that some real opportunity to challenge administrative action be afforded, and that such opportunity cannot exist where penalties are so great that noncompliance and a judicial challenge cannot be risked. The argument is the more compelling, the appellants suggest, in connection with FTC statutory penalties due to recent decisions, including our own United States v. J. B. Williams Co., 498 F.2d 414, 435-36 (2d Cir. 1974), note 5 supra, which hold that penalties imposed for noncompliance with the Commission's cease and desist order may be computed on the basis of a separate violation for each day and for each advertisement.*fn7 Appellants thus claim that the district court's endorsement of the Government's position in this case is directly contrary to definitive Supreme Court decisions which embody the rule that a stay of penalties is required during a good faith judicial challenge to an agency determination.
Young, Wadley, Love and St. Regis, however, do not go as far as appellants suggest. Rather, they establish that one has a due process right to contest the validity of a legislative or administrative order affecting his affairs without necessarily having to face ruinous penalties if the suit is lost. The constitutional requirement is satisfied by a statutory scheme which provides an opportunity for testing the validity of statutes or administrative orders without incurring the prospect of debilitating or confiscatory penalties. As stated in St. Louis, Iron Mountain & Southern Railway Co. v. Williams, 251 U.S. 63, 65, 64 L. Ed. 139, 40 S. Ct. 71 (1919),
where such an opportunity [to contest the validity] is afforded and the [statute or administrative order] is adjudged valid, or the carrier fails to avail itself of the opportunity [to contest the validity], 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.
See St. Regis, supra, 368 U.S. at 226-27; Wadley, supra, 235 U.S. at 667-69. See also Ford Motor Co. v. Coleman, 402 F. Supp. 475, 483 (D.D.C. 1975).
Here the penalties which the appellants seek to have stayed did not attach prior to their opportunity to contest the validity of the orders. Rather, the risk of penalties began to accrue only after the appellants entered into consent decrees which acknowledged the validity of the decrees and waived the right further to challenge their validity. The statutory scheme of the Federal Trade Commission Act contemplates ample opportunity to the company accused of a deceptive practice to test the initial validity of the order. It can do so by seeking a review in the United States Court of Appeals. 15 U.S.C. § 45(c); note 5 supra; see United States v. J. B. Williams Co., supra, 498 F.2d at 419 (majority opinion) and at 441 (dissenting opinion). In the instant case, however, it is not the validity of the consent orders that appellants contest; rather it is their interpretation by the FTC. The question whether one is entitled to a stay of penalties as a matter of law in a suit involving the enforcement of an admittedly valid administrative order is not concluded by the Young line of cases. Appellants have pointed to no cases which support their proposition that at the compliance or enforcement stage they are still entitled to a stay. The only cases in which the argument has been made have not accepted it, although they hardly have the weight here that the Commission would attribute to them. See Floersheim v. Weinburger, 346 F. Supp. 950, 956 (D.D.C. 1972), modified on other grounds and aff'd sub nom. Floersheim v. Engman, 161 U.S. App. D.C. 30, 494 F.2d 949 (D.C. Cir. 1973); United States v. Beatrice Foods Co., 322 F. Supp. 139, 141 n.1 (D. Minn. 1971).
We agree, of course, with the principle enunciated by the Supreme Court in Wadley Southern Railway Co. v. Georgia, supra, 235 U.S. at 661, that a right of judicial review is merely "nominal and illusory" if it must be exercised "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." But the legality of the orders here is entirely certain. The penalties are accruing in this case, if at all, only by virtue of noncompliance with perfectly valid administrative orders. At this stage the right of the government to impose fines and penalties for violation of the laws appears equally indisputable. As Wadley states, "there is no room to doubt the power of the State to impose a punishment heavy enough to secure obedience to such orders after they have been found to be lawful; nor to impose a penalty for acts of disobedience, committed after the carrier had ample opportunity to test the validity of administrative orders and failed so to do." 235 U.S. at 667. Cf. Calero-Toledo v. Pierson Yacht Leasing Co., 416 U.S. 663, 684-85 n.24, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974).
Appellants argue, of course, that it is the risk of huge accumulating penalties during the course of the enforcement proceedings in this case which calls into play the Supreme Court cases and requires the granting of the temporary relief sought. But while the cumulative aspect of Section 45(l) penalties is severe, see United States v. J. B. Williams Co., supra, 498 F.2d at 435-36, it very plainly was the view of Congress that such cumulative penalties might be the only way to enforce FTC orders in the face of profitable, repeated or continuing violations. See 96 Cong. Rec. 2974 (1950) (remarks of Congressman Cooley); id. at 2981 (remarks of Congressman Posage); id. at 3018-19 (remarks of Senator George); id. at 3025 (remarks of Senator Aiken). The legislative history of the Act, according to United States v. ITT Continental Baking Co., 420 U.S. 223, 231, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1975),
makes clear that Congress was concerned with avoiding a situation in which the statutory penalty would be regarded by potential violators of FTC orders as nothing more than an acceptable cost of violation, rather than as a deterrence to violation. For example, Senator Aiken, chief proponent of the 1950 amendment, said that if daily penalties for certain violations of the Federal Trade Commission Act were not permitted, "the fine would amount to a license in the amount of $5,000 for misrepresentation, which would be a very cheap fine, indeed."
The cumulative penalty sections of Section 45(l) were held to be fair in ITT Continental Baking Co. because they were reasonably related to deterring cumulative violations of FTC orders in two situations: first, where detriment to the public and the advantage to the violator increases with delay of enforcement; and, second, where there exists a continuing ability on the part of the violator to eliminate the effects of his violation if so motivated. 420 U.S. at 232-33. We are satisfied, therefore, that § 45(l) cumulative penalties are not violative of due process under the circumstances of this case and that appellants are not entitled to a stay of penalties as a matter of law. We may point out in passing that while § 45 penalties are cumulative, they are also subject to the limitation of judicial ...