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conducted in the 1960's against several of the large electrical equipment manufacturers.

On June 27, 1975 the FTC pursuant to procedures contained in 16 C. F. R. & 2.12 approved and adopted a final Form EEM (Complaint, Exhibits B & D) and ordered Westinghouse and forty-one other corporations to complete and file said form.

The final Form EEM, at issue here, was submitted on October 17, 1974 to the Government Accounting Office pursuant to the Federal Reports Act, 44 U. S. C. 88 3501 - 3512 for the mandated approval of the Comptroller General. Under $ 3512 the Comptroller General must determine whether any governmental agency form (1) avoids duplication of effort in gathering information which might be already possessed by other independent regulatory agencies and (2) minimizes the compliance burden on businesses or other persons. This screening is important. However, this review by the Comptroller General is not the final determinant of forms used by the agency, for 44 U.S.C. 3612(d) states that the agency shall make the final determination. We find that because the statute characterizes the Comptroller General's response to the agency as "advice," his decision is one committed to his discretion.

On July 16, 1975, Westinghouse filed a motion to quash this order with the Commission. The bases for the motion were that (1) the order was issued in excess of the Commission's authority; (2) the order violated 13 U. S. C. $ 9 and 15 U.S.C. § 46(f) and (3) the order was unduly burdensome. The Commission denied plaintiff's motion to quash on October 23, 1975 (Complaint, Exhibit E) and stated that, if plaintiff complied with the report, it could submit a statement as to the information for which it requests confidential treatment and the reasons therefor. The time for compliance was extended for thirty days from the date the letter was sent or November 22, 1975. The present suit was filed on November 18, 1975 and the pending motions are outlined in the first paragraph of this opinion.

The Commission meanwhile has obtained completed forms from 27 of the companies served with Form EEM. Eleven companies were dropped because they did not manufacture equipment related to the survey. Thus only four companies are in default of the Commission's orders. Each of the four companies has brought a preenforcement action against the Commission. Westinghouse, of course, here. Emerson Electric Corporation has filed in the Eastern District of Missouri and we are not aware of the developments in that case. General Electric and Ingersoll-Rand have filed suit in the Northern District of New York. All of the motions filed in the instant suit were also filed in the New York litigation. On March 23, 1976 Judge Foley ruled on the several motions and concluded that the Court has

jurisdiction, and thus, denied the FTC's motion to dismiss and to stay. He granted the FTC's motions to transfer the General Electric case pursuant to 28 U. S. C. § 1404(a) and the Ingersoll-Rand case pursuant to 28 U.S.C. § 1406.

We find that this Court has jurisdiction to entertain preenforcement suits for declaratory and injunctive relief against the FTC. A. O. Smith Corp. v. F. T. C., 1976–1 TRADE CASES 160,730 (3d Cir. Feb. 11, 1976). The jurisdictional statutes are 28 U. S. C. $$ 1331 and 1337. Plaintiff also claims that the Declaratory Judgment Act, 28 U.S. C. 88 2201 and 2202, is jurisdictional. We note that while applicable, that Act is not jurisdictional but provides an additional remedy where jurisdiction already exists.

The orders in controversy were issued pursuant to Section 6(b) of the Federal Trade Commission Act, 15 U. S. C. § 46(b), and thus, were not self-enforcing. The Commission, to enforce these orders, must use the procedures set forth in Sections 9 and 10 of the Act, 15 U. S. C. 88 40, 50. On January 6, 1976 the FTC petitioned the District Court in the District of Columbia pursuant to Section 9 for an order in the nature of mandamus to compel the filing of a report thus instituting the enforcement procedure. Section 10 provides for the issuance of notices of default, and for the accrual of civil penalties of $100 for each day of default after the thirtieth day following receipt of notice.

The Abbott Laboratories trilogy supplies the major principles applicable today in deciding whether federal courts have jurisdiction to review administrative actions. The teaching of Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) is that a person aggrieved by final agency action may come to federal court for judicial review so long as “(a) no statute precludes such relief or (b) the action is not one committed by law to agency discretion.” 387 U. S. at 140. “Only upon a showing of 'clear and convincing evidence of a contrary legislative intent should the courts restrict access to judicial review.” Abbott, at 141; Dunlop v. Bachowski, 421 U. S. 560 (1975). We find no clear and convincing evidence of a congressional intent to bar judicial review of final FTC orders under $ 6(b) in the Federal Trade Commission Act. A. 0. Smith, supra. This Court finds that it has jurisdiction to entertain Westinghouse's suit against the Commission.

Thus, concluding the FTC's motion to dismiss for lack of jurisdiction is not well-taken, we turn to other motions presently before this Court. Both the FTC and the Comptroller General have moved to dismiss without prejudice under the Federal Rules of Civil Procedure for want of equity in this action and the existence of an adequate remedy at law elsewhere-namely, the enforcement proceeding now pending in the United States District Court for the District of Columbia. Alternatively defendants move to transfer this action to the District of Columbia

Court pursuant to 28 U. S. C. § 1404(a) or 1406(a) or to stay this action pending the completion of the enforcement proceeding.

After considering the various alternatives open to it, this Court is of the opinion that transfer pursuant to 28 U. S. C. $ 1406(a) to the District Court for the District of Columbia where the enforcement proceeding has already been brought is the proper course of action for us to take.1 We find that venue is improperly laid in this Court under 28 U. S. C. & 1391(e) 4). We recognize that there is a split of authority among the circuits on the question of whether the definition of "residence" in 28 U. S. C. § 1391(c)3 is applicable to a corporate plaintiff in an action against the government, where venue is based on 28 U. S. C. § 1391(e)(4). We find in our reading of the cases that the provisions of § 1391(c), insofar as the definition of residence therein is concerned, are applicable to corporate plaintiffs in § 1391(e)(4) cases. DC Electronics v. Schlesinger, 368 F. Supp. 1029 (N. D. I. 1974); Manchester Modes, Inc. v. Schuman, 426 F. 2d 629 (2d Cir. 1970) (per Friendly, J.); Upjohn Co. v. Finch, 303 F. Supp. 241 (W. D. Mich. 1969).

We conclude that the persuasive weight of authority is that g 1391(c) does not apply to corporations as plaintiffs and that the definition of residence for such plaintiff remains the State of its incorporation or of its principal place of business (which in the instant case is Pennsylvania). Manchester Modes, supra; Carter-Beveridge Drilling Co. v. Hughes, 323 F. 2d 417 (5th Cir. 1963); Robert E. Lee & Co. v. Veatch, 301 F. 2d 434 (4th Cir. 1961), cert. denied, 371 U. S. 813 (1962); Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed Co. 272 F. Supp. 826, 828-29 (W. D. Tenn. 1965) aff'd on other grounds, 382 F. 2d 830 (6th Cir. 1967); 1 Moore, Federal Practice 90.142 [5-1-3), at 1414-17 (2d ed. 1975); Hart & Weschler, The Federal Courts and The Federal System, (2d Ed. 1973), p. 1123. Further we find that the statutory language mandates this result. First, had Congress intended § 1391(c) to apply to plaintiff corporations it could easily have said “A corporation may sue or be sued ..." instead of saying only “A corporation may be sued ...". Second, the latter clause "... and such judicial district shall be regarded as the residence of such corporation for venue purposes" (emphasis supplied)— further indicates that the intent was not to

1 28 U.S.C. $ 1406(a) provides:

"The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."

2 28 U. S. C. $ 1391(e) provides: “A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or as an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.

3 28 U.S.C. $ 1391(c) provides:

"A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes."

include corporate plaintiffs. Textually, the use of “such corporation” must mean a defendant corporation since that is what the first clause is talking about.

Plaintiff refers us to the authority relating to g 1391(e)(4) in this circuit-namely Upjohn v. Finch, 303 F. Supp. 241 (W. D. Mich. 1969) and Pace v. Dept. of the Army, 344 F. Supp. 787 (W. D. Tenn. 1971). In the Upjohn case it was acknowledged that the provisions of § 1391(c), insofar as the definition of residence is concerned, are applicable to corporate plaintiffs in § 1391(e)(4) cases. In explaining the position that § 1391(c) applies to corporate plaintiffs as well as defendants, the Court in Upjohn, supra, refers to Southern Paperboard Corp. v. United States, 127 F. Supp. 649 (S. D. N. Y. 1955). We note that the two most recent cases from the Southern District of New York prior to the court's decision in Upjohn, supra, held that § 1391(c) did not apply to corporate plaintiffs. Control Data Corp. v. Carolina Power & Light Co., 274 F. Supp. 336 (S. D. N. Y. 1967); Lumbermens Mutual Casualty Company v. South Portland Engineering Company, et al., 252 F. Supp. 149 (S. D. N. Y. 1966). We have also examined the Pace, supra, case cited by plaintiff and find that the Court there simply stated that "venue appears to be appropriate in this district.” The Court follows this statement with a citation to Upjohn, supra, and does not discuss the issue at all.

Plaintiff refers us to the legislative history of g 1391(e)(4) to support its position that the definition of “resides” includes any State in which the plaintiff does business. After examining the legislative history, we find that the purpose of the statute was to:

make it possible to bring actions against Government officials and agencies in U. S. district courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the U. S. District Court for the District of Columbia. 1962 U. S. Code Cong. and Adm. News 2785.

We note that there are four places where venue would be proper in a suit against the government listed in § 1391(e) and that the enforcement proceeding. We also note that plaintiff has not attempted to make the Comptroller General a party in the Washington enforcement proceeding. At any rate, if he is permitted to be made a party, the Court can determine whether he did violate the law in exercising his function regarding these forms at issue and can refuse to require Westinghouse to file the forms. Thus, it matters not which court this determination takes place in and we conclude that the Washington enforcement proceeding is not inadequate because the Comptroller General is not at present a party there.

Another concern of plaintiff involves the necessity for limiting the use of this data, i.e., the confidentiality problem. We find, however,

that the enforcement Court can enter a protective order limiting the use of this data the same as this Court can. SEC v. Lockheed Aircraft Corp., 404 F. Supp. 651 (D. D. C. 1975). Thus, the enforcement proceeding is not inadequate for that reason.

The major reason Westinghouse puts forth in its claim that the enforcement proceeding is inadequate is that discovery will be more limited there than in the instant suit. With this contention, we do not agree. First we note that the Commission's position with regard is discovery (i.e., that is to be limited to materials submitted to the Commission in connection with the motions to quash (doc. 12 p. 9) with which Westinghouse disagrees) will be the same whether the forum is the enforcement proceeding or this Court. The contention that the enforcement proceeding is inadequate because of its summary nature was to this Court's satisfaction laid to rest in A. O. Smith, supra, at 68, 144-45 where the court stated:

We may begin by conceding that the scope of discovery in a summary enforcement proceeding might be different from that in plenary suit, just as it might be different if the suit were heard in district A instead of district B or before Judge X instead of Judge Y. However, we could hardly elevate such a speculative and fortuitous procedural variance to the status of irreparable harm without seriously-perhaps irreparably undermining the salutary limitation that concept places on the exercise of the injunctive power.

Thus we conclude that the pending enforcement action provides plaintiff with an adequate judicial remedy and it is in the interest of justice to transfer this suit. The motions of defendants to dismiss or in the alternative to transfer under 18 U. S. C. $ 1404(a) or to stay this action are hereby denied as the motion to transfer pursuant to 18 U. S. C. § 1406(a) is granted. Plaintiff's request for injunctive relief against the Commission's proceeding against it in the enforcement proceeding is moot due to the above disposition of this case.

We recognize that under § 1406(a) on plaintiff's motion, transfer to the Eastern District of Pennsylvania is an alternative open to the Court, since plaintiff's principal-place of business is in that District and it is, therefore, a District in which the action could have been brought. From what we have said, it is clear that on the record before us we have concluded it would be in the interests of justice to transfer the case to the District Court for the District of Columbia. Hence, an order is being entered simultaneously with this opinion directing such transfer. However, this is without prejudice to the right of the plaintiff to move for reconsideration of the order and to request transfer to the Eastern District of Pennsylvania instead of the District Court for the District of Columbia.

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