(concurring).
I concur in my brother Pell’s opinion; however, I wish to add a few words of my own supporting the result we reach.
Panogen, the accused product, helps to prevent diseases affecting planted seeds of wheat, oats, cotton, and sorghum crops. There is no available substitute for the liquid methylmercury contained in Panogen that is as economical and efficacious for the treatment of these crop seeds. Panogen has been on the market since 1949 and, so far as the record shows, has been used safely during all that time.
The Alamogordo incident was a freak occurrence, the result of the combined negligence of the granary where the seed was treated and the head of the afflicted family. The tragic events came about through misuse rather than normal use of the treated grain. Accordingly, the district court correctly concluded, in my opinion, that the suspension order, based on this single, abnormal incident, was an arbitrary exercise of the Secretary’s emergency authority under the statute.
I agree with Judge Bazelon in Environmental Defense Fund v. Hardin (D. C.Cir.1970) 428 F.2d 1098), when he said as to a converse but analogous problem in reference to the Act in question: “Preclusion of judicial review [of a decision on emergency suspension] is not lightly to be inferred * * *; it requires a showing of clear evidence of legislative intent. That evidence cannot be found in the mere fact that a statute is drafted in permissive rather than mandatory terms. Although the FIFRA [Federal Insecticide, Fungicide and Rodenticide Act] provides that the Secretary ‘may’ suspend the registration of an economic poison that creates an imminent hazard to the public, we conclude that his decision is not thereby placed beyond judicial scrutiny."
Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), although dealing with the preenforcement review of a regulation under the Federal Food, Drug and Cosmetic Act, supports reviewability of the emergency suspension order in the case before us. There the Supreme Court said: “[A] survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress,” supra, at 140, 87 S.Ct. at 1511. Then adverting to the Administrative Procedure Act the Court said, “ * * * [that Act] provides specifically not only for review of ‘[a]geney action made reviewable by statute’ but also for review of ‘final agency action for which there is no other adequate remedy in a court.’ 5 U.S.C. § 704.” Supra at 140, 87 S.Ct. at 1511. Finally, the Court reaffirmed its view expressed in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809 (1962), that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Supra at 141, 87 S.Ct. at 1511. Neither the briefs nor the oral arguments point to any “clear and convincing” evidence that Congress intended that arbitrary exercise of the Secretary’s emergency suspension authority under the Act should be beyond judicial correction.
The Secretary’s contention that the district court lacked jurisdiction because Nor-Am failed to exhaust the administrative remedies available to it does not survive analysis. The emergency sus*1147pension order was final administrative action in that it became effective immediately upon its issuance. The Act provides for no administrative review of that order in a “pragmatic way.” Abbott Laboratories v. Gardner, supra at 149, 87 S.Ct. 1507. The expedited hearing provided by the Act following an emergency suspension contemplates a hearing before an advisory committee on whether “[t]he Secretary, in accordance with the procedures specified herein, may suspend or cancel the registration of an economic poison whenever it does not appear that the article or its labeling or other material required to be submitted complies with the provisions of this Act.” Such a proceeding is meaningless as a remedy to correct an arbitrary emergency suspension ordered issued without the benefit of a prior hearing before the agency. It provides no remedy for the irreparable injury which naturally flows from a suspension based on an abuse of the Secretary’s discretion.
If it should be thought that Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950), restricts judicial review of the Secretary’s action in this case, Abbott Laboratories has blunted the drastic implications which seem to accompany the Ewing decision. As pointed out in Abbott Laboratories “the determination of probable cause in Ewing [had] 'no effect in and of itself,’ 339 U.S., at 598 [70 S.Ct., at 872]; only some action consequent upon such a finding could give it legal life.” Supra at 147, 87 S.Ct. at 1515. In contrast, the suspension order of the Secretary in the case before us was not a preliminary finding having “no effect in and of itself.” Rather, it brought about the effective and immediate cessation of Nor-Am’s business.