(dissenting).
With all respect, I am compelled to dissent. I agree that preclusion of judicial review of administrative action adjudieating private rights is not lightly to be inferred. Barlow v. Collins, 397 U.S. 159, 166, 90 S.Ct. 832, 25 L.Ed.2d 192; see also Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184. The issues presented by this appeal are, however, the proper time and forum for judicial review. Here both the clear command and purpose of the Federal Insecticide, Fungicide and Rodenticide Act preclude even this limited judicial review at this stage in the proceedings, by either the district court or the Court of Appeals. In light of the mandate of Congress and the interests at stake, I would require the completion of the administrative adjudication before permitting recourse to the courts.
The fundamental provisions of judicial review of administrative actions are contained in the 1946 Administrative Procedure Act (5 U.S.C. § 701 et seq.). Section 10(c) of the APA governs which actions shall be reviewable:
“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action. * * *” 5 U.S.C. § 704.
Included in the concept of the “finality” of an agency order is the requirement that the administrative process be completed and recourse to administrative remedies exhausted as a precondition to recourse to judicial relief. See generally Davis, Administrative Law Treatise, § 20.01 et seq. (1958 ed., 1965 Supp.); Jaffe, Judicial Control of Administrative Action, pp. 424-458 (1965). The principles underlying the development of this doctrine have long been settled. In Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767-768, 67 S.Ct. 1493, 1500, 91 L.Ed. 1796, the Court stated that
“The very purpose of providing either an exclusive or an initial and pre*1148liminary administrative determination is to secure the administrative judgment either, in the one case, in substitution for judicial decision or, in the other, as foundation for or perchance to make unnecessary later judicial proceedings. Where Congress has clearly commanded that administrative judgment be taken initially or exclusively, the courts have no lawful function to anticipate the administrative decision with their own, whether or not when it has been rendered they may intervene either in presumed accordance with Congress’ will or because, for constitutional reasons, its will to exclude them has been exerted in an invalid manner. To do this not only would contravene the will of Congress as a matter of restricting or deferring judicial action. It would nullify the congressional objects in providing the administrative determination. In this case these include securing uniformity of administrative policy and disposition, expertness of judgment, and finality in determination, at least of those things which Congress intended to and could commit to such agencies for final decision.”
These considerations are equally applicable to the emergency action taken by the Secretary in this case.
The 1964 amendments to the Federal Insecticide, Fungicide and Rodenticide Act (Pub.L. 88-305, 88th Cong., 2nd Sess.) greatly strengthened the ability of the Secretary of Agriculture to take affirmative action protecting the public from hazardous and mislabeled commodities. Congress enacted new powers to prevent, suspend and revoke registrations where previously the Secretary had been compelled to accede to registration under protest should he be faced with an adamant demand. Congress additionally extended the well-established administrative discretion of emergency action in the face of “an imminent hazard to the public.” 7 U.S.C. § 135b (c). In almost the same breath, however, Congress recognized the need for prompt determination of the accuracy of the Secretary’s judgment and provided that in the wake of an emergency suspension the Secretary should
“give the registrant prompt notice of such action and afford the registrant the opportunity to have the matter submitted to an advisory committee and for an expedited hearing under this section. Final orders of the Secretary under this section shall be subject to judicial review, in accordance with the provisions of subsection d. * * * ” 7 U.S.C. § 135b(c).
At the same time, Congress enacted Section 135b(d) governing judicial review of the Secretary’s orders regarding registration of “economic poisons”:
“(d) In a ease of actual controversy as to the validity of any order under this section, any person who will be adversely affected by such order may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has his principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit, within sixty days after the entry of such order, a petition praying that the order be set aside in whole or in part. * * * The findings of the Secretary with respect to questions of fact shall be sustained if supported by substantial evidence when considered on the record as a whole, including any report and recommendation of an advisory committee. * * * The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. The court shall advance on the docket and expedite the disposition of all causes filed therein pursuant to this section.”
These provisions outline the procedures, forum, and standards for judicial review. There is no basis for reading into the reference to “any order” an implication that Congress intended to expand the scope of reviewable orders and permit immediate recourse to the courts without prior exhaustion of administrative remedies. In subsection (c) Con*1149gress specified which orders were to be reviewed by stating that “[f]inal orders of the Secretary under this section shall be subject to judicial review, in accordance with the provisions of subsection d.” The language of Section 135b(d) must be construed in light of that directive.
Equally unacceptable is the contention that the emergency suspension order is susceptible to construction as a “final” order of the agency made reviewable by either the specific provisions of Section 135b (e) or through the broad authorization of Section 10(c) of the Administrative Procedure Act (5 U.S.C. § 704). The evident procedural scheme of the 1964 statute itself militates against such a construction. The statute expressly provides for special adjudicatory procedures to follow suspension. Emergency suspension, in every real sense, initiates rather than culminates the course of administrative activity. Furthermore, the statute calls for judicial review by the courts of appeals, not district courts. This review is to be based upon the findings of the agency resulting from its own factual deliberations and the application of its administrative expertise. Such provisions with respect to judicial review are classic indications that Congress required an administrative adjudication to precede judicial scrutiny. The provision in Section 135b(c) for a report and recommendation of an advisory committee also supports the conclusion that the administrative processes must be strictly observed.
There are no discernible “pragmatic” considerations of policy or purpose to support describing this preliminary discretionary action as a “final order.” The functional approach to the definition of finality suggested by the Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, should not obscure the clear procedural scheme delineated in the statute. Abbott Laboratories, like the earlier decisions relied upon by the Court, involved the need for essentially declaratory review of agency rules and regulations which themselves represented the culmination of administrative legislation.” Entirely different considerations are operative where, as here, judicial review is sought from an order initiating adjudicatory proceedings by the agency. This distinction was expressly recognized by the Court in Abbott Laboratories when it distinguished Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, by noting that the
“drug manufacturer in Ewing was quite obviously seeking an unheard-of form of relief which, if allowed, would have permitted interference in the early stages of an administrative determination as to specific facts, and would have prevented the regular operation of the seizure procedures established by the Act.” 387 U.S. at p. 148, 87 S.Ct. at 1515.
The emergency suspension of the registration of an economic poison under Section 135b (c), like the seizure of articles scrutinized in Ewing, represents a highly discretionary administrative initiation of proceedings. Precipitant judicial review of such a tentative judgment would at best be a difficult matter of dubious social benefit. More important, it strains administrative resources at a stage in the process which is most delicate and to a degree which may ultimately be rendered unnecessary by ordinary agency operations. Even the limited review here contemplated nullifies the need or utility of the further agency action desired by Congress. As this record demonstrates, judicial review at this stage requires factual elaboration by the district court. Such bifurcation and .duplication of governmental resources and efforts demonstrate the unwisdom of early judicial review. Once the district court has inserted itself into the process, it would seem wasteful or pointless to return the matter to the agency. Even limited judicial scrutiny of the accuracy and correctness of the Secretary’s emergency suspension of registration largely abrogates need of expedition of further agency proceedings. At the very least, however, the *1150agency must postpone its further proceedings (even if it plans ultimately to expedite them) pending the outcome of judicial review. Not only may this aggravate the harm suffered by the innocent registrant by prolonging litigation, it unnecessarily encumbers governmental efforts and may have the adverse effect of coloring further agency actions.
Nor can I accept the verdict of the judge below that the administrative remedies are inadequate as safeguards against irreparable injury to the innocent citizen. There is no reason to believe- the administrative agency incapable of correcting an erroneous suspension without aid of the courts. There is no basis for concluding that expedition by the agency would be any less effective than expedition by the judiciary. Indeed, the expertise of the agency might well render it more adept at rectifying abuses in its suspension orders than courts. Unlike Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, plaintiff can enforce its rights as a practical matter without judicial interruption of agency practices. Nothing in the nature of the objection raised by plaintiff in this case suggests that exhaustion of agency remedies would be an exercise in futility. Cf. MeKart v. United States, 395 U.S. 185, 197-198, 89 S. Ct. 1657, 23 L.Ed.2d 194; Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507. Failure of the courts to entertain the complaint at this time does not foreclose judicial review entirely. See Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; cf. McKart v. United States, supra, U.S. 395 at p. 197, 87 S.Ct. 1657.
The rule that administrative remedies may be by-passed only when inadequate
to protect strong private interests from irreparable harm
“is not one of mere convenience or ready application. Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action, or in advance of it, a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm, to permit short-circuiting the administrative process. Congress’ commands for judicial restraint in this respect are not lightly to be disregarded.” Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773-774, 67 S.Ct. 1493,1503.
In Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51, 58 S.Ct. 459, 463, 82 L.Ed. 638, Justice Brandéis, speaking for the Court, observed that
“the rule requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage.”
I do not demean plaintiff’s possible losses when noting that the temporary suspension has affected business profits, not the very existence of the commodities plaintiff seeks to sell. In any case, where, as here, public health and safety demand emergency removal of a commodity from the market, even unrecoverable financial losses incurred pendente lite must be deemed an expense of the litigation itself. Cf. Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S. Ct. 870, 94 L.Ed. 1088; Adams v. Nagle, 303 U.S. 532, 58 S.Ct. 687, 82 L.Ed. 999 *
*1151From these considerations, it is apparent that the district court improperly assumed jurisdiction to grant relief in this case. Congress balanced the public and private interests in fashioning not only the Secretary’s discretionary power to suspend registration but also the administrative procedures to follow exercise of that power. Congress was not bound to supply the optimal protection to registrants affected by emergency suspensions. It created an adequate system of administrative and ultimate judicial remedies which the district court simply ignored. As the Court .concluded in Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 601-602,70 S.Ct. 870, 873:
“The purpose of the * * * provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of [suspensions], and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by [suspension]. * * * What we do today determines the jurisdiction of the District Court in all cases in that category. If the court in the present case can halt all [suspensions] but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of [suspension]. We would impair or destroy the effectiveness of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail.”
I would reverse and dismiss this complaint.
The language o£ . these and other cases strongly suggest that the administrative exercise of emergency powers is amenable to treatment as necessarily “committed to agency discretion” and therefore within the exception of Section 10 of the APA and not subject to judicial review. See 5 U.S.C. § 701(a) (2).
In Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C.Oir. 1970), the Secretary had refused to exereise his discretionary powers and the court of appeals awarded relief in the nature of mandamus. But administrative refusals to exercise discretionary powers have frequently been treated as within the aforesaid exception, rather than looked upon as involving issues of “finality” and “exhaustion,” because the refusal to act in fact represents agency disposition of a matter. See generally, Saferstein, Nonreviewability: A Functional Analysis of *1151“Committed to Agency Discretion,” 82 Harv.L.Rev. 367 (1968). In any event, whether the refusal of the Secretary of Agriculture to exercise his emergency powers constitutes a final, reviewable order does not indicate that the actual exercise of the power should be similarly treated by courts when asked to intervene on behalf of disgruntled registrants. Certainly the practical considerations pressing for or against judicial action differ greatly depending upon the kind of decision rendered by the Secretary.