(dissenting).
A restatement of the course of the administrative and judicial proceedings in this controversy is necessary to make clear the basis of my disagreement with the majority opinion.
Pursuant to an appropriate complaint, a hearing examiner of the Federal Trade Commission conducted a lengthy inquiry addressed to the question whether defendant Vulcanized Rubber & Plastics Co. was deceiving the public by labeling combs of its manufacture as “rubber” or “hard rubber” when the combs were in fact made of a patented compound con*261taining 13% synthetic rubber, 85% resin and 2% coloring. The government’s evidence indicated that the names “rubber” and “hard rubber” meant and connoted vulcanized hard rubber and nothing else. The compound used by defendant was described in its patent and in this proceeding as “rubber-resin”. Indeed, in the report of the hearing examiner, whose findings were adopted by the Commission, the designation “rubber-resin” is used twice to describe the material of defendant’s combs. There was not even an intimation in the record that such a designation was either inaccurate or deceptive. It was solely the use of the labels “rubber” and “hard rubber” which was challenged as misleading. Concluding that such designation would mislead the public, the Commission ordered the defendant to cease and desist “from representing, directly or by implication * * * that such combs are ‘rubber’ or ‘hard rubber’ or made of ‘rubber’ or ‘hard rubber’ unless such combs are of fact made of vulcanized hard rubber”.
In the light of the matter actually litigated and the recognition by the hearing examiner that defendant’s combs were in fact “rubber-resin”, it is significant that in the Commission’s order the words “rubber” and “hard rubber” are placed within quotation marks. This is an additional indication that the proceeding was solely concerned with and directed at the use of the designations “rubber” and “hard rubber”.
Such being the circumstances and the apparent coverage of the Commission’s cease and desist order, the defendant, after receiving the order, apprised the Commission that it was complying with its mandate by designating and describing its combs as “rubber-resin”. The Commission replied that it rejected this report and considered the designation “rubber-resin” a violation of its order.
The defendant then sought a judicial ruling on this controversy by filing its petition to review the cease and desist order.1 In issue were the scope and effect of the order and whether the restraint it imposed was warranted by the complaint and record before the Commission. After hearing, the court filed a per curiam decision dismissing the appeal. Vulcanized Rubber & Plastics Co. v. Federal Trade Commission, 1958, 103 U.S.App.D.C. 384, 258 F.2d 684. In so doing it distinguished the Commission’s “interpretation” from the order “as written”, stated that defendant’s quarrel was with the former rather than the latter, and refused to adjudicate that controversy. Analytically, this unusual ruling must have been based upon an intermediate conclusion that the order “as written” did not make illegal the use of the designation “rubber-resin” for the defendant’s combs. For obviously, if it did, the petition challenged the order “as written”.
Thereafter, the Commission brought the present action in the Eastern District of Pennsylvania for civil penalties and obtained a decision that defendant’s use of “rubber-resin” violates the very order which the District of Columbia Court of Appeals had examined and found not even to have been challenged in the controversy over the use of “rubber-resin”.
Thus, the defendant is now in this position. It is held to have violated an order by using a label — “rubber-resin” —which under the ruling of the District of Columbia court was not forbidden by the order as written. Moreover, the defendant, which never had an opportunity before the Commission or on direct appeal from its order to have a hearing on the question whether the description “rubber-resin” suggests some vulcanized hard rubber content or is otherwise de*262ceptive, cannot have that issue litigated now because this is a collateral proceeding in which merely the meaning of the order, rather than its justification on the administrative record, can be litigated.
Administrative and judicial processes should not combine to impose such a dilemma upon a party. I see no way to solve this problem fairly except to hold that the ruling of the court below was inconsistent with the decision of the Court of Appeals for the District of Columbia and, therefore, precluded by it. This would make it necessary for the Commission to challenge the defendant’s use of “rubber-resin” as deceptive in a new administrative proceeding, thus affording the defendant for the first time an opportunity to contest that issue.
Accordingly, I would reverse the decision of the District Court.
. The amended petition for review alleged that the Commission’s cease and desist “order is arbitrary and capricious in that it prohibits petitioner from representing that combs sold and distributed by it * * * are ‘rubber-resin’ when such is the fact.” Opposing that position, the Commission did not dispute the alleged coverage of the order, but rather defended the prohibition of the designation “rubber-resin” as proper.