(dissenting).
I. INTRODUCTION
This case arises under the National Traffic and Motor Vehicle Safety Act of 1966 (the “Act”), 80 Stat. 718, 15 U.S.C. § 1381 et seq., as amended by the Motor Vehicle and Schoolbus Safety Amendments of 1974, 83 Stat. 1470. A three judge court has been convened pursuant to 28 U.S.C. § 2282-2284 (1970) to examine Plaintiff Ford Motor Company’s complaint which seeks to have this court declare invalid and restrain the enforcement, operation and execution of certain penalty provisions of the Act as amended in 1974 on the grounds that these provisions are repugnant to the due process clause of the Fifth Amendment of the Constitution of the United States. Ford does not seek to nullify the Act but rather seeks only to restrain the operation of the penalty provisions which Ford argues are designed to coerce motor vehicle manufacturers into foregoing their right to judicial review of notification orders of the National Highway Traffic Safety Administration (NHTSA), orders which Ford contends are issued without adherence to the requirements of due process. Defendant William T. Coleman is Secretary of Transportation and is charged with responsibility for administration of the Act. Defendant James B. Gregory is the Administrator of NHTSA, to whom the Secretary of Transportation has delegated his responsibilities under the Act. Defendant Edward H. Levi is the Attorney General of the United States. Under the Act he is authorized to bring suit in the name of the United States against Ford Motor Company on the request of the Secretary of Transportation and the Administrator of NHTSA. The United States of America is named as a defendant since any suit brought against Ford under the Act would be brought in the name of the United States. Jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1337 (1970).
The defendants have opposed the declaratory and injunctive relief sought by Plaintiff Ford and have moved to dismiss the action. Defendants argue that the exclusive remedy for a stay of the civil penalties is that provided by section 155(c)(1) of the Act as amended, 15 U.S.C. § 1415(e)(1). Defendants further argue that pre-enforcement judicial review should not be permitted and that the plaintiff has failed to demonstrate a probability of success on the merits as to the charge of a safety-related defect and that the plaintiff has failed to satisfy any of the other prerequisites for injunctive relief. What defendants’ contentions ignore, however, is the fact that Ford does not seek to stay the Act’s civil penalties until the conclusion of the enforcement action brought against Ford by the United States in a separate case (Civil Action No. 75-1345). Rather, Ford seeks to have those very civil penalty provisions declared unconstitutional. For reasons which will follow I would grant Ford’s requested relief.
II. THE STATUTE AS AMENDED
The framework of the Act as amended creates a substantial obstacle to the manufacturer who challenges a determination of the NHTSA Administrator. Section 152, 15 U.S.C. § 1412, provides that if, after testing, inspection and research, the Secretary of Transportation determines that any motor vehicle contains a safety-related defect, he shall notify the manufacturer of this determination and include in the notification all of the information upon which the determination was based. Further the Secretary shall afford the manufacturer an opportunity to present data, views and arguments to establish that there is no defect or that the alleged defect does not *492affect motor vehicle safety. If, after the manufacturer’s presentation, the Secretary determines that the vehicle contains a safety-related defect, then he shall order the manufacturer to furnish notification to owners, purchasers and dealers concerning the defect and to remedy the defect. This notification, as provided in section 153 of the Act as amended, 15 U.S.C. § 1413, must contain a description of the defect; an evaluation of the risk it causes; a statement of the measures to be taken to remedy the defect; a statement that the manufacturer will remedy the defect without charge; the earliest date on which the defect will be remedied; and a description of the procedure to be followed by the recipient in informing the Secretary whenever a manufacturer, dealer or distributor fails or is unable to remedy the defect without charge. This notification must be furnished within a reasonable time, prescribed by the Secretary, after the manufacturer receives notice of the Secretary’s determination of a safety-related defect and the notification must be sent by first class mail to each person who is registered under state law as the owner of a subject vehicle and whose name and address is reasonably ascertainable by the manufacturer through state records. Section 154 of the Act as amended, 15 U.S.C. § 1414, further requires that, in any case where notification is required under section 152, the manufacturer of the vehicle containing a safety-related defect must remedy the defect without charge.1
Section 108 of the Act as amended, 15 U.S.C. § 1397, provides that no persons shall fail to furnish notification or remedy any defect or fail to comply with any order applicable to any manufacturer. Section 109, 15 U.S.C. § 1398, provides that, for any violation of section 108’s mandate,- the violator will be subject to a civil penalty not to exceed $1000 for each violation with the maximum penalty for any related series of violations set at $800,000. Consequently, a manufacturer who receives notice that the Secretary of Transportation has determined that a safety-related defect exists in the manufacturer’s vehicle and that the Secretary orders the manufacturer to notify owners and purchasers of the subject vehicle that a safety-related defect exists and that the manufacturer will remedy the defect without charge must comply with such order or face a fine of up to $800,000 depending on the number of defective vehicles involved. Section 155(c)(1), 15 U.S.C. § 1415(c)(1), provides that if the manufacturer fails to notify owners or purchasers, the court may hold him liable for the civil penalty unless the manufacturer prevails in an enforcement action brought under section 155(a), 15 U.S.C. § 1415(a), or unless the court in the enforcement action restrains the enforcement of the notification order, in which case the manufacturer is not liable for any period during which the effectiveness of the order was stayed. However, the court may restrain enforcement of the notification order only if it determines that the manufacturer has demonstrated that the failure to furnish the notification was reasonable and that he is likely to prevail on the merits.
Furthermore, section 155(b) of the Act as amended, 15 U.S.C. § 1415(b), exposes the manufacturer to an additional civil penalty of up to $800,000. Section 155(b) states that in an enforcement action relating to a notification order issued under section 152, 15 U.S.C. § 1412, the Secretary may order the manufacturer to issue a provisional notification to owners and purchasers of the subject vehicles. This provisional notification must contain a statement that the Secretary has determined that a safety-related defect exists and that the manufacturer is contesting this determination in court; a clear description of *493the Secretary’s stated basis for his determination that a safety-related defect exists; the Secretary’s evaluation of the risk to motor vehicle safety reasonably related to the defect; any measures necessary to avoid unreasonable hazard; and a statement that the manufacturer will remedy the defect without charge if the Secretary prevails in the court proceeding. Issuance of this provisional notification under section 155(b), 15 U. S.C. § 1415(b), does not relieve the manufacturer of any liability for failing to issue the notification required by section 152, 15 U.S.C. § 1412. Furthermore, under section 155(c)(2), 15 U.S.C. § 1415(c)(2), if the manufacturer fails to send the provisional notification required by section 155(b), 15 U.S.C. § 1415(b), he may be held liable for a civil penalty regardless of whether or not he prevails in the enforcement action in which the manufacturer challenges the validity of the Secretary’s determination of a safety-related defect.
Essentially this statute provides for an informal administrative hearing lacking in procedural due process safeguards. Predicated on the administrative determination of a safety-related defect, arrived at from the informal proceeding, are the initial notification and remedy order and the provisional notification order and resultant civil penalties for violations of either order. The manufacturer may avoid the initial civil penalties by prevailing on the merits in an enforcement action. However, if his challenge to the validity of the agency determination fails, he is subject to those civil penalties. It is at this initial order stage that the statute first fails to meet Fifth Amendment due process requirements since the manufacturer must either comply with the initial notification and remedy order and thereby expend very substantial sums of money pursuant to an untested agency determination, or challenge the determination on the merits in an enforcement action and risk the sanctions of substantial civil penalties if he ultimately loses in that suit. These initial civil penalties are not automatically stayed by a manufacturer’s challenge to the agency determination in an enforcement action in federal court. Indeed, the manufacturer is liable for the civil penalties unless he prevails in the enforcement action or unless the court preliminarily restrains the initial notification order, and the court may provide such restraint only if the manufacturer demonstrates that his failure to furnish the notification was reasonable and that he is likely to prevail on the merits. Thus, preliminarily at least, the burden of proof in the enforcement action brought by the government to prove that a safety-related defect exists shifts to the manufacturer for purposes of avoiding civil liability for violation of the very order challenged. Therefore, the manufacturer must demonstrate the merits of his arguments by a preponderance of evidence. The most accepted meaning given to this elusive concept is “proof which leads the jury to find that the existence of the contested fact is more probable than its non-existence.” McCormick, Evidence 794 (2d ed. 1972). The majority’s assertion, therefore, that the manufacturer could prevail preliminarily in the enforcement action and thus stay the civil penalties merely by demonstrating that their proof was in equipoise with the government’s proof runs afoul of the plain and accepted meaning of burden of proof and the specific words of the statute. The law is and has always been that where the proof is in equipoise the party who has the burden of proof has not met that burden and cannot prevail. Nor do the words of the statute provide that the manufacturer must only mount such evidence as meets the government’s submission. I would find this initial procedure of notification and resultant civil penalties unconstitutional because it operates to discourage and deter judicial review of administrative action by placing a high price on access to the courts.
Also predicated on the informal administrative hearing is the provisional notification requirement which, with its concomitant civil penalties, applies re*494gardless of the ultimate disposition of the manufacturer’s challenge. The sanctions of up to $800,000 for violation of the provisional notification order are identical to those triggered by violation of the initial notification and remedy order. The manufacturer is at this point deprived of his property without due process for a second time. The manufacturer faces a civil penalty of up to $800,000 for failing to comply with this provisional notification order which is based on a proceeding which did not adequately permit him to answer and counter charges made by the agency, which is applied without judicial approval, and which is imposed whether or not the manufacturer ultimately prevails on the merits. Such a summary action born of an informal proceeding and untouched by the light of judicial review cannot survive tests required by the due process clause of the Fifth Amendment, and so I would hold it unconstitutional.
III. THE AGENCY PROCEEDING AND PROVISIONAL NOTIFICATION
Section 152(a) (2) of the Act as amended, 15 U.S.C. § 1412(a)(2), provides that the “Secretary shall afford such manufacturer an opportunity to present data, views, and arguments to establish that there is no defect or failure to comply or that the alleged defect does not affect motor vehicle safety.” Section 152(b), 15 U.S.C. § 1412(b), provides that “[i]f, after such presentations by the manufacturer . . . , the Secretary determines that such vehicle . does not comply with an applicable Federal motor vehicle safety standard, or contains a defect which relates to motor vehicle safety, the Secretary shall order the manufacturer (1) to furnish notification respecting such vehicle to owners, purchasers, and dealers . . . and (2) to remedy such defect or failure to comply . .” On April 22, 1975 the Plaintiff, Ford Motor Company, was afforded the opportunity to present its views in response to NHTSA’s initial determination of March 13, 1975 that a safety-related defect existed in the front seat back pins of 1968 and 1969 model year Mustangs and Cougars, of which there are approximately 625,000 still in use in the United States. The NHTSA staff did not present any sworn testimony. No complainants were called to testify. Ford was not granted the right or the opportunity to cross-examine any of the witnesses who testified against Ford. And under the agency’s rules Ford did not have the power to subpoena adverse parties or persons who would testify in its behalf. In short, the agency proceeding was informal. On August 12, 1975 NHTSA notified Ford by letter that the agency had determined the existence of a safety-related defect and ordered Ford to send the notice of the NHTSA determination to the present owners of the automobiles in question and to replace the seat pins free of charge to the owners. Ford estimates the cost of compliance with this order at $19 million, and the cost of sending the provisional notification at $500,000.
The agency hearing itself troubles me greatly since it was an informal proceeding which did not accord the manufacturer the basic incidents of procedural due process and yet subsequently exposed the manufacturer to substantial civil penalties as a result of the agency determination derived from the proceeding. Several fundamental aspects of procedural due process were lacking in the agency hearing, such as “the right to confront and cross-examine witnesses.” Jenkins v. McKeithen, 395 U.S. 411, 428, 89 S.Ct. 1843, 1852, 23 L.Ed.2d 404 (1969); Willner v. Committee on Character and Fitness, 373 U.S. 96, 103-04, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) (procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood); Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) the requirements of cross-examination and confrontation apply in cases where administrative and regulatory actions are *495under scrutiny). So also is the right to present evidence “essential to the fair hearing required by the Due Process Clause.” And this must perforce include the “right to present oral testimony from other witnesses and the power to compel attendance of those witnesses.” Jenkins v. McKeithen, supra, at 429, 89 S.Ct. at 1853. As the Jenkins court stated, “We do not mean to say that the Commission may not impose reasonable restrictions on the number of witnesses and on the substance of their testimony; we only hold that a person’s right to present his ease should not be left to the unfettered discretion of the Commission.” Id. This is particularly true in the case at bar since the consequence of the agency’s determination is exposure to substantial civil penalties for noncompliance with the order or to a substantial expenditure of the manufacturer’s own funds if it complies with the order. The remarks of the Supreme Court in Morgan v. United States, 304 U.S. 1, 14-15, 58 S.Ct. 773, 775, 82 L.Ed. 1129 (1938), are particularly appropriate in this context:
The vast expansion of this field of administrative regulation in response to the pressure of social needs is made possible under our system by adherence to the basic principles that the legislature shall appropriately determine the standards of administrative action and that in administrative proceedings of a quasi-judicial character the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. These demand “a fair and open hearing,” essential alike to the legal validity of the administrative regulation and to the maintenance of public confidence in the value and soundness of this important governmental process.2
The legislative history of the amendments indicates that the absence of due process elements at the agency level was no accident. Indeed, the Conference Report on the bill which became the 1974 amendments rejected the Senate’s proposal which would have required the Secretary of Transportation to provide the manufacturer with “a statement of his reasons and basis for the findings of a safety-related defect” and would have granted the manufacturer a limited right of cross-examination. H.R.Rep. No. 93-1452, 93d Cong., 2d Sess. 24 (1974), 1974 U.S.Code Cong. & Admin. News 6084.
The troubling aspect of this administrative procedure is that, on the Administrator’s determination, derived from an informal hearing, the manufacturer is exposed first to civil penalties of up to $800,000 for failure to comply with the initial notification order, and second, to civil penalties of up to $800,000 for failure to comply with an order to send the provisional notification. Now it is true that the manufacturer may prevail at the preliminary injunction stage and avoid the initial civil penalties for the period during which the notification order was stayed. And, of course, if the manufacturer ultimately prevails in the enforcement action, he will avoid these civil penalties.2 3 However, even if the manufacturer ultimately prevails on the merits in the enforcement action, he may still be liable for civil penalties of up to $800,000 for failure to comply with the provisional notification portion of the statute. This provision cannot stand for it imposes civil penalties solely on the basis of an informal administrative proceeding lacking in due process protections, totally untested in a judicial forum. Essentially the manufacturer is exposed to a deprivation of property based on an administrative determination where due process rights were not granted and without an opportunity for judicial review of the validity of the de*496termination prior to the deprivation of property. As if to add insult to injury, the provisional notification section of the statute applies civil penalties for failure to comply regardless of the outcome of the enforcement action, despite the fact that the manufacturer might well prevail. I do not think that it is premature to pass on the validity of the provisional notification provision. The government has already filed the enforcement action in this court and there is no indication by the government that it will not seek to invoke the provisional notification requirement of the statute.
The provisional notification section of the statute contravenes the Fifth Amendment because it works a deprivation of property without due process of law insofar as its application is based on the informal administrative proceeding discussed earlier and insofar as it denies the manufacturer the right to a judicial examination of the merits of the agency determination before the civil penalties are imposed and thus before the manufacturer is deprived of his property. The Supreme Court stated this concept succinctly in Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1972):
If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.
Fuentes dealt with prejudgment replevin provisions in two state statutes. The issue was whether procedural due process required an opportunity for a hearing before the state authorized its agents to seize property in the possession of one person upon the application of another. The court invalidated both statutes and stated that the “constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions.” Id. at 80, 92 S.Ct. at 1994. The court went on to state that:
“This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing “appropriate to the nature of the case” . . . and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any] . . . ” the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.4 Id. at 82, 92 S.Ct. at 1995 (citations omitted).
Thus the “root requirement” of due process is that an “individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Id. It is unlikely that the present set of facts poses such an extraordinary demand for compliance since the Department of Transportation has been aware of problems with the seat back pins since 1969. There are, of course, differences in the facts of the case at bar and Fuentes. But the impact of that decision is unmistakable. The Court has rejected prejudgment deprivations of property and that is precisely what Ford Motor Company as a manufacturer faces in this suit. No court has yet adjudged the validity of NHTSA’s determination that a safety-related defect exists in 1968 and 1969 Mustangs and Cougars. Notwithstanding this absence of judicial gloss, the manufacturer is liable for substantial civil penalties for challenging and failing to comply with this untested conclusion. Such an effect does not *497comport with the due process concepts expressed in Fuentes. Nor is it in line with the due process described in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The issue in Goldberg was whether a state which terminated public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination of his benefits denied the recipient procedural due process in violation of the Fourteenth Amendment. The court held that “due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.” Id. at 261, 90 S.Ct. at 1017. With respect to the civil penalties resulting from failure to comply with the provisional notification requirements of the statute, there is not even a “later constitutionally fair proceeding” to pass on the merits of failure to comply with provisional notification demands. The Act as amended summarily declares the provisional notification requirements and imposes sanctions for violations, all without granting the manufacturer a due process context within which to present his case, without regard for whether or not the manufacturer ultimately prevails on the merits and without judicial examination of the agency determination. The words of the Supreme Court in Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959) bear strongly on this point:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . but also in all types of cases where administrative and regulatory actions were under scrutiny. [Citatations omitted.]
Application of this statute’s provisional notification provision with the resultant civil penalty deprives the manufacturer of his due process right to challenge the validity of the agency determination before he suffers sanctions from it.
The case of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), also speaks to the concern for summary procedures which result in deprivation of property. In Sniadach the Court struck down a state procedure for prejudgment garnishment of wages. Wages were frozen on a creditor's request and remained frozen until trial was had and the wage earner prevailed on the merits. In the interim the wage earner was deprived of his enjoyment of earned wages without any opportunity to be heard and to tender a defense. In the case at bar, the provisional notification section of the statute provides for a similarly summary procedure with no chance to avoid civil penalties even if the manufacturer ultimately prevails on the merits in the enforcement. This places the manufacturer in a more untoward position than the garnishee in Sniadach.5 Application of the *498due process guarantees expressed in Fuentes and Sniadach has not been limited to individuals. Most recently the Supreme Court extended its ban on prejudgment garnishment to corporate funds in North Georgia, Finishing, Inc. v. Di-Chem,, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). In this case the bank account of a corporation was impounded and, absent a bond, put totally beyond use during the pendency of litigation involving an alleged indebtedness for goods sold and delivered. This was accomplished by a writ of garnishment issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer. The only method of dissolving the garnishment was for the defendant to file a bond to protect the plaintiff creditor, and in this way the defendant debtor could challenge the garnishment. The Supreme Court struck down this state statutory procedure stating:
It may be that consumers deprived of household appliances will more likely suffer irreparably than corporations deprived of bank accounts, but the probability of irreparable injury in the latter case is sufficiently great so that some procedures are necessary to guard against the risk of initial error. We are no more inclined now than we have been in the past to distinguish among different kinds of property in applying the Due Process Clause.
419 U.S. at 608, 95 S.Ct. at 723.
The provisional notification portion of the Act as amended cannot stand insofar as it summarily assigns civil penalties for failure to comply based on an administrative determination arrived at without procedural due process safeguards for the manufacturer, prior to judicial testing of the validity of the agency determination, and without regard for the ultimate disposition of the case. Therefore I would find the provision unconstitutional as contravening the due process clause of the Fifth Amendment.
IV. THE PENALTY PROVISIONS FOR VIOLATION OF THE ORDER TO NOTIFY AND REMEDY
Under section 152(b) of the Act as amended, 15 U.S.C. § 1412(b), the NHTSA Administrator may, after hearing the manufacturer’s presentation at the informal proceeding and determining the existence of a safety-related defect, order the manufacturer to notify owners, purchasers and dealers of the determination and to remedy the defect without charge. If the manufacturer fails to so notify owners or purchasers, he is liable for civil penalties of up to $800,000 under section 155(c)(1) of the Act as amended, 15 U.S.C. § 1415(c)(1). The only statutory method prescribed for avoiding such civil penalties lies in a challenge to the agency determination of a safety-related defect in an enforcement proceeding brought by the government after the manufacturer refuses to comply with the notification and remedy order issued pursuant to section 152(b), 15 U.S.C. § 1412(b). Constitutional difficulties arise because the civil penalties are not stayed during the pendency of the enforcement litigation and are in fact only imposed if the manufacturer loses the suit. Preliminarily the court may restrain the enforcement of the notification and remedy order in which case the manufacturer is not liable for any period during which the order was stayed. But the court may only preliminarily restrain the order if the manufacturer demonstrates that his failure to furnish the notification was reasonable and that he is likely to prevail on the merits. This statutory framework locks the manufacturer in a difficult dilemma if he feels the agency determination was not correct. He may capitulate and obey the order, thus incurring very substan*499tial expenditures to notify and remedy a defect which he may in good faith believe is not safety-related.6 Or he may choose not to comply with the order in which case he faces an enforcement suit which is essentially a trial de novo with the burden of proof on the government. United States v. General Motors Corp., 518 F.2d 420, at 426 (D.C.Cir., 1975). Under section 155(a)(1) of the Act as amended, 15 U.S.C. § 1415(a)(1), any action brought by the manufacturer challenging the order would be consolidated with the enforcement action. Concurrent with the trial de novo, of course, are the civil penalties provisions mentioned earlier, and the manufacturer risks imposition of these penalties if he challenges the agency determination in a judicial forum and is unsuccessful. This must of necessity create an apprehension in the mind of the manufacturer that indeed chills his access to the courts, for he knows that the penalty for losing the suit may be $800,000.7 Such a bar to federal courts will not be tolerated by the Due Process Clause of the Fifth Amendment, and such inhibiting provisions have been struck down by the Supreme Court many times.
The guiding principle in this area of access to federal courts is expressed in Life & Cas. Ins. Co. v. McCray, 291 U.S. 566, 54 S.Ct. 482, 78 L.Ed. 987 (1934). There the court upheld a state statute imposing a surcharge on insurance companies which failed to pay claims when demand was made within the time specified in the policies. The court noted that the insurer was not penalized for taking a controversy on the validity of the claim into court but was rather penalized for refusing to make payment in accordance with its contract and, further, the penalty was in an amount reasonably proportional to the loss or inconvenience likely to be suffered by the beneficiary of the policy. However, Mr. Justice Cardozo indicated that:
The price of error may be so heavy as to erect an unfair barrier against the endeavor of an honest litigant to obtain the judgment of a court. In that event, the Constitution intervenes and keeps the courtroom open.
291 U.S. at 574-75, 54 S.Ct. at 486.
The leading case in this point is Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Two Minnesota statutes were passed in 1907 which directed railroads in that state to establish certain rates for transportation of passengers and commodities. Violations of the passenger rate statute was a felony punishable by a fine of $5000 and 5 years imprisonment while violation of the commodities rates was a misdemean- or. Stockholders of a number of the railroad companies filed suit in federal court against their companies seeking to enjoin the railroad companies from publishing or adopting the rates set forth in the two Acts and to enjoin other defendants including state Attorney General Young from attempting to enforce the statutes by instituting any action against the railroad companies or their officers. The suits also alleged that the new rates were unjust, unreasonable and confiscatory and deprived them of their property without due process of law. The lower court restrained Attorney General Young from enforcing the penalties, and he violated the injunction by enforcing penalties against one of the railroad companies. Consequently, Young was adjudged in contempt of court by the lower court. The officers *500and directors of the railroad companies had declined to file suit to have the statutes declared illegal because of the severity of the penalties prescribed for violations and the “ruinous consequences which would inevitably result from failure on their part to obey the said laws and orders,- — a result which no action by themselves, their stockholders or directors, could possibly prevent.” Id. at 130, 28 S.Ct. at 445. The penalties were alleged to be “so drastic that no owner or operator of a railway property could invoke the jurisdiction of any court to test the validity thereof, except at the risk of confiscation of its property, and the imprisonment for long terms ... of its officers, agents and employees.” Id. at 131, 28 S.Ct. at 445. Thus the company was liable to be deprived of its property because it could only seek a judicial hearing on the unconstitutionality of the statutes at the risk, if mistaken, of being subjected to substantial penalties resulting in confiscation of its property, while obedience to the statutes might also result in the long run in the same confiscation by a slower process. Id. at 144-45, 28 S.Ct. 441. The Supreme Court held that the statutes were invalid on their face because of the penalties. Id.
The company, in order to test the validity of the acts, must find some agent or employé to disobey them at the risk stated. The necessary effect and result of such legislation must be to preclude a resort to the courts for the purpose of testing its validity. The officers and employé could not be expected to disobey any of the provisions of the acts or orders at the risk of such fines and penalties being imposed upon them, in case the court should decide that the law was valid. ... It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.
Id. at 145-7, 28 S.Ct. at 448-49.
The court rejected the suggestion that the proper method of testing the acts’ validity was disobedience:
To await proceedings against the company in a state court, grounded upon a disobedience of the act, and then, if necessary, obtain a review in this court by writ of error to the highest state court, would place the company in peril of large loss and its agents in great risks of fines and imprisonment if it should be finally determined that the act was valid. This risk the company ought not to be required to take. Over eleven thousand millions of dollars, it is estimated, are invested in railroad property, owned by many thousands of people . . . and they are entitled to equal protection from the laws and from the courts, with the owners of all other kinds of property, — no more, no less. The courts having jurisdiction, Federal or state, should, at all times, be open to them as well as to others, for the purpose of protecting their property and their legal rights.
209 U.S. at 165, 28 S.Ct. at 456.
The message of Ex parte Young is clear. Penalties cannot be employed by legislatures to inhibit judicial review of the validity of statutes or administrative determinations. This principle was followed in Oklahoma Operating Co. v. Love, 252 U.S. 331, 40 S.Ct. 338, 64 L. Ed. 596 (1920). There a corporation sued the state corporation commission seeking to enjoin the commission from enforcing its order limiting certain rates. Under a state statute there was no opportunity for judicial review of a legislative rate fixed by the commission except by way of defense to contempt proceedings. The penalty for disobeying a commission order was a fine of up to $500 per day. Relying on Ex parte *501Young, the court held the penalty-scheme unconstitutional:
[T]he only judicial review of an order fixing rates possible under the laws of the state was that arising in proceedings to punish for contempt. . . . By boldly violating an order a party against whom it was directed may provoke a complaint; and if the complaint results in a citation to show cause why he should not be punished for contempt, he may justify before the Commission by showing that the order violated was invalid, unjust or unreasonable. If he fails to satisfy the Commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties, which may possibly be imposed, if he pursues this course without success, are such as might well deter even the boldest and most confident. The penalty for refusal to obey an order may be $500; and each day’s continuance of the refusal after service of the order it is declared ‘shall be a separate offense.’ The penalty may apparently be imposed for each instance of violation of the order. Obviously a judical review beset by such deterrents does not satisfy the constitutional requirements, even if otherwise adequate, and therefore the provisions of the acts relating to the enforcement of the rates by penalties are unconstitutional without regard to the question of the sufficiency of those rates.
252 U.S. at 336-37, 40 S.Ct. at 340.
These cases point out the controlling rule of law for review of administrative orders in federal courts:
[T]he right to a judicial review must be substantial, adequate, and safely available; but that right is merely nominal and illusory if the party to be affected can appeal to the courts 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.
Wadley Southern Ry. v. Georgia, 235 U.S. 651, 661, 35 S.Ct. 214, 218, 59 L.Ed. 405 (1915).
In Wadley, the railroad, disputing an order of the Railroad Commission, chose not to comply with the order, thus placing it in violation of a statute which required compliance with every order of the Commission by persons subject to the public utility law. Violators were subject to a fine of $5000. Discussing cases involving penalties for violations of the legislative orders of commissions, including Ex parte Young,8 the court said:
These cases do not proceed upon the idea that there is any want of power to prescribe penalties heavy enough to compel obedience to administrative orders, but they are all based upon the fundamental proposition that under the Constitution penalties cannot be collected if they operate to deter an interested party from testing the validity of legislative rates or orders legislative in their nature.. Their legality is not apparent on the face of such orders, but depends on a showing of extrinsic facts. A statute, therefore, which imposes heavy penalties for violation of commands of an unascertained quality is, in its nature, somewhat akin to an ex post facto law, since it punishes for an act done when the legality of the command has not been authoritatively determined. Liability to a penalty for violation of such orders, before their validity has been determined, would put the party affected in a position where he himself must, at his own risk, pass upon the question. He must either obey what may finally be held to be a void order, or disobey what may ultimately be held to be a lawful order. If a statute could constitutionally impose heavy penalties for violation of commands of *502such disputable and uncertain legality, the result inevitably would be that the carrier would yield to void orders, rather than risk the enormous cumulative or confiscatory punishment that might be imposed if they should thereafter be declared to be valid.
235 U.S. at 662-63, 35 S.Ct. at 218.
In United States v. St. Regis Paper Co., 285 F.2d 607, 615 (2d Cir. 1960), aff’d, 368 U.S. 208, 82 S.Ct. 289, 7 L.Ed.2d 240 (1961), the court upheld a daily penalty provision in the Federal Trade Commission Act which was triggered by a corporation’s failure to submit a requested special annual report. The penalty provision was saved, however, only by the availability of the Declaratory Judgment Act and the Administrative Procedure Act which the court held would be available to the corporation in the pre-enforcement period. In the case at bar it does not appear that pre-enforcement review is available.9 Thus the Second Circuit’s remarks are apposite:
If judicial review were in fact limited to enforcement proceedings instituted by the Commission, and a daily forfeiture were collected for a failure to comply, the procedure might not meet the established standards of due process.
Cf. Oklahoma Operating Co. v. Love, 1920, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596, 285 F.2d at 615.
Finally, in United States v. Pacific Coast European Conference, 451 F.2d 712 (9th Cir. 1971), a suit brought by the government to assess statutory penalties against three shipping conferences for using unlawful dual-rate shipping contracts, the court of appeals, citing Oklahoma Operating Co. v. Love, Missouri Pacific Ry. Co. v. Nebraska and Ex parte Young, supra, and specifically relying on Wadley Southern Ry. Co. v. Georgia, supra, refused to apply the statutory penalty for non-compliance with the Shipping Act of 1961 during the time the defendants were judically testing the validity of that Act. The statutorily mandated fate of the defendant conferences in Pacific Coast during the pendency of their litigation was in a very real sense less burdensome than that faced by the manufacturer in the ease at bar. The conferences could either accept the Commission’s dual-rate order or forego any dual-rate contracts while they pursued their judicial remedy. The appellate court quickly dismissed this “riskless remedy” by noting that apart from the fact that acceptance of the Commission’s order might moot the case, neither remedy “comports with defendant’s constitutional right of contract except where impaired by valid statute or administrative order.” 451 F.2d at 718. I would submit that the Fifth Amendment due process rights at issue here are every bit as important as this constitutional right of contract and demand the same consideration by this court. Penalties may not be assessed under a statute whose very validity is challenged by the party against whom sanctions are sought. The pattern in. all of these cases emerges from the same loom whose fabric we examine in this case. That pattern consists of a statutory framework designed to deter judicial review of legislative or administrative determinations. It is of little consequence that the sanctions in this case are civil rather than criminal penalties. Nor is it of significant moment that the penalties imposed in this statute are not cumulative on a daily basis. The penalties in this Act as amended are substantial; they deprive the manufacturers of property; and their purpose is to inhibit judicial review. This is the common thread which runs through all of these cases and which binds our present case to those precedents. The “fair price of adventure” is too high,10 and the argument that automobile manufacturers may be able to afford such penalties does not overcome the inevitably chilling effect which the penalty provisions in*503still. The legacy of Ex parte Young is directed against the erection of inhibiting barriers to j udicial review of legislative or administrative action in proper federal cases. I do not mean to suggest that safety-related defects in motor vehicles should not be expeditiously rectified; nor do I intimate that the burden of remedy should not fall on the manufacturer. However, expedition must be accomplished through constitutional methods which comport with procedural due process concepts of dealing with property. The penalty scheme accompanying the notification and remedy order in the Act as amended does not meet such Fifth Amendment requirements and I therefore find it unconstitutional.
V. CONCLUSION
Finding the penalty schemes accompanying the provisional notification order and notification and remedy order provisions of the Act as amended repugnant to the due process clause of the Fifth Amendment, I would declare such provisions in section 155(c)(1) and section 155(c)(2) as read in concert with sections 108, 109 and 152 unconstitutional and I would restrain their operation and enforcement.
. Section 154, however, does not apply during any period in which enforcement of the order has been restrained by a court in an enforcement action under section 155. Nor does section 154 apply where the court has set aside the order.
. See also Baltimore & Ohio R. R. v. United States, 298 U.S. 349, 368-69, 56 S.Ct. 797, 80 L.Ed. 1209 (1936).
. I do not endorse this procedure since I believe it erects unconstitutional barriers to access to the federal courts and I will speak to it in part IY. of this opinion.
. See Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 153, 61 S.Ct. 524, 85 L. Ed. 624 (1941) (the requisite hearing must be held at some point before the Administrative Order becomes final).
. Summary procedures may be appropriate and may meet due process requirements in extraordinary situations. See Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). But in an investigation such as this which has dragged on for six years before an order was issued, the adjective “extraordinary” is *498hardly warranted. For investigations which are not so ongoing as this one, there are methods of accomplishing the same objective of protecting the driving public staying within the bounds of procedural due process. See Hearings Before the Senate Commerce Committee on S. 355, 93d Cong., 1st Sess. 6 (1973).
. A safety-related defect is one which creates an unreasonable risk of accidents or an unreasonable risk of death or injury to persons in the event accidents occur. 15 U.S.C. § 1391. See United States v. General Motors, 518 F.2d 420, at 435 (D.C.Cir. 1975).
. This is exactly what the Congress intended. The House Report on the 1974 amendments states that “when a manufacturer decides to contest the Secretary’s determination of a defect or failure to comply, he does so at the risk of facing an enforcement proceeding brought by the Government and incurring, a civil penalty.” H.R.Rep.No.93-1191, 93d Cong., 2d Sess. 18 (1974), 1974 U.S.Oode Cong. & Admin.News 6052.
. See Willcox v. Consolidated Gas Co., 212 U.S. 19, 53-4, 29 S.Ct. 192, 53 L.Ed. 382 (1909) and Missouri Pac. Ry. v. Tucker, 230 U.S. 340, 350-51, 33 S.Ct. 961, 57 L.Ed. 1507 (1913) for similar results.
. See General Motors Corp. v. Volpe, 321 F. Supp. 1112, 1131 (D.Del.1970), aff'd, 457 F.2d 922 (3d Cir. 1972).
. See Life & Cas. Ins. Co. v. McCray, 291 U.S. 566, 575, 54 S.Ct. 482, 78 L.Ed. 987 (1934).