STARR, District Judge.
The plaintiff, a Delaware corporation with its principal office and place of business in Holland, Michigan, is engaged in the manufacture and sale of warm-air furnaces and heating equipment. On May 4, 1954, the Federal Trade Commission issued its complaint against said Holland Furnace Company, the Commission's docket No. 6203, alleging that the company had violated certain provisions of the Federal Trade Commission Act and that a proceeding by the Commission in respect to such alleged violations would be in the public interest. In particular, the Commission's complaint alleged certain practices of the furnace company as being to the prejudice and injury of the public and the competitors of the company, and constituted unfair acts and practices in commerce and unfair methods of competition in commerce within the intent and meaning of the Federal Trade Commission Act. The defendant James A. Purcell, a qualified hearing examiner of the Commission, was appointed as hearing examiner in this proceeding against the furnace company.
On September 15th of this year the plaintiff filed complaint in this court in which it asked that a temporary restraining order be issued restraining the defendant and those acting in concert with him, from holding any of the hearings scheduled in the August 18, and September 3, 1954, orders of the Commission's hearing examiner, (1) until such time as the plaintiff's appeals then pending before the Federal Trade Commission are disposed of and (2) until such time as the hearing examiner shall have disposed of certain motions then pending before him and (3) until the Commission shall have ruled on any appeal that the plaintiff may take from such rulings and (4) until such time as the plaintiff shall have been afforded an opportunity for submission and consideration of facts, arguments, offers of settlement or proposals of adjustment, as provided by § 5(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1004 (b). Plaintiff further asked that an order be entered directing defendant to show cause why a temporary injunction should not be issued against him, and that upon final hearing said temporary injunction be made permanent.
Upon the filing of the complaint the court issued its temporary restraining order enjoining the defendant hearing examiner and persons acting with him from holding any of the hearings scheduled in the examiner's orders of August 18, and September 3, 1954, and directing the defendant to show cause before the court on September 24, 1954, why a preliminary injunction should not be issued as prayed for in the complaint. On September 17th the defendant filed a motion to dissolve the temporary restraining order, on the grounds: (1) that the complaint did not state a cause of action upon which the relief sought could be granted, and (2) that this court is without jurisdiction of the subject matter of the suit. A hearing was held on this motion, and the court has considered the pleadings and exhibits and the arguments and briefs of counsel. To present clearly the questions raised by the complaint and the defendant's motion to dissolve the temporary restraining order, it is necessary to set forth in some detail the allegations of the complaint. Plaintiff alleges in part:
"On May 4, 1954, the Federal Trade Commission issued its complaint against this plaintiff as respondent in the matter of Holland Furnace Company, a corporation, Federal Trade Commission Docket 6203, charging this plaintiff with certain violations of the Federal Trade Commission Act. Said complaint established June 29, 1954, as the time and Grand Rapids, Michigan, as the place for initial hearings to be held, and notified this plaintiff, as respondent, of its option to file answer to the allegations therein contained. Said complaint was received by this plaintiff on May 14, 1954.
"On May 18, 1954, this plaintiff, as respondent in the aforesaid administrative action, filed its request for an extension of time in which to answer.
"On June 10, 1954, plaintiff, as such respondent, filed its request that the initial hearing so scheduled be postponed until July 27, 1954.
"On June 16, 1954, defendant hearing examiner issued an order cancelling date of hearing and setting new date, which established July 27, 1954, as the time and Grand Rapids, Michigan, as the place for initial hearings in said administrative action.
"On June 23, 1954, plaintiff filed its answer of respondent to complaint and a motion for more definite statement or bill of particulars, together with brief in support thereof. The former denied generally the allegations of the complaint, and specifically the allegations fundamental to the Commission's jurisdiction.
"On July 7, 1954, defendant hearing examiner issued ruling by hearing examiner on respondent's motion for bill of particulars, denying same.
"On July 13, 1954, defendant hearing examiner issued notice of hearings, establishing a schedule of hearings to be held in the cities of Grand Rapids, Michigan, Rock Island, Illinois, Chicago, Illinois, St. Louis, Missouri, Indianapolis, Indiana, and Cincinnati, Ohio, commencing on July 27, 1954, and continuing through August 12, 1954.
"On July 15, 1954, plaintiff, as respondent, transmitted to the secretary of the Commission for filing its appeal of ruling of hearing examiner on respondent's motion for bill of particulars, together with brief in support thereof and request for oral argument.
"On July 21, 1954, counsel (for Commission) supporting the complaint filed his brief in opposition to the appeal of respondent, aforesaid.
"On July 21, 1954, plaintiff, as respondent, transmitted to the secretary of the Commission for filing three separate motions and briefs in support thereof, namely:
"Motion for suspension and referral, seeking suspension of adversary proceedings in the matter at hand and the referral thereof to the bureau of industry cooperation of the Commission for informal consultation, negotiation, compromise and eventual settlement, in conformity with the Commission's published policies.
"Motion for preliminary hearing, requesting that a preliminary hearing or hearings be held to determine the question of jurisdiction which was at issue by reasons of its having been alleged in the complaint and denied in the answer.
"Motion to change place of hearing, seeking to remove the scheduled hearings to a location more convenient to this plaintiff.
"On July 22, 1954, defendant hearing examiner issued notice of cancellation of hearings, for the reason, as later set forth in the record, that the appeal of ruling by hearing examiner on respondent's motion for bill of particulars was then pending before the Commission.
"On July 27, 1954, the Commission issued its order denying appeal from ruling of hearing examiner, denying the appeal aforesaid.
"On July 29, 1954, counsel (for Commission) supporting the complaint filed their answer to respondent's motion for preliminary hearing, which was received by this plaintiff on July 31, 1954.
"On July 30, 1954, counsel supporting the complaint filed their answer to respondent's motion to change place of hearing, which was received by this plaintiff on August 3, 1954.
"On July 30, 1954, counsel supporting the complaint filed their answer to respondent's motion to suspend the hearings and refer the matter to the bureau of industry cooperation, which was received by this plaintiff on August 3, 1954.
"On August 2, 1954, plaintiff herein, as respondent, advised the defendant hearing examiner by telegram and confirming letter of its counsel, of the withdrawal of its motion for preliminary hearing and motion to change place of hearing. Said letter stated that the withdrawal was occasioned by the cancellation of the hearings theretofore scheduled, said schedule having been the object of the motions, and that respondent did not thereby intend to waive its rights to file the same or similar motions, or any other motions seeking the modification of any schedule of hearings which might be promulgated in the future should such a schedule be found similarly objectionable.
"On August 3, 1954, the secretary of the Commission advised plaintiff by letter to its counsel, that its counsel's letter of withdrawal would be treated as a motion.
"On August 6, 1954, counsel (for Commission) supporting the complaint filed their answer to respondent's motion to withdraw without prejudice its prior motion for preliminary hearing and motion to change place of hearing, which was received by this plaintiff on August 10, 1954.
"On August 13, 1954, plaintiff filed brief of respondent in support of its letter of withdrawal of respondent's motion for preliminary hearing and motion to change place of hearing, which brief set forth objections to the treatment of its counsel's letter of withdrawal as a motion and reiterated that it intended thereby to waive no rights to file the same motions or similar motions, or any other motions, directed to the conduct of any hearings which might be scheduled in the future and found similarly objectionable.
"Notwithstanding, on August 18, 1954, defendant hearing examiner issued an order of hearing examiner fixing times and places of hearings, which order provided a schedule in form and manner identical to that previously issued and cancelled, the object of plaintiff's motions aforesaid, knowing or having the means of knowledge that the same would be
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