Prior to DuPont's annual meeting, Friends of the Earth Oceanic Society submitted a proposal on behalf of Roosevelt (P), regarding: (1) the timing of DuPont's phase out of the production of chlorofluorocarbons and halons; and (2) the presentation of shareholders of a report detailing (a) research and development efforts to find environmentally sound substitutes, and (b) marketing plans to sell those substitutes. D opposed such inclusion and notified the SEC of its motives and decision to omit. Friends of the Earth filed a counter-submission. The SEC issued a non-action letter and citing the rule 14a-8(c)(7) stated that it would not recommend Commission enforcement action against D if the company excluded the proposal. P did not seek review of the decision. Instead, she filed a complaint and a motion for a temporary restraining order in federal district court. Denying the motion, the judge stated that the Supreme Court has recognized implied private rights of action for alleged violations of Rule 14a-8. However, P had not shown the requisite irreparable harm. We expedited this appeal when P informed us that she sought inclusion of her proposal in the proxy materials for D's 1992 annual meeting. Before this appeal, D again advised SEC of its decision to refuse inclusion. And again, SEC issued a non-action letter. The lower court concluded that her proposal dealt with D's ordinary business and therefore was excludable under SEC Rule 14a-8(c) (7), 17 C.F.R. Sec. 240.14a-8(c)(7).

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