recognizing inapplicability of primary jurisdiction when administrative agency is involved and distinguishing rule-making function from rule-enforcement function
How later courts described this case
- recognizing inapplicability of primary jurisdiction when administrative agency is involved and distinguishing rule-making function from rule-enforcement function
- distinguishing generally between direct and indirect carriers
- "[W]hen the agency chooses to go to the district court for enforcement, it makes little sense to refer the very question at issue to the agency."
- whether CAB had primary jurisdiction held appealable
Written by the judges who cited it.
The opinion
MULLIGAN, Circuit Judge
(dissenting) :
In my view, this court has no appellate jurisdiction here. Allied Air Freight, Inc. v. Pan American World Airways, Inc., 340 F.2d 160 (2d Cir.) (per curiam), cert. denied, 381 U.S. 924 , 85 S.Ct. 1560 , 14 L.Ed.2d 683 (1965), also involved an appeal from an order of the district court which had stayed an action by the plaintiff on the ground that the C.A.B. had primary jurisdiction. This court held that it had no appellate jurisdiction, stating that “[ojbviously, the stay order, as well as not adjudicating upon plaintiffs’ claims, does not finally dispose of the district court suit or necessarily preclude a sometime trial in that forum of plaintiffs’ claims.” Id. 340 F.2d at 161 .
I do not see how Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-547 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949), is applicable. While the question of primary jurisdiction is collateral to the ultimate issue of this case, this is the only criterion of Cohen met on this appeal. Certainly the majority opinion here settles no important issue once and for all. International Business Machines Corp. v. United States, 480 F.2d 293, 298 (2d Cir. 1973) (en banc). This is simply a reversal based on established authority and with which I would agree if we had appellate jurisdiction.
While the C.A.B. may be anxious for a speedy enforcement of its own regulations, there is no showing here that a decision by the district court is critical or that any irreparable harm will flow if the agency makes its own determination on the merits. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 , 1007 n.l (2d Cir. 1973), cert. granted, 414 U.S. 908 , 94 S. Ct. 235 , 38 L.Ed.2d 146 (1973). The relegation of this matter by the district court to the C.A.B. with its wide enforcement powers, while erroneous, is hardly calamitous. The C.A.B. admits that 22 cases involving the same question have been or are presently before the Board. Thirteen of these have already been resolved by cease and desist orders. One has been dismissed and one settled. The balance are still pending before the Board. If this case was remanded to the Board, no irreparable harm could possibly ensue.
This court has “often indicated that Cohen must be kept within narrow bounds, lest this exception swallow the salutary ‘final judgment’ rule.” Weight Watchers, Inc. v. Weight Watchers Int’l, Inc., 455 F.2d 770, 773 (2d Cir. 1972). The wisdom of containing the Cohen exception to that small class of cases presenting questions of crucial significance should be particularly apparent today with our calendar at an all-time peak.