determining that "the word 'order' has several frequently utilized meanings which vary in scope” and that require “different sections of the same statute [to] use the word in different ways” in order to avoid superfluous language
How later courts described this case
- determining that "the word 'order' has several frequently utilized meanings which vary in scope” and that require “different sections of the same statute [to] use the word in different ways” in order to avoid superfluous language
- finding exclusive jurisdiction in court of appeals under the Bank Holding Company Act and that a factual hearing in the District Court was unnecessary since appellate review was based on the administrative record
- finding that the Court of Appeals has exclusive jurisdiction to review agency regulations, as well as orders, under a special review statute in the Bank Holding Company Act of 1956
- stating that because Congress did not amend a law to distinguish orders and regulations, it is assumed that a broad definition of order can be applied
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge,
concurring:
I entirely concur in Judge McGowan’s excellent opinion for the court.
I take advantage of the freedom of a concurring opinion to express the hope that the core problem will be dealt with in the reasonable future by the enactment of a general statute permitting transfer between district courts and courts of appeals in the interest of justice, including specifically but not exclusively those instances when complaints are filed in what later proves to be the “wrong” court.
The Administrative Conference of the United States, by resolution adopted December 10, 1976, also entitled Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, approved a transfer recommendation, as follows:
To prevent unfairness from a litigant’s choice of the wrong court, Congress should provide for transfer between district courts and courts of appeals of petitions and complaints filed under the Acts. The Court of Claims transfer provision provides a good model. 1
Reprinted at 41 Fed.Reg. 56767 (Dec. 30, 1976).
The ambiguities that now abound, and have sometimes led to what has been described as “jurisdictional badminton,” 2 are not edifying. Realistically, some ambiguities are likely to persist. The only lawyer-like remedy today, as Judge McGowan points out, is double filing. That is hardly a model. Today’s opinion crafts a solution that avoids hardship in the case at hand. A *1284 more direct and sweeping approach is eminently desirable and eminently timely.
. The Conference approved the recommendation made in a report by Professor David Currie of University of Chicago Law School. The “model” referred to is 28 U.S.C. § 1506 :
If a case within the exclusive jurisdiction of the district courts is filed in the Court of Claims, the Court of Claims shall, if it be in the interest of justice, transfer such case to any district court in which it could have been brought at the time such case was filed, where the case shall proceed as if it had been filed in the district court on the date it was filed in the Court of Claims.
. Natural Resources Defense Council, Inc. v. EPA, 168 U.S.App.D.C. 111, 121 , 512 F.2d 1351, 1361 (1975) (dissenting in part).