“In the case sub judi-ce, the Commission virtually concedes that petitioners [People for the American Way] and [Union of Concerned Scientists] would qualify for preferred status as representatives of the news media” due to their “regular publication of a newsletter or periodical.”
How later courts described this case
- “In the case sub judi-ce, the Commission virtually concedes that petitioners [People for the American Way] and [Union of Concerned Scientists] would qualify for preferred status as representatives of the news media” due to their “regular publication of a newsletter or periodical.”
- noting “statutory review in the agency’s specially designated forum prevails over general federal question jurisdiction in the district courts”
- “[TJhere is no dispute that, under 28 U.S.C. § 2342(1), the court of appeals has exclusive jurisdiction over all ‘final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.’ ”
- “[T]here is no dispute that, under 28 U.S.C. § 2342 (1), the court of appeals has exclusive jurisdiction over all ‘final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.’”
Written by the judges who cited it.
The opinion
D.H. GINSBURG, Circuit Judge,
concurring in part and dissenting in part:
In my view, the court lacks jurisdiction over this petition for review. The FCC rulemaking at issue was not done “under” the Communications Act of 1934 within the meaning of 47 U.S.C. § 402 (a) (“any order of the Commission under this chapter”), and therefore does not trigger the exclusive jurisdiction of the court of appeals under 28 U.S.C. § 2342 (1).
The Freedom of Information Reform Act states that “each agency shall promulgate regulations ... specifying the schedule of fees applicable to the processing of [FOIA] requests_” 5 U.S.C. § 552 (a)(4)(A)(i). This the Commission has done. As it stated, and as is perfectly clear, the regulation under review “implements requirements enacted under the [Reform Act],” 3 FCC Red 5107 (1988); they do not implement any provision of the Communications Act. As the court says, the question before us is “whether our review is controlled by the Reform Act ... or by the Communications Act,” and the answer is “governed by whether the Commission exercised rule-making authority granted by the Reform Act or by the Communications Act.” Ct.Op. at 7. Again, as the court says, the answer is clear: “Clearly, the Reform Act conferred authority upon the Commission to adopt these regulations.” Id.
It is not clear, however, why the court thinks that “[o]ur task at this juncture is to inquire whether the Communications Act would also have authorized the action taken here.” Id. Perhaps it is because the Commission invoked the Communications Act as an additional source of authority for the regulation, 3 FCC Red at 5110, yet one can hardly assume that Congress intended the Commission to control the path of review by the mere recitation of authority. I can conceive of no other justification for the Communications Act inquiry. Indeed, the court’s alternative speculation that “if a particular statutory provision gives an agency authority, it actually has that authority whether or not it states that it acts pursuant to that statutory provision,” Ct.Op. at 1067 (emphasis added), appears squarely at odds with the holding of SEC v. Chenery Corp., 318 U.S. 80, 95 , 63 S.Ct. 454, 462 , 87 L.Ed. 626 (1943) (“[A]n administrative order cannot be upheld unless the grounds upon which the agency acted ... were those upon which its action can be sustained.”).
The court strains itself — and the law — in the service of a generally sensible “policy goal of unifying review in one forum.” Ct.Op. at 1069. In the present context, however, a single forum for review of one agency’s orders creates non-uniform review of the same orders as issued by myriad other agencies. A petition to review one agency’s regulation implementing the Reform Act will, in the first instance, come before the district court, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), see, e.g., National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C.Cir.1989), while a petition to review the very same regulation, as issued by another agency (ostensibly, as here, under an organic statute that provides for review in the court of appeals), will take a different *1073 route. There is no indication that Congress ever contemplated such an arbitrary bifurcation in the path of review when it authorized rulemaking under the Reform Act. I would thus find inapplicable the provision authorizing this court to review rules issued “under” the Communications Act. *
For me, the next question is whether “it is in the interest of justice [to] transfer such action ... to [the district] court in which the action ... could have been brought at the time it was filed or no-ticed_” 28 U.S.C. § 1631 . In this ease, the interests of justice require that we transfer, rather than dismiss, petitioners’ (concededly ripe) claim that “the FCC unlawfully delegated its independent rule-making power] to OMB.” The source of petitioners’ error in seeking review in this court is chargeable to the FCC itself, which confused matters by invoking the Communications Act in the first place.
Under § 1631, a futile transfer is not required, however. Since petitioners’ challenge to the substance of the FCC regulation can be seen from its face to be unripe, for the reasons given in the opinion of the court, a transfer of that claim would be futile. See Alvarez v. United States, 9 Cl.Ct. 311, 312 (1985) (no transfer when plaintiff failed to exhaust administrative remedies); Busby School of Northern Cheyenne Tribe v. United States, 8 Cl.Ct. 588, 595 (1985) (same). Accordingly, the court need not transfer petitioners’ substantive claim to the district court but, in the interest of judicial economy, may itself dismiss the petition for review in that regard.
The court sees in this result an “unfortunate consequence": that the district court might be without authority to provide relief against a Commission order. Ct.Op. at 1069. The observation that only the court of appeals may provide relief against orders of the Commission “made reviewable by [the Communications Act]," 28 U.S.C. § 2342 , begs the question of whether the orders here under review were, in fact, promulgated “under” that Act.