Opposition — Mason v. United States

ae

MLE D*

—— SEP 26 1977

Supreme Court of The Anite I,

Ocroser Term, 1977

No. 77-313

Ricnarp L. Mason, individually, and A. Marco Turx,

Trustee of the Testamentary Trust Under the Will

of Harry Turk, deceased,

Petitioners,

vs.

Unsirep States or America; FeperaL CoMMUNICATIONS

Commission; GTE Sare.turre Corporation, etc.; Gen-

ERAL TELEPHONE AND EXLecrronics CorRPoRATION; and

American TELEPHONE AND TELEGRAPH CoMPANY,

Respondents.

BRIEF OF RESPONDENTS GSAT, GT&E AND AT&T

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Ricuarp C. WaRMER Frank RoTrHMan

1800 M Street, N.W. 2049 Century Park East

Washington, D.C. 20036 Los Angeles, California

90067

Attorney for Respondents Attorney for Respondent

GTE Sate..ire American TELEPHONE

CoRPORATION AND TELEGRAPH CoMPANY

and

GeneraL TELEPHONE &

Evectronics CoRPORATION

Of Counsel: Of Counsel:

O’Metveny & Myers Wyman, Bavutzer,

CHartes W. Benper Roruman & KvucHeu

Ricuarp J. Strong Terry CHRISTENSEN

Ricuarp A. Bromuey

TOPICAL INDEX

SEE ET Pe

Reasons for Denying Writ......................

I. The Court of Appeals Correctly Decided This

LEAs CTW tai oN eka s udu ves

A. Jurisdiction to Review FCC Construction Per-

mit Orders is Vested Exclusively in the Court

of Appeals for the District of Columbia .....

B. NEPA Does Not Provide an Independent Jur-

isdictional Basis for Judicial Review of the

ERS Se ET Fe eee

C. Review of the FCC’s Construction Permit Or-

der Is Not Governed by Any Provision in

I os Tis nc vee boss's ss

II. There Is No Conflict Between the Decision of

the Ninth Circuit and Those of This Court or of

SO en en

I ee a

10

ii

TABLE OF AUTHORITIES

Cases

Page

Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1304-5

(20th Cle. 1608) .....:.-0e Pe

B. F. Goodrich Co. v. Northwest Industries, Inc., 424

F.2d 1349, 1352-54 (3d Cir.), cert. denied, 400 U.S.

ft ee 06h ee

Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) 16

Citizens Committee v. FCC, 506 F.2d 246, 269 (D.C.

Civ. 1094) ........2.00000508 eee 6

Citizens for Clean Air, Inc. v. Corps of Engineers,

349 F.Supp. 696 (S.D.N.Y. 1972) .............. 14

City of Highland Park v. Train, 519 F.2d 681, 688-89

(7th Cir. 1975), cert. denied, 47 L.Ed.2d 337

(1976) ere | ae

City of Romulus v. County of Wayne, % 392 F. ian

678 (B.D. Mish. M008). .......:..-s0e eee 14

Coca-Cola Co. v. FTC, 475 F.2d 299, 302 (5th Cir.)

cert. denied, 414 U.S. 877 (1973) .............. 13

Environmental Defense Fund v. Hardin, 325

F.Supp. 1401 (D.D.C. 1971) ................. 14

Frito-Lay, Inc. v. FTC, 380 F.2d 8, 10 (5th Cir.

1967) ...... 0 0 so oll dig a a's oan ..- teat

Gage v. Commonwealth Edison Co., 356 ae 80

(R.D. TR. 20RD . .. iss. cee eee 14

Gardner v. Alabama, 385 F.2d 804, 810 (5th Cir.

1967) ; cert. denied, 289 U.S. 1046 (1968)... 14

Getty Ou Co. v. Ruckelshaus, 467 F.2d 349, 359 (3rd

Cir. 1972), cert. denied, 409 U.S. 1125 (1973) .. 7,8,

9,13

Izaak Walton League v. Schlesinger, 337 F.Supp.

SN (ADO. BE) ... cas issceuseeeeee 14, 15

———

iii

Page

Kesinger v. Universal Airlines, Inc., 474 F.2d 1127,

en Ge, ED 2.5... ............... BB

Leedom v. Kyne, 358 U.S. 184 (1958) ae

Nader v. Volpe, 466 F.2d 261, 265-68 (D.C. Cir.

1972) . | 13

Network Project v. FCC, 511 F. 2d 786, 789, 797 (D. C.

Cir. 1975) . Ne 2, 6, 11

North Diiccline v. -FPC, 393 F. Sup. 1116 (M.D.N.C.

ee ok 9

Oling v. Air Line Pilots ye n, 346, F. od 270, 276

(7th Cir.), cert. denied, 382 U.S. 926 (1965) | 14

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d

654, 659-61 (D.C. Cir. 1975) ss. 13

Robinson v. Dow, 522 F.2d 855, 858 (6th Cir. 1975) 13

Save Our Sound Fisheries Ass’n v. Calloway, 387

F.Supp. 292 (D.R.I. 1974) | a 14

Sterling Drug, Inc. v. Weinberger, 509 F.2d 1236,

| 16

Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336

ee sane asaccessenses 5

Taylor v. Cohen, 405 F.2d 277, 979- 80 (4th Cir.

1968) ___. wa ft

UMC Indus v. Sothern, 439 F. od 953, 955 (9th Cir.

NT 13

United States v. SCRAP, 412 U.S. 669 (1973) .... 8

United States v. Southern Railway Co., 380 F.2d 49,

53-55 (4th Cir. 1967) ss. 14

United States v. Southern ities aa 364 Fr. 2d 86,

91-93 (5th Cir. 1966) ; cert. denied, 386 U.S. 1031

(1967) .......... 14

Utah Int'l, Inc. v. EPA, 478 F. od 126, 128 (10th Cir.

ES ee ec eh cove sce 13

Valley Vision, Inc. v. FCC, 399 F.2d 511, 514 (9th

EE I re 6,7

Whitney Bank v. New Orleans Bank, 379 U.S. 411,

EE Se ee 6, 12, 13

iv

Page

Statutes and Regulations

SOG, BOT «ins honk Seed ieee teks 4405 2

ono seven edacnereteseestvesntad 15

42 U.S.C.

OS Pr eras ree ree ee rere et ce te

I, 5 oe Vike bw hale dap aeee ss atte we wel 8

47 U.S.C.

Als nak Pek Wks hace we eR ae Sea KG 1, 3,4

RPT roe es ke herd 2,3

meee 4m Ses ee 8

Administrative Proceedings

Application of GTE Satellite Corp., 59 F.C.C. 2d

928, 924 (1976) .............. eee ee ee 2,4

Application of Hughes Aircraft Co. and GTE Satel-

lite Corp., (Docket No. 19812), 43 F.C.C. 2d 1141

eee e cee ee a 2

Establishment of Domestic Communications — Sat-

ellite Facilities by Non-Governmental Entities, _

22 F.C.C. 2d 128-183 (1970) ......—........ 1, 12

Establishment of Domestic Communications — Sat-

ellite Facilities by Non-Governmental Entities,

36 F.C.C. Bi O44, SSD (1078) .........5.-.:.... 2

Establishment of Domestic Communications — Sat-

ellite Facilities by Non-Governmental Entities,

38 F.C.C. 2d 665, 705 (1972) ................. 11

Applications of GTE Satellite Corp., 49 F.C.C. 2d

Ty ai eae 11

IN THE

Supreme Court of The Anited States

Octoser Term, 1977

No. 77-313

Ricnarp L. Mason, individually, and A. Marco Turk,

Trustee of the Testamentary Trust Under the Will

of Harry Turk, deceased,

. Petitioners,

vs.

Unitep States of AMERICA; FepERAL COMMUNICATIONS

Commission; GTE Sate.uite Corporation, ete.; Gen-

ERAL TELEPHONE AND ELEcTRONICS CoRPORATION; and

AMERICAN TELEPHONE AND TELEGRAPH CoMPANY,

Respondents.

BRIEF OF RESPONDENTS GSAT, GT&E AND AT&T

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

QUESTIONS PRESENTED

The only question presented is the following:

Does a district court have jurisdiction to hear a

collateral challenge to. a Federal Communications

Commission order which is appealable under 47 U.S.C.

§ 402(b) to the United States Court of Appeals for

the District of Columbia?

STATEMENT OF THE CASE

Petitioners own 280 acres of undeveloped land in the

Triunfo Pass area of the Santa Monica Mountains in

=

Los Angeles County, California. On December 22, 1970,

the predecessor of Respondent GTE Satellite Corpora-

tion (“GSAT”) filed an application with the Federal

Communications Commission (“FCC”) for approval of

a domestic satellite communications system, including an

earth satellite station to be constructed in the Triunfo

Pass area. On January 11, 1971 petitioner Mason wrote

GSAT’s parent corporation, General Telephone & Elec-

tronics Corporation (“GT&E”), asserting that Triunfo

Pass was “most desirable for a Satellite Ground Sta-

tion” and offering to sell his land for the proposed earth

station. On January 18, 1971, Mason also placed an

advertisement for the sale of his Triunfo Pass land, de-

scribing it as “the best of possible Los Angeles sites”

for an earth station.’

On September 12, 1973, after public notice and hear-

ing, the FCC issued a Memorandum Opinion and Order

granting GSAT permission to construct the proposed

system, including an earth station at Triunfo Pass.’

Petitioners knew of the FCC order. They did not appear

in the proceedings to seek a rehearing as permitted un-

der the FCC’s rules (47 C.F.R. § 1.106). The FCC’s

order was appealed by certain inierested parties (Net-

work Project v. FCC, 511 F.2d 786, 797 (D.C. Cir. 1975)),

but petitioners did not participate in the appellate pro-

ceedings or otherwise seek judicial review within the

30-day period prescribed by 47 U.S.C. § 402(c). Instead,

they urged GSAT to purchase or lease their land for

the earth station site. By certified letter dated July 16,

1974, petitioner Turk, an attorney, notified GSAT that

if it did not purchase petitioners’ land they would under-

take legal efforts “to keep GTE out of our area.” GSAT

: ‘fe. of GTE Satellite Corp.,.59 F.C.C. 2d 923, 924

1976).

* Application of Hughes Aircraft Co. and GTE Satellite Corp.,

(Docket No. 19812), 43 F.C.C. 2d 1141 (1973).

—

declined to respond to this threat and ultimately pur-

chased a 40-acre tract adjacent to that offered by peti-

tioners. Thereafter, petitioners made good on their

threat by filing suits in state court® and federal district

court seeking to enjoin construction of the Triunfo Pass

station.

Petitioners’ complaint was filed in the District Court

on June 30, 1975, some 20 months after expiration of the

30-day period prescribed by.47 U.S.C. § 402(c) for seek-

ing judicial review of FCC orders granting construction

_ permits. The complaint alleged that the FCC’s Septem-

ber 12, 1973 order failed to contply with requirements of

the National Environmental Policy Act (“NEPA”), and

sought a judicial declaration invalidating the FCC order

on that ground. Respondents ‘moved to dismiss the

complaint on the grounds that jurisdiction to review

FCC orders granting construction permits is vested ex-

clusively in the Court of Appeals for the District of

Columbia pursuant to 47 U.S.C. ¢ 102(b). The District

Court granted the motion to dismiss for lack of subject

matter jurisdiction, and on November 21, 1975 judgment

was entered for respondents. Petitioners appealed, and

on May 27, 1977 the Court of Appeals affirmed the deci-

sion of the District Court, holding that 47 U.S.C. § 402

“clearly ousts district courts of jurisdiction over chal-

% In the state court action, petitioners sought a writ of mandate

to enjoin construction the Triunfo Pass station on the

grounds of alleged failure to comply with the environmental

impact report requirements of the California Environmental

Quality Act (“CEQA”). Richard L. Mason, et al. v. County of

Los Angeles, et al., Los Angeles Superior Court No. C-122693,

filed May 5, 1975. Following trial, the state court entered

judgment for GSAT and the other defendants on December 22,

1975, specifically finding: (1) that there had been full compli-

ance “with each and every —— federal, state and local

law and ordinance . . . including each and every applicable

requirement of CEQA and any guidelines summed there-

under;” and (2) that plaintiffs had instituted the state action

“as a bargaining lever and not for any legitimate purpose.”

mec

lenges to FCC orders.” (App. A to Petition). This

Petition followed.‘

REASONS FOR DENYING WRIT

Petitioners have devoted considerable attention in

their brief to the requirements of NEPA and the power

of district courts generally to enforce NEPA. It is

doubtless their intent in so doing to suggest the exist-

ence of the substantial, unresolved federal issue which

this Court’s Rule 19 suggests is necessary to jus-

tify the exercise of jurisdiction on writ of certiorari.

Petitioners’ arguments with respect to the scope of

NEPA and its enforcement are immaterial to the reso-

lution of this case, however. The sole issue raised herein

is whether the provision in 47 U.S.C. § 402(b) for direct

appeal from an FCC order granting a construction per-

mit precludes a collateral challenge to such order in

district court proceedings. With respect to this issue,

no claim has been made, or can be made, that the require-

ments of Rule 19 have been satisfied. The decision of

the Court of Appeals on this point was demonstrably

correct and entirely in accord with the decisions of this

Court and of the other courts of appeal which have

considered this jurisdictional issue.

* Shortly after the District Court’s judgment, petitioners ap-

oneel in proceedings that were pending before the FCC on

requests by GSAT for modification of its construction permit.

In those proceedings (F.C.C. Docket 20201), petitioners be-

latedly contended that the September 12, 1973 issuance of

GSAT’s construction permit was invalid because of alleged

noncompliance with NEPA. On June 9, 1976, the FCC issued

a Memorandum Opinion and Order, holding that petitioners’

challenge to the September 12, 1973 Order was untimely and

in any event that the 1973 Order complied with NEPA since

the Commission originally had “considered environmental

factors and found GSAT had made a sufficient showing that

the propose! station would not damage the quality of the

environment.” Application of GTE Satellite Corp., 59 F.C.C.

2d 923, 924 (1976). Petitioners could have appealed this order

pursuant to 47 U.S.C. § 402(b), but did not do so.

—_ wo

I. THE COURT OF APPEALS CORRECTLY DE.-

CIDED THIS CASE

A. Jurisdiction to Review FCC Construction Permit

Orders is Vested Exclusively in the Court of Ap-

peals for the District of Columbia

It is beyond dispute “that Congress ... may prescribe

the procedure and conditions under which, and the courts

in which, judicial review of administrative orders may

be had.” Tacoma v. Taxpayers of Tacoma, 357 U.S. 320,

336 (1958). In §402(b) of the Communications Act,

Congress did so prescribe a specific, complete and ex-

clusive mode for judicial review of FCC orders granting

construction permits. Section 402(b)(1) provides that

“Appeals may be taken from decisions and orders of

the Commission to the United States Court of Appeals

for the District of Columbia ... [b]y any applicant for

a construction permit,” and § 402(b)(6) provides that

such appeal may be taken “[b]y any other person who

is aggrieved or whose interests are adversely affected

by any order of the Commission granting or denying. . .

[such] application. . . .”° The appeal must be taken

“within thirty days from the date upon which public no-

tice is given of the decision or order complained of”

(§ 402(c)); the appeal must be heard by the Court of

Appeals “[a]t the earliest convenient time” (§ 402(g));

and the Court of Appeals’ decision is subject to review

only by the Supreme Court. (§ 402(j)).

This Court has emphasized that when Congress has

enacted such “a specific statutory scheme for obtaining

review ... the statutory mode of review [must] be ad-

hered to notwithstanding the absence of an express statu-

5 [“ootb review of all other FCC orders, not enumerated in

402(b), is also narrowly confined. Such orders may be

reviewed only by a Court of Appeals (47 U.S.C. § 402(a);

28 U.S.C. § 2343), and petitions for such review must be filed

within 60 days (28 U.S.C. § 2344).

tory vommand of exelusiveness,” Whitney Bank vo, New

Orleans Bank, 970 US, 411, 422 (10605), Acoordingly, the

courts have uniformly held that § 402(b)'s provision for

appellate review of FOC orders is “oxelusive,” Citi

sens Committee vo, POC, 006 Pad 246, 260 (D.C, Cir,

1974), and that “all attacks on... orders of the Com

mission, on whatever ground, meet be by appeal to the

District of Columbia Cireuit under § 402(b),,. ." Valley

Vision, Tne, eo POC, 800 Pid 511, 514 (Oth Cir, 1968),

The reasons for requiring exclusive adherence to

§ 402's specific statutory review scheme are obvious, By

providing for centralised and expedited review in one

court of appeals, Congress cloarly sought to guarantee

uniformity of decision and to preelude the delay, un

certainty, and frustration of FOC action that might

ooour if judicial review eould be had in any of the district

courts, The quick Anality of decision intended by Con.

gress could never be achieved if partion aggrieved by

FCC construction permit orders could collaterally attack

such orders years after expiration of § 402(e)'s S0day |

time limit for direot judicial review, Moreover, tolerance —

of district court suits would encourage multiplicity of

litigation and forum shopping, whieh would plainly un-

dermine the uniformity of decision Congress sought to

achieve by confining judicial review to one court,

Those are not hypothetical considerations, The FOC's

order of September 12, 1979 was appealed by several

interested partion, Network Project vo, PCC, O11 Pidd

rad, TOT (D.C, Cle, 1975), Untimely judicial review of

the same FOO order by whatever district court might

be chosen by a plaintiff would neeessarily entail what

Congress sought to avoid —- duplicative judicial pro:

coodings, delay and potential conflict with decisions ren-

dered by the Court of Appeala for the District of

Ven

B, NEPA Does Not Provide an Independ

diotional Basis for Judicial Review of the FOO's

Order

Petitioners assert that §402(b) should be deemed in-

applicable because their claim is based on NEPA, This

argument assumes that the applicability of an exclusive

review sehome depends upon the substantive basis of

a litigant’s challenge to an administrative order, Such

in cloarly not the case, When there is a statutory pro:

vision preseribing a specific route for judicial review,

all arguments, “constitutional, jurisdictional, substan.

tive, and procedural,” must be raised solely in the statu,

tory review proceeding, P'rite-Lay, Ine, vo, PTC, 380 Pod

4, 10 (Sth Civ, 1067), “[A}I attacks on... orders of the

[Pederal Communications} Commission, on whatever

ground, must be by appeal to the District of Columbia

Civeuit under § 402(b),.. ." Valley Vision, Ine, o, PCC,

supra, 300 Pld at 514, Seetion 402(b)'s restriction of

judicial review applies to all challenges to construction

permit orders, whether based on NEPA or some other

statutory or constitutional ground,

Getty Ol Co, vo, Ruckelshaus, 467 Pd M9 (Ad Cir,

1072), cert dew /, 400 U.S, 1125 (1078), ia a cane directly

in point, Getty was a laweuit Med in the distriet court,

challenging action taken by the BPA Administrator un.

der the Clean Air Act, Seotion 907(b)(1) of that Act,

like § 402(b) of the Communioations Act, reatriots judi.

cial review of actions by the Administrator to an appew —

to the Court of Appeals for the District of Columbia,

which muat be fled within 30 daya of public notice of

the Administrator's action, 42 U.S.C, § 1857hS(b),

Plaintiff did not comply with the statutorily preseribed

procedure, but rather, like petitioners here, Mled an action

in diatriet court, Plaintif? urged that its claim was based

on NEPA and therefore not subject to the exclusive

review provisions of the Clean Air Act, The Third

Cireult summarily rejected this argument, stating:

“Appellant's... argument is that BPA's failure to

file an environmental impact statement pursuant to

section 108(2)(e) of the National Buvironmental Poll.

oy Aot, 42 U.8.C, § 4982(2)(C), renders the Adminis.

irator’s complianee order ultra vires, Even if we were

to agree with Getty’s premise that BPA is subject to

the NEPA requirement, such an issue is properly

raised in a section 807 proceeding... . Pailure to utilize

the seetion 807 proceeding forecloses review, ,. .” (467

F.2d at 859.)

This Court has also made clear, under analogous cir:

cumstances, that NEPA does not provide a jurisdictional

base for review of an administrative order when such

review is otherwise preeluded or restricted by specific

statutory provision, United States vo, SCRAP, 412 U, 8.

669 (1973), SCRAP was an action to enjoin enforeement

of an ICC rate order because of an alleged failure to

prepare an environmental impact statement in violation

of NEPA, Thia Court had previously ruled that 48

U.B.C, §15(7) precluded federal court juriadietion to

enjoin such LOC ordera, Plaintiff contended, however,

as do petitioners in this ease, that “NEPA implicitly

conferred authority ‘on the federal courts to enjoin any

federal action taken in violation of NEPA's procedural

requirements,’ ” (412 U.S, at 690.) This Court disagreed,

reasoning that "NEPA waa not intended to gle by

implication any other statute” (412 U.S, at 604), and

that “nothing either in the language or history of NEPA

... ggente a restoration of previously eliminated judi.

celal power, .. .” (412 U.S, at 695.)

Petitioners assert that §402(b) applies only to “judi.

cial review of the merits of FOC orders,” and that their

NEPA attack “does not go to the merits of the POO".

action, but rather to the FOCC's ability to act at all,”

(Petition, p25), The same type of argument was re

jected in Getty, where plaintiffs sought to avoid the ex-

astin

elusive review provision of the Clean Air Aet by assert

ing that NEPA rendered the challenged administrative

order “ultva vires,” Getty v, Ruckelshaus, supra, 407

Vd at 369, Similarly, in North Carolina vo, PPC, 308

F.Supp, 1116 (M.D.N.C, 1975), the eourt rejected the

notion that an exelusive review seheme ean be avoided

by characterising the nature of the judicial review

sought, In that ease, plaintiffs sued in district court,

challenging an order of the Federal Power Commiasio

on the ground that it violated provisions of the Wild

and Beenie Rivers Act, In an attempt to avoid the ox.

elusive review provisions of §319(b) of the Federal

Power Act, they asserted, like petitioners here, that they

were not seeking review of the FPCO's lieense order under

the Federal Power Act, but rather, seeking to enforce

a duty under the Wild and Seenie Rivera Act, In reject.

ing this argument the court stated;

“In their oral argument and throughout their briefs,

plaintiffs repeatedly make the point that they are not

seoking review of the P.P.C, license in this Court,

rather they are seeking review of F.P.C, action under

the Wild and Seenio Rivers Act, In the final analyaia,

it la this distinetion which breaks down under seru-

tiny... . [1)¢ plaintiffs are correct, could not each and

every affected landowner bring a separate sult for the

enforcement of rights under the Wild and Seenie

Rivera Act or the National Bnvironmental Polley Act

in both this Court or the District Court for the Weat.

ern District of Virginiat What then would become

of section S19(b) of the Federal Power Act? What

then would we do with those ‘simple words of plain

meaning (whieh) leave no room to doubt the congres-

sional purpose and intent’t’ (398 F.Supp, at 1128.)

Thus, however petitioners might wish to characterize

their suit they ran afoul of 6 402(b), A “statutory pro.

cedure for review ia applicable” even though the “order

= 9 =

in hot civeetly attueked — so long as the practical effect

of a svecemsful sult would eontradiet of eountermand a

Commission order.” Ht, P, Goodrich Co, vo, Northweat

Induatrion, Ine, 44 Pd 140, 1902-54 (4d Clr,), cert

dented, 400 ULM, A22 (1070), Tere the ageney order is

direetly attacked, and there is no doubt but that petition.

ore seek to “eountermand” the order — they avowedly

sook a judicial declaration of ite invalidity, The faet that

they promise their challenge on NEPA rather than the

Communications Aet is irrelevant,

©, Review of the FOO's Construction Permit Order

Is Not Governed by Any Provision in Chapter 6

of Tithe 47

Chapter 5 of Tithe 47 (65 151-000) is the Communica.

tions Act of 1034, the basic law governing the FCC's

power and authority, Chapter 6 of Tithe 47 (44 701-744)

is the Communications Satellite Aet of 1962, The Peti-

tion (pp3L38) asserts that the FCC's September 12,

1078 Order was issued pursuant to the 1962 Act and that

§ 402(b) is inapplicable to judicial review of orders is

sued under the 1068 Act. The Court of Appeals correctly

Order was not inawod! under authority of the 1962 Act,

but even if it had been, §402(b) would nonetheless

apply.

The express purpose of the 1962 Act was to authorize

United States participation in a “global communications

notwork’”® (§ 701) and the formation of a “communica

tion satellite corporation” (“COMBAT”) (46 731.35), in

§ 701(d) Congress expressly diselaimed any intention to

have the 1962 Act “preclude the ereation of additional

ommunications satellite ayatema,” Le, domestic commu-

nications satellite systema, The system authorised by

—

the FCO's Beptomber 12, 1075 order is a “domestic satel

lite system,” (48 FC.C, 2d 1141), and all administrative

and judicial proceedings held in connection therewith

have been conducted pursuant to, and under the au

thority of, the provisions of the 1034 Act,’ ineluding the

§ 402(b) appeal to the Court of Appeals for the District

of Columbia, Network Project vo, PCC, supra at TH),

In ite Fivet Report and Order in the Domestic Com

munications Satellite proceedings the FOC rejected eon-

tentions that the 1062 Aet governs domestic satellite

systems authorizations, and expressly found that the

Commission's authority to grant permite for domestic

satellite systems ia based on the 1934 Comme

Act, Le, Chapter 5 of Tithe 47, The Com

*.. The Commission's clear jurisdiction over com-

merelal domestic satellite facilities under the 1994 act

was not withdrawn by the 1962 aet, which legislated in

the fleld of international satellite communications, The

declared purpose of the 1962 act was to eotabliah “

global satellite communications system in eonjunetion

and in cooperation with other countries (see, 108(a))

and to provide for United States participation in the

global system * * * in the form of a private corpora.

tion, subject to appropriate regulations (see, 102(¢)),

HR, Rept, No, 1636, 87th Cong, second sens, p.7, .

*., (1}t would be unreasonable to assume that

Congress, in enacting provisions tailored to an inter.

national system established in conjunction and in

cooperation with other countries, would have sup

= 0am

planted the 1044 Aet in the domestic fleld — tradition.

ally only of sovereign concern —— without mentioning

that it was doing so, The 1062 Aet does not contain

any express requirement that domestic satellite serviee

shall be provided in acoordance with the provisions

governing the global system or any statement with

drawing the Commission's powers under the 1044 aet

to authorize an additional non Government domestic

system.” KNatablishment of Domestic Communication

Natellite Facilities by Nongovernmental Rutities, 22

PCL, Od 86, 180-191 (1970),

Keven if the 1962 Act were assumed somehow to pertain

to Issuance of a construction permit for domestic aatellite

facilitios (whieh is clearly not the ease), it etill would

not follow that the September 12, 1978 order was outside

the seope of (402(b), The 1962 Act is expressly desig.

nated as an amendment and supplement to the 1094 Act

(4 721(¢)), and since it contains no procedural provi-

sions, it necessarily must be implemented by the Inquiry,

Kule Making and Hearing procedures authorized under

the 1934 Act, Indeed, § 721(¢) of the 1062 Act expressly

states that authorization of construction of satellite ata-

tions for international networks is to be undertaken by

“the Federal Communications Commission, in its admin.

istration of the provisions of the Communications Act

of 1934, as amended, and as supplemented by this chap-

ter..." Thos, had GSAT's permit been lasued under

the 1962 Act, whieh it was not, 6 402(b) would nonethe-

less have governed judicial review thereof,

Il, THERE 18 NO CONFLICT BETWEEN THE DE.

The Ninth Cirewit's decision is supported by, and con.

sistent with, the decisions of this Court construing statu-

tory exclusive review provisions, A.g., Whitney Bank wo.

=—

New Orleans Bank, 379 U.S. 411, 419 (1965). Moreover,

this Court’s reasoning in United States v. SCRAP, 412

U.S. 669, 694 (1973) fully supports the Court of Appeals’

decision that NEPA does not provide a jurisdictional

base for judicial review otherwise precluded by § 402(b).

There are many decisions by the circuit courts constru-

ing statutory review provisions analogous to § 402(b).

Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3rd Cir.

1972) was cited by the Ninth Circuit in support of its

decision below and is the circuit court decision most

directly in point since it considers the applicability of a

statutory review provision to claims based on NEPA.

The other circuit court decisions hold that administrative

orders reviewable under special statutory review schemes

may not be collaterally attacked in enforcement proceed-

ings or in district court suits initiated under the Ad-

ministrative Procedure Act or the Declaratory Judg-

ments Act.* Without exception, these decisions are con-

sistent with the rationale of the decision below.

* E.g., Robinson v. Dow, 522 F.2d 855, 858 (6th Cir. 1975)

exclusive review of CAB decisions, 49 U.S.C. § 1486); | of

Highland Park v. Train, 519 F.2d 681, 688-89 (7th Cir. 1975),

cert. denied, 47 L.Ed.2d 337 (1976) (exclusive review of orders

of EPA Administrator, Clean Air Act, 42 U.S.C. § 1857h-5(b) );

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 659-61

(D.C. Cir. 1975) (Clean Air Act exclusive review provisions );

Anaconda Co. v. Ruckelshaus, 482 F.2d 1301, 1304-5 (10th Cir.

1973) (Clean Air Act exclusive review provisions); Kesinger v.

Universal Airlines, Inc., 474 F.2d 1127, 1131-32 -— Cir. 1973)

exclusive review of CAB decisions); Utah Int'l, Inc. v. EPA,

78 F.2d 126, 128 (10th Cir. 1973) (Clean Air Act exclusive

review provisions ); Coca-Cola Co. v. FTC, 475 F.2d 299, 302

(5th Cir.) cert. denied, 414 U.S. 877 (1973) (exclusive review

of FTC orders, Federal Trade Commission Act, 15 U.S.C.

45(c)); Nader v. Volpe, 466 F.2d 261, 265-68 (D.C. Cir. 1972)

exclusive review provisions of National Traffic and Motor

Vehicle Safety Act, 15 U.S.C. § 1394(a)(1); UMC Indus v.

Seaborg, 439 F.2d 953, 955 (9th Cir. 1971) (exclusive review

of Board of Patent Interferences decisions, Atomic Energy Act,

S.C. § 2182); B.F. Goodrich Co. v. Northwest Indus., 424

F.2d 1349, 1352-54 (3rd Cir.), cert. denied, 400 U.S. 822 (1970)

(exclusive review of ICC orders, Urgent Deficiencies Act, 28

U.S.C. § 2321); Tayler v. Cohen, 405 F.2d 277, 279-80 (4th

=

None of the district court decisions cited by peti-

tioners supports the notion that NEPA confers district

court jurisdiction otherwise precluded by specific statu-

tory review provisions. Four of the cases involved ac-

tions to review administrative orders which were not

subject to exclusive review schemes.® Another involved

a situation where there was no final agency order ap-

pealable under the exclusive review provisions of the

applicable regulatory statute, and the court dismissed

the complaint because of the eventual availability of

appellate review under the statutory scheme.’®

Izaak Walton League v. Schlesinger, 337 F.Supp. 287

(D.D.C. 1971) is the only reported case even remotely

Cir. 1968) (exclusive review of HEW orders, 20 U.S.C.

§ 241k); Gardner v. Alabama, 385 F.2d 804, 810 (5th Cir. 1967 );

cert. denied, 289 U.S. 1046 (1968) (exclusive review of HEW

orders, Social Security Act, 42 U.S.C. § 1316(a)(3)); Frito-

Lay, Inc. v. FTC, 380 F.2d 8, 10 (5th Cir. 1967) (exclusive

review of FTC decisions, Clayton Act, 15 U.S.C. § 21); United

States v. Southern Railway Co., 380 F.2d 49, 53-55 (4th Cir.

1967) (exclusive review of ICC orders); United States v.

Sout Railway Co., 364 F.2d 86, 91-93 (5th Cir. 1966); cert.

denied, 386 U.S. 1031 (1967) (exclusive review of ICC orders

Oling v. Air Line Pilots Ass’n, 346, F.2d 270, 276 (7th ria

cert. denied, 382 U.S. 926 (1965) (exclusive review of CAB

decisions ).

® Environmental Defense Fund v. Hardin, 325 F.Supp. 1401

(D.D.C. 1971), was an action brought against the Soasiteny of

Agriculture, whose decisions are not subject to a statutory

review scheme. Save Our Sound Fisheries Ass'n v. Calloway,

387 F.Supp. 292 (D.R.I. 1974) was an action brought against

the Secretary of the Army, whose decisions are not subject to a

statutory review scheme. Citizens for Clean Air, Inc. v. Corps

of Engineers, 349 F.Supp. 696 (S.D.N.Y. 1972), was an action

challenging the validity of a permit issued by the Corps of

Engineers, and there is no statutory provision prescribing ex-

clusive review proceedings to test the validity os permits issued

by the Corps of Engineers. City of Romulus v. County of

Wayne, 392 F.Supp. 578 (E.D. Mich. 1975), was an action

against a county to enjoin construction of an airport runway,

and there is no statutory provision which restricts judicial re-

view of action taken by counties.

ss sof) v. Commonwealth Edison Co., 356 F.Supp. 80 (N.D. Ill.

>

1

= =

inconsistent with the Ninth Circuit’s decision below. The

district court in lzaak Walton misapplied this Court’s

decision in Leedom v. Kyne, 358 U.S. 184 (1958) to

justify review of action by the Atomic Energy Commis-

sion which was subject to exclusive review in the court

of appeals under 28 U.S.C. § 2342. Analysis of Leedom

v. Kyne shows that it is plainly inapposite in this case.

Leedom involved a blatant violation of 4 9(b) of the

National Labor Relations Act, which governs NLRB

certifications of collective bargaining units. Section 9(c)

of the Act provides that a § 9 certification order may be

contested in unfair-labor-practice enforcement proceed-

ings under § 10 of the Act. Aside from this indirect, and

not immediately available route, the Act makes no ex-

press provision for judicial review of 49 certification

orders. Moreover, this Court had previously held that

§9 certification orders are not final orders subject to

direct appellate review in the Courts of Appeals (358

U.S. at 187). Thus, the issue before the Court in Leedom

was whether the statute’s omission of a provision for

direct appellate review implied that Congress intended

to preclude district court jurisdiction to review § 9 orders

made in blatant violation of the statute’s express com-

mand. In answering this question in the negative, the

Court emphasized the absence of a statutory provision

for direct appellate review. This meant, the Court said,

that there would be no practical “means . . . to protect

and enforce” rights guaranteed by § 9 unless jurisdiction

were found in the district courts. Since 49 rights were

important, the Court reasoned, Congress by inference

must be deemed to have intended district court juris-

diction. (358 U.S. at 190.)

In this case, of course, the situation is the very oppo-

site of that in Leedom. Here there is a final agency order

at issue, and here the statute does provide for direct

appellate review. This is not a situation where con-

—

gressional silence with respect to immediately available

appellate review compels an inference of congressional

intent that district courts have jurisdiction. Quite the

contrary, here Congress explicitly provided in §¢ 402(b)

a specific means of protecting any rights claimed to be

adversely affected by an FCC order granting a construc-

tion permit. And in the situation here present, where

Congress has expressly prescribed a scheme for review

of the order in question, it would make no sense, and

indeed, be coiitrary to Congress’ express purpose and

the rationale of Leedom, to infer a congressional intent

that jurisdiction to review FCC orders be vested in the

various district courts.

This Court has emphasized that “The Kyne exception

is a narrow one, not to be extended to permit plenary

district court review of” agency action that “does not

comport with the law.” Boire v. Greyhound Corp., 376

U.S. 473, 481 (1964). As most recently explained by

Judge Friendly, “... the most that can be extrapolated

from Leedom v. Kyne is that an injunction may be issued

‘if an agency refuses to dismiss a proceeding that is

plainly beyond its jurisdiction as a matter of law... .’”

Sterling Drug, Inc. v. Weinberger, 509 F.2d 1236, 1239

(2d Cir. 1975). There is nothing in this case even remote-

ly approaching the bounds of such a narrow exception.

— pen

CONCLUSION

For the foregoing reasons the petition for certiorari

should be denied.

Respectfully submitted,

Ricuarp C. WARMER

1800 M Street, N.W.

Washington, D.C. 20036

Attorney for Respondents

GTE Sate.uuite Corporation

and

GENERAL TELEPHONE &

ELectronics CoRPORATION

Of counsel:

O’ME.Lveny & Myers

Cuar_es W. BenpveR

Ricuarp J. SToNE

Frank RoTHMAN

2049 Century Park East

Los Angeles, California 90067

Attorney for Respondent

AMERICAN TELEPHONE AND

TELEGRAPH CoMPANY

Of counsel:

Wyman, BavuTzer,

RotuMan & KucHEL

Terry CHRISTENSEN

Ricuarp A. BRoMLEY

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