# Opposition — Mason v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 939

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2445%3A2. Public record. Not legal advice.