Opposition Brief — Maritime Communications Service v. Federal Communications Commission

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Table of Contents

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I. The court of appeals correctly ordered the matter dis-

missed in accord with the applicable statutes and de-

cisions of this Court and the other courts of appeals... 4

II. The petition sets forth no valid ground upon which it

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Table of Authorities Cited

§

Cases

Alexander v. Sacha, 439 F.2d 742 ......................

American Fire & Cas. Co. v. Finn, 341 U.S. 6 ............

Atkins v. Schmutz Manufacturing Company, 435 F.2d 527..

Brown v. Heinen, 61 F.Supp. 563 ....................-.

Brucker v. Fisher, 49 F.2d 759 . 2... 2... occ ccc c ccc n cece

Chicot County Dist. v. Bank, 308 U.S. 371 ...............

Cockrell v. Ferrier, 375 F.2d 889 ................0cccceee

oarawmn AA W144)

Ferguson v. Kwik-Chek, 308 F.Supp. 78 ................

First Nat. Bank of Chicago v. United Air Lines, 190 F.2d

REE ibe SSUES Sadar a 9 ep o

Goldlawr, Ine. v. Heiman, 369 U.S. 463 ..................

Gregory Consolidated Mining Co. v. Star, 141 U.S. 222 ....

Gulf Oil Corporation v. Federal Power Commission, 330 F.2d

WP aN a Gb tke caine s Gane dando teins Unuks <b-0cdce ences.

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Helena TV, Ine. v. Federal Communications Commission, 269

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Kentucky v. Powers, 201 U.S. 1 ...................-000-

Reena WT, PAG, SO WN GOD nn cc nccccccaccceccccecss

oon om

Maternally Yours v. Your Maternity Shop, 234 F.2d 538 ..

O'Neill Broadcasting Company v. United States, 241 F.2d

United States v. F.D. Rich Company, 441 F.2d 1143 ......

United States v. Rayburn, 91 F.2d 162 ..................

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Pages

United States v. Robinson, 361 U.S. 220 .................. 7

United States ex rel. Jimenez v. Conboy, 310 F.Supp. 801.. 9

Valley Vision, Ine. v. F.C.C., 383 F.2d 218 .............. 6

Valley Vision, Ine. v. F.C.C., 399 F.2d 511 .............. 6

WHDH, Ine. v. United States, 457 F.2d 559 .............. 5

Statutes

oS ee ee 4

Sun. 106, OF URC Gee ............................ 4

66 Stat. 718, 47 U.S.C. §402(a) ......................... 2,3,5

66 Stat. 718, 47 U.S.C. §402(b) ..................... 2, 3,4, 5,6

66 Stat. 718, 47 U.S.C. §402(e) ......................... 2,7

66 Stat. 718, 47 U.S.C. §402(e) ......................... 2,4

United States Code:

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Sule Fy, SUR, 2S Baek, BOGE .............-...-...... 4

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Title 47, §402(a), 66 Stat. 718 ...................... 2, 3,5

Title 47, §402(b), 66 Stat. 718 .................. 2, 3,4,5,6

Title 47, §402(e), 66 Stat. 718 ...................... £9

Title 47, §402(e), 66 Stat. 718 ...................... 2,4

Rules

Federal Rules of Appellate Procedure, Rule 26(b) ........ 2,7

Federal Rules of Civil Procedure, Rule 12(h)(3) ......... 2.6

Other Authorities

Moore’s Federal Practice, (2nd Ed. 1965) Vol. 1A, para.

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RAEN IES EL ETE VEN IN TT AE RO

In the Supreme Court

OF THE .

United States

Ocroser Term 1973

No. 73-930

Maritime Communications SERVICE, 7

Petitioner,

vs.

FrperaL Communications ComMIssION,

Respondent,

Paciric TELEPHONE AND TELEGRAPH Co.,

Satrvas VaLtey Rapio TELEPHONE Co.,

Intervenors-Respondents. j

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

PRELIMINARY STATEMENT

This case does not present any important question of

Federal law nor is the order of the court of appeals

in conflict with the decisions of this Court or with the

decision of any other circuit.

The Communications Act clearly provides that an ap-

peal from an administrative order of the type here in

2

question may be taken only to the Court of Appeals for

the District of Columbia Circuit. Petitioner, nonetheless,

sought review of the order in the Court of Appeals for

the Ninth Circuit. That court, after expiration of the

time for appeal, sought to transfer the matter to the

District of Columbia Circuit. The Ninth Circuit had nei-

ther jurisdiction over the subject matter nor any author-

ity to make a transfer and therefore the District of

Columbia Circuit properly ordered the matter dismissed.

STATUTES AND RULES

The statutes involved in this case are §402(a), (b),

(ec) and (e) of the Communications Act (47 U.S.C. 4 402

(a), (b), (ec) and (e); 66 Stat. 718 et seq.) and 28 U.S.C.

§§ 2342 and 2343. The rules involved are Rule 26(b) of the

Federal Rules of Appellate Procedure and Rule 12(h) (3)

of the Federal Rules of Civil Procedure. These statutes

and rules are set forth in pertinent part in the Appendix

to this brief.

In its argument, petitioner makes reference to other

statutes and cases involving other statutes. Those stat-

utes (28 U.S.C. § 1404(a), 28 U.S.C. §$1406(a) and (ce),

28 U.S.C. § 1652 and 28 U.S.C. §2112(a)) are also set

forth in the Appendix to this brief.

QUESTION PRESENTED

The questions stated by petitioner (Pet., p. 2) are not

accurate. The Communications Act expressly provides

that review of Federal Communications Commission or-

3

ders denying applications for radio station construction

permits may be had only in the Court of Appeals for the

District of Columbia Circuit (47 U.S.C. § 402(a) and (b);

66 Stat. 718).

The question presented, therefore, is: When the Dis-

trict of Columbia Circuit is expressly vested with subject

matter jurisdiction to review a particular order to the

exclusion of all other courts of appeals, may a petition

for review of such an order be effectively filed in another

court of appeals and may such court effectively transfer

the matter to the District of Columbia Circuit after the

time to seek review has expired?

STATEMENT OF THE CASE

Petitioner’s statement of the case is inaccurate and

much of it is irrelevant to the question presented.

After hearings in which substantial evidence was re-

viewed, on April 3, 1973, the Federal Communications

Commission (‘‘FCC”) issued its opinion and order which

denied petitioner’s application for a permit to construct

a new public Class III-B coast radio station near Alma-

den, California. The FCC based that denial upon its find-

ing that the proposed station would cause intolerable

cochannel electrical interference with a nearby radio sta-

tion of the same class licensed to respondent The Pacific

Telephone and Telegraph Company (‘‘Pacific Tele-

phone”). In the same order, the FCC granted applica-

tions of Western California Telephone Company (‘‘West-

ern”) and Salinas Valley Radio Telephone Company

(‘‘Salinas”) for permits to construct new stations of the

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4

same class near Santa Cruz and Pebble Beach, California,

respectively.

On May 2, 1973, petitioner filed with the Ninth Circuit

a “‘petition for review of order.” By order filed May 31,

1973, the Ninth Circuit ordered the matter transferred

without prejudice to the District of Columbia Circuit on

the ground that exclusive jurisdiction over the matter

was vested in the latter court (Exh. A to Pet.). There-

after, the clerk of the Ninth Circuit transmitted all the

papers to the clerk of the District of Columbia Circuit.

Pacific Telephone, Western and Salinas intervened in

the proceedings as interested persons (47 U.S.C. § 402(e);

66 Stat. 718-719). Thereafter, Pacific Telephone and Sali-

nas filed motions with the District of Columbia Circuit re-

questing dismissal. By per curiam order, without opinion,

the District of Columbia Circuit granted the motions to

dismiss (Exh. B to Pet.).

ARGUMENT

I. THE COURT OF APPEALS CORRECTLY ORDERED THE

MATTER DISMISSED IN ACCORD WITH THE APPLICABLE

STATUTES AND DECISIONS OF THIS COURT AND THE

OTHER COURTS OF APPEALS.

The Communications Act (47 U.S.C. §§ 151, et seq.; 48

Stat. 1064, 66 Stat. 718) requires that appeals from FCC

orders denying radio applications be taken to the Court

of Appeals for the District of Columbia Circuit. Section

402(b) of the Act provides that:

‘‘Appeals may be taken from decisions and orders

of the Commission to the United States Court of

5

Appeals for the District of Columbia in any of the

following cases:

*(1) By any applicant for a construction permit

or station license, whose application is denied by the

Commission’ (47 U.S.C. § 402(b) ; 66 Stat. 718).

It is clear that section 402(b) provides the exclusive

manner of judicial review of the orders listed therein.

Section 402(a) provides for review by all circuits of

other FCC orders and it expressly declares that it is

applicable to ‘‘any order of the Commission under this

Act (except those appealable under subsection (b) of this

section)’’ (47 U.S.C. §402(a); 66 Stat. 718; emphasis

added).?

Acting under these clear provisions, courts of appeals

have held that only the District of Columbia Circuit has

jurisdiction to review orders under § 402(b) and courts

of appeals other than the District of Columbia Circuit

have uniformly dismissed, for lack of jurisdiction, pur-

ported appeals from such orders (WHDH, Inc. v. United

States (1 Cir. 1972) 457 F.2d 559, 560-561; Cook, Inc. v.

United States (7 Cir. 1968) 394 F.2d 84, 85-87; Helena

TV, Inc. v. Federal Communications Commission (9 Cir.

1959) 269 F.2d 30, 31; and see Kessler v. F.C.C. (D.C.

Cir. 1963) 326 F.2d 673, 679, ftn. 4; O’Neill Broadcasting

Company v. United States (D.C.Cir. 1956) 241 F.2d 443,

444-445).

The foregoing decisions are in accord with the general

rule that in the absence of both subject matter jurisdic-

‘Venue in a proceeding under § 402(a) is in the court of ap-

peals of the judicial cireuit in which the petitioner resides or has

its principal office or in the District of Columbia Circuit (28

U.S.C. §§ 2342 and 2343; and see Appendix, pp. i-ii).

SEE YL ASIAN EX SEE TIS NOE MRT TE

Bb

6

tion and statutory authority to transfer, the only possible

judgment is one of dismissal (Gregory Consolidated Min-

ing Co. v. Starr (1891) 141 U.S. 222, 227; Sena v. United

States (8 Cir. 1906) 147 Fed. 485, 490; and see Federal

Rules of Civil Procedure, Rule 12(h)(3)). The cases are

uniform that a Federal court has no power to transfer a

case to another Federal court in the absence of statutory

authority granting such power (Gulf Oil Corporation v.

Federal Power Commission (5 Cir. 1964) 330 F.2d 824,

825; Brucker v. Fisher (6 Cir. 1931) 49 F.2d 759, 761;

Brown v. Heinen (D.Minn. 1945) 61 F.Supp. 563, 564;

and see Swift ¢ Co. v. United States (1928) 276 U.S. 311,

321-323; Timken Co. v. Penna. R.R. Co. (1927) 274 U.S.

181, 185-188).

Petitioner concedes that the Ninth Circuit had no juris-

diction over the subject matter and no statutory author-

ity to transfer the matter (Pet., pp. 2, 8). It follows that

both the filing with the Ninth Circuit and the Ninth Cir-

cuit’s purported transfer were of no effect.2 Therefore,

2Valley Vision, Inc. v. F.C.C. (9 Cir. 1968) 399 F.2d 511 relied

upon by petitioner in its pleadings below, involved a transfer

under the express authority of 28 U.S.C. § 2112(a) which em-

powers a court of appeals to which proceedings with respect to a

-eommission order have been transferred to “transfer all the

proceedings with respect to such order to any other court of

appeals.” In that case, Valley Vision, Inc. had sought review of

FCC orders in both the Ninth Cireuit and in the District of

Columbia Cireuit. The District of Columbia Circuit, observing

that it believed that it had jurisdiction, nonetheless ordered the

proceedings transferred to the Ninth Circuit in accord with 28

U.S.C. § 2112(a) because the matter had first been filed there

(Valley Vision, Inc. v. F.C.C. (D.C.Cir. 1967) 383 F.2d 218,

219). The Ninth Circuit thereafter decided (399 F.2d 515) that

the matter was reviewable only under § 402(b), wherein the Dis-

trict of Columbia Circuit had exclusive jurisdiction, and it trans-

ferred the matter back to the District of Columbia Circuit.

7

the filing with the Ninth Circuit could not have tolled the

time to appeal which expired on May 3, 1973, 30 days

following public notice of the FCC’s order (47 U.S.C.

§ 402(c)). Petitioner’s papers were not transferred to the

District of Columbia Circuit until subsequent to May 31,

1973, about a month after the time to appeal had expired.

That court was, therefore, without jurisdiction to hear

the appeal (United States v. Robinson (1960) 361 U.S.

220, 229-230; Alexander v. Sacha (9 Cir. 1971) 489 F.2d

742, 743). Being without power to extend petitioner’s time

for filing a notice of appeal (Smith v. United States (9

Cir. 1970) 425 F.2d 173, 174; United States v. Rayburn

(8 Cir. 1937) 91 F.2d 162, 164; Federal Rules of Appel-

late Procedure, Rule 26(b)), it correctly dismissed the

matter.

Il. THE PETITION SETS FORTH NO VALID GROUND UPON

WHICH IT SHOULD BE GRANTED.

Petitioner, acknowledging that there is no Federal stat-

ute authorizing a transfer, argues that a transfer may be

predicated on provisions of the constitution and statutes

of the State of California (Pet., pp. 6-8). Petitioner has

cited no decision, and we know of none, in which it has

been determined that a Federal court may obtain such

authority from state law. Indeed, this argument is di-

rectly contrary to the fundamental rule that the jurisdic-

tion and powers of the lower Federal courts are limited

to those which are authorized by acts of Congress

(American Fire € Cas. Co. v. Finn (1951) 341 U.S. 6,

17-18; Chicot County Dist. v. Bank (1940) 308 U.S. 371,

376; Kentucky v. Powers (1906) 201 U.S. 1, 24). It is ele-

8

mentary that the Rules of Decision Act (28 U.S.C. § 1652),

relied upon by petitioner (Pet., p. 8), does not apply to

cases, such as this one, which have their foundation in

Federal law (Maternally Yours v. Your Maternity Shop

(2 Cir. 1956) 234 F.2d 538, 540, ftn. 1; see generally

Moore’s Federal Practice (2nd Ed. 1965) Vol. 1A, para.

305(3), pp. 3052-3057). And, even in those cases in which

it does apply, it is applicable only to substantive law and

not to procedural matters (United States v. F.D. Rich

Company (9 Cir. 1970) 441 F.2d 1148, 1144, certiorari

denied (1971) 404 U.S. 823; Cockrell v. Ferrier (5 Cir.

1967) 375 F.2d 889, 890), such as the transfer of cases

between Federal courts (Atkins v. Schmutz Manufactur-

ing Company (4 Cir. 1970) 485 F.2d 527, 537, certiorari

denied (1971) 402 U.S. 932).

Petitioner also erroneously relies upon certain Federal

statutes which provide for transfer of cases in limited

situations—none of which is comparable to the present

case. Title 28, section 1406(a), of the United States Code

(Pet., p. 7) provides only that a district court may order

transfer of a case in the event of improper venue. Gold-

lawr, Inc. v. Heiman (1962) 369 U.S. 463 (Pet., p. 7)

held that §1406(a) permits transfer whether or not the

transferor court has personal jurisdiction over the defend-

ant. Similarly, Peoples Bank & Trust Co. v. Rue (N.D.

Iowa 1962) 210 F.Supp. 952 and Ferguson v. Kwik-Chek

(D.V.I. 1970) 308 F.Supp. 78 (Pet., p. 7) involve only

transfers, pursuant to §1406(a), by courts lacking per-

sonal jurisdiction over the defendants. Section 1406(a)

does not, even in the situation covered by that statute,

authorize transfer by a district court which has no juris-

9

diction over the subject matter (First Nat. Bank of Chi-

cago v. United Air Lines (7 Cir. 1951) 190 F.2d 493, 496,

reversed on other grounds 342 U.S. 396; United States

ex rel. Jimenez v. Conboy (S.D.N.Y. 1970) 310 F.Supp.

801, 803; Hughes v. Quigley (D.N.J. 1960) 184 F.Supp.

568, 569).

Petitioner can find no comfort in 28 U.S.C. § 1406(c)

(Pet., p. 7). That section merely grants to a district court

the limited power to transfer a case to the Court of

Claims when the case is within the exclusive jurisdiction

of that latter court.

Petitioner also erroneously relies on K oehring Co. .

Hyde Constr. Co. (1966) 382 U.S. 362 ( Pet., p. 7), a case

involving interpretation of 28 U.S.C. § 1404(a) which

grants power to a district court to transfer a case for

the convenience of the parties and witnesses. In that case,

a district court had failed to follow a court of appeals

mandate to transfer. This Court held (382 U.S. 364-365)

that, in the unusual circumstances of the district court’s

failure to follow instructions, the court of appeals could

itself order transfer to another district court. If this were

not so, a court of appeals would be powerless to enforce

its valid orders in the face of a recalcitrant district court.

The decision does not even remotely suggest that, in the

absence of a statute which grants the power to transfer,

a court may transfer a case over which it has no juris-

diction.

——— ane all

10

CONCLUSION

For the foregoing reasons, we respectfully submit that

the petition for a writ of certiorari should be denied.

Dated: San Francisco, California,

January 30, 1974.

James A. DeBors

Ricuarp B. DavcHEerty

Watter R. ALLAN

Duptey A. ZInKE

Attorneys for Respondent

The Pacific Telephone and

Telegraph Company.

(Appendix Follows)

Appendix

STATUTES

47 U.S.C. $402(a), (b), (c) and (e) (in pertinent

part):

**(a) Any proceeding to enjoin, set aside, annul,

or suspend any order of the Commission under this

chapter (except those appealable under subsection

(b) of this section) shall be brought as provided by

and in the manner prescribed in chapter 19A of

Title 5.

‘*(b) Appeals may be taken from decisions and

orders of the Commission to the United States Court

of Appeals for the District of Columbia in any of

the following cases:

**(1) By any applicant for a construction per-

mit. or station license, whose application is denied

by the Commission.

**(c) Such appeal shall be taken by filing a notice

of appeal with the court within thirty days from the

date upon which public notice is given of the decision

or order complained of. Such notice of appeal shall

contain a concise statement of the nature of the pro-

ceedings as to which the appeal is taken; a concise

statement of the reasons on which the appellant in-

tends to rely, separately stated and numbered; and

proof of service of a true copy of said notice and

statement upon the Commission. Upon filing of such

notice, the court shall have jurisdiction of the pro-

ceedings and of the questions determined therein and

shall have power, by order, directed to the Commis-

sion or any other party to the appeal, to grant such

temporary relief as it may deem just and proper.

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Orders granting temporary relief may be either af-

firmative or negative in their scope and application

so as to permit either the maintenance of the status

quo in the matter in which the appeal is taken or

the restoration of a position or status terminated or

adversely affected by the order appealed from and

shall, unless otherwise ordered by the court, be effec-

tive pending hearing and determination of said ap-

peal and compliance by the Commission with the

final judgment of the court rendered in said appeal.

‘‘(e) Within thirty days after the filing of any

such appeal any interested person may intervene and

participate in the proceedings had upon said appeal

by filing with the court a notice of intention to inter-

vene and a verified statement showing the nature of

the interest of such party, together with proof of ser-

vice of true copies of said notice and statement, both

upon appellant and upon the Commission. Any per-

son who would be aggrieved or whose interest would

be adversely affected by a reversal or modification of

the order of the Commission complained of shall be

considered an interested party.

“e * © (Jung 7, 1934, ch. 426, 48 Stat. 926; June

19, 1934, ch. 652, § 402, 48 Stat. 1093; May 20, 1937,

ch. 229, §§ 11-13, 50 Stat. 197; May 24, 1949, ch. 139,

§ 132, 63 Stat. 108; July 16, 1952, ch. 879, 414, 66

Stat. 718; Aug. 28, 1958, Pub. L. 85-791, 4 12, 72 Stat.

945) 298

3Chapter 19A of Title 5, to which reference is made in § 402

(a), was replaced by 28 U.S.C. §§ 2342 and 2343 in the general

revision of Title 5. Chapter 19A itself had previously replaced

Publie Law 901, Eighty-first Congress, approved December 29,

ny to which reference is made in the statutes at large (66 Stat.

).

28 U.S.C. § 2342:

‘‘The court of appeals has exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or

to determine the validity of—

**(1) all final orders of the Federal Communica-

tions Commission made reviewable by section 402

(a) of title 47;

**(2) all final orders of the Secretary of Agri-

culture made under chapters 9 and 20A of title 7,

except orders issued under sections 210(e), 217a,

and 499g(a) of title 7;

**(3) such final orders of the Federal Maritime

Commission or the Maritime Administration en-

tered under chapters 23 and 23A of title 46 as are

subject to judicial review under section 830 of title

46; and

**(4) all final orders of the Atomic Energy Com-

mission made reviewable by section 2239 of title 42.

‘Jurisdiction is invoked by filing a petition as pro-

vided by section 2344 of this title.”

28 U.S.C. § 2343:

‘‘The venue of a proceeding under this chapter is

in the judicial circuit in which the petitioner resides

or has its principal office, or in the United States

Court of Appeals for the District of Columbia Cir-

cuit.”

28 U.S.C. § 1404(a):

‘‘For the convenience of parties and witnesses, in

the interest of justice, a district court may transfer

any civil action to any other district or division

where it might have been brought.”

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28 U.S.C. $1406(a) and (c):

‘‘(a) The district court of a district in which is

filed a case laying venue in the wrong division or

district shall dismiss, or if it be in the interest of

justice, transfer such case to any district or division

in which it could have been brought.

‘*(e) If a case within the exclusive jurisdiction of

the Court of Claims is filed in a district court, the

district court shall, if it be in the interest of justice,

transfer such case to the Court of Claims, where the

case shall proceed as if it had been filed in the Court

of Claims on the date it was filed in the district

court.”

28 U.S.C. § 1652:

‘‘The laws of the several states, except where the

Constitution or treaties of the United States or Acts

of Congress otherwise require or provide, shall be

regarded as rules of decision in civil actions in the

courts of the United States, in cases where they

apply.”

28 U.S.C. §2112(a) (in pertinent part):

“If proceedings have been instituted in two or more

courts of appeals with respect to the same order

the agency, board, commission, or officer concerned

shall file the record in that one of such courts in

which a proceeding with respect to such order was

first instituted. The other courts in which such pro-

ceedings are pending shall thereupon transfer them

to the court of appeals in which the record has been

filed. For the convenience of the parties in the inter-

est of justice such court may thereafter transfer all

the proceedings with respect to such order to any

other court of appeals.”

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RULES OF COURT

Federal Rules of Civil Procedure, Rule 12(h) (3):

‘*Whenever it appears by suggestion of the parties

or otherwise that the court lacks jurisdiction of the

subject matter, the court shall dismiss the action.’’

Federal Rules of Appellate Procedure, Rule 26(b):

‘*The court for good cause shown may upon motion

enlarge the time prescribed by these rules or by its

order for doing any act, or may permit an act to

be done after the expiration of such time; but the

court may not enlarge the time for filing a notice of

appeal, a petition for allowance, or a petition for

permission to appeal. Nor may the court enlarge the

time prescribed by law for filing a petition to enjoin,

set aside, suspend, modify, enforce or otherwise re-

view, or a notice of appeal from, an order of an

_administrative agency, board, commission or officer

of the United States, except as specifically authorized

by law.”

i