City of Dallas, Texas v. Rentzel, 12515.
| Decision Date | 14 April 1949 |
| Docket Number | No. 12515.,12515. |
| Citation | 172 F.2d 122 |
| Parties | CITY OF DALLAS, TEXAS v. RENTZEL. |
| Court | U.S. Court of Appeals — Fifth Circuit |
H. P. Kucera, City Atty., of Dallas, Tex., for petitioner.
R. E. Rouer, City Atty., of Ft. Worth, Tex., William D. McFarlane, Sp. Asst. Atty. Gen., and J. Skelly Wright, U. S. Atty., of New Orleans, La., for respondent.
Before HUTCHESON, WALLER and LEE, Circuit Judges.
The question presented for our decision is whether a determination of the Administrator of Civil Aeronautics, pursuant to the Federal Airport Act, 49 U.S.C.A. § 1101 et seq., to grant federal funds to public agencies for airport development is subject to judicial review here.
This is the way the question comes up to us. The City of Dallas claims to have been aggrieved by the Administrator's determination to grant such funds to the City of Fort Worth, and that we have jurisdiction, under Sections 309 and 1006 of the Civil Aeronautics Act of 1938, as amended,1 and under the Administrative Procedure Act.2 Pointing out that Sec. 309,3 invoked by petitioner, contains no provision whatever for review, either here or elsewhere, and that Sec. 1006(a)4 expressly limits the review by the Circuit Court of Appeals provided for in it, to orders of the Authority (Board), the Administrator insists that nothing in the Civil Aeronautics Act supports the petition.
Turning then to the review section of the Administrative Procedure Act, Sec. 1009,5 he points to the precision with which it makes clear that agency action is reviewable only (1) by "any special statutory review proceeding relevant to the subject matter in any court specified by statute"; and (2) "in the absence or inadequacy thereof, by any applicable form of legal action (including actions for declaratory judgment * * *) in any court of competent jurisdiction."
No special statutory review proceeding, except Sec. 1006(a) is claimed by petitioner to exist. As has been pointed out above, that section deals only with orders of the Board. It makes no mention of review of determinations by the Administrator to furnish financial aid.
Petitioner is thus driven, by the absence of provisions for special statutory review, to the provisions of Sec. 1009, only to find that these provisions for review by "any applicable form of legal action" deal not with appellate court review but with review by an original action in a court of competent jurisdiction. The court of appeals is not such a court unless specially authorized by statutory grant of power.6 We are not in any doubt that this court has no such jurisdiction and that the petition must be dismissed.
We need not, therefore, determine or even consider the Administrator's contentions that judicial review of his action may not be had in any court because (1) the controlling statute "precludes judicial review"7 and (2) that, if agency action, it is "agency action by law committed to agency discretion".8
Petition dismissed.
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...issue before this Court is directly controlled by the decisions in Schwab v. Quesada, 284 F.2d 140 (3d Cir.1960), and City of Dallas v. Rentzel, 172 F.2d 122 (5th Cir.1949), cert. denied, 338 U.S. 858, 70 S.Ct. 99, 94 L.Ed. 525 (1949), both involving the Federal Airport Act, a predecessor t......
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