City of Rochester v. Bond, No. 78-1352

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BAZELON, TAMM and WILKEY; Opinion for the Court filed by WILKEY; WILKEY
Citation195 U.S.App.D.C. 345,603 F.2d 927
Decision Date25 May 1979
Docket NumberNo. 78-1352
PartiesCADC 79-71 CITY OF ROCHESTER, a Municipal Corporation in the State of New York, et al., Appellants, v. Langhorne M. BOND, Individually and as Administrator of the Federal Aviation Administration, et al.

Page 927

603 F.2d 927
195 U.S.App.D.C. 345
CADC 79-71 CITY OF ROCHESTER, a Municipal Corporation in the
State of New York, et al., Appellants,
v.
Langhorne M. BOND, Individually and as Administrator of the
Federal Aviation Administration, et al.
No. 78-1352.
United States Court of Appeals,
District of Columbia Circuit.
Argued 9 Jan. 1979.
Decided 29 March 1979.
As Amended May 25, 1979.

Page 929

Larry A. Stumpf, Rochester, N. Y., was on the brief for appellants.

Robert W. Frantz, Atty., Dept. of Justice, Washington, D. C., with whom James W. Moorman, Asst. Atty. Gen., Walter J. Postula, and Robert L. Klarquist, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellees.

Samuel Miller, Washington, D. C., and Frank S. Hagelberg, Rochester, N. Y., also entered appearances for appellee Malrite Broadcasting, Inc. and Malrite of New York, Inc.

Before BAZELON, TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

WILKEY, Circuit Judge:

The sole question in this appeal is whether the district court had subject-matter jurisdiction over appellants' controversies with the Federal Aviation Administration (FAA) and the Federal Communication Commission (FCC). The district court dismissed the suit, finding that jurisdiction lies exclusively in the courts of appeals. 1 We affirm its decision.

I. BACKGROUND

A. Facts.

On 8 May 1973 Malrite Broadcasting Company (Malrite), an appellee in this case, applied to the FCC for a permit to construct a 600 foot radio antenna tower near Rochester-Monroe County Airport in Rochester, New York. 2 In accordance with its regulations the FCC notified the FAA of the proposed construction. 3 The FAA, finding that the tower would be an "obstruction to air navigation" within its regulations, initiated an aeronautical study to determine whether the tower would constitute a "hazard." 4 Although notice of the study was

Page 930

posted at the airport and mailed to interested persons, appellants allegedly were not notified. 5 Other persons and groups who did receive notice participated in the administrative proceedings, including two informal public hearings.

On 16 September 1974 the FAA decided that the tower would not be a hazard to air navigation, which decision it affirmed on review on 4 December. 6 Relying on the FAA's "no hazard" determination and its own assessment of the proposed construction, the FCC issued a construction permit on 28 April 1975; 7 and on 8 September the City of Rochester, an appellant in this controversy, issued a building permit for the tower. Construction began later that year and the tower was completed in early February 1976.

Responding to residents' complaints about air traffic noise, the Rochester city council held public hearings on 2 and 8 March 1976 attended by, among others, the Air Line Pilots Association (ALPA), an appellant before this court. At the 8 March meeting, the city council adopted a resolution directing the city attorney to petition the FAA to reopen its "no hazard" determination. The city's petition was submitted some three months later. 8 Following a second review of its determination the FAA restated in a letter to the city on 10 September 1976 that the tower, in light of modified flight procedures, was "not hazardous to aircraft or persons on the ground if the aircraft were operated in accordance with established procedures." 9 More than

Page 931

nine months later, on 15 June 1977, the City of Rochester and ALPA (appellants) brought this suit against the FAA and the FCC.

B. Course of Proceedings.

Appellants filed suit in district court seeking to have the "no hazard" determination and the construction permit set aside. 10 The complaint alleged that the FAA's failure to give adequate public notice of the aeronautical study violated the Federal Aviation Act 11 and certain regulations thereunder. 12 In addition, the FAA and the FCC were alleged to have violated the National Environmental Policy Act of 1969 (NEPA) by failing to prepare environmental impact statements concerning their actions in this matter. 13 The district court dismissed the complaint "because exclusive jurisdiction over challenges to these FCC and FAA actions is in the court of appeals." 14 This appeal followed.

II. ANALYSIS

Plaintiffs are in a common predicament. They have sought review of agency action in the "wrong" court (or so the district court concluded) and inadvertently may have lost any occasion whatsoever for judicial review. Although we think the district court correctly found it had no jurisdiction in this case, that result may not have been obvious. Discussion of the jurisdictional point may remove thereby some uncertainty from the choice of a proper forum in the future.

The principles which frame our decision are unexceptionable. The first is that one who has been injured by agency action is presumptively entitled to judicial review. This presumption is codified in the Administrative Procedure Act 15 and evident in the cases, 16 and nothing in the circumstances of this case suggests that appellants' allegations were not reviewable somewhere. Second, Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur. 17 In the absence of a statute prescribing review in a particular court, " nonstatutory" review may be sought in district court under any applicable jurisdictional grant. If, however, there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies. 18 We think that this is so in the present case.

Page 932

Section 402(b) of the Communications Act of 1934 provides that "any . . . person who is aggrieved or whose interests are adversely affected" by an FCC order granting or denying an application for a construction permit may appeal to this court. 19 Similarly, § 1006 of the Federal Aviation Act provides that "(a)ny order . . . issued by the (FAA) . . . shall be subject to review" in this court or in another appropriate court of appeals at the instance of "any person disclosing a substantial interest" therein. 20 Neither statute specifies whether the district court may exercise concurrent jurisdiction when an independent source of such jurisdiction can be found. 21 The district court evidently assumed, and correctly we think, that in this case it may not. Appellants dispute both this assumption and the finding that the instant case is in all respects one to which the special statutory review provisions apply.

A. Jurisdiction Under § 402(b) of the Communications Act and § 1006 of the Aviation Act.

Appellants apparently do not contest the district court's finding that their claims against the FCC were within this court's jurisdiction under § 402(b), though, of course, they do dispute that our jurisdiction is exclusive. However, appellants disagree that their controversy with the FAA would be within the jurisdiction of the courts of appeals under § 1006, arguing that for various reasons a "no hazard" determination is not an "order" within the meaning of the section.

At the outset we observe that it is undisputed that the administrative record compiled by the FAA in the course of its proceedings is adequate for review in the court of appeals, a circumstance we have frequently held to be a principal indicium of "orders" reviewable within the meaning of direct review statutes like those before us. 22 Appellants' arguments are of a somewhat different sort. They contend first that inasmuch as a "no hazard" determination is concededly "advisory," it cannot be an "order" within § 1006. 23 The argument is without merit. 24 Moreover, its helpfulness to appellants' suit is less than obvious. The argument would appear not to distinguish review under § 1006 from review generally, and consequently were we persuaded that the order's "advisoriness" made it unreviewable within § 1006, we doubt it would be reviewable at all. Instead, we are convinced that the ruling is judicially reviewable and only as an "order" within § 1006.

Page 933

The Administrative Procedure Act defines "order" quite expansively as "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form." 25 This definition plainly embraces the "no hazard" determination before this court, and although we might in certain circumstances construe "order" more narrowly for purposes of § 1006, 26 we see no reason that any such more narrow construction would focus upon the putatively advisory character of an agency ruling. The FAA's ruling is administratively final, already having been twice reconsidered, and it is declaratory at least in the commonly understood sense of formally ascribing legal significance to facts. The FAA quite reasonably has chosen to conduct such declaratory adjudications, obviously with the intention that its "advice" will affect the proposed construction, even if only informally. 27 We think such final actions, declaratory in character and indisputably reviewably Somewhere, were precisely the sort of matter whose review Congress chose to confine to the courts of appeals.

Appellants' second theory of escape from review in the courts of appeals relies, mistakenly, on our decision in International Navigators Council of America v. Schaffer (INCA). 28 In INCA the petitioner had filed a complaint with the FAA under § 1002 of the Federal Aviation Act, 29 alleging that the Administrator was threatening air safety by failing to promulgate certain regulations. Finding that § 1002 contemplated only complaints about violations of the Act by third persons, the FAA treated the complaint as a petition for rulemaking. Petitioner sought reconsideration of its complaint, which was denied, and then review directly in this court. We dismissed, finding that the Administrator's refusal to entertain...

To continue reading

Request your trial
155 practice notes
  • Northwest Airlines, Inc. v. Goldschmidt, No. 80-2015
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 2, 1981
    ...cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980); accord, City of Rochester v. Bond, 195 U.S.App.D.C. Page 1314 345, 603 F.2d 927, 932-35 & n.26 (1979); Investment Company Institute v. Board of Governors, 179 U.S.App.D.C. 311, 551 F.2d 1270 (1977); Deutsche Lufthansa Ak......
  • Waste Management of Illinois, Inc. v. USEPA, No. 88 C 2797.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 17, 1989
    ...v. Dole, 787 F.2d 186, 192-93 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 169, 93 L.Ed.2d 106 (1986); City of Rochester v. Bond, 603 F.2d 927, 936 (D.C.Cir.1979) ("The policy behind having a special review procedure in the first place ... disfavors bifurcating jurisdiction over v......
  • Gant v. Reilly, No. Civ.A. 02-858(RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 11, 2002
    ...powers, may freely choose the court in which judicial review [of agency decisions] may occur,' quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979) (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958)), [and] [i]f Congress mak......
  • Telecommunications Research and Action Center v. F.C.C., Nos. 84-1035
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 24, 1984
    ...v. United States, 629 F.2d 467, 471 (7th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981); Rochester v. Bond, 603 F.2d 927, 935 (D.C.Cir.1979); Investment Co. Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270, 1278-79 (D.C.Cir.1977). Se......
  • Request a trial to view additional results
160 cases
  • Iowa Utilities Bd. v. F.C.C., Nos. 96-3321
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 14, 1997
    ...exclusive means of review. See Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1299 (8th Cir.1989); City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979). We afford subsection 252(e)(6) our traditional presumption and conclude that it is the exclusive means to attain revie......
  • WildEarth Guardians v. Chao, CV-18-110-GF-BMM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • May 23, 2019
    ...fully developed administrative record and to serve "coherence and economy." Sutton , 38 F.3d at 625-26 (citing City of Rochester v. Bond , 603 F.2d 927, 936 (D.C. Cir. 1979) ).The D.C. Circuit in Int'l Bhd. of Teamsters v. Peña, 17 F.3d 1478, 1481-82 (D.C. Cir. 1994), analyzed a jurisdictio......
  • Campaign Legal Ctr. & Democracy 21 v. Fed. Election Comm'n, No. 18-5239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • March 13, 2020
    ...on other grounds by Califano v. Sanders , 430 U.S. 99 [97 S.Ct. 980, 51 L.Ed.2d 192] (1977) ; see also City of Rochester v. Bond , 603 F.2d 927, 931 (D.C. Cir. 1979) (noting that the presumption of reviewability is "codified" in APA Section 702). And, "[b]ecause the presumption favoring int......
  • Matson Navigation Co. v. U.S. Dep't of Transp., Civil Action No. 18-2751 (RDM)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • May 30, 2020
    ...proceedings, while a bifurcated approach might lead to confusion and unnecessary duplication." Id.; see also City of Rochester v. Bond, 603 F.2d 927, 936 (D.C. Cir. 1979) ("The policy behind having a special review procedure in the first place similarly disfavors bifurcating jurisdiction ov......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT