McClendon v. Jackson Television, Inc., 79-1141

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before BROWN, Chief Judge, KRAVITCH and JOHNSON; FRANK M. JOHNSON, Jr.
• Citation: 603 F.2d 1174
• Parties: B. B. McCLENDON, Jr., Plaintiff-Appellant, v. JACKSON TELEVISION, INC., and Federal Communications Commission, Defendants-Appellees. Summary Calendar. *
• Docket Number: No. 79-1141,79-1141
• Decision Date: 04 October 1979

Page 1174

603 F.2d 1174 B. B. McCLENDON, Jr., Plaintiff-Appellant,
v.
JACKSON TELEVISION, INC., and Federal Communications
Commission, Defendants-Appellees. No. 79-1141
Summary Calendar. ^* United States Court of Appeals,
Fifth Circuit. Oct. 4, 1979.

Page 1175

Pat H. Scanlon, Jackson, Miss., for plaintiff-appellant.

Wise, Carter, Child, Steen & Caraway, J. Leray McNamara, W. McDonald Nichols, Jackson, Miss., for Jackson Television, Inc.

Page 1176

Joseph E. Brown, Jr., Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Miss., John P. Greenspan, Washington, D. C., for FCC.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, Chief Judge, KRAVITCH and JOHNSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

This appeal concerns a failure to exhaust administrative remedies. Jackson Television, Inc., is one of several applicants for a new television station in Jackson, Mississippi. Until February 1, 1978, plaintiff B. B. McClendon was a shareholder, director, and officer of Jackson Television. On that date, he resigned his positions and transferred his stock to another owner. Jackson Television then petitioned the Federal Communications Commission for leave to amend its application to show McClendon's withdrawal from the corporation. Because the Administrative Law Judge assigned to the case had earlier designated as an issue McClendon's past business practices as they might color Jackson Television's character qualifications, he denied the petition. McClendon's past business practices involved alleged violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. In June, 1978, therefore, Jackson Television through the Administrative Law Judge caused two subpoenas to be issued requiring McClendon to appear, bring certain designated records, and testify at scheduled hearings before the Commission.

On June 29, 1978, McClendon filed with the Commission a motion to quash subpoenas. Contemporaneously, he filed suit in the district court of the Southern District of Mississippi seeking a declaratory judgment that the subpoenas were void. On August 3, 1978, the Administrative Law Judge denied the motion to quash. McClendon did not appeal to the Commission, nor did he appear and testify. On December 11, 1978, the district court dismissed the complaint for failure to exhaust administrative remedies. We affirm.

We decline the invitation of the Commission to decide whether the subpoenas were lawfully issued and procedurally valid. We need not reach that issue because McClendon did not exhaust his administrative remedies before bringing suit in the district court. "(N)o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938); McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Hedley v. United States,594 F.2d 1043 (5th Cir. 1979). The doctrine applies even in the absence of an express statutory command of exclusiveness. The Supreme Court has held that where Congress "has enacted a specific statutory scheme for obtaining review, . . . the doctrine of exhaustion of administrative remedies . . . requires that the statutory mode of review be adhered to." Whitney National Bank v. Bank of New Orleans, 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965); Coca-Cola Co. v. F. T. C., 475 F.2d 299 (5th Cir. 1973). Here both Congress, by statute, and the Commission, by rule, have set out...