Simmons v. I.C.C.

• Decision Date: 23 August 1983
• Docket Number: No. 82-1503,82-1503
• Citation: 716 F.2d 40,230 U.S.App.D.C. 236
• Parties: Patrick W. SIMMONS, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 40

716 F.2d 40

230 U.S.App.D.C. 236

Patrick W. SIMMONS, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America,

Respondents,

Association of American Railroads, International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers

of America, Intervenors.

No. 82-1503.

United States Court of Appeals, District of Columbia Circuit.

Argued March 31, 1983.

Decided Aug. 23, 1983.

Petition for Review of an Order of the Interstate Commerce commission.

Gordon P. MacDougall, Washington, D.C., for petitioner.

H. Glenn Scammel, I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, I.C.C., John J. Powers, III, and John P. Fonte, Dept. of Justice, Washington, D.C., were on the joint brief, for respondents. Robert B. Nicholson and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents.

Joan M. Darby, Washington, D.C., for Intervenor Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Richard H. Streeter and Keith G. O'Brien, Washington, D.C., were on brief; Edward K. Wheeler, Angelo V. Arcadipane and Robert J. Higgins, Washington, D.C., also entered appearances.

Hollis G. Duensing, Washington, D.C., entered an appearance for intervenor, Ass'n of American Railroads.

Before TAMM, WALD and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

Simmons petitions under 28 U.S.C. Sec. 2344 (1976) for review of a rule issued by the Interstate Commerce Commission. We dismiss his petition because he did not participate in the rulemaking and therefore is not an aggrieved party, within the meaning of that section, entitled to direct review. We also hold that Simmons' appeal, having lacked a proper jurisdictional basis from the start, cannot be pursued following his dismissal by an intervenor which also fails to meet jurisdictional requirements.

I

On September 16, 1981, the Interstate Commerce Commission issued two notices proposing separate reductions in the annual reporting requirements of, respectively Class I railroads and Class I and II motor carriers. See Revision to Railroad Annual Report Form R-1, 46 Fed.Reg. 45966; Revisions to Annual Motor Carrier Reporting Requirements, 46 Fed.Reg. 45967. The railroad notice proposed both additions and reductions with regard to reporting requirements; the motor carrier notice, only reductions. The proposals eliminated, respectively, twenty-one and fifteen reporting schedules; the only elimination common to the two proceedings governed compensation of officers and directors.

No person offered comments in both rulemakings. Petitioner Patrick Simmons filed comments in the railroad docket, I.C.C. No. 38590, while The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBT) filed comments in the motor carrier docket, I.C.C. No. 38568. The ICC issued two separate final rules, one day apart. See Revision to Railroad Annual Report Form R-1, 365 I.C.C. 552 (1982) (to be codified at 49 C.F.R. pt. 1241 (1983)); Revisions to Annual Motor Carrier Reporting Requirements, 365 I.C.C. 540 (1982) (to be codified at 49 C.F.R. pt. 1249 (1983)).

On May 4, 1982, Simmons filed a petition to review both rules in this court. On June 1, more than sixty days after the entry of the final order of the agency, IBT moved to intervene pursuant to 28 U.S.C. Sec. 2348 (1976). On June 16, we granted IBT's unopposed motion.

The Commission now moves for dismissal of the petition insofar as it seeks review of the motor carrier docket. It argues that Simmons could not seek review of the decision in that docket because he did not participate in the rulemaking, and that the intervenor, IBT, lacks an independent jurisdictional basis to maintain the suit since its motion to intervene was made and granted beyond the 60-day period specified for seeking direct review of Commission orders.

II

Direct review of orders of the ICC and of five other agencies (the Federal Communications Commission, Department of Agriculture, Federal Maritime Commission, Maritime Administration and Nuclear Regulatory Commission) is governed by the Administrative Orders Review Act, ch. 1189, 64 Stat. 1129 (1950), codified at 28 U.S.C. Secs. 2341-2352 (1976), generally known as the Hobbs Act, which provides in pertinent part:

Any party aggrieved by the final order [of the agency] may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.

28 U.S.C. Sec. 2344 (1976) (emphasis added). This circuit has consistently interpreted the phrase "party aggrieved" to require as a general matter that petitioners be parties to any proceedings before the agency preliminary to issuance of its order. See Gage v. AEC, 479 F.2d 1214, 1218 (D.C.Cir.1973); Easton Utilities Commission v. AEC, 424 F.2d 847, 853 (D.C.Cir.1970); see also United States v. FMC, 694 F.2d 793, 800 n. 25 (D.C.Cir.1982) (dictum); Natural Resources Defense Council v. NRC, 666 F.2d 595, 601 n. 42 (D.C.Cir.1981) (dictum); cf. Outward Continental North Pacific Freight Conference v. FMC, 385 F.2d 981, 982 n. 3 (D.C.Cir.1967) (by implication). This approach has been embraced by the Fifth Circuit in interpreting Sec. 2344, see American Trucking Associations v. ICC, 673 F.2d 82, 84 (1982), cert. denied, --- U.S. ----, 103 S.Ct. 1272, 75 L.Ed.2d 493 (1983), as well as by other circuits in interpreting the identical language in the Bank Holding Company Act of 1956, 12 U.S.C. Sec. 1848 (1976), see Blackstone Valley National Bank v. Board of Governors of the Federal Reserve System, 537 F.2d 1146, 1147 (1st Cir.1976); First National Bank of St. Charles v. Board of Governors, 509 F.2d 1004, 1008 (8th Cir.1975).

Petitioner and intervenor IBT concede that Simmons was not a party to the Commission's motor carrier docket and thus would be excluded by straightforward application of the Gage rule. They argue, however, that the rule should not be applied. Petitioner Simmons challenges Gage itself, urging that the "party aggrieved" requirement be read the same way as the "person aggrieved" requirement of the Administrative Procedure Act, 5 U.S.C. Sec. 702 (1976) (APA). Petitioner's Supplemental Brief on Motion to Dismiss at 5-6. He argues that the Gage rule creates a "club room" situation, which only serves to shelter agency rules from challenge.

We adhere to the principle of Gage. Even if it did not have the presumptive validity conferred by a decade of acceptance in this and other circuits, we would find it sound as an original matter. In drafting the special judicial review provisions of the Hobbs Act, Congress did not adopt the "person aggrieved" standard used in the general judicial review provision of the APA, even though the features of that legislation adopted four years earlier were prominently in mind, as reflected in both the House and the Senate Reports, H.R.Rep. No. 2122, 81st Cong., 2d Sess. 4, reprinted in 1950 U.S.CODE CONG. & AD.NEWS 4303, 4306; S.Rep. No. 2618, 81st Cong., 2d Sess. 4 (1950). Rather, Congress chose the term "party aggrieved." To give meaning to that apparently intentional variation, we must read "party" as referring to a party before the agency, not a party to the judicial proceeding, as suggested by petitioner. This seems to us the only plausible reading, essentially establishing the same requirement with regard to direct appeals from agency orders as exists with regard to appeals from district court decisions. The merits of that policy are for the Congress rather than us to determine. It is true that an agency order will not invariably be the result of structured "proceedings" in which at least some persons may acquire party status, but the Hobbs Act clearly assumed that to be the normal state of affairs. ¹ Where it is not, we have other means to assure, where appropriate, both that the order will be directly appealable and that the petitioner will present its arguments first to the deciding agency. ²

Simmons and IBT next argue that, even if correct in its application to other agencies, Gage should not be applied to the ICC, which was traditionally governed by other procedure and only brought under the Hobbs Act in 1975. See Act of January 2, 1975, Pub.L. No. 93-584, 88 Stat. 1917 (codified at scattered sections of 28 U.S.C.). They acknowledge that the language of the Hobbs Act provides no basis for giving the subsequently included ICC special status, and that this court, in S.C. Loveland Co. v. United States, 534 F.2d 958, 960 n. 1 (D.C.Cir.1976), relied upon Gage in refusing to reach the merits of an ICC order where the petitioner was not a party to the agency proceeding. They argue, however, that our pronouncement in Loveland was dictum, ³ and did not consider prior agency practice and the legislative history of the Act of January 2, 1975. They assert that under prior law, the Urgent Deficiencies Appropriations Act of 1913, ch. 32, 38 Stat. 208, 219-20, the right to appeal ICC rulemakings was not limited to those who were parties before the agency, and that in placing review of ICC orders under the Hobbs Act, Congress did not intend to change this practice.

Giving the same statutory text a different meaning for one agency than for others would require the clearest evidence of such intent in the legislative history--if indeed even that would suffice. Simmons and IBT have presented no such evidence. They point to a letter in the legislative history of the 1975 Act from the Justice Department, which, in describing the then existing law, states that "anyone adversely affected may sue to annul the [ICC] order," Letter from Assistant Attorney General Rakestraw to Representative Rodino, Chairman of the House Committee on the Judiciary (Dec. 9, 1974), reprinted in H.R.Rep. No. 1569, 93d Cong., 1st Sess. 11, reprinted in 1974 U.S.CODE CONG. & AD.NEWS 7025, 7035, and which, after...