Southland Industries v. Federal Communications Com'n

• Decision Date: 15 June 1938
• Docket Number: No. 7018.,7018.
• Citation: 69 App. DC 82,99 F.2d 117
• Parties: SOUTHLAND INDUSTRIES, Inc., v. FEDERAL COMMUNICATIONS COMMISSION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 82, 99 F.2d 117 (1938)

SOUTHLAND INDUSTRIES, Inc., v. FEDERAL COMMUNICATIONS COMMISSION.

No. 7018.

United States Court of Appeals for the District of Columbia.

Decided June 15, 1938.

Donald C. Beelar, Percy H. Russell, Jr., and Louis G. Caldwell, all of Washington, D. C., for appellant.

Hampson Gary, George B. Porter, William H. Bauer, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

MILLER, Associate Justice.

This is an appeal under Section 402(b) of the Communications Act¹ from the decision of the Federal Communications Commission granting the application of Hunt Broadcasting Association, for a construction permit for a radio broadcast station at Greenville, Texas. Appellant is the licensee of Station WOAI operating at San Antonio, Texas. It claims to be aggrieved and adversely affected by the decision because its service in the Greenville area will be subjected to objectionable interference. It petitioned for leave to intervene in the hearing before the Commission on the Hunt application; was permitted to do so under the Commission's Rule 105.20; was represented at the hearing and participated therein.

The Commission's decision was filed on May 18, 1937, effective July 13, 1937. On July 20, 1937, and within the twenty-day period provided by Section 405 of the Communications Act (48 Stat. 1095, 47 U.S.C.A. § 405 (Supp.1937), appellant filed a petition for rehearing. On August 2, 1937, before the Commission had acted upon its petition, it appealed to this court as provided by Section 402(c) of the Act.² On August 18, 1937, the Commission dismissed the petition.

The presence in the record of the facts set out in the preceding paragraph challenges the jurisdiction of this court. While no motion to dismiss the appeal has been made, the court must consider the question and if it has no jurisdiction must dismiss the appeal sua sponte.³

It is a well recognized principle that an appeal cannot be taken from an interlocutory order (Metzger v. Kelly, 34 App. D.C. 548), or from a judgment or decree not final as to all the parties, the whole subject-matter and all the causes of action involved, "* * * and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction." Arnold v. United States for Use of Guimarin & Co., 263 U.S. 427, 434, 44 S.Ct. 144, 147, 68 L.Ed. 371. It is equally well settled that the courts cannot be resorted to for the adjudication of an administrative question the determination of which has not been completed by a commission having jurisdiction of it for that purpose. Northern Pacific Ry. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221.

In United States ex rel. Dascomb v. Board of Tax Appeals, 56 App.D.C. 392, 394, 16 F.2d 337, 339, we said: "It is familiar law that a decision is not final, within the meaning of the statute providing for an appeal, until disposition of an application for rehearing or reconsideration seasonably made and entertained." The same rule has been many times stated and applied by the Supreme Court and other Federal courts.⁴ Accordingly in Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 36, 14 S.Ct. 4, 6, 37 L.Ed. 986, the Court said:

"The rule is that if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Brockett v. Brockett, 2 How. 238, 249 11 L.Ed. 251; Texas & Pacific Railway v. Murphy, 111 U.S. 488, 4 S.Ct. 497 28 L.Ed. 492; Memphis v. Brown, 94 U.S. 715 24 L.Ed. 244." Italics supplied.

Appellant relies upon Luckenbach Steamship Co. v. United States, 272 U.S. 533, 47 S.Ct. 186, 71 L.Ed. 394, to support its contention that this court may obtain jurisdiction notwithstanding the pendency of the motion for rehearing before the Commission. That case involved an appeal from the Court of Claims. 59 Ct.Cl. 628. Appeals from that court were governed by rules peculiar to it, and the language of the Supreme Court in its decision is necessarily limited in its effect accordingly. Section 243 of the Judicial Code, 36 Stat. 1157, provided that all appeals from the Court of Claims should be taken "under such regulations as the Supreme Court may direct." See Morse v. United States, 270 U.S. 151, 153, 46 S.Ct. 241, 242, 70 L.Ed. 518. The rule adopted pursuant thereto provided that: "In all cases an order of allowance of appeal * * * is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal." It appeared, in the Luckenbach Case, supra, at page 535, 47 S. Ct. at page 186, that while a motion for a new trial was pending the claimant filed with the clerk "an application for an appeal from the judgment. Thereafter the motion for a new trial * * * was denied, and the application for an appeal was then brought to the court's attention and allowed." The Court said of the application: "Evidently it was intended to be pressed only if and when the motion for a new trial and amended findings was denied. The court so regarded it, and therefore gave effect to it after disposing of the pending motion." Italics supplied. Under the practice of that court, therefore, the application for allowance of appeal was considered by the court after the motion for new trial was denied; its order of allowance of appeal was made thereafter; and when the matter first came to the attention of the Supreme Court, there was no pending motion for new trial in the lower court. The effect of the decision, therefore, is merely that where an application for allowance of appeal is prematurely filed, it may properly be considered by the Court, under the rule, as having been filed after the motion for new trial has been disposed of. Properly understood, therefore, the decision is not in conflict with the general rule stated above. Similarly, in the case of Sauri v. Sauri, 1 Cir., 45 F.2d 90 — also relied on by appellant — the decision interpreted a rule of practice governing appeals from the Supreme Court of Puerto Rico, and held that allowance of a "petition for appeal" after the overruling of a "motion for reconsideration" cured premature filing of the petition. No such special rules are involved in the present case and there is nothing to take the case out of the general rule long ago established by the Supreme Court and followed in all the Federal courts thereafter.⁵

Appellant urges for our consideration the fact that the Commission has at different times taken different positions regarding the effect of filing a petition for rehearing and that this court has not decided the question when presented to it on former appeals. However, in Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554, we stated the applicable rule of interpretation of Section 405 as follows (page 558):

"The Communications Act differs substantially from the Revenue Act involved in the cases hitherto cited only in the provision of Section 405 that `No such application for rehearing shall excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission.' We think that the legislative history of this section of the Communications Act indicates that its inclusion ought not require a different result. The provisions of Section 405 as a whole are substantially those of Section 16a of the Interstate Commerce Act 34 Stat. 592, 49 U.S.C. § 16a (1934), 49 U.S.C.A. § 16a, and the provision above quoted was adopted almost verbatim. The Interstate Commerce Act makes no provision for direct appellate review of orders by the Interstate Commerce Commission. Hence the language of Section 16a could not, as used in that statute, have been intended to defeat the general rule that a petition for rehearing will suspend the running of the appeal period. We do not think that Congress intended to enlarge the meaning of this language when it was used in the Communications Act.

"Accordingly, we hold that the filing of a petition for rehearing suspends the running of the appeal period, and that an applicant has 20 days from the date of final action on the petition for rehearing within which to file his notice and reasons for appeal. The motion to dismiss the appeal herein is therefore denied."

And we also said in that case:

"It is doubtful, moreover, whether this court would have jurisdiction to entertain an appeal while such a petition was pending before the Commission. Cf. Voorhees v. Noye Manufacturing Co., 1894, 151 U. S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Vincent v. Vincent, 1884, 3 Mackey 320, 14 D.C. 320; Brown v. Evans, 18 F. 56, C.C.D.Nev., 1883."

It follows that the same reason which prevents the running of the time for taking the appeal, prevents this court from acquiring jurisdiction; i. e., because jurisdiction continues in the Commission to modify, reverse, or affirm its decision. Upon the filing of its appeal in this court — its petition for rehearing being then undisposed of — appellant occupied the anomalous position of asking the Commission for administrative relief, and at the same time asking the court for judicial relief from the anticipated decision of the Commission. See Vincent v. Vincent, 3 Mackey 320, 322, 14 D.C. 320, 322; Chicago Great Western R. Co. v. Basham, 249 U. S. 164, 167, 39 S.Ct. 213, 63 L.Ed. 534; Doyle v. District of Columbia, 45 App.D. C. 90; Burnet v. Lexington Ice & Coal Co., 4 Cir., 62 F.2d 906. "Two courts cannot have jurisdiction in the same case at the same time." Lasier v. Lasier...