Ukiah Adventist Hosp. v. F.T.C.

• Decision Date: 23 March 1993
• Docket Number: No. 91-5349,91-5349
• Parties: , 1992-2 Trade Cases P 70,078 UKIAH ADVENTIST HOSPITAL, a California not-for-Profit Corporation, Now Known as Ukiah Valley Medical Center, and Adventist Health System/West, a California not-for-Profit Corporation, Appellants, v. FEDERAL TRADE COMMISSION, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 543

981 F.2d 543

299 U.S.App.D.C. 54, 1992-2 Trade Cases P 70,078

UKIAH ADVENTIST HOSPITAL, a California not-for-Profit

Corporation, Now Known as Ukiah Valley Medical

Center, and Adventist Health

System/West, a California

not-for-Profit

Corporation, Appellants, v. FEDERAL TRADE COMMISSION, Appellee.

No. 91-5349.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 26, 1992.

Decided Dec. 29, 1992.

Rehearing and Rehearing En Banc

Denied March 23, 1993.

On Appeal from the United States District Court for the District of Columbia.

Thomas Campbell, with whom James W. Teevans and Richard F. Silber were on the brief, for appellants. Deborah H. Bornstein also entered an appearance for appellants.

Frederick E. Dooley, Attorney, F.T.C., with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence and Fred E. Haynes, Asst. U.S. Attys., J. Mark Gidley, Deputy Asst. Atty. Gen., Catherine G. O'Sullivan and David Seidman, Attorneys, Dept. of Justice, James M. Spears, Gen. Counsel, F.T.C., Jay C. Shaffer, Deputy Gen. Counsel and Ernest J. Isenstadt, Asst. Gen. Counsel, F.T.C., were on the brief, for appellee.

Before: EDWARDS, SENTELLE and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellants Ukiah Adventist Hospital and Adventist Health System/West ("AHS/West") seek review of an order issued by the District Court, transferring this action to the United States Court of Appeals for the Ninth Circuit. The appellants filed suit in the District Court, seeking to enjoin the Federal Trade Commission ("FTC") from proceeding with an administrative complaint against them for allegedly violating section 7 of the Clayton Act, 15 U.S.C. § 18 (1988). The District Court, relying on this court's decision in Telecommunications Research and Action Ctr. v. FCC, 750 F.2d 70 (D.C.Cir.1984) ("TRAC" ), determined that it lacked jurisdiction to entertain the action and transferred the case pursuant to 28 U.S.C. § 1631 (1988). ¹

We address two questions on appeal. We must first determine whether a transfer order under 28 U.S.C. § 1631 is appealable. Because we reject the appealability of such an order, we must also consider whether there is any basis for this court, under the All Writs Act, 28 U.S.C. § 1651(a) (1988), to issue a writ of mandamus requiring the District Court to rescind the order transferring the case to the Ninth Circuit. On this latter question, we hold that the District Court has not remotely approached the abuse of authority necessary to warrant such a writ. We therefore leave undisturbed the District Court's order transferring this action to the Ninth Circuit.

I. BACKGROUND

In August 1988, Ukiah Adventist Hospital (now known as Ukiah Valley Medical Center), a small, not-for-profit hospital in Ukiah, California, acquired substantially all of the assets of Ukiah Hospital Corporation, which owned and operated Ukiah General Hospital, also located in Ukiah. AHS/West, a major hospital chain, controls or manages 20 not-for-profit corporations, including Ukiah Valley Medical Center, and AHS/West and Ukiah Valley Medical Center have the same board of directors.

In November 1989, the FTC issued an administrative complaint against Ukiah Valley Medical Center and AHS/West (jointly, "Ukiah"), charging that it had reason to believe that the acquisition of Ukiah Hospital Corporation violated section 7 of the Clayton Act. Ukiah moved to dismiss the complaint on January 19, 1990, asserting that the FTC lacked jurisdiction under section 7 to challenge assets acquisitions by not-for-profit entities.

Shortly after the commencement of the FTC proceeding, Ukiah filed suit in the United States District Court for the Northern District of California, seeking to enjoin the FTC proceeding. On January 30, 1990, the district court dismissed the case, ruling that the FTC had not taken any final agency action that would be subject to judicial review. Ukiah Valley Medical Ctr. v. FTC, 1990-1 Trade Cas. (CCH) p 68,916, at 62,902, 1990 WL 25035 (N.D.Cal. Jan. 30, 1990). The Ninth Circuit affirmed the district court on August 13, 1990. Ukiah Valley Medical Ctr. v. FTC, 911 F.2d 261 (9th Cir.1990).

In the interim, on August 2, 1990, an administrative law judge ("ALJ") at the FTC dismissed the administrative complaint against Ukiah, finding that an assets acquisition by a not-for-profit organization could not be challenged under section 7 of the Clayton Act. ALJ Decision at 19, reprinted in Appellants' Appendix ("A.") 91. Exactly one year later, the full Commission reversed the ALJ's decision. Adventist Health System/West, Docket No. 9234 (Aug. 2, 1991), reprinted in A. 26. Because no discovery or hearings had been held on the issue of liability under section 7, the Commission remanded the case for further proceedings.

In the belief that the full Commission's decision constituted final agency action, Ukiah filed this suit in the United States District Court for the District of Columbia on September 13, 1991, again seeking a preliminary injunction to halt the FTC proceeding. The FTC moved the court to transfer the case to the Ninth Circuit, or, alternatively, to dismiss the action. On October 17, 1991, the District Court issued an order denying the motion for a preliminary injunction and granting the transfer motion. Ukiah Adventist Hosp. v. FTC, Civ. Action No. 91-2320, mem. ord. at 2-3, 1991 WL 270181 (D.D.C. Oct. 17, 1991), reprinted in A. 172-73. The trial court found that it was without jurisdiction to entertain the suit, because under15 U.S.C. § 21(c), (d) (1988), the courts of appeals are vested with exclusive jurisdiction to review final cease and desist orders issued by the FTC, and, under this court's decision in TRAC, a district court has no jurisdiction to hear claims for relief from nonfinal agency action if review of final action is vested exclusively in the courts of appeals. Accordingly, the District Court transferred the case to the Ninth Circuit, pursuant to 28 U.S.C. § 1631. Ukiah then filed this appeal.

II. DISCUSSION

A. Appealability

Ukiah maintains that this court has jurisdiction under 28 U.S.C. § 1292(a)(1) (1988) to review the District Court's denial of a preliminary injunction motion, and under 28 U.S.C. § 1291 (1988) to review what Ukiah believes was a dismissal of the action for lack of subject matter jurisdiction. We find scant authority, however, to support the assertion of appellate review in this court.

As a general principle, it is well settled that transfer orders are not appealable final orders. See Wiren v. Laws, 194 F.2d 873, 874 (D.C.Cir.1951); Howard Elec. & Mechanical Co., Inc. v. Frank Briscoe Co., Inc., 754 F.2d 847, 850-51 (9th Cir.1985). Nor are transfer orders reviewable under the collateral order doctrine. See Nordin v. Nutri/System, Inc., 897 F.2d 339, 343 (8th Cir.1990); Nascone v. Spudnuts, Inc., 735 F.2d 763, 772 (3d Cir.1984). This rule against appealability applies to orders under 28 U.S.C. § 1404(a) (1988), transferring a case from one proper venue to another, see Wiren, 194 F.2d at 874; Frank Briscoe, 754 F.2d at 850-51; Ford Motor Co. v. Ryan, 182 F.2d 329, 329-30 (2d Cir.), cert. denied, 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624 (1950), and to orders under 28 U.S.C. § 1406(a) (1988), transferring a case in which venue was laid improperly, see Carteret Sav. Bank, FA v. Shushan, 919 F.2d 225, 228-30 (3d Cir.1990).

Following this settled rule against appealability, several circuits recently have held that no appeal lies from transfer orders issued pursuant to section 1631. ² See Persyn v. United States, 935 F.2d 69, 72-73 (5th Cir.1991) (transfer from district court to Claims Court); Alimenta (USA), Inc. v. Lyng, 872 F.2d 382, 383-85 (11th Cir.1989) (same); Raines v. Block, 798 F.2d 377, 379-80 (10th Cir.1986) (same); Middlebrooks v. Smith, 735 F.2d 431, 432-33 (11th Cir.1984) (transfer between district courts). In Persyn, for example, the court found a section 1631 order appealable neither as a final order under 28 U.S.C. § 1291, nor as an interlocutory order under 28 U.S.C. § 1292(b) (1988), because--as in this case--the district court had not certified the transfer order for review. See Persyn, 935 F.2d at 72. ³ The decisions in Persyn, Alimenta, Raines and Middlebrooks reflect the common sense view that section 1631 orders are interlocutory for the same reason that venue transfers are: the very purpose of transfer provisions is to allow the case to continue, rather than terminating it. See Middlebrooks, 735 F.2d at 432. ⁴

Ukiah suggests three grounds on which we might review the transfer order. We find none of the grounds persuasive. Ukiah first contends that we have jurisdiction under section 1291 because the District Court dismissed the case for lack of subject matter jurisdiction. This argument mischaracterizes the District Court's order, for the court did not dismiss the case. A transfer order keeps the case alive; an order dismissing the case brings the action to an end. See Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 317 (D.C.Cir.1985) (instructing district court on remand to dismiss action instead of transferring it).

Second, Ukiah relies on our opinion in Goble v. Marsh, 684 F.2d 12 (D.C.Cir.1982), apparently for the proposition that section 1631 transfer orders are appealable in some circumstances. That decision, however, is inapplicable here. In Goble, this court reviewed under the collateral order doctrine a district court order transferring a case to the Court of Claims (now the Claims Court) pursuant to former 28 U.S.C. § 1406(c), ⁵ which authorized transfer to that court when a case within its exclusive jurisdiction was filed in district court. The dispute in Goble was whether plaintiffs had effectively waived any claims against the Government exceeding $10,000, in which case the district court and the Court of Claims would have...