Utah Fuel Co. v. National Bituminous Coal Commission

• Decision Date: 05 December 1938
• Docket Number: No. 7247.,7247.
• Parties: UTAH FUEL CO. et al. v. NATIONAL BITUMINOUS COAL COMMISSION et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 333, 101 F.2d 426 (1938)

UTAH FUEL CO. et al. v. NATIONAL BITUMINOUS COAL COMMISSION et al.

No. 7247.

United States Court of Appeals for the District of Columbia.

Decided December 5, 1938.

Robert E. Quirk, of Washington, D. C., and J. V. Norman, of Louisville, Ky., for appellants.

Robert W. Knox, Gen. Counsel, and Thomas J. O'Brien, Atty., National Bituminous Coal Commission, and Robert L. Stern, Sp. Asst. to Atty. Gen., all of Washington, D. C., for appellees.

Allen Coe and Orville H. Walburn, both of Washington, D. C., filed a brief on behalf of Consumers' Counsel of the National Bituminous Coal Commission as amicus curiae.

Clarence A. Miller, of Washington, D. C., filed a brief on behalf of Aberdeen & Rockfish Railroad Company et al. as amici curiae.

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

MILLER, Associate Justice.

Appellants prepared and filed with appellee, National Bituminous Coal Commission, cost data and sales realization reports on forms supplied by the Commission pursuant to the provisions of the Bituminous Coal Act of 1937.¹ Thereafter the Commission ordered its secretary to make such reports available for inspection by interested persons in advance of hearings at Denver, Colorado, and Washington, D. C. In their bill, filed in the lower court, appellants alleged inter alia that the reports were filed by them as members in good standing of the Bituminous Coal Code; that the Act imposes upon appellees the duty to treat the data contained in the reports in confidence as the private property of appellants; that the threatened disclosure of such data will cause irreparable injury and damage to their business and property; and prayed (1) that appellees be restrained from carrying out the orders for such disclosure; (2) that the court should order, adjudge and decree, pursuant to the provisions of the Federal Declaratory Judgment Act, Jud. Code § 274d, 28 U.S.C.A. § 400 (Supp.1938), that, except with the consent of appellants, appellees are without authority to make available for inspection the data and information submitted by appellants to the Commission. This appeal is from the decree of the lower court denying an injunction and dismissing the bill of complaint.

In Mallory Coal Company v. National Bituminous Coal Commission, 69 App.D.C. 166, 99 F.2d 399, this court held that an order of the Commission, identical in purpose and effect with the one complained of in appellants' bill, was preliminary and procedural in character, and hence not subject to judicial review. It is apparent, therefore, that appellants are, in the present case, attempting to achieve indirectly² a result which was denied in the Mallory Case, i. e., judicial review of a preliminary and procedural order of an administrative agency.

It is a well established rule that available administrative remedies must be exhausted before judicial review can properly be given,³ and that, except as hereinafter noted, preliminary procedural orders of administrative agencies are not subject to judicial review.⁴

The jurisdictional question whether the order complained of is reviewable is basic and cannot be waived by the parties.⁵ One of the important reasons for requiring exhaustion of administrative remedies is to prevent the transfer to courts of duties imposed by law upon administrative agencies. Waivers of such questions in order to secure judicial review cannot give jurisdiction on appeal. "Primary singleness of action and unity" are imperative, and this would be destroyed by substituting the court for the Commission or by creating a divided authority in the determination of such questions.⁶

It is also a well established rule that orders of federal administrative agencies may be reviewed only in the courts and pursuant to the procedures specified by Congress in the pertinent statutes.⁷ It is apparent from the language of the Bituminous Coal Act that Congress intended all interested persons, who desired to do so, to seek relief pursuant to the administrative procedure therein provided;⁸ that it intended judicial review of the Commission's orders to be given exclusively by the United States circuit courts of appeals or by the United States Court of Appeals for the District of Columbia.⁹

In some instances Congress has provided for judicial review of administrative action by use of the writ of injunction, as in the case of the Interstate Commerce Commission.¹⁰ In others it has provided for alternative review by appeal or by writ of injunction as in the case of the Radio Act of 1927¹¹. In other instances, as in the Bituminous Coal Act, Congress has made no express provision for injunctive relief. It is twice provided in the Act that the United States Court of Appeals for the District of Columbia and the United States circuit courts of appeals shall have exclusive jurisdiction to enforce, set aside or modify orders of the Commission.¹²

For a number of reasons injunctive relief is not a proper remedy in the present case. If it should appear that in a particular statute no adequate provision had been made for judicial relief, the writ of injunction might perhaps be the only proper available remedy.¹³ But the rule is otherwise when adequate provision has been made for judicial review,¹⁴ and in this respect the provisions of the Bituminous Coal Act are clearly adequate. The language of the Act is almost word for word identical in this respect with the review provision of the Securities and Exchange Act,¹⁵ and of the Federal Power Act.¹⁶ It also resembles closely the review provision of the National Labor Relations Act;¹⁷ of which the Supreme Court has said:

"Upon that review all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority, are open to examination by the court."¹⁸

Equally inclusive review will be available from a final order of the National Bituminous Coal Commission and will provide full opportunity for challenging and testing its procedural order here involved.

Again, even where Congress has expressly provided for review by means of writ of injunction — as in the case of the Interstate Commerce Commission¹⁹ — relief has been denied where the order sought to be enjoined was, as in the present case, a mere step in procedure;²⁰ and even though in some cases no other review may be available.²¹

Moreover, even in a suit properly brought, in a case of which an equity court has jurisdiction, injunctive relief cannot be given, where the action sought to be enjoined involves a judgment based upon an exercise of discretion by an administrative agency in a matter properly within its jurisdiction.²² The issuance of an injunction in the present case would require a determination that the Commission's order was plainly and palpably erroneous and violative of a ministerial duty imposed by law beyond peradventure clear. Although it may be argued that such a duty appears to have been imposed by Section 4(a) of the Act, 15 U.S.C.A. § 833(a), requiring that the cost data and sales realization reports solicited by the Commission be kept secret, it may be just as persuasively argued that the provisions of Section 10(a), 15 U.S. C.A. § 840(a) permit the introduction of such material into evidence at any hearing before the Commission. The question may be properly reviewed and determined when it comes to us on appeal from a final order, but it is not before us at this time. The statute being ambiguous, and the construction placed thereon by the Commission being a possible one, injunctive relief at this time is not a proper remedy in any event.²³

Appellants' bill in the lower court also sought relief under the provisions of the Federal Declaratory Judgment Act. Jud.Code § 274d, 28 U.S.C.A. § 400 (Supp. 1938). But the procedure of that Act is not available to appellants. As was said by Sibley, J., in Bradley Lumber Co. v. National Labor Relations Board, 5 Cir., 84 F.2d 97, 100, certiorari denied, 299 U.S. 559, 57 S.Ct. 21, 81 L.Ed. 411: "The new power to make a declaratory decree does not authorize a court of equity by declaration to stop or interfere with administrative proceedings at a point where it would not, under settled principles, have interfered with or stopped them under its power to enjoin." The statute does not add to the jurisdiction of the federal courts, or create any new substantive right.²⁴ It is a procedural statute, which adds a remedy for use in cases of which federal courts already have jurisdiction.²⁵ The Federal Declaratory Judgment Act "does not enlarge the scope of equity jurisdiction to permit its application to controversies which have not yet reached the judicial stage."²⁶ The controversy must be one which is appropriate for judicial determination.²⁷ It is necessary, in order to insure the effectiveness of administrative procedures, that interested and aggrieved persons be required to exhaust administrative remedies before seeking judicial review or judicial interference.²⁸

To permit judicial review, either by injunction or by declaratory judgment, of every procedural, preliminary and interlocutory order or ruling by which a person may consider himself aggrieved, would afford opportunity for constant delays in the course of administrative proceedings²⁹ and would render orderly administrative procedure impossible.³⁰ Moreover, it would result in bringing to the courts such an avalanche of trivial procedural questions as largely to monopolize their time and energies.³¹ That some injury may result from appellants being forced to await the entry of a final order before securing judicial review is a regrettable but not controlling factor under such circumstances.³² Injury may result also from judicial determinations³³ and from direct legislative action. ". . . the expense and annoyance of litigation is `part of the social burden of living under government.'"³⁴ Presumably Congress balanced...