Western Union Telegraph Co. v. F.C.C.

• Decision Date: 04 October 1985
• Docket Number: 85-1148,85-1183,85-1170,84-1642,Nos. 84-1177,85-1151,85-1115,85-1124,84-1641,85-1204 and 85-1300,s. 84-1177
• Citation: 773 F.2d 375
• Parties: , 249 U.S.App.D.C. 112, 54 USLW 2189 WESTERN UNION TELEGRAPH CO., MCI Telecommunications Corporation and Mountain State Telephone and Telegraph Co., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 375

773 F.2d 375

84 A.L.R.Fed. 357, 249 U.S.App.D.C. 112,

54 USLW 2189

WESTERN UNION TELEGRAPH CO., MCI Telecommunications

Corporation and Mountain State Telephone and Telegraph Co., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

Nos. 84-1177, 84-1641, 84-1642, 85-1115, 85-1124, 85-1148,

85-1151, 85-1170, 85-1183, 85-1204 and 85-1300.

United States Court of Appeals District of Columbia Circuit.

Oct. 4, 1985.

Petitions for Review of Orders of the Federal Communications commission.

Michael H. Bader, Kenneth A. Cox, William J. Byrnes, Thomas R. Gibbon, Theodore D. Kramer and John M. Scorce, Washington, D.C., were on the motion to dismiss for petitioner MCI Telecommunications Corp.

Judith A. Maynes, Robert B. Stechert, Daniel Stark, Jules M. Perlberg, Jonathan S. Hoak, Howard J. Trienens and Alfred A. Green, Chicago, Ill., were on the opposition to the motion for petitioner American Tel. and Tel. Co.

John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., Washington, D.C., was on the response to the motion to dismiss for respondent F.C.C.

Before MIKVA, BORK and SCALIA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This motion presents the question whether this court must dismiss for lack of jurisdiction a petition filed before the order of which it seeks review was "entered" as that term is defined by statute and regulation.

I

On March 1, 1985 the FCC adopted an order entitled "Investigation of Access and Divestiture Related Tariffs." The order was released to the public on March 8. On March 15, the American Telephone and Telegraph Company ("AT&T") filed a petition for review in this court. The order was not published in the Federal Register until March 21. 50 Fed.Reg. 11,440. MCI Telecommunications Corporation ("MCI") moves to dismiss AT&T's petition as prematurely filed.

Our jurisdiction to review this order is defined by 28 U.S.C. Sec. 2344 (1982), which provides that the petition for review must be filed within sixty days after "entry" of the order. FCC orders like that at issue here are deemed to be "entered" for purposes of Sec. 2344 on "the date upon which the Commission gives public notice of the order," 47 U.S.C. Sec. 405 (1982). An FCC regulation defining the time of public notice of agency action provides that, with respect to orders of this type, public notice occurs at "3 P.M. Eastern Time on the day after ... the date of publication in the FEDERAL REGISTER." 47 C.F.R. Sec. 1.4(b) (1984). MCI argues that the statutes and regulation combine to demarcate a precisely defined period within which AT&T's petition was required to have been filed, beginning at 3:00 p.m. the day after publication in the Federal Register of the order it challenged and ending sixty days later. Because that sixty-day period "is jurisdictional in nature, and may not be enlarged or altered by the courts," Natural Resources Defense Council v. NRC, 666 F.2d 595, 602 (D.C.Cir.1981) (citations omitted), MCI concludes that AT&T's petition, filed seven days before the beginning of the period, must be dismissed for lack of jurisdiction. ¹

AT & T replies that it was not required to wait until commencement of the prescribed period to seek review, because the order was effective immediately upon its release to the public on March 8 and was therefore ripe for review on that date. Even if the premise of effectiveness and ripeness is correct (which we need not decide), the conclusion of immediate reviewability does not follow. It is not a principle of law that all agency action must be reviewable as soon as it is effective and ripe--or indeed that all agency action need be reviewable at all. Here the governing statutes, 28 U.S.C. Sec. 2344 and 47 U.S.C. Sec. 405, provide that review is unavailable until the date the Commission gives public notice, whether or not the order becomes effective and otherwise ripe before then; and we have neither been referred to nor can conceive of any constitutional obstacle to that disposition in the circumstances of this case.

AT&T asserts, however, that the purpose of timeliness requirements is to ensure that late petitions do not "endanger the finality of agency orders," Opposition to Motion to Dismiss for AT&T at 4 n. * *; and that since premature petitions do not frustrate that purpose they are not jurisdictionally barred. Since we deal with statutory texts rather than disembodied purposes, we assume that AT&T is proposing an interpretation of 28 U.S.C. Sec. 2344. This provides, in relevant part, that parties aggrieved by a final agency order "may, within 60 days after its entry, file a petition to review the order." That language can (with some straining) be interpreted to establish sixty days after entry as the filing deadline rather than to establish the sixty-day period after entry as the filing "window"--thus precluding petitions filed more than sixty days after entry, but not those filed before entry. Cf. Newsweek, Inc. v. United States Postal Service, 652 F.2d 239 (2d Cir.1981) (39 U.S.C. Sec. 3628, which provides that certain decisions of the Board of Governors of the Postal Service "may be appealed ... within 15 days after [their] publication," permits judicial review of appeals filed prior to publication, as long as the decisions appealed from were final).

We decline to adopt so novel an interpretation of Sec. 2344. Its language is inapt for the purpose. If the intent were to establish a filing deadline rather than a filing window, it would more naturally have been phrased "no later than 60 days after ... entry" rather than "within 60 days after ... entry." AT&T cites no case--and our research reveals none other than Newsweek ²--in which any court has interpreted any of the dozens of functionally identical statutory time requirements for the filing of review petitions as establishing only a termination date, and not a commencement date, for judicial jurisdiction. To the contrary courts have often dismissed premature petitions under provisions analogous to Sec. 2344, never suggesting that they were free to do otherwise. See, e.g., Associated Gas Distributors v. FERC, 738 F.2d 1388 (D.C.Cir.1984) (16 U.S.C. Sec. 825l(b), requiring filing "within sixty days after the order"); Public Service Co. v. FERC, 716 F.2d 778 (10th Cir.1983) (same); City of Gallup v. FERC, 702 F.2d 1116 (D.C.Cir.1983) (same); Selco Supply Co. v. EPA, 632 F.2d 863 (10th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 225 (1981) (alternative holding) (7 U.S.C. Sec. 136n(b), requiring filing "within 60 days after the entry" of the order); Virginia Electric & Power Co. v. EPA, 610 F.2d 187 (4th Cir.1979) (33 U.S.C. Sec. 1369(b), requiring filing "within ninety days from the date" of agency action); British Steel Corp. v. United States, 573 F.Supp. 1145 (Ct. Int'l Trade 1983) (19 U.S.C. Sec. 1516a(a)(2)(A), requiring filing "[w]ithin thirty days after the date of publication").

We note, moreover, that the strained construction proposed by AT&T would have unfortunate consequences. If the courts did not use the commencement date for the running of the limitations period as the starting date for the availability of judicial review, they would have to devise some other date for that purpose. It is not apparent to us that any date would be within their power to prescribe other than (what AT&T urges here) the earliest date when the order is final and ripe for review. But the law of finality and ripeness being as complex as it is, that is less a date than it is a lawsuit. See, e.g., Andrade v. Lauer, 729 F.2d 1475, 1480-84 (D.C.Cir.1984); Carter/Mondale Presidential Committee v. FEC, 711 F.2d 279 (D.C.Cir.1983). It makes no sense to reject the more natural meaning of these limitations statutes in order to put in place a system that consumes resources in argument over a technical and (if the rule were clear) utterly inconsequential point.

We therefore hold that Sec. 2344 imposes a jurisdictional bar to judicial consideration of petitions filed prior to entry of the agency orders to which they pertain. The situation which thereupon arises when a petition filed before entry is dismissed after entry (after the defect has been, one might say, eliminated) is no more anomalous than the situation which arises when petitions that are premature for other reasons are dismissed despite the fact that the prematurity of the court's reaching the issue (but not the prematurity of the filing ) has been eliminated. For example, a challenge to now-final agency action that was filed before it became final must be dismissed. See, e.g., Industrial Union Department, AFL-CIO v. Bingham, 570 F.2d 965, 968-69 (D.C.Cir.1977) (per curiam); Selco Supply Co., 632 F.2d at 865. We see no basis for a distinction here.

II

AT&T and the FCC (which also opposes this motion to dismiss) make another argument, which goes not to the effect of "entry" under Sec. 2344, but to when it must be deemed to occur. As noted earlier, 47 U.S.C. Sec. 405 specifies that entry under Sec. 2344 occurs when public notice of the order is given; and a Commission regulation, 47 C.F.R. Sec. 1.4(b), further specifies that public notice shall be deemed given at 3:00 p.m. on the day after Federal Register publication. AT&T and the Commission assert that this last link in the chain breaks in the present case, leaving this court free to decide for itself when public notice was given--which AT&T suggests should be when the order was released to the public on March 8, a week before this petition was filed. They contend that, for purposes of determining prematurity of filings (though not for other purposes), the regulation was intended to apply, and hence provides the requisite content, only in the situation where there is a "race...