MEDIA ACCESS PROJECT, People for the American Way, and Union of Concerned Scientists, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
No. 88-1760.
United States Court of Appeals, District of Columbia Circuit.
Argued May 25, 1989. Decided Aug. 29, 1989.
883 F.2d 1063
Today‘s decision is a direct rebuff to the Supreme Court‘s
Gregory C. Sisk, Atty., Dept. of Justice, Seattle, Wash., with whom Leonard Schaitman, Atty., Dept. of Justice, John R. Bolton, Asst. Atty. Gen., Diane S. Killory, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., were on the brief, for respondents.
Before ROBINSON, MIKVA and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
Opinion concurring in part and dissenting in part filed by Circuit Judge D.H. GINSBURG.
MIKVA, Circuit Judge:
Petitioners seek review of Federal Communications Commission (“Commission“) regulations that implement, under the Freedom of Information Reform Act of 1986 (“Reform Act“),
We find as a threshold matter that we have jurisdiction to decide this case. Because the Commission invoked the Communications Act,
I
A. Petitioners
Petitioners are three nonprofit organizations that disseminate information about government activities and policies. Petitioner Media Access Project describes itself as a foundation-funded, nonprofit public interest law firm and legal education project that represents citizens’ interests before the Commission, other state and federal regulatory bodies, and courts. Petitioner People for the American Way (“PFAW“) describes itself as a nonpartisan membership organization that seeks to educate its members and the public about democracy and constitutional liberties, including issues such as government secrecy, education, and civil rights. Petitioner Union of Concerned Scientists (“UCS“) describes itself as an independent, membership-supported, nonprofit group concerned about the impact of advanced technology on society, including such issues as nuclear arms control, nuclear power safety, and national energy policy. All three petitioners declare that they use FOIA requests in their public education and advocacy functions.
Petitioners have not filed a FOIA request before the Commission seeking preferred fee status; the challenged regulations have thus not been applied to them, and there is no administrative record to review.
B. Statutory Provisions
The Reform Act requires all federal agencies to promulgate notice-and-comment regulations “specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced.”
The Reform Act also establishes three levels of fees that the agency may charge, depending on the identity of the requester and the use of the requested information: (1) if records are requested for “commercial use,” then fees may include reasonable charges for document search, duplication, and review, see
The Reform Act does not define the terms “commercial use,” “educational institution,” or “representative of the news media.”
C. Regulatory History
Pursuant to Congress’ directive in section
The Commission then promulgated, after further notice and comment, final regulations establishing its fee schedules and guidelines, adopting verbatim the definitions promulgated by OMB. See 3 FCC Rcd. 5107 (1988) (codified at
The final Commission regulations provide in relevant part:
The term “commercial use” request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester. * * *
The term “educational institution” refers to a preschool, a public or private elementary or secondary school, an institute of graduate higher education, an institution of professional education and an institution of vocational education, which operates a program or programs of scholarly research.
* * * * * *
The term “representative of the news media” refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news“) who make their products available for purchase or subscription by the general public. These examples are not intended to be all inclusive.
3 FCC Rcd. at 5111 (codified at
II
Petitioners seek judicial review of the Commission‘s order establishing the final regulations, arguing that the agency‘s definitions of the terms “commercial use,” “educational institution,” and “representative of the news media” are, on their face, contrary to the intent of Congress.
A. Jurisdiction
We must first resolve the Commission‘s threshold argument that we lack jurisdiction over this petition.
At the outset, there is no dispute that, under
The Commission argues, however, that petitioners’ claims in this case do not implicate the Communications Act in any manner and that therefore
The question presented is whether our review is controlled by the Reform Act, which prescribes no particular forum for review, or by the Communications Act, which provides for exclusive review in the court of appeals. Resolution of this question is in turn governed by whether the Commission exercised rulemaking authority granted by the Reform Act or by the Communications Act.
Clearly, the Reform Act conferred authority upon the Commission to adopt these regulations. Our task at this juncture is to inquire whether the Communications Act would also have authorized the action taken here. The Communications Act expressly confers upon the Commission authority to “make such rules and regulations * * * not inconsistent with this chapter [the Communications Act], as may be necessary in the execution of its functions.”
Agency authority flowing from one source in neither broadened nor narrowed by a grant of the very same authority from another source. In the case sub judice, the Commission possesses a single, specific authority to make rules, although this authority is conferred by two different sources, the Communications Act and the Reform Act. Because each of the sources grants the same authority, when the Commission exercises that authority it is impossible to say that that exercise is exclusively pursuant to either of the two sources. Therefore, review of the Commission‘s order promulgating these rules, like review of other
Under our view, an agency either has or does not have authority to act by virtue of a given statutory provision, depending upon a proper interpretation of that provision. If an agency invokes a statutory provision that actually does not confer authority on the agency, it would follow that the agency does not have that authority. On the other hand, if a particular statutory provision gives an agency authority, it actually has that authority whether or not it states that it acts pursuant to that statutory provision.
Although no case presents the question in the precise light we face here, several cases address the analytically related question of where review of agency action allegedly contrary to a statutory mandate other than the agency‘s organic statute should lie. The courts uniformly hold that statutory review in the agency‘s specially designated forum prevails over general federal question jurisdiction in the district courts.
National Wildlife Fed‘n v. ICC, 850 F.2d 694 (D.C.Cir.1988), and Preseault v. ICC, 853 F.2d 145 (2d Cir.1988), cert. granted, U.S., 109 S.Ct. 1929, 104 L.Ed.2d 401 (1989), dealt with regulations promulgated by the Interstate Commerce Commission interpreting a provision of the National Trails Act,
district courts do have jurisdiction to hear constitutional challenges to statutes where no administrative action has yet been taken[,] * * * after the ICC has issued an order [promulgating regulations], as it has done here, exclusive jurisdiction lies in the circuit court to modify or rescind the order.
Preseault, 853 F.2d at 149. Likewise, here, the Commission has issued an order promulgating regulations, administrative action which we believe invokes our exclusive jurisdiction.
In City of Rochester v. Bond, 603 F.2d 927, 936 (D.C.Cir.1979), City of Alexandria v. Helms, 728 F.2d 643, 645 n. 2 (4th Cir. 1984), and Suburban O‘Hare Comm‘n v. Dole, 787 F.2d 186, 192-93 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 169, 93 L.Ed.2d 106 (1986), the courts found that decisions of the Federal Aviation Administration to proceed with certain plans without requiring environmental impact statements were made pursuant to the agency‘s organic statute, the Aviation Act, and not under the National Environmental Policy Act (“NEPA“), despite the fact that only NEPA requires the preparation of such a statement in certain circumstances. See
[i]n the absence of a statute prescribing review in a particular court, “nonstatutory” review may be sought in [the] district court under any applicable jurisdictional grant. If, however, there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.
City of Rochester, 603 F.2d at 931 (footnotes omitted); accord General Elec. Uranium Management Corp. v. Department of Energy, 764 F.2d 896, 903 (D.C.Cir.1985) (“‘where it is unclear whether review jurisdiction is in the district court or the court of appeals, the ambiguity is resolved in favor of the latter’ “) (quoting Denberg v. United States R.R. Retirement Bd., 696 F.2d 1193, 1197 (7th Cir.1983)), cert. denied, 466 U.S. 926, 104 S.Ct. 1706, 80 L.Ed.2d 180 (1984); Connors v. Amax Coal Co., 858 F.2d 1226, 1231 (7th Cir.1988) (“Generally, when jurisdiction to review administrative determinations is vested in the courts of appeals these specific, exclusive jurisdiction provisions preempt district
Our discussion in City of Rochester applies with equal force to the case before us today. We further observed there that the rationale for statutory review is that coherence and economy are best served if all suits pertaining to designated agency decisions are segregated in particular courts. The choice of forum is * * * for Congress and we cannot imagine that Congress intended the exclusivity vel non of statutory review to depend on the substantive infirmity alleged. The policy behind having a special review procedure in the first place similarly disfavors bifurcating jurisdiction over various substantive grounds between district court and the court of appeals.
City of Rochester, 603 F.2d at 936-37.
Supreme Court and our own precedent are not to the contrary. The Commission argues that in ITT, the Court held that a claim against the Commission under the Government-in-the-Sunshine Act,
We cannot accept this line of reasoning. The crucial distinction, which the Court explicitly recognized, is that the proper forum for review of a rulemaking, even if such action is otherwise authorized by a separate statute, is the court of appeals under
The Commission nevertheless maintains that this court does not have original jurisdiction over a petition for review where the challenged regulations are issued pursuant to a statute other than the one giving jurisdiction in the court of appeals. See Five Flags Pipe Line Co. v. Department of Transportation, 854 F.2d 1438, 1440-42 (D.C.Cir.1988) (agency action under the Comprehensive Omnibus Budget Reconciliation Act was not reviewable in court of appeals).
In City of Rochester we rejected the argument that “special review procedures * * * [apply only to claims] going to the substantive core of an agency‘s mandate (to which NEPA [or FOIA] would in this case be penumbral).” We noted that although
such an approach has some intuitional appeal, it would create a substantial uncertainty without discernable benefit. Moreover, it would seriously fragment judicial review, particularly of agencies like the FCC who are governed by open-ended “public interest” language liberally read to incorporate other statutory obligations.
City of Rochester, 603 F.2d at 936-37 (citations omitted).
In Five Flags two factors combined to deprive this court of jurisdiction. First, the statutory review provision vested jurisdiction in the courts of appeals only over regulations issued under the Natural Gas Policy Act. 854 F.2d at 1440. Second, “the power to establish [the] fee schedules at issue [wa]s found exclusively in” the Consolidated Omnibus Budget Reconciliation Act of 1985 rather than also in the Natural Gas Policy Act. Id. at 1441 (emphasis in original). Thus, we had no reason “for concluding that the user fee notices are ‘regulations issued under the [Natural Gas Policy] Act.‘” Id. By contrast, the FCC‘s rulemaking authority is much broader, and we have concluded that it could have issued the challenged regulations even in the absence of the Reform Act.
B. Commission‘s Reliance on the OMB Guidelines
Petitioners’ first substantive claim is that the Commission unlawfully delegated its independence to OMB by adopting verbatim OMB‘s guidelines defining the preferred categories for assessment of search fees.
The relevant language of the Reform Act provides that:
Such schedule [the agency-specific schedule of fees applicable to the processing of FOIA requests] shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.
We conclude that the Commission‘s reading of the statute is permissible. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.“). Section
Petitioners also argue that the Commission‘s blind adoption of the OMB guidelines deprived them of their right to meaningful notice and comment. It is undisputed,
C. Petitioner‘s Facial Challenge
The essence of petitioners’ suit is a facial challenge to the Commission‘s fee waiver regulations. We hold, however, that due to uncertainties in the actual meaning of the regulations at issue, petitioners’ challenge is not ripe for review.
The ripeness doctrine, in its prudential form, is concerned with “the petitioner‘s interest in prompt consideration of allegedly unlawful agency action[,] * * * the agency‘s interest in crystallizing its policy before that policy is subjected to judicial review and the court‘s interests in avoiding unnecessary adjudication and in deciding issues in a concrete setting.” Eagle-Picher Industries, Inc. v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985) (footnote omitted). In evaluating ripeness claims, the Supreme Court has instructed reviewing courts to determine “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).
Petitioners contend that the Commission‘s final regulations are sufficiently “crystallized” and will not be modified or abandoned before they are put into effect, and that the issue presented - whether the regulations are arbitrary and capricious - is a “purely legal question,” Abbott Laboratories, 387 U.S. at 149, which allows the court to “assume its threshold suitability for judicial determination,” Eagle-Picher, 759 F.2d at 915.
We disagree. Where an agency has discretion in the application of the challenged regulations, as in this case, a purely facial challenge may not be ripe for review if the agency could grant the requested relief and thereby obviate the need for judicial review. See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 164, 87 S.Ct. 1520, 1524, 18 L.Ed.2d 697 (1967) (“judicial appraisal of [the relevant] factors is likely to stand on a much surer footing in the context of a specific application of [the] regulation than could be the case in the framework of the generalized challenge made here“); Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940-41 (D.C.Cir.1986); Air New Zealand Ltd. v. Civil Aeronautics Board, 726 F.2d 832, 836 (D.C.Cir.1984). In the case sub judice, the Commission virtually concedes that petitioners PFAW and UCS would qualify for preferred status as “representatives of the news media.” See Commission Brief at 36 (PFAW and UCS, for purposes of regular publication of a newsletter or periodical, would qualify for reduced fees). In light of the Commission‘s discretion in the application of its own regulations, see Cross-Sound Ferry Services, Inc. v. Interstate Commerce Commission, 873 F.2d 395, 401 (D.C.Cir.1989), we think the Commission should at least be given the first opportunity to apply its regulations to petitioners. Accordingly, “postponing review would provide for a more efficient examination and disposition of the issues,” State Farm Mutual Automobile Insurance Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986) (citations omitted), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 800 (1987). We cannot therefore conclude that the facial challenge raised by petitioners is, at this time, “fit” for judicial review.
Petitioners argue that Better Government Association v. Department of State, 780 F.2d 86, 92-96 (D.C.Cir.1986), compels a finding of ripeness in this case, but we are not persuaded. Although the Better Government court found that the issue presented in that case (whether certain regulations violated FOIA) was “fit” for judicial review because it was purely legal in
Moreover, we do not perceive any significant hardship to petitioners as a result of our withholding of review.
A case may lack ripeness * * * even when it involves a final agency action presenting a purely legal question. The second prong of the ripeness test requires that the contested action impose an impact on the parties “sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” * * * The mere potential for future injury * * * is insufficient to render an issue ripe for review.
Alascom, Inc. v. FCC, 727 F.2d 1212, 1217 (D.C.Cir.1984) (footnotes omitted) (quoting Abbott Laboratories, 387 U.S. at 152). In the instant case, petitioners could apply for preferred fee category status under the Commission‘s regulations and, if denied, could obtain judicial review and present the court with a concrete factual record as to whether the Commission‘s regulations comport with congressional intent. We discern no real hardship or strategic disadvantage in requiring petitioners to apply for fee waiver status through the administrative process prior to seeking judicial review, particularly when such a route, far from being futile, would likely prove successful. See Webb v. Department of Health and Human Services, 696 F.2d 101, 107 (D.C.Cir.1982) (“the burden of having to file another suit * * * is hardly the type of hardship which warrants immediate consideration of an issue presented in abstract form“) (footnote omitted); cf. National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C.Cir.1989) (petitioner sought judicial review after administrative denial of FOIA fee waiver); Better Government, 780 F.2d at 88 (same).
Petitioners point to two other hardships presented by withholding judicial consideration: Petitioners would have to pay higher FOIA fees, and other similar organizations would, for the same reason, be deterred from submitting FOIA requests. See Better Government, 780 F.2d at 94 (finding hardship to petitioners because the challenged regulations “discourage FOIA requests and impede access to information for precisely those groups Congress intended to aid“). This line of reasoning, however, overlooks the fact that petitioners would “presumably,” according to the Commission, be able to challenge a denial of preferred fee classification without advance payment of fees. See National Security Archive v. Department of Defense, 690 F.Supp. 17, 18 (D.D.C.1988). Construing this statement as committing the Commission to such a policy, we cannot conclude that the impact of the Commission‘s regulations is “felt immediately by those subject to it in conducting their day-to-day affairs, * * *” Action Alliance, 789 F.2d at 941 (citation omitted). On balance, we therefore find that the interest in postponing review outweighs the asserted hardship.
In sum, the Commission, whose interpretation of its own regulations must be given at least some deference, concedes that its regulations are sufficiently broad to grant preferred status to at least two of the petitioners in this case. If the Commission grants a future request by petitioners for preferred status, there is simply no case or controversy. If the request is denied, petitioners can seek immediate judicial review of the denial. We find little hardship to petitioners, and great benefits for reviewing courts (in the form of a concrete dispute and a complete factual record), in requiring such a course of action.
Because we hold that petitioners’ facial challenge to the Commission‘s Reform Act regulations is not ripe for review, we of course express no opinion on either the
III
We assert jurisdiction in this case under
Denied.
D.H. GINSBURG, Circuit Judge, concurring in part and dissenting in part:
In my view, the court lacks jurisdiction over this petition for review. The FCC rulemaking at issue was not done “under” the Communications Act of 1934 within the meaning of
The Freedom of Information Reform Act states that “each agency shall promulgate regulations specifying the schedule of fees applicable to the processing of [FOIA] requests....”
It is not clear, however, why the court thinks that “[o]ur task at this juncture is to inquire whether the Communications Act would also have authorized the action taken here.”
The court strains itself - and the law - in the service of a generally sensible “policy goal of unifying review in one forum.” Ct.Op. at 1069. In the present context, however, a single forum for review of one agency‘s orders creates non-uniform review of the same orders as issued by myriad other agencies. A petition to review one agency‘s regulation implementing the Reform Act will, in the first instance, come before the district court, pursuant to
For me, the next question is whether “it is in the interest of justice [to] transfer such action ... to [the district] court in which the action ... could have been brought at the time it was filed or noticed....”
Under