Council Tree Comm v. FCC ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-28-2007
Council Tree Comm v. FCC
Precedential or Non-Precedential: Precedential
Docket No. 06-2943
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Council Tree Comm v. FCC" (2007). 2007 Decisions. Paper 318.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/318
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2943
COUNCIL TREE COMMUNICATIONS, INC.;
BETHEL NATIVE CORPORATION;
THE MINORITY MEDIA AND
TELECOMMUNICATIONS COUNCIL,
Petitioners
v.
FEDERAL COMMUNICATIONS COMMISSION;
UNITED STATES OF AMERICA,
Respondents
CTIA-WIRELESS Association and T-Mobile USA, Inc.,
Intervenor
On Petition for Review of Orders of the
Federal Communications Commission
(FCC Nos. 06-52, 06-71 and 06-78)
Argued May 23, 2007
Before: CHAGARES, HARDIMAN and TASHIMA,*
Circuit Judges.
(Filed: September 28, 2007)
Dennis P. Corbett, Esq. (Argued)
S. Jenell Trigg, Esq.
Leventhal, Senter & Lerman
2000 K Street, N.W.
Washington, DC 20006
Attorneys for Petitioners
Joseph R. Palmore, Esq. (Argued)
Samuel L. Feder, Esq.
Laurence N. Bourne, Esq.
Federal Communications Commission
Office of General Counsel
445 12 th Street, S.W.
Washington, DC 20554
Robert B. Nicholson, Esq.
Robert J. Wiggers, Esq.
United States Department of Justice
*
The Honorable A. Wallace Tashima, Senior Circuit
Judge for the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
2
Appellate Section
Room 3224
950 Pennsylvania Avenue, N.W.
Washington DC 20530
Attorneys for Respondents
William T. Lake, Esq. (Argued)
Wilmer Cutler Pickering Hale & Dorr
1875 Pennsylvania Avenue, N.W.
Washington, DC 20006
Ian H. Gershengorn, Esq.
Jenner & Block
601 13 th Street N.W.
Suite 1200
Washington DC 20005
Attorneys for Intervenors
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
This case involves a challenge to two orders of the
Federal Communications Commission (FCC) enacting new rules
3
regarding competitive bidding for wireless communications
spectrum licenses. Petitioners assert that the new rules are
invalid and that an auction conducted pursuant to those rules
must be nullified. For the reasons that follow, the petition for
review must be dismissed because it is incurably premature.
I.
The Communications Act of 1934 directs the FCC to
design a system to allocate spectrum licenses by “establish[ing]
a competitive bidding methodology” via regulation. 47 U.S.C.
§ 309(j)(3). In doing so, the FCC shall seek to “promot[e]
economic opportunity and competition and ensur[e] that new
and innovative technologies are readily accessible to the
American people by avoiding excessive concentration of
licenses and by disseminating licenses among a wide variety of
applicants, including small businesses, rural telephone
companies, and businesses owned by members of minority
groups and women.” Id. § 309(j)(3)(B). Such businesses are
known as “designated entities” or “DEs.” See 47 C.F.R. §
1.2110(a). The FCC must ensure that DEs “are given the
opportunity to participate in the provision of spectrum-based
services, and, for such purposes, consider the use of tax
certificates, bidding preferences, and other procedures,” 47
U.S.C. § 309(j)(4)(D), and “require such transfer disclosures and
antitrafficking restrictions and payment schedules as may be
necessary to prevent unjust enrichment as a result of the
methods employed to issue licenses and permits.” Id. §
309(j)(4)(E).
4
On June 13, 2005, Petitioner Council Tree
Communications, Inc. (Council Tree), a company organized to
identify and develop investment opportunities for minority and
women-owned businesses in the communications industry,
wrote an ex parte letter to the FCC proposing changes to the
then-existing competitive bidding regulations. In particular,
Council Tree sought to prevent abuse of DE benefits by
prohibiting those DEs affiliated with large incumbent wireless
companies from receiving “bidding credits” at spectrum license
auctions. These credits are discounts of 25% or 15% from a
DE’s winning bid.
On February 3, 2006, the FCC released a Further Notice
of Proposed Rulemaking in the Matter of Implementation of the
Commercial Spectrum Enhancement Act and Modernization of
the Commission’s Competitive Bidding Rules and Procedures,
71 Fed. Reg. 6992 (Feb. 10, 2006), which proposed and sought
comment on modifications similar to those suggested in Council
Tree’s letter to the FCC.
After receiving over fifty comments and reply comments,
the FCC released on April 25, 2006 and published in the Federal
Register on May 4, 2006 a Second Report and Order and
Second Further Notice of Proposed Rulemaking (Second Order),
71 Fed. Reg. 26,245 (May 4, 2006) (codified at 47 C.F.R. pt. 1).
That Second Order adopted new rules that: (1) take bidding
credit eligibility away from DEs that have certain material
relationships with other entities; and (2) extend the repayment
period to prevent the unjust enrichment of DEs that lose their
eligibility after winning a license. Dissatisfied with these rules,
5
on May 5, 2006, Petitioners filed a petition with the FCC to
reconsider the Second Order.
On June 2, 2006, the FCC released an Order on
Reconsideration of the Second Report and Order
(Reconsideration Order), 71 Fed. Reg. 34,272 (June 14, 2006)
(codified at 47 C.F.R. pt. 1), to “clarif[y] certain aspects [and]
address[] certain procedural issues” raised in Petitioners’
petition for reconsideration. The Reconsideration Order did not
expressly grant or deny the petition, but essentially rejected all
of the arguments contained therein.
Instead of waiting for the FCC to publish its
Reconsideration Order in the Federal Register, Petitioners filed
a petition for review with this Court on June 7, 2006, along with
an emergency motion to stay the effectiveness of the new rules
and the auction of Advanced Wireless Services licenses
(Auction 66), which would be conducted pursuant to the FCC’s
new rules.1 Petitioners challenge those rules as: (1) not in
accordance with the notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. § 553(b)(3); (2)
arbitrary and capricious under the relevant provisions of the
Communications Act of 1934, 47 U.S.C. § 309(j), and the
Telecommunications Act of 1996, 47 U.S.C. § 257; and (3) not
in compliance with the Regulatory Flexibility Act, 5 U.S.C. §§
601 et seq. They also seek to nullify the results of Auction 66.
In addition to opposing each of these challenges, the FCC
1
Auction 66 commenced on August 9, 2006 and ended
on September 18, 2006.
6
argues that we lack jurisdiction over the petition, which was
filed seven days before the FCC published its Reconsideration
Order in the Federal Register on June 14, 2006. On June 29,
2006, a motions panel of this Court issued a per curiam Order
denying Petitioners’ emergency motion for stay.
II.
We begin, as we must, with questions of jurisdiction: (1)
whether Petitioners’ petition for review is incurably premature;
and, if so, (2) whether the motions panel’s earlier per curiam
Order vitiates that prematurity.2
A. Incurable Prematurity
We have no jurisdiction to consider an incurably
premature petition for review. Tenn. Gas Pipeline Co. v. FERC,
9 F.3d 980, 981 (D.C. Cir. 1993) (per curiam). A petition to
review a non-final agency order is incurably premature. See
Clifton Power Corp. v. FERC, 294 F.3d 108, 110 (D.C. Cir.
2002). An agency order is non-final as to an aggrieved party
whose petition for reconsideration remains pending before the
2
Although the FCC did not raise these jurisdictional
issues until filing its merits brief, it is axiomatic that we must
satisfy ourselves of our appellate jurisdiction even had the
parties not asked us to do so. See, e.g., Adapt of Phila. v. Phila.
Housing Auth., 433 F.3d 353, 361 n.10 (3d Cir. 2006); Metro
Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672, 675-76
(3d Cir. 1990).
7
agency. West Penn Power Co. v. EPA, 860 F.2d 581, 583 (3d
Cir. 1988).
In the case at bar, it is undisputed that at the time
Petitioners filed their June 7, 2006 petition for review, their
petition for reconsideration of the Second Order was still
pending before the FCC and remains pending to this day, see
Reply Br. at 5, so the petition for review is incurably premature
as to the non-final Second Order. See TeleSTAR, Inc. v. FCC,
888 F.2d 132, 133 (D.C. Cir. 1989) (per curiam) (court lacks
jurisdiction to consider prematurely filed petition even after the
agency rules on a rehearing request; a new petition must be
filed).
The petition for review is also incurably premature with
respect to the Reconsideration Order because it does not comply
with the Hobbs Act. Title 47 U.S.C. § 402(a) refers to chapter
158 of Title 28, commonly called the Hobbs Act, see Stone v.
INS, 514 U.S. 386, 392, 115 S. Ct. 1537, 131 L. Ed. 2d 465
(1995), to determine when a petition for review of an FCC order
must be filed with a federal court of appeals. The Hobbs Act’s
timing provision states in relevant part:
On the entry of a final order reviewable under this
chapter, the agency shall promptly give notice
thereof by service or publication in accordance
with its rules. Any party aggrieved by the final
order may, within 60 days after its entry, file a
petition to review the order in the court of appeals
wherein venue lies.
8
28 U.S.C. § 2344. “[T]he 60 day period for seeking judicial
review set forth in the Hobbs Act is jurisdictional in nature, and
may not be enlarged or altered by the courts.” N.J. Dep’t of
Envtl. Prot. & Energy v. Long Island Power Auth., 30 F.3d 403,
414 (3d Cir. 1994) (quoting Natural Res. Def. Council v. NRC,
666 F.2d 595, 602 (D.C. Cir. 1981)); see also Fed. R. App. P.
26(b)(2).
In Western Union Telegraph Co. v. FCC, 773 F.2d 375
(D.C. Cir. 1985), the Court of Appeals for the D.C. Circuit
defined “entry” of FCC orders for purposes of § 2344 as “the
date upon which the [FCC] gives public notice of the order.” Id.
at 376 (relying on 47 U.S.C. § 405). An FCC regulation in turn
defines “public notice” as “publication in the Federal Register”
with respect to orders released in rulemaking proceedings. 47
C.F.R. § 1.4(b)(1). In Western Union, the FCC adopted an order
on March 1, 1985, released it to the public on March 8, 1985,
and published it in the Federal Register on March 21, 1985.
Meanwhile, on March 15, 1985, after the order’s public release
but before its publication in the Federal Register, AT&T filed a
petition to review the order in the Court of Appeals for the D.C.
Circuit. Based on the court’s definition of “entry” and the
FCC’s definition of “public notice,” the D.C. Circuit held that
AT&T’s petition was premature, 773 F.2d at 378, and dismissed
it for lack of jurisdiction. Id. at 380. In doing so, the court
reasoned:
It is not a principle of law that all agency action
need 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
9
U.S.C. § 2344 and 47 U.S.C. § 405, provide that
review is unavailable until the date the [FCC]
gives public notice, whether or not the order
becomes effective and otherwise ripe before then.
Id. at 377; see also Horsehead Res. Dev. Co. v. EPA, 130 F.3d
1090, 1092 (D.C. Cir. 1997) (“jurisdictional statute, requiring
filing ‘with the court within thirty days from the date upon
which public notice is given,’ established filing window,” not a
filing deadline (quoting Waterway Commc’ns Sys., Inc. v. FCC,
851 F.2d 401, 405-06 (D.C. Cir. 1988))).
Like AT&T in Western Union, Petitioners here filed their
petition for review seven days before the Reconsideration Order
was published in the Federal Register. Their petition is
therefore incurably premature.3 As we are not bound by
Western Union, however, Petitioners criticize it. Specifically,
they argue that the Court of Appeals for the D.C. Circuit (1) did
not examine the “specific sequencing language” of 28 U.S.C. §
3
The cases applying 28 U.S.C. § 2344 to FCC orders
have all followed Western Union. For example, North American
Catholic Educational Programming Foundation, Inc. v. FCC,
437 F.3d 1206 (D.C. Cir. 2006), squarely held that “a ‘petition’
for review under [47 U.S.C.] § 402(a) must be filed within sixty
days of the date of public notice.” Id. at 1208 (citing § 2344);
accord Vernal Enters., Inc. v. FCC, 355 F.3d 650, 655 (D.C.
Cir. 2004) (also citing § 2344); see also Freeman Eng’g Assocs.,
Inc. v. FCC, 103 F.3d 169, 176-77 (D.C. Cir. 1997) (reading
“entry” in § 2344 as Federal Register publication).
10
2344; and (2) did not recognize that 47 U.S.C. § 405, which
explicitly ties judicial review to public notice, does not apply to
orders that do not expressly rule on a reconsideration petition.
Neither criticism is persuasive.
First, Petitioners insist that § 2344 establishes a date of
“entry of [the] final order” antecedent to the date of “notice by
publication.” The pertinent FCC regulation states otherwise:
“Commission action shall be deemed final, for purposes of
seeking reconsideration at the Commission or judicial review,
on the date of public notice as defined in § 1.4(b) of these
rules.” 47 C.F.R. § 1.103(b). And, as noted previously, for
rulemaking proceedings the FCC defines “public notice” as
“publication in the Federal Register.” Id. § 1.4(b)(1).
Petitioners concede that these two regulations doom their
reading of § 2344, but argue that they impermissibly trump the
statute. We disagree.
The Supreme Court has stated repeatedly that the “power
of an administrative agency to administer a congressionally
created . . . program necessarily requires . . . the making of rules
to fill any gap left, implicitly or explicitly, by Congress.” Long
Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2345 (2007)
(quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)).
Under Chevron, we first determine whether a statute is silent or
ambiguous on the question we face; if so, we next determine
whether the agency’s regulation is based on a reasonable
interpretation of the statute. Mercy Home Health v. Leavitt, 436
F.3d 370, 377 (3d Cir. 2006).
11
Here, Congress has not directly spoken to what “entry”
means in the Hobbs Act. Petitioners argue that § 2344 contains
“specific sequencing language” placing “entry” before notice by
publication, so whatever “entry” means, it cannot mean
publication in the Federal Register. We are unpersuaded. The
first sentence of § 2344 says merely that when “entry” occurs,
notice by service or publication must also occur. It remains
ambiguous whether “entry” might not occur until publication in
the Federal Register. Our reading of the text is buttressed by the
fact that prior to the promulgation of 47 C.F.R. § 1.103(b), there
had been considerable confusion in the application of § 2344 to
FCC decisions. See ITT World Commc’ns, Inc. v. FCC, 621
F.2d 1201, 1206 (2d Cir. 1980) (Newman, J.); id. at 1210
(Mansfield, J.) (urging the FCC to “promulgate straightforward
regulations explaining how and when their reviewable orders are
to issue” (internal citation omitted)). Indeed, in direct response
to this judicial invitation, the FCC promulgated § 1.103(b). See
In the Matter of Addition of new Section 1.103, Memorandum
Opinion and Order, 85 F.C.C.2d 618, 623 (“statutory terms
‘entry’ of a final order and ‘the date upon which public notice is
given’ have the same meaning”), published at 46 Fed. Reg.
18,551, 18,554 (March 25, 1981).
Because Congress has not defined “entry” in the Hobbs
Act and its meaning is ambiguous, we proceed to step two of the
Chevron analysis and consider whether the regulations are based
on a reasonable interpretation of the statute. First, it appears
that the FCC’s definition of “entry” as Federal Register
publication is inherently reasonable. Compare with Horsehead,
130 F.3d at 1093 (even absent any pertinent agency regulation,
default rule is that “promulgation” means Federal Register
12
publication); see also Kentucky v. Brock, 845 F.2d 117, 120 (6th
Cir. 1988) (“Administrative agencies have considerable latitude
in determining the event that triggers commencement of the
judicial review period.” (quoting Associated Gas Distribs. v.
FERC, 738 F.2d 1388, 1391 (D.C. Cir. 1984) (per curiam))).
Second, courts “give ‘considerable weight’ to a ‘consistent and
longstanding interpretation by the agency’” responsible for
administering a statute. Int’l Union of Elec., Radio & Mach.
Workers v. Westinghouse Elec. Corp., 631 F.2d 1094, 1106 (3d
Cir. 1980) (quoting United States v. Nat’l Ass’n of Sec. Dealers,
Inc., 422 U.S. 694, 719, 95 S. Ct. 2427, 45 L. Ed. 2d 486
(1975)). Here, §§ 1.103(b) and 1.4(b)(1) have tied “entry” to
Federal Register publication with respect to FCC rulemaking
orders since § 1.103(b) was first promulgated in 1981. See, e.g.,
Small Bus. in Telecomms. v. FCC, 251 F.3d 1015, 1024 (D.C.
Cir. 2001); Goodman v. FCC, 182 F.3d 987, 992-93 (D.C. Cir.
1999).
In addition, we observe that some members of Congress
have indicated their approval of these regulations. When
Congress amended 47 U.S.C. § 405 in 1982, the House
Conference noted:
The Senate amended [§] 405 of the
Communications Act by providing that specified
pleading pe riods f o r se e k ing a g e nc y
reconsideration or judicial review of Commission
decisions commence from the date on which the
Commission gives “public notice” of its
decisions. . . .
13
Recently, the Commission adopted rules which
refine the meaning of “public notice.” Addition
of new [§] 1.103 to the Commission’s rules,
Amendments to [§] 1.4(b), Report and Order, 85
F.C.C.2d 618 (1981).
By adopting these rules, the Commission
determined that public notice, as that term is used
in [§] 405, only can take the form of a written
document. See [§] 1.4(b) of the Commission’s
rules as amended, 47 C.F.R. [§] 1.4(b) (1981).
The kind of written document constituting public
notice will be governed generally by the kind of
proceeding that is involved. For example, in
notice and comment rulemaking proceedings,
public notice of a final Commission decision will
occur on the date such decision is published in the
Federal Register. See [§] 1.4(b)(1) (1981). . . .
The Conferees believe that in rulemaking
proceedings it is important that the public have
the opportunity to obtain a copy of the full text of
the Commission decisions before pleading periods
for appeal begin. See 47 C.F.R. [§] 1.4(b)(1)
(1981).
H.R. Rep. No. 97-765, at 57 (1982) (Conf. Rep.), as reprinted
in 1982 U.S.C.C.A.N. 2261, 2301. If the Conference believed
that either § 1.103(b) or § 1.4(b)(1) contravened a statute, it
would not have cited both approvingly as the basis for the
14
legislation.4 Therefore, the FCC’s regulations interpreting
“entry” in the Hobbs Act as publication in the Federal Register
are eminently reasonable, and we must defer to that
interpretation.
Petitioners also criticize Western Union for relying on 47
U.S.C. § 405, which deals primarily with FCC orders ruling on
petitions for reconsideration. The FCC order at issue in Western
Union unquestionably did not rule on a petition for
reconsideration, and yet, in dismissing the petition for judicial
review of that order, the Court of Appeals for the D.C. Circuit
relied on the final sentence of § 405(a), which states:
4
Petitioners’ reliance on a Seventh Circuit case, North
American Telecommunications Association v. FCC (NATA), 751
F.2d 207 (7th Cir. 1984) (per curiam), for the proposition that
the Hobbs Act’s timing requirements merely prevent “races to
the courthouse” as opposed to imposing a mandatory
jurisdictional bar is unpersuasive. Not only did Western Union
criticize NATA, see 773 F.2d at 379, but the Seventh Circuit
itself declined to follow NATA in an analogous context shortly
thereafter. See United States v. Hansen, 795 F.2d 35, 38 (7th
Cir. 1986). In any event, even NATA on its own terms
acknowledges that “a[n FCC] order is deemed ‘entered’ for
purposes of judicial review when the [FCC] gives ‘public
notice’ of the order, 47 U.S.C. § 405, and a rule of the [FCC],
which we cannot say is unreasonable, defines public notice . .
. 47 C.F.R. § 1.4(b)(1).” 751 F.2d at 208 (emphasis added).
15
The time within which a petition for review must
be filed in a proceeding to which section 402(a)
of this title applies, or within which an appeal
must be taken under section 402(b) of this title in
any case, shall be computed from the date upon
which the Commission gives public notice of the
order, decision, report, or action complained of.
47 U.S.C. § 405(a). The foregoing sentence plainly applies to
all petitions for review to which § 402(a) applies, whether or not
the FCC order to be reviewed granted or denied a petition for
reconsideration. Indeed, even if the surrounding statutory text
(unquoted) rendered the provision’s general applicability
ambiguous, the legislative history of § 405 previously quoted
indicates that in relying on regulations that apply to judicial
review of all FCC rulemaking orders, Congress intended that the
last sentence of § 405(a) apply just as broadly. Armed with the
plain language, legislative history, and the absence of case law
to the contrary, we find that the final sentence of 47 U.S.C. §
405(a) applies to all § 402(a) petitions for review.
Finally, the Supreme Court’s statement that the
“requirement of administrative finality” is to be “interpreted
pragmatically,” Bell v. New Jersey, 461 U.S. 773, 779, 103 S.
Ct. 2187, 76 L. Ed. 2d 312 (1983), does not alter our conclusion.
Had Petitioners filed their petition for review after the Hobbs
Act’s sixty-day filing period had expired, we would have lacked
jurisdiction, despite the fact that the Reconsideration Order
unquestionably would have been final. Filing a petition before
the sixty-day filing period begins likewise deprives us of
jurisdiction. See Horsehead, 130 F.3d at 1092; cf. id. at 1095
16
(“Although the result we reach may seem harsh, we note that
‘nothing prevented [Petitioners] from supplementing [their]
premature petition with a later protective petition.’” (quoting
Western Union, 773 F.2d at 380)) Accordingly, a pragmatic
interpretation of finality does not save Petitioners here; finality
is a necessary condition of judicial review, but it is not sufficient
under the applicable statute, which limits our appellate
jurisdiction ab initio to petitions filed within the sixty-day
period prescribed by statute.
In sum, because we find persuasive the line of cases from
the Court of Appeals for the D.C. Circuit beginning with
Western Union, we hold that a petition to review a rulemaking
order of the FCC is incurably premature when it is filed before
the rulemaking order is published in the Federal Register. Title
47 U.S.C. § 402(a) governs this petition for review by reference
to the Hobbs Act, and the date of “entry” of the FCC’s
Reconsideration Order is the same as the date the FCC gave
“public notice” thereof. Both 47 C.F.R. § 1.103(b) and 47
U.S.C. § 405(a) mandate such a construction. Title 47 C.F.R. §
1.4(b)(1), which then defines “public notice” as “publication in
the Federal Register” for rulemaking orders, is a reasonable
interpretation of the Hobbs Act. Accordingly, the instant
petition to review the Reconsideration Order is incurably
premature because it was filed seven days prior to the order’s
publication in the Federal Register, and we have no jurisdiction
to consider the petition.
B. No Excuse for Prematurity
17
Petitioners next argue that a per curiam Order in which
a motions panel of this Court reached the merits of their
emergency motion for stay is “law of the case.” Under this
doctrine, “one panel of an appellate court generally will not
reconsider questions that another panel has decided on a prior
appeal in the same case.” In re City of Phila. Litig., 158 F.3d
711, 717 (3d Cir. 1998).
We find the law of the case doctrine inapplicable here.
First, the Order was issued by a motions panel. As the Court of
Appeals for the Ninth Circuit has explained:
Reconsideration by a merits panel of a motions
panel’s decision, during the course of a single
appeal, differs in a significant way from an
appellate court’s reconsideration of a decision on
the merits issued by that court on a prior appeal.
A party seeking to overturn a merits panel’s
decision obtained by its opponent has previously
had the opportunity to file petitions for en banc
review and certiorari challenging the earlier
decision: the issue is presented to the appellate
court for a second time only after the court’s first
decision has survived all of the customary
obstacles to finality. Motions panel decisions are
rarely subjected to a similar process prior to the
time that the case is presented to the[] merits
panel. Full review of a motions panel decision
will more likely occur only after the merits panel
has acted. For this reason, while a merits panel
does not lightly overturn a decision made by a
18
motions panel during the course of the same
appeal, we do not apply the law of the case
doctrine as strictly in that instance as we do when
a second merits panel is asked to reconsider a
decision reached by the first merits panel on an
earlier appeal.
United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986), cited
in Lambert v. Blackwell, 134 F.3d 506, 512 n.17 (3d Cir. 1997)
(conclusion of motions panel, “based on a record less complete
than that before us and not reached after the opportunity for the
intensive study available to a merits panel, is not binding on this
panel”). Other appellate courts also have held squarely that the
“decision of a motions panel is not binding for purposes of law
of the case.” Crystal Clear Commc’ns, Inc. v. Sw. Bell Tel. Co.,
415 F.3d 1171, 1176 n.3 (10th Cir. 2005) (internal citation
omitted); accord Sammie Bonner Constr. Co. v. W. Star Trucks
Sales, Inc., 330 F.3d 1308, 1311 (11th Cir. 2003).
Second, Petitioners ask us to treat the Order as binding on
a question of subject matter jurisdiction. As the Court of
Appeals for the Fourth Circuit has explained:
The ultimate responsibility of the federal courts,
at all levels, is to reach the correct judgment
under law. Though that obligation may be
tempered at times by concerns of finality and
judicial economy, nowhere is it greater and more
unflagging than in the context of subject matter
jurisdiction issues, which call into question the
19
very legitimacy of a court’s adjudicatory
authority.
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th
Cir. 2003); see also Green v. Dep’t of Commerce, 618 F.2d 836,
839 n.9 (D.C. Cir. 1980) (law of the case cannot confer subject
matter jurisdiction); Pub. Interest Research Group v.
Magnesium Elektron, Inc., 123 F.3d 111, 118 (3d Cir. 1997)
(refusing to apply law of the case when Article III standing was
at stake and extraordinary circumstances were present).
In light of the foregoing, we hold that the law of the case
doctrine does not bar a merits panel from revisiting a motions
panel’s assumption of subject matter jurisdiction. See Hiivala
v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per curiam), cited
in Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004);
accord CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d
395, 397 n.1 (4th Cir. 1995) (per curiam) (citing decisions from
the Fifth, Seventh, and Ninth Circuits to hold that “the doctrine
of ‘law of the case’ does not prevent this Court from revisiting
a prior ruling of a motion panel on the Court’s jurisdiction”).5
Furthermore, whereas the All Writs Act served as a
proper basis for deciding the emergency motion, see Reynolds
5
In any event, only legal issues decided expressly or by
necessary implication are law of the case. See Bolden v. Se. Pa.
Transp. Auth., 21 F.3d 29, 31 (3d Cir. 1994). Here, the motions
panel assumed jurisdiction over the emergency motion for stay,
but never did so with respect to the petition for review.
20
Metals Co. v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985) (citing
the All Writs Act’s “well established requirements that we
routinely apply to motions for stay pending appeal, among
which is the likelihood of irreparable harm” (emphasis added)),
it may not be used to consider the underlying petition. It is
settled law that “[t]he All Writs Act is not an independent grant
of appellate jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529,
535, 119 S. Ct. 1538, 143 L. Ed. 2d 720 (1999) (internal ellipses
omitted) (quoting 16 Charles Alan Wright et al., Federal
Practice and Procedure § 3932 (2d ed. 1996)); see also
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33, 123 S. Ct.
366, 154 L. Ed. 2d 368 (2002). Moreover, the Supreme Court
has held that “[w]here a statute specifically addresses the
particular issue at hand, it is that authority, and not the All Writs
Act, that is controlling.” Carlisle v. United States, 517 U.S.
416, 429, 116 S. Ct. 1460, 134 L. Ed. 2d 613 (1996) (quoting
Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43,
106 S. Ct. 355, 88 L. Ed. 2d 189 (1985)). Here, the statute that
establishes the filing window for a petition for review is the
Hobbs Act, which controls. The parties have not cited, nor have
we found, a reported decision in which the All Writs Act was
employed to save an untimely appeal or petition for review from
being dismissed for lack of jurisdiction.
What the All Writs Act permits – and what the motions
panel did in this case – is to issue writs “in aid of . . .
jurisdiction[].” 28 U.S.C. § 1651(a). Construing this language,
courts have considered appeals that are within their jurisdiction
while an appeal has not yet been perfected. Am. Pub. Gas Ass’n
v. FPC, 543 F.2d 356, 357 (D.C. Cir. 1976) (per curiam) (citing
FTC v. Dean Foods Co., 384 U.S. 597, 603-04, 86 S. Ct. 1738,
21
16 L. Ed. 2d 802 (1966)). At the time the motions panel issued
its Order, Petitioners still had forty-six days to perfect their
appeal, so the panel’s use of the All Writs Act to consider the
emergency motion was proper at that time. By contrast, since
August 15, 2006, Petitioners could no longer perfect an appeal
of the Reconsideration Order.6 Accordingly, our use of the All
Writs Act at this stage would contravene settled law. Therefore,
the motions panel’s Order does not excuse the incurable
prematurity of the instant petition for review.
III.
In conclusion, Petitioners’ petition for review is incurably
premature because the Second Order is non-final, and the
Reconsideration Order had not been published in the Federal
Register at the time the petition was filed. Moreover, neither the
law of the case doctrine nor the All Writs Act permits us to
excuse the prematurity. Accordingly, we lack jurisdiction to
reach the merits of Petitioners’ challenges to the FCC’s new
6
It is also true that under the All Writs Act, we would
“have the authority to compel agency action unreasonably
withheld or delayed if the putative agency action, once
forthcoming, would be reviewable in this Court.” Int’l Union,
United Mine Workers of Amer. v. U.S. Dep’t of Labor, 358 F.3d
40, 42 (D.C. Cir. 2004). The Reconsideration Order, however,
is not forthcoming; it has already come. The improper appeal of
an already existing agency order cannot be cured by resorting to
the All Writs Act.
22
spectrum licensing rules and Auction 66, and we will dismiss
the petition for review.
23