At page 200 Determining the scope of jurisdictional error for agency review19 citing casesdistrict court lacked jurisdiction to enjoin FTC antitrust proceeding; FTC did not clearly violate a jurisdictional statute
- Bd. of Dental Examiners of Alabama v. Fed. Trade Comm'n, No. 2:20-cv-01310 (N.D. Ala. Feb. 3, 2021).Co. v. F.T.C., 496 F.2d 197, 200 (1974) (citation omitted).3 The only other precedent binding on this court was a case arising out of a suit involving the NLRB that also indicates that the exception should only be applied in extraordinary…
- Austral Oil Co., Inc. v. Nat'l Park Serv., 982 F. Supp. 1238 (N.D. Tex. 1997).published(Congress did not contemplate a grant of jurisdiction to the courts to prevent abuse or misuse of administrative power by prior restraint of the *1246 exercise of such powers.)
- Nat. Resources Def. Council, Inc. v. United States Env't Prot. Agency, 16 F.3d 1395 (4th Cir. 1993).publishedCo. v. FTC, 496 F.2d 197, 200 (5th Cir.1974). 64 For the foregoing reasons, the judgment of the district court is 65 AFFIRMED. 1 NRDC sued EPA challenging the Maryland water quality standards, and EDF sued EPA challenging the Virginia stan…
- Bender v. Dist. of Columbia Dep't of Emp. Servs., 562 A.2d 1205 (D.C. 1989).publishedCourts have narrowly construed the Kyne exception, holding that the error must be of a “summa or magna quality as contraposed to decisions which are simply cum error.” United States v. Feaster, 410 F.2d 1354, 1368 (5th Cir.) (emphasis in o…
- Nat'l Mediation Bd. v. Cont'l Airlines Corp. (In Re Cont'l Airlines Corp.), 50 B.R. 342 (S.D. Tex. 1985).published American General Ins. v. FTC, 496 F.2d 197, 200 (5th Cir.1974).
- Gwinn Area Cmty. Schs. v. State of Mich., 574 F. Supp. 736 (W.D. Mich. 1983).publishedCo. v. FTC, 496 F.2d 197, 200 (5th Cir.1974).
- Gen. Fin. Corp., Postal Fin. Co., & Barclaysamericancorporation v. Fed. Trade Comm'n, 700 F.2d 366 (7th Cir. 1983).publishedCo. v. FTC, 496 F.2d 197, 200 (5th Cir.1974); Frey v. Commodity Exchange Authority, 547 F.2d 46, 47, 49 (7th Cir.1976), the principle of Leedom v. Kyne has become a special case of a more comprehensive principle, also invoked by the plaint…
- ST. v. Falls Chase Spec. Taxing Dist., 424 So. 2d 787 (Fla. 1st DCA 1983).publishedThe term is used in the law to designate that which is apparent or prima facie, Wheeler v. Nickels, 168 Or. 604 , 126 P.2d 32, 35-36 (1942); "not the thing itself, but only an appearance thereof," Broughton v. Haywood, 61 N.C. 380, 383 (N.…
- Shawnee Coal Co. v. Cecil D. Andrus, Sec'y of the Interior, 661 F.2d 1083 (6th Cir. 1981).publishedCo. v. FTC, 496 F.2d 197, 200 (5th Cir. 1974).
- The State Fair of Texas, Cross-Appellee, Steck & Stapf Attractions, Inc., Cross-Appellee v. United States Consum. Prod. Saf. Comm'n, Cross, 650 F.2d 1324 (5th Cir. 1981).published C., 496 F.2d 197, 200 (5th Cir. 1974).
Show 8 more citing cases
- State Fair v. United States Consum. Prods. Saf. Comm'n, 481 F. Supp. 1070 (N.D. Tex. 1979).publishedAmerican General Insurance Co. v. F.T.C., 496 F.2d 197, 200 (5th Cir. 1974); United States v. Feaster, 410 F.2d 1354, 1366-68 (5th Cir.), cert. denied, 396 U.S. 962 , 90 S.Ct. 427 , 24 L.Ed.2d 426 (1969).
- B. B. McClendon Jr. v. Jackson Television, Inc., & Fed. Commc'ns Comm'n, 603 F.2d 1174 (5th Cir. 1979).published C., 496 F.2d 197, 200 (5th Cir. 1974), quoting, United States v. Feaster, 410 F.2d 1354 (5th Cir.), cert. den., 396 U.S. 962 , 90 S.Ct. 427 , 24 L.Ed.2d 426 (1969).
- George Squillacote v. Int'l Bhd. Of Teamsters, Local 344, 561 F.2d 31 (7th Cir. 1977).publishedAs have others, we have recognized constitutional claims and have accordingly denied enforcement of the Board orders when the Board order comes up for enforcement." 13 See also Barnes v. Chatterton, 515 F.2d 916, 920 (3d Cir. 1975): "A par…
- Mayor & City Council of Baltimore v. Mathews, 562 F.2d 914 (4th Cir. 1977).published(district court lacked jurisdiction to enjoin FTC antitrust proceeding; FTC did not clearly violate a jurisdictional statute)
- Mayor & City Council of Baltimore, a Mun. Corp. & Bd. of Sch. Commissioners of Baltimore City v. F. David Mathews, Individually & as Sec'y of the United States Dep't of Health, Educ., & Welfare, Martin H. Gerry, Individually & as Acting Dir., Off. for Civil Rights, United States Dep't of Health, Educ., & Welfare, United States Dep't of Health, Educ., & Welfare, an Agency of the United States of Am., & Irvin N. Hackerman, Individually & as Admin. Law Judge, United States Dep't of Health, Educ., & Welfare, Naacp Legal Def. & Educ. Fund, Inc., Amicus Curiae. Marvin Mandel, Governor of the State of Maryland, State of Maryland, Maryland State Bd. for Cmty. Colleges, an Agency of the State of Maryland, Maryland Council for Higher Educ., an Agency of the State of Maryland, Bd. of Trs. of Morgan State Univ., an Agency of the State of Maryland, Bd. of Trs. of St. Mary's Coll. of Maryland, an Agency of the State of Maryland, Bd. of Trs. of the State Colleges of Maryland, an Agency of the State of Maryland, the Univ. of Maryland, an Agency of the State of Maryland, Bd. of Trs. of the Cmty. Coll. of Baltimore, an Agency of the Mayor & City Council of Baltimore, on Behalf of Itself & All Other Pub. Junior & Cmty. Colleges of the Various Political Subdivisions Lying Within the State of Maryland v. United States Dep't of Health, Educ., & Welfare, an Agency of the United States of Am., F. David Mathews, Individually & in His Off. Capacity as Sec'y of the United States Dep't of Health, Educ., & Welfare, Martin H. Gerry, Individually & in His Off. Capacity as Acting Dir. of the Off. for Civil Rights of the United States Dep't of Health, Educ., & Welfare, Dewey E. Dodds, Individually & in His Off. Capacity as Acting Deputy Dir. of the Off. for Civil Rights of the United States Dep't of Health, Educ., & Welfare, Roy McKinney Individually & in His Off. Capacity as Acting Dir. of the Higher Educ. Div. of the Off. for Civil Rights of the United States Dep't of Health, Educ., & Welfare, Burton Taylor, Individually & in His Off. Capacity as Chief of the Prog. & Policy Branch of the Higher Educ. Div. of the Off. for Civil Rights of the United States Dep't of Health, Educ., & Welfare, St. John Barrett, Individually & in His Off. Capacity as Acting Gen. Couns. of the United States Dep't of Health, Educ., & Welfare, & Ronald Gilliam, Individually & in His Off. Capacity as Acting Reg'l Civil Rights Dir. for Region III of the Off. for Civil Rights of the United States Dep't of Health, Educ., & Welfare, Naacp Legal Def. & Educ. Fund, Inc., Amicus Curiae, the Am. Council on Educ., the Ass'n of Am. Universities, the Nat'l Ass'n of State Universities & Land Grant Colleges, the Am. Ass'n of State Colleges & Universities & the Am. Ass'n of Cmty. & Junior Colleges the Nat'l Ass'n of Attorney Generals & the States of Alaska, Arizona, Connecticut, Delaware, Florida, Idaho, Illinois, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oregon, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, Wisconsin, & Wyoming, & the Commonwealth of Kentucky & Virginia, Amici Curiae, the Commonwealth of Pennsylvania, Amicus Curiae, Trs. of the California State Univ. & Colleges & Regents of the Univ. of California, Amici Curiae, 562 F.2d 914 (4th Cir. 1977).published(district court lacked jurisdiction to enjoin FTC antitrust proceeding; FTC did not clearly violate a jurisdictional statute)
- Squillacote v. Int'l Bhd. of Teamsters, Local 344, 561 F.2d 31 (7th Cir. 1977).publishedAs the court noted in American General Insurance Co. v. FTC, 496 F.2d 197, 200 (5th Cir. 1974): “[T]he efficiency of the agency is an important consideration, and courts ought not to encourage flouting of the administrative process.” .
- Display Rsch. Labs., Inc. v. Telegen Corp., 133 F. Supp. 2d 1170 (N.D. Cal. 2001).published(a purpose underlying the ripeness doctrine is to avoid premature interruptions of the administrative process)
- Mandel v. United States Dep't of Health, Educ. & Welfare, 411 F. Supp. 542 (D. Md. 1976).publishedSee e. g., American General Insurance Co. v. FTC, 496 F.2d 197, 200 (5th Cir. 1974); Pepsico, Inc. v. FTC, 472 F.2d 179, 187 (2nd Cir. 1972); Lee County School District Number 1 v. Gardner, 263 F.Supp. 26, 31 (D.S.C.1967). 7 .
At page 199 “It is true that certain distinguished commentators have questioned whether the rule is as firm as the Myers Court would imply.”2 citing cases
- Dunn McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 964 F. Supp. 1125 (S.D. Tex. 1995).publishedCoca-Cola Co. v. F.T.C., 475 F.2d 299, 303 (5th Cir.), cert. denied, 414 U.S. 877 , 94 S.Ct. 121 , 38 L.Ed.2d 122 (1973); American General Insurance Co. v. F.T.C., 496 F.2d 197,199-200 (5th Cir.1974); McClendon v. Jackson Television, Inc.,…
- Exxon Corp. v. Fed. Trade Comm'n, 411 F. Supp. 1362 (D. Del. 1976).published Co. v. Federal Trade Comm’n., 496 F.2d 197, 199 (5th Cir. 1974); United States v. Feaster, 410 F.2d 1354, 1364 (5th Cir.), cert. denied, 396 U.S. 962 , 90 S.Ct. 427 , 24 L.Ed.2d 426 (1969). 23 .
Other citing cases
- Groos Nat'l Bank & Clinton Manges v. Comptroller of the Currency, Groos Nat'l Bank of San Antonio, Texas, & Clinton Manges v. United States of Am., Dep't of the Treasury, Off. of the Comptroller of the Currency, 573 F.2d 889 (5th Cir. 1978).published
- Groos Nat'l Bank v. Comptroller of the Currency, 573 F.2d 889 (5th Cir. 1978).published
- Lawrence Cabais v. Roscoe Egger, Comm'r of the Internal Revenue Serv., 690 F.2d 234 (D.C. Cir. 1982).published
v.
FEDERAL TRADE COMMISSION Et Al., Defendants-Appellees
In this case, plaintiffs-appellants seek to enjoin the Federal Trade Commission from proceeding against them under § 7 of the Clayton Act, 15 U.S.C. § 18, on the ground that the McCarran-Ferguson Act, 15 U.S.C. §§ -1011-1015, deprives the Commission of jurisdiction over the case. Finding that any such injunction would be premature at this time, we affirm the district court’s dismissal of the complaint.
On June 17, 1971, the Commission issued a complaint, Commission Docket No. 8847, against the Texas-based American General Insurance Co., charging that American General had violated § 7 of the Clayton Act by reason of its . merger with Fidelity and Deposit Co. of Maryland. See 15 U.S.C. § 21. The complaint charged that the effect of the merger “may be substantially to lessen competition or to tend to create a monopoly in the business of underwriting. fidelity and surety bonds in the Uiiited States. . . .”
American General responded that the complaint failed to state a claim, denied the principal allegations of the complaint, and argued that the Commission was without jurisdiction to issue the complaint because the
. transaction which is the subject matter of the Commission’s Complaint involves the business of insurance, which is regulated by State law. Accordingly, the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-15 (1945), renders inapplicable section 7 of the Clayton Act, as amended, 15 U.S.C. § 18, to the merger of respondent American General Insurance Company with Fidelity & Deposit Company of Maryland.
Subsequently, Fidelity & Deposit was permitted to intervene in the administrative proceedings.
On December 27, 1971, American General moved for summary judgment on the issue of jurisdiction under Section 3.24 of the Commission’s rules, 16 C.F. R. § 3.24. On March 7, 1972, an administrative law judge ruled that the Commission lacked jurisdiction to issue the complaint because the “States of Maryland and Texas, and many of the other states, have laws, capable of being enforced, which regulate the business of insurance, within the contemplation and meaning of the McCarran-Ferguson Act.”
Commission counsel appealed the decision of the administrative law judge to the Commission. A three-member ma[*199] jority held that jurisdiction was not barred by the McCarran-Ferguson Act because the states could not regulate the merger activity of national insurance companies. In addition, the Commission held that “the business of insurance for which regulation by a state may preempt Federal jurisdiction does not-include mergers or other combinations of enterprises engaged in the activity of selling insurance.” In its opinion, the Commission vacated the initial decision and remanded the case to the administrative law judge for further proceedings.
On March 5, 1973, American General and Fidelity & Deposit filed a complaint in the United States District Court for the Southern District of Texas seeking a declaratory judgment that the Mc-Carran-Ferguson Act immunized the merger from § 7, and injunctive relief “prohibiting Defendants from conducting any further proceedings in FTC Docket No. 8847.”
On June 5, 1973, 359 F.Supp. 887, the court denied plaintiffs’ motion for a preliminary injunction and granted defendants’ motion to dismiss “for failure to exhaust administrative remedies.” The court concluded
. that there has not yet been any final agency action, that the Federal Trade Commission has not clearly exceeded the bounds of its jurisdiction, and that the Plaintiffs have an adequate remedy at law through review of the final Commission order as provided by the Clayton Act. .
The court opined that were it to reach the merits, it would uphold the Commission’s position: “because a state cannot regulate extraterritorially, the potential regulation of the instant merger by Texas and Maryland, the domiciliary states of the Plaintiffs, does not by way of the McCarran-Ferguson Act deprive the Commission of jurisdiction to challenge the merger under Section 7 of the Clayton Act when the impact of the merger obviously will be felt in all fifty states.” The plaintiffs have appealed.
The rule that a plaintiff must exhaust all available administrative remedies before coming to a federal court for relief is old and well-established. In Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 51, 58 S.Ct. 459, 463, 82 L. Ed. 638 (1938) the Supreme Court referred to
. the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. That rule has been repeatedly acted on in cases where, as here, the contention is made that the administrative body lacked power over the subject matter, [footnote omitted].
It is true that certain distinguished commentators have questioned whether the rule is as firm as the Myers Court would imply. K. Davis, Administrative Law Treatise, § 20.02 (1958). Nevertheless, it remains true that the doctrine of exhaustion “is well established in the jurisprudence of administrative law.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Of course, the doctrine has numerous exceptions. Id.
' In a comprehensive and learned review of this area of the law, this court in United States v. Feaster, 410 F.2d 1354 (5th Cir. 1969), cert. den., 396 U. S. 962, 90 S.Ct. 427, 24 L.Ed.2d 426 (1969), described the relevant exceptions to the rule that administrative remedies must be exhausted prior to review by the courts. The first factor which would permit premature resort to judicial remedies is an international repercussion resulting from the administrative proceedings. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963). There is not even the merest allegation that this factor is present here.
This second exception was fashioned by the Second Circuit in Fay v. Douds, 172 F.2d 720 (2nd Cir. 1949). A litigant may rely on this exception only if[*200] there is a substantial showing that his constitutional rights have been violated. 410 F.2d at 1366. The question in this case is purely one of statutory interpretation and application. No constitutional provision is at issue.
The final exception is based on Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).
In that case the Supreme Court permitted review of the NLRB’s certification of a bargaining unit which included both professional and nonprofessional employees even though the professional employees had not consented to inclusion in the otherwise nonprofessional unit. This action was a brazen defiance of the express provisions of 29 U.S.C.A. § 159(b)(1). [footnote omitted]. 410 F.2d at 1366. In this case, appellants seek to bring
themselves within the Leedom v. Kyne exception by emphasizing that their challenge to the Commission’s action is jurisdictional. However, it has never been the law that any jurisdictional error, no matter how slight, throws open the gates to premature court action. The jurisdictional area must be gross or egregious to provide an exception to the rule of exhaustion.
The extraordinary remedy of judicial intervention in agency proceedings still in progress is unavailable unless necessary to vindicate an unambiguous statutory or constitutional right, and only when this condition is satisfied will a court look to the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief. Coca-Cola Company v. F. T. C., 475 F.2d 299, 304, (5th Cir. 1973).
It has also been stated that the Leedom v. Kyne exception is “narrow” and “rare-successfully invoked” and that the error must be “of a summa or magna quality as contraposed to decisions which are simply cum error.” 410 F.2d at 1368. We are unwilling at this stage of the proceedings to make a determination of the merits of the jurisdictional question. It is nevertheless obvious from the record in the district court and the briefs and arguments on appeal that the question is a close one. If the Commission is committing error by proceeding against the appellants, its error is not blatant or obvious. The McCarran-Ferguson Act is not without ambiguity, and we feel that the question of its applicability is better left to a review of any final order which may be entered in this case.
Many policy considerations support this holding. A crucial one is “the avoidance of premature interruption of the administrative process.” McKart v. United States, supra, at 193. In addition, the efficiency of the agency is an important consideration, and courts ought not to encourage flouting of the administrative process. Considerations of judicial economy also enter into the equation, since, if no cease-and-desist order is ever entered, the courts need not deal with the jurisdictional question at all. Finally, there are systemic factors to be considered. Professor Jaffe has called the exhaustion doctrine “an expression of executive and administrative autonomy.” L. Jaffe, Judicial Control of Administrative Action, 425 (1965).
It is true, as appellants argue, that the necessity for further fact-finding, which would be a strong argument for requiring exhaustion, does not play a crucial role in this case. However, it has never been the law that exhaustion is not required as to questions of law. In fact, an agency’s interpretation of a statute is entitled to “great deference.” Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). It must be emphasized that
Congress did not contemplate a grant of jurisdiction to the courts to prevent abuse or misuse of administrative power by prior restraint of the exercise of such powers. Lone Star Cement Corp. v. F. T. C., 339 F.2d 505, 510 (9th Cir. 1964).
In summary, we are not convinced that the extraordinary showing of necessity which is needed to justify prema[*201] ture judicial interference, is present in this case. We therefore uphold the district court’s refusal to derail the pending Commission proceedings in this matter.
Affirmed.