Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:
The Telecommunications Research & Action Center ("TRAC") and several other not-for-profit corporations and public interest groups petition this court for a writ of mandamus to compel the Federal Communications Commission ("FCC" or "the Commission") to decide certain unresolved matters now pending before the agency. The essence of TRAC's claim is that the FCC has unreasonably delayed determining whether American Telephone and Telegraph Company ("AT&T") must reimburse ratepayers for two separate instances of allegedly unlawful overcharges. The first instance relates to the rate of return earned by AT&T and the Bell System on interstate and foreign services furnished during 1978. The second concerns the treatment of expenses incurred by AT&T's manufacturing subsidiary, Western Electric, in its development of "customer premises equipment" ("CPE")
The most important question that we face in our consideration of this interlocutory appeal is a threshold jurisdictional issue. Our resolution of this issue is of particular significance because it is dispositive of both the instant case and a similar appeal involving the Civil Aeronautics Board that was argued before this panel on the same day as this case. See note 22 infra.
Our jurisdictional inquiry focuses on whether a petition to compel unreasonably delayed agency action properly lies in this court or in the District Court, or whether the two courts have concurrent jurisdiction, when any final agency action in the matter would be directly reviewable only in the Court of Appeals. Although we find the precedent in this circuit to be less than clear on this question, we conclude that, where a statute commits final agency action to review by the Court of Appeals, the appellate court has exclusive jurisdiction to hear suits seeking relief that might affect its future statutory power of review.
On the merits of the instant appeal, we decide that, because the agency has assured us that it is now moving expeditiously to resolve the pending overcharge claims, we need not determine whether the cited delays are so egregious as to warrant mandamus. The court, however, will retain jurisdiction over this case until final disposition by the agency.
A. The Rate of Return on Interstate and Foreign Services in 1978
In 1976, acting under the ratemaking authority conferred by 47 U.S.C. § 205(a), the FCC set the maximum rate of return for AT&T interstate and foreign operations at 9.5 percent, with a .5 percent additional margin to encourage productivity and efficiency.
AT&T's 1978 interstate rate of return was either 10.22, 10.1, 10.02, or 9.89 percent, depending on the methodology used to calculate it.
Representative Timothy Wirth, Chairman of the Subcommittee on Telecommunications, Consumer Protection and Finance of the House Committee on Energy and Commerce, has twice written to the FCC to inquire about the unexplained delay in agency action. In 1981, FCC officials responded that they expected a staff recommendation that fall.
B. The Treatment of CPE Expenses
In May of 1980, the FCC decided that CPE and enhanced telecommunications services
Between May 1980, and January of 1983, Western Electric spent about $500 million developing CPE. Because these development costs were expensed as they were incurred, the Commission, in an order dated November 10, 1982, expressed concern that between 1980 and 1982 regulated service ratepayers might have impermissibly contributed to recovery of these development expenses. But because the FCC concluded that it could not determine from the existing record whether ratepayer reimbursement for these expenses was warranted, it ordered AT&T to provide it with additional information.
On November 15, 1983, petitioners Florida Consumers Federation and others filed a Petition for Intervention and Expeditious Resolution.
As an initial matter, this case raises two significant and recurrent jurisdictional questions. First, where a statute commits final agency action to review by the Court of Appeals, does that court have jurisdiction to hear suits seeking relief that would affect its future statutory power of review? Second, if the Court of Appeals does have jurisdiction, is that jurisdiction exclusive or concurrent with that of the District Courts?
We recognize that our precedent concerning jurisdiction over interlocutory appeals from agency action (or inaction) is somewhat inconsistent and may be confusing for litigants attempting to select the proper
A. The Basis of Our Jurisdiction
We think it is clear — and no party disputes this point — that the statutory commitment of review of FCC action to the Court of Appeals, read in conjunction with the All Writs Act, 28 U.S.C. § 1651(a) (1982), affords this court jurisdiction over claims of unreasonable Commission delay. Exclusive jurisdiction over review of final FCC orders is vested in the Court of Appeals by 28 U.S.C. § 2342(1) (1982)
The Administrative Procedure Act ("APA") provides additional support for our jurisdiction here. That Act directs agencies to conclude matters presented to them "within a reasonable time," 5 U.S.C. § 555(b) (1982), and stipulates that the "reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed ...." 5 U.S.C. § 706(1) (1982). While the APA unquestionably does not confer an independent grant of jurisdiction,
B. The Exclusivity of Our Jurisdiction
We also conclude that our present jurisdiction over claims that affect our future statutory review authority is exclusive.
The District Court also lacks jurisdiction under both the All Writs Act, 28 U.S.C. 1651(a) and the mandamus statute, 28 U.S.C. § 1361 (1982). The All Writs Act is not an independent grant of jurisdiction to a court; it merely permits a court to issue writs in aid of jurisdiction acquired to grant some other form of relief. See Stern v. South Chester Tube Co., 390 U.S. 606, 608, 88 S.Ct. 1332, 1333, 20 L.Ed.2d 177 (1968); Covington & Cincinnati Bridge Co. v. Hager, 203 U.S. 109, 110, 27 S.Ct. 24, 51 L.Ed. 111 (1906). Because the District Court has no present or future jurisdiction over agency actions assigned by statute to appellate court review, it can contemplate no exercise of jurisdiction that mandamus might aid.
Nor is district court review permissible here under section 703 of the APA, which provides for district court review when statutory review is inadequate.
Furthermore, there are compelling policy reasons for holding that the jurisdiction of the Court of Appeals is exclusive. Appellate courts develop an expertise concerning the agencies assigned them for review. Exclusive jurisdiction promotes judicial economy and fairness to the litigants by taking advantage of that expertise. In addition, exclusive jurisdiction eliminates duplicative and potentially conflicting review, Investment Co. Institute, 551 F.2d at 1279, and the delay and expense incidental thereto.
There may be a small category of cases in which the underlying claim is not subject to the jurisdiction of the Court of Appeals (and thus adjudication of the claim in the District Court will not affect any future statutory review authority of the Circuit Court). In such cases, where a denial of review in the District Court will truly foreclose all judicial review, district court review might be predicated on the general federal question jurisdiction statute, 28 U.S.C. § 1331. For example, in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), the Supreme Court held that, even though there is a statutory prohibition against review of representation orders of the National Labor Relations Board, a District Court has jurisdiction under section 1331 in the very limited circumstance where the Board has clearly violated an express mandate of the statute and the plaintiff has no alternative means of review. See Hartz Mountain Corporation v. Dotson, 727 F.2d 1308, 1311-12 (D.C.Cir.1984). However, we need not tarry over this narrow exception because it is in no way implicated in the case before us. The principal point of this decision is to make clear that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is
III. MERITS OF THE UNREASONABLE DELAY CLAIM
As we have noted above, there is no doubt that this court has present jurisdiction to hear claims concerning nonfinal agency action (or inaction) that might affect our future statutory review of final agency action. Nevertheless, given the clear legislative preference for review of final action, we must be circumspect in exercising jurisdiction over interlocutory petitions. Postponing review until relevant agency proceedings have been concluded "permits an administrative agency to develop a factual record, to apply its expertise to that record, and to avoid piecemeal appeals." Association of National Advertisers v. FTC ("National Advertisers"), 627 F.2d 1151, 1156 (D.C.Cir.1979) (Tamm, J.) (citing McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969)), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). Accordingly, we have found the threshold a litigant must pass to obtain judicial review of ongoing agency proceedings to be a high one. Id.
Claims of unreasonable agency delay clearly fall into that narrow class of interlocutory appeals from agency action over which we appropriately should exercise our jurisdiction. It is obvious that the benefits of agency expertise and creation of a record will not be realized if the agency never takes action. Agency delay claims also meet Judge Leventhal's suggested criteria for our interlocutory intervention — not only is there an outright violation of 5 U.S.C. § 555(b)'s mandate that agencies decide matters in a reasonable time, there also is no need for the court to consider the merits of the issue before the agency. Finally and most significantly, Congress has instructed statutory review courts to compel agency action that has been unreasonably delayed. 5 U.S.C. § 706(1).
In the context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether the agency's delay is so egregious as to warrant mandamus. Although this court has decided several cases involving claims of unreasonable delay, see, e.g., PCHRG v. FDA, 740 F.2d 21 (D.C.Cir.1984); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150 (D.C.Cir.1983); PEPCO, 702 F.2d 1026
Because, in the instant case, the FCC has assured us that it is moving expeditiously on both overcharge claims, we need not test the delay here against the above standard to determine if it is egregious enough to warrant mandamus. But in light of the Commission's failure to meet its self-declared prior deadlines for these proceedings, we believe these delays are serious enough for us to retain jurisdiction over this case until final agency disposition.
In MCI we announced that:
627 F.2d at 340-41 (footnotes omitted).
In accordance with the foregoing opinion, we order that the court's mandate shall issue immediately and that within 30 days from the issuance of this decision the FCC shall inform this court of the dates by which the agency anticipates resolution of both refund disputes.
Because ALPA and the instant case raise identical jurisdictional issues, we treat them as companion cases. For the sake of economy, our discussion of these jurisdictional issues is dispositive for both ALPA and this case.
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47 ...."
47 U.S.C. § 402(b) (1982) narrows review jurisdiction over certain agency actions even further. It provides that certain agency proceedings, not at issue in this case, are appealable only in the Court of Appeals for the District of Columbia.
The Supreme Court has long recognized the authority of appellate courts to compel district court action through mandamus. See, e.g., McClellan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910) (Court of Appeals could issue a writ of mandamus compelling a Circuit Court to proceed where, pending a decision in state court, the Circuit Court had stayed a proceeding before it, possibly preventing the adjudication of the issues in federal court and thus interfering with the Court of Appeal's potential review of the Circuit Court's determinations); Ex Parte Bradstreet, 32 U.S. (7 Pet.) 634, 8 L.Ed. 810 (1833) (ordering lower court judge to reinstate, try, and decide a case to ensure that the party before it could exercise her subsequent right to judgment by the Supreme Court); Ex Parte Crane, 30 U.S. (5 Pet.) 190, 191, 8 L.Ed. 92 (1831) (noting that Blackstone believed the writ of mandamus "`issues to the judges of any inferior court, commanding them to do justice, according to the powers of their office, whenever the same is delayed.'").
5 U.S.C. § 703 (1982).