Date: 1984-06-18
Speaker: SAM B. HALL (democrat)
Chamber: H

Mr. Speaker. I yield iiysel f such titne as I may cont sI ume. Mr. Speaker. t he purpose of 11.11. 5365 is to simiplify the selection of the proper court to handle the jutticial appeal of an agency order in tose cases where petitions for review are filed in more than one court of ip peals. Often more than one party files a Judicial c(hallenge to the validity of an agency order. Many statutes do not specify a particular circuit as I lie court to handle these challenges. therefore venue Is proper in any of the lr(itts. If appeals are filed in more than one circuit. a single circuit must be m let ed to handle the appeal. Until recent amendments to title 211. an agency had the option of selecting which circuit would have venue in tlie review of an agency order if multipIl appeals were filed. This appeared to result in an unfair advantage to the agency. so in 1958. title 28 was amended to provide that the court of venue would be the court where the appeal was first filed. This firsttofile rule was intended to Introduce balance and fairness into the selection of a court of venue by simply allowing the circuit of the first appeal to be the court of Jurisdiction. However. the 1958 amendment had an unintended result. Many lawyers believe that particular circuits will be more sympathetic to their clients arguments. Thus. races to the courthouse occur. with each lawyer trying to file first in the circuit he or she feels will be sympathetic. Because of this belief. courts have increasingly been faced with nearly simultaneous filings of appeals to the same agency order. These races to the courthouse have resulted In some unfortunate consequences for the system of Justice. Since the races are based on the theory that one court will interpret the law differently from another court. they detract from the publics perception of the Federal courts as imlpartial. consistent dispensers of Justice. Moreover. these races produce no economic benefit. yet often cost private participants tens of thousands of dollars. In addition. once that race is complete. the particsas well as the Federal courts and agenciesmust then expend more resources on wasteful litigation to determine who won the race and which is the appropriate circuit for review. 1I.R. 5365 remedies the existing situation by removing the incentive to rare to the courthouse. It does this by modifying the first to file rule for those caees where more than one appeal of an agency order is filed in the first 10 days after the order Is v:%lied. In 1hiow eases. all petitions will standti on t he sam looting in tie deI rminllaton olf which circuit will hwindl I t h appeal. I.11. 5365 establisies a simriple procedure to (etermine venuie in these situolioins. It provides that the existing Judicial Panel on Multidistrlet Litigation will choose a eourt of venue from along those circuits In which petitio11 to review an agency order have beei filed. This choice will be made by a syst em of random selection. A party wkishing to qualify for the random select ion procedure will have to meet two condition . First. the party will hae to file an appeal of the agency order within 10 days after issuance of the order. Second. the party will also have to file a copy of the petition for review with the agency within the same 10 day period. Thice random selection will Include one entry for each circuit in which procedinvgs are pending. rather than one entry for each petitioner. After the selection. tile Judicial panel will issue an order consolidating the petilions for review in lie selected circuit. The judicial panel is required to establish rules to govern these selection procedures after providing the public with not ice and an opportunity to comment. on such rules. The circuit in which tile proceedings tire consolidated will take jurisdiction over all review proceedings dealing with the same order. This court will retain its existing power to transfer proceedings for the convenience of the part is in lie interest of justice. H.R. 5365 does not chante current standards for transfer. It also does not cover cases where venue is specified by statite to lie in one particular circuit. nor does it cover cases which are filed in the (list rict courts. During tile period before the random selection. any court of appeals in whichI a proceeding has been filed may stay the effective date of the agency order. Any such stays may thereafter be modified. revoked. or extended by the selected court in which the proceedings are consolidated. I.R. 5365 does not alter the current standards by which courts determine whet her to grant a stay. No random selection will be required if a second proceeding is commenced more than 10 days after issuance of tle agency order or if all proceedings are filed later than 10 days after the issuance of the order. In these cases. the firsttofile rule will continue in effect since no real race to tile courthouse is involved.