Multiple Petitions for Review of Agency Rulings: A Call for Further Reform

Toni M. Fine^*

Introduction

The process of seeking court review of actions of administrative agencies⁽¹⁾ has always presented unique concerns for practitioners and the parties they represent. Apart from the peculiar legal issues which are commonly raised in appeals of agency rulings,⁽²⁾ the logistics associated with filing petitions for review, interventions, and related submissions⁽³⁾ in such cases call into play some important practical concerns of their own.

Until relatively recently, the process of filing petitions for review of agency actions⁽⁴⁾ was plagued with a venue selection process⁽⁵⁾ that was unseemly, unwieldy, and expensive;⁽⁶⁾ that tended to unduly favor parties represented by Washington, D.C. counsel;⁽⁷⁾ and that spawned the now legendary "races to the courthouse" that have been soundly--and justifiably--criticized by the federal judiciary.⁽⁸⁾ Fortunately, congressional action taken in 1988, amending Title 28, § 2112(a) of the United States Code,⁽⁹⁾ removed the incentive to be the first party to file a petition for review, and hence "race" to the court in the venue of choice upon issuance of the agency ruling or rulings to be the subject of judicial review.

While this legislation has undoubtedly made the process of instituting petitions for review more efficient and manageable for the courts, the parties involved, and their counsel,⁽¹⁰⁾ formidable obstacles nevertheless remain that prevent full realization of the efficiencies and economies offered by the 1988 amendment.

Part II of this Article reviews the historical venue selection process with regard to court review of agency action.⁽¹¹⁾ Part III discusses the history, scope, and operation of the 1988 legislation itself and the benefits it offers.⁽¹²⁾ Part IV argues that despite the considerable gains made by virtue of the 1988 amendment, it did not go far enough in ameliorating the practical complexities and inefficiencies raised by multiple petitions for review of administrative orders.⁽¹³⁾

Finally, Part V suggests additional improvements that could be made to this process through some combination of further amendments to the Federal Rules of Appellate Procedure, local appellate court rules, and the Rules of Procedure of the Judicial Panel on Multidistrict Litigation governing this process.⁽¹⁴⁾

Venue Selection on Review of Agency Orders:

An Historical Perspective

The issue of races to the courthouse and, indeed, the entire need for a provision such as § 2112(a) of the Judicial Code⁽¹⁵⁾ derives from the fact that statutory provisions for review of actions of administrative agencies often allow for appellate review of the same agency action in any number of circuits.⁽¹⁶⁾ When there are multiple parties seeking review of the same underlying agency order, and when those parties file petitions for review in different circuit courts, § 2112(a) comes into play.⁽¹⁷⁾

Before passage and implementation of the 1988 amendment, Title 28 provided that "[i]f proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted."⁽¹⁸⁾

Ironically, Congress, as well as several federal appellate courts, apparently contemplated that this so-called "first-to-file" rule, implemented in the 1958 amendment to § 2112(a),⁽¹⁹⁾ would be a subjective, bright-line, easily applied standard.⁽²⁰⁾ Experience, however, proved otherwise; in seeking to be the first to file, litigants provided "comic opera examples of extravagant efforts to win the race to a preferred forum."⁽²¹⁾ For instance, the parties would often engage a "tag team" by situating one participant at the agency to watch for and to signal to a "team" member the posting of an agency order. The case law is replete with expressions of judicial frustration with the first-to-file rule and with the parties' use of increasingly sophisticated procedures to perfect their races.⁽²²⁾ Ultimately, the first-to-file rule heralded an era of satellite litigation devoted to determining which litigant was the first to file its petition for review in cases of multiple review petitions of a final agency action.⁽²³⁾

The judicial response renouncing the first-to-file rule seems to have focused on a few decisive factors. First, the courts condemned the unseemly nature of the races, noting that they both undermined public confidence in the impartiality of the federal judiciary⁽²⁴⁾ and placed lawyers in the undignified position of engaging in technologically elaborate races that have been aptly described by one court as "split-minute attempts-to-outdo-each-other."⁽²⁵⁾

Second, the courts were apparently concerned that the first-to-file rule may have provided an unfair disadvantage to parties and their counsel located outside Washington, D.C. Because the date of the posting of a particular agency order was generally unknown,⁽²⁶⁾ and because most orders are posted in the agency's main office in Washington, D.C., an inordinate and perhaps insurmountable expense was involved for parties whose attorneys chose to participate in races to the courthouse and were located outside of Washington, D.C. This disparity was recognized by both the courts and some agencies.⁽²⁷⁾

Third, the courts seemed troubled by the exorbitant and growing costs associated not only with the race itself, but with the determination of the "winner," that is, which party was in fact the first to file its petition for review.⁽²⁸⁾

The courts and the agencies (sometimes at the urging of the courts)⁽²⁹⁾ developed a number of mechanisms to ameliorate the concerns raised by the first-to-file rule. Finding that the first-to-file rule had become so unwieldy and the determination of a winner so difficult to ascertain, the courts ultimately were constrained to resort to informal agreements amongst themselves in selecting the forum in which the record was to be filed pursuant to § 2112(a).⁽³⁰⁾ As for the agencies, mechanisms such as the "deemed issued" rule,⁽³¹⁾ and the preannouncement of the date and time of issuance of the agency order (likely to be the subject of court review which would "trigger" the timely filing of petitions for review)⁽³²⁾ were developed to soften the deleterious effects associated with the operation of § 2112(a).

The 1988 Amendment

A. History and Purpose of the Amendment

The frustration expressed by the federal judiciary, shared parties, and their counsel alike, ultimately⁽³³⁾ yielded a congressional response.⁽³⁴⁾ The legislative history of the 1988 amendment reveals myriad factors that led to the ultimate passage and implementation of the 1988 amendment. Prominent among the concerns articulated in the reports of both the Senate Judiciary Committee and the House Judiciary Committee mirrored those expressed by the courts: that the public perception of the integrity of the federal judiciary may have been undermined by the race process, the understandable frustration of the federal judiciary with the race process, and the extraordinary and unnecessary expense and inconvenience to the parties and to the affected federal courts and agencies associated with the race procedures.⁽³⁵⁾

Apparently, Congress was sufficiently concerned with the costs associated with the first-to-file rule, because the issue of expense stands prominently in the legislative history.⁽³⁶⁾ The Senate Report, for instance, described for illustrative purposes a few races to the courthouse that exemplified the gross expenditure of resources attendant to such procedures.⁽³⁷⁾ In one such case, the total expense to the parties was estimated at approximately $35,000.⁽³⁸⁾ Highlighting the extraordinarily wasteful nature of these expenditures, the Committee Report noted that "in that case, it turned out that all of the parties were racing to the same courthouse."⁽³⁹⁾ The Committee further observed that in addition to the expenditures made by the parties in connection with the race itself, additional resources were spent by the parties, the courts, and the agency. The agency, for instance, was charged with determining which party "won" the race, and thus in which court of appeals the record was to be filed.⁽⁴⁰⁾

In this vein, the Senate Report described one case in which the proceedings to determine the outcome of the race alone involved the reenactment of the chain of procedures employed by each of the filing parties in order to determine which party was the first to file.⁽⁴¹⁾ The administrative law judge charged with this reenactment held three days of hearings in three separate venues--the headquarters of the agency whose orders were at issue, the District of Columbia Circuit courthouse, and the Fifth Circuit courthouse--in order to reach a determination as to which party was the first to file.⁽⁴²⁾ This determination was then remanded by the court for a further determination as to the precise second of filing.⁽⁴³⁾ It was against this backdrop that Congress finally emerged with an amendment to § 2112(a) that would render races to the courthouse on review of agency action a closed chapter in judicial history.⁽⁴⁴⁾

B. The 1988 Amendment to § 2112(a): A Mechanical Rule to End Races to the Courthouse

The 1988 amendment has all but eliminated races to the courthouse. Indeed, the only way in which a classic courthouse race could occur would be if no petition for review of agency action were filed and served on the agency-respondent consistent with that agency's regulations within the ten-day period established by § 2112(a) of the Judicial Code, and petitions for review of the same agency action were subsequently filed in more than one circuit. Despite the apparent cynicism of some,⁽⁴⁵⁾ and as others have recognized, the 1988 amendment has established a mechanical, systematic approach to the question of where the record is to be filed when petitions for review have been filed in more than one circuit court of appeals,⁽⁴⁶⁾ and has "effectively [taken] away from the Courts of Appeals any value of priority in filing."⁽⁴⁷⁾

The resulting amendment to § 2112(a)⁽⁴⁸⁾ provides that if petitions for review are filed in more than one circuit court within ten days after issuance of the agency order in question, then the agency⁽⁴⁹⁾ is to file the record in the court so designated by the Panel on Multidistrict Litigation ("Panel" or "Judicial Panel") by random selection.⁽⁵⁰⁾ Once the Judicial Panel designates the court to receive the record, the Panel orders a consolidation of all petitions for review that were included in the random-selection process, and transfers those cases to the court so designated.⁽⁵¹⁾

The amended § 2112(a) recognizes and establishes procedures for three types of situations that may arise with respect to filing petitions for review of the same agency ruling or rulings.⁽⁵²⁾

First possible scenario--petitions for review filed in one circuit only: First, the 1988 amendment provides that if only one petition for review is filed within the ten-day period after issuance of the agency order or if all petitions for review of the agency order filed within that ten-day period are filed in the same circuit court, then the agency is to file the record in the court in which that petition is or those petitions are pending.⁽⁵³⁾

Second possible scenario--petitions for review filed in more than one circuit within ten days after agency action under review: Second, the 1988 amendment provides that if petitions for review are filed in more than one circuit court within ten days after issuance of the agency order, the agency is to notify the Judicial Panel pursuant to Rules established by the Panel, provided certain ministerial requirements are followed by the petitioning parties.⁽⁵⁴⁾ Specifically, a copy of the petition for review stamped by the court with the date of filing must be received by the office and the officer designated by the agency to receive such petitions,⁽⁵⁵⁾ within ten days of the issuance of the final agency ruling under review.⁽⁵⁶⁾ The agency, for its part, is directed to then "promptly" notify the Judicial Panel in the event that petitions for review filed in more than one circuit have been duly received by it within the designated ten-day period.⁽⁵⁷⁾ Procedural requirements for this notice are established by Panel Rule.⁽⁵⁸⁾ The notice should be styled "Notice to the Judicial Panel on Multicircuit Litigation of Multidistrict Petitions for Review."⁽⁵⁹⁾ The notice is to include the date of the agency order(s) under review, a copy of relevant petitions for review, the case name, the circuits in which petitions for review were filed, the appellate docket names and numbers, the date and filing of each such case, and "the date of receipt by the agency of each petition for review."⁽⁶⁰⁾ The agency is to serve a copy of this Notice with the clerk of each circuit court that is included in the Notice.⁽⁶¹⁾

The Judicial Panel, by means of a random-selection process implemented pursuant to rules promulgated by the Panel,⁽⁶²⁾ will then designate⁽⁶³⁾ one court of appeals as the court in which the record is to be filed from among the circuits in which petitions for review were filed and delivered to the agency within the prescribed ten-day period.⁽⁶⁴⁾ The agency then files the record in the court selected at random by the Judicial Panel from among those courts in which petitions for review were filed within the prescribed ten-day period.⁽⁶⁵⁾ After selecting the venue, the Judicial Panel is also directed to issue an order consolidating in that court all petitions for review of the same underlying agency action.⁽⁶⁶⁾ The Clerk of the Panel (or the Clerk's designate) then serves a copy of the consolidation order on the clerk of each court included in the lottery,⁽⁶⁷⁾ and on the agency.⁽⁶⁸⁾ The agency then serves a copy of the consolidation order on all petitioners whose petitions for review were included in the Notice for purposes of the random selection.⁽⁶⁹⁾

Third possible scenario--race to the courthouse: Finally, the current version of § 2112(a) provides that "[i]n all other cases in which proceedings have been instituted in two or more courts of appeals with respect to the same order, the agency, board, commission, or officer concerned [is directed to] file the record in the court in which proceedings with respect to the order were first instituted."⁽⁷⁰⁾ This is the situation that would arise either when no party has filed a petition for review within the ten-day period, or when no petition for review filed within the ten-day period was eligible for the random-selection process because, for example, the petitioner failed to comply with the agency regulations established for this purpose.⁽⁷¹⁾

Transfer and consolidation pursuant to the Panel's venue selection: Once the Panel determines in which court to file the record, all petitions for review that were part of the random-selection process will be ordered transferred to the court so designated.⁽⁷²⁾ As with the version of § 2112(a) in effect prior to the 1988 amendment, "[f]or the convenience of the parties in the interest of justice, the court in which the record is filed may thereafter transfer all the proceedings with respect to that order to any other court of appeals."⁽⁷³⁾

C. A Brief Progress Report

The utility of the 1988 amendment can be measured to some extent by data concerning its use to date. Information provided by the Judicial Panel on Multidistrict Litigation reveals that the Panel has executed twenty-nine random venue selections since implementation of the random-selection process,⁽⁷⁴⁾ a figure that hints at the savings in resources alone by the elimination of the courthouse races. In some of those cases, seven circuits were made part of the venue lottery.⁽⁷⁵⁾ In one case, the Panel lists thirty-two parties as having been involved in the lottery.⁽⁷⁶⁾

In terms of the speed, the combined track record of the affected agencies and the Panel is quite good. According to data provided by the Judicial Panel, the Panel's order of consolidation and transfer was entered within a month from the date of the agency's action in an overwhelming majority of the venue selection cases brought before the Panel. In only one case, the order was entered more than two months after the date of the agency order.⁽⁷⁷⁾

Areas of Continued Inefficiency in Connection With the Filing of the Petitions for Review

The 1988 amendment to § 2112(a) of Title 28 has made significant inroads toward ameliorating some of the practical and logistical concerns raised by the filing of multiple petitions for review of the same underlying agency action.⁽⁷⁸⁾ If nothing else, it has virtually eliminated the incentive to engage in time-consuming, expensive, and frantic races to the courthouse.⁽⁷⁹⁾ As a result, the courts may avoid being placed in the unenviable position of having to resolve courthouse races by making finite judgments about filing times or by creating judicial fictions such as the "deemed issued" rule.⁽⁸⁰⁾

Nevertheless, the procedures associated with the filing of petitions for review and related pleadings continue to present the risk of inconsistent court action and delay. In particular, inefficiencies arise in connection with the filing of petitions for review beyond the ten-day period established by statute; the filing of interventions, dispositive and other motions, and docketing statements and related documents; the speediness and efficacy of the Panel's order of transfer and consolidation; and the resolution of any motions to transfer. The operation of the current rules also creates the potential for inconsistent action by courts, and for action by a court on a petition for review that will be properly transferred to another circuit. While these remaining concerns may seem relatively trivial compared with pre-1988 conditions, they continue to thwart full realization of the efficiencies offered by the 1988 legislation and may under certain situations create an inordinate and unnecessary expense to the parties and undue burdens on the court. Moreover, as discussed below, these concerns can be remedied fairly easily through some relatively minor modifications to the Federal Rules of Appellate Procedure, Rules of the Panel on Multidistrict Litigation, and/or local court rules.⁽⁸¹⁾

A. Risk of Inconsistent Action and Multiple, Redundant Filings in Proceedings that Ultimately Will Be Subject to Consolidation and Transfer

The heart of the concerns raised in connection with the application of § 2112(a) derive from operation of dual realities: (1) Petitions for review of agency action may be filed beyond the ten-day period established in the 1988 amendment for participation in the random venue selection process; and (2) there is no adequate mechanism set in place for adequate notification of circuits not included in the lottery of the pendency of the venue selection process or of its outcome. Courts that are aware that there are petitions for review of the same agency action that ultimately will be consolidated will most likely refrain from taking action on the petition for review until the issue of venue is resolved.

The risk of inconsistent court activity and the prospect of redundant, multiple filings is a product of the fact that court rules both permit and in some cases require the filing of myriad kinds of motions. Current rules under the Federal Rules of Appellate Procedure and local circuit court rules require that the parties file numerous documents within a time certain after the docketing of the appeal⁽⁸²⁾ and allow for the lodging of a virtually unlimited number of motions.⁽⁸³⁾ This combination of filings results in an inordinate waste of resources--including the preparation, filing, service, and processing of multiple submissions that will ultimately become redundant once consolidation has taken place, as well as the possibility of judicial action that may compromise the intent of § 2112 that all petitions for review of the same agency action be made subject to consolidated court action.

1. The Source of the Difficulty: Petitions for Review Are Not Part

of the Panel's Venue Selection Process

Virtually the entire range of concerns raised herein is due to the simple fact that petitions for review may be filed beyond the ten-day period prescribed for participation in the random venue selection process implemented by § 2112(a).⁽⁸⁴⁾

Neither the 1988 amendment to § 2112(a) nor any court rule addresses in any specific way the filing of petitions for review after the ten-day period prescribed by the 1988 amendment for eligibility in the random-selection venue process. Yet, the 1988 amendment plainly recognizes the possibility that petitions for review may be filed beyond the ten-day period established for participation in the Panel's random-selection process.⁽⁸⁵⁾ Thus, there may still be petitions for review filed after that time in any number of circuits, including a court in which no petition for review had been filed within the ten-day period established by § 2112(a).

Although it may be logical to assume that all interested parties would file petitions for review within the ten-day period established by the 1988 amendment to ensure that their venue selections would be eligible for the random-selection process authorized by § 2112(a), this has not uniformly been the case,⁽⁸⁶⁾ and certainly is not required by the statute or any rule.

It is, of course, entirely speculative, but not difficult, to imagine reasons why an interested party might not file a petition for review within the ten-day period prescribed by the 1988 amendment for eligibility in the venue selection "pool." Parties who are not as central to the proceedings may know that other, more prominent players will file petitions for review in a particular circuit court, eliminating any need for the less major players to preserve that circuit as a candidate for selection through the random-selection process (recalling that the random-selection process authorized by the 1988 amendment and the Rules of the Panel on Multidistrict Litigation does not permit "stuffing the ballot boxes" with multiple entries for a single circuit).⁽⁸⁷⁾ It is also conceivable that in the event that motions to transfer venue are filed after the circuit court designated to receive the record is chosen, bit players can exact some leverage over more major parties in supporting or opposing such motions, a role which can be optimized by parties who have not made a formal commitment to a particular venue.⁽⁸⁸⁾

Admittedly, the contingency that parties will file review petitions in circuits not represented in the random-selection process is less likely than the possibility that a party might file a petition for review beyond the ten-day period in a court in which a petition for review was filed within that period. This, of course, is because a party that did not ensure that its venue choice would be represented in the random-selection process would lose any advantage in having that circuit considered by the Judicial Panel in selecting the court in which the record is to be filed. Nevertheless, there is nothing in the 1988 legislation or any court rule that would preclude the filing of petitions for review after expiration of the ten-day period in a circuit that was subjected to the random- selection process. The possibility that such filings may be made remains.

Petitions for review filed after the ten-day period (or those filed within the ten-day period but not lodged in a manner consistent with agency regulations so as to be included in the random-selection process), would not have been among those transmitted to the Panel for random-selection. Thus, they are essentially outside the transfer and consolidation order of the Panel. This, in turn, results in inordinate and unnecessary paperwork both for the parties and the courts. It is inordinate because for each petition for review that is filed, a case must be opened, the attendant paperwork processed, and as discussed in greater detail below, interventions will be filed. It is unnecessary paperwork because cases in all but one circuit court will be ultimately transferred to the circuit chosen through the random-selection method.⁽⁸⁹⁾ Thus, there is no benefit whatsoever to be gained from filing petitions for review in other circuits.

2. Lack of Adequate Notification to Courts Presents the Risk of

Inconsistent Action and May Spur Duplicative Efforts and Other

Inefficiencies

The concern about the risk of inconsistent action and duplicative and unnecessary efforts is largely the result of rules that provide inadequate notice of the lottery prescribed by the 1988 amendment and the results of the Panel's random selection. In short, the pertinent Rules of the Judicial Panel on Multidistrict Litigation provide for inadequate notification to the circuit courts: (a) that the § 2112(a) lottery procedure has been triggered; and (b) of the results of the Panel's venue selection and ensuing order of consolidation and transfer pursuant to § 2112(a)(5).

This lack of adequate notification produces the risk of unnecessary, duplicative efforts, because if a court were advised that multiple petitions for review of the same agency action were pending in other circuits and would ultimately be consolidated and transferred to a single circuit, it is virtually inconceivable that the reviewing court would not impose at least an informal stay on the proceeding(s) pending before it. In other words, reviewing courts would welcome the knowledge of events that would cause them to take measures to avoid unnecessary filings by the parties and actions by the court, and would refrain from taking any action on procedural or substantive motions that would not be appropriate given that posture.

a. Inadequate Notification to Courts of Trigger of Random

Venue Selection Process

The Rules of the Judicial Panel require that the agency-respondent notify all circuit courts that are to form part of the random-selection process under § 2112(a) whenever the ten-day rule is triggered.⁽⁹⁰⁾ In other words, if an agency determines, pursuant to the Rules of the Judicial Panel and the agency's regulations promulgated pursuant to those Rules, that it must notify the panel of the trigger of the random-selection process, then it must at that time notify each of the circuits that will be a candidate for the venue selection.⁽⁹¹⁾

This practice makes sense; it simply does not go far enough because it leaves out of the notification process any and all circuit courts that were not made part of the random-selection process. Thus, for example, a situation could arise in which the agency is required to notify (and does so notify) three circuit courts of the pendency of several petitions for review of the same agency action, while review of that same agency action ultimately may be sought in seven or eight (or more) circuit courts. Under this scenario, there is no mechanism for notice to be provided to those courts. The same reasons that justify the requirement that notice be provided to the courts subject to the random-selection process,⁽⁹²⁾ warrant like notification to all other courts that might have pending before them a petition for review of the same agency action. Some rule should be implemented to ensure that such notification takes place.

b. Inadequate Notification of Order of Consolidation and

Transfer

The second problem with regard to notification to courts before which there might be pending petitions for review involves the Judicial Panel's order of consolidation and transfer pursuant to the venue selection lottery.

Rule 25 of the Rules of the Judicial Panel on Multidistrict Litigation provides for the service of the Panel's order of consolidation. In particular, Rule 25(a) provides that "[t]he Clerk of the Panel shall serve the Panel's consolidation order on the affected agency . . . ."⁽⁹³⁾ Rule 25(c) states that "[t]he Clerk of the Panel shall serve the Panel's consolidation order on the clerks of all circuit courts of appeals that were among the candidates for the Panel's random-selection."⁽⁹⁴⁾ Notification of the Panel's order of consolidation and transfer is thus not required to be made to circuits that have before them a pending petition for review of the underlying agency action, but that did not happen to be a part of the lottery.

3. Areas of Potential Inefficiency, Duplication of Effort and Risk

of Action by Court that Is Not the Court that Ultimately Will Be

Called upon to Hear Cases on the Merits

There are three broad categories of documents that may be filed in the weeks and months following the institution of the petition for review. First, interventions will be filed in numerous cases both within the same circuit (with a few exceptions, as discussed below),⁽⁹⁵⁾ and across circuits, despite the fact that all such cases ultimately will be consolidated for purposes of a merits review. Second, the parties may file motions of virtually any stripe upon docketing the appeal. In particular, parties will be required to file all dispositive and scheduling motions within a time certain after docketing the appeal. Such motions, however, will become largely redundant by the ultimate consolidation of all related cases.⁽⁹⁶⁾ Finally, the parties will be required to file docketing statements and a series of related submissions that will similarly become superfluous once the Panel has ordered transfer of all related cases to the designated circuit.⁽⁹⁷⁾

a. Filing of Multiple, Duplicative Interventions in Cases that

Will Be Consolidated

As they currently exist, the rules governing the filing of interventions,⁽⁹⁸⁾ in the overwhelming majority of circuits, tend to spawn the filing of a vast number of interventions in numerous cases, all of which ultimately will be consolidated into a single proceeding.⁽⁹⁹⁾ The Federal Rules of Appellate Procedure state simply that unless otherwise provided by applicable statute, motions for leave to intervene are to be filed within thirty days of the filing of the petition for review.⁽¹⁰⁰⁾

In the majority of circuits, the rules still require that an interested party file an intervention (or whatever variant is prescribed by local rule) in all cases in all circuits in which that party seeks intervenor status--a response that can be quite enormous given common practice to intervene in all related cases. A few circuit courts have, by local rule, amended Rule 15(d) of the Federal Rules of Appellate Procedure in some respects, notably with respect to the filing of interventions in agency review proceedings. Relevant for these purposes are the rules of the District of Columbia Circuit,⁽¹⁰¹⁾ the Ninth Circuit,⁽¹⁰²⁾ and to a more limited extent, the Fifth⁽¹⁰³⁾ and Eleventh Circuit.⁽¹⁰⁴⁾ These are the only circuit courts that currently provide for a more streamlined approach to the filing of interventions in proceedings involving review or enforcement of agency orders. In each of those circuits, each party need file only one intervention, which will safely cover all pending cases. But an additional problem remains that affects filing interventions in all circuits.

Despite the laudable efforts of the District of Columbia, Fifth, Ninth, and Eleventh Circuits to streamline the filing of interventions in cases that ultimately will be consolidated for purposes of court review, nothing has been done to eliminate the problem that each party seeking intervenor status must still technically file an intervention in all circuits before which related cases are pending.

Simply put, to the extent that the D.C. Circuit rules, for instance, alleviate the problem associated with multiple filings of interventions in cases pending review in that circuit, those rules obviously can have no mitigating impact on the intervention rules in other circuits. Thus, for example, while a given party may need file only one intervention in the D.C. Circuit, that party will still technically need to file an intervention in as many cases as are pending in, say, the First, Second, or Third Circuits. This would be true for each circuit court in which a related petition for review was pending, unless that court had adopted a streamlined intervention rule similar to that of the D.C. Circuit.⁽¹⁰⁵⁾ In the case of agency action that has been appealed by dozens of parties and in which hundreds more seek intervenor status (for instance, a major agency rulemaking that affects a large industry and impacts the public-at-large),⁽¹⁰⁶⁾ the filing, service and processing of interventions in each of several circuits can be astronomical.

Under current court rules, this is the result that is likely to flow until the Judicial Panel has made its random selection of the circuit in which the record is to be filed, and until all pending review proceedings of the same agency action have been transferred to that circuit and consolidated with the lead case.⁽¹⁰⁷⁾ This is a process that often approaches or exceeds the thirty-day limit established by Rule 15(d) for filing interventions.⁽¹⁰⁸⁾ There should be a procedure created to eliminate the need for parties to file multiple intervention requests in several review proceedings in any number of circuits, when all such cases will be ultimately transferred to one circuit and consolidated under the name of a single lead case.

b. Filing of Motions in Courts from Which Review Proceedings

Will Be Transferred

Local court rules often prescribe that the parties file dispositive motions and motions affecting the calendaring of cases within an established, often short, period of time subsequent to the docketing of the appeal.⁽¹⁰⁹⁾ Again, because the time established for the filing of such motions often ripens before the Judicial Panel has performed its random-selection process, and before the proceedings on review of the same underlying agency action have been consolidated and transferred to the circuit in which the record is to be filed, a number of such motions may well be filed in courts that ultimately will transfer the proceedings before it to another circuit. These motions thus will become superfluous and moot.

In addition to motions that may be regarded as "dispositive," the parties may at any time file important substantive or procedural motions on myriad topics. If acted upon, these motions would present the risk of inconsistent action by different circuits or other awkwardness, such as a ruling on a motion by a court that ultimately will not hear the merits of the case.

c. Filing of Multiple, Duplicative Docketing Statements and

Associated Filings in Circuits from Which Review Proceedings

Will Be Transferred

Once a review proceeding has been instituted (in addition to interventions and dispositive or other motions) there are a number of related submissions that are either required to be filed or that can be reasonably expected to be filed by the parties. Many local circuit court rules, for instance, require the filing of a docketing statement setting forth information relating to the order(s) under review, (including the date(s) of issuance, the underlying docket number, whether there is further rehearing pending, and the names of all parties participating in the agency proceeding), information about the petitioner (such as corporate affiliations, presumably to enable the judges to evaluate any need for recusal), a list of any related pending cases (involving the same agency action or related actions the disposition of which may affect the instant case), and the status of any such cases.⁽¹¹⁰⁾ In addition, petitioners may be required to file a notice of intention to utilize a deferred appendix, and other related pleadings. Because these filings typically must be made within weeks of the docketing of an appeal,⁽¹¹¹⁾ a flurry of submissions is filed and served in cases that ultimately will be transferred and consolidated to another circuit. While there is certainly a benefit to having such information in the record, there is simply no good reason to require multiple, repetitive filings in numerous circuits that provide close variants of the same information.

B. Potential Delays

Delays may--and have--resulted at virtually every stage in the judicial review process.⁽¹¹²⁾ Hence, one concern that should always be borne in mind in connection with agency review proceedings is whether there are any systemic or inherent obstacles to speedy court review on the merits, and, if so, how such barriers may be dismantled.⁽¹¹³⁾

Concerns over delay in judicial review of actions of administrative agencies have forever been endemic to the process; indeed, commentators have long decried the potential for and actual delays in judicial review proceedings, especially in the context of review of agency action.⁽¹¹⁴⁾

One additional point concerning the timing of judicial review of agency action is that the time for the filing of the administrative record is fixed by rule.⁽¹¹⁵⁾ While a court may grant the agency an extension of time, Congress clearly anticipated that the filing of the record would not be unnecessarily delayed. Presumably, this reflects the desire that a merits review proceed apace, without any unnecessary delay.

In the specific context of § 2112, there are several junctures at which delay may occur.⁽¹¹⁶⁾ Two of those possibilities for delay are tied to the execution of the venue selection process established by the 1988 amendment. One area of concern is with the transfer of pending related actions by circuit courts in response to the Panel's order of consolidation and transfer.⁽¹¹⁷⁾ A second possibility for delay involves the resolution of motions to transfer venue that may be filed in the circuit designated by the Judicial Panel to receive the record.⁽¹¹⁸⁾ Each of these areas of potential delay is discussed below.

1. Potential Delay in Agency Notification to Panel of Triggering of

Random-Selection Process

The Rules of the Multidistrict Panel require that the agency-respondent notify the Panel upon determining that petitions for review of the same underlying action have been filed in more than one circuit within the ten-day period.⁽¹¹⁹⁾ Nevertheless, and although § 2112(a) requires that the agency "promptly" make this notification to the Panel, neither the 1988 amendment nor the Rules promulgated by the Judicial Panel on Multidistrict Litigation to carry out the 1988 amendment prescribes a time period by which the affected agency must make this application to the Panel. The absence of a time limitation by which such notification shall occur leaves it entirely within the discretion of the agency to process the petitioners' notices and to notify the Panel.⁽¹²⁰⁾

Some limitation on the time by which an affected agency is to notify the Panel of the need to trigger the random-selection process would be desirable. This would eliminate any possible concerns that the agency will fail to notify the Panel "promptly," of the need to engage in the venue selection procedure established by the 1988 amendment.

2. Potential Delay in Panel Random-Selection Process and Order of

Transfer and Consolidation

Neither the 1988 amendment nor the Rules of the Multidistrict Panel prescribe the time by which the Panel is to execute its random-selection process, notify the parties of the circuit in which the record is to be filed, or order the consolidation or transfer of the petitions for review that were the subject of the random-selection process. Accordingly, the timing of these events is left to the judgment and priorities of the office of the Clerk of the Panel.⁽¹²¹⁾ Speedy processing of these statutory duties, however, would help ensure that judicial review of the agency action will not be unduly delayed, and some requirement as to the time by which such events are to take place therefore should be imposed.⁽¹²²⁾

3. Potential for Delay in Transfer of Related Cases to Circuit in

Which Record Is to Be Filed

Nothing in the 1988 amendment or in the rules of the Panel or any circuit court establishes any specific procedure by which the transfer of related cases will be made to the court to which all pending petitions for review of the same agency action have been transferred. Pursuant to § 2112(a)(5), this transfer must include cases pending in circuits that were part of the random-selection procedure, as well as those that were not.⁽¹²³⁾ Any inordinate delay in the execution of this transfer, and of the consolidation of all such cases in the circuit chosen at random by the Judicial Panel to receive the agency's record, would delay all stages of the review proceedings, including the outcome of a merits review by the court. Thus, some mechanism for establishing speedy transfer and consolidation of cases to the venue of choice should be imposed.

4. Potential Delay in Resolution of Motions to Transfer

Nothing in the 1988 amendment alters in any way the right of parties to file motions to transfer the review proceeding to another circuit.⁽¹²⁴⁾ In fact, the legislative history of the 1988 amendment makes clear that the legislation left intact the provisions of Title 28 governing motions to transfer venue in review proceedings of administrative actions.⁽¹²⁵⁾ Nor is there anything in either the 1988 amendment or the legislative history to indicate that the factors traditionally considered by courts in deciding such motions were to change in any way as a result of the 1988 legislation. To the contrary, there is ample evidence to suggest that the same factors in determining "the convenience of the parties in the interest of justice" that have developed through the common law should continue to guide judicial resolution of such motions.

In evaluating whether transfer should be ordered "[f]or the convenience of the parties in the interest of justice,"⁽¹²⁶⁾ factors that the courts traditionally have considered include "the relative expertise of a given court of appeals in the area of law under review,"⁽¹²⁷⁾ the "state of the dockets" of the respective courts,⁽¹²⁸⁾ the convenience of the parties, and familiarity with the background of the issues,⁽¹²⁹⁾ the pendency of related cases,⁽¹³⁰⁾ and issues of relative aggrievement of the petitioning parties.⁽¹³¹⁾ The nature of the litigation process is such that the parties can be expected to make their best case consistent with their position in favor or against transfer; yet the issue of whether to grant or deny a motion for transfer, while an important one, presents no particularly problematic issues for the court. In addition, although perhaps not a greatly principled basis upon which to argue that transfer motions should be resolved quickly, the fact is that such motions are rarely granted.⁽¹³²⁾ It thus seems even more anomalous for a court to procrastinate in ruling on such motions.⁽¹³³⁾

Although this situation was a possibility under the pre-1988 version of § 2112(a), the concerns of efficiency that underscored the need for the 1988 amendment compel a mechanism to ensure the more speedy resolution of devices, such as motions to transfer, which tend to significantly delay the resolution of the merits of these cases.

A Proposal for Fuller Realization of the Economies and Efficiencies Offered by the 1988 Amendment

A. Possible Approaches and Their Feasibility: An Introduction

There are any number of different mechanisms that can be used to eliminate the shortcomings identified herein,⁽¹³⁴⁾ or at least to minimize their impact and provide for a more efficient progression of agency review proceedings. Among the possibilities are a legislative response, a modification to the Federal Rules of Appellate Procedure, a modification to the local rules of the various circuits, amendments to the Rules of Procedure of the Panel on Multidistrict Litigation, development of judicial standards by appellate practice, or some combination of these mechanisms.

1. Legislative Response

As anyone even remotely versed in the workings of the American political system would readily acknowledge, reliance on a legislative remedy is always dubious. The likelihood of a legislative fix to just about any issue is extremely remote and, at best, a long time in the making.⁽¹³⁵⁾ If nothing else, the history of the 1988 amendment demonstrates the slow pace with which a legislative change can be expected to proceed. As noted above, even the widely-favored, non-controversial changes made in 1988 to § 2112(a) took many years to enact, despite uniform and vigorous recognition that the pre-existing system was unworkable and inefficient. Recognizing that legislation simply cannot be viewed as a panacea to the ills described above, no statutory amendments are included within the following proposals, although congressional attention to these issues would certainly be desirable.

2. Modifications to Court Rules

Each of the federal appeals courts is governed primarily by two sets of procedural rules: The Federal Rules of Appellate Procedure, which apply to all of the federal circuit courts, and the local appellate court rules adopted by and applicable within each particular circuit court.⁽¹³⁶⁾

a. The Federal Rules of Appellate Procedure

Although not fraught with the same kind or level of political pressures and fissures, the process of seeking and implementing changes to the Federal Rules of Appellate Procedure is likewise cumbersome and unpredictable. Without chronicling in great detail the procedures by which the Federal Rules of Appellate Procedure undergo change, suffice it to say that it is a multi-faceted process requiring the participation of a number of different entities,⁽¹³⁷⁾ which realistically can take no less than one year, but which can (and often does) take much longer.⁽¹³⁸⁾

But while seeking a change to the Federal Rules of Appellate Procedure has its drawbacks, implementing change through the federal appellate rules also offers extraordinary benefits. Probably most significant among these advantages is the uniformity that only these rules can produce. That is, subject to exceptions as may be prescribed by local rule,⁽¹³⁹⁾ the federal rules apply across the board to all circuit courts. Given that successful correction of the problems addressed by this proposal rely largely on uniformity and consistency among the circuit courts, this aspect of the federal rules makes them particularly appealing as a way of coordinating agency review proceedings.⁽¹⁴⁰⁾

b. Local Appellate Court Rules

Each appellate court has its own set of local rules that are enacted by and applied within that circuit.⁽¹⁴¹⁾ The process attendant to the implementation of local court rules is far less complicated, and requires only "a majority of its judges in regular active service."⁽¹⁴²⁾

But the same reasons that make the uniformity and consistency of the Federal Rules of Appellate Procedure desirable as a means of better coordinating the efforts of the various circuit courts, make using local circuit rules as a means of effectuating these changes less desirable. Whatever measures are adopted from circuit court to circuit court are obviously unlikely to yield the uniform, harmonious response that is needed to resolve the concerns raised in this Article. This is true especially when the success of the proposed changes turns in large measure on the systematization of rules by all of the circuit courts. Any lack of uniformity and consistency could undermine the potential benefits of this proposal.

c. Rules of the Judicial Panel on Multidistrict Litigation

The Judicial Panel on Multidistrict Litigation is a unique entity, and its composition, authority, and practice thus require some introduction.⁽¹⁴³⁾ The Judicial Panel was created in 1968 by virtue of section 1407 of the Judicial Code,⁽¹⁴⁴⁾ and was designed to coordinate the pre-trial (discovery) phase of cases involving common questions of fact. Its role in connection with agency review proceedings only began with the passage and implementation of the 1988 amendment.

The Panel is composed of seven circuit and district court judges (none of whom may be from within the same circuit) selected by the Chief Justice of the Supreme Court.⁽¹⁴⁵⁾ The Panel has the authority to order transfer and consolidation or coordination of multidistrict litigation for purposes of pre-trial proceedings.⁽¹⁴⁶⁾ It has been noted that "Section 1407 initially was considered as a vehicle for use predominantly in air disaster litigation, antitrust litigation, securities litigation, product liability litigation and patent, trademark and copyright litigation. . . ."⁽¹⁴⁷⁾ In addition to mass air disaster cases,⁽¹⁴⁸⁾ the panel has ruled on motions for consolidation and transfer for pre-trial proceedings in rail disaster litigation,⁽¹⁴⁹⁾ personal injury asbestos litigation,⁽¹⁵⁰⁾ litigation involving construction materials for prefabricated buildings,⁽¹⁵¹⁾ and thrift bankruptcy litigation,⁽¹⁵²⁾ among other types of cases. More relevant for present purposes, the Panel is also responsible for executing the random venue selection process when petitions for review of the same agency action are duly filed in more than one circuit court within ten days after issuance of the underlying action.⁽¹⁵³⁾

The Judicial Panel has rulemaking authority for the governance of its proceedings.⁽¹⁵⁴⁾ The Panel promulgated rules in 1989 to implement rules for proceedings to govern the operation of the 1988 amendment.⁽¹⁵⁵⁾

Rules 1-18 are the basic Panel rules that have been in effect in similar form since the Panel's existence. In these rules and in practice, the Panel has adopted for itself a more active role in the multidistrict litigation process than is necessary to fulfill its statutory mandate. For instance, although the Panel's responsibilities could be read to go no further than considering and ruling on motions for pre-trial consolidation, the Panel has expressed an interest "in the litigation as a whole,"⁽¹⁵⁶⁾ and has indicated its interest in being appraised of the status of the proceedings through final disposition of all of the cases that were affected by the transfer motion. In general, the duties of the clerk of the Judicial Panel are to accumulate files regarding multidistrict litigation and to offer assistance to courts regarding the administration of multidistrict litigation. As described by Patricia Howard, the current and long-standing Clerk of the Judicial Panel, the clerk's duties include giving notice to parties of hearings;⁽¹⁵⁷⁾ distributing Panel orders as provided by the statute and "as the Panel may from time to time direct;"⁽¹⁵⁸⁾ "accumulat[ing] files containing complaints and docket sheets, orders of transferee courts, and other documents related to multidistrict litigation;"⁽¹⁵⁹⁾ and "offer[ing] assistance to the various district courts whenever possible regarding the administration of multidistrict litigation."⁽¹⁶⁰⁾

B. Special Problems Raised by Rules Involving Petitions for Review: The Nature of Issues Involving Jurisdiction and Venue and a Few Impractical Proposals

The issues raised by this proposal highlight some unique concerns in that they implicate issues involving statutorily prescribed notions of jurisdiction and venue. Thus, in the absence of a legislative response to the problems raised herein,⁽¹⁶¹⁾ there is a limit to what the courts may do, either by rule or through case law. This reality needs to be taken into account in evaluating the possible approaches, and any proposal must be evaluated to ensure that it would not require that the courts take ultra vires action.⁽¹⁶²⁾ Indeed, this consideration probably precludes the implementation of two otherwise simple, straightforward suggestions: First, that the rules stay the date for filing of any petitions for review beyond the ten-day period until after entry of the Panel's order of consolidation and transfer, and, second, in the alternative, that petitions for review filed beyond the ten-day period be filed only in circuits made subject to the random-selection procedure implemented by § 2112(a).

The first proposed solution mentioned above is flawed because the issue of timeliness concerning petitions for review of final agency action is jurisdictional in nature, and the courts are entirely without power to expand that time.⁽¹⁶³⁾

Venue provisions, however, are not jurisdictional in nature,⁽¹⁶⁴⁾ thus giving courts somewhat greater leeway. For instance, courts have used their transfer authority to transfer a petition for review to a court with proper venue when venue was not proper in the transferring court.⁽¹⁶⁵⁾ In addition, a court with proper venue may transfer a pending petition for review to another circuit in which venue would not otherwise have had venue, when such transfer is made pursuant to § 2112(a).⁽¹⁶⁶⁾

Nevertheless, statutory provisions concerning the proper venue for petitions for review of agency action, while scattered throughout the United States Code, are statutorily prescribed with great specificity.⁽¹⁶⁷⁾ This level of statutory detail and attention may unfortuantely make courts reluctant to embrace what is probably the most obvious and comprehensive solution to these problems: A rule that would prohibit the filing of petitions for review after the ten-day period, if the venue-selection process of § 2112(a) has been invoked in any circuit other than a court that has been made part of the venue lottery. For the reasons mentioned above, such a solution would undoubtedly produce great resistance; indeed, it does raise serious questions about the authority of either the Judicial Panel or the federal courts--even through amendment to the Federal Rules of Appellate Procedure--to effectuate such a change.

This is not to say that the notion of limiting the venue choices of parties who choose to file petitions for review after expiration of the ten-day period authorized for inclusion in the venue lottery would be hopelessly inconsistent with statutory venue provisions; such a solution may well be fully appropriate. To reach this conclusion, one must proceed through a series of analytic steps: First, as indicated above, the courts have been uniform in their insistence that venue provisions, while dictated by statute, are not jurisdictional in nature.⁽¹⁶⁸⁾ Second, consistent with this conclusion, the courts have been somewhat flexible in their approach to venue selection. For instance, unless prohibited by statute, the courts have ordered statutory transfer for the convenience of the parties and in the interest of justice to a court where no petition for review had been filed, or to perfect venue when filing was not endorsed by statute.⁽¹⁶⁹⁾ In other cases, courts have even ordered transfer to a circuit where venue would otherwise have been inappropriate.⁽¹⁷⁰⁾ Thus, the courts' willingness to go beyond rigid statutory venue provisions is evident.

Third, the fact that a party has filed a motion to transfer to a circuit in which no petition for review is pending would not bar judicial consideration of such transfer. A court may order (and courts have ordered) transfer pursuant to § 2112(a) to circuits in which no pending petition for review has been filed; any hesitation to do so would certainly be mitigated by a rule that precluded the filing of a review proceeding in any court in which a petition for review was not filed within the ten-day window established by the 1988 amendment. On the other hand, courts may be extremely reluctant to prescribe by rule venue options that are made available by Congress, even when there will be no practical impact from doing so. Thus, it is with the reality that this unwillingness would likely make the foregoing proposal difficult to implement as a practical matter, that the following suggestions are made.

C. Striking a Balance: A Proposal for Change

The following proposal attempts to strike a balance between the need to correct the inefficiencies created under the current system and the realities associated with seeking change, particularly in legislation. Clearly, while there would be a virtue to mandating changes by legislation or through uniform federal court rules, practicalities dictate that neither of these options presents a very feasible approach, and that where possible, these possibilities should be abandoned in favor of a more measured, viable proposal. The following suggestions thus seek to follow a path of least resistance, which, hopefully, will adequately address the concerns discussed above while respecting the need to suggest action that has some reasonable possibility of success.

1. Amend the Rules of the Judicial Panel to Require Agency

Notification Within a Specified Number of Days After Expiration

of the Ten-day Period

As noted above,⁽¹⁷¹⁾ neither the 1988 amendment to § 2212(a) of Title 28 of the United States Code nor the Rules promulgated by the Judicial Panel on Multidistrict Litigation to carry out the 1988 amendment prescribes a time period by which the agency-respondent must notify the Panel that the random-selection process has been triggered. The establishment of time limitations by which such notification shall occur would minimize the impact of some of the issues raised by the filing of multiple petitions for review of the same agency action. Requiring the agency to make this notification within a time certain would be one way to ensure that the notification happen "promptly" as prescribed by Congress.⁽¹⁷²⁾

Requiring the agency to notify the Panel that the random-selection process has been triggered could be accomplished by amending the Rules of the Multidistrict Panel. In particular, Rule 20 could be amended to establish a time period by which notification to the Panel must occur. Five working days after the close of the ten-day period would seem to be an appropriate time by which the agency shall send notification to the agency.⁽¹⁷³⁾ Such a requirement would not pose an undue burden on the agency, given that it would need to tend to only a few, very ministerial details in connection with notifying the Panel. Indeed, the Rules of the Panel prescribe the precise form of the Rule 20 notice.⁽¹⁷⁴⁾ In order to avoid any undue harshness that such a rule might create, the rule could contain a clause excusing failure to notify within the time prescribed by rule, provided that the agency proffer "good cause" for having failed to do so.

2. Amend the Rules of the Judicial Panel to Require Execution of

Venue Lottery and Entry of Order of Consolidation and Transfer

Within a Prescribed Time After Notification of Need to Trigger

Random-Selection Process

As also discussed above,⁽¹⁷⁵⁾ the 1988 amendment to § 2112(a) of Title 28 of the United States Code does not prescribe a time period by which the Panel must make the random selection of the court in which the record is to be filed. Nor is there any prescription on when the Panel is to carry out its statutory duties to order consolidation of all cases subject to the random-selection process and transfer those consolidated cases to the circuit selected through the panel's lottery. Speedy processing of these statutory duties would help ensure that judicial review of the agency action will not be unduly delayed.⁽¹⁷⁶⁾

In the absence of a legislative initiative, the Panel, by rule, could commit itself to acting within a prescribed period of time after notification. Although court rules generally do not establish time restrictions for its own actions (in the absence of a statutory requirement that it do so), it would nevertheless be an act of extreme grace and good will for the Panel to require that the Clerk (or designate) execute the lottery and order the transfer/consolidation within a prescribed number of days (for example, five days) after receipt of notice by the agency.⁽¹⁷⁷⁾ This is certainly manageable, given the extreme ministerial nature of the Clerk's obligation in this regard. At a minimum, the Panel should commit itself through practice and policy to acting expeditiously in carrying out its mandate under § 2112(a).

3. Modify the Rules of the Judicial Panel to Require Notification

to all Circuits of the Trigger of the Random Venue Selection

Process and Order of Consolidation and Transfer

As indicated, the primary concerns in connection with the failure of adequate notice to circuit courts that may be affected by the Judicial Panel's order of consolidation and transfer are the risk of delay in transfer to the venue in which the record is to be filed (and an ultimate merits review),⁽¹⁷⁸⁾ the lodging of multiple and unnecessary documents,⁽¹⁷⁹⁾ and the risk of inconsistent action by the various circuit courts.⁽¹⁸⁰⁾ Thus, adopting rules by which to ensure timely notice of all affected courts of the status of the venue selection will help to minimize these concerns.⁽¹⁸¹⁾

a. Panel Rules Should Require that the Affected Agency Notify all Circuits of the Trigger of the Venue Selection Procedures of

§ 2112(a)

As indicated above,⁽¹⁸²⁾ the Rules of the Judicial Panel require that the affected agency notify the courts that are to become part of the venue lottery after expiration of the ten-day period. As previously discussed,⁽¹⁸³⁾ this leaves out of the notification procedure any courts in which related petitions for review are subsequently filed or for some other reason were not eligible for entry into the Panel's lottery. Early notification to all courts with pending petitions for review of agency action that will ultimately be transferred to a single circuit (pursuant to § 2112(b)) should have the benefit of the earliest possible form of notice so that it can make whatever housekeeping arrangements that may be appropriate and so that it can refrain from taking any substantive action in such proceedings.

Thus, it would make sense to implement a rule or procedure that would require that each notification be made to each circuit court (or at least to each circuit court in which venue would conceivably be proper) of the fact that the random-selection procedure of § 2112(a) has been triggered.

A number of approaches could be adopted based on a number of variants. The first variant to be determined is which entity should be responsible for making the notification. The second issue is which courts should receive the notification.

As for the issue of which entity should be charged with notifying the other circuits, three possibilities come to mind: The agency-respondent, the Judicial Panel, or the court that will be receiving the record pursuant to the random-selection process. The third possibility--requiring notification by the court that is designated by the random-selection process--seems to be the worst of the three possibilities in at least two respects. First, this option would, by its very nature, call for the longest delay. Even if speedy action on the part of the transferee court were assumed, such notification by definition could not occur until after the ten-day period expired, the agency-respondent notified the Judicial Panel of the need to trigger the random-selection process, the Panel selected the circuit to receive the record, and the transfer and consolidation were effectuated. The second problem raised by this possibility is the concern about whether the Judicial Panel has the authority to impose such requirements on the circuit courts. Especially given the timing concerns, there seems to be no reason to suggest that the Panel assert authority it may or may not have, especially when other mechanisms are readily available.

Between the remaining options--requiring notification by either the agency-respondent or the Judicial Panel of the circuit courts that were not subject to the ten-day random-selection process--requiring that such notification be made by the agency seems to be the best option, for a number of reasons. First, because the agency is already required to make some notification of this nature means that requiring that the agency add a few circuits to the number that are to be notified seems to be a minimal burden. Presumably, the agency would already have prepared, for purposes of complying with Rule 20(d) of the Rules of the Judicial Panel, a form indicating that petitions for review of certain agency action have been instituted. The same form--perhaps with some ministerial adjustments--could be used to notify additional circuits of the pendency of such review proceedings.

Another reason to favor the suggestion that the agency be the entity to make this proposed notification is that the agency-respondent is in the best position to make prompt notification. Under the rules as they currently exist, the agency is the first entity to receive formal notification that petitions for review of the same agency action are under court review. Thus, requiring that the agency be the entity to notify the circuit courts of the pendency of such review proceedings would allow for the most prompt notification possible. On balance, requiring the agency to do so seems to be the best of the possibilities for a number of reasons. Nevertheless, a viable alternative would be for the Panel, through Rule or practice, to notify circuit courts that were not notified by the agency as having been part of the random-selection process.

The second issue that would need to be decided in connection with such a proposal is which circuit courts should receive notification of the pendency of an agency review proceeding subject to § 2112(a). In particular, there is the question whether notification should be made to any circuit court in which a petition for review of the same agency action has been instituted; to any circuit in which venue on review of such agency action could conceivably be proper; or to all federal circuits, irrespective of whether a review proceeding of the underlying orders has or could be brought in that circuit.

The best solution would be to require notification to be made to all circuit courts. Recognizing that such a requirement might result in notification being made to courts that will ultimately have no relationship to the litigation in question, on balance, is the approach that makes the most sense in terms of economy and efficiency. First, requiring the notifying entity to keep careful record of and/or to assess in which circuits a review proceeding had been or could be properly filed would present an unnecessary burden on the notifying entity, and would open the process to the possibility of error. The resources that would be spent on including (within the list of courts to be notified) a few circuits that in reality did not need to be so notified, are minimal compared with those that would be spent evaluating the courts in which notification would be required.

b. Panel Rules Should Require Notification to all Circuits of

Order of Consolidation and Transfer

The second aspect of inadequate notification in connection with the execution of the venue lottery is the notice provided to courts of the result of the venue-selection process. Current rules provide inadequate notice to the circuit courts of the venue chosen as the place for the selection of the record, and the order of consolidation and transfer of the Judicial Panel. As discussed above,⁽¹⁸⁴⁾ Rule 25(c) provides only for notice of the consolidation and transfer order to the circuits that were included in the venue lottery, despite the fact that the courts subject to the order of transfer pursuant to § 2112(b) might be more numerous.⁽¹⁸⁵⁾ One workable solution would be for the Panel to amend Rule 25(c) to provide that the Panel is to notify all circuits⁽¹⁸⁶⁾ of the result of the random selection and subsequent transfer and consolidation--not simply those courts that were included in the lottery.⁽¹⁸⁷⁾ Any courts in which petitions for review of the same underlying agency orders that were not subject to the Panel's consolidation/transfer order would then be aware of the outcome of the Panel's lottery and could then transfer petitions for review of the same agency action to the court selected through the random process. This is clearly the result contemplated by § 2112 of Title 28, and implementation of this proposal readily helps to achieve that outcome in an efficacious manner, with a minimal expenditure of Panel resources. In addition, giving the courts that will be subject to the order of transfer and consolidation, albeit indirectly, the earliest possible notice of the court to which all related proceedings are to be transferred, will enable the transfers to take place in the most speedy manner.⁽¹⁸⁸⁾

4. The Federal Rules of Appellate Procedure or Local Circuit

Court Rules Should Be Modified to Apply Intervention Rules to all

Related Review Proceedings

A procedure should be developed to eliminate the need for parties to file multiple intervention requests in several review proceedings in any number of circuits, when all such cases will be ultimately transferred to one circuit and consolidated under the name of a single lead case.

As discussed above,⁽¹⁸⁹⁾ there is a twofold problem regarding the filing of interventions: One has to do with the multiplicity of filings made in the various review proceedings within a single circuit, and the second involves the need to file interventions in as many courts as are pending review proceedings of the same agency action.

The first problem with the current rules can be remedied by amending the local rules of all circuits so that they resemble the rules for intervention in the Fifth Circuit, District of Columbia Circuit, the Ninth Circuit, and the Eleventh Circuit (as the rules of that court pertain to appeals of FERC orders).⁽¹⁹⁰⁾ If other courts were to adopt and operate under similar rules, a would-be intervenor would need to file only one intervention in each court before which a petition for review of the underlying agency action were pending.

This solution still leaves the obvious problem that each intervening party will need to file a motion for leave to intervene in more than one circuit, even though all related cases ultimately will be transferred and consolidated in a single circuit. This complication could be resolved by a rule staying the time for filing interventions in situations in which the random-selection process is triggered, until thirty days after service of the transfer/consolidation order. That would mean that each party would need to file one intervention--and one intervention only--in the consolidated proceeding.

This recommendation is not without its practical shortcomings. While it is sensible, it may be that it can only be accomplished by a modification to the Federal Rules of Appellate Procedure rather than by local court rules. Whether an accurate assessment of their rulemaking authority or not, the circuit courts may believe that it is beyond their power, or at least would be injudicious, to adopt a rule that would be such a radical departure from a specific provision (that is, the 30-day intervention rule) of the Federal Rules of Appellate Procedure.⁽¹⁹¹⁾ But in some respects, accommodation of this proposal through a modification to the Federal Rules of Appellate Procedure would be the most efficacious approach to this problem; because of the nature of this proposal, the only truly effective solution requires uniformity among all circuits. It would seem no less forbidding of a prospect to seek this result through modification to the Federal Rules of Appellate Procedure as it would to expect reasonably prompt, comparable action by each and every circuit court.⁽¹⁹²⁾

5. The Courts by Rule and Practice Should Stay all Action Until

After Entry of the Panel's Order of Consolidation and Transfer

a. Local Court Rules Should Be Amended So that Docketing

Statements and Related Filings, as Well as Dispositive or

Scheduling Motions, Need Not Be Filed Until a Specified Time

After Consolidation and Transfer of all Related Petitions for

Review

As indicated above,⁽¹⁹³⁾ local circuit court rules require that docketing statements and certain other associated documents, as well as dispositive and certain scheduling motions, be filed by the petitioning parties, generally within a prescribed time period after the docketing of the appeal.⁽¹⁹⁴⁾ There is no good reason to require the filing of such submissions in individual cases across circuits when those cases ultimately will be consolidated in a single court. Accordingly, each circuit, by local rule and/or practice, should refrain from requiring the submission of any such documents. The filing of such submissions should not be required until after the transfer and consolidation of related cases pursuant to § 2112(a)(5).

b. The Courts by Practice Should Refrain from Ruling on any

Motions Filed Until After Entry of the Panel's Order of

Consolidation and Transfer

The Federal Rules of Appellate Procedure allow for the filing of motions at any time after the docketing of an appeal.⁽¹⁹⁵⁾ The rules do not limit or specify the type or nature of motions that may be filed, leaving open an endless array of possibilities. Motions in this context may range from the mundane to the momentous. Because the ruling of one court on a motion with respect to a petition for review might well affect other pending review proceedings of the same agency action, it would defeat the spirit of § 2112 and be inimical to the sound administration of justice for one court to take action before such time as related cases are transferred and consolidated for joint treatment.

Of course there may be situations in which prompt court action on a motion may be necessary.⁽¹⁹⁶⁾ Such a scenario presents yet another compelling illustration of the need for the transfer to a single circuit and consolidation of all related cases to occur swiftly so as to allow coordinated action by one court on any motions filed in a related case. In the event that a motion requiring the immediate attention of the court is filed, the court should at a minimum ensure that ample notice has been given to all parties in all related cases, and that its disposition is made with due consideration for the wider context in which that review proceeding is pending.

The courts could implement this proposal either through practice or by rule. Because of the myriad possibilities associated with motion practice, it is probably best to leave this solution to the discretion of the courts through practice rather than by rule, in order to adequately accommodate emergency situations and otherwise allow for the desired flexibility.

6. The Courts by Practice Should Commit Themselves to Prompt

Transfer of Pending Proceedings to the Circuit Selected by the

Panel

As indicated,⁽¹⁹⁷⁾ there is no mechanism to ensure that circuit courts with pending review proceedings subject to transfer pursuant to § 2112(b) will order transfer in a prompt fashion. The suggestion above⁽¹⁹⁸⁾ that the Panel establish rules to ensure that all circuit courts receive notice of the pendency of a venue lottery and of the result of that selection and the Panel's subsequent order and consolidation, would give the courts the information necessary to act expeditiously in ordering transfer of the cases before it.

One task remains: For the courts to in fact act on that information in an expeditious fashion. That is, once a court has been served with a copy of the Panels' order of consolidation and transfer, that court should undertake to effectuate the transfer of the related case(s) pending before it to the circuit designated to receive the record. This, of course, is true for all circuit courts before which is pending review of the agency's underlying action--those that were part of the Panel's venue lottery, as well as those that were not. Doing so would not only be faithful to the spirit of § 2112, Rule 17 of the Federal Rules of Appellate Procedure, and other judicial and statutory doctrines designed to ensure timely court review, but would be in the best interests of the court itself and its docket-management and paper-flow concerns.

7. The Courts by Practice Should Commit Themselves to the

Speedy Resolution of Motions to Transfer Venue

As is the case for all judicial events of a procedural nature, except those few that are governed by statute, the courts are free to decide when to rule on motions to transfer venue. While the federal courts can generally be relied upon to act expeditiously in the execution of their judicial duties, the courts have been at times somewhat remiss in ruling on motions to transfer venue in an expedient manner. This is troublesome because failure to rule expeditiously on a threshold motion, such as a request to transfer venue, essentially suspends indefinitely the agency review proceeding. While there is no ready mechanism to require the courts to rule upon such motions within a specific time frame, the courts should be urged to act with all due swiftness. Indeed, there is normally no good reason for the courts to delay in ruling on motions to transfer venue, and it is hoped that consistent with the need to dispose of transfer motions quickly, courts will undertake every reasonable effort to resolve such motions promptly.

Conclusion

By all but eliminating any incentive to "race" to the courthouse upon issuance of final agency orders, the 1988 amendment to § 2112(a) of Title 28 of the United States Code has removed one of the greatest obstacles to the orderly prosecution of petitions for review of administrative actions.⁽¹⁹⁹⁾ The benefits already conferred upon the federal judiciary and interested persons, and those promised, through implementation of this legislation--including elimination of the unseemly conduct forged by overzealous participation in courthouse races--cannot be overstated. Nevertheless, the process associated with filing petitions for review, interventions, and related filings in courts of appeals in connection with administrative review proceedings remains far from perfect. Some of the conditions that prompted the adoption of the 1988 amendment, as well as the spirit with which that amendment was enacted, favor additional reforms, such as those proposed herein.⁽²⁰⁰⁾

In particular, a modest modification of the Rules of the Panel on Multidistrict Litigation,⁽²⁰¹⁾ the Federal Rules of Appellate Procedure,⁽²⁰²⁾ and local court rules,⁽²⁰³⁾ can be made so as to enable judicial review of final agency action to proceed apace, and so that the process by which petitions for review of agency action and interventions in those proceedings are filed can be streamlined significantly, with a concomitant relaxation of the attendant burden on interested parties and on the courts.

There are myriad complexities attendant to agency review proceedings. The fair and equitable resolution of the substantive and procedural issues raised in such cases, consistent with standards developed at common law and in the Administrative Procedure Act and applicable organic agency statutes, presents considerable challenges for the federal courts and interested parties. To contribute to the complexities and delays inherent in this process, and to the resultant expense imposed on the courts and the parties through rules and procedures that compound the filing of unnecessary pleadings and present the risk of rulings that are at best superfluous and at worst inconsistent, seems to be inimical to the goals of the 1988 amendment and to the sound administration of justice.

The reforms proposed here will unlikely prove to be controversial; indeed, they may be viewed as presenting little more than ministerial adjustments to rules that have long governed the procedures applicable to review proceedings. Nevertheless, these suggestions promise rewards that will be both immediate and appreciable, and it is hoped that they will be promptly considered and implemented.

* Toni M. Fine teaches full time at New York University School of Law, where she is Coordinator of the Master of Comparative Jurisprudence Studies. B.A., Harpur College, 1983; J.D., Duke University, 1986.

1. The term "agency," as used herein, is intended to include, without distinction, "the Commission," "the Secretary," and "the Administration," as defined in 28 U.S.C. § 2341(3) (1994); see also 5 U.S.C. § 551(1) (1994); R.P.J.P.M.L. 20(a), reprinted in 28 U.S.C. § 1407 (1994).

2. Issues relating to reviewability, jurisdiction, venue, finality, standing, and compliance with the Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.), among others, are either peculiar to the administrative review process or present unique questions in the context of judicial review of actions of administrative agencies. These issues, including their role in the federal appellate process, are discussed in greater detail in any number of treatises and definitive sources of the federal administrative review process. See generally 4 Kenneth Culp Davis, Administrative Law Treatise (2d ed. 1983) (providing an interpretation of estoppel, res judicata, jurisdiction, remedies, standing, review, and exhaustion of remedies); 5 Jacob A. Stein et al., Administrative Law (1993) (same); 16 Charles Alan Wright et al., Federal Practice and Procedure (1977 & Supp. 1996) (discussing federal practice and procedure in the context of jurisdictional issues).

3. See infra Part IV.A.3.a-c.

4. This Article addresses only those situations in which direct review of final agency action is properly taken in the United States Court of Appeals, as many organic agency statutes prescribe. See 7 U.S.C. § 9 (1994) (providing appellate review of contract market orders); 8 U.S.C. § 1105a(a) (1994) (providing appellate review of deportation orders); 15 U.S.C. § 21(c) (1994) (providing appellate review of Interstate Commerce Commission, Federal Communications Commission, Federal Trade Commission, Secretary of Transportation, and Board of Governors of the Federal Reserve System orders); id. § 45(c)-(d) (providing appellate review of Federal Trade Commission orders); id. § 57a(e)(1)(A) (same); id. § 77i (same); id. § 78y (providing appellate review of Securities and Exchange Commission orders); id. § 717r (providing appellate review of Federal Power Commission orders); id. § 2060 (providing appellate review of Consumer Product Safety Commission orders); 21 U.S.C. § 371(f) (1994) (providing appellate review of Secretary of Health and Human Services orders); 28 U.S.C. § 2342 (1994) (providing appellate review of Federal Communication Commission, Secretary of Agriculture, Secretary of Transportation, Federal Maritime Commission, Atomic Energy Commission, Interstate Commerce Commission, and Fair Housing Act orders); 29 U.S.C. § 160(e)-(f) (1994) (providing appellate review to National Labor Relations Board orders); id. § 655(f) (providing appellate review of Secretary of Labor orders); id. § 660 (providing appellate review of Secretary of Labor and Occupational Safety and Health Review Commission orders) (1994); 30 U.S.C. § 811 (1994) (providing appellate review of Secretary of Labor and Federal Mine Safety and Health Review Commission orders); id. § 816 (same); 33 U.S.C. § 1369(b) (1994) (providing appellate review of Environmental Protection Agency orders); 42 U.S.C. § 7607(a)-(b) (1994) (same); 47 U.S.C. § 402 (1994) (providing appellate review to Federal Communication Commission orders); see also 28 U.S.C. § 2344 (1994); 5 Stein et al., supra note 2, § 45.04(1); 15 Wright et al., supra note 2, § 3816, at 166; 16 Wright et al., supra note 2, § 3941, at 304-08 & nn.1-59; David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 5 (1975).

In addition, although not constituting an independent grant of jurisdiction, see, e.g., Califano v. Sanders, 430 U.S. 99, 105 (1977); Dillard v. United States Dep't of Hous. and Urban Dev., 548 F.2d 1142, 1143 (4th Cir. 1977) (per curiam); Noland v. United States Civil Serv. Comm'n, 544 F.2d 333, 334 (8th Cir. 1976) (per curiam), the Administrative Procedure Act provides for judicial review in "a court specified by statute" or in the absence of any such specification, "in a court of competent jurisdiction." 5 U.S.C. § 703 (1994); see also 28 U.S.C. § 2342 (1994) (providing for exclusive jurisdiction in the United States Court of Appeals to review certain orders of particular agencies).

5. There is no single provision establishing venue for appeals of final action of federal agencies. Venue for actions taken pursuant to 28 U.S.C. §§ 2341-51 (1994), "is in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit." Id. § 2343. Other venue provisions are established in individual agency organic statutes, which often provide for a venue choice among several circuits. See, e.g., Federal Trade Commission Act, 15 U.S.C. § 45(c) (1994); Securities Act of 1933, id. § 77(i); Natural Gas Act, id. § 717r; Federal Power Act, 16 U.S.C. § 825l(b) (1994); Food, Drug and Cosmetic Act of 1938, 21 U.S.C. § 371(e)-(f) (1994); Labor Management Relations Act, 29 U.S.C. § 160(f) (1994); Clean Air Act, 42 U.S.C. § 7604(c)(1) (1994); see also 15 Wright et al., supra note 2, § 3816, at 166-67; 16 Wright et al., supra note 2, § 3947, at 349-50; Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542, 597 (1969).

28 U.S.C. § 2112(a) (1994), at issue in this Article, is a rather unique provision that implicates venue because it establishes a procedure for determining in which circuit court the administrative record will be filed, subject to discretionary transfer by that court to another circuit court.

6. See infra Parts II, III.A.

7. See infra text accompanying notes 26-27.

8. See infra text accompanying notes 22-25, 35.

9. See Pub. L. No. 100-236, 101 Stat. 1731 (1988) (codified as amended at 28 U.S.C. § 2112(a) (1994)).

10. See infra Part III.B-C.

11. See infra notes 15-32 and accompanying text.

12. See infra notes 33-77 and accompanying text.

13. See infra notes 78-133 and accompanying text.

14. See infra notes 134-98 and accompanying text.

15. See 28 U.S.C. § 2112(a) (1994).

16. See, e.g., Federal Trade Commission Act, 15 U.S.C. § 45c (1994); Securities Act of 1933, id. § 77(i); Federal Power Act, 16 U.S.C. § 825e (1994); Food, Drug and Cosmetic Act of 1938, 21 U.S.C. § 371(f)(1) (1994); Labor Management Relations Act, 29 U.S.C. § 160(f) (1994); Clean Air Act, 42 U.S.C. § 7604 (1994). One group of commentators has described the statutory basis for the problem of multiple petitions for review as follows:

The source of the difficulties created by multiple petitions for review of a single order is easily found. Unlike the rigid lines that allocate district courts among the circuits and confine review to the court of appeals for the circuit in which the district court sits, statutory provisions for review of administrative decisions often permit potential review of a single order in two or more courts of appeals.16 Wright et al., supra note 2, § 3944, at 331 (footnote omitted); see also supra notes 4-5 and accompanying text.

17. Traditionally, when the problem of multiple petitions for review is discussed, blame is ascribed to the petitioning parties as being "forum shoppers." Although a comprehensive discussion of this issue is beyond the scope of this Article, overt criticism of parties seeking court review in what they perceive to be the most favorable forum seems unfair. Selecting a forum is but one step in zealous client representation, and failure to consider what forum would be most favorable could indeed be perceived as a lapse of professional judgment. When Congress has provided for multiple venue choices, forum shopping is inevitable and anticipated.

In addition, in fairness to court petitioners, petitions for review of the same agency action in multiple circuit courts often occur not because of blatant forum shopping, but because venue is often connected to facts about a particular party--that is, where the petitioner's principal place of business is located. See, e.g., 15 U.S.C. § 717r(b) (1994); 26 U.S.C. § 7482(b) (1994); 28 U.S.C. §§ 1391(e) 2343, (1994); 29 U.S.C. § 185 (1994). Thus, in some cases, § 2112(a) is triggered by the fact that different petitioners may be required to seek court review in different courts.

18. Act of Aug. 28, 1958, Pub. L. No. 85-791, § 2(a), 72 Stat. 941 (1958) (codified as amended at 28 U.S.C. § 2112(a) (1994)) (emphasis added).

19. Congress, in 1958, passed a rather comprehensive set of modifications to the then-existing version of § 2112(a), including the first-to-file procedure. See Act of Aug. 28, 1958, Pub. L. No. 85-791, § 2, 72 Stat. 941 (1958); see also S. Rep. No. 87-2129 (1958), reprinted in 1958 U.S.C.C.A.N. 3996. Prior to 1958, the agency was afforded the prerogative to select the forum in which the record would be filed from among the circuits in which petitions for review were filed. See S. Rep. No. 58-2129, at 4 (1958), reprinted in 1958 U.S.C.C.A.N. 3996, 3999; see also Natural Resources Defense Council v. EPA, 673 F.2d 392, 397 (D.C. Cir. 1980) (detailing legislative history of the 1958 amendment to 28 U.S.C. § 2112(a)); United Steelworkers of America v. Marshall, 592 F.2d 693, 696 (3d Cir. 1979) ("Prior to 1958, under many statutes providing for judicial review in the courts of appeals, when petitions were filed in several jurisdictions it was possible for the agency, by filing the record in one of them, to select its forum."); Ball v. NLRB, 299 F.2d 683, 687 (4th Cir. 1962) (detailing legislative history of the 1958 amendment to 28 U.S.C. § 2112(a)); Columbia Oil & Gasoline Corp. v. SEC, 134 F.2d 265, 267 (3d Cir. 1943) ("The difficulty in which they now find themselves is solely the result of the Commission's election to file the transcript in this rather than in the second circuit."); 16 Wright et al., supra note 2, § 3944, at 332; Comment, A Proposal to End the Race to the Court House in Appeals from Federal Administrative Orders, 68 Colum. L. Rev. 166, 168-69 (1968); Charles R. Haworth, Modest Proposals to Smooth the Track for the Race to the Court House, 48 Geo. Wash. L. Rev. 211, 214 (1980); Thomas O. McGarity, Multi-Party Forum Shopping for Appellate Review of Administrative Action, 129 U. Pa. L. Rev. 302, 305, 309 & n.83 (1980); Allan L. Schwartz, Annotation, Construction and Application of Provisions of 28 U.S.C.S. § 2112(a) for Transfer, From One United States Court of Appeals to Another, of Proceedings to Review or Enforce Orders of Administrative Agencies, 19 A.L.R. Fed. 520, 522 (1974).

20. The 1958 amendment was designed to be a "definite and easily administered rule." Ball, 299 F.2d at 687; see also Westinghouse Elec. Corp. v. NRC, 598 F.2d 759, 766 (3d Cir. 1979) ("The purpose of § 2112(a) is `to provide a mechanical rule easy of application to avoid confusion and duplication by the courts.'" (quoting NLRB v. Bayside Enter., Inc., 514 F.2d 475, 476 (1st Cir. 1975))); United Steelworkers of America, 592 F.2d at 696 ("One purpose of § 2112(a) was to . . . substitut[e] a mechanical first filing rule."); S. Rep. No. 87-2129 (1958), reprinted in 1958 U.S.C.C.A.N. 3996; Haworth, supra note 19, at 212. In the pre-1988 version of § 2112(a), "Congress attempted to provide an easily applied mechanical rule," however, "the first instituted rule has failed to produce the desired simplicity of application." Id. at 215; see also 16 Wright et al., supra note 2, § 3944, at 332; Comment, supra note 19, at 168-69.

21. 16 Wright et al., supra note 2, § 3944, at 427 n.21 (Supp. 1996); see also Harold H. Bruff, Coordinating Judicial Review in Administrative Law, 39 UCLA L. Rev. 1193, 1205 (1992) (noting that the parties "engaged in undignified (but ingenious) scrambles to be the first to file"). Bruff described "[t]hese scraambles" [sic] as "better suit[ing] the Oklahoma land rush than appellate litigation." Id. at 1205 (footnote omitted).

22. See United Steelworkers of America, 592 F.2d at 696 (noting that counsel engaged in "the exercise of technological ingenuity on achieving first filing"); see also Associated Gas Distribs. v. FERC, 738 F.2d 1388 (D.C. Cir. 1984); Public Serv. Co. v. FERC, 716 F.2d 778 (10th Cir. 1983); American Pub. Gas Ass'n v. Federal Power Comm'n, 555 F.2d 852 (D.C. Cir. 1976); Municipal Distrib. Group v. Federal Power Comm'n, 459 F.2d 1367 (D.C. Cir. 1972); International Union of Elec. Radio & Mach. Workers v. NLRB, 343 F.2d 327 (D.C. Cir. 1965); 16 Wright et al., supra note 2, § 3944, at 334; McGarity, supra note 19, at 320-22.

23. The history of many of the races to the courthouse is outlined in some detail in a number of scholarly works. For a comprehensive treatment, see McGarity, supra note 19, at 307-12. In addition, one court noted that simultaneous filings allowed for three possible interpretations of 28 U.S.C. § 2112(a) (1976):

We could hold that the agency under review must hold a hearing to determine who filed first. This would reintroduce the problem of an interested agency making a decision as to the forum. We could hold that one of the reviewing courts could, when the fact of simultaneous filing was disputed, hold a hearing. But courts of appeals lack the ready means of holding hearings on disputed factual matters, and such a course would inevitably cause delays in the reviewing process. Finally, we could, and do, adopt a rule that in the absence of extraordinary circumstances, the official notations of time of filing are conclusive. When those notations show a simultaneous filing the agency should proceed . . . to notify both courts, who by agreement will determine which [court] will determine venue "[f]or the convenience of the parties in the interest of justice."United Steelworkers of America, 592 F.2d at 696 (quoting 28 U.S.C. § 2112(a) (1976)).

24. See S. Rep. No. 100-263, at 3 (1987), reprinted in 1987 U.S.C.C.A.N. 3198, 3199-200.

25. Mobil Oil Exploration Co. v. FERC, 814 F.2d 998, 1000 (5th Cir. 1987); see also City of Gallup v. FERC, 726 F.2d 772 (D.C. Cir. 1984); Public Serv. Co. v. FERC, 716 F.2d 778 (10th Cir. 1983); City of Gallup v. FERC, 702 F.2d 1116 (D.C. Cir. 1983) (observing courthouse races, in which there were three designated "groups" of petitions for review: (1) those filing days before issuance of the commission order; (2) those filed, within a second of each other, on the date the order issued; and (3) those filed a few days after the petitions for review were filed). The City of Gallup court noted that "[t]he parties have given their best effort to the race, employing walkie-talkies, long-distance phone lines, split-second timing and cautious repetition." City of Gallup, 702 F.2d. at 1118; see also McGarity, supra note 19, at 312-13, 322-23, 347-48 (discussing the costs of a typical race and observing that, as a conservative estimate, a race costs $65,000).

For more examples of courthouse races, see McGarity, supra note 19, at 305, 307 n.23, 320-21, 323 n.106, 344 n.206, 327 (describing the race in Shell Oil Co. v. Federal Power Commission, 509 F.2d 176 (5th Cir. 1975), and the "reductio ad absurdum" of the approach of filing multiple petitions).

For further discussion of the unseemly nature of courthouse races, see Wearly v. Federal Trade Comm'n, 616 F.2d 662, 664 n.1 (3d Cir. 1980); Industrial Union Dep't v. Bingham, 570 F.2d 965, 970 (D.C. Cir. 1977); Rayco Mfg. Co. v. Chicopee Mfg. Corp., 148 F. Supp. 588, 592-93 (S.D.N.Y. 1957); Harold Leventhal, A Modest Proposal for a Multi-Circuit Court of Appeals, 24 Am. U. L. Rev. 881, 909 (1975); Allan D. Vestal, Relitigation by Federal Agencies: Conflict, Concurrence and Synthesis of Judicial Policies, 55 N.C. L. Rev. 123, 165 (1977); William Warfield Ross & Greer S. Goldman, Racing to the Court: An "Unseemly" Way to Challenge Agency Orders, Nat'l L.J., Mar. 3, 1980, at 27.

26. Occasionally, an agency would pre-announce the date and time at which it would issue an order. See Virginia Elec. & Power Co. v. EPA, 610 F.2d 187, 189 (4th Cir. 1979); Ball v. NLRB, 299 F.2d 683, 684 (4th Cir. 1962). Later, as judicial frustration grew over the enforcement of the "first instituted" rule, a construct was developed for purposes of prescribing times of the day at which orders of some agencies would be considered "deemed issued" for purposes of seeking review and calibrating filings for purposes of § 2112(a). See supra notes 22-23 and accompanying text.

27. For instance, in issuing its consumer product safety standards for walk-behind power lawn mowers, the Consumer Product Safety Commission established a specific date and time of promulgation for purposes of determining when petitions for review would be considered ripe for filing under 28 U.S.C. § 2112(a). In so doing, the commission recognized that designation of a future date and time would help eliminate the disadvantages to interested persons located outside of Washington, D.C. inherent in a traditional courthouse "race":

This procedure would provide all interested persons--including those that might not be located in Washington or be able to afford to send a representative to Washington--an equal opportunity to review the final standard as published in the Federal Register and then determine in an orderly fashion whether to seek judicial review.Safety Standard for Walk-Behind Power Lawn Mowers, 44 Fed. Reg. 9990, 10023 (1979) (emphasis added); see also Virginia Elec. & Power Co., 610 F.2d at 189 (upholding EPA regulations designating time of promulgation of rules, observing that these regulations had the laudable effect of "eliminat[ing] the unfair advantage to those parties who find out first that an unannounced physical event constituting `promulgation' has occurred"); Industrial Union Dep't, 570 F.2d at 970 (stating that "[i]nvitational advance disclosure presents the danger of prejudice to those not privy to the disclosure, but this problem is better addressed by an examination of the circumstances of each case than by an ironclad jurisdictional rule"); Ball, 299 F.2d at 686 (agreeing with litigant's position that literal application of the "first instituted" rule resulted in advantage to parties residing in or near the District of Columbia seeking review in the District of Columbia Circuit); Trade Regulation Rulemaking Procedures, 44 Fed. Reg. 36,171, 36,171-72 (1979) (detailing FTC regulations establishing time and date of effectiveness of orders designed, in part, to equalize parties' opportunity to seek judicial review, and in particular to avoid unfair disadvantage to petitioners from the western regions of the United States).

28. See Natural Resources Defense Council, Inc. v. EPA, 465 F.2d 492, 495 (1st Cir. 1972); Leventhal, supra note 25, at 909; McGarity, supra note 19, at 318, 320.

29. See Michael Botein, Judicial Review of FCC Action, 13 Cardozo Arts & Ent. L.J. 317, 337 (1995) ("The courts encouraged the Commission to promulgate rules for determining the earliest time at which a petition may be filed.").

30. See Mobil Oil Exploration Co., 814 F.2d at 1001 (observing that the United States Court of Appeals for the Fifth Circuit and for the District of Columbia Circuit agreed to settle the question of venue by a "coin toss"). Issuance of a FERC order is deemed to be at "10:00 a.m. or 3:00 p.m. in accordance with the [agency's] `long-standing' practice." Public Serv. Co., 716 F.2d at 780; see also City of Gallup, 702 F.2d at 1121 ("When petitions for review have been filed simultaneously in different courts of appeals, the courts involved will work out a method of determining which court should decide the proper location for filing of the record."); Westinghouse Elec. Corp. v. NRC, 598 F.2d 759, 767-68 (3d Cir. 1979) (noting that the United States Court of Appeals for the District of Columbia "graciously ceded" to the Third Circuit the task of selecting the proper forum); United Steelworkers of America v. Marshall, 592 F.2d 693, 695 (3d Cir. 1979) (noting that when time stamps show simultaneously filed review petitions in more than one circuit court, the courts by agreement will select one court that will determine venue); American Pub. Gas Ass'n v. Federal Power Comm'n, 555 F.2d 852, 857 (D.C. Cir. 1965) (observing that the Fifth Circuit agreed to allow District of Columbia Circuit to reach a determination on venue); cf. Virginia Elec. & Power Co., 610 F.2d at 189 n.5; Westinghouse Elec. Corp. v. Nuclear Regulatory Comm'n, 598 F.2d 759, 767 (3d Cir. 1979). The Westinghouse court observed that:

[W]hen the race to the courthouse results in a virtual "dead heat," various circuits have adopted the practice of consulting with one another and deferring to one court among them to ascertain, after weighing the interest of justice, which tribunal should be the forum for the decision on the merits.Id. (footnote omitted).

31. See Associated Gas Distrib. v. FERC, 738 F.2d 1388, 1392 (D.C. Cir. 1984) (observing that disposition of motions to dismiss and transfer are based on an agency's long-standing practice of posting orders at fixed times during the day); see also Mobil Oil Exploration Co., 814 F.2d at 1000 (commenting upon the parties' "elaborate efforts to coordinate a filing in the circuit each felt would favor them with the `deemed' posting time fixed by the Commission"); Public Serv. Co., 716 F.2d at 780; City of Gallup, 702 F.2d at 1119 (noting that "FERC normally issues its documents by posting them at 10:00 a.m. and 3:00 p.m. each day"); Trade Regulation Rulemaking Procedures, 44 Fed. Reg. 36,171, 36,172 (1979) (establishing that trade regulation rules issued by the Federal Trade Commission are "deemed promulgated at 3:00 PM Eastern Standard Time on the fourth day after the date of publication of the final rule in the Federal Register"); Judicial Review Under Clean Water Act, 45 Fed. Reg. 26,046, 26,046 (1980) (establishing rule fixing ascertainable time by which the Environmental Protection Agency's Clean Water Act regulations will be considered promulgated for purposes of establishing the right to judicial review); Federal Communications Commission Amendment, 46 Fed. Reg. 18,551, 18,551 (1981) (fixing effective date and time of orders of the Federal Communications Commission for purposes of establishing ripeness for seeking judicial review).

32. See Newsweek, Inc. v. United States Postal Serv., 652 F.2d 239, 242 (2d Cir. 1981) (stating that the event of issuing an order is "sufficiently unambiguous to serve as the trigger for appeal"); Natural Resources Defense Council, 673 F.2d at 397 (observing that several agencies began publishing "racing regulations" and a "trigger time" as to the exact date and time an order would be announced); ITT World Communications, Inc. v. FCC, 621 F.2d 1201, 1204-05 (2d Cir. 1980) (observing that "[u]sing the release of the agency's full opinion as the starting bell is hardly likely to encourage thoughtful appeals based on that opinion); Virginia Elec. & Power Co., 610 F.2d at 188-89 (announcing the day and time of an issuing order was an effort to "impose some order in the increasingly unseemly races to the courthouse"); Industrial Union Dep't v. Bingham, 570 F.2d 965, 968-69 (D.C. Cir. 1977) (upholding agency's authority to invite certain parties to receive advance disclosure of substance of rule); cf. City of Gallup, 702 F.2d at 1120-21 (endorsing procedure whereby court of first filing will determine validity of petition for review).

33. Considering the uniform and widespread recognition of the problems associated with the first-to-file rule, the congressional response ultimately embodied in the 1988 amendment had a surprisingly protracted history. As the Senate Report accompanying the 1988 legislation observes, "[n]otwithstanding the obvious need for reform of this area of administrative law, legislative efforts have met with frustration." S. Rep. No. 100-263, at 3 (1987), reprinted in 1987 U.S.C.C.A.N. 3198, 3200 (citing Marshall Breger, "Races to Courthouse" Exasperate Judges, Waste Litigants' Time, Legal Times, July 20, 1987, at 17). The Senate Report also outlined the history of legislative efforts to reform the first-to-file rule, which began with the passage in 1982 of a Senate bill that included a race to the courthouse provision. See id. Numerous scholars have noted the chaos generated by the first-to-file rule and proffered proposals to abolish or control races to the courthouse. See Carrington, supra note 5, at 598-601; Currie & Goodman, supra note 4, at 75; McGarity, supra note 19, at 348; Nicholas W. Fels, Beyond the Stopwatch: Determining Appellate Venue on Review of FERC Orders, 1 Energy L.J. 35, 44-53 (1980); see also Breger, supra note 33, at 17; Haworth, supra note 19, at 213; Leventhal, supra note 25, at 906-10; Comment, supra note 19, at 172-74.

34. See Selection of Court for Multiple Appeals Act, Pub. L. No. 100-236, 101 Stat. 1731 (1988) (codified as amended at 28 U.S.C. § 2112(a) (1994)).

35. See S. Rep. No. 100-263, at 2-4.

36. See id. at 3.

37. See id. at 2-3.

38. See id. at 3.

39. Id. (emphasis added).

40. See id. at 3-4.

41. See S. Rep. No. 100-263, at 3.

42. See id.

43. See id. (emphasis added).

44. See id.; see also McGarity, supra note 19, at 320-22. The legislative history of the 1958 amendment to § 2112(a) likewise reveals Congress' interest in saving time and expense for the parties and the judiciary. See S. Rep. No. 58-2129, 1-4, (1958), reprinted in 1958 U.S.C.C.A.N. 3996, 3996-97, 3999, 4001.

45. See infra note 70.

46. "Congress . . . responded to the waste of judicial resources and the delays inevitable in multiple filings by creating simple and clear `rules of the road.'" Thomas E. Baker, A Primer on the Jurisdiction of the U.S. Courts of Appeals (Fed. Jud. Center, Education and Training Series, FJC-ETS 89-1) 1989 WL 270242, at *29 (footnote omitted).

47. Botein, supra note 29, at 338. The 1988 amendment "rendered most of this [race to the courthouse] totally irrelevant, by prescribing procedures for choosing a court when there are multiple petitions for review filed." Id. at 337; see also 16 Wright et al., supra note 2, § 3944, at 420 ("The new system . . . will spare the court of appeals the burdens of refereeing close races, and free the parties from the major costs of split-second races."). The difficulties associated with pre-1988 races "should be substantially reduced, and perhaps eliminated, by the amended version of § 2112(a)." 16 Wright et al, supra note 2, at 419.

48. See 28 U.S.C. § 2112(a) (1994).

49. The Rules of the Judicial Panel on Multidistrict Litigation use the term "affected agency" to refer to the agency involved. See, e.g., R.P.J.P.M.L. 20(a)-(b), (d), 22(a), 25(a), reprinted in 28 U.S.C. § 1407 (1994).

50. See 28 U.S.C. § 2112(a)(1) (1994).

51. See id. § 2112(a)(5) ("All courts in which proceedings are instituted with respect to the same order . . . shall transfer those proceedings to the court in which the record is so filed.").

52. See id. § 2112(a)(1). Section 2112(a) actually refers to "the same orders," although it presumably is intended to refer to any agency action that is final and reviewable. See id. § 2112(a)(1); see also 5 U.S.C. § 704 (1994) ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."); David P. Currie, Judicial Review Under Federal Pollution Laws, 62 Iowa L. Rev. 1221, 1264-65 & n.298 (1977) (discussing an interpretation of § 2112 with respect to transfers); McGarity, supra note 19, at 305 n.6 (citing cases in which courts have applied § 2112(a) to agency "rules" as well as "orders"). For purposes of this Article, it is assumed that § 2112(a) is intended to apply with respect to all agency actions that are "final" and "reviewable by statute."

Quite apart from the question of what constitutes an "order" within the meaning of § 2112(a), there is a rather significant body of case law interpreting what constitutes "sameness" for purposes of this section. "Factors . . . include the unitary form of the order, [and] the agency's own characterization of its action. . . ." Natural Resources Defense Council, Inc. v. EPA, 673 F.2d 392, 399 (D.C. Cir. 1980) (footnote omitted). Sameness may also include the compilation of the administrative record in a single docket number. See ACLU v. FCC, 486 F.2d 411, 414 (D.C. Cir. 1973); Bristol Lab. v. Richardson, 456 F.2d 563, 564 (1st Cir. 1971) (observing that agency applied "unitary label" to underlying actions which were designed "to achieve rational and comprehensive modification" of agency regulations). Sameness is also interpreted as "the origin of the [agency] actions." Natural Resources Defense Council v. EPA, 673 F.2d 392, 399 (D.C. Cir. 1980); see also Westinghouse Elec. Corp. v. Nuclear Regulatory Comm'n, 598 F.2d 759, 767 (3d Cir. 1979) (holding that underlying orders constituted the same order "so as to insure the consolidation in one court of petitions from sequential orders arising from the same administrative background and cumulative record"); BASF Wyandotte Corp. v. Costle, 582 F.2d 108, 112 (1st Cir. 1978); ACLU, 486 F.2d at 414 (noting that the agency's implementation of a series of orders as "a single, multi-faceted agency undertaking" was a factor contributing toward treatment of these orders as the "same" for purposes of § 2112(a)); McGarity, supra note 19, at 328-31.

53. See 28 U.S.C. § 2112(a)(1) (1994); see also S. Rep. No. 100-263, at 4-5, 7 (1987), reprinted in 1987 U.S.C.C.A.N. 3198, 3201-03.

54. See 28 U.S.C. § 2112(a)(1)-(2) (1994); see also S. Rep. No. 100-263, at 4, 8. In addition, the 1988 amendment required agencies to establish regulations for the parties to follow in submitting to the agency a copy of the petition for review in order to be included within the ten-day rule for random selection by the Panel. See 28 U.S.C. § 2112(a)(3) (1994). Agencies responded to that mandate. See, e.g., Securities and Exchange Commission, 17 C.F.R. pts. 200-03 (1996); Federal Energy Regulatory Commission, 18 C.F.R. pt. 385 (1996); Food and Drug Administration, 21 C.F.R. § 10.45 (1996); Department of Health and Human Services, 21 C.F.R. pt. 10 (1995); Occupational Safety and Health Review Commission, 29 C.F.R. § 2200.96 (1995); Environmental Protection Agency, 40 C.F.R. § 23.12 (1995); Postal Service, 39 C.F.R. § 224.4(b)(5) (1996).

55. See, e.g., Federal Labor Relations Authority, 5 C.F.R. § 2429.18 (1996); Securities and Exchange Commission, 17 C.F.R. § 201.23(e) (1996); Federal Energy Regulatory Commission, 18 C.F.R. § 385.2012 (1996); Food and Drug Administration, 21 C.F.R. § 10.45(h) (1996); Occupational Safety and Health Review Commission, 29 C.F.R. § 2200.96 (1995); Postal Service, 39 C.F.R. § 224.4(b)(5) (1996); Environmental Protection Agency, 40 C.F.R. § 23.12 (1995); Federal Maritime Commission, 46 C.F.R. § 502.2(b) (1995); Federal Communications Commission, 47 C.F.R. § 1.13 (1995).

56. See 28 U.S.C. § 2112(a)(1)-(2) (1994); see also S. Rep. No. 100-263 at 4, 8.

57. See 28 U.S.C. § 2112(a)(3) (1994). In particular, § 2112(a)(3) provides that the agency "shall, promptly after the expiration of the ten-day period specified . . . so notify the judicial panel on multidistrict litigation . . . in such form as that panel shall prescribe. . . ." Id.; see also R.P.J.P.M.L. 20-23, reprinted in 28 U.S.C. § 1407 (1994).

58. See R.P.J.P.M.L. 23, reprinted in 28 U.S.C. § 1407 (1994).

59. See id. at 23(b).

60. Id.

61. See id. at 20(d).

62. The 1988 amendment directs the Judicial Panel to prescribe rules, after notice and comment, "with respect to the consolidation of proceedings under this paragraph." 28 U.S.C. § 2112(a)(3) (1994); see also id. § 1407(f) (granting the Judicial Panel authority to "prescribe rules for the conduct of its business not inconsistent with Acts of Congress and the Federal Rules of Civil Procedure"). Pursuant to this directive, Rules 20-25 of the Rules of the Judicial Panel on Multidistrict Litigation were promulgated by Order of the Panel dated June 14, 1988. See R.P.J.P.M.L. 20-25, reprinted in 28 U.S.C. § 1407 (1994).

63. See R.P.J.P.M.L. 24, reprinted in 28 U.S.C. § 1407 (1994). The selection is made by the Clerk of the Panel or by a designate of the Clerk and is to take place in the presence of a witness appointed by the Panel. See id. at 24(a); see also Baker, supra note 46, at *29.

64. See 28 U.S.C. § 2112(a)(3) (1994). The 1988 legislation provides that the random selection of venue in which the administrative record is to be filed is made by choosing one circuit from among the courts in which petitions for review have been filed within the ten-day period and duly received by the agency in accordance with agency regulation. See id. Section 2112(a)(3) addresses the designation of the court in which the record is to be filed by random selection "from among the courts of appeals in which petitions for review have been filed and received within the ten-day period specified" in the amendment. Id.; see also R.P.J.P.M.L. 24(a), reprinted in 28 U.S.C. § 1407 (1994) ("Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum" from which the random selection is to be made.); S. Rep. No. 100-263, at 4 ("The system for selection shall include one entry for each circuit in which appeals are pending, rather than one entry for each petitioner or proceeding."). Hence, the lottery process does not provide for multiple "entries" for circuits in which more than one petition for review may have been processed within the ten-day period.

65. See 28 U.S.C. § 2112(a)(1)-(2) (1994); see also S. Rep. No. 100-263, at 4, 8 (1987), reprinted in 1987 U.S.C.C.A.N. 3198, 3200-201, 3203.

66. See 28 U.S.C. § 2112(a)(3) (1994); R.P.J.P.M.L. 24(a)(1), (b), reprinted in 28 U.S.C. § 1407 (1994).

67. See R.P.J.P.M.L. 25(b)-(c), reprinted in 28 U.S.C. § 1407 (1994).

68. See id. at 25(a).

69. See id. at 25(b).

70. 28 U.S.C. § 2112(a)(1) (1994) (emphasis added). Retention in the 1988 amendment of a "first instituted" provision thus raises the possibility, albeit an improbable one, that there could still be a "race" between parties filing their petitions for review beyond the ten-day period in situations in which no petition for review was duly filed within that period. See 16 Wright et al., supra note 2, § 3944, at 420 ("It is conceivable that each rival in a race to a preferred court may choose not to deliver the petition to the agency within the 10 day period, believing that it has won by being first to institute proceedings, but it is to be hoped that the first to file rule has become a thing of the past.").

In this author's opinion, Wright, Miller and Cooper have perhaps too little confidence in the parties' counsel to understand the 1988 amendment to § 2112(a) and to follow its prescriptions. Nevertheless, their "hope" that the parties will abide by the procedures established by the 1988 amendment is right-thinking, and the realization of that prospect is a virtual certainty.

71. The agency is presumably charged with determining whether a particular petitioning party complied with the agency's regulations established for participation in the venue selection lottery. If such a disagreement were to find its way into a court, the agency's determination would undoubtedly be upheld, absent some form of gross abuse, especially in light of the level of deference afforded an agency's interpretation and application of its own regulations. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S.