The opinion of the court was delivered by: Aspen, District Judge.
MEMORANDUM OPINION AND ORDER
The plaintiffs have filed this suit on behalf of themselves
and others similarly situated challenging the
constitutionality of section 303(l) and the defendants' actions
thereunder. They assert that the across-the-board denial of
operators' licenses to aliens violates the due process
guarantee of the fifth amendment because it creates a suspect
classification — alienage — which deprives plaintiffs' of their
liberty interest in pursuing the private employment options of
their choice. The defendants counter that the prohibition is
constitutional as a rational exercise of the federal
government's power to regulate immigration and naturalization
and safeguard the national security. The case is now before the
Court on the parties' cross-motions for summary judgment.
Before addressing the merits of these contentions, it is
appropriate for the Court to ascertain whether it possesses
jurisdiction of this case. This question is especially
pertinent in a case involving the communications laws, since
Congress has set forth a specific scheme for federal court
jurisdiction of cases arising under the Communications Act.
Upon a careful examination of that scheme, the Court concludes
that it lacks jurisdiction to entertain this action.
Even given the availability of judicial review of the
license denials, there remains the critical question of which
court is empowered to hear the plaintiffs' claims. Section
402(a) of the Act states:
Any proceeding to enjoin, set aside, annul, or
suspend any order of the Commission under this
chapter (except those appealable under subsection
(b) of this section) shall be brought as provided
by and in the manner prescribed in
[28 U.S.C. § 2342(1)].
The court of appeals has exclusive jurisdiction
to enjoin, set aside, suspend (in whole or in
part), or to determine the validity of —
(1) all final orders of the Federal
Communications Commission . . .
Subsection (b) of section 402 provides that final orders by
the FCC which pertain to the licensing process are within the
exclusive review jurisdiction of the United States Court of
Appeals for the District of Columbia. See Cook v. United
States, 394 F.2d 84, 86 (7th Cir. 1968).
Taken together, these provisions indicate that any attempt
to set aside or determine the validity of a final order issued
under the Act involving the licensing process must be brought
to the District of Columbia Court of Appeals. In this case, it
is clear that the plaintiffs seek to have an FCC action
declared invalid, and that the action pertains to the
licensing process under the Act. Thus, the pivotal
determination is whether the denial of licenses to plaintiffs
was a final order within the meaning of the Act.
There are a number of factors to be considered in
determining the finality of an administrative order. One
relevant consideration is whether the administrative process
has reached a point at which it would not be disrupted by
judicial review. Port of Boston Marine Terminal Ass'n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct.
203, 209, 27 L.Ed.2d 203 (1970). Another factor is whether the
order appealed from imposes an obligation or denies a right.
Illinois Citizens Committee for Broadcast v. F.C.C.,
515 F.2d 397, 402 (D.C. Cir. 1975). Finally, "in cases where the record
is unchallenged, where the issues are legal and not factual,
and where notice has been provided to the parties the court of
appeals has held that it has jurisdiction despite the absence
of an administrative hearing." Writers Guild of America, West,
Inc., v. F.C.C., 423 F. Supp. 1064, 1080 (C.D.Cal. 1976).
The FCC action in this case fulfills all the requisites of
a final order. It is clear that judicial review of the FCC
action would not disrupt the administrative process; indeed,
any recourse to that process by the plaintiffs would be
futile. The agency action denied plaintiffs a right which they
believe they possess. Moreover, as the parties acknowledge by
the fact that they filed ...