expressly overruled its decision in Northwest Marine Terminal, supra. Secondly, Section 17(9), when read together with the Administrative Procedure Act, 5 U.S.C. § 704, requires that such petitions be submitted and disposed of by the Commission before judicial review is instituted. See Franklin & Co. v. S.E.C., Supra, at 290 F.2d 724, and notes 9 and 10.

This procedure avoids the necessity of filing a protective petition for review in the courts while awaiting a determination of a petition for rehearing or reconsideration. Cf. Outland v. Civil Aeronautics Board, 284 F.2d 224, 227-28 (D.C. Cir., 1960). This procedure would also be consistent with that required under the Communications Act and the Hobbs Act with respect to orders of the Federal Communications Commission. See Sections 402 (a) and 405, 47 U.S.C. §§ 402 (a) 402(a) 402(a) and 405, and American Civil Liberties Union v. F.C.C., 486 F.2d 411, 412-13 (D.C. Cir., 1973).

Setting aside for the moment the discussion of the proper parties to the proceeding and their standing, the filing of a petition for review is a relatively simple procedure. The form prescribed in Section 2344 is simple enough, particularly when compared to the preparation of a complete civil action complaint under Rule 8, Fed. Rules of Civ. Proc., which was required when previously proceeding under the Urgent Deficiencies Act.

However, for those persons unwilling to commit themselves to any particular substantive ground for review or to forego or waive any such ground not stated in the petition for review, an even simpler procedure is available under Rule 15, FRAP. These rules were prescribed by the Supreme Court pursuant to 28 U.S.C. § 2072, which provides, in part:

The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the courts of appeals of the United States in civil actions, including . . . the practice and procedure in proceedings for the Judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers.

All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

Rule 15, FRAP, was promulgated by the Court pursuant to this statute (See 19 L.Ed.2d, pp. lxix-xcii), and provides in part:

The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed.

The rule then specifically cross-references Form 3 in the Appendix of Forms to the Rules as the suggested form.10

This short form of petition for review, which amounts to a pure notice form of pleading, is much to be preferred because of its simplicity. The Supreme Court's Advisory Committee on Appellate Rules discussed the superiority of this form of petition:

The proposed rule supersedes 28 U.S.C. § 2344 and other statutory provisions prescribing the form of the petition for review and permits review to be initiated by the filing of a simple petition similar in form to the notice of appeal used in appeals from judgments of district courts. The more elaborate form of petition for review now required is rarely useful either to the litigants or to the courts. There is no effective, reasonable way of obliging petitioners to come to the real issues before those issues are formulated in the briefs.11

When prepared, the original of the petition, along with enough copies for the clerk of the court of appeals to serve each respondent, should be filed with the clerk along with the appropriate filing fee. In addition, all parties to the agency proceedings must be served with the petition.12

Multiple Actions

The Hobbs Act provides that the courts of appeals have jurisdiction of the proceeding "on the filing and service of petition to review." 28 U.S.C. § 2349 (a). In cases where petitions for review have been filed and served in more than one court of appeals, the provisions of 28 U.S.C. § 2112(a) 13 come into effect. That statute provides, in part:

If 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. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed.

Some question arises under these two statutory provisions whether the mere filing of the petition is enough to institute the action, or whether it must also be served on the respondent. The legislative history of Section 2112 implies that the mere filing of the petition is sufficient. See Sen. Rept. 2129, 1958 Cong., and Ad. News 3999. And the courts of appeals have uniformly found that the simple act of filing the pe

10 It hardly needs to be said that parties participating in judicial review proceedings should fully apprise themselves of the relevant provisions of FRAP, particularly Rules 15-20 and 25-48, as well as the local rules of the particular court of appeals where the action is brought.

11 Notes of Advisory Committee on Appellate Rules to Rule 15, 28 U.S.C.A.

12 Rule 15(c), FRAP.

13 As amended in 1966, Pub. L. 89-773, 80 Stat. 1323.

tition is sufficient, in cases involving both the Hobbs Act and other similar statutes. See e.g., A.C.L.U. v. F.C.C., supra, at 486 F.2d 41314; (D.C. Cir., 1973); Saturn Airways, Inc v. C.A.B., 476 F.2d 907, 908-10 (D.C. Cir., 1973) and Chatham Manuf. Co. v. N.L.R.B., 404 F.2d 1116, 1118 (4th Cir., 1968).

This treatment of multiple actions is, of course, a great improvement over the prior arrangements, when two or more three-judge district courts could reach different results on review of the same Commission order. E.g., compare Long Island R. Co. v. United States, 318 F. Supp. 490 (E.D.N.Y., 1970) with Florida E.C. Ry. Co. v. United States, 322 F. Supp. 725 (M.D.FL, 1971), reversed, 410 U.S. 224 (1973).

Section 2112(a) also authorizes the court of appeals in which the record is filed (because the first petition for review was filed there) to transfer the proceeding to another court of appeals "[f]or the convenience of the parties in the interest of justice. . . ." Petitions for review have often been filed by adversary parties in two different courts of appeals. But the first petition filed has been by a party who substantially prevailed before the agency and who alleges some minor or inconsequential error. In such circumstances, the court where the prevailing party has filed will transfer the proceeding to the other court, on the grounds that the prevailing party is not so truly "aggrieved" as to be able to maintain his action for review. E.g., Insurance Workers Int'l Union v. N.L.R.B., 360 F.2d. 823, 827 (D.C. Cir., 1966). However, the inconsequential character of the petitioner's aggrievement should appear from his initial pleadings, and the court should not indulge in a preliminary trial by affidavit on the merits in reviewing a transfer motion. See International Union, etc. v. N.L.R.B., 373 F.2d 671, 674 (D.C. Cir., 1967).

The availability of the provisions for transfer and retransfer of proceedings to review Commission actions should be one of the most helpful reforms resulting from the new legislation. It will give the courts the necessary means of (1) avoiding bifurcated, duplicative, and sometimes inconsistent adjudication and (2) discouraging unfair forum shopping by parties to Commission proceedings.

Parties

In pursuing judicial review under the Hobbs Act, the petitioner must be a "party aggrieved by the final order. . . ." 28 U.S.C. § 2344. This language seems to suggest that the petitioner must be a formal party to the Commission proceedings. This language, which is similar to that governing review actions of many other agencies, was not present in the Urgent Deficiencies Act, which had no specific indication of who had standing to seek review of a Commission action.

However, the "party aggrieved" language in the Hobbs Act should not be considered a barrier to standing by those seeking review under its procedures, because of the broad and liberalized interpretation which the Supreme Court has placed on the standing provisions of the Ad

ministrative Procedure Act 14 since Ass'n of Data Processing Serv. Origins v. Camp, 397 U.S. 150 (1970), and Barlow v. Collins, 397 U.S. 159 (1970). In Sierra Club v. Morton, 405 U.S. 727 (1972), the test developed in those cases was held to be:

[p]ersons had standing to obtain judicial review of federal agency action under § 10 of the APA [5 U.S.C. § 702] where they had alleged that the challenged action had caused them “injury in fact," and where the alleged injury was to an interest "arguably within the zone of interests to be protected or regulated" by the statutes that the agencies were claimed to have violated. [405 U.S. 733]

This broad test of standing was applied in proceedings to review Commission actions in United States v. SCRAP, 412 U.S. 669, 683-690 (1973), and Harlem Valley Transp. Ass'n. v. Stafford, 360 F. Supp. 1057, 1064-65 (S.D.N.Y., 1973), aff'd, 500 F.2d 328, 335, n.2 (2nd Cir., 1974). The liberal test of standing now prevailing on the basis of these important 1970 Supreme Court cases clearly supersedes any limitation on standing contained in the Hobbs Act.15

Under section 2344 and Rule 15(a), FRAP, both the United States and the Commission must be named respondents in any petition for review. The Attorney General of the United States represents the Government in all cases brought under the Hobbs Act to review Commission. 28 U.S.C. §§ 2323 and 2348. During the legislative hearings, the Commission expressed some concern over its ability to proceed independently of the Justice Department to defend its actions. In view of the provisions of 28 U.S.C. §§ 2348 and 2350 (a), this concern was probably unfounded, but the legislative Committee reports state that "the ICC will continue to have the opportunity to present its views independently...

16

Persons desiring to intervene in judicial review proceedings under the Hobbs Act may do so under the provisions of 28 U.S.C. § 2348:

The agency, and any party in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review the order. Communities, associations, corporations, firms, and individuals, whose interests are affected by the order of the agency, may intervene in any proceeding to review the order.

14 "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." [5 U.S.C. § 702].

15 The current state of the law of standing is discussed in extenso in Davis, Administrative Law, §§ 22.00-22.00-5; 22.02 (1971 Supp.). Several areas of interest in judicial review are beyond the scope of this paper, such as procedures for nonstatutory review, review of interlocutory orders, and collateral review of Commission actions in other proceedings.

16 S. Rept, supra, p. 7. See also H.R. Rept, supra, pp. 7-9.

This language is quite similar to that governing intervention under the Urgent Deficiencies Act, 28 U.S.C. § 2323.

The court decisions under the two sections are consistent, and no change in governing interpretations should be expected. For example, interested or affected persons who were not parties to the agency proceeding may, nonetheless, intervene in court review proceedings. Compare Seaboard Airline R. Co. v. United States, 268 F. Supp. 500, 505 (E.D., VA 1967) with Montship Lines, Ltd. v. F.M.B., 295 F.2d 147, 152 (D.C. Cir., 1961).17

Motions for leave to intervene in the courts of appeals are governed by Rule 15 (d), FRAP, and this rule requires that such motions be filed within thirty-days of the filing of the petition for review.

Interlocutory Relief

The courts of appeals are authorized by the Hobbs Act, 28 U.S.C. § 2349 (b), to restrain, in whole or in part, agency action pending final review and upon separate application to the court. The mere filing of the petition for review will not stay the Commission's action. Such relief is also authorized by the Administrative Procedure Act, 5 U.S.C. § 705.

Interlocutory stays of agency actions had previously been governed by 28 U.S.C. §§ 2284 (3) and 2324.18 However, the general standards governing whether or not interlocutory relief should be granted are the same under both statutes. The classic statement of the standards is that found in Virginia Petroleum Jobbers Ass'n v. F.P.C., 259 F.2d 921 (D.C. Cir., 1958), which can be paraphrased as:

The applicant must show 1) that he is very likely to prevail on the merits; 2) that if he should prevail on the merits, he will suffer irreparable injury if the stay is not granted; 3) that other parties will not suffer harm; and 4) that the public interest will not be harmed.19 These standards have been applied in previous cases involving Commission orders. See Middlewest Motor Freight Bureau v. United States 433 F.2d 212, 241-2 (8th Cir., 1970), cert. den. 402 U.S. 999 (1971), and cases cited therein. The continued application of these standards should be expected in proceedings under the Hobbs Act.

However, the procedures for obtaining such stays pending judicial review are more rigorous than previously. See 28 U.S.C. § 2349 (b) and Rule 18, FRAP. First of all, Rule 18 requires that an application for a stay first be directed to the Commission except if impractical or if

17 Divisions under the prior law such as Moffat Tunnel League v. United States, 289 U.S. 113 (1933), denying certain persons the right to intervene are no longer valid in view of the Court's recent decisions on standing to sue, discussed supra.

18 Section 2324 was repealed by § 7 of Pub. L. 93-584.

19 Jaffe, op. cit. p. 689. Professor Jaffe suggests that the first two criteria are the only important ones, and that they are interrelated and weighed together by the courts in considering applications for stays. Id. pp. 689-697.