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March 1, 1986

ROBERT JAMISON, M.D., ET AL., Plaintiffs,

The opinion of the court was delivered by: GASCH


 This case challenges a Federal Trade Commission ("FTC") enforcement proceeding against certain anesthesiologists. That proceeding, entitled In the Matter of Jose F. Calimlim, M.D., et al., was commenced by the FTC on September 30, 1985 and alleges that plaintiffs, among other named parties, combined or conspired to raise the fees paid for anesthesia services in the Rochester, New York, area.

 Plaintiffs seek a preliminary injunction to prevent further action in the enforcement proceeding. Plaintiffs allege that the FTC complaint was filed in violation of statutory and constitutional rights and request relief in the form of a declaratory judgment that the FTC complaint is null and void and an injunction prohibiting additional FTC enforcement actions against the anesthesiologists.

 Defendants have responded by moving for transfer of the case to the court of appeals or for dismissal. They assert that this Court lacks jurisdiction over plaintiffs' claims and that, even if jurisdiction existed, the FTC action is not reviewable at this point. Additionally, defendants oppose any issuance of a preliminary injunction by contending that plaintiffs have not made the showing necessary to obtain that remedy.


 Plaintiffs are seven duly licensed anesthesiologists who practice in New York. Each is a named respondent in the FTC proceeding. During 1980 and 1981, plaintiffs participated in Genesee Valley Health Care, Inc. ("Rochester Blue Shield"), a medical prepayment plan serving the Rochester area. Plaintiffs charge that Rochester Blue Shield was improperly controlled by physician participants and was engaging in illegal price-fixing by setting the compensation rate for anesthesiologists at a level below that charged in other cities. After efforts to change the compensation rate failed, more than 30 anesthesiologists, including plaintiffs, resigned from the Rochester Blue Shield program.

 An FTC investigation of the resignations led to the filing of a complaint under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 (1982). Plaintiffs attack that FTC action on several grounds. First, they assert that the only antitrust violation was committed by Rochester Blue Shield. They cite a recent decision which found that entity's rate-setting bylaws "per se illegal." Addino v. Genesee Valley Medical Care, Inc., 593 F. Supp. 892, 901 (W.D.N.Y. 1984). According to plaintiffs, the FTC refused to investigate Rochester Blue Shield because of political considerations. Second, plaintiffs argue that the FTC investigation of their conduct was insufficient. Finally, plaintiffs contend that the FTC press release announcing the proceeding against the anesthesiologists was inaccurate and led to improper accusations against plaintiffs in the media. These FTC actions are alleged to infringe upon plaintiffs' fifth amendment rights.

 Moreover, plaintiffs assert that their resignations were protected by the first amendment. The New York legislature has occasionally considered legislation to limit physician participation on the boards of directors of Blue Shield plans, and a bill limiting such participation to one-fourth of the seats on the boards was enacted in 1985 and became effective on January 1, 1986. The filing of the FTC complaint thus allegedly chilled plaintiffs' free speech and violated plaintiffs' right to petition the government for redress of grievances.


 In their motion to transfer or to dismiss, defendants contend that Telecommunications Research & Action Center v. FCC (TRAC), 242 U.S. App. D.C. 222, 750 F.2d 70 (D.C. Cir. 1984), requires transfer of this case to the court of appeals. In TRAC, the Court of Appeals held that, "where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals." 750 F.2d at 75 (emphasis in original). This holding was "considered separately and approved by the whole court, and thus constitutes the law of the circuit." Id. at 75 n.24.

 This Court thus must first determine whether any "statute commits review of [FTC] action to the Court of Appeals." The FTC proceeding challenged by plaintiffs was commenced under 15 U.S.C. § 45(b) (1982). Final orders resulting from such proceedings are originally reviewable in the courts of appeals. Id. §§ 45(b)-(d); see also Consumer Federation of America v. FTC, 169 U.S. App. D.C. 136, 515 F.2d 367, 372 (D.C. Cir. 1975); Miles Laboratories v. FTC, 78 U.S. App. D.C. 326, 140 F.2d 683, 684-85 (D.C. Cir.), cert. denied, 322 U.S. 752, 88 L. Ed. 1582, 64 S. Ct. 1263 (1944). *fn1" Accordingly, this case meets the first requirement of TRAC.

 The Court next must ascertain whether this action seeks "relief that might affect the Circuit Court's future jurisdiction." TRAC, 750 F.2d at 75. The flexibility of this language has been found "troublesome," Zantop International Airlines v. Engen, 601 F. Supp. 667, 669 (D.D.C. 1985), but subsequent cases reveal that the language should be broadly construed. Thus, the TRAC doctrine has been applied to actions seeking to require or accelerate agency action; see Oil, Chemical, and Atomic Workers International Union v. Zegeer, 248 U.S. App. D.C. 47, 768 F.2d 1480 (D.C. Cir. 1985); International Union, UAW v. Donovan, 244 U.S. App. D.C. 141, 756 F.2d 162 (D.C. Cir. 1985); TRAC, 750 F.2d at 70; and to actions seeking to prevent future agency action; see Community Nutrition Institute v. Young, 249 U.S. App. D.C. 150, 773 F.2d 1356 (D.C. Cir. 1985); Zantop International Airlines, 601 F. Supp. at 667.

 It seems plain that this case meets the second requirement of TRAC. Plaintiffs' request for injunction obviously seeks relief that might affect the future jurisdiction of the court of appeals, since such an injunction would prevent the FTC from issuing a final order reviewable by the court of appeals. That plaintiffs seek preliminary injunctive relief does not alter the analysis. TRAC has been applied to actions seeking such relief. See Community Nutrition Institute v. Young, 773 F.2d at 1360-61; Zantop International Airlines, 601 F. Supp. at 668-69. Nor do plaintiffs' allegations of FTC bias change the result; the court of appeals already has held TRAC applicable to cases alleging that an agency action was improperly motivated. See Air Line Pilots Ass'n v. Civil Aeronautics Board, 242 U.S. App. D.C. 233, 750 F.2d 81, 88 (D.C. Cir. 1984).

 Plaintiffs argue that TRAC is inapplicable to cases raising constitutional claims. While research has uncovered no decisions specifically applying TRAC to cases involving constitutional arguments, that fact should not bar application of TRAC to this case. The TRAC court expressly found erroneous a prior case which held that federal district courts have general federal question jurisdiction over "nonfrivolous constitutional claims of agency bias and prejudgment." TRAC, 750 F.2d at 75 n.23, 77 n.30 (citing Association of National Advertisers v. FTC, 201 U.S. App. D.C. 165, 627 F.2d 1151, 1157 (D.C. Cir. 1979), cert. denied, 447 U.S. 921, 65 L. Ed. 2d 1113, 100 S. Ct. 3011 (1980)). *fn2" In addition, the court of appeals has held that TRAC applies to agency bias claims such as those here at issue, although those claims were not couched in constitutional terms. See Air Line Pilots Ass'n, 750 F.2d at 88. Finally, acceptance of plaintiffs' argument would cripple the purpose of the TRAC doctrine, since plaintiffs could avoid application of TRAC simply by attaching a constitutional claim -- such as violation of due process or freedom of speech -- to their complaints. *fn3"

 As plaintiffs have noted, the TRAC Court did recognize the possibility of


a small category of cases in which the underlying claim is not subject to the jurisdiction of the Court of Appeals (and thus adjudication of the claim in the District Court will not affect any future statutory review authority of the Circuit Court). In such cases, where a denial of review in the District Court will truly foreclose all judicial review, district court review might be predicated on the general federal question jurisdiction statute, 28 U.S.C. § 1331. For example, in Leedom v. Kyne, [358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958)], the Supreme Court held that, even though there is a statutory prohibition against review of representation orders of the [NLRB], a District Court has jurisdiction under section 1331 in the very limited circumstance where the Board has clearly violated an express mandate of the statute and plaintiff has no alternative means of review.

 750 F.2d at 78 (emphasis in original). This case does not fall within that "small category of cases," however, because plaintiffs have an "alternative means of review."

 It therefore seems clear that TRAC governs this case. When a district court lacks jurisdiction by virtue of TRAC, the correct response is to transfer the case to the court of appeals under 28 U.S.C. § 1631 (1982). See TRAC, 750 F.2d at 79 n.37. As such, defendants' motion to transfer the case to the court of appeals is granted. *fn4"

 ORDER - March 3, 1986, Filed

 Upon consideration of plaintiffs' motion for a preliminary injunction and defendants' motion to transfer or to dismiss, the memoranda of points and authorities in support thereof and in opposition thereto, and both parties having been heard in open court thereon, for the reasons stated in the accompanying memorandum it is by the Court this 1st day of March, 1986,

 ORDERED that defendants' motion to transfer be, and hereby is, granted; and it is further

 ORDERED that this case be, and hereby is, transferred to the court of appeals for this circuit pursuant to 28 U.S.C. § 1631.

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