Mountain States Telephone & Telegraph Co., U.S. Westcommunications, Inc., Petitioners, v. Federal Communications Commission, United States of America,respondents,southwestern Bell Telephone Company, Mci Tele-communicationscorporation, Michigan Bell Telephone Company, Pacific Bell,bell Atlantic, Bellsouth Corporation, New York Telephonecompany, New England Telephone and Telegram Company, Thechesapeake and Potomac Telephone Companies, New Jersey Belltelephone Company, the Diamond State Telephone Company, Intervenors.northwestern Bell Telephone Company, U.S. Westcommunications, Petitioners, v. Federal Communications Commission, United States of America,respondents,american Telephone & Telegraph Co., Intervenor.pacific Bell, Petitioner, v. Federal Communications Commission, United States of America,respondents,michigan Bell Telephone Company, Wisconsin Bell, Inc.,southern Bell Telephone and Telegraph Company, South Centralbell Telephone Company, Southwestern Bell Telephone Company,bell Atlantic, Mci Tele-communications Corporation, Intervenors, 951 F.2d 1259 (10th Cir. 1991)

Pursuant to its authority under the Federal Communications Act, see 47 U.S.C. § 205, the Federal Communications Commission (FCC) issued an order in 1985, prescribing maximum rates of return for interstate services provided by American Telephone & Telegraph Company and local exchange carriers. See Authorized Rates of Return for the Interstate Service of AT & T Communications and Exchange Carriers, FCC 85-527 (released Sept. 30, 1985), 50 Fed.Reg. 41350, recon., FCC 86-114 (released March. 24, 1986), recon. denied, FCC 86-544 (released Jan. 14, 1987), rev'd in part, American Telephone & Telegraph Co. v. FCC, 836 F.2d 1386 (D.C. Cir. 1988) [hereinafter "Rate of Return Order"]. From October 1, 1985, to December 31, 1986, the petitioner local exchange carriers admittedly exceeded the authorized rates of return for certain service categories as set forth in the Rate of Return Order.

Any person injured by a common carrier may file a complaint with the FCC, and the FCC may investigate and award damages. See 47 U.S.C. § 207-09. MCI Telecommunications Corporation (MCI) and American Telephone & Telegraph Company (AT & T), claiming injury resulting from the excess rates charged by the local exchange carriers, filed separate complaints with the FCC. They claimed damages equal to the amount they paid for interstate access service during the rate period less the amount they would have paid had the local exchange carriers earned the authorized rates of return. The FCC subsequently issued orders holding the local exchange carriers liable but reserving the damages issues for later proceedings. See American Telephone & Telegraph Co. v. Northwestern Bell Telephone Company, 5 F.C.C.R. 143 (Jan. 9, 1990); MCI Telecommunications Corp. v. Pacific Northwest Bell Telephone Co., 5 F.C.C.R. 216 (Jan. 9, 1990). Petitioners seek review of the orders, arguing several issues. In response, the government has moved for dismissal for lack of ripeness. We dismiss the petitions because the agency action lacks finality.

The Federal Communications Act § 402(a), 47 U.S.C. § 402(a), provides for review of FCC orders in accordance with the Administrative Orders Review Act, 28 U.S.C. §§ 2341-2351, and the Administrative Orders Review Act, in turn, vests federal circuit courts of appeals with jurisdiction to review only final FCC orders.¹  This finality requirement is a codification of the long recognized presumption against judicial review of agency actions which are not final. See FPC v. Metropolitan Edison Co., 304 U.S. 375, 383-85 (1938); Bell v. New Jersey, 461 U.S. 773, 778 (1982) (citing Metropolitan Edison; 5 U.S.C. § 704; 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3942 (1977)). It " 'permits an administrative agency to develop a factual record, to apply its expertise to that record, and to avoid piecemeal appeals.' " Telecommunications Research & Action v. F.C.C., 750 F.2d 70, 79 (D.C. Cir. 1984) (quoting Association of National Advertisers v. FTC, 627 F.2d 1151, 1156 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980)).

Generally, an action is final when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment," Catlin v. United States, 324 U.S. 229, 233 (1945), and this standard applies to agency adjudications as well. See Jim Walter Resources v. Federal Mine Safety and Health Review Commission, 920 F.2d 738, 744 (11th Cir. 1990) (per curiam) (quoting Catlin, 324 U.S. at 233). Nevertheless, the Supreme Court has "interpreted pragmatically the requirement of administrative finality, focusing on whether judicial review at the time will disrupt the administrative process." Bell, 461 U.S. at 779.

Clearly this agency action is not final. The orders leave open the question of damages for further proceedings. As the government argues, these are archetypal interlocutory orders which are not final. See Republic Gas Co. v. Oklahoma, 334 U.S. 62, 68 (1938) (" [T]he requirement of finality has not been met merely because the major issues in a case have been decided and only a few loose ends remain to be tied up--for example, where liability has been determined and all that needs to be adjudicated is the amount of damages."). Appellate intervention at this point certainly would disrupt the orderly disposition of the damages issues at the agency level.

Petitioners rely on Western Union International, Inc. v. Federal Communications Commission, 652 F.2d 136 (D.C. Cir. 1980), for the proposition that " ' [t]he quintessential reviewable order' is a determination by the Commission regarding the justness and reasonableness of the proposed rates.' " Id. at 143 (quoting Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 239 (D.C. Cir.), cert. denied, 449 U.S. 1061 (1980)). Western Union, however, did not involve an express reservation of damages for further proceedings as do the instant petitions. No obligation has been fixed in these cases because MCI and AT & T have yet to prove damages. Petitioners also contend that review should be granted because other customers may establish a right to damages based on the liability ruling. Again, as the government points out, the Supreme Court addressed a similar situation in Interstate Commerce Commission v. Atlantic Coast Line R. Co., 383 U.S. 576, 598-602 (1966), and held that the possibility of third party claims did not justify departure from the normal administrative review process.

Finally, Petitioners contend that their right to have the liability determination reviewed will be lost if we do not review the petition at this time. This clearly is not the case. Any intermediate agency action which affects the disposition of the matter under consideration is reviewable at the end of the proceedings when the action is final. See 5 U.S.C. § 704 ("A preliminary, procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the final agency action."). Petitioners, therefore, will have the opportunity to dispute not only the damages phase but also the liability determination at issue when agency proceedings have concluded.

Petitioners have failed to demonstrate that judicial intervention at this time would not "disrupt the administrative process," Bell, 461 U.S. at 779. Because the actions lack finality, we are without jurisdiction and we must DISMISS the petitions. In light of our disposition of the finality issue, it is unnecessary to consider the ripeness arguments.

SO ORDERED.