Westinghouse Broadcasting Co., Inc., Petitioner, v. National Transportation Safety Board, Respondent, 670 F.2d 4 (1st Cir. 1982)

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U.S. Court of Appeals for the First Circuit - 670 F.2d 4 (1st Cir. 1982) Jan. 28, 1982

Robert B. Curley, Boston, Mass., for petitioner.

Donald R. Anderson, Asst. U. S. Atty., Boston, Mass., for respondent.

Before CAMPBELL and BREYER, Circuit Judges.


ORDER OF COURT

As a practical matter the issue raised in this case calls for the type of speedy evidentiary hearing that district courts ordinarily provide but which this court (which typically reviews records made elsewhere) is ill-equipped to give. At the same time, there is a serious question about whether this court has jurisdiction. It is allowed to review only National Transportation Safety Board "order(s)," 49 U.S.C. § 1903(d)-a term interpreted to reflect the need for "an adequate administrative record" to allow review. Cf. Sima Products Corp. v. McLucas, 612 F.2d 309, 312 (7th Cir. 1980). The district courts, however, have authority to review "final agency action for which there is no other adequate remedy," 5 U.S.C. § 704, 28 U.S.C. § 1331. This latter term, we believe, is broader than "order" and allows district courts broader scope to review, where the need to develop a record expeditiously is critical, as it is here. Moreover, petitioner's counsel has informed us that he will be filing a petition for review in the District Court for the District of Massachusetts.

Therefore, confident that petitioner will receive an expedited hearing in the district court, we shall hold our decision in abeyance. We direct the clerk of this court to send a copy of this Order forthwith to the District Court for the District of Massachusetts.

So ordered.