On June 1, 1977, pursuant to stipulation, the court allowed Tokiko (represented by Sommers & Sommers, Esq., of Hackensack, N.J.) additional time to plead or otherwise defend up to and including August 28, 1977.
At the hearing of May 4, 1977, the court continued to express serious doubts about jurisdiction in the light of the references above, and in light of the closely similar situation ruled on in Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977), esp. at 97 S. Ct. p. 985.
In accordance with the status in which the matter was left on May 4, 1977, both sides have submitted supplemental materials. ISO, for example has sent a copy of a letter May 5, 1977 from ERDA, informing that an Invention Licensing Appeal Board has been designated under 10 CFR 781.52(c), to hear ISO's appeal, and that the conclusion reached by that Appeal Board "shall constitute the final action of ERDA".
ERDA has filed Answer (June 17, 1977) to the Second Amended Complaint, denying the critical allegations going to the merits and jurisdiction and denying standing in ISO, as well as an affidavit of ERDA's Assistant General Counsel for Patents, filed June 8, 1977, stating that ERDA has decided to grant non-exclusive licenses to Suzuki and other qualified applicants; that ISO has appealed from that decision; that an Appeal Board has been designated; that the Appeal Board's decision will constitute ERDA's final action; that pending the Appeal Board decision ERDA will grant no further licenses.
ERDA's affidavit renders moot the question whether ISO may apply to any court for an "ancillary injunction" to protect its position pending the administrative review. See Cosmos etc. v. Gray, etc., 112 F. 4 (CA-9, 1901) aff'd 190 U.S. 301, 23 S. Ct. 692, 47 L. Ed. 1064; Council Bluffs v. Omaha, 9 F.2d 246 (CA-8, 1925); Allen v. Milwaukee, 128 Wis. 678, 106 N.W. 1099 (1906); Harrington v. Plainview, 27 Minn. 224, 6 N.W. 777 (1880). There is no "threat" of irreparable injury, and the added defendants, even if not effectively served with process, are at least on notice of ISO's claim.
The ERDA affidavit filed June 8, 1977 says, in substance (though not in haec verbae), that the agency has itself stayed the ruling now under administrative appeal until the appeal is decided. Once that occurs, if the final action be adverse to ISO (or any other party seeking to challenge it), then 5 U.S.C. § 705 will come into play. The first part authorizes ERDA to postpone the effective date of its action pending judicial review. Failing that, if an appeal is filed with the Court of Appeals, the same section evidently authorizes that court to postpone the effective date pending conclusion of its review. This latter part seems to duplicate what is said in 28 U.S.C. § 2342 and the All Writs Act, 28 U.S.C. § 1652, which is probably a condensed version of the Statute of Westminster II (1285), quoted in Holt v. Ferdon, 72 F.R.D. 564, at 570 (D-NJ, 1976).
If any kind of ancillary injunction may be issued by any court before the ERDA action becomes final, it seems clear that the only court having jurisdiction is the Court of Appeals, not this court. Remember, as noted above, that the complaint seeks no final judgment but only a preliminary injunction. While it purports to reserve the right to request plenary review of ERDA's final action, it cannot have that review here because the Court of Appeals has exclusive jurisdiction.
Unlike the judicial structure in New Jersey, where the separate divisions are merely hearing branches for a single Superior Court, Steiner v. Stein, 2 N.J. 367, 66 A.2d 719 (1949); State v. Jones, 4 N.J. 374, 72 A.2d 872 (1950); O'Neill v. Vreeland, 6 N.J. 158, 77 A.2d 899 (1951); Massari v. Einsiedler, 6 N.J. 303, 78 A.2d 572 (1951); Asbestos Fibres v. Martin Laboratories, 12 N.J. 233, 96 A.2d 395 (1953), in the federal system the district courts and the courts of appeals are separate courts. Proceedings initiated in one which ought to have been in the other must be dismissed for lack of jurisdiction; there is no authority to transfer a cause from one to the other in order to process the matter where jurisdiction, or authority to hear a cause (which is not the same thing), does exist. Compare, e.g. N.J. Court Rules R. 1:13-4 (under which a transfer to the proper court having jurisdiction is mandatory) and R. 4:3-4, with the only federal counterparts found, 28 U.S.C. §§ 1404 and 1406, which deal with transfers in the venue sense, and only with transfer from a district court to the Court of Claims where the latter has exclusive jurisdiction. No authority is found for transfers between district courts and courts of appeal where one or the other lacks jurisdiction.
Beyond that, nothing is found in the federal scheme to grant original jurisdiction to appellate courts to be exercised as may be necessary to the complete determination of any cause on review, as is the case for the Supreme Court of New Jersey and the Superior Court, Appellate Division, under N.J.Const. 1947, Art. 6, § 5, par. 3, desirable as such authority may be.
For each and all of the foregoing reasons, the court has come to the conclusion that, if it has jurisdiction, no preliminary injunction is warranted because of the absence of any threat pending ERDA's final action; and also that, if such threat existed, it lacks jurisdiction to entertain the complaint and has no authority to transfer the cause to the U.S. Court of Appeals for the Third Circuit.
On the basis of the foregoing analysis, the court sees no reason or point to further hearings, as contemplated at the close of the May 4 proceedings. In case either party is of another view, entry of any order will be postponed until August 10, 1977, on or before which date a request for further hearing may be made by letter and a date will be set. Absent such request, ERDA shall meanwhile submit an order (a) denying the preliminary injunction and (b) dismissing the complaint for lack of jurisdiction. Both provisions are appealable, 28 U.S.C. §§ 1291 and 1292(a)(1).
Finally, it is noted that ISO's formal motion for preliminary injunction was incorrectly sent to the trial judge and it has since reposed in the chambers files instead of being filed, as it should have been, with the clerk. See, General Rule 8-D of this district. To complete the record, the clerk is directed to file the same.
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