AMERICAN PUBLIC GAS ASS’N v. FED. POWER COM’N, 555 F.2d 852 (D.C. Cir. 1976)

AMERICAN PUBLIC GAS ASSOCIATION ET AL., PETITIONERS, v. FEDERAL POWER COMMISSION, RESPONDENT, AND SIX OTHER CASES.[*]

No. 76-2000.United States Court of Appeals, District of Columbia Circuit.Argued December 17, 1976.
Decided December 30, 1976. Order November 9, 1976. Order filed November 18, 1976.

Page 853

Charles F. Wheatley, Jr., Washington, D.C., with whom William T. Miller and Stanley W. Balis, Washington, D.C., were on the memoranda for petitioners American Public Gas Assn., Senator Hubert H. Humphrey, United Steelworkers of America, Intern. Assn. of Machinists and Aerospace Workers, Industrial Union Dept., AFL-CIO and for Toward Utility Rate Normalization (TURN).

Daniel J. Guttman, White Plains, N.Y., was on the memoranda for petitioners James Abourezk, et al.

James L. Feldesman, Washington, D.C., was on the memoranda for petitioner Consumer Federation of America.

Carla Vivian Bello, Newark, N.J., was on the memoranda for petitioner New Jersey Bd. of Public Utility Com’rs.

Warren Spannaus, St. Paul, Minn., was on the memoranda for petitioner, State of Minn.

Rodney A. Wilson, St. Paul, Minn., was on the memoranda for petitioner, Minn. Public Service Commission.

Steven M. Schur, Madison, Wis., was on the memoranda for petitioner, Public Service Commission of Wis.

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Stephen I. Schlossberg, Detroit, Mich., was on the memoranda for petitioner United Automobile Aerospace and Agricultural Implement Workers of America.

David B. Graham, Washington, D.C., was on the memoranda for petitioner Nat. Rural Electric Cooperative Assn.

Frank W. Frisk, Jr., Washington, D.C., was on the memoranda for petitioner American Public Power Assn.

John E. Gunther, San Francisco, Cal., was on the memoranda for petitioner U.S. Conference of Mayors.

Charles F. Brannan, Denver, Colo., was on the memoranda for petitioner National Farmers Union.

Lee D. Sinclair, Potomac, Md., was on the memoranda for petitioner Nat. Farmers Organization.

James F. Flug, Washington, D.C., was on the memoranda for petitioner Energy Action Committee.

James L. Magavern, Buffalo, N.Y., was on the memoranda for petitioner County of Erie, N.Y.

Leslie G. Foschio, Buffalo, N.Y., was on the memoranda for petitioner City of Buffalo, N.Y.

Drexel D. Journey, General Counsel, Federal Power Commission, Washington, D.C., for respondent.

Peter H. Schiff, Gen. Counsel, New York City, and Richard A. Solomon and Sheila S. Hollis, Washington, D.C., were on the memoranda for Public Service Commission of the State of N.Y.

Gordon P. MacDougall, Washington, D.C., was on the memoranda for Commonwealth of Pennsylvania, et al.

Gordon Gooch, Washington, D.C., with whom Thomas G. Johnson, Houston, Tex., was on the memoranda for Tenneco Oil Co; Pennzoil Co., Pennzoil Producing Co.; Pennzoil Offshore Gas Operators, Inc.; Pennzoil La. and Texas Offshore, Inc.; The Rodman Corp.; and Texasgulf, Inc. and Felmont Oil Corp.

David G. Stevenson, Tulsa, Okl., was on the memoranda for Amerada Hess Corp.

David M. Whitney, Houston, Tex., was on the memoranda for Aminol USA, Inc., et al.

William H. Emerson, Tulsa, Okl., was on the memoranda for Amoco Production Co.

R. F. Generally, Washington, D.C., was on the memoranda for Ashland Oil Inc. and General American Oil Co. of Tex.

E. J. Kremer, Jr., and D. Aston, Dallas, Tex., was on the memoranda for Atlantic Richfield Co.

Edwin S. Nail, Boston, Mass., was on the memoranda for Cabot Corp.

Justin R. Wolf, Washington, D.C., was on the memoranda for The Cal. Co., et al. and Chevron Oil Co., Western Div.

Sam Riggs, Jr., Liberal, Kan., was on the memoranda for Cities Service Oil Co.

W. Neal Powers, Jr., Houston, Tex., was on the memoranda for Estate of E. Cockrell, Jr.

Tom Burton and John M. Badger, Houston, Tex., were on the memoranda for Continental Oil Co.

T. Brooke Farnsworth and William Neal Powers, Jr., Houston, Tex., were on the memoranda for Damson Oil Corp.

W. E. Notestine, Amarillo, Tex., was on the memoranda for Diamond Shamrock Corp.

Scott Anger, Washington, D.C., was on the memoranda for Enserch Inc.

Martin N. Erck, Paul W. Wright and Edmunds Travis, Jr., Houston, Tex., were on the memoranda for Exxon Corp.

Wm. Neal Powers, Jr., Houston, Tex., was on the memoranda for Freeport Minerals Co.

Cloy D. Monzingo, Houston, Tex., was on the memoranda for Getty Oil Co.

B. James McGraw was on the memoranda for Gulf Oil Corp.

H. Lamar Curtis, Jr., Houston, Tex., was on the memoranda for J. M. Huber Corp.

Robert W. Henderson, Dallas, Tex., was on the memoranda for Hunt Oil Co., Inc.

Arthur S. Berner, New York City, was on the memoranda for Inexco Oil Co.

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Derrill Cody and Patricia D. Robinson, Oklahoma City, Okl., were on the memoranda for Kerr-McGee Corp.

William A. Sackmann, Findlay, Ohio was on the memoranda for Marathon Oil Co.

Tom P. Hamill, R. D. Haworth and Roscoe C. Elmore, Jr., Houston, Tex., were on the memoranda for Mobil Oil Corp.

John L. Williford, Bartlesville, Okl., was on the memoranda for Phillips Petroleum Co.

Paul W. Hicks and Jimmy C. Bailey, Dallas, Tex., were on the memoranda for Placid Oil Co.

Ronald E. Jarrett and Ronald J. Jacobs, Tulsa, Okl., were on the memoranda for Skelly Oil Co.

Richard F. Remmers, Oklahoma City, Okl., was on the memoranda for Sohio Petroleum Co.

William S. Jameson, Dallas, Tex., was on the memoranda for Southern Union Production Co.

James D. Olsen, Richardson, Tex., was on the memoranda for Sun Oil Co.

Roger L. Brandt, Houston, Tex., was on the memoranda for Texaco, Inc.

Michael B. Silva and Phyllis Rainey, Houston, Tex., were on the memoranda for Tenneco Oil Co.

George W. Hugo, Houston, Tex., was on the memoranda for Texasgulf, Inc.

Kenneth L. Riedman, Jr., Los Angeles, Cal., and Richard F. Wornson, Valencia, Cal., were on the memoranda for Union Oil Co. and Union Oil Company of Cal.

Alexander E. Bennett, David Bonderman, Washington, D.C., Willard B. Wagner, Jr., and Pat F. Timmons, Houston, Tex., were on the memoranda for Superior Oil Co.

Tilford A. Jones, Bethesda, Md., and C. William Cooper, Falmouth, Mass., were on the memoranda for United Distribution Companies.

Harold B. Scoggins, Washington, D.C., was on the memoranda for Independent Petroleum Ass’n of America.

Jerome McGrath, Washington, D.C., was on the memoranda for Interstate Natural Gas Ass’n.

Paul E. Goldstein and Paul W. Mallory, Chicago, III., were on the memoranda for Natural Gas Pipeline Co. of America.

Eugene W. Ward and T. E. Midyett, Jr., Nashville, Tenn., were on the memoranda for Tenn. Public Service Commission.

Jeffrey A. Meith, Oroville, Cal., was on the memoranda for Southern Cal. Gas Co.

James L. Bomar, Jr., Shelbyville, Tenn., was on the memoranda for East Tennessee Group.

Frank P. Saponaro, Jr., Washington, D.C., was on the memoranda for Statex Petroleum Inc.

J. David Mann, Jr., Washington, D.C., was on the memoranda for Laclede Gas Co.

Peter W. Hanschen, Los Angeles, Cal., was on the memoranda for Pac. Gas Elec. Co.

Petition for review from the Federal Power Commission.

Before: FAHY, Senior Circuit Judge; LEVENTHAL and ROBINSON, Circuit Judges.

ORDER
PER CURIAM:

[1] The court has reached its decision of the venue question after consideration of the memoranda filed by counsel for petitioners and intervenors in this court and in the Fifth Circuit, of the relevant prior proceedings and pleadings in this matter, of paragraphs one and two of this court’s order of December 13, 1976, herein, and of the oral argument before it.

[2] It appearing to the court for reasons set forth in the accompanying per curiam filed this date that this court properly has jurisdiction and venue in these matters, it is

[3] ORDERED by the court that respondent Federal Power Commission shall file the administrative record in respect of these matters in this court; and it is

[4] FURTHER ORDERED by the court that the briefing schedule herein established by order of this court dated December 6, 1976,

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remains in effect. Calendaring of oral argument on the merits will be expedited to the fullest extent possible.

PER CURIAM:

[5] Following denial by the Federal Power Commission of rehearing of Opinion No. 770 by Opinion No. 770-A on November 5, 1976, petitions for review were filed in this court and, as well, in the Courts of Appeals for the Third, Fifth, Ninth and Tenth Circuits. The Commission has advised that the first timely filings of such petitions occurred simultaneously in this circuit and the Fifth Circuit. The question arises as to the circuit in which litigation of Opinions Nos. 770 and 770-A should proceed. We conclude that it should go forward here.

I
[6] Judicial review of a Commission order under the Natural Gas Act is appropriately instituted by a petition to this court, or to the court of appeals for any other circuit wherein a natural gas company to which the order relates is located or has its principal place of business. 15 U.S.C. § 717r(b) (1970). That section further ordains that “[u]pon the filing of such petitions such court shall have jurisdiction, which upon the filing of the [administrative] record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.” These provisions are complemented by three additional specifications:

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. For the convenience of the parties in the interest of justice such court may thereafter transfer all the proceedings with respect to such order to any other court of appeals.

[7] 28 U.S.C. § 2112(a) (1970). See also S.Rep. No. 2129, 85th Cong., 2d Sess. 4 (1958), U.S. Code Cong. Admin.News, 1958, p. 3996.

[8] In the cases at bar, however, there is no court of appeals in which a first-filling of a petition to review occurred. As the Commission states, petitions were filed in the Fifth Circuit and here at exactly the same moment, and we are unimpressed by opposing arguments that nonetheless one or the other filing should be deemed prior in time. Some petitioners in this circuit have drawn attention to claimed defects in the earliest Fifth Circuit filing[1] but, in our view, they are not determinative because they are not jurisdictional in nature. Nor are we persuaded that priority was conferred by proceedings in this circuit seeking emergency relief immediately after the Commission issued Opinion No. 770. Under the Natural Gas Act, an order lacks jurisdictional ripeness for review until the Commission has disposed of a petition to reconsider alleged error in it (or until a reasonable time to act upon such petition has expired). See 15 U.S.C. § 717r(a) (1970). To hold that a motion under the All Writs Act for extraordinary relief from an order — when a petition for review of that order would be premature — constitutes a “proceeding with respect to such order” within the meaning of Section 2112(a) might accelerate races to the courthouse in efforts to

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secure the forum for the merits. See Amerada Petroleum Corp. v. FPC, 338 F.2d 808, 810 (10th Cir. 1964). We think the better reconstruction of congressional intent is that requests for interim relief are not to be included in the calculus of first-filing set forth in Section 2112(a).

[9] In view of the lack of first-filing in any one circuit, Section 2112(a) cannot be implemented through the mechanics set forth in its first sentence quoted above. Instead, we look to the ultimate provision of § 2112(a), which authorizes transfer of the proceedings to another circuit “[f]or the convenience of the parties in the interest of justice.” Judicial review in the forum determined by that standard is a stated congressional goal, and our obligation is to honor the legislative will as expressed in the statute as a whole. See Eastern Air Lines, Inc. v. CAB,
122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965).

[10] We think resort to the foregoing approach is appropriate to dissolve the procedural impasse arising here. It gives effect to the overall congressional intent. Compare International Union of Electrical R. M. Workers v. NLRB, 120 U.S.App.D.C. 45, 46-47, 343 F.2d 327, 328-329 (1965). There is no impediment to such an undertaking on our part, for the Fifth Circuit has agreed to a procedure whereby this court “should take the lead and reach a determination on venue.” See our order of December 13, 1976, appended hereto. Cf. Saturn Airways, Inc. v. CAB,
155 U.S.App.D.C. 151, 476 F.2d 907 (1973); see also NLRB v. Bayside Enterprises, 514 F.2d 475, 476 (1st Cir. 1975).

II
[11] Turning to the standard of the last sentence of Section 2112(a), it is our conclusion that the convenience of the parties is furthered by retention of these cases in the District of Columbia Circuit, and that there are no offsetting considerations in the interest of justice to warrant transfer of the litigation to any other circuit.

[12] The Commission is situated in Washington. The parties before us often come to Washington, at least by counsel, to participate in Commission proceedings, as they have done in the proceedings with which we are presently concerned. Much of the specialized oil and gas bar is concentrated here, consumer groups are well represented here, and industry representatives not based here are continually in attendance. Moreover, the petitioning Members of Congress are located in the Washington metropolitan area. The convenience of the parties could hardly be as well served by venue elsewhere.

[13] The producers contend, however, that the Fifth Circuit through its involvement in Shell Oil Co. v. FPC, 520 F.2d 1061 (1975) cert. denied, 426 U.S. 941, 96 S.Ct. 2661, 49 L.Ed.2d 394
(1976), on rehearing, 525 F.2d 1261 (1976) — which reviewed Opinion No. 699-H, the first Commission order setting natural gas rates on a nationwide basis — has gained such familiarity with the background of the present controversy as to command preference for its resolution. But general familiarity with the legal questions presented by a case is decidedly different from acquaintance with the proceedings that gave rise to the order in suit. Certainly, “where the same or inter-related proceeding was previously under review in a court of appeals, and is now brought for review of an order entered after remand, or in a follow-up phase,” the desirability of “continuity in the total proceeding” calls strongly for handling by the same reviewing tribunal Public Service Comm’n v. FPC, 153 U.S.App.D.C. 195, 197, 472 F.2d 1270, 1272 (1972). Cf. American Tel. Tel. Co. v. FCC, 519 F.2d 322, 325-327 (2d Cir. 1975). That is not to say, as the producers do, that prior consideration by one court of particular legal issues should preclude other courts from entertaining distinct though somewhat similar issues.[2] Implicit in the

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argument is a concept of specialized circuits and panels for certain types of cases, a suggestion we have previously rejected.[3]

[14] In our view, then, the Fifth Circuit’s exposure to earlier versions of nationwide gas ratemaking does not weigh materially in the balance.[4] Nor do we perceive any other factor that would override retention of the litigation in this circuit for the convenience of the parties.[5] We thus conclude that jurisdiction

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and venue are proper here. The Commission will accordingly be directed to file the record in this court, and the parties will continue to be bound by the briefing schedule established by our order of December 6, 1976. The Clerk is instructed to expedite oral argument, and to schedule the case, in accordance with the procedures established by the Judicial Council,[6] before a panel sitting between March 17 and April 6, 1977 — the sitting period next following completion of briefing.

[15] It is ordered.

[16] Senior Circuit Judge FAHY concurs in the foregoing and adds only that it will be noted that even were the petition under the All Writs Act which led to our Order of August 9, 1976, a proceeding within the meaning of 28 U.S.C. § 2112(a) as it might affect the question of priority of filing, our ultimate decision on retaining venue would be supported by the other considerations we set forth, considered alone.

APPENDIX A

Order Filed November 9, 1976 in No. 76-2000

Before FAHY, Senior Circuit Judge; LEVENTHAL and ROBINSON,
Circuit Judges.

Page 860

PER CURIAM.

On consideration of petitioners’ emergency motion for extension
or expansion of the court-ordered emergency stay of Opinion No.
770 and respondent’s opposition thereto, it is hereby

ORDERED that until further order of the court, in the absence
of a provision in the Commission’s order (Opinion No. 770, as
amended in Opinion No. 770-A) for refund of rates charged if
subsequently held unlawful, in whole or in part, the court issues
a stay restraining the effectiveness of Commission Opinion No.
770, as amended by Commission Opinion No. 770-A, provided,
however, that the stay is not applicable insofar as the rate
increases authorized in said opinions and orders are applied to
and invoked by producers that incorporate an undertaking to
refund to their pipeline customers (for passthrough by them to
distributor companies and ultimate consumers) any portions of the
rate increases, authorized by said opinions and orders
accompanied thereby, which are subsequently held to be unlawful.

FURTHER ORDERED that the court will hear oral argument at 9:30
a. m., Thursday, November 11, 1976, on the petition for emergency
relief above referred to, and on whether the stay herein granted
shall be continued. Each side will be allotted one half hour,
subject to expansion by the court as justice may require. It is

FURTHER ORDERED that respondent Federal Power Commission file
with the court no later than 4 p. m., Wednesday, November 10,
1976, a full response to the merits of the motion for stay of the
rates set in Opinion No. 770-A or continuation of the refund
provision with respect thereto. It is

FURTHER ORDERED that all persons addressing the emergency
motion by briefing shall file their papers no later than 4 p. m.,
Wednesday, November 10, 1976. It is

FURTHER ORDERED by the court that the court will not now pass
upon the multiplicity of papers which have been filed in the
various other dockets seeking review of Commission Opinions No.
770 and 770-A, but will, for convenience, consider all such
matters in this docket. All persons who have raised questions
with respect to those Opinions are granted leave of court to
present them herein.

APPENDIX B

Order Filed November 18, 1976 in No. 76-2000

Before FAHY, Senior Circuit Judge; LEVENTHAL and ROBINSON,
Circuit Judges.

PER CURIAM.

This order is entered upon consideration of petitioners’
emergency motion for extension or expansion of emergency stay
ordered by this court in Docket No. 76-1694 on August 9, 1976,
respondent’s two responsive pleadings in opposition thereto,
petitioners’ reply thereto, the numerous other pleadings filed by
intervenors herein and by parties in related dockets appearing
herein by leave of court, the orders of this court previously
entered herein, and upon the oral argument held before it.

The court has reached the following decision:

1. The temporary stay order entered by this court on November
9, 1976, is hereby terminated as to gas produced from onshore
wells commenced, “spudded,” or drilled after July 27, 1976.

As to such “new gas,” the Commission relies on its view that
there is an overriding public interest in securing new
dedications to the interstate market. It is the court’s view that
such gas would be subject to possible refund in the event the
Commission’s order accompanying Opinion No. 770, as amended by
Opinion No. 770-A is held invalid, or partly so, even in the
absence of a specific incorporation of a refund obligation to
that effect by the court at this time. Such specific
incorporation, however, the Commission argues, may deter
interstate dedication of gas and confine new gas dedications to
intrastate markets, and there it could be put exclusively to
industrial use without being subject to Commission allocation for
higher priority use, all detrimental to the public interest in
present circumstances of gas shortage. The court takes note that
the parties opposing a stay as to new onshore gas include the
Public Service Commission of the State of New York, the United
Distribution Companies, and the Associated Gas Distributors.

2. Except as to the gas covered by paragraph 1, the stay
entered November 9, 1976, is continued in effect pending further
order of the court, provided, however, that the use of any
refunds which might accrue thereunder shall be subject in the
first instance to consideration by the Commission, its conclusion
with respect thereto being subject to court review.

(a) As is made expressly clear in the court’s November 9 order,
and as was the intention of the August 9, 1976, order in Docket
No. 76-1694, the court’s order is directed to the Commission, as
the order of August 9 was construed by the Commission in its own
refund order of August 13, 1976, entitled “Order Imposing Refund
Obligation Pursuant to Order of the Court” of August 9, 1976. It
is a stay (in both instances) of the Commission’s orders that is
so conditioned that the stay is inapplicable if the producer’s
filing contains an acknowledgment of refund obligation in the
event the Commission’s rate increase orders are held invalid, in
whole or part.

(b) The effect of the November 9 order, as made applicable to
“flowing gas” from reserves already dedicated to the interstate
market, and to offshore wells which are required to be dedicated
to the interstate market, contributes to the public interest, by
avoiding the building up of a claim of equity that might militate
against possible future refund, a claim that might be asserted by
producers contending that they had received and disbursed
proceeds authorized by the Commission without any effective
notice or awareness of exposure to any risk of refund.

(c) The court takes this occasion to add that its inclusion of
a reference to refund obligation does not indicate any position
as to whether or not a refund will be required. It has not been
able as of the present time adequately to assess the merits.

3. The court is aware that there exists a present dispute as to
which Circuit Court of Appeals of the United States properly has
venue to entertain petitions for review of Opinions No. 770 and
770-A. The court does not mean by this order to assert that it
will finally be concluded that proper venue lies in this circuit,
but only

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that we have concluded that whatever doubt as may exist does not
preclude this court, where a petition for review has been filed,
from acting upon the matter of a stay, pending resolution of the
venue question. Thus, this order today entered is subject to
modification by further order not only of this court, but of such
other court as may finally be determined to have jurisdiction and
venue.

APPENDIX C

Order Filed December 13, 1976 in Nos. 76-2000 76-2001

Before FAHY, Senior Circuit Judge; LEVENTHAL and ROBINSON,
Circuit Judges.

PER CURIAM.

The Federal Power Commission has advised both this court, and
the United States Court of Appeals for the Fifth Circuit, that
subsequent to the Commission’s denial of rehearing of Opinion No.
770, by Opinion No. 770-A and the order accompanying it,
petitions for review were filed in both courts simultaneously.
Accordingly, the Commission is unable to follow the instruction
of 28 U.S.C. § 2112, providing that the record shall be filed in
the court in which a proceeding “was first instituted,” if it is
limited to consideration of papers filed subsequent to the denial
of rehearing.

The duly assigned panels of this court and of the Fifth Circuit
have been in communication for the purpose of establishing a
procedure to resolve the problem created by the multiple filings
of petitions to review in each circuit. It has been mutually
agreed that since the statutory rule of first filing does not
suffice to resolve the present problem, the District of Columbia
Circuit should take the lead and reach a determination of venue
under 28 U.S.C. § 2112(a), having in mind that the last sentence
permits transfer to any court of appeals, designated on a
consideration of “the convenience of the parties in the interest
of justice.”

This court will hear oral argument on the issue of the
aforesaid designation on December 17, 1976, at 10 A.M. Oral
submissions not exceeding 15 minutes will be entertained from (a)
one counsel designated by parties who filed petitions to review
in this court, (b) one counsel designated by parties who filed
petitions to review in the Fifth Circuit, or any other court,
whether or not they have intervened in this court; and (c) the
Federal Power Commission. Additional submissions will be
permitted if deemed necessary and appropriate. Memoranda
concerning the nature of the submissions to be made should be
filed on or before 4 P.M., December 16, 1976.

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