American Public Gas Ass'n v. Federal Power Commission

555 F.2d 852, 180 U.S. App. D.C. 380, 20 P.U.R.4th 232
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 30, 1976
DocketNo. 76-2000
StatusPublished
Cited by19 cases

This text of 555 F.2d 852 (American Public Gas Ass'n v. Federal Power Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Public Gas Ass'n v. Federal Power Commission, 555 F.2d 852, 180 U.S. App. D.C. 380, 20 P.U.R.4th 232 (D.C. Cir. 1976).

Opinion

ORDER

PER CURIAM:

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.

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

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

FURTHER ORDERED by the court that the briefing schedule herein established by order of this court dated December 6, 1976, [384]*384remains in effect. Calendaring of oral argument on the merits will be expedited to the fullest extent possible.

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

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.

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.

In the cases at bar, however, there is no court of appeals in which a first-filing 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 filing1 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 [385]*385secure 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).

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).

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

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.

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.

The producers contend, however, that the Fifth Circuit through its involvement in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Moreau v. Federal Energy Regulatory Commission
982 F.2d 556 (D.C. Circuit, 1993)
United Steelworkers of America v. Marshall
592 F.2d 693 (Third Circuit, 1979)
Industrial Union Department v. Bingham
570 F.2d 965 (D.C. Circuit, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
555 F.2d 852, 180 U.S. App. D.C. 380, 20 P.U.R.4th 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-public-gas-assn-v-federal-power-commission-cadc-1976.