Associated Gas Distributors v. Federal Energy Regulatory Commission
Opinion of the Court
Opinion PER CURIAM.
This opinion addresses motions to dismiss several petitions for review of two Federal Energy Regulatory Commission (“FERC”) decisions: Opinion No. 204, issued January 16, 1984; and Opinion No. 204-A, issued March 16, 1984, denying rehearing of Opinion No. 204. Among the review petitions before the court are the three earliest filed. It is our task to determine the validity of those first-filed petitions. See City of Gallup v. FERC, 702 F.2d 1116, 1121 (D.C.Cir. 1983), on petition for rehearing, 726 F.2d 772 (D.C.Cir. 1984). We conclude that two of the three first-filed petitions are valid; accordingly, we direct FERC to file the record in this court. See 28 U.S.C. § 2112(a) (1982).
I. Background
The essential facts of this case are undisputed. On March 16, 1984, at approximately 3:00 p.m., FERC issued (by public posting) its Opinion No. 204-A, denying rehearing of its Opinion No. 204. The issuance triggered a race by various parties to file the first petition for review so as to secure review in their preferred forum.
Columbia made elaborate preparations to ensure that its petition would be the first one filed after the posting of Opinion No. 204-A on the board at FERC’s Office of Public Information (“OPI”). It set up a seven-person chain between the OPI and the Third Circuit’s Clerk’s Office in Philadelphia. The Columbia team — anticipating a 3:00 p.m. filing — kept a telephone line open between FERC and the Third Circuit from 2:50 p.m. until its petition was filed. One person was stationed in the OPI to watch for the posting of Opinion No. 204-A. He observed that the FERC employee in charge of posting orders did not begin posting until 3:01:30 p.m., and that Opinion No. 204-A was the fourth order posted, at approximately 3:01:32 p.m. When the order was posted, he signalled the next person in the relay, who was stationed at the door outside OPI and who then signalled a third person down the hallway, who in turn signalled the person keeping the telephone line to Philadelphia open. The chain was completed in Philadelphia, where three people were stationed. When the person on the phone in Philadelphia received the message that Opinion No. 204-A had been posted, he shouted “file” to a person waiting down the hallway, who then shouted “file” to the final team member standing at the desk in the Clerk’s Office. The final member notified a Clerk’s Office employee who had agreed to stand in wait at the time-stamp machine with Columbia’s petition (which had been prepared earlier) in her hand. According to Columbia, the procedure went “without a hitch,” and its petition was time-stamped at 3:02 p.m.
AGD and OCC, like Columbia (and Exxon), anticipated correctly that FERC would issue Opinion No. 204-A on March 16,1984. Also like Columbia, AGD and OCC were aware that FERC has a “long-standing practice” of posting orders twice a day, at 10:00 a.m. and 3:00 p.m. See Public Service Co. of New Mexico v. FERC, 716 F.2d 778, 780 (10th Cir. 1983); see also City of Gallup, supra, 702 F.2d at 1119. Their petitions for review were filed in this court with much less ceremony, however. They simply arranged to have petitions for review ready to be filed as closely as possible to FERC’s scheduled posting time. In an apparent excess of caution, AGD filed petitions at both 10:00 a.m. and 3:01 p.m., while OCC filed its petition at 3:00 p.m.
The Third Circuit petitioners argue that Petitions I — III were filed prematurely and that those petitions should therefore be dismissed or transferred to the Third Circuit, where they claim they have filed the first valid petitions for review. They have also filed motions to transfer Petitions VI and VII and other later-filed petitions for review to the Third Circuit.
Our disposition of the motions to dismiss and to transfer depends on our determination of when Opinion No. 204-A should be deemed to have been issued, sounding the starting gun in this race to the courthouse. Administrative agencies have considerable latitude in determining the event that triggers commencement of the judicial review period. See, e.g., Public Service Co., supra, 716 F.2d at 780; Southland Mower Co. v. United States Consumer Product Safety Comm’n, 600 F.2d 12, 13 (5th Cir. 1979); Virginia Electric and Power Co. v. EPA, 610 F.2d 187, 188 (4th Cir. 1979). FERC regulations establish that a FERC order is “deemed issued” when the Secretary “[pjosts a full-text copy in the Division of Public Information.” 18 C.F.R. § 385.2007(b) (1982).
Like City of Gallup, “[tjhis case demonstrates the difficulties of administering ... a system [under which the first-filed petition determines the court that decides where venue should lie] when faced with zealous representatives employing modern technology. Yet, until Congress changes the present scheme, courts must deal with the situation as best they can.” 702 F.2d at 1125 (footnote omitted).
Applying the scheduled-posting-time rule to the petitions for review filed with this court, we conclude that Petition I, filed at 10:00 a.m., was filed prematurely. Accordingly, Petition I should be dismissed. Petition II, filed at 3:00 p.m., and Petition III, filed at 3:01 p.m., were filed on or after the 3:00 p.m. scheduled posting time and are therefore valid.
It is so ordered.
. These races to the courthouse are prompted by the courts’ interpretation of 28 U.S.C. § 2112(a) (1982), which provides in part:
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.
The court of first filing must be established, and then, once all petitions have been consolidated in that court, it must be determined whether the "convenience of the parties in the interest of justice” counsels transfer to yet another circuit. Section 2112(a) creates a mechanical rule designed to prevent the agency from choosing the forum for review by filing the record as it pleased.
City of Gallup, supra, 702 F.2d at 1121.
.The regulation provides:
(1) Any Commission rule or order is deemed issued when the Secretary does the earliest of the following:
(i) Posts a full-text copy in the Division of Public Information;
(ii) Mails or delivers copies of the order to the parties; or
(iii) Makes such copies public.
18 C.F.R. § 385.2007(b) (1982). Only subsection (i) is relevant in this case. The regulation addressing issuance of FERC orders was amended in 1982. The earlier rule, 18 C.F.R. § 1.13(b) (1981), contained no reference to posting. It merely provided that "the day of issuance of an order shall be the day the Office of the Secretary mails or delivers copies of the order (full text) to the parties or their attorneys of record, or makes such copies public, whichever be the earlier.”
. A bill currently before the Subcommittee on Administrative Law and Governmental Relations of the House Committee on the Judiciary would amend the venue provisions of 28 U.S.C. § 2112(a) by providing that when proceedings are instituted in two or more courts of appeal within ten days after issuance of an agency order, the judicial panel on multi-district litigation would randomly select the court in which the record should be filed. See H.R. 5365, 98th Cong., 2d Sess. (1984).
. The Third Circuit petitioners suggest that Public Service Co. is distinguishable because it was decided while the predecessor to FERC’s current posting rule was in effect. See supra note 2.
. Even were the court to adopt the Third Circuit petitioners’ interpretation of FERC’s filing rule, it would not be clear that Petition III was filed prematurely. As AGD points out, the file stamp in this circuit’s Clerk's Office does not register seconds: the stamp “3:01” actually means "between 3:01 p.m. and 3:02 p.m.” Thus, there is no way to tell whether AGD’s petition was filed just before or just after FERC posted Opinion No. 204-A.
Reference
- Full Case Name
- ASSOCIATED GAS DISTRIBUTORS v. FEDERAL ENERGY REGULATORY COMMISSION, Public Service Commission of the State of New York, Intervenors OFFICE OF the CONSUMERS' COUNSEL, STATE OF OHIO v. FEDERAL ENERGY REGULATORY COMMISSION, Public Service Commission of the State of New York, Intervenors ASSOCIATED GAS DISTRIBUTORS v. FEDERAL ENERGY REGULATORY COMMISSION, Public Service Commission of the State of New York, Intervenors OFFICE OF the CONSUMERS' COUNSEL, STATE OF OHIO v. FEDERAL ENERGY REGULATORY COMMISSION, Public Service Commission of the State of New York, Intervenors ASSOCIATED GAS DISTRIBUTORS v. FEDERAL ENERGY REGULATORY COMMISSION, Public Service Commission of the State of New York, Intervenors PUBLIC SERVICE COMMISSION OF the STATE OF NEW YORK v. FEDERAL ENERGY REGULATORY COMMISSION, Washington Gas Light Company, Intervenors CITIES OF CHARLOTTESVILLE AND RICHMOND, VIRGINIA v. FEDERAL ENERGY REGULATORY COMMISSION, Dayton Power and Light Co., Intervenors CITIZEN/LABOR ENERGY COALITION v. FEDERAL ENERGY REGULATORY COMMISSION, Dayton Power & Light Company, Intervenors BALTIMORE GAS AND ELECTRIC COMPANY v. FEDERAL ENERGY REGULATORY COMMISSION, Dayton Power and Light Company, Intervenors PROCESS GAS CONSUMERS GROUP v. FEDERAL ENERGY REGULATORY COMMISSION, Public Utilities Commission of Ohio, Intervenors
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- Published