U.S. Court of Appeals for the D.C. Circuit, 1993

Tennessee Gas Pipeline Company v. Federal Energy Regulatory Commission

U.S. Court of Appeals for the D.C. Circuit · Decided November 23, 1993 · Wald, Silberman, Williams

9 F.3d 980; 304 U.S. App. D.C. 1; 1993 U.S. App. LEXIS 30111 (Federal Reporter, Third Series)

Counsel

Robert H. Benna, David Withnell and Patrick A. Johnson were on the motion to dismiss for petitioner., Jill L. Hall, was on the motion to dismiss for respondent.

Cases that cite this one

29 later published cases cite this decision. The 24 that cite it most often are listed here.

National Association of Immigration Judges v. FLRA (D.C. Cir. 2023)
Smith Lake Improvement v. FERC (D.C. Cir. 2015)
Smith Lake Improvement & Stakeholders Ass'n v. Federal Energy Regulatory Commission (D.C. Cir. 2014)
Smith Lake Improvement & Stakeholders Ass'n v. Federal Energy Regulatory Commission (D.C. Cir. 2014)
Clifton Power Corp. v. Federal Energy Regulatory Commission (D.C. Cir. 2002)
Am. Rivers v. Fed. Energy Regulatory Comm'n (D.C. Cir. 2018)
Williston Basin Interstate Pipeline Co. v. Federal Energy Regulatory Commission (D.C. Cir. 2006)
City of New Orleans v. United States Securities & Exchange Commission (D.C. Cir. 1998)
Fresenius Kabi USA, LLC v. United States of America (District Court, District of Columbia 2026)
Osullivan, M.D. v. U.S. Department of Health and Human Services (District Court, District of Columbia 2024)
Vanda Pharmaceuticals Inc. v. Food and Drug Administration (District Court, District of Columbia 2024)
Friends of the Earth v. NRC (D.C. Cir. 2021)
Smith Lake Improvement v. FERC (D.C. Cir. 2015)
Minisink Residents for Environmental Preservation & Safety v. Federal Energy Regulatory Commission (D.C. Cir. 2014)
National Mining Ass'n v. Office of Hearings & Appeals (District Court, District of Columbia 2011)
National Mining Association v. Office of Hearings and Appeals (District Court, District of Columbia 2011)
Council Tree Communications, Inc. v. Federal Communications Commission (3d Cir. 2007)
Council Tree Comm v. FCC (3d Cir. 2007)
City of Tacoma v. Federal Energy Regulatory Commission (D.C. Cir. 2003)
32 County Sovereignty Committee v. Department of State (D.C. Cir. 2002)
Can Assn Petro v. FERC (D.C. Cir. 2001)
Canadian Ass'n of Petroleum Producers v. Federal Energy Regulatory Commission (D.C. Cir. 2001)
Commander Aircraft Co. v. Federal Aviation Administration (D.C. Cir. 2001)
Oxy Usa, Inc. v. Federal Energy Regulatory Commission (Fed. Cir. 1995)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

Opinion for the Court filed PER CURIAM.

ON MOTION TO DISMISS

PER CURIAM:

Tennessee Gas Pipeline Company (“Tennessee”) petitions for review of two Federal Energy Regulatory Commission (“Commission”) orders. The first order denied Tennessee’s request to impose a “reconciliation surcharge” upon its customers. The second order denied Tennessee’s request for rehearing. See Tennessee Gas Pipeline Co., 56 FERC ¶ 61,342 (Aug. 30, 1991); and Tennessee Gas Pipeline Co., 63 FERC ¶ 61,176 (May 7, 1993).

On June 7, 1993, Tennessee filed a “Request for Clarification or Rehearing” of the Commission’s May 7th order. On July 6, 1993, Tennessee filed this petition for review. Tennessee believed it was required to seek judicial review within 60 days of the Commission’s order dismissing its first request for rehearing. See 15 U.S.C. § 717r (providing for the filing of a petition for review within 60 days of the Commission’s disposition of a request for rehearing). Tennessee’s June 7 request remains pending before the Commission. See Tennessee Gas Pipeline Co., No. RP91-203-031 (July 7, 1993) (“Order Granting Rehearing Solely for the Purpose of Further Consideration”).

It is well-established that a party may not simultaneously seek both agency reconsideration and judicial review of an agency’s order. See Wade v. FCC, 986 F.2d 1433 (D.C.Cir. 1993) (per curiam) (citing cases). 1 Moreover, the court has characterized a petition for review filed while a re *981 quest for agency reconsideration is pending as “incurably premature.” See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133-34 (D.C.Cir. 1989) (per curiam) (holding that a premature petition for review must be dismissed for lack of jurisdiction); United Transportation Union v. ICC, 871 F.2d 1114, 1116-18 (D.C.Cir. 1989) (same).

The same principle applies here. As the parties recognize, Tennessee’s initial request for rehearing was a prerequisite to judicial review. See 15 U.S.C. § 717r. By filing its second request for agency rehearing, which was not required by statute, Tennessee chose “between rehearing before the agency or immediate court review.” TeleSTAR, 888 F.2d at 134.

Accordingly, we hold that Tennessee’s petition for review is “incurably premature” and must be dismissed for lack of jurisdiction. Once the Commission has resolved the pending request for rehearing, Tennessee may petition for review of that order as well as the two prior orders. The Commission’s motion to dismiss is

Granted.

. The court in Wade also held that timing is irrelevant — "the danger of wasted judicial effort ... arises whether a party seeks agency reconsideration before, simultaneously with, or after filing an appeal or petition for judicial review.” 986 F.2d at 1434.

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