Martin v. Fed. Energy Comm'n., 98-1398

• Decision Date: 25 January 2000
• Docket Number: No. 98-1398,98-1398
• Citation: 199 F.3d 1370
• Parties: (D.C. Cir. 2000) Frederick W. Martin, Petitioner v. Federal Energy Regulatory Commission, Respondent Portland Natural Gas Transmission System, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1370

199 F.3d 1370 (D.C. Cir. 2000)

Frederick W. Martin, Petitioner v. Federal Energy Regulatory Commission, Respondent

Portland Natural Gas Transmission System, Intervenor

No. 98-1398

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted October 15, 1999

Decided January 25, 2000

On Petition for Review of Orders of the Federal Energy Regulatory Commission

Frederick W. Martin, appearing pro se, was on the briefs for petitioner.

Jay L. Witkin, Solicitor, Federal Energy Regulatory Commission, John H. Conway, Deputy Solicitor, and David H. Coffman, Attorney, were on the brief for respondent.

George H. Williams, Jr. and Gunnar Birgisson were on the brief for intervenor.

Before: Williams, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

Frederick Martin petitions for review of a decision of the Federal Energy Regulatory Commission authorizing the construction of a new pipeline that would traverse part of Mr. Martin's property. Despite Mr. Martin's failure to designate the correct order in his petition for review, we hold that we have jurisdiction to review the Certificate Order. Because the Commission's decision was not arbitrary and capricious, we deny the petition.

I. Background

In 1997 the Commission authorized the Portland Natural Gas Transmission System to construct a pipeline nearly one mile of which would use an existing right-of-way through Mr. Martin's farm in North Stratford, New Hampshire. Portland Natural Gas Transmission Sys., 80 FERC p 61,345 (1997) (the "Certificate Order"). The farm was established by an ancestor of Mr. Martin's in the early 1830s and the farmhouse and surrounding 112-acre tract are characteristic of early 19th century building and farming patterns. Mr. Martin has improved the farm but maintained its historic character and function. The property was listed in the National Register of Historic Places one year after the Commission authorized Portland to construct the pipeline.

Before the Commission, Mr. Martin challenged the plan to build the pipeline across his property upon various environmental grounds, alleging that the pipeline would damage the open fields and other scenic and natural resources on his property and endanger the historic farmhouse. Mr. Martin suggested an alternative route for the pipeline, but the Commission rejected that route in favor of the Portland plan to use the existing right-of-way. Mr. Martin requested rehearing but the Commission denied his application. Portland Natural Gas Transmission System, 83 FERC p 61,080 (1998) (the "Rehearing Order").

II. Analysis

Although Mr. Martin seeks to challenge the Commission's Certificate Order, his petition for review mentions only the Rehearing Order. Before we reach the merits of Mr. Martin's argument, therefore, we must determine whether we have jurisdiction to hear his claim.

A. Jurisdiction

After the Commission denied Mr. Martin's request for rehearing, he filed a petition for review and a motion for stay of construction. In the petition, Mr. Martin sought review of the Commission's Rehearing Order, in which the Commission had denied his request that the agency reconsider its decision to grant the certificate to Portland. It is clear from Mr. Martin's briefs before this court, however, that what he really wants is review of the Certificate Order, which is the order actually authorizing Portland to construct the pipeline across his property.

Under 15 U.S.C. 717r(b): "Any party ... aggrieved by an order issued by the Commission ... may obtain a review of such order in the court of appeals ... by filing ... a written petition praying that the order ... be modified or set aside...." Mr. Martin is aggrieved by the Certificate Order, not the Rehearing Order, which simply denied rehearing. Indeed, an order denying rehearing is unreviewable except insofar as the request for rehearing was based upon new evidence or changed circumstances. See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 278-80 (1987).

The Commission argues that, because Mr. Martin failed to designate the Certificate Order in his petition for review this court lacks jurisdiction to review that Order. According to the Commission, the two orders do not "merge" such that an appeal of the Rehearing Order may be construed as an appeal of the Certificate Order. Cf. Conecuh-Monroe Community Action Agency v. Bowen, 852 F.2d 581, 586 (D.C. Cir. 1988) (noting that, where district court simultaneously denied preliminary injunction and entered judgment on underlying complaint, "the preliminary injunction question ... merged into the final judgment").

In general, this court reviews only the order(s) designated in the petition for review. See Fed. R. App. P. 15(a) (1998) ("petition must ... designate ... the order or part thereof to be reviewed"); see also John D. Copanos & Sons, Inc. v. FDA, 854 F.2d 510, 527 (D.C. Cir. 1988).^* The failure to designate an order in the petition is not necessarily fatal to its review, however. As we said in Southwestern Bell Telephone Co. v. FCC, a party may demonstrate its intention to appeal from one order despite referring only to a different order in its petition for review if the petitioner's intent " 'can be fairly inferred' " from the petition or documents filed more or less contemporaneously with it. 180 F.3d 307, 313 (D.C. Cir. 1999) (quoting Brookens v. White, 795 F.2d 178, 180 (D.C. Cir. 1986)).

In Southwestern Bell, the FCC had denied a local exchange carrier's petition for rehearing of an Investigation Order in which the agency had found that the carrier had underestimated its future tariff requirements. See id. at 309-10.Southwestern Bell then petitioned this court for review, citing only the Reconsideration Order. See id. Upon examination of Southwestern Bell's petition for review and its subsequent filings, we found that "nothing prior to the brief filed in this court ... gave the Commission any notice of Southwestern Bell's intent to seek review of the Investigation Order." Id. at 313. The petition designated for review only the Reconsideration Order and only that order was appended to the petition; likewise, the docketing statement named only the Reconsideration Order and only that order was attached to it; and the preliminary statement of issues focused upon Southwestern Bell's petition for review of the Reconsideration Order. See id.

Like the petitioner in Southwestern Bell, Mr. Martin designated in his petition for review only the order denying rehearing, but unlike the earlier petitioner, he made his intent to seek review of the underlying order fairly inferable from his contemporaneous filings. On the same day that Mr. Martin filed his petition for review, he filed a motion to stay the construction of a portion of the pipeline pending review of his petition. The motion for stay bespeaks in two ways Mr. Martin's intent to seek review of the Certificate Order.

First, by attaching to the motion a copy of his application to the Commission for rehearing, in which he cites and discusses the Certificate Order, Mr. Martin identified the order from which his dispute with the Commission arose. Second, the nature of the motion for stay itself sufficed to indicate Mr. Martin's purpose in filing his petition for review. He sought a stay in order to prevent the irreparable harm to his property that allegedly would attend the construction of the pipeline. Because Portland clearly derived its authority to construct the pipeline from the Certificate Order, Mr. Martin's motion for stay was necessarily directed to that order. And if Mr. Martin sought to stay enforcement of the Certificate Order, then he must also have meant to seek review of the Certificate Order, not the Rehearing Order....