259 F.2d 921 (D.C. Cir. 1958), 14584, Virginia Petroleum Jobbers Ass'n v. Federal Power Commission
|Citation:||259 F.2d 921|
|Party Name:||VIRGINIA PETROLEUM JOBBERS ASSOCIATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Blue Ridge Gas Company, Intervenor. Petition for review of order of the Federal Power Commission, No. 14583. VIRGINIA PETROLEUM JOBBERS ASSOCIATION, Appellant, v. FEDERAL POWER COMMISSION, Appellee.|
|Case Date:||August 29, 1958|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued July 23, 1958.
Motion for Reconsideration of Order Denied Oct. 23, 1958.
Messrs. Bryce Rea, Jr., Gordon Allison Phillips and Donald E. Cross, Washington, D.C., for petitioner in No. 14,583 and appellant in No. 14,584.
Messrs. Willard W. Gatchell, General Counsel, Federal Power Commission, Howard E. Wahrenbrock, Solicitor, Federal Power Commission, and Robert L. Russell, Assistant General Counsel, Federal Power Commission, for respondent in No. 14,583 and appellee in No. 14,584.
Mr. H. Douglas Weaver, Washington, D.C., for intervenor Blue Ridge Gas Co., in No. 14,583.
Before WILBUR K. MILLER, BAZELON and BURGER, Circuit Judges.
This case is before us on petitioner's motion for a stay or injunction pending appeal, its motion for a limited consolidation, and respondent's cross motions to dismiss.
Petitioner Virginia Petroleum Jobbers Association (Jobbers) markets petroleum products in Virginia. In proceedings before the State Corporation Commission of Virginia, Jobbers intervened in opposition to petitions tendered by the Blue Ridge Gas Company (Blue Ridge), for certificates of public necessity and convenience that would authorize Blue Ridge to extend its intra-state natural gas distribution to retail consumers in three cities in Rockingham County. Following a hearing, in which Jobbers participated, the requested certificates were issued to Blue Ridge by the State Commission.
Blue Ridge also filed an application with the respondent Federal Power Commission for an order, pursuant to Section 7(a) of the Natural Gas Act, 15 U.S.C.A. § 717f(a), directing the Atlantic Seaboard Corporation (Atlantic) to establish physical connections with existing and proposed Blue Ridge facilities for distributing natural gas to the three cities in question. Atlantic is a natural gas company, certificated by the Federal Power Commission to transport and sell natural gas in interstate commerce. Both Atlantic and Jobbers filed timely petitions to intervene in the Power Commission proceedings on the Blue Ridge application, pursuant to Section 15(a) of the Natural Gas Act, 15 U.S.C.A. § 717n(a). The Commission granted the petition of Atlantic but denied that of Jobbers. In its order denying intervention, the Commission stated that the questions Jobbers sought to raise at the hearing on the Blue Ridge application 'concern primarily matters pertaining to the local distribution of natural gas' and that this 'question of local public interest has been resolved by the local authorities.' A timely petition for rehearing was then filed by Jobbers, alleging that in view of the fact that its members competed in the fuel market not only with Blue Ridge, but also with Atlantic, it had a right to intervene in the Commission proceedings pursuant to this court's decision in National Coal Association v. Federal Power Commission, 1951, 89 U.S.App.D.C. 135, 191 F.2d 462. Stating that the grounds presented for rehearing were fully considered in its prior action denying intervention, the Commission denied rehearing and a stay of proceedings on July 17th. The hearing on the Blue Ridge application was scheduled to, and did, begin on July 21st, without participation by Jobbers, and we are advised by the Commission that the hearing concluded on July 23rd.
On July 19th Jobbers filed a complaint in the District Court seeking a mandatory injunction to compel the Power Commission to permit Jobbers to intervene in the Blue Ridge proceedings. Concurrently Jobbers sought a temporary restraining order, staying the hearing scheduled for July 21st until such time as the court could rule on the merits of the complaint. On July 22d the District Court denied the temporary restraining order, finding that as Jobbers sought to intervene in a Commission proceeding it was a 'party to a proceeding' and it was thus afforded adequate opportunity for judicial review in an appropriate court of appeals under Section 19(b) of the Natural Gas Act, 15 U.S.C.A. § 717r(b). Jobbers thereupon immediately filed in this court a petition for an injunction pending appeal, pursuant to the All Writs provision of the Judicial Code, 28 U.S.C. § 1651(a), praying for the same relief sought below in the motion for a temporary restraining order. This petition bears our docket number 14584.
On July 21st Jobbers also filed in this court, pursuant to Section 19(b) of the Act, 15 U.S.C.A. § 717r(b), a petition to review the orders of the Commission denying its petitions for intervention and rehearing. The petition was accompanied by concurrent motions for a stay pending review and for consolidation of the stay motion and the petition
for an injunction for the limited purposed of a single oral argument. These papers bear our docket number 14583. Following oral argument, the Commission filed its cross motions to dismiss petitioner's motions for an injunction or stay.
For the sake of convenience we decided to hear argument on the petition for an injunction and the motion for a stay at the same time. The motion for consolidation for limited purpose of oral argument was, therefore, granted.
At the time of oral argument, counsel for the Commission agreed with the opinion of the District Court that Jobbers' remedy in this case lies in Section 19(b) of the Natural Gas Act, and that if Jobbers has a right to intervene in the Blue Ridge proceedings it likewise has a right to judicial review in this court of the order denying intervention. We also agree with this longstanding interpretation of the Natural Gas Act. Memphis Light, Gas & Water Division v. Federal Power Commission, 1957, 100 U.S.App.D.C. 205, 243 F.2d 628; City of Pittsburgh v. Federal Power Commission, 1956, 99 U.S.App.D.C. 113, 237 F.2d 741; National Coal Association v. Federal Power Commission, 1951, 86 U.S.App.D.C. 135, 191 F.2d 462; Alston Coal Co. v. Federal Power Commission, 10 Cir., 1943, 137 F.2d 740. As Jobbers has an adequate remedy within the four corners of the Act, its petition for an extraordinary writ of injunction is dismissed. Easton Publishing Co. v. Federal Communications Commission, 1950, 87 U.S.App.D.C. 344, 185 F.2d 987.
We turn next to Jobbers motion for a stay of further proceedings pending completion of our review of the Commission's orders denying intervention or rehearing. At the outset we must consider the Commission's contention that the Judicial review provisions of the Natural Gas Act, §§ 19(b, c), 15 U.S.C.A. §§ 717r(b, c), do not permit us to issue the stay requested. The Commission has conceded that the...
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