Amerada Petroleum Corp. v. FEDERAL POWER COM'N

• Decision Date: 09 December 1964
• Docket Number: No. 7781.,7781.
• Citation: 338 F.2d 808
• Parties: AMERADA PETROLEUM CORPORATION, Sunray DX Oil Company, Texaco Inc., Humble Oil & Refining Company, Gulf Oil Corporation, Union Producing Company, Jake L. Hamon, George H. Coates, Edwin L. Cox and Lamar Hunt, Petitioners, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.2d 808 (1964)

AMERADA PETROLEUM CORPORATION, Sunray DX Oil Company, Texaco Inc., Humble Oil & Refining Company, Gulf Oil Corporation, Union Producing Company, Jake L. Hamon, George H. Coates, Edwin L. Cox and Lamar Hunt, Petitioners, v. FEDERAL POWER COMMISSION, Respondent.

No. 7781.

United States Court of Appeals Tenth Circuit.

October 23, 1964.

Rehearing Denied December 9, 1964.

Homer E. McEwen, Jr., Tulsa, Okl., and James J. Flood, Jr., Houston, Tex., for petitioners.

Josephine H. Klein, Washington, D. C. (Richard A. Solomon, General Counsel, and Howard E. Wahrenbrock, Solicitor, Federal Power Commission, on the brief), for respondent.

Before BREITENSTEIN, HILL and SETH, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is a joint petition of six corporations and four individuals to review the respondent Commission's Opinion 422 and order of March 23, 1964, as affirmed on rehearing by Opinion 422-A and order issued May 27, 1964. The petitioners are all natural-gas companies within the meaning of the Natural Gas Act of 1938, as amended.¹ The petitions are brought under Section 19(b) of that Act. The same order of the Commission is under attack in the District of Columbia, Third, Fifth, and Sixth Circuits. The first petition filed was this one in the Tenth Circuit. Venue lies in the Tenth Circuit as to petitioner Sunray DX Oil Company but not as to the other petitioners.

Consideration must be given first to the Commission's motion to dismiss as to petitioner Sunray DX Oil Company for lack of jurisdiction. The Commission says that Sunray has lost its right to object to the order by failure to meet procedural requirements; and that, because Sunray is not aggrieved by the order, it may not bring a petition to review under Section 19(b).

We are met at the start by a barrier of the Commission's making. The Commission has not filed the certified record of its proceedings as required by Section 19(b). Instead it has moved for an enlargement of time for certification of the record "until further order of the Court after resolution of the preliminary issues." In its motion to dismiss Sunray and in its supporting statements and briefs the Commission repeatedly makes record references. Without the record these references are meaningless. In the circumstances we are limited to consideration of the allegations of the petition.

The petition shows that the petitioners entered into separate contracts with various interstate pipeline companies for the sale of natural gas produced from their respective properties located in Texas Railroad Commission District No. 4; that they filed their contracts with the Commission as rate schedules and concurrently filed Applications for Certificates of Public Convenience and Necessity to obtain authority to make their sales for resale in interstate commerce; that the Commission ordered a consolidated hearing; that at the hearing the petitioners jointly offered certain evidence in support of their applications; that the examiner rejected the evidence; that the decision of the examiner granted the certificates with conditions attached; that the petitioners filed timely exceptions to the examiner's decision; that the Commission sustained the examiner on the rejection of the proffered evidence; and that the Commission held that certificates should be issued subject to the following conditions:

1. An initial price in excess of 16 cents per Mcf was prohibited;

2. Decision on refunds was referred;

3. A moratorium on price increases in excess of 18 cents was ordered; and

4. Decision on take-or-pay-for contract provisions was made subject to disposition in a rule-making proceeding.

The petitioners duly sought rehearing and, on the same day the rehearing was denied, the petition to review was filed in this court. The petition sets forth the grounds on which relief is sought, incorporates a motion for leave to adduce additional evidence, and concludes with an appropriate prayer for relief.

We find that the petition satisfies the requirements of Section 19(b) and we decline to give consideration to matters said to be established by a record which is not before us. Without the record the grounds asserted in the Commission motion form no basis for the dismissal of Sunray.

The Commission has also moved to dismiss the petition on the ground that venue as to all the joint petitioners does not lie in the Tenth Circuit. The petition alleges venue only as to Sunray.

Section 19(b) provides that a person aggrieved by a Commission order may obtain a review of such order "in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia."

Section 2112(a) of 28 U.S.C. provides that if proceedings have been instituted in two or more courts of appeals with respect to the same order the board or commission concerned shall file the record in the court where the proceedings with respect to the order were first instituted. The other courts shall then transfer the proceedings before them to the...