American Public Gas Ass'n v. Federal Power Commission

Decision Date18 November 1976
Docket NumberNo. 76-2000,76-2000
Citation555 F.2d 852,180 U.S.App.D.C. 380
Parties, 20 P.U.R.4th 232 AMERICAN PUBLIC GAS ASSOCIATION et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, and six other cases. * :
CourtU.S. Court of Appeals — District of Columbia Circuit

Daniel J. Guttman, White Plains, N.Y., was on the memoranda for petitioners James Abourezk, et al.

James L. Feldesman, Washington, D.C., was on the memoranda for petitioner Consumer Federation of America.

Carla Vivian Bello, Newark, N.J., was on the memoranda for petitioner New Jersey Bd. of Public Utility Com'rs.

Warren Spannaus, St. Paul, Minn., was on the memoranda for petitioner, State of Minn.

Rodney A. Wilson, St. Paul, Minn., was on the memoranda for petitioner, Minn. Public Service Commission.

Steven M. Schur, Madison, Wis., was on the memoranda for petitioner, Public Service Commission of Wis. Stephen I. Schlossberg, Detroit, Mich., was on the memoranda for petitioner United Automobile Aerospace and Agricultural Implement Workers of America.

David B. Graham, Washington, D.C., was on the memoranda for petitioner Nat. Rural Electric Cooperative Assn.

Frank W. Frisk, Jr., Washington, D.C., was on the memoranda for petitioner American Public Power Assn.

John E. Gunther, San Francisco, Cal., was on the memoranda for petitioner U.S. Conference of Mayors.

Charles F. Brannan, Denver, Colo., was on the memoranda for petitioner National Farmers Union.

Lee D. Sinclair, Potomac, Md., was on the memoranda for petitioner Nat. Farmers Organization.

James F. Flug, Washington, D.C., was on the memoranda for petitioner Energy Action Committee.

James L. Magavern, Buffalo, N.Y., was on the memoranda for petitioner County of Erie, N.Y.

Leslie G. Foschio, Buffalo, N.Y., was on the memoranda for petitioner City of Buffalo, N.Y.

Drexel D. Journey, General Counsel, Federal Power Commission, Washington, D.C., for respondent.

Peter H. Schiff, Gen. Counsel, New York City, and Richard A. Solomon and Sheila S. Hollis, Washington, D.C., were on the memoranda for Public Service Commission of the State of N.Y.

Gordon P. MacDougall, Washington, D.C., was on the memoranda for Commonwealth of Pennsylvania, et al.

Gordon Gooch, Washington, D.C., with whom Thomas G. Johnson, Houston, Tex., was on the memoranda for Tenneco Oil Co; Pennzoil Co., Pennzoil Producing Co.; Pennzoil Offshore Gas Operators, Inc.; Pennzoil La. and Texas Offshore, Inc.; The Rodman Corp., and Texasgulf, Inc. and Felmont Oil Corp.

David G. Stevenson, Tulsa, Okl., was on the memoranda for Amerada Hess Corp.

David M. Whitney, Houston, Tex., was on the memoranda for Aminol USA, Inc., et al.

William H. Emerson, Tulsa, Okl., was on the memoranda for Amoco Production Co.

R.F. Generally, Washington, D.C., was on the memoranda for Ashland Oil Inc. and General American Oil Co. of Tex.

E.J. Kremer, Jr., and D. Aston, Dallas, Tex., was on the memoranda for Atlantic Richfield Co.

Edwin S. Nail, Boston, Mass., was on the memoranda for Cabot Corp.

Justin R. Wolf, Washington, D.C., was on the memoranda for The Cal. Co., et al. and Chevron Oil Co., Western Div.

Sam Riggs, Jr., Liberal, Kan., was on the memoranda for Cities Service Oil Co.

W. Neal Powers, Jr., Houston, Tex., was on the memoranda for Estate of E. Cockrell, Jr.

Tom Burton and John M. Badger, Houston, Tex., were on the memoranda for Continental Oil Co.

T. Brooke Farnsworth and William Neal Powers, Jr., Houston, Tex., were on the memoranda for Damson Oil Corp.

W.E. Notestine, Amarillo, Tex., was on the memoranda for Diamond Shamrock Corp.

Scott Anger, Washington, D.C., was on the memoranda for Enserch Inc.

Martin N. Erck, Paul W. Wright and Edmunds Travis, Jr., Houston, Tex., were on the memoranda for Exxon Corp.

Wm. Neal Powers, Jr., Houston, Tex., was on the memoranda for Freeport Minerals Co.

Cloy D. Monzingo, Houston, Tex., was on the memoranda for Getty Oil Co.

B. James McGraw was on the memoranda for Gulf Oil Corp.

H. Lamar Curtis, Jr., Houston, Tex., was on the memoranda for J.M. Huber Corp.

Robert W. Henderson, Dallas, Tex., was on the memoranda for Hunt Oil Co., Inc.

Arthur S. Berner, New York City, was on the memoranda for Inexco Oil Co. Derrill Cody and Patricia D. Robinson, Oklahoma City, Okl., were on the memoranda for Kerr-McGee Corp.

William A. Sackmann, Findlay, Ohio, was on the memoranda for Marathon Oil Co.

Tom P. Hamill, R.D. Haworth and Roscoe C. Elmore, Jr., Houston, Tex., were on the memoranda for Mobil Oil Corp.

John L. Williford, Bartlesville, Okl., was on the memoranda for Phillips Petroleum Co.

Paul W. Hicks and Jimmy C. Bailey, Dallas, Tex., were on the memoranda for Placid Oil Co.

Ronald E. Jarrett and Ronald J. Jacobs, Tulsa, Okl., were on the memoranda for Skelly Oil Co.

Richard F. Remmers, Oklahoma City, Okl., was on the memoranda for Sohio Petroleum Co.

William S. Jameson, Dallas, Tex., was on the memoranda for Southern Union Production Co.

James D. Olsen, Richardson, Tex., was on the memoranda for Sun Oil Co.

Roger L. Brandt, Houston, Tex., was on the memoranda for Texaco, Inc.

Michael B. Silva and Phyllis Rainey, Houston, Tex., were on the memoranda for Tenneco Oil Co.

George W. Hugo, Houston, Tex., was on the memoranda for Texasgulf, Inc.

Kenneth L. Riedman, Jr., Los Angeles, Cal., and Richard F. Wornson, Valencia, Cal., were on the memoranda for Union Oil Co. and Union Oil Company of Cal.

Alexander E. Bennett, David Bonderman, Washington, D.C., Willard B. Wagner, Jr., and Pat F. Timmons, Houston, Tex., were on the memoranda for Superior Oil Co.

Tilford A. Jones, Bethesda, Md., and C. William Cooper, Falmouth, Mass., were on the memoranda for United Distribution Companies.

Harold B. Scoggins, Washington, D.C., was on the memoranda for Independent Petroleum Ass'n of America.

Jerome McGrath, Washington, D.C., was on the memoranda for Interstate Natural Gas Ass'n.

Paul E. Goldstein and Paul W. Mallory, Chicago, Ill., were on the memoranda for Natural Gas Pipeline Co. of America.

Eugene W. Ward and T.E. Midyett, Jr., Nashville, Tenn., were on the memoranda for Tenn. Public Service Commission.

Jeffrey A. Meith, Oroville, Cal., was on the memoranda for Southern Cal. Gas Co.

James L. Bomar, Jr., Shelbyville, Tenn., was on the memoranda for East Tennessee Group.

Frank P. Saponaro, Jr., Washington, D.C., was on the memoranda for Statex Petroleum Inc.

J. David Mann, Jr., Washington, D.C., was on the memoranda for Laclede Gas Co.

Peter W. Hanschen, Los Angeles, Cal., was on the memoranda for Pac. Gas & Elec. Co.

Before: FAHY, Senior Circuit Judge; LEVENTHAL and ROBINSON, Circuit Judges.

ORDER

PER CURIAM:

The court has reached its decision of the venue question after consideration of the memoranda filed by counsel for petitioners and intervenors in this court and in the Fifth Circuit, of the relevant prior proceedings and pleadings in this matter, of paragraphs one and two of this court's order of December 13, 1976, herein, and of the oral argument before it.

It appearing to the court for reasons set forth in the accompanying per curiam filed this date that this court properly has jurisdiction and venue in these matters, it is

ORDERED by the court that respondent Federal Power Commission shall file the administrative record in respect of these matters in this court; and it is

FURTHER ORDERED by the court that the briefing schedule herein established by order of this court dated December 6, 1976,

remains in effect. Calendaring of oral argument on the merits will be expedited to the fullest extent possible.

PER CURIAM:

Following denial by the Federal Power Commission of rehearing of Opinion No. 770 by Opinion No. 770-A on November 5, 1976, petitions for review were filed in this court and, as well, in the Courts of Appeals for the Third, Fifth, Ninth and Tenth Circuits. The Commission has advised that the first timely filings of such petitions occurred simultaneously in this circuit and the Fifth Circuit. The question arises as to the circuit in which litigation of Opinions Nos. 770 and 770-A should proceed. We conclude that it should go forward here.

I

Judicial review of a Commission order under the Natural Gas Act is appropriately instituted by a petition to this court, or to the court of appeals for any other circuit wherein a natural gas company to which the order relates is located or has its principal place of business. 15 U.S.C. Sec. 717r(b) (1970). That section further ordains that "[u]pon the filing of such petitions such court shall have jurisdiction, which upon the filing of the [administrative] record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part." These provisions are complemented by three additional specifications:

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.

28 U.S.C. Sec. 2112(a) (1970). See also S.Rep. No. 2129, 85th Cong., 2d Sess. 4 (1958), U.S. Code Cong. & Admin. News, 1958, p. 3996.

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