Atlantic Seaboard Corp. v. Federal Power Commission, 6532.

Decision Date31 January 1953
Docket NumberNo. 6532.,6532.
Citation201 F.2d 568
CourtU.S. Court of Appeals — Fourth Circuit

Edward S. Pinney, New York City (Jack W. Robbins, Richard DeY. Manning and Richard A. Rosan, New York City, C. E. Goodwin, Charleston, W. Va. and Cravath, Swaine & Moore, New York City, on brief), for petitioners.

W. Russell Gorman, Attorney, Federal Power Commission, Washington, D. C. (Bradford Ross, General Counsel, Bernard A. Foster, Jr., Assistant General Counsel, Reuben Goldberg and Sherman S. Poland, Attorneys, Federal Power Commission, Washington, D. C., on brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

The Atlantic Seaboard Corporation and the Virginia Gas Transmission Corporation, hereafter referred to as petitioners, have filed a petition with this court to review an order of the Federal Power Commission suspending certain increased rate schedules to March 9, 1953. They contend that the schedules were filed as a matter of law on August 15, 1952 and that the commission was without power to suspend them beyond February 15, 1953, and that, if it had such power, its action was unreasonable and arbitrary under the facts of the case and constituted an abuse of discretion. Pending the hearing of their petition they filed a motion asking that action on the commission's order be stayed after February 15, 1953 and that they be permitted after that date to put the increased rates into effect upon petition and the giving of bond as provided by statute. The commission has moved that the petition be dismissed on the ground that the court has no jurisdiction to entertain it and objects to the stay on this ground and also on the ground that the order was a lawful and proper exercise of the commission's power in the premises.

The facts are that petitioners on August 15, 1952 filed new gas tariffs with the commission containing rates higher than those then in effect. Petitioners stated in the papers accompanying the new tariffs that the higher rates were made necessary by the fact that on the same date its supplier, United Fuel Gas Company, filed with the commission increased rates which would increase petitioners' gas purchase costs by $2,000,000 per year. United Fuel Gas Company filed its higher rates on the same date claiming that they in turn were made necessary by the filing of increased rates on the same date by its supplier, Tennessee Gas Transmission Company, which would increase the gas purchase costs of United by $6,532,000 per year. The tariffs of all three companies increasing their rates were in fact filed with and received by the commission on August 15, 1952 and all of the tariffs were accompanied by supporting data. Staff members of the commission notified petitioners that the data furnished by petitioners failed to comply in certain particulars with the regulations of the commission; and petitioners, while contending that the data furnished was in compliance with the regulations and decisions of the commission, nevertheless supplied additional data on September 8 to meet these criticisms. Four days later, on September 12, 1952, the commission entered orders as to the filings of all three companies, finding it necessary and proper to enter upon hearings as to all of them and suspending the rates of United and Tennessee until February 15, 1953, but suspending the rates of petitioners until March 9, 1953, thus giving United and Tennessee the benefit of the filing date of August 15, 1952, when the increased rate schedules were filed by all companies, but denying it to petitioners and treating as their filing date, September 8, 1952, the date on which they filed the additional supporting data. Petitioners applied to the commission for a rehearing as to this and showed in their petition that their increased rates were based upon the increased rates of United and that, if the latter were put into effect on February 15 and the increased rates of petitioners were suspended until March 9, petitioners would suffer a loss of $17,500 per day for 22 days or a total of $385,000, which they would be unable to recoup. The petition for rehearing was denied.

The principal matter relied upon by the commission as failure on the part of the petitioners to comply with the filing regulations was the fact that the cost of service as shown in the supporting data was for the calendar year 1952 (five months actual and seven months estimated) instead of for "the most recent 12 months period or calendar year" as required by the regulations. It appears, however, that in its opinion No. 225 rendered in April 1952 involving rates of these same petitioners, the commission found that the proper test year was 1952, not 1951. The filing here was the third recently made by petitioners in which costs and other matters affecting its rates were set forth, and the commission received without protest on September 7, 1951, in connection with the second filing, data based on the test year 1952 (estimated). In its opinion No. 225 the commission said with respect to the use of 1952 as a test year:

"The applicants insist, and we agree, that, under the circumstances of this case, no past year is wholly representative of future expectations. Applicants\' operations underwent a substantial change in 1950 as a result of the commencement of operation of the new 26-inch line. Nor would the 1951 operations reflect normal conditions for the future because some of applicants\' market areas were in that year still largely in the stages of early development. Thus on this record, there is no choice but to accept the 1952 estimates, adjusted or otherwise, as the most reasonable basis for determining just and reasonable rates in this case. * * *
"Accordingly under the circumstances of this case, because of the foregoing and for the other reasons stated in the intermediate decision, we are of the opinion that the examiner properly found that the year 1952 stands as the more representative year for the purpose of testing the validity of applicant\'s present rate and estimates of costs of service — and for the determination of just and reasonable rates for the future."

Other matters relied on by the commission related to matters involved in the prior rate litigation, and as to these matters, petitioners were attempting to maintain in this proceeding the position formerly taken. It is a reasonable assumption that the commission had before it the facts as to all of these matters as a result of the filings theretofore made and the hearing had with respect to the first filing; but nevertheless petitioners supplied the data relating thereto as well as the cost of service for the year 1951 upon being advised by members of the commission's staff that this should be done. At all events, the commission admittedly had all required data before it in time to pass upon the schedules filed August 15 within the thirty days allowed by statute before they could be made effective and took action upon them within the thirty day period.

We agree with the commission that it is authorized by statute to prescribe rules and regulations under which increased rate schedules are to be filed. While the authority to prescribe rules and regulations is contained in section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c (c); which relates to the initial filing of rates and schedules, and not in section 4(d), which relates to changes in rates, the provisions of the statute must be construed together and it is not reasonable to give it an interpretation which would preclude the prescribing of rules and regulations with respect to the filing of rate increases where there is manifestly as much need for them as in the case of initial filings. We agree also that in the exercise of a sound discretion the commission might...

To continue reading

Request your trial
22 cases
  • Magnolia Petroleum Co. v. FEDERAL POWER COM'N
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 21, 1956
    ...the orderly administrative processes. Precisely this problem — an illegal suspension order — was presented in Atlantic Seaboard Corporation v. Federal Power Commission,29 4 Cir., 201 F.2d 568, and jurisdiction under Section 19(b) was sustained. I have searched in vain for those facts or leg......
  • Del. Riverkeeper Network v. Sec'y of the Pa. Dep't of Envtl. Prot.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 30, 2017
    ...that [§ 717r(b), governing appeals from FERC,] does not require that an order be a ‘final’ one[.]"); Atl. Seaboard Corp. v. Fed. Power Comm'n, 201 F.2d 568, 572 (4th Cir. 1953) ("The commission argues that the order which we are asked to review is not a definitive or final order of the comm......
  • Callery Properties, Inc. v. Federal Power Com., 20872
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • September 22, 1964
    ...a legal right nor a practicable means for the producers to recapture that portion of the excessive refunds. Atlantic Seaboard Corp. v. FPC, 4 Cir., 1953, 201 F.2d 568, 572; Sohio Petroleum Co. v. FPC, 10 Cir., 1961, 298 F.2d 465, 467. The result, of course, would be that the consumers durin......
  • Wollman v. Geren
    • United States
    • U.S. District Court — Eastern District of Virginia
    • March 17, 2009
    ...procedural orders or orders which do not finally determine some substantive rights of the parties.'" (quoting Atlantic Seaboard Corp. v. Fed. Power Comm'n, 201 F.2d 568, 572 (1953) (alteration For example, in Bennett v. Spear, the Supreme Court held that a Biological Opinion of the Fish and......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT