Atmos Energy Corp. v. Public Service Com'n

• Decision Date: 19 February 2008
• Docket Number: No. A07A1874.,No. A07A1880.,A07A1874.,A07A1880.
• Citation: 290 Ga. App. 243,659 S.E.2d 385
• Parties: ATMOS ENERGY CORPORATION v. GEORGIA PUBLIC SERVICE COMMISSION. Georgia Public Service Commission v. Atmos Energy Corporation.
• Court: Georgia Court of Appeals

290 Ga. App. 243

659 S.E.2d 385

290 Ga.App. 243

ATMOS ENERGY CORPORATION v. GEORGIA PUBLIC SERVICE COMMISSION.

Georgia Public Service Commission v. Atmos Energy Corporation.

No. A07A1874.

No. A07A1880.

Court of Appeals of Georgia.

February 19, 2008.

Reconsideration Denied March 12, 2008.

Hulsey, Oliver & Mahar, Julius M. Hulsey, Jane A. Range, Gainesville, for appellant.

Thurbert E. Baker, Attorney General, Isaac Byrd, Deputy Attorney General, Sidney R. Barrett Jr., Daniel S. Walsh, Assistant Attorneys General, Matthew Joseph Hardy, for appellee.

BERNES, Judge.

Atmos Energy Corporation ("Atmos") filed a petition for judicial review in the Superior Court of Fulton County in which it challenged the administrative decision of the Georgia Public Service Commission ("PSC") authorizing certain rates Atmos could charge for gas service. The PSC moved to dismiss the petition on the ground that it was procedurally defective under the Georgia Administrative Procedure Act ("APA"), OCGA § 50-13-19(a) and (b). The superior court entered an order denying the motion to dismiss and affirming the decision of the PSC. In Case No. A07A1874, Atmos appeals, contending that the superior court erred in affirming the PSC's decision. In Case No. A07A1880, the PSC cross-appeals, contending that the superior court erred in denying its motion to dismiss.¹ For the reasons discussed below, we conclude that the superior court lacked jurisdiction to hear Atmos' petition for judicial review and therefore should have dismissed the petition.

The record reflects that Atmos is a natural gas distribution company that serves Gainesville and Columbus. As a natural gas company, Atmos is regulated by the PSC, and any increase in the rates Atmos charges its customers is subject to the PSC's approval. See OCGA §§ 46-2-20(a); 46-2-25(a). As such, before Atmos makes any change to the rates it charges customers, it must file notice of the proposed change with the PSC and the public at least 30 days before the proposed change is to take effect. See OCGA § 46-2-25(a). The PSC is then authorized to suspend the application of the proposed change for up to five months during which time it can hold hearings on the proposal and then decide whether to approve the changed rates. See OCGA § 46-2-25(b).

On May 20, 2005, Atmos commenced a utility rate-change proceeding before the PSC in which it sought to increase its rates and charges to customers beginning on June 20, 2005. Pursuant to OCGA § 46-2-25(b), the PSC suspended application of the proposed increase for five months and then conducted a series of hearings on the matter. On November 21, 2005, the PSC entered a 12-page order that contained findings of fact and conclusions of law authorizing Atmos to increase its rates and charges in part, but also disagreeing with Atmos on several methodological and calculation issues. The order stated, at the bottom of each page, that it was a "Final Order." The order further provided, however, that "[a] more detailed Order explaining each item herein will follow."

On November 28, 2005, Atmos filed its petition for rehearing, reconsideration, and oral argument requesting that the PSC reconsider its November 21 order. See Rules of Georgia Public Service Commission, Ga. Comp. R. & Regs. 515-2-1-.08 (the "PSC Rules"). At its December 20, 2005 administrative session, the PSC conducted a voice vote on the petition for rehearing. The PSC voted to amend and modify a portion of its November 21 order to correct a calculation related to depreciation.

On January 19, 2006, Atmos filed its petition for judicial review in the Superior Court of Fulton County pursuant to the APA, OCGA § 50-13-19(a) and (b). In its petition, Atmos stated that it was petitioning for review from the PSC's November 21 order and the December 20 voice vote on the petition for rehearing.

On February 2, 2006, while Atmos' petition remained pending before the superior court, the PSC entered its "Order on Reconsideration and Final Order." The expanded 59-page order explained the PSC's rate-change ruling in much greater detail and corrected the calculation related to depreciation.

The PSC subsequently filed a motion to dismiss Atmos' petition for judicial review, contending that the petition was procedurally defective under the APA because the December 20 voice vote was not a reviewable decision. Atmos disagreed and further emphasized in its briefing and at oral argument before the superior court that it was not seeking to petition for review from the February 2 order, which Atmos argued was a mere nullity for various reasons. The superior court subsequently denied the PSC's motion to dismiss, holding that Atmos had "constructively petitioned for judicial review" from the February 2 order, and affirmed on the merits the PSC's decision concerning certain methodological and calculation issues made in the rate-change proceedings. These appeals followed.²

Case No. A07A1880

1. The PSC argues that the superior court erred in denying its motion to dismiss Atmos' petition for judicial review as procedurally defective under the APA, OCGA § 50-13-19(a) and (b). Judicial review of an administrative ruling by the PSC is controlled by the APA, OCGA § 50-13-1 et seq., and Chapter 2 of Title 46. Under the APA, a person who has exhausted all administrative remedies within the PSC and who is aggrieved by a final decision of the PSC in a contested case may petition for judicial review in the superior court, OCGA § 50-13-19(a), provided that the petition is filed "within 30 days after the service of the final decision of the [PSC] or, if a rehearing is requested, within 30 days after the decision thereon." OCGA § 50-13-19(b). If these procedural requirements are not met, the superior court lacks jurisdiction over the matter and "may take no action other than to dismiss the case." Dept. of Human Resources v. Lewis, 217 Ga.App. 399, 399-400, 457 S.E.2d 824 (1995). Additionally, in analyzing and interpreting the procedural requirements imposed by the APA, we look to "cases involving appellate rather than trial procedure [for] applicable authority." Campaign for a Prosperous Ga. v. Ga. Power Co., 174 Ga.App. 263, 265(1), 329 S.E.2d 570 (1985). Guided by these principles, we turn to the instant appeal.

(a) The November 21, 2005 order. Atmos argues that the November 21 order was a final decision under the APA and that the 30-day filing deadline imposed by OCGA § 50-13-19(b) was tolled because it filed a petition for rehearing, reconsideration, and oral argument before the PSC. We reject Atmos' argument because the November 21 order was not a final decision subject to judicial review.

As previously noted, in the text of its 12-page November 21 order, the PSC expressly stated that "[a] more detailed Order explaining each item herein will follow." The PSC further stated that "jurisdiction over this proceeding is expressly retained for the purpose of entering such further order or orders as [the PSC] may deem proper." Given this language, it is clear that the purpose of the order was to give Atmos notice of the PSC's thinking process and preliminary conclusions, and thereby afford Atmos an opportunity to influence and challenge that thinking process before final conclusions were reached. And, that is what Atmos did in this case by filing and pursuing its petition for rehearing. The PSC responded by issuing a 59-page final decision on February 2, 2006 that set forth the promised details, including revised depreciation calculations.

Under these circumstances, we conclude that the November 21 order was nothing more than an interim decision by the PSC. See Carr v. Carr, 238 Ga. 197, 232 S.E.2d 69 (1977) (holding that order was not final when it specifically reserved certain issues for later determination); Theo v. Dept. of Transp., 160 Ga.App. 518, 519(1), 287 S.E.2d 333 (1981) (noting that order is final when "there are no substantive issues remaining to be litigated in the case"). The labeling in the footer at the bottom of the pages that the decision was a "Final Order" does not change this conclusion. See In re Estate of Sims, 246 Ga.App. 451, 452, 540 S.E.2d 650 (2000) ("Although [an] order is denoted `Final Order,' it is substance and not nomenclature which determines the nature and finality of the order.").

It is well established that "[f]inality is an unyielding prerequisite to judicial review under [the APA]." (Punctuation omitted.) Dept. of Human Resources v. Williams, 130 Ga.App. 149, 151(1), 202 S.E.2d 504 (1973). Where, as here, an agency order is not a final decision but an interlocutory or interim one, the superior court lacks jurisdiction to consider the petition for review of that order. Majanovic v. Ga. Dept. of Human Resources, 163 Ga.App. 450, 451-452, 294 S.E.2d 669 (1982).

(b) The December 20, 2005 voice vote. Atmos also contends that it was entitled to seek judicial review within 30 days of the PSC's December 20 voice vote on the petition for rehearing, since the vote allegedly was a final decision subject to judicial review pursuant to OCGA § 50-13-19. We disagree because the voice vote was not an effective "decision" that could be reviewed.

OCGA § 46-2-25(d) provides that

[a]ny action taken by the [PSC in a rate-change proceeding] shall be reduced to writing by the [PSC] and signed by the chairman and secretary thereof. All such actions and orders shall be effective from the date such actions are reduced to writing and are signed as provided by this subsection. No such action or order of the [PSC] may be given retroactive effect.

See also PSC Rule 515-2-1-.03(1), (2) ("Any action taken by the [PSC] shall be reduced to writing by the [PSC] and signed by the Chairman and Executive Secretary thereof.... All such actions and orders shall be effective from the date such actions are reduced to writing and are signed as herein provided. No such action or order of the [PSC] may be given retroactive...