Boston Gas Co. v. Federal Energy Regulatory Commission, No. 77-1473

• Decision Date: 12 May 1978
• Docket Number: No. 77-1473
• Parties: BOSTON GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Algonquin Gas Transmission Company et al., Intervenors.
• Court: U.S. Court of Appeals — First Circuit

Page 975

575 F.2d 975

BOSTON GAS COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Algonquin Gas Transmission Company et al., Intervenors.

No. 77-1473.

United States Court of Appeals, First Circuit.

Argued April 4, 1978.

Decided May 12, 1978.

L. William Law, Jr., Gen. Counsel, Boston, Mass., with whom F. X. O'Brien, Boston, Mass., was on brief, for petitioner.

Joseph G. Stiles, Atty., Washington, D. C., with whom Robert R. Nordhaus, Gen. Counsel, and Howard E. Shapiro, Sol., Washington, D. C., were on brief, for respondent.

Harry H. Voigt, New York City, with whom E. David Doane, Arthur M. Schwartzstein and LeBoeuf, Lamb, Leiby & MacRae, New York City, were on brief, for intervenor Orange and Rockland Utilities, Inc.

Francis H. Caskin, Washington, D. C., with whom Shannon & Morley, Washington, D. C., was on brief, for intervenor New Bedford Gas and Edison Light Co.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Because of shortages in the supply of natural gas, the Federal Power Commission in 1971 began issuing orders to gas pipeline operators to regulate the curtailment of the delivery of gas to their customers. In 1973 the Commission refined its policy by dividing the end users of natural gas into nine categories ranked in order of supply priority. Pipeline operators were to obtain from their wholesale customers a breakdown of their sales by gas end use in each of the nine priority categories for a base year. Curtailment of gas supply was then to be imposed on the pipeline's customers in proportion to the volume of gas they each distributed in the base year to gas users in the lowest priority categories.

Algonquin Gas Transmission Co. operated a natural gas pipeline and filed an end use curtailment plan in accordance with the Commission's orders in 1973. The Commission formally accepted the plan in 1975.

Later in 1975 and early in 1976 certain customers of Algonquin complained to the Commission that the implementation of Algonquin's plan resulted in unfair and discriminatory curtailment of their supply of natural gas. Hearings were held in June, 1976. In January, 1977, the administrative law judge issued an opinion substantially agreeing with the protests of the complaining customers and ordering Algonquin to take corrective action. Several parties to the hearing filed exceptions to the administrative law judge's opinion, including Boston Gas Co., the petitioner in the present case. Boston Gas Co. was a customer of Algonquin, but unlike those customers who initially sought relief from the Commission, Boston Gas was satisfied with the Algonquin curtailment plan. Moreover, since the total amount of gas curtailment Algonquin had to impose on its customers as a group would not be altered by the Commission's decision, if the complaining customers had their allocations increased by the Commission's order, the allocations of the rest of Algonquin's customers, including Boston Gas, would necessarily decrease.

On July 5, 1977 the Commission issued an "Order Modifying Initial Decision" which clarified, but did not substantially alter, its original decision to order Algonquin to modify the implementation of its curtailment plan. On August 8, 1977 Boston Gas filed an application for rehearing of the Commission's July 5 order. The Commission denied the application for rehearing on its merits on September 5. Boston Gas appealed to this court to review the Commission's action.

On March 13, 1978, only a few days before oral argument, the Commission filed a motion to dismiss Boston Gas' appeal on the grounds that the August 8 application for rehearing had not been filed within thirty days as required by statute and was therefore untimely. Because we agree that § 19(a) of the Natural Gas Act, 15 U.S.C. § 717r(a) bars our exercising jurisdiction over this appeal, we dismiss Boston Gas' petition without reaching the merits of its claims.

15 U.S.C. § 717r(a) provides that:

"Any person . . . aggrieved by an order issued by the Commission in a proceeding under this act to which such person, state, municipality, or state commission is a party may apply for a rehearing within thirty days after the issuance of such order. . . . Upon such application the Commission shall have power to grant or deny rehearing or to abrogate or modify its order without further hearing. . . . No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon. . . ."

There is no question that under the Natural Gas Act "an application for rehearing is a jurisdictional prerequisite to judicial review." Public Service Comm. of the State of New York v. Federal Power Commission, 177 U.S.App.D.C. 272, 290, 543 F.2d 757, 775 n. 116 (1974); Utah Power and Light Co. v. Federal Power Commission, 339 F.2d 436, 438 (10th Cir. 1964); Pan American Petroleum Corp. v. Federal Power Commission, 268 F.2d 827 (10th Cir. 1959); Dayton Power and Light Co. v. Federal Power Commission, 102 U.S.App.D.C. 164, 165, 251 F.2d 875, 876 (1958); Michigan Consolidated Gas Co. v. Federal Power Commission, 83 U.S.App.D.C. 395, 167 F.2d 264 (1948). Moreover, the language of several of the above cases strongly suggests that the time requirements of the statute are as much a part of the jurisdictional threshold as the mandate to file for a rehearing. See Pan American Petroleum Corp., supra, at 830; Dayton Power and Light Co., supra, 102 U.S.App.D.C. at 251, at 876; Michigan Consolidated Gas Co., supra, 83 U.S.App.D.C. at 395, at 264. The Commission itself has consistently held that the 30 day time limit "is a jurisdictional time limit which this Commission has no authority to extend." Turnbull & Zoch Drilling Co., 37 F.P.C. 255, 256 (1967). See Power Authority of the State of New York, 31 F.P.C. 467, 468 (1964); Phillips Petroleum Co., 24 F.P.C. 1008, 1010 (1960).

Despite this authority Boston Gas argues that we should not dismiss their appeal for three reasons: First, because other courts have permitted appeals to go forward despite "minor aberration(s)" and "irregularities" from the statute's technical requirements; second, because the purpose of the statute, that of giving the Commission an opportunity to modify or correct its decisions before submitting an issue to judicial review, was fulfilled in the present case; and, third, because by issuing a formal denial of the application for rehearing on the merits instead of dismissing the application as untimely the Commission has, in a sense, waived its objections to the application. We do not find any of these arguments to be sufficiently meritorious to enable us to accept jurisdiction over the appeal.

The cases called to our attention in which courts have bypassed procedural defects are all distinguishable from the current case in that they involved the application of traditional equitable principles or rules of statutory interpretation to situations where it was often unclear how the statute's requirements were meant to be implemented. In Public Service Comm. of the State of New York v. Federal Power Commission, supra, the petitioner had filed a timely application for a rehearing of a Commission order only to have that application denied by a subsequent order. The court simply and correctly held that a second application for a rehearing was not required in order to obtain judicial review of the contents of the second order. To interpret the statute otherwise would be to permit an endless cycle of applications for rehearing and denials. Dept. of Fish and Game of the State of California v. Federal Power Commission, 359 F.2d 165 (9th Cir. 1966) involved a similar analysis.

In Sam Rayburn Dam Electric Cooperative v. Federal Power Commission, 169 U.S.App.D.C. 281, 515 F.2d 998 (1975), petitioner did not interpret an ambiguous Commission order as affecting its interests. However, when the Commission issued an order denying applications for rehearing by other parties which clearly indicated that petitioner would be adversely affected, petitioner promptly filed for a rehearing. Recognizing that petitioner had acted in good faith and that it could not be said with certainty that petitioner was aggrieved by the original order (and therefore would have had no basis for an earlier complaint), the court held that submitting a timely application after the...