City of Gallup v. F.E.R.C., s. 82-1069
| Decision Date | 11 March 1983 |
| Docket Number | Nos. 82-1069,82-1075,82-1099 and 82-1115,s. 82-1069 |
| Citation | 226 U.S.App.D.C. 379,702 F.2d 1116 |
| Parties | CITY OF GALLUP, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Public Service Company of New Mexico, Intervenor. (Four cases) |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Paul H. Keck, John T. Stough, Jr., and Michael F. Healy, Washington, D.C., were on the motion to dismiss and to transfer for intervenor, Public Service Co. of New Mexico.
Charles F. Wheatley, Jr., Philip B. Malter, Washington, D.C., and William Steven Paleos were on the motion in response to dismiss and to transfer, for petitioner, City of Gallup.
Jerome M. Feit and Arlene Pianko Groner, Federal Energy Regulatory Com'n, Washington, D.C., also entered appearances for respondent.
Before ROBINSON, Chief Judge, MacKINNON and EDWARDS *, Circuit Judges.
Opinion PER CURIAM.
These motions ask the court to function once again as finish-line umpires in a "race to the courthouse." The City of Gallup, New Mexico, seeks review in this court of an order of the Federal Energy Regulatory Commission setting rates for the Public Service Company of New Mexico. Meanwhile the company has filed petitions for review in the Tenth Circuit. The motions before us concern the question of which court first received a proper petition for review. The parties have given their best effort to the race, employing walkie-talkies, long-distance phone lines, split-second timing and cautious repetition. We dismiss Gallup's earliest petitions because it jumped the gun. Of the remaining petitions, three have been filed within a half minute of each other. The first of these has been filed in the Tenth Circuit and may well be premature. Nonetheless, we transfer this court's remaining case to the Tenth Circuit, which can most properly decide whether the petition was filed too early.
Review of decisions of the Federal Energy Regulatory Commission (FERC) under the Federal Power Act is provided for by section 313(b) of the Act and codified at 16 U.S.C. Sec. 825l (Supp. V 1981). An aggrieved party may seek review only if he has petitioned for rehearing before the Commission. An application for rehearing is deemed to have been denied if the Commission does not act upon it within thirty days. See 16 U.S.C. Sec. 825l (a). Judicial review may be sought in the court of appeals for the circuit in which the licensee or public utility is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia Circuit. Id. Sec. 825l (b). Once FERC files the record of the proceeding with the court of appeals in accordance with 28 U.S.C. Sec. 2112, that court gains exclusive jurisdiction to review the proceeding. Id.
Section 2112(a) of title 28 provides that when two or more petitions for review of an agency order are filed in different courts of appeals, the agency should file the record in the court of first filing. Other courts of appeals should then transfer any other petitions for review to that court. The court of first filing may then transfer the cases to any other court of appeals "[f]or the convenience of the parties in the interest of justice." 28 U.S.C. Sec. 2112(a). The mechanical first-filing rule has led to a "race to the courthouse" among opposing parties with divergent forum preferences.
On November 9, 1981, FERC issued Opinion No. 133 in Docket No. ER78-338, Public Service Company of New Mexico, 17 F.E.R.C.
p 61,123 (1981). The opinion sets rates which the Public Service Company of New Mexico (PNM) may charge its customers, including the City of Gallup, New Mexico (Gallup). On December 9, Gallup filed a timely petition for rehearing, asserting that various errors had been made by the Commission.
By an order dated January 8, 1982, FERC granted the petition for rehearing for purposes of further consideration. Gallup has alleged that there was some irregularity in the issuance of this order: Gallup received notice of it quite a while after the effective date, and it was not on the Commission's call-in listing of recent orders. Because it did not realize that this order had been issued, Gallup filed on January 11, 1982, its first petition for review (No. 82-1042) based on the denial of the petition for rehearing by operation of law. When Gallup learned of the January 8 FERC order, it petitioned for and was granted withdrawal of this petition for review. 1
On January 13, 1982, FERC held a public meeting concerning, inter alia, the application for rehearing, and it made a draft order available to the public. Gallup now characterizes this meeting as "deciding" to deny the application and making the order available to the public. PNM states that at the meeting FERC indicated its intention to deny the application for rehearing, but it decided to have the order redrafted and recirculated to the Commission for further voting. It is not listed on FERC's list of items on which action was taken at that meeting.
FERC normally issues its documents by posting them at 10:00 a.m. and 3:00 p.m. each day. Apparently Gallup anticipated that the denial of rehearing would be issued on January 20 because it filed in this court two petitions for review on that day, one at 9:05 a.m. (82-1069) and one at 3:01 p.m. (82-1075). Each petition for review referred to "the January 20, 1982 Federal Energy Regulatory Commission Order" that denied rehearing. FERC did not, however, issue a relevant order that day. Gallup therefore moved on January 26 to withdraw the petitions for review because the petitions were "filed before a final order was issued by the Federal Energy Regulatory Commission." Since that time, Gallup has moved that a ruling on the motion be deferred until the court determines whether the Commission's actions were ready for review after the January 13 meeting.
On January 29, the race began for real. Apparently both Gallup and PNM anticipated that an order would be issued on that day. Each party had a representative with a two-way radio (walkie-talkie) stationed near the bulletin board on which the rehearing denial was likely to be posted. The Gallup walkie-talkie was monitored at the clerk's office in this court. PNM had a receiver at its attorney's offices next to an open long-distance phone line to the clerk's office of the Tenth Circuit, PNM's circuit of choice. In addition, PNM had another person roving the area at FERC, and a paralegal observing and timing the filing at this court's clerk's office.
Just before 3:00 p.m. (E.S.T.) on January 29, 1982, a FERC employee dropped a batch of orders into a box on a guard's desk and began to pin copies of those orders on the public bulletin board. A PNM paralegal rifled through the box, found the denial of rehearing, and signaled the man with PNM's walkie-talkie. The message was rapidly transmitted by radio and telephone to Denver, and PNM filed its first petition for review in the Tenth Circuit at 12:59:25 p.m. (M.S.T.) (2:59:25 p.m. (E.S.T.)) (10th Cir. No. 82-1122).
Half a minute later, the FERC clerk pinned the rehearing denial on the bulletin board. The air became filled with frantic signals. At this court, a Gallup representative received the awaited signal and yelled, to one of the docket clerks, who shoved the petition for review into a time clock (No. 82-1099). The time imprinted on the original is 2:59:50 p.m. (E.S.T.). The clock records in tens of seconds.
In the clerk's office of the Tenth Circuit, a PNM representative also gave the signal, and a petition for review was again filed. (10th Cir. No. 82-1123). The handwritten time on the petition, signed by the Clerk of the Court, is 12:59:57.3 p.m. (M.S.T.) (2:59:57.3 p.m. (E.S.T.)). This was not, however, the end of the matter.
On February 3, 1982, FERC notified both PNM and Gallup that it considered all petitions filed before 3:00 p.m. on the 29th to be premature. This touched off another scramble to file new petitions for review. PNM won handily, filing No. 82-1148 in the Tenth Circuit at 9:35 a.m. (M.S.T.) (11:35 a.m. (E.S.T.)), while Gallup filed No. 82-1115 in this court at 11:44:50 a.m. (E.S.T.). Gallup cries foul, however, alleging that FERC must have tipped off PNM in light of how fast they filed.
FERC then filed a motion to dismiss Gallup's earlier petitions for review, based on an affidavit by its employee who pinned the order to the bulletin board. The employee stated that she waited until the clock on the wall indicated 3:00 p.m. before posting the denial of rehearing. When it came to light that the clock had been taken down that day to facilitate painting, FERC withdrew its motion to dismiss and requested that either this court or the Tenth Circuit direct it where to file the record. Gallup views this incident as a further effort by FERC to deny it a fair race to the courthouse.
PNM has moved that this court dismiss Gallup's first three petitions for review: the petition that has been withdrawn, and the two filed on January 20 in anticipation of an order. It also moves for transfer of the two remaining petitions to the Tenth Circuit on the basis of its first filing upon finding the order in the guard-desk box. Alternatively, it urges transfer based on the Tenth Circuit's familiarity with similar PNM cases.
Gallup opposes these motions and requests a determination that jurisdiction to review the FERC proceeding rests in this court. It requests a declaratory order that FERC should file the record in this court. PNM, of course, opposes this motion.
The following summary of petitions filed is provided for reference:
82-1042 Jan. 11 Gallup files thinking that its application for
rehearing was denied by operation of law.
This petition has been withdrawn.
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