Five Flags Pipe Line Co. v. Department of Transp., Nos. 86-1556

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, and STARR and D.H. GINSBURG; D.H. GINSBURG
Citation854 F.2d 1438,272 U.S.App. D.C. 221
PartiesFIVE FLAGS PIPE LINE COMPANY, et. al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent. FIVE FLAGS PIPE LINE COMPANY, et al., Petitioners, v. DEPARTMENT OF TRANSPORTATION, Respondent.
Decision Date26 August 1988
Docket NumberNos. 86-1556,87-1127

Page 1438

854 F.2d 1438
272 U.S.App.D.C. 221
FIVE FLAGS PIPE LINE COMPANY, et. al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
FIVE FLAGS PIPE LINE COMPANY, et al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
Nos. 86-1556, 87-1127.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 9, 1988.
Decided Aug. 26, 1988.

Barbara Betsock, Atty., Dept. of Transp., with whom John R. Bolton, Asst. Atty. Gen., Washington, D.C., was on the brief, for respondent.

Gregory Grady, with whom Richard H. Davidson, Washington, D.C., was on the brief, for petitioners.

Before WALD, Chief Judge, and STARR and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

These consolidated petitions for review challenge, on procedural and substantive grounds, two notices issued by the Department of Transportation's Research and Special Programs Administration (RSPA). The notices establish user fee schedules for fiscal years 1986 and 1987 pursuant to section 7005 of the Comprehensive Omnibus Budget Reconciliation Act of 1986 (COBRA), Pub.L. No. 99-272, Sec. 7005, 100 Stat. 82, 140-41 (1986) (codified at 49 U.S.C.A. App. Sec. 1682a (Supp.1988)), that apply to entities operating pipeline facilities subject to regulation under the Natural Gas Pipeline Safety Act, 49 U.S.C. App. Sec. 1671 et seq. (1982) (NGPSA) and the Hazardous Liquid Pipeline Safety Act, 49 U.S.C. App. Sec. 2001 et seq. (1982) (HLPSA). We do not reach the merits of the challenges presented because we conclude that this court lacks jurisdiction to hear these petitions in the first instance. We further conclude, however, that we should exercise our discretion under 28 U.S.C. Sec. 1631 (1982) to transfer the petitions to the district court for a decision on the merits.

Page 1439

I. BACKGROUND

Section 7005 of the COBRA directs the Secretary of Transportation to

establish a schedule of fees based on the usage, in reasonable relationship to volume miles, miles, revenues, or an appropriate combination thereof, of natural gas and hazardous liquid pipelines. In establishing such schedule, the Secretary shall take into consideration the allocation of departmental resources.

* * *

* * *

[Such user fees] shall be assessed to the persons operating--

(A) all pipeline facilities subject to the Hazardous Liquid Pipeline Safety Act of 1979 ...; and

(B) all pipeline transmission facilities and all liquefied natural gas facilities subject to the jurisdiction of the Natural Gas Pipeline Safety Act of 1968....

49 U.S.C.A. App. Sec. 1682a(a)(1), (3) (Supp.1988). The fees collected are to be used only for "activities authorized under" the NGPSA and the HLPSA, id. at Sec. 1682a(c)(1)-(2), and the sum of fees collected in any fiscal year "shall be sufficient to meet the costs of activities" under the two acts, but is not to "exceed 105 percent of the aggregate of appropriations made for such fiscal year for activities to be funded by such fees." Id. at Sec. 1682a(d).

In July 1986, RSPA issued a notice stating that the agency had "adopted pipeline mileage as the fee basis" for natural gas and hazardous liquid pipeline facilities. Pipeline Safety User Fees, 51 Fed.Reg. 25,782 (July 16, 1986). Included in the fees to be assessed against each operator of these pipelines are a share of total program costs proportionate to the miles of pipeline the operator had in service at the beginning of the applicable fiscal year. Fee assessments for fiscal year 1986 were mailed to individual operators in late July of that year. The notices required payment within 30 days.

Petitioner Five Flags Pipe Line Company tendered its fees under protest, informing RSPA of its view that, because the company was a small intrastate pipeline not subject to NGPSA jurisdiction, section 7005 does not require the company to pay user fees. Five Flags also objected to the RSPA's failure to observe the notice and comment provisions of 5 U.S.C. Sec. 553 (1982) before adopting the fee schedule. Petitioner Association of Texas Intrastate Natural Gas Pipelines also objected to the lack of informal rulemaking procedures, but additionally contended that it is unfair and unreasonable to use pipeline mileage as the basis upon which user fees are determined.

In December 1986, RSPA issued a second notice in which it responded to the objections of petitioners and of others. The agency ultimately decided to re-adopt its previously issued fee schedule for use in fiscal year 1987. Pipeline Safety User Fees, 51 Fed.Reg. 46,975 (Dec. 19, 1986).

Five Flags and Texas Intrastate Pipe Lines petitioned this court for review of both the 1986 and the 1987 user fee notices. RSPA moved to dismiss the petitions, contending that we lack original jurisdiction over them. By order, we deferred ruling on the motion to dismiss until after oral argument on the merits.

II. JURISDICTION

It is axiomatic that "Congress, acting within its constitutional powers, may freely choose the court in which judicial review [of agency decisions] may occur." City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979) (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 1218-19, 2 L.Ed.2d 1345 (1958)) (footnote omitted). If Congress makes no specific choice of this type in the statute pursuant to which the agency action is taken, or in another statute applicable to it, see e.g., 28 U.S.C. Sec. 2342 (1982), then an aggrieved person may get "nonstatutory review"--a confusing misnomer--in federal district court pursuant to the general "federal question" jurisdiction of that court. See 28 U.S.C. Sec. 1331 (1982); City of Rochester, 603 F.2d at 931; see also Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977). The "federal question" jurisdiction of the court of appeals, by contrast, may be invoked only after a district court has issued an appealable

Page 1440

order. 28 U.S.C. Sec. 1291 (1982); see Russell v. Law Enforcement Assistance Admin., 637 F.2d 354, 355 (5th Cir.1981); Dillard v. Department of Housing and Urban Development, 548 F.2d 1142, 1143 (4th Cir.1977).

Here, the petitioners challenge agency action undertaken pursuant to the authority Congress conferred upon the Department of Transportation in section 7005 of the COBRA. Neither that section nor any other section of the COBRA specifies the court in which judicial review of the agency action...

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41 practice notes
  • Commonwealth of Puerto Rico v. U.S., No. 06-2449.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 2007
    ...pursuant to which the agency action is taken, or in another statute applicable to it." Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1439 (D.C.Cir.1988). "The basic premise behind nonstatutory review is that, even after the passage of the APA, some residuum of power remains w......
  • Wagner v. Fed. Election Comm'n, No. 12–5365.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 31, 2013
    ...is not at liberty to displace, or to improve upon, the jurisdictional choices of Congress.” Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1441 (D.C.Cir.1988). They belong in a legislative hearing room, not a brief. Finally, the FEC cites several cases decided by district cour......
  • Natural Resources Defense Council v. Abraham, No. 01-4102.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 13, 2004
    ...as a "default rule" that governs only in the absence of a statute providing otherwise); Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1439 (D.C.Cir. 1988). Furthermore, when there is a specific statutory grant of jurisdiction to the court of appeals, it should be construed in......
  • Chamber of Commerce of U.S. v. Reich, No. 95-5242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 2, 1996
    ...a lack of a statutory cause of action is per se a bar to judicial review. See, e.g., Five Flags Pipe Line Co. v. Department of Transp., 854 F.2d 1438, 1439 (D.C.Cir.1988) ("If Congress makes no specific choice of [the court in which judicial review is to occur] in the statute pursuant to wh......
  • Request a trial to view additional results
41 cases
  • Commonwealth of Puerto Rico v. U.S., No. 06-2449.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • June 15, 2007
    ...pursuant to which the agency action is taken, or in another statute applicable to it." Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1439 (D.C.Cir.1988). "The basic premise behind nonstatutory review is that, even after the passage of the APA, some residuum of power remains w......
  • Wagner v. Fed. Election Comm'n, No. 12–5365.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 31, 2013
    ...is not at liberty to displace, or to improve upon, the jurisdictional choices of Congress.” Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1441 (D.C.Cir.1988). They belong in a legislative hearing room, not a brief. Finally, the FEC cites several cases decided by district cour......
  • Natural Resources Defense Council v. Abraham, No. 01-4102.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 13, 2004
    ...as a "default rule" that governs only in the absence of a statute providing otherwise); Five Flags Pipe Line Co. v. Dep't of Transp., 854 F.2d 1438, 1439 (D.C.Cir. 1988). Furthermore, when there is a specific statutory grant of jurisdiction to the court of appeals, it should be construed in......
  • Chamber of Commerce of U.S. v. Reich, No. 95-5242
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 2, 1996
    ...a lack of a statutory cause of action is per se a bar to judicial review. See, e.g., Five Flags Pipe Line Co. v. Department of Transp., 854 F.2d 1438, 1439 (D.C.Cir.1988) ("If Congress makes no specific choice of [the court in which judicial review is to occur] in the statute pursuant to wh......
  • Request a trial to view additional results

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