Goodman v. Public Service Commission

• Decision Date: 18 April 1972
• Docket Number: No. 24944.,24944.
• Citation: 467 F.2d 375,151 US App. DC 321
• Parties: Leonard S. GOODMAN, Appellant, v. PUBLIC SERVICE COMMISSION of the District of Columbia et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 US App. DC 321, 467 F.2d 375 (1972)

Leonard S. GOODMAN, Appellant, v. PUBLIC SERVICE COMMISSION of the District of Columbia et al., Appellees.

No. 24944.

United States Court of Appeals, District of Columbia Circuit.

Argued February 29, 1972.

Decided April 18, 1972.

Rehearing Denied May 12, 1972.

Mr. Leonard S. Goodman, pro se.

Mr. Cornelius Means, Washington, D.C., with whom Mr. Stephen A. Trimble, Washington, D. C., was on the brief, for appellee Potomac Electric Power Co.

Mr. C. Belden White, II, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corp. Counsel, and George F. Donnella, Asst. Corp. Counsel, were on the brief, for appellee Public Service Commission of the District of Columbia.

Before FAHY, Senior Circuit Judge, and TAMM and MacKINNON, Circuit Judges.

FAHY, Senior Circuit Judge:

In proceedings before the Public Service Commission of the District of Columbia, appellee Potomac Electric Power Company, PEPCO, which serves the community with electricity, obtained an increase in its rates. The proceedings eventuated in three orders of the Commission as follows:

(1) Order No. 5419 (sometimes referred to as the Interim order) of January 30, 1970, which authorized an interim surcharge increasing existing rates by 5%, to be effective February 2, 1970.

(2) Order No. 5429 (sometimes referred to as the Phase I order) of April 15, 1970. By this order and its accompanying decision and findings the Commission established the fair rate of return of 7.1% for purposes of calculating the necessary increase, and found that this rate would require an increase in its annual gross operating revenues of $22,103,781, of which 46.24% or $10,220,788 should be derived from customers within the District of Columbia. The Company was directed to present rate schedules applicable to the District of Columbia which when applied to consumer usage for the test year would yield the additional revenues. The total revenue increases in rates for the District of Columbia customers was 12.5%. Order 5429 also required the Company to submit proposed schedules "designed to increase its gross operating revenues within the District of Columbia on an annual basis by $10,220,788," from the level of the test year.

(3) Order No. 5436 (sometimes referred to as the Phase II order) of June 29, 1970, was an order effectuating the above directive by its approval of a schedule of rates so designed.

Mr. Goodman petitioned the Commission pursuant to 43 D.C.Code § 704 for reconsideration of the Phase I order.¹ Upon denial, he timely filed his appeal pursuant to 43 D.C.Code § 705² which provides that any person affected by a final order or decision of the Commission may within sixty days after final Commission action upon the petition for reconsideration, file with the clerk of the District Court a petition of appeal.

On motions of PEPCO and the Commission, the District Court dismissed Mr. Goodman's complaint, holding it to be too late to be considered as an appeal from Order No. 5419-the interim increase order—and that Order No. 5429, the Phase I order, to which the appeal was directed, was "neither a final order or decision nor an order or decision which affected the plaintiff." The court also held that Mr. Goodman was not affected until the entry of the Phase II order from which he had not appealed. From the dismissal order of the District Court Mr. Goodman appeals to this court.

We conclude that Order No. 5429-Phase I—was a final order which affected Mr. Goodman. For this reason we reverse the order of the District Court and remand the case for consideration of the validity of Order No. 5429 and for such other proceedings as are not inconsistent with this opinion.

THE QUESTION OF FINALITY

The Phase I order is a final decision in the proceedings before the Commission. It authorizes an over-all increase in PEPCO's gross operating revenues, and provides that a portion of the increase is to be borne by District of Columbia customers. Its final character is in no sense affected by the need for the later Phase II order allocating the increase among the several different categories of customers. The increase in rates, and the findings of the Commission upon the basis of which the increase was allowed, were in no way left for further decision by the Phase II order. The Commission itself so viewed the matter while the proceedings were still before it. When PEPCO objected to the Commission's reconsideration of the Phase I order on Mr. Goodman's petition, on the ground that it was interlocutory, the Commission disagreed. The Commission accepted the petition for reconsideration for filing and denied the petition on its merits, stating, in response to PEPCO's arguments, that the petition would only

be refiled and we would have to consider it on its merits. Having now looked at those merits, we have concluded that the petition should be denied on the grounds outlined above. We see no reason why we should not so indicate at this time rather than determining whether we should wait to make our views known. The result in any event would be the same.

The fact that the Phase I order was not the final order in point of time in the proceedings, since it was followed by the Phase II order of rate schedules, is by no means conclusive of the legal situation. For purposes of judicial review the finality of an agency order depends upon the nature of the order rather than its chronology in relation to the whole of the agency proceedings. Federal Power Comm'n v. Metropolitan Edison Co., 304 U.S. 375, 384, 58 S.Ct. 963, 82 L.Ed. 1408 (1938). See also Isbrandtsen Co. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51 (1954), cert. denied sub nom. Federal Maritime Board v. United States, 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954). As held in Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 209, 27 L.Ed.2d 203 (1970):

The relevant considerations in determining finality are whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action. ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 602 , 86 S.Ct. 1000, 16 L.Ed.2d 109 (1966); Rochester Telephone Corp. v. United States, 307 U.S. 125, 143 , 59 S.Ct. 754, 83 L.Ed. 1147 (1939).

Here there was no possible disruption of the administrative process; there was nothing else for the Commission to do. And certainly the Commission\'s action was expected to and did have legal consequences.

While it is true that in our case there was something else for the Commission to do, the validity of the over-all increase was not conditioned upon anything yet to be resolved by the later order authorizing tariff schedules. What remained to be done was not concerned with the validity of the increase in rates which had been granted— the action of the Commission which Mr. Goodman took to court. That action "was expected to and did have legal consequences" which were not modified nor intended to be modified by the Phase II order which followed.³See also Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956); cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

THE QUESTION WHETHER MR. GOODMAN WAS AFFECTED BY THE PHASE I ORDER

The right of appeal to the District Court from a final order or decision of the Commission pertains under Section 43-705 only to one "affected" by the order or decision. Mr. Goodman, it is not disputed, was at all relevant times a residential and commercial customer of PEPCO in the District of Columbia. It is said, however, that since the Phase I order did not allocate the increase in rates among the several categories of PEPCO customers, it did not directly alter Mr. Goodman's obligation to PEPCO. It is argued, as a theoretical matter, that upon the entry of the Phase I order, no customer knew with certainty that his category would have to bear any of the authorized increase. Rather, the argument continues, only until the entry of the Commission order approving the tariff schedule did PEPCO customers learn whether they were affected. We believe it sufficient to note that public hearings were held May 25 and 26, 1970, on the proposed PEPCO rate schedules, Mr. Goodman's complaint was filed in the District Court on June 15, 1970, and fourteen days later, on June 29, 1970, the Commission entered its Phase II order approving the proposed schedules which increased Mr. Goodman's rates, prior to the dismissal of his complaint by the District Court. This aside, we think he had standing initially as a customer who was subject to inclusion in the increase. In this connection we note an earlier comment by this court upon the word "affected" in Sections 704 and 705 as follows:

The word "affected," as used in the present statute, seems to have been chosen by Congress, deliberately, to expand the privilege of complaint and appeal beyond that contemplated by words which it has used in other statutes, and beyond the conventional tests used in equity suits seeking restraint of governmental action . . . .

United States v. Public Utilities Commission of the District of Columbia, 80 U.S.App.D.C. 227, 231-232, 151 F.2d 609, 613-614 (1945). Cf. Constructores Civiles de Centroamerica v. Hannah, 148 U.S.App.D.C. 159, 459 F.2d 1183 (1972). Had the Phase II order eliminated any effect upon Mr. Goodman's rates, we might have a different case. The proceedings before the Commission, however, were on an application for a general increase in rates. They were not limited to an increase either sought or granted with respect only to a category of customers which would exclude Mr. Goodman. He was not required to await the Phase II order, which might not be entered until his time to appeal from...