Hunt Oil Company v. Federal Power Commission

• Decision Date: 19 July 1962
• Docket Number: No. 19218.,19218.
• Parties: HUNT OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

306 F.2d 359 (1962)

HUNT OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 19218.

United States Court of Appeals Fifth Circuit.

July 19, 1962.

Robert E. May, Richard F. Generelly, Washington, D. C., Robert W. Henderson, Thomas G. Crouch, Robert M. Kennedy, Dallas, Tex., for petitioner.

Howard E. Wahrenbrock, Sol., F. P. C., Milton J. Grossman, Arthur H. Fribourg, Ralph S. Spritzer, Attys., F. P. C., Robert L. Russell, Asst. Gen. Counsel, Washington, D. C., for respondent.

Before BROWN, WISDOM and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case was thought to present problems essentially similar to Hunt et al. v. F. P. C., 5 Cir., 1962, 306 F.2d 334 (our Dockets Nos. 19065, 19113, 19114, 19153, 19154, 19155, 19156, 19212, 19213, 19214). The principal difference was that this case relates to a permanent certificate. Additionally, the price reduction imposed by the Commission as a condition was contained in an amendment to the contract. The contract, as thus forceably amended, did not undertake, as did those in the other cases, to allow a subsequent increase.

While it is true that the certificate, to the extent that it undertook to deny the producer the right to file and obtain § 4, 15 U.S.C.A. 717c, increases, cannot stand in view of our holding in the other cases, we think that special factors here involved require that further disposition of this proceeding be postponed. Decision in the instant proceeding should await the final determination of related and subsequent proceedings now pending in this Court.

The order sought to be reviewed here is that of May 31, 1961, rejecting a proposed increased rate filing. The filing was rejected on the ground that the contract amendment providing for an 18¢ rate deprived the Producer of the necessary contract basis for the attempted increase to 20¢ per Mcf. United Gas Pipe Line Co. v. Mobile Gas Service Corp., 1956, 350 U.S. 332, 76 S.Ct. 373, 100 L. Ed. 373. In the meantime, however, the Court of Appeals for the District of Columbia in Public Service Commission v. F. P. C., 1961, 111 U.S.App.D.C. 153, 295 F.2d 140, cert. denied, sub nom. Shell Oil Company v. Public Service Commission, December 18, 1961, 368 U.S. 948, 82 S.Ct. 388, 7 L.Ed.2d 343, held that in the proceeding resulting in this permanent certificate the Commission had erred in denying the intervention of the New York Public Service Commission. In compliance with what it construed to be the mandate of the Court of Appeals, the Commission on November 2, 1961, issued an "order granting intervention, setting aside certificates and issuing temporary authorizations."

This temporary authorization was subject to the conditions (1) that the initial rate (18¢) remain in effect until changed by a Commission order and (2) that the producer agree to refund any amounts collected in excess of the amount ultimately determined by the Commission. On December 28, 1961, petitioners' application for rehearing was denied. Thereafter the producers filed timely petitions for review with this Court which are now pending on our Docket as Nos. 19499 and 19500.¹

The petitioner objects to our considering any of these subsequent matters. The Commission, relying on them, asserts that this cause is moot. Anything which bears upon the actual mootness of a controversy is a proper subject for a Court's consideration. See, e. g., Doremus v. Board of Education, 1952, 342 U.S. 429, 432-433, 72 S.Ct. 394, 96 L.Ed. 475. See also Midwestern Gas Transmission Co. v. F. P. C., 1958, 103 U.S.App.D.C. 360, 258 F.2d 660, vacated on suggestion of mootness, 358 U.S. 280, 79 S.Ct. 316, 3 L.Ed.2d 299; Flight Engineers, etc. v. American Airlines, Inc., 5 Cir., 1962, 303 F.2d 5, n. 3. But we...