Kokajko v. F.E.R.C.

• Decision Date: 21 January 1988
• Docket Number: No. 87-1891,87-1891
• Citation: 837 F.2d 524
• Parties: John KOKAJKO, d/b/a Voyageurs, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondents. Central Maine Power Company, Intervenor.
• Court: U.S. Court of Appeals — First Circuit

Page 524

837 F.2d 524

John KOKAJKO, d/b/a Voyageurs, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondents Central Maine Power Company, Intervenor.

No. 87-1891.

United States Court of Appeals First Circuit.

Jan. 21, 1988.

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

MEMORANDUM AND ORDER

The respondent, Federal Energy Regulatory Commission (FERC) and the intervenor, Central Maine Power Co., have moved to dismiss the petition for review of a FERC order. We grant the motions and dismiss.

On July 24, 1987, FERC issued an order in response to a request for rehearing filed by Central Maine Power. The July 24, 1987 order reversed an order favoring the petitioner and dismissed the petitioner's complaint. The petitioner, timely, i.e., within thirty days after issuance of the July 24, 1987 order, applied for rehearing. 16 U.S.C. Sec. 825l (a).

On September 17, 1987, FERC issued an order granting rehearing of the July 24, 1987 order solely for the purpose of further consideration. That is, the September 17, 1987 order expressly stated that the grant of rehearing was not a final order on rehearing, did not constitute a grant or denial of the rehearing on its merits in whole or in part, but rather was granted in order to review more fully the arguments raised in petitioner's request for rehearing. It is clear that the September 17, 1987 order granting rehearing for purpose of further consideration was issued so as to give FERC more time to consider the merits of the petition for rehearing and to avoid a denial of the petition by silence. Section 825l (a) of Title 16 provides, in pertinent part,: "Unless the Commission acts upon the application for rehearing within thirty days after it is filed, such application may be deemed to have been denied."

According to the parties, the petition for rehearing is still pending before FERC and no decision on its merits has issued. Nonetheless, the petitioner filed the present petition for review in this court on October 20, 1987. The petition contends that FERC failed to timely decide the request for rehearing or, alternatively, that the "tolling order" of September 17, 1987, coupled with the length of time that the underlying matter has been pending before FERC, constitutes a denial of due process.

We agree with FERC and Central Maine Power that because FERC has not yet issued a ruling on the merits of the petition, this court is without jurisdiction. The petitioner argues that FERC must act on the merits within thirty days following the filing of the petition for rehearing. The statutory language, however, although requiring FERC to "act" upon the application for rehearing within thirty days after filing, lest the application is deemed denied, does not state, as the petitioner would have it, that FERC must "act on the merits" within that time lest the application is deemed denied. At least two circuits, in reviewing language identical to the language at issue in 16 U.S.C. Sec. 825l (a), have ruled that "tolling orders" such as the one at issue in the present case are valid and that a petition for review filed prior to a decision on the merits of the application for rehearing is premature. California Company v. Federal Power Commission, 411 F.2d 720 (D.C.Cir.1969) (construing Natural Gas Act, 15 U.S.C. Sec. 717r(a)); General American Oil Co. of Texas v. Federal Power Com'n., 409 F.2d 597 (5th Cir.1969) (same); see Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 577 n. 7, 101 S.Ct. 2925, 2930 n. 7, 69 L.Ed.2d 856 (1981) (certain provisions of the Federal Power Act, 16 U.S.C. Sec. 791a et seq., and the Natural Gas Act, 15 U.S.C. Sec. 717 et seq., "are in all material respects substantially identical" and the Court cites interchangeably decisions interpreting pertinent sections of the two statutes) (citations omitted).

The petitioner attempts to distinguish both the California Company case and the General American Oil Co. of Texas case by arguing that those two cases involved complex rate proceedings and the petition for rehearing pending before the agency when the Circuit Courts ruled that the petition for judicial review was premature, was from an initial decision of the agency. By contrast, the petitioner contends that the substance of his proceeding before FERC is relatively simple and that FERC has already ruled twice on the merits, i.e., ruling in petitioner's favor on the merits in 1984, then granting rehearing and reversing the ruling in petitioner's favor in 1987.

First, although the petitioner's complaint against Central Maine Power may be "relatively simple," (i.e., his complaint that the utility is charging unreasonable fees for access to the Kennebec River), when compared to rate proceedings involving numerous parties, the fact that FERC, over the course of proceedings thus far, has held opposing views on the merits, belies the appropriateness of the label "simple." Second, in any event, we believe the contrasts pointed out by petitioner between the California Company and General American Oil Co. of Texas cases and the present case are distinctions without differences. This court's authority to review, granted by 16 U.S.C. Sec. 825l (b), is limited to "orders of a definitive character dealing with the merits of a proceeding before the Commission." Fed. Power Comm'n v. Edison Co., 304 U.S. 375, 384, 58 S.Ct. 963, 967, 82 L.Ed. 1408 (1938). We agree with the 10th Circuit which has said that it is a requirement of a "definitive" order that it "have some substantial effect on the parties which cannot be altered by subsequent administrative actions." Public Service Co. of N.M. v. Federal Power Comm'n., ...