No. Cal. Power Agency v. Nuclear Regulatory Com'n, No. 03-1038.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Randolph
• Citation: 393 F.3d 223
• Parties: NORTHERN CALIFORNIA POWER AGENCY, Petitioner v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents The City of Santa Clara, California and Pacific Gas and Electric Company, Intervenors
• Decision Date: 28 December 2004
• Docket Number: No. 03-1038.

Page 223

393 F.3d 223 NORTHERN CALIFORNIA POWER AGENCY, Petitioner
v.
NUCLEAR REGULATORY COMMISSION and United States of America, Respondents
The City of Santa Clara, California and Pacific Gas and Electric Company, Intervenors No. 03-1038. United States Court of Appeals, District of Columbia Circuit. Argued November 19, 2004. Decided December 28, 2004.

On Petition for Review of an Order of the Nuclear Regulatory Commission.

Robert C. McDiarmid argued the cause for petitioner. With him on the briefs were Ben Finkelstein and Andrea G. Lonian.

Grace H. Kim, Attorney, U.S. Nuclear Regulatory Commission, argued the cause for respondents. With her on the brief were Robert B. Nicholson, Assistant Chief,

Page 224

U.S. Department of Justice, Robert J. Wiggers, Attorney, Karen D. Cyr, General Counsel, U.S. Nuclear Regulatory Commission, John F. Cordes, Jr., Solicitor, and E. Leo Slaggie, Deputy Solicitor.

David A. Repka argued the cause and filed the brief for intervenor Pacific Gas and Electric Company. Brooke D. Poole entered an appearance.

Before: RANDOLPH, ROGERS, and ROBERTS, Circuit Judges.

RANDOLPH, Circuit Judge.

Northern California Power Agency ("NCPA") asks us to vacate an order of the Nuclear Regulatory Commission, issued on February 14, 2003. Pacific Gas and Electric Company ("PG & E") held two licenses and planned to transfer them in connection with its proceedings in bankruptcy. In the order, the Commission refused to reimpose antitrust provisions in the licenses upon their transfer. NCPA filed a timely petition for judicial review of the Commission's order. PG & E and the City of Santa Clara intervened.

On April 14, 2004, PG & E filed a motion to dismiss NCPA's petition for review as moot. The motion contained the following statement: "Counsel for the Commission and the NCPA have indicated that they do not object to the termination of this proceeding." Two days later a Clerk's order granted the motion, dismissing the case as moot and transmitting a certified copy of the order "in lieu of formal mandate." Simultaneously on April 16, NCPA moved to dismiss its petition as moot and to vacate the Commission's order. NCPA's motion is now before us. The Commission takes no position on vacatur but questions our jurisdiction in light of the fact that the mandate has issued. Intervenor PG & E opposes vacatur. Intervenor City of Santa Clara has chosen not to participate.

"Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." Fed. R. App. P. 41(a). We have said that "[i]ssuance of the mandate formally marks the end of appellate jurisdiction." Johnson v. Bechtel Assocs. Prof'l Corp., 801 F.2d 412, 415 (D.C.Cir.1986) (per curiam). This is generally true, but there are exceptions, as when we direct the mandate to issue immediately pursuant to Fed. R. App. P. 41(b), and later entertain a petition for rehearing or rehearing en banc. The mandate in this case issued nearly a year ago, and the time for a rehearing petition has long since expired. To restore our jurisdiction, the mandate would have to be recalled. Although no statute or rule authorizes the courts of appeals to recall mandates, the practice has long been recognized as an inherent part of the judicial power. Johnson, 801 F.2d at 416. The history is recounted in Greater Boston Television Corp. v. FCC, 463 F.2d 268, 276-77 (D.C.Cir.1971), and in 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3938, at 712-16 (2d ed.1996). Before 1948, when the lower federal courts sat in terms, judgments of the court remained under its control during the term. See Hill v. Hawes, 320 U.S. 520, 524, 64 S.Ct. 334, 336, 88 L.Ed. 283 (1944); Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797 (1881). Revisions to the Judicial Code in 1948 ended the significance of terms of court; the federal...