Panhandle Eastern Pipe Line Co. v. FEDERAL POWER COM'N, 7587.

• Decision Date: 12 November 1964
• Docket Number: No. 7587.,7587.
• Citation: 337 F.2d 249
• Parties: PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

337 F.2d 249 (1964)

PANHANDLE EASTERN PIPE LINE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.

No. 7587.

United States Court of Appeals Tenth Circuit.

October 14, 1964.

Rehearing Denied November 12, 1964.

Raymond N. Shibley, of Patterson, Belknap & Farmer, Washington, D. C. (G. R. Redding, of Baker & Daniels, Indianapolis, Ind., with him on petition), for petitioner.

Howard E. Wahrenbrock, Solicitor, Federal Power Commission, Washington, D. C. (Josephine H. Klein, Washington, D. C., of counsel), for respondent.

Before PHILLIPS and SETH, Circuit Judges, and ARRAJ, District Judge.

SETH, Circuit Judge.

Panhandle Eastern Pipe Line Company filed with this court a petition to review an opinion and order issued by the Federal Power Commission on November 12, 1963. The Commission denied petitioner a rehearing by order of December 20, 1963, and petitioner promptly thereafter filed this review petition. The Commission moved to dismiss on the ground that the venue was improper, although its motion expressly recognized that this court in a similar case (Texaco, Inc. v. Federal Power Comm'n, 317 F.2d 796 (10th Cir.)), had held that the venue was proper under similar circumstances. In this motion of the Commission, the assertion was made that the principal place of business of the petitioner was within the Eighth Circuit. This motion was denied by this court and the case proceeded. The Supreme Court of the United States thereafter granted certiorari in the Texaco case, supra, and in its opinion, Federal Power Comm'n v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112, held that we had improperly decided the venue matter as to Texaco, Inc., and it did not lie within the Tenth Circuit. It held that venue was proper only in the District of Columbia, or where the principal place of business of the corporation was located, or in the state of incorporation. Immediately following this holding, the petitioner in the case at bar filed with this court a motion to transfer its petition for review to the United States Court of Appeals for the Eighth Circuit wherein is located its principal place of business. This matter has come on for hearing upon this motion and upon the counter-motion filed by the Federal Power Commission in opposition thereto and for dismissal.

The Supreme Court, in Federal Power Comm'n v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, held that the selection of the place for filing a petition for review of the Federal Power Commission order by Texaco and our decision thereon raised questions of venue. Also in Panhandle Eastern Pipe Line Co. v. Federal Power Comm'n, 324 U.S. 635, 65 S.Ct. 821, 89 L.Ed. 1241, the Supreme Court held that under § 19(b), objections that petitioner did not have its principal place of business in the circuit where the petition was filed go to venue, not jurisdiction. The courts of appeal, it said, were granted by § 19(b) the power to review the orders of the Commission. The Court stated: "The general grant of authority in § 19(b) to all the courts of appeal suggest that the question of which one should exercise the power in a particular case is a question of venue." We take this to mean that the statute vested the courts of appeal with jurisdiction of the subject matter, but venue questions would be handled in the usual manner.

In Pacific Gas & Electric Co. v. Federal Power Comm'n, 253 F.2d 536 (9th Cir.), the Court of Appeals for the Ninth Circuit transferred similar review proceedings pending before it to the Court of Appeals for the District of Columbia. The transferee court then stated that the Court of Appeals for the Ninth Circuit had jurisdiction to review the order and further stated that it considered that the Ninth Circuit had "inherent power based on sound principles of judicial administration" to transfer the case, and the case having been so transferred the District of Columbia Circuit had jurisdiction over the petitioner. Pacific Gas & Electric Co. v. Federal Power Comm'n, 106 U.S.App.D.C. 281, 272 F.2d 510. See also L. J. Marquis & Co. v. Securities & Exchange Comm'n, 134 F.2d 335 (2d Cir.).

In the case at bar, the petitioner presents a case where a transfer to the Court of Appeals for the Eighth Circuit would be in the interests of justice and based on sound principles of judicial administration. We agree with the Court of Appeals for the District of Columbia that the courts of appeal have the power to transfer cases under these circumstances upon motion of the petitioner.

As stated above, this court has jurisdiction of the subject matter and has jurisdiction over the parties, but the venue under the Supreme Court's ruling in the Texaco case was improper. Under these circumstances, we have the authority to transfer the case to the Eighth Circuit.

The Court of Appeals for the Fifth Circuit, in Gulf Oil Corp. v. Federal Power Comm'n, 330 F.2d 824 (5th Cir.), held to the contrary. The court there felt that express statutory authority to transfer was required. It noted that the United States District Courts are granted express authority by statute to transfer cases to other district courts. 28 U.S. C.A. § 1406(a). The Government here makes the same point. The inclusion of the new section on transfers in Title 28 of the United States Code evoked little comment. The House Report on the revision of Title 28 states: "So also, minor changes were made in the provisions regulating the venue of district courts in order to clarify ambiguities or to reconcile conflicts." H.Rep.No.308, 80th Cong., 1st Sess., to accompany H.R.3214. Also the Reviser's Notes as to § 1406, which was a new se...