Papago Tribal Utility Authority v. Federal Energy Regulatory Commission
| Decision Date | 23 June 1980 |
| Docket Number | No. 79-1562,79-1562 |
| Citation | 628 F.2d 235 |
| Parties | PAPAGO TRIBAL UTILITY AUTHORITY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Arizona Public Service Company and Arizona Power Authority et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of Orders of the Federal Energy Regulatory commission.
Richard I. Chaifetz, Washington, D. C., with whom Arnold D. Berkeley and Bruce J. Wendel, Washington, D. C., were on the brief, for petitioner.
Rhodell G. Fields, Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Howard E. Shapiro, Sol., Federal Energy Regulatory Commission, Washington, D. C., was on brief, for respondent.
Brian J. McManus, Washington, D. C., with whom Richard M. Merriman, Washington, D. C., was on brief, for intervenor Arizona Public Service Co.
Melvin Richter, Washington, D. C., for intervenor Arizona Power Authority et al.
Before WRIGHT, Chief Judge, MacKINNON, Circuit Judge, and PENN, * District Judge.
Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.
This petition raises an important question concerning the authority of this court to review certain nonfinal administrative orders. At issue is a decision of the Federal Energy Regulatory Commission (FERC or Commission) to accept a rate filing by an electric power wholesaler under Section 205(d) of the Federal Power Act (the Act), 16 U.S.C. § 824d(d) (1976). 1 On December 29, 1978 intervenor Arizona Public Service Company filed a new schedule of wholesale electric rates with the Commission, estimated to increase its annual revenues by $10,243,213. Petitioner Papago Tribal Utility Authority, a customer of intervenor, filed papers opposing the rate increase. 2 It claimed that the rate filing was unlawful on its face and should be rejected. Petitioner's main arguments before the Commission were that intervenor improperly calculated its federal corporate income tax obligation according to the pre-1979 rate of 48 percent rather than the current rate of 46 percent; that intervenor's three-year period for calculating peak demand charges should be reduced to one year; that intervenor's regulatory expenses should be amortized over a two-year period instead of the proposed one-year period; that intervenor should bear the expense of certain low-cost sales to the Navajo Tribal Utility Authority; that intervenor's proposed return on equity was excessive; and that intervenor overstated petitioner's unit demand charge. 3
Intervenor responded to petitioner's motion by acknowledging that the federal corporate income tax rate employed in the filing was misstated, and that the billing demand estimated for petitioner was excessive, because of certain changes in petitioner's operations. It agreed to adjust its proposed rates to correct these errors. But it argued that the other issues raised by petitioner should be resolved after a hearing before the Commission. 4 By order of February 28, 1979 the Commission accepted the proposed schedule for filing, suspended the new rates for the maximum five-month period, granted petitioner's motion for summary disposition with respect to the corporate income tax rate issue, and denied the remainder of petitioner's motion for summary disposition. 5
Petitioner moved for rehearing on the ground that intervenor's rate filing contained patent defects requiring its rejection. 6 FERC denied this motion on April 30, 1979. 7 The Commission acknowledged that it has the authority to reject filings which are " 'patently . . . deficient in form or a substantive nullity'." Joint Appendix (JA) 70 (citing Municipal Light Boards v. FPC, 450 F.2d 1341 (D.C.Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1251, 31 L.Ed.2d 445 (1972)). However, it found that intervenor's filing was "in substantial compliance" with the filing rules, and that petitioner's arguments raised factual issues not ripe for summary disposition. See JA 70. Thus the Commission denied petitioner's motion for rehearing and set the matter for a full hearing.
Petitioner thereafter filed this petition, seeking review of the February 28 order and the April 30 denial of a rehearing. It asserts that this court has jurisdiction under Section 313(b) of the Act, 16 U.S.C. § 825l (1976). The first question we must resolve is whether FERC's order accepting the filing, denying summary disposition, and setting the case for hearing is reviewable under this provision. Of course if material issues of fact formed the basis for petitioner's challenge, we could not take jurisdiction, for the Commission has made no findings of fact for us to review. However, petitioner has alleged that the challenged rate filing contains patent defects requiring rejection on its face. We therefore must decide whether this court has jurisdiction under Section 313(b) to review orders denying motions for rejection of rate filings challenged on the ground of patent defects in form or content. 8
Section 313(b) provides: "Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals * * *." 16 U.S.C. § 825l (b) (1976). Since this provision is not limited on its face to final orders, it might be read as authorizing judicial review of interlocutory orders of any nature at any stage of an administrative proceeding. The courts have long held, however, that review under Section 313(b) is limited to orders of definitive impact, where judicial abstention would result in irreparable injury to a party. Niagara Mohawk Power Corp. v. FPC, 538 F.2d 966, 969 (2d Cir. 1976); see General Motors Corp. v. FERC, 607 F.2d 330, 331 (10th Cir. 1979). The Supreme Court held in FPC v. Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408 (1938), that Section 313(b) should not "be construed as authorizing a review of every order that the Commission may make, albeit of a merely procedural character." Id. at 383, 58 S.Ct. at 967. The Court said that "(s)uch a construction, affording opportunity for constant delays in the course of the administrative proceeding for the purpose of reviewing mere procedural requirements or interlocutory directions, would do violence to the manifest purpose of the provision." Id. at 383-384, 58 S.Ct. at 967.
Finality for the purpose of judicial review of administrative actions is not easy to define; yet the courts must be as precise as possible in defining reviewable orders. In this way we may prevent the delay that might otherwise occur if parties were induced to file petitions for review to find out whether given orders are reviewable. 9 When the courts intervene in the midst of agency proceedings, they often disrupt the administrative process and unnecessarily burden their dockets. We are therefore loath to do so. The best way to avoid this unfortunate drag on the administrative and judicial processes is to adhere to traditional principles of finality, and to define for the benefit of agencies and litigants what orders are subject to immediate judicial review.
Our definition of finality under Section 313(b) begins with the statement of the Supreme Court in FPC v. Metropolitan Edison Co., supra, 304 U.S. at 384, 58 S.Ct. at 967, that this provision relates to "orders of a definitive character dealing with the merits of a proceeding before the Commission and resulting from a hearing upon evidence and supported by findings appropriate to the case." Ordinarily, an agency order is final for purposes of appellate review when it "imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process(.)" Cities Service Gas Co. v. FPC, 255 F.2d 860, 863 (10th Cir.), cert. denied, 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73 (1958). This court has emphasized, however, that finality of administrative orders must be evaluated in "pragmatic" terms. Conway Corp. v. FPC, 510 F.2d 1264, 1267 (D.C.Cir. 1975), aff'd, 426 U.S. 271, 96 S.Ct. 1999, 48 L.Ed.2d 626 (1976). The Supreme Court agrees:
The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control.
Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 425, 62 S.Ct. 1194, 1204, 86 L.Ed. 1563 (1942). See also 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 reviewability of an order must therefore be determined by reference to its practical function and consequences in the relevant statutory scheme. We must ask first whether the order is final; second whether, if unreviewed, it would inflict irreparable injury on the party seeking review; and third whether judicial review at this stage of the administrative process would invade the province reserved to the discretion of the agency.
To determine whether the order under consideration in this case is final for purposes of judicial review, we must first place it in its proper context within the administrative process. Under the Federal Power Act a utility selling electricity subject to the jurisdiction of FERC must adhere to rates and terms of sale on file with the Commission. In order to change its rates or terms the utility must file a proposed change with the Commission 30 days before the change is to take effect. 10 The Commission may reject filings of proposed changes if the filings are grossly defective in form, or "so patently a nullity as a matter of substantive law, that administrative efficiency and justice are furthered by...
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