People's Counsel v. Public Service Com'M, 81-1309.

• Docket Nº: No. 81-1309.
• Citation: 474 A.2d 1274
• Case Date: March 28, 1984
• Court: Court of Appeals of Columbia District

474 A.2d 1274 PEOPLE'S COUNSEL OF the DISTRICT OF COLUMBIA, Petitioner,
v.
PUBLIC SERVICE COMMISSION OF the DISTRICT OF COLUMBIA, Respondent.
Potomac Electric Power Company, Intervenor. No. 81-1309. District of Columbia Court of Appeals. Argued November 5, 1982. Decided March 28, 1984.

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Jay D. Pedelty for petitioner. Brian Lederer, Elizabeth A. Noel, John T. Schell, Michael W. Beasley and Roderic L. Woodson also entered appearances for petitioner.

Michael E. Geltner for respondent. Lloyd N. Moore, Jr., Michael deHaven Newsom and Warner Lawson, Jr. also entered appearances for respondent.

Allen C. Barringer for intervenor. Edward A. Caine and Betty K. Cauley also entered appearances for intervenor.

Before NEBEKER, FERREN and PRYOR, Associate Judges.

NEBEKER, Associate Judge:

The Office of People's Counsel ("OPC") filed this petition of appeal to challenge the lawfulness of several actions of the District of Columbia Public Service Commission ("Commission"). These actions related to a settlement agreement between General Public Utilities ("GPU") and the Pennsylvania-New Jersey-Maryland Interconnection ("PJM") which was designed to alleviate problems caused by the prolonged power outages of GPU's Three Mile Island Units 1 and 2. The Potomac Electric Power Company is a member utility of PJM.

Pursuant to the settlement agreement, which was approved by the Federal Energy Regulatory Commission ("FERC"),¹ PJM members sell electricity to GPU member utilities at a rate equal to the seller's marginal cost of production plus ten (10) percent of the difference between that cost and the purchaser's decremental cost of production. Under this settlement agreement, a utility selling to GPU companies will apparently realize less revenue than under the previous pricing arrangement. Pepco ratepayers would therefore be met with more expensive utility bills.

Choosing not to pursue reconsideration of FERC's action or review thereof (see 16 U.S.C. § 825 (1976)),² the OPC instead filed a Motion for Declaratory Ruling before the Commission seeking to protect D.C. ratepayers from the assertedly adverse impact of the settlement agreement. The ruling sought a declaration, in effect, that Pepco's ratepayers would be shielded from the utility cost increases engendered by the settlement agreement. The Commission denied

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the OPC's motion.³ From this ruling the OPC has taken its appeal.

Pepco was allowed to intervene and successfully moved to dismiss this appeal, urging that the relief requested by the OPC was preempted by federal law. See Narragansett Electric Co. v. Burke, 381 A.2d 1358 (R.I. 1977), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 63 (1978). See also Washington Gas Light Co. v. Public Service Comm'n, 452 A.2d 375, 385 n. 15 (D.C. 1982). On April 21, 1982, we granted the motion on that ground. People's Counsel v. Public Service Comm'n, 444 A.2d 975 (D.C. 1982). On July 22, 1982, after receiving petitions for rehearing and rehearing en banc from the Commission and People's Counsel, we vacated our previous order. The case was reargued before the division on November 5, 1982. On November 12, 1982, we asked all parties to address four questions in a Supplemental Memorandum. The questions were:

(1) Given the Supreme Court of Rhode Island's opinion in Narragansett Electric Co. v. Burke, 381 A.2d 1358 (R.I. 1977), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 63 (1978), and footnote 15 of this Court's opinion in Washington Gas Light Co. v. Public Service Commission, 452 A.2d 375, 385 (D.C. 1982), does FERC's approval of the settlement in its docket number EL 80-22 (FERC Opin. No. 97, 10/1/80) preclude the Public Service Commission, as a matter of federal preemption, from ordering allocation of the impact of the settlement in whole or in part to the Pepco shareholders in this or any other proceeding, and require the ratepayers to bear the entire brunt of the settlement?

(2) Does the following clause in the settlement affect the answer to question (1)?:

The Settlement Agreement . . . shall be deemed withdrawn, null, void, and without any effect whatsoever in the event any regulatory commission having jurisdiction over the rates charged to customers of any party hereto formally proposes to negate or modify the means by which interchange results are reflected in rates and/or proposes to adjust the cost of service for ratemaking purposes, as a direct or indirect result of this Settlement Agreement, in any manner objectionable to the affected party hereto. [Agreement of Settlement and Compromise, P. 5.]

(3) If allocation of the impact of the aforesaid settlement to the Pepco shareholders is not precluded as a matter of federal preemption, does the record show (in light of People's Counsel's request or otherwise), strictly as a matter of law— without regard to Public Service Commission expertise and discretion—whether such allocation is precluded as a matter of general ratemaking principles in this or another proceeding?

(4) Are issues (1), (2), and (3) presently before this Court? (Emphasis added.)

Now, after review of the Supplemental Memoranda filed by all parties, and upon reconsideration of the record, we are persuaded that the substantive issues are not before us and that we must dismiss the petition of appeal.

The Commission argues that no appeal may lie from the instant denial of declaratory relief. We agree. This matter involves a purported appeal from a denial of a motion for a declaratory order, and D.C.Code § 1-1508 (1981) states quite explicitly that "[t]he refusal of the mayor or of an agency to issue a declaratory order shall not be subject to review." (Emphasis added.) In the order on appeal, the Commission ruled, "that the People's Counsel's motion for declaratory ruling be, and the same is hereby denied." See Formal Case No. 733 (Order No. 7364, July 10, 1981), p. 7. Ordinarily, this would be sufficient response to petitioner's and intervenor's arguments that we are empowered to reach the merits. Cf. Sonderling Broadcasting

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Corp. v. District of Columbia Minimum Wage and Industrial Safety Board, 315 A.2d 828, 829 (D.C. 1974). However, two contentions must be briefly addressed.

First, petitioner derives several assertedly substantive rulings from the Commission's order. These are offered as independent grounds for judicial review. We are not persuaded. This argument only obfuscates the central issue which is whether we have statutory authority to review the pertinent agency action. That the Commission provided a detailed explanation for its ruling does not allow for our review. It is within the sound discretion of the Commission to issue a declaratory order upon an applicant's proposal. Cf. Yale Broadcasting Co. v. F. C. C., 155 U.S.App. D.C. 390, 398, 478 F.2d 594, 602 (1973). The Commission is not, however, required to make one. See D.C.Code § 1-1508 (1981) ("the mayor or any agency . . . may issue a declaratory order. . . ." (emphasis added)). See also 5 U.S.C. § 554(e) (1976).

Second, it has been urged that the Commission's refusal to issue a declaratory order is reviewable independent of § 1-1508, because of D.C.Code § 43-905(a) (1981) ("The District of Columbia Court of Appeals shall have jurisdiction to hear and determine any appeal from an order or decision of the Commission."). We disagree. In Chesapeake & Potomac Telephone Co. v. P.S.C., 339 A.2d 710 (D.C. 1975), we held that the District of Columbia Administrative Procedure Act ("DCAPA") was applicable to the Commission "except in the area of appellate procedure and scope of review." Id. at 712. Reviewability, which is at issue here, concerns the availability of review and not its scope or the procedure by which it is secured. Section 1-1508 is therefore controlling in this case. The petition of appeal is

Dismissed.

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Notes:

1. See FERC Opinion No. 97, Docket No. EL 80-22.

2. We are unable to determine why the OPC did not pursue review of FERC's approval of the settlement agreement.

3. See Formal Case No. 733 (Order No. 7364, July 10, 1981), p. 7.

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FERREN, Associate Judge, concurring:

In its motion to dismiss this appeal, the Public Service Commission relies on the District of Columbia Administrative Procedure Act (DCAPA), D.C.Code § 1-1508 (1981), which removes jurisdiction from this court to review an agency's "refusal . . . to issue a declaratory order." Despite the fact that § 1-1508 reflects a significant curtailment of this court's power to review certain forms of agency decisionmaking, we have never addressed several important questions inherent in applying that provision of the DCAPA. The case on which this division principally relies, Sonderling Broadcasting Corp. v. District of Columbia Minimum Wage and Industrial Safety Board, 315 A.2d 828, 829 (D.C. 1974), provides no such analysis. Accordingly, although I agree with the majority's conclusion that § 1-1508 precludes review in this case, I write separately to address these important questions, for the answers are necessary to deal fully and fairly with the arguments of petitioner, the Office of People's Counsel (OPC).

The issues concerning the reviewability of agency decisions are complex and have received a great deal of attention in the federal courts, where we must look for guidance. In order to place my reading of DCAPA § 1-1508 in context, Part I summarizes the law with respect to reviewability, including the effect given statutory provisions that expressly preclude judicial review. Part II discusses the policies underlying § 1-1508's preclusion provision and defines the types of agency action to which that provision applies. Part III discusses the particular facts and arguments presented in this appeal.

I. REVIEWABILITY OF AGENCY ACTION

The doctrine of reviewability deals with the threshold question whether the legislature intended to permit judicial review of a particular form of...