St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 88-5399

• Decision Date: 21 November 1989
• Docket Number: No. 88-5399,88-5399
• Citation: St. Louis Fuel and Supply Co., Inc. v. F.E.R.C., 890 F.2d 446, 281 U.S.App.D.C. 329 (D.C. Cir. 1989)
• Parties: , 58 USLW 2339 ST. LOUIS FUEL AND SUPPLY COMPANY, INC., et al., Appellants, v. FEDERAL ENERGY REGULATORY COMMISSION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 446

890 F.2d 446

281 U.S.App.D.C. 329, 58 USLW 2339

ST. LOUIS FUEL AND SUPPLY COMPANY, INC., et al., Appellants, v. FEDERAL ENERGY REGULATORY COMMISSION, et al.

No. 88-5399.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 17, 1989.

Decided Nov. 21, 1989.

Appeal from the United States District Court for the District of Columbia (C.A. No. 86-02094); John H. Pratt, J.

Robert A. Jaffee, with whom William H. Bode, Washington, D.C., and John T. Hull, Rockville, Md., were on the brief, for appellants.

Jacob M. Lewis, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., William Kanter, Atty., Dept. of Justice, Washington, D.C., and Catherine Cook, Gen. Counsel, F.E.R.C., were on the brief for appellees. R. Craig Lawrence and Nathan Dodell, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellees.

Before WALD, Chief Judge, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This appeal concerns the bounds of Congress' provision for awards of costs and attorneys' fees under the Equal Access to Justice Act, 5 U.S.C. Sec. 504 (EAJA). Appellants St. Louis Fuel Supply Company and Diesel Fuel Service (the Companies) had entered into a consent order with the Department of Energy (DOE) settling the Companies' challenge to a DOE price regulation remedial order. Invoking EAJA, the Companies then applied to the Federal Energy Regulatory Commission (FERC) for $32,147.12 in fees and costs. FERC denied the application; the Commission held that proceedings under 42 U.S.C. Sec. 7193(c), the DOE Organization Act provision on contests to remedial orders, do not qualify for EAJA awards. The district court affirmed that decision. St. Louis Fuel and Supply Co. v. FERC, Civ. No. 86-2094, 1988 WL 113816 (D.D.C. Oct. 19, 1988) (Memorandum Order affirming denial of application).

The sole issue before us ¹ is whether the district court correctly ruled that DOE section 7193(c) proceedings fall outside the classification "adversary adjudication" covered by EAJA section 504. EAJA, when applicable, requires the government to bear the cost of unjustified litigation; the animating purpose of the legislation is to avoid discouraging individuals and small businesses from attempting to vindicate their rights. See H.REP. NO. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.CODE CONG. & ADMIN.NEWS 4953, 4984, 4988-89. The Companies urge that it would advance the policy underlying EAJA to permit attorneys' fees in DOE section 7193(c) remedial order review proceedings. We do not question that policy assessment. Nonetheless, the statutory language and legislative history we confront require us to conclude that Congress has not provided for fee awards in DOE remedial order contests. We therefore affirm the district court's judgment.

I.

We begin our analysis by describing the EAJA, Administrative Procedure Act (APA), and DOE Organization Act sections in point. EAJA provides for recovery of fees and other expenses by a prevailing party in an "adversary adjudication ... unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." 5 U.S.C. Sec. 504(a)(1). "Adversary adjudication," as here relevant, means "an adjudication under section 554 of [the APA] in which the position of the United States is represented by counsel or otherwise...." Id. Sec. 504(b)(1)(C).

APA section 554 "applies ... in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing" with some enumerated exceptions not applicable here. 5 U.S.C. Sec. 554. If an adjudication is governed by section 554, it must feature the following procedural components: an impartial and unbiased presiding officer, id. Sec. 556(b); notice and an opportunity to participate in the hearing, id. Sec. 554(c); the right of the parties to appear with counsel, id. Sec. 553(b); the right to present oral and written evidence (including rebuttal evidence) and to conduct such cross-examination as is required for a full and true disclosure of the facts, id. Sec. 556(d); the right to submit proposed findings, conclusions and exceptions, id. Sec. 557(c); the compilation of an exclusive record upon which the agency must base its decision, id. Sec. 556(e); and limitations on ex parte communications and on the combination of prosecutorial and adjudicative functions, id. Sec. 554(d).

Section 7193(c) of the DOE Organization Act affords "an opportunity for a hearing" but does not expressly state that the hearing must be "on the record" and does not cross-reference section 554. See 42 U.S.C. Sec. 7193(c). Section 7193(c) sets out the following minimum procedural requirements: the opportunity to participate through the submission of briefs, oral or documentary evidence, and oral arguments; cross-examination "to the extent that the Commission in its discretion determines that such is required for a full and true disclosure of the facts"; and the issuance of an order, based on findings of fact, which constitutes a "final agency decision" subject to judicial review. See id. By regulation, FERC has enlarged upon these minimum requirements so that section 7193(c) contests include essentially the same procedural components as those Congress prescribed for section 554 proceedings. See 18 C.F.R. Sec. 385.909 (1989).

Relying principally on the statutory texts, the district court concluded that DOE remedial order contests under section 7193(c) do not fit within the EAJA section 504(b)(1)(C) specification "adversary adjudication ... under [APA] section 554." The court thus ruled that Congress had not provided for fee awards to the Companies. In so ruling, the district court rejected the Companies' twin arguments. The Companies maintained in the district court, and repeat on appeal, that DOE section 7193(c) hearings are indeed "subject to" APA section 554; alternatively, the Companies urge that EAJA authorizes fees for proceedings equivalent to those that section 554 covers, even if the proceedings are not strictly "subject to" that section. A sister circuit's precedent supports the Companies' argument that EAJA reaches all adjudications that include the components essential under section 554. See Escobar Ruiz v. INS, 813 F.2d 283 (9th Cir.), aff'd, 838 F.2d 1020 (9th Cir.1988) (en banc). We nonetheless conclude from the text and legislative history of EAJA section 504 and DOE section 7193(c) that the district court ruled correctly in this case.

II.

We explain first why we find unconvincing the argument that DOE section 7193(c) hearings are "subject to" APA section 554. As the Companies correctly point out, it is inconclusive that DOE section 7193(c) requires only a "hearing," while section 554 applies when a statute commands a hearing "on the record." Our decision, we emphasize, does not turn, mechanically, on the absence of magic words. See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757, 92 S.Ct. 1941, 1948, 32 L.Ed.2d 453 (1972). What counts is whether the statute indicates that Congress intended to require full agency adherence to all section 554 procedural components. See United States v. Florida East Coast Ry., 410 U.S. 224, 234-38, 93 S.Ct. 810, 815-18, 35 L.Ed.2d 223 (1973); Railroad Comm'n v. United States, 765 F.2d 221, 227 (D.C.Cir.1985); City of West Chicago, Illinois v. United States Nuclear Regulatory Comm'n, 701 F.2d 632, 641 (7th Cir.1983) (citing United States Lines v. FMC, 584 F.2d 519, 536 (D.C.Cir.1978)).

DOE section 7193(c), as we earlier observed, sets out specific minimum procedural requirements. See supra p. 448. The section's short list provides something less than APA section 554 mandates. FERC regulations add protections matching those of the APA, but nothing in the DOE legislation compelled the augmentation. See Florida East Coast Ry., 410 U.S. at 236 n. 6, 93 S.Ct. at 816 n. 6; Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089, 1092 (7th Cir.1984).

We consider it significant that, unlike section 7193(c), other prescriptions in the DOE Organization Act expressly invoke the APA. See 42 U.S.C. Sec. 7191(a)(1); Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983) ("[W]here Congress includes particular language in one section of a statute and omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."). Most directly opposing the conclusion that APA section 554 governs DOE remedial order hearings are the remarks of the legislators instrumental in the enactment of the DOE provisions.

Introducing the House version of section 7193, Congressman Eckhardt noted that it "merely affords minimal due process. It affords a little bit less opportunity for a full adjudicatory type hearing than is afforded by the Administrative Procedure Act." 123 CONG.REC. 17402-03 (June 3, 1977). Eckhardt further stated, even more particularly, that "[w]e do not grant quite as many procedural safeguards to the person subjected to agency action as does [sic] sections 554 and 556 of the Administrative Procedure Act." Id. at 17403. Introducing the Senate version, Senator Javits called attention to the discretion the agency would have in structuring section 7193(c) hearings. Id. at 15295 (May 13, 1977). ²

Section 7193(c) was added in both houses as a floor amendment; therefore no committee report aids our inquiry. The House and Senate provisions required identical procedures, so the conference report also is uninformative. Floor statements are thus the only evidence of congressional intent, and necessarily have some force. Because Eckhardt and Javits sponsored the provisions, moreover, their comments carry "substantial weight." See Federal Energy Admin....