Tennessee Gas Pipeline Co. v. F.E.R.C., 93-1429
| Decision Date | 23 November 1993 |
| Docket Number | No. 93-1429,93-1429 |
| Citation | 9 F.3d 980 |
| Parties | TENNESSEE GAS PIPELINE COMPANY, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert H. Benna, David Withnell and Patrick A. Johnson were on the motion to dismiss for petitioner.
Jill L. Hall, was on the motion to dismiss for respondent.
Before: WALD, SILBERMAN and WILLIAMS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
ON MOTION TO DISMISS
Tennessee Gas Pipeline Company ("Tennessee") petitions for review of two Federal Energy Regulatory Commission ("Commission") orders. The first order denied Tennessee's request to impose a "reconciliation surcharge" upon its customers. The second order denied Tennessee's request for rehearing. See Tennessee Gas Pipeline Co., 56 FERC p 61,342 (Aug. 30, 1991); and Tennessee Gas Pipeline Co., 63 FERC p 61,176 (May 7, 1993).
On June 7, 1993, Tennessee filed a "Request for Clarification or Rehearing" of the Commission's May 7th order. On July 6, 1993, Tennessee filed this petition for review. Tennessee believed it was required to seek judicial review within 60 days of the Commission's order dismissing its first request for rehearing. See 15 U.S.C. Sec. 717r (). Tennessee's June 7 request remains pending before the Commission. See Tennessee Gas Pipeline Co., No. RP91-203-031 (July 7, 1993) ().
It is well-established that a party may not simultaneously seek both agency reconsideration and judicial review of an agency's order. See Wade v. FCC, 986 F.2d 1433 (D.C.Cir.1993) (per curiam) (citing cases). 1 Moreover, the court has characterized a petition for review filed while a request for agency reconsideration is pending as "incurably premature." See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133-34 (D.C.Cir.1989) (per curiam) (); United Transportation Union v. ICC, 871 F.2d 1114, 1116-18 (D.C.Cir.1989) (same).
The same principle applies here. As the parties recognize, Tennessee's initial request for rehearing was a prerequisite to judicial review. See 15 U.S.C. Sec. 717r. By filing its second request for agency rehearing, which was not required by statute, Tennessee chose "between rehearing before the agency or immediate court review." TeleSTAR, 888 F.2d at 134.
...
To continue reading
Request your trial
-
Council Tree Communications, Inc. v. F.C.C.
...A. Incurable Prematurity We have no jurisdiction to consider an incurably premature petition for review. Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 981 (D.C.Cir.1993) (per curiam). A petition to review a non-final agency order is incurably premature. See Clifton Power Corp. v. FERC, 294 F.......
-
Nat'l Mining Ass'n v. Office of Hearings
...plaintiffs file actions without waiting for an agency to reach a final administrative decision. See, e.g., Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980, 980–81 (D.C.Cir.1993) (a petition for review filed while a request for agency reconsideration is pending is “incurably premature”); In r......
-
OXY USA, Inc. v. F.E.R.C., s. 94-1061
...of administrative remedies doctrine limited to requirements "the statute or rule clearly mandates"); compare Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980, 981 (D.C.Cir.1993) (noting that a request for rehearing is a prerequisite for judicial review of FERC orders issued under the statutor......
-
Safety v. Fed. Energy Regulatory Comm'n
...of his rehearing request before FERC at that time, he withdrew from participation in the original case to avoid any problems under Tennessee Gas. See Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 980–81 (D.C.Cir.1993) (“It is well-established that a party may not simultaneously seek both agen......