Texaco, Inc. v. Federal Power Commission

Decision Date17 October 1963
Docket NumberNo. 17608,17700.,17652,17608
PartiesTEXACO, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent. TEXACO, INC., et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Public Service Commission of the State of New York, Intervenor. SUN OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Public Service Commission of the State of New York, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Howard E. Wahrenbrock, Solicitor, Federal Power Commission, argued the motion to dismiss for respondent. Mr. Richard A. Solomon, General Counsel, Federal Power Commission, also entered an appearance for respondent.

Mr. Alfred C. DeCrane, Jr., Houston, Tex., argued in opposition to the motion for petitioners in Nos. 17,608 and 17,652. With him on the opposition to respondent's motion was Mr. James J. Flood, Jr., Houston, Tex., Mr. Edwin S. Nail, Washington, D. C., entered an appearance for petitioner, Amerada Petroleum Corporation in No. 17,652. Mr. Sherman S. Poland, Washington, D. C., entered an appearance for petitioner Skelly Oil Company in No. 17,652.

Mr. Omar L. Crook, Washington, D. C., argued in opposition to the motion for petitioner in No. 17,700. With him on the opposition to respondent's motion were Messrs. Robert E. May, Washington, D. C., and Edwin M. Cage, Dallas, Tex.

Mr. Kent H. Brown, Albany, N. Y., and Mrs. Barbara M. Suchow, New York City, entered appearances for intervenor, Public Service Commission of New York in Nos. 17,652 and 17,700.

Before PRETTYMAN, Senior Circuit Judge, and FAHY and BURGER, Circuit Judges.

BURGER, Circuit Judge.

These cases come before us on the consolidated petitions of Texaco, Inc. (No. 17608), Texaco, Inc. and other corporations and individuals (No. 17652), and Sun Oil Co. (No. 17700) for an order granting leave to adduce additional evidence in a hearing now pending before the respondent, Federal Power Commission. Respondent has moved to dismiss the petitions on the ground that they are premature and that this court lacks jurisdiction to consider them at this time.

The issue presented is whether this court has jurisdiction to review, in an interlocutory fashion, the Commission's exclusion of evidence in a hearing in which the Commission has not yet entered its final order.

The several petitioners before us are parties to a proceeding before the Federal Power Commission which involves petitioners' and others' applications for certificates of public convenience and necessity under Section 7 of the Natural Gas Act, 15 U.S.C. § 717f. Amerada Petroleum Corp., Docket CI 62-1544. In No. 17608, the petitioner seeks review of the Commission's refusal to reconsider its denial of petitioner's motion under 18 C.F.R. § 1.23 for production of various Commission records. In No. 17652 and No. 17700, the petitioners seek review of the examiner's rulings sustaining Commission motions to strike certain testimony of petitioners' witnesses and exclude certain exhibits and they also seek review of the Commission's denial of a request for interlocutory appeals under 18 C.F.R. § 1.28.

Petitioners assert that unless they now apply to this court for leave to adduce additional evidence under Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r (b), during the pendency of the administrative hearing, i. e., take an interlocutory appeal, that, as they read the controlling law, their right to petition the court later for leave to offer additional evidence may be lost. They rely essentially on Communist Party v. Subversive Activities Control Board, 102 U. S.App.D.C. 395, 403-405, 254 F.2d 314, 322-324 (1958); Same, 107 U.S.App. D.C. 279, 281-282, 277 F.2d 78, 81 (1959), aff'd, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). In its motion to dismiss the petitions, the Federal Power Commission asserts that Section 19(b) of the Natural Gas Act confers jurisdiction on this court to pass on only "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." Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 384, 58 S.Ct. 963, 967, 82 L.Ed. 1408 (1938). See also, Algonquin Gas Transmission Co. v. Federal Power Commission, 201 F.2d 334, 337-338 (1st Cir. 1953); Texaco, Inc. v. Federal Trade Commission, 301 F.2d 662 (5th Cir.), (per curiam) cert. denied, 371 U.S. 822, 83 S.Ct. 40, 9 L.Ed.2d 62 (1962).

Section 19(b) of the Natural Gas Act delineates the jurisdiction of the Courts of Appeals to review certain orders of the Federal Power Commission.

"(b) 1 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 for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part. Sentence 2 omitted. 3 Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part. Sentence 4 omitted. 5 The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive. 6 If any party shall apply to the court for leave to adduce additional evidence, and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the proceedings before the Commission, the court may order such additional evidence to be taken before the Commission and to be adduced upon the hearing in such manner and upon such terms and conditions as to the court may seem proper. 7 The Commission may modify its findings as to the facts by reason of the additional evidence so taken * * *. Sentence 8 omitted."

This statutory provision has virtually identical counterparts in the various statutes regulating judicial review of numerous other federal regulatory agencies. See Appendix.

Petitioners assert that sentence 6 of Section 19(b) of the Natural Gas Act, supra, authorizes this court to review evidentiary rulings of the Commission in an interlocutory manner independent of the jurisdiction provided in sentences 1 and 3 of Section 19(b). Petitioners rely primarily on this court's opinions in Communist Party supra, which construed a similar statutory provision, i. e., Section 14(a) of the Subversive Activities Control Act, 50 U.S.C. § 793(a). Judge Prettyman, writing for the court in those cases, said:

"As we read the opinion and decision in the Consolidated Edison case Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 198, 59 S.Ct. 206, 83 L.Ed. 126 (1938) it means that, when proffered evidence is denied receipt by the trial tribunal in a case in which a statute similar to Section 10(e) of the National Labor Relations Act 29 U.S.C. § 160(e) applies, the profferor must apply to the appropriate United States Court of Appeals for permission to adduce the additional evidence; if he fails so to move he cannot successfully present the point on appeal." 102 U.S.App. D.C. at 404, 254 F.2d at 323. (Footnote omitted).

The legal significance of this language as precedent is better understood when it is put in the context of the history of the Communist Party litigation. The evidence with which the court was concerned there was the so-called "Gitlow memoranda." The first time the Party case was before this court, we affirmed the order of the Control Board. 96 U.S. App.D.C. 66, 223 F.2d 531 (1954). At no time prior to that decision by this court did the Communist Party petition this court for leave to proffer the Gitlow memoranda either in an interlocutory fashion or by way of a petition ancillary to the general petition to review the final order of the Control Board. Our decision was reversed by the Supreme Court and the case was remanded to the Control Board. 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956). Subsequently we reviewed the Control Board's new order and remanded the case. The language quoted above is found in that second decision by this court. 102 U.S. App.D.C. 395, 254 F.2d 314 (1958). At the time of this court's second decision, the Communist Party had not petitioned this court for leave to adduce the memoranda. After this court's second decision the Communist Party filed its petition for leave to adduce the memoranda, and the petition was denied.

When the case returned here a third time, we held the Party could not raise the issue relating to the Gitlow memoranda because that issue had been decided against them on the second appeal and their failure to petition this court for leave to proffer the evidence prior to that decision could not be cured nunc pro tunc by their subsequent petition. 107 U.S.App.D.C. at 282, 277 F.2d at 81. On the third appeal we affirmed the Control Board's order and our decision was affirmed by the Supreme Court. 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). The Supreme Court explicitly refrained from deciding the applicability of the Consolidated Edison case to the Communist Party case. 367 U.S. at 30, 81 S.Ct. at 1376, 6 L.Ed.2d 625. This court's ruling on the Gitlow memoranda was sustained on another ground, namely that the Party's failure to raise the issue on its first appeal in the Supreme Court 351 U.S. 115, 76 S.Ct. 663, 100 L.Ed. 1003 (1956) precluded it from raising the point on the second appeal. 367 U.S. at 30-32, 81 S.Ct. at 1376, 6 L.Ed.2d 625.

The language and holding of this court in the second Communist Party appeal, when considered in light of the facts of that litigation and the Consolidated Edison case, is not to be read...

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