Virginia Petroleum Jobbers Ass'n v. FEDERAL POWER COM'N

• Citation: 293 F.2d 527,110 US App. DC 339
• Decision Date: 22 June 1961
• Docket Number: No. 15750.,15750.
• Parties: VIRGINIA PETROLEUM JOBBERS ASSOCIATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Blue Ridge Gas Company, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

110 US App. DC 339, 293 F.2d 527 (1961)

VIRGINIA PETROLEUM JOBBERS ASSOCIATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Blue Ridge Gas Company, Intervenor.

No. 15750.

United States Court of Appeals District of Columbia Circuit.

Argued December 14, 1960.

Decided June 22, 1961.

Mr. Bryce Rea, Jr., Washington, D. C., for petitioner.

Mr. Howard E. Wahrenbrock, Sol., Federal Power Commission, with whom Messrs. John C. Mason, Gen. Counsel, Federal Power Commission, Robert L. Russell, Asst. Gen. Counsel, Federal Power Commission, and Milton J. Grossman, Washington, D. C., Atty., Federal Power Commission, were on the brief, for respondent Messrs. Willard W. Gatchell, Gen. Counsel, Federal Power Commission, at the time the record was filed, Edwin J. Reis and Peter H. Schiff, Attys., Federal Power Commission, also entered appearances for respondent.

Mr. Donald E. Van Koughnet, Washington, D. C., for intervenor.

Before WILBUR K. MILLER, Chief Judge, and BAZELON and BURGER, Circuit Judges.

BURGER, Circuit Judge.

The Blue Ridge Gas Company, intervenor herein, is a distributor of propane air gas in Harrisonburg, Virginia, and environs. It desires to establish natural gas service by constructing facilities to connect with an interstate pipeline, Atlantic Seaboard Corporation, a natural gas company certificated under the Natural Gas Act, 15 U.S.C.A. §§ 717-717w, at a point in Virginia. Having obtained a certificate of convenience and necessity authorizing construction and operation of the project from the State Corporation Commission, Blue Ridge applied to the Federal Power Commission under Section 7(a) of the Natural Gas Act, 15 U.S.C.A. § 717f(a) for an order directing Atlantic to sell an appropriate supply of gas to Blue Ridge and to establish physical connection with its facilities. The Virginia Petroleum Jobbers Association, an organization of wholesale and retail petroleum distributors, sought to intervene in the proceeding. When the Commission refused to allow intervention, we reversed and ordered a new hearing at which Jobbers might participate. Virginia Petroleum Jobbers Ass'n v. FP C, 1959, 105 U.S.App.D.C. 172, 265 F.2d 364. At the conclusion of the second hearing the examiner recommended that the requested order be granted, and the Commission adopted his recommendation. Blue Ridge Gas Co., 23 F.P.C. 245 (1960). The questions presented are:

(1) May the Commission decline to issue a subpoena for expert testimony and for production of reports prepared by an expert witness for private clients?

(2) Is the finding that the grant of the order was in the public interest supported by substantial evidence?

(3) Should the Commission have ordered that the record be reopened to hear evidence of changes in Atlantic's rates?

Although the Commission lacks regulatory jurisdiction over the purely intrastate operation proposed by Blue Ridge, 15 U.S.C.A. § 717(c), the application by Blue Ridge for an extension of service from Atlantic placed the feasibility of the project in issue. The Commission was bound to protect present and potential users of Atlantic's gas supply from the diversion of gas to a project which is not financially feasible, as well as to consider the effect on Atlantic's other rates of the extension of service. See Minneapolis Gas Co. v. FPC, 108 U.S.App.D.C. 36, 278 F.2d 870, certiorari denied 1960, 364 U.S. 891, 81 S.Ct. 220, 5 L.Ed.2d 186; Panhandle Eastern Pipe Line Co. v. FPC, 3 Cir., 232 F.2d 467 certiorari denied, 1956, 352 U.S. 891, 77 S.Ct. 129, 1 L.Ed.2d 86.

The primary evidence offered by Blue Ridge at the hearing was a study by a professional engineering firm. Petitioner requested that a subpoena duces tecum issue to a private engineer for the production of a report on the feasibility of an earlier but similar project which the engineer had made at the behest of the predecessor of Blue Ridge. The examiner held, and the Commission agreed, that the subpoena should not be granted for expert testimony of this nature, in the absence of an agreement by petitioner for appropriate compensation.

Jobbers contends that the Commission should not have considered this factor, because the matter sought was relevant and material and Section 6(c) of the Administrative Procedure Act, 5 U.S.C.A. § 1005(c), provides that "agency subpenas * * * shall be issued to any party upon request and * * * upon a statement or showing of general relevance and reasonable scope of the evidence sought."

Whether a subpoena calling for testimony of this nature was of "reasonable scope" is primarily a problem for the Commission. While we have held in a civil case that expert testimony could in some circumstances be compelled by subpoena, Bradley v. Davidson, 1918, 47 App.D.C. 266, we note that many other courts have taken the contrary view. E. g., L'Etoile v. Director of Pub. Works, R.I.1959, 153 A.2d 173; Pennsylvania Co. for Insurances on Lives & Granting Annuities v. City of Philadelphia, 1918, 262 Pa. 439, 105 A. 630, 2 A.L.R. 1573. We cannot deny the Commission its choice between these views on what is essentially a procedural matter, particularly since it is in a better position than the courts to judge the proper method of compensation for the expert testimony which necessarily comprises a substantial portion of the evidence before it. To extend the reach of the Bradley case to the administrative process would unduly encroach on matters more appropriately left to the experienced discretion of the agency.

Petitioner also urges that the record does not support the findings that the grant of the application is in the public interest. We find it unnecessary to discuss particular items of evidence whose weight is contested, since we are satisfied that the availability of a sufficient gas supply, the financial feasibility of the project and the need for the service are amply shown in the record.

Finally, petitioner urges that the Commission should have granted its request to reopen the record to show changes in the rate schedules of Atlantic which might affect the feasibility of the project. The situation presented is the classic administrative law problem of the staleness of the record, in this context, because of recurrent rate changes. As the Supreme Court has stated, if the litigants "might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated * * *." ICC v. Jersey City, 1944, 322 U.S. 503, 514, 64 S.Ct. 1129, 1134, 88 L.Ed. 1420. This is not a case in which evidence was rejected because of an erroneously narrow view of the scope of inquiry at the hearing. Cf. Michigan Consol. Gas Co. v. FPC, 108 U.S.App.D.C. 409, 283 F.2d 204, certiorari denied, 1960, 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227; City of Pittsburgh v. FPC, 1956, 99 U.S.App.D.C. 113, 237 F.2d 741.

Affirmed.

WILBUR K. MILLER, Chief Judge (concurring in the result).

I agree that the Federal Power Commission properly refused to issue a subpoena duces tecum for an engineering report as to the feasibility of an earlier project similar to that of Blue Ridge. But I think the refusal to issue the subpoena should be sustained, not for the reason given by the Commission and the court, but because the Commission had no jurisdiction to pass on the feasibility of the Blue Ridge project.

The majority's concession that "the Commission lacks regulatory jurisdiction over the purely intrastate operation proposed by Blue Ridge" does not go far enough; for the Commission also lacks jurisdiction over the facilities to be used in the operation.¹ It follows, I think, that the economic feasibility of the proposed construction and operation of facilities for the local distribution of gas is a matter to be passed on by the appropriate state agency. It seems to me, therefore, that Section 1(b) of the Natural Gas Act excludes the feasibility of proposed local distribution facilities from the jurisdiction of the Power Commission, and that the subpoena should have been refused on the ground that the engineering report called for by it related to an issue concerning which the Power Commission had no authority.

The majority hold, however, that when Blue Ridge asked the Power Commission to exercise its authority under Section 7(a) of the Natural Gas Act to direct Atlantic to furnish it with gas, it thereby subjected the feasibility of its project to the scrutiny and determination of...