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Tenn. Gas Pipeline Co, v. Fed. Energy Reg. Comm

United States Court of Appeals, District of Columbia Circuit
Nov 23, 1993
9 F.3d 980 (D.C. Cir. 1993)

Summary

In Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980 (D.C. Cir. 1993) (per curiam), for instance, Tennessee Gas sought agency rehearing of an order that denied Tennessee Gas's request to impose a "reconciliation surcharge" on its customers.

Summary of this case from Nat'l Ass'n of Immigration Judges v. Fed. Labor Relations Auth.

Opinion

No. 93-1429.

November 23, 1993.

Petition for Review of Orders of the Federal Energy Regulatory Commission.

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 ¶ 61,342 (Aug. 30, 1991); and Tennessee Gas Pipeline Co., 63 FERC ¶ 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. § 717r (providing for the filing of a petition for review within 60 days of the Commission's disposition of a request for rehearing). Tennessee's June 7 request remains pending before the Commission. See Tennessee Gas Pipeline Co., No. RP91-203-031 (July 7, 1993) ("Order Granting Rehearing Solely for the Purpose of Further Consideration").

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). 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) (holding that a premature petition for review must be dismissed for lack of jurisdiction); United Transportation Union v. ICC, 871 F.2d 1114, 1116-18 (D.C. Cir. 1989) (same).

The court in Wade also held that timing is irrelevant — "the danger of wasted judicial effort . . . arises whether a party seeks agency reconsideration before, simultaneously with, or after filing an appeal or petition for judicial review." 986 F.2d at 1434.

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. § 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.

Accordingly, we hold that Tennessee's petition for review is "incurably premature" and must be dismissed for lack of jurisdiction. Once the Commission has resolved the pending request for rehearing, Tennessee may petition for review of that order as well as the two prior orders. The Commission's motion to dismiss is

Granted.


Summaries of

Tenn. Gas Pipeline Co, v. Fed. Energy Reg. Comm

United States Court of Appeals, District of Columbia Circuit
Nov 23, 1993
9 F.3d 980 (D.C. Cir. 1993)

In Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980 (D.C. Cir. 1993) (per curiam), for instance, Tennessee Gas sought agency rehearing of an order that denied Tennessee Gas's request to impose a "reconciliation surcharge" on its customers.

Summary of this case from Nat'l Ass'n of Immigration Judges v. Fed. Labor Relations Auth.

noting that a request for rehearing is a prerequisite for judicial review of FERC orders issued under the statutory authority of the Natural Gas Act, 15 U.S.C. § 717r

Summary of this case from OXY USA, INC. v. F.E.R.C
Case details for

Tenn. Gas Pipeline Co, v. Fed. Energy Reg. Comm

Case Details

Full title:TENNESSEE GAS PIPELINE COMPANY, PETITIONER v. FEDERAL ENERGY REGULATORY…

Court:United States Court of Appeals, District of Columbia Circuit

Date published: Nov 23, 1993

Citations

9 F.3d 980 (D.C. Cir. 1993)

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