809 F.3d 55
D.C. Cir.2014Background
- FERC issued a 30‑year license to Alabama Power for the Warrior Project (which includes Smith Development and Smith Lake) on March 31, 2010, rejecting the Smith Lake Improvement and Stakeholder Association’s proposed change to maintained lake levels.
- The Association, largely Smith Lake property owners, participated in the licensing proceedings and sought rehearing after the license issuance, raising Federal Power Act Section 10(a)(1) and substantial‑evidence challenges under Section 313(b).
- FERC affirmed the license in a rehearing order, then summarily denied a second rehearing request as not modifying the license order; the Association filed for judicial review on March 18, 2013.
- The petition was filed 124 days after the first rehearing order but within 60 days of the second rehearing order; Alabama Power moved to dismiss for lack of jurisdiction as untimely.
- The court considered whether a second (optional) rehearing petition can toll the 60‑day filing period for judicial review and whether the presence of a pending second rehearing petition bars simultaneous judicial filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction when petition for review was filed more than 60 days after the first rehearing but within 60 days of a second rehearing that was not required | Association: second rehearing tolled the 60‑day period so filing was timely | Alabama Power: petition was untimely because the controlling 60‑day period ran from the first rehearing; optional second rehearing does not revive or toll the deadline | Dismissed for lack of jurisdiction — second rehearing that did not change the result did not toll the 60‑day limitation; petition untimely |
| Whether a petitioner may have a pending rehearing petition before FERC and the court simultaneously | Association: exhaustion requirement forces objections to be raised and may create a trap if second rehearing is unnecessary | Alabama Power/FERC: a party may not pursue agency reconsideration and judicial review at the same time; pending rehearing before FERC precludes filing in court | Court: a party cannot have a rehearing petition pending before the Commission at the time it files in this court; must choose one forum |
| Whether prior precedent is inconsistent about tolling and the need for second rehearing | Association/FERC: argued tension/conflict in precedents and urged more permissive tolling unless petition is vexatious | Court: cases are reconcilable — second rehearing not required does not always toll; prior cases (Tennessee, Clifton, Western) support dismissal in this posture | Court: reconciles precedents and follows Western Area Power — dismissal appropriate |
| Whether petitioner’s exhaustion ‘trap’ argument excuses late filing when change in reasoning (but not result) occurred | Association: might be unfair to bar review when only reasoning changed and petitioner had to exhaust objections | Court: recognized reasonable‑grounds exception in similar Natural Gas Act case but not applicable where result did not change and second rehearing was unnecessary | Court: exception exists in principle but does not save untimely filing here; Western controls |
Key Cases Cited
- Town of Norwood v. FERC, 906 F.2d 772 (D.C. Cir.) (defines when second rehearing is required — only if it significantly modifies results)
- Allegheny Power v. FERC, 437 F.3d 1215 (D.C. Cir.) (clarifies ‘‘significant’’ means change in outcome, not mere reasoning)
- Western Area Power Admin. v. FERC, 525 F.3d 40 (D.C. Cir.) (held unnecessary second rehearing does not toll the 60‑day filing period)
- Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980 (D.C. Cir.) (dismissed where party had pending second rehearing despite not being required)
- Clifton Power Corp. v. FERC, 294 F.3d 108 (D.C. Cir.) (a party may not simultaneously seek agency reconsideration and judicial review)
- Columbia Gas Transmission Corp. v. FERC, 477 F.3d 739 (D.C. Cir.) (discusses reasonable‑grounds exception when reasoning changes without altering result)
- Bangor Hydro‑Elec. Co. v. FERC, 78 F.3d 659 (D.C. Cir.) (agency order controls review of related claims against other federal respondents)