*1 MAN, BUCKLEY, and WILLIAMS D.H. Accordingly, petition the for review is GINSBURG, Judges; Circuit Mac- Denied. KINNON, Circuit Judge. Senior

ORDER PER CURIAM.

Appellees’ suggestion en rehearing for banc has been circulated to full the Court. No member of the requested Court the SHULTZ, Secretary State, George of taking of a Upon vote thereon. considera- al., Appellants, et foregoing, tion of the it is v. banc, ORDERED, by the Court en that CROWLEY, D. James et al. suggestion the is denied. No. 84-5667. BORK, Judge, Before Circuit and Mac- KINNON, Judge. Circuit Senior Appeals, States of United Court of Circuit. District Columbia ORDER 12,

Dec. 1986.

PER CURIAM. Upon appellees’ petition consideration of rehearing, for it is agree gave next to the Commission within the few months. that the full consideration the FERC rehearing any proce- asked what Consolidated the FERC the "next Consolidated on obviates meant, responded problems FERC few months" and the dural related to the initial order. September, court, August that it either or meant 1984. also state Consolidated notes that the Additionally, App. having 202 grown waiting Record & 204A. on Au- of the FERC tired for to 1984, 8, published gust the Commission a notice jurisdictional question answer the referred to it (1984), pursuant 4, 1980, to 18 C.F.R. August 375.204 Consol. preliminary § on decided some 15, 22, Br.App.Ad. at items to Consolidated-Gathering of the be con- Company issues in the 15, August meeting, the sidered at 1984 which assuming by juris- contract suit a lack of FERC Gathering petition Company’s included declaratory for a Gas, Oil v. diction. Consolidated & Inc. South- (N.M.Dist.Ct. order. Co., 79-2161(c) No. SF ern Union 104, Second, 25, 1984), July J.A. at Consolidated contends that the FERC 105. Consolidated days give required respond it the to this action rendered the failed to 30 maintains that quent subse- 20, 31, 1984) Gathering Company’s July (August regarding to 1984 amend- FERC order petition, issuing jurisdiction arbitrary capricious. by its be and ment to its order on to We 20, FERC, August agree though, 1984. that fact ”[t]he The Commission admits for with the issue, argument purposes day require- court same of that the 30 that the state ruled on the 385.213(d)(2) (1985) ruling applies regardless agreed its C.F.R. with the § ment of 18 whether case, 16, ruling, does the Com- in this FERC Br. at 19 n. but maintains Commission’s not affect authority juris- procedure proper for to determine its own that the was Consolidated mission’s rehearing, petition for Br. at 23. to which it did. We diction.” FERC *2 282 Court, peti- pending of this to fee

ORDERED, that the cation amendment by the requests in cases whose merits are not tion is denied. pending would not constitute a waiver of Judge BORK and of Circuit Statements sovereign immunity requiring statu strict are at- Judge MacKINNON Senior Circuit CFSPI, tory construction. 802 F.2d at tached. 523-24; accord Russell v. National Media 1284, (5th Board, tion 775 F.2d 1288 Cir. Judge BORK: Circuit Statement of 1985). making finding, In this the CFSPI rehearing, appellees petition for In their distinguished panel expressly the Nichols decision in majority’s the assert that decision, and therefore a the Crow fortiori (D.C.Cir. F.2d 498 Crowley, 802 Shultz v. pertinent part, turning in on ley decision as 1986), with Center Sci is inconsistent for sovereign immunity concerns irrelevant to Regan, 802 Interest v. ence in the Public provision the of EAJA’s 1985 amend the (CFSPI) (D.C.Cir.1986) I think F.2d 518 CFSPI, in ments at issue 802 F.2d CFSPI. explanation. a brief not and offer at 524 n. 11. applicability of the Crowley concerned exists, therefore, No conflict between (“EAJA”) Act Equal Access to Justice the holding application that a fee CFSPI’s case the merits of application for a to a fee pending” alone is a “case for some 1985 the EAJA’s resolved before which had been purposes and Crowley’s EAJA amendment Both the original effective date. 1981 following Nichols, holding, appli- that a fee 500, F.2d and its Crowley majority, 802 at pending” cation alone is not a “case for 505, that, dissent, recognized 802 F.2d at purposes original of the 1981 EAJA. circuit, pendency of fee by of this a the law application alone on the EAJA’s 1981 effec- (con- MacKINNON, Judge Circuit of the Senior permit date does not invocation

tive curring). EAJA, Pierce, 740 F.2d 1249 Nichols v. (D.C.Cir.1984). construction of the Strict I continue in the belief that the While sovereign immunity as a waiver of EAJA case, along appli- merits of the with the fee Nichols, at

requires this result. 740 F.2d 1,1981 cation, pending on for were October Crowley majority and dis- 1255-59. The dissent, recognize my set forth in I reasons disagreed finality sent instead about the being, for the time the law of that at least pendency, appealability, and and hence the majority opinion in the case is set forth the Crowley’s case. of the merits of controlling. I presently and that is there- request pending a fee Judge held that in de-

CFSPI fore concur Bork’s statement of the rehearing on the effective date 1985 EAJA nying appellees’ motion for and statutory hearing is within the mean suggest amendments banc since the do not en ing pending” the amend opinion of “cases to which proceeding my in does not involve a “position definition of the of the question exceptional importance ed EAJA of within applies, although 35(a). the merits meaning F.R.App.P. States” United the of requested of for which fees are the case (but pending on that date were

are not of the

pending on the 1981 effective date EAJA). amending

original in the def Since “position the United States”

inition of of merely “clarify” to the

Congress intended EAJA, panel appli

original the found that