*1 Judge, BROWN, dis- JOHN R. administrative doctrine of exhaustion senting. dissenting opinion merely For see requires initi- remedies pro- F.2d 785. prescribed ation of administrative requires pursuing cedures; them Rehearing On Petition for appropriate await- conclusion their seeking before their final outcome PER CURIAM. judicial stated As was intervention. judges As neither of the who concurred Corp. Equipment v. Diesel Aircraft & in the decision of the court the above 1493, Hirsch, 767, 67 S.Ct. 331 U.S. opinion numbered entitled cause is of 1796: 91 L.Ed. should be very purpose providing ei- “The granted, peti- it is ordered that said or an initial ther exclusive be, is, and the same denied. hereby, preliminary determi- administrative to secure the administra- nation is Judge, JOHN R. dis- either, case, judgment in the one sents. judicial decision in substitution for other, or, as foundation unnecessary perchance make judicial proceedings. Where later Congress clearly commanded has judgment be that administrative exclusively, initially or taken function to have no lawful
courts anticipate deci- the administrative * * & HUMBLE OIL COM- REFINING To own *. do with their sion PANY, Petitioner, only would contravene the this v. Congress as a matter of re- will of COMMISSION, FEDERAL POWER deferring stricting judicial ac- Respondent. congres- nullify the It would tion. No. 15704. objects providing the ad- sional In determination. this ministrative Appeals United States Court of securing include uniform- these case ity Fifth Circuit. policy and dis- administrative 1956. expertness judgment, position, Rehearing Aug. 21, Denied 1956. determination, finality things Congress of those least could commit to such to and intended agencies for final decision.” Thus, proceeding been a until adduced, Commission,a record before declaring an order issued natural-gas companies within are tioners meaning Act, of the Natural Gas subject to the
therefore juris- Court has no act.
diction to light just we have In what said length reasons stated at and for the cases, Humble Oil petition for review must be dismissed jurisdiction. for lack of
Dismissed.
820 Foster, Jr., Washington, C., nard A. D. Baker, Houston, Tex., Rex G. Wm. H. Holloway, Tyler, Tex., Janvier, Charles Orleans, La., Ross, Foster, New Marsh &
Washington, C., counsel, D. tioner. Gatchell,
Willard W. Gen. Counsel Federal Power Lambert Mc- Allister, Counsel, Asst. Gen. Louis C. Knight, Atty., Washington, C.,D. for re- spondent. BORAH, RIVES, Before Judges. BORAH, Judge.
This is pre- one of six cases which sents a common of law concern- of orders of the Federal changes suspending Power Commission gas by in rates for sales of natural respective petitioners. ju- Petitioner herein invoked the risdiction of this Court under Section 19(b) of the Natural Gas Act to review an order of the Federal Power Com- May 19,1955, by mission issued on which suspended period the Commission for a by petitioner of five months a rate filed covering certain of sales of its natural gas Pipe Company. to United Gas Line they to the extent that need facts By be stated are a contract dated these: February 9, 1954, agreed petitioner gas natural sell United for- a term of years nineteen from the date of ini delivery gas thereunder, tial and de on liveries commenced days prior was six the date on which Supreme Court handed down Phillips decision Petroleum Com Wisconsin, pany v. U.S. 74 S. 347. L.Ed. 1035. As we set forth Ct. 98 length in Petroleum Com pany v. Federal Power Cir., 236 F.2d the Commission there after issued its series 174-Orders in regula promulgated Illig, Houston, Tex., Jones, which it rules and Carl Nelson filing Caillouet, La., providing Orleans, tions for the of rate New Bernard J. Merrill, Houston, “independent producers”1 Tex., schedules Ber- J. William “any “independent 154.91, person producer” as defined in tlie was The term 1. engaged regulations, in the Natural Gas Act who is §(cid:127) in the C.F.It. defined 1.15 cents were to be added each gas subject to the of natural tax reim- above-stated to cover a schedules in which Commission per Mcf., of one and a bursement cent and con terms forth the to be set charge charg per cents On. service .15 Mcf. all rates and ditions of service *3 April 1955, 21, compliance 1954, in with the 7, and after June effective on es regulations 174-Orders, provided the in transportation natural and sale for the protest, petitioner but under like filed gas “Rate in interstate commerce. ef- regulations with the Commission a notice to the in the was defined schedule” pursuant fect that under and to the terms sup and all “the contract mean basic to United, applica- of its contract with the amendatory agreements plements or gas price paid ble to be delivered applicable and thereof, on and effective ” * * * 1955, thereunder, 1, effective June would 7, And in re June 1954 after By per 14.5 Mcf. is- be cents an order periodic in spect contained to increases 1955, May 19, sued the or- Commission regulations pro contracts the such basic hearing public dered that be held a any pro operation of that: “The vided by date to fixed a be the providing for the rate schedule vision of changes suspended proposed and the in changes rate, periodic the or in future charge, charges 1, “until rates November classification, after or service 1955, and until such further time as it any 1954, operation or the June prescribed made effective in the manner any provision in schedule initial rate like by the Natural Gas Act.” The reasons 7, 1954, June shall consti filed after by for its action stated the Com- change in These rate schedule.” tute a regulations mission as follows: “The rates increased that, provided with further charges proposed and filings in aforesaid the material, exceptions no not here certain change justi- have not been to be shown any such rate could be made unjust, unreasonable, fied and be un- filing a notice of schedule without first duly discriminatory preferential, or or change thirty nor in rates not less than findings otherwise unlawful.” And its ninety days prior to the effec more than necessary proper were that: “It is pursuant date to Section 4 thereof public in the interest and to aid the (d) of the Natural Act. Gas provisions of enforcement of the Nat- the September 24, 1954, petitioner filed On the enter ural Gas Act that Commission protest jurisdictional and with hearing concerning upon a the lawful- aforementioned reservations the contract proposed changes, ness of the said February 9, 1954, amended, of ing cover- above-designated supplement the be gas United, sales of natural suspended and the use thereof deferred assigned when filed was a number Following as hereinafter ordered.” the designated by a “Rate Schedule” May 19, petition- issuance of the order of Commission. Under the terms of this applied er the Commission for re- contract, perti- and to extent here hearing sought thereof which it nent, gas paid for all “affirmatively during the Commission rec- have be delivered to the life of United validity ognize effectiveness of stipulated fol- the contract were to be as components during year of the rate all set forth period lows: the one com- with mencing contract United dated Humble’s on the date of first deliveries of * * * including February gas (June 1, thereunder 1954 to June price thereby during particularly 1955), per Mcf., made effec- 12.35 cents 1, 1955, commencing after June expiration tive on and and that period on the abrogate forthwith one-year period the Commission with- and extend- first * * * hearing or after 1, 1955, out ing such hear- until November 13.35 cents * * * May 19, said order issued provided per The Mcf. contract also resale, production gathering gas interstate commerce but who of natural engaged operation primarily transports gas in the is not and who natural inter- pipeline.” gas interstate state commerce sells natural thereto, being opin- opposition the Commission’s The 1955.” alleg- August on an or- issued grounds for ion any denying stay. present der application not did in the ed fully consid- or law question of fact questions presented May itsof by prior to the issuance ered petition and the motion to dismiss in warrant therefore did reviewability and, clude if review application rehearing, denied the able, of the Commission’s rehearing by on an order issued reviewability order. The 20, 1955. necessarily involves a determination application Following denial of its whether we have to review *4 rehearing, petitioner filed this for 19(b) order under such of the Section together a motion with review tion for Natural Gas Act. In Petrole Court, by this stay pending review for Company um v. Federal Power Com ag- is pleadings it urging that in both mission, supra, we observed that this suffering irreparable in- grieved is and statutory provision review of the Act reve- jury by the the fact that reason of contemplates by a this review Court of alleged by it, net loss a to be nues lost hearing orders definitive entered after recoup- per month, $22,500 cannot of upon completion and of the administra review, it claims petition for In its ed. process, and tive what we said with numerous for is invalid the order that regard necessary to the conditions for important are reasons, of most the review of our the Commission’s action (1) the substantially that as follows: controlling is here. prices and involved contract Applying rate filed the “initial” this test of reviewabili- such constituted subject ty, to sus- we have here by petitioner which is not a situation where the Commission, exercising regulatory ju- the Natural 4 of pension under Section acting con- Act; (2) does not risdiction and order of that the one the Gas writing rea- of require in of its sections the Act which do not statement “a tain suspension” required hearing, as is a has consistent therewith en- sons such Act; 4(e) (3) hearing an order of tered the without a first Section Applicable arbitrary, capricious, 4(e), un- perti- and had. Section in is order contrary pro- part, provides: discriminatory, to the duly any nent “Whenever Act and to new Natural Gas such of the schedule is filed the visions Commis- * * * policy; authority rate shall have announced sion the Commission’s to upon hearing concerning (4) the Commis- enter a the action of that the and law- abrogates petitioner’s rate, charge, and fulness of such contract sion classifica- service; property tion, and, pending of its or a confiscation such hear- constitutes contrary law, ing process thereon, to the decision due of the Com- without filing mission, upon provisions the Fifth Amendment with of such schedules the delivering natural-gas compa- of the United States. to the the Constitution to turn, thereby ny filed a motion in affected a statement writ- ing suspension, for review and the of its reasons for such to dismiss grounds stay suspend may operation deny on the the motion of such the sched- jurisdiction rate, un- charge, has no defer the Court use of such this ule that 19(b) classification, service, of to review the or Act but der Section stay longer period beyond not a order it is the because than five months hearing go it after time when would otherwise order entered in- definitive ** Moreover, process, effect the order completion the administrative proper any petitioner is no sense a fail- defini- event that procedural legally cognizable irrepara- step It is order. a mere show ed to upon equities justify injury of and not inception that taken at ble process. stay. Upon completion administrative of a considera- issuance stay appraisal of the order and petitioner’s realistic motion for and A liminary judicial questions of performs review of demonstrates function it kind, interlocutory this issuance but the absence that its such is provision power. view, we objective to main- cannot assume had one but petitioner any If quo correct in or all seller the status between tain relating its several pending of the contentions to the purchaser exercise interlocutory order, jurisdiction of the statutory Commission’s inquire suspension may order infect with inval- the reasonableness into final, idity the order definitive rate increase. Commission which will issue after hear- supportive of that the sus- As its claim findings upon had and made evidence. pension here involved is review- order event, upon judicial In that review the petitioner able, relies Atlantic Sea- interlocutory definitive order Corporation Power v. Federal board will be reviewable insofar as it Cir., F.2d have affected the final order. The con- clearly distin- we think that case is but clusion we have reached that this Court guishable at bar. Con- from case has no review the sus- above, we have said sistent with what pension time, order at this renders it citing Commis- Federal Power *5 inappropriate unnecessary both pass upon Metropolitan Co., Edison 304 U.S. sion v. the contentions that the 82 L.Ed. there S.Ct. rates”, involved constituted “initial that gives recognized 19(b) that Section the Commission failed to state “reasons” power Appeals review Courts suspension required by for such as upon peti- of the Commission order Act, contrary that the order is aggrieved party and that mere tion preliminary the Natural Gas and violates Act procedural or- orders or rights tioner’s Fifth under the Amend- finally determine do not ders which ment Constitution United rights parties should not re- accordingly petition States. will be the facts there thereunder. On viewed presented, for dismissed the reason that Section however, the Court concluded (b) of the Act does not confer sought to be review- that the order to entertain it it sort, that but instead was was ed is so ordered. general “sufficiently distinct from the litigation sufficiently subject BROWN, Judge, JOHN R. dis- justify us in ex- final and definitive senting. dissenting opinion For see ercising power of review vested in us F.2d 785. Thus, apparent it is the statute.” did undertake in the the Court Rehearing Petition for On interlocutory to review an case Atlantic here, the one we have such PER CURIAM. definitive the an- is not judges As neither who con- reviewability under test Sec- nounced decision of the curred court in the 19(b). above numbered and entitled cause petition opinion that the sought really by petition isWhat granted, it is ordered should be inquiry Court should halt is that this er be, hereby, same is and the said in order to rule the threshold denied. propriety upon the of the Com limine and whether should action mission’s Judge, R. It JOHN dis- proceed be desirable further. provide pre- should sents. the law