Leonard S. Goodman v. Public Service Commission of the District of Columbia

So, on other defended he nocence.5

grounds. In these circumstances permitting appel-

find no basis of error make a belated claim

lant to

arising that he had out circumstances opportunity We also note

full to avoid. attempted to

that had the Government evidence, would

introduce such objection attempt subject

been the trial. other offenses into introduce circumstances, In since the defense such pre- and was

knew of evidence offering it, find er- no cluded from

ror.

Affirmed. GOODMAN, Appellant,

Leonard S.

PUBLIC SERVICE COMMISSION al., Appellees. et Columbia

No. 24944. Appeals,

United States Court of

District of Columbia Circuit.

Argued Feb. 1972. April

Decided 1972.

Rehearing May 12, Denied 1972. Goodman,pro

Mr. Leonard se. S. Means, Washington, D. Mr. Cornelius Stephen Trimble, C., with A. whom testimony warrant) appellant 5. The claimed es- affidavit the search by way frequent sentially, defense, com- that he knew traffic was or narcotic activity nothing Preston, apartment monplace have un- ignorant (Palmer) college he was a that he was student with- dercut his claim illegal activity. out connection to narcotics. such narcotic Thus, (as information contained $10,- $22,103,781, brief, or C., of which Washington, for onwas D. 46.24% 220,788 should derived from cus- appellee Co. Electric Power Potomac tomers within of Columbia. the District Corp. White, II, Asst. Belden Mr. C. Company present The directed to was Columbia, District Counsel for the applicable rate District schedules Murphy, Francis Messrs. with whom C. applied to con- of Columbia which when Donnella, George Corp. Counsel, and F. usage year sumer yield for the test brief, Counsel, Corp. were on Asst. additional revenues. The total appellee Commission for Public Service for Dis- revenue in rates increases Columbia. of the District of customers was trict Columbia 12.5%. Judge, Circuit FAHY, Senior Before Company Order 5429 also MacKINNON, Circuit and TAMM “designed proposed to submit schedules Judges. gross operating to increase revenues its within District of Columbia on Judge: FAHY, Circuit Senior by $10,220,788,” annual basis proceedings before Public Serv- In year. level of the test of Co- of the District ice Commission (3) (sometimes Order No. 5436 re- lumbia, appellee Power Potomac Electric order) ferred to the Phase II as of June Company, PEPCO, which serves effectuating was an order electricity, community with obtained approval above directive of a proceedings in its rates. designed. schedule of rates so Com- of the three orders eventuated petitioned mission as follows: the Commis- pursuant sion to 43 704 for D.C.Code (sometimes § (1) re- Order No. 5419 reconsideration of the Phase order.1 order) Interim of Janu- ferred as the Upon denial, timely appeal he filed ary 30, 1970, an inter- which authorized pursuant to 43 D.C.Code 705 which existing § surcharge increasing rates im provides person any affected February 2, by 5%, 1970. to be effective final order or decision of Commis- (2) (sometimes re- Order No. 5429 may days sixty sion within after final April order) ferred as petition for Commission action By order and its accom- 1970. this reconsideration, file with the clerk of panying findings decision and petition appeal. Court a re- mission fair rate of established the calculating purposes turn of for On motions of PEPCO and the Com- 7.1% necessary increase, and found that mission, the District Court dismissed require this an increase complaint, holding rate would Mr. Goodman’s toit gross operating revenues appeal annual be too late as an to be considered provides pertinent Any any 1. public utility Section 43-704 Commission. or part: person corporation other or affected Any public utility any per- any or other final order or decision of the Com- by any corporation mission, fixing son or affected final other than an or may, determining property order or of the decision commission the value of the thirty days publication public utility proceeding within after the of a in a sole- thereof, ap- ly may, purpose, file the commission an for within six- plication writing requesting ty days recon- final after the Com- involved, petition sideration of the matters mission for reconsid- stating specifically eration, claimed the errors file with the clerk of grounds for such reconsideration. United District Court States ap- petition 43 D.C.Code § District of Columbia peal setting forth the reasons for such provides pertinent sought; 2. appeal Section 43-705 at and the relief part: appellant shall file same time such The United States District writ- with the notice in ju- copy ing together the District of Columbia shall have with a petition. risdiction to bear and determine from an order or decision of the § D.C.Code petition from Order No. 5419—the interim eluded that de- should be order —and No. crease that Order nied on the outlined above. which, why We see no reason should directed, was “neither a final order so indicate this time rather than determining or decision nor an decision order or whether we should wait plaintiff.” affected The court to make our views known. result that Mr. af- also held Goodman was not would be the same. event entry fected until the Phase or- of the the Phase I The fact order appealed. der from which he had not point final was not the order of time From the dismissal order proceedings, in the it was followed since appeals Goodman Mr. to this schedules, by the II order Phase of rate court. by legal no means conclusive of conclude that We Order No. 5429— purposes judicial re situation. For Phase I—was a final order which affect- finality agency de view the ed For this reason Goodman. we pends upon the nature of order rath reverse the order of the District Court chronology er than its in relation to the and remand the ease for consideration of proceedings. agency Fed whole of the validity of Order and No. 5429 Metropolitan Edi eral Power Comm’n v. proceedings other such as are not incon- 963, Co., son 58 S.Ct. 304 U.S. opinion. sistent with this (1938). also Is 82 1408 See L.Ed. States, 93 U.S. brandtsen Co. v. United QUESTION 293, (1954), App.D.C. THE F.2d cert. 211 51 OF FINALITY Maritime nom. Federal denied sub The final order is a de 990, States, 74 U.S. Board v. United 347 proceedings cision in the before the 852, As S.Ct. L.Ed. It over-all Commission. authorizes an Terminal of Boston Marine held in Port gross operating increase PEPCO’s Rederiaktiebolaget Transatlan Ass’n v. revenues, provides portion and that a 209, 203, tic, 71, 91 S.Ct. U.S. by the increase is to be borne District of (1970): L.Ed.2d 203 Columbia customers. Its final character in de considerations relevant [T]he by is in no sense affected need for finality termining are whether allocating the later Phase II in decision- process administrative among crease the several different cate stage ju making where reached gories of customers. The increase disrupt the or will not dicial review rates, findings and the of the Commis adjudication derly process of sion the basis the in which obligations rights have or whether allowed, way crease was were in no left legal consequences or been determined by for further decision the Phase II or agency action. will flow der. Commission itself so viewed Co., 383 Line R. Coast v. Atlantic ICC proceedings the matter while the were L. [, 86 S.Ct. U.S. still objected before it. When PEP CO Tele Rochester Ed.2d 109] to the Commission’s reconsideration of States, Corp. 307 U.S. phone v. United pe order on Mr. Goodman’s 1147] L.Ed. 125, 143[, 59 S.Ct. tition, ground it was inter locutory, disagreed. the Commission disrup- possible accepted petition The Commission no was Here there process; filing reconsideration for administrative denied tion petition merits, nothing stating, on for the else in re was there sponse certainly the to arguments, PEPCO’s do. And to mission petition to expected was action Commission’s legal consequences. did have be refiled and we would have con- there case Having sider in our true merits. it is now While something Commission merits, looked those else for con- we have was its Phase II or- entered validity in- the Commission do, the over-all proposed any- approving schedules der not conditioned was crease rates, increased Mr. or- which Goodman’s later thing yet resolved complaint prior of his to the dismissal What authorizing schedules. tariff der aside, think This the District Court. not concerned be done remained standing initially as a customer he had in rates validity subject in the to inclusion who was granted action which had been —the In crease. this connection note which upon the expect- earlier comment this court “was That to court. took and 705 legal consequences” word “affected” Sections 704 did ed to and as follows: intended modified nor were II order which by the Phase modified “affected,” word as used Ex- Food also Frozen present followed.3 See statute, to have been seems States, press 351 U.S. v. United Congress, deliberately, chosen 569, Ab- 100 L.Ed. S.Ct. expand privilege complaint and cf. the of Gardner, 387 U.S. Laboratories v. appeal beyond bott contemplated that 1507, 136, 18 L.Ed.2d 87 S.Ct. in stat- words which it has used other (1967). utes, beyond conventional equity seeking re- suits tests used in governmental straint of QUESTION MR. WHETHER THE AFFECTED WAS GOODMAN I BY THE PHASE ORDER United States Public Utilities Columbia, mission of the District of right Dis to the U.S.App.D.C. 227, 231-232, 151 F.2d deci order or from final

trict Court 609, 613-614 Constructores Cf. pertains under sion of Hannah, Civiles de Centroamerica v. only to one “affected” Section 43-705 U.S.App.D.C. 159, 459 F.2d 1183 Goodman, it Mr. or decision. the order any Had the Phase II eliminated times disputed, not was at all relevant is rates, effect Mr. Goodman’s customer residential and commercial might pro- have a different case. It in the District of Columbia. PEPCO Commission, ceedings how- before said, however, I the Phase is that since gener- ever, application were on an for a in increase order did not allocate the They al not lim- rates. were categories among rates several sought or ited to either an increase customers, directly al it did not PEPCO granted category respect only to with obligation ter to PEPCO. Mr. Goodman’s Mr. customers which would exclude matter, argued, that It a theoretical is await Goodman. He was not entry order, no of the might order, not Phase which be certainty his customer knew with that entered until time to from category to bear of the would have expired. Phase order had argu Rather, authorized increase. only entry may continues, sympathize ment until One with PEPCO might approving complaint the Commission order the tar that of all those who so, appealed only iff learn did did PEPCO customers schedule they seemingly he, some whether were affected. We believe that even hearings public stubbornness, appealed only sufficient note 1970, May 26, on Phase were held 25 and order rather than last proposed schedules, now Mr. II order. As the latter PEPCO PEPCO rate complaint objection states Goodman’s was filed no could have been made 1970, ground finality. 15, As to District on of lack of June days complaints later, the answer fourteen on June first of these contrary respect- may 3. To the extent Leeman v. Public Utilities be read to Comm’n, fully disagree. F.Supp. (D.D.C.1952), MacKINNON, Judge, is fact Goodman Mr. Circuit concur- ring appealed, alone but whether in result: appealable I order him. As was While I concur with the position he chosen to PEPCO’s that had opinion’s finding, that dismissal im II order he would have proper case, in this I would arrive at order, perhaps chosen a final Mr. Good- grounds that result on that would not particular objection man had no to what- question finality reach the of the might approved ever schedules ry to car- only Phase I order. The case cited to us increase, assuming out the rate the va- squarely question, Judge on that the late lidity increase, but to the opinion in Holtzoff’s Leeman v. Public crease. Commission, F.Supp. 553, Utilities (D.D.C.1952), rev’d on other Capital sub nom. Transit v.Co. IN THE OF THE APPEAL SCOPE Commission, Public Utilities 93 U.S. THE DISTRICT COURT App.D.C. 194, denied, 213 F.2d cert. ap includes in his Goodman 348 U.S. 75 S.Ct. 99 L.Ed. 643 challenge peal Court a (1954), held that right proceeds to retain PEPCO’s first Commission was surcharge. the interim He maintains interlocutory effect an order for- an in PEPCO not entitled to mulating merely principles magnitude crease authorized new rate should schedules Interim much less autho prescribed, while the second order by order, and, rized the Phase I there prescribing the actual rates should be fore, that PEPCO is not entitled to re regarded as the final order. any proceeds tain in ex of the interim by opinion I am not convinced the rightful agree cess a We increase. majority Judge that Holtzoff was increase, that total which of course the wrong, and since find I an alternative surcharge, includes interim is the re ground reversing for the dismissal below appeal viewable on his to the District I would not hold that I the Phase order Court, appeal if not as the were final, appealable was a order. itself, the Interim the order but because by increase in authorized that order is Finality the in the cluded the increase carried into I Phase Order Accordingly, ap Phase I the order. if My problem majority opinion with the peal to the were result a decision that stems from what seems me to be a surcharge excessive, interim 5% misconception of the I order and Phase PEPCO would to refund the place pro- its rate Commission’s excess. ceeding, the and a confusion between concepts of revenues rates. The and Whether, extent, or to what the re- majority says, page the at that by view the District Court of validi- the an order “authorizes” ty by of the increase authorized “operating revenues,” and then con- might I Phase order affect Phase II by saying tinues that “increase order must abide result of way . rates . . in no left [was] from the Phase I order and such further further for decision II or- Phase proceedings, any, if before the Commis- der.” Neither of these accu- statements might sion as Dis- be called for rately represents process by which trict Court’s decision on requests considers for I Phase order. (cid:127) changes in rates. Reversed and remanded further Only any one order ever “authorizes” any proceedings opinion. increase in revenue to consistent with this the utili- order, confirming appel- juris- subject Phase II the Commission’s ties regarding II lant’s contentions him, a Phase order effect order is diction. That authorizing prior imposition a new was issued to the disposition majori- paid to Court’s below. The must of rates which schedule customers, ty, utility page properly notes, however: thus at the creasing “Had II .order eliminated received. of revenue amount rates, order, order that effect might Mr. Goodman’s II It is Phase proceed- a case.” Isn’t this completes have different alone, the rate that changes why possibility precisely ultimately I Phase or- ings authorizes sug- only interlocutory? utility I Phase der is would rates. The in consumers’ recognition possi- findings gest merely that such certain makes order bility amply (on questions as the demonstrates that such determinations return, appropriate base, chosen rate of course permit rate premature interruption service, portion D.C. allocation of ratemaking procedure. needed Commission’s of additional revenue amount return, majority’s subseqeunt yield appropriate rate of concern by waiting etc.) necessarily preliminary the Phase II ef- order’s which are appropriate rate fect “his to consideration of time Judge might expire, specious. If I order” is is in this sense schedule. It ap- final, only the Phase pealable order, order Holtzoff considered ap- merely interlocutory by petition- nature, and that then be proach ing proper for its reconsideration and subse- to me. seems appealing quently court, appellant to this Though chosen to the Commission has could raise the same contentions he decisionmaking procedure bifurcate its precisely the raised here. This is separate phases, no doubt into these procedural Judge context hearing proc- simplify the and decisional Leeman, swpra, Holtzoff ruled in by dealing with fewer issues each ess prescribing final “the the ac- stage, single proceed- is nonetheless brings up prior tual rates for review the produces ing order effec- one principles which formulated the tuating an altered customer rate sched- on the new rates should be based.” majority long quotation The ule. Finally, the portion entire third of page opinion, Boston majority opinion problems the and the it me Marine Ass’n to Terminal seems case by requiring raises would obviated be result, by permit- to undercut their that the Phase II order is final ting review Phase I the ma- order appealable. orderly “disrupt process jority the would stage “legal adjudication” at a of before The Dismissal was Nonetheless consequences” cus- sense —in Improper higher obligation pay to rates— tomers’ agency As action.” “will flow from foregoing is It obvious from the that majority concedes, “there was some- majority’s re- I consider decision do”; thing to else for garding finality the Phase I order of “something else” was determine that to unwise, is even but I do not believe it for, schedule, and order a trary rate con- new necessary question find reach that majority’s NO conclusion improper the District dismissal Court’s . . had been “increase in rates granted” . petitioned When Mr. Goodman here. I Phase order. reconsideration the Commission for portions order, responded third second and PEPCO prob- arguments concerning opinion demonstrate the the same with finality adopted lems inherent in their as those determination of that order finality dismissing question. Mr. for- in We have the the District Court Commission, appeal. The tuitous circumstance on these facts that Goodman’s reject petition (1951); however, on did not and cases collected in 2 Dav K. holding procedural ground, is, instead: that Administrative Law 17.- Treatise §§ (1958 Supp.). -.06 & 1970 This ques- see to decide this no need [W]e recognized early court at an date that: petition passing before tion estoppel “The doctrine of election and petition we us. If concluded that applied great be must with caution to however, untimely, re- it be would the Government and its But officials. [subsequent to the issuance filed proper apply.” it circumstances does Phase II would order] we Vestal v. Commissioner of Internal Reve it on merits. to consider have nue, U.S.App.D.C. 264, 268, 152 F.2d merits, Having now at those looked (1945); see United v. States petition have concluded Bank, Fox Lake State 366 F.2d out- should be denied (7th 1966); 965-966 Cir. Semaan why no reason lined above. We see Mumford, U.S.App.D.C. 282, 335 F. this we should so indicate at time 2d 704 Smale & Inc. Robinson determining rather whether than States, F.Supp. (S.D v. United our known should wait to make views .Cal.1954) . But see Kondo v. Katzen is II e. until order after [i bach, U.S.App.D.C. 12, 24, 356 F. event result issued]. 2d Professor Dav same. provides is a succinct rationale for al Commission, By es- this order lowing estoppel in eases such as this : sence, told is irrele- Mr. Goodman “It your petition is filed equitable to us whether Since the vant doctrine of es- now, order, toppel or lat- to review our Phase is founded of what ideas er, adjustment II party order —we to review our is fair when one petition on its mer- has considered the relied have to his detriment what wholly party out, it is without the other its and decided has held forcefully Having why un- so hard to see merit.” the ideas fairness Goodman, qualifiedly parties Mr. informed should differ one of when happens governmental the Com- means of official be a unit futility pursuing mission, his Davis, supra, 17.09 regard K. any subsequent petition § order, acting believe the Commission, ease the In this estopped denying authority mission should scope of within timely peti- the District through a lawful issuance of they tion from a final had filed. been represented Goodman petition for reconsid- long recognized had considered It since been him that for party its merits and pursue eration on a “[a] not ” subsequent petition same on the Span- plainly remedy file a . futile . . . a whol- a would be Broadcasting at later time ish v. International Co. rep- Relying ly FCC, U.S.App.D.C. futile exercise. 128 F.2d 385 brought his see, g., 615, (1967); Mr. Goodman resentation e. Montana 626 Na- District that order County, Bank v. tional Yellowstone petition for re- Court, 505, and did file 499, 331, L.Ed. 673 U.S. S.Ct. 606, order. Macy, consideration Waite v. 246 U.S. thereby estoppel was that an hold would 62 L.Ed. S.Ct. District and order the many to as- established And while courts continue consid- order and general gov- its dismissal proposition to reverse sert as though it on its merits equitably er the ernmental units cannot be es- final, as an topped, estoppel theory arisen frequent- an had against II, the Commission’s increasingly order and ly, been used petition for reconsideration governmental aof denial both federal local bod- theory estoppel States, g., See, e. Moser v. United thereof. Such ies. “finality,” “af- wholly thus avoid L.Ed. 729 U.S. S.Ct. “scope appeal” so issues feet” and

questionably resolved providing

opinion, while judicial review of the Commis- is, in all sion’s to which he fair- orders

ness, entitled. SPRIGGS, of Him-

Harold A. On Behalf Similarly self and All Others Situated, Appellant, Washington, Lefstein, D. Mr. Norman Jerry Police, WILSON, al. Chief of et V. Joseph Pauli, C., Wash- with whom ington, appointed Dis- (both C. No. 24719. D. brief, appel- Court), for on the trict Appeals, United States Court lant. Columbia Circuit. Roistacher, S. Asst. U. Mr. Charles H. Argued Feb. 1972. A. Atty., Thomas with whom Messrs. July 27, 1972. Decided Atty. Flannery, the time U. S. Terry filed, and Mrs. John A. brief was Park, Attys., were U. Asst. S. Ellen Lee brief, Harold appellee. Mr. Jr., Atty., entered Titus, also

H. U. S. appellee. appearance for Judge, FAHY, Circuit Before Senior MacKINNON, Circuit and TAMM Judges. Judge: MacKINNON, Circuit of an reversal appeal seeks This dismissing appel- District Court de- complaint class lant’s concerning various claratory judgment lineup procedures police aspects of the Specifically, of Columbia. the District brought on behalf complaint was suspects “all Spriggs appellant of Colum- cases criminal past required in the been bia who in the future ordered or who will be lineups [the conducted appear Re- Appellant’s Metropolitan Police].” sought relief Brief, 12. The ply

Case Details

Case Name: Leonard S. Goodman v. Public Service Commission of the District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 12, 1972

Citation: 467 F.2d 375

Docket Number: 24944

Court Abbreviation: D.C. Cir.