California Department of Water Resources v. Federal Energy Regulatory Commission

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ORDER

The only issue raised in the Federal Energy Regulatory Commission’s (“FERC”) petition for rehearing is whether this court lacked jurisdiction to review a FERC decision because it was not sufficiently final. Our opinion is reported at 341 F.3d 906 (9th Cir.2003).

FERC argues that we do not have jurisdiction because the California Department of Water Resources (“DWR”) sought judicial review of one issue in a FERC order, while simultaneously seeking agency reconsideration of separate, unrelated issues in the same order. FERC asks us to follow a D.C. Circuit case which held that “once a party petitions[an] agency for reconsideration of an order, or any part thereof, the entire order is rendered nonfi-nal as to that party.” BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994).

The Ninth Circuit takes another view of finality. In Steamboaters v. FERC, 759 F.2d 1382, 1387-88 (9th Cir.1985), we held that we had jurisdiction to review a FERC order. In that case, FERC had definitively resolved one issue, but a different issue was still pending before FERC because FERC had, in the same order, deferred decision on that issue. Under the rule in Steamboaters, the fact that one part of an agency order remains pending before the agency does not deprive this court of jurisdiction to review a discrete issue that has been definitively resolved by the,agency.

*521Our court and other courts have cited the D.C. Circuit opinion in BellSouth for the proposition that a petition for agency reconsideration by one party does not affect the right of other parties to seek judicial review. See, e.g., Public Citizen, Inc. v. Mineta, 343 F.3d 1159, 1170 (9th Cir.2003); Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1171 n. 6 (D.C.Cir.1994). BellSouth also stands for the general proposition that a party cannot seek agency reconsideration and judicial review of the same issue at the same time. See, e.g., Public Citizen, 343 F.3d at 1170; AirTouch Paging v. FCC, 234 F.3d 815, 818 (2d Cir.2000). We are unable to find any authority outside the D.C. Circuit, however, holding that a court is deprived of jurisdiction to review an issue definitively resolved by an agency when the party before the court has also sought agency reconsideration of a separate issue that happens to be addressed in the same agency order. DWR contends that not even the D.C. Circuit continues to follow that view. Its law is not entirely consistent in this area. Compare BellSouth, 17 F.3d at 1489-90 (holding an entire order is rendered nonfinal when the party before the court petitions for agency reconsideration of any part of that order) with Fourth Branch Associates v. FERC, 253 F.3d 741, 746-47 (D.C.Cir.2001) (holding that one action taken in an agency order was final while at the same time holding that another action initiated in the same order was nonfinal).

Regardless of the law in the D.C. Circuit, this panel is bound by Steamboaters. Only the en banc court can reconsider Ninth Circuit law. Murray v. Cable Nat’l Broad. Co., 86 F.3d 858, 860 (9th Cir.1996). There are, moreover, sound reasons for our circuit to reject the view articulated in BellSouth, primarily because it has the potential to delay judicial review, possibly indefinitely. This is a particular danger where, as here, a single FERC order deals with myriad issues pertaining to DWR but unrelated to the issue that DWR wants this court to review. This risk of delay is enhanced because FERC follows a practice of denying motions for reconsideration and addressing previously uneonsidered issues in the same order.

A review of the relevant' agency proceedings in this ease illustrates the point. After the June 19, 2002 FERC order in question, DWR sought either judicial or administrative review of three separate issues. It sought review in this court of the denial of rehearing of the outage control that we resolved in this appeal. It sought agency reconsideration, however, of two issues that were decided for the first time in the June 19th order. Because FERC followed its ordinary practice and resolved new issues while at the same time denying reconsideration of old issues, DWR could only accomplish its two objectives by simultaneously seeking agency reconsideration of some, and judicial review of other, discrete issues that FERC had resolved in the same order.

FERC’s practice would create a problem if we were to adopt the approach to finality FERC now urges. If we were to hold that DWR could not seek judicial review until there were no issues pending agency rehearing, our holding could well force DWR to forego seeking agency reconsideration of issues or postpone judicial review until the day FERC issues an order that denies reconsideration without resolving any new issues. The Steamboaters rule avoids this dilemma because it allows DWR first to seek agency reconsideration and, if unsuccessful, to seek prompt judicial review once issues have been definitively resolved by FERC. Therefore, we conclude that we properly exercised jurisdiction over DWR’s petition for review of FERC’s or*522der denying reconsideration on the outage control issue.

For these reasons, the panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are denied.