Clifton Power Corp. v. Federal Energy Regulatory Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 2002 Decided June 28, 2002

No. 01-1139

Clifton Power Corporation,
Petitioner

v.

Federal Energy Regulatory Commission,
Respondent

On Petition for Review of an Order of the
Federal Energy Regulatory Commission

Carolyn Elefant argued the cause for petitioner. With her
on the briefs was Paul V. Nolan.

Judith A. Albert, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on
the brief were Cynthia A. Marlette, General Counsel, and
Dennis Lane, Solicitor.

 Before: Ginsburg, Chief Judge, and Rogers and Garland,
Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Clifton Power Corporation peti-
tions for review of an order of the Federal Energy Regulato-
ry Commission imposing a civil penalty in the amount of
$15,000. Because the petition is incurably premature, we
dismiss it for want of jurisdiction.

I. Background

Clifton operates a hydroelectric power project on the Paco-
let River in South Carolina. In 1991 the Commission issued a
Notice of Proposed Penalty against Clifton for failing to
install stream-flow monitoring equipment as required by a
condition of Clifton's license. See Clifton Power Corp., 54
F.E.R.C. p 61,339 (Mar. 13, 1991). An Administrative Law
Judge determined that the penalty of $148,000 proposed by
the staff of the Commission -- being $200 for each of 740
days of noncompliance -- was "grossly excessive" and re-
duced the fine to $15,000. Clifton Power Corp. 65 F.E.R.C.
p p 63,007, 65,039 (Oct. 29, 1993). The Commission rejected
several of the ALJ's findings and raised the penalty to
$122,100 -- or $165 for each of the 740 days. See Clifton
Power Corp., 69 F.E.R.C. p p 61,087, 61,345-46 (Oct. 26,
1994).

On review we upheld the Commission's finding that Clifton
had violated its license. See Clifton Power Corp. v. FERC, 88
F.3d 1258, 1266 (D.C. Cir. 1996) (Clifton I). We vacated the
penalty of $122,100, however, because in rejecting the ALJ's
well-supported assessment of the appropriate sanction the
Commission had "neither met its responsibility of reasoned
decisionmaking nor considered the totality of the evidence."
Id. at 1271. On remand the Commission adopted the initial
decision of the ALJ and reinstated the proposed penalty of
$15,000. See Clifton Power Corp., 92 F.E.R.C. p p 61,263,
61,875 (Sep. 28, 2000). The Commission denied Clifton's
request for rehearing, 94 F.E.R.C. p 61,332 (Jan. 25, 2001),
but granted Clifton's request for a stay pending judicial
review, id. at p 61,338.

 On February 26, 2001 Clifton filed with the Commission a
second "Request for Rehearing and Reconsideration." On
March 20, 2001, with the second request still pending before
the Commission, Clifton filed the instant petition for judicial
review. Eight days later the Commission denied the second
request for rehearing. 94 F.E.R.C. p 62,275 (Mar. 28, 2001).

II. Analysis

Clifton asserts that the penalty of $15,000 violates the
mandate in Clifton I, fails to comport with the requirements
of the Small Business Regulatory Fairness Enforcement Act,
5 U.S.C. s 601 et seq., is otherwise arbitrary and capricious in
violation of the Administrative Procedures Act, 5 U.S.C.
s 706(2)(A), and denies it due process of law. The Commis-
sion responds that Clifton's second request for administrative
reconsideration, although submitted before Clifton had filed
its petition for judicial review, rendered the Agency's order
imposing the penalty non-final, and thereby ousted the court
of jurisdiction.

This court is ordinarily without jurisdiction to review an
agency action that is not final. See Cobell v. Norton, 240 F.3d
1081, 1095 (D.C. Cir. 2001); accord, Papago Tribal Util.
Auth. v. FERC, 628 F.2d 235, 238 (D.C. Cir. 1980) (non-final
action not subject to review per s 313(b) of Federal Power
Act). A request for administrative reconsideration renders
an agency's otherwise final action non-final with respect to
the requesting party. See United Transp. Union v. ICC, 871
F.2d 1114, 1116 (D.C. Cir. 1989). Our cases make clear that a
petition seeking review of such a non-final action is not only
premature but incurably so: "subsequent action by the agen-
cy on a motion for reconsideration does not ripen the petition
for review or secure appellate jurisdiction." TeleSTAR, Inc.
v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989). Instead, the
party that had sought administrative reconsideration may, if
reconsideration is denied, challenge that denial as well as the
agency's original order by filing a timely petition for review of
both orders. The time for filing the petition for review is
tolled until all proceedings before the agency have been

completed. See ICC v. Bhd. of Locomotive Eng'rs, 482 U.S.
270, 284 (1987) ("timely petition for administrative reconsider-
ation stay[s] the running of the Hobbs Act's limitation period
until the petition had been acted upon by the Commission").

When the Commission denied Clifton's first request for
rehearing in January, 2001, the Company had 60 days within
which to petition for judicial review. See 16 U.S.C. s 825l(b).
During that time Clifton had to choose "between rehearing
before the agency or immediate court review." Tennessee
Gas Pipeline Co. v. FERC, 9 F.3d 980, 981 (D.C. Cir. 1993).
Having chosen in February to return to the Commission,
Clifton could not seek judicial review until its request for
administrative reconsideration was resolved by the Commis-
sion on March 28. See id. at 980 ("It is well-established that
a party may not simultaneously seek both agency reconsider-
ation and judicial review of an agency's order"). The present
petition, filed on March 20, before there was a final agency
action for the court to review, is therefore incurably prema-
ture, and we must dismiss it for lack of jurisdiction.

But stop: Clifton contends that the "unique provisions of
the FPA distinguish this case" from any we have dismissed
before as incurably premature. Section 313(a) of the FPA
provides that the Commission may modify or set aside any
order, even after a petition for judicial review has been filed,
"until the record in [the] proceeding shall have been filed in a
court of appeals," 16 U.S.C. s 825l(a); and section 313(b)
declares that "[u]pon the filing of [a] petition [the] court shall
have jurisdiction, which upon the filing of the record with it
shall be exclusive," id. s 825l(b). Taken together, these
provisions contemplate that the Commission and the court
will have concurrent jurisdiction over a matter from the time
a party petitions for judicial review until the Agency certifies
the record to the court, which the Agency must do within 40
days of the filing of the petition, per Federal Rule of Appel-
late Procedure 17(a). Clifton argues that because the Com-
mission is therefore free to modify its ruling for a time after a
petition for review has been filed, no useful purpose is served
by forcing the petitioner to wait until the Commission has
resolved its pending administrative requests.

 This argument is based upon an inaccurate understanding
of both s 313(a) and our cases.* This court has held already
that a petition lodged pursuant to 15 U.S.C. s 717r(b) -- a
provision of the Natural Gas Act identical in all relevant
respects to s 313 of the FPA -- must be dismissed if filed
prematurely. See Tennessee Gas, 9 F.3d at 981; see also
City of New Orleans v. SEC, 137 F.3d 638, 639 (D.C. Cir.
1998) (dismissing petition filed under similar provision of
s 24(a) of the Public Utilities Holding Company Act, 15
U.S.C. s 79x(a)). Nor is s 313 "unique" (or even unusual) in
authorizing an agency to revise its decision, even after a
petition for review has been filed, until such time as the
agency has filed its record with the reviewing court. See Act
of August 8, 1958, Pub. L. No. 85-791, 72 Stat. 941 s 16
(1958) (amending s 313 and judicial review provisions of 37
other statutes to allow agencies to exercise concurrent juris-
diction). It is the petitioner's request for administrative
rehearing, not the agency's authority to reconsider a decision,
that renders the agency's decision non-final as to the petition-
er and renders the previously-filed petition for judicial review
incurably premature. See Wade v. FCC, 986 F.2d 1433, 1434
(D.C. Cir. 1993) ("Wade's request for agency reconsideration
rendered the underlying action nonfinal, regardless of the
order of filing").

There is good reason to prohibit any litigant from pressing
its cause concurrently upon both the judicial and the adminis-
trative fronts: a favorable decision from the agency might yet
obviate the need for review by the court. See New Orleans,
137 F.3d at 639. Clifton would have the court receive its
petition, place the case on the docket, process the initial
submissions of all the parties, and entertain various prelimi-
nary motions while at the same time the petitioner under-

__________
* On the eve of oral argument, counsel for the Commission
advised the court that because Clifton seeks review of a penalty
assessment, s 31 of the FPA, 16 U.S.C. s 823b(d)(2)(B), "may
govern the procedures for petitioning for review instead of the
review provisions of section 313." We need not pass upon the
question, however, as we are without jurisdiction under either
provision.

takes before the Commission to get further relief that would
make the case moot and our efforts supererogatory. See
TeleSTAR, 888 F.2d at 134 ("it is a pointless waste of judicial
energy for the court to process any petition for review before
the agency has acted on the request for reconsideration").
Those efforts may be multiplied many fold if the petitioner
moves the court for a stay of the agency's order pending
appeal -- which requires a panel of the court to conduct
within a few days a searching inquiry encompassing, among
other things, whether the petitioner is likely to prevail on the
merits of its case, see Ayuda, Inc. v. Thornburgh, 919 F.2d
153, 153 (D.C. Cir. 1990). The costs of exercising the judicial
power are simply too high to allow a litigant lightly to start
down, only opportunistically to abandon, the path of judicial
review, cf. Allen v. Wright, 468 U.S. 737, 752 (1984) ("federal
courts may exercise power only in the last resort and as a
necessity"); and the same "danger of wasted judicial effort
that attends the simultaneous exercise of judicial and agency
jurisdiction ... arises whether a party seeks agency reconsid-
eration before, simultaneous with, or after filing an appeal or
petition for judicial review," Wade, 986 F.2d at 1434.

The Company raises four other arguments, each of which
we may reject in short order. First, Clifton contends that
the requirement of finality is merely a prudential consider-
ation, with which we may dispense, rather than a jurisdiction-
al prerequisite. Our cases flatly foreclose this argument, see
New Orleans, 137 F.3d at 639 (petition filed prematurely "will
be dismissed for lack of jurisdiction"), and it is of no help to
Clifton that the court once purported to waive this require-
ment, see TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C. Cir.
1989), because there now is no doubt that the questions of
jurisdiction cannot be pretermitted, see Steel Co. v. Citizens
for a Better Env., 523 U.S. 83, 94-95 (1998).

Second, Clifton claims that the Commission's denial of its
second request for reconsideration "can be deemed as having
ripened Clifton's petition for review for jurisdictional pur-
poses." Our precedent, however, makes clear that prematuri-
ty is an incurable defect: "even if the agency acts on the
administrative reconsideration motion before argument is

heard on the judicial review petition," we must dismiss for
want of jurisdiction. New Orleans, 137 F.3d at 639.

Third, Clifton refers the court to certain arguments that it
presented in preliminary filings before this court, which argu-
ments Clifton omitted from its briefs "due to page con-
straints." We will not countenance Clifton's attempt to cir-
cumvent the page limits, however, see Fed. R. App. P.
32(a)(B)(i), and we accordingly will not address any argu-
ments that Clifton has not presented in its briefs, see Fed. R.
App. P. 28(a)(9)(A) (requiring petitioner's brief to contain the
litigant's "contentions and the reasons for them").

Lastly, the Company contends that it "need not comply
with the jurisdictional prerequisites of seeking rehearing
under Section 313" because "this proceeding, although styled
as a petition for review, calls upon the court to invoke its
inherent powers of mandamus and enforcement to ensure
that the Commission has complied with its order" in Clifton I.
True it is that a "federal appellate court has the authority,
through the process of mandamus, to correct any misconcep-
tion of its mandate by a lower court or administrative agency
subject to its authority." Office of Consumers' Counsel v.
FERC, 826 F.2d 1136, 1140 (D.C. Cir. 1987). Clifton falls far
short of making out its entitlement to a writ of mandamus,
however; the "remedy of mandamus is reserved for extraor-
dinary circumstances in which the petitioner demonstrates
that his right to issuance of the writ is clear and indisputa-
ble," Byrd v. Reno, 180 F.3d 298, 302 (D.C. Cir. 1999).

Our decision in Clifton I instructed the Commission that it
may neither punish Clifton because other power projects
owned by the same licensee had violated the FPA, see Clifton,
88 F.3d at 1267, nor "refus[e] to consider record evidence
regarding Clifton's inability to pay," id. at 1267; and must
calculate any penalty according to the statutory factors set
out in 16 U.S.C. s 823b(c), see id. at 1271. The Commission's
decision to adopt the opinion of the ALJ, thereby reducing
the proposed penalty to $15,000 from $122,000, presumably
reflects the Commission's effort to follow those instructions.
In any event, Clifton falls far short of showing that "the writ

is necessary to emend a clear error or abuse of discretion."
Philip Morris Inc. v. Venezuela, 287 F.3d 192, 198 (D.C. Cir.
2002).

III. Conclusion

Having determined that we are without jurisdiction to
consider Clifton's petition, and that Clifton is not entitled to a
writ of mandamus to enforce our mandate in Clifton I, we do
not address Clifton's arguments on the merits. For the
foregoing reasons, the petition for review is

Dismissed.