No. 98-1761
In the Supreme Court of the United States
RAINSONG COMPANY, PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION
AND DEPARTMENT OF AGRICULTURE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
DOUGLAS W. SMITH
General Counsel
JAY L. WITKIN
Solicitor
JOHN H. CONWAY
Deputy Solicitor
TIMM L. ABENDROTH
Attorney
Federal Energy Regulatory
Commission
Washington, D.C. 20426
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether petitioner failed to file its petition for review of an order of
the Federal Energy Regulatory Commission within the statutory period prescribed
by 16 U.S.C. 825l(b).
In the Supreme Court of the United States
No. 98-1761
RAINSONG COMPANY, PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION
AND DEPARTMENT OF AGRICULTURE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-8a) is reported at 151
F.3d 1231. The March 28, 1997 order of the Federal Energy Regulatory Commission
(Pet. App. 25a-36a) is reported at 79 Fed. Energy Reg. Comm'n Rep. (CCH)
¶ 61,338. The Commission's June 13, 1997 order denying rehearing (Pet.
App. 37a-49a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on August 19, 1998. A petition
for rehearing was denied on December 2, 1998 (Pet. App. 9a). The petition
for a writ of certiorari was filed on March 2, 1999. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1). Jurisdiction to adjudicate
petitioner's claims under 16 U.S.C. 825l(b) is disputed.
STATEMENT
1. The Federal Power Act (FPA), 16 U.S.C. 791a et seq., provides that a
party aggrieved by an order of the Federal Energy Regulatory Commission
(Commission or FERC) may obtain judicial review in the court of appeals
by filing "within sixty days after the order of the Commission upon
the application for rehearing[] a written petition praying that the order
of the Commission be modified or set aside in whole or in part." 16
U.S.C. 825l(b). The FPA further specifies that orders of the Commission
"shall be effective on the date and in the manner which the Commission
shall prescribe." 16 U.S.C. 825h. To implement those statutory mandates
(among others), the Commission promulgated 18 C.F.R. 385.2007(b)(1), which
provides:
(1) Any Commission rule or order is deemed issued when the Secretary does
the earliest of the following:
(i) Posts a full-text copy in the Division of Public Information;
(ii) Mails or delivers copies of the order to the parties; or
(iii) Makes such copies public.
Finally, 18 C.F.R. 385.2007(c)(1) provides that, "[u]nless otherwise
ordered by the Commission, rules or orders are effective on the date of
issuance."
2. In 1984, petitioner applied to FERC for a license to build a hydroelectric
project in the Olympic National Forest. Pet. App. 25a. Under the FPA, "licenses
shall be issued within any [forest] reservation only after a finding by
the Commission that the license will not interfere or be inconsistent with
the purpose for which such reservation was created or acquired[.]"
16 U.S.C. 797(e). After an initial round of proceedings before the Commission
and the court of appeals (see Pet. App. 10a-24a), the Commission denied
petitioner's application as inconsistent with the purposes for which the
forest was created (id. at 25a-36a), and it reaffirmed that disposition
in an order denying rehearing (id. at 37a-49a). The Commission issued the
latter order on June 13, 1997, posting it in the agency's Public Reference
Room on that date. See id. at 3a, 8a n.1. Several days later, on June 18,
the Commission's Secretary mailed petitioner a copy of the order, which
stated on its face that it had been issued on June 13. See id. at 5a, 8a
n.2.
On August 15, 1997, petitioner filed a petition for review in the court
of appeals (Pet. App. 3a), which dismissed the petition as untimely. The
court explained that 16 U.S.C. 825h delegates to the Commission the authority
to determine the date on which an order becomes effective; that, under 18
C.F.R. 385.2007(b), the order in question was issued on June 13, 1997, the
date it was posted, not on the slightly later date on which it was mailed;
and that petitioner's appeal was therefore untimely because it was filed
more than 60 days after June 13. Pet. App. 3a-8a.
ARGUMENT
The court of appeals' disposition of this case was correct and warrants
no further review.
Any party challenging a final order of the Commission must file a petition
for review within 60 days "after the order." 16 U.S.C. 825l(b).
Congress granted the Commission authority to determine the "date"
on which, and the "manner" in which, "[o]rders of the Commission
shall be effective." 16 U.S.C. 825h. Despite petitioner's contrary
suggestion (Pet. 8), Congress did not distinguish among the "purposes"
(ibid.) for which the Commission may exercise its authority to determine
the date and manner of an order's effectiveness; that authority is unqualified,
and it encompasses the authority to determine when the period for filing
a petition for review begins to run. The Commission's regulations specifically
provide that an order is "deemed issued" (and is therefore "effective")
when the Secretary either "[p]osts a full-text copy in the Division
of Public Information," "[m]ails or delivers copies of the order
to the parties," or "[m]akes such copies public," whichever
is "earliest." 18 C.F.R. 385.2007(b)(1) and (c)(1). That regulation
disposes of the question presented here, for it confirms that the period
for filing a petition for review began on June 13, 1997, 63 days before
petitioner filed its petition for review. See generally Mesa Airlines v.
United States, 951 F.2d 1186, 1188-1189 (10th Cir. 1991); National Black
Media Coalition v. FCC, 760 F.2d 1297, 1299 (D.C. Cir. 1985).1
Petitioner nonetheless contends (Pet. 6) that the Commission failed to comply
with 18 C.F.R. 385.2010(g)(2), which requires service "not later than
the date of the filing," and that this alleged noncompliance delayed
the order's date of issuance for purposes of appellate review. Even if Section
385.2010(g)(2) were properly construed to apply to orders of the Commission
itself in addition to the "filing[s]" of parties appearing before
the Commission, the provision would have no bearing on the issue presented
here. Section 385.2010(g)(2) simply addresses the timing of service; it
does not address an order's effectiveness or date of issuance, and it cannot
operate to toll the relevant period for filing a petition for review. See
generally Stone v. INS, 514 U.S. 386, 405 (1995).
Finally, petitioner claims that "the effect of the decision of the
Court of Appeals is to completely liberate FERC from any obligation to serve
its decisions upon applicants at all, opening the door to agency abuse and
manifest injustice." Pet. 5. That is incorrect. The court of appeals
specifically declined to "address the case where an agency intentionally
violates its regulations and notifies a party of its decision so late that
the party cannot file a timely notice of appeal." Pet. App. 8a n.2.
This is certainly not such a case: Although the Commission mailed petitioner
a copy of the order on June 18 rather than June 13, the order stated on
its face that it had been issued on June 13, and petitioner could not plausibly
claim that the minor delay in service prejudiced its ability to file a petition
for review within 60 days of that date.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DOUGLAS W. SMITH
General Counsel
JAY L. WITKIN
Solicitor
JOHN H. CONWAY
Deputy Solicitor
TIMM L. ABENDROTH
Attorney
Federal Energy Regulatory
Commission
JULY 1999
1 Hill v. Hawes, 320 U.S. 520 (1944), upon which petitioner relies (Pet.
8), is inapposite. In that case, a district court had failed to serve the
parties with copies of its order, and the time for filing a notice of appeal
expired before any service was made. To make the losing party whole, the
district court vacated its initial order and reentered its judgment, thereby
resetting the clock for filing a notice of appeal. This Court upheld that
disposition as within the district court's "sound discretion."
320 U.S. at 524. That holding does not support the proposition that a minor,
nonprejudicial delay in service confers a constitutional right on a party
to disregard the effective date of an administrative order when calculating
the period for filing a petition for review. The court of appeals cases
on which petitioner relies (Pet. 8-9) are similarly inapposite. In City
of Batavia v. FERC, 672 F.2d 64 (D.C. Cir. 1982), the court assumed without
discussion that the order in question was issued on the day it was mailed;
although a dispute arose concerning the manner of that mailing, the court
ultimately resolved the timeliness question on unrelated grounds. Id. at
72-73 & n.14. In Energy Probe v. NRC, 872 F.2d 436 (D.C. Cir. 1989),
the agency's order was both signed and mailed on the same date, and the
court held only that the period for filing a review petition began on that
date rather than the later date on which the aggrieved party received the
mailing. Id. at 437-438. Finally, in B.J. McAdams, Inc. v. ICC, 551 F.2d
1112 (8th Cir. 1977), the dispute involved whether the period for filing
a petition began on the date of the ICC's final order or only after the
ICC subsequently denied a discretionary administrative appeal, an issue
not presented here. See id. at 1114-1115. Although the court added that
the period began when the aggrieved party "received notice" of
the order denying the administrative appeal (id. at 1115), it did not explain
why receipt was the triggering event, and even petitioner does not argue
that receipt is the triggering event here. See Pet. 8 (arguing that the
relevant period here began when "notice had been sent").