Before PRETTYMAN, Senior Circuit Judge, and FAHY and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 1963.CDC.166
Nos. 17608, 17652, 17700.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
These cases come before us on the consolidated petitions of Texaco, Inc. (No. 17608), Texaco, Inc. and other corporations and individuals (No. 17652), and Sun Oil Co. (No. 17700) for an order granting leave to adduce additional evidence in a hearing now pending before the respondent, Federal Power Commission. Respondent has moved to dismiss the petitions on the ground that they are premature and that this court lacks jurisdiction to consider them at this time.
The issue presented is whether this court has jurisdiction to review, in an interlocutory fashion, the Commission's exclusion of evidence in a hearing in which the Commission has not yet entered its final order.
The several petitioners before us are parties to a proceeding before the Federal Power Commission which involves petitioners' and others' applications for certificates of public convenience and necessity under Section 7 of the Natural Gas Act, 15 U.S.C. § 717f. Amerada Petroleum Corp., Docket CI 62-1544. In No. 17608, the petitioner seeks review of the Commission's refusal to reconsider its denial of petitioner's motion under 18 C.F.R. § 1.23 for production of various Commission records. In No. 17652 and No. 17700, the petitioners seek review of the examiner's rulings sustaining Commission motions to strike certain testimony of petitioners' witnesses and exclude certain exhibits and they also seek review of the Commission's denial of a request for interlocutory appeals under 18 C.F.R. § 1.28.
Petitioners assert that unless they now apply to this court for leave to adduce additional evidence under Section 19(b) of the Natural Gas Act, 15 U.S.C. § 717r(b), during the pendency of the administrative hearing, i.e., take an interlocutory appeal, that, as they read the controlling law, their right to petition the court later for leave to offer additional evidence may be lost. They rely essentially on Communist Party v. Subversive Activities Control Board, 102 U.S.App.D.C. 395, 403-405, 254 F.2d 314, 322-324 (1958); Same, 107 U.S.App.D.C. 279, 281-282, 277 F.2d 78, 81 (1959), aff'd, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961). In its motion to dismiss the petitions, the Federal Power Commission asserts that Section 19(b) of the Natural Gas Act confers jurisdiction on this court to pass on only "orders of a definitive character dealing with the merits of a proceeding before the Commission and resulting from a hearing upon evidence and supported by findings appropriate to the case." Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 384, 58 S. Ct. 963, 967, 82 L. Ed. 1408 (1938). See also, Algonquin Gas Transmission Co. v. Federal Power Commission, 201 F.2d 334, 337-338 (1st Cir. 1953); Texaco, Inc. v. Federal Trade Commission, 301 F.2d 662 (5th Cir.), (per curiam) cert. denied, 371 U.S. 822, 83 S. Ct. 40, 9 L. Ed. 2d 62 (1962).
Section 19(b) of the Natural Gas Act delineates the jurisdiction of the Courts of Appeals to review certain orders of the Federal Power Commission.
This statutory provision has virtually identical counterparts in the various statutes regulating judicial review of numerous other federal regulatory agencies. See Appendix.
Petitioners assert that sentence
"As we read the opinion and decision in the Consolidated Edison case [Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 198, 59 S. Ct. 206, 83 L. Ed. 126 (1938) ] it means that, when proffered evidence is denied receipt by the trial tribunal in a case in which a statute similar to Section 10(e) of the National Labor Relations Act
The legal significance of this language as precedent is better understood when it is put in the context of the history of the Communist Party litigation. The evidence with which the court was concerned there was the so-called "Gitlow memoranda." The first time the Party case was before this court, we affirmed the order of the Control Board. 96 U.S.App.D.C. 66, 223 F.2d 531 (1954). At no time prior to that decision by this court did the Communist Party petition this court for leave to proffer the Gitlow memoranda either in an interlocutory fashion or by way of a petition ancillary to the general petition to review the final order of the Control Board. Our decision was reversed by the Supreme Court and the case was remanded to the Control Board. 351 U.S. 115, 76 S. Ct. 663, 100 L. Ed. 1003 (1956). Subsequently we reviewed the Control Board's new order and remanded the case. The language quoted above is found in that second decision by this court. 102 U.S.App.D.C. 395, 254 F.2d 314 (1958). At the time of this court's second decision, the Communist Party had not petitioned this court for leave to adduce the memoranda. After this court's second decision the Communist Party filed its petition for leave to adduce the memoranda, and the petition was denied.
When the case returned here a third time, we held the Party could not raise the issue relating to the Gitlow memoranda because that issue had been decided against them on the second appeal and their failure to petition this court for leave to proffer the evidence prior to that decision could not be cured nunc pro tunc by their subsequent petition. 107 U.S.App.D.C. at 282, 277 F.2d at 81.On the third appeal we affirmed the Control Board's order and our decision was affirmed by the Supreme Court. 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 (1961). The Supreme Court explicitly refrained from deciding the applicability of the Consolidated Edison case to the Communist Party case. 367 U.S. at 30, 81 S. Ct. at 1376, 6 L. Ed. 2d 625. This court's ruling on the Gitlow memoranda was sustained on another ground, namely that the Party's failure to raise the issue on its first appeal in the Supreme Court
The language and holding of this court in the second Communist Party appeal, when considered in light of the facts of that litigation and the Consolidated Edison case, is not to be read as standing for the proposition that a party whose proffer of evidence is rejected in an administrative hearing must then take an interlocutory appeal from the examiner's ruling or forever forego the opportunity of judicial review of that ruling. In the Communist Party litigation, the Communist Party failed to petition this court for leave to adduce the memoranda prior to this court's first review of the Board's order, 96 U.S.App.D.C. 66, 223 F.2d 531 (1954), and the second review, 102 U.S.App.D.C. 395, 254 F.2d 314 (1958).Therefore, when the case came here the second time, the Party was in the ...