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CELANESE CORP. v. FEDERAL ENERGY ADMIN.

February 11, 1976

CELANESE CORPORATION, ET AL., Plaintiffs,
v.
FEDERAL ENERGY ADMINISTRATION, ET AL., Defendants



The opinion of the court was delivered by: GASCH

 This case came on for hearing on the defendants' motions to transfer this matter to the Eastern District of Michigan pursuant to 28 U.S.C. §§ 1404(a) or 1406(a). For the reasons stated in this Memorandum, and without ruling on all of the merits of the pending motions to dismiss, *fn1" or the motion of General Motors Corporation for leave to intervene, the Court has determined that this case should be transferred *fn2" pursuant to 28 U.S.C. § 1404(a) *fn3" and, assuming without deciding that Consumers Power Company is an indispensable party, pursuant to 28 U.S.C. § 1406(a). *fn4" The Court has also determined to dismiss the complaint as against Consumers for lack of personal jurisdiction.

 I. Plaintiffs' Claim.

 Plaintiffs are seventeen independent corporations who manufacture petrochemicals and who refer to themselves collectively in this action as the Petrochemical Energy Group, or "PEG." The PEG companies allegedly produce most of the petrochemicals manufactured in the United States and, in so doing, use natural gas, natural gas liquids, *fn5" crude oil, and other petroleum products as raw material. Defendants are the Federal Energy Administration, Frank Zarb (the FEA Administrator), and Consumers Power Company, a Michigan public utility.

 In this action the PEG companies seek a declaratory judgment invalidating certain FEA decisions *fn6" that permitted Consumers Power Company to increase its allocation of natural gas liquids from 7,664 barrels per year to approximately 18 million barrels per year. The PEG companies oppose the increased allocation of natural gas liquids to Consumers Power because, according to para. 13(b) of the Amended Complaint, the increased allocation to Consumers will divert supplies of natural gas liquids "that would otherwise be available to meet the requirements of historic, high priority users, including those of plaintiffs."

 Plaintiffs premise their request for declaratory judgment on several grounds. First, they claim that the FEA order under review here (1) violates the Emergency Petroleum Allocation Act ["EPAA"] *fn7" by failing to provide for an equitable distribution of allocated products as required in the EPAA, and by failing to achieve, to the maximum extent practicable, the objectives set forth in § 4(b) of the EPAA and in the Federal Energy Administration Act of 1974 ["FEAA"]; *fn8" (2) violates the rules and policies set out in FEA regulations; (3) was issued in violation of FEA procedural regulations and without full and fair notice or opportunity to be heard; (4) is not supported by substantial evidence and is arbitrary and capricious.

 II. Procedural Background.

 The PEG companies opposed Consumers' FEA application throughout the administrative proceedings by filing opposing comments and petitions to intervene. When the FEA issued its order on May 21, 1975, granting Consumers' application for an 18 million barrel per year allocation, subject to certain restrictions, the PEG companies promptly filed an administrative appeal *fn9" to FEA's Office of Exceptions and Appeals, in accordance with FEA regulations. *fn10" In their FEA appeal, the PEG companies contended that the FEA should not have increased Consumers' allocation of natural gas liquids, and that the increased allocation was not subject to sufficiently stringent restrictions. Consumers Power Company and numerous other companies also filed administrative appeals *fn11" attacking the conditions imposed on Consumers Power's use of the increased allocation.

 The FEA Office of Exceptions and Appeals issued its Decision and Order in Consumers' appeal on September 16, 1975, and in PEG's appeal on October 20, 1975. By those decisions the respective appeals were granted in part, denied in part, and remanded in part to FEA's Office of Regulatory Programs. Pending the decision on remand, however, the Decisions and Orders on appeal did not decrease the allocation granted by the May 21, 1975, Order.

 The FEA's action on Consumers' appeal prompted the PEG companies to file this suit on September 18, 1975, before the FEA had decided PEG's own appeal. On October 14, 1975, Consumers filed its own suit, in the Eastern District of Michigan, based on the FEA's September 16, 1975, decision on Consumers' appeal. *fn12" Subsequently three of Consumers' customers and the Michigan Public Service Commission each filed suit in the Eastern District of Michigan. *fn13" All five of the Michigan suits attack as too restrictive the conditions imposed on Consumers' use of the natural gas liquid allocation. According to the FEA's memorandum, those five suits have been consolidated for pretrial purposes before Judge Charles Joiner.

 Since the filing dates of the six suits seeking review of the FEA's September 16 Order, the FEA's Office of Regulatory Programs has issued, on December 12, 1975, a Decision and Amended Order on the issues remanded to it by the FEA Office of Exceptions and Appeals. The December 12 Order redrafted and added new findings to the original May 21, 1975, Decision of the Office of Regulatory Programs on Consumers' petition. On February 2, 1976, one week before the hearing on the instant transfer motions, PEG filed its administrative appeal of the December 12 Order. General Motors and other participants in the agency proceedings had also been given until February 2 to file an administrative appeal, and they presumably did so.

 III. Reasons for Transfer Pursuant to 28 U.S.C. § 1404(a).

 In determining whether to transfer this matter to the Eastern District of Michigan, this Court recognizes that where transfer is sought pursuant to § 1404(a), a defendant has the burden of making out a strong case for a transfer and the plaintiff's privilege of choosing the forum is a factor to be considered as against what otherwise might be the balance of convenience between the parties. *fn14" The Court believes that the defendants have met this stringent test in this case by demonstrating that the Michigan venue is not significantly less convenient for plaintiffs, if less convenient at all, that the Michigan venue is more convenient for defendants, and that the transfer is necessary in order to avoid a needless duplication of judicial efforts in resolving suits that present many identical and complex legal issues, stemming from a single administrative agency order. Plaintiffs concede that this suit "could have been brought" in the Eastern District of Michigan. *fn15"

 The interests of justice weigh heavily in favor of transferring this case. This suit seeks judicial review of the same FEA decisions that are at issue in five suits pending now before Judge Joiner in the Eastern District of Michigan. Plaintiffs in this case admit that this suit raises many of the same legal and factual issues that are raised in the five Michigan suits. *fn16" If the suits were to proceed in the two forums simultaneously, two courts would have to review the same agency orders, the same complex and voluminous agency record and decide identical issues of fact and law. Duplicate proceedings not only would result in a waste of judicial time but would doubtless yield conflicting decisions in some instances. *fn17" Moreover, decisions by either court on the issues before it could moot the issues pending before the other court. Under these circumstances, other federal courts have recognized that the "strong policy favoring the litigation of related claims in the same tribunal" *fn18" ...


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