Parties considering filing an appeal are welcome to contact the Solicitor’s Office to discuss procedures and appropriate coordination, following issuance of a final Commission order.
In most cases, yes. The Natural Gas Act and the Federal Power Act require that an application for rehearing be made to, and ruled on by, the Commission before a petition for review of a Commission order may be brought. See NGA § 19(a), 15 U.S.C. § 717r(a); FPA § 313(a), 16 U.S.C. § 825l(a). The Interstate Commerce Act, applicable to the transportation of oil by pipeline, does not contain an express statutory rehearing requirement.
In general, an appeal can be filed in either the U.S. Court of Appeals for the District of Columbia Circuit or the U.S. Court of Appeals for the circuit in which the regulated entity is located or has its principal place of business. See NGA § 19(b), 15 U.S.C. § 717r(b); FPA § 313(b), 16 U.S.C. § 825l(b); see also 28 U.S.C. § 2343 (venue in review of actions under the Interstate Commerce Act). An appeal of a final Commission order may not be brought in a U.S. District Court. In addition, jurisprudential considerations, such as standing, ripeness, and mootness, may apply.
A copy of a petition for review that has been received by a Court of Appeals and bearing the court's stamp with the date of filing must be served on the Secretary of the Commission either by mail or by hand delivery. See 18 C.F.R. § 385.2012. A copy must also be served on the Solicitor. In addition, in actions under the Interstate Commerce Act, the United States is a party (28 U.S.C. § 2322), and service on the Attorney General is required (28 U.S.C. § 2344).
The Solicitor’s Office attorney assigned to each case is identified on the Pending Cases page, where all cases are listed alphabetically. The Solicitor’s Office web page also includes further information about New Petitions, Opinions, and Appellate Briefs.
The length of time required to resolve an appeal varies significantly depending on the nature of the case, the court where it is filed, and whether the court holds oral argument on the case, among other factors. Some cases are not ready for briefing when the petition for review is filed, due to the pendency of related Commission or court proceedings, and the parties may move the Court to defer briefing until those related matters are resolved. Once a case is ready for briefing, it can take anywhere from several months to several years for a court of appeals to issue its decision.
Documents included in the record may be obtained from the Commission’s electronic documents library, eLibrary, which can be accessed here on the Commission’s website. In the event that documents cannot be accessed on eLibrary, please contact the Public Reference Room for assistance. For documents containing Critical Energy Infrastructure Information (CEII), please follow the procedures referenced here.
The amount of oral argument time given to intervenors varies with each case and depends upon the circumstances. In many instances, the amount of time given, if any, is decided in coordination with the Commission attorney assigned to the case. In some cases, the court will assign time for an intervenor. In other cases, the court's order setting oral argument time will restrict argument to only one counsel per side. In those cases, an intervenor wishing to argue would need to file a motion with the court for leave to argue.
Yes, most U.S. Courts of Appeals, including the D.C. Circuit Court of Appeals, have a mediation office which may have resources available to parties involved in appeals of Commission decisions. To the extent a negotiated settlement of an appeal requires modification of a final Commission order, the parties to such a settlement should follow Commission procedures for seeking the necessary approvals. See, e.g., 18 C.F.R. § 385.602.
Generally, no. The FERC is an independent agency with independent litigation authority. See 42 U.S.C. § 7171(i). This means that FERC attorneys alone are responsible for the processing and defense of FERC appeals in the courts of appeals, especially those arising under the Federal Power Act or the Natural Gas Act. In a few appeals, such as those arising under the Interstate Commerce Act, the United States of America or another federal agency or department will be a co-respondent. And in all matters proceeding to the U.S. Supreme Court on a petition for writ of certiorari, the Solicitor General at the U.S. Department of Justice, on behalf of the entire federal government, is counsel of record and will coordinate as appropriate with FERC and other federal attorneys. See 28 U.S.C. § 518.