287 F2d 39 Sun Oil Company v. Federal Power Commission

287 F.2d 39

38 P.U.R.3d 281

SUN OIL COMPANY, Petitioner,
v.
FEDERAL POWER COMMISSION, Respondent.

No. 18566.

United States Court of Appeals Fifth Circuit.

Feb. 15, 1961.

Herf M. Weinert, Beaumont, Tex., Robert E. May, Washington, D.C., for appellant.

John C. Mason, Gen. Counsel, F.P.C., Howard E. Wahrenbrock, Sol., Washington, D.C., for appellee.

Before TUTTLE, Chief Judge, and CAMERON and WISDOM, Circuit Judges.

PER CURIAM.

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1

The Federal Power Commission has filed its motion to dismiss the Petition for Review filed by Sun Oil Company. Its Petition for Review seeks to have this Court set aside two orders of the Federal Power Commission, one issued June 2, 1960 and the other issued July 15, 1960. The proceedings that were before the Commission and which were dealt with by the said orders were in docket Nos. G-13617, G-13619, G-16685, and G-16686.

2

The motion to dismiss is based on the ground that the orders appealed from are not final orders of the Commission and thus are not subject to review. Briefly stated, the orders denied motions made by the petitioner that the Commission terminate the proceedings then pending in the docket numbers referred to. The state of the proceedings at the time was that several increases in rates had been filed by Sun and had been suspended under Section 4(e) of the Natural Gas Act, 15 U.S.C.A. 717c(e), and Sun was collecting the higher rates under the undertaking to make refunds if the rates were not ultimately approved. Proof had already been taken under the Section 4(e) proceeding, but the investigation had not been completed. The basis of Sun's motion to terminate was its contention that the Commission had terminated other proceedings in like situations, and Sun contended that 'It was manifestly unfair and discriminatory for the Commission to terminate suspension proceedings involving other independent producers, even though general rate proceedings had been instituted and some were being heard, * * *' and to refuse at the same time to terminate Sun's proceedings under identical circumstances.

3

This effort to cause the Commission to terminate proceedings during the investigation period and the Commission's refusal to do so, of course, deals with an interlocutory or non-final issue. Sun may still obtain all the benefits it seeks if the Commission's proceedings are permitted to go to a normal conclusion. The Commission's refusal to abort the proceedings is not a reviewable order under the clear authority of Magnolia Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, and associated cases.

4

In order to conserve the time, expense and energies of both parties we deem it appropriate to dispose of this motion summarily, rather than to delay its consideration until the case would otherwise be reached in its normal place on the calendar.