Atlantic City Electric Company v. Federal Energy Regulatory Commission

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed May 20, 2003
No. 97-1097
ATLANTIC C ITY E LECTRIC C OMPANY, ET AL.,
PETITIONERS
v.
FEDERAL E NERGY R EGULATORY C OMMISSION,
R ESPONDENT
DUQUESNE L IGHT COMPANY, ET AL.,
INTERVENORS
Consolidated with
00-1459, 00-1460, 00-1503
On Petitioners’ Petition to Enforce Mandate
–————
Before: G INSBURG, Chief Judge, E DWARDS and S ENTELLE ,
Circuit Judges.
Opinion for the Court filed PER CURIAM.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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PER CURIAM : We issued an opinion in the matter on July 12,
2002, granting the original petitions for review and vacating
portions of the underlying orders of the Federal Energy
Regulatory Commission (‘‘FERC’’ or ‘‘Respondent’’) as be-
yond the jurisdiction of the Commission. The matter returns
to us now on a petition by Atlantic City Electric and several
other utilities 1 (collectively ‘‘Petitioners’’) seeking to enforce
the mandate and arguing the FERC’s proceedings on remand
are in violation of our prior order, and remain beyond the
jurisdiction of the Commission. Because Petitioner is correct
in its assertion, and because FERC has not complied with the
previous mandate of this court, or confined its orders to the
limits of its jurisdiction, we grant the petition and order the
enforcement of our prior mandate.
I. Background
While we will not rehash the entire course of proceedings
to date in this controversy as it is set forth in Atlantic City
Elec. Co. v. FERC, 295 F.3d 1 (D.C. Cir. 2002), we make brief
reference in order to render the present opinion understanda-
ble. In the FERC orders originally under review, the Com-
mission approved the restructuring of power pool arrange-
ments in the MidAtlantic Region by the creation of an
Independent System Operator (‘‘ISO’’) administering access
to electric transmissions systems. In the approval of the
reorganization, FERC required, inter alia, that Petitioners,
owners of transmission assets entering into the agreement for
the ISO, give up their rights to file changes in tariff rates,
terms, and conditions, as provided under § 205 of the Federal
Power Act (‘‘the Act’’), 16 U.S.C. § 824d(d) (1994). The order
further required the utilities to modify their ISO agreement
to forbid any owner from withdrawing from the ISO without
prior FERC approval, pursuant to § 204 of the Act, 16 U.S.C.
§ 824b (1994). The affected utilities petitioned this court for
relief arguing that the conditions were beyond FERC’s statu-
1 Other utilities have petitioned for leave to intervene or, in one
case, to participate as amicus. Perceiving no prejudice to anyone
by their joinder and a real interest according them standing in the
cause, we are hereby allowing those motions.

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tory jurisdiction. We agreed, granted the petitions for re-
view, and vacated the portions of the FERC orders imposing
conditions beyond FERC’s statutory authority. See Atlantic
City Elec. Co., at 15 (denying review and ordering partial
vacation). Atlantic City Elec. Co., 76 F.E.R.C. ¶ 61,306
(1996), reh’g denied as moot, 77 F.E.R.C. ¶ 61,298 (1996);
Pennsylvania-New Jersey-Maryland Interconnection, 81
F.E.R.C. ¶ 61,257 (1997), order denying reh’g, 92 F.E.R.C.
¶ 61,282 (2000); and Potomac Elec. Power Co., 83 F.E.R.C.
¶ 61,162 (1998), order denying reh’g, 93 F.E.R.C. ¶ 61,111
(2000). We vacated a portion of the administrative orders
and we remanded the matter to the Commission for further
proceedings consistent with our opinion.
After our remand, the Commission entered its order on
remand, December 19, 2002, Pennsylvania-New Jersey-
Maryland Interconnection, 101 F.E.R.C. ¶ 61,318 (Dec. 19,
2002). While complying with another aspect of our prior
decision not before us in the current petition to enforce the
mandate, FERC determined to ‘‘revisit the prospective bal-
ance of § 205 rights and responsibilities’’ implicated in our
opinion mandating the vacation of FERC’s prior order and
reinstated the vacated requirement. FERC further declared
that it ‘‘continue[d] to conclude TTT that the withdrawal of a
transmission owner from the ISO TTT necessitat[ed] the Com-
mission’s prior review under section 203 of the FPA.’’ Id. at
¶ 3. Appealing to this Court’s power to ‘‘correct any miscon-
ception of its mandate by a[n] TTT administrative agency
subject to its authority[,]’’ Office of Consumer’s Council v.
FERC, 826 F.2d 1136, 1140 (D.C. Cir. 1987), Petitioners pray
that we direct FERC to vacate those aspects of the remand
order inconsistent with our original mandate. Because Peti-
tioners are entirely correct, we grant that petition and so
order.
II. Analysis
As noted above, this Court has the power to enforce its
mandates, including the power to ‘‘correct any misconception
of its mandate by a[n] TTT administrative agency subject to
its authority.’’ Id. The Federal Energy Regulatory Com-
mission is subject to our authority. See 16 U.S.C. § 825l(b)

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(1994). Pursuant to that authority, we entered the prior
mandate. In the opinions supporting that prior mandate, we
held that FERC did not have jurisdiction to ‘‘require the
utility petitioners to cede rights expressly given to them in
§ 205[.]’’ Atlantic City, 295 F.3d at 9. We therefore ruled
that the portions of FERC’s prior order requiring the utility
petitioners ‘‘to give up all authority to make unilateral
changes to rate design,’’ id., was beyond FERC’s jurisdiction.
Accordingly, we ordered the portion of FERC’s prior order
improperly exercising jurisdiction it did not have, vacated.
We remanded the case. On remand, FERC stated that it
‘‘continue[d] to believe that its original decision was correct.’’
101 F.E.R.C. ¶ 61,318 at ¶ 28. Therefore, rather than simply
vacating the offending portions of its prior order, as we had
ordered, FERC commanded the utilities comprising the ISO
to relitigate before it the very issues upon which they had
theretofore prevailed before this court. Id. at ¶ 37.
In its response to Petitioner’s application to this Court to
vacate the offending portion of the new order, FERC con-
tends that it was able to reconsider and reinstate the original
result because we have in the past upheld its authority to
provide further explanation on remand, supporting the origi-
nal result. It is true, that we have allowed additional reason-
ing on remand, see, e.g., Southeastern Michigan Gas Co. v.
FERC, 133 F.3d 34 (D.C. Cir. 1998); Radio Television S.A.
de C.V. v. FCC, 130 F.3d 1078, 1083 (D.C. Cir. 1997). But in
those cases where we have allowed that to occur, we had
remanded the proceedings for further explanation. In this
case, by contrast, we expressly held that FERC simply lacked
jurisdiction under the statute to make the order it had
purported to enter in the original proceeding. In its brief to
this Court, FERC attempts to bring itself within the ambit of
Southeastern Michigan and Radio Television by arguing that
in our prior opinion we noted in the conclusion paragraph that
FERC had not ‘‘point[ed] to’’ any statute ‘‘authorizing its
requirement that the utility petitioners cede their statutory
rights under § 205 TTT to file changes in rate design with the
Commission.’’ FERC argues that this language invited it to
point to further authority. Not so.

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FERC’s approach does worse than take a sentence out of
context–it takes an element of a sentence out of context.
What we in fact said in our conclusion was: ‘‘FERC can point
to no statute authorizing its requirement that the utility
petitioners cede their statutory rights under section 205 of
the Federal Power Act to file changes in rate design with the
Commission.’’ 295 F.3d at 15. The holding of our opinion
was plain. We clearly stated that ‘‘[w]hile an ISO may have
certain section 205 rights, there is simply no denying the
utility petitioners’ section 205 rights.’’ Id. at 11. In an
opinion relying upon the clear words of the statute, we held
that FERC cannot deny ‘‘the petitioners their rights provided
for by a statute enacted by both houses of Congress and
signed into law by the [p]resident.’’ Id. Lest there be any
doubt, we so hold once more. When FERC attempts to
deprive the utilities of their rights ‘‘to initiate rate design
changes with respect to services provided by their own as-
sets[,]’’ id. at 10, FERC has exceeded its jurisdiction. We
hereby qualify and order the enforcement of our mandate.
FERC is to vacate the portions of its opinion on rehearing
which are inconsistent with our construction of its jurisdic-
tion.
Likewise, FERC’s refusal to comply with the prior man-
date of this Court concerning the right of the utilities to
withdraw from the ISO pursuant to § 203 of the FPA is
equally invalid. Again, we held in our prior decision that
FERC’s order exceeded its statutory jurisdiction. That sec-
tion empowers FERC to act only upon ‘‘the disposition of the
facilities themselves.’’ 295 F.3d at 13. We held that ‘‘[n]o
‘disposition’ within the meaning of section 203 is contemplated
by the ISO agreements, and thus FERC has no jurisdiction
to require preapproval under that provision.’’ Id. (emphasis
added). On remand, FERC reconsidered and concluded that
it still believed it was correct the first time. If FERC thinks
we are wrong, then like any other litigant, it may petition for
certiorari to the Supreme Court of the United States. Ab-
sent such a petition and the issuance of certiorari, in an order
by the Supreme Court, FERC is bound by our decision. Lest
we have left any ambiguity, we hereby mandate that FERC

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vacate and not reinstate the portions of its order requiring
preapproval of the Commission for withdrawal from the ISO.
CONCLUSION
For the reasons stated above, we reaffirm and clarify our
prior decision that FERC has no jurisdiction to enter limita-
tions requiring utilities to surrender their rights under § 205
of the FPA to make filings to initiate rate changes. We
further reiterate that the Commission has no jurisdiction to
enter the portion of its order on remand requiring approval
under § 203 of the Act before a public utility can withdraw
from an ISO. FERC must not re-enter the orders exceeding
its jurisdiction. In short, the petition to enforce the mandate
is allowed.
So ordered.

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