James Lyons; Polly Lyons v. Federal Energy Regulatory Commission

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1333
JAMES LYONS; POLLY LYONS,
Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
On Petition for Review of an Order of the Federal Energy
Regulatory Commission. (2210-206)
Submitted: February 27, 2012 Decided: March 8, 2012
Before MOTZ, DAVIS, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
William M. Stanley, Jr., STANLEY AND STANLEY LLC, Moneta,
Virginia, for Petitioners. Michael A. Bardee, General Counsel,
Robert H. Solomon, Solicitor, Holly E. Cafer, FEDERAL ENERGY
REGULATORY COMMISSION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
James and Polly Lyons (hereinafter “Petitioners”)
petition this court for review of the Federal Energy Regulatory
Commission’s (“FERC”) order denying their request for rehearing
on FERC’s prior notice denying as untimely Petitioners’ request
for rehearing on a decision following staff action. For the
reasons that follow, we deny the petition for review.
We will set aside FERC’s order only if we conclude
that its denial of rehearing was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law,”
see 5 U.S.C. § 706(2)(A) (2006), or “contrary to constitutional
right, power, privilege, or immunity.” See 5 U.S.C. § 706(2)(B)
(2006). Further, we will defer to FERC’s reasonable
interpretation of its regulations. See Ohio Valley Envtl. Coal.
v. Aracoma Coal Co., 556 F.3d 177, 193-94 (4th Cir. 2009).
Petitioners sought to file a belated request for
rehearing on a letter ruling that FERC properly classified as a
decision following staff action. See 18 C.F.R. § 385.1902(a)
(2012). A request for rehearing on such a decision must be
filed within thirty days, which it was not. Id.; see also 18
C.F.R. § 385.713(a)(1), (b) (2012) (mandating that a party seek
rehearing from any final FERC decision “or other final order, if
rehearing is provided for by statute, rule, or order”). In
denying Petitioners’ request for rehearing, FERC rejected

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Petitioners’ various reasons to excuse the untimely filing of
their request for rehearing.
Based on our review of the record, as well as the
governing statutes and regulations, we conclude that FERC’s
decision to deny Petitioners’ belated request for rehearing was
not arbitrary or capricious, violative of any law or
constitutional right, or an abuse of FERC’s considerable
discretion. In denying rehearing, FERC interpreted and applied
the governing regulations in conformity with their plain
meaning. See Ohio Valley Envtl. Coal., 556 F.3d at 193
(explaining that, when regulation is unambiguous, the “plain
language” of the regulation controls). Accordingly, we defer to
FERC’s ruling and deny the petition for review. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED

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