SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7964 H.ub £E-c/STo-5 YYo # /YL IN THE UNITED STATES COURT OFAPPEALS FOR THE FOURTH CIRCUIT AIR-CONDITIONING AND REFRIGERATION INSTITUTE, CARRIER CORPORATION, ) LENNOX INTERNATIONAL INC., NORDYNE INC.. RHEEM MANUFACTURING COMPANY. and THE TRANE COMPANY, ) Case No. 01-1370 Petitioners, 

### ) v.) ) UNITED STATES DEPARTMENT OF ENERGY ) and UNITED STATES OF AMERICA, ) ) Respondents.
CERTIFICATE OF SERVICE Ihereby certify thaton this 3rd day ofApril, 2001, 1caused copies ofthe foregoing "Joint Motion To Suspend Briefing Schedule Pending Reconsideration ofRule" and Exhibits thereto to be dispatched via first class mail to the following: Jill Holtzman, Office ofthe General Counsel Department ofEnergy Forrestal Building 1000 Independence Avenue, S.W. Room 6D033 Washington, D.C. 20585-0103 Barbara C.Biddle Irene M. Solet Attorneys, Appellate Staff Civil Division, Room 9150 Department ofJustice 601 D Street, N.W. Washington, D.C. 20530-0001

Kristina R. Osterhaus

981256 SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7964**~.~**

## ~£

## -~S'TD-q &

### -i/Yo IN THEUNITED STATES COURT OFAPPEALS FORTHE FOURTH CIRCUIT AIR-CONDITIONlNGAND ) REFRIGERATION INSTITUTE, ) CARRIER CORPORATION, ) LENNOX INTER.'\JATIONAL INC., ) NORDYNE INC.. RHEEM MANUFACTURING ) COMPANY. and THE TRANE COMPANY, ) Petitioners,
v. UNITED STATES DEPARTMENT OF ENERGY and UNITED STATES OF AMERICA, Respondents. ) ) ) ) ) ) ) } ) ) Case No. 01-1370

CERTIFICATE OF SERVICE Ihereby cenify thatonthis 3rd day ofApril, 2001, Icaused copies ofthe foregoing "Joint Motion To Suspend Briefing Schedule Pending Reconsideration ofRule" and Exhibits thereto to be dispatched via first class mail to the following:

981256 Jill Holtzman, Office ofthe General Counsel DepartmentofEnergy 

### F

orrestalBuilding 1000 rndependence Avenue, S.W. Room6D033 Washington, D.C. 20585-0103 BarbaraC. Biddle Ire:oe M. Solet Anorneys, Appellate Staff CivIl Division, Room 9150 Departmentof

### Justice 601 D Street, N_W. Washington.D.C. 20530-0001

# t~.i~M<,

# -e.**O~~** Krisrina R. Osterhaus:t'.--ll-u 14:0 7 DOJ APPELLATE STAFF 2U 4 Z Yb4 i.b 

### EE-RM/STD-98-440- 

# 31:3/ IN THE UNITED STATES COURT OFAPPEALS FOR THE FOURTH CIRCUIT
AIR-CONDITIONING AND ) REFRIGERATION INSTITUTE, CARRIER CORPORATION, LENNOX INTERNATIONAL INC., NORDYNE INC., RHEEM MANUFACTURING ) COMPANY, and THE TRANE COMPANY, ) ) Case No. 01-1370 Petitioners,

v. UNITED STATES DEPARTMENT OF ENERGY and UNITED STATES OF AMERICA, Respondents.

JOINTMOTION TO SUSPEND BRIEFING SCHEDULE PENDING RECONSIDERATION OFRULE
Pursuant to Federal Rule of Appellate Procedure 27(a) and Fourth Circuit Local Rule 27(a), Petitioners Air-Conditioning and Refrigeration Institute ("ARI"), Carrier Corporation, Lennox International Inc., NORDYNE Inc., Rheem Manufacturing Company, and The Trane Company (collectively, "Petitioners"), and Respondents the United States Department ofEnergy ("DOE") and the United States ofAmerica (collectively, 

### -"Respondents")file thisjoint motion to suspend the briefing schedule set by the Court in this case until DOE can consider and act upon the Petition for Reconsideration now pending before DOE of the rulemaking sought to be reviewed in this action. In support thereof,the parties state as follows: On January 22, 2001, DOE published inthe Federal Register a Final Rule, in Rulemaking Docket No. EE-RM-98-440, providing for energy conservation standards for central air 981256 DOJ APPELLATE STAFF EE-RM/STD-98-440- 

### 1F 

# 311 INTHE UNITED STATES COURTOFAPPEALS FORTHE FOURTH CIRCUIT
AIR·CONDITIONING AND REFRlGERATION INSTITUTE, CARRlER CORPORATION, LENNOXINTERNATIONAL INC., NORDYNE INC., RHEEM MANUFACTURING COMPANY, and THE TRANE COMPANY, Petitioners,

v. ) ) ) ) ) ) ) } ) ) ) UNITED STATES 

### DEPARTMENT OF ENERGY) and UNITED STATES OF AMERICA, ) Respondents. ) ) 

### J CaseNo. 01·1370

JOINT MOTION TO SUSPEND BRIEFING SCHEDULE PENDING RECONSIDERATION 

### OF RULE
Pursuant to Federal Rule of Appellate Procedure 27(a) and Fourth Circuit Local Rule 27(a), Petitioners Air-Conditioning and Refrigeration institute ("ARJ"), Carrier Corporation, Lennox International Inc., NORDYNE Inc., Rheem Manufacturing Company, and The Trane Company (collectively, "Petitioners"), and Respondents [he United States Department ofEnergy ("DOE") andtheUnited States ofAmerica (collecti"ely. --Respondents") file thisjointmotion to suspend the briefing schedule set

### by the Court in this case until DOE can consider and act upon the Petition for Reconsideration now pending before DOE of the rulemaking sought to be reviewed inthis action. In SUPPO" thereof, the parties state as follows: On

### January 22,2001, DOE published in the Federal RegisteraFinal Rule, in Rulemaking Docket No. EE-RM-98-440, providing for energy conservation standards for central air 981256SEP-11-2002 14:07 DOJ APPELLATE STAFF 202 514 7964 ,. 

### EE-RM/STD-98-440- '31l conditioners and heat pumps manufactured on or after January 23, 2006. Energy Conservntion Programfor Consumer Products: Central Air Conditioners and Heat Pumps Energy ConservationStandards, 66 Fed. Reg. 7170, 7199 (Jan. 22, 2001) (the "Rule") (Exh. A to Petition for Review).' Petitioners participated in the rulemaking proceeding through ARI and, in certain instances, individually. To protect their right to seek judicial review pursuant to 42 U.S.C. §§ 6306(b)(1), 7192(a), Petitioners filed their Petition for Review ofthe Ride with this Court on March 19, 2001. Under a schedule set by this Court on March 19. 2001, Petitioners' initial briefwill be due on April 30, 2001. In addition to filing the Petition for Review. ARI filed a Petition for Reconsideration of the Rule with the Secretary ofEnergy on March 23, 2001. The Petition for Reconsideration is
now pending before DOE. Stated generally, the Petition for Reconsideration raises a number of issues relating to the rulemaking proceeding, including (1) whether DOE complied with applicable procedures and (2) whether the standards in the Rlde would be economically justified. Without arguing the merits ofthese issues here, the parties agree that these issues pertain to whether the Rule, as published, complies with the criteria of the governing statutes. The parties also agree that these issues are significant in terms of the Rule's ultimate issuance and

As statutory authority for the Rule, DOE relies upon Part B ofthe Energy Policy and Conservation Act, Pub. L. 94-163, as amended by the National Energy Conservation Policy Act, Pub. L. 95-619, the National Appliance Energy Conservation Act, Pub. L. 100-12, the National Appliance Energy Conservation Amendments of 1988, Pub. L. 100-357, and the Energy Policy Act of 1992, Pub. L. 102-486, as codified at 42 U.S.C. §§ 6291 erseq. 66 Fed. Rcg. at 7171-72. Forpurposes ofthis Joint Motion, Petitioners do not disagree with DOE's assertion of statutory authority.

2 SEP-11-2002 14:07 DOJ APPELLATE STAFF 2132 5147964**~.W** " , EE-RM/STD-98-440-

# * 31i
conditioners and heat pumps manufactured on or after January 23, 2006. Ellergy C017Serl'(lliOl' Program for Consumer Products: Ceneral Air Conditioners and Hear Pumps E1lergy COllservalion Standards, 66 Fed. Reg. 7170, 7199 (Jan. 22, 2001) (the "Rule") (Exh. A to Petition for Review).) Petitioners participated in the rulemaking proceeding through ARI and, in cenain instances, individually. To protect their right to seek judiciaJ review pursuant to 42 U.S.c. §§ 6306(b)(I), 7192(a), Petitioners filed their Petition for Review ofthe Rule with this Court on March 19, 2001. Under a schedule set by this Court on March 

### 19. 2001, Petitioners' initialbriefwillbe due onApril 30, 2001. In addition to filing the Petition for Review. ARI filed a Petition for Reconsideration of the Rule with the Secretary ofEnergy on March 23, 2001. The Petition for Reconsideration is
now pending before DOE. Stated generally, the Petition for Reconsideration raises a number of issues relating to the rulemaking proceeding, including (1) whether DOE complied with applicable procedures and (1.) whetherthe standards in the Rule would be economicallyjustified. Without arguing the merits ofthese issues here. the panies agree that these issues pertain to whether the Rule, as published., complies with the criteria of the governing statutes. The parties also agree that these issues 

### are significant in terms ofthe Rule's ultimate issuance 

### and

As statutory authority for the Rule, DOE relies upon Part B ofthe Energy Policy and 

### Conservation Act, Pub. 

### L. 94·163, as amended by 

### the National Energy Conservation 

### Policy Act, PUb. L. 95-619, the National Appliance Energy Conservation Act, Pub. 

### L. 100·12. the National ApplianceEnergyConservationAmendments of 1988, Pub. 

### L. 100-357. and the Energy Policy Act of 1992, Pub. L. 102-486, as codified at 42 U.S.C. §§ 6291 er seq. 66 Fed. Rcg. at 7171-72. Forpurposes ofthis Joint Motion, Peritioners do not disagree with DOE's assertion of statutory authority.



### 2SEP-11-2G02 14:08 DOJ FPPELLATE STAFF 202 514 yb4 r.u 

### EE-RM/STD-98-440- 

# 3/lLf effect Ifthe reconsideration process results in agency actions on the Rule in ways significant to these issues, itcould either moot or substantially alter the issues raised on appeal. DOE is uncertain how longits reconsideration process will take, but the agency intends to act on the pending Petition for Reconsideration with expedition. DOE will notify the Court when it has issued a final decision on the pending Petition forReconsideration. Suspension of the current briefing schedule pending the outcome of DOE's reconsideration process would promote judicial economy and save the resources of both the parties and the Court. There are no known adverse effects ofsuch a suspension. In addition, DOE notes that the current procedural posture ofthis case presents a complex jurisdictional question: whether a timely petition for reconsideration of a decision by a federal agency renders that decision non-final for purposes of ajudicial review. At least three U.S. Courts ofAppeals have held that a timely Petition for Reconsideration filed before an agency renders the administrative decision non-final as to the petitioning party and renders any Petition for Review filed by that party premature. See BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994); UnitedTransp. Union v.ICC,871 F.2d 1114, 1116-17 (D.C. Cir. 1989); West PennPowerCo. v. EPA, 860 F.2d 581, 584-87 (3rd Cir. 1988); Winter v. ICC,851 F.2d 1056. 1061-62 (8th Cir. 1988). However, at least one U.S. Court ofAppeals has held that a pending Petition for Reconsideration does not affect the finality and reviewability of an agency order. See MidlandCoalCo. v.Director,OWCP, 149 F.3d 558, 562 (7th Cir. 1998); NorrhsideSanitary Landfill.Inc. v. Thomas, 804 F.2d 371, 378-79 (7th Cir. 1986). This Court has not yet ruled on this issue. Suspension ofthe briefing schedule would avoid the need to consider such a complex procedural issue in this case.
3 SEP-11-2002 14:08 DOJ APPELLATE STAFF**2025147~b4··** t".I:1<f EE-RM/STD-98-440- 

# :If 

# 3/1
effect Ifthe reconsideration process results in agency actions on the 

### Rule in ways significant to these issues. itcouldeithermoot orsubstantially alterthe issuesraisedon appeaL DOE

### is uncertainhow long

### its reconsiderationprocesswill 

### take, butthe agency intends to act on the pending Petition for Reconsideration with expedition. DOE will notify the Court when it has issued a final decisionon the pendingPetition for Reconsideration. Suspension of the current briefing schedule pending the outcome of DOE's reconsideration process would promote judicial economy and save the resources of both the parties and the Court. 

### There are no known adverse effects ofsuch 

### a suspension. In addition,DOEnotes thatthe current procedural posture ofthis casepresents a complex jurisdictional question: whether a timely petition for reconsideration ofa decision by a federal agency renders that decision non-final for purposes of a judicial review. At least three U.S. Courts ofAppeals have held that a timely Petition for Reconsideration filed before an agency renders the administrative decision non-final as to the petitioning party and renders any Petition 

### for Review filed 

### by that party premature. 

### See Bell South Corp. v. FCC, 17 

### F.3d 1487. 1489-90 (D.C. Cir. 1994); United Transp. Union Y. ICC 871 F.2d 1114, 1116-17 (D.C. Cir. 1989); West 

### Penn Power Co. Y. 

### EPA, 860 

### F.2d 581, 584-87 (3rd Cir. 

### 1988); 

### Winter \I. 

### ICe, 851 F.ld 1056. 1061-62 (8th Cir. 1988). However, at least one U.S. Court ofAppeals has held that a 

### pending Petition for Reconsideration does not affect the finality and reviewability of an**age~cy** order. 

### See Midland Coal Co. v. 

### Director, OWCP, 149 FJd 558, 562 (7th Cir. 1998);

### Northside Sanitary Landfill. Inc. v. Thomas, 804F.2d 371,378-79 (7th Cir. 1986). This Court has not yet ruled on 

### this issue. 

### Suspensionofthe

### briefing schedule would avoid the need 

### to consider such a 

### complex proceduralissueinthis case.


### 3SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7b4 -- .ub 

### EE-RM/STD-98-440
- 

# 3/ t Moreover, the Court recently granted a similar Joint Motion to Suspend Briefing Schedule Pending Reconsideration in a comparable case challenging DOE's issuance ofenergy efficiency standards for gas-fired and electric water heaters. See Order, GasAppliance Mfrs. Ass 'n v. United StatesDep't of Energy,Docket No. 01-1260 (4th Cir., Mar. 19, 2001). WHEREFORE, Petitioners, and Respondents respectfully request this Court to issue an Order: 1. Immediately suspending the briefing schedule in this case until DOE has completed its process ofreconsideration ofthe Rule and notified the Court ofsuch completion; 2. Requiring DOE to notify the Court and the other parties in writing, promptly upon completion of its reconsideration process, of the results and of any relevant actions resulting from it, and providing any written record ofits action with such notification; 3. Requiring Petitioners to notify the Court, within 10 working days after receipt of the notification required by paragraph 2, as to whether they wish to continue their appeal and, if so, on what issues; and 4. Relieving DOE ofits obligation under Federal Rule ofAppellate Procedure 17 to file the administrative record within 40 days after being served with a Petition for Review, and requiring DOE instead to file the record within 40 days of any notice by Petitioners under the preceding paragraph that they will proceed with their appeal.

4 SEP-11-2002 14:08 DOJ APPELLATE STAFF EE-RM/STD-98-440- 

# * 31

# + Moreover, the Court recently granted a 

### similar Joint Motion to Suspend Briefing Schedule Pending Reconsideration in a 

### comparable case 

### challenging DOE's issuance ofenergy efficiency standards for gas-fired and electric water heaters. See Order, Gas Appliance Mfrs. Ass 'n \I. United Stares Dep'l of Energy, DocketNo. 01-1260 (4th Cir., Mar, 19,2001). 

### WHEREFORE, Petitioners, 

### and Respondents respectfully request this Court to issue 

### an Order: 

### I. Immediately 

### suspending the briefing schedule in 

### this case until 

### DOE has completed its process ofreconsideration'oftheRule and notified the Court ofsuch completion; 2. RequiringDOE

### to notify the Coun and the otherparties inwriting, promptly upon completion of its reconsideration process, of the results and of any relevant actions resulting 

### from it, 

### and providing anywritten 

### record ofits 

### action with 

### such notification; 3. Requiring Petitioners to notify the Court, within 10 working days after receipt of the norification required byparagraph 2, as to whether they wish to continue their 

### appeal and, 

### if so, on what issues; and 4. Relieving DOE ofits 

### obligation under Federal Rule of

### Appellate Procedure 17 to file the administrative record within 40 days after being served with a Petition for Review, and requiring DOE instead to file the record within 40 days ofany notice by Petitioners undeT the precedingparagraphthattheywillproceed with theirappeaJ.

4SEP-11-2002 14:08 DOJ APPELLATE STFF 202 514 794 P.07 

### EE-RM/STD-98-440- 

# 131f
Since allparnis to tiscas havejoined im tis motion, the equi-ements ofLocal Rule 

### 27(a) requiring notice ad consent havebeen satisfied Respectfully submitted,

A.Hodges 

### OfCounsel: James C. Duff ErTr BAKER, DONELSON, Kristia R.OsTerbaus BEARMAN & CALDWELL Market Square WILEY, REIN & FIELDING 

### 80) PcnnsylvaiaAvenu, N.W. 1776K Street, N.W. Wmsbmginon,D.C. 20004 Washingtn, D.C. 20006 Tel.: (202) 508-3400 Tel.: (202) 719.7000 Fax: (202)508-3402 Fax: (202)719-7049 Artorneys forPetioners


### ARBCc.BIIDDLE

IRENE M.SOLET Attorneys, Appellate Staff CivilDivision,Room 9150 Deparment ofJustice 601 D Stret,N.W. Washington, D.C. 20530-0001 AttornGys fo Respondents DATED: April 3.2001

TOTAL P.07 ... ,. 

## . .- SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7964 P.07 EE-RM/STD-98-440
_ 

# :ff 

# 3/

# +
Since aUpaniuto this case havejoined in

### this motion, the RQulrem!tlls ofLocal 

### Rule**21(~)**

### requiril'lS

# neue. and consenthavebeensatisfiecl

01**C()IJ1fs~/:** Jame.

### C. Duff 

### BAX!Jt.DONELSON, 

### BEARMAN"CALDWEU. MarketSqUire 

### SOl PenmyJvamaAvc:nue,N.W. Wwml'on,

### D.C. 10004 Tel.; (202)508.)400**F~:** (lOZ) 508-3402

DATE]): April 3.2001 llesJ'ectfuJly submitted,

waEl', REIN &r nELDING 1776KStreet, N.W. WashingtOn. 

### D.C. 20006 

### Tel.: (20l) 119·7000 'Fax: (202) 7l9·7049



### IRENEM. SOLET Attomeys, Appc/)&te Staff CivilDivision, Room 91S0 

### Depanment 

### ofJusti,e 601 DSlreet. 

### N.W. 

### Wuhincton.D.C. 20530-0001

TOTAL P.07