SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7964 H.ub

£E-c/STo-5 YYo # /YL

IN THE UNITED STATES COURT OF APPEALS

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

I hereby certify that on this 3rd day of April, 2001, 1 caused copies of the foregoing "Joint

Motion To Suspend Briefing Schedule Pending Reconsideration of Rule" and Exhibits thereto to

be dispatched via first class mail to the following:

Jill Holtzman, Office of the General Counsel

Department of Energy

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 of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

Kristina R. Osterhaus

981256

EE-RM-STD-98-440 COMMENT 314

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

~ £ -~S'TD-q & -i/Yo 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

AIR-CONDITIONlNG AND ) 

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 

I hereby cenify that on this 3rd day of April, 2001, I caused copies of the foregoing "Joint 

Motion To Suspend Briefing Schedule Pending Reconsideration of Rule" and Exhibits thereto to 

be dispatched via first class mail to the following: 

981256 

Jill Holtzman, Office of the General Counsel 

Department of Energy 

F orrestal Building 

1000 rndependence Avenue, S.W. 

Room6D033 

Washington, D.C. 20585-0103 

Barbara C. Biddle 

Ire:oe M. Solet 

Anorneys, Appellate Staff 

CivIl Division, Room 9150 

Department of 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 Z 4 Yb4 i.b

EE-RM/STD-98-440- 31:3/

IN THE UNITED STATES COURT OF APPEALS

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.

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 ("ARI"), Carrier Corporation,

Lennox International Inc., NORDYNE Inc., Rheem Manufacturing Company, and The Trane

Company (collectively, "Petitioners"), and Respondents the United States Department of Energy

("DOE") and the United States of America (collectively, -"Respondents") file this joint 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 in the Federal Register a Final Rule, in Rulemaking

Docket No. EE-RM-98-440, providing for energy conservation standards for central air

981256

EE-RM-STD-98-440 COMMENT 314

DOJ APPELLATE STAFF 

EE-RM/STD-98-440- 1F 311 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

AIR·CONDITIONING AND 

REFRlGERA TION INSTITUTE, 

CARRlER CORPORATION, 

LENNOX INTERNATIONAL INC., 

NORDYNE INC., RHEEM MANUFACTURING 

COMPANY, and THE TRANE COMPANY, 

Petitioners, 

v. 

) 

) 

) 

) 

) 

) 

) 

} 

) 

) 

) 

UNITED STATES DEPARTMENT OF ENERGY) 

and UNITED STATES OF AMERICA, ) 

Respondents. 

) 

) 

J 

Case No. 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 of Energy 

("DOE") and the United States of America (collecti "ely. --Respondents") file this joint 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 SUPPO" thereof, the parties state as follows: 

On January 22,2001, DOE published in the Federal Register a Final Rule, in Rulemaking 

Docket No. EE-RM-98-440, providing for energy conservation standards for central air 

981256 
SEP-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

Program for Consumer Products: Central Air Conditioners and Heat Pumps Energy

Conservation 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

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 of the Ride with this

Court on March 19, 2001. Under a schedule set by this Court on March 19. 2001, Petitioners'

initial brief will 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 of Energy 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 of these 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 of the 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 er seq. 66 Fed. Rcg. at

7171-72. For purposes of this Joint Motion, Petitioners do not disagree with DOE's assertion of

statutory authority.

2

EE-RM-STD-98-440 COMMENT 314

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 of the Rule 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 of Energy 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.) whether the standards in the Rule would be economically justified. 

Without arguing the merits of these 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 of the Rule's ultimate issuance and 

As statutory authority for the Rule, DOE relies upon Part B of the 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 er seq. 66 Fed. Rcg. at 

7171-72. For purposes of this Joint Motion, Peritioners do not disagree with DOE's assertion of 

statutory authority. 

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

EE-RM/STD-98-440- 3/lLf

effect If the reconsideration process results in agency actions on the Rule in ways significant to

these issues, it could either moot or substantially alter the issues raised on appeal.

DOE is uncertain how long its 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 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 of such a suspension.

In addition, DOE notes that the current procedural posture of this 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 a judicial review. At least three U.S.

Courts of Appeals 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 v. ICC, 871 F.2d 1114, 1116-17 (D.C. Cir. 1989); West

Penn Power Co. 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 of Appeals has held that a pending

Petition for Reconsideration does not affect the finality and reviewability of an agency order.

See Midland Coal Co. v. Director, OWCP, 149 F.3d 558, 562 (7th Cir. 1998); Norrhside Sanitary

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

this issue. Suspension of the briefing schedule would avoid the need to consider such a complex

procedural issue in this case.

3

EE-RM-STD-98-440 COMMENT 314

SEP-11-2002 14:08 DOJ APPELLATE STAFF 2025147~b4·· t".I:1<f 

EE-RM/STD-98-440 - :If 3/1 

effect If the reconsideration process results in agency actions on the Rule in ways significant to 

these issues. it could either moot or substantially alter the issues raised on appeaL 

DOE is uncertain how long its 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 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 of such a suspension. 

In addition, DOE notes that the current procedural posture of this 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 a judicial review. At least three U.S. 

Courts of Appeals 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 of Appeals 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, 804 F.2d 371,378-79 (7th Cir. 1986). This Court has not yet ruled on 

this issue. Suspension of the 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 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 of energy

efficiency standards for gas-fired and electric water heaters. See Order, Gas Appliance Mfrs.

Ass 'n v. United States Dep '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 of reconsideration of the Rule and notified the Court of such 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 of its 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 of its 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 of any notice by Petitioners under the

preceding paragraph that they will proceed with their appeal.

4

EE-RM-STD-98-440 COMMENT 314

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 of energy 

efficiency standards for gas-fired and electric water heaters. See Order, Gas Appliance Mfrs. 

Ass 'n \I. United Stares Dep'l of Energy, Docket No. 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 of reconsideration 'of the Rule and notified the Court of such completion; 

2. Requiring DOE to notify the Coun 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 of its action with such notification; 

3. Requiring Petitioners to notify the Court, within 10 working days after receipt of 

the norification required by paragraph 2, as to whether they wish to continue their appeal and, if 

so, on what issues; and 

4. Relieving DOE of its 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 of any notice by Petitioners undeT the 

preceding paragraph that they will proceed with their appeaJ. 

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

EE-RM/STD-98-440- 131f

Since all parnis to tis cas have joined im tis motion, the equi-ements of Local Rule

27(a) requiring notice ad consent have been satisfied

Respectfully submitted,

A. Hodges

OfCounsel:

James C. Duff ErTr

BAKER, DONELSON, Kristia R. OsTerbaus

BEARMAN & CALDWELL

Market Square WILEY, REIN & FIELDING

80) Pcnnsylvaia Avenu, N.W. 1776 K 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 for Petioners

ARBCc. BIIDDLE

IRENE M. SOLET

Attorneys, Appellate Staff

Civil Division, Room 9150

Deparment of Justice

601 D Stret, N.W.

Washington, D.C. 20530-0001

AttornGys fo Respondents

DATED: April 3.2001

TOTAL P.07

EE-RM-STD-98-440 COMMENT 314 ... ,. . .- SEP-11-2002 14:08 DOJ APPELLATE STAFF 202 514 7964 P.07 

EE-RM/STD-98-440 _ :ff 3/ + 

Since aU paniu to this case have joined in this motion, the RQulrem!tlls of Local Rule 

21(~) requiril'lS neue. and consent have been satisfiecl 

01 C()IJ1fs~/: 

Jame. C. Duff 

BAX!Jt.DONELSON, 

BEARMAN" CALDWEU. 

Market SqUire 

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 

1776 K Street, N. W. 

WashingtOn. D.C. 20006 

Tel.: (20l) 119·7000 

'Fax: (202) 7l9· 7049 

IRENE M. SOLET 

Attomeys, Appc/)&te Staff 

Civil Division, Room 91S0 

Depanment of Justi,e 

601 D Slreet. N. W. 

Wuhincton. D.C. 20530-0001 

TOTAL P.07