United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 2006 Decided December 22, 2006

No. 05-1209

WILLISTON BASIN INTERSTATE PIPELINE COMPANY,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

MONTANA CONSUMER COUNSEL 

AND SOUTH DAKOTA PUBLIC UTILITIES COMMISSION 

INTERVENORS

On Petition for Review of Orders of the

Federal Energy Regulatory Commission

Robert T. Hall, III argued the cause for petitioner. With

him on the briefs was Andrea C. Wolfman.

Michael E. Kaufmann, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With him on the

brief were John S. Moot, General Counsel, and Robert H.

Solomon, Solicitor.

Robert A. Jablon and Thomas C. Trauger were on the brief

for intervenors Montana Consumer Counsel and South Dakota

Public Utilities Commission.
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Before: GARLAND and BROWN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Williston Basin Interstate

Pipeline Co. (“petitioner”) seeks judicial review of three Federal

Energy Regulatory Commission (“FERC” or “Commission”)

orders: Williston Basin Interstate Pipeline Co., 104 F.E.R.C.

¶ 61,036 (2003) (“Initial Order”); Williston Basin Interstate

Pipeline Co., 107 F.E.R.C. ¶ 61,164 (2004) (“Rehearing

Order”); and Williston Basin Interstate Pipeline Co., 111

F.E.R.C. ¶ 61,102 (2005) (“Compliance Order”). The

Commission contends that the petition for review should be

dismissed, because this court lacks jurisdiction under section 19

of the Natural Gas Act (“NGA”), 15 U.S.C. § 717r, to consider

the merits of Williston’s claims. 

Two provisions of the NGA control the disposition of this

case. First, section 19(a) provides:

Any person . . . aggrieved by an order issued by the

Commission . . . may apply for a rehearing within thirty

days after the issuance of such order. The application for

rehearing shall set forth specifically the ground or grounds

upon which such application is based. Upon such

application the Commission shall have power to grant or

deny rehearing or to abrogate or modify its order without

further hearing. Unless the Commission acts upon the

application for rehearing within thirty days after it is filed,

such application may be deemed to have been denied. No

proceeding to review any order of the Commission shall be

brought by any person unless such person shall have made

application to the Commission for a rehearing thereon.
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15 U.S.C. § 717r(a) (emphases added). Second, section 19(b)

provides: 

Any party to a proceeding under this chapter aggrieved

by an order issued by the Commission . . . may obtain a

review of such order in the court of appeals . . . by filing in

such court, within sixty days after the order of the

Commission upon the application for rehearing, a written

petition praying that the order of the Commission be

modified or set aside in whole or in part. . . . Upon the

filing of such petition such court shall have jurisdiction,

which upon the filing of the record with it shall be

exclusive, to affirm, modify, or set aside such order in

whole or in part. No objection to the order of the

Commission shall be considered by the court unless such

objection shall have been urged before the Commission in

the application for rehearing unless there is reasonable

ground for failure so to do.

15 U.S.C. § 717r(b) (emphases added). In light of these

provisions, the Commission argues that

Williston’s petition for review should be dismissed for lack

of jurisdiction because, in contravention of NGA Section

19, 15 U.S.C. § 717r: (1) Williston failed to file a timely

petition for review of the Rehearing Order; (2) although it

filed a timely petition for review of the Compliance Order,

Williston was not aggrieved by that order; (3) assuming,

arguendo, that Williston was aggrieved by the Compliance

Order, it never sought rehearing of that order as required by

the NGA; and (4) Williston’s “Request for Clarification and

Reconsideration,” filed 34 days after the issuance of the

Rehearing Order, did not qualify as a timely rehearing

request under the NGA and therefore did not toll the time

for filing a timely petition for review.

FERC’s Br. at 3. We largely agree.
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Williston concedes that FERC’s May 2004 Rehearing

Order was a final, non-conditional order that was subject to

judicial review. Instead of filing a petition for review with this

court within 60 days of the Rehearing Order, however, or even

a timely petition for further rehearing by FERC within 30 days

of the Rehearing Order, petitioner filed a self-styled “Request

for Clarification and Reconsideration of the Rehearing Order”

(“RCR”). The RCR was filed 34 days after FERC’s Rehearing

Order, i.e., outside the time permitted for the filing of a request

for rehearing. 

Petitioner argues that the RCR tolled the limitations period

under 15 U.S.C. § 717r(b), and contends that the clock did not

begin to run on the time limit for seeking judicial review until

FERC issued the Compliance Order on April 19, 2005. These

claims fail, however, because the agency action about which

petitioner now complains is embodied in FERC’s Rehearing

Order and petitioner did not seek timely review of that order.

We therefore dismiss Williston’s petition for want of

jurisdiction.

I. BACKGROUND

The NGA, 15 U.S.C. §§ 717-717z, regulates “matters

relating to the transportation of natural gas and the sale thereof

in interstate and foreign commerce.” 15 U.S.C. § 717(a).

“[T]he Commission may act under two different sections of the

[NGA] to effect a change in a gas company’s rates. When the

Commission reviews rate increases that a gas company has

proposed, it is subject to the requirements of section 4(e) of the

Act, 15 U.S.C. § 717c(e). Under section 4(e), the gas company

bears the burden of proving that its proposed rates are

reasonable.” Algonquin Gas Transmission Co. v. FERC, 948

F.2d 1305, 1311 (D.C. Cir. 1991). However, “when the

Commission seeks to impose its own rate determinations, rather

than accepting or rejecting a change proposed by the gas

company, it must do so in compliance with section 5(a) of the
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NGA.” Id. “Section 5 imposes the burden of proof on the

Commission to demonstrate that existing rates are unjust and

unreasonable.” Tenn. Gas Pipeline Co. v. FERC, 860 F.2d 446,

449 (D.C. Cir. 1988). “[T]he Commission must affirmatively

show that any rate it imposes in a § 4 remedial order as a

revision or modification in the filed tariff satisfies the § 5

requirement that such rate be just and reasonable.” Id. at 447

(footnote omitted). 

Section 4 of the NGA states that a pipeline may not institute

a rate increase “except after thirty days’ notice to the

Commission and to the public.” 15 U.S.C. § 717c(d). “Pending

its decision under § 4, the Commission may ‘suspend the

operation . . . and defer the use’ of a proposed rate for up to five

months. Thereafter the rate ‘shall go into effect,’ but ‘the

Commission may, by order, require the natural-gas company . . .

to refund any amounts’ later found by the Commission to be

unjust and unreasonable. 15 U.S.C. § 717c(e).” ChevronTexaco

Exploration & Prod. Co. v. FERC, 387 F.3d 892, 897 (D.C. Cir.

2004); see also Nat’l Fuel Gas Supply Corp. v. FERC, 899 F.2d

1244 (D.C. Cir. 1990). No such refund authority exists when the

Commission orders a reduction in rates under section 5. See Sea

Robin Pipeline Co. v. FERC, 795 F.2d 182, 184 (D.C. Cir. 1986)

(“FERC’s remedial power under section 5 is limited to

prospective relief: the Commission cannot order a refund of

past payments made under the revoked rate.”).

_______________________

On December 1, 1999, petitioner submitted to the

Commission a general rate increase filing pursuant to section 4.

The Commission issued an order suspending the effective date

of the proposed rates until June 1, 2000, docketed the case for

hearing, and referred the matter to an Administrative Law Judge

(“ALJ”). Williston Basin Interstate Pipeline Co., 89 F.E.R.C. ¶

61,330 (1999). On May 9, 2001, following an extensive

hearing, the ALJ issued a decision taking issue with the
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depreciation methodology employed by Williston in arriving at

the increased rates. The Commission’s Initial Order, issued on

July 3, 2003, affirmed in part and reversed in part the ALJ’s

decision. The Commission rejected the proposed rates, ordered

Williston to make a compliance filing containing reasonable

rates, and ordered Williston to issue refunds once the

Commission ruled upon the compliance filing. Initial Order, 104

F.E.R.C. ¶ 61,036, at 61,112. Williston made the required

compliance filing, but also filed a timely request for rehearing

of the Initial Order, arguing that Commission-initiated rate

changes could only have prospective application. The

Commission rejected Williston’s request for rehearing on May

11, 2004. Rehearing Order, 107 F.E.R.C. ¶ 61,164. On April

19, 2005, the Commission rejected Williston’s compliance

filing, established appropriate rates, and ordered Williston to

disburse refunds within 30 days. Compliance Order, 111

F.E.R.C. ¶ 61,102.

In its brief to this court, Petitioner’s Br. at 13, and during

oral argument, Recording of Oral Argument at 4:02, petitioner

conceded that FERC’s Rehearing Order was a final order with

respect to which judicial review could have been sought. See

also Canadian Ass’n of Petroleum Producers v. FERC, 254 F.3d

289, 296 (D.C. Cir. 2001) (“[A] party that has petitioned for

rehearing and seen its petition denied without significant

modification to the order may then proceed directly to court

without filing a new petition for rehearing of the denial;

imposing an additional rehearing requirement in this situation

would lead to infinite regress and serve no useful end.”).

However, Williston failed to file a timely petition for judicial

review within 60 days. Williston also failed to file a timely

petition for further agency rehearing within 30 days. See id. at

296-97 (After a petition for rehearing has been denied by FERC,

it is “only on matters where the rehearing order introduces a new

source of complaint need the party file another rehearing

petition.”). Instead, Williston filed a document labeled “Request
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for Clarification and Reconsideration of the Rehearing Order”

34 days after the Commission issued the Rehearing Order, i.e.,

on a date that was beyond the deadline for filing a request for

further rehearing.

II. ANALYSIS

As noted above, a party aggrieved by a Commission order

“may apply for a rehearing within thirty days after the issuance

of such order.” 15 U.S.C. § 717r(a). The complaining party

then has “sixty days after the order of the Commission upon the

application for rehearing” to file a petition for review in the

appropriate court of appeals. 15 U.S.C. § 717r(b) (emphasis

added). If a party does not seek rehearing, no judicial review is

available. United Mun. Distribs. Group v. FERC, 732 F.2d 202,

205 n.2 (D.C. Cir. 1984) (“An application for rehearing is a

jurisdictional prerequisite to judicial review of Commission

orders under the NGA. 15 U.S.C. § 717r(a) (1982).”). If

rehearing is sought, judicial review is available only if a party

files within 60 days of the agency’s ruling on rehearing. The

60-day limitations provision is jurisdictional. See Nephi, Utah

v. FERC, 147 F.3d 929, 933-34 (D.C. Cir. 1998).

Williston argues that “[t]his Court has held that the filing of

a request for administrative reconsideration renders an agency

decision nonfinal and tolls the time for filing a petition for

review,” citing Clifton Power Corp. v. FERC, 294 F.3d 108

(D.C. Cir. 2002); Bellsouth Corp. v. FCC, 17 F.3d 1487 (D.C.

Cir. 1994); and Tennesee Gas Pipeline Co. v. FERC, 9 F.3d 980

(D.C. Cir. 1993) (per curiam). Petitioner’s Br. at 9, 12-13.

Thus, “[i]t does not matter,” Williston claims, “whether agency

reconsideration is sought through a petition for rehearing under

Section 19(a) of the Natural Gas Act or another form of filing

because the Court’s rulings are founded on the need to conserve

judicial resources.” Id. at 9. The problem with Williston’s

argument is that it ignores the Supreme Court’s holding in ICC

v. Brotherhood of Locomotive Engineers that only a “timely
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petition for administrative reconsideration stay[s] the running of

[a statutory] limitation period until the petition [for

reconsideration] had been acted upon.” 482 U.S. 270, 284

(1987) (emphasis added). 

The three cases from this court upon which Williston relies

all involved timely requests for reconsideration. And all three

cases adhere to the teachings of Locomotive Engineers. In

Clifton Power Corp., we stated expressly that a “timely petition

for administrative reconsideration stay[s] the running of the . . .

limitation period.” 294 F.3d at 110 (citing Locomotive Eng’rs,

482 U.S. at 284). The decision in Bellsouth Corp. relies on

United Transportation Union v. ICC, 871 F.2d 1114 (D.C. Cir.

1989), see 17 F.3d at 1489-90, which in turn rests on

Locomotive Engineers for the proposition that a timely petition

for reconsideration stays the limitations period for judicial

review, see 871 F.2d at 1117-18. The decision in Tennessee Gas

Pipeline Co. also relies on the relevant portion of United

Transportation Union. See 9 F.3d at 981. In Tennessee Gas

Pipeline Co., after its first petition for rehearing was denied, the

petitioner filed a second request for rehearing within 30 days of

the agency’s first rehearing order; because the second petition

for rehearing was timely and still pending when judicial review

was sought, the petition for review was dismissed as premature.

In sum, none of the cases cited by petitioner holds that an

untimely request for reconsideration tolls the running of the

limitations period for judicial review. Indeed, such a holding

would fly in the face of the jurisdictional requirements of the

NGA and the Court’s decision in Locomotive Engineers.

Williston’s RCR was not a timely petition for rehearing or

reconsideration, because it was filed 34 days after FERC’s

Rehearing Order. In light of the requirements of 15 U.S.C.

§ 717r(a) – an aggrieved party “may apply for a rehearing within

thirty days after the issuance of [FERC’s] order” – and 15

U.S.C. § 717r(b) – a complaining party has “sixty days after the
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order of the Commission upon the application for rehearing” to

file a petition for review – the RCR could not possibly establish

a basis for judicial review of the Commission’s Rehearing

Order. As previously noted, an application for rehearing is a

jurisdictional prerequisite to judicial review of Commission

orders under the NGA, United Mun. Distribs. Group, 732 F.2d

at 205 n.2, but it cannot serve this function if it is not timely

filed under 15 U.S.C. § 717r(a). Williston readily acknowledges

that it “could have filed a petition for review within 60 days of

[the Commission’s May 2004 Rehearing Order].” See

Petitioner’s Br. at 13. Having failed to do so, it cannot now

secure the jurisdiction of this court to gain review of that order.

To avoid the obvious jurisdictional bar to its petition for

review, Williston argues that the 60-day clock for seeking

judicial review began to run only after the Commission issued

its Compliance Order. This argument is meritless. The agency

action of which Williston now seeks review is embodied in the

Commission’s Rehearing Order, and Williston never filed a

timely petition for review of that order. 

Williston claims that it feared the imposition of sanctions by

this court if it filed a petition for judicial review while its RCR

was “pending.” Petitioner’s Br. at 16. This claim lacks

credence. The court’s order in Williston Basin Interstate

Pipeline Co. v. FERC, No. 99-1311 (D.C. Cir. Oct. 12, 1999),

upon which Williston grounds its fear of sanction, is plainly

inapposite. In that case, the petitioner first filed a timely request

for rehearing with the Commission and then filed a petition for

review with this court while the timely petition for rehearing

was still pending before the Commission. We concluded that

the petition was “incurably premature” and ordered the

petitioner to show cause why we should not assess sanctions.

Id.; see also Clifton Power Corp., 294 F.3d at 110 (“Our cases

make clear that a petition seeking review of such a non-final

action is not only premature but incurably so . . . .”). In this
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case, Williston never filed a timely second petition for rehearing

of the Rehearing Order. Had Williston filed a timely petition

for judicial review of the Rehearing Order, which it knew to be

a final order subject to judicial review, this court would have

been obliged to consider the petition on its merits.

The logical extension of Williston’s argument, which we

cannot accept, is that a petitioner can file a request for

reconsideration of a Commission order whenever it desires, and

that such filing tolls the 60-day statute of limitations for judicial

review. This would wreak havoc with the jurisdictional

requirements of the NGA. A party cannot be allowed to file a

self-styled request for “reconsideration” outside of the explicit

time limits for requests for rehearing in order to avoid the

jurisdictional requirements for obtaining judicial review. Were

we to endorse such a rule, we would vitiate both the statutory

requirement governing the timely filing of a request for

rehearing with the agency (a prerequisite to judicial review), and

the statutory limitation period for judicial review. We have no

authority to rewrite the statute in this way.

III. CONCLUSION

There is no doubt that the time requirements of 15 U.S.C.

§ 717r(a), (b) of the NGA establish jurisdictional requirements.

See Moreau v. FERC, 982 F.2d 556, 562-63 (D.C. Cir. 1993)

(holding that “the time requirements of the statute are as much

a part of the jurisdictional threshold as the mandate to file for a

rehearing” and that “the time limit[s] must be strictly construed

and may not be waived by FERC or evaded by the courts”)

(citations omitted). Statutory jurisdictional requirements, such

as the provisions of 15 U.S.C. § 717r, are not mere technicalities

that can be brushed aside by a court. And a petitioner cannot

escape the NGA’s jurisdictional requirements by filing an

untimely or procedurally defective request for reconsideration.

See Moreau, 982 F.2d at 563 (holding that, in a case in which

petitioners did not move for rehearing of FERC’s order until
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approximately eight months after the order issued, the court

would not “exempt from the time limit those who, like

petitioners, choose to sit on the sidelines to wait and see what

happens in FERC proceedings”). The simple point here is that

“subject-matter jurisdiction, because it involves the court’s

power to hear a case, can never be forfeited or waived.”

Arbaugh v. Y&H Corp., 126 S. Ct. 1235, 1244 (2006); see also

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir.

2004) (if a statutory requirement is jurisdictional, “a court

cannot excuse it”). It is absolutely clear in this case that,

because Williston failed to satisfy the jurisdictional

requirements of the NGA, we lack jurisdiction to consider its

petition for review.