Before BAZELON, Chief Judge, and FAHY and WASHINGTON, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1963.CDC.152
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
This case is related to the Pan American Petroleum cases, *fn1 decided today. There we upheld the Commission's sua sponte action in (1) reopening its order of May 29, 1961 which required gas producers to refund to their pipeline purchasers only such amounts, of the moneys collected as costs of an invalid Louisiana State tax, as the producers claimed and received in refunds from the State, and (2) entering a corrected order on March 5, 1962 which required producers to refund all moneys collected from pipeline purchasers without limitation to the amounts which producers claimed and received in refunds from the State. *fn2
In the present petition for review, Tennessee Gas Transmission Co., a pipeline purchaser, challenges the Commission's further action, in the corrected order of March 5, 1962, which denied the benefits of that order to all purchasers who had not sought rehearing of the order of May 29, 1961, and denied certain of their applications for intervention as untimely.
Tennessee was named in the original suspension orders, issued during July and August 1958, fixing the obligation of the producers to make refunds in the event the tax collected from purchasers should be declared invalid. And under the order of February 21, 1961, which was entered after the tax had been invalidated, Tennessee was entitled to refunds as were all other purchasers affected by the rate increase. Thereafter, the Commission, sua sponte, *fn3 reopened $2all proceedings, and on May 29, 1961 issued its order under which all purchasers were denied the right to refunds from producers who had not, in turn, sought and received refunds from the State of Louisiana. This pattern of considering all four hundred dockets as a single unit continued through the Commission's order of August 30, 1961, wherein the Commission stated:
[We] shall reopen sua sponte these proceedings in order to insure consistency in whatever action we may take with respect to the issues involved herein.
Tennessee was specifically named as a purchaser in twenty-two of the reopened dockets.
On November 6, 1961, however, the Commission published the following notice:
Take notice that notices of intervention or petitions to intervene may be filed in any of the aboveentitled proceedings with [the] Commission . . . on or before November 30, 1961.
Pursuant thereto Tennessee and others filed timely petitions for leave to intervene. Thereafter the Commission issued the corrected order of March 5, 1962, described earlier. Since the benefits of that order applied only to purchasers who had protested the May 29 order, Tennessee was denied refunds. And since Tennessee did not seek leave to intervene until November 30, 1961 (the deadline set forth in the Commission's notice of November 6, 1961), it was denied leave to intervene. Its timely petition for rehearing on these aspects of the March 5 order was denied on April 26, 1962.
Tennessee thereupon brought this petition for review which the Commission has moved to dismiss for lack of jurisdiction. The Commission says that, insofar as Tennessee is concerned, the effect of the March 5, 1962 order denying intervention was to leave outstanding the substantive provisions of the May 29 order. It points out that Tennessee did not object to the denial of intervention in its petition for rehearing, and therefore urges that this court may not now consider the propriety of that denial. Furthermore, it says, since Tennessee was denied intervention, it could not properly apply for rehearing of any substantive provisions of the order of March 5.
We think that under the circumstances here presented the Commission's denial of refunds made Tennessee a "party aggrieved" within the meaning of § 19(b) of the Natural Gas Act, *fn4 and that for reasons now to be stated the motion to dismiss ...