Opposition Brief — Jupiter Corp. v. Federal Power Commission

i Phillips Petroleum Co., 34 FPC 486

Opinions below

Se eae Fei nen eae me Ae) iba

RON So res

Statute involved |

Statement.

Cee ne ee ee ee

CITATIONS |

Dyer v. Securities and Exchange Cinisidion. 289

Texas Gas Tranuieuion Corp. v. Shell Oil Co., 363

United Gas Pipe Line Co. v. Mobile Gas —

Ca, Dee a Ws oi ekn ae ek abeleeae

Statutes and Regulations: : =

' Natural Gas Act, 52 Stat. 821-833, as

amended, 15 U.S.C. 717-717w_-_-__- Pe wach

Section 5(a), 15 U.S.C. 717d(a)_-.----_-

Section 16, 16 US.C. Tite. ....2.....:.

Section 19(a), 15 U.S.C. 717r(a)_---:~--

Section 19(b), 15 U.S.C. 717r(b)__.____- :

Section 19(c), 15 U.S.C. 717r(c)__-2---- 1.

Section 20(a), 15-U.S.C. 717s(a)___---- 2

()

376-007—70——-1

,

on the a Gore P the Gmited Sites

OCTOBER Team, 1969

?

pee 1045

THE JUPITER CORPORATION, PETITIONER

v.-

FEDERAL POWER COMMISSION’ |

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE FEDERAL POWER COMMISSION

OPPOSITION

er

OPINIONS BELOW

- The opinion of the court of appeals (Pet. App.

43a-68a) is not yet reported. The orders of the Com-

mission (Pet. App. la-18a, 14a-16a, 19a-33a, 34a- .

42a) are reported at 39 FPC 417, rehearing denied,

39 FPC 854, and 40 FPC 1455, rehearing denied, 41

FPC 72.

JURISDICTION

The judgment of the court of appeals affirming the

Commission’s orders was entered October 10, 1969.

The petition for a writ of certiorari was filed on Jan-

uary 8, 1970. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

a,

~ rate determination.

ir

2

QUESTIONS PRESENTED J

6

1, Whether the court of appeals properly considered

a contract interpretation question which petitioner it-

self had presented both to- the court and to the

S ges erinsniag ¥ |

_ 2. Whether the Commission, _ having determined

that Jupiter was required to pay producers a specific

rate for gas purchased, appropriately required Ten-

nessee, to whom the gas was resold, temporarily to

pay that rate directly to the producers for Jupiter’s

account and the remainder to Jupiter directly when

Jupiter refused to tomply with the Commission’s

STATUTE INVOLVED

The Natural Gas Act in pertinent part appears in

the Appendix, infra pp. 17-20.

STATEMENT “7

This case is part of the Giamiesion’ s long history

of efforts to regulate the rates charged by the Jupiter

Corporation for its transportation of natural gas.

- Jupiter, through its pipeline, performs a number of _

separate functions coming within the Commission’s

jurisdiction. It purchases offshore gas from Phillips

Petroleum Company and Kerr-MeGee Cor poration

(Phillips-Kerr-MeGee), which it transports onshore

and resells to Tennessee Gas Pipeline Company (Ten-

nessee). It also transports to the Tennéssee pipeline,

for a fee, gas which Union Oil Company of Cali-

fornia, as successor to the Pure Oil Company, sells

Bar ein

. 3

to Tennessee. Finally—and this is the root of the

present controversy—it transports through these same

facilities a limited amount of condensate. and lique-

fiable hydrocarbons (less than 5 percent of the total

gas stream), which, though part of the gas stream as

taken out of the ground and as delivered to Jupiter

by Phillips-Kerr-McGee and Union, are not part of

the gas sales to Tennessee but are separated: out-and

returned to the producer. Jupiter ance some of this -

separation for the producers.

To summarize the controversy, in 1965 the Com-..

mission fixed 18.5 cents per thousand eubic feet.

(Mcf¥ as the rate to be charged Jupiter at the wellhead

by the producers of gas in the Rollover Field, and

temporarily allowed Jupiter to charge Tennessee Gas

Pipeline an additional 2.4 cents for transporting the

gas pending resolution of an investigation of this rate.

After a full administrative hearing, the examiner

concluded that. petitioner was overchargiug the inter-

state consumers for transporting the gas and ordered

a reduced rate. Thereupon petitioner proposed a set-

tlement, which the Commission approved. No judicial °

review was sought.

For a time petitioner complied with the order ap-

proving the settlement, but it then began to withhold

an amount equal to the rate declared unlawful by the —

Commission. Jupiter contended, on various theortts,

that while the Commission could regulate the rate to

transport gas, Jupiter was free to charge any rate

for transporting the liquid hydrocarbons. and could

set-off the additional 1 4 cents per Mef it claimed for

ee ly Oat Pe a, COIS

ee Paes eee ae ee ae”

4

transporting: the condensate and liquefiable hydro- .

carbons against the rate it was required to pay for its

gas purchases.’ °

Believing that the petitioner was dotihcantely at-

_ tempting to evade lawful Commission orders, the

Commission ‘directed Tennessee to pay the producers —

directly for the gas and to pay the petitioner the just

“and reasonable rate for transporting the gas, on a

- temporary basis. The Commission chose to enforce its

own orders, which have immediate’ effect unless judi-

cially stayed pendente lite, instead of applying to the

district court for an order of enforcement. Petitioner

was afforded full judicial review in the United States

Court of Appeals for the District of Columbia Circuit,

which upheld the Commission. Petitioner now seeks,

not merely a writ of certiorari, but also summary

reversal. While the Commission orders related to both

the Phillips-Kerr-McGee and the Union aspects of

Jupiter’s operations, Jupiter’s petition here does not

challenge the Commission’s order or the court decision

below insofar as they relate to the Union transaction

(Pet. App. 2a).

The Phillips-Kerr-McGee operation—Since 1953,

the gas produced by Phillips-Kerr-McGee has been

sold to Jupiter at the lease and resold by Jupiter to

Tennessee on shore. Jupiter receives a “spread’’ rep-

resenting the difference between what it pays the pro-

ducers and what it collects from Tennessee (Pet.

1 Jupiter claimed the,right to charge, for transporting lique-

fiable hydrocarbons and condensate, 1.4. cents per Mcf of gas,

not per Mcf of the liquefiable hydrocarbons and condensate.

5

App. 47a; J.A. 15-18): In 1965, the Commission re-

duced Phillips-Kerr-McGee’s: rate to 18.5 cents from

the higher price it was then ‘receiving, and correspond-

ingly reduced Jupiter’s temporary certificate rate

from the contract rate ‘of 21.33 cents plus tax reim-

bursement to a total rate of 20. 9.cents. Op. No. 470

(Phillips Petroleum Co.; 34 FPC 486, 489). The tempo-

rary 2.4-cent spread represented the maximum that

could have been allowed Jupiter in the then pending

. rate investigation from which thé’ present case arises.

Jupiter noted, but later ae an - -appeal from

Opinion No. 470.

The Jupiter rate ‘enidetidnnin and settlement.—The

‘Commission had begun its rate proceeding against ©

Jupiter under Section 5(a) of the Natural Gas Act,

— : 15 U.S.C. 717d(a), in 1962. After various delays, in-

cluding efforts by Jupiter to obtain injunctions in,

the courts against the proceeding and to persuade the

Commission to terminate the case, the examiner is-

sued an initial decision (35 FPC 1095), finding .632

cent per Mcf to be a just and reasonable rate for all

of Jupiter’s services (Pet. App. 48a). .

Before the Commission could act on exceptions to

this decision, Jupiter proposed a settlement under

which it would receive 1.25 cents per Mecf for the

transportation of the gas'sold to Tennessee (Pet.

App. 48a; J.A. 235-236). Noting that its contracts ;

with the producers did not provide separate charges -

_ for the several services rendered by it, Jupiter stated

“that an equitable resolution of this case requires

either a reformation of its various contract[s] with

x

6 ¢

the Rollover Field producers (Pure, Phillips and

~ Kerr McGee)‘ to require those producers to pay Ju-

piter, or Commission permission for Jupiter to retain,

‘charges for the gathering of natural gas, and for the

_ services Jupiter renders in gathering, separating and .

- storing those producers’ condensate and other liquids”

(J.A. 235). Thus, Jupiter further proposed that

Phillips and Kerr-McGee should agree to revise their _

contracts to .permit J upiter to credit against the 18. 5

cents per Mcf that Jupiter paid them for the gas it .

resold an amount of 0.25 cents ‘per Mcf for the’.

“service of gathering and separating Philkips-Kerr

’ ,. MeGee’s condensate’”’ (J.A. 242).

7. After various objections from each of the productrs

; and the distributor intervenors, Jupiter amended its

offer of settlement (Pet. App. 48a). It now proposed

a “contractual sale price” to Tennessee of 19.5 cents,

variable only if and “to the extent that a valid action

by the Federal Power Commission authorizes a price —

for gas sold by Phillips-Kerr-MeGee to Jupiter at a

level different from 18.5 cents per Mcf” (J.A. 257).

Thus, Jupiter would ‘receive a one cent spread, re-

serving its right to collect compensation for its serv-

ices with respect to the condensate. The Commission

approved the settlement (Pet. App. 48a; J.A. 282-291,

35 FPC 1091), over Phillips-Kerr-McGee’s objections

that their firm 18.5-cent rate should not be reduced

and that they had contracted for the additional serv-

ices to be performed free of charge. The Commission ~

said of the contract reformation issue (Pet. App.

48a-49a ; J.A. 288, 35 F’PC 1091, 1094) :

-

7

Jupiter’s reservation of claimed rights with

respect to the collection from Union and Phil-

lips-Kerr McGee of compensation for trans-

porting, separating or stering those producers’

condensates and wane hydrocarbons and

the producers’ answers that point does not

present any issue to be‘ determined at ‘this

time. Any contractual arrangements Jupiter

makes with the producers for those services

will be acted upon if and when they are appro-

priately submitted to this Commission.

In denying Phillips-Kerr-MeGee’s. ‘application for

rehearing, the Commission made it clear that it had

not meant to indicate either that further negotiations

were necessarily’ possible or that they were ‘required ;

and that it: had’simply said that it was “not now de-

termining the claimed rights of any party on this

matter’’ (Pet. App. 6a; 36 FPC at 495-496). ‘Neither

Jupiter nor any of the producers petitioned for re-

view of the order approving the settlement.

Post-settlement occurrences.—From June 1966 3

through May 1967, Jupiter collected 19.5 cents from

‘Pennessee and paid 18.5 cents to Phillips-Kerr-McGee,

retaining one cent. Starting in’ May 1967, however,

Jupiter began paying only 17.1 cents to Phillips-Kerr-

McGee, claiming that its contract permitted it to re-

duce its payments to the latter by the same amount that

its revenues from Tennessee were reduced. In Aiigust

1967, Jupiter sued Phillips-Kerr-McGee i in an Illinois

state court, seeking to recover on that theory of the

contract the differential of 1. 4 cents per Mef it had

paid Phillips-Kerr-McGee prior to May 1967, and

also seeking a declaration of its contract rights. It:

3876-007——- 2: i

' {

asserted that its contract rights agait&t the producers

* were unimpaired by the settlement with the Com-

mission, since all sums due it under .the contracts

(aside from the 1 cent authorized in the settlement) |

‘should be deemed compensation for the services re-

lating to condensate and liquefiable hydrocarbons.’

‘Phillips-Kerr-McGee then filed a motion with the

Commission requesting it to enforce payment of the

18.5-cent rate, as provided in the settlement order”

(Pet. App. 49a-50a).

The Commission orders under! review. —On April 3,

1968, the Commission issued a declaratory order, hold-

ing, inter alia, (1) that Jupiter was and had since

August 11, 1965, been required to pay Phillips-Kerr-

McGee the certificate rate of 18.5 cents per Mecf; (2)

that compensation for services other than transpor-

tation of that part of the, gas stream delivered to

Tennessee was a separate. contractual issue for the

courts, where any judicial remedy ‘‘may well be a

matter of equity rather than law”; and (3) that the

amounts at issue in court cases could not be set off .

_ against the 18.5-cent certificate rate (Pet. App.

_ la-18a). 2

On May 24, 1968,.the Commission denied the re- /

“fi

hearing sought by Jupiter (Pet. App. 14a-18a). With ——__

* Phillips-Kerr-McGee moved to’ dismisy“or stay the action,

contending that the Commission had 5 bBo jurisdiction.

These motions were denied. While the I}linois court ordered

_ Jupiter not to insist on endorsements that 17.1 cents represented’

the full amount ue, it denied without exPlanation a request

that the 1.4 cent ount in dispute be plieed in escrow (Pet.

App. 8a, 49a-50a; J.A. 338-341).°The Illinois court has-not yet

rendered a decision.

a Pt

%

9

: respect to Jupiter’s set-off claim, the Commission

held (Pet: App. 16a) that any payments that might —

be-due for alleged nonjurisdictional revenues “‘may

not be commingled or confused with the amounts due

for jurisdictional services in Jupiter’s accounts.”

On July 1, 1968, Phillips-Kerr-McGee filed a mo-

tion complaining that Jupiter was continuing to ten-

der it only 17.1 cents, rather than the 38.5 cents

prescribed (Pet. App. 5la; J.A. 423-430). This’ mo-

tion was renewed on October 16,1968 (Pet. App.

5la; J.A. 431-440). In response to these motions,

the Comngission issued an order on December 13, 1968

(Pet. App. 19a-33a), finding that the only satisfae-

tory way to maintain the integrity of its April 3 and

May 24 orders, pending court review, was to direct

Tennessee to pay 18.5 cents per Méf directly to -

Phillips-Kerr-McGee (for the account of Jupiter)

and 1 cent directly to Jupiter. Jupiter was also di-

rected to pay over to the producers the difference *

between the sums it had paid them for gas since the

1966 settlement order and the price of that gas at.

18.5 cents per Mef. The Commission noted that it

would stay this order, if Jupiter promptly sought a

stay of the earlier order, pending a court of 4 ps

determination of the stay motion.’

——Fupiter ‘applied. for_rehearing of this order con-

tending, inter alia, that the Commission could - not

control the ‘‘spread’’ retained by Jupiter on the gas

*Although Jupiter had sought review of the Commission’s

~ April 3 and May 24 orders, it had not sought to stay them.

* Jupiter’s subsequent request for such a stay was denied by ‘

the court of appeals on February 6, 1969.

”

/

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PN PE TS

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aphber RENT SY RPC III: Le SOP REEL SO TS RIT CRM PIE FE. Sea a. IF

POF AG LAL EE RIRLEPY SS ACNE I wepen * -

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10

bought from Phillips-Kerr-McGee and sold to Ten-

nessee; and that the Commission had no power to

- “modify’’ the April 3 order as to which an appellate

review proceeding was pending. On. January 22,

1969, the Commission denied Jupiter’s application

(Pet. App. 34a-42a). As to Jupiter’s ‘‘spread’’ con-

‘tention, unsuccessfully advanced, previously, the Com-

mission observed (Pet. App. 36a) ‘‘that the contract

between Jupiter and Phillips-Kerr-McGee is on file

with this Commission as the contractual support for ©»

Phillips-Kerr-McGee’s rate schedule covering the sale

of natural gas to Jupiter and is subject to our juris-

diction as such.’’ The Commission rejected as baseless

the claim that the December 13 order modified the

earlier orders, noting (Pet. App. 37a) that it ‘‘merely

. enforeed the certificate order of August 11, 1965

[prescribing the Phillips-Kerr-McGee 18.5 cent rate],

and the settlement order of June 28, 1966, as clarified

by the order of April 3, 1968. No conclusions reached

by the April 3 order were modified, nor were any

responsibilities imposed thereby varied.’’ |

The decision below.—The court of appeals affirmed

in a detailed opinion (Pet. App. 48a-68a). As had |

the Commission, it rejected Jupiter’s contention that

the 18.5-cent rate to Jupiter was not contractually

supported (Pet. App. 52a-54a). With respect to

Jupiter’s assertion that the Commission had conceded

a contractual right to payment for non-jurisdictional

services, the court concluded (Pet. App. 56a-57a)

that—

11

* * * the Commission has conceded nothing

_ but the possibility that Jupiter has an equitable

; claim, disputed by PKM, for the reformation

of its contract to require-payment by PKM

for nonjurisdictional services now that their

eost is no longer being absorbed in an exces-

sive charge to Tennessee. The Commission has

never conceded that Jupiter is entitled under

_ the contract as written to recoup any reduc-

tions in the spread chargeable to Tennessee

from PKM. Indeed, the Commission scarcely

had reason or occasion to do so. Jupiter’s con-

tractual argument was rejected by the examiner

in the rate proceedings, and its settlement pro-

_ posals stated in bold-faced type that reforma-

~ tion of its contract was required to enable it

to collect payment for condensate services.

Jupiter paid the 18.5 cent rate for nearly a

year before filing its suit, based on its present

theory of the contract, in the Cook County

court. When Jupiter finally made its position

on the epi somewhat more explicit in its

petition for rehearing of the April 3 order, the

Commission rejected it in the opinion denying

rehearing.

The court also found without merit (Pet. App. 57a)

Jupiter’s related argument that the Commission had

acquiesced in resolution of the filed rate issue by the

state court. |

~“The court upheld the Commission’s authority to

issue its December 13, 1968 enforcement order. It

‘rejected the claim that the action modified the Com-

mission’s declaratory orders, noting (Pet. App. 58a-

SN NO A RO ETT A

TT ED AE BOG ann, como ag

LEE ROE GIL LE LENO ABR TE

12

59a) record support for the Commission’s judgment

that its implementing order was necessary to assure

Jupiter’s compliance -with the orders that had not

been stayed. The. court agreed (Pet. App. 59a-60a)

with the Commission that the Comnfission may fash-

ion its own enforcement remedies, where feasible, and

that the Natural Gas Act’s provisions for judicial

enforcement provide supplemental remedies that the

Commission may, in its discretion, request. —

ARGUMENT

1. Petitioner’s principal contention appears to be

that the court of appeals erred in considering what

effect Jupiter’s contract with Phillips-Kerr-McGee

might have upon the rights that Jupiter asserts. It

is, however, hard to understand this contention, for

’ “s

Jupiter itself has based its position upon an assertion

of rights under that contract. Jupiter contended that

the Commission was bound by the contract rate,

United Gas Pipe Line Co. v. Mobile Gas Service

Corp., 350 U.S. 332, which Jupiter alleged was lower

than the 18.5-cent rate the Commission found. (Pet.

App. 52a, 57a, J.A. 399; Tr. 3884).° The Commission

*In its application for rehearing of the Commission’s De-

cember 13, 1968 order (which was not reprinted below), Jupiter

claimed (Tr. 3884-8885): “* * * the contracts between Jupiter

and Phillips-Kerr provide that the price to be paid to Phillips-

Kerr shall be the price which Jupiter receives for the subject

cus from Tennessee, less a contractual ‘spread’, which ‘spread’

is normally in the area of 2.4 to 2.5 cents per Mcf. Since, under

ruling principles of law, including those enunciated in United

Gas Pipeline Company v. Mobile Gas Service Corp,, 350 U.S.

332 (1956), a gas company cannot collect more than is allowed

‘ under its contracts, irrespective of whether the Commission

“

13

ruled against Jupiter’s claim in finding (Pet. App.

_ 8a, 13a, 15a—-16a, 2la-22a, 36a) that, as Jupiter had

conceded in the settlement papers, Phillips-Kerr-

McGee’s filed rate was that reflected by its contract

on file with the Commission—185 cents per Mef.

While the court’s discussion of Jupiter’s contract

claim was more detailed than the Commission’s, this

certainly provides no. basis for complaint. Indeed, as

this Court made clear in Texas Gas Transmission Co.

v. Shell Oil Co., 363 U.S. 268, 268, contract interpre-

tations made by the Commission in determining the

filed rate are subject to de novo interpretation by the

reviewing court where, as here, no questions of agency

expertise are involved.°

2. The court of appeals was also plainly correct

(Pet. App. 582-602) in holding valid the Commis-

sion’s enforcement order of December 13, 1968. After

the Commission had determined that Jupiter was re-

quired to pay Phillips-Kerr-MeGee 18.5 cents per

Mef, Jupiter nevertheless continued to withhold 1.4

eents per Mcf in its payments to the producers. It

- sought no judicial stay of the Commission’s order,

however, and the Commission properly took tempo-

rary measures necessary to assure compliance and

protect the integrity of its earlier orders. It did so by

authorizes any higher rate, Jupiter has consistently submitted

that Phillips-Kerr cannot collect maye than 17 to 17.1 cents

per Mcf.”

® Petitioner asserts (Pet. 10, note) but does“hot make any

attempt to show, that the interpretation of the contract as sup-

porting the 18.5-cent rate is incorrect. The discussion of the.

court below (Pet. App. 52a-54a) provides an adequate answer.

ee

14

directing Tennessee, to whom the producers’ gas was

resold, prospectively to pay 18.5 cents per Mef di-

rectly to the producers on Jupiter’s account, while

paying one cent to Jupiter directly.

Whether or not the Commission lacked authority to

determine what would be just compensation for J upi-

ter’s condensate services, it was entitled to protect its

rate determinations from. Jupiter’s “selfehelp” efforts,

pending decision of the compensation issue in sthe

state courts. Whatever might be the case under other

facts, it is clear enough that a charge of 1.4 cents per’

Mef for minor operations concerning not more than five

percent of the gas stream is one unlikely to have been

reached by the parties in arms-length bargaining. (Com-

pare p. 6 supra.) The December 138 order did not modify

the rates established by the earlier orders, but rather

took measures that evidently had become necessary to

assure that they would be honored. Commission orders

are not automatically stayed pending review, and

may be implemented* unless the appealing party se-

cures a judicial stay ‘—which Jupiter failed to do. Sec-

tion 19(c) of the Act, 15 U.S.C. 717r(¢) ; Dyer v. Securi-

ties and Exchange Commission, 289 F. 2d 242 (C.A.

8). Since the natural gas companies were entitled to

receive the contract rate on file with the Commission

for the gas sold by them (under the so-called “filed

rate” doctrine), the Commission did what was neces-

sary to assure that they would once it appeared that

Jupiter would not honor its obligations. ;

* Thus, the cases under the differing scheme of the National

Labor Relations Act upon which petitioner relies in claiming

2 denial of due process (Pet. 13) are inapplicable.

15

CONCLUSION

>

For these reasons, the petition for a writ of certi-

orari should be denied.

Respectfully submitted.

. ERWIN N. GRISWOLD,

Solicitor General.

Gorpon GoocH, :

General Counsel,

Peter H. ScHirr, \

Solicitor,

Federal Power Commission. —

FEBRUARY 1970.

APPENDIX

-—-

The Natural Gas Act, June 21, 1938, ¢. 556, 52 Stat.

821-823, as amended, 15 U.S.C. 717-71 7w, provides in

pertinent part:

Src. 16. The Commission shall have power to

perform any and all acts, ‘and to—prescribe,

issue, make, amend, and rescind such orders,

rules, and regulations as if may find necessary

or appropriate to carry out the provisions of

this act. Among other things, such rules and

regulations may define accounting, . technical,

and trade terms used in this act; and may pre-

seribe the form or forms of all statements, dec-

larations, applications, and reports to be filed

with the Commission, the information which’

they shall contain, and the time within which

' they shall be filed. Unless a different date is

specified therein, rules and regulations of the

publication in the manner which the Commis-

sion shall’ prescribe. Orders of the Commission

shall be effective on the date and in the manner

which the Commission shall prescribe. For the

purposes of its rules and regulations, the Com-:

mission may classify persons and matters with-

in its jurisdiction and prescribe different re-

quirements for different classes of persons or

matters. All rules and regulations of the Com-

mission shall be filed with its secretary and shall

be kept open in convenient form for public in-

spection and. examination during reasonable

business hours. a5) 3 3 |

* * * ; & - *

Sec. 19 (a) Any person, State, municipality,

or State commission, aggrieved by an order is-

(17)

CA OIRO fone ET, A alias pecomenie Pa eztv ggrnar RE EME EAI LEE AS

Commission shall be effective thirty days after |

SAO

ME SEIN TS

REMIT

Ch aneanher

DOSE AE REAR MVE ip

;

> sh

18

sued by the Commission in a proceeding under

this act to which such person, State, municipal-

ity, or State commission is a party may apply

for a rehearing within thirty days after the

issuance of such order. The application for re-

hearing shall set forth oe the ground

or grounds upon which such application is

have power to grant or deny rehearing or

td-dbrogate -or modify its order. without fur-

ther 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 anyperson unless such person shall have

made application to the Commission for a re-

hearing thereon. ‘Until the record in a proceed-

ing shall -have been filed in a court of appeals,

as provided in subsection (b), the Commission

-, . May at any time, upon reasonable notice and

in such manner as it shall deem proper, modify

or set aside, in whole,.or in part, any finding

or, order made or issued by it. under the provi-

syons of this Act.

(b) Any party to a proceeding under this

. act aggrieved by an order issued by the Com-

mission in such proceeding may obtain a review

of such order in the circuit court of appeals of

- the United States for any circuit wherein the

* natural-gas company to which the order relates -

is located or has its principal place of business,

or in the United States Court of Appeals for

- the District of Columbia, by filing in such

court, within sixty days after the order of the

Commission upon the application for rehear-

ing, a written petition praying that the order

of thecCommission be modified or set aside in

whole or in part. A copy of such petition shall

forthwith be transmitted by the clerk of a

court to any member of the Commission ahd

sha Upon such application the Commission.

Ya

19

ed

thereupon the Commission shall file with the

court the record upon which the order com-

plained of was entered, as provided in section

2112 of title 28, United States Code. Upon the

filing of such petition such court shalb 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 objettion

shall have been urged before the Commission

in the application for rehearing unless there is

reasonable ground for failure so to do. The

finding of the Commission as to the facts, if

supported by substantial evidence, shall be con-

clusive. If any party shall apply to the court

‘for leave to adduce additional evidence; and

shall show to the satisfaction of the court that

such’ additional evidence is material and that

there were reasonable grounds for failure to

adduce such evidence in the proceedings before

the Commission, the court may order such ad-

ditional evidence to be taken before the Com-

mission and to be adduced upon the hearing

in such manner and upon such terms and con-

ditions as to the court may seem proper. The

_ Commission.may modify its findings as to the

facts by reason of the additional evidence so

taken, and it shall file with the court such -

modified or new findings, which if supported by

substantial evidence, shall be conclusive, and

its recommendation, if any7for the modification

or setting aside of the original order, The judg-

ment and decree of the court, affirming, modi-

fying, or setting aside, in whole or ‘in part, any

such order of the Commission, shall be final,

subject to review by the Supreme Court of the

United States upon certiorari or certification as

provided in [former] sections 239 and 240 of

the Judicial Code, as amended ( U.S.C., title 28,

sec. 1254). |

pL SNE RE SOT IRIERI PFE"

20

(ec) The filing of an application for rehear-

ing under subsection (a) shall not, unless spe-

cifically ordered by the Corumission, operate as

a stay of the Commission’s order. The com-

mencement of proceedings under subsection

(b) of this section shall not, unless specifically

ordered by the court, operate ag a stay of the

Commission’s order.

Src. 20. (a) Whenever it shall, appear to the

Commission that any person is engaged or

about to engage in any acts or practices which

constitue or will constitute a violation of -the

provisions of this act, or of any rule, regula-

tion, or order thereunder, it may in its discre-

tion bring an action in the proper district’court

of the United States, the District of Columbia;

or the United States courts of any Territory

or other place subject to the jurisdiction of the

United States, to enjoin such acts or practices

_and to enforce compliance with this act or any

rule; regulation, or order thereunder, and upon

a proper showing a per ‘manefit or temporary

injunction or decree or restraining oréer shall .

be granted without bond. The Commission may —

transmit: such evidence.as may be available

concerning such ‘acts or practices or concern-

ing apparent yiolations of the Federal. antitrust

laws to the Attorney General, who, in his dis-

cretion, may institute the necessary criminal

proceedings.