829 F.

2d 275

TOWNS OF WELLESLEY, CONCORD, and NORWOOD,

MASSACHUSETTS, Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
Boston Edison Company, Intervenor.
No. 85-1221.

United States Court of Appeals,

First Circuit.
Submitted June 29, 1987.
Decided Sept. 25, 1987.

Charles F. Wheatley, Jr., Woodrow D. Wollesen and Wheatley &

Wollesen, Annapolis, Md., on petition for writ of mandamus.
Joseph S. Davies and Jerome M. Feit, Sol., Washington, D.C., for
F.E.R.C., on response in opposition to petition for writ of mandamus.
Carmen L. Gentile and Bruder & Gentile, Washington, D.C., for Boston
Edison Co., on response to petition for writ of mandamus.
Before BOWNES, BREYER and TORRUELLA, Circuit Judges.
PER CURIAM.

The towns of Wellesley, Concord and Norwood, Massachusetts ("petitioners")

petition this court for a writ of mandamus to compel the Federal Energy
Regulatory Commission ("FERC") to comply with the mandate of the earlier
decision of the court in this case, Towns of Wellesley, Concord and Norwood
v. F.E.R.C., 786 F.2d 463 (1st Cir.1986).I. PRIOR PROCEEDINGS

Petitioners purchase electricity from Boston Edison Company (Boston Edison)

at wholesale rates. A 1980 settlement agreement controlled, at the time this
controversy arose, the method by which Boston Edison could raise these rates.

Specifically, the agreement prohibited Boston Edison from increasing

petitioners' rates unless a rate increase had been made effective for Boston
Edison's retail customers.
3

In September, 1984, Boston Edison applied for a $2.95 million wholesale rate
increase with the FERC. The application proposed that the increase go into
effect in two stages. Petitioners objected to the rate filing. They claimed that it
violated the 1980 agreement because retail rates had increased only once prior
to the application. The FERC found that the contract did not bar the two-step
rate increase and ordered the increased rates effective, subject to refund, as of
November 28, 1984 and April 28, 1985 respectively. 29 F.E.R.C. p 61,224
(November 21, 1984). The FERC also ordered hearings on whether the rates
proposed by Boston Edison were reasonable. Id. After the FERC denied their
motion for rehearing, petitioners sought review in this court of the FERC's
acceptance of the rate filing.

In our prior decision, we found that the settlement agreement "require[d] that
effective dates for wholesale rate increases be matched with effective dates for
increases in retail rates." 786 F.2d at 465. However, the effective date of the
second step of the proposed wholesale rate increase was not accompanied by a
corresponding increase in retail rates. Thus, the second step of the rate filing
violated the settlement agreement. Id. Because the FERC cannot accept rate
filings that contravene private contracts, id. (citation omitted), we vacated the
FERC's orders accepting the rate filing in two stages. Id. at 465-66.

Originally, we also remanded the case to the FERC with instructions to order
Boston Edison to refund to petitioners, with interest, all rates it had collected
pursuant to the second step of the rate increase and we ordered the FERC to
conduct further proceedings as deemed necessary. On May 8, 1986, the FERC
petitioned for rehearing and a suggestion for rehearing in banc. The FERC
argued that the determination of a proper remedy should be left up to it. It
pointed out that the authorization for the rate increase had been temporary and
was subject to refund, pending the outcome of the underlying rate proceeding.
A better course, the FERC argued, was to permit it to fashion a remedy in the
context of the final orders concerning Boston Edison's rate increase application.
We agreed and, on June 6, 1986, we limited our order to remanding the case to
the FERC "to conduct further proceedings as deemed necessary and grant such
remedy as is consistent herewith." Id. at 466. Our order vacating the FERC's
acceptance of the rate filing in two stages still stood.

On June 22, 1986, the Administrative Law Judge ("ALJ") issued a decision in
the underlying rate proceeding. 34 F.E.R.C. p 63,023. According to the FERC,

the parties have appealed the ALJ's decision and it currently is in the process of
formulating an order that will resolve the issues raised in the parties' appeals
and in our remand to it. However, according to petitioners, they still are paying
the second step rate to Boston Edison.1 As a result, they filed a motion, on
August 27, 1986, requesting the FERC to take action pursuant to our order.2
They claim to have received no response to this motion. The instant petition for
writ of mandamus followed.
II. MANDAMUS
7

The All Writs Act, 28 U.S.C. Sec. 1651(a), provides, in relevant part, that "all
courts established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages
and principles of law." There is no doubt that we have inherent power to
determine whether the FERC has complied with our earlier mandate, and that
section 1651(a) is an aid to this power. Potomac Elec. Power Co. v. I.C.C., 702
F.2d 1026, 1032 (D.C.Cir.1983) (citing United States v. New York Telephone
Co., 434 U.S. 159, 172-73, 98 S.Ct. 364, 372-73, 54 L.Ed.2d 376 (1977)).
However, mandamus is a drastic remedy, suitable only in "extraordinary
situations." Kerr v. United States District Court, 426 U.S. 394, 402, 96 S.Ct.
2119, 2123, 48 L.Ed.2d 725 (1976) (citations omitted); Acton Corp. v. Borden,
Inc., 670 F.2d 377, 382 (1st Cir.1982). One of the conditions for its issuance is
that petitioners have "no other adequate means to attain the relief [they]
desire...." Kerr, supra, 426 U.S. at 403, 96 S.Ct. at 2124 (citation omitted).

Petitioners claim that they are entitled to the issuance of a writ because the
FERC has unreasonably delayed in complying with this court's mandate.
Specifically, petitioners complain that the FERC has not issued a final order in
the underlying rate proceeding and that petitioners still are paying the second
step of the wholesale rate increase.

In Telecommunications Research & Action Center v. F.C.C., 750 F.2d 70

(D.C.Cir.1984) ("T.R.A.C."), the Court of Appeals for the District of Columbia
Circuit set out guidelines which are relevant to our determination whether the
FERC's delay in issuing a final order is so "egregious" as to warrant mandamus.
In pertinent part, they provide that 1) a "rule of reason" governs the time
agencies take to make decisions; 2) delays where human health and welfare are
at stake are less tolerable than delays in the economic sphere; 3) consideration
should be given to the effect of ordering agency action on agency activities of a
competing or higher priority; 4) the court should consider the nature of the
interests prejudiced by delay; and 5) the agency need not act improperly to hold
that agency action has been unreasonably delayed. Id. at 80 (citations omitted).

10

Applying these standards to petitioners' claims of unreasonable delay, we find

that the timing of the FERC's actions in fashioning a final order is not so
"egregious" as to warrant mandamus. We issued our revised order on June 6,
1986. The ALJ, in the underlying rate proceedings, issued his decision on June
22, 1986. According to the FERC both sides to the dispute appealed the ALJ's
findings. The FERC has been in the process of devising a final order for
approximately fourteen months now.

11

Although the FERC is to give preference to rate proceedings such as the instant
one, 16 U.S.C. Sec. 824d(e), we cannot say that this is an unreasonable length
of time for consideration of the issues raised in these proceedings. What is
involved here is economic regulation, not human health and welfare. Although
petitioners claim to be prejudiced by having to pay a rate that may be higher
than the rate the FERC ultimately may order, they will be refunded any extra
payments they have made. Given the FERC's assurances that it is moving in a
diligent manner to conclude these rate proceedings, we hesitate to interfere in
ongoing agency proceedings. Cf. T.R.A.C., 750 F.2d at 80. At this time,
therefore, the FERC's delay does not render petitioners' remedy--to await a final
order--inadequate.

12

The cases in which courts have afforded relief have involved delays of years.
For example, in Potomac Elec. Power Co. v. I.C.C., supra, the rate proceedings
had been ongoing for eight years. The court there issued mandamus and
ordered the I.C.C. to reach a final decision within sixty days of its order. 702
F.2d at 1035. In T.R.A.C., delays of approximately five years and two years by
the Federal Communications Commission, while not warranting mandamus, led
the court to order the F.C.C. to inform it of the dates by which it anticipated
resolving the issues before it. 750 F.2d at 81; cf. MCI Telecommunications
Corp. v. F.C.C., 627 F.2d 322, 324-25 (D.C.Cir.1980) (four year delay
unreasonable); Nader v. F.C.C., 520 F.2d 182, 206 (D.C.Cir.1975) (delay of ten
years unreasonable).

13

Petitioners' claim, that by not rejecting the step two increase when we clarified
our remand in June, 1986 the FERC has not complied with our mandate, is
more troubling. Under the Sierra-Mobile3 doctrine, upon which we based our
prior decision, a utility cannot unilaterally change contracts to which it is a
party. As the Supreme Court has stated, a new rate schedule which purports to
change the rate set by a contract is a "nullity." United Gas Pipe Line Co. v.
Mobile Gas Serv. Corp., 350 U.S. 332, 347, 76 S.Ct. 373, 382, 100 L.Ed. 373
(1956). The only lawful rate in these circumstances is the contract rate. Id.
Thus, the FERC has no power to accept for filing rates that contravene an
existing contract. See Sam Rayburn Dam Elec. Coop. v. F.P.C., 515 F.2d 998,

1005 (D.C.Cir.1975) (court remanded with instructions to reject the rate filing),
cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976).
14

Here we found that the second step rate increase was a nullity because it
violated the 1980 settlement agreement. As a result, the FERC had no power to
accept Boston Edison's rate filing in so far as it was to become effective in two
stages. Our order vacating the FERC's authorization of this two step increase
reflects this rule. In practical terms, the effect of our decision is that the only
lawful rate petitioners can be charged is the rate which does not violate the
contract--the first step increase. However, petitioners still are paying the rate
represented by the second stage.

15

The fact that the present rate is temporary and ultimately subject to refund is
irrelevant to the question whether Boston Edison could continue to charge
petitioners the second step increase once our mandate issued. We declined to
order refunds of prior payments made under the unlawful rate because to do so
would interfere with the FERC's jurisdiction to fashion an appropriate remedy
in the context of the underlying rate proceeding. As the FERC pointed out, a
determination of the amount of refunds ultimately due petitioners depends on
the rate the FERC approves in its final order. An order directing that Boston
Edison cease charging petitioners the second step of the rate increase, however,
did not have the same potential for interference with the FERC's jurisdiction.
Such an order merely would have enforced the petitioners' rights to be charged
the contract rate.

16

Despite the foregoing, we decline to issue mandamus at this late stage in the
proceedings. Because the FERC assures us that its staff is in the process of
drafting a final order, petitioners soon will have the relief they seek. Thus, we
find that the circumstances are not so extraordinary as to warrant the drastic
remedy of mandamus. We wish to make clear, however, that the petition is
denied without prejudice. Petitioners may renew their request for relief should
the FERC not move in an expeditious manner.

According to Boston Edison, the town of Norwood ceased purchasing power

from it in October, 1985

Because petitioners did not attach a copy of their motion, we are unable to
determine precisely what action they requested the FERC take

United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 76 S.Ct.
373, 100 L.Ed. 373 (1956); F.P.C. v. Sierra Pac. Power Co., 350 U.S. 348, 76

S.Ct. 368, 100 L.Ed. 388 (1956)