Sacramento Municipal Utility District v. Federal Energy Regulatory Commission

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2248
SACRAMENTO MUNICIPAL UTILITY DISTRICT,
Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent.
On Motion to Transfer
DECID ED JU NE 7, 2012
EASTERBROOK, Chief Judge, in chambers. Sacramento
Municipal Utility District filed in this court a petition
for review of an order of the FERC. The Commission
then filed what it captioned an “Unopposed Motion to
Transfer” the proceeding to the District of Columbia
Circuit.
The motion conspicuously did not cite any statute, rule,
or decision authorizing a transfer. It did cite Fed. R. App.
P. 27, but that rule deals only with the procedure for

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2 No. 12-2248
making motions; it does not authorize the court to grant
any particular request.
I asked the Commission to explain what authority
supports its request. The Commission then filed a
“Renewed Unopposed Motion to Transfer.” This re-
newed motion relies on—nothing. No statute, no rule
(other than Rule 27 again), and no judicial decision that
the rendering court deems precedential.
For a long time the norm was that, if multiple parties
filed petitions in different circuits, the court in which
the first petition had been filed would resolve all chal-
lenges to the agency’s decision. That led to unseemly
races to the courthouse in an effort to secure favorable
venues. It also caused problems if the clocks in the dif-
ferent circuits were not perfectly synchronized. Some-
times petitions would be filed only seconds apart. Teams
of runners would have been positioned in clerks’ offices
poised to file as soon as the agency released its order.
See Richard J. Pierce, Jr., III Administrative Law Treatise
§18.3 (5th ed. 2010). Congress abrogated the first-to-
file approach in 1988 by amending 28 U.S.C. §2112(a). It
provides that, if multiple petitions are filed in different
circuits within ten days of an agency’s order, the Judicial
Panel on Multidistrict Litigation will choose one circuit
by lot. The selected circuit “thereafter” can transfer all
of the petitions elsewhere, if it chooses, “[f]or the con-
venience of the parties in the interest of justice”. 28 U.S.C.
§2112(a)(5).
Section 2112(a) applies, because petitions were
filed in multiple circuits within ten days of the Com-

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No. 12-2248 3
mission’s order. If Sacramento Municipal Utility
District has changed its mind and now wants to litigate
in the D.C. Circuit, it is free to dismiss its petition
and file a new one in D.C. (An aggrieved party has
60 days to petition for review, 16 U.S.C. §825l(b), and the
Commission’s order was entered on May 17, so plenty
of time remains.) As long as the Utility District’s
petition remains on file here, however, the way to deter-
mine which circuit will handle the litigation is to follow
the procedures specified by law.
The “Renewed Unopposed Motion” tells us that it will
be more convenient to transfer the Utility District’s
petition than to follow the statutory procedures. Conve-
nient for the Commission, maybe, but a court’s views of
convenience (or of wise policy more generally) are poor
grounds for disregarding a law. The Commission’s
motion rests on an unarticulated belief that, despite a
statute establishing rules of procedure, courts can
do anything they think wise. Not at all; courts lack
common-law authority to disregard legislation that sets
rules for the conduct of litigation. See, e.g., United States
v. Hasting, 461 U.S. 499, 505–07 (1983); Bank of Nova Scotia
v. United States, 487 U.S. 250, 254–57 (1988).
The motion to transfer is denied.
6-18-12

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