U.S. Supreme Court
FPC v. United Gas Pipe Line Co., 393 U.S. 71 (1968)
Federal Power Commission v. United Gas Pipe Line Co.
Decided October 21, 1968.
393 U.S. 71
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
This Court previously sustained the formula of the Federal Power Commission (FPC) for determining the tax component of respondent's cost of service, but remanded the cases (386 U.S. 237) with respect to whether it was significant in applying the formula that respondent had both jurisdictional and nonjurisdictional income. The Court of Appeals held that the issue had been sufficiently raised by respondent's petition for rehearing before the FPC, and that the formula required that consolidated tax savings be first allocated to respondent's nonjurisdictional income.
Held: Since the FPC did not disclose the basis for its order and did not "give clear indication that it has exercised the discretion with which Congress has empowered it," Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 197, the cases were not in the proper posture for judicial review, and should have been remanded to the FPC for further consideration.
Certiorari granted; 388 F.2d 385, reversed and remanded.
When these cases were here the first time, we sustained the authority of the Federal Power Commission to determine the tax component of United's cost of service in chanroblesvirtualawlibrary
accordance with the formula developed by it in Cities Service Gas Co., 30 F.P.C. 18 (1963), but remanded the cases with respect to whether, in applying the Cities Service formula, it was significant that United apparently had both jurisdictional and nonjurisdictional activities and income. FPC v. United Gas Pipe Line Co., 386 U. S. 237 (1967). Over the objections of the Commission, the Court of Appeals held that the issue had been sufficiently raised by United in its petition for rehearing before the Commission in accordance with § 19 of the Natural Gas Act, 52 Stat. 831, as amended, 15 U.S.C. § 717r, and that the Cities Service formula required that consolidated return tax savings coming to United be first allocated to United's nonjurisdictional income.
The petitions for certiorari are granted, and the judgment of the Court of Appeals is reversed. 393 U. S. 167, 371 U. S. 168 (1962). On this issue, the Commission's order was vulnerable on rehearing and in the Court of Appeals.
But it does not follow that the Court of Appeals, in the face of the Commission's insistence that its decision was wholly consistent with its Cities Service formula, should have itself determined that consolidated return savings be first allocated to nonjurisdictional income, and that
"income from the unregulated component of United is sufficiently large to absorb all such net tax losses, and no excess remains to reduce the regulated taxable income of United."
United Gas Pipe Line Co. v. FPC, 388 F.2d 385, 391-392 (C.A. 5th Cir.1968) (footnote omitted). These questions should have had adequate attention from the Commission in the first instance before being subjected to judicial review. Before the courts can properly review agency action, the agency must disclose the basis of its order and "give clear indication that it has exercised the discretion with which Congress has empowered it," Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 197 (1941); otherwise the courts are propelled "into the domain which Congress has set aside exclusively for the administrative agency." SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 196 (1947). The judgment of the Court of Appeals is reversed, and the cases are remanded with instructions to return the cases to the Commission for further proceedings.
It is so ordered.
MR. JUSTICE FORTAS and MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.
* Together with No. 248, Memphis Light, Gas & Water Division v. United Gas Pipe Line Co., also on petition for writ of certiorari to the same court.
** The motion for leave to use the record in the prior proceedings before this Court, Nos. 127 and 128, October Term, 1966, is granted.