Recently, in California Department of Water Resources v. FERC, 2004 U.S. App. LEXIS 3404 (9th Cir. February 24, 2004), the Ninth Circuit confirmed its jurisdiction to review discrete issues that have been "definitively resolved" by an agency order, even if other parts of that same order remain pending before the agency. The Federal Energy Regulatory Commission ("FERC") had challenged the Ninth Circuit’s jurisdiction to review such decisions, claiming that they were not "sufficiently final" to warrant appellate review. Id. at *1. FERC asked the Court to follow a District of Columbia Circuit case, which held that "once a party petitions [an] agency for reconsideration of an order, or any part thereof, the entire order is rendered nonfinal as to that party," and the party may therefore not seek appellate review of the order. Id. (quoting Bellsouth Corp., v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994)).
The Ninth Circuit declined to follow the D.C. Circuit, and instead reaffirmed that the Ninth Circuit’s previous ruling in Steamboaters v. FERC, 759 F.2d 1382, 1387-88 (9th Cir. 1985), allowing review of issues that have been finally resolved by an agency, regardless of whether other issues remain nonfinal, remains the law in the Ninth Circuit. Id. at *3. The Court emphasized that judicial review of final aspects of agency decisions avoids needless delay, while a party waits "indefinitely" for an agency to resolve all pending issues in one order. Id. at *4. The Court noted that the risk of delay is exacerbated by FERC’s "practice of denying motions for reconsideration and addressing previously unconsidered issues in the same order." Id. Allowing review of final issues, the Court reasoned, avoids the risk that parties would be forced to choose between "forego[ing] seeking agency reconsideration of issues or postpon[ing] judicial review" in order to get an efficient resolution of their case. Id. at *5.
This recent decision underscores that, in the Ninth Circuit at least, review of agency decisions can proceed as each issue is resolved, thus promoting efficiency and clarity for the parties involved.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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