Opinion
No. 07-1304.
Filed On: November 13, 2007.
BEFORE: Sentelle, Randolph, and Brown, Circuit Judges.
ORDER
Upon consideration of the motion to dismiss and suspend the requirement to file the certified index to the record, the response thereto, and the reply; and the motion to establish a 60-day briefing period for respondent, it is.
ORDERED that the motion to dismiss be granted. As the court held in ExxonMobil Oil Corporation v. FERC, No. 05-1471, et al., unpublished judgment (D.C. Cir. Feb. 27, 2007), a Commission decision not to investigate a proposed rate increase is not judicially reviewable. Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979) (involving section 15(8)(a) of the Interstate Commerce Act, a derivative of section 15(7) involved in the instant petition). As respondent notes, it considered the issues of discrimination and reasonableness only in the context of deciding whether to investigate the lawfulness of the proposed rates, based on data "not appropriate for a final determination of rate reasonableness." Reply at 3. It is.
FURTHER ORDERED that the motions to suspend the requirement to file the certified index to the record and to establish a 60-day briefing period for respondent be dismissed as moot.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc.See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.