Opinion
4:22-cv-4318
07-14-2023
TotalEnergies Gas & Power North America, Inc., et al., Plaintiffs, v. Federal Energy Regulatory Commission et al., Defendants.
ORDER
Drew B. Tipton, United States District Judge
Before the Court is Defendants' Motion for Clarification or, in the Alternative, to Lift the Stay for Limited Purpose. For good cause shown, Defendants' Motion is GRANTED to the extent and subject to the conditions specified below. The Federal Energy Regulatory Commission's Chief Administrative Law Judge may reassign proceedings in Docket No. IN12-17 to a new administrative law judge who has not previously been involved in those proceedings. This relief is granted subject to the following conditions:
1. In granting this Motion, the Court does not resolve, and should not be understood to have prejudged or addressed, the parties' disagreement about whether Defendants' actions to ratify and reassign administrative law judges are lawful or would remedy the constitutional and statutory concerns Plaintiffs have alleged with regard to the appointment of administrative law judges;
2. All of the administrative proceedings in Docket No. IN12-17 will otherwise remain stayed pursuant to this Court's order of March 10, 2023, ECF No. 52. The Court understands that the parties agree that the stay of “administrative proceedings” includes any exercise of authority to advance the proceedings in FERC Docket No. IN12-17, including but not limited to orders or other issuances. The parties also agree that stay does not, however, prevent purely ministerial acts, such as those that are clerical in nature;
3. The Court takes notice that the Commission's Order on Presiding Officer Reassignment and Providing Further Direction, 183 FERC ¶ 61,189 (2023) (“Reassignment Order”), directs “the new presiding officer, after the Southern District's stay is lifted or dissolved such that hearing procedures may resume, to offer the participants in Docket No. IN12-17-000's hearing procedures the opportunity to specify alleged defects in the hearing procedures to date, request presiding officer approval for further discovery or other relief, and seek reconsideration of past decisions made by the previous presiding officer before December 30, 2022.” Id. at ¶ 5 (emphasis added). The Court grants this Motion on the understanding that the parties agree that Plaintiffs shall have no fewer than 60 days from the date the stay of the FERC proceeding is lifted or dissolved to submit to the new administrative law judge any pleading or other submission contemplated in paragraph 5 of the Reassignment Order; and
4. The Court also takes notice that the Reassignment Order further provides that “[t]he new presiding officer shall not extend any deference to past decisions made by the previous presiding officer before December 30, 2022 and shall independently evaluate any request for reconsideration or other relief submitted by a participant.” Id. The Court grants this Motion on the understanding that the new administrative law judge would comply with this provision in considering any pleading or other submission contemplated in paragraph 5 of the Reassignment Order.
IT IS SO ORDERED.