author: WILKEY, Circuit Judge: PER CURIAM.

text:
    Joslyn N. WILLIAMS and Robert L. Bostick, Appellants, v. L. Quincy MUMFORD, Librarian of Congress, et al.
    No. 73-2120.
    United States Court of Appeals, District of Columbia Circuit.
    Argued 31 Oct. 1974.
    Decided 10 Feb. 1975.
    Rehearing En Banc Denied April 4, 1975.

      Michael D. Hausfeld, Washington, D. C., with whom Jerry S. Cohen, Washington, D. C., was on the brief for appellants.
    Michael G. Scheininger, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Derek I. Meier, Asst. U. S. Attys., were on the brief for appellees.
    Roderic Boggs, Washington, D. C., was on the brief for the Washington Lawyers Committee for Civil Rights Under Law as amicus curiae.

      Before ROBB and WILKEY, Circuit Judges, and MARKEY, Chief Judge for the United States Court of Customs and Patent Appeals.

       Sitting by designation pursuant to 28 U.S.C. § 293(a).

   WILKEY, Circuit Judge:

Williams and Bostick are black employees of the Library of Congress. Bostick claims that from the time he began his employment with the Library in 1947 he has been subject to racial discrimination as regards his job classification and promotion. On or about 19 April 1972 Bostick filed a formal complaint alleging discrimination with the Equal Employment Opportunity (EEO) Office of the Library of Congress. Four months later he amended his complaint and alleged discrimination affecting all other black employees of the Library. In November 1972 the EEO Office returned the amended complaint, stating that the office was not equipped to handle broad inquiries into the general policies and practices of the Library.

Williams had been employed as a copyright examiner with the Library since June 1967. Soon after he began his employment with the Library he was elected president of Local 1826 of the American Federation of Government Employees, a union which represents Library employees, and president of a task force named “Black Employees of the Library of Congress.” Williams alleges he was active in promoting equal employment in the Library and in aiding employees who brought discrimination actions. In June 1972 he was given notice of removal effective 21 July 1972. The removal was based on charges of material misrepresentations relating to his schooling, made on his 1967 application for the position of copyright examiner. In lieu of removal, on 21 July 1972 the Library accepted a resignation submitted by Williams to be effective on 11 August 1972. However, shortly before the effective date of his resignation, Williams requested that his resignation be withdrawn. After the Library refused to allow the withdrawal, on 11 August Williams filed his administrative complaint with the EEO Office, alleging that his resignation was coerced and that his removal was racially motivated.

Three days later Williams also filed in the District Court an action solely on his own behalf, alleging that his removal was the result of racial discrimination and that his resignation had been coerced. On 20 March 1973 Williams filed an amended complaint, adding an allegation that 180 days had passed without final administrative action on his administrative complaint. At this point Bostick’s allegations of discrimination were also added to Williams’ complaint. Finally, allegations were added alleging discrimination against all blacks currently employed by the Library, all blacks who had been employed at any time since 1960, and all blacks who had sought employment unsuccessfully since 1960, thus making the complaint on its face a class action.

On 20 August 1973, after a hearing, the District Court denied Williams’ and Bostick’s request for class certification. The denial was based on two grounds: First, that Williams’ and Bostick’s claims were not typical of the claims of the class they sought to represent as required by Rule 23(a)(3), Federal Rules of Civil Procedure. Second, given the effective administrative remedies available to federal employees apart from Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the class action was not “superior to other available methods for the fair and efficient adjudication of the controversy” as required by Rule 23(b)(3), Federal Rules of Civil Procedure.

On 25 September 1973 an appeal from the refusal to certify a class action was taken. We are presented with the question whether the refusal by a district court to certify a class action constitutes an appealable order. On the facts of this case, we decide that such an order is not appealable and therefore dismiss this appeal for lack of jurisdiction.

I. APPEALABILITY UNDER 28 U.S.C. § 1291

The principal source of our jurisdiction to hear appeals from the District Court is 28 U.S.C. § 1291 which provides: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . except where a direct review may be had in the Supreme Court.” Our task, thus, must be to determine whether the refusal to certify a class action constitutes a final decision. A final decision is not necessarily “the last order possible to be made in a case . however, to be “final” it must have the effect of resolving litigation on the merits. We have been instructed by the Supreme Court to give a flexible interpretation to “final decision” when used in the context of section 1291. As a result, the requirements of finality must be given a “practical rather than a technical construction.” “The inquiry requires some evaluation of the competing considerations underlying all questions of finality — ‘the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.’ Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 [70 S.Ct. 322, 324, 94 L.Ed. 299] (1950) (footnote omitted).”

Applying this analysis, it becomes apparent that an order refusing to certify a class action is generally not a final decision within the meaning of section 1291. It does not dispose of litigation. It is purely procedural in nature, in that it determines merely the parties to the action without expressing any judgment as to the merits of the case. Moreover,, the correctness of the District Court’s determination does not evade review since it, along with other procedural decisions, is brought up on appeal after final disposition on the merits.

Having stated the general rule two qualifications must be made and their relevance considered. First, it must be recognized that in some types of cases the refusal to certify a classification, as a practical matter, does dispose of the action. This is because the plaintiff has such a small monetary or other interest to be vindicated in the action that it would not be worth the plaintiff’s time to continue the action. In a series of recent cases, the Second Circuit has developed a body of law relating to this type of case, commonly referred to as the “Death Knell” doctrine. Secondly, in some cases a subsidiary controversy develops as an offshoot of the main litigation. A decision disposing of such an offshoot may be held to be a final decision, even if the decision is procedural in nature, if it appears likely that the matter would evade review if taken on appeal after a final disposition of the entire litigation. This has been called the Collateral Order doctrine. We turn now to examine both doctrines in more detail.

A. The Applicability of the “Death Knell” Doctrine

The “Death Knell” doctrine was developed in the Second Circuit in the crucible of Eisen v. Carlisle & Jacquelin. In Eisen I the Second Circuit denied a motion to dismiss an appeal from a District Court order refusing to certify a class action. In that case, Eisen sued on behalf of himself and all odd-lot purchasers and sellers on the New York Stock Exchange alleging antitrust and Securities Act violations. Eisen’s claim for damages was only for $70.00. Appropriately enough, the court noted:

We can safely assume that no lawyer of competence is going to undertake this complex and costly case to recover $70 for Mr. Eisen. ... If the appeal is dismissed, not only will Eisen’s claim never be adjudicated, but no appellate court will be given the chance to decide if this class action was proper under the newly amended Rule 23 [Federal Rules of Civil Procedure].

The Second Circuit faced the same issue soon thereafter in Green v. Wolf Corp. Plaintiff Green and the members of the class alleged that they had been required to pay an excessive price for certain publicly held securities. As the court noted, “Green obviously does not intend to press what will probably be an enormously complex and expensive action to recover less than $1,000.” In two cases consolidated under the title Korn v.. Franchard Corp., the court decided that Mrs. Korn’s suit for violations of the federal securities laws and for violations of New York law “will go no further without class suit designation.” Because Mrs. Korn’s losses amounted to $386, the Second Circuit denied a motion to dismiss an appeal denying class action certification. However, in the companion case the actual claims of the representative plaintiffs were for about $8,500. The court concluded, “[t]hat figure is close enough to the federal jurisdictional minimum for certain types of cases to suggest it is sufficient incentive to keep the case alive.” Accordingly, the “Death Knell” doctrine was inappropriate in that case and the appeal was dismissed.

In this case, it is clear that both Bostick and Williams have a sufficient incentive to continue this suit. Williams in his original complaint requested reinstatement in his former position. Today Williams in addition would be entitled to approximately two and a half years’ back pay should he prevail, an amount which we can safely assume is greatly in excess of $10,000.00. As to Bostick, the request is for a higher GS rating, which he alleges was improperly denied him. In addition, it should be noted that the Equal Employment Opportunity Act amendments specifically provide for a reasonable attorney’s fee for the prevailing party at the discretion of the court in just this type of case. It certainly may be questioned whether the “Death Knell” doctrine can ever be applied to a case where attorney’s fees are available to the prevailing party.

B. The Applicability of the Collateral Order Doctrine

The Collateral Order doctrine had its origins in the Supreme Court case of Cohen v. Beneficial Industrial Loan Corp., in which the Court considered the constitutionality of requiring a plaintiff in a New Jersey federal court to post bond to insure payment of defendant’s attorney’s fees as required by New Jersey statute. The case was “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” In Cohen the interlocutory order being appealed was effectively immune from review after judgment. If the District Court’s decision not to apply the New Jersey statute were not reviewable at that point, the defendant would, as a practical matter, be denied any protection under the statute. Eisen III is a more recent application of the same doctrine. The District Court decided that the defendants would be required to bear 90% of the cost of notice to the plaintiff class of odd-lot buyers and sellers. Obviously, even if the defendants could have theoretically sought to collect their outlay had they prevailed, there would be little practical possibility of collecting over $20,000 from the over two million members of the class. As the Supreme Court noted on appeal from Eisen III:

Analysis of the instant case reveals that the District Court’s order imposing 90% of the notice cost on respondents likewise falls within “that small class [of decisions which finally determine claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated].” It conclusively rejected respondents’ contention that they could not lawfully be required to bear the expense of notice to the members of the petitioner’s proposed class. Moreover, it involved a collateral claim unrelated to the merits of the petitioner’s claims. Like the order in Cohen, the District Court’s judgment on the allocation of notice cost was “a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it” . . . -

In this case, the refusal to certify a class action did not determine collateral claims completely independent of the merits of the case. The order is indistinguishable from other procedural determinations made in the course of discovery and trial. No funds were required to be expended as in Eisen, nor rights granted under independent statutes to be dispensed with as in Cohen. Above all, the correctness of the District Court’s decision is subject to effective review on appeal from final judgment. We hold, in conclusion, that the District Court’s refusal to certify a class action in this case did not constitute the “Death Knell” of the action nor was it a collateral and independent determination. Therefore, the decision was not a “final” one within the meaning of section 1291.

II. APPEALABILITY UNDER 28 U.S.C. § 1292(a)(1)

In the alternative, appellants contend that this court has jurisdiction over this appeal under 28 U.S.C. § 1292(a)(1) which provides:

The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court

It is argued that the net effect of the refusal to certify a class action is considerably to narrow the scope of any possible injunctive relief in the event plaintiffs ultimately prevail on the merits. Appellants cite in support of their position two cases from other Circuits: Brunson v. Board of Trustees and Yaffee v. Powers. Both cases are premised on the assumption that the refusal to certify a class action, since it would eventually affect the scope of equitable relief, itself constituted a modification of or a refusal to issue an injunction. We view this as an unwarranted expansion of the statutory language. By analogy to the reasoning of these courts, most procedural motions in an action requesting equitable relief would be appealable by either party. In this view we are supported by the Second Circuit. In its opinion in City of New York v. International Pipe and Ceramics Corp. it rejected the argument that a refusal to certify a class action is appealable under section 1292(a)(1). The court noted, as do we, that the denial of class action treatment constitutes neither issuance nor denial of an injunction.

Although this precise question has never been presented to the Supreme Court, the Court has had to consider the scope of the injunction exception to the final judgment rule. In Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., the Court held that the denial of a plaintiff’s motion for summary judgment seeking injunctive relief was not a denial or refusal of an injunction within the meaning of section 1292(a)(1). This was because

. the denial of a motion, for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial. Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view “interlocutory” within the meaning of § 1292(a)(1).

Although it is difficult to reconcile all of the case law interpreting section 1292(a)(1), it would appear that the Supreme Court in Switzerland Cheese has opted for a narrow construction of the statutory language. Although an order denying class action certification might at some later stage have an effect on the scope of equitable relief, such orders “in no way touch on the merits of the claim” and thus fall outside of the scope of the section.

Conscious as we are of our responsibility to maintain the jurisdictional balance drawn by the Congress under sections 1291 and 1292, we are particularly reticent to expand upon statutory language which was intended as a limited exception to the final judgment rule. We emphasize that the District Court did not state that the claim for an injunction had no merit, nor that it lacked jurisdiction to grant an injunction, nor even did it express any opinion as to whether injunctive relief was warranted at any particular point in the proceedings. The District Court denied certification of a class action under Rule 23, Federal Rules of Civil Procedure, a quite distinguishable action. As a result, appellants have failed to bring the order within the only arguably relevant exception to the final judgment rule, 28 U.S.C. § 1292(a)(1).

The appeal must therefore be dismissed.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

PER CURIAM.

It appearing that appellants’ suggestion for rehearing en banc and amicus curiae’s suggestion for rehearing en banc having been transmitted to the full Court and there not being a majority of the Judges in regular active service in favor of having this case reheard en banc, it is

Ordered by the Court en banc that the aforesaid suggestions for rehearing en banc are denied.

Statement of Circuit Judge SPOTTSWOOD W. ROBINSON, III, with whom Chief Judge BAZELON and Circuit Judges J. SKELLY WRIGHT and LEVENTHAL join, as to why they would grant rehearing en banc.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

It is hardly necessary in this age to argue the worth of the class action in our ever-expanding system or jurisprudence. Over the years it has promoted the convenience of courts and parties infinitely, reduced the expense of lawsuits incalculably, and the contributed immeasurably to efficient judicial administration. It has, too, made its mark on the development of the law. The reports are dotted with landmark cases which without benefit of representative litigation would never have seen the light of day.

Even more profoundly, the class action has provided access to the judicial process for those who need it most. It has been the refuge of the poor, the hope of the downtrodden, and the salvation of the many whom our social institutions all too frequently victimize, unwittingly or otherwise. Truly it is said that “[t]he class action is one of the few legal remedies the small claimant has against those who command the status quo.”

In sum, as two leading authorities have aptly observed, “[i]t now is apparent that the increasing complexity and urbanization of modern American society has tremendously magnified the importance of the class action as a procedural device for resolving disputes affecting numerous people.” And since class-action litigation could be chilled by nonappealability of denials of certifications save in narrowly limited circumstances, it is highly important to ascertain whether the panel’s decision to that effect is correct. The importance of the question is underscored by the number of decisions it has generated in other circuits, and the difficulty of the problems by the conflict of opinion which plagues them.

I would, accordingly, grant rehearing of this case en banc. That is not necessarily to say that the panel reached the wrong result. It is to say, however, that in my view the matter calls for consideration and decision by the full court.

      . Williams also contends he was given the notice of removal just one week before he was to address the American Library Association’s convention about the racial employment policies and practices of the Library.

      . 42 U.S.C. § 2000e-16.

      . The District Court refused a request to certify the question for appeal under 28 U.S.C. § 1292(b) on 10 October 1973.

      . Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

      . Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

      . Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974).

      . Caceres v. International Air Transport Assoc., 422 F.2d 141 (2nd Cir. 1970); City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2nd Cir. 1969); Hackett v. General Host Corp., 455 F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972); Lamarche v. Sunbeam Television Corp., 446 F.2d 880 (5th Cir. 1971); Siebert v. Great Northern Dev. Co., 494 F.2d 510 (5th Cir. 1974); Walsh v. City of Detroit, 412 F.2d 226 (6th Cir. 1969) (order permitting class action); King v. Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973); Thill Securities Corp. v. New York Stock Exchange, 469 F.2d 14, 17 (7th Cir. 1972) (denial of a motion to strike class action allegations); Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir. 1972).

      . 370 F.2d 119 (1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967).

      . 370 F.2d at 120.

      . 406 F.2d 291, 295 n. 6 (1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969).

      . 443 F.2d 1301 (2nd Cir. 1971).

      . 443 F.2d at 1306-07. More recently, the “Death Knell” doctrine has been specifically rejected by the Seventh Circuit, King v. Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973), and criticized by the Third Circuit, Hackett v. General Host Corp., 455 F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). However, the vitality of the doctrine has been reasserted by the Second Circuit. General Motors Corp. v. City of New York, 501 F.2d 639 (1974); Kohn v. Royall, Koegel & Wells, 496 F.2d 1094 (1974); Herbst v. International Tel. & Tel. Corp., 495 F.2d 1308 (1974); Shayne v. Madison Square Garden Corp., 491 F.2d 397 (1974).

      . 42 U.S.C. § 2000e-5(g), made applicable to the Federal Government by 42 U.S.C § 2000e-16(d).

      . 42 U.S.C. § 2000e-5(k), made applicable to the Federal Government by 42 U.S.C. § 2000e-16(d).

      . Hackett v. General Host Corp., 455 F.2d at 622-23:
      Thus the “death knell” rule would operate only in that narrow category of cases where the object of the suit is the recovery of money damages, and where a statute affords federal jurisdiction regardless of amount. This narrow category is, however, significant for consumer advocates. But even in this field, the “death knell” rationale, based upon the assumption that no competent lawyer would undertake a complicated case to recover a small amount of money, must be qualified by several considerations. A number of federal statutes provide for the award of counsel fees and costs. Indeed the statute under which 3. E.g. statutes providing for damages arising from the following improper actions, a single instance of which may harm individual members of large classes, additionally provide that successful plaintiffs’ attorneys shall be awarded reasonable attorneys’ fees and costs: Failure to disclose under the Truth in Lending Act 15 U.S.C. § 1640 (1971); Unlawful wiretapping, 18 U.S.C. § 2520 (1971). Other statutes place the decision of whether to allow reasonable attorneys’ fees and costs within the discretion of the district court: Securities Acts Violations; 15 U.S.C. §§ 77k, 77www; 78i (1971). See also 28 U.S.C. § 2678 (1971) providing for reasonable attorneys’ fees in suits involving torts committed by the Federal Government where its immunity has been waived.
      Mrs. Hackett sues contains such a provision. 15 U.S.C. § 15 (1971). If the “death knell” is to ring for her case the rope is in her attorney’s hand. There is no certain basis for the assumption that an interested holder of a small claim will be unable to prevail upon a private attorney to pursue that claim in the hope of being compensated by the award of “reasonable counsel fees” against a wrongdoer. Moreover the burgeoning in recent years of interest in publicly supported legal service organizations and of private support for legal aid and public interest law firms cannot be disregarded. Many small but important 4. See Note, The New Public Interest Lawyers, 79 Yale L.J. 1068 (1970). claims heretofore, for purposes of litigation, beyond the pale of financial practicability, have been successfully litigated by such organizations in recent years. Thus an adverse class action decision may ring out as a death knell on far fewer occasions than superficial analysis would suggest.

      . 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

      . 337 U.S. at 546, 69 S.Ct. at 1226.

      . Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973), affirmed on this issue, 417 U.S. 156, 94 S.Ct. 2140, 2150, 40 L.Ed.2d 732 (1974).

      . 417 U.S. at 172, 94 S.Ct. at 1250.

      . 311 F.2d 107 (4th Cir. 1962) (per curiam), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963).

      . 454 F.2d 1362 (1st Cir. 1972). Since briefs were filed in this case, the Ninth Circuit has decided that the dismissal of a class action with leave to amend without class action allegations was appealable under section 1292(a)(1), Price v. Lucky Stores, Inc., 501 F.2d 1177 (1974).

      . 410 F.2d 295 (2nd Cir. 1969).

      . The Court also stated that “[t]he cases cited by the City dealing with injunctive relief sought by school children to prevent discrimination on the ground of race have no application here.” 410 F.2d at 299. The opinion offers us no further elaboration.

      . 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966).

      . 385 U.S. at 25, 87 S.Ct. at 195.

      . See, e. g., Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935); Ettleson v. Metropolitan Life Insurance. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); City of Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347 (1949); Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176 (1955). In Enelow and Ettleson it was held that where the plaintiffs action was one originally cognizable in law, a procedural motion deciding that defendant’s equitable defenses should be tried first was held to be an appealable order under section 1292(a)(l)’s predecessor. On the other hand, in City of Morgantown and Baltimore Contractors it was held that when the plaintiff’s action was one cognizable in equity and the defendant’s counterclaim was either one in law (City of Morgantown ) or one in equity (Baltimore Contractors), the trial court’s decision as to the order of the proceedings was interlocutory in form and substance and was not appealable under section 1292(a)(1). Of course, the importance of these decisions, as a practical matter, has been undercut by Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and its progeny. However, these cases do give some indication of the meaningless distinctions which continue to be given some currency in this area of the law.

      . In Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955), the Supreme Court discussed in some detail the legislative history of section 1292. Specifically, the Court discussed the fundamental policy determinations underlying the statute:
      The Congress is in a position to weigh the competing interests of the dockets of the trial and appellate courts, to consider the practicability of savings in time and expense, and to give proper weight to the effect on litigants. When countervailing considerations arise, interested parties and organizations become active in efforts to modify the appellate jurisdiction. This Court, however, is not authorized to approve or declare judicial modification. It is the responsibility of all courts to see that no unauthorized extension or reduction of jurisdiction, direct or indirect, occurs in the federal systems. . . . Any such ad hoc decisions disorganize practice by encouraging attempts to secure or oppose appeals with the consequent waste of time and money. The choices fall in the legislative domain. They are enlargement of the allowable list of appealable interlocutory orders; abandonment of fragmentary appeals; or general allowance of such appeals in the discretion of the trial judge upon findings of need, with or without the consent or approval of the appellate court.
      348 U.S. at 181-82, 75 S.Ct. at 252 (footnote omitted).

      . Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S.Ct. 2140, 2156, 40 L.Ed.2d 732, 748 (1974) (Douglas, J. dissenting).

      . 7 C. Wright & A. Miller, Federal Practice § 1751, at 510 (1972).

      . Rehearing en banc is warranted “when the proceeding involves a question of exceptional importance.” Fed.R.App.P. 35(a)(2).

      . See Yaffee v. Powers, 454 F.2d 1362, 1364-1365 (1st Cir. 1972); Caceres v. International Air Transport Ass’n, 422 F.2d 141, 142-144 (2d Cir. 1970); City of New York v. International Pipe and Ceramics Corp., 410 F.2d 295, 298-299 (2d Cir. 1969); Rodgers v. United States Steel Corp., 508 F.2d 152, 159-161 (3d Cir. 1975); Hackett v. General Host Corp., 455 F.2d 618, 621-626 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972); Brunson v. Board of Trustees, 311 F.2d 107, 108-109 (4th Cir. 1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963); Lamarche v. Sunbeam Television Corp., 446 F.2d 880 (5th Cir. 1971); Siebert v. Great Northern Dev. Co., 494 F.2d 510, 511 (5th Cir. 1974); Walsh v. City of Detroit, 412 F.2d 226, 227 (6th Cir. 1969); King v. Kansas City Southern Indus., 479 F.2d 1259, 1260 (7th Cir. 1973); Thill Sec. Corp. v. New York Stock Exchange, 469 F.2d 14, 15-17 (7th Cir. 1972); Price v. Lucky Stores, 501 F.2d 1177, 1179 (9th Cir. 1974); Gerstle v. Continental Airlines, 466 F.2d 1374, 1377 (10th Cir. 1972).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Brick Institute of America, Intervenors. STATE OF NORTH CAROLINA and North Carolina Utilities Commission, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Piedmont Natural Gas Co., Inc., et al., Intervenors. ALABAMA GAS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Southeast Alabama Gas District et al., Intervenors. ATLANTA GAS LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, South Carolina Electric & Gas Company et al., Intervenors. BATTLE CREEK GAS COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent, National Distillers and Chemical Corp. et al., Intervenors. MICHIGAN CONSOLIDATED GAS COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Michigan Gas Storage Company et al., Intervenors.
    Nos. 73-1999, 73-2017, 74-1150, 74-1200, 74-1184 and 74-1231.
    United States Court of Appeals, District of Columbia Circuit.
    Nov. 26, 1974.

      William I. Harkaway, Washington, D. C., with whom Charles J. McCarthy, Washington, D. C., and Robert A. Froehlich, New York City, were on the brief for petitioner in No. 73-1999.
    Morton L. Simons, Washington, D. C., for petitioners in No. 73-2017.
    Harold L. Talisman, Washington, D. C. , with whom Melvin Richter, Washington, D. C., and A. S. Lacy, Birmingham, Ala., were on the brief for petitioner in No. 74-1150.
    John E. Holtzinger, Jr., Washington, D. C., with whom Paul H. Keck, Washington, D. C., was on the brief for petitioner in No. 74-1150.
    J. Richard Tiano, Washington, D. C., with whom Richard M. Merriman, and Richard T. Witt, Washington, D. C., and Raymond P. Buschmann, Chicago, 111., were on the brief for petitioners in No. 74-1184.
    John E. Haley, Washington, D. C., with whom Richard J. Flynn, Washington, D. C., Frederick G. Berner, Jr., and Gary L. Cowan, Washington, D. C., were on the brief for petitioners in No. 74-1231.
    George W. McHenry, Jr., Sol., Federal Power Commission, with whom Leo E. Forquer, Gen. Counsel, William J. Grealis, Thomas M. Walsh and John R. Staffier, Attorneys, F. P. C., Washington, D. C., were on the brief for respondent.
    Richard A. Solomon, Washington, D. C., for intervenor National Distillers and Chemical Corp.
    Raymond N. Shibley, Washington, D. C., with whom James J. Flood, Jr., Washington, D. C., was on the brief for intervenor Panhandle Eastern Pipe Line Co.
    James J. Flood, Jr., Washington, D. C., with whom William A. Major, Jr., Birmingham, Ala., was on the brief for intervenor Southern Natural Gas Co.
    Joseph T. Stevens, for intervenor Brooklyn Union Gas Co. No brief was filed by intervenor Brooklyn Union Gas Co. Barbara M. Gunther, Brooklyn, N. Y., entered an appearance for intervenor Brooklyn Union Gas Co.
    John T. Ketcham, and Robert J. Haggerty, Washington, D. C., were on the brief for petitioner Anchor Hocking Corp. in No. 74-1184.
    Edward J. Grenier, Jr., Richard P. No-land, Richard J. Pierce, Jr., and David C. Evans, Washington, D. C., were on the brief for intervenors Brick Institute of America and Brick Ass’n of North Carolina.
    Dale A. Wright and Melvin Richter, Washington, D. C., were on the brief for intervenor Piedmont Natural Gas Co., Inc.
    John T. Miller, Jr., Washington, D. C., was on the brief for intervenor Elizabethtown Gas Co. and for intervenors A. P. Green Refractories, Co., and others.
    Frederick Moring, Washington, D. C., was on the brief for intervenor South Jersey Gas Co. Paul H. Keck, Washington, D. C., entered an appearance for intervenor South Jersey Gas Co.
    Peter H. Schiff, Albany, N. Y., and Richard A. Solomon, Washington, D. C., were on the brief for intervenor Public Service Commission of the State of New York.
    Daniel L. Bell, Jr., and Giles H. Snyder, Charleston, W. Va., were on the brief for intervenor Columbia Gas Transmission Corp.
    George A. Avery, Toni K. Golden and James K. White, Washington, D. C., were on the brief for intervenor Michigan Gas Storage Co.

      Henry F. Krautwurst, Monte R. Richards and Susan A. Low, Washington, D. C., were on the brief for intervenor Washington Gas Light Co.
    Edward S. Kirby, Newark, N. J., was on the brief for intervenor Public Service Electric and Gas Co. in support of petitioners’ motion for stay to maintain the status quo etc. James R. Lacey, Newark, N. J., entered an appearance for intervenor Public Service Electric and Gas Co.
    Thomas F. Ryan, Jr., Washington, D. C., entered an appearance for intervenor Transcontinental Gas Pipe Line Corp.
    Donald W. McCoy and Alfred E. Cleveland, Fayetteville, N. C., entered appearances for intervenor North Carolina Natural Gas Co.
    Jack M. Irion, Shelbyville, Tenn., entered an appearance for intervenor Union Cities Gas Co.
    Joseph W. Ferraro, Jr., Newark, N. J., entered an appearance for intervenor The New Jersey Board of Public Utility Commission.
    F. Kent Burns, Raleigh, N. C., entered an appearance for intervenor Public Service Co. of North Carolina, Inc.
    William W. Ross, Washington, D. C., entered an appearance for intervenors Pomona Corp.
    Edward J. Grenier, Jr., Richard P. No-land and Richard J. Pierce, Jr., Washington, D. C., entered appearances for intervenors General Motors Corp. and Georgia Industrial Group.
    David C. Murchison and Richard S. Harrell, Washington, D. C., entered appearances for intervenor Caterpillar Tractor Co.
    John W. Glendening Jr., and John S. Schmid, Washington, D. C., entered appearances for intervenor Mueller Brass Co.
    Harold L. Talisman, Washington, D. C., entered an appearance for intervenor Corning Glass Works.
    Michael J. Manning, Washington, D. C., entered an appearance for intervenor Anderson Clayton Foods.
    Raymond D. Hurley, Washington, D. C., entered an appearance for intervenor Owens-Corning Fiberglas Corp.
    James R. McClarnon, Indianapolis, Ind., entered an appearance for intervenor City of Indianapolis, etc.
    George Mabry entered an appearance for intervenor Johns-Manville Fiber Glass, Inc.
    Ronald D. Eastman, Washington, D. C. , entered an appearance for intervenor The American Textile Manufacturers Institute, Inc.
    Ronald L. Winkler, Washington, D. C., entered an appearance for North Carolina Congressional Delegation to the Congress of the United States as amicus curiae and also for intervenor Brick Institute of America.
    Peyton G. Bowman, III, Washington, D. C., entered an appearance for intervenor South Carolina Electric and Gas Co.
    Carl L. Evans, Montgomery, Ala., entered an appearance for intervenor Alabama Public Service Commission.
    William T. Miller, Washington, D. C., entered an appearance for intervenor Southeast Alabama Gas District.
    M. John Bowen, Jr., Columbia, S. C., entered appearances for intervenors South Carolina Public Service Commission and South Carolina Energy Management Office.
    Jerome Ackerman, Washington, D. C., entered an appearance for intervenor Staffer Chemical Co.
    Edward W. Stern, Philadelphia, Pa., entered an appearance for intervenor Philadelphia Gas Works.
    Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and AUBREY E. ROBINSON, Jr., United States District Judge for the District Court of the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   PER CURIAM:

Oral argument in these three groups of consolidated appeals was heard on November 21, 1974. In addition to the issues presented on the merits of petitioners’ claims, we asked counsel in Consolidated Edison v. FPC to address themselves to a number of motions recently filed by petitioners, intervenors and the FPC, as respondent, in that case. We deal presently only with the problems raised in these motions, to which a speedy response is sought by all parties and required by the onslaught of winter and a deepening shortage of natural gas. A full understanding of our response requires a brief review of the background litigation.

Petitioners in all three eases are customers of natural gas pipeline companies — Transcontinental Gas Pipe Line Corporation (Transco); Southern Natural Gas Company (Southern); Panhandle Eastern Pipe Line Company (Panhandle). They contest the legality of service curtailment plants filed by the pipelines reflecting the priorities outlined in FPC Order No. 467, as modified by Order No. 467-B. In each case, prior to the issuance of Order No. 467 on January 8, 1973, the pipeline had filed an interim curtailment plan negotiated among its own customers under FPC Order No 431. And in each case, after attempts to extend the interim plan, or to file revised plans not in accord with Order No. 467, the pipeline submitted a plan more or less consistent with the requirements of the order.

Appeals were filed from FPC orders effectuating the 467-type plans, and petitioners in each case moved for a stay pendente lite. In two cases, those involving Transco and Southern, the stays were granted. In terms of the need for any immediate order of the court, it was accepted by Commission counsel, and was the prevailing consensus at oral argument, that the present situation — with a stay in effect in the Southern case, and the stay denied in Panhandle — was likely to be as protective of customers during the coming winter as any alternative. The current controversy centers on whether the stay in the Transco case should continue in effect, and if so, how it should be shaped to give protection against irreparable harm.

Our initial order in the Transco case was issued November 9, 1973. It was clarified on December 14, 1973, to make explicit our intent that the existing interim plan, which would have been replaced by the 467-type plan under the administrative orders in dispute, remain in effect “until further order of this court.” In the fall of 1974 the Commission requested a further clarification of our stay, in light of ongoing negotiations between the pipeline and its customers to reach a new interim settlement plan. On October 4, 1974, we gave this explanation:

Our orders of November 9, 1973 and December 14, 1973 do not permit the Federal Power Commission to impose a new interim plan on the Transcontinental Pipeline Corporation (Transco) for the year November 16, 1974 through November 15, 1975. . Our orders of November 9 and December 14 do not, however, prevent Trans-co from submitting a new interim plan to the Commission under section 4 of the Natural Gas Act, nor do they affect the Commission’s power to implement such a plan or to suspend it pending hearings.

Meanwhile, on September 30, 1974, Transco had filed an interim settlement plan to supercede the one in effect. The Commission rejected the settlement on November 12, 1974. Transco filed a 467-type interim plan the following day, stating that “the Commission having rejected the proposed interim settlement, Transco has no choice other than to make this filing. . . . ” The Commission’s action of November 12, and the prospect that a 467 interim plan would be submitted and approved as a result, triggered a number of filings in this court. Petitioners and intervenors in the case moved to continue the status quo, asking in effect that Transco and the Commission be required to retain the existing interim plan. We responded provisionally in our order of November 15, 1974, in which we directed the parties to take no steps affecting the status quo pending further order of the court. The Commission has since moved for the immediate dissolution of all of our stay orders. And to complicate matters even further, Transco has filed an appeal from the Commission’s order of November 12 and has also moved that we order the Commission to permit the pipeline to place the interim settlement into effect pending our adjudication on the merits.

Our consideration of the present motions takes place against the background of substantial claims raised by petitioners on the merits in these cases. Petitioners’ chief claim is that the 467-type plans were not filed voluntarily by the pipelines but were the result of coercion by the FPC. See Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891 (1970). If this is correct, of course, the plans are invalid, as the Commission cannot impose a change in an existing tariff without compliance with the requirements of section 5 of the Natural Gas Act, which the Commission admits were not met here. Petitioners point to evidence of arm-twisting, both in the language of Order No. 467-B itself and in the circum-. stances under which the pipelines relented to the Commission’s desires. Trans-co’s appeal from the November 12th order also presents a substantial question under Michigan Consolidated Gas Co. v. FPC, which required that the Commis sion give reasoned consideration to settlement proposals offered by parties in proceedings before it. Although the Commission did “consider” the interim settlement agreement, its stated reasons for rejecting the plan may be inconsistent with prior FPC decisions and do not include allocational considerations at all. Resolution of these substantial questions will require careful scrutiny of the case law and the complex factual situations presented by each case.

The power of this court to grant injunctive relief pendente lite in cases seeking review of FPC orders was established in Virginia Petroleum Jobbers Ass’n v. FPC. In ruling on the present motions involving our prior stay orders, we recognize that “it is principally the protection of the public interest with which we are here concerned [and] no artificial restrictions of the court’s power to grant equitable relief in the furtherance of that interest can be acknowledged. * * * We must determine how. the court’s action serves the public best.”

A court not only has the authority to shape the contours and limit the duration of the relief granted by its order, but may “revoke or modify its mandate, if satisfied that what it has been doing has been turned through changing circumstances into an instrument of wrong.” As Justice Cardozo has observed, “[a] continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.” We believe that this court not only has equitable discretion to respond to changing circumstances but has a responsibility to take corrective action when its prior orders threaten to foster rather than forestall irreparable harm.

The marked deterioration in Transco’s supply position during the year since our stay issued has altered circumstances dramatically. Although the present interim plan performed adequately last winter, as evidenced by the absence of applications for extraordinary relief, submissions made in support of the Transco and FPC motions and in opposition to the North Carolina motion contain strong indications that continuation of the interim plan poses a substantial risk to high priority users. First, Transco has determined that the existing plan will not perform satisfactorily under present conditions. In testimony before the FPC, Mr. C. H. Mullendore, Jr., Vice President of Marketing for Transco, stated:

* * * I am not able to give assurance that, at the projected deeper levels of curtailment on Transco’s system, the present interim plan would operate beyond November 15, 1974 in a manner to accomplish its basic objective of protecting all firm loads. This is so because the plan depends upon actual market conditions and there is no built-in mechanism for guaranteeing that all interruptible loads will be in fact curtailed to protect the firm loads of the rest of the system.

Transco’s conclusions, of course, reflect a pipeline’s “unique knowledge of its customers’ needs, ability to substitute other fuel sources, and other relevant considerations.”

Second, the FPC found in its November 12, 1974, order that “the currently effective interim plan will place firm service, including service to high priority customers, in jeopardy.” The Commission’s determination, although based on an abbreviated record, was bolstered by data on the depth of the expected shortfall, motions opposing the existing plan filed by two of Transco’s customers, numerous petitions for extraordinary relief from the interim plan, and the testimony of Transco’s officer.

Third, extensive affidavits appended to Brooklyn Gas Company’s opposition to North Carolina’s motion illustrate the threat to human needs users posed by a continuation of the present pro rata plan. For example, Elwin S. Larson, Senior Vice President of Brooklyn Union Gas Company, indicated that the curtailment required by the existing plan would “require physical termination of service to more than 11,000 small firm commercial and industrial customers, including essential government installations, schools, hospitals, apartment buildings, nursing homes, and the like.”

Fourth, it is significant that the parties supporting the present allocation scheme make no attempt to demonstrate the plan’s ability to operate successfully during the upcoming winter. Instead, the submissions of North Carolina, South Jersey Gas Company, Piedmont Natural Gas Company, and South Carolina Public Service Commission focus on the irreparable harm threatened by implementation of a 467 plan.

After careful evaluation of the material made available for our consideration, we have concluded that the present stay cannot be continued and consequently reject North Carolina’s motion. Were we simply to grant the FPC’s request to dissolve the present stay, the Commission’s May 23, 1973, and July 30, 1973, orders would serve, upon Transco’s motion to effectuate its filing, to place in operation the 467 plan submitted on June 29, 1973. We decline to pursue that course because of substantial indications that the 467 plan would also result in irreparable injury to Transco customers.

The 467 plan would appear to have an extremely harsh impact on North Carolina and South Carolina customers for two reasons. It is claimed that the 467 requirement that virtually all interruptible service be completely curtailed before cutbacks are made in firm service would have a drastic impact on many of the region’s human needs users. The 467 treatment of interruptible customers is based on the Commission’s findings in its Arkansas-Louisiana Gas Company decision that those customers “who require gas for human needs service or nonsubstitutable industrial service do not contract on an interruptible basis.” Piedmont contends, however, that many human needs users in North Carolina have chosen the lower interruptible rates in reliance on the historical availability of sufficient gas purchased on that basis. The affidavit of Earl C. Chambers, Piedmont’s Senior Vice President for Supply and Technology, details the impact of a 467-B plan on Piedmont’s “interruptible” customers.

During the 1974-75 winter, Piedmont will lose 37.81% of gas currently being sold to customers in Order No. 467-B’s category 2. As a result, Piedmont will be forced to completely curtail services to 31 hospitals, three water pumping plants serving the entire city of Greensboro, North Carolina, a city with a population of approximately 180,000, four sewage treatment facilities, three nursing homes, two state boarding schools for the physically handicapped, and one state prison. Although these customers have historically purchased gas under “interruptible” rate schedules, the majority of these customers have historically been curtailed only a few days each year. As a result, most of these essential public service institutions do not have, nor can they readily obtain, sufficient alternate fuel capabilities to permit them to offer uninterrupted service if they are completely curtailed by Piedmont. * * *
Under the proposed Order No. 467-B plan, Piedmont will be forced to curtail approximately 425 “interruptible” customers in Order No. 467-B categories 3-9 365 days a year. This loss of gas by these customers would severely limit their ability to continue operations. Although these customers are classified as “interruptible”, this description is valid only in the very limited sense that they do not expect to receive natural gas from Piedmont 100% of the time. In recent years these customers have purchased natural gas supplied by Piedmont to supply from 60% to over 90% of their energy requirements.

In addition, the 467 plan does not take into account the fact that some customers are "totally dependent on Transco .while others purchase substantial quantities from pipelines supplying a much higher percentage of contract demand. The Piedmont brief illustrates the disparity resulting from the failure of the 467 plan to take account of other suppliers.

[Sjince the projected curtailment on the Transco system is one of the deepest, if not the deepest, of all pipeline curtailment, the fact that North Carolina Intervenors are dependent entirely upon Transco for their gas operation [sic] to accentuate the disparity of the impact upon them. For example, in contrast to the North Carolina Intervenors, Washington Gas Light Company receives only 17% of its gas from Transco and the remaining 83% of its gas from Columbia which curtailed its customers only 2% last winter and is projecting curtailment of only 14% for the coming winter. Consequently, even if Washington Gas Light was to be curtailed by Transco by the same percentage as Piedmont [44.67%], it would nevertheless still receive 81% of its gas requirements. The fact is that under Transco’s 467 — B plan Washington Gas Light’s curtailment by Transco will only be 16.9% so that it will in fact receive 85.76% of its gas requirements.

Similar allegations of irreparable injury are made by customers in other areas.

The inadequacy of the 467 plan is also suggested by the two primary factors relied upon by the FPC to condemn the present interim plan — the testimony of Transco’s officer and the petitions for extraordinary relief. Mr. Mullendore, the Transco executive, commented on the 467 plan as follows:

The record shows that strict adherence to an Order No. 467 plan at the levels of Transco’s curtailment would mean that customers wholly dependent on Transco for their supplies would not receive sufficient quantities of gas to serve their reported requirements in Priority 2, which contains requirements for large commercial markets, storage injection requirements and firm industrial uses for feedstock, plant protection and process uses. Such a situation would likely precipitate the filing of numerous petitions for extraordinary relief which, if granted even in part, would have a snowballing effect because of the impact of such relief on other customers.

These predictions appear well founded in view of the allegations of the North Carolina Intervenors and the fact that each of the present petitioners for extraordinary relief would receive even less gas this coming year under a 467 curtailment plan. Although the FPC’s November 12 order indicated that the Commission believes that “curtailment on the basis of end use [467-B] priorities affords the best interim protection for consumers,” that belief appears to be premised on the Commission’s general policy statement rather than an examination of evidence pertaining to the Transco system.

In an attempt to discharge our responsibility to protect the parties and the public from the threat of irreparable injury presented by the continuation or dissolution of our existing stay, we order that our stay be modified to place the allocation scheme contained in the September 30, 1974, settlement agreement in effect pending further order of this court. This curtailment plan is the product of months of negotiations between Transco and its customers. It has the advantage of their intimate knowledge of the Transco system and their understanding of the practical problems created by the anticipated shortfall. That it is a balanced and workable product of this expertise is strongly suggested by the fact that all but one of Transco’s customers filing comments with the FPC supported or acquiesced in the settlement plan, and the lone dissenter has made no claim of irreparable injury either to the Commission or this court. Opponents of both the present plan and the 467 plan agree that the settlement will avoid irreparable harm.

The Commission has made no findings with respect to the settlement agreement’s allocation scheme. Its November 12 order rejecting the agreement went no further than stating that “the proposed scheme of compensation, which is the cornerstone of the settlement, is patently unlawful and beyond our jurisdiction to either approve or enforce.” At oral argument, Transco and the other parties suggested that the FPC’s objections could be met by placing funds in an escrow account pending a determination of the procedure’s legality. We accept this suggestion and invite the parties to submit forms drawn to carry out the escrow arrangement. We also accede to Transeo’s request that our order be effective as of November 16, 1974, the beginning of Transco’s winter season, to facilitate adjustments required to assure that customers receive allotments provided for in the settlement agreement.

The information on which we act is admittedly incomplete; it has not been fully tested, and there may be weaknesses or lacunae of which we are not aware. The Commission has available to it a full evidentiary record from hearings on the permanent curtailment plan proposed by Transco. That record, which was closed on July 11, 1974, contains over 6200 pages of transcript and 120 exhibits. Our present action in placing into operation the allocation plan contained in the settlement agreement in no way precludes the Commission from modifying the settlement plan or taking other action based on the information which it has generated and is peculiarly in a position to sift and evaluate.

There is no possibility that the current proceedings will yield a decision on the proposed permanent plan in time for this winter. But the Commission asserts, and we agree, that it has residual emergency powers to impose an interim plan where there is no adequate alternative. Such powers.must be carefully confined, but a shortage on the Transco system of what appears to be crisis proportions provides sufficient predicate for their exercise. Nor do we think their exercise is precluded in this case by American Smelting & Refining Co. v. FPC, 161 U.S.App.D.C. 6, 494 F.2d 925, 933 (1974), which stated that the Commission could not impose an interim curtailment plan, even under emergency conditions, without complying with the hearing requirements of section 5(a). Here a hearing on the relevant issues has been completed. We think the record compiled provides a valid basis on which the Commission, under the conditions which now confront Transco’s customers, could issue interim orders effectuating a plan which does not comport with the one submitted by the pipeline.

This recognition of latitude in the Commission may relieve the frustration which the Commission has felt as a result of our prior orders. At the same time, we must caution restraint lest the FPC interpret our action as a license to require adherence to the 467 paradigm without regard to the peculiarities of the Transco system and its customers. As we stated in Pacific Gas and Electric Company v. FPC, 506 F.2d 33 (D.C.Cir. 1974),

A policy statement announces the agency’s tentative intentions for the future. When the agency applies the policy in a particular situation, it must be prepared to support the policy just as if the policy statement had never been issued.

We set forth evidence indicating problems posed by the unqualified application of Order No. 467 in 'this case. This evidence, as well as the doctrine of Michigan Consolidated Gas Co., require that the Commission give full consideration to the interim settlement agreement and take a fresh look at the 467 priorities in the context of the Transco system. Any curtailment plan imposed by the Commission will be reviewed by this court to ensure that such consideration has been given, and that the plan is supported by the record.

In view of the severe time restraints imposed by these emergency conditions, the justifications offered by the Commission in support of its actions need not be as elaborate as required for the implementation of a permanent curtailment plan. The presence of such restraints, however, does not allow the court to dispense with review of the Commission’s decision to determine the adequacy of the justifications presented.

All of the parties to this proceeding are keenly aware of the circumstances requiring speedy determination of the interim curtailment plan to be in effect on the Transco system this winter. On November 12, the Commission warned that “the interim plan to be followed for this winter — whatever its nature — must be placed into effect on or before November 30, 1974. Transco and its customers must be given sufficient time to prepare for the harsh months ahead. Moreover, a switch of curtailment plans during mid-winter will create operational chaos and exacerbate, rather than alleviate, irreparable harm.” We have been guided by this warning in resolving the conflicting motions expeditiously. We trust that the Commission, freed from the bonds of our prior stays, will heed its November 12 declaration and act promptly in exercising its emergency powers to fashion an interim plan, should it believe that a plan that differs from this court’s order is necessary to protect the public served by the Transco system. In view of the exigencies of the present situation, any Commission action shall be certified forthwith to this court and shall be effective only upon order of this court modifying the stay announced in this opinion.

Our order is not intended to restrict in any way the Commission’s powers to respond to petitions for emergency or extraordinary relief from the curtailment plan placed in effect by this opinion.

So ordered.

      . 49 F.P.C. 85 (1973).

      . 49 F.P.C. 583 (1973). These orders will be referred to collectively as Order No. 467 unless otherwise necessary for clarity.

      . After the promulgation of Order No. 467, Southern submitted a plan which it viewed as possibly within the scope of 467, although the plan provided for initial curtailment with regard to contractual entitlements rather than end use. Curtailments below firm contract commitments were to be made according to the 467 priorities. See Letter from Southern Natural Gas Company, March 29, 1973, reprinted in Brief for Respondent FPC (Nos. 74-1150, 74-1200), App.C. In submitting the plan, Southern requested the FPC to advise whether changes were necessary to bring the plan into compliance with 467. The Commission thought changes were necessary, and they were subsequently made.

      . Our understanding is that a stay was not granted in the third case, involving Panhandle, because at the time the petition for a stay was reviewed the disruption of the 467 plan then in effect by virtue of the Commission’s orders of November 6 and December 28, 1973, would have been counterproductive. In oral argument, counsel for Panhandle stated that the 467 plan was workable under present circumstances, whereas the interim settlement plan previously in effect would not be adequate.

      . None of the parties in the Southern case has moved to dissolve this court’s stay entered on January 28, 1974, and clarified on January 30, 1974. Nor have petitioners in the Panhandle case renewed their request for a stay.

      . Order Finding an Emergency on Transco’s System and Denying Motion for Interim Settlement as to Curtailment Rules, FPC Docket No. RP72-99 (Nov. 12, 1974) [hereinafter cited as Order of Nov. 12, 1974].

      . Letter from Transcontinental Gas Pipeline Corporation, November 13, 1974, quoted in Motion to Continue Maintenance of the Status Quo of Piedmont Natural Gas Company, at 11.

      . Tariffs not in accord with the policies expressed in orders in Docket No. R-469 will be subject to suspension and hearing, and any curtailments made under nonconforming tariff sheets which have not received Commission approval may be found to be unjust and unreasonable, or preferential and discriminatory, depending on the facts proved in an evidentiary hearing.
      49 F.P.C. at 585.

      . In two cases, Transco and Southern, the pipelines were given written warnings by the FPC of the possible consequences of failure to comply with Order No. 467, with reference to the language quoted note 8, supra.

      . 108 U.S.App.D.C. 409, 283 F.2d 204, cert. denied, 364 U.S. 913, 81 S.Ct. 276, 5 L.Ed.2d 227 (1960).

      . See Order of Nov. 12, 1974, at 15.

      . 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).

      . Id. at 109-110, 259 F.2d at 924-925.

      . United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932).

      . Id. at 114, 52 S.Ct. at 462, see System Federation No. 91, Ry. Employees’ Dep’t v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961) (“There is also no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances have changed, or new ones have since arisen.”).

      . Cf. Natural Gas Pipeline Co. v. FPC, 128 F.2d 481, 484 (7th Cir. 1942) (“We think it well settled that in respect to review of orders of Federal Boards and Commissions, the jurisdiction of the Circuit Court of Appeals, when granted by Congress, is original rather than appellate in character and that, being endowed with original jurisdiction, the court may by its own orders protect the rights of the parties in any manner in which any trial court of equity of general jurisdiction might do so in an injunction suit.”).

      . Transco estimates that the system-wide curtailment will be approximately 28% during the winter period and 40% for the following summer period. These levels of curtailment are approximately 50% above those experienced in 1973-74. See Affidavit of Eugene H. Luntey, President of Brooklyn Union Gas Company, at 2-3.

      . See Order of Nov. 12, 1974, at 18.

      . FPC v. Louisiana Power & Light Co., 406 U.S. 621, 645, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972).

      . See Order of Nov. 12, 1974, at 17.

      . See id. at 5-6, 8-9, 18.

      . See Affidavit of Elwin S. Larson, at 2-3.

      . See Motion of Federal Power Commission for Immediate Dissolution of Stay Orders at 10. In the unlikely event that Transco failed to move to effectuate its filing, there would be no curtailment plan in effect to apportion its gas supply.

      . See 49 F.P.C. 85, 86 (1973).

      . See Affidavit of Earl C. Chambers, at 13-14.

      . See Piedmont’s Motion to Continue Maintenance of the Status Quo, at 28-29.

      . See Response of Intervenor South Jersey Gas Company at 6 (“South Jersey projects that presently foreseeable curtailments under the 467-B plan would cause direct unemployment of more than 35 percent of the approximately 25,000 man workforce employed by its large industrial customers.”) and accompanying affidavits.

      . See id. at 4 (quoting Mullendore testimony).

      . See id. at 5; Piedmont’s Motion to Continue Maintenance of the Status Quo at 21.

      . See Order of Nov. 21, 1974, at 17.

      . See FPC v. Louisiana Power & Light Co., 406 U.S. 621, 645, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972).

      . See, e. g., Piedmont’s Motion to Continue Maintenance of the Status Quo at 35 (“[W]e believe that no such irreparable injury will result to other customers of Transco should the curtailment plan on the Transco system pending completion of Court review in the instant proceeding be the interim settlement plan [the September 30, 1974 settlement agreement].”); Affidavit of Eugene H. Luntey, President of Brooklyn Union Gas Company, at 4.

      . See Order of Nov. 12, 1974, at 13.

      . Motion to Continue Maintenance of the Status Quo of Piedmont Natural Gas Company, at 7.

      . See FPC v. Louisiana Power & Light Co., 406 U.S. 621, 644 n. 18, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), citing FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942).

      . See Pennsylvania Gas & Water Co. v. FPC, 133 U.S.App.D.C. 298, 427 F.2d 568 (1970) (holding that FPC’s authority to grant certificates on an emergency basis under section 7(c) of the Natural Gas Act did not provide a basis for changes in certificates going beyond the current exigencies).

      . See text accompanying notes 10-11, supra.

      . See Moss v. CAB, 139 U.S.App.D.C. 150, 430 F.2d 891, 901 (1970) (“We would be sympathetic, for example, to instances in which the Board felt that compelling circumstances required it to act without complete information before an investigation is completed.”); National Air Carrier Ass’n v. CAB, 141 U.S. App.D.C. 31, 436 F.2d 185, 194-195 (1970) (recognizing the Board’s power to take interim action on a fare agreement under exigent circumstances even though it “lacks sufficient information to determine authoritatively whether the agreement as a whole will serve the public interest . . .”).

      . Order of Nov. 12, 1974, at 19.