     Case: 15-30100   Document: 00513327219     Page: 1   Date Filed: 01/04/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-30100
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
OCCIDENTAL CHEMICAL CORPORATION,                                January 4, 2016
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

LOUISIANA PUBLIC SERVICE COMMISSION; ERIC SKRMETTA, in his
capacity as Commissioner; SCOTT ANGELLE, in his capacity as
Commissioner; LAMBERT BOISSIERE, in his capacity as Commissioner;
CLYDE C. HOLLOWAY, in his capacity as Commissioner; FOSTER L.
CAMPBELL, in his capacity as Commissioner; ENTERGY LOUISIANA,
L.L.C.,

             Defendants - Appellees




                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      The question presented in this appeal is whether the district court
abused its discretion when it entered an order indefinitely staying this
proceeding to allow the Federal Energy Regulatory Commission (“FERC”) to
act on an administrative complaint filed by Plaintiff-Appellant Occidental
Chemical Corporation (“Occidental”) against a non-party to this action, which
largely concerns the same issues. The district court based its order on the
primary jurisdiction doctrine, which is essentially a form of abstention. Under
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this doctrine, a district court with subject matter jurisdiction may, under
appropriate circumstances, defer to another forum, such as an administrative
agency, which also has non-exclusive jurisdiction, based on its determination
that the benefits of obtaining aid from that other forum outweigh the need for
expeditious litigation. 1 Occidental essentially argues that the indefinite nature
of the stay outweighs any potential benefit. For the reasons set forth, we agree.

I.     BACKGROUND

       The dispute arises under the Public Utility Regulatory Policies Act of
1978, Pub. L. No. 95-617, 92 Stat. 3117 (“PURPA”), which was originally
passed in 1978 and was “designed to combat the nationwide energy crisis.” 2
The Supreme Court has explained the relevant statute, § 210, as follows:
      Section 210 of PURPA’s Title II, 92 Stat. 3144, 16 U.S.C. § 824a–
      3, seeks to encourage the development of cogeneration and small
      power production facilities. Congress believed that increased use
      of these sources of energy would reduce the demand for traditional
      fossil fuels. But it also felt that two problems impeded the
      development of nontraditional generating facilities: (1) traditional
      electricity utilities were reluctant to purchase power from, and to
      sell power to, the nontraditional facilities, and (2) the regulation of
      these alternative energy sources by state and federal utility
      authorities imposed financial burdens upon the nontraditional
      facilities and thus discouraged their development.

      In order to overcome the first of these perceived problems, § 210(a)
      directs FERC, in consultation with state regulatory authorities, to
      promulgate “such rules as it determines necessary to encourage
      cogeneration and small power production,” including rules
      requiring utilities to offer to sell electricity to, and purchase
      electricity from, qualifying cogeneration and small power
      production facilities. Section 210(f), 16 U.S.C. § 824a–3(f), requires
      each state regulatory authority and nonregulated utility to


      1   See Gulf States Utils. Co. v. Alabama Power Co., 824 F.2d 1465, 1472-73 (5th Cir.
1987), amended, 831 F.2d 557 (5th Cir. 1987).
       2 FERC v. Mississippi, 456 U.S. 742, 745 (1982).

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      implement FERC’s rules. And § 210(h), 16 U.S.C. § 824a–3(h),
      authorizes FERC to enforce this requirement in federal court
      against any state authority or nonregulated utility; if FERC fails
      to act after request, any qualifying utility may bring suit.

      To solve the second problem perceived by Congress, § 210(e), 16
      U.S.C. § 824a–3(e), directs FERC to prescribe rules exempting the
      favored cogeneration and small power facilities from certain state
      and federal laws governing electricity utilities.

      Pursuant to this statutory authorization, FERC has adopted
      regulations relating to purchases and sales of electricity to and
      from cogeneration and small power facilities. See 18 CFR pt. 292
      (1980); 45 Fed. Reg. 12214–12237 (1980). These afford state
      regulatory authorities and nonregulated utilities latitude in
      determining the manner in which the regulations are to be
      implemented. Thus, a state commission may comply with the
      statutory requirements by issuing regulations, by resolving
      disputes on a case-by-case basis, or by taking any other action
      reasonably designed to give effect to FERC’s rules. 3

      Occidental owns and operates a “qualifying facility” (“QF”) under § 210,
the so-called Taft Facility, located in Hahnville, Louisiana. Its traditional host
utility is Defendant-Appellee Entergy Louisiana, LLC (“Entergy”), as well as
other utilities regulated by Defendant-Appellee the Louisiana Public Service
Commission (“LPSC”). Occidental claims that, under § 210(f)(1) of PURPA, 16
U.S.C. § 824a-3(f)(1), it has, among other rights, a right to compel Entergy to
purchase the energy it produces, a right to effect such sales either through
unscheduled “puts” of energy or through legally enforceable obligations, and a
right to receive the appropriate rate for such sales.
      Occidental claims that Entergy, to avoid its obligations to Occidental and
other QFs under PURPA, decided in 2011 to join the Midcontinent
Independent Transmission System Operator, Inc. (“MISO”), a regional



      3   Id. at 750-51 (footnotes omitted).
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transmission organization. Occidental also claims that Entergy and MISO
planned to integrate QFs, including the Taft Facility, into MISO, resulting in
the QFs being wrongfully stripped of many PURPA rights.
      On January 17, 2013, Occidental commenced an administrative action
against MISO before FERC, in FERC Docket No. EL13-41-000, pursuant to the
Federal Power Act, 16 U.S.C. §§ 824e and 825e (the “Integration Complaint”).
Essentially, Occidental wants: (1) FERC to declare that MISO’s plan to
integrate QFs was invalid, and (2) FERC to order MISO to allow QFs to
register for and participate in its markets without forgoing their PURPA
rights. Resolving the Integration Complaint apparently will require FERC to
determine how FERC’s regulations applicable to QF transactions apply to the
MISO marketplace, including the integration of QFs under the MISO tariff.
      Although Occidental sought fast-track processing of the Integration
Complaint, very little has happened in that proceeding. Briefing was
completed in March 2013, and on March 6, 2014, FERC sent Occidental a letter
ordering it to supplement the record with two pieces of information:
“(a) Whether Occidental has registered as a market participant in MISO and,
if so, how Occidental has participated as a market participant; and (b) Updates
to Occidental’s complaint to reflect experience regarding the treatment of its
QF under MISO’s Tariff, along with any supporting documents.” Occidental
did so on April 7, 2014, and other parties responded, but FERC has taken no
further action to date.
      In the meantime, on January 9, 2014, the LPSC entered an order
granting an application by two Entergy entities. Occidental claims the order
nominally concerned a modification of the methodology for calculating avoided
costs but effectively adopted Entergy’s plan for integrating the QFs into MISO,
which both deprived QFs of their PURPA rights and essentially nullified a
2002 contract governing Entergy’s purchase of energy from the Taft Facility.
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      In response to the LPSC’s order, Occidental filed a FERC petition against
the LPSC, under FERC Docket No. EL14-28-000 (the “LPSC FERC
Complaint”). Occidental contended in the LPSC FERC Complaint that the
LPSC’s order “de-implements” PURPA protections in Louisiana “because it
precludes qualifying facilities . . . from exercising their statutory rights under
PURPA and [FERC’s] regulations promulgated thereunder.” Occidental asked
FERC for injunctive relief against the LPSC in federal district court based on
the LPSC’s alleged failure to implement FERC’s rules as required by
§ 210(f)(1), 16 U.S.C. § 824a-3(f)(1). Occidental claimed the LPSC’s order
violated PURPA in six specific ways, including: (1) it impaired QFs’ rights
under PURPA, and (2) the avoided cost methodology approved by the LPSC,
which includes an adjustment for MISO-specific market charges, does not
comply with PURPA and FERC’s implementing regulations.
      On April 4, 2014, FERC issued a notice of its intent not to act at this
time. FERC noted that in the LPSC FERC Complaint, Occidental focused on
the LPSC order’s approval of Entergy’s avoided cost methodology with respect
to QFs. FERC also noted that the Integration Complaint against MISO already
pending before FERC concerned “MISO’s proposed treatment of QFs in the
Entergy service territory upon Entergy’s joining MISO” and that FERC had
asked Occidental to supplement its pleadings in light of Entergy’s actually
joining MISO in December 2013. (Of course, as noted above, Occidental did
supplement the pleadings as requested shortly thereafter.) FERC concluded:
      3. We find that the petition for complaint and declaratory order in
      Docket No. EL13-41-000, while against MISO instead of the
      Louisiana Commission (the party Occidental seeks enforcement
      action against in this proceeding), largely raises the same issues
      as those raised in this proceeding and that these proceedings
      should be addressed at the same time.

      4. Therefore, notice is hereby given that the Commission declines
      to initiate an enforcement action at this time pursuant to section
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      210(h)(2) of PURPA, as requested by Occidental. Our decision not
      to initiate an enforcement action at this time means that
      Occidental may itself bring an enforcement action against the
      Louisiana Commission in the appropriate court; the Commission’s
      action here reserves its ability to issue a further order or to take
      further action at a future date should the Commission find that
      doing so is appropriate. 4

      Accordingly, Occidental filed the instant action in the Middle District of
Louisiana against Entergy, the LPSC, and LPSC Commissioners in their
official capacities. Against the LPSC defendants, Occidental’s complaint
essentially repeats the arguments set out in its LPSC FERC Complaint and
further claims that the LPSC’s order is preempted. Against Entergy, the
complaint seeks declaratory relief and damages based on state-law claims for
breach of the 2002 contract and the implied covenant of good faith and fair
dealing. FERC has never exercised its right to intervene in the district court
proceeding pursuant to § 210(h)(2)(B), 16 U.S.C. § 824a-3(h)(2)(B).
      On June 4, 2014, Entergy and the LPSC defendants jointly moved the
district court to stay the case pending an administrative determination in the
Integration Complaint before FERC. The motion was extensively briefed by
the defendants and by Occidental. In short, the defendants argued that the
district court should exercise its discretion to stay the case pursuant to the
primary jurisdiction doctrine because FERC’s resolution of the Integration
Complaint would also resolve one of the issues before the district court:
whether MISO’s plan to integrate the QFs complies with § 210 of PURPA and
FERC’s rules. In opposition, Occidental argued that the district court was
barred from invoking the primary jurisdiction doctrine because § 210 alone
coordinates the work between FERC and the district court, displacing the
primary jurisdiction doctrine. Moreover, Occidental argued, even if the


      4   FERC’s April 4, 2014 Notice.
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                                 No. 15-30100
doctrine applied, the costs of indefinitely delaying its PURPA suit would
outweigh whatever benefits might flow from FERC’s decision on the
Integration Complaint.
       After some further proceedings, irrelevant to this appeal, the district
court granted the defendants’ motion for a stay without a hearing on January
20, 2015, in a four-paragraph ruling. The district court, based on its
consideration of the briefs and the applicable law, concluded that the case
should be stayed pending a decision by FERC “on the issues relating to the
[MISO] tariff and market rules which are underlying Plaintiff’s claims before
this Court.” The court accurately set out the general law applicable to the
primary jurisdiction doctrine and further noted: “To be clear, the Court
acknowledges that Plaintiff’s implementation claims must be decided by this
Court under PURPA. However, the Court agrees with Defendants that a
determination by FERC as to the MISO issues upon which Plaintiff’s claims
are based would be helpful to the Court.” Accordingly, the court ordered that
the matter be stayed pending FERC’s resolution of the Integration Complaint
and that the parties shall advise the court that the stay should be lifted within
14 days of a decision by FERC.
       Occidental filed a timely motion for reconsideration along with a notice
of appeal. The district court denied the motion for reconsideration, triggering
this appeal. Both Occidental and the Defendants-Appellees raise the same
arguments they raised before the district court, but we must first address the
question of whether we even have appellate jurisdiction.

II.    JURISDICTION

       Occidental brings this appeal pursuant to 28 U.S.C. § 1291, relating to
“final decisions” of the district court, and not under 28 U.S.C. § 1292, relating
to interlocutory decisions. Because the district court did not dismiss the action

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but “retained jurisdiction for a later disposition of the merits,” 5 the district
court’s stay order on its face does not appear final. Occidental points to a few
purported exceptions to the final decision rule, including the argument that
under Hines v. D’Artois, 6 the district court’s order resulted in Occidental being
“effectively out of court” and therefore functioned as a final decision.
      The Hines plaintiffs, African-Americans who had allegedly been
discriminated against by a police department, filed suit asserting claims under
42 U.S.C. §§ 1981 and 1983. 7 About one year into the suit, the district court
disposed of a number of pretrial motions and sua sponte “ordered that the case
would be stayed pending the filing by the plaintiffs of Title VII proceedings
before the Equal Employment Opportunity Commission, and that plaintiffs
would be required to ‘carry their application for relief to final conclusion by the
Commissioner before undertaking any further proceedings herein.’” 8 The
plaintiffs attempted to appeal the order mandating a stay until they initiated
and pursued to completion EEOC actions. 9 The initial question was whether
the Fifth Circuit even had appellate jurisdiction over the superficially non-
“final decision,” and the court examined four potential routes to jurisdiction,
including the “effectively out of court” exception to the “final decision” rule,
which is based on the Supreme Court’s decisions in Idlewild Bon Voyage Liquor
Corp. v. Epstein, 370 U.S. 713 (1962), and Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949). 10
      The Hines court explained that in Idlewild, the district court had “denied
a motion to convene a three-judge court and stayed the federal proceedings



      5 Hines v. D’Artois, 531 F.2d 726, 729 (5th Cir. 1976).
      6 Id.
      7 Id. at 728.
      8 Id.
      9 Id. at 729.
      10 531 F.2d at 729-32.

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                                     No. 15-30100
until the state courts ruled on the central issue in the case,” even though “[n]o
state court litigation was then pending.” 11 The case made its way to the Second
Circuit and then to the Supreme Court, which explained:
      [T]he Court of Appeals properly rejected the argument that the
      order of the District Court “was not final and hence unappealable
      under 28 U.S.C. [§§] 1291, 1292,” pointing out that “(a)ppellant
      was effectively out of court.” 289 F.2d at 428. 12

      Thus, Idlewild is the origin of the “effectively out of court” rule, but as
Hines explained, the rule is “reinforced by Supreme Court cases dealing more
generally with the question of what district court orders are ‘final,’” most
notably Cohen. Hines quoted from a 1964 Supreme Court opinion summarizing
the Cohen line of cases:
      [A] decision “final” within the meaning of s 1291 does not
      necessarily mean the last order possible to be made in a case . . . [.]
      And our cases long have recognized that whether a ruling is ‘final’
      within the meaning of s 1291 is frequently so close a question that
      decision of that issue either way can be supported with equally
      forceful arguments, and that it is impossible to devise a formula to
      resolve all marginal cases coming within what might well be called
      the “twilight zone” of finality. Because of this difficulty this Court
      has held that the requirement of finality is to be given a “practical
      rather than a technical construction.” . . . (i)n deciding the
      question of finality the most important competing considerations
      are ‘the inconvenience and costs of piecemeal review on the one
      hand and the danger of denying justice by delay on the other.’
      (citations omitted) 13

      The Hines court noted that other circuits had applied the Cohen
rationale to find appellate jurisdiction to review orders staying federal
proceedings under the primary jurisdiction doctrine to allow federal agencies



      11  Id. at 730.
      12  Id. (quoting Idlewild, 370 U.S. at 715 n.2).
       13 Id. (quoting Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53 (1964)

(alterations and omissions in Hines)).
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                                      No. 15-30100
to address the relevant issues. 14 Based on the Idlewild “effectively out of court”
rationale and the more general reasoning of Cohen, the Hines court concluded
that appellate jurisdiction existed, and its reasoning is instructive:
       In the circumstances of this case, we believe we are justified in
       treating the stay order entered below as a ‘final’ order for the
       purposes of § 1291. No EEOC complaint had been filed by any
       party in relation to this action when the district court entered its
       order staying the litigation pending completion of EEOC
       proceedings. We noted in 1972 that ‘it takes the EEOC a minimum
       of eighteen months to two years to process a charge of
       discrimination,’ Chromcraft Corp. v. EEOC, 5 Cir. 1972, 465 F.2d
       745, 747. The uncontradicted affidavit of plaintiffs’ counsel,
       presented to the district court in support of a motion to modify
       order, attested to his experience that the length of time the New
       Orleans EEOC office (where this complaint would be heard) has
       taken to investigate and attempt reconciliation of discrimination
       charges was 1 1/2 to 5 1/2 years. The EEOC, in its amicus brief in
       this case, makes the following uncontested statement:

              As of December, 1974, there were 2,195 charges
              pending in the Commission’s New Orleans District
              Office, with 215 new charges filed each month. The
              average period of time elapsing between the filing of a
              charge until conciliation is attempted is 40.2 months.

       Whatever the absolute judicial validity of the above sources of
       information, it seems beyond cavil that the effect of the stay order
       in this case was to put plaintiffs “effectively out of court,” see
       [Idlewild], supra, for a protracted and indefinite period—at least
       eighteen months, and possibly much longer. For the purposes of
       expedition and certainty, the parties here would have been served
       just as well by a stay pending the arrival of Godot. 15

       Thus, the primary focus of Hines is the length of time it might take for
an administrative agency to reach a decision, with 18 months deemed


       14  Id. at 731 (citing C. A. B. v. Aeromatic Travel Corp., 489 F.2d 251 (2d Cir. 1973)
(Civil Aeronautics Board), and Ringsby Truck Lines, Inc. v. United States, 490 F.2d 620 (10th
Cir. 1973) (Interstate Commerce Commission)).
        15 Id. at 731-32 (footnotes omitted).

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sufficient to constitute effectively putting the plaintiffs out of court under
Idlewild. In the instant case, Occidental filed its Integration Complaint with
FERC in January of 2013, and the only action it has taken to date was ordering
Occidental to supplement the record, which Occidental timely did in April of
2014. FERC has taken no action since the district court entered the stay order
in this case, and there is no indication of when FERC might do so. Thus, it has
already been nearly two years without FERC action and might take
substantially longer, as all parties acknowledged at oral argument in this case.
Under the rationale of Hines, it is reasonable to conclude that the district
court’s stay order effectively put Occidental out of court and therefore gives
this court appellate jurisdiction to review the order.
       Thus, if Hines remains good law, it appears we have appellate
jurisdiction. The standard for overturning Hines is quite high:
       Because a previous panel has resolved this question, we cannot
       overturn its decision “absent an intervening change in the law,
       such as by a statutory amendment, or the Supreme Court or by our
       en banc court.” In particular, for a Supreme Court decision to
       change our Circuit’s law, it “must be more than merely
       illuminating with respect to the case before [the court]” and must
       “unequivocally” overrule prior precedent. 16

       The LPSC and Entergy argue that Hines has been effectively overruled
by the Supreme Court’s decision in Moses H. Cone, 17 which they argue limited
the “effectively out of court” exception under Idlewild/Cohen to situations in
which the stay operates in favor of a state forum. We must reject that
argument. First, Moses H. Cone does not limit the Idlewild/Cohen rule on its
face. Although Moses H. Cone applied the rule in the context of a stay order
deferring federal action in favor of state proceedings, it did so because those


       16 Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th
Cir. 2012) (citations omitted).
       17 Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1 (1983).

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were the facts before it, and the opinion on its face does not limit the rule to
only those circumstances. 18
       Second, and more important, the Supreme Court cited Hines with
approval along with other appellate cases applying the “effectively out of court”
rule. After discussing Idlewild, the Court explained:
       Here, the argument for finality of the District Court’s order is even
       clearer. A district court stay pursuant to Pullman abstention is
       entered with the expectation that the federal litigation will resume
       in the event that the plaintiff does not obtain relief in state court
       on state-law grounds. Here, by contrast, the District Court
       predicated its stay order on its conclusion that the federal and
       state actions involved “the identical issue of arbitrability of the
       claims of Mercury Construction Corp. against the Moses H. Cone
       Memorial Hospital.” That issue of arbitrability was the only
       substantive issue present in the federal suit. Hence, a stay of the
       federal suit pending resolution of the state suit meant that there
       would be no further litigation in the federal forum; the state court’s
       judgment on the issue would be res judicata. Thus, here, even more
       surely than in Idlewild, Mercury was “effectively out of court.”
       Hence, as the Court of Appeals held, this stay order
       amounts to a dismissal of the suit. 19

       In a footnote to that final sentence, the Court cited Hines with approval
without limiting its application. 20 Although the same footnote also contains
ambiguous language suggesting the Idlewild/Cohen rule might be limited to
deferrals in favor of a state forum, 21 it is impossible for us to say that the
decision “unequivocally” overrules Hines given its approving citation to Hines
in a key passage. For this reason, although some later opinions have called


       18  See generally id., 460 U.S. at 8-13 (addressing appellate jurisdiction).
       19  Id. at 10 (citations omitted, emphasis added).
        20 Id. at 10 n.11.
        21 After citing Hines with approval, the Court stated that “Idlewild’s reasoning is

limited to cases where (under Colorado River, abstention, or a closely similar doctrine) the
object of the stay is to require all or an essential part of the federal suit to be litigated in a
state forum.” Id. Of course, the focus on state deferrals in this sentence may have been
prompted by the facts of Moses H. Cone, which concerned a state deferral.
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                                       No. 15-30100
Hines’s validity into question, no controlling opinion has concluded it has been
overruled, 22 and one opinion expressly concluded it remains good law: “We
furthermore note that the Supreme Court itself cited Hines with approval in
[Moses H. Cone], thus making clear its view that the two cases are
reconcilable.” 23
         In short, we conclude Hines remains good law following Moses H. Cone,
and this case is sufficiently close to the facts of Hines to give us appellate
jurisdiction under the “effectively out of court” rule. Because we possess
appellate jurisdiction under Hines, we decline to address Occidental’s
alternative arguments that we possess jurisdiction under the collateral order
doctrine or that we should treat this purported appeal as a petition for writ of
mandamus.

III.     PRIMARY JURISDICTION DOCTRINE

         A.    Standard of Review

         “The doctrine of primary jurisdiction . . . is a doctrine of judicial
abstention whereby a court which has jurisdiction over a matter, nonetheless
defers to an administrative agency for an initial decision on questions of fact
or law within the peculiar competence of the agency.” 24 “We review an
abstention ruling for abuse of discretion, but ‘we review de novo whether the



         22See Dresser v. Ohio Hempery Inc., 122 F. App’x 749, 753 (5th Cir. 2004) (“Although
Hines has never been overturned, subsequent case law has made its precedential value
questionable.”). Dresser discussed Kershaw v. Shalala, 9 F.3d 11, 14 (5th Cir. 1993), an
opinion which interpreted Moses H. Cone to apply only to deferrals to state courts, not federal
agencies, based on the above quoted language from footnote 11 of the opinion. Kershaw did
not cite Hines, much less address why the Supreme Court cited it with approval if it intended
to overrule it.
        23 United States v. Garner, 749 F.2d 281, 288 n.8 (5th Cir. 1985), supplemented, 752

F.2d 116 (5th Cir. 1985).
        24 REO Indus., Inc. v. Natural Gas Pipeline Co. of Am., 932 F.2d 447, 456 (5th Cir.

1991) (emphasis omitted).
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                                       No. 15-30100
requirements of a particular abstention doctrine are satisfied.’” 25 “A district
court by definition abuses its discretion when it makes an error of law.” 26
       B.     Relevant Law

       “‘No fixed formula exists for applying the doctrine of primary
jurisdiction. In every case the question is whether the reasons for the existence
of the doctrine are present and whether the purposes it serves will be aided by
its application in the particular litigation.’” 27
       It is well established that courts need not refer an issue to an
       agency when the issue is strictly a legal one, involving neither the
       agency’s particular expertise nor its fact finding prowess; the
       standards to be applied in resolving the issue are within the
       conventional competence of the courts and the judgment of a
       technically expert body is not likely to be helpful in the application
       of these standards to the facts of the case. Furthermore, the

              courts should be reluctant to invoke the doctrine of
              primary jurisdiction, which often, but not always,
              results in added expense and delay to the litigants
              where the nature of the action deems the application
              of the doctrine inappropriate. . . . Likewise, when the
              agency’s position is sufficiently clear or nontechnical
              or when the issue is peripheral to the main litigation,
              courts should be very reluctant to refer. . . . Finally,
              the court must always balance the benefits of seeking
              the agency’s aid with the need to resolve disputes
              fairly yet as expeditiously as possible.




       25 Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014) (quoting Romano v.
Greenstein, 721 F.3d 373, 380 (5th Cir. 2013)). See also Wagner & Brown v. ANR Pipeline Co.,
837 F.2d 199, 200 (5th Cir. 1988) (applying abuse of discretion standard to district court order
applying primary jurisdiction doctrine).
       26 Koon v. United States, 518 U.S. 81, 100 (1996) (citing Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990)).
       27 Columbia Gas Transmission Corp. v. Allied Chem. Corp., 652 F.2d 503, 520 n.15

(5th Cir. 1981) (quoting United States v. W. Pac. R.R., 352 U.S. 59, 64 (1956)).
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       Mississippi Power & Light, 532 F.2d at 419 [(5th Cir. 1976)]. See
       also Shew v. Southland Corp., 370 F.2d 376, 379-80 (5th Cir. 1966)
       (agency position clear). 28

       In Columbia Gas Transmission, the Fifth Circuit held that only a fact-
intensive enforcement issue should be referred to FERC, while the district
court must retain jurisdiction of “nonenforcement regulatory issues” which
were “legal and not factual in nature.” 29
       In Mississippi Power & Light, we listed some other circumstances where
the doctrine generally is not warranted, including (1) “[i]f, under no conceivable
set of facts, the agency could immunize what would be a clear violation of
federal law”; “where the litigation deals with a single event which requires no
continuing supervision by the regulatory agency”; or “where Congress has
determined by statute that the courts should decide the issue in the first
instance, primary jurisdiction should not be invoked” (citing Mercury Motor
Express v. Brinke, 475 F.2d 1086 (5th Cir. 1973), discussed in the next
section). 30 Although primary jurisdiction is most appropriate for fact-intensive
questions within the agency’s jurisdiction, we have explained that it is
sometimes appropriate to refer questions of law to an agency. 31
       Thus, at a general level, the primary jurisdiction doctrine requires the
district court to balance the assistance potentially provided by an agency’s
specialized expertise against the litigants’ certainty of delay.




       28  Id. (citations omitted).
       29  Id.
        30 532 F.2d at 419.
        31 See J. M. Huber Corp. v. Denman, 367 F.2d 104, 111-12 (5th Cir. 1966) (“But

considering the broad aim of this device and the consequent flexibility of it there is really
nothing startling about submitting to an agency for initial decision the question of its own
jurisdiction. That this ultimately is a question of law, probably one of statutory construction,
is not fatal.” (footnote omitted)).
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                                    No. 15-30100
      C.       Mercury Motor Does Not Preclude Application Of The
               Primary Jurisdiction Doctrine In This Case.

      Occidental’s primary argument is that, under Mercury Motor, the
primary jurisdiction doctrine is not available for actions under § 210 of PURPA
because Congress has already coordinated work between FERC and the
district court. Thus, Occidental argues, the district court abused its discretion
because it erred as a matter of law. Occidental’s reading of Mercury Motor is
overly broad. The case does not apply to preclude the primary jurisdiction
doctrine here.
      In Mercury Motor, the plaintiffs, eight licensed freight forwarders,
sought injunctive relief against defendant Brinke to prevent him from
operating as a freight forwarder without a permit from the Interstate
Commerce Commission (“ICC”). 32 The district court not only denied
preliminary injunctive relief but “stayed further proceedings pending final
action by the ICC on Brinke’s freight forwarder permit application.” 33 On
appeal to the Fifth Circuit, the panel, after determining that it had jurisdiction,
noted that the plaintiffs had not sued under common law or a statute only
tangentially related to the Interstate Commerce Act but
      under a section of the Act itself—§ 417(b)(2), 49 U.S.C.A. §
      1017(b)(2). Further, the statute itself is not silent on the
      problem of coordinating the work of the district courts and
      the ICC in this type of action, but makes express provision for
      coordination. Section 1017(b)(2) provides, “The Commission may
      appear as of right in any such action,” and Section 1017(b)(3)
      explicitly gives the ICC the power to assert primary jurisdiction in
      an appropriate case . . .

      The statute thus gives the ICC power to effect a stay of a §
      1017(b)(2) action, but conspicuously omits mention of any
      corresponding power in the district court when the ICC does not

      32   475 F.2d at 1088.
      33   Id.
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                                        No. 15-30100
       intervene. We think the conferring of power to stay only on the
       Commission in this thoughtfully designed procedural provision,
       enacted as an integral part of the regulatory legislation, strongly
       suggests that Congress intended to supersede and replace the
       judicial primary jurisdiction doctrine in § 1017(b)(2) suits. 34

       Occidental focuses on the bolded language above and seems to suggest,
in essence, that virtually any statute coordinating work between an agency
and federal courts is sufficient to preclude the primary jurisdiction doctrine.
That is plainly not what Mercury Motor held. Instead, the panel looked to the
specific language of the relevant statute and concluded that it actually barred
the district court from staying the proceeding. 35 There is no such bar in § 210
of PURPA, 16 U.S.C. § 824a-3.
       The relevant section, § 210(h)(2) (“Commission enforcement”), provides,
in relevant part:
       (2)(A) The Commission may enforce the requirements of subsection
       (f) of this section against any State regulatory authority or
       nonregulated electric utility. . . .

       (B) Any electric utility, qualifying cogenerator, or qualifying small
       power producer may petition the Commission to enforce the
       requirements of subsection (f) of this section as provided in
       subparagraph (A) of this paragraph. If the Commission does not
       initiate an enforcement action under subparagraph (A) against a
       State regulatory authority or nonregulated electric utility within
       60 days following the date on which a petition is filed under this
       subparagraph with respect to such authority, the petitioner may
       bring an action in the appropriate United States district court to
       require such State regulatory authority or nonregulated electric
       utility to comply with such requirements, and such court may issue
       such injunctive or other relief as may be appropriate. The




       34 Id. at 1093 (footnote omitted, emphasis added).
       35 The cases from other jurisdictions cited by Occidental in its brief also tend to concern
specific restrictions.
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                                       No. 15-30100
      Commission may intervene as a matter of right in any such
      action. 36

      The statute allows FERC to enforce § 210(f) itself, or an appropriate
private party may petition FERC to enforce § 210(f). If FERC fails to do so,
then the private party may file an action in the district court, which FERC may
intervene in, but FERC is not required to do so. Although § 210(h)(2) indeed
coordinates work between the agency and the federal courts, it says nothing
about the power to stay, and it does not otherwise expressly or impliedly
preclude application of the primary jurisdiction. Thus, Mercury Motor is easily
distinguishable, and it does not apply to preclude the district court from
applying the primary jurisdiction doctrine in this suit under § 210 of PURPA.
      D.        The District Court’s Order Should Be Revised To Avoid An
                Indefinite Stay.

      Occidental argues in the alternative that if the doctrine could apply, the
district court abused its discretion by not considering and weighing all the
factors set out above. Occidental’s primary objection is that the district court
did not engage in the required analysis. While the district court’s order is
certainly very short, the law, as set out in Part III.B above, appears only to
require the district court to consider and weigh the relevant factors, not explain
them in any particular form.
      Occidental has not demonstrated any material error in the district
court’s statement of the applicable law, short though it may be. The closest
Occidental comes is in claiming that “the district court stayed this entire case
without analyzing, or even acknowledging, Occidental’s state-law claims
against Entergy,” which generally should not be stayed pursuant to the
primary jurisdiction doctrine. The district court’s “failure” is not surprising



      36   16 U.S.C. § 824a-3(h)(2).
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                                    No. 15-30100
because Occidental failed to bring that issue to the district court’s attention in
its opposition to the LPSC’s and Entergy’s motion to stay. Accordingly,
Occidental has waived that issue on appeal.
      As to the issues before the district court, the district court noted that to
apply the primary jurisdiction doctrine, it “must weigh the benefits of
obtaining the agency’s aid against the need to resolve the litigation
expeditiously and may defer only if the benefits of agency review exceed the
costs imposed on the parties.” Having considered the briefs of the parties
(including, presumably, the more than 1,000 pages of exhibits attached to the
motion to stay by the LPSC and Entergy), the district court concluded that “a
determination by FERC as to the MISO issues upon which Plaintiff’s claims
are based would be helpful to the Court.”
      It is worth noting that Occidental apparently is not challenging the
positive side of the balancing test. Given that Occidental itself sought a FERC
determination, first in the Integration Complaint and later in the LPSC FERC
Proceeding, it is not surprising that Occidental does not dispute the potential
benefit of a FERC determination. Instead, Occidental attacks the negative side
of the balancing test, the indefinite delay in litigation. Occidental does not
argue that some delay is unwarranted, only that an indefinite delay is. FERC
has no deadline to act, and Occidental is stuck until that time.
      In Wagner & Brown v. ANR Pipeline Co., 837 F.2d 199 (5th Cir. 1988),
the Fifth Circuit confronted a similar problem and arrived at a sensible
solution. There, the district court had dismissed the plaintiff’s suit against a
pipeline pursuant to the primary jurisdiction doctrine, concluding that FERC
was in a better position to determine the issues presented, which related to a
take-or-pay clause in a natural gas purchase contract. 37 On appeal, the panel


      37   837 F.2d at 200.
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                                      No. 15-30100
determined that appellate jurisdiction existed and then moved on to the
primary jurisdiction doctrine. In connection with that analysis, the panel spent
some time discussing FERC’s past inaction on similar claims, but it also found
that some recent developments indicated FERC might be newly willing to act
on such claims. 38 Thus, the court found, FERC’s possible inaction was not
sufficient to preclude the primary jurisdiction doctrine.
      Based on the other factors discussed, it appeared the panel was prepared
to affirm the district court’s dismissal order in full under the abuse of discretion
standard, but it instead directed the district court to modify its order to avoid
an indefinite delay:
      Finally, Wagner & Brown contends that the district court
      improperly deferred to FERC’s primary jurisdiction because the
      delay which will likely attend resolution of ANR’s claims will
      needlessly tie up payments owing to Wagner & Brown under the
      contract and will imperil Wagner & Brown financially. Wagner &
      Brown cannot seek redress elsewhere while waiting for FERC to
      act because the dismissal order and the determination of primary
      jurisdiction bar Wagner & Brown from pursuing its claims in
      another forum.

      Wagner & Brown’s argument is persuasive. If the district court is
      allowed to decline jurisdiction, and FERC’s past inaction on this
      issue continues, any recovery of damages from ANR could be so
      delayed as to be ineffective even if Wagner & Brown’s rights are
      eventually established. Yet, the doctrine of primary jurisdiction
      clearly indicates that the parties should seek the expertise of
      FERC. These aims are not necessarily incompatible. To ensure
      that Wagner & Brown’s rights will not be unreasonably
      delayed or lost, we direct that the district court modify its
      judgment by vacating its order of dismissal and
      substituting an order staying proceedings before it for a
      period of 180 days to afford FERC an opportunity to rule on
      ANR’s complaint. If no such ruling is forthcoming within
      that time, or such extension thereof as the district court is


      38   Id. at 204-05.
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                                          No. 15-30100
        persuaded would not irreparably harm Wagner & Brown’s
        rights and is required for good cause shown by FERC, then
        the district court should proceed to adjudicate the rights of
        the parties without further deference to the expertise of
        FERC. 39

        Given that all parties agree it could take years for FERC to resolve the
Integration Complaint, we conclude that the same solution is appropriate for
this case. A deadline will give FERC a reasonable opportunity to act on the
Integration Complaint without the costs inherent in an indefinite delay.
Accordingly, this action will be remanded to the district court with appropriate
instructions.

IV.     CONCLUSION

        For the reasons set out above, we VACATE the district court’s stay order
and REMAND to the district court to enter an order staying the proceedings
before it for a period of 180 days to allow FERC the opportunity to rule on the
Integration Complaint. If FERC fails to act within that 180 day period, then
the district court may extend the deadline if (1) FERC shows good cause, and
(2) the delay would not irreparably harm Occidental’s rights. Otherwise, the
district court should proceed to adjudicate the rights of the parties without
further deference to the expertise of FERC.




        39   Id. at 206 (citations omitted, emphasis added).
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