United States: Fifth Circuit Overturns Lower Court's Use Of Primary Jurisdiction Doctrine To Order Indefinite Stay While Awaiting FERC PURPA Decision; Orders 180-Day Stay Instead

On January 4, 2016, the United States Court of Appeals for the Fifth Circuit (the "Fifth Circuit") vacated a federal district court's indefinite stay of proceedings before it involving disputed Public Utility Regulatory Policies Act ("PURPA") issues while awaiting administrative action from FERC, and instead ordered a definite period of 180 days for FERC to act.

The district court had supported its indefinite stay by applying the doctrine of primary jurisdiction—a doctrine that permits a federal court with non-exclusive jurisdiction over a proceeding to, under appropriate circumstances, defer to another forum (such as an administrative agency like FERC) that also has non-exclusive jurisdiction over the issue, based on the court's determination that the benefits of obtaining aid from the other forum outweigh the need for expeditious litigation. While the Fifth Circuit found the doctrine applicable in the circumstances presented, it determined that the indefinite nature of the stay would unfairly harm the interests of one of the litigants.

The underlying facts of the case center around Occidental Chemical Corporation ("Occidental"), the owner of a Qualifying Facility ("QF") under PURPA in Entergy Louisiana, LLC's ("Entergy") service territory. As the owner of a QF with no direct access to a competitive wholesale market, Occidental historically had the ability under PURPA to compel Entergy to purchase the output of Occidental's QF at Entergy's avoided cost, among other things.

However, in 2013, Entergy fully integrated its transmission facilities into the Midcontinent Independent System Operator, Inc. ("MISO")—a Regional Transmission Organization operating a competitive wholesale market. On January 17, 2013, Occidental filed a complaint at FERC against MISO (the "2013 Complaint") claiming, among other things, that Entergy and MISO planned to integrate QFs within Entergy's service territory into MISO, thereby stripping those QFs of many of the rights they enjoyed under PURPA by virtue of not having direct access to an organized wholesale market. While Occidental had sought fast-track processing of the 2013 Complaint, FERC took no action aside from a March 6, 2014 letter order requiring Occidental to supplement the record with additional information.

On February 5, 2014, Occidental filed another complaint with FERC against the Louisiana Public Service Commission ("LPSC"), contesting a January 9, 2014 LPSC order that, according to Occidental, effectively adopted Entergy's plan for integrating the QFs in its service territory into MISO. Occidental requested that FERC initiate an enforcement action against the LPSC to enforce certain provisions of PURPA that Occidental claimed had been violated by the LPSC's January 9, 2014 order. On April 4, 2014, FERC issued a notice of its intent not to bring such an action, noting the ongoing proceeding initiated by the 2013 Complaint against MISO. FERC stated that "[o]ur 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."

Occidental subsequently filed an action in federal district court against Entergy, the LPSC, and the LPSC Commissioners (the "Defendants"). In response, the Defendants moved for a stay of the case pending an administrative determination by FERC in the 2013 Complaint proceeding. In support of their motion, the Defendants invoked the doctrine of primary jurisdiction—a doctrine that permits a federal court with non-exclusive jurisdiction over a proceeding to, under appropriate circumstances, defer to another forum (such as an administrative agency like FERC) that also has non-exclusive jurisdiction over the proceeding, based on the court's determination that the benefits of obtaining aid from the other forum outweigh the need for expeditious litigation.

On January 20, 2015, the district court granted the Defendants' motion, and stayed the case until FERC issued a decision in the 2013 Complaint proceedings. In its opinion, the court stated that while it agreed with Occidental's position that the claims must ultimately be decided by the court, "a determination by FERC as to the MISO issues upon which Plaintiff's claims are based would be helpful to the Court." Occidental appealed.

In its January 4, 2016 opinion, the Fifth Circuit stated that 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." The court rejected Occidental's primary argument that, under judicial precedent, the primary jurisdiction doctrine is not available for actions under PURPA because Congress had "coordinated" work between FERC and the federal courts by: (i) permitting FERC to bring an enforcement action first; and (ii) permitting a private party to subsequently file an enforcement action in federal court, in the event that FERC declined to bring an enforcement action. The court noted that while Congress had indeed "coordinated" work between FERC and federal courts in drafting PURPA, the statute did not address the power to stay proceedings, and did not preclude application of the primary jurisdiction doctrine.

While the Fifth Circuit rejected Occidental's argument, and found the exercise of primary jurisdiction appropriate, it noted that FERC's resolution of the issues initiated by the 2013 Complaint could take years, and found that the indefinite stay granted by the district court pending such resolution would be inappropriate. Accordingly, the Fifth Circuit vacated the lower court's indefinite stay, and remanded the case back to the district court with instructions to enter an order staying the proceedings before it for a period of 180 days, to allow FERC the opportunity to rule on the issues stemming from the 2013 Complaint. In the event that FERC failed to act, the Fifth Circuit stated that the district court could extend the deadline if: (i) FERC showed good cause; and (ii) the delay would not irreparably harm Occidental's rights. In the absence of such a demonstration, the Fifth Circuit instructed the district court to "proceed to adjudicate the rights of the parties without further deference to the expertise of FERC."

A copy of the Fifth Circuit's opinion may be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.