TOTAL Files Motion to Expedite Appeal in Fifth Circuit

On October 3, TOTAL filed a motion for expedited consideration of its appeal to the Fifth Circuit in its declaratory judgment action against FERC.  TOTAL requested that the court enter an accelerated briefing schedule, that preparation of the record on appeal be expedited, and that the case be calendared for oral argument as soon as practicable after completion of briefing.  According to TOTAL, this expedited treatment is necessary to spare TOTAL—and taxpayers—the costs of an unlawful agency adjudicatory proceeding before a FERC administrative law judge for FERC’s market manipulation case against TOTAL.

On October 7, FERC filed an opposition to TOTAL’s motion to expedite.  FERC argues that TOTAL’s motion involves no request for injunctive relief or any colorable claim of irreparable injury that would qualify the case for calendaring priority under the Fifth Circuit’s rules.  Moreover, FERC points out TOTAL’s own unhurried manner in seeking appeal of the final district court judgment issued almost three months ago.  Thus, FERC requests that the court deny TOTAL’s motion to the extent that it would truncate FERC’s time to file its brief, or otherwise preclude FERC from seeking extensions of its briefing deadline as circumstances may require.

On October 10, TOTAL filed a reply.  TOTAL argues that expedited briefing and argument is necessary because the government is not enjoined from forcing TOTAL through the burdensome and expensive administrative adjudication that this lawsuit challenges as unlawful.  According to TOTAL, the sole countervailing interest is FERC’s desire for a mere nine additional days (with the option to seek more) to brief an appeal.  TOTAL therefore requests the court to expedite its appeal, or at a minimum, bar extensions of the due dates set by the court.