STANLEY U. ROBINSON, THIRD vs. DEPARTMENT OF PUBLIC UTILITIES.

ABRAMS, J. The plaintiff, Stanley U. Robinson, III, appeals from a judgment dismissing his amended complaint on the motion of the defendant, the Department of Public Utilities (DPU). The DPU based its motion, in part, on Mass. R. Civ. P. 12 (b) (1), 365 Mass. 755 (1974). Robinson asserts that it was error to dismiss his amended complaint on jurisdictional grounds. See Mass. R. Civ. P. 12 (b) (1). For the reasons stated herein, we conclude that the DPU did not err in denying Robinson full party status in D.P.U. 89-300. Because Robinson was not a full party to D.P.U. 89-300, he

Page 669

does not qualify as an aggrieved party in interest with regard to that proceeding. Under G. L. c. 25, Section 5 (1992 ed.), only an aggrieved party may appeal from a DPU decision. Consequently, a single justice correctly dismissed Robinson's appeal of the DPU's decision in D.P.U. 89-300 for lack of subject matter jurisdiction. See Mass. R. Civ. P. 12 (b) (1).

1. Facts. On December 20, 1989, Robinson filed a petition, which he later revised, to intervene in the New England Telephone and Telegraph Company's (NET's) rate proceeding docketed as D.P.U. 89-300. After reviewing Robinson's revised petition, a DPU hearing officer ruled that Robinson could participate in D.P.U. 89-300 as a "limited participant," but that Robinson was "not so sufficiently or specifically interested in th[e] matter as to warrant full participation as an intervener in the[ ] proceedings, given the complex and extensive nature of the proceedings and the limited time available to the Department to conclude hearings in th[e] matter." [Note 1] As a limited participant, Robinson was permitted to receive all documents filed by the parties, to conduct written discovery, to examine witnesses by means of written questions submitted to the hearing officer or to the Attorney General, to file written briefs or memoranda, and to testify at public hearings. The DPU granted a number of other parties full intervener status. [Note 2]

Page 670

Robinson appealed the hearing officer's ruling to a DPU commissioner. In a written decision, D.P.U. 89-300, the commissioner held that the hearing officer properly balanced Robinson's interests as an individual ratepayer against the DPU's need to conduct the proceeding in a complete, efficient, and orderly fashion. The commissioner rejected Robinson's claim that he was entitled to be a party because he would be the only effective advocate for his position on "metropolitan service." The commissioner noted that "the Attorney General, who is authorized by [G. L. c. 12, Section 11E (1992 ed.),] to represent utility customers, ha[d] indicated that he would participate extensively in th[e] case." The commissioner also rejected Robinson's claim that, with respect to Robinson, the hearing officer arbitrarily tightened the requirements for intervention in the DPU proceedings. The commissioner concluded that the hearing officer's decision to deny Robinson's petition to intervene as a full party and his decision to grant Robinson limited participant status were reasonable, not an abuse of discretion, and consistent with the applicable standards concerning intervention in DPU proceedings. See 220 Code Mass. Regs. Section 1.03 (1986). See also note 1, supra.

Robinson participated in the rate proceedings which followed to the extent authorized by the DPU. In June, 1990, the DPU issued its decision on the merits of NET's proposed rate system. Only Robinson sought judicial review of that decision.

Pursuant to G. L. c. 25, Section 5, Robinson filed an appeal with the single justice of this court. Thereafter, Robinson amended his claim of appeal. Robinson's amended complaint sought review of (1) the DPU's refusal to grant him full party status in D.P.U. 89-300 and (2) the rate decision itself. The DPU moved to dismiss the amended complaint pursuant,

Page 671

in part, to Mass. R. Civ. P. 12 (b) (1). The single justice allowed the DPU's motion. Robinson appeals.

2. Motion to dismiss for lack of subject matter jurisdiction. The DPU asserts that it correctly denied Robinson's petition to intervene as a full party in D.P.U. 89-300 and that, as a limited participant in D.P.U. 89-300, Robinson does not qualify as an aggrieved party in interest with regard to this proceeding and, therefore, cannot appeal the rate decision on the merits under G. L. c. 25, Section 5. [Note 3] The DPU argues that because Robinson lacked standing to appeal the rate decision, his appeal should be dismissed pursuant to Mass. R. Civ. P. 12 (b) (1) for lack of subject matter jurisdiction. In order to assess the correctness of this claim, we must determine whether the DPU's decision to limit Robinson's participation was correct.

Robinson asserts that in denying his petition to intervene while granting similar requests from other parties, the DPU acted in an arbitrary and capricious manner. He concludes that the DPU erred in denying him full participation. We do not agree. In its decision limiting Robinson's participation, the DPU explained that "those persons accorded full intervener status in this case represent large groups of ratepayers, have a major financial stake as large customers of NET's, and/or provide telecommunications services to the public using NET services." [Note 4] While Robinson claims to represent 381,870 metropolitan service customers and 117,043 Bay State East metropolitan service customers, Robinson does not have the right to speak for any NET ratepayer other than himself. In deciding to grant full party status to individuals

Page 672

who represent either a large NET customer or a large number of NET ratepayers, see note 2, supra, while denying such status to Robinson who does not, it cannot be said that the DPU acted in an arbitrary or capricious manner. [Note 5]

Robinson next argues that, even if the DPU's decision to deny his petition to intervene fully in this proceeding were sound and within the bounds of its discretion, it cannot be upheld because in denying his petition for full party status in this case, the DPU failed to demonstrate "reasoned consistency." We do not agree.

In Boston Gas Co. v. Department of Pub. Utils., 367 Mass. 92 (1975), "[a] party to a proceeding before a regulatory agency such as the [DPU] has a right to expect and obtain reasoned consistency in the agency's decisions. This does not mean that every decision of the [DPU] in a particular proceeding becomes irreversible in the manner of judicial decisions constituting res judicata, but neither does it mean that the same issue arising as to the same party is subject to decision according to the whim or caprice of the [DPU] every time it is presented. . . . In view of the [DPU's] prior pattern of treatment of this item, an unexplained deviation from that pattern cannot be permitted." Id. at 104-105.

Robinson asserts that the DPU violated the "reasoned consistency" mandate by denying his petition to fully intervene in D.P.U. 89-300 after granting his petition to so intervene in DPU consolidated cases 699/1041, which also concerned NET's metropolitan service rate service. Specifically, Robinson

Page 673

contends that the DPU could not legally deviate from the pattern it established in D.P.U. 699/1041 with respect to his intervention status in rate-setting proceedings concerning metropolitan service without explaining its reasons for doing so. Contrary to Robinson's assertions, D.P.U. 89-300, although concerned with metropolitan service tariff rates, was not just a continuation of D.P.U. 699/1041 but was concerned with different aspects of metropolitan service. In addition, the record does not establish any sort of "pattern" with respect to Robinson and his intervention status by allowing him full party status in D.P.U. 699/1041. By allowing Robinson to fully intervene in one earlier proceeding concerning metropolitan telephone service rates, the DPU did not establish a "pattern" of conduct which requires it to allow Robinson full party status in all metropolitan rate cases. [Note 6] Moreover, the requirement of "reasoned consistency" in Boston Gas Co., supra, means that any change from an established pattern of conduct must be explained. Id. at 105. It does not mean that the DPU may never deviate from its original position. The commissioner noted that there was a short statutory deadline and a large number of representative persons to be heard and that Robinson could adequately raise his issues as a limited participant.

Robinson also claims that the DPU should have permitted him to fully intervene in D.P.U. 89-300 based on his contention that the Attorney General might not focus on his particular issues of concern. However, the possibility that the Attorney General may not pursue all of a residential customer's concerns in a rate proceeding does not require the DPU to give that customer full party status. "[A] residential customer alleging no peculiar damage to himself . . . [has] no constitutional or statutory right to participate fully in the proceeding." Attorney Gen. v. Department of Pub. Utils., 390 Mass. 208, 217 (1983). See Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 673-674 (1975).

Page 674

The record does not reflect any peculiar damage to Robinson. There was no error.

Robinson further contends that the standards for participation were made "more stringent" for him. The commissioner noted that the persons accorded full intervener status represent "large groups of ratepayers, have a major financial stake as large customers of NET's, and/or provide telecommunications services to the parties using NET services." Robinson, as a single ratepayer, had to show "peculiar damage to himself." That standard was established prior to these proceedings and was not "arbitrarily tightened" in an effort to exclude Robinson as a full party. See Save the Bay, Inc. v. Department of Pub. Utils., supra at 673-674. The record does not support Robinson's claim that the DPU arbitrarily applied a higher, "stiffer" standard to him.

The record before the single justice was sufficient to determine that the DPU did not err in limiting Robinson's participation. Because there was no error in limiting Robinson's participation, there was no error in the dismissal of the appeal for lack of subject matter jurisdiction. See note 3, supra. See also Mass. R. Civ. P. 12 (b) (1).

Judgment affirmed.