Mapco Inc. v. Carter

• Citation: 573 F.2d 1268
• Decision Date: 14 March 1978
• Docket Number: No. 10-13.,10-13.
• Parties: MAPCO INC. and Thomas A. Manhart, Appellants-Plaintiffs, v. Jimmy CARTER, President, James R. Schlesinger, Secretary of Energy, and Department of Energy, Appellees-Defendants.
• Court: U.S. Temporary Emergency Court of Appeals

573 F.2d 1268

MAPCO INC. and Thomas A. Manhart, Appellants-Plaintiffs, v. Jimmy CARTER, President, James R. Schlesinger, Secretary of Energy, and Department of Energy, Appellees-Defendants.

No. 10-13.

Temporary Emergency Court of Appeals.

Argued November 18, 1977.

Decided March 14, 1978.

As Amended March 27, 1978.

Certiorari Denied June 19, 1978.

COPYRIGHT MATERIAL OMITTED

Frederic Dorwart, Holliman, Langholz, Runnels & Dorwart, Tulsa, Okl. with whom David W. Holden and J. Michael Medina, Tulsa, Okl., of the same firm, and Duke R. Ligon and John H. Buck of Bracewell & Patterson, Washington, D. C., were on the brief for the plaintiffs-appellants.

John N. Hanson, Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., and Dennis G. Linder, Washington, D. C., were on the brief for the defendants-appellees.

Before CHRISTENSEN, BECKER and REGAN, Judges.

Certiorari Denied June 19, 1978. See 98 S.Ct. 3090.

BECKER, Judge:

In December 1975, this action was filed by plaintiff Mapco Inc. against Gerald R. Ford, then President of the United States (President), The Federal Energy Administration (FEA), and Frank G. Zarb, then Administrator of the FEA (Administrator). In March 1976, Thomas A. Manhart (Manhart) was permitted to intervene in the action as plaintiff. Pursuant to Rule 25(d), F.R.Civ.P., the District Court substituted in their official capacities Jimmy Carter, successor to Gerald R. Ford, as President, and John F. O'Leary, successor to Frank G. Zarb, as Administrator.

As of October 1, 1977, pursuant to the Department of Energy Organization Act, (DOE Act), P.L. 95-91, 91 Stat. 565, 42 U.S.C. § 7101, et seq., and Executive Order 12009 (42 F.R. 46267), FEA and its functions were transferred to the Department of Energy (DOE) of which James R. Schlesinger is Secretary. Pursuant to Rule 43(c), F.R.A.P., DOE and James R. Schlesinger are hereby substituted as appellees and defendants for FEA and Administrator O'Leary.

Since this action was certified to this Court, rather than appealed, the parties will be referred to as plaintiffs and defendants. Cf. Griffin v. United States (Em.App.1976) 537 F.2d 1130, l.c. 1133.

It is admitted that plaintiff Mapco Inc. is a Delaware corporation, with its principal place of business in the Northern District of Oklahoma, engaged in the business of producing and selling crude oil to refineries and other purchasers in the States of Oklahoma, Utah, Kansas, and Wyoming; that intervening plaintiff Manhart is a citizen of Oklahoma, residing in the Northern District thereof, and engaged in the business of exploring for and developing reserves of crude oil, extracting and marketing such crude oil to refineries and other purchasers in Oklahoma and other parts of the United States (Defendants' Br. 2).

In this action, plaintiffs sought to enjoin the defendants from implementing and enforcing the provisions of Section 401(a) adding new Section 8(a) of the Energy Policy and Conservation Act of 1975 (Energy Policy Act), P.L. 94-163, 89 Stat. 871, 42 U.S.C. § 6201, et seq., and 15 U.S.C. § 751, et seq., to the Emergency Petroleum Allocation Act of 1973 (Allocation Act),¹ P.L. 93-159, 87 Stat. 628, 15 U.S.C. § 751, et seq. The Energy Policy Act amended the Allocation Act and the Energy Conservation and Production Act (Energy Act), P.L. 94-385, 90 Stat. 1125, 42 U.S.C. § 6801, et seq.

Section 401(a) of the Energy Policy Act, attacked by the plaintiffs, is found in Part A, Title IV thereof. As stated above, Section 401(a) added to the Allocation Act as a new Section 8(a), among others. Section 8(a) is codified as 15 U.S.C. § 757. Although plaintiffs refer to 15 U.S.C. § 757 as § 401(a), and the District Court and defendants refer to it as Section 8(a) of the Allocation Act, for clarity we will refer to the challenged legislation as 15 U.S.C. § 757, or as § 757, except in quoted material.

In January 1976, counsel for the defendants filed a motion to dismiss for Gerald R. Ford, then President of the United States, on the grounds (1) that he is not subject to the jurisdiction of the district court, and (2) that he is not a necessary party to the action (R. 29).

Plaintiff Mapco propounded first written interrogatories to the defendants in January 1976 (R. 19) which were answered by the defendants (R. 50). Thereafter, in February 1976, plaintiff Mapco propounded to the defendants second written interrogatories (R. 81) which were answered in April 1976 by the defendants (R. 106), who treated some of the interrogatories as requests for admissions under Rule 36 of the Federal Rules of Civil Procedure.

On June 2, 1976, plaintiffs filed a motion for summary judgment supported by affidavits. In July 1976, defendants moved to strike (R. 180) parts of the supporting affidavits of Robert E. Thomas (R. 130) and T. A. Manhart (R. 132), and Exhibit B to the affidavits of Burnet Vance Davis (R. 135), Lawrence J. Gitman (R. 147), and David A. Huettner (R. 162), on the grounds that they contained opinions, conclusions, argument, speculation, and were objectionable because they contained irrelevant, immaterial, and inadmissible evidence. Defendants thereby recorded their legal contention that the challenged portions of these affidavits did not state "facts established" because "defendants have submitted no controverting evidence" as contended by plaintiffs (Plaintiffs' Br. 2).

On May 10, 1976, the defendants filed a motion for dismissal or, in the alternative, for summary judgment. (The motion of plaintiffs for summary judgment and of defendants for dismissal or, in the alternative, for summary judgment, and briefs in support thereof were not included in the Record on Appeal. Copies were supplied at the request of this Court.)

Certification by the District Court of Constitutional Questions to the Temporary Emergency Court of Appeals

In September 1977, before the determination of any of the pending motions, the district court entered an Order certifying constitutional questions to the Temporary Emergency Court of Appeals.

In that Order the following was recited:

"The Court finds that this litigation raises substantial constitutional questions, in that plaintiffs contend that Section 8(a) is constitutionally infirm under the Fifth Amendment because, on its face, it does not provide a nonconfiscatory standard for regulating the price of domestically produced crude oil; and because, as applied it confiscates plaintiffs' property without just compensation and due process of law. Plaintiffs also contend that Section 8(a) violates the Ninth Amendment right to trust the Federal Government and rely on the integrity of its pronouncements. Accordingly, plaintiffs ask the Court to enjoin the implementation and enforcement of Section 8(a) of the Allocation Act.

"Section 211(c) of the Economic Stabilization Act of 1970, found in 12 U.S.C. § 1904 (Note) provides:

`In any action commenced under this title in any district court of the United States in which the court determines that a substantial constitutional issue exists, the court shall certify such issue to the Temporary Emergency Court of Appeals. Upon such certification, the Temporary Emergency Court of Appeals shall determine the appropriate manner of disposition which may include a determination that the entire action be sent to it for consideration or it may, on the issues certified, give binding instructions and remand the action to the certifying court for further disposition.' (Emphasis supplied)

"Section 211(c) of the Economic Stabilization Act, has been incorporated in Section 5(a)(1) of the Allocation Act, 15 U.S.C. § 754(e)a(1), as amended by Section 452 by the EPCA, and controls the jurisdiction of this Court to decide the constitutional questions raised by the plaintiffs in this action.

"This Court hereby certifies all constitutional issues raised by the parties in their pleadings and memoranda filed in this Court to the Temporary Emergency Court of Appeals for appropriate disposition. National Petroleum Refiners Association v. Dunlop, 486 F.2d 1388 (TECA 1973)" (R. 210-211).

Exclusive Jurisdiction of Temporary Emergency Court of Appeals

The provisions of P.L. 92-210, December 22, 1971, amending § 211(c) of the Economic Stabilization Act of 1970 (Stabilization Act), August 15, 1970, 12 U.S.C. § 1904, Note, creating the Temporary Emergency Court of Appeals, and providing for its exclusive jurisdiction have been preserved despite the expiration of the Stabilization Act on April 30, 1974, through subsequent legislation, including the recent DOE Act, P.L. 95-91, Title V, § 502, the applicable earlier § 5(a) of the Allocation Act, and §§ 461, 523(b), and 401(8h) of the Energy Policy Act. By virtue of the foregoing statutory authorities, exclusive jurisdiction to determine the constitutional questions certified in this action is vested in this Court.

Issues Presented

Plaintiffs contend that the issues presented for review are:

1. Whether 15 U.S.C. § 757 (referred to as Section 401(a) by plaintiffs) of the Energy Act violated the Ninth Amendment right to trust the federal government and rely on the integrity of its pronouncements.

2. Whether 15 U.S.C. § 757 of the Energy Act is unconstitutional because it fails to provide a non-confiscatory standard for price regulation.

3. Whether 15 U.S.C. § 757 of the Energy Act is unconstitutional because there is no real and substantial relation between the price rollback mandated by § 401(a) and any proper legislative purpose (Plaintiffs' Br., unnumbered page 1).

According to the defendants, the issues presented, in inverse order, are:

1. Whether the Allocation Act, as amended by the Energy Act, on its face, violates the Fifth Amendment by failing to provide proper standards for regulating the prices of domestically produced crude oil.

2. Whether the application of 15 U.S.C. § 757 (referred to as Section 8(a) by the defendants) of the amended Allocation Act to the...