Marine Petroleum Co. v. Champlin Petroleum Co.

• Decision Date: 25 February 1980
• Docket Number: No. 8-4.,8-4.
• Citation: 657 F.2d 1231
• Parties: MARINE PETROLEUM COMPANY, Plaintiff-Appellee, v. CHAMPLIN PETROLEUM COMPANY, Defendant-Appellee, and Charles W. Duncan (Successor to James R. Schlesinger) Secretary of Energy, Defendant-Appellant.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

657 F.2d 1231

MARINE PETROLEUM COMPANY, Plaintiff-Appellee, v. CHAMPLIN PETROLEUM COMPANY, Defendant-Appellee, and Charles W. Duncan (Successor to James R. Schlesinger) Secretary of Energy, Defendant-Appellant.

No. 8-4.

Temporary Emergency Court of Appeals.

Argued October 18, 1979.

Decided February 25, 1980.

John P. McKenna, Dept. of Energy, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., Dennis G. Linder, C. Max Vassanelli, and Stephanie Lachman Golden, of the Civil Division, Dept. of Justice, Washington, D. C., Paul G. Wallach and Alexander P. Humphrey IV, Dept. of Energy, Washington, D. C., and Neal J. Tonken, Paul M. Geier, and Dean S. Cooper, Dept. of Energy, Washington, D. C., were on the brief for defendant-appellant Secretary of Energy.

Cecil E. Munn, of Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, Tex., with whom Charles A. Zubieta and Kerry R. Brittain, of Champlin Petroleum Company, Fort Worth, Tex., Richmond C. Coburn, of Coburn, Croft & Putzell, St. Louis, Mo., and Donald B. Craven, of Miller & Chevalier, Washington, D. C., were on the brief for defendant-appellee Champlin Petroleum Company.

Michael J. Madigan, of Akin, Gump, Hauer & Feld, Washington, D. C., with whom R. Bruce McLean, Edward L. Rubinoff, and Leslie K. Dellon, Washington, D. C., of the same firm, were on the brief for plaintiff-appellee Marine Petroleum Company.

Before GRANT, BECKER and BONSAL, Judges.

WILLIAM H. BECKER, Judge.

I. Decision On Jurisdiction Of This Appeal

The defendant-appellant Secretary of Energy (DOE for Department of Energy hereinafter) filed this appeal from an order of the district court denying a motion of DOE for judgment on the pleadings, which motion sought dismissal of DOE as a party to a private action, commenced by plaintiff-appellee Marine Petroleum Company (Marine) against defendant-appellee Champlin Petroleum Company (Champlin) under § 210¹ of the Economic Stabilization Act (ESA), as amended. In that private action Marine alleged that Champlin had overcharged Marine in sales of petroleum products in violation of the Mandatory Petroleum Price Regulations, 10 C.F.R. Part 212, and Marine sought to recover the alleged overcharges from Champlin, treble damages, and to secure injunctive relief. Later, with leave of the district court, the Federal Energy Administration (FEA) (predecessor of DOE)² was added as a party defendant without limitation.

At the time the appeal of DOE was filed no final judgment had been entered in the private action. The district court, although requested to do so, did not authorize a discretionary interlocutory appeal under 28 U.S.C. § 1292(b).

In the absence of an appealable final judgment, or an order of the district court authorizing an appeal under § 1292(b), DOE contends that this appeal is from a final decision on a separate important collateral issue, as authorized by the construction of 28 U.S.C. § 1291 in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (Cohen) and other cases following the Cohen case. (DOE further stated, in its jurisdictional statement required by Rule 15(c) of the general rules of this Court, that it was authorized to file this appeal by the judicial review provisions of § 211 of ESA, 12 U.S.C. § 1904 note, incorporated by § 5(a) of The Emergency Petroleum Allocation Act of 1973 (EPAA) as amended, 15 U.S.C. § 754(a), and 28 U.S.C. § 1291, supra.)

DOE states that the district court joined DOE as a party to the private action by Marine against Champlin following the decision of the Temporary Emergency Court of Appeals (TECA) in Longview Refining Company v. Shore, 554 F.2d 1006, cert. denied 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977) (Longview); that in the private action in the district court no claim for relief is asserted by or against DOE or the United States; that DOE filed a motion seeking dismissal of DOE as an adversary party in a plenary role, on the grounds that no claim was stated for or against DOE, and therefore no case or controversy existed between DOE and either of the private parties to the action in the district court. DOE further states that extensive discovery permitted against DOE had cast DOE in the plenary role of an adversary party in the private action, inconsistent with the advisory role that TECA envisioned that DOE would assume under the Longview case, supra; that the motion of DOE for judgment on the pleadings was summarily denied on February 5, 1979; that DOE took this "immediate appeal" because the motion for dismissal of DOE had been finally determined by the district court; that, because in the private action no claims for relief by or against DOE were asserted, the question of the alleged error in denying the requested dismissal of DOE as a party will not be merged in the final judgment between the private parties; and therefore the order of the district court denying the dismissal of DOE as a party is appealable as a final decision on a collateral issue as defined in Cohen v. Beneficial Industrial Loan Corporation, supra, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

Further, in the statement by DOE required by Rule 15(c) of the general rules of this Court, DOE stated: that in the action below DOE had produced 20,000 pages of documents to Champlin pursuant to Rule 34, F.R.Civ.P., requests, had answered three sets of interrogatories and had produced a high ranking official of DOE for eleven days of deposition testimony; that the district court denied the motion of DOE to terminate or limit further discovery from DOE, and for reconsideration and stay of an order regarding an administrative subpoena issued by DOE and that only an appeal at this time would provide an opportunity for DOE to challenge the denial of the motion of DOE for judgment on the pleadings.

Finally, in the statement of appellant required by Rule 15(c), DOE states that there is no transcript of the proceedings below pertinent to the appeal of DOE.

We agree with DOE that this is an appeal from a final decision on a separate important collateral issue, authorized by 28 U.S.C. § 1291, supra, and the many cases following the Cohen case. The reasons for this decision follow.

Order of TECA Staying Proceedings In District Court Pending Appeal

On the same day the notice of appeal and the statement required by Rule 15(c) were filed by DOE, DOE also filed in this Court a motion, pursuant to Rule 8(a), F.R.Civ.P., for a stay of discovery "against" DOE pending appeal, to which was attached an "order" of the district court of February 5, 1979, (1) denying the motion of DOE for judgment of dismissal on the pleadings, (2) denying the motion of DOE to terminate or limit discovery from DOE and (3) denying the motion of DOE for reconsideration and stay of enforcement of the order of the district court of September 7, 1978, relating to an administrative subpoena issued by DOE. The order and memorandum of the district court of February 5, 1979 showed, among other things, that the motion for judgment of dismissal of DOE on the pleadings was denied by the district court "in light of Longview Refining Company v. Shore, 554 F.2d 1006 (Em.App.1977), cert. denied, 434 U.S. 1977 98 S.Ct. 126, 54 L.Ed.2d 98."

On March 9, 1979, Chief Judge Edward Allen Tamm of TECA entered an order granting the motion of DOE for a stay of discovery from DOE in the district court pending appeal.

Motion of Champlin to Dismiss Appeal And Dissolve Order of TECA Staying Discovery, And Order of TECA Denying That Motion, And Motion of Champlin to Reconsider

On March 12, 1979, appellee Champlin filed in this Court a motion to dismiss the appeal of DOE, and to dissolve the order staying discovery from DOE in the district court pending appeal. This motion contained statements of legal conclusions and allegations of fact concerning appealability of the challenged order, and the merits of the contentions of DOE.

On March 14, 1979, Chief Judge Tamm of TECA entered an order denying the motion of Champlin to dismiss the appeal of DOE and to dissolve the order staying discovery. Thereafter, on April 20, 1979, Champlin moved this panel to reconsider the order denying dismissal of the appeal. This motion to reconsider is now pending.

Grant of Motion of DOE To Suspend Briefing Pending Decision in Dyke v. Gulf Oil Corporation And Consolidated Cases

On March 26, 1979, DOE moved to suspend briefing in this appeal until the appeals in Dyke v. Gulf Oil Corporation and consolidated cases, said to involve at least one of the issues in this appeal, were decided.

This motion of DOE was granted on April 4, 1979, by two judges of this panel in the absence of one of the judges. Since then the Dyke case and consolidated cases have been decided. Dyke v. Gulf Oil Corporation, 601 F.2d 557 (Em.App.1979).

Motion of DOE for Summary Reversal

On June 25, 1979, purporting to act under Rule 33 of the general rules of this Court, DOE filed a motion for summary reversal, contending that TECA held in Dyke v. Gulf Oil Corporation, supra, 601 F.2d 557 (Em. App.1979) that the case of Longview Refining Company v. Shore, supra, 554 F.2d 1006 (Em.App.1977), does not authorize joinder of DOE as a party in private damage actions under § 210 of ESA when the plaintiff asserts no claim against DOE. This motion for summary reversal is pending.

Additional Detail of Proceedings in the District Court and By DOE

This action was brought in 1975 by plaintiff-appellee Marine against defendant-appellee Champlin in the United States District Court for the Eastern District of Missouri. In it Marine alleged that Champlin charged, for gasoline sold to Marine, prices in excess of the "maximum allowable price," as defined by 10 C.F.R. § 212.82. For relief, Marine sought (a) a declaratory judgment that Champlin charged Marine prices in excess of those permitted by the applicable maximum price regulations, (b) a permanent injunction to prevent...