TRANSAM. NAT. GAS. CORP. v. US Dept. of Interior
| Decision Date | 25 March 1987 |
| Docket Number | No. 5-118.,5-118. |
| Citation | 816 F.2d 689 |
| Parties | TRANSAMERICAN NATURAL GAS CORP. (formerly GHR Energy Corp.), Plaintiff-Appellant, v. UNITED STATES DEPT. OF INTERIOR, et al., Defendants-Appellees. |
| Court | U.S. Temporary Emergency Court of Appeals Court of Appeals |
Edward C. Cerny, III and James L. Marketos, Lane & Mittendorf, New York City, were on brief, for plaintiff-appellant.
Richard K. Willard, Asst. Atty. Gen., and Stephen E. Hart, Thomas Millet and Leslie K. Dellon, U.S. Dept. of Justice, Washington, D.C., were on brief, for defendants-appellees.
Before GARZA, THORNBERRY, and SEAR, Judges.
This case concerns the scope of the government's sovereign immunity and the applicability of a previous panel decision, Lunday-Thagard v. United States, 773 F.2d 322 (TECA 1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986) to the facts in the case at bar. For the reasons set out below, and especially the intervening decisions of the U.S. Claims Court, we agree with the district court's decision to dismiss the entire complaint for want of subject matter jurisdiction.
The federal government established a pricing and allocation program for the domestic oil industry during the energy crisis of the early 1970's. The Department of the Interior created a "royalty oil program" under the Outer Continental Shelf Lands Act (OCSLA), which authorized the Secretary of the Interior to grant oil and gas leases on offshore lands. 43 U.S.C. § 1331, et seq. This offshore royalty oil could be sold "for not more than its regulated price, or if no regulated price applies, not less than its fair market value." 43 U.S.C. § 1353(b)(1). Section 210 of the Economic Stabilization Act of 1970 (ESA), as amended (12 U.S.C. § 1904 note (1982)), authorized suits for "damages or other relief" against all "persons" for violations of the offshore royalty oil program. Section 211 of the ESA vested exclusive jurisdiction over cases arising under the ESA, and, later, the Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. § 751 et seq., in the district courts. The Temporary Emergency Court of Appeals (TECA) was also created to have exclusive jurisdiction of all appeals arising under the ESA and EPAA. § 211(b)(2) (ESA); § 754(a)(1) (EPAA); MGPC, Inc. v. Dept. of Energy, 673 F.2d 1277, 1280-81 (TECA 1982).
Plaintiff TransAmerican Natural Gas Corp. (TransAmerican)1 purchased crude oil from the United States which the government received as its royalty oil interest from offshore leases on the Outer Continental Shelf near Louisiana. TransAmerican had three contracts with the United States: 1) from February 1, 1973 to February 1, 1976 (No. 12445); 2) from September 16, 1973 to February 1, 1976 (No. 13781); and 3) from July 12, 1976 to July 1, 1980 (No. 15543). All three contracts began and ended before price controls were terminated pursuant to Executive Order on January 28, 1981.2 More than three years after the price controls were lifted, on March 28, 1984, TransAmerican sued the United States in the U.S. District Court for the Eastern District of Louisiana for damages resulting from "overcharges" and transportation payments under the purchase contracts for offshore royalty oil. TransAmerican alleges that the contracts already included the price of transporting the offshore royalty oil to the point of delivery on land; TransAmerican claims it paid more than the maximum lawful price since TransAmerican paid for the transportation of the oil from the offshore drilling stations in addition to the contract price. The Complaint filed by TransAmerican specifies five different theories of recovery: Count I alleges contract damages and administrative fees due under ESA and EPAA; Count II alleges the unlawful imposition of transportation charges; Count III characterizes the government's alleged conduct as an "unlawful exaction" contrary to the governing statutes and regulations; Count V asserts a claim for restitution on the facts presented. Count IV alleges a constitutional claim for the unlawful taking of property in violation of the Fifth Amendment.
The United States denies the substance of these allegations. Furthermore, the United States maintains that it has not waived its sovereign immunity in actions under the ESA and EPAA and, consequently, TransAmerican's suit should be dismissed for want of subject matter jurisdiction. A previous TECA case, Lunday-Thagard Co. v. United States, supra, held that ESA §§ 210 and 211 do not constitute a waiver of sovereign immunity for claims arising under the ESA and EPAA. The government urges stare decisis upon this panel. In the alternative, the United States argues that TransAmerican's claims are barred by the statute of limitations.3
The district court granted the government's motion to dismiss for lack of jurisdiction without entering formal findings or a memorandum opinion. TransAmerican appealed this decision both to TECA and to the Fifth Circuit. The Fifth Circuit has stayed consideration of TransAmerican's appeal4 until a decision by this TECA panel is rendered.
TransAmerican contends that Lunday-Thagard conflicts with the U.S. Supreme Court's decision in United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), and, therefore, Lunday-Thagard should not be followed. In the alternative, if the previous TECA decision of Lunday-Thagard is found to be controlling, TransAmerican argues that its transportation payments claim and Fifth Amendment takings claim should not have been dismissed. The government asserts that the failure to waive sovereign immunity is determinative of all issues raised.
A) In Lunday-Thagard Co. v. United States 773 F.2d 322 (TECA 1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986), this Court held that ESA §§ 210 and 211 do not waive the government's sovereign immunity from suit. TransAmerican attempts to distinguish and discredit the reasoning of the Lunday-Thagard panel and challenges it as contrary to the controlling Supreme Court case on sovereign immunity, United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983).
In Mitchell the Supreme Court held that the jurisdiction conferred by the Tucker Act contained an express waiver of sovereign immunity. Though the Tucker Act did not by its own terms create a substantive remedy, once "the Constitution, an Act of Congress, or any regulation of an executive department" can be fairly interpreted as mandating compensation by the federal government for damages sustained, then the United States is amenable to suit. Mitchell, 463 U.S. at 216, 103 S.Ct. at 2967; 28 U.S.C. § 1491 (Tucker Act). TransAmerican hangs its hat on the language in Mitchell explaining that the determination of sovereign immunity is "analytically distinct" from the evaluation of whether a substantive statute creates a damages remedy. Since TransAmerican's "contract-based" claims are a type of claim for which the Tucker Act affords a remedy, TransAmerican concludes that sovereign immunity does not bar this suit.
However, the analysis employed in Lunday-Thagard and other courts concerning the ESA and EPAA is to the contrary. While the Tucker Act does embody a waiver of sovereign immunity for claims against the United States committed to the Claims Court, Congress specifically placed jurisdiction of all EPAA and ESA claims in the district courts. ESA § 211. The U.S. Claims Court has held that in view of § 211, it has no jurisdiction to review actions brought under § 210. The Poole & Kent Co. v. United States, 566 F.2d 1189, 214 Ct.Cl. 836 (1977); Tipperary Refining Co. v. United States, 11 Cl.Ct. 572 (1987). TECA also previously rejected a claim that § 211 is a specific enactment which creates an exception to the jurisdiction of the Tucker Act. McCulloch Gas Processing Corp. v. Canadian Hidrogas Resources, Ltd., 577 F.2d 712, 715-16 (TECA) cert. denied, 439 U.S. 831, 99 S.Ct. 109, 58 L.Ed.2d 126 (1978). The Tucker Act does not supply a waiver of sovereign immunity for the ESA or actions under the EPAA. Therefore, the government's sovereign immunity remains inviolate; the United States is immune from suit for money damages allegedly caused by violations of the ESA and EPAA.
B) TransAmerican argues that if Lunday-Thagard is found to be controlling, then the takings claim and transportation payments claim should not have been dismissed. The Lunday-Thagard panel found that the transportation payments claim presented in the pleadings was a "non-EPAA" claim and, thus, not barred by sovereign immunity. 773 F.2d at 325. Another TECA case, Griffin v. United States, 537 F.2d 1130 (TECA), cert. denied, 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 286 (1976) held that ESA § 210 could provide a cause of action for an unconstitutional taking, though the Griffin panel found no claim actually presented. See also McCulloch Gas, supra, 577 F.2d at 716-17. TransAmerican asks us to reinstate the takings and transportation payment claims and transfer them to the U.S. Claims Court for further consideration.
The fact that the Lunday-Thagard panel characterized Lunday-Thagard's pleading as presenting a potential "non-EPAA" issue does not foreclose our review of TransAmerican's complaint. The Lunday-Thagard Court held only that the complaint as drafted could be construed as presenting a non-EPAA contract claim and the claim was remanded to the district court for consideration.5 In a recent consolidated decision concerning claims on a royalty oil contract similar to TransAmerican's, Tipperary Refining Co. v. United States (Case No. 283-86C) and DeMenno/Kerdoon v. United States (Case No. 299-86C) 11 Cl.Ct. 572 (1987), the U.S. Claims Court held that Fifth Amendment takings claims and other claims "related to" the ESA, EPAA and U.S. Dept. of Energy (DOE) pricing regulations arise only because of statutory claims precluded by sovereign immunity:
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IN RE DEPT. OF ENERGY STRIPPER WELL EXEMPTION LIT.
...its jurisdiction to review district court dismissals of an action for lack of jurisdiction. See, e.g., TransAmerican Natural Gas Corp. v. U.S. Department of Interior, 816 F.2d 689 (TECA), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987); Placid Oil Co. v. Ashland Oil, Inc., ......