Ashland Oil Co. of Cal. v. Union Oil Co. of Cal.

• Decision Date: 12 December 1977
• Docket Number: No. 9-38.,9-38.
• Citation: 567 F.2d 984
• Parties: ASHLAND OIL COMPANY OF CALIFORNIA, Plaintiff-Appellant, v. UNION OIL COMPANY OF CALIFORNIA and Department of Energy, Defendants-Appellees.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

567 F.2d 984

ASHLAND OIL COMPANY OF CALIFORNIA, Plaintiff-Appellant, v. UNION OIL COMPANY OF CALIFORNIA and Department of Energy, Defendants-Appellees.

No. 9-38.

Temporary Emergency Court of Appeals.

Argued October 28, 1977.

Decided December 12, 1977.

Alfred Lawrence Toombs, Batzell, Nunn & Bode, Washington, D. C., with whom William H. Bode, Washington, D. C., and Robert L. Dunn, Bancroft, Avery & McAlister, San Francisco, Cal., were on the brief for plaintiff-appellant.

Moses Lasky, Brobeck, Phleger & Harrison, San Francisco, Cal., with whom John E. Munter and Forrest A. Hainline, III, San Francisco, Cal., were on the brief for the defendant-appellee Union Oil Co. of California.

Robert E. Richardson, Dept. of Justice, Washington, D. C., with whom Barbara Allen Babcock, Asst. Atty. Gen., and Gerald D. Freed, Washington, D. C., were on the brief for the defendant-appellee Dept. of Energy.

Before CARTER, CHRISTENSEN and JAMESON, Judges.

CHRISTENSEN, Judge:

The question presented in this case involves the period of limitations to be applied to an action for overcharges on sales of petroleum products.

On March 23, 1977, plaintiff-appellant, Ashland Oil Company of California ("Ashland"), filed suit in the United States District Court for the Northern District of California against Union Oil Company of California ("Union") and the Federal Energy Administration ("FEA")¹ alleging that Union charged prices for petroleum products sold to Ashland during the period of January 1975 to February 1976 in excess of those permitted by FEA's Mandatory Petroleum Price Regulations, 10 C.F.R. Part 212.² Ashland's action is based on Section 5(a)(1) of the Emergency Petroleum Allocation Act of 1973 ("EPAA"), 15 U.S.C. § 754(a)(1), which incorporates § 210 of the Economic Stabilization Act, 12 U.S.C. § 1904 note.³ Our appellate jurisdiction as to such actions rests in view of 15 U.S.C. § 754(a)(1), supra, upon § 211(b)(2) of ESA, as amended.

Union is a refiner of motor gasoline and other petroleum products. Ashland alleges that it belonged to the class of purchaser composed of non-branded independent marketers which are independent wholesale purchaser-resellers, and that Union placed Ashland into a different class of purchaser and thereby charged it prices up to and including February, 1976, at least 5.5 cents higher than those charged to other members of the purchaser class to which Ashland actually belonged. The complaint is divided into two claims or "causes of action", the first for the recovery of actual overcharges, the second for treble damages on the theory of "intentional" overpricing, with attorney's fees sought on each claim. On August 16, 1976, Ashland filed with Union a statutory claim for refund pursuant to the last sentence of § 210(b). The ninety day waiting period elapsed without a refund from Union. Ashland commenced this action on March 23, 1977, more than a year after its claims accrued.⁴

FEA filed an answer denying knowledge or information sufficient to form a belief as to the truth of Ashland's critical allegations of fact and Union filed a motion to dismiss for failure of the complaint to state a claim on which relief could be granted, F.R.Civ.P. 12(b)(6).⁵ Union's motion was based on the contention that Ashland's action for both actual overcharges and treble damages was barred as a matter of law by the California statute of limitations, section 340(1), California Code of Civil Procedure. That statute prescribes a one year statute of limitations for "an action upon a statute for a penalty or forfeiture."⁶ Union's motion was granted by the trial court on June 23, 1977, and on June 24, 1977, final judgment was entered dismissing Ashland's action in its entirety with prejudice, costs to Union.⁷ Ashland filed a timely notice of appeal to this court on July 22, 1977.

It is contended in support of this appeal that the district court erred in dismissing the entire action because California's three year statute of limitations should be held to govern at least the claim for the recovery of actual overcharges as "an action upon a liability created by statute, other than a penalty of forfeiture," Cal.C.C.P. 338(1). In the alternative, Ashland would have this court apply California's three year statute of limitations to both counts of its complaint. Finally, Ashland argues that the doctrine of fraudulent concealment sustains both counts of the complaint, since Union allegedly "concealed" the existence of the improper classification until within a year of the filing of its complaint. We first address the latter point.

I

Even though California's statute of limitations applies in this case, any issue relating to accrual and tolling is governed by federal law. Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 91 L.Ed. 1602 (1946); Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1940). Where acts causing injury are fraudulently concealed from the injured party or where fraud furnishing the basis of an action is of such nature as to conceal itself, a statute of limitations is tolled until the injured party discovers, or with due diligence could have discovered, the injury. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1945); Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875), supra ; American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713. It is clear, however, that mere ignorance on the part of a plaintiff is not sufficient. Wood v. Carpenter, 101 U.S. 135, 143, 25 L.Ed. 807 (1879).

In support of its claim of fraudulent concealment Ashland argues that by their very nature, violations of the type alleged herein are not self-revealing and that it had insufficient knowledge of the foundations of a claim to start the statute running.⁸

Appellant has misconceived the governing law. To support the result contended for plaintiff would have to establish either that the defendant fraudulently concealed the conduct forming the basis of the claim or that the defendant's conduct by reason of its fraudulent nature was inherently self-concealing. The fact that FEA pricing regulations involve complicated accounting processes and that price information resulting from those processes is not "self-revealing" is not enough to sustain a claim of fraudulent concealment, nor is any mere failure on Union's part to publish price information that it was not required otherwise to publish.

We do not determinatively fault Ashland's position merely because of its failure to plead with particularity the circumstances constituting the claimed fraudulent concealment, or even to mention such a claim in its complaint.⁹ The trial court considered as on summary judgment as we heretofore observed the affidavit of Ashland's president in resistance to the motion to dismiss, and any defective pleading could be deemed supplemented for the purposes of our present inquiry by the substance of this collateral showing. Ashland's trouble on the point is that the affidavit not only failed to support Ashland's position on the issue of fraudulent concealment but tended affirmatively to further demonstrate its lack of merit.¹⁰ No tolling having occurred in view of the uncontroverted facts of record, we proceed to consider the period or periods of limitation applicable to plaintiff's complaint.

II

Neither the EPAA nor § 210 of the ESA contains a limitation provision. Generally in the absence of a statutory limitation provided by Congress, a federal court will apply the most analogous state law of limitations. E. g., Runyon v. McCrary, 427 U.S. 160, 179-80, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (Civil Rights Act of 1866); Auto Workers v. Hoosier Corp., 383 U.S. 696, 701-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) (Labor Management Relations Act); O'Sullivan v. Felix, 233 U.S. 318, 322-23, 34 S.Ct. 596, 58 L.Ed. 980 (1914) (Civil Rights Act of 1871); Chattanooga Foundry & Pipeworks v. Atlanta, 203 U.S. 390, 397, 27 S.Ct. 65, 51 L.Ed. 241 (1906) (Sherman Act); Campbell v. Haverhill, 155 U.S. 610, 614-16, 39 L.Ed. 280 (1895) (Patent Act). However, in determining whether a state statute of limitations will be applied to a federal right, courts must be guided by the public policy expressed by Congress. Thus, there need not be applied a state limitation period which the court finds to be inconsistent with the federal policy involved.

The Supreme Court recently stated in Occidental Life Insurance Co. v. EEOC, 432 U.S. 335, 367, 97 S.Ct. 2447, 2455, 53 L.Ed.2d 402 (1977), in refusing to limit the rights of the government by a state statute of limitations:

But the Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state laws will not frustrate or interfere with the implementation of national policies. "Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide." Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1974). State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute.

As with the equal employment opportunity statute with which Occidental Life was concerned, there is strong national policy expressed in the EPAA. But dissimilarly, EPAA contains no indication that expressed national policy is inconsistent with any fixed period of limitation borrowed from state law, nor does our case directly involve enforcement of a public right by governmental action as did Occidental Life. There is no suggestion whatever in the statutory structure undergirding the claims before us that Congress intended no limitation provisions to apply or that state statutes of limitations should not be looked to...