Cities Service Co. v. Department of Energy, 3-33.

• Decision Date: 14 July 1983
• Docket Number: No. 3-33.,3-33.
• Citation: 715 F.2d 572
• Parties: CITIES SERVICE COMPANY, Applicant for Intervention-Appellant, v. DEPARTMENT OF ENERGY, et al., Defendants-Appellees, United States of America, Counterclaimant-Appellee, and Pennzoil Company, Plaintiff-Appellee.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

715 F.2d 572

CITIES SERVICE COMPANY, Applicant for Intervention-Appellant, v. DEPARTMENT OF ENERGY, et al., Defendants-Appellees United States of America, Counterclaimant-Appellee, and Pennzoil Company, Plaintiff-Appellee.

No. 3-33.

Temporary Emergency Court of Appeals.

Argued May 18, 1983.

Decided July 14, 1983.

Rehearing and Rehearing Denied August 22, 1983.

Douglas G. Robinson, of Skadden, Arps, Slate, Meagher & Flom, Washington, D.C., with whom Erica A. Ward and Richard L. Brusca, Washington, D.C., and Darrel A. Kelsey, Gerald H. Barnes and John A. Rayll, Jr. of Cities Service Company, Tulsa, Okl., were on brief for Cities Service Co., applicant for intervention-appellant.

Eric J. Fygi, Dept. of Energy, Washington, D.C., with whom Thomas C. New-kirk, Larry P. Ellsworth, Barry J. Sheingold, Daniel F. Shea, and Dean S. Cooper, Dept. of Energy, Washington, D.C., were on brief for the United States of America and Dept. of Energy, defendants-appellees.

John P. Mathis of Baker & Botts, Washington, D.C., for Pennzoil Co., plaintiff-appellee.

Kenneth L. Bachman, Jr., John G. Finnernan, Jr., of Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., Jeanette M. Thomas, Los Angeles, Cal., of counsel; and Joseph C. Bell, Mary Anne Sullivan of Hogan & Hartson, Washington, D.C., B.J. Zimmerman, and Kendor P. Jones, Fort Worth, Tex., of counsel, filed a brief on behalf of amici curiae.

Before BONSAL, WEIGEL and MAXWELL, Judges.

Rehearing and Rehearing En Banc Denied August 22, 1983.

PER CURIAM:

Cities Service Co. ("Cities") appeals from a decision of the United States District Court for the District of Delaware (Stapleton, J.), entered January 4, 1983, denying Cities' application to intervene in an action brought by Pennzoil Co. against the Department of Energy ("DOE"), and from an order of the same court, entered January 19, 1983, approving an "Agreed Final Judgment" which settles DOE's counterclaim against Pennzoil in that action. We affirm the district court's decision to deny Cities' application to intervene and dismiss Cities' appeal from the order approving the Agreed Final Judgment.

In an earlier opinion, which describes the background of the case, we affirmed the district court's decision to grant summary judgment to DOE on Pennzoil's claim against it. Pennzoil Co. v. DOE, 680 F.2d 156 (Temp.Em.App.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 841, 74 L.Ed.2d 1032 (1983). That claim challenged the validity of a 1975 ruling of the Federal Energy Administration as applied to crude oil production at the Walker Creek Field operated by Pennzoil in Arkansas. DOE's counterclaim, which the district court had not yet addressed at the time of our earlier opinion, was brought under section 209 of the Economic Stabilization Act ("ESA"), 12 U.S.C. § 1904 note, and alleged violations by Pennzoil of price controls governing the sale of crude oil. In settlement of the counterclaim, the Agreed Final Judgment requires Pennzoil to pay $14,750,000 to the United States Treasury.

In its decision of January 4, 1983, the district court found that Cities had no "interest" within the meaning of Fed.R.Civ.P. 24(a)(2)¹ in the litigation between Pennzoil and the DOE, pointing out that Cities could sue Pennzoil for damages in a separate proceeding under section 210 of the ESA. Accordingly, the court denied Cities' application to intervene. Cities contends that, contrary to the district court's finding, it has an interest in the funds to be paid to the Treasury by Pennzoil, and that its interest would be impaired if it were not permitted to intervene. We disagree.

Section 209 of the ESA, the basis of DOE's counterclaim, authorizes the Attorney General to bring an action to enjoin practices which violate the regulations promulgated by DOE under the ESA. It further provides that: "In addition to such injunctive relief, the court may also order restitution of moneys received in violation of any such ... regulation." Section 210 authorizes treble damage suits by "any person suffering legal wrong" as a result of practices which violate the regulations.

While sections 209 and 210 have a common purpose—the enforcement of DOE's regulations—they vindicate different rights. "Actions by the United States under ESA § 209 are taken to enforce public, not private, rights." Citronelle-Mobile Gathering, Inc. v. Edwards, 669 F.2d 717, 722 (Temp.Em.App.), cert. denied, ___ U.S. ___, 103 S.Ct. 172, 74 L.Ed.2d 141 (1982). By contrast, the action authorized by section 210 "is intended to be brought by private persons against other private persons." S.Rep. No. 92-507, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Ad. News 2283, 2291. We have previously warned...