Dyke v. Gulf Oil Corp.
| Decision Date | 05 June 1979 |
| Docket Number | No. 9-41 to 9-43.,9-41 to 9-43. |
| Parties | Richard W. DYKE, d/b/a Western Stations Co., Plaintiff, v. GULF OIL CORPORATION, a Pennsylvania Corporation, Defendant, and Department of Energy, Defendant-Petitioner. COLVIN OIL COMPANY, an Oregon Corporation, Plaintiff, v. GULF OIL CORPORATION, a Pennsylvania Corporation, Defendant, and Department of Energy, Defendant-Petitioner. Kenneth O. OWEN, d/b/a Truck Towne Station, Plaintiff, v. ATLANTIC RICHFIELD COMPANY, a corporation, Defendant, and James R. Schlesinger, Secretary of Energy, Defendant-Petitioner, Champlin Petroleum Company, amicus curiae. |
| Court | U.S. Temporary Emergency Court of Appeals Court of Appeals |
John P. McKenna, Washington, D. C., with whom Ted P. Gerarden and Arthur E. Gowran, Dept. of Energy, and C. Max Vassanelli and Stephanie Golden, Dept. of Justice, Washington, D. C., were on brief for defendant-petitioner Government.
Neva T. Campbell, Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., was on brief for plaintiffs Richard W. Dyke and Colvin Oil Co.
Catherine C. McCulley, with whom J. Ronald Sandberg, Gulf Oil Corp., Houston, Tex., were on brief for defendant Gulf Oil Corp.
Gale P. Hilyer, Jr.,* Hilyer & Levinski, Seattle, Wash., was on brief for plaintiff Kenneth O. Owen.
Donald C. Smaltz, Los Angeles, Cal., with whom Robert L. Hess and Leighton M. Anderson, Smaltz & Neelley, Los Angeles, Cal., and John B. Merritt, Atlantic Richfield Co., Los Angeles, Cal., were on brief for defendant Atlantic Richfield Co.
Charles A. Zubieta, Fort Worth, Tex., with whom Kerry R. Brittain, Champlin Petroleum Co., Cecil E. Munn, Cantey, Hanger, Gooch, Munn & Collins, Fort Worth, Tex., Richmond C. Coburn, Coburn, Croft, Shepherd, Herzog & Putzell, St. Louis, Mo., and Alan E. Popkin, Susman, Stern, Heifetz, Lurie, Sheehan, Popkin & Chervitz, Clayton, Mo., were on brief for amicus curiae Champlin Petroleum Co.
Before CHRISTENSEN, ESTES and ZIRPOLI, Judges.
These cases originated as private damage actions in the United States District Court for the District of Oregon (Nos. 9-41 and 9-42), and the United States District Court for the Central District of California (No. 9-43). They were brought by the respective plaintiffs in reliance upon Section 210 of the Economic Stabilization Act of 1970 (ESA), as amended, 12 U.S.C. § 1904 note, and incorporated into the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751, et seq., by § 754 of that Act.1 We granted leave for an interlocutory appeal in each case pursuant to 28 U.S.C. § 1292(b)2 and Fed.R.App.P. 5, in the light of TECA Rule 1, upon certification by the respective courts of their orders refusing to drop the Department of Energy (DOE) as a party3 on the basis of the following "controlling issue of law":
Whether DOE is required to be joined as a party in private damage actions such as the cases at bar pursuant to the TECA decision in Longview Refining Company v. Shore, 554 F.2d 1006 (Em. App.1977), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977)?
This was the statement of the issue of law certified in Nos. 9-41 and 9-42. The statement in No. 9-43 was essentially the same, but Air Products and Chemicals, Inc. v. United Gas Pipe Line Co., 503 F.2d 1060 (Em.App.1974), was cited in connection with Longview.4
These interlocutory appeals have been perfected and have been consolidated for the purposes of this proceeding.
In Dyke and Colvin, consolidated below, the plaintiffs who were resellers of refined petroleum products alleged that the defendant Gulf Oil Corporation overcharged them in sales of petroleum products in violation of Mandatory Petroleum Price Regulations, 10 C.F.R. § 212. In Dyke, defendant Gulf moved to dismiss the complaint for alleged failure of Dyke to exhaust administrative remedies. The district court denied this motion and, instead, ordered the DOE to be joined as a party. In Owen, the plaintiff, an operator of a retail outlet, alleged in his original complaint and a first amended complaint naming the DOE as one of the parties defendant that he was overcharged by the other defendant, Atlantic Richfield Company (ARCO), for refined petroleum products. All plaintiffs sought damages for alleged overcharges. At varying stages the DOE was made a party in each case.5
In each case the DOE made an unsuccessful motion to dismiss for failure of the plaintiff to state a claim on which relief could be granted as against it, as well as a motion to be dropped as a party. Denials of the DOE's motions were grounded upon Longview Refining Co. v. Shore, supra, apparently against the district judges' own better judgments.6
The DOE points out that it has been joined as an involuntary party in numerous other private damage actions in the wake of Longview, although in none of them has any claim been asserted against it. The consequences of joinder, it says, have transcended any status as a nominal party with a limited role in the litigation, to a point of forced participation generally. It is claimed that if this situation is permitted to continue its already strained capacity to enforce the Mandatory Petroleum Price Regulations will be seriously impeded.
In further defining its position the DOE contends that it may not be involuntarily joined as a party to private litigation since as to it there is no "case or controversy", the federal rules do not authorize such joinder, Congress did not so intend in enacting relevant legislation, and involuntary joinder places an unacceptable burden upon the Department, threatening to break down its enforcement programs. It is further contended that this court's decisions do not mandate any such joinder, that administrative responsibilities may be frustrated by collateral estoppels, and that the Department's role in private litigation should be limited to participation as amicus curiae.
ARCO, a party to the California litigation, agrees with the DOE that Owen should be reversed, not because the DOE cannot be joined involuntarily in appropriate cases but because it did not need to be and should not have been in this instance. But ARCO suggests that an amicus role for the Government would not be appropriate because the Government would not be bound by any decree, and that intervention would be adequate to protect its interests in most cases where participation would be justified.
ARCO is of the further view that Rule 19(a) may require the DOE to be a party to a private suit where it has (1) taken an adjudicatory posture with respect to the very violations charged or (2) where it has engaged in "substantial administrative proceedings" with one or both of the parties to the private litigation regarding the interpretation or application of a regulation in question. It says that should the DOE desire to participate in private actions in which the parties raise substantial issues concerning the interpretation of its regulations, it should intervene rather than "intermeddle" as an "amicus curiae".
Dyke and Colvin take the position that the Government ordinarily should not be a party to section 210 litigation, but that the district court should determine in its discretion the extent of agency participation, if any, in the role of an intervenor or amicus curiae. It is contended by these litigants that the DOE's participation as a party in their cases will complicate and prolong the proceedings and unnecessarily delay adjudication, and that the danger of the agency's similar involvement in the future will have a chilling effect upon the filing of section 210 actions, stifling enforcement effects intended by Congress.
The contrary arguments of Gulf, Owen, and the amicus curiae, Champlin Petroleum Company,7 are presented with varied emphasis but for the most part are similar:
Gulf agrees with the lower courts that the joinder of the DOE was mandated by Longview and argues that the agency has had substantial involvement in the facts of the Dyke and Colvin cases by virtue of ongoing investigations on legal issues related to those raised by the complaints; that the federal rules permit joinder of a party against whom no claim for relief is asserted; that the requirements of Rules 19(a)(1) and 19(a)(2)(ii) are met; that without joinder complete relief between the parties will not be possible; that in the absence of joinder should Gulf prevail against Dyke and Colvin it might still be the subject of overlapping action by the agency, and that without joinder collateral estoppel could operate against Gulf by making its loss in one forum fatal to its position in another while making any victory in one inapplicable to the other. Gulf further contends that the burden of discovery is no excuse for the DOE's dismissal as a party by reason of the court's power to grant protective relief in avoidance of unreasonable burden upon a party.
Owen's arguments largely track those of Gulf. But additionally he contends that the absence of any express provision in the ESA for interlocutory appeals except with reference to restraining orders and preliminary injunctions, the tenor of section 211, and the decision of this court in Exxon Corp. v. FEA, 516 F.2d 1397 (Em.App.1975), preclude our exercise of jurisdiction over these appeals.8
Amicus curiae's position also mainly comports with that of Gulf. Added is the contention that the DOE's ability to attend to its responsibilities as a party litigant in these cases is confirmed by massive enforcement and restitution litigation it has separately undertaken.
We first address the question raised by Owen concerning the appellate jurisdiction of this court.
Exxon Corp. v. FEA held in view of the particular wording of the ESA that appeals from restraining orders and preliminary injunctions had to be taken, if at all prior to final judgment, upon certification by the district court pursuant to 28 U.S.C. § 1292(b), despite the general rule that such interlocutory appeals would lie as of...
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