Exxon Corporation v. Federal Energy Admin.

• Decision Date: 06 June 1975
• Docket Number: 6-8.,No. 3-5,3-5
• Citation: 516 F.2d 1397
• Parties: EXXON CORPORATION, Plaintiff-Appellant, Ad Hoc Committee to Save Small Refiners, Amicus Curiae, v. FEDERAL ENERGY ADMINISTRATION and Frank G. Zarb, Defendants-Appellees, Ashland Oil, Inc., Intervenor-Appellee, and Independent Refiners Association of America, Intervenor-Appellee. MARATHON OIL COMPANY, Plaintiff-Appellant, Ad Hoc Committee to Save Small Refiners, Amicus Curiae, v. FEDERAL ENERGY ADMINISTRATION and Frank G. Zarb, Administrator, Defendants-Appellees, Ashland Oil, Inc., Intervenor-Appellee, Independent Refiners Association of America, Intervenor-Appellee, Long Island Lighting Company et al.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

516 F.2d 1397

EXXON CORPORATION, Plaintiff-Appellant, Ad Hoc Committee to Save Small Refiners, Amicus Curiae, v. FEDERAL ENERGY ADMINISTRATION and Frank G. Zarb, Defendants-Appellees,

Ashland Oil, Inc., Intervenor-Appellee, and

Independent Refiners Association of America, Intervenor-Appellee.

MARATHON OIL COMPANY, Plaintiff-Appellant, Ad Hoc Committee to Save Small Refiners, Amicus Curiae, v. FEDERAL ENERGY ADMINISTRATION and Frank G. Zarb, Administrator, Defendants-Appellees, Ashland Oil, Inc., Intervenor-Appellee, Independent Refiners Association of America, Intervenor-Appellee,

Long Island Lighting Company et al.

Nos. 3-5, 6-8.

Temporary Emergency Court of Appeals.

April 21, 1975.

Rehearings and Rehearings En Banc Denied June 6, 1975.

William H. Allen, Washington, D. C., with whom John A. Hodges of Covington & Burling and Robert L. Norris, Jr., Houston, Tex., were on the brief for plaintiff-appellant Exxon Corp.

Joseph A. Califano, Jr., Washington, D. C., with whom Jerry L. Shulman and Peter B. Hamilton of Williams, Connolly & Califano, Washington, D. C., were on the brief, as amicus curiae ad hoc Committee to Save Small Refiners.

Patricia N. Blair, Atty., Dept. of Justice, with whom Carla A. Hills, Asst. Atty. Gen., New York City, and Stanley D. Rose, Atty., Dept. of Justice, were on the brief, for defendants-appellees.

Fred W. Drogula, Washington, D. C., with whom David Ginsburg and Peter H. Rodgers of Ginsburg, Feldman & Bress, Washington, D. C., and Arloe W. Mayne, Ashland, Ky., of counsel, were on the brief, for intervenor-appellee Ashland Oil, Inc.

Edwin Jason Dryer, Washington, D. C., for intervenor-appellee Independent Refiners Association of America.

George Blow, Washington, D. C., with whom Kent B. Hampton, Gen. Counsel, John L. Oberdorfer, Gail F. Borden of Patton, Boggs & Blow, Washington, D. C., and Ralph S. Spritzer, Philadelphia, Pa., of counsel, were on the brief for plaintiff-appellant Marathon Oil Co. John J. Adams, Washington, D. C., with whom Arnold H. Quint of Hunton, Williams, Gay & Gibson, Washington, D. C., George C. Freeman, Jr., and Allen C. Barringer of Hunton, Williams, Gay & Gibson, Richmond, Va., were on the brief, for amicus curiae Long Island Lighting Co., Public Service Electric and Gas Co. and Consolidated Edison Co. of New York, Inc.

Before HASTIE, CHRISTENSEN and HASTINGS, Judges.

CHRISTENSEN, Judge:

To reach the merits of these appeals involving denial of applications for preliminary injunctions below, we again would have to surmount a jurisdictional obstacle already recognized with reference to the absence of certification under 28 U.S.C. § 1292(b).¹

Both of the above-entitled cases now before us involve here the same jurisdictional problem and essentially the same issues on the merits. Each appellant has asked us to grant an injunction pending appeal—in the case of Marathon "during the pendency of said appeal" and in the case of Exxon "pending its appeal". Otherwise, there has been filed directly with us no application for an injunction either preliminary or permanent, nor have the trial courts certified here any constitutional issues or interlocutory appeals.

Appellants are seeking to review orders of district courts denying motions for preliminary injunction and to certify a substantial constitutional question with reference to the "entitlement program" of the Federal Energy Administration.²

The jurisdictional problem arises from § 211(d)(2) of the Economic Stabilization Act of 1970, as amended, 12 U.S.C.A. § 1904 (1975 Supp.) incorporated into the Emergency Petroleum Allocation Act of 1973, Pub.L. No. 93-159, 87 Stat. 627 by its Sec. 5(a)(1):

"(2) A district court of the United States or the Temporary Emergency Court of Appeals may enjoin temporarily or permanently the application of a particular regulation or order issued under this title to a person who is a party to litigation before it. Appeals from interlocutory decisions by a district court of the United States under this paragraph may be taken in accordance with the provisions of section 1292(b) of title 28, United States Code section 1292(b) of Title 28; except that reference in such section to the courts of appeals shall be deemed to refer to the Temporary Emergency Court of Appeals."

While subdivision (a) of the section thus referred to, upon which the appeals appear premised, provides for appeals as of right from orders granting or denying interlocutory injunctions, subdivision (b) to which the authorization for appeals from such orders are expressly limited by the Economic Stabilization Act as we have seen, reads as follows:

"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order."

To read § 211(d)(2) of the Economic Stabilization Act with reference to our jurisdiction on appeal to mean that appeals from interlocutory orders denying or granting injunctions may be taken "in accordance with the provisions of section 1292(a) . . ." rather than, or in addition to, "the provisions of section 1292(b) . . ." would do violence to the language of our jurisdictional character. The two subdivisions were designed to reach different subject matters; one does not lend itself to an interpretation that includes the other, for that would "effectively turn 1292 upon its head". Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972).

The meaning being so facially clear, to seek qualifications or reversal through contextual implications or legislative history seems somewhat gratuitous. Yet both support acceptance of the plain meaning of the employed language.

When the Economic Stabilization Act of 1970 (Pub.L. No. 91-379) was adopted originally no provisions relating to judicial review were specified. Thus, apart from final judgments, any interlocutory orders that district courts might have granted within the parameters of the Administrative Procedure Act and the Rules of Civil Procedure, were reviewable in courts of appeal under § 1292—if granting or denying a preliminary injunction, by appeal as of right by virtue of its subsection (a); and as to any other interlocutory order upon certification below and within the discretion of the appellate court as permitted by its subsection (b).

Section 211 of the Act, specifically providing for, and regulating, judicial review, was added by the Economic Stabilization Act Amendments of 1971 (Pub.L. No. 92-210). The 1973 amendments to the statutes did not change this section.

The precursor of Section 211 was a bill sent by the President to Congress as a part of a message following the announcement of Phase II to extend and amend the Economic Stabilization Act of 1970. The proposal for the creation of the Temporary Emergency Court of Appeals of the United States was that it should "have the powers of a circuit court of appeals with respect to the jurisdiction conferred on it by this title except that the court shall not have power to issue any interlocutory decree staying or restraining, in whole or in part, any provision of this title, or the effectiveness of any regulation or order issued thereunder." The bill would have provided for the certification of constitutional questions to this court by district courts but would have precluded district courts from granting even permanent injunctions, which would have to be issued by the Temporary Emergency Court of Appeals upon appeal from final declaratory judgments or after hearing in this court upon recommendation of a district judge, or by the Supreme Court.

After holding hearings on the administration bill, the Senate Banking Committee reported a clean bill, S. 2891, which contained the precise language later enacted as Section 211. The explanation contained in the Senate Committee report included the following comments (U.S.Code Cong. & Ad.News 1971, pp. 2292-4):

"The judicial review provision has been written with several important principles in mind: (1) speed and consistency of decisions in cases arising under the Act, (2) avoidance of any breaks or stays in the operation of the Stabilization Program, and (3) relief for particular persons aggrieved by the operation of the program.

. . . . .

"A preliminary limitation is set upon the power of this new court. It may issue, with one exception, no interlocutory or temporary order staying or restraining in whole or in part any provision of the Act or the effectiveness of any regulation or order issued pursuant to the Act. The sole exception is that it may issue a temporary injunction restraining the application of a particular regulation or order to a person who is a party to litigation before it. In all other respects the Temporary Emergency Court of Appeals shall have all the powers of a circuit court of appeals."

The Senate Committee's report also states, inter alia:

"Several subsections are devoted to making explicit, the precise authority and limitations on authority that are being placed on the courts considering cases and controversies arising under this Act and in reviewing the decisions of lower courts in these matters.

. . . . .

"In order to provide relief for a particular person who may be aggrieved by the operation of this program during the period in which he is attempting to establish his legal position, a

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