Getty Oil Co. v. Department of Energy, 3-54.
| Decision Date | 30 October 1989 |
| Docket Number | No. 3-54.,3-54. |
| Citation | 890 F.2d 425 |
| Parties | GETTY OIL COMPANY, Plaintiff, v. DEPARTMENT OF ENERGY, et al., Defendants-Appellees, v. CONSOLIDATED EDISON CO., et al., Movants-Appellants. |
| Court | U.S. Temporary Emergency Court of Appeals Court of Appeals |
Philip P. Kalodner, Philadelphia, Pa., was on brief for appellants Consolidated Edison Co. of New York, Inc., Southern California Edison Co., Long Island Lighting Co., Pacific Gas & Elec. Co., Orange and Rockland Utilities, Inc. and San Diego Gas and Elec. Co.
Andrew P. Miller, Milton B. Whitfield, and J. Bradley Ortins, Dickstein, Shapiro & Morin, Washington, D.C. on brief for appellee States Del., Iowa, La., N.D., R.I. and W.Va.
Neil F. Hartigan, Atty. Gen., and Michael J. Hayes, Deputy Atty. Gen., Chicago, Ill., on brief for appellee State of Ill.
Dave Frohnmayer, Atty. Gen., and Donald C. Arnold, Chief Counsel, Dept. of Justice, Salem, Or., on brief for appellee State of Or.
Bernard Nash, and Edward G. Modell, Washington, D.C. on brief for appellee States Hawaii, Ill., Kan., Neb., Nev., N.C., Guam and the Virgin Islands.
James F. Flug, and Paula Dinerstein, Lobel, Novins, Lamont & Flug, Washington, D.C. on brief for appellee States Ala., Cal., Conn., Idaho, Ind., Md., Mich., Miss., Montana, Ohio, S.D., Vt., Wis. and Wyo.
Leroy S. Zimmerman, Atty. Gen., Eugene F. Waye, and James A. Donahue, III, Deputy Attys. Gen., Harrisburg, Pa., on brief for appellee Com. of Pa.
Don W. Crockett, and Paul M. Geier, Judicial Litigation Div., Economic Regulatory Admin., U.S. Dept. of Energy, Washington, D.C., and John R. Bolton, Asst. Atty. Gen., Civ. Div., U.S. Dept. of Justice, on brief for appellee U.S. Dept. of Energy.
Before GARZA, HOFFMAN and MAXWELL, Judges.
Submitted on the Briefs.
Before this court is an appeal from a second denial of intervention in Getty Oil Company v. United States Department of Energy by the United States District Court for the District of Delaware. Six oil-consuming electric utilities (the "Utilities")1 have filed a second motion to intervene in the proceedings reviewing the Department of Energy's ("DOE") decision concerning restitution of crude oil overcharges by Getty Oil Company ("Getty"). Undaunted by the first denial of intervention, the Utilities have filed a second motion asserting their right to intervene in order to appeal the denial of class certification by DOE's Office of Hearings and Appeals ("OHA").
This case originated with a 1977 Remedial Order finding Getty liable for crude oil price overcharges. Getty Oil Company, 1 DOE ¶ 80,102, 80,538 (1977). The district court affirmed the OHA's finding of liability and ordered that payment be made to the United States Treasury. Getty Oil Co. v. Department of Energy, 569 F.Supp. 1204, 1220 (D.Del.1983), aff'd as modified, 749 F.2d 734 (Temp.Emer.Ct.App.1984), cert. denied, 469 U.S. 1209, 105 S.Ct. 1176, 84 L.Ed.2d 325 (1985). On appeal, this court ordered that the district court retain control of the funds pending distribution, directed DOE to consider appropriate distribution of the funds and otherwise affirmed the district court. Getty Oil Co. v. Department of Energy, 749 F.2d 734, 739 (Temp.Emer.Ct.App.1984), cert. denied, 469 U.S. 1209, 105 S.Ct. 1176, 84 L.Ed.2d 325 (1985).
In April 1985, the Philadelphia Electric Company ("PECO") and other end-users of petroleum products sought to intervene both in the proceedings before the district court and in the proceedings before OHA. By letter of June 12, 1985 to Philip Kalodner, Esq., then counsel to PECO and current counsel to the proposed intervenors, OHA allowed PECO to participate in the proceedings on its own behalf, but refused to allow them to participate as class representatives. On July 8, 1985, PECO and the others again filed for class certification before OHA in the Getty proceedings.
Meanwhile, in Kansas, parties to the Stripper Well litigation entered into a settlement agreement on May 5, 1986. The agreement provided that funds from those crude oil price overcharges were to be distributed to three groups. Twenty percent (20%) was reserved for distribution to parties approved by OHA, with the remaining eighty percent (80%) divided equally between the states and the federal government. As a party to this agreement, PECO waived the right to recover in any other crude oil enforcement actions brought by DOE.2
In its July 17, 1986, decision and order in Getty, OHA adopted the policy of Stripper Well and reserved 20% of the funds for private parties while denying PECO's motion for class certification. Getty Oil Company, 14 DOE ¶ 83,033, 86,276-77, 86,284-85 (1986).
In January 1987, the same Utilities involved in the present motion, as well as others, filed a motion to intervene in the remedial proceedings before the district court. In their opening brief filed the next month, the proposed intervenors asserted that they were entitled to intervene both as a matter of right and permissively, under Fed.R.Civ.P. 24(a)(2) and (b).3 On August 21, 1987, the district court denied both intervention of right and permissive intervention, but granted the Utilities status as amici curiae. In September 1987, the Utilities appealed the district court decision and filed this second motion to intervene.
In the first appeal, this court determined that the appellants had no direct, substantial, legally protectable right which would entitle them to intervene. Getty Oil Company v. Department of Energy, 865 F.2d 270 (Temp.Emer.Ct.App.1988). This court went on to find Id. at 276.
Following this court's decision on the first motion, the appellants filed a Petition for Rehearing and a Suggestion of Appropriateness of Rehearing en Banc. In these filings, the appellants asserted new facts, claiming that in light of the DOE's decisions awarding Pacific Gas & Electric Co. and Southern California Edison Co. refunds based on their prior purchases, this court erred in finding no right to intervene. The appellants also maintained that, if denied intervention, they would not receive full restitution due to the increasing number of claims. Both the Petition and the Suggestion were denied by Order of this court issued on November 28, 1988.
This second motion to intervene was filed after the first was denied but before this court's decision on the first appeal. In the second motion, appellants are seeking to intervene in order to appeal the refusal by DOE's OHA to certify a class of electric utilities in the administrative remand of this case. Further, the appellants conceded that although their present motion seeks to intervene in order to appeal the denial of class certification, their actual goal is party status on the disbursement issue in order that they may appeal any unfavorable ruling.
The appellants assert on appeal that the district court abused its discretion in denying their motion as "untimely" and abused its discretion in refusing to find inadequate representation by the DOE and substantially new and different factual evidence.
A. Intervention of Right
A nonparty must meet each of the following requirements to intervene as a matter of right:
(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant's interest must be inadequately represented by the existing parties to the suit.
International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.1978).
In order to have the right to intervene, the appellants must satisfy all four prongs of the test. This court has previously found (1) no direct, substantial, legally protectable interest exists, (2) that any existing interest is sufficiently protected by amicus briefs, and (3) that the Utilities interests are adequately represented by the DOE. Further, the district court specifically found this particular motion to be "untimely." Appellant must not rebut merely one of these findings but all four.
Under the "law of the case" doctrine, an issue once determined by a court is conclusive in that case and may not be relitigated absent unusual circumstances.4 In order for the court to depart from a prior ruling under the "law of the case" doctrine, the court would have to be convinced that the prior ruling was clearly erroneous and would work a manifest injustice. Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 1391 n. 8, 75 L.Ed.2d 318 (1983). The district court properly applied the law of the case doctrine in its analysis and found neither a clearly erroneous ruling nor a manifest injustice in the works.
Assuming, arguendo, that any one of the Utilities assertions contains even a marginally colorable claim, we will entertain each separately. Noting, however, that the failure of any prong would result in an affirmation of the district court's dismissal.
The question of sufficient interest was decided by this court and the district court in this case previously.5 Appellants asserted new facts previously noted and urge that the determination should be reconsidered. However, the district court did not find these facts sufficient to justify a reconsideration. We find that the district court did not abuse its discretion in that determination.
The appellants also assert that the new fact of the number of claims rising from 8% to 15%...
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...research found only two reported cases of appeals arising from successive motions to intervene. See Getty Oil Co. v. Dep't of Energy , 890 F.2d 425, 426-27 (Temp. Emer. Ct. App. 1989) ; Nassau County v. Cost of Living Council , 499 F.2d 1340, 1342 n.2 (Temp. Emer. Ct. App. ...
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