Griffin v. United States

• Decision Date: 08 June 1976
• Docket Number: 10-9 and 10-10.,No. 10-8,10-8
• Citation: 537 F.2d 1130
• Parties: R. L. GRIFFIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Maurice LAMPE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee. Elbert GRIFFIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

537 F.2d 1130

R. L. GRIFFIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

Maurice LAMPE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

Elbert GRIFFIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

Nos. 10-8, 10-9 and 10-10.

Temporary Emergency Court of Appeals.

Submitted April 27, 1976.

Decided June 8, 1976.

Charles R. Nesbitt, Oklahoma City, Okl., on the brief for plaintiff-appellant.

Linda Pence, Atty., Dept. of Justice, with whom Rex E. Lee, Asst. Atty. Gen. and Stanley D. Rose, Dept. of Justice, Washington, D. C., were on the brief for defendant-appellee.

Before CHRISTENSEN, VAN OOSTERHOUT and HASTINGS, Judges.

CHRISTENSEN, Judge.

These actions were brought in the district court by the above-named plaintiffs to obtain money judgments against the United States for the alleged taking of their property as a result of the operation of the two-tier pricing regulations on crude oil¹ administered by the Federal Energy Administration under the Emergency Petroleum Allocation Act (EPAA).²

Plaintiffs are non-operating (royalty) owners of part of the production from certain oil wells in Marshall County, Oklahoma. Each plaintiff alleged that by reason of the two-tier scheme he had been prohibited from selling his oil at a price above $5.25 per barrel while at the same time the crude oil produced from nearby leases, and elsewhere in Oklahoma and the United States, was permitted to be sold at the free market price of up to $14.00 per barrel. Each further alleged that but for this price control he could have sold his oil at the higher price.³ Plaintiffs further asserted in effect that the two-tier price system was discriminatory toward them, that it was unnecessarily and unreasonably burden-some to them, that it singled out a group of property owners, including themselves, for especially onerous treatment not shared by all those similarly situated, and that in its operation it constituted a partial taking by physical appropriation for public purposes of plaintiffs' property and property rights — their shares of crude oil produced from the leases.

The United States moved for consolidation of the suits, which motion was granted; also for their dismissal on jurisdictional grounds, and for dismissal for failure to state claims on which relief could be granted or in the alternative for summary judgment on the merits. The district court held that it had jurisdiction by virtue of the Tucker Act⁴ and Section 210(a) of the Economic Stabilization Act.⁵ It further concluded that neither dismissal on the pleadings nor summary judgment was warranted because there were unresolved issues of fact as to whether there had been a "taking" and because it could not be concluded that plaintiffs' claims were totally devoid of merit.⁶ Finally, the district court certified to this court, pursuant to § 211(c) of the Economic Stabilization Act Amendments of 1971,⁷ the following question:

Have royalty owners, whose crude oil is subject to the ceiling price as determined under the regulations (10 C.F.R. §§ 212.72-212.74) and who may not sell their crude oil at a price in excess of the ceiling price, had their property taken for public use for which they may recover just compensation from the United States pursuant to the Fifth Amendment to the Constitution of the United States?

Although designated as "appellants" in the government's brief, plaintiffs disaffirm that posture except for the purposes of compliance with TECA Rule 16 (formerly Rule 31).⁸ They say essentially that they were the prevailing party below;⁹ that the lower court committed no error except by acceding to the suggestion of the United States that the constitutional issue be certified to this court; that "this is a simple Tucker Act case" involving only the fact questions of whether plaintiffs' properties were taken by the United States and the value of any property found to be so taken; and that, except for its apprehension of some constitutional obstacle, the district court was right in holding that a trial on the merits was required.

We are assured by plaintiffs that we need not be concerned with our prior decisions holding, or accepting such conclusion as the premise for related determinations, that the two-tier pricing system does not involve any unconstitutional taking.¹⁰ They tell us that they do not contest the constitutionality of the FEA regulations; indeed, that they concede their constitutionality, and say that they necessarily must so do to be entitled to Tucker Act compensation, citing Tempel v. United States, 248 U.S. 121, 39 S.Ct. 56, 63 L.Ed. 162 (1918); United States v. Georgia Marble Co., 106 F.2d 955 (5th Cir. 1939), and Kirk v. United States, 451 F.2d 690 (10th Cir. 1971), cert. denied, 406 U.S. 963, 92 S.Ct. 2059, 32 L.Ed.2d 350 (1972), to demonstrate that "any taking or destruction of property which is contrary to or unauthorized by Act of Congress would constitute a tortious injury to property for which compensation cannot be recovered under the Tucker Act." They say that their cases depend not upon the unconstitutionality of the regulation but upon factual problems which can be resolved only by trial and suggest that at trial they can show severe impact against them of what they characterize as discriminatory pricing. Thus plaintiffs conclude that only fact issues are involved and that the district court's certification of the constitutional question was unjustified.

With the latter conclusion although not with the reasoning by which it was reached, the government agrees. It argues that certification was improvidently granted because no substantial constitutional issue exists, the constitutionality of the pricing system already having been sustained by this court. It fails to consider that, if this were so, remand without further determination on our part might be called for¹¹ — a disposition that would be welcomed by plaintiffs since it would remit them for trial to a district court apparently favorable to their position on the law. To the contrary, the government asks us to determine "that the district court erred in not granting its the government's motion to dismiss or in the alternative for summary judgment." And it argues on the basis of Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), that looking at the language of § 211 of the Stabilization Act and its legislative history, and considering the special nature of price controls, Congress intended to withdraw the Tucker Act remedy to parties in the position of plaintiffs — a proposition which if essential to counter plaintiffs' claims might itself raise a constitutional problem.¹²

As if this welter of points and counterpoints were not enough, the government asks us to determine that the district court had no jurisdiction to entertain plaintiffs' suits in the first instance and thus that we have no appellate jurisdiction. The possible expanse of such a bar is indicated by its further argument that any right plaintiffs might have for monetary relief under the Tucker Act would be in effect cut off by the exclusivity of EPAA processes which afford to private parties against the government only the declaratory or injunctive relief provided by § 211 of the Economic Stabilization Act.

JURISDICTION

The government contends that § 210 does not authorize any type of suit against the government but only "private" actions for declaratory, injunctive or monetary relief and that § 211 is merely a limitation of that right and not a complementary grant of jurisdiction to the district courts. Air Products and Chemicals, Inc. v. United Gas Pipeline Co., 503 F.2d 1060, 1063 (Em.App.1974); Brennan Petroleum Products Co., Inc. v. Pasco Petroleum Co., Inc., 373 F.Supp. 1312, 1313 (D.Ariz.1974); McGuire Shaft and Tunnel Corp. v. Local No. 1791, UMW, 475 F.2d 1209 (Em.App.), cert. denied, 412 U.S. 958, 93 S.Ct. 3008, 37 L.Ed.2d 1009 (1973), and Gas-A-Tron of Arizona v. Union Oil, 1 CCH Energy Management ¶ 9710, and certain legislative history¹³ are cited in support of this contention.

Plaintiffs counter that there is no such limitation by the terms of the Act and that the restriction (of § 210(a)) to "private suits" as suggested by the legislative history and dicta in some of our decisions must be deemed to relate only to the recovery of treble damages or other relief against persons renting property or selling goods or services pursuant to § 210(b). They also contend that § 211 operates in their case merely to waive the jurisdictional amount limitation of the Tucker Act, and that their entitlement to sue basically rests upon the broad language of § 210(a).

We think on the question of jurisdiction that plaintiffs are nearer the mark. But the positions of both parties fail to collate and reconcile sufficiently the two sections, which present a harmonious treatment of both jurisdiction of the respective courts and the right of aggrieved persons to bring actions for "legal wrongs" arising out of acts, practices, orders or regulations under EPAA. Assuming that plaintiffs are right in considering that § 211¹⁴ removes the jurisdictional amount bar that would otherwise apply to two of the claims, that section serves the more basic purpose also of establishing the overall jurisdiction of the courts involved, with implementing exclusivity and limitation provisions that must be read independently as well as in relation to § 210.¹⁵ Subdivision (a) of the latter section deals with the specified right of those suffering "legal wrong" to sue, thus utilizing the jurisdiction afforded by § 211. And § 210(b) deals with a specified type of legal wrong. As so read, the two sections furnishing the basis of the involvement of the courts and the right to judicial relief on the part of affected private parties are consistent and comprehensive. They thus should be construed in accordance with their terms; and, again, we should not be quick to...