Texas American Oil Corp. v. U.S. Dept. of Energy, 93-1152

• Decision Date: 06 January 1995
• Docket Number: No. 93-1152,93-1152
• Citation: Texas American Oil Corp. v. U.S. Dept. of Energy, 44 F.3d 1557 (Fed. Cir. 1995)
• Parties: , Bankr. L. Rep. P 76,338 TEXAS AMERICAN OIL CORPORATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1557

44 F.3d 1557

26 Bankr.Ct.Dec. 609, Bankr. L. Rep. P 76,338

TEXAS AMERICAN OIL CORPORATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant-Appellee.

No. 93-1152.

United States Court of Appeals Federal Circuit.

Jan. 6, 1995.

J. Maxwell Tucker, Winstead, Sechrest & Minick, P.C., Dallas, TX, filed response of plaintiff-appellant to defendant-appellee's petition for rehearing and In Banc suggestions.

Frank W. Hunger, Asst. Atty. Gen., William Kanter and Robert M. Loeb, Dept. of Justice, Washington, DC, filed defendant-appellee's petition for rehearing and suggestion for rehearing In Banc. Also on petition was Gilbert T. Renaut, Office of Gen. Counsel, Dept. of Energy, Washington, DC.

James F. Flug, Henry M. Banta and Dina R. Lassow, Lobel, Novins, Lamont & Flug, Washington, DC, filed brief of The States as amicus curiae in support of Dept. of Energy's suggestion for rehearing In Banc.

Before ARCHER, Chief Judge, and RICH, NIES, NEWMAN, MAYER, MICHEL, PLAGER, LOURIE, CLEVENGER, RADER, SCHALL, and BRYSON, Circuit Judges.

NEWMAN, J., delivered the opinion for a unanimous court with respect to Parts I and II, and the opinion of the court with respect to Part III, in which ARCHER, C.J., and RICH, MAYER, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, and BRYSON, JJ., joined. PLAGER, J., filed an opinion concurring in part and dissenting in part, in which NIES, J., joined.

ON REHEARING EN BANC

PAULINE NEWMAN, Circuit Judge.

Texas American Oil Corporation has appealed the decision of the United States District Court for the Northern District of Texas Texas American Oil Corp. v. United States Dept. of Energy, No. 3:92-CV-1146-G (N.D.Tex. Sept. 14, 1992), reversing the bankruptcy court's classification of the Department of Energy's ("DOE") claim as a creditor under the Bankruptcy Code. In re Texas American Oil Corp., No. 387-33522-SAF-11 (Bankr.N.D.Tex. Mar. 5, 1992). Texas American appealed the district court's decision to the Fifth Circuit Court of Appeals, relying on subsequent changes in statutory and Supreme Court law. On motion of the DOE, opposed by Texas American, the Fifth Circuit held that the issue was within the exclusive jurisdiction of the Temporary Emergency Court of Appeals ("TECA"), and transferred the appeal. Texas American Oil Corp. v. United States Dept. of Energy, No. 92-1785 (5th Cir. Nov. 12, 1992) (Order). Effective April 29, 1993 the TECA was dissolved, and all remaining actions within that court's jurisdiction were transferred to the Court of Appeals for the Federal Circuit. Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506 (1992). Texas American also appealed the transfer of this appeal to the TECA and now to this court.

On May 10, 1994 a panel of this court issued its decision on this appeal. Texas American Oil Corp. v. United States Dep't of Energy, 24 F.3d 210 (Fed.Cir.1994). The panel opinion has been withdrawn and the court now rehears the case en banc, for the purposes of (1) adopting the decisions of the TECA as precedent in the Court of Appeals for the Federal Circuit, and (2) overruling prior decisions to the extent that they are inconsistent with our decision herein.

I ADOPTION OF PRECEDENT

As foundation for decision of the cases transferred to this court in accordance with Pub.L. No. 102-572, the Court of Appeals for the Federal Circuit adopts as precedent the body of law represented by the holdings of the Temporary Emergency Court of Appeals.

This court applies the rule that earlier decisions prevail unless overruled by the court en banc, or by other controlling authority such as intervening statutory change or Supreme Court decision. See South Corp. v. United States, 690 F.2d 1368, 1370 n. 2 (Fed.Cir.1982). That rule also governed the TECA. Consumers Power Co. v. United States Dep't of Energy, 894 F.2d 1571, 1577 (Temp.Emer.Ct.App.1990). In view of the disparate jurisdictions of these two courts, substantive conflict in precedent is not expected. However, the two courts had divergent positions on certain fundamental aspects of their jurisdiction, based on their respective authorizing statutes. To remove uncertainty and avoid disruption of cases still in process, we emphasize that TECA precedent continues to apply to questions of jurisdiction, in the cases that reach the Federal Circuit as successor to the TECA.

Since Texas American has challenged the TECA's jurisdiction in this case, we first consider the correctness of the transfer from the Fifth Circuit Court of Appeals.

II JURISDICTION

When the Fifth Circuit transferred this appeal to the TECA, in accordance with Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) the Fifth Circuit's jurisdictional ruling became the law of the case, subject only to the transferee court's finding the transfer "plausible". The Supreme Court in Christianson had resolved a difference of opinion between the Courts of Appeals of the Seventh Circuit and the Federal Circuit, wherein each held that the other had exclusive jurisdiction of the subject matter, and each had transferred the case accordingly. The Court held that appellate courts should accept plausible transfer decisions made by sister tribunals, and that courts of appeals should adhere

strictly to principles of law of the case. Situations might arise, of course, in which the transferee court considers the transfer "clearly erroneous." But as "[t]he doctrine of the law of the case is ... a heavy deterrent to vacillation on arguable issues," such reversals should necessarily be exceptional; courts will rarely transfer cases over which they have clear jurisdiction, and close questions, by definition, never have clearly correct answers. Under law-of-the-case principles, if the transferee court can find the transfer decision plausible, its jurisdictional inquiry is at an end.

486 U.S. at 819, 108 S.Ct. at 2179 (alterations in original) (citations omitted).

Our review of the Fifth Circuit's transfer ruling is conducted within the analytical framework of Christianson. Although the Fifth Circuit did not explain its ruling, the Court stated in Christianson that the fact that the appellate court "did not explicate its rationale is irrelevant, for the law of the case turns on whether a court previously 'decide[d] upon a rule of law' ... not on whether, or how well, it explained the decision." 486 U.S. at 817, 108 S.Ct. at 2178. Therefore, unless the Federal Circuit does not deem the transfer to the TECA to be plausible, our jurisdictional inquiry is at an end. See Xeta, Inc. v. Atex, Inc., 852 F.2d 1280, 1281 (Fed.Cir.1988). Thus we review the TECA's selection of "issue" jurisdiction in implementation of its statutory assignment.

A

The Economic Stabilization Act of 1970 (ESA), Pub.L. No. 91-379, 84 Stat. 799 (1970), codified at 12 U.S.C. Sec. 1904 note, authorized the President to stabilize prices, rents, wages, and salaries, and to establish priorities for use and allocation of petroleum products. Section 211 of the ESA, the judicial review provision, placed trial jurisdiction in the federal district courts and created the Temporary Emergency Court of Appeals, assigning to it exclusive appellate jurisdiction in "cases and controversies arising under" the ESA:

Sec. 211(b)(2) Except as otherwise provided in this section, the Temporary Emergency Court of Appeals shall have exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under this title or under regulations or orders issued thereunder....

The purpose was "to funnel into one court all the appeals arising out of the District Courts and thus gain in consistency of decision". S.Rep. No. 92-507, 92nd Cong., 1st Sess. 10, reprinted in 1971 U.S.C.C.A.N. 2283, 2292. The ESA authority expired on April 30, 1974; however, ESA sections 205 through 213 (other than section 212(b)) were incorporated by reference into section 5(a)(1) of the Emergency Petroleum Allocation Act (EPAA), which was enacted in response to nationwide shortages of petroleum products due to the 1973 Arab oil embargo. Pub.L. No. 93-159, 87 Stat. 627 (1973), codified at 15 U.S.C. Secs. 751 et seq.

In January 1981 the President lifted all price controls of petroleum products. Exec.Order No. 12,287, 46 Fed.Reg. 9,909 (1981). The President's authority to promulgate regulations and controls under the EPAA expired on September 30, 1981 pursuant to a sunset provision, 15 U.S.C. Sec. 760g, and has not been renewed. Section 760g provided that the expiration of this regulatory authority did not affect any pending action or proceeding not then finally determined, or any administrative, civil, or criminal action or proceeding, whether or not pending, based upon any act committed or liability incurred prior to the expiration date.

The Federal Courts Administration Act of 1992 amended the ESA to read:

Sec. 211(b)(2) Appeals from orders or judgments entered by a district court of the United States in cases and controversies arising under this title shall be brought in the United States Court of Appeals for the Federal Circuit if the appeal is from a final decision of the district court or is from an interlocutory appeal permitted under section 1292(c) of title 28, United States Code.

Pub.L. 102-572, Sec. 102, 106 Stat. at 4506. Concurrently, 28 U.S.C. Sec. 1295(a) was amended to add the following jurisdiction to that of the Federal Circuit:

(11) of an appeal under section 211 of the Economic Stabilization Act of 1970;

(12) of an appeal under section 5 of the Emergency Petroleum Allocation Act of 1973;

(13) of an appeal under section 506(c) of the Natural Gas Policy Act of 1978; and (14) of an appeal under section 523 of the Energy Policy and Conservation Act.

It is reported that several dozen actions remain in administrative or judicial process.

B

The TECA interpreted its statutory authorization under ESA Sec....