U.S. v. Wyatt, 81-2413

• Decision Date: 21 July 1982
• Docket Number: No. 81-2413,81-2413
• Citation: 680 F.2d 1080
• Parties: Energy Mgt. P 26,385 UNITED STATES of America, Plaintiff-Appellee, v. Oscar S. WYATT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1080

680 F.2d 1080

Energy Mgt. P 26,385

UNITED STATES of America, Plaintiff-Appellee, v. Oscar S. WYATT, Jr., Defendant-Appellant.

No. 81-2413.

United States Court of Appeals,

Fifth Circuit.

July 21, 1982.

William L. Bowers, Jr., Houston, Tex., for defendant-appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, JOHNSON and GARWOOD, Circuit Judges.

JOHNSON, Circuit Judge:

Oscar S. Wyatt, Jr., chairman of the board and chief executive officer of the Coastal Corporation, pled guilty to an amended criminal information alleging that he concealed the true sale price of over 331,000 barrels of domestic crude oil in order to obtain a price for that oil higher than the price permitted by federal regulation. On the basis of his plea, Wyatt was convicted of engaging in a proscribed activity relating to the production and refining of crude oil. Wyatt now attacks his conviction on a multitude of statutory and constitutional grounds. We conclude, however, that he has brought his challenge to the wrong court. The appeal is accordingly dismissed for want of jurisdiction.

I.

In the latter months of 1975, Wyatt directed the Coastal Corporation in a complex series of foreign and domestic sales of domestic crude oil, through which the Corporation ultimately garnered a price for that oil in excess of the price authorized by Department of Energy price regulations. Wyatt eventually admitted his participation in the sale "solely in his capacity as Chairman of the Board and Chief Executive Officer of the Coastal Corporation," and pled guilty to an amended criminal information charging the scheme to be in violation of regulation 10 C.F.R. § 210.62(c), as promulgated under the Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. § 751 et seq. Section 210.62(c) provides in pertinent part:

Any practice which constitutes a means to obtain a price higher than is permitted by the regulation in this chapter or to impose terms or conditions not customarily imposed upon the sale of an allocated product is a violation of these regulations.

The information characterized Wyatt's regulatory violation as committed in the course of an activity relating to the production and refining of domestic crude oil. ¹ So construed, Wyatt's acts were considered to be punishable under the terms of 15 U.S.C. § 754(a)(3)(B)(i), which provides for penalties of up to one year in prison, or a fine of up to $40,000, or both. ² Wyatt was assessed a $40,000 fine. ³

On appeal, Wyatt raised five challenges to his conviction. He argued that 10 C.F.R. § 210.62(c) is void because it was issued without compliance with the notice and comment requirements of section 4 of the Administrative Procedure Act (APA), 5 U.S.C.A. § 553 (West 1977); failing that, he argued that 10 C.F.R. § 210.62(c) either does not apply to crude oil transactions or, if interpreted to be applicable, is so vague as to supply inadequate basis for the imposition of criminal sanctions. He charged the amended criminal information to be fatally defective on the theory that the acts he concededly committed do not constitute an offense relating to the "production or refinement" of crude oil. And, finally, noting that the transactions resulting in collection of an excessive price were, except for final invoicing and payment, completed during a hiatus in the effective period of the EPAA and its regulations, he argued that punishment for the latter acts effectively constitutes a prohibited ex post facto criminalization of the former.

The Government responded to Wyatt's claims with the assertion that all were foreclosed by his guilty plea, ⁴ and with counter arguments on the merits. There was but a single area in which the parties were in agreement: both asserted Wyatt's appeal to fall within this Court's criminal appellate jurisdiction under 28 U.S.C.A. § 1291 (West 1966). It is on this assertion that Wyatt's appeal founders.

II.

The Temporary Emergency Court of Appeals (TECA) has "exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under the EPAA or under regulations or orders issued thereunder." § 5(a)(1), Emergency Petroleum Allocation Act (EPAA), as amended, 15 U.S.C.A. § 754(a)(1) (West 1976) incorporating § 211(b)(2), Economic Stabilization Act of 1970 (ESA), 12 U.S.C.A. § 1904 note (West 1980). ⁵ The controlling phrase "cases arising under the EPAA" has consistently been interpreted by this Court, the TECA, and other courts to demand analysis of the issues presented on appeal: where resolution of the litigation will be controlled by a determination of the validity, constitutionality, interpretation, or application of the EPAA and its regulations, the controversy is considered to be one within the province of the TECA. alone. ⁶ United States v. Uni- Oil, Inc., 646 F.2d 946, 949-50 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1254, 71 L.Ed.2d 446 (1982); Quincy Oil, Inc. v. Federal Energy Administration, 620 F.2d 890, 893 (Em.App.1980); Coastal States Marketing v. New England Petroleum, 604 F.2d 179, 185-87 (2d Cir. 1979); Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp., 591 F.2d 711, 716 (Em.App.1979); Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1380, 1382 (10th Cir. 1978); Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp., 578 F.2d 1149, 1154-55 (5th Cir. 1978). Our review of Wyatt's claims has led us to conclude that each presents an "EPAA issue," and that none may be adjudicated in this forum. ⁷

Neither Wyatt nor the Government, in their briefs responding to this Court's request for consideration of its jurisdiction, have claimed this Court to have jurisdiction to decide the applicability of 10 C.F.R. § 210.62(c) to crude oil transactions, or to inquire into the adequacy of the indictment. We agree with their tacit conclusion that these questions are properly put to the TECA. Decision of the former claim demands an interpretation of the limiting force of the regulation's reference to "allocated products"; agreement with Wyatt's assertion that the term modifies the regulation's reference to price restraints, as well as its reference to restrictions on terms of sale, would necessitate determination of whether the phrase "allocated products" properly may be understood to include crude oil. Review of Wyatt's claim that the acts which he concededly committed do not constitute the offense with which he was charged requires interpretation of section 754(a)(3)'s distinction between distribution-related activities and production and refinement-related activities, and determination of the proper categorization of Wyatt's admitted activities. These claims demand nothing other than the construction and application of substantive provisions of the EPAA and its regulations, Uni-Oil, Inc. at 952; Mountain Fuel Supply Co. at 1383; they are classic "EPAA issues."

Wyatt does argue that the remainder of his challenges to his conviction may be entertained by this Court. With regard to each issue, the premise of his argument is the same: noting that the claims involve allegations of procedural noncompliance, vagueness, and the constitutional prohibition on ex post facto laws, Wyatt characterizes them as problems of administrative and constitutional law, and concludes that they are, therefore, not issues arising under the EPAA or its regulations. But the question cannot be resolved by simple labeling. That issues comprehend legal principles beyond the EPAA does not of itself remove those issues from the jurisdiction the TECA; rather, the inquiry must focus on whether resolution of the question presented demands construction and application of the EPAA or its regulations. See Uni-Oil, Inc. at 950; Quincy Oil, Inc. at 893; Mobil Oil Corp. v. Tully, 639 F.2d 912, 915 (2d Cir. 1981); United States v. Wickland, 619 F.2d 75, 78-79 (Em.App.1980); Mountain Fuel Supply Co. at 1381-82.

Wyatt's charge that 10 C.F.R. § 210.62(c) is invalid because it was issued without compliance with the notice and comment procedures of section 4 of the APA, 5 U.S.C.A. § 553 (West 1977) without a doubt falls within the jurisdiction of the TECA.

Section 4 of the APA was incorporated by reference in § 5(a)(1) of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 754(a)(1). An issue arising under the APA is not a collateral issue, then, but, by virtue of § 5(a) (1) of the EPAA, an issue arising under the EPAA itself.

Energy Consumers, etc. v. Department of Energy, 632 F.2d 129, 139 (Em.App.1980) citing Texaco, Inc. v. Department of Energy, 616 F.2d 1193, 1197-98 n.4 (Em.App.1979) and Standard Oil Co. v. Department of Energy, 596 F.2d 1029, 1056 (Em.App.1978) (affirming its jurisdiction over a challenge to the validity of an EPAA "interpretive ruling" where the challenge was based on the promulgating agency's failure to comply with the notice and comment requirements of section 4(b) and (c) of the APA, 5 U.S.C. § 553(b) and (c)). As an EPAA issue, this question is beyond our purview.

Wyatt's constitutional claims demand a closer scrutiny. ⁸ The first is that 10 C.F.R. § 210.62(c), if interpreted to apply to transactions in crude oil, cannot be made the basis of a criminal prosecution because it sets so vague a standard as to fail to give the fair notice of proscribed conduct demanded by the due process clause of the fifth amendment. Review of this charge may be made-indeed, becomes necessary-only upon interpretation of the contested terms of section 210.62(c). A determination that the regulation does not reach transactions in crude oil would moot the dependent constitutional claim. A decision to the contrary would be predicated on a selection of either of two plausible interpretations of the regulation; the context of examination for vagueness would be defined only upon delineation of the...