United States v. Texas Energy Petroleum Corp.

• Decision Date: 11 October 1983
• Docket Number: No. 5-97.,5-97.
• Citation: 719 F.2d 394
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals
• Parties: UNITED STATES of America, Petitioner-Appellant, v. TEXAS ENERGY PETROLEUM CORP., Texas Energy Reserve Corp., Texas Energy Refining Corp., Texas Energy Fuels Corp., Texas Energy Investment Corp., Texas Energy Oil & Gas Corp., Commodities Reserve Corp., Respondents-Appellees, Honorable Robert O'Conor, Jr., Respondent.

719 F.2d 394

UNITED STATES of America, Petitioner-Appellant, v. TEXAS ENERGY PETROLEUM CORP., Texas Energy Reserve Corp., Texas Energy Refining Corp., Texas Energy Fuels Corp., Texas Energy Investment Corp., Texas Energy Oil & Gas Corp., Commodities Reserve Corp., Respondents-Appellees Honorable Robert O'Conor, Jr., Respondent.

No. 5-97.

Temporary Emergency Court of Appeals.

Argued September 29, 1983.

Decided October 11, 1983.

Kathryn Ferger, Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., and Lawrence Moloney, Washington, D.C., were on the brief for the U.S.

A. Frank Koury, Fulbright & Jaworski, Houston, Tex., with whom Sim Lake and Steven E. Segal of the same firm, Houston, Tex., were on the brief for respondents-appellees.

Before ESTES, BECKER and DAUGHERTY, Judges.

ESTES and WILLIAM H. BECKER, Judges:

Appellant, United States of America, brought this action on June 29, 1982, as a Petition to Enforce seven Department of Energy (hereinafter "DOE") subpoenas, issued on May 26, 1981, as amended September 22, 1981, to Appellees, Texas Energy Petroleum Corp., Texas Energy Reserve Corp., Texas Energy Refining Corp., Texas Energy Fuels Corp., Texas Energy Investment Corp., Texas Energy Oil & Gas Corp., and Commodities Reserve Corp., all affiliated corporations (hereinafter "Texas Energy").¹

On August 5, 1983, Appellees Texas Energy filed a counterclaim to the Petition to Enforce asking that the government be ordered to turn over documents sought by Texas Energy pursuant to a Freedom of Information Act² (hereinafter "FOIA") request submitted on July 13, 1982.³ On motion of Texas Energy, the court ordered that the depositions of three government officials be taken prior to the show cause hearing.⁴ On January 12 and 13, 1983, the show cause hearing was held. At the conclusion of the government's presentation of its case, Judge O'Conor ruled that the subpoenas were enforceable,⁵ but allowed Texas Energy to make an offer of proof as to its defenses to enforcement. Judge O'Conor also granted Texas Energy's request for a stay of the enforcement order at the show cause hearing.⁶ On February 17, 1983, written orders were entered enforcing the subpoenas and granting Texas Energy a stay of enforcement to "expire upon resolution of Texas Energy's appellate remedies adverse to Texas Energy, or upon the failure of Texas Energy to perfect their appeal." Record, Volume II at 360.

The United States filed a motion requesting the certification of the enforcement order of February 17, 1983, as a final appealable judgment under F.R.Civ.P. 54(b) and requesting that the stay on the subpoena enforcement order be revoked.⁷ On June 6, 1983, Judge O'Conor denied the United States' motion to certify the enforcement order pursuant to Rule 54(b).⁸

The United States filed a Notice of Appeal in this court on July 6, 1983, followed by a Petition for Writ of Mandamus on July 22, 1983. Also before us are Texas Energy's Motion for Expedited Consideration and Motion to Dismiss the Appeal, or in the Alternative, for Summary Affirmance, both filed on July 18, 1983.

The issues presented by this appeal are:

1. Whether this court has jurisdiction to hear this appeal pursuant to the collateral order doctrine authorized by 28 U.S.C. § 1291 or pursuant to petition for mandamus, 28 U.S.C. § 1651.

2. Whether mandamus is proper in this case.

3. Whether the district judge's stay of the subpoena enforcement order must be vacated and a final appealable order entered enforcing the subpoenas.

4. Whether Texas Energy should be awarded double costs and reasonable attorneys' fees.

JURISDICTION

The Supreme Court has stated that: "It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should." Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 291 (1821). We find this statement equally applicable to the case before us.

We have previously held that "this Court, with the power of a circuit court of appeals over cases within its jurisdiction, has the power and duty, under the doctrine of the Cohen case, to hear appeals of final decisions determining separate important collateral claims of right." Marine Petroleum Co. v. Champlin Petroleum Co., 657 F.2d 1231, 1239 (Em.App.1980); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Allied Paper Inc. v. United Gas Pipe Line Company, 561 F.2d 821, 825 (Em.App.1977); and Sun Oil Company of Pennsylvania v. FEA, 572 F.2d 867, 871 (Em.App.1978).

Orders of the district courts may be the subject of immediate review if they "fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In determining whether a particular order of a district court falls within the Cohen doctrine, the rule is to be given a "practical rather than a technical construction". Id. at 546, 69 S.Ct. at 1226; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981). This court has concluded that a practical construction "requires that when a plaintiff's action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation." Sun Oil Compay of Pennsylvania, supra, 572 F.2d at 870, quoting Hines v. D'Artois, 531 F.2d 726, 730 (5th Cir.1976).

APPLICATION OF THE COHEN DOCTRINE TO THIS CASE

A. Final Determination of a Claim of Right.

We agree with Appellant United States that the effect of the district court's June 6 order denying Rule 54(b) certification while maintaining the stay of the enforcement order is to hold the subpoena enforcement order in a state of "suspended animation" while it remains "hostage" to the FOIA counterclaim filed by Texas Energy. See Appellant's Brief at 9-10. Recently, we reiterated our concern that subpoena enforcement actions such as this be expedited in accordance with the "Congressional call for `prompt action by the Executive Branch'" in achieving the goals of the Emergency Petroleum Allocation Act, 15 U.S.C. § 751, as amended. United States v. RFB Petroleum, Inc., 703 F.2d 528, 533 (Em.App.1983), quoting United States v. Bell, 564 F.2d 953, 959 (Em.App.1977), Section 211(b)(1) of the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, and Section 4(b)(1)(F) of the Emergency Petroleum Allocation Act, supra. We have insisted on "speedy resolution"⁹ of DOE subpoena enforcement cases time after time in our numerous opinions on this subject.¹⁰ The right of the DOE to carry out its duty to promptly investigate suspected violations of its regulatory scheme has been denied. A later appeal by the DOE after final judgment on the FOIA counterclaim "could not provide a remedy" to the DOE which would replace its right to expeditious enforcement of these subpoenas. Marine Petroleum Co. v. Champlin Petroleum Co., 657 F.2d 1231, 1241 (Em. App.1980).

B. The Claim of Right Is Separable From and Collateral To, Rights Asserted in the Action, and Too Important To Be Denied Review.

The subpoenas at issue in this case have already been held enforceable by the district court.¹¹ Therefore, the issues remaining in the district court relate to Texas Energy's FOIA counterclaim. The claimed right to expeditious enforcement of the subpoenas is clearly separable from and collateral to rights asserted by Texas Energy in its counterclaim. More importantly, we find that the "claimed right asserted by a major and critical agency of the United States government engaged in administration of a pervasive emergency legislative program vital to the national welfare is too important to be denied review." Marine Petroleum, supra, 657 F.2d at 1241. The Emergency Petroleum Allocation Act is no longer in effect; therefore, the public interest in final, just, inexpensive and "speedy resolution"¹² of potential violations of the regulations while in effect is compelling. RFB Petroleum, supra, 703 F.2d at 533.

C. The Claim of Right Is Too Independent of the Cause Itself To Require that Appellate Consideration Be Deferred Until the Whole Case Is Adjudicated.

This case presents an unusual situation in which it would be particularly unjust and unnecessary to require that appellate consideration of the United States' claim of right to expeditious enforcement of subpoenas already held enforceable be deferred until the FOIA counterclaim is decided. Appeal of the subpoena enforcement claim presents questions solely within the jurisdiction of this court. United States v. Empire Gas Corp., 547 F.2d 1147 (Em. App.1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1326, 51 L.Ed.2d 592 (1977); United States v. Wickland, 619 F.2d 75, 78 (Em.App.1980). Appellate jurisdiction of the FOIA counterclaim would be within the jurisdiction of the Fifth Circuit Court of Appeals. The issues raised by the FOIA counterclaim appear only to involve the application of that statute; construction and application of the Emergency Petroleum Allocation Act, as amended, 15 U.S.C. § 751, et seq., or the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, will not be required. See Texaco, Inc. v. Department of Energy, 616 F.2d 1193 (Em.App.1979); United States v. Wyatt, 680 F.2d 1080 (5th Cir.1982); United States v. Uni Oil, Inc., 646 F.2d 946, 949-950 (5th Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1254, 71 L.Ed.2d 446 (1982); and cases cited therein.

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