United States v. Wickland, 9-45.

• Decision Date: 18 April 1980
• Docket Number: No. 9-45.,9-45.
• Parties: UNITED STATES of America, and June Wallach, Acting Area Manager, Economic Regulatory Administration, Department of Energy, Appellees, v. Al WICKLAND, Individually and as President of Wickland Oil Company, Appellant.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

619 F.2d 75

UNITED STATES of America, and June Wallach, Acting Area Manager, Economic Regulatory Administration, Department of Energy, Appellees, v. Al WICKLAND, Individually and as President of Wickland Oil Company, Appellant.

No. 9-45.

Temporary Emergency Court of Appeals.

April 18, 1980.

William W. Scott, Michael D. Sherman, John B. Williams, Collier, Shannon, Rill, Edwards & Scott, Washington, D. C., and John V. Diepenbrock, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., were on the brief for appellant.

Herman Sillas, U. S. Atty., and Francis M. Goldsberry II, Asst. U. S. Atty., Sacramento, Cal., with Ginger Lew, Regional Counsel, and James S. Williams and Nicholas Koumjian, U. S. Dept. of Energy, San Francisco, of counsel, were on the briefs for appellees.

Thomas H. Kemp, Dept. of Energy, Washington, D. C., for appellees.

Before JAMESON, DUNIWAY, and ZIRPOLI, Judges.

JAMESON, Judge:

Wickland Oil Company is a marketer of petroleum products, selling diesel fuel and gasoline at both the wholesale and retail levels. Most retail sales of gasoline are made through the company's wholly owned "Regal" stations. In connection with a pricing audit of Wickland Oil Company, the Federal Energy Administration¹ on August 8, 1977 served appellant, Al Wickland, individually and as president of Wickland Oil Company, with a subpoena to produce certain books, records, and pricing information. Wickland did not comply, but sought to quash or modify the subpoena pursuant to the administrative remedy provided in 10 C.F.R. § 205.8(h).²

Wickland was unsuccessful in quashing or modifying the subpoena at the administrative level. On March 14, 1978, Wickland complied with the subpoena as it related to wholesale diesel and gasoline sales, but continued to refuse to produce the subpoenaed materials relating to the Regal stations, claiming that the DOE was equitably estopped from continuing its investigation into the operations of the Regal stations.³

On April 21, 1978, pursuant to a petition to enforce the subpoena filed by appellees in the District Court of the Eastern District of California, the court ordered Wickland to appear and show cause why he should not be compelled to produce the subpoenaed records. Following briefs and oral argument, the court on December 5, 1978 entered findings of fact and conclusions of law, holding the subpoena valid and rejecting each of Wickland's contentions.⁴ By order entered on the same date appellant was required to comply in full with the subpoena theretofore served upon him. Judgment for appellees was entered on January 4, 1979.

On January 4, 1979, appellant filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit. On July 19, 1979, appellees filed a motion to dismiss the appeal on the ground that the circuit court lacked subject matter jurisdiction and that the Temporary Emergency Court of Appeals had exclusive appellate jurisdiction.

On November 16, 1979, the Ninth Circuit Court of Appeals entered an order (1) granting appellees' motion to dismiss because the Temporary Emergency Court of Appeals has exclusive jurisdiction over the appeal under 15 U.S.C. § 754(a)(1); (2) transferring the appeal to this court; and (3) providing that if this court declines to accept jurisdiction, the appeal shall be dismissed without further order of the Ninth Circuit Court of Appeals.

On November 23, 1979 the record on appeal was filed in this court. On November 29, 1979, appellant filed a petition for rehearing in the Ninth Circuit Court of Appeals. That motion was denied on January 17, 1980.

On February 15, 1980, appellant filed a motion in this court for a determination that the United States Court of Appeals for the Ninth Circuit has exclusive jurisdiction over this appeal, or that, in the alternative, this court accept the appeal by deeming January 4, 1979 (the date notice of appeal to the Ninth Circuit was filed in the district court) as the date of appeal to this court. On March 5, 1980, appellee filed a motion to dismiss the appeal for lack of jurisdiction as a result of appellant's failure to file a timely notice of appeal in this court.

Two questions are presented: (1) whether this court has exclusive jurisdiction of an appeal from an order requiring compliance with a subpoena issued by the FEA; and (2) if so, whether this court lacks jurisdiction because the appeal was not timely filed.

I. Jurisdiction of Appeal of Order Requiring Compliance with Subpoena

Section 211(b)(2) of the Economic Stabilization Act (ESA) provides:

"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. Such appeals shall be taken by the filing of a notice of appeal with the Temporary Emergency Court of Appeals within thirty days of the entry of judgment by the district court.

Section 206 of the ESA provides that an agency exercising authority under the Act "shall have authority, for any purpose related to this title, to sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant" documents.

Under Section 5 of the Emergency Petroleum Allocation Act of 1973 (EPAA), 15

U.S.C. § 754(a)(1), sections 206 and 211 of the ESA are made applicable "to any action taken by the President (or his delegate) under this Act". The issue accordingly is whether this appeal involves a case or controversy arising under the ESA and the EPAA within the meaning of § 211(b)(2) of the ESA. If so, this court has exclusive jurisdiction of the appeal.

This court has exercised jurisdiction in a number of cases over appeals of orders involving the enforcement of FEA or DOE subpoenas. See, e. g., United States v. Bell, 564 F.2d 953 (Em.App.1977); United States v. Empire Gas Corp., 547 F.2d 1147 (Em. App.1976), cert. denied, 429 U.S. 1122, 97 S.Ct. 1158, 51 L.Ed.2d 572 (1977); and United States v. Southwest Nat. Bank, 598 F.2d 600 (Em.App.1979).

In contending that the jurisdiction of this appeal is properly in the Ninth Circuit, appellant relies primarily on Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179 (2 Cir. 1979). We cannot agree that Coastal States supports appellant's position. In that case the court concluded "that `cases and controversies arising under' the ESA, as used in § 211(b)(2), means adjudications by a district court of an `ESA issue'." Id. at 187. The court defined "ESA issues" as "issues involving the ESA and the EPAA, as well as regulations promulgated under both statutes". Id. at 182, n. 3. The court did not believe, however, that the Temporary Emergency Court of Appeals should be burdened when one of the parties raises an ESA issue, but judgment is entered on a non-ESA ground. "What is determinative . . . is not the existence of an ESA issue, but whether the ESA issue has been adjudicated." Id. at 187.⁵

Here the issue is whether the DOE can be estopped from enforcing the subpoena power granted it by the EPAA. In our opinion this is an issue "involving the . . . EPAA". Through the subpoena the DOE is seeking information to determine whether there has been a violation of the ESA and the EPAA and regulations issued pursuant thereto. It involves a federal agency's attempt to fulfill its duty under statutes and regulations over which this court has exclusive jurisdiction. The district court has "adjudicated" an "EPAA issue".

Appellant next argues that this case presents only "general legal issues" of estoppel and subpoena enforcement which the court of appeals can confront without addressing ESA or EPAA questions. He maintains that the Supreme Court has admonished the courts to "not become involved in the intricate aspects of the regulatory activity", citing Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946) and United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950).

This admonition in Oklahoma Press must be viewed in the context in which it was made. The petitioners, in resisting a subpoena duces tecum, maintained that the Fair Labor Standards Act was not applicable to them "for constitutional and other reasons". In affirming an order enforcing the subpoena, the Court held that the agency, rather than the courts, should in the first instance determine the question of coverage in a preliminary investigation into possible violations. Id. at 214, 66 S.Ct. at 508. As Mr. Justice Clark stated in American Intern. Trading Co. v. Bagley, 536 F.2d 1196, 1198 (7 Cir. 1976), "It will be soon enough on direct appeal from agency action to determine the question of power."⁶ And in F.T.C. v. Gibson, 460 F.2d 605, 608 (5th Cir. 1972), the court noted that under the rule of Oklahoma Press, "appellants may not litigate the jurisdictional issue as a defense in a subpoena enforcement proceeding."

In other words, Oklahoma Press and its progeny simply hold that in subpoena enforcement proceedings the courts should not entertain challenges to the subpoena power based on jurisdictional questions such as the constitutionality or coverage of regulatory legislation. They do not, as appellant contends, prohibit courts from examining issues relevant to the "regulatory activity". This case does not involve, as in Oklahoma Press, the question of the constitutionality or validity of the Act under which the subpoena was issued. The subpoena here was clearly issued pursuant to a provision of the ESA. The estoppel defense asserted by appellant involved the effect of a price reduction order entered by the DOE. Any "general questions of administrative law" are clearly interwoven with provisions of the ESA and EPAA and invoke policy questions directly affecting the EPAA and its enforcement. The district court has adjudicated an issue involving the validity and...