McWhirter Distributing Co. v. Texaco Inc.

DUNIWAY, Judge,

concurring and dissenting:

In No. 9-49, I concur.

In No. 9-50, I dissent, because I believe that we do not have jurisdiction of the appeal.

In No. 9-50, the claim asserted by Texaco is one under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 (b), 2674, against DOE. The trial court concluded that Texaco had stated a claim for relief based upon abuse of process or malicious prosecution against Texaco by DOE by means of violations of DOE’s own regulations.

The majority opinion holds that this claim “arises directly under EPAA regulations.” I cannot agree. Our jurisdiction was created by the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 , note, incorporated by 15 U.S.C. § 754 . Section 211(b)(2) of that Act defines our jurisdiction as: “. . . 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.”

We have been strict in limiting our jurisdiction to these matters. The leading case is United States v. Cooper, Em.App., 1973, 482 F.2d 1393 . There, Cooper was indicted for federal offenses, one of which was viola *529 tion of 18 U.S.C. § 1001 by making false representations to the Internal Revenue Service in a letter concerning rent raises to his tenants, the raises being in violation of regulations of the Price Commission under the Stabilization Act. Cooper appealed his conviction to this court. We held that the language of § 211(b)(2) should be strictly construed, that the charge was not one arising under the Stabilization Act, but was one arising under Title 18, and that we did not have jurisdiction over the appeal from the conviction on that charge. 482 F.2d at 1397—98. The present case closely resembles Cooper . Here, the claim “arises under” the Tort Claims Act, and the applicable law would be state law. It is true that one element of the claim would be that DOE violated its regulations. But the heart of the claim would be the tort claim, under the Federal Tort Claims Act. Similarly, in Cooper , one element of the offense was that the false statement related to a matter within the jurisdiction of the Price Commission. But the heart of the offense was the violation of § 1001 of Title 18.

Cooper was cited and quoted with approval in Bray v. United States, 1975, 423 U.S. 73 , 96 S.Ct. 307 , 46 L.Ed.2d 215 . That case involved enforcement of a subpoena issued in connection with an inquiry into possible violations of the Stabilization Act. The district court ordered compliance, and Bray refused to do so. He was then convicted of criminal contempt under 18 U.S.C. § 401 . He appealed to the Tenth Circuit, which held that he should have appealed to this court, and dismissed. The Supreme Court, on certiorari, reversed, holding that the Tenth Circuit, not this court, had jurisdiction. Again, the situation in Bray is closely analogous to that in the case at bar.

Other cases in which we have denied jurisdiction, none of which is precisely in point, but each of, which is so closely analogous as to be highly persuasive, are United States v. Zang, Em.App., 1981, 653 F.2d 493, 496 ; Gulf Oil Corp. v. U. S. Dep’t of Energy, Em.App., 1981, 639 F.2d 766 ; Texaco, Inc. v. Dep’t of Energy, Em.App., 1979, 616 F.2d 1193, 1195-98 .

I would dismiss the appeal in No. 9-50 for want of jurisdiction in this court. I therefore express no opinion as to the merits of that appeal.