Opposition — Withington v. Federal Energy Administration

No. 76-957

Supreme Court, U. S,

ae FILED

nr

MAR 14 1977

A

In the Supreme Court of the Wnited States

OcTOBER TERM, 1976

D. L. WITHINGTON, PETITIONER

V.

FEDERAL ENERGY ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

Department of Justice,

Washington, D.C. 20530.

4

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In the Supreme Court of the Hnited States

OcTORER TERM, 1976

No. 76-957

D. L. WITHINGTON, PETITIONER

ve

FEDERAL ENERGY ADMINISTRATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

Petitioner brought this action in the United States Dis-

trict Court for the Northern District of Oklahoma to

challenge certain actions of the Federal Energy Admin-

istration pursuant to the Emergency Petroleum Alloca-

tion Act of 1973, 87 Stat. 627, as amended, 15 U.S.C.

(Supp. V) 751 et seg. On June 10, 1976, the district court

entered summary judgment in favor of respondents (Pet.

App. A). On June 21, 1976, petitioner filed notice of appeal

to the Court of Appeals for the Tenth Circuit. On August

25, 1976, the Tenth Circuit dismissed the appeal for lack of

jurisdiction (Pet. App. B).

The decision of the Tenth Circuit is correct since appeal

in cases of this type lies exclusively in the Temporary Emer-

gency Court of Appeals. The Emergency Petroleum Allo-

cation Act, IS U.S.C. (Supp. V) 754(a)(1) expressly in-

corporates Section 211(b)(2) of the Economic Stabilization

(1)

2

Act of 1970, as added, 85 Stat. 749, reprinted in the note to

12 U.S.C. (Supp. V) 1904, which provides that 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 * * *.” Consequently, the Temporary Emergency

Court of Appeals and not the Court of Appeals for the

Tenth Circuit had jurisdiction over petitioner's appeal. M.

Spiegel & Sons Oil Corp. v. B. P. Oil Corp., 531 F. 2d 669

(C.A. 2). See Bray v. United States, 423 U.S. 73; United

States v. Cooper, 482 F. 2d 1393 (T.E.C.A.). Accordingly,

the petition for a writ of certiorari should be denied.!

Respectfully submitted.

DANIEL M. FRIEDMAN,

Acting Solicitor General.

Marcu 1977.

'The record indicates that during the hearing on respondents’ motion

to dismiss, the district court suggested that petitioner could appeal to

the Tenth Circuit (Tr. 82), and that after the Tenth Circuit dismissed

petitioner's appeal for lack of jurisdiction the clerk of the T-mporary

Emergency Court of Appeals refused to accept petitioner's notice of

appeal in that court as untimely (Pet. App. C). If petitioner believes

that those facts constitute unique circumstances warranting waiver of

the time requirements of the rules of the Temporary Emergency Court

of Appeals (see Fallen v. United States, 378 U.S. 139; Harris Truck

Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215), his proper

recourse is to file a motion in the Temporary Emergency Court of

Appeals requesting that his untimely appeal be accepted for filing. See

Reed v. Kroger Co., 478 F. 2d 1268 (T.E.C.A.).

It should be noted, however, that notwithstanding the district court's

suggestion, petitioner had ample notice that appeal could be taken

only in the Temporary Emergency Court of Appeals. !n addition to the

notice provided by the statute, respondents’ motion to dismiss the

appeal, which pointed out the Tenth Circuit's lack of jurisdiction, was

served on July 2, 1976, ten days before the expiration of the time to

appeal to the Temporary Emergency Court of Appeals. Despite that

notice, petitioner failed to perfect his appeal to the latter court.

DOJ-1977-03