# Opposition — Withington v. Federal Energy Administration

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1137%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 945

## Text

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

f ‘ Ni in C ERK
aie res =

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1137%3A2. Public record. Not legal advice.