Petition — Union Oil Co. v. Ashland Oil Co.
Supreme Court brief1978
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-~ Supreme Court, U. S
' FILED
JAN 11 1978
MICHAEL RODAK, JR., CLERK
In the Supreme Court o
United States
No] ] -993
UNION O11 COMPANY OF CALIFORNIA,
a California corporation,
achen Petitioner,
VS.
ASHLAND O1L COMPANY OF CALIFORNIA,
a California corporation, and
DEPARTMENT OF ENERGY
Petition for Writ of Certiorari to the
Temporary Emergency Court of Appeals
of the United States
Moses LASKY
Spear Street Tower, Suite 2840
1 Market Plaza
San Francisco, CA 94105
Telephone: (415) 442-0900
Attorney for Petitioner
Of counsel:
BROBECK, PHLEGER & HARRISON
Spear Street Tower
1 Market Plaza
San Francisco, CA 94105
Telephone: (415) 442-0900
= —
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, GAN FRANCISCO 94105
SUBJECT INDEX
Page
Opinions below .............c..ccceccscsseess sonheihanialiaanicaiie suesiisideataialciaillais l
| STII irsscehchtdniticinepetrennmacininiagsen ssniniseticindenteniessigesiahectiniiiiglite 2
RD BI cccissessttcicisiciciininitananininsinnniinssiniainicaintisatnaiens —
| BORNRES MIVOEUOE cnceccxcccccsccesecccsecsccecsees shaiieliiiadeiuaaneds stcicientaiaion a
| I 6
Reasons for granting the wit .................cccss-scecsesseresserenseocerees 7
I UIIIIINIES - siscsnsnceinssneccntnsticicpiinstncitiatniaiiinitbaniinnintintsanaiesinisstimieaanimianiabeniiinin 17
Appendices. ................. DIR CRE ee RED ORES EN OTT App. 1
TABLE OF AUTHORITIES
CASES Pages
American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951)... 13
Auto Workers v. Hoosier Corp., 383 US. 696
RIT | sennccanretinin canseannlaesaannenaibanmadde 7,10, 11
Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927)........ 12, 13, 14
Bernhardt v. Polygraphic Co., 350 U.S, 198 (1956) ............ 8
Campbell v. Haverhill, 155 U.S. 610 (1895) 0.0.2... ceceeseeeees 7
Chattanooga Foundry v. Atlanta, 203 U.S. 390 (1906)........ 7
Day v. Greene, 59 Cal.2d 404, 29 Cal. Rptr. 785 (1963)......15, 17
DeRieux v. Five Smiths, Inc., 499 F.2d 1321 (T.E.C.A.
1974), cert. denied, 419 U.S. 896 (1974) ..........-cesseeeeseees 15, 16
Dixie Machine Welding & Metal Works v. United States,
Re TL Re Ee an 11
Ernst & Ernst v. Hochfelder, 425 U.S, 185 (1976) ...........0-+. 7
F. L. Mendez & Co, v. General Motors Corporation, 161 F.2d
695 (7 Cir. 1947), cert. denied, 332 U.S. 810 ..........-cee0e00-- 13
Ford Motor Co. v. Superior Court, 35 Cal.App.3d 676, 110
Be ciiisictescheciiesdaeconetineindotenenotat’ 15, 17
Gooding v. Wilson, 405 U.S. 518 (1972) ......ccccceseseseeeeneees 8
Hurn v. Oursler, 289 U.S. 238 (1933) ......c.c-ccceceseesessseenseess 13
Johnson v. Railway Express Agency, 421 U.S. 454
eae NERS ioe eee EME NE ARE a 7,10, 11
Leh v. General Petroleum Corp., 330 F.2d 288 (9 Cir. 1964),
rev'd on other grounds, 382 U.S. 54 (1965) .........-.-00-000 8
Longview Refining Co. v. Shore, 554 F.2d 1006 (T.E.C.A.
ROR cae RRR Ee rosie Nin nines ssl wsaronr 15
TABLE OF AUTHORITIES iii
Pages
Magnolia Petroleum Co. v. Hunt, 320 U.S, 430 (1943)...... 14
McAllister v. Magnolia Petroleum Co., 357 U.S. 221
RETR EST Ado 14, 17
McMahon v. United States, 186 F.2d 227 (3 Cir. 1950)...... 14
Mine Workers v. Gibbs, 383 U.S. 715 (1966) ..........-..css000 13
Occidental Life Insurance Co. v. Equal Employment Oppor-
tunity Commission, ........ | , 97 S.Ct. 2447 (1977) 9
O'Sullivan v. Felix, 233 U.S. 318 (1914) ......e.ecccceeeeeeeneee 7
Rawlings v. Ray, 312 U.S. 96 (1941) ..........-ssecesessesseeeseeneees
Richardson v. Mellish, 2 Bing. 229, 130 E.R. 294 (1824)... 11
Runyon v. McCrary, 427 U.S. 160 (1976) ........2..-0-cesesseseeeees 7
Schriber-Schroth Co. v. Cleveland Trust Co., 305 U.S. 47
EUIETED <encsennngteniosencaprineianehanianmnicianiineseginnmamenisiiiins 7
Stone v. James, 142 Cal.App.2d 738, 299 P.2d 305 (1956)....16, 17
Unanue v. Carribbean Canneries, Inc., 323 F.Supp. 63 (D.
BN SET \acchcciaciuliaasaacadhsbiuitbiniantntinthesciioanpardiisitalen 13
United Air Lines, Inc. v. McMann, ........ A Sosa , 46
ee eS, , nena 9
United States v. Magnolia Motor & Logging Co., 208 F.Supp.
ek a TN wince cemcirernnnsencnenseernsanie 16
Williamson v. Columbia Gas & Electric Corp., 186 F.2d 464
(3 Cir. 1950), cert. denied, 341 U.S, 921 (1951) ............ 13
Wood v. Carpenter, 101 U.S. 135 (1879) o..cc.ccccccceee cscssessee 17
Waulfjen v. Dolton, 24 Cal.2d 891, 151 P.2d 846 (1944)...... 15
iv TABLE OF AUTHORITIES
STATUTES, RULES AND REGULATIONS Pages
California Code of Civil Procedure
BRE, DOD ceceececssnescsmsstnsnicemaininenieiniiiiieea eee 5,12
IG, SDD xcniexssscnsrecsnevsssctnstnecenemmctestinidamaiadaaalae 5
Sec. 338 ...... dvevesocaenesrecsessecseenneensensnuiinnessbnaseieienieiaiieseeiaaiitn 5
BABE. SED ...creccesscousescsnesssvuntissiiisitennenincsidiniemmaaaiannee 5,6
Civil Rights Act of 1964, Title VII ..............s:cscsssecesersseeceeees 9
10 Code of Federal Regulations
Ff 2) ee snanseavevaveouancsesuusonmniaieasinsdnniiaunaaiaias 6
= ee seavusupaceonemnsdeniensatshnindiundenhimsiaanaal 6
BNE. BEBID ..cccrescrscrisninicsencsstessnitininteameianaaaeal 6
Defense Production Act of 1950, 64 Stat. 811, Ch. 932,
DEED ccemicrennsinpnenitinneninniiieiinds ovncmnasnannnessinniéieliisiumaaain 9, 10
Department of Energy Organization Act, § 705(c) (2), 91
Stat. 607, 42 U.S.C. $7295 (1977) -..cecccscsssnssessseecceeenssnsene 2,3
Economic Stabilization Act of 1970, 84 Stat. 799, as amended,
85 Stat. 743, 12 U.S.C.A. § 1904, et seq.
we Sm 15
Sec. 208, 85 Stat. 747 ....0.00000000.. salmscseiunnidaiaea 15
we. | fF | Pe eee i. 4,6,9, 13,15
Sec, 211(a), 85 Stat. 748 oocccccccccccssssesssesssesueveesessesemee 244
Sec. 211(b) (2), 85 Stat. 749 .....-ccccesecccsneseccsnesenensaeesernndy Sy 15
Sec. 211(g), 85 Stat. 750 ecco scmvedaaaee 2,5
ares Petroleum Allocation Act of 1973, as amended
§ 5(a) (1). 87 Stat. 633, as amended, 89 Stat. 948, (15
UBL, G TSGECIE EDD .ccccscsnesstincnsseieieenniienaaanene 2,3
§ 5(a) (3), 89 Stat. 949, 15 U.S.C. § 754(a) (3) - 15
Emergency Price Control Act of 1942, 56 Stat. 34, as
amended, 58 Stat. 640, § 205 (€) ..........cccccccceseeeseseseseeeees . 2
United States Code
Title 15, $ 15b.
Title 28, $1331(a) 0.00000. sacevnesesiubintisiadialainaaaaaaa 2,5
Title 42, § 1981 ................. seovenaninmeasitahtis seipoenenatiieeiaas = ae
United States Supreme Court Rules, Rule 58(2) .. aadae 7
.
In the Supreme Court of the
United States
No.
UNION O1L COMPANY OF CALIFORNIA,
a California corporation,
Petitioner,
Vs.
ASHLAND O1L COMPANY OF CALIFORNIA,
a California corporation, and
DEPARTMENT OF ENERGY
Petition for Writ of Certiorari to the
Temporary Emergency Court of Appeals
of the United States
Petitioner prays that a writ of certiorari issue to reverse that
portion of the judgment of the Temporary Emergency Court of
Appeals in Ashiand Oil Company of California v. Union Oil
Company of California and Department of Energy, No. 9-38,
which reversed the judgment of the district court.
OPINIONS BELOW
The opinion of the Temporary Emergency Court of Appeals
has not yet been reported; a copy is attached as Appendix A.
Appendix B is a copy of its judgment. The district court wrote no
All emphasis in quotations in this petition has been added, unless other-
wise stated.
2
opinion, but its reasons were expressed from the bench; a tran-
script of its remarks is attached as Appendix C.
JURISDICTION
The jurisdiction of this Court rests on §705(c)(2) of the
Department of Energy Organization Act (1977), 91 Stat. 607
(42 U.S.C. §7295 note), which preserves to actions already
commenced the provisions of § 5(a) (1) of the Emergency Petro-
leum Allocation Act of 1973, 87 Stat. 633, as amended, 89
Stat. 948 (15 U.S.C. §754(a)(1)), which in turn incorporated
§ 211(g) of the Economic Stabilization Act of 1970, as amended,
85 Stat. 750 (12 U.S.C. § 1904 note). The judgment of the court
below was entered December 12, 1977. Its jurisdiction was based
upon § 211(b) (2) of the 1970 Act, as amended, 85 Stat. 749,
incorporated into the 1973 Act, 87 Stat. 633. The district court
had jurisdiction under 28 U.S.C. § 1331(a) and § 211(a) of the
1970 Act, as amended, 85 Stat. 748, as incorporated into the
1973 Act, 87 Stat. 633.
QUESTION PRESENTED
An action was brought to enforce rights created by a federal
statute which provides no period of limitations, namely, an action
under the Emergency Petroleum Allocation Act of 1973, continued
in the Department of Energy Organization Act (1977), to recover
for alleged excess of prices charged over government-imposed
ceiling prices. The Act permits award of treble damages. Both
courts below held that recovery of treble the overcharge was
barred by the state one-year statute of limitations applicable to
actions upon a statute for a penalty, and the district court con-
strued the same state statute as barring recovery of the “over-
charge” and so held. The court below refused to apply the state
statute of limitations to the “overcharge” because of its own
view of a “national policy’ admittedly not found in the text
of the statute or its legislative history. Then, to the end of filling
3
the gap produced by its refusal to apply state law, it split the
single cause of action created by Congzess into two remedies,
one for single and the other for multiple damages, and created
its own period of limitations for the second of the two remedies.
Did it not thereby err? Is there any basis for departure from law
settled by this Court (1) that the availability of different remedies
does not constitute different causes of action, and (2) that the
state statute of limitations must be applied?
STATUTES INVOLVED
DEPARTMENT OF ENERGY ORGANIZATION AcT, § 705(c) (2)
91 Stat. 607 (42 U.S.C. § 7295):
“(1) the provisions of this Act shall not affect suits com-
menced prior to the date this Act takes effect, and,
“(2) in all such suits, proceedings shall be had, appeals
taken, and judgments rendered in the same manner and
effect as if this Act had not been enacted.”
EMERGENCY PETROLEUM ALLOCATION ACT OF 1973, § 5(a)
(1), 87 Stat. 633, as amended, 89 Stat. 948-9 (15 U.S.C. § 754
(a)(1)):
“ *** sections 205 through 207 and sections 209 through 211
of the Economic Stabilization Act of 1970 (as in effect on
the date of enactment of this Act) shall apply to the regula-
tion promulgated under section 4(a), to any order under
this Act, and to any action taken by the President (or his
delegate) under this Act, as if such regulation had been
promulgated, such order had been issued, or such action
had been taken under the Economic Stabilization Act of
1970; **%"’
ECONOMIC STABILIZATION ACT OF 1970, as amended, 85 Stat.
748-750 (12 U.S.C.A. § 1904 note) :
Ҥ 210. Suits for damages or other relief
“(a) Any person suffering legal wrong because of any
act or practice arising out of this title, or any order or regu-
4
lation issued pursuant thereto, may bring an action in a
district court of the United States, without regard to the
amount in controversy, for appropriate relief, including
an action for a declaratory judgment, writ of injunction
(subject to the limitations in section 211), and/or damages.
“(b) In any action brought under subsection (a) against
any person renting property or selling goods or services
who is found to have overcharged the plaintiff, the court
may, in its discretion, award the plaintiff reasonable attor-
ney’s fees and costs, plus whichever of the following sums
is greater:
“(1) an amount not more than three times the amount
of the overcharge upon which the action is based, or
(2) not less than $100 or more than $1,000;
except that in any case where the defendant establishes that
the overcharge was not intentional and resulted from a
bona fide error notwithstanding the maintenance of pro-
cedures reasonably adapted to the avoidance of such error
the liability of the defendant shall be limited to the amount
of the overcharge: Provided, That where the overcharge
is not willful within the meaning of section 208(a) of this
title, no action for an overcharge may be brought by or on
behalf of any person unless such person has first presented
to the seller or renter a bona fide claim for refund of the
overcharge and has not received repayment of such over-
charge within ninety days from the date of the presentation
of such claim.
“(c) For the purposes of this section, the term ‘over-
charge’ means the amount by which the consideration for
the rental of property or the sale of goods or services
exceeds the applicable ceiling under regulations or orders
issued under this title.”
Sec. 211(a): “The district courts of the United States
shall have exclusive original jurisdiction of cases or con-
troversies arising under this title, or under regulations or
orders issued thereunder, notwithstanding the amount in
controversy; ***"
5
Sec. 211(b)(2): “The Temporary Emergency Court of
Appeals shall have exclusive jurisdiction of all appeals from
the district courts of the United States in cases and con-
troversies arising under this title or under regulations or
orders issued thereunder.”
Sec. 211(g): ‘“Within thirty days after entry of any judg-
ment or order by the Temporary Emergency Court of
Appeals, a petition for a writ of certiorari may be filed
in the Supreme Court of the United States, and thereupon
the judgment or order shall be subject to review by the
Supreme Court in the same manner as a judgment of a
United States court of appeals as provided in section 1254
of title 28, United States Code.”
28 U.S.C. § 1331(a): ‘The district courts shall have orig-
inal jurisdiction of all civil actions wherein the matter in
controversy exceeds the sum or value of $10,000, exclusive
of interest and costs, and arises under the Constitution, laws,
or treaties of the United States.”
California Code of Civil Procedure:
§ 312: “Civil actions, without exception, can only be com-
menced within the periods prescribed in this title, after the
cause of action shall have accrued, unless where, in special
cases, a different limitation is prescribed by statute.”
§ 335: “The periods prescribed for the commencement of
actions other than for the recovery of real property, are as
follows:”
§ 338: “Within three years:
“1. An action upon a liability created by statute, other
than a penalty or forfeiture.”
§ 340: “Within one year:
“1. An action upon a statute for a penalty or forfeiture,
when the action is given to an individual, or to an individual
and the State, except when the statute imposing it prescribes
a different limitation;”
6
STATEMENT OF THE CASE!
Petitioner Union was compelled by the Federal Energy Admin-
istration [“FEA’’} to sell gasoline to Ashland, not one of its own
customers, and to do so at prices at which it sold to customers
of its own selection in the same classification (10 C.F.R. §§ 212.31,
212.82, 212.83).
Section 210 of the 1970 Act* under which FEA issued its regula-
tions provides that one charged more than the ceiling may sue
and recover, and that recovery is to consist of treble the over-
charge or not less than $100 nor more than $1,000, whichever is
the greater—the treble or the dollar amount—wnless the defendant
affirmatively establishes as a defense that the overcharge was not
intentional and resulted from a bona fide error.
More than a year after the last sale to it by Union, Ashland
sued Union in the Northern District of California alleging that
Union had charged it prices in excess of the FEA ceilings, Ash-
land’s complaint repeated the same claim in two counts, in one
praying for the difference between the alleged ceiling prices and
the prices charged, in the other praying for three times the differ-
ence, plus, in each instance, attorney's fee. Upon Union's motion,
the district court dismissed the action as one “upon a statute for
a penalty or forfeiture” barred by the California one-year statute
of limitations (quoted, p. 5 above).
On appeal, the Temporary Emergency Court of Appeals
affirmed in part and reversed in part. It held that the California
one-year statute did bar Ashland’s prayer for treble the difference
between the prices charged and the alleged ceiling but that the
prayer for the difference was not barred.
1. The case having been dismissed on the complaint, a copy of which
is attached as Appendix D, we take the facts from its allegations.
2. Quoted, pp. 3-4 above.
7
REASONS FOR GRANTING THE WRIT
The court below has legislated, and it has justified its doing
so by combining two courses of reasoning, each of which is in
conflict with settled applicable decisions of this Court. Because
all appeals under the federal statute here involved are channeled
to the Temporary Emergency Court of Appeals, no conflict be-
tween circuits is possible, a factor peculiarly calling for certiorari
under Schriber-Schroth Co. v. Cleveland Trust Co., 305 U.S. 47,
50 (a case singled out for attention in the Court’s Rule 58(2)).
The starting point of the case is the fundamental rule that, in
any suit on a cause of action created by federal statute, the statute
of limitations of the state where the action is brought controls if,
as here, Congress has not itself prescribed the period of limita-
tions.* This case is one of a series coming to the Court in recent
years where lower courts have disregarded, or litigants have sought
to have them disregard, that settled rule, in order to apply some
different period of limitations or no period at all, according to
the court’s notion of what it would have enacted had it been Con-
gress, doing so on the basis of an imagined “national public
policy” neither stated in the statute nor found in the legislative
history.
The evil of the treatment given this case by the court below
reaches far beyond an improper decision under 4 particular statute.
The law is a “seamless web’, and the evil consists of doing vio-
lence to principles pervading the whole fabric of jurisprudence
3. For example, Campbell v. Haverhill, 155 U.S. 610 (1895) (Patent
Act); Chattanooga Foundry v. Atlanta, 203 U.S. 390 (1906) (Sherman
Act prior to the passage of 15 U.S.C. §15b in 1955); O'Sullivan v.
Felix, 233 U.S. 318 (1914) (Civil Rights Act of 1871); Rawlings v.
Ray, 312 US. 96 (1941) (National Bank Act); Auto Workers v.
Hoosier Corp., 383 U.S. 696 (1966) (Section 301 of the National Labor
Relations Act); Johnson v. Railway Express Agency, 421 US. 454
(1975) (Civil Rights Act of 1870); Ernst & Ernst v. Hochfelder, 425
U.S. 185, 210 n. (1976) (Securities Exchange Act of 1934); Runyon r.
McCrary, 427 U.S. 160 (1976) (Civil Rights Act of 1866).
8
and thus creating precedent to disjoint the law in innumerable
other situations.
The district court and the court below concurred in holding
that an action for treble damages is an action for a penalty and
therefore subjeet to California's one-year period. The district
judge, learned in California law,‘ also held that where a statute
allows treble damages, even though it does not mandate them, it
too is a statute for a penalty within the meaning of the California
statute of limitations, and that any claim for unmultiplied dam-
ages created by the same statute is as much barred, under Cali-
fornia law, as a claim for multiple damages.
The court below did not place its decision upon any disagree-
ment with that understanding of California law. Instead, in a
remarkably candid opinion, it took two other courses of reason-
ing, neither sufficient by itself to sustain its conclusion and neither
valid.® It held that the applicable state statute may be ignored if,
in the court's opinion. it would frustrate some “overriding national
policy”. It epitomized this course of reasoning thus (App., pp.
7-8):
“fi}n determining whether a state statute of limitations
will be applied to a federal right, courts must be guided by
public policy expressed by Congress. Thus, there need not
be applied a state limitation period which the court finds to
be inconsistent with the federal policy involved.”
4. The interpretation of state law by a federal judge sitting in that
state, especially where the judge is a member of the bar of the state, as
here, is given great weight. Bernhardt v. Polygraphic Co., 350 U.S. 198,
204 (1956); Gooding v. Wilson, 405 U.S, 518, 524 (1972).
5. While determination of what a federal statute provides is for the
federal courts, determination of what state statute of limitations applies
to statutory claims of the kind thus determined to have been created by
the federal statute is a matter of state law. Leh v. General Petroleum
Corp., 330 F.2d 288 (9 Cir. 1964), reversed on other grounds, 382 U.S.
54. If the court below had been either able or willing to say that the
district court erred in holding that under California law the one-year
statute applies to any claim created by a statute permitting treble damages,
it could have disposed of this case on that basis without embarking on its
two-pronged course of reasoning.
9
While the court cited Occadental Life Insurance Co. v. Equal Em-
ployment Opportunity Commission, ........ __) ae , 97 S.Ct. 2447
(1977), as support for this proposition, it acknowledged that
Occidental and this case are quite different. In holding that no
statute of limitations bars a suit brought by the Equal Employment
Opportunity Commission, this Court had carefully explained that
its decision turned upon the fact that Title VII of the Civil Rights
Act of 1964 placed duties and obligations on the Commission
and envisaged procedures by it inconsistent with any statute of
limitations at all and that the history of the Act demonstrated that
Congress did not intend state statutes of limitations to apply.
Again candidly, the court below acknowledged that neither the
pertinent Act in the present case nor its history contained any-
thing comparable, for it said (App., pp. 8-9):
“But dissimilarly, EPPA contains no indication that expressed
national policy is inconsistent with any fixed period of limita-
tion borrowed from state law, nor does our case directly
involve enforcement of a public right by governmental action
as did Occidental Life. There is no suggestion whatever in
the statutory structure undergirding the claims before us
that Congress intended no limitation provisions to apply
or that state statutes of limitations should not be looked to in
accordance with the general rule in the absence of express
federal provision. Nor can anything be discerned to indicate
that the relatively brief but not unusual period of limitation
found in state law should not be applied to any claims in the
nature of penalties.”
Nevertheless, the court proceeded upon an assumption of a
supposed “overriding national policy’, without ever identifying
it beyond the court's feeling that one year is too short a time
for an action seeking non-multiple damages. But an ‘‘Act is the
vehicle by which its purposes are expressed and carried out”,
United Air Lines, Inc. v. McMann, ........ US. ........, 46 U.S.L.W.
4043, 4045 (Dec. 12, 1977). And a conclusion that a one-year
statute of limitations would frustrate national policy is readily
10
shown to be fallacious. Section 210 of the Economic Stabilization
Act, here involved, was modeled on the Defense Production Act
of 1950 (64 Stat. 811, Ch. 932, § 409(c)), the price control act
of the Korean conflict, which in turn was modeled on the price
control act of World War II (Emergency Price Control Act of
1942 (56 Stat. 34, as amended, 58 Stat. 640)). In those acts
Congress expressly required suit to be brought within one year
“from the date of the occurrence of the violation”. Thus Con-
gress plainly showed that it did not regard a one-year period
as frustrating public policy of an act setting price ceilings. And
in Johnson v. Railway Express Agency, 421 US. 454 (1975),
brought under 42 U.S.C. § 1981 for employment discrimination,
this Court held that a state one-year statute barred the action.
Yet a policy so fundamental as prohibiting racial discrimination
is either more vital or at least as vital as a price control policy.
This Court specifically commented in Johnson (pp. 463-464) :
“Although any statute of limitations is necessarily
arbitrary, the length of the period allowed for instituting
suit inevitably reflects a value judgment concerning the
point at which the interests in favor of protecting valid
claims are outweighed by the interests in prohibiting the
prosecution of stale ones. * * * In borrowing a state
period of limitation for application to a federal cause of
action, a federal court is relying on the State's wisdom
in setting a limit * * * on the prosecution of a closely
analogous claim.”
The court below held that national policy is not frustrated by
a three-vear bar. At what point does a frustration occur? At 2,
or only at 1? These are legislative questions, not judicial. As
said by this Court in Auto Workers v. Hoosier Corp., 383 US.
696, 702-703 (1966),
“Thus, although a uniform limitations provision for § 301
suits might well constitute a desirable statutory addition,
there is no justification for the drastic sort of judicial legis-
lation that is urged upon us.”
11
And (at 701) it characterized a rejection of state law as so “bald
a form of judicial innovation” and said (p. 704):
“Against this background [of settled decision since Camp-
bell v. Haverhill |, we cannot take the omission in the pres-
ent statute as a license to judicially devise a uniform time
limitation for § 301 suits.”
What is a reasonable period of limitations is a value judgment,
and when Congress states no period of limitation itself, it accepts
the value judgment of the state, not of the courts, and declares
the national public policy to be that the state statute controls. So
this Court held in the Johnson case.
No doubt there is a national public policy about price controls,
stated in the statute and the regulations. But, as this Court said
in Johnson v. Railway Express Agency, supra, there is no public
policy about the period of limitations. It there said (p. 467, fn.
13):
“We pote expressly how little is at stake here. We are not
really concerned with the broad question whether these re-
spondents can be compelled to conform their practices to
the nationally mandated policy of equal employment oppor-
tunity. . . . The question in this case is only whether this
particular petitioner has waited so long that he has forfeited
his right to assert his § 1981 claim in federal court.”
The result of the court's invoking ‘public policy” validates the
oft quoted statement* of Lord Burrough in Richardson v. Mellish,
2 Bing. 229, 252, 130 E.R. 294, 303, that:
“.. . public policy . . . is a very unruly horse, and when
once you get astride it you never know where it will carry
you. It may lead you from the sound law. It is never argued
at all but when other points fail.”
Having rejected California’s one-year period on “policy” rea-
sons, having mounted that “unruly horse’, and realizing that
6. Quoted, for example, in Dixie Machine Welding & Metal Works
v. United States, 315 F.2d 439, 441 (5 Cir. 1963).
12
something more solid was needed than to pick a different time
period out of the air, the court below embarked on its second
course of reasoning, which led it away from ‘sound law’, It pro-
ceeded as if the federal statute on which the action is based
creates two separate causes of action, because, so it said, Ash-
land’s alternative prayers for relief involved “essentially different
combination of elements’, giving rise to two ‘‘rights of action”.
This is how it characterized the provision of the statute that
treble damages are defeated if the defendant affirmatively estab-
lishes that the overcharge was not intentional or was the result of
bona fide error, but single damages are not. The court then ana-
logized the remedy of “single damages” to a cause of action on
a non-penal statute, to which California applies a three-year
period. Its opinion does not claim that it follows California law;
it asserts only that it is “not inconsistent with California law”
(App., pp. 12, 13). It had no choice but to refrain from asserting
that it was applying California law because, while it is possible for
the legislative authority to direct different periods of limitation
at different remedies or types of relief, California has not done
that, California's limitations are always applied to the “cause of
action” (Cal. Code Civ. Proc. § 312, quoted at p. 5 above), never
to remedies or relief (see p. 15n below).
It is here that the court has run counter to a most basic and
pervasive principle. Baltimore S.S. Co. v. Phillips, 274 US. 316
(1927), settled that there is only one cause of action where a
single primary right has been violated. There, in a first suit, one
who had suffered personal injuries sought recovery on a claim
that appliances were defective. In a later suit, he claimed that
his injury was caused by negligent operation of the appliances.
This Court held the second suit barred by the judgment in the
first because there was “a single wrongful invasion of a single
primary right of bodily safety, whether the acts constituting such
invasion were one or many, simple or complex.” Baltimore S.S.
13
Co. v. Phillips has been repeatedly cited by this and other courts
in a variety of contexts. For example, it has repeatedly been the
basis of holdings of res judicata. E.g., Williamson v. Columbia
Gas & Electric Corp., 186 F.2d 464, 467-68 (3 Cir. 1950), cert.
denied 341 US, 921 (1951); F. L. Mendez & Co. v. General
Motors Corporation, 161 F.2d 695 (7 Cir. 1947), cert. denied,
332 US. 810.7
This same principle is the basis of decisions which expand
federal jurisdiction in one direction and contract it in another.
Starting with Hurn v, Oursler, 289 U.S. 238 (1933), and burge-
oning in Mine Workers v. Gibbs, 383 U.S. 715 (1966), it is the
foundation of ‘pendent jurisdiction”. The same principle has im-
posed a wide limitation on removability of suits from state to
federal courts, American Fire & Cas. Co. v. Finn, 341 US. 6, 14
(1951) (“The single wrong for which relief is sought is the
failure to pay compensation for the loss on the property.”’).
In the present case, right of any recovery, single or treble,
exists only by virtue of § 210 of the Act, which, as we have seen
(pp. 3-4 above) provides that one charged more than the ceiling
price may sue and recover. The primary right is the right not to
be “overcharged”. The single damages and the treble damages,
the arbitrary $100.00 to $1,000.00, the award of attorney's fees,
constitute different remedies; they do not constitute different
causes of action. A plaintiff's prayer ‘forms no part of the cause
of action.”” Unanue v. Caribbean Canneries, Inc., 323 F.Supp 63,
67 (D. Del. 1971).
7. In F. L. Mendez plaintiff claimed wrongful cancellation of a con-
tract right to purchase automobiles; in the first suit, the wrong was said
to be a violation of the Clayton Act; in the second, participation in a
conspiracy in violation of the Sherman Act. The court said: “It [plain-
tiff} has one right and one only; the right to enjoy its contract. It com-
plains of one wrongful act, namely, deprivation of that right . . . The gist
of its action is its injury arising from alleged wrongful deprivation of its
contract right.” (P. 698).
14
The very essence of Baltimore S$.S. Co. v. Phillips, supra, and
the innumerable decisions proceeding on the primary right
concept show that the distinction made by the court below about
“different combination of elements’ is wholly untenable. This
Court taught in McAllister v. Magnolia Petroleum Co., 357 US.
221, 224-225 (1958), a statute of limitations case, that where
there is a single wrongful invasion of a single primary right, there
is only one cause of action even though the plaintiff may have
differing “means of recovery” which are “varied in their elements
of proof, type of defenses, and extent of recovery.” And as the
Court held in Magnolia Petroleum Co. v. Hunt, 320 U.S. 430,
443-444 (1943), a single injury does not ‘‘give rise to two causes
of action merely because recovery” is permitted under different
statutes each affording ‘‘a different measure of recovery.”’ Or, as
observed in McMahon v. United States, 186 F.2d 227, 230 (3
Cir. 1950), where plaintiff was held barred by limitations even
though his “right of action’’ had not been perfected by procedural
steps, there is ‘. . . a distinction between a cause of action and
the right of action thereon... . A cause of action is a legal
wrong, the thing which becomes a ground for suit.”
As the district court correctly observed (App., p. 17), a plaintiff
under the Act involved in this case has no choice about whether
to seek multiple damages or single. His suit is for what the Act
allows. The decision of the Emergency Court of Appeals allows
a plaintiff, barred from the remedy of multiple damages, to ab-
solve defendant from the burden of establishing its defense of
non-intentional overcharge or bona fides, thereby permitting the
plaintiff to create a different cause of action from what Congress
created. A plaintiff should not be able to restructure the cause
of action, saying “I waive the trebling and ask only for single
damages,” and thereby escape the bar of limitation.
The ‘primary right” understanding of a cause of action is not
only basic in decisions of this Court, it is settled California law,
15
Wulfjen v. Dolton, 24 Cal. 2d 891, 151 P.2d 846 (1944), where
the California Supreme Court said ((pp. 895-896):
“The violation of one primary right constitutes a single
cause of action, though it may entitle the injured party to
many forms of relief, and the relief is not to be confounded
with the cause of action, one not being determinative of the
other.”’* [ Emphasis in original }
The very purpose of creation by § 210 of the Economic Stabi-
lization Act of a private cause of action was penal. That act
originated in 1970 as a criminal statute, providing the “penalty”
of a fine in § 204 (84 Stat. 800), carried forward into § 208
by the 1971 amendments (85 Stat. 747), and today appearing
in 89 Stat. 949 (15 U.S.C. § 754(a) (3)). As remarked by the
court below in Longview Refining Company v. Shore, 554 F.2d
1006, 1012 (T.E.C.A. 1977), “there can be no doubt that section
208(a) is essentially criminal in nature.” Both the Senate keport
and the House Report on the statute adding § 210 in 1971 (85
Stat. 743, 748), quoted in footnote 11 of the court’s opinion
(App., p. 9), emphasize that the purpose was to assist the
enforcement of the criminal statute by ferreting out violators
and deterring would-be violators. Deterrence is one of the tradi-
tional aims of punishment. Other panels of the court below have
extended this observation to § 210(b), characterizing it as penal,
designed to punish acts essentially criminal in nature, e.g.,
DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1338 (T.E.C.A.
1974), cert. denied, 419 U.S. 896:
“Thus, the damages available under § 210(b) are puni-
tive in nature * * *
** *
8. This principle is applied in California, not only for res judicata,
Ford Motor Co. v. Superior Court, 35 Cal.App.3d 676, 679, 110 Cal.
Rptr. 59, 61 (1973) but for of the statute of limitation:
“{T}he statute of limitations to be applied is determined by the nature
of the right sued upon, not by the . . . relief demanded.” Day v. Greene,
59 Cal.2d 404, 411, 29 Cal.Rptr. 785 (1963).
16
“Even though such an award is discretionary with the
district court, its prospect above might have caused the
Falcons to order their conduct differently so as to avoid
the risk. * * *
“This conclusion is fortified by the deterrent purpose of
§ 210, above referred to.”
In support of its statement that its conclusion is “not incon-
sistent with California law” (App., pp. 12-13), the court below
cites Cases concerning statutes of limitation which do not support
it (App., p. 13). All but one are of situations where a cause
of action for single damages already existed at common law,
independent of the penalty created by statute.® Barring the penalty
of multiple damages created by statute did not bar the pre-existing
common law cause of action. But here there was no such thing
as an “overcharge” except as created, not only by the Act, but
by the very same sentence of the very same section of the Act
as created the right to recover multiple damages. The court's
opinion therefore falls back on an analogy to a supposed indica-
tion in Stone v. James, 142 Cal.App.2d 738, 299 P.2d 305
(1956), not a case of multiple and single damages. There, one
section of a statute provided that a conditional purchaser on
installments could pay off the whole debt at any time and should
then have a refund of prepaid but unearned interest; an entirely
different section of the Act provided for forfeiture of the prin-
cipal. Concerning an argument that there was a right to recover
unearned interest even where the right to forfeit the principal
was barred, the court remarked that “appellant may well be
right’ but dismissed the argument as irrelevant because the claim
was barred anyway. The court’s comment about “may well be
9. For example, for injury to one’s realty a common law action for
trespass always existed; California statute created a new cause of action
where the injury consisted of cutting down trees. United States v. Magno-
lia Motor & Logging Co., 208 F.Supp. 63 (N.D.Cal. 1962).
17
right” was thus not even dictum; it was mere rumination. The
court below errs in suggesting that there is no contrary ruling
by the California Supreme Court. The rumination in Stone v.
James gives way to the later decisions of Ford Motor Co, v.
Superior Court, 35 Cal.App.3d 676, 110 Cal.Rptr. 59 (1973)
and Day v. Greene, 59 Cal.2d 404, 29 Cal.Rptr. 785 (1963), both
cited in fn. 8, supra, and it is inconsistent with this Court's deci-
sion in McAllister v. Magnolia Petroleum Co., 357 US. 221
(1958), discussed at p. 14 above.
The regulations of the FEA, now the Department of Energy,
denying one the right to select its own customers and fixing prices,
are harsh. So long as they are within the authority granted by
Congress, doubtless the harshness may be said to represent “na-
tional public policy”. But the defense of limitations is ‘favored
in the law” (Wood v. Carpenter, 101 U.S. 135, 139), and the
harsh impact of the regulation should not be augmented by the
personal view of judges fortuitously empaneled to hear a partic-
ular cause of what period of limitations is desirable.
CONCLUSION
We respectfully submit that the petition should be granted.
Dated: January 11, 1978.
Moses LASKY
Moses Lasky
Attorney for petitioner
(Appendices follow)
—
ee a
Appendix A
Temporary Emergency Court of Appeals
of the United States
No. 9-38
Ashland Oil Company of California
Plaintiff-Ap pellant,
v.
Union Oil Company of California; and
Department of Energy,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of California
(No. 77-0607-CBR)
(Argued October 28, 1977 Decided December 12, 1977)
ALFRED LAWRENCE Toomss, Batzell, Nunn & Bode, Washing-
ton, D.C., with whom William H. Bode of the same firm; and
Robert L. Dunn, Bancroft, Avery & McAlister, San Francisco, Cal-
ifornia, were on the brief for the Plaintiff-Appellant.
Moses Lasky, Brobeck, Phleger & Harrison, San Francisco, Cali-
fornia, with whom John E. Munter and Forrest A. Hainline, III,
of the same firm, were on the brief for the Defendants-Appellees
(Union Oil Company of California).
RoBERT £. RICHARDSON, Department of Justice, Washington,
D.C., with whom Barbara Allen Babcock, Assistant Attorney Gen-
eral and Gerald D. Freed, were on the brief for the Defendants-
Appellees (Department of Energy).
Before CARTER, CHRISTENSEN and JAMESON, Judges.
CHRISTENSEN, Judge:
The question presented in this case involves the period of limi-
tations to be applied to an action for overcharges on sales of
petroleum products.
2 Appendix
On March 23, 1977, plaintiff-appellant, Ashland Oil Company
of California (“Ashland’’), filed suit in the United States District
Court for the Northern District of California against Union Oil
Company of California (“Union”) and the Federal Energy Ad-
ministration (“FEA’)' alleging that Union charged prices for
petroleum products sold to Ashland during the period of January
1975 to February 1976 in excess of those permitted by FEA’s
Mandatory Petroleum Price Regulations, 10 C.F.R. Part 212.?
Ashland’s action is based on Section 5(a)(1) of the Emergency
Petroleum Allocation Act of 1973 (“EPAA”), 15 U.S.C. § 754
(a)(1), which incorporates § 210 of the Economic Stabilization
Act, 12 U.S.C. § 1904 note.* Our appellate jurisdiction as to such
1. Initially and for the purposes of this appeal FEA was named as a
party in response to the admonition of Longview Refining Co. v. Shore.
554 F.2d 1006 (TECA 1977) and prior decisions of this court with re-
spect to § 210 actions. While this case was pending on appeal the Depart-
ment of Energy (DOE) was substituted for the FEA pursuant to Public
Law 95-91 (August 4, 1977) and Executive Order 12009 42 F.R.
46267 (Sept. 13, 1977), which created the Department of Energy as of
October 1, 1977. Pursuant to the Act the duties, functions and responsi-
bilities of FEA have been assumed by DOE.
2. Basically, these FEA regulations prohibit a refiner from charging
to any class of purchaser a price for petroleum products in excess of the
weighted average price at which such products were lawfully priced in
transactions with the class of purchaser concerned on May 15, 1973, plus
certain increased costs.
3. Section 210 provides:
Section 210. Swits for damages or other relief.
(a) Any person suffering legal wrong because of any act or prac-
tice arising out of this title, or any ole or regulation issued pur-
suant thereto, may bring an action in a district court of the United
States... .
(b) In any action brought under subsection (a) against any
person renting property or selling goods or services who is found
to have overcharged the plaintiff, the court may, in its discretion,
award the plaintiff reasonable attorney’s fees and costs, plus which-
ever of the following sums is greater:
(1) an amount not more than three times the amount of the
overcharge upon which the action is based, or
(2) not less than $100 or more than $1,000;
except that in any case where the defendant establishes that the
ca ma
Appendix 3
actions rests in view of 15 U.S.C. §754(a)(1), sapra, upon
§ 211(b) (2) of ESA, as amended.
Union is a refiner of motor gasoline and other petroleum prod-
ucts. Ashland alleges that it belonged to the class of purchaser
composed of non-branded independent marketers which are inde-
pendent wholesale purchaser-resellers, and that Union placed Ash-
land into a different class of purchaser and thereby charged it
prices up to and including February, 1976, at least 5.5 cents higher
than those charged to other menubers of the purchaser class to
which Ashland actually belonged. The complaint is divided into
two claims or “causes of action’, the first for the recovery of
actual overcharges, the second for treble damages on the theory
of “intentional” overpricing, with attorney's fees sought on each
claim. On August 16, 1976, Ashland filed with Union a statutory
claim for refund pursuant to the last sentence of § 210(b). The
ninety day waiting period elapsed without a refund from Union.
Ashland commenced this action on March 23, 1977, more than
a year after its claims accrued.‘
overcharge was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted
to the avoidance of such error the liability of the defendant shall be
limited to the amount of the overcharge: Provided, that where the
overcharge is not willful within the meaning of section 208(a) of
this title, no action for an overcharge may be brought by or on
behalf of any person unless such person has first presented to the
seller or renter a bona fide claim for refund of the overcharge and
has not received repayment of such overcharge within ninety days
from the date of the presentation of such claim.
4. Ashland contended in the district court that its claims did not accrue
until its actual discovery of the overcharges, a position properly reiected
below and not pressed here apart from the issue of fraudulent conceal-
ment. The latter issue was an tangentially discussed by the trial court:
“And I think on the basis of your president's affidavit it’s clear that they
were aware of the . . . overcharge and its extent prior to the bar of the
statute of limitations, and the fact that they didn’t file is . . . just one of
those unfortunate things that happens all the time.” The point was missed
by the trial court that fraudulent concealment could extend a period of
limitations beyond its normal termination even though that time had not
4 Appendix
FEA filed an answer denying knowledge or information sufh-
cient to form a belief as to the truth of Ashland’s critical allega-
tions of fact and Union filed a motion to dismiss for failure of
the complaint to state a claim on which relief could be granted,
F.R.Civ.P. 12 ¢b)(6).° Union's motion was based on the con-
tention that Ashland’s action for both actual overcharges and
treble damages was barred as a matter of law by the California
statute of limitations, section 340(1), California Code of Civil
Procedure. That statute prescribes a one year statute of limitations
for “[a]}n action upon a statute for a penalty or forfeiture.’’*
Union's motion was granted by the trial court on June 23, 1977,
and on June 24, 1977, final judgment was entered dismissing
Ashland’s action in its entirety with prejudice, costs to Union.
fully expired before the concealment was discovered. See Bailey v. Glover,
88 U.S. (21 Wall.) 342, 348 (1874). This point becomes immaterial in
view of our ruling hereafter that there was no fraudulent concealment.
The contention suggested by Ashland to the trial court that its claim
for reimbursement for overcharges did not accrue until the expiration of
the 90 day notice required by § 210, supra, has been abandoned on this
appeal.
5. In connection with Ashland's argument that it had not discovered
the overcharges until more than a year after they were made, it filed and
the court considered the affidavit of its president, thus invoking Rule 56
by virtue of the last sentence of Rule 12(b).
6. Section 338(1), Cal.C.C.P., — a three year statute of limi-
tations for “{a]}nm action upon a liability created by statute, other than a
penalty or forfeiture.”
7. The judgment was entered without written opinion. However, the
court's principal reasoning is evident in the following excerpts from the
transcript of its oral decision:
“The Court: .. . where there is a private action provided for
in the federal statute, and there is no statute of limitations, that I
think you then have to go to the applicable state statute of limita-
— and I think it's very clear in the State of California, it's
340.1.
“, . . You see, the thing is, I really don’t believe that—that it
was contemplated, or that a court would hold that you have on year
within which to file after the claim arises, if you're seeking trebling,
and you have three or four or five or some other period to file, if
Appendix 5
Ashland filed a timely notice of appeal to this court on July 22,
1977.
It is contended in support of this appeal that the district court
erred in dismissing the entire action because California's three
year statute of limitations should be held to govern at least the
claim for the recovery of actual overcharges as “[a]}n action upon
a liability created by statute, other than a penalty of forfeiure,”’
Cal.C.C.P. 338(1). In the alternative, Ashland would have this
court apply California's three year statute of limitations to both
counts of its complaint. Finally, Ashland argues that the doctrine
of fraudulent concealment sustains both counts of the complaint,
since Union allegedly ‘‘concealed” the existence of the improper
classification until within a year of the filing of its complaint. We
first address the latter point.
I
Even though California's statute of limitations applies in this
. se, any issue relating to accrual and tolling is governed by fed-
eral law. Cope v. Anderson, 331 U.S. 461, 464 (1946) ; Rawlings
v. Ray, 312 U.S. 96, 98 (1940). Where acts causing injury are
fraudulently concealed from the injured party or where fraud
furnishing the basis of an action is of such nature as to conceal
itself, a statute of limitations is tolled until the injured party
you're seeking single damages. I just don’t think 9. I think you've
got one claim here, and that one claim, depending upon the cit-
cumstances, may entitle you to the trebling of the amount of the
overcharge.
“. . . But to me it's clear there’s only one statute of limitations
for the claim, even though the possibility of trebling exists and I
think under Leh [Leh v. General Petroleum Corp., 330 F.2d 288
(9th Cir. 1964), rev'd on other grounds, 382 U.S. 54 (1964)]},
I look to the state statutes, and regardless of Holland [Holland v.
Nelson, 5 Cal. App. 3d 308, 85 Cal. Rptr. 117 (1970)}, it seems
to me that this is in effect, where the ibility of trebling occurs,
is in the nature of a penal statute, and that the one-year statute of
limitations under 340.1 is applicable.”
6 Appendix
discovers, or with due diligence could have discovered, the injury.
Holmberg v. Armbrecht, 327 U.S. 392 (1945); Bailey v. Glover,
88 U.S. (21 Wall.) 342 (1875), supra; American Pipe & Con-
struction Co. v. Utah, 414 U.S. 538. It is clear, however, that
mere ignorance-on the part of a plaintiff is not sufficient. Wood
v. Carpenter, 101 U.S. 135, 143 (1879).
In support of its claim of fraudulent concealment Ashland
argues that by their very nature, violations of the type alleged
herein are not self-revealing and that it had insufficient knowl-
edge of the foundations of a claim to start the statute running.*
Appellant has misconceived the governing law. To support the
result contended for plaintiff would have to establish either that
the defendant fraudulently concealed the conduct forming the
basis of the claim or that the defendant's conduct by reason of
its fraudulent nature was inherently self-concealing. The fact that
FEA pricing regulations involve complicated accounting processes
and that price information resulting from those processes
is not ‘‘self-revealing” is not enough to sustain a claim of
fraudulent concealment, nor is any mere failure on Union's part
to publish price information that it was not required otherwise
to publish.
We do not determinatively fault Ashland’s position merely
because of its failure to plead with particularity the circumstances
constituting the claimed fraudulent concealment, or even to men-
tion such a claim in its complaint.® The trial court considered
8. Ashland asserts that in order to determine if Union was in com-
pliance with the FEA pricing regulations Ashland must have discovered:
(1) the names of each other member of the relevant class of purchaser;
(2) the May 15, 1973, = charged to each such applicable purchaser;
(3) the volume of each such purchaser on May 15, 1973; and (4)
Union's cumulative increased costs for the period in question. This infor-
mation it is said is not published anywhere, and in fact is considered
confidential by the FEA, and hence the running of the statute should be
deemed tolled until the time Ashland actually discovered the alleged
overcharges.
9. But see F.R.Civ.P. 9(b). See also Dayco Corp. v. Goodyear Tire &
Rubber Co., $23 F.2d 389 (6th Cir. 1975); Weinberger v. Retail Credit
Co., 498 F.2d 582 (4th Cir. 1974); Akron Presform Mold Co. v. McNeil
Corp., 496 F.2d 230 (6th Cir.), cert. denied, 419 U.S. 997 (1974).
Appendix 7
as On summary judgment as we heretofore observed the affidavit
of Ashland’s president in resistance to the motion to dismiss, and
any defective pleading could be deemed supplemented for the
purposes of our present inquiry by the substance of this collateral
showing. Ashland’s trouble on the point is that the affidavit not
only failed to support Ashland’s position on the issue of fraudulent
concealment but tended affirmatively to further demonstrate its
lack of merit.’° No tolling having occurred in view of the un-
controverted facts of record, we proceed to consider the period
or periods of limitation applicable to plaintiff's complaint.
II
Neither the EPAA nor § 210 of the ESA contains a limitation
provision. Generally in the absence of a statutory limitation
provided by Congress, a federal court will apply the most analog-
ous state law of limitations. E.g., Runyon v. McCrary, 427 USS.
160, 179-80 (1976) (Civil Rights Act of 1866); Auto Workers
v. Hoosier Corp., 383 U.S. 696, 701-05 (1966) (Labor Manage-
ment Relations Act); O'Sullivan v. Felix, 233 U.S, 318, 322-23
(1914) (Civil Rights Act of 1871); Chattanooga Foundry &
Pipeworks v. Atlanta, 203 U.S. 390, 397 (1906) (Sherman Act) ;
Campbell v. Haverhill, 155 U.S. 610, 614-16 (1895) (Patent
Act). However, in determining whether a state statute of limita-
10. The affidavit of Ashland’s president, Walter J. Simas, submitted
in opposition to Union's motion to dismiss, states that in June, 1976,
Ashland employed special counsel to investigate the pricing practices of
all its major suppliers. Approximately one month later, in July, 1976,
Ashland was advised that Union had placed Ashland in an improper class
of purchaser and had thereby overcharged Ashland for petroleum prod-
ucts. Such allegations do not document a claim of due diligence, and
indeed these facts appear contrary to any theory of due diligence for,
within a month after special counsel began its investigation, the existence
of the alleged overcharges was discovered. See Moviecolor, Ltd. v. East-
man Kodak Co., 288 F.2d 80 (2d Cir.), cert. denied, 368 U.S. 821
(1961).
8 Appendix
tions will be applied to a federal right, courts must be guided
by the public policy expressed by Congress. Thus, there need not
be applied a state limitation period which the court finds to be
inconsistent with the federal policy involved.
The Supreme Court recently stated in Occidental Life Insurance
Co. v. EEOC, 97 S.Ct. 2447, 2455 (1977), in refusing to limit
the rights of the government by a state statute of limitations:
But the Court has not mechanically applied a state statute
of limitations simply because a limitations period is absent
from the federal statute. State legislatures do not devise their
limitations periods with national interests in mind, and it
is the duty of the federal courts to assure that the impor-
tation of state laws will not frustrate or interfere with the
implementation of national policies. “Although state law is
our primary guide in this area, it is not, to be sure, our
exclusive guide.” Johnson v. Railway Express Agency, 421
U.S. 454, 465 [(1974)]}. State limitations periods will not
be borrowed if their application would be inconsistent with
the underlying policies of the federal statute.
As with the equal employment opportunity statute with which
Occidental Life was concerned there is strong national policy
expressed in the EPAA. But dissimilarly, EPAA contains no
indication that expressed national policy is inconsistent with any
fixed period of limitation borrowed from state law, nor does our
case directly involve enforcement of a public right by govern-
mental action as did Occidental Life. There is no suggestion what-
ever in the statutory structure undergirding the claims before us
that Congress intended no limitation provisions to apply or that
state statues of limiations should not be looked to in accordance
with the general rule in the absence of express federal provision.
Nor can anything be discerned to indicate that the relatively
Appendix 9
brief but not unusual period of limitation found in state law
should not be applied to any claims in the nature of penalties.
The national policy otherwise expressed in § 210 and its legis-
lative history yet is instructive, for it tends to repel the extreme
view taken by each of the parties—Ashland’s that California's
three-year limitations period and Union's that its one-year period
should be applied indiscriminately to both claims of the complaint.
While there is public policy clearly evident to provide both remedy
for and deterrence against the violation of pricing regulations,"
the Congress made it equally clear that the recovery of treble
damages in the nature of a penalty for violating those regulations
would involve more stringent proof of additional elements than
that warranting the award of merely compensatory relief.'*
We have concluded that the national policy can best be har-
monized with the state statute of limitations by applying the one
11. The absence of congressional debate on whether to add § 210 of
ESA to EPAA underscores the importance which was attached to the
addition of the private remedies provided by the former. The lack of
extensive government machinery to police the price regulations coupled
with their emergency nature and complexity made the role of private
actions critical. The House Report with reference to § 210 stated:
The Committee, in line with the Administration's emphatic request
for voluntary surveillance to assure compliance with price and rent
regulations and orders, adopted this section so that it would serve
not only to provide a means to recover losses, but would provide a
strong deterrent to those who would willfully violate this Act.
H.R. Rep. No. 92-714, 92nd Cong., ‘st Sess. (1971). From the Senate
Report:
“se Section 210 provides a traditional method by which violators of
regulations may be discovered and other would-be violators may be
deterred. This can be accomplished by authorizing a person suffer-
ing a legal wrong to bring a treble damage action against a violator,
Seriate Rep. No. 92-507, 92nd Cong., Ist Sess. (1971).
i2. Section 210 draws clear distinction between remedial recovery of
overcharges and treble damages for intentional violations in the nature of
a penalty beyond compensation; and for each claim there is specified a
prerequisite not applicable to the other. See Manning v. Univ. of Notre
Dame Du Lac, 484 F.2d 501 (TECA 1973).
10 Appendix
year bar to Ashland’s second claim, and allowing maintenance
of the first claim as an action other than for a penalty. Any other
result, we believe, would be inconsistent with the most persuasive
local interpretation of the California statute of limitations. We
further are of the opinion that overriding national policy would
require us to comport any variance or uncertainty in the California
rule to the indicated result.’* In ascertaining what state statute
of limitations should be applied to federally created claims, a
federal court will accept the state court interpretations of the
state’s limitations statute, but the nature of the claims presented
will be determined by federal law. Moviecolor, Ltd. v. Eastman
Kodak Co., 288 F.2d 80, 83 (2d Cir.), cert. denied, 368 U.S. 821
(1961), supra; Bertha Building Corp. v. National Theatres Cor-
poration, 269 F.2d 785, 788 (2d Cir. 1959); see also, Auto
Workers v. Hoosier Corp., 383 U.S. 696, 706 (1966), supra.
The California Code of Civil Procedure specifies two limitation
periods the applicability of which must be considered in the light
of national policy and particularly in view of the provisions of
§ 210 of ESA. Section 338 (1) provides a three year limitation
for ‘“[a]}n action upon a liability created by statute, other than
for a penalty or forfeiture” and § 340(1) mandates a one year
limitation for ‘“[a]}n action upon a statute for a penalty or for-
feiture.” Section 210 expressly provides for both compensatory
damages and exemplary damages, drawing a clear distinction, as
13. See Auto Workers v. Hoosier Corp., 383 U.S. 696, 705-06
(1966), supra:
The Union argues that if the timeliness of this action is to be
determined by reference to Indiana statutes, federal law precludes
reference to the Indiana six-year provision governing contracts in
writing.
We agree that the characterization of this action for the purpose of
selecting the — state limitations provision is ultimately a
question of federal law. But there is no reason to reject the charac-
terization that state law would impose unless the characterization is
unreasonable or otherwise inconsistent with national labor policy.
Appendix 11
we have noted."* TECA has considered in different context the
distinction between an action for actual damages and one for
treble damages'® in three prior cases’® but has not yet found it
necessary to consider the distinction, if any, between the terms
“intentional” and “wilful” as employed in different parts of § 210.
Nor do we consider it essential to do so now. Whether for
wilful or intentional overcharging, or both, the award of treble
damages pursuant to § 210 would be in the nature of a penalty
within the contemplation of California law.
The California courts have held actions for damages beyond
or without reference to actual loss to be actions for a ‘penalty
14. The gist has been fairly summarized:
Compensatory relief, i.e., refund of the amount of overcharge, is
available in all cases of overcharge provided that, except in the case
of willful overcharges, the purchaser requested and did not receive
a refund from the overcharging seller within 90 days of such re-
quest. Exemplary damages, i.e., the greater of treble damages or
$100 to $1,000, are available at the discretion of the court in cases
where the overcharge was intentional and not the result of bona fide
error. These are two different rights of action distinguishable as to
the elements that must be proved in order to be granted relief.
(FEA Br. p. 9.)
15. Union contends that § 210 provides two remedies, but only one
“cause of action.” However, this argument disregards the essentially dif-
ferent combination of elements required for claims as they were separately
stated in conformity with Rule 8(e) (2), F.R.Civ.P. Union further asserts
that the entire section is a penal statute inasmuch as ESA was originally
enacted as a criminal statute and the amendments allowing civil recovery
were designed to assist the enforcement of the criminal provision by de-
terring and punishing violators of the price regulations. We reject this
reasoning.
16. Longview Refining Co. v. Shore, 554 F.2d 1006 (TECA 1977);
Evans v. Suntreat Growers & Shippers, Inc., 531 F.2d 568 (TECA 1976);
Manning v. Univ. of .Notre Dame Du Lac, 484 F.2d 501 (TECA 1973),
supra. See also DeRieux v. 5 Smiths, Inc., 499 F... 1321, cert. denied.
419 U.S. 896 (1974). Union contends that DeRienx indicates that the
potential for treble damages under § 210 renders all actions under that
statute penal in nature. However, the issue presented in DeRieux con-
cerned the retroactivity of § 210 where the plaintiff was suing for treble
im The court did not discuss an action for actual damages under
210.
12 Appendix
or forfeiture’. County of San Diego v. Milotz, 46 Cal. 2d 761,
300 P.2d 1 (1956); Heesy v. Vaughn, 31 Cal. 2d 701, 192 P.2d
753 (1948); Miller v. Municipal Court, 22 Cal.2d 818, 142 P.2d
297 (1943); see also Leh v. General Petroleum Corp., 330 F.2d
288 (9th Cir. 1964), rev'd on other grounds, 382 U.S. 54 (1965).
Clearly a claim for treble damages in reliance upon § 210 is
within this definition.
However, to apply the one year statute to an action for actual
damages would be inconsistent with the express terms of § 210
and its underlying policy. An action for compensation logically
is not “[a]n action upon a statute for a penalty or forfeiture.”
In the past TECA has noted the complexity of the price regula-
tions and the difficulty of determining compliance therewith. See
Longview, supra, and Evans v. Suntreat, supra. Given this com-
plexity, it would be especially unreasonable to bar gratuitously
an action for reimbursement of overcharges on the basis of the
one year statute of limitations. The logical, indeed express, appli-
cability of California’s three year statute of limitations to the
claim for overcharges must be recognized.”
III
Our conclusion that a § 210 claim for actual damages is con-
trolled by § 338(1) while a claim for treble damages is barred
17. Union would have us read § 340(1) of the California statute as
if it provided that “any action in reliance upon a statute providing lia-
bility for a penalty alone or with other types of liability shall be brought
within one year.”” It is much less strained and reasonable to read it as
roviding that “any action to recover a penalty created by statute shall be
feos within one year.” We are not impressed with the — that
on some unitary theory a claim not presenting foundations for recovery
of a penalty and not seeking any penalty must be deemed nonetheless an
action for a penalty, and that notwithstanding the separation of essen-
tially different claims in a complaint as provided by Rule 8(e)(2),
F.R.C.P., the failure of one by reason of a statute of limitations neces-
sarily entails the failure of both. Nor do we find convincing the idea that
the use of the term “action” in the California statute precludes separate
consideration of each of Ashland’s claims as actions. Neither would be
any less or more a separate action if standing alone in a complaint.
Appendix 13
in accordance with § 340(1) is not inconsistent with California
law. In United States v. Magnolia Motor & Logging Co., 208
F. Supp. 63 (N.D. Cal. 1962), it was held that Cal.C.C.P. Sec-
tion 340(1) barred the United States’ action for treble damages,
but not for actual damages. In Stock v. Meek, 35 Cal.2d 809,
221 P.2d 15 (1950), and Porter v. Arthur Murray, Inc., 249
Cal. App. 2d 410, 57 Cal. Rptr. 554 (1967), actions for treble
damages were dismissed; however, the plaintiff was allowed
to recover for “money had and received’’. See a/so, Beck v. Arthur
Murray, Inc., 245 Cal. App. 2d 976, 54 Cal. Rptr. 328 (1966).
(The court indicates that the plaintiff might recover-actual dam-
ages even though a claim for treble damages may ultimately be
denied.)
Union attempts to distinguish these cases on the ground that
in them the right to single damages existed at common law,
whereas Ashland’s action for actual damages is dependent on
§ 210. We need not pursue the possibility that the recovery of
overcharges could be deemed as a pendant claim in the nature
of a common law count for money had and received to avoid
such distinction. In Stone v. James, 142 Cal. App. 2d 738, 299
P.2d 305 (1956), the court indicated that a statutory right to
recover prepaid finance charges was governed by a two year stat-
ute of limitations, although an action under the statute for the
entire purchase price was in the nature of a penalty and therefore
governed by § 340(1)."* This case in the absence of a ruling by
18. The plaintiff in Stone sued under California’s Civil Code § 2982,
subdivisions (d) and (e). Subdivision (d) of that statute’ provided that
a buyer of a motor vehicle under a conditional sales contract could pay off
the entire debt at any time prior to its maturity. In that event the buyer
would be entitled to receive a refund credit for any prepaid finance charges
less certain adjustments nt by the statute. If the seller failed to re-
fund any prepaid finance charges subdivision (e) provided that the buyer
could recover the total amount paid under the contract. The court held
that subdivisions (d) and (e) of Section 2982 were severable. Subdivi-
sion (€) was held to provide for a penalty, barred by § 340(1). The
court did not question that an action to recover prepaid finance charges
under subdivsion (d) would be governed by the longer period of two
14 Appendix
the California Supreme Court to the contrary is at least per-
suasive of California law. Cf. West v. American Tel. & Tel. Co.,
311 U.S. 223 (1940), and Six Companies of California v. Joint
Highway District No. 13, 311 U.S. 179 (1940).
Ashland argues on the basis of Holland v. Nelson, 5 Cal. App.
3d 308, 85 Cal. Rptr. 117 (1970), that California’s three year
statute of limitations should be applied to its claim for treble
damages as well as to that for compensation. In Holland, it was
held that the one year limitation for a statutory penalty or for-
feiture applied neither to the plaintiff's claim for actual damages
nor to that for treble damages. The court reasoned that the
option of awarding exemplary damages did not convert the
statutory right of action for either single or treble damages into
one for a penalty.”®
The Holiand case is contrary to the weight of California
authority concluding that statutes permitting recovery in excess
of actual damages are penal in nature.” Thus, although the
years. However, since the complaint was filed more than two years after
the sales transaction at issue occurred, a demurrer to the entire action was
sustained.
19. The Holland court stated:
[T}he provision in Civil Code, Section 1812.62, allowing to the
court the option of granting judgment for treble damages, is not
to be construed as converting the statutory right of action into one
for penal damages. To adopt the contrary construction would either
apply a shorter period of limitation than that established by Code of
Civil Procedure section 338, subdivision (1), for actions on other
statutory liabilities or would put a plaintiff in the position of being
unable to determine which statute of limitations applies to his cause
until, after trial, the court determined in its discretion whether to
allow treble damages.
85 Cal. Rptr. at 119.
20. For example, the California Welfare and Institutions Code § 2223
provides for a discretionary award of double damages. In Dept. of Social
Welfare v. Stauffer, 56 Cal. App. 2d 699, 133 P.2d 692 (1943), Cali-
fornia’s one year statute of limitation was held to apply to an action under
§ 2223 for double damages. See also, Dept. of Social Welfare v. Wingo,
77 Cal. App. 2d 316, 175 P.2d 262 (1946). California’s Usury Act of
1919 provided for a discretionary award of treble the usurious interest.
This provision has been held to be a statutory penalty. Penziner v. West
Appendix 15
Holland court was correct in concluding that a claim for actual
damages is not one for a penalty, we decline to accept the dis-
tinction it would draw between a mandatory and permissive
award of treble damages with reference to the applicable limita-
tion period.*? The preponderance of California law establishes
that an award in excess of compensatory damages, whether
discretionary or not, is to be considered a penalty for the purposes
of its limitations statute.
IV
We conclude in sum that the district court erred in dismissing
Ashland’s claim for actual damages. Such a separate claim for
actual loss is not “[a}n action upon a penalty or forfeiture.”
Cal.C.C.P. § 340(1). To hold otherwise would be at variance
with the express provisions of § 210, creating alternative rights
of action against violators of price regulations dependent upon
a different combination of elements, and through an illogical
shortening of the period of limitations with respect to non-penalty
claims would unjustifiably frustrate congressional policy under-
lying §210 for the encouragement of private surveillance of
price regulations. The district court was correct in dismissing
Ashland’s claim for treble damages which as distinguished from
the first claim clearly was for a penalty.
Affirmed in part, reversed in part, and remanded for further
proceedings in harmony with this opinion.
IT IS SO ORDERED.
American Finance Co., 10 Cal. 2d 160, 72 P.2d 252 (1937); Esposti v.
River Brothers, Inc., 207 Cal. 570, 279 P. 423 (1929). Other cases where
the discretionary award of treble damages was termed peal in nature
include Gwinn v. Goldman, 57 Cal. App. 2d 393, 134 P.2d 915 (1943),
and Swall v. Anderson, 60 Cal. App. 2d 825, 141 P.2d 912 (1943).
21. Ashland’s ambivalence between claimed severability of its action
to realize its compensatory claim and asserted inseparability of the statu-
tory limitation to rescue its discretionary treble damage count has not dis-
pelled our support of the former position nor served to enlist our accept-
ance of the latter.
16 Appendix
Appendix B
Temporary Emergency Court of Appeals
of the United States
No. 9-38
Ashland Oil Company of California,
Plaintiff-Ap pellant,
v.
Union Oil Company of California,
and
Department of Energy,
Defendants-Appellees.
Before Honorable James M. Carter, Honorable A. Sherman
Christensen, and Honorable William J. Jameson, Judges.
This cause came on to be heard on the record on appeal from
the United States District Court for the Northern District of
California and was argued by counsel.
Upon consideration whereof,
IT IS ORDERED that the judgment of said court is affirmed
in part, reversed in part, and remanded for further proceedings
in harmony with the opinion.
FOR THE COURT:
/s/ RutTH H. JACOBSON
Ruth H. Jacobson
Clerk
December 12, 1977
District Court No. 77-0607 CBR
Appendix 17
Appendix C
Excerpts From Reporter's Transcript of the Proceedings of
June 23, 1977 in The District Court
“THE Court [addressing Ashland’s counsel] * * * Let
me ask you this: What about—you distinguish between—
don’t you divide your cause of action seeking single dam-
ages and treble damages? Don’t you have just one claim for
overcharge, and then if there is an overcharge, then you
have, under the statute, the alternative of either getting
your single value of the overcharge, or the courts may treble
it? Isn't that all you have?
“Mr. Toombs [counsel for Ashland}: We have pleaded
two causes of action, your Honor. The first cause of action
seeks—
“THE Court: I know you plead two causes of action.
That's why I asked the question. But don’t you know you
only have one cause of action, and that’s for the overcharge,
and that, depending on the circumstances, you may either
get the single value of the overcharge or you get a treble?
i
“THE Court: We're not talking about a California
state claim, are we really? We're talking about a federal
statute claim.
“Mr. Toombs: Yes.
“THE Court: There's no basic claim for overcharge,
other than the basis for—
“Mr. Toombs: But we’re—
“THE CouRT: —statute, don’t you think?
=
“THE Court: You see, the thing is, I really don't be-
lieve that—that it was contemplated, or that a court would
hold that you have one year within which to file after the
claim arises, if you're seeking trebling, and you have three
or four or five or some other period to file, if you're only
seeking single damages. I just don’t think so. I think you've
got one claim here, and that one claim, depending upon the
circumstances, may entitle you to the trebling of the amount
of the overcharge.”
18 Appendix
Appendix D
Robert L. Dunn
Bancroft, Avery & McAlister
240 Stockton Street
San Francisco, California 94108
(415) 892-7526
William H. Bode
Batzell, Nunn & Bode
1523 LStreet, N. W., Suite 600
Washington, D.C. 20005
(202) 393-8535
Attorneys for Plaintiff
Original Filed March 23, 1977
William L. Whittaker
Clerk, U. S. Dist. Court
San Francisco
United States District Court
Northern District of California
Civil Action No. C77 0607 CBR
Ashland Oil Company of California
1436 Fourteenth Avenue, Oakland, California 94606,
Vv.
Union Oil Company of California,
Union Oil Center, Los Angeles, California 90017,
and
Federal Energy Administration,
Federal Building, 12th & Pennsylvania Ave., N.W.,
Washington, D.C. 20461,
Defendants.
Appendix 19
COMPLAINT AND DEMAND FOR JURY TRIAL
(Violation of Mandatory Petroleum
Price Regulations, 10 C.F.R. Part 212)
The above-named plaintiff files this Complaint against the
above-named defendants and, demanding trial by jury, alleges
as follows:
I. Introduction
1. This is an action to recover price overcharges, treble dam-
ages and attorneys’ fees resulting from sales of motor gasoline
by defendant, Union Oil Company of California (““Union’’), to
plaintiff, Ashland Oil Company of California (“Ashland”), at
prices in excess of those permitted by the Regulations (see defini-
tion, 1 4(a), infra).
Il. Jurisdiction and Venue
2. The jurisdiction of this Court is based upon Sections 210
and 211(a) of the Economic Stabilization Act (see definition,
{ 4(a), infra); upon Section 5(a)(1) of the Emergency Petro-
leum Allocation Act (see definition, {4(b), fra); and upon
28 U.S.C. § 1331(a).
3. Venue is based upon 28 U.S.C. §§ 1391(b), (c) and (e),
in that the claim and cause of action arose in part in this district
and the corporate defendant is doing business in this district.
III. Definitions
4. As used in this Complaint:
(a) The “Economic Stabilization Act” and the “ESA” mean
the Economic Stabilization Act of 1970, 84 Stat. 799, as amended
and reenacted by the Economic Stabilization Act Amendments
of 1971, 85 Stat. 743, as further amended, as in effect on Novem-
ber 27, 1973 and as so incorporated by reference into Section
5(a)(1) of the Emergency Petroleum Allocation Act. See 12
US.C.A. § 1904, note (1976 Pocket Part).
20 Appendix
(b) The “Emergency Petroleum Allocation Act” and the
“EPAA” mean the Emergency Petroleum Allocation Act of 1973,
as amended, 15 U.S.C. § 751, ef seq.
(c) The “Regulations” mean the Mandatory Petroleum Allo-
cation and Price Regulations, 10 C.F.R., Parts 211 and 212,
promulgated on January 15, 1974, pursuant to the Emergency
Petroleum Allocation Act.
(d) “Class of purchaser’ means purchasers of motor gaso-
line to whom a refiner has charged a comparable price for com-
parable property or service pursuant to customary price differen-
tials between those purchasers and other purchasers. See 10 C.F.R.
§ 212.31 and predecessor provisions.
(e) ‘Maximum allowable price” and “base price” mean, with
respect to sales of motor gasoline by a refiner, the weighted aver-
age price at which such product was lawfully priced in transac-
tions with the class of purchaser concerned on May 15, 1973,
plus increased product costs incurred between the month of meas-
urement and May 1973, and measured pursuant to the Regula-
tions. See 10 C.F.R. § 212.82 and predecessor provisions.
(f) ‘‘Nonbranded independent marketer" means a firm which
is engaged in the marketing or distributing of motor gasoline,
but which is not a refiner and is not a firm which controls, is
controlled by, is under common control with, or is affiliated with
a refiner, and is not a branded independent marketer. See 15
US.C. §752(2) and 10 C.F.R. § 211.51.
(g) “Refiner” means a firm which refines motor gasoline and
sells it to others. See 10 C.F.R. § 212.31.
(h) “Wholesale purchase-reseller’ means a firm which pur-
chases, receives or otherwise obtains motor gasoline and resells
it or otherwise transfers it to other purchasers without substan-
tially changing its form. See 10 C.F.R. § 211.51.
(i) “Willfully’” means that term as employed in Sections
208(a) and 210(b) of the ESA.
Appendix 21
IV Parties
5. Plaintiff Ashland is a nonbranded independent marketer
and wholesale purchaser-reseller of motor gasoline and other
petroleum products. Ashland is incorporated under the laws of
the State of California and maintains its principal place of busi-
ness in Oakland, California.
6. Defendant Union is a major integrated oil company and a
refiner of motor gasoline and other petroleum products. Union is
incorporated under the laws of the State of California.
7. Defendant Federal Energy Administration (“FEA”) is an
agency of the United States, established and existing under the
provisions of the Federal Energy Administration Act, 15 U.S.C.
$761, et seg., and Executive Order No. 11790 (39 Fed. Reg.
23,185, June 27, 1974), both set forth at 15 U.S.C.A. § 761, note,
and both of which became effective on June 27, 1974. FEA has the
primary responsibility for administering and enforcing the man-
datory petroleum pricing and allocation provisions of the EPAA.
Prior to June 27, 1974, the duties now delegated to and per-
formed by FEA were performed by the Federal Energy Office
under a delegation of authority contained in Executive Order No.
11748 (38 Fed. Reg. 33,575, December 4, 1973). FEA is named
as a defendant herein because it may be held to be a necessary
party hereto.
V. Facets
8. On or about December 6, 1974, and on various dates
thereafter, FEA, acting pursuant to the Regulations, issued orders
to Union assigning and directing it to supply motor gasoline to
Ashland.
9. In accordance with such FEA assignment orders, beginning
in January 1975, and continuing until approximtaely February
1976, Ashland purchased from Union approximately 6,370,984
gallons of motor gasoline.
22 Appendix
10. During the period relevant to this Complaint, the Regu-
lations provided in substance that a refiner may not charge to any
class of purchaser a price in excess of the base price or the maxi-
mum allowable price. See 10 C.F.R. §§ 212.82, 212.83 and prede-
cessOr provisions.
11. Pursuant to the Regulations, Ashland fell within the class
of purchaser composed of nonbranded independent marketers
who are independent wholesale purchaser-resellers.
VI. First Cause of Action
12. During the period relevant to this Complaint, the prices
charged by Union to Ashland for motor gasoline sold to it have
exceeded the prices charged to other members of the same class
of purchaser by not less than 5.5 cents per gallon.
13. Asa result of the foregoing, Union has sold motor gaso-
line to Ashland at prices in excess of those permitted by the
Regulations and by the ESA and the EPAA.
14. On or about August 16, 1976, Ashland filed a claim for
a refund with Union in the amount of $350,000 for overcharges
discovered and accrued up to that date.
15. Pursuant to Section 210(b) of the ESA, as incorporated
by reference into Section 5(a)(1) of the EPAA, Ashland is
entitled to recover from Union the amount of such overcharges,
plus its reasonable attorneys’ fees and costs.
VII. Second Cause of Action
16. Paragraphs 1 through 13 hereof are repeated and re-
alleged with the same force and effect as if set forth in full
herein.
17. During the period relevant to this Complaint, Union
has willfully overcharged Ashland for motor gasoline purchased
by it.
18. Such overcharges by Union were intentional, and were
not the result of a bona fide error notwithstanding the mainte-
Appendix 23
nance of procedures reasonably adapted to the avoidance of such
error.
19. Pursuant to Section 210(b) of the ESA, as incorporated
by reference into Section 5(a)(1) of the EPAA, Ashland may
be awarded damages against Union in an amount not more than
three times the amount of such overcharges, plus its reasonable
attorneys’ fees and costs.
IX. Relief
WHEREFORE, plaintiff prays that it be awarded the following
relief against Union:
1. Upon the First Cause of Action, the amount which it has
been overcharged.
2. Upon the Second Cause of Action, an amount equal to
three times the amount of the overcharges.
3. Interest at the legal rate on each of the foregoing causes
of action.
4. Its reasonable attorneys’ fees and costs.
5. Such other and further relief as may be just and proper.
Respectfully submitted,
/s/ RosBert L. DUNN
Robert L. Dunn
Bancroft, Avery & McAlister
240 Stockton Street
San Francisco, Calif. 94108
(415) 982-7526
/s/ WILLIAM H. BopeE
William H. Bode
Batzell, Nunn & Bode
1523 L Street, N. W.
Washington, D. C. 20005
(202) 393-8535
Attorneys for Plaintiff
DEMAND FOR TRIAL BY JURY
Plaintiff hereby demands trial by jury.
/s/ WiLutAM H. Bove
William H. Bode
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