Petition — McCulloch Gas Processing Corp. v. Canadian Hidrogas Resources, Ltd.

, f~ Supreme Court, U. &

FILED

IN THE |} JUN 8 1978

Supreme Court of the United tates. pS

—*

Mk te tk ee ts

October Term, 1977

ee

97-1748

McCULLOCH GAS PROCESSING CORPORATION,

Petitioner,

vs.

CANADIAN HIDROGAS RESOURCES, LTD., a Canadian

corporation; HIDROGAS, LTD., a Canadian corporation;

HIDROGAS, INC., a Montana corporation; EV. W. G.

BODRUG, President of CANADIAN HIDROGAS RE-

SOURCES, LTD., HIDROGAS, LTD. and HIDROGAS,

INC.; WILLIAM C. ARNTZ, Regional Administrator, Fed-

eral Energy Administration, Region IX, and the UNITED

STATES OF AMERICA,

Respondents.

Petition for Writ of Certiorari to the Temporary Emer-

gency Court of Appeals of the United States.

RICHARD T. WILLIAMS,

707 Wilshire Boulevard, 40th Floor,

Los Angeles, Calif. 90017,

Counsel for Petitioner.

KADISON, PFAELZER, WOODARD

QUINN & ROSSI,

THOMAS J. McDERMOTT, JR..,

ROBERT M. NAU,

707 Wilshire Boulevard, 40th Floor,

Los Angeles, Calif. 90017,

DON G. KIRCHER,

CHARLES R. KOCHER,

FRANKLIN D. DODGE,

10800 Wilshire Boulevard, Suite 1500,

Los Angeles, Calif. 90024,

Of Counsel for Petitioner.

June 8, 1978.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Petition for Writ of Certiorari to the Tempo-

rary Emergency Court of Appeals of the United

NG ee l

Opinions and Orders Below ................--...--------0-----++ 2

Jurisdictional Statement ............................ "ecallihppetssiioe 2

I IN, lal ccdstseeeassnentncntpivienineieneoses 4

Federal Constitutional Provision and Statutes In-

gg NEE ST ECL ROO SPN COS Wa Red 5

Re EI aise ietnicciticctcedeceercetinnscnmensentetieiie 5

1. Claim for Damages Against the United

ID aicciiascicitinsicitinsesinctlithandendetieananonictatiindiiaidaa 5

ee ROLES Ea. eee 8

Reasons for Granting the Writ a a te 11

1. TECA’s Decision Below Conflicts With

This Court’s Decision in Regional Rail, With

TECA’s Owr Decision in Griffin and With

the Decisions of Several Courts of Appeals

Construing Similar Statutory Language ........ 11

2. TECA’s Decision Below Conflicts With the

Decisions of Several Courts of Appeals as to

the Availability of an Action for Damages

Against the United States Occasioned by a

Denial of Due Process of Law ...................... 20

3. This Case Presents to This Court a Rare

Opportunity to Review Novel Issues of Ma-

jor and Continuing Importance in the Ad-

ministration of the Nation’s Energy Controls

and to Exercise Supervision Over TECA .... 29

ii.

INDEX TO APPENDICES

Page

Appendix A. Order of the United States District

Court for the Central District of California,

) BY SD | ¢ ee App. p. 1

Appendix B. Order of the United States District

Court for the Central District of California, Octo-

3 oo a a ae 3

Appendix C. Opinion of the Temporary Emergency

Court of Appeals of the United States, May 9,

TTI -ssccnssttchccaienitaiadesheampaiidaidilineaniciiegisainadadiaiienedialia 5

Appendix D. Federal Constitutional Provision, Stat-

EE 19

United States Constitution, Fifth Amendment .

ee See 19

12 USC 1904 note Sections 210 and 211 ........ 20

iS 4 | eee 26

lii.

TABLE OF AUTHORITIES CITED

Cases Page

Atkins v. United States, 556 F.2d 1028 (Ct. Cl.

PUT sietiastatiiinddatenitnateihctnitbieviinsibiieinatdtnieeatees 26

Ballard v. Laird, 6 CCH Employment Practices

Decisions 48793 at 5404 (S.D. Cal. 1973) ....25, 26

Bell v. Hood, 327 U.S. 678 (1946) ........ 22, 23, 26, 28

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics (Bivens), 403 USS.

UE ITED. cltthinetcitierenencaah 20, 21, 22, 24, 26, 28

Blanchette v. Connecticut General Insurance Corps.

(see “Regional Rail Reorganization Act Cases”)

ele SE RE RT MR OS ly 8 LR 11

Brennan v. Udall, 399 F.2d 803 (10th Cir. 1967)

Par SAS ste = a AY “Ae OO RE RE OA TI OA Oe 19

California v. Sanders, ........ See les » 7 SC.

ae ieasdicetieiticbcllsiahittaiahiasiimnncutrernibinitihiataie 4

Cherokee Nation v. Southern Kansas R. Co., 135

8 A a Nc) eR 11

Cheyenne River Sioux Tribe v. Andrus (8th Cir.

ge ek SR eee eee 25

Continental Grain Co. v. Barge FBL-585, 364 U.S. :

BER RPE er Ee Phe 30

Davis v. Passman, 571 F.2d 793 (Sth Cir. 1978) .. 20

Eastern Kentucky Welfare Rights Org. v. Simon,

506 F.2d 1278 (D.C. Cir. 1974) rev'd on other

grounds, 426 U.S. 26 (1976) .....0......eceeeceeeeeeeee 19

iv.

Page

Fitzgerald v. Porter Memorial Hospital, 523 F.2d

rh’ We, Be Se) 7s) ) Ree er 20

Fortnightly Corp. v. United Artists Television, 392

UB. SOD CEDGG) mncercvncceccessctorssctnniseectiantintacctinn 30

Gemsco, Inc. v. Walling, 324 U.S. 244 (1945) ...... 16

Gentile v. Wallen, 562 F.2d 193 (2nd Cir. 1977) .. 20

Griffin v. United States, 537 F.2d 1130 (TECA),

cert. denied, 429 U.S. 919 (1976) ...... 3, 9, 10, 12

coessstuasoonmamebiienaiannntintil 13, 14, 15, 16, 17, 24, 28, 29

International Engineering Company, Division of

A-T-O, Inc. v. Richardson, 512 F.2d 573 (D.C.

Cir. 1975), cert. denied, 423 U.S. 1048 (1976)

coosevensvessnsnateaccatmshiansssuienssneiatinieainaananannnannaes 19

Jacobs v. United States, 290 U.S. 13 (1933) .......... 25

Jacobson v. Tahoe Regional Planning Agency, 566

F.2d 1353 (9th Cir. 1977), certiorari granted

June 5, 1978, sub nom. Lake Country Estates,

Inc. v. Tahoe Regional Planning Agency, No.

TRAST xcccoccusessiniisssievnemstiagncsciaiadaaiaaaaaaaea 20

J.I. Case Co. v. Borak, 377 U.S. 426 (1964) ....22, 24

Kingsbrook Jewish Medical Center v. Richardson,

406 F.26 G33 (2nd Cis. IGT) cccctinecpetines 19

Kletschka v. Driver, 411 F.2d 436 (2nd Cir. 1969)

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) ...... 20

Mahoney v. Waddle, 564 F.2d 1018 (3rd Cir.

BOTT) <ccussssccsaseessnigntinsssientinniaibiainanananne 20

McKenzie v. United States, 536 F.2d 762 (7th Cir.

PFO) § —_neieiecannveveesisssnesssensusiedueesieuiiininnas anna 18

Page

Monell v. Department of Social Services of the City

of New York, ........ ene (June 6, 1978)

Monroe v. Pape, 365 U.S. 167 (1961) ............ 26, 27

National Association for the Advancement of

Colored People v. New York, 413 U.S. 345

SESE th Se ET 25

Regional Rail Reorganization Act Cases, 419 U.S.

102 (1974) ...... 9, 11, 12, 13, 14, 15, 17, 27, 28

Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d

ll ET I RT 18

Schlafly v. Volpe, 495 F.2d 273 (7th Cir. 1974) ... i9

South Carolina v. Katzenbach, 383 U.S. 301

I es 25

States Marine Lines, Inc. v. Schultz, 498 F.2d 1146

I Ses a we ees 20, 21

Tasty Baking Co. v. Cost of Living Council, 529

ee 16, 18

Terry v. Adams, 345 U.S. 461 (1953)... 25

United States v. Causby, 328 U.S. 256 (1946) ...... 25

United States v. Hellard, 322 U.S. 363 (1943) ...... 18

United States v. Oregon, 366 U.S. 643 (1961) ...... 16

United States v. Testan, 424 U.S. 392 (1976) ...... 3, 17

United States ex rel. Moore v. Koelzer, 457 F.2d

I I li icstinatiintinsserpcscnnteenasere 20

vi.

Statutes and Regulations

Page

Administrative Procedure Act, Sec. 10 .............. 18, 19

Administrative Procedure Act, 5 U.S.C. 701-706 .... 4

Administrative Procedure Act, 5 U.S.C. 702 .......... 5

Bankruptcy Act, Sec. 17C (11 U.S.C. §35) ........ 18

Classification Act, 5 U.S.C. 5101 et seq. .................. 17

Economic Stabilization Act of 1970, 12 U.S.C.

1904 note 210 and 211 .......... 2, 3, 4, 5, 6,7, 8, 9

uta 10, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 27, 28

Emergency Petroleum Allocation Act, 15

OT A aa ©

Emergency Petroleum Allocation Act, 15

CRIS, FOO cnnesscesisciaasitresniinbiishicanaizanaitenvens 2,4,5, 7

Regional Rail Reorganization Act, 45 U.S.C. 701

et seq.

BD Wise ED dcrctcentepeentenblienitectiftdieblicis 2

fh = a

Tucker Act

Be ee nk ee 3

Federal Tort Claims Act

bo SO ee eee 4

OE 3

ya 4

Code of Federal Regulations, Title 10, Sec. 210.62

—ee——————————————— _ 7

Code of Federal Regulations, Title 10, Part 212 ..

ecngundarenstannappescapigmgndnnmemventemauintiamenteduatiiaiel 6, 8

United States Constitution, Fifth Amendment

diatbinel 4, 5, 6, 9, 10, 14, 17, 20, 21, 24, 25, 26, 27, 28

vii.

Page

United States Constitution, Fourteenth Amendment

PN EE TSI 2 lg Te Ga, 20, 25

United States Constitution, Fifteenth Amendment .. 25

United States Constitution, Twenty-Sixth Amend-

ES ES SEES 25

Dellinger, Of Rights and Remedies: The Constitu-

tion as a Sword, 85 Harv. L. Rev. 1532, 1537-52

ee RT A ES SC ee Oe 22, 23

Jaffe, “Suits Against Governments and Officers:

Sovereign Immunity”, 77 Harv. L. Rev. 1, at 21

(EEE ee 27

Senate Report No. 92-507, 92nd Congress, First

Session (1971), U.S. Code Cong. and Admin.

ey SNe SE wetnusicnsnibinicndencictnailiiunctnsctntioniig 16

IN THE

Supreme Court of the United States

October Term, 1977

Reatobert

McCULLOCH GAS PROCESSING CORPORATION,

Petitioner,

vs.

CANADIAN _HIDROGAS RESOURCES, LTD., a Canadian

; HIDROGAS, LTD., a Canadian corporation;

INC., a Montana ; EV W. G.

BODRUG, President of CANAD HIDROGAS RE-

SOURCES, LTD., HIDROGAS, LTD. and HIDROGAS,

Petition for Writ of Certiorari to the Temporary Emer-

gency Court of Appeals of the United States.

Petitioner, McCulloch Gas Processing Corporation

(“McCulloch”), prays that a writ of certiorari issue

to review that certain order of the Temporary Emer-

gency Court of Appeals of the United States, made

and filed on May 9, 1978, upon an interlocutory

appeal pursuant to 28 U.S.C. 1292(b), reversing an

order of the United States District Court for the Central

District of California dated July 12, 1977, denying

Summary Judgment to William C. Arntz, Regional

Administrator, Federal Energy Administration, Region

IX, and the United States of America.

ve

Opinions and Orders Below.

Copies of the orders of the United States District

Court for the Central District of California, entered

July 12, and October 18, 1977, appear at Appendices

“A” and “B” hereto. A copy of the as yet unreported

opinion of the Temporary Emergency Court of Appeals

of the United States, entered May 9, 1978, appears

at Appendix “C” hereto.

Jurisdictional Statement.

Jurisdiction of this matter in the District Court below

is founded upon Sections 210 and 211(a) of the Eco-

nomic Stabilization Act of 1970 (“ESA”), 12 U.S.C.

1904 note Sections 210 and 211, incorporated by

reference in the Emergency Petroleum Allocation Act

(“EPAA”), 15 U.S.C. 754. The exclusive appellate

jurisdiction of the Temporary Emergency Court of Ap-

peals (“TECA”) over cases and controversies arising

under the ESA and EPAA, including interlocutory

appeals, is founded upon Sections 211(b)(1), (b)(2),

and (c) of the ESA and 28 U.S.C. 1292(b).

Jurisdiction in this Court is based upon Section 211

(g) of the ESA and 28 U.S.C. 1254(1). The judgment

of TECA was entered on May 9, 1978, and this

petition for certiorari is filed within 30 days of that date.

Section 211(a) of the ESA affords jurisdiction for

the review of regulations and orders issued by the

Federal Energy Administration (“FEA”) in the District

Courts. Section 210(a) authorizes actiors for declara-

tory and injunctive relief, as well as for money damages,

for “legal wrongs” arising out of orders or regulations

issued by the FEA under the EPAA. That section

places no limitation upon those who may be named

canis

as a defendant, nor in cases brought against the United

States does the text exclude or limit the remedies

available against the Government.

In Griffin v. United States, 537 F.2d 1130, at 1134-

1136 (TECA), cert. denied, 429 US. 919 (1976)

(“Griffin”), TECA concluded that private plaintiffs

should have “the right to utilize the jurisdiction af-

forded in the District Court by Section 211 by bringing

the type of action contemplated by Section 210(a)

for damages [against the United States], there being

no limitation in Section 211 to the contrary.” 537

F.2d 1130, at 1136.

In so holding, TECA applied an interpretation to

Section 210 which purported to harmonize it with

the Tucker Act, 28 U.S.C. 1346(a). The Tucker Act

confers jurisdiction in the District Courts over suits for

money damages arising from claims under the Constitu-

tion or federal statutes, when the amounts of such

claims are less than $10,000. 28 U.S.C. 1346(a).

For claims larger in amount, Congi#ss placed jurisdic-

tion in the Court of Claims, 28 U.S.C. 1491, without

characterizing that jurisdiction “exclusive”.

Section 211, however, provides exclusive jurisdiction

in District Courts for cases arising under the ESA

and EPAA. Thus, in permitting suits in the District

Court, “without regard to the amount in controversy,”

Section 211 substitutes for the Tucker Act and enlarges

the jurisdiction of the District Courts.’

"It should be noted that there is mo statute providing an

alternative basis for jurisdiction in the District Court whereby

review of FEA orders and regulations may be obtained. The

remedies of declaratory and injunctive relief are not available

under the Tucker Act, 28 U.S.C. 1346(a). United States v.

Testan, 424 U.S. 392 (1976). Neither is there jurisdiction

(This footnote is continued on next page)

eutilinnn

Questions Presented.

1. Whether Section 210 of the Economic Stabiliza-

tion Act (“ESA”), 12 U.S.C. 1904 note Section 210,

incorporated by reference in Section 5 of the Emergency

Petroleum Allocation Act (“EPAA”), 15 U.S.C. 754,

grants a right of action against the United States for

any remedy, including damages.

2. Whether Section 210 of the ESA operates to

waive the sovereign immunity of the United States.

3. Whether a right of action for damages against

the United States may arise from a denial of due

process under the Fifth Amendment.

4. Whether the due process guarantee of the Fifth

Amendment may operate by itself to waive sovereign

immunity in an action for damages against the United

States.

5. Whether Section 210 of the ESA, incorporated

in the EPAA, and the due process guarantee of the

Fifth Amendment, taken in conjunction, permit the

recovery of damages from the United States in an

action founded upon the issuance of Federal Energy

Administration orders in violation of the EPAA.

to issue such remedies under the Administrative Procedure Act,

5 U.S.C. 701-706 (Califano v. Sanders, .... U.S. ..... 97 S.Ct.

980, at 984 (1977), nor the Federal Tort Claims Act, 28

U.S.C. 1346(b) and 2680(a). No other section of the ESA

or EPAA authorizes judicial action by citizens. The absence

of such alternative bases of jurisdiction is relevant to the determi-

nation that it was the intent of Congress to establish exclusive

jurisdiction in the District Pram pursuant to Section 211(a) and

that a right of action inst the United States for review

of FEA orders and re nations as well as for the recovery

of damages was created by Section 210.

-—5—

Federal Constitutional Provision and Statutes Involved.

This petition for certiorari involves the determination

of rights arising under the following federal Constitu-

tional provision and statutes, quoted verbatim at Ap-

pendix “D” hereto: United States Constitution, Fifth

Amendment; 5 U.S.C. 702; 12 U.S.C. 1904 note Sec-

tions 210 and 211; and 15 U.S.C. 754.

For the convenience of the Court and because of

the centrality to this matter of its construction, Section

210 of the ESA, 12 U.S.C. 1904 note Section 210(a),

is also set out herein:

“$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 regulation 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, inciuding an

action for a declaratory judgment, writ of injunc-

tion (subject to the limitations in Section 211),

and/or damages.”

Statement of the Case.

1. Claim for Damages Against the United States.

McCulloch Gas Processing Corporation (“McCul-

loch”) commenced this action in the District Court

against the Hidrogas defendants’ and against William

C. Arntz, Regional Administrator in Region IX of

the Federal Energy Administration (“FEA”) and the

*For purposes cf this appeal, the separate identities of de-

fendants Canadian Hidrogas Resources, Ltd.; Hidrogas, Ltd.;

Hidrogas, Inc.; and Evan W. G. Bodrug are of no significance

and these defendants will be referred to collectively as “Hidro-

gas.”

onlin:

United States, asserting that it had suffered legal wrong

as the result of certain FEA* orders: (a) compelling

it to supply propane to Hidrogas on a credit basis

despite that purchaser’s failure to pay McCulloch’s

invoices, poor ~redit posture and extended history of

financial delinquency; and (b) limiting McCulloch’s

selling price to be charged to this one customer to

a level below that authorized by FEA’s price regula-

tions, 10 C.F.R. Part 212.

McCulloch seeks, inter alia, to recover $897,184.65,

plus interest, for propane delivered to Hidrogas in

1974 and 1975 pursuant to these FEA orders, for

which full payment has never been made. The chal-

lenged FEA orders compelling these deliveries neither

recite nor rest upon substantial nor appropriate evi-

dence; they lack essential findings, are contrary to

FEA’s regulations and exceed its statutory authority;

they are arbitrary and capricious; and, finally, they

fail to comport with the purposes and mandate ex-

pressed by Congress in Section 4(b)(1) of the Emer-

gency Petroleum Allocation Act (“EPAA”), 15 U.S.C.

753(b), providing for equitable treatment by FEA

to suppliers and for protection of the financial viability

and competitive abilities of independent marketers,

among whom McCulloch is one. Therefore, the chal-

lenged FEA orders denied McCulloch due process of

law in violation of the Fifth Amendment to the Consti-

tution and McCulloch suffered a “legal wrong”, as

that term is used in Section 210 of the ESA, 12

*Effective October 1, 1977, the FEA became part of the

newly formed Department of Energy (“DOE”). For the con-

venience of the Court, McCulloch use the abbreviations DOE

and FEA in this petition according to the pertinent time.

~—*

—

U.S.C. 1904 note Section 210, incorporated by refer-

ence in the EPAA at 15 U.S.C 754, as amended

and extended.

FEA’s orders contained no findings of McCulloch’s

pertinent credit policies (cf. 10 C.F.R. 210.62(a)),

nor of the nonpayment by Hidrogas of McCulloch’s

lawful price. McCulloch was instructed that it could

aot require “cash on delivery” from Hidrogas despite

chronic collection difficulties with this Canadian cus-

tomer. Following issuance of FEA’s 1974 orders, Hidro-

gas promptly commenced purchasing large quantities

of propane from McCulloch, and subsequently has failed

and refused to pay the agreed-upon contract prices,

which are lawful prices, of $0.17-0.20 per gallon, to

McCulloch’s total damage of $897,184.65, plus interest.

Hidrogas officers have testified upon depositions that

they were advised by FEA not to pay McCulloch’s

prices. McCulloch’s losses under FEA’s orders mounted

rapidly; FEA ignored the matter when it was raised

repeatedly by McCulloch.

On January 16, 1975, FEA issued a further order,

authorizing McCulloch, for the first time, to require

“cash on delivery” from Hidrogas, but simultaneously

limiting the price McCulloch could charge to $0.157

cents per gallon. No evidence was taken by FEA,

no hearing or audit was held, no findings were made

by FEA, and McCulloch vehemently objected.

FEA is not an agency entitled to set rates for prod-

ucts such as is the Federal Power Commission, now

known as the Federal Energy Regulatory Commission.

Instead, its regulations permit the charging by a seller

of the price of its choice, subject to maximum limits

calculated with reference to formulas contained in

woliiiin

FEA’s pricing regulations, 10 C.F.R. Part 212. There

was, and is, no evidence that $0.157 was equal to

or greater than McCulloch’s maximum price limit. In

fact, McCulloch informed FEA to the contrary.

Upon McCulloch’s administrative appeal, FEA

acknowledged in late February 1975 that the pricing

portion of its order was invalid and prospectively ex-

cused McCulloch from further compliance therewith.

FEA neither acknowledged nor sought to remedy the

financial injury already suffered by McCulloch as the

direct result of its earlier orders. Within two weeks

after FEA’s February 1975 order, Hidrogas withdrew

entirely from buying and selling propane in the United

States and declined to purchase any further propane

from McCulloch.

Proceedings Below.

In the District Court, the United States moved for

summary judgment with respect to McCulloch’s claim

for money damages against it, asserting the bar of

sovereign immunity. Following multiple briefs from each

side, the District Court denied the Government’s motion

on July 12, 1977. The Government moved for recon-

sideration or, in the alternative, for certification of

an interlocutory appeal to TECA, pursuant to 12 U.S.C.

1904 note Section 211(c) and 28 U.S.C. 1292(b).

On October 18, 1977, the District Court denied the

motion for reconsideration but certified to TECA, and,

on December 5, 1977, TECA accepted, the following

controlling question of law:

“Whether Griffin v. United States, 537 F.2d

1130 (T.E.C.A. 1976), cert. denied 429 USS.

919 (1976), holds that §210 of the Economic

=

Stabilization Act, as incorporated by reference in

the Emergency Petroleum Allocation Act, provides

a right of damages available in suits against the

federal government for damages on a basis other

than that of an alleged unconstitutional taking

of property for a public purpose without just com-

pensation in violation of the Fifth Amendment

and whether damages are available against the

federal government under that Act in such suits.”

In its decision below issued May 9, 1978, TECA

declared that notwithstanding its decision in Griffin

v. United States, supra, Section 210 of the ESA does not

afford a right of action for damages against the United

States and does not waive sovereign immunity and

that, Griffin aside, damages are not available in suits

against the United States for a denial of due process

by FEA.

Relying upon this Court’s decision in The Regional

Rail Reorganization Act Cases, 419 U.S. 102 (1974),

TECA acknowledged that the ESA and EPAA would

violate the Fifth Amendment unless a right to compen-

sation for the taking of property for public benefit

were available under the statutes. Noting that exclusive

jurisdiction in cases under these acts was conferred

upon the District Courts and not the Court of Claims,

TECA concluded that it had permissibly departed from

the statutory scheme in Griffin to imply a right to

damages for a taking of property, but that it would

not depart from the statutory scheme to imply a

right to damages under Section 210 and the Fifth

Amendment for violation of the equally fundamental

right to due process of law. TECA asserted that rights

of action against the United States under the statutes

— =

could be based only upon Section 211 of the ESA

and then for injunctive and declaratory relief alone.

This reasoning evoked a rare concurring opinion

in which Judge Christensen admonished TECA for

undermining the logic of its earlier decision in Griffin,

which construed Section 210 as affording a right of

action for damages against the United States where

necessary under the just compensation clause of the

Fifth Amendment and which treated Section 211 as

merely stating conditions and limits upon the remedies

of declaratory judgment and injunction available against

the United States under Section 210. Both opinions

below err, we contend, in finding no waiver of sovereign

immunity in Sections 210 and 211 nor in the due

process clause of the Fifth Amendment.

(Blanchette v. Connecticut General Insurance Corp.)

(“Regional Rail”), 419 U.S. 102 (1974), creditors

be absorbed by the United States into the Consolidated

Rail Corporation (“Conrail”) and by requiring the

railroad to operate at a loss for an indefinite period

of time prior to compensation. The majority opinion

expressed “grave doubts whether the Rail Act would

be constitutional if a Tucker Act remedy were not

available as compensation for any unconstitutional [ tak-

ing] not compensated under the Act itself”, 419 U.S.

at 135, for the shareholders would have been left

“without adequate assurance that compensation will

ever be provided,” and the entire reorganization plan

would have been unconstitutional since “at the time

of taking ‘reasonable, certain and adequate provision

for obtaining compensation’” must be provided. 419

U.S. at 124-125, quoting Cherokee Nation v. Southern

Kansas R. Co., 135 U.S. 641, at 659 (1890).

This Court found there was sufficient legislative his-

tory to support the view that Congress had never

intended in the Rail Act affirmatively to withdraw

—}]2—

the Tucker Act remedy; instead that remedy lay behind

and in addition to the compensation provided in the

Rail Act itself. Against the contention that exclusive

jurisdiction of all Rail Act claims in a Special Court

other than the Court of Claims effectively withdrew

the Tucker Act remedy, this Court noted the special

tribunal existed to allocate huge sums to damage claim-

ants and that Congress may have been convinced the

financial authority available to the Special Court “would

surely equal or exceed the required constitutional mini-

mum.” 419 U.S. at 128, 129. This Court found the

language of the Rail Act was clearly susceptible of

the interpretation and should be interpreted as permit-

ting and not withdrawing appropriate Tucker Act rem-

edies.

In Griffin v. United States, 537 F.2d 1130 (TECA),

cert. denied, 429 U.S. 919 (1976) (“Griffin”), TECA

addressed a similar problem with respect to Sections

210 and 211 of the ESA, incorporated in the EPAA,

the statutes at issue herein. In Griffin, plaintiffs sought

damages from the United States for an alleged taking

of their property as the result of the operation of

FEA’s crude oil pricing regulations adopted under the

EPAA.

Section 211(a) provides for exclusive jurisdiction

over all cases arising under the EPAA in the District

Courts. TECA found no basis for an action in the

Court of Claims under the Tucker Act. No compensa-

tion fund was available to the District Court as was

provided under Regional Rail to the Special Court.

No legislative history existed to indicate the availability

of the Tucker Act. The evidence of an affirmative

withdrawal of the Tucker Act remedy being stronger,

eutifien

and the risk of unconstitutionality being consequently

greater, TECA, relying upon Regional Rail, inferred

that the intent of Congress in the ESA was to afford

jurisdiction under Section 211 over all claims arising

under the EPAA and to authorize an action for damages

under Section 210(a) against the United States for

“legal wrongs” arising out of orders or regulations

under EPAA. 537 F.2d at 1135. This construction

of Section 210 was clearly permitted by the language

of that section, which allows “any person suffering

legal wrong” resulting from FEA orders to bring an

action in the District Court “for appropriate relief,

including . . . damages.”

Rejecting an argument by the Government that Sec-

tion 210 was limited to “private suits” to which the

United States was not a party, TECA observed:

“The fact that ‘private suits’ such as those

brought by plaintiffs name as defendant, and seek

monetary damages against, the United States no

more renders them public suits than are claims

brought by private individuals to recover damages

against the United States, for example, under the

Tort Claims Act. The characterization of such

suits as something other than private suits con-

templated by Section 210(a) even though it is

assumed they involve legal wrong arising under

EPAA, and precluding any action against the

government pursuant to the latter section seems

difficult to justify.

We believe that if or to the extent plaintiffs

suffered legal wrong because of any taking of

their property as a result of the two-tier oil pricing

system, they would have the right to utilize the

—l4+—

jurisdiction afforded in the District Court by Sec-

tion 211 by bringing the type of action contem-

plated by Section 210(a) [against the United

States] for damages, there being no limitations

in Section 211 to the contrary.” 537 F.2d at

1136 (footnotes omitted).

McCulloch's action for damages against the United

States rests upon the above-quoted language in Griffin:

McCulloch’s predicate is that Section 210 is as hos-

pitable to claims for damages resulting from a denial

of due process by FEA as to claims of “taking” of

property.

Notwithstanding its decision in Griffin, TECA held

in the present case that Section 210 does not afford

a right of action for damages against the United States;

further, it asserts there can be no action against the

United States for relief of any sort under Section 210.

(Appendix “C” at pp. 15-16). TECA now asserts it re-

lied upon Regional Rail in Griffin for the implication of

a remedy required by the Fifth Amendment and not

available in any language enacted by Congress.

This latest construction by TECA turns Regional

Rail upon its head. There, this Court addressed the

text of the Rail Act, saw that it sheltered ample compen-

sation remedies and that its language and history could

comfortably be understood and interpreted not as with-

drawing Tucker Act remedies but instead as providing

an additional remedy for piaintiffs to be exhausted

before resort was had to the Tucker Act. Here, TECA

concedes that no Tucker Act remedy is available under

the ESA and EPAA, and no separate fund has been

specially provided.

—-— =

Cutting from whole cloth and without regard for

its recent words in Griffin, TECA declares all references

to “damages” in Section 210 are not applicable to

the United States. TECA asserts that Section 211 limits

the ESA’s remedies against the United States to declara-

tory judgments and injunctions; TECA fails to follow

the text of Section 211 which only places restrictions

on the terms of these remedies when invoked against

the Government. Section 211 neither establishes these

remedies nor precludes a damage remedy against the

United States. Finally, TECA creates an implied Fifth

Amendment remedy in an effort to save the statute in

has retailored from unconstitutionality.

Regional Rail, although cited by TECA as authority

for its decision, does not allow wholesale rewriting

of statutes but rather interpretation grounded in lan-

guage and history approved by Congress. All the sec-

tions of an enactment are to be harmonized where

possible, not disregarded where convenient.

Section 210 of the ESA draws no distinction on

its face between actions against the government for

damagés resulting from a “taking” and damages result-

ing from a violation of the due process clause. Section

210 provides that a person suffering “legal wrong”

because of any order or regulation issued under the

EPAA may bring an action in the District Courts

for a declaratory judgment, writ of injunction, or dam-

ages. The United States, being the only entity authorized

under the EPAA to issue an order or regulation pursu-

ant thereto must necessarily have been contemplated as

the logical defendant in an action brought pursuant

to Section 210, including an action for damages, there

being no language contained in Section 210 to the

=

contrary.‘ Prior decisions of TECA cite Section 210

as their basis for the declaratory and injunctive remedies

against the United States. See Atlantic Richfield Co.

v. FEA, 556 F.2d 542, at 544 (TECA 1977); and

Tasty Baking Co. v. Cost of Living Council, 529

F.2d 1005, at 1010 (TECA 1975).

Not only did TECA decline in this case to find

a right of action in Section 210(a) against the United

States, it went on to rule that Section 210 provides

no waiver of sovereign immunity even for a right

of action based elsewhere (App. “C” at 13). Yet in

Griffin, no immunity was seen in Section 210:

“We believe . . . [plaintiffs] would have the

right to utilize the jurisdiction afforded in the

can

by authorizing a person suffering a legal wrong to bring

a treble damage action against the violator.

brief

misplaced for two reasons. First, as TECA found in Griffin,

the statement refers to Section 210(b)(1) which rr for

treble damage actions for overcharges in the BF ..,

or cardiees Uy peste sageeees Sie Se Sy Seen coors

provides an additional remedy intended to supplement the general

provision of a right of action under Section 210(a), which,

when read in context, provides for a much more comprehensive

ight of action than the treble damage provisions of Section

210(b)(1). Further, it is an established rule of statutory con-

struction that legislative history may not be used to

the meaning of a clear and unambiguous statute. United States

v. Oregon, 366 U.S. 643 (1961); Gemsco, Inc. v. Walling,

324 U.S. 244, at 260 (1945).

a

district court by §211 by bringing the type of

action contemplated by §210(a) for damages,

there being no limitation in §211 to the contrary.”

537 F.2d at 1137.

The willingness of TECA to imply new meaning in

Sections 210 and 211 in the present case, justified

ostensibly by Regional Rail, is cut off abruptly when

TECA reaches the waiver of sovereign immunity in

Section 210 and turns to United States v. Testan,

424 U.S. 392 (1976) for support. TECA now states

that the right of action for damages it found in Griffin

to remedy constitutional violations is illusory, for Sec-

tion 210 does not waive sovereign immunity. A waiver

sufficient to support the conclusion in Griffin arises

instead from the self-executing just compensation clause

of the Fifth Amendment. TECA’s interpretation reads

too much into Testan and too little into Section 210.

Testan provides only that a party’s “asserted entitle-

ment to money damages depends upon whether any

federal statute ‘can fairly be interpreted as mandating

compensation by the federal government for the damage

sustained.’” 424 U.S. 392, at 400, 96 S.Ct. 948,

at 954.°

The fact that the United States is not expressly

named in Section 210 is not essential to the interpreta-

tion of that section; a waiver of sovereign immunity

may be found even in the absence of these words.

*Testan rejected a plaintiff's attempts to find an implied

waiver of sovereign immunity in the Classification Act, 5 U.S.C.

§1501 et seq. Classification Act for federal

unlike Section 210, contained no provision for a damage action

by employees adversely affected. Remedies were restricted to

administrative reconsideration. Of course, Testan also involved

only a claim for damages based upon a statutory entitlement,

rather than the constitutional right to due process involved here.

aniline

Such a waiver has been found several times with respect

to similar provisions in other statutes which do not

exclude actions: against the government and which also

do not expressly refer to such actions.°

In Schlafly v. Volpe, 495 F.2d 273 (7th Cir. 1974),

the Court construed Section 10 of the Administrative

Procedure Act, which begins:

“!A] person suffering legal wrong because of

agency action, or adversely affected or aggrieved

by agency action within a meaning of a relevant

statute, is entitled to judicial review thereof.”

The Schafly Court held this language of Section 10

constituted a consent by the government to be sued.

495 F.2d 273, at 282. Construing the same language,

the District of Columbia Circuit in Scanwell Labora-

tories, Inc. v. Shaffer, 424 F.2d 859, at 874 (D.C.

Cir. 1970) also found a waiver of sovereign immunity

and commented:

“It seems axiomatic to us that one must imply,

from a statement by the Congress that judicial

review of agency action will be granted, an inten-

tion on the part of Congress to waive the right

*“McKenzie v. United States, 536 F.2d 726 (7th Cir. 1976)

(finding a waiver of sovereign immunity under Section 17C

of the Bankruptcy Act, 11 U.S.C. §35); United States v.

Hellard, 322 U.S. 363, 64 S.Ct. 985 (1943) (waiver of sover-

eign immunity a. to be imp by a jurisdictional statute

iding for

also TECA'’s era §474 declaratory

and injunctive relief in Atlantic Richfield Co. v. FEA, 556

F.2d 542, at 544 (TECA 1977); and Tasty Baking Co. v.

oat of Living Council, 529 F.2d 1005, at 1010 (TECA

1975).

=

of sovereign immunity; any other construction

would make the review provisions illusory.””

The similarity of Section 210 in grammatical struc-

ture to Section 10 of the Administrative Procedure

Act is yet a further assurance that the same conclusion,

recognition of a waiver of sovereign immunity, should

be applied to Section 210. Unlike the Administra-

tive Procedure Act, Section 210 goes on to afford

the remedy of damages as well as declaratory and

injunctive relief. Therefore, although one may not sue

the United States for damages under the Administrative

Procedure Act, the conclusion by the Court below

that damages are not available against the United States

under Section 210 is in conflict with the interpretation

given by other circuits to similar statutory language.

Since TECA is vested with exclusive jurisdiction

over Section 210 and 211 of the ESA, the possibility

of direct conflicts between TECA and other circuits

is eliminated. Thus, two principal indicia of the need

for review of an issue by this Court, must be: (a) Con-

flicts between TECA decisions on the same statutory

subject, and (b) conflicts between TECA and other

Courts of Appeals construing similar statutory language

arise.

tAccord, International Engr. Co., Div. of A-T-O, Inc. v

Richardson, 512 F.2d _— nee (D.C.Cir. 1975 *

423 U.S. 1048 (1976); oy 4 Welfare Rights Org.

v. Simon, 506 F.2d ian ‘2 1283 (D.C.Cir. 1974), rev’

on other grounds, 426 U.S. 26 (1976); Kingsbrook Jewish

Medical Center v. Richardson, 486 F.2d 653, at 658 (2nd

Cir. 1973); Kletschka v. Driver, 411 F.2d 436, at 445 (2nd

Cir. 1969); Brennan v. Udall, 399 F.2d 803, at 805 (10th

Cir. 1967).

— =

2. TECA’s Decision Below Conflicts With the Deci-

sions of Several Courts of Appeals as to the Avail-

ability of an Action for Damages Against the

United States Occasioned by a Denial of Due Proc-

ess of Law.

TECA’s decision in this case that no right of action

for damages is available to remedy a denial of due

process is in conflict with the decisions of a number

of other Courts of Appeals which have applied to

the Fifth Amendment the rationale of this Court’s

decision in Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, (“Bivens”) (403 U.S.

388 (1971)).°

In Jacobson v. Tahoe Regional Planning Agency,

566 F.2d 1353 (9th Cir. 1977), certiorari granted

June 5, 1978, sub nom. Lake Country Estates, Inc.

v. Tahoe Regional Planning Agency, No. 77-1327,

the Ninth Circuit apprehended a damage action for

a Fifth Amendment due process violation arising direct-

ly from the Constitution:

“The Court in Bivens fashioned a cause of

action against federal officers for a violation of

the Fourth Amendment. The Court found a dam-

ages remedy implied in the Constitution, viewing

it as an umsurprising remedy solidly rooted in

8See, e.g., Gentile v. Wallen, 562 F.2d 193, 196 (2nd Cir.

1977) (14th Amendment); United States ex rel. Moore v.

Koelzer, 457 F.2d 892, 894 (3rd Cir. 1972) (Sth Amendment);

but see Mahoney v. Waddle, 564 F.2d 1018 (3rd Cir. 1977)

(declining to allow cause of action on 14th Amendment alone);

States Marine Lines, Inc. v. Schultz, 498 F.2d 1146, 1156

57 (4th Cir. 1974) Fifth Amendment); Fitzgerald v. Porter

Memorial Hospital, 523 F.2d 716, 718-19 and note 7 (7th Cir.

1975) (14th Amendment); contra, Kostka v. Hogg, 560 F.2d

37, 44 (ist Cir. 1977), contra, Davis v. Passman, 571 F.2d

793 (5th Cir. 1978).

offi

history. 403 U.S. at 395-96, 91 S.Ct., at 2004

quoting from Bell v. Hood, 327 U.S. 678, 684,

66 S.Ct. 773, 90 L. Ed. 939 (1946):

*‘{I}t is . . . well settled that where legal

rights have been invaded, and a federal statute

provides for a general right to sue for such

invasion, federal courts may use any available

remedy to make good the wrong done.’

“Since appellant’s claim is based on the Fifth,

rather than the Fourth, Amendment, we must

determine whether the rationale of Bivens can

be extended to Fifth Amendment claims.

“Although the question whether to limit the

applicability of Bivens to the Fourth Amendmem

has apparently not been decided by this circuit

(footnote omitted), most courts of appeals have

held that the remedy is not so limited.

“We believe that this is the better view. The

due process rights protected by the Fifth Amend-

ment are as fundamental as those protected by

the Fourth Amendment. Nothing in Bivens war-

rants limitation to Fourth Amendment claims; its

rationale clearly supports extension to cases of

this sort.” 566 F.2d 1353, at 1363-1364.

In States Marine Lines, Inc. v. Schultz, 498 F.2d

1146 (4th Cir. 1974), a damage remedy was found

to be a necessary and appropriate form of relief for

a deprivation of property without due process of law

by Customs agents who boarded the plaintiff's vessel

and seized his cargo. The plaintiff alleged that there

was a violation of the Fifth Amendment actionable

under Bivens:

wien

“The necessity and appropriateness of judicial

relief is no less compelling in this case than it

was in Bivens. As in Bivens: a common law

or state tort remedy may or may not afford a means

of redressing this wrong, but in any case, will

not be tailored specifically to cases of lawlessness

pursuant to federal authorities; the claim presented

is obviously appropriate for money damages; and

other remedies such as injunctive or relief in the

nature of mandamus are no longer viable alterna-

tives.” 498 F.2d at 1157.

A private right of action was implied to complement

the Securities Exchange Act of 1934 in J. J. Case

v. Borak (“J. I. Case’), 377 U.S. 426 (1964); this

Court there viewed a damage remedy as “necessary”

to effectuate statutory purposes and as complementary

of other remedies. 377 U.S., at 433. In this regard,

this Court has been sensitive to extending the avail-

ability of remedies for constitutional violations. As

stated by Mr. Justice Black in Bell v. Hood, 327

U.S. 678 (1946): “where federally protected rights

have been invaded, it has been the rule from the

beginning that courts will be alert to adjust their reme-

dies so as to grant the necessary relief.” (Jd. at 684.)

The predicate to an implication of remedies is the

ineffectuality of alternate forms of redress for the plain-

tiff at bar. One commentator has remarked:

“The focus should then be upon whether there

are other remedies available to those in the plain-

tiffs position that would as fully effectuate the

purposes of the constitutional guarantee as the

remedy sought; as in [J. 7. Case] the fact that

persons in other situations may have access to

remedies that will vindicate their rights under the

ae

—23—

constitutional provision in question should not pre-

clude the judicial creation of remedies for a par-

ticular plaintiff who. is without effective means

of redress.” Dellinger, “Of Rights and Remedies:

The Constitution as a Sword”, 85 Harv.L.Rev.

1532, 1551 (1972).

TECA asserts in the opinion below that McCulloch’s

sole redress for a denial of due process that caused

it financial loss resides in Section 211 and is limited

to declaratory or injunctive relief enjoining the prospec-

tive enforcement of a regulation or order. (Appendix

“C” at 15.) While actions for equitable relief may

vindicate the rights of “other persons in other situa-

tions”, they fail to provide to McCulloch any “effective

means of redress” for the financial injury it suffered

by reason of the FEA Orders issued to it.

McCulloch seeks damages from the United States

here because the alternative remedies of declaratory

relief or injunctive relief are ineffectual in this case.

Approximately one month after FEA’s final order was

issued in 1975, it was rescinded on appeal and Hidrogas

withdrew from the United States market into Canada.

The damage accrued during the pendency of FEA’s

order, while judicial review was premature and agency

proceedings were continuing. Monetary compensation

is McCulloch’s only effective remedy.

TECA in its decision below stated that it did not

dispute that McCulloch’s right to procedural due process

is as basic and as deserving of protection as its right

to be compensated for a taking of its property for

a public use. (Appendix “C” at 13.) Having acknowl-

edged such a substantive right, TECA’s determination

that no damage remedy was available appears difficult

allies

to justify. Two equally basic, equally substantive Fifth

Amendment rights have been recognized by TECA,

but a right of action for damages is not available

for the invasion of one.

A procedural vehicle by which one may pursue Fifth

Amendment just compensation remedies is the Tucker

Act, even though the right of action derives from

the Constitution. Section 210 of ESA _ performs

an identical office for the Fifth Amendment due process

guarantee. Section 210 makes express reference to dam-

ages and has been cited by TECA in Griffin as applica-

ble to the United States. The implication that this

damage remedy is available to correct a denial of

due process is a smaller and easier step than in J. /.

Case, though one refused by TECA, without explana-

tion. (See Appendix “C” at pp. 15-16.)

It precisely accords with Bivens and J. I. Case

for this Court to nermit McCulloch’s right of action

for damages against the United States herein. It remains

for the District Court, at trial, to determine whether

McCulloch establishes facts sufficient to prove a denial

of due process. For purposes of this interlocutory appel-

late proceedings, it should be assumed a due process

violation occurred; at issue is the remedy for it.

TECA also ruled in the present case that Section

210 does not waive sovereign immunity, a conclusion

at apparent odds with its holding in Griffin, 537 F.2d

at 1137. TECA has now apparently revised its decision

in Griffin and premised the waiver of sovereign immuni-

ty necessary in “taking” cases like Griffin upon the

purportedly self-executing and “implicit” waiver of im-

munity in the Fifth Amendment's just compensation

clause. (Appendix “C” at p. 13.) It is unquestionably

”

— =

true that the just compensation clause has been de-

scribed by this Court on different occasions as being

“self-executing”. United States v. Causby, 328 U.S.

256 (1946); Jacobs v. United States, 290 U.S. 13

(1933). However, TECA went on to conclude that

the due process clause is nor self-executing. Just what

it is about the just compensation clause of the Fifth

Amendment that renders it “self-executing” and that

distinguishes it from the due process clause has not

been explained.

In addition to the just compensation clause of the

Fifth Amendment, other provisions of the Constitution's

amendments have been declared self-executing, among

them the Fifteenth and Twenty-Sixth Amendments.

See South Carolina v. Katzenbach, 383 U.S. 301

(1966) (Fifteenth Amendment); National Association

for the Advancement of Colored People v. New York,

413 U.S. 345 (1973) (Fifteenth Amendment); Terry

v. Adams, 345 U.S. 461 (1953) (Fifteenth Amend-

ment); Cheyenne River Sioux Tribe v. Andrus (8th

Cir. 1977) 566 F.2d 1085 (Twenty-Sixth Amendment).

Nothing linguistically distinguishes these Amendments

from the due process clause of the Fifth Amendment

or identifies their “self-executing” character.

Indeed, the due process clauses of the Fifth Amend-

ment and of the Fourteenth Amendment have been

characterized in dicta, as “self-executing”; in one in-

stance a three-judge district court, including a member

of the TECA panel in the present case, stated:

“Here we are sought to utilize and implement

the self-executing due process clause to destroy

the governmental sex discriminator, practice spon-

sored by the two statutes.” Ballard v. Laird,

ualiias

6 CCH Employment Practices Decisions 48793

at 5404 (S.D. Cal. 1973).

The Court granted the plaintiff, Ballard, equitable relief

and damages. See also the concurring opinion of Mr.

Justice Harlan, joined in by Mr. Justice Stewart,

in Monroe v. Pape, 365 U.S. 167, at 198 (1961).

That there was no legislative mandate for the remedy

afforded in the Ballard case is clear. Rather, the District

Court fashioned the requisite redress for the govern-

ment’s invasion of a constitutionally protected substan-

tive right of due process guaranteed by the Fifth

Amendment.

This result is sound, for to hold otherwise would

mean that one is entitled to due process only when

Congress affirmatively legislates that due process should

be available. Such a construction could eviscerate the

due process clause.

In the present case, no remedy except damages is

effectual. It is an insufficient response after Bell v.

Hood, supra, and Bivens, supra, to cease judicial in-

quiry, as TECA did here, after labeling the due proc-

ess clause as not self-executing and therefore failing

of a waiver@f sovereign immunity. For on the issue of

sovereign immunity, “[t]he decision whether a claim

is consented or unconsented is frequently a matter

of legal hair splitting courts would be ashamed of

in any other context.” Atkins v. United States, 556

F.2d 1028, at 1072 (Ct. Cl. 1977) (concurring opinion

of Judge Nichols).

=_ =

This Court’s decision this week in Monell v. Depart-

ment of Social Services of the City of New York,

pati USS. ........ (June 6, 1978) courageously confined

the sphere of sovereign immunity and authorized dam-

age actions against municipalities ‘or administrative

denials of due process of law, overturning Monroe

v. Pape, 365 U.S. 167 (1961). This Court found

there is a basis in the language and history of the

Civil Rights Act of 1871 for this withdrawal of sover-

eign immunity. Suits against the Unite States do not

raise the same problems of federalism as in Monell,

but, historically, decisions regarding the scope of sov-

ereign immunity of the states and state officers have

followed a roughly parallel course with those defining

the scope of sovereign immunity for federal entities

and employees. Jaffe, “Suits Against Governments and

Officers: Sovereign Immunity”, 77 Harv. L. Rev. 1,

at 21 (1963).

In the present case, we submit, Section 210 affords

a basis for this Court to determine that Congress au-

thorized a waiver of immunity for suits under the

ESA and EPAA. In this case, a waiver serves to

vindicate the protection of Fifth Amendment fi

precisely as in Monell.

If we have mistaken the Congressional

Section 210, it is still appropriate to interpret

Section as the procedural vehicle expressing the

executing waiver of sovereign immunity which

inhere in the Fifth Amendment’s due process cla

==

that statutory constructions will be favored which sup-

port the effectuation of Constitutional guaranties.

Where no other remedy but damages will avail to

vindicate a particular invasion of the core of a peti-

tioner’s Fifth Amendment due process right, the remedy

of damages should be made effective. In the present

case, FEA orders were issued without notice, hearing,

substantial evidence and in excess of the statutory

powers of the agency. Whatever the possible penumbras

of the Fifth Amendment, it is that provision’s very

center at issue in this case, and the due process clause

should be held here to be “self-executing”.

The liberality of construction urged in Regional Rail,

supra, to save a statute from unconstitutional opera-

tion—a liberality relied upon by TECA here and in

Griffin—is at odds with TECA’s unwillingness to ac-

knowledge that the same broad language of Section

210 which it has held will permit damages against

the United States in a “taking” context should also

operate to waive sovereign immunity in this due process

setting, both directly and to effectuate the appropriately

self-executing character of the Fifth Amendment where

non-damage remedies are insufficient. Further, TECA’s

determination to avoid a damages remedy conflicts

with the adjustment of remedies called for in Bell

v. Hood supra, Bevins, supra, and Monell, supra, for

which reasons certiorari should be granted.

This Court has not accepted for review any decision

by TECA since the inception of federal energy price

controls in 1973. Because of its exclusive appellate

jurisdiction over all cases arising under the ESA and

EPAA, TECA is not subject to supervision except

by this Court. Its opinions rarely collide with those

of other Courts of Appeals.

The importance of federal energy policy and regu-

lations in the national economy is so great as to require

no elaboration. Their impact intrudes into every busi-

ness and home in America. The effectiveness of judicial

control over the due process afforded by the energy

bureaucracy is directly a function of the remedies avail-

able to citizens aggrieved by the denials of due process.

This case presents precisely whether damages are avail-

able under these unique statutes, ESA and EPAA,

to remedy a governmentally-sponsored, caused or ag-

gravated legal wrong.

Both the novelty and significance of the issues herein

presented are underscored by the confusion in reasoning

and conflicts in results between TECA’s ruling in the

present case and in Griffin. The District Court, follow-

ing Griffin, held that damages should be available

in the present case, that the issue is controlling with

respect to further trial proceedings and its conclusion,

ontitive

compared with that of TECA demonstrates the legiti-

macy of differences of opinion on this important ques-

tion, itself a consideration for certiorari. Fortnightly

Corp. v. United Artists Television, 392 U.S. 390, at

393 (1968); Continental Grain Co. v. Barge FBL-585,

364 U.S. 19, at 20 (1960).

Conclusion.

For the foregoing reasons, a writ of certiorari should

issue to review the order of the Temporary Emergency

Court of Appeals entered May 9, 1978.

Respectfully submitted,

RICHARD T. WILLIAMS,

Counsel for Petitioner.

KADISON, PFAELZER, WOODARD,

Quinn & Rossl,

THOMAS J. MCDERMOTT, JR.,

ROBERT M. Nau,

Don G. KIRCHER,

CHARLES R. KOCHER,

FRANKLIN D. Dopce,

Of Counsel for Petitioner.

June 8, 1978.

%S

7

APPENDIX “A.”

Order.

United States District Court, Central District of Cali-

fornia.

McCulloch Gas Processing Corporation, a Deleware

corporation, Plaintiff, v. Canadian Hidrogas Resources,

Ltd., a Canadian corporation; Hidrogas, Ltd., a Cana-

dian corporation; Hidrogas, Inc., a Montana corpora-

tion; Evan W.G. Bodrug, President of Canadian Hidro-

gas Resources Ltd., Hidrogas, Ltd. and Hidrogas, Inc.;

William C. Arntz, Regional Administrator, Federal En-

ergy Administration, Region [X, inclusive, Defendants.

Civil Action No. CV75 576EC.

On June 7, 1977 the Motion for Summary Judgment

of the Federal Defendants came on regularly for hearing

before the Court; the Federal Defendants appearing

through its counsel Christopher M. Was, Esq., Depart-

ment of Justice, and Barry J. Trilling, Esq., Assistant

U.S. Attorney, Defendants CANADIAN HIDROGAS

RESOURCES, LTD., HIDROGAS, LTD, HIDROGAS

INC., AND EVAN W. G. BODRUG (“the nongovern-

mental defendants”) appearing by Frank R. Ubhaus,

Esq., and Plaintiff McCULLOCH GAS PROCESSING

CORPORATION (“Plaintiff”) appearing by Franklin

D. Dodge, Esq., and the Court having considered the

respective parties’ papers filed herein and oral arguments

of counsel, and the Court having ordered further memo-

randa of points and authorities on the issues of the

propriety of Plaintiff's claim for money damages against

the federal government and the necessity of the certifica-

tion of a potential constitutional issue to the Temporary

Emergency Court of Appeals (“TECA”), and having

considered ‘the respective parties’ papers filed on said

enliies

issues, and finding no necessity for a certification to

the TECA, and good cause appearing therefor,

IT IS HEREBY ORDERED that the Federal Defend-

ants’ Motion Summary Judgment on Plaintiff's claim

for money damages against the federal government

be, and hereby is, denied, now that the government

has been made a party [EAC].

IT IS FURTHER ORDERED that Plaintiff be

granted leave to file and serve its Third Amended

Complaint upon the aforementioned non-governmental

and Federal defendants; and

IT IS FURTHER ORDERED that Plaintiff join

the UNITED STATES OF AMERICA as a party

defendant to this action and serve said defendant forth-

with.

Dated: July 12, 1977.

/s/ E. Avery Crary

Judge of the United States District

Court, Central District of California

United States District Court, Central District of Cali-

fornia.

McCulloch Gas Processing Corporation, a Delaware

corporation, Plaintiff, v. Canadian Hidrogas Resources,

Ltd., a Canadian corporation; Hidrogas, Ltd., a Canadi-

an corporation; Hidrogas, Inc., a Montana corporation;

Evan W.G. Bodrog, President of Canadian Hidrogas

Resources Ltd., Hidrogas, Ltd. and Hidrogas, Inc.;

William C. Arntz, Regional Administrator, Federal En-

ergy Administration, Region IX, and the United States

of America; inclusive, Defendants. Civil Action No.

CV 75 576 EC.

The federal defendants’ Motion for Interlocutory Ap-

peal pursuant to 28 U.S.C. 1292(b), having come

on regularly for hearing on October 11, 1977, and

the Court having considered the Memoranda submitted

by counsel as well as oral argument,

It is hereby ORDERED that the Court’s July 12,

1977 Order denying the federal defendants’ Motion

for Summary Judgment on plaintiff's claim for money

damages against the federal government is amended

by the addition of the following paragraph:

“The Court, being of the opinion that its ruling

involves a controlling question of law as to which

there is substantial ground for difference of opinion

and that an immediate appeal from the order may

materially advance the ultimate termination of the liti-

gation, pursuant to 28 U.S.C. 1292(b) certifies the

following issue for interlocutory appeal to the Tempo-

rary Emergency Court of Appeals:

— 4

Whether Griffin v. United States, 537 F.2d 1130

(TECA 1976), cert. denied, holds that §210 of the

Economic Stabilization Act, as incorporated by refer-

ence in the Emergency Petroleum Allocation Act, pro-

vides a right of damages available in suits against the

federal government for damages on a basis other than

that of an alleged unconstitutional taking of property

for a public purpose without just compensation in

violation of the Fifth Amendment and whether damages

are available against the Federal Government under

that Act in such suits.”

DATED: Oct. 18, 1977.

E. AVERY CRARY

UNITED STATES DISTRICT JUDGE

offi

APPENDIX “C.”

Opinion of the Temporary Emergency Court of

Appeals of the United States.

Temporary Emergency Court of Appeals of the

United States.

McCulloch Gas Processing Corporation, Plaintiff-Ap-

pellee, v. Canadian Hidrogas Resources, Ltd., a Ca-

nadian corporation; Hidrogas, Ltd., a Canadian corpo-

ration; Hidrogas, Inc., a Montana corporation; Evan

W. G. Bodrug, President of Canadian Hidrogas Re-

sources Ltd., Hidrogas, Ltd. and Hidrogas, inc., De-

fendants-Appellants, and William C. Arntz, Regional

Administrator, Federal Energy Administration, Region

IX, and the United States of America, Federal De-

fendants-Appellants. No. 9-39.

On Appeal from the United States District Court

for the Central District of California (No. Civ. 75-

576-EC).

(Argued February 27, 1978, Decided May 9, 1978)

STEPHANIE LACHMAN GOLDEN, Department

of Justice, Washington, D.C., with whom Barbara

Allen Babcock, Asst. Attorney General and Dennis

G. Linder, were on the brief for Defendants-Appellants.

RICHARD T. WILLIAMS, Kadison, Pfaelzer, Wood-

ward, Quinn & Rossi, Los Angeles, California, with

whom Thomas J. McDermott, Jr. of the same firm,

was on the brief for Plaintiff-Appellee.

FRANKLIN D. DODGE, McCulloch Gas Processing

Corporation, Los Angeles, California, with whom Don

G. Kircher and Charles R. Kocher, were on the brief

for Plaintiff-Appellee.

Before CARTER, CHRISTENSEN and ZIRPOLI,

Judges.

_

PER CURIAM.

Plaintiff-appellee, McCulloch Gas Processing Corpo-

ration, brought this action against Hidrogas’ and, more

significantly for purposes of this appeal, William C.

Arntz, Regional Administrator of the Federal Energy

Administration, Region IX, and the United States. Mc-

Culloch claims that it suffered a legal wrong as a

result of certain FEA?’ orders requiring it to continue

supplying Hidrogas with propane despite that pur-

chaser’s poor credit posture and history of financial

delinquency. McCulloch seeks to recover $897,184.65,

plus interest, for propane delivered to Hidrogas in

1974 and 1975. The FEA orders are characterized

by plaintiff as having been issued in a manner that

denied McCulloch due process of law. Although the

parties to the instant appeal® disagree as to the proper

portrayal of the facts of this dispute, the question

presented to this court for decision does not requ‘re

us to resolve this issue.

The federal defendants moved for summary judgment

in the district court, where they argued, inter alia,

that plaintiff's suit for damages against the United

States was barred by the doctrine of sovereign immunity.

The district court denied the government’s motion, but

‘For purposes of this a , the separate identities of defend-

ants Canadian E Hidrogas esources, Ltd.; Hidrogas, Ltd.; Hidro-

gas, Inc.; and Evan W.

2As of October 1, 1977, pusmmet t Ge Geemmens a

ae oe Organization ‘Act (PLL. 95-91), and eee ee

1 (42 Fed. Reg. 46267, Sept. 15, de FEA became

part of the newly-established Department of

orders at issue in this were teed by Ge FEA the

opinion will refer to the FEA, although the proper reference

is now the DOE.

SHidrogas is not a party to this appeal.

a

it certified to this court, pursuant to 28 U.S.C. section

1292(b), the following question:

Whether Griffin v. United States, 537 F.2d

1130 (TECA 1976), cert. denied, [429 U.S. 919]

holds that § 210 of the Economic Stabilization

Act, as incorporated by reference in the Emer-

gency Petroleum Allocation Act, provides a right

of damages available in suits against the federal

government for damages on a basis other than

that of an alleged unconstitutional taking of prop-

erty for a public purpose without just compensation

in violation of the Fifth Amendment and whether

damages are available against the federal govern-

ment under that Act in such suits.

We find that Griffin does not control the outcome

of this appeal and that the United States has not exposed

itself to damage claims like those brought by McCul-

loch.

Plaintiffs in Griffin sought damages against the United

States for an alleged taking of their property for a

public purpose without just compensation. Specifically,

plaintiffs complained of the operation of the two-tier

pricing system on domestic crude oil, by virtue of

which a ceiling price of $5.25 per barrel was imposed

on “old” oil while new and released oil could be

sold without regard to the ceiling price.‘ Before reach-

ing the merits of plaintiffs’ claims, the court addressed

certain preliminary jurisdictional questions. The govern-

ment in Griffin, as it does here, contended that section

‘For a more complete picture of the two-tier crude oil

— , see Griffin and cases cited therein, 537 F.2d at 113

n.1.

—

210° could not provide the foundation for an action

against the government, that its sole function was the

creation of a private cause of action, by which one

private party could sue another private party for the

latter’s violation of the Act, or regulations and orders

issued thereunder. Insofar as a private party sought

relief against the government, it was argued that the

only available remedy was the declaratory and injunc-

5§ 210. Suits for damages or other relief

(a) Any person suffering le ys Ryn g RE

ct isi rex xxx

to the amount in controversy, for a i relief, in-

cluding an action for a declaratory j writ of in-

junction (subject to the limitations in section 211), and/or

(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 , 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 amy 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

of the overcharge: Provided, That where

first presented to the

for refund of the ove

for rental of or the sale of or services

exceeds the applicab dae calie cae cctaien

issued under this title.

— oe

tive relief provided in section 211° of the Economic

Had the government's position prevailed in Griffin

the victory would have been short-lived. It is unlikely

4°

*§ 211. Judicial Review

by way of defense (other than a defense based on the

So ai Gaal aater Gb GAS cade ae ee

eR ap Boy ye gh Ay

of this title or the validity of mw Bg bh negine =

or agency

title, the case shall be subject to removal either

i ditic court of the United. States “in ‘accordanes

wi applicable i 89

United § provisions chapter of title 28,

(b) (1) There is created a court of the

gids tele tan ae - So

Appeals. Except as ided in subsection (d) (2)

or order issued title a person

is a party to litigation before it. . . .

(e)(1) as provided in subsection (d) of this

section, no or permanent injunction restraining

—_

that the defendant would thereby have avoided the

immediate threats of a substantial claim for damages,"

and the constitutionality of the Act would have been

put in serious question, for the Fifth Amendment pro-

hibits the result urged by the government in Griffin.

Absent the provision in section 211(a). investing

the district courts with exclusive jurisdiction over cases

arising under the EPAA, plaintiffs in Griffin could

have brought their action under the Tucker Act,”

for that Act would ordinarily provide the jurisdictional

basis for a suit alleging an unlawful taking. The govern-

ment argued, however, that, having withdrawn the

Tucker Act remedy, the EPAA left plaintiffs with

no damage remedy at all, only the declaratory and

injunctive relief provided in section 211.

this title is in excess of the 3 ee. is arbitrary

or capricious, or is otherwise ahd eater the criteria

set forth in section 706(2) of title 5, United States Code,

or (B) that an order of such agency is invalid upon

a determination that the order is in excess of the agency’s

authority, or is based upon findings which are not sup-

ported by substantial evidence. .

Sections 210 and 211 of the Economic Stabilization Act of

1970, 12 U.S.C. § 1904 note, are incorporated

into the Emer diduame Allocation Act of 1973, (EPAA),

15 U.S.C. § 754

TThat threat was avoided anyway, however, since the claim

was rejected on the merits by Griffin.

828 U.S.C. § 1491 provides:

The Court —— shall “wd ey render

judgment upon any claim against nited States founded

either upon the Constitution, or an oe ee Saeee.

or any regulation of an executive or upon

any express or implied contract with the United States,

or for og or unliquidated damages in cases not

sounding in tort.

The district courts enjoy concurrent jurisdiction in cases involving

no more than $10,000. 28 U.S.C. § 1346.

eslitivins

Plaintiffs in Griffin responded that section 211 oper-

ated to waive the jurisdictional amount limitation con-

tained in the Tucker Act but that it did not circumscribe

the relief available to them, for their right to sue

was contained in section 210, which is not limited

to claims for injunctive and declaratory relief, but

provides for damage claims as well. Griffin found plain-

tiffs to be “nearer the mark” on the jurisdictional

issue, and held that their right to sue was indeed

located in section 210. While plaintiffs herein point

to language in Griffin that mieht suggest a more ex-

pansive holding, however, this court did not adopt

the view that section 210 could be relied upon to

support a damage claim against the United States re-

gardless of the basis for such a claim. The court’s

language indicates the narrowness of the Griffin hold-

ing:

We believe that if or to the extent plaintiffs

suffered legal wrong because of any taking of

their property as a result of the two-tier oil pricing

system, they would have the right to utilize the

jurisdiction afforded in the district court by § 211

by bringing the type of action contemplated by

§ 210(a) for damages, there being no limitations

in § 211 to the contrary.

Griffin, supra, 537 F.2d at 1136 (Emphasis added).

In reaching the conclusion that plaintiffs alleging

a taking could bring an action for damages under

section 210, Griffin made pointed reference to the

Regional Rail Reorganization Act Cases, 419 U.S. 102,

95 S.Ct. 335, 42 L.Ed.2d 320 (1974), in which the

Supreme Court confronted a similar issue. The Court

was there concerned with the finding of a three-judge

— 12—

district court that the Raii Act*® was unconstitutional

because it could not be construed to incorporate the

Tucker Act and therefore provided no remedy for

a Fifth Amendment taking. The Court observed that

the district court had viewed the problem from the

wrong perspective. The proper inquiry was not whether

the Rail Act had incorporated the Tucker Act but

rather whether the latter Act had been affirmatively

withdrawn. The Court refused to find an implied with-

drawal of Tucker Act jurisdiction in the Rail Act, since

a construction upholding constitutionality is favored,

and withdrawal of Tucker Act jurisdiction, leaving

plaintiffs without a remedy for an alleged taking, would

have left the constitutionality of the Rail Act in “grave”

doubt. Regionai Rail Reorganization Act Cases, supra,

419 US. at 134.

The jurisdictional issue in Griffin arose and was

resolved by this court in the context of an alleged

taking of private property without just compensation.

The constraints of that Fifth Amendment provision

on occasion require courts to construe statutes in order

to reconcile them with the constitutional requirement

of just compensation, but such constructions are often

of limited applicability, and they are unreliable author-

ity for plaintiffs raising other types of claims. The

observation of the Supreme Court in United States

v. Testan, 424 U.S. 392, 401, 96 S.Ct. 948, 47 L.Ed.2d

114 (1976), rejecting plaintiffs’ attempt to find an

implied waiver of sovereign immunity in the Classifi-

cation Act,”® is applicable, in somewhat paraphrased

form, to the instant case:

*Regional Rail Reorganization Act of 1973, 45 U.S.C.

§ 701 et seg.

105 U.S.C. § 5101 et seg.

a

We perceive nothing in [Griffin], cited . . .

with other cases centering in the Just Compensa-

tioin Clause of the Fifth Amendment (“nor shall

private property be taken for public use, without

just compensation”), that lends support to the

respondents. These Fifth Amendment cases are

tied to the language, purpose, and self-executing

aspects of that constitutional provision, [citation

omitted], and are not authority to the effect that

[§ 210] eliminates from consideration the sover-

eign immunity of the United States.

We thus answer the first part of the question certified

in the negative. Griffin does not hold that section

210 provides a right of damages in suits against the

government on a basis other than that of an alleged

constitutional taking of property for a public purpose

without just compensation. Moreover, with regard to

the second part of the question before this court, we

hold that, Griffin aside, damages are not available

against the government in such suits.

Plaintiff argues that its right to procedural due proc-

ess is as basic and as demanding of protection as

its right to be compensated for a taking of its property

for a public use. With that proposition this court has

no dispute. It does not follow, however, as plaintiff

would have it, that one who claims a due process

violation may seek damages from the United States,

for a waiver of sovereign immunity must first be estab-

lished. Such a waiver is implicit in the taking clause

of the Fifth Amendment, but no such waiver is con-

tained in the due process clause. See, e.g., Durante

v, United States, 532 F.2d 850 (2d Cir. 1976).

entities

The government urges that a waiver of sovereign

immunity must be explicit and unambiguous, and that

the absence in section 210 of any reference to the

United States requires us to find that the sovereign

immunity remains intact. We find the test to be some-

what more generous than the government would have

it, but we agree that section 210 provides plaintiff

with no cause of action for damages against the United

States. The relevant test has recently been described

by the Supreme Court in United States v. Testan,

supra, 424 U.S. at 401-02, 96 S.Ct. 948, 47 L.Ed.

2d 114:

Where the United States is the defendant and

the Plaintiff is not suing for money improperly

exacted or retained, the basis of the federal claim

—whether it be the Constitution, a statute, or

a regulation—does not create a cause of action

for money damages unless, as the Court of Claims

has stated, that basis “in itself . . . can fairly be

interpreted as mandating compensation by the Fed-

eral Government for the damage sustajned.” [cita-

tion omitted }.

—_—_

We do not find that section 210 can be fairly so

interpreted. While there is scant legislative history rele- —

vant to our inquiry, what history there is indicates

the intent of Congress to provide in section 210 a

remedy for private parties injured by violations of

the statute, and orders and regulations issued there-

under, by other private parties." Nor can we lightly

“Section 210 provides a traditional method by which

violaters of regulations may be discovered and other would-

be violators may be deterred. This can be accomplished

— =

assume that Congress would have provided a cause

of action for damages against the government in the

circumstances of this case. To expose the FEA to

damage actions based on its regulations and orders

would constitute a highly unusual choice by Congress,

and we will uot impute such a decision to the legis-

lature when plaintiff can offer no evidence, apart from

an ambiguous statute, in support of its position.”

Plaintiff invokes the benefits of judicial review of

agency action in support of its contention that Con-

gress did in fact provide for damage actions against the

government in section 210. There is no doubt, however,

that such review exists, and plaintiff was free to de-

mand it when it was subjected to the orders it now

claims deprived it of due process and caused it financial

loss. Section 211 provides the means by which a party

may, upon a proper showing, invoke the power of

this court or a district court to enjoin the enforcement

of a regulation or order. This court and others have

recognized the distinction between actions brought, for

legal or equitable relief, against private parties pursuant

to section 210, and actions for equitable relief against

by authorizing a person suffering a legal wrong to bring

a treble damage action against the violator.

“This action is intended to be brought by private persons

against other private persons. The Government will not

bring such action nor be the subject of one. . . .” S.Rep.

No. 92-507, 92d , Ist Sess. (1971), US.

Cong. & Admin. News, 2283, 2291.

2It is well established that, in the absence of any statutory

foundation, improper regulatory action will not provide the

basis for a damage action against the government unless the

es amounts to a takin e. See Mosca v. United States,

417 F.2d 1382, 1386 (Ct. Cl. 1969); Eastport Steamship

Corp. v. United States, 372 F.2d 1002, 1009 (Ct.Cl. 1967)

[both cases cited with approval in United States v. Testan,

supra, 424 U.S. at 400].

ntti

the government pursuant to section 211." Air Products

and Chemicals, Inc. v. United Gas Pipe Line Co.,

503 F.2d 1060, 1063 (Em.App. 1974); McGuire Shaft

& Tunnel Corp. v. Local Union No. 1791, UMW,

475 2d 1209, 1213-14 (Em.App.), cert. denied, 412

U.S. 958, 93 S.Ct. 3008, 37 L.Ed. 2d 1009 (1973);

Brennan Petroleum Products Co., Inc. v. Pasco Petrole-

um Co., Inc., 373 F.Supp. 1312, 1315 (D.Ariz. 1974).

Griffin departed from this view of the statutory

scheme, but it did so in order to reconcile the Act

with the demands of the Fifth Amendment. No similar

constraint appears in this case, and we reject plaintiff's

invitation to extend Griffin beyond the limits of the

taking clause of the Fifth Amendment.

Reversed and remanded to the district court for

action consistent with this opinion.

IT IS SO ORDERED.

CHRISTENSEN, Judge, Concurring.

Fully concurring with the result reached in the pre-

vailing opinion, as well as with most of its supporting

reasoning, 1 add this additional comment concerning

the interplay of §§ 210 and 211 of the Economic

Stabilization Act.

18Judge Christensen a in his concurring opinion that

we have altered the mean ng of Griffin by holding that. section

210 did not in fact pro the cause of action inst the

United States in that case . Such is not our intent. We agree

tates. Unless a fifth amendment taking is in which

case damages may be t under section 210, we believe

that section 211 provides proper avenue for relief against

the United States.

As pointed out in Griffin v. United States, 537 F.2d

1130 (TECA), cert. denied, 429 U.S. 919 (1976),

§ 211 primarily relates to jurisdiction and § 210 with

rights of action. Except for such “taking” claims as

were involved in Griffin, as to which a waiver of

governmental immunity was implicit in the Fifth

Amendment, neither section waived that immunity. In

this sense reference to the legislative history quoted in

footnote 11 of the majority opinion is understandable

and consistent; the limitation of the jurisdiction of

the courts by § 211 to interlocutory relief in suits

against the United States merely reemphasized the ab-

sence of any waiver of governmental immunity with

reference to damages not constitutionally mandated.

To suggest aside from this that the wording of §

210, rather than the implied jurisdictional limitations

of § 211 and absence from both sections of any express

waiver of sovereign immunity, would preclude an action

against the United States in appropriate cases tends

unnecessarily to cloud the logical foundations of Griffin

and the symmetry of treatment accorded by Congress

to the subjects of jurisdiction and rights of action.

A court’s jurisdiction of a case does nct necessarily

assure to any person a right of action invoking that

jurisdiction, nor does the existence of a right of action

in and of itself establish the jurisdiction of a particular

court to effectuate that right. We should not ascribe

to Congress a non-perception of these distinctions which

might otherwise seem convenient to unify a duplex

concept.

We indeed did hold in Griffin, as recognized and

quoted in the opinion of the court, that “to the extent

plaintiffs suffered legal wrong because of any taking

aaiiiinn

of their property . . . they would have the right

to utilize the jurisdiction afforded in the district court

by § 211 by bringing the type of action contemplated

by § 210(a) for damages, there being no limitations

in § 211 to the contrary.” It seems to have been

recognized that the doctrine of the Regional Rail Re-

organization Act Cases, 419 U.S. 102 (1974), so

required. Any indication now that such action for a

taking would not be by virtue of § 210, its reference

to damages being hospitable to this adaptation, but

under § 211, which mentions damages not at all,

could tend to erode the analysis by which we had

assumed that Griffin dispelled the question there raised

concerning the constitutionality of the Act in the “tak-

ing” context.

APPENDIX “D.”

Federal Constitutional Provision, Statutes

and Rules Involved.

United States Constitution, Fifth Amendment

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

Administrative Procedure Act, 5 USC 702

§702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a

court of the United States seeking relief other than

money damages and stating a claim that an agency

or an officer or employee thereof acted or failed to

act in an official capacity or under color of legal

authority shall not be dismissed nor relief therein be

denied on the ground that it is against the United

States or that the United States is an indispensable

party. The United States may be named as a defendant

in any such action, and a judgment or decree may

be entered against the United States: Provided, that

any mandatory or injunctive decree shall specify the

Federal officer or officers (by name or by title), and

oliiies

their successors in office, personally responsible for

compliance. Nothing herein (1) affects other limitations

on judicial review or the power or duty of the court

to dismiss any action or deny relief on any other

appropriate legal or equitable ground; or (2) confers

authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief

which is sought.

Economic Stabilization Act,

12 U.S.C. 1904 note Sections 210 and 211

§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 regulation issued pursuant thereto, may bring

an action in a district court of the United States,

without regard to the amount in controversy, for appro-

priate relief, including an action for a declaratory judg-

ment, 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 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 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

3 }—

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 representation 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.

§211. Judicial review

(a) The district courts of the United States shall

have exclusive original jurisdiction of cases or contro-

versies arising under this title, or under regulations

or orders issued thereunder, notwithstanding the amount

in controversy; except that nothing in this subsection

or-in subsection (h) of this section affects the power

of any court of competent jurisdiction to consider,

hear, and determine any issue by way of defense (other

than a defense based on the constitutionality of this

title or the validity of action taken by any agency

under this title) raised in any proceeding before such

court. If in any such proceeding an issue by way

of defense is raised based on the constitutionality of

this title or the validity of agency action under this

title. the cases shall be subject to removal by either

party to a district court of the United States in ac-

cordance with the applicable provisions of chapter 89

of title 28, United States Code.

atti

(b) (1) There is hereby created a court of the

United States to be known as the Temporary Emergency

Court of Appeals, which shall consist of three or more

judges to be designated by the Chief Justice of the

United States from judges of the United States district

courts and circuit courts of appeals. The Chief Justice

of the United States shall designate one of such judges

for such court and revoke previous designations. The

chief judge may, fiom time to time, divide the court

into divisions of three or more members, and any

such division may render judgment as the judgment

of the court. Except as provided in subsection (d)(2)

of this Section, the court shail not have power to

issue any interlocutory decree staying or restraining

in whole or in part any provision of this title, or

the effectiveness of any regulation or order issued there-

under. In all other respects, the court shall have the

powers of a circuit court of appeals with respect to

the jurisdiction conferred on it by this title. The court

shall exercise its powers and prescribe rules governing

its procedure in such manner as to expedite the de-

termination of cases over which it has jurisdiction

under this title. The court shall have a seal, hold

sessions at such places as it may specify, and appoint

a clerk and such other employees as it deems necessary

or proper.

(2) Except as otherwise provided in this section,

the Temporary Emergency Court of Appeals shall have

exclusive jurisdiction of all appeals from the district

courts of the United States in cases and controversies

arising under this title or under regulations or orders

issued thereunder. Such appeals shall be taken by the

filing of a notice of appeal with the Temporary Emer-

—-23—

gency Court of Appeals within thirty days of the entry

of judgment by the district court.

(c) In any action commenced under this title in

any district court of the United States in which the

court determines that a substantial constitutional issue

exists, the court shall certify such issue to the Tem-

porary Emergency Court of Appeals. Upon such certifi-

cation, the Temporary Emergency Court of Appeals

shall determine the appropriate manner of disposition

which may include a determination that the entire action

be sent to it for consideration or it may, on the

issues certified, give binding instructions and remand

the action to the certifying court for further disposition.

(d) (1) Subject to paragraph (2), no regulation

of any agency exercising authority under this title shall

be enjoined or set aside, in whole or in part, unless

a final judgment determines that the issuance of such

regulation was in excess of the agency’s authority,

was arbitrary or capricious, or was otherwise unlawful

under the criteria set forth in section 706(2) of title

5, United States Code, and no order of such agency

shall be enjoined or set aside, in whole or in part

unless a final judgment determines that such order

is in excess of the agency’s authority, or is based

upon findings which are not supported by substantial

evidence.

(2) A district court of the United States or the

Temporary Emergency Court of Appeals may enjoin

temporarily or permanently the application of a particu-

lar regulation or order issued under this title to a

person who is a party to litigation before it. Appeals

from interlocutory decisions by a district court of

the United States under this paragraph may be taken

titi

in accordance with the provisions of section 1292(b)

of title 28, United States Code; except that reference

in such section to the courts of appeals shall be

deemed to refer to the Temporary Emergency Court

of Appeals.

(e) (1) Except as provided in subsection (d) of

this section, no interlocutory or permanent injunction

restraining the enforcement, operation, or execution

of this title, or any regulation or order issued there-

under, shall be granted by any district court of the

United States or judge thereof. Any such court shall

have jurisdiction to declare (A) that a regulation of

an agency exercising authority under this title is in

excess of the agency’s authority, is arbitrary or capri-

cious, or is otherwise unlawful under the criteria set

forth in section 706(2) of title 5, United States Code,

or (B) that an order of such agency is invalid upon

a determination that the order is in excess of the

agency’s authority, or is based upon findings which

are not supported by substantial evidence.

(2) Any party aggrieved by a declaration of a

district court of the United States respecting the validity

of any regulation or order issued under this title may,

within thirty days after the entry of such declaration,

file a notice of appeal therefrom in the Temporary

Emergency Court of Appeals. In addition, any party

believing himself entitled by reason of such declaration

to a permanent injunction restraining the enforcement,

operation, or execution of such regulation or order

may file, within the same thirty-day period, a motion

in the Temporary Emergency Court of Appeals re-

questing such injunctive relief. Following considera-

tion of such appeal or motion, the Temporary Emer-

gency Court of Appeals shall enter a final judgment

—

affirming, reversing, or modifying the determination

of the district court and granting such permanent in-

junctive relief, if any, as it deems appropriate.

(f) The effectiveness of a final judgment of the Tem-

porary Emergency Court of Appeals enjoining or setting

aside in whole or in part any provision of this title,

or any regulation or order issued thereunder, shall

be postponed until the expiration of thirty days from

the entry thereof, except that if a petition for a writ

of certiorari is filed with the Supreme Court under

subsection (g) within such thirty days, the effectiveness

of such judgment shall be postponed until an order

of the Supreme Court denying such petition becomes

final, or until other final disposition of the action

by the Supreme Court.

(g) Within thirty days after entry of any judgment

or order by the Temporary Emergency Court of Ap-

peals, a petition for a writ of certiorari may be filed

in the Supreme Court of the United States, and there-

upon the judgment or order shall be subject to review

by the Supreme Court in the same manner as a judg-

ment of a United States Court of Appeals is provided

in section 1254 of title 28, United States Code. The

Temporary Emergency Court of Appeals, and the Su-

preme Court upon review of judgments and orders

of the Temporary Emergency Court of Appeals, shall

have exclusive jurisdiction to determine the constitu-

tional validity of any provision of this title or of

any regulation or order issued under this title. Except

as provided in this section, no court, Federal or State,

shall have jurisdiction or power to consider the con-

stitutional validity of any provision of this title or of

any such regulation or order, or to stay, restrain,

enjoin, or set as‘de, in whole or in part, any provision

aniiiin

of this title authorizing the issuance of such regulations

or orders, or any provision of any such regulation

or order, or to restrain or enjoin the enforcement

of any such provision.

(h) The provisions of this section apply to any

actions or suits pending in any court, Federal or State,

on the date of enactment of this section in which

no final order or judgment has been rendered. Any

affected party seeking relief shall be required to follow

the procedures of this title.

Emergency Petroleum Allocation Act of 1973,

15 USC 754(a)(1) and (2)

Section 5(a)(1) and (2)

(a) (1) Except as provided in paragraph (2)(A)

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 regulation 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; and (b)

section 212 (other than 212(b) and 213 of such

Act shall apply to functions under this Act to the

same extent such sections apply to functions under

the Economic Stabilization Act of 1970.

(2) The expiration of authority to issue and enforce

orders and regulations under section 218 of such Act

shall not affect any authority to amend and enforce

any order under this Act, and shall not affect any au-

thority under sections 212 and 213 insofar as such

authority is made applicable to functions under this Act.

Service of the within and receipt of a copy

thereof is hereby admitted this .................... day

of June, A.D. 1978.