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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 831

## Text

, 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1131%3A1. Public record. Not legal advice.