Petition — Johnson Oil Co. v. Mountain Fuel Supply Co.

Supreme Court; U. S

FILED @

|

| MAR 17 1979

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978 No.

td

JOHNSON CIL : PETITION FOR WRIT OF

COMPANY, INC. CERTIORARI "O THE

¢ UNITED STATES COURT

Petitioner OF APPEALS FOR THE

: TENTH CIRCUIT

VS.

MOUNTAIN FUEL

SUPPLY COMPANY,

Respondent.

DAN S. BUSHNELL

JOSEPH C. RUST

COUNSEL OF RECORD

FOR PETITIONER

330 South Third East

Salt Lake City, Utah 841il

Telephone: (801) 521-3689

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978 No.

JOHNSON OIL

COMPANY, INC.

Petitioner

Vs.

MOUNTAIN FUEL

SUPPLY COMPANY,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE

TENTH CIRCUIT

DAN S. BUSHNELL

JOSEPH C. RUST

COUNSEL OF RECORD

FOR PETITIONER

330 South Third East

Salt Lake City, Utah 84111

Telephone: (801) 521-3680

I ND BX

OPINIONS BELOW

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING THE WRIT

POINT I: CERTIORARI SHOULD BE

GRANTED TO RESOLVE THE CONFLICT

BETWEEN TECA AND THE TENTH CIRCUIT

POINT II: THIS COURT SHOULD PRO-

VIDE A TRANSFER OF CASES FROM CIRCUIT

COURTS TO TECA ON MATTERS THAT ARE

SOLELY WITHIN THE JURISDICTION OF

TECA

CONCLUSION

Table of Cases

Associated Gen. Con., Okl. Div. v>

Laborers Int. U., Loc. 612, 489

F.2d 749 (TECA 1973)

Bray v. United States, 423 U.S. 73

(1975)

Citronelle - Mobile Gathering, Inc+-v.

Gulf Oil Corp., CCH Federal Energy

Guidelines, Paragraph 26,125 (TECA 1979)

12

12

24

28

15, 16,

19, 20,

22, 26

19

25

2i3

APPENDIX A

Long View Refining Co. v. Shore, .

398 5 vee AUS (TECA 1977) 16 P Mountain Poel v. Johnson, $86 F.24 1375

M. Spiegel & Sons Oil Corp. v. (10th Cir. 1978)

B.P. Oil Corp., 531 F.2d 669 (2nd

Mountain Fuel v. Johnson, Final Judgment

Cir. 1976) 19 and Order on Particular Issues and

Mountain Fuel Supply Company-v. é Judgment on Verdict Jury

Relang sopnsen and Jonnse: ett Mountain Fuel v. Johnson, Order

Tioch viz. 1578) 3 Determining Questions of Law

. , . . . Mountain Fuel v. Johnson, Order Supple-

Spinetti v. Atlantic Richfield Co., ~ ’

522 F.2d 1401 (TECA 1975) 16, 17 5. SRRSSRy Ceee OF Ey 28, oe

United States v. Cooper, 482 F.2d 1393

(TECA 1973) Lay 26, 23

16, 24, 23

Statutes )

28 U.S.C. §1254(1) 3

Emergency Petroleum Allocation Act

of 1973, 15 U.S.C. §751 4

Emergency Stabilization Act of 1970,

12 U.S.C. §1904, Note. 5

Emergency Petroleum Allocation Act

of 1973, §754(a) (1). 5

Emergency Stabilization Act of 1970,

§§205-211, 5

Emergency Stabilization Act of 1970,

§211(b) (2) . Ai ,. 20 \

28 U.S.C. §§1291, 1294 ‘13, 22

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978 = No.

JOHNSON OIL

COMPANY, INC. PETITION FOR WRIT OF

H CERTIORARI TO THE

Petitioner, UNITED STATES COURT

: OF APPEALS FOR THE

vs. TENTH CIRCUIT

MOUNTAIN FUEL

SUPPLY COMPANY,

Respondent.

To the Honorable, The Chief Justice

and Associate Justices of the Supreme

Court of the United States:

Johnson Oil Company, the petitioner

herein, prays that a Writ of Certiorari

issue to review the judgment and opinion

of the United States Court of Appeals for

the Tenth Circuit éhtared in this matter

on November 22, 1978.

OPINIONS BELOW

The November 22, 1978 opinion of the

Court of Appeals of the Tenth Circuit,

‘whose judgment is herein sought to be

reviewed, is reported at 586 F.2d 1375 and

is reprinted in a separate appendix to

this petition, pp. 29-65. The prior

opinions vf the United States District

Court for the District of Utah, Northern

Division, also reprinted in the appendix

at pp. 66-97, were not reported.

JURISDICTION

The judgment of the Court of Appeals

was entered November 22nd, 1978. On

December 20, 1978 the Petitions for Re-

hearing filed by the appellant and appel-

lee were denied. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. §

1254(1).

QUESTION PRESENTED

The question presented by this

Petition is whether on appeal a claim for

punitive damages, arising in conjunction

with a common law tort claim and a common

law contract claim as well as a claim of

breach of the Emergency Petroleum

Allocation Act of 1973 (EPAA), 15 U.S.C. §

751, gives the Tenth Circuit Court of

Appeals jurisdiction to decide the

punitive damages claim, or whether, by

reason of some of the other claims of the

appeal being founded in EPAA and other

Federal price freeze legislation, the

entire appeal, including the punitive

damages claim, must be heard by the

Temporary Emergency Court of Appeals

(TECA) and, if so, whether the Tenth

Circuit can transfer jurisdiction of the

appeal or any part thereof to TECA.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Emergency

Stabilization Act of 1970 (ESA) 12 U.S.C.

§ 1904, Note. Section 211(b)(2) of that

Act provides:

Except as otherwise provided in

this section, the Temporary

Emergency Court of Appeals shall

have exciusive 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.

Section 754(a)(1) of EPAA incorpor-

ates by reference §§ 205 - 211 of ESA as

its enforcement provisions.

STATEMENT OF THE CASE

On June 28, 1974 respondent herein,

Mountain Fuel Supply Company, brought a

complaint against petitioner and Reland

Johnson, petitioner's president and

principal stockholder. The complaint was

filed in the state district court of Davis

County, Utah. Respondent claimed in that

action that petitioner owed monies for

deliveries of oil made between November

1973 and April 1974. Petitioner filed an

answer and counterclaim and petitioned for

removal to the Federal Court on January 6,

1975, which put the case before the United

States District Court for the District of

Utah, Northern Division.

Petitioner Johnson Oil made essenti-

ally five claims in its counterclaim,

namely: (1) respondent had tortiously

interferred with the business relationship

between petitioner and Allied Chemical

Company; (2) respondent had terminated its

supply of crude oil to petitioner in

breach of the terms of the written con-

tract between the parties and also in

violation of the freeze order requirements

of EPAA; (3) respondent billed petitioner

during the period of November 1973 to

April 1974 at improper prices for the

crude oil delivered, based on an inflated

"posted" price as well as based on "new"

and "released" oil prices, as those terms

are defined in EPAA regulations, whereas

petitioner should have been billed only at

“old" oil prices, as defined in the Act;

(4) petitioner claimed entitlement to

civil penalties, treble damages, and

attorney's fees as specified in ESA

because of the respondent's violations of

EPAA and its regulations; (5) petitioner

Claimed entitlement to punitive damages

because of respondent's malicious and

willful conduct in interfering with

petitioner's business relationship with

Allied and in terminating the oil supply

relationship between the parties.

On May 28, 1976, the District Court

ruled that respondent Mountain Fuel was

entitled to charge petitioner at "old" and

"released" oil rates but not on the basis

of "new" oil. It further found that the

price set by respondent as the "posted"

price was 44 cents per barrel too high.

Based on that ruling, petitioner stipu-

lated to the payment to respondent of

$19,629.50, which essentially was payment

for the "released" oil price differential

not previously paid by petitioner for

quantities of oil delivered during the

time in question. The parties also stipu-

lated that the issues of treble damages,

civil penalties, and attorney's fees were

reserved for determination after the

trial.

The case went before the jury on June

21, 1976 on three issues: (1) intentional

interference with a business relationship;

(2) breach of contract and violation of

EPAA freeze regulations for non-delivery

of oil; (3) punitive damages. At the

conclusion of the trial the jury awarded

$65,000 as compensatory damages and

$110,000 as punitive damages, without

specifying whether either the compensatory

Or the punitive damages were for the tort

claim or the breach of the supply

relationship.

Subsequent to the jury trial the

District Court ruled that petitioner was

not entitled to treble damages, attorney's

fees, and civil penalties. The Court

further ruled that the award of $110,000

punitive damages was to be deleted from

the jury award, leaving only the compensa-

tory damages in the amount of $65,000.

All of the rulings of the Court, including

the May 28, 1976 ruling, the jury verdict,

and the post jury rulings, were combined

in an order and judgment of the District

Court dated May 2, 1977.

Both petitioner and respondent filed

appeals with the United States Court of

Appeals for the Tenth Circuit. The

principal thrust of petitioner's appeal

was that the jury award of punitive

damages should not have been deleted.

Petitioner also argued that it was

entitled to attorney's fees, trebel

damages on overcharges and civil penalties

pursuant to ESA, and.that the "posted"

price as set by the District Court was

still three cents too high.

The respondent's appeal to the Tenth

Circuit was based in large part on the May

28, 1976 ruling of the Court as to the

definition of "posted" price and as to the

elimination of "new" oil being charged to

petitioner. Respondent also objected to

certain evidence and exhibits presented to

the jury on the question of intentional

interference. Respondent further argued

-10<

that it was improper for the purposes of a

jury verdict for the Court not to have

separated the breach of supply

relationship claim and the intentional

interference claim.

On November 22, 1978, the Tenth

Circuit ruled that it did not have juris-

diction as to any aspect of the case. It

stated that the provisions of § 211(b)(2)

of ESA, providing TECA with exclusive jur-

isdiction of all appeals of district court

cases oOo} controversies arising under ESA

and EPAA, covered this case.

Both petitioner and respondent filed

Petitions for Rehearing, asking the Tenth

Circuit to take at least certain portions

of the appeal. For the purposes of the

Petition for Rehearing, petitioner dropped

all claims except for the request to

reinstate punitive damages.

-ll-

It was argued that argued that TECA

will not take jurisdiction of any portion

of an appeal not specifically part of or

directly arising from the Federal laws it

is to interpret. Therefore, the pefusal

of the Tenth Circuit to take any part of

the case denied the parties the right of

appellate court review on the non-TECA

matters.

On December 20, 1978, both Petitions

for Rehearing were denied by the Tenth

Circuit.

REASONS FOR GRANTING THE WRIT

POINT I

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT BETWEEN TECA

AND THE TENTH CIRCUIT

TECA's position is that its

jurisdictional grant excludes anything

which does not specifically arise under

the Federal legislation it has been called

o] 2=

upon to interpret. On the other hand, the

position taken by the Tenth Circuit in

this case is that if any part of a case

involves questions arising under TECA

administered Federal statutes, it will not

entertain the case. Therefore, despite

the provisions of 28 U.S.C. §§ 1291, 1294

establishing the right of appeal,

petitioner is without remedy or right of

appeal os to those issues in its appeal

which do not arise specifically under TECA

administered Federal law. The result

which has occurred in this case surely was

not envisioned by Congress in its passage

of ESA and the creation of TECA.

Shortly after it was created, TECA

issued two decisions which basically set

the guidelines for its subsequent determi-~

nations on the limits of its jurisdiction.

In United States v. Cooper, 482 F.2d 1393

(TECA 1973), the Ninth Circuit Court of

a i

Appeals, determining that it had no

jurisdiction in the case, transferred the

entire matter over to TECA. As the case

itself demonstrates, there were no clear

guidelines at the time as to what cases

should be appealed to a Circuit Court and

what cases should be appealed to TECA.

Therefore the Ninth Circuit tried to

preserve the case for determination by

TECA since it found it had no jurisdiction

itself over the case.

The ruling in Cooper by TECA is

important from two standpoints. First,

TECA determined that it could not take

jurisdiction of a case via a transfer from

another circuit court. The appeal had to

be filed within the normal appeal period

directly from the district court to TECA.

This meant that all of those issues in the

case which should have been appealed to

TECA were dismissed because the appeal

-14-

period had run. Second, TECA determined

that the case was severable and that there

were several parts of the appeal which

should have been retained by the Ninth

Circuit, despite the fact that the Ninth

Circuit did not take cognizance of the

same. Therefore, as to the non-TECA

issues, TECA declared itself without

jurisdiction and ruled that the matter had

in reality never left the Ninth Circuit.

The Cooper case demonstrates the

narrow view TECA takes of its own juris-

diction. This narrow view was more

clearly explained in subsequent cases

issued by TECA. In the case of Associated

Gen. Con., Okl. Div. v. Laborers Int. U.,

Loc. 612, 489 F.2d 749 (TECA 1973) the

court accepted an appeal which had been

made directly to it from the district

court but refused to review certain

portions of the case because it felt it

-15-

had to limit its attention "to questions

arising under the Economic Stabilization

Act of which we had jurisdiction." Id. at

750.

In the case of Spinetti v. Atlantic

Richfield Co., 522 F.2d 1401r (TECA 1975),

a,

the court held that certain counts of the

complaint were not reviewable by TECA

Since such claims are not

controversies arising under any

title of the Economic Stabiliza-

tion Act or the Allocation Act

or under regulations or orders

issued thereunder. The anti-

trust, Fair Trade, and contrac-

tual claims are appealable only

to the Ninth Circuit Court of

Appeals under 28 U.S.C. § 1291.

Id. at 1403 (Emphasis added).

TECA then cited both Associated

General Contractors and Cooper as

authority for its decision.

Subsequently, in Long View Refining

Co. v. Shore, 554 F.2d 1006 (TECA 1977),

the court in a footnote said:

As we indicated in Spinetti v.

=i 6<

Atlantic Richfield Company, 522

F.2d 1401, 1403, (Em. Ap. 1975),

this court does not have juris-

diction over claims such as the

anti-trust and contractual

claims made in the plaintiff's

complaint.

Id. at 1009.

The citation of the above cases shows

the definite course set by TECA for itself

in excluding on jurisdictional grounds any

aspect of a case which does not specifi-

cally have its roots in EPAA or ESA. On

the other hand, it is just as clear from

the instant case that the United States

“Court of Appeals for the Tenth Circuit

will refuse to take any part of a case if

the appeal contains any ESA or EPAA

claims.

In the instant appeal a demand for

the reinstatement of punitive damages, a

common law remedy, has been made. That in

turn has its origins in this case in the

common law tort of interference with a

=] Jo

business relationship as well as in the

Claim of contractual breach. Since the

punitive damages issue would clearly not

be reviewable by TECA under its guidelines

of jurisdiction, the Tenth Circuit should

have at least taken that much of the

appeal. The Tenth Circuit's decision not

to do so leaves parties in general and

petitioner in particular without an appeal

right on non-EPAA or ESA claims solely for

the reason that one or more such non-EPAA

or ESA points on appeal have been joined

with EPAA or ESA claims.

It is obvious that Congress in

creating TECA did not envision it was

thereby creating a number of non-

appealable claims which are characterized

only by reason of their being associated

with TECA related claims when before the

district court. In reality the

jurisdiction of TECA has been carved out

yy

of that which has been granted to the

Circuit Courts. All non-TECA claims still

belong to the Circuit Courts, regardless

of how many TECA claims with which they

may be associated at the time of trial, if

it doest not take a resolution of the TECA

claims to determine the non-TECA ones.

Cf£., Citronelle - Mobile Gathering, Inc.

v. Gulf Oil Corp., CCH Federal Energy

Guidelines, Paragraph 26,125 (TECA 1979);

M.-Spiegel & Sons Oil Corp. v. B.P. Oil

Corp., 531 F.2d 669 (2nd Cir. 1976).

This Supreme Court, on facts not

unlike the instant case, remanded a case

to the Tenth Circuit after the Tenth

Circuit had earlier ruled that the case

was solely within the jurisdiction of

TECA. Bray v. United States, 423 U.S. 73

(1975). In that case, the IRS issued a

subpoena to petitioner Bray, directing him

to produce some records in connection with

-19-

{

:

alleged violations of ESA. Because of

failure to comply with the subpoena,

petitioner was convicted of criminal

contempt. On appeal, the Tenth Circuit

held that it had no jurisdiction because

of the exclusive jurisdiction provision of

§ 211(b)(2) of ESA. This Court ruled that

a contempt charge did not come under the

umbrella of ESA and a review of the same

by TECA

is not necessary to assure

uniform interpretation of the

substentive provisions for the

stabilization scheme. Indeed, a

requirement of such review would

only serve to undermine the

prompt resolution of Stabiliza-

tion Act questions by burdening

the TECA with additional

appeals.

Id. at 75.

This Court further ruled in Bray that

even though the contempt charge was filed

in connection with an investiga-

tion of Stabilization Act viola-

tions, it was not dependent on

the existence of such violations

=20<

or even the continuation of the

investigation. :

Id. at 76.

In its substance, this case presents

exactly the same question as Bray, namely

whether in a case having claims of EPAA

violations, an issue which does not

directly arise under any provision of EPAA

or ESA can only be reviewed by TECA. The

difference in this case, as opposed to

Bray, is that admittedly there are some

parts of this appeal which, upon close

investigation, are matters for TECA.

These issues include the definition of

"posted" prices and the elaine for treble

damages, civil penalties, and attorney's

fees. In Bray there was only one issue on

appeal. Otherwise, the two cases are

parallel. It does not require a

determination of any EPAA provisions in

order to resolve the question whether the

punitive damages should be reinstated.

ai«

Hence, the guidelines set up by Bray

should not be any different simply because

of that one difference between the two

cases.

It is important that there be

reviewability of all aspects of a case.

The present decision of the Tenth Circuit

does not permit such reviewability of a

district court opinion, in violation of

the structure of the Federal judiciary

system and 28 U.S.C. §§ 1291, 1294. The

granting of the Writ would not only be in

the interest of the merits of this

specific case, but also would give relief

in other future cases which surely will

arise under similar facts.

As noted herein, petitioner's

principal reason for the appeal to the

Tenth Circuit was to seek reinstatement of

the punitive damages it was originally

awarded by the jury. Over three fourths

~\

of its brief was devoted to that one

subject. The question was the sufficiency

of the evidence to permit the jury to

determine as they did. The interpretation

of law and fact on that point has not even

the slightest foundation or basis in ESA

or EPAA. It is a matter totally and

solely within the capacity and

jurisdiction of the Tenth Circuit to

decide.

Because the Tenth Circuit has treated

the instant case in its entirety as being

within TECA's jurisdiction, and since it

is clear that TECA would not have taken

the punitive damages issue of the case had

it been avpealed to TECA, and in light of

the mandate of Congress that TECA should

not take any portion of a case except

those parts which are specifically within

TECA's province, this Court should grant a

on Bi Dae

Writ of Certiorari to the Tenth Circuit to

review this case. .

POINT II

THIS COURT SHOULD PROVIDE A TRANSFER OF CASES

FROM CIRCUIT COURTS TO TECA ON MATTERS THAT

ARE SOLELY WITHIN THE JURISDICTION OF TECA

The Cooper case emphasizes the

situation which needs to be corrected by

this Court. Not since the days of the old

English writs has a party been put to more

of a guessing game than now in trying to

determine the jurisdiction of the Circuit

Courts and TECA in matters relating to

EPAA and ESA. Based on the decision of

the Tenth Circuit Court of Appeal in the

instant case and the TECA cases cited

herein, a party who has to guess whether

to appeal a District Court decision to

TECA or to the Circuit Court, is automa-

tically out of court with no recourse if

he guesses incorrectly.

-24-

In Cooper, the Ninth Circuit

attempted to transfer the case over to

TECA, which refused jurisdiction. In

Associated General Contractors the appel-

lant guessed correctly on some of the

issues but incorrectly as to some of the

others. As to the incorrect guesswork the

right to appeal was totally lost. This

guesswork should be eliminated. More

importantly, an appellant should not be

put to the burden of guessing at his

peril.

TECA is undoubtedly correct in its

view of its limited jurisdiction. Its

purpose is not to review those matters

which would normally go to a Circuit

Court. Its purpose is only to determine

matters for which it has been specially

created and for which it has a special

expertise and background. Nor, as this

-25-

Court said in Bray, should TECA be

burdened with matters just as easily

resolved by the Circuit Courts.

It is respectfully submitted that in

case of doubt, a party should be able to

present his appeal to the appropriate

Circuit Court and then have that Court

determine which matters fall within its

jurisdiction. The Circuit Court should

then be able to refer the rest of the

matters over to TECA for jurisdiction. If

necessary for jurisdictional purposes,

TECA could then'refer some parts of the

case back.

Without the above procedure, a party

is forced to appeal all aspects of his

entire case to both TECA and to a Circuit

Court and to present two parallel briefs

to both courts. Even then one of the

courts may determine it has no jurisdic-

tion over a matter, only to have the other

=26=

court also declares itself without

jurisdiction over the identically same

matter.

The conflict between TECA and the

Circuit Courts must be resolved in order

that the appellate system of the Federal

judicial system can work properly. A

resolution is also necessary for the

proper economy of TECA.

It is therefore respectfully request-

ed that this Court grant a Writ of

Certiorari to the Tenth Circuit for a

determination as to which issues in this

case are within the jurisdiction of the

Tenth Circuit. In particular this Court

should grant the writ in order to direct

the Tenth Circuit to accept and determine

the issue of punitive damages. There

should also be a further determination

that those issues which are not within the

Tenth Circuit jurisdiction be transferred

a9 Fa

over to TECA. Since petitioner's appeal

was timely filed with the Tenth Circuit,

TECA should then be directed to take

jursidiction of the same as though

originally filed with TECA.

CONCLUSION

Wherefore, petitioner respectfully

prays that a Writ of Certiorari be

granted.

=2G<

APPENDIX -A

Mountain Fuel v. Johnson, 586 F.2d 1375

(10th Cir. 1978)

Mountain Fuel v. Johnson, Final Judgment

and Order on Particular Issues and

Judgment on Verdict Jury

Mountain Fuel v. Johnson, Order

Determining Questions of Law

Mountain Fuel v. Johnson, Order Supple-

menting Order of May 28, 1976

29 = 65

66 - 72

73 - 94

93- 97

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 77-1410 and 77-1432

MOUNTAIN FUEL

SUPPLY COMPANY,

a Utah corporation,

Plaintiff,

Appellee and

Cross~Appellant, ):

vs.

RELAND JOHNSON,

Defendant,

and

JOHNSON OIL

COMPANY, INC.,

Defendant-

Appellant and

Cross~-Appellee.

)

)

)

)

)

)

)

)

)

Appeal from

the United

States District

Court for

the District

of Utah

(D.C. No.

NC-75-3)

586 F.2d 1375

=29=

Robert S. Campbell, Jr. (Duane R. Smith on

the brief) of Watkiss and Campbell, Salt

Lake City, Utah, for Appellee-Cross

Appellant Mountain Fuel.

Dan S. Bushnell (Joseph C. Rust on the

brief) of Kirton, McConkie, Boyer and

Boyle, Salt Lake City, Utah, for

Appellant-Cross-Appellee Johnson Oil

Company, Inc.

Before SETH, Chief Judge, BARRETT

and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

This complex litigation originated on

June 28, 1974, when plaintiff, cross-

appellant here, Mountain Fuel Supply

Company, a Utah corporation (Mountain

Fuel) filed its complaint against

defendants, appellants here, Reland

=30=

i ae

Johnson and Johnson Oil Company, Inc., a

Utah corporation (Johnson Oil) in the

state District Court of Davis County,

Utah. All parties are residents of the

State of Utah. The cause was removed to

the United States District Court for the

District of Utah, Northern Division, after

Johnson filed an Answer and Counterclaim

and petitioned for removal on January 6,

1975. Following extensive pleading and

discovery the cause was tried to a jury

which, on June 23, 1976, returned a

general verdict in favor of Johnson on its

counterclaim. It awarded Johnson $65,000

in compensatory damages and $110,000.00 in

punitive damages. Upon motion by Mountain

Fuel, the court struck the award of

punitive damages. Judgment was entered

awarding Johnson damages in the amount of

$65,000.00. Both parties appeal.

aRia

After this appeal was docketed and

calendared, this Court, sua sponte,

requested that the respective parties

brief the question of this Court's subject

matter jurisdiction. We assumed that in

view of the lack of diversity of citizen-

ship between the parties, this action was

One arising under federal law within the

meaning of 28 U.S.C.A. § 1311 jfstifying

its removal from state court to federal

district court pursuant to 28 U.S.C.A.

§ 1441. Our concern was whether the

appeal falls within the jurisdiction of

this Court or the exclusive jurisdiction

of the Temporary Emergency Court of

Appeals (TECA). We shall focus on the

appellate jurisdictional issue which we

believe to be dispositive.

The Mountain Fuel complaint filed in

the state court and removed to the federal

atte

district court alleges, in summary, that:

on July 15, 1970, Mountain Fuel entered

into a written agreement with Johnson

whereby Mountain beek beeene to sell and

Johnson agreed to buy all condensate which

it owned, controlled or produced from the

Dry Piney Field in Sublette County,

Wyoming, commencing August 1, 1970 to July

1, 1971, and thereafter until terminated

upon thirty-day notice, at the tank truck

loading racks of said unit at an amount

equal to "the per barrel price posted on

date of delivery by Pan American Petroleum

Corporation (AMOCO) for Southwestern

Wyoming crude oil of forty (40) degrees to

forty-four (44) degrees a.p.i. gravity,

plus five cents (5) per barrel, which

posted price on the date hereof is Three

Dollars and Twenty-Eight Cents ($3.28) per

barrel of forty-two (42) gallons" [R.,

Vol. V, p. 9]; that thereafter nugget

~

crude oil was substituted for condensate

by agreement of the parties; on "August

17, 1973, the Cost of Living Council of

the United States issued its 'Phase IV'

oil regulations, a copy of which is

attached and incorporated herein by

reference. That on or about December 19,

1973, the Cost of Living Council issued

further regulations governing the price

ceiling on oil, a copy of which, as

published in the Federal Register, is

here attached and incorporated herein by

refecence." (Emphasis supplied.) [R.,

Vol. V, p. 5); on November 16, 1973,

Mountain Fuel notified Johnson by letter

that in view of the Phase IV price

controls it would, effective December l,

1973, charge the ceiling price of $4.65

per barrel and that, in addition, under

the applicable federal regulations, it

would charge the applicable AMOCO field

- Y on

posted price of $5.83 plus 3 cents or

$5.86 per barrel of that referred to in

the regulations as "new" or "released old"

oil; thereafter Mountain Fuel delivered to

Johnson billed at $128,652.57 in accor-

dance with the pricing arrangements

established by the federal price ceiling

regulations; Johnson has refused to pay

the principal sum of $40,585.00; Mountain

Fuel prayed for judgment in principal sum

of $40,585.50, interest at the rate of 7

percent per annum and costs.

Johnson filed an Answer and Counter-

claim in the state court proceeding. The

Answer acknowledged receipt of the

Mountain Fuel letter of November 16, 1973,

setting forth proposed changes under the

Federal Energy Office Regulations to which

it agreed, but specifically denied that it

had agreed to pay any increased price for

oil or that Mountain Fuel had in fact any

=35§<

"new oil" or "released old oil" at its

disposal. Certain affirmative defenses

were pleaded. In its Counterclaim,

Johnson alleged that Mountain Fuel:

breached the agreement of July 15, 1970,

in violation of the Emergency Petroleum

Allocation Act of 1973 and the regulations

promulgated thereunder; refused to supply

crude oil as provided under the agreement

and sold the oil to Allied Chemical

Company; and interfered with the business

relationship between Johnson and Allied

Chemical Company; and interfered with the

business relationship between Johnson and

Allied Chemical Company, resulting in a

violation of the Emergency Petroleum Act

of 1973 and the regulations promulgated

thereunder. Johnson prayed for $70,000.00

compensatory damages, $5,000.00 as civil

penalties under the regulations

promulgated pursuant to the Emergency

=36-

Petroleum Allocation Act of 1973, costs

and other relief. Johnson thereafter

filed an Amended Answer and Counterclaim

in the state court. In addition to

violations charged in derogation of the

Emergency Petroleum Allocation Act of 1973

and the regulations promulgated pursuant

thereto, Johnson alleged overcharges in

violation of the Economic Stabilization

Act of 1970, and other causes. The prayer

of the Amended Answer and Counterclaim was

for dismissal of Mountain Fuel's

complaint, award to Johnson of $200,000.00

as damages on its First Cause of Action,

together with $600,000.00 as civil penalty

provided by the Economic Stabilization Act

of 1970, $105,000.00 as damages for the

Second Cause of Action, together with

$762,500.00 as civil penalty provided by

the Economic Stabilization Act of 1970,

the sum of $80,000.00 as damages for the

a

oZJ=

Third Cause of Action, attorneys fees, and

costs.

The substantive issues posed by the

allegations contained in the pleadings

filed by the parties in the state. court as

of January 5, 1975, when Johnson filed its

Petition for Removal to the federal

district court included: the applica-

bility of the amounts (prices) Mountain

Fuel was entitled to charge Johnson and

the sums Johnson owed based on the

validity of regulations promulgated pursu-

ant to the Emergency Petroleum Allocation

Act of 1973 which purport to alter or

affect the initial agreement, the inter-

pretation of the contract-agreement in

light of the "applicable" price posted by

AMOCO plus 3 cents per barrel, known as

the "posted price"; a subsequent offer

submitted to Mountain Fuel to purchase the

oil at a higher price known as "The Cowboy

~%8u

~e

Contract Price of April 1, 1973"; the

"ceiling price" regulation established by

the Cost of Living Council under the

Economic Stabilization Act of 1970 (ESA),

§ 210(a), 12 U.S.C.A. § 1904 Note and the

Emergency Petroleum Allocation Act of 1973

(EPAA), 15 U.S.C.A. § 751, et seq.,

relating to interpretation and price of

"new oil" and "released old oil" at

Mountain Fuel's disposal for sale; whether

Mountain Fuel's refusal to supply crude

oil to Johnson from and after April l,

1974, was a breach of contract in

violation of the EPAA of 1973 and the

regulations promulgated thereunder; and

whether Mountain Fuel overcharged Johnson

for oil alleged to be "new oil" in

violation of § 210 of the ESA of 1970.

15 U.S.C.A. § 754(a)(1) of the EPAA

of 1973 incorporates by reference §§ 205-

=39=

211 of the ESA of 1970 and all regulations

promulgated thereunder.

12 U.S.C.A. § 1904 Note (Supp. 1977)

of the ESA of 1970 provides in § 21l(a):

The district courts of the

United States shall have

exclusive jurisdiction of cases

Or controversies 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

case shall be subject to removal

by either party to a district

court of the United States in

accordance with the applicable

provisions of Chapter 89 of

title 28, United States Code

[Chapter 89 of Title 28].

(Emphasis supplied.)

-40-

Following cenoval and prior to

commencement of the trial before the jury,

Johnson stipulated that it owed Mountain

Fuel the sum of $19,629.50. This disposed

of the claim on Mountain Fuel's complaint.

The case was then tried and it went to the

jury on Johnson's counterclaim. The trial

court, upon motion, set aside the jury

verdict of $110,000.00 for punitive

damages in favor of Johnson and against

Mountain Fuel. Judgment was then entered

on behalf of Johnson representing the

verdict award of $65,000.00 compensatory

damages, together with interest and costs.

In addition, the judgment (a) ordered that

Johnson be entitled to receive (from

Mountain Fuel) "125 barrels of base

production control level crude oil

pursuant to and during the existence of

the December 1, 1973 EPA (Emergency

Petroleum Allocation) Regulation, 10

a4l<

C.F.R. § 211.64(a), so long as the same is

unaltered and in effect and so long as

there is no overall shortage of produc-

tion, and other regulatory and contractual

requirements are satisfied by Johnson Oil

Company, Inc." [R., Vol. VI, p. 328.] and

(b) that Johnson's claims for recovery of

treble damages, civil penalties, attorneys

fees and costs “under Sections 208(b) and

210(b) of the 1970 Economic Stabilization

Act" be denied. [R., Vol. VI, p. 329.]

After the appeal and cross-appeal

were docketed and calendared in this

Court, we directed, on our own motion,

that the parties address a section of

their respective briefs to the question

whether their appeals are properly before

this court rather than before the TECA.

This issue is, in our view, dispositive.

Johnson adopted and agreed with the

jurisdictional issue presented in Mountain

~42-

Fuel's brief. [Brief of Johnson, p. 4.]

Thus, both parties are in agreement with

the propositions presented under the

caption "Jurisdiction" of Mountain Fuel's

brief. [Brief of Mountain Fuel, pp. 19-

25.] The parties contend that this Court

has jurisdiction to hear and adjudicate

each of the claims of tbe respective

parties in that this is not a case which

"arises under" the Allocation Act of 1973,

Supra. While giving hesitant credence to

the proposition that 12 U.S.C. § 1904 Note

(§ 211 of the ESA), as incorporated in the

EPAA of 1973 does vest exclusive juris-

diction in the TECA as to those matters

which "arise under" the subject Acts and

regulations, the parties urge that such

does not apply in the case at bar because

the complaint of Mountain Fuel filed in

the state court "did not, in any sense

involve itself with or raise substantive

a4 30

issues concerning either the 1970 or 1973

Aets or any regulations promulgated

thereunder” and that ", » » the Complaint

alleges a wause of action sounding solely

in breach of contract," (Brief of

Mountain Puel, p, 23.) TE thie eourt were

to accept the eontentiona 86 advaneed and

the authorities eited and relied upon in

the beiefa, we would be eompelled to held

and eonelude that not only ia this Court

without jurisdietion on appeal but, more

astonishingly, that the federal district

court was without jurisdietion to hear the

matter following removal, The reasons, we

believe, are obvious, Firat, there existe

no diversity of eltisenship between the

parties meeting the Juriadietional

requirementa Of 20 U,O.C.Ay @ L998,

the removal from the Utah state eourt was

improvident and without Jurisdictional

justification a8 a matter of law! This

position ia the more difficult te reason

upon when we consider that the erux of the

parties! argument ia that the teat for

determining whether an aetion “arises

under" the Constitution, treaties or lawa

Of the United States Giving rise te

jurisdietion under the "federal question"

authority OF 2H U,B.G.A, @ LAdb (a) (ne

wdSe

diversity required) must be determined

Solely by the presence of well-pleaded

allegations appearing from the face of the

complaint and that the Mountain Fuel

complaint does not invoke any federal

laws, If this contention of the parties

were to eontrol, we would be compelled te

hold that the federal district eourt

lacked subject matter juriadietion, Thia

would be 60 simply because, lacking

diversity of citisenship between the

parties and the existence of a "federal

question,” only the breaeh of contract

action would remain, to be governed

exclusively by the law of Utah, Under

Hsueh Clreumatanees No cause would exiat

for removal from the state eourt to the

federal distriek eourt,

The parties eontend that in

determining the existenee of the "federal

question" juriadietion under 26 U,8,6,A,

«dhe

a

'

|

&

|

§ 133l(a) justifying wemovability from a

state court to a federal court one must

look solely at the plaintiff's complaine

rather than to any subsequent pleading or

the petition for removal, We agree, This

is, of course, a fundamental rule, Barren

& Holesoff, Federal Practice and

Procedure, (Weight Hd.) Vol, I, § 102, py

471) Gkelly O11) Co, vi Phillips Petroleum

Co,, 339 U8, 667, 70 8,.Ce, 076, 04 L.Ma,

1194 (1950)) Great Northern Railyway

Company vs Alexander, 246 U,8, 276, 48

O,Ct, 297, 62 Geld, 719 (1010)) Apkansas

vi Kansas and Texas Coal Go., 109 Usa,

145, 22 8.Ct, 47, 46 L,fd, 144 (L001);

Mescalero Apache Tribe vi Martine, 519

P,2d 470 (10th Cir, 1975)) Beneea Nursing

Home v. Kansas Btate Poard of Boela)

Welfare, 400 #.2d 1984 (10en Cie, 1074),

cert, denied, 419 U.8, Bal, 95 B.Cb, 72,

42 fd. 2d 69 (1974); Bhabeery vy Avapahoe

«Ade

Tribal Council, 453 F.2d 278 (10th Cir.

1971); Groundhog v. Keeler, 442 F.2d 674

(10th Cir. 1971); Chandler v. O'Bryan, 445

F.2d 1045 (10th Cir. 1971), cert. denied,

405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d

241 (1972); Metropolitan Paving Company v.

International Union of Operating Engineers

, 439 F.2d 300 (10th Cir. 1971), cert.

denied, 404 U.S. 829, 92 S.Ct. 68, 30

L.Ed.2d 58 (1971); Simpson v. State of

Utah, 365 F.2d 185 (10th Cir. 1966). The

parties argue that the Mountain Fuel

complaint alleges a cause of action

sounding solely in breach of contract and

that “While it is true that Paragraphs 6

and 7 of the Complaint (R. 5) allude to

"Phase IV' oil regulations promulgated by

the CLC, such does not change the essence

or character of the Complaint. The said

regulations are neither attacked nor

sought to be enforced. Nowhere on the

~46~

face of the Complaint does Mountain Fuel

ask for an interpretation or application

of the regulations." [Brief of Mountain

Fuel, p. 23.] Thus, if we were to adopt,

accept and concede this argument of the

parties we would surely be compelled to

hold that the federal district court

lacked subject matter jurisdiction and

that the judgment must be vacated. This

is so because (again accepting for the

purpose of this discussion the contentions

advanced by the parties) (a) there is no

diversity of citizenship between the

parties justifying removal of the cause

from state court to federal district court

as required pursuant to 28 U.S.C.A. § 1331

and (b) removal is not justified on the

basis that a substantial federal question

is asserted on the fact of the complaint.

We hold, however, that the Mountain

Fuel complaint filed originally in the

-49-

Utah state court does, on its face, assert

a substantial federal question under the

laws and regulations of the United States

independent of allegations or affirmative

relief asserted in Johnsons' Answer and

Counterclaim or Petition for Removal. The

general rule is that if a case arising (in

fact) under the laws of the United States

is filed in state court but is non-remov-

able to a federal district court for want

of assertion of the federal question on

the face of the complaint, jurisdiction

can attach only by the voluntary amendment

of the plaintiff's pleadings. Great

Northern Railway Company v. Alexander,

Supra. Thus, if we were to honor the

contention of the parties relative to

"want" of a federal question on the face

cof Mountain Fuel's complaint, it was the

duty of the federal district court to

remand the case to the state court when it

=-§0<

hed

+ ie

7 «

became manifest upon the face of the

complaint or the petition for removal that

the case has been improperly removed to

the federal court. Cameron v. Hodges, 127

U.S. 332, 8 S.Ct. 1154, 32 L.Ed. 132

(1888).

A case "arises" under the laws of the

United States if it clearly and substan-

tially involves a dispute or controversy

respecting the validity, construction or

effect of such laws which is determinative

of the resulting judgment.

Shulthis v. McDougal, 225 U.S. 561, 32

S.Ct. 704, 56 L.Ed. 1205 (1912). Thus, if

the action is not expressly authorized by

federal law, does not require the

construction of a federal statute and/or

regulation and is not required by some

distinctive policy of a federal statute to

be determined by application of federal

legal principles, it does not arise under

e$j-=

the laws of the United States for federal

question jurisdiction. Lindy v. Lynn, 501

F.2d 1367 (3rd Cir. 1974.)

We need not again detail the Mountain

Fuel complaint in relation to its

invocation of a "federal question" on its

face. We hold that it does invoke a

substantial federal question, contrary to

the contention of the parties. The very

predicate for the damage claim of Mountain

Fuel in the breach of contract sense is

that Mountain Fuel is entitled to a sum in

excess of the originally agreed contract

price for crude oil based upon the "Phase

Iv" oil regulations issued by the Cost of

Living Council on August 17, 1973,

(promulgated pursuant to the ESA of 1970,

Supra) which were attached to said

complaint "and incorporated" by reference

therein, coupled with Mountain Fuel's

allegations that the "ceiling price" or

=$2<

"posted price" under the applicable

federal regulations which it charged

Johnson for "old," "released," or "new"

oil justified the $5.86 per barrel charge.

The federal regulations above referred to

are those promulgated under the EPAA of

1973, supra. That Act incorporated by

reference the ESA of 1970. Thus, on its

face, the Mountain Fuel complaint did in

fact invoke a substantial federal question

involving the construction, applicability

and effect of the aforesaid federal acts

and governing regulations relating to the

monetary awards claimed.

The general rule is that a motion to

dismiss an action for lack of subject

matter jurisdiction will be denied even

though the allegation of jurisdiction is

insufficient or entirely lacking if there

are facts pleaded in the complaint from

which jurisdiction may be inferred in

«83

essence and effect. Wright and Miller,

Federal Practice and Procedure: Civil

§ 1350, P- 550. A complaint is to be

construed broadly and liberally as to do

substantial justice. Mitchell v. Parham,

357 F.2d 723 (10th Cir. 1966); 12 ALR 2d

Anno., pp. 1-74, Federal Courts'

Jurisdiction. As heretofore noted, the

Mountain Fuel complaint set forth a copy

of the "Condensate Agreement" of July 15,

1970, by, reference “attached hereto,

referred to hereby and incorporated

herein." [R., Vol. V., p. 4.] In

addition, the complaint set forth a copy

of the “Phase IV oil regulations"

promulgated by the Cost of Living Council

under the Economic Stabilization Program

and the Cost of Living Council's

regulations governing the "price ceiling

on oil" as published in the Federal

Register which were "hereto attached and

xy

incorporated herein by reference." [R.,

Vol. V, p. 5.) Finally, attached to the

complaint was a Mountain Fuel letter of

November 16, 1973, to Johnson Oil

notifying that future pricing arrangements

were subject to the "federal price ceiling

regulations." [R., Vol. V, p. 5.] Thus,

it is clear that while the relationship

between Mountain Fuel and Johnson Oil was

predicated upon the Condensate Agreement

of July 15, 1970, that Mountain Fuel's

claims, as discerned from the face of its

complaint, is that because of the inter-

vening federal laws and regulations there

is a substantial federal question involved

fn the controversy. Mountain Fuel alleges

that because of the federal laws and

regulation it was entitled to more monies

for the sale of oil to Johnson Oil than

the prices set forth in the written

agreement.

=§S~

We first observe that any contention

that a substantial federal question was

not set forth “on the face" of the

Mountain Fuel complaint is without merit.

Fed. Rules Civ. Proc. rule 10(c), 28

U.S.C.A. provides that "A copy of any

written instrument which is an exhibit to

a pleading is a part thereof for all

purposes." Wright & Miller, Federal

Practice and Procedure: Civil § 1327. In

this case, the Mountain Fuel complaint,

originating by specific written contract,

finds its remedial prayer anchored to an

interpretation and applicability of

federal laws and regulations governing the

price or prices it may legally charge

Johnson Oil under and by reason of the

aforesaid federal laws and regulations.

Thus, the federal claim or claims asserted

by Mountain Fuel on the face of its

complaint clearly present a substantial

-56-

federal question or questions arising

under the laws of the United States.

Even though a complaint involves a

state claim still, as a matter of judicial

economy the federal court has power to

entertain the pendent claim if the federal

claim arises "under the Constitution, the

Laws of the United States and the treaties

made" and the relationship between the

state claim and the federal claim permits

the conclusion that the entire action.

before the court compromises but one case.

The federal claim must, of course, have

sufficient substance to confer subject

matter jurisdiction on the federal court.

United Mine Workers of America v. Gibbs,

383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d

218 (1966); Wright, Miller and Cooper,

Federal Practice and Procedure:

Jurisdiction, § 3567. The criteria is met

here.

-57-

We hold that Lt ie nek Neeesaary bo

rely exelusively on the Mountain Fuel

eOnplalnk in Geder te justify wemeval on

the "federal question" basis, The amended

JOHNseA Ahawer and Counterelaim Filed in

bhe shake eoueh, coupled with its Petition

for Removal, "Fite" the four eornera of 18

UB CoA, § 1904 Woke (Supp, 1977) of the

HBA OF 1970, © Bli(a), Supea, in that

removal juviadietion ia apeeialiy

reeodiived Lf any taaue vaised by way of

defense ehallenges the validity of ageney

Aebion under the two subject federal ave,

Jahnaen's Amended Anawer and Counterelaim

ehallenged the validity of eertain

regulations promulgated pursuant to the

BPAA of 1973 whieh Johnaen alleged te

diveotly affeet ite cause, t,e,, those

relating te “eld ot" and "new ail,"

These grounds were apecifieally relied oan

|

in Johnson's Petition for Hemeval, (hi,

Vol, Vy pipe beds)

The parties, pew belefa, rely upen

the identieal jurisdiebional arguments

heretofore diseussed in support of bhele

eontention that this Court, Father than

the PRCA "has a Fiem hand Of subject

watter juriadietion on eaeh and all of

these jasues, ineluding ‘posted peice! and

‘alleeation' of Dey Piney evude Obl, on

appeal Nevein, whether these lasuves are

yaised under the evesseappeal of Mountain

Fuel ov the main appeal of Jahnaen,"

(Avief of Mountain Puel, py 25.) We

disagree,

The TRCA wae ereated by Congresa in

the BBA of 1070, 12 U,8.C.A, § 1904, Note

§ 211(b)(2) of Bhak Aek provides,

inter alias

thie? hestonystherfetporarys,

Court of np eale ahall

nave ek ation of

have exelusive juris

all appeala from the diatetet

eourta of the United Abate

ufliete@e ERS Ebb he Ob title.

uuUbeabtone oF Obiers tae

Hereunide.

15 U,B,G.A, @ 754(ay(1) OF Bhe BRAA

of 1973 ineerperates by Feferenee § 205@

di) oF the BBA of 1970, a8 amended, in

effeet Nevember 27, 1974, whieh "yy

ahall apply be the Fequlabian promulgated

under seebion 754(a) Of Bhie bible, te any

order under Ghia ehapter, and te any

aetion taken by the President (or hie

delegate) under thie ehapher, ae if aueh

regulation had been promulgated, sueh

order Nad heen iesues, oF gueh aebion had

heen taken under the Beanemie Stabilisae

bien A@k oF LO707 4» oy 9"

In Bray v. United States, 423 0,8,

73, 906 8,Ch, 307, 46 Ba, ad 215 (1075)

the Supreme Courk salads

Aa part of the Beenomie Btabilin

gation Aek Amendmenta of L971,

-

Cangvesa ereated the THEA

(Tenporary Riergeney Courk of

Appeals 7 vested Lh with

"eaxelusive jupladietion ef all

appease from the diateiebk courte

of the United reates if eases

and eonkreveraies aveeeng under

this bible oe under Fequlabiona

OF Odea Lasued thereunder,"

gil By (a) 5 Beak, 749, Tia

wdielalereview prevessen waa

eal he te pravide ppeedy

Feselubian OF eases Braught

under the Aek ana *

Ve abpea:

(Pieiiig ub Of the Phebe tet

-UUELS eh Ehie gain bf

iiwited exeepbkion bo the bros

Uibeitebton of the eourke o

ppeals over "“abpeala From a:

‘thal deelatons of the diated,

ourte oF the United States,

supplied.)

423 U,8., ab py 74, 06 8,0h, at

BP, 308,

We have previously nebed that the

iasues tried in Nie ease were those

framed by the Jahnden Counterelaim, The

Allegationa set forth in that Counterelaim

inveked and implicated United States lawa

under the BBA of 1970, 12 U,8,C@,A, 1004

eGle

Note (Supp. 1977); the EPAA of 1973, 15

U.S.C.A. §§ 751, et seg., and the

implementing regulations duly promulgated

thereunder. 6 CFR § 150.353 (1974); 10

CFR § 211.63 (a) (1977). These

regulations spell out the two-tier pricing

System established in 1973 which provides

that "old oil" may may not be sold above

the lower tier ceiling price, 10 CFR

§ 212.72 (1977) and that "new oil" may not

be sold above the upper tier ceiling

price, 10 CFR § 212.74 (1977).

Allegations against Mountain Fuel involve

its alleged disregard of the government

“freeze order," making "illegal" charges

above the "ceiling price," and requiring

Johnson to purchase "old," "released" and

"new" oil at illegal prices contrary to

government regulations. Furthermore,

Johnson directly challenged the validity

of certain regulations promulgated

-62-

pursuant to the EPAA of 1973 as

interpreted by officials of the Federal

Energy Administration, which agency action

allegedly destroyed the “competitive

viability of [Johnson] . . . and are

therefore invalid." [R., Vol, V., p. 2.]

Seemingly strict contract law allegations

advanced by Johnson against Mountain Fuel

involve disregard of and ultimate wrongful

termination of the written contract and

wrongful and intentional interference with

Johnson's contractual relationship with

Alllied Chemical Company. That these

"contract law" allegations are not

separable from the federal acts and

regulations previously discussed herein

is best evidenced by these recitals in Johnson's

brief:

» « « Om Apeis .9,. 197%, st

[Mountain Fuel] ceased selling

crude oil to Johnson. Mountain

Fuel has since then treated the

termination matter as though it

is totally governed by general

=£3<

contract law. This is clearly

not the case. Any right to

terminate the sales of crude oil

has to be found within the

language of the price and

relationship freeze imposed by

the federal government.

[Brief of Johnson, pp. 53, 54.]

We agree.

We hold that this court is without

jurisdiction to entertain this appeal. In

our view, exclusive jurisdiction vests in

the TECA by virtue of 28 U.S.C.A. § 1331

(Supp. 1977); 15 U.S.C.A. § 754(a)(1),

which incorporates § 211 of the ESA of

1970, 12 U.S.C.A. § 1904 Note (Supp.

1977). See also: Mary's Hospital of

East St. Louis, Inc. v. Ogilvie, 496 F.2d

1324 (7th Cir. 1974); Exxon Corporation v.

Federal Energy Administration, 516 F.2d

1397 (Temporary Emergency Court of

Appeals, 1975); Associated General

Contractors, Oklahoma Division v. Laborers

International Union, Loc. 612, 489 F.2d

-64-

749 (Temporary Emergency Court of Appeals,

1973). |

Our holding is buttressed by Mountain

Fuel's Answering Brief to the appeal of

Johnson and the Reply Brief in Mountain

Fuel's Cross-appeal, to-wit:

From the outset of appellate

proceedings before this Court,

it was clear that the issues

under the JOHNSON appeal and the

MOUNTAIN FUEL Cross-appeal would

involve pricing concepts and

regulations that could fall

within the jurisdiction of the

Temporary Emergency Court of

Appeals (TECA). In point of

fact, the opening Brief of

MOUNTAIN FUEL poses the query of

whether TECA jurisdiction is

present in this case with

respect to the interpretation of

"posted price.” That query is

also at large with respect to

the claim made by JOHNSON in his

appeal on treble damages,

attorneys’ fees, and "civil

penalties" under the Economic

Stabilization Act of 1970.

[Brief of Mountain Fuel, p. 28.]

WE DISMISS for lack of subject matter

jurisdiction.

=-65<

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

NORTHERN DIVISION

MOUNTAIN FUEL

SUPPLY COMPANY,

a Utah corporation,

Plaintiff and

Counter-Defendant,

FINAL JUDGMENT

AND ORDER ON

PARTICULAR ISSUES

AND JUDGMENT ON

VERDICT OF JURY

vs.

RELAND JOHNSON and

JOHNSON OIL

COMPANY, INC.,

Defendants and :

Counter-Plaintiffs.:

The above-referenced case having come

on for trial on all issues raised by the

Complaint of Plaintiff and Counterclaim of

the Defendant ‘before the Honorable WILLIAM

G. JUERGENS, Senior United States District

Judge sitting by designation, both parties

having been represented by their counsel,

respectively, and certain issues of fact

having been presented to and tried before

-66-

the Court sitting with a jury and other

questions of fact and law having been

reserved to and determined by this Court;

And the Court being now fully advised

as to each and all of the issues of law

and fact anywise appertaining in the

premises and said issues having been

otherwise fully resolved, and for good

cause shown pursuant to Rule 54(b),

Federal Rules of Civil Procedure, the

Final Judgment and Order as to all matters

of law and fact is herewith entered in the

action, as follows, to-wit:

I.

Based upon the Stipulation of the

defendant entered herein at the outset of

trial on the 2lst day of June, 1976 as to

the Complaint of Plaintiff, Judgment be

and the same is hereby entered in favor of

the Plaintiff, MOUNTAIN FUEL SUPPLY

COMPANY and against the Defendant JOHNSON

-67-

OIL COMPANY in the sum and amount of

$19,628.50, together with pre-judgment

interest of $2,533.30, or a total of

$22,161.80 together with interest thereon

as by law provided from the date of the

entry of this Judgment until the same is

paid and satisifed.

II.

That based upon the verdict of the

jury returned in open Court on the 23rd

day of June, 1976, relative to the

Counterclaim of JOHNSON OIL COMPANY, INC.,

Judgment be and the same is hereby entered

in favor of the Counterclaimant, JOHNSON

OIL COMPANY, INC. and against the Counter-

Defendant, MOUNTAIN FUEL SUPPLY COMPANY in

the sum of $65,000.00 compensatory

damages, together with interest thereon

from the date of this Judgment until the

same is paid and satisfied, as by law

provided. The Counterclaimant JOHNSON OIL

-68-

f

|

COMPANY, INC. shall also have its taxable

costs in the matter. |

III.

With respect to the claim of JOHNSON

OIL COMPANY for punitive damages against

MOUNTAIN FUEL SUPPLY COMPANY and the jury

verdict of $110,000.00 returned on June

23, 1976, the Motion of MOUNTAIN FUEL for

a Directed Verdict against JOHNSON, was,

pursuant to the Interlocutory Order of

August 2, 1976, granted, and Judgment be

and the same is hereby entered in favor of

MOUNTAIN FUEL SUPPLY COMPANY and against

JOHNSON OIL COMPANY, INC. on said punitive

damage Count.

IV.

That pursuant to the Interlocutory

Order of the Court under date of May 26,

1976, it is ordered that JOHNSON OIL

COMPANY is entitled to receive 125 barrels

of base production control level crude oil

-69-

pursuant to and during the existence of

-the December 1, 1973 EPA Regulation, 10

C.F.R. § 211.64(a), so long as the same is

unaltered and in effect and so long as

there is no overall shortage of

production, and other regulatory and

contractual requirements are satisfied by

JOHNSON OIL CONPANY, INC.

V.

That with respect to the claims of

JOHNSON OIL COMPANY, INC. for the recovery

of treble damages, civil penalties,

attorney's fees and costs under Sections

208(b) and 210(b) of the 1970 Economic

Stabilization Act, judgment be and the

same is hereby entered in favor of

MOUNTAIN FUEL SUPPLY COMPANY and against

JOHNSON OIL COMPANY, INC.

-70-

Dated this day of March, 1977.

BY ORDER OF THE COURT

WILLIAM G. JUERGENS

Senior United States

District Judge

“I<

CERTIFICATE OF SERVICE

I herewith certify that I am a member

of and/or employed in the lawfirm of

WATKISS & CAMPBELL, 315 East 2nd South,

Salt Lake City, Utah and that in said

capacity and pursuant to Rule 5(b),

Federal Rules of Civil Procedure, a true

copy of the attached FINAL JUDGMENT AND

ORDER ON PARTICULAR ISSUES AND JUDGMENT ON

VERDICT OF JURY, was caused to be served

upon:

DAN S. BUSHNELL, ESQ.

JOSEPH C. RUST, ESQ.

336 South Third East

Salt Lake City, Utah 84111

by depositing a properly addressed

envelope containing the same in the U.S.

Mails, postage prepaid thereon this 2nd

day of March, 1977.

-72¢

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF UTAH NORTHERN DIVISION

MOUNTAIN FUEL )

SUPPLY COMPANY,

a Utah corporation, )

Plaintiff, ) ORDER DETERMINING

QUESTIONS OF LAW

vs. )

NC 75-3

RELAND JOHNSON )

and JOHNSON

OIL COMPANY, INC., )

Defendants. )

On December 11, 1975, the plaintiff

in the above-entitled case filed a motion

for summary judgment. On December 31,

1975, the defendants filed a motion

requesting a ruling on matters of law.

Both sides have filed extensive materials

and oral arguments were heard on several

occasions. The court has carefully

considered all of the arguments and deems

itself to be well advised on the merits.

Since the parties are in basic agreement

«73<

concerning the underlying facts, the court

is prepared to rule upon the issues of

law.

One of the major issues presented by

the above motions was ruled upon at a

hearing on January 23, 1976. At that

time, the court ruled that the "Cowboy"

contract price was not a proper “posted

price" under the Cost of Living Council

[CLC] freeze regulations. The court also

stated that the $.35 per barrel increase

over the May 15, 1973, "freeze" price

allowed by the CLC in August of 1973 and

the December 19, 1973, additional increase

in the price of “old" oil were properly

chargeable to Johnson Oil after those

dates.

Counsel have agreed to have their

motions passed upon by having the court

decide several issues as a matter of law.

oF4o

PORT

On January 21, 1976, counsel signed a

stipulation stating that the issues were:

1. Whether the plaintiff's

procedure of allocating "new or

released" and "exempt" oil

prices among all Dry Piney crude

oil purchasers violated either

the Federal law and regulations

or the terms of the contract

between the parties.

2. Whether the defendants'

refusal to pay the “new or

released" oil prices and as

weighted with "non-exempt" oil

prices and as charged equally to

all Dry Piney customers,

justified plaintiffs termination

of sales to defendants.

3. [Dealt with the "Cowboy

contract price" issue which was

subsequently decided.]

The two main issues still before the court

can be more easily treated by breaking

them down.

-75<

Amoco Plus $.03

Since the adverse ruling on the

"Cowboy" price, the plaintiff has argued

that the contract price that the plaintiff

* had-with its Dry Piney field purchasers is

the sindiuke Kaw 18, Xa: possed freeze

price. That price is "Amoco posting pivs

$.03" per barrel. The defendants

basically contend that the plaintiff

abandoned that price when it attempted to

charge the illegal “Cowboy" price and that

the Amoco plus $.03 contract price suffers

from the same infirmities as the rejected

"Cowboy" price.

In September of 1973, the CLC defined

“posted price" as "a public offer to buy a

specific grade of petroleum in a specific

geographic area at a specified price." On

December 6, 1973, the CLC published a more

complete, specific definition:

=76<

"Posted price" means a written

statement of crude petroleum

prices circulated publicly among

sellers and buyers of crude

petroleum in a particular field

in accordance with historic

practices, and generally known

by sellers and buyers within the

field.

38 F.R. 3577; 10 C.F.R. 212.31 (1975).

The latter definition is the one that must

be applied by the court. ;

The contracts with the plaintiff

called for a $.03 premium over the Amoco

posted price because of the superior

quality of the plaintiff's oil. It

appears to the court that it would be

inequitable to freeze the plaintiff's

price at the same level as the price for

oil of a lower quality. It appears that

the plaintiff's oil was worth "Amoco plus

$.03" on May 15, 1975, and that should be

the posted freeze price for the

oF7a

ocean

Plaintiff's “old" oil if it meets the

requirements of the above CLC definition:

1. Written statement of crude

oil prices, ;

2. Circulated publicly among

sellers and buyers,

3. In accordance with historic

practices, and

4. Generally known by buyers

and sellers in the field.

It appears that the “Amoco plus $.03"

contract price was generally known by

buyers and sellers in the Dry Piney field.

The plaintiff has more difficulty in

showing that a written statement of that

price was circulated publicly among

sellers and buyers. The fact that several

of the buyers had written contracts that

contained "Amoco plus $.03" as the price

<FQ~

does not seem to meet the CLC require-

ments. It appears, however, that the

monthly invoices sent to companies that

dealt with the plaintiff, which stated the

price term, do qualify as circulated

written statements. It is true that each

entity did not see the same invoice but

the determinative fact is that all of the

buyers and sellers received invoices and

each invoice contained the same price term

(except for the 600 barrels per day

contract with Cowboy Oil). The practice

of sending invoices with the Amoco plus

$.03 price term dates back to 1970 and

seems to be of long enough duration to

qualify as a “historic practice."

Freeze Regulation

The most difficult problem faced by

the court relates to the application of

the December 1, 1973, freeze regulation.

=79—

The freeze order bas been upheld but there

is little judicial precedent to guide this

court in interpreting the regulation.

Condor Operating Co. v. Sawhill, 514 F.2d

351 (Emer. Ct. App. 1975), cert. denied,

421 U.S. 976 (1975); see Exxon Corp. v.

Federal Energy Office, 394 F. Supp. 662

(D.C. 1974). The plaintiff contends that

the regulation guaranteed Johnson Oil's

right to take a share of the total

production and that the regulation was

purely an allocation and not a price

regulation. The defendants contend that

the December 1 freeze order froze types as

well as amounts of oil and does affect the

price that can be charged. It appears

that Johnson Oil was receiving "base

production control level" oil on December

1, 1973, the date as of which the

relationships were frozen.

=$0-

nd

The regulation in question was

promulgated in January of 1974 and

provides:

All supplier/purchaser relation-

ships in effect under contracts

for sales, purchases, and

exchanges of domestic crude oil

on December 1, 1973, shall

remain in effect for the dura-

-tion of this program... .

10 C.F.R. § 211.63(a) (1975) [formerly §

211.64(a)]. An examination of the above

wording does not indicate which of the

proposed interpretations is proper. The

regulation further provides:

(3) the provisions of this

paragraph shall not apply to the

seller of any crude oil if the

present purchaser of such crude

oil refuses, after notice by the

seller, to meet any bona fide

offer made by the seller, to

meet any bona fide offer made by

another purchaser to buy such

crude oil at a lawful price

above the price paid by the

present purchaser.

oSji@

39 F.R. 3908 (Jan. 30, 1974). The above

portion of the regulation was amended in

May of 1974 so that it applied only to

"new" and "released" oil. During the

period that concerns the court, however,

it referred generally to crude oil. The

defendants claim that the above provision

gives Johnson Oil a first right of refusal

on "new" oil but does not require Johnson

to take "new" oil since it was receiving

no "new" oil on December 1, 1973. If the

defendants were receiving no “new" oil, as

they contend, they had no right of refusal

with respect to the plaintiff's "new" oil

output:

(b) New crude petroleum may be

sold to any person. Once the

sale is made, the seller of such

new crude petroleum shall.

continue to sell to that

purchaser subject to the

provisions of paragraph (a)(1),

(2), and (3) of this section.

-82-

oe

Id. To have a right of refusal, the

defendants would have to be "present

purchasers" of that oil on December l,

1973, which they adamantly maintain they

were not. Whoever was purchasing the

Plaintiff's new oil on December 1, 1973,

was the person who had the right of

refusal.

The defendants initially argued that

the “special release rule," found in 39

P.R. 1924 [ 212.74(b)] (January 15, 1974);

6 C.F.R. 150.354(3) (1974), that allowed

"base production control level" oil to be

removed from price controls as "released"

oil exceeded the limits of legislative

delegation of authority. That issue has

already been decided. In Consumers Union

of United States, Inc. v. Sawhill, 512

F.2d 1112 (Emer. Ct. App. 1975), the

Federal Energy Administration's [FEA]

aS3~q

regulation setting a ceiling on prices for

"old" crude and "released" crude through

the 212.74(b) formula was upheld and the

regulation that permitted "new" crude to

be sold at the free market price was held

to be invalid. A rehearing en blanc was

granted and a closely divided court

partially reversed itself by holding that

the regulatory scheme that allowed

"released" oil and "new" oil to be sold at

the free market price was valid.

Consumers Union of the United States, Inc.

v. Sawhill, 525 F.2d 1068 (Emer. Ct. App.

1975).

The defendants' initial argument was

that they were entitled to a continued

supply of crude oil at the December l,

1973, level and at the frozen "old" oil

price. The defendants have modified that

contention and now laternatively argue

that the price should be determined by

-84-

applying the pricing formula found in 39

F.R. 1924 [ 212.74(b)] (January 15,

1974).+ The formula allows "base

production control level" crude oil to be

sold at a price higher than the freeze

1. (b) Released crude. Notwithstanding

paragraph (a) of this section, if this

section, if during a particular month

new crude petroleum which could be

sold at other then the ceiling price

pursuant to paragraph (a) of this

section is produced from a property,

the entire base production control level

crude petroleum for that month may be

sold at a price which exceeds the ceiling

price: Provided, That the maximun price

charged per barrel of that base production

control level crude petroleum does not

exceed the lesser of (1) the current free

market price for the particular quality or

grade of crude petroleum or (2) the price

derived pursuant to the following:

[Cc )

P max ie thes ( * Pn Pc

[¢ bpecl (

Where:

, oa Maximum price that may be charged

for the crude petroleum (other

new crude) purchased from the

property (dollars per barrel);

P = Ceiling price of the crude

petroleum (dollars per barrel);

-85-

price for “old" oil. The formula prices

"old" oil at the frozen maximum price and

includes a proportionate share of

"released" oil at the free market price.

The court feels that this argument has

substantial merit.

The plaintiff has referred the court

to an FEA ruling that partially explains

212.74:

The formula of 212.74(b) was

intended to spread the increased

price of this amount of crude

oil equivalent to the amount of

"new" oil, which is permitted to

be sold at free market prices,

across the entire volume of base

production control level crude

oil sold during the month. It

(1. Cont.)

C bpel * Base production control level

for property (barrels);

C or = Total amount of crude petroleum

produced from the property during

the month (barrels); and

P = Current free market price of the

particular quality and grade of

of crude petroleum (dollars per

barrel).

-86-

was not intended to permit all

base production control level

crude oil to be sold at free

market prices.

FEA Ruling 1974-11, 10 C.F.R. 269-70

(1975). That ruling does not appear to

directly apply to the case before this

court because the hypothesis upon which it

was based did not involve a December l,

1973, purchaser but, rather, involved a

new purchaser who desired to purchase all

of the output, including "old", "new", and

"released" oil. Furthermore, the above

quoted passage does not necessarily

contradict this court's view of the

regulations. The ruling states that an

"amount of crude oil equivalent to the

amount of 'new' oil" will be sold at the

free market price and spread across the

volume of “base production control level

crude oil." The formula does not include

"new" oil. It does, however, include

aS7J~

"released" oil in an amount “equivalent to

the amount of ‘new’ oil." It appears that

the ruling was referring to "base

production control level" oil which is

composed of "old" and "released" oil. The

statement in 10 C.F.R. 211.64(b) that new

crude petroleum could be sold to anyone

and the purchaser would not obtain a right

of refusal until he actually purchased

"new" oil adds additional weight to the

court's interpretation. For practical

purposes, the amount of "released" oil

from a given field is equal to the amount

of “new” oil and that appears to be the

amount that the formula spreads over the

total base production at free market

prices.

The formula pricing provision was

deleted from the regulations after the

plaintiff terminated Johnson Oil. The

fact remains, however, that this court

-88-

must interpret the regulations as they

existed during the early months of 1974.

As such, the court's decision may have

absolutely no relationship to the

regulations as they currently exist.

One of the main purposes of the

"released oil" regulation was to increase

domestic oil production. That purpose

could be partially defeated by an order

that the plaintiff must sell Johnson Oil a

specified quantity of oil per month at the

frozen price regardless of the available

"old" supply. The “December 1" regulation

freezes relationships to protect small

refiners such as Johnson Oil. The two

tier pricing regulations and the "December

1" regulation should be construed in such

a way as to fulfill the purposes of each

without harming the goals of the other

regulations. Considering all of the

regulations together, it appears that the

-89-

price regulations and the quantity or

relationship regulations do work together.

Johnson Oil was receiving no new oil on

December 1, 1973. As such, from that

point on, while the "December 1" regula-

tion is in operation and not changed by

other regulations, Johnson Oil has a right

to receive 125 barrels of "base production

control level" crude oil per day from the

plaintiff so long as there is no overall

shortage and all other requirements are

met. It appears that the "formula" price

was the proper price while the formula was

in existence. The court does not comment

on what the price should be for oil

purchased today under the changed

regulations. In its research, the court

has noticed that in several particulars

the regulations have changed substantially

since the early months of 1974. For

example, the “entitlements program" was

«a90—

eee

initiated after the plaintiff terminated

Johnson Oil. 10 C.F.R. 211.67 (1975).

Changes such as that could substantially

affect the court's interpretation of the

"December 1" regulation for prospective

application. See Pasco, Inc. v. Federal

Energy Administration, 525 F.2d 1391 (Em.

Ct. App. 1975). Those changes were not,

however, argued or briefed for the court's

current deliberations.

Wrongful Termination of Contract

Since both parties were working with

new regulations and had little information

to guide them, except for the issue on

punitive damages, the court believes that

they were acting in good faith concerning

any errors in interpretation they may have

made. Neither side was completely correct

in its position. The court will not now

specify any relief but simply notes that

it believes.the law requires Mountain Fuel

-9l-

and Johnson Oil to be restored to an

equitable position under their contract.

Punitive Damages

The court feels under the present

factual posture defendants' claim for

punitive damages may not be eliminated by

a motion for summary judgment.

Condensate

In its original motion for summary

judgment, the plaintiff raised an issue

concerning condensate taken by Johnson

Oil. The court believes there is reason

to support the claim that any condensate

taken from areas where there was no "old"

production could be charged at the

contract price of “Amoco posting plus

$.05." Since the original arguments the

parties have ignored the issue.

a$2~

|

Consequently, the court will not now

finally rule upon it.

IT IS HEREBY ORDERED that the proper

"posted price" for crude oil for the Dry

Piney field on May 15, 1973, is “Amoco

posting plus $.03.”"

IT IS FURTHER ORDERED that Johnson

Oil is entitled to receive 125 barrels of

base production control level crude oil

per day from the plaintiff while the

"December 1" regulation is unaltered and

in effect and so long as there is no

overall shortage of production and other

regulatory and contractual requirements

are met by Johnson Oil. The price for the

oil actually received by Johnson Oil

during 1974 should be the previously

discussed “formula" price.

=93<

IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF UTAH

NORTHERN DIVISION

IT IS FURTHER ORDERED that

plaintiff's motion for summary judgment

-

— ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

will not be granted on the defendants'

MOUNTAIN FUEL

counterclaim for punitive damages. SUPPLY COMPANY

’

Dated this 26th day of May, 1976. suas eakins

’

Plaintiff, ORDER SUPPLEMENTING

ORDER

ALDON J. ANDERSON wie

United States District Judge NC 75-3

RELAND JOHNSON

and JOHNSON

)

)

)

)

)

)

) OF MAY 28, 1976

)

)

)

OIL COMPANY, INC., )

)

)

Defendants.

On May 26, 1976, the court signed an

"Order Determining Questions of Law" and

filed the order on May 28, 1976. Since

that time the court has been informed that

counsel interpret the order differently

concerning the issue of whether the

Plaintiff wrongfully terminated the

contract with Johnson Oil. This order is

being entered to resolve that dispute.

-94- -95-

The plaintiff wrongfully established

the "Cowboy" price as the "posted price"

and demanded that Johnson Oil pay for

"new" as well as "old" and "released" oil.

The defendants wrongfully refused to pay a

price above the frozen "old oil" price for

any of the oil they received in 1974 and

refused to pay the $1.00 per barrel

authorized price increase in December of

1973. On page 9 of the May 28, 1976,

order the court discussed the wrongful

termination of contract issue. The court

pointed out:

Neither side was completely

correct in its position. The

court will not now specify any

relief but simply notes that it

believes that the law requires

Mountain Fuel and Johnson Oil to

be restored to an equitable

position under their contract.

It was the intention of the court to

reserve the issue of wrongful termination

of contract for determination at the

trial. The court did not specify any

=96—

relief for the period during which Johnson

Oil received no oil or condensate from the

plaintiff. The award of such relief, if

any, should be specified after the

wrongful termination issue is decided at

the trial.

IT IS HEREBY ORDERED that the

wrongful termination of contract issue

will be decided at the trial.

DATED this 2nd day of June, 1976.

ALDON J. ANDERSON

United States District Judge

afT=

ed

AFFIDAVIT OF SERVEGE

I, Kathy Pickett, depose and say that I ama

secretary in the office of Dan“S. Bushnell and

Joseph C. Rust, and that on March 17, 1979,

pursuant to Rule 33, Rule of Supreme Court, I

served three copies by mail of the foregoing

Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit,

on each of the parties required to be served

herein, as follows:

Robert S. Campbell

Duane R, Smith

_Watkiss & Campbell

310 South Main #1200

Salt Lake City, Utah 84101

2

~

4a SRE as its