Petition — Ven-Fuel, Inc. v. Duncan

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MAR 25 1980

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Supreme Court se

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October Term, 1979

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VEN-FUEL, INC.,

a Delaware Corporation,

Petitioner,

VS.

DEPARTMENT OF ENERGY and its Secretary,

CHARLES W. DUNCAN, JR.; ECONOMIC

REGULATORY ADMINISTRATION and its

Administrator, DAVID J. BARDIN; JAMES C.

EASTERDAY as DIRECTOR OF

ENFORCEMENT, Region IV, Economic

Regulatory Administration, and the UNITED

STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES CURTIS BLECKE

Attorney for Petitioner

BLACKWELL, WALKER, GRAY,

POWERS, FLICK & HOEHL

2400 AmeriFirst Federal Building

One Southeast Third Avenue

Miami, Florida 33131

Telephone: (305) 358-8880

March, 1980

INDEX

Page

I ta ae as Gk Sekar, 2

GE Aig Sa nccasee sateen aieasaniedipansece 2

IN oi. oi uaa duwawieveacakaceaekunts 2

Statutory Provisions Involved ..................05. 2

aD Er te, ae 3

Reasons for Granting the Writ..................06. 5

I eu isanieiesedeiandchass aueuessaerens il

CE ikke dob dani des sasesanieds App. 1

(1) Order granting Motion to Dismiss the

Appeal filed November 26, 1979, U.S.

Court of Appeals, Fifth Circuit No. 79-

Pkg pe cbua Lithawekh wenecoacuneue App. 1

(2) Order denying Motion for Rehearing filed

(3)

December 28, 1979, U.S. Court of

Appeals, Fifth Circuit No. 79-3087 ... App. 2

Motion to dismiss appeai for lack of

jurisdiction, U.S. Court of Appeals, Fifth

Careust Plo. 70-067 ow... ccc ccccecsess App. 3

INDEX (Cont.)

Page

(4) Order of dismissal of complaint filed April

24, 1979, U.S. District Court, Southern

District of Florida No. 78-5603-Civ-

NGI wsdvdesnddessce ceeecaaneeeen App. 5

(5) Complaint, U.S. District Court, Southern

District of Florida No. 78-5603-Civ-

PUGS nk cuca’ 00dsocaneescenteaaeeapaen App. 7

ii

AUTHORITIES

Cases: Page

- Ashland Oil Company of California v. Federal

Energy Administration,

389 F.Supp. 1119 (N.D. Ca. 1975) ............. 7

Bray v. United States,

423 U.S. 73, 96 S.Ct. 307, 46 L.Ed.2d 215

RTE ha eS Sativa a Chew cubes ehowacaen 8

Coastal States Marketing, Inc. v. New England

Petroleum Corp.,

604 F.2d 179 (2d Cir. 1979) .............. 5, 8, 9, 10

Citronelle-Mobile Gathering, Inc. v. Gulf Oil

Corporation,

GOL F.O0 TAL CEC FP obs dc oie ewcdanvicns 10

Lee County School District Number 1 v. Gardner,

263 F.Supp. 26 (D.S.C. 1967) ........ccccecees 6

Leedom v. Kyne,

358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210

CRI: kas sdinccecd hkenes be cea k bes hea ees 6

Mandel v. U.S. Dept. of Health, Ed. and Welfare,

411 F.Supp. 542 (D. Md. 1976) ................ 6

Mobil Oil Corporation v. Department of Energy,

et al.,

___. F.Supp. ____ (S.D.N. Y. 1979) (Slip Op.,

79 Civ 4105 MJL, August 23, 1979) ............ 7

iii

AUTHORITIES (Cont.)

Cases: Page

North American Van Lines, Inc. v. Interstate

Commerce Commission,

386 F.Supp. 665 (N.D. Ind. 1974) ............. 6

Pennzoil Company v. Department of Energy,

466 F.Supp 238 (D. Del. 1979) ................ 7

Phillips Petroleum Company v. Federal Energy

Administration,

435 F.Supp. 1239 (D. Del. 1977) ............... 7

Structural Steel and Ornamental Iron Association

of New Jersey, Inc. v. Shopmen’s Local Union No.

545 of the International Assoc. of Bridge Structural

and Ornamental Iron Workers,

478 F.2d 848 (Sd Cir. 1973). .... 2. cdcccccsccsss 8

Texaco, Inc., et al. v. Department of Energy, et al.,

___. F.2d ___ (TECA 1979) (Slip Op., No.

DC-52-54, October 15, 1979) ........... 5, 8, 9, 10

United Refining Company v. Department of

Energy, et al.,

___ F.Supp. ___. (W..D. Pa. 1980) (Slip Op.,

No. 79-144, January 17, 1980) ................. 7,8

United States v. Cooper,

462 F.2d 1908 (TECA 1978) ...... viccaccccccesns 10

iv

STATUTES:

12 U.S.C. $1904, Note, Economic Stabilization Act

GE STU PARP esas ocbndedrenicvcesvauns 2, 3, 5

BE UE PIS Sei vai ce ccivecvaarewesecs cages 3

DOB TE, GEO io eee rhe erie Te cc cecescneceavis 2,9

v

in the

Supreme Court

of the

United States

October Term, 1979

CASE NO.

VEN-FUEL, INC.,

a Delaware Corporation,

Petitioner,

vs.

DEPARTMENT OF ENERGY and its Secretary,

CHARLES W. DUNCAN, JR.; ECONOMIC

REGULATORY ADMINISTRATION and its

Administrator, DAVID J. BARDIN; JAMES C.

EASTERDAY as DIRECTOR OF

ENFORCEMENT, Region IV, Economic

Regulatory Administration, and the UNITED

STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, Ven-Fuel, Inc., respectfully prays

that a writ of certiorari issue to review the order of

dismissal of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding November 26,

1979.

OPINION BELOW

The order of dismissal of the Court of Appeals, not

reported, appears.in the appendix hereto. The order of

dismissal of the District Court for the Southern District

of Florida, not reported, appears in the appendix hereto.

JURISDICTION

The order of dismissal of the Circuit Court of

Appeals for the Fifth Circuit was entered November 26,

1979. A timely motion for rehearing was denied on

December 28, 1979, and this petition for certiorari was

filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

WHETHER §211(b)(2), ECONOMIC

STABILIZATION ACT OF 1970, 12 USC

§1904, NOTE, DEPRIVES THE CIRCUIT

COURT OF APPEALS OF ITS

JURISDICTION TO REVIEW THE

DISTRICT COURT DISMISSAL OF A

COMPLAINT WHEN NO EPAA ISSUE HAS.

BEEN RULED UPON OR ADJUDICATED.

STATUTORY PROVISIONS INVOLVED

28 USC §1294: Appeais fro. iewable decisions of

the district and territorial courts shall be taken to the

courts of appeals as follows: (1) From a district court of

the United States to the court of appeals for the circuit

embracing the district;

The Emergency Petroleum Allocation Act, 15 USC

§754(a)(1): ... sections 209 through 211 of the

Economic Stabilization Act of 1970... shall apply to

the regulation promulgated under section 753(a) of this

title, to any order under this chapter, and to any action

taken by the President (or his delegate) under this

chapter...

12 USC §1904, note, Economic Stabilization Act of

1970 §211(b)(2):

... the Temporary Emergency Court of

Appeals shall have exclusive jurisdiction of all

appeals from the district courts of the United

States in cases and 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

Emergency Court of Appeals within thirty days

of the entry of the judgment by the district

court.

STATEMENT OF THE CASE

In September, 1973, Ven-Fuel, Inc. entered into a

contract to supply sulphur fuel oil to the Jacksonville

Electric Authority (hereinafter “J.E.A.”). Difficulties

between the parties to the contract resulted in suit being

filed in 1975 for monies due. The Federal Energy

Administration (hereinafter “F.E.A.”) the predecessor

of the respondent, Economic Regulatory Administration

(hereinafter ““E.R.A.”) was at that time looking into

possible overcharges by Ven-Fuel, Inc. in connection

with its sale of fuel oil to the J.E.A. under the contract.

Settlement negotiations were undertaken and the

3

F.E.A. both acquiesced in and encouraged such

settlement activity. F.E.A. approval of the settlement

agreement and forbearance from further investigation

with a $75,000 limitation of potential liability for

penalties, was a condition precedent to the final

settlement. Agreement was reached with the F.E.A. on

November 5, 1975, confirmed by a letter dated

November 6, 1975.

Approximately three years after the settlement

agreement was executed and became binding on all of

the parties thereto, as well as on the F.E.A., the E.R.A.

through its Office of Enforcement, Region IV, issued a

Notice of Probable Violation dated September 14, 1978

to Ven-Fuel, Inc. thereby initiating administrative

review of the same issues previously resolved by

settlement. Upon receipt of the notice, the Director of

Enforcement was advised of the prior settlement, but

this advice went unheeded and the administrative

wheels continued to turn.

Believing that the respondents were acting in clear

contravention of the previous agreement, and in excess

of their jurisdiction with the continued pursuit of

administrative action, Ven-Fuel, Inc. filed its complaint

for declaratory judgment and injunctive relief in the

United States District Court for the Southern District of

Florida, Case No. 78-5603-Civ-NCR. A copy of the

complaint, without exhibits, appears in the appendix

hereto. Upon motion by the respondents, Ven-Fuel’s

complaint was dismissed “for failure to exhaust its

administrative remedies’. Rehearing was denied and

Ven-Fuel took a timely appeal to the United States

Court of Appeals for the Fifth Circuit. The respondents

moved to dismiss the appeal for lack of jurisdiction on

4

the ground that exclusive jurisdiction to entertain any

such appeal would lie with the Temporary Emergency

Court of Appeals, pursuant to §211(b)(2) of the

Economic Stabilization Act of 1970, as amended, 12

USC §1904. The motion to dismiss for lack of

jurisdiction appears in the appendix hereto. On

November 26, 1979 the respondents’ motion to dismiss

the appeal was granted and on December 28, 1979 the

motion for rehearing was denied.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts with the Decisions

of Other Courts of Appeals as to the

Jurisdictional Scope of Review by TECA.

Ven-Fuel commends to this Court the opinion

authored by TECA in Texaco, Inc., v. Department of

Energy, ___ F.2d ____ , (TECA 1979) (Slip Op., No.

DC-52-54, October 15, 1979), and the Second Circuit

opinion in Coastal States Marketing, Inc. v. New

England Petroleum Corporation, 604 F.2d 179 (2d Cir.

1979), for an excellent analysis of the separate appellate

review functions of TECA and the Circuit Courts of

Appeal. The opinions contain a thorough review of the

decisional law and no effort will be made here to

improve upon it. The Serrnd Circuit concludes that the

limited TECA jurisdiction is “issue” oriented and says:

What is determinative; as the cases have

implicitly recognized, is not the existence of an

ESA [EPAA] issue, but whether the ESA

[EPAA] issue has been adjudicated. [604 F.2d

at p. 187].

TECA concurs in this view (slip opinion p. 10).

Here, Ven-Fuel says that no EPAA issue was

involved in the first instance and, in any event, there

had been no adjudication of an EPAA issue in the case

below. The narrow question on this appeal was whether

the complaint stated a cause of action sufficient to

withstand a Rule 12(b)(6) motion to dismiss. The sole

ground for the dismissal ef the complaint was a failure

to allege exhaustion of administrative remedies. The

merits of ‘he complaint were never reached.

A reading of the complaint reveals that Ven-Fuel

did not challenge or dispute any EPAA rule, regulation,

order, or administrative finding. The complaint did not,

in any way, seek review of an agency determination

made within its jurisdiction. Rather, it sought to

restrain action undertaken clearly in excess of its

jurisdiction. E.g., Lee County School District Number 1

_ v. Gardner, 263 F.Supp. 26 (D.S.C. 1967). See, Leedom

v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210

(1958).

Ven-Fuel challenged the legality of initiating

administrative proceedings when a settlement of the

entire matter had previously beer concluded. Ven-Fuel

is entitled to seek injunctive relief without exhaustion of

administrative remedies where, as here, the forced

participation in the administrative process is the very

injury complained of. Cf., North American Van Lines,

Inc. v. Interstate Commerce Commission, 386 F.Supp.

665 (N.D. Ind. 1974). See, also, Mandel v. U.S. Dept. of

Health, Ed. and Welfare, 411 F.Supp. 542 (D. Md.

1976). In numerous instances the principles of

exhaustion of remedies have been held inapplicable to

6

suits against the Department of Energy and its

predecessors: United Refining Company v. Department

of Energy, et al., ___ F.Supp. ___ (W.D. Pa. 1980)

(Slip Op., No. 79-144, January 17, 1980); Mobil Oil

Corporation v. Department of Energy, et al., ——

F.Supp. ____ (S.D.N.Y. 1979) (Slip Op., 79 Civ. 4105

MJL, August 23, 1979); Pennzoil Company uv.

Department of Energy, 466 F.Supp. 238 (D. Del. 1979);

Phillips Petroleum Company v. Federal Energy

Administration, 435 F.Supp. 1239 (D. Del. 1977); and

Ashland Oil Company of California v. Federal Energy

Administration, 389 F.Supp. 1119 (N.D. Ca. 1975).

One of the principles behind the exhaustion

doctrine is that it permits the agency to bring its

expertise to bear when technical considerations are

involved. This applies where the issues are intrinsic to

the agency’s operation. But where, as here, the issue is

extrinsic, i.e., whether the agency action is in excess of

its authority, exhaustion is not required. United

Refining Company, supra; Mobil Oil Corporation,

supra; Pennzoil Company, supra; Phillips Petroleum

Company, supra; and Ashland Oil, supra. Furthermore:

One thing the exhaustion doctrine makes clear

is that it is not intended to require endless

pursuit of agency procedures with respect to

issues on which the agency has taken a final

position.

Phillips Petroleum Company, 435 F.Supp. at p. 1248.

Parallel considerations governed both the motion to

dismiss the complaint and the motion to dismiss the

appeal. Administrative agency expertise was

unnecessary and exhaustion was not required. E.g.,

United Refining Company, supra. In similar fashion, the

special competence of TECA was unnecessary to

determine the limited issue on appeal. Bray v. United

States, 423 U.S. 73, 96 S.Ct. 307, 46 L.Ed.2d 215 (1975).

By its appeal, Ven-Fuel claiuis that exhaustion was

not a prerequisite for the relief sought and that its

complaint stated a cause of action sufficient to

withstand a Rule 12(b)(6) motion. If not, as an

alternative basis for relief on appeal, Ven-Fuel claims

entitlement to at least one opportunity to amend its

complaint to plead its cause of action.

From the foregoing it should be clear that the

limited issue on appeal, sufficiency of the pleading, did

not encompass a review of an adjudication of an EPAA

“issue”. Texaco, Inc. v. Department of Energy, supra;

Coastal States Marketing, Inc. v. New England

Petroleum Corporation, supra. See, also, Structural

Steel and Ornamental Iron Association of New Jersey,

Inc. v. Shopmen’s Local Union No. 545 of the

International Assoc. of Bridge Structural and

Ornamental Iron Workers, 478 F.2d 848 (3d Cir. 1973),

where, as here, the appellant did not ask the appellate

court to consider the trial court adjudication on its

merits, but limited the scope of appellate review to a

single issue. No construction of the EPAA or any

regulation was necessary. Here, the merits were never

reached in the district court and there was no “issue” for

TECA’s consideration.

By the dismissal of the appeal, the Fifth Circuit

Court of Appeals presumed broader TECA jurisdiction

8

than TECA itself claims. TECA has construed its own

jurisdiction in much more narrow terms. See, Texaco,

Inc., et al. v. Department of Energy, et al., supra, At

page ten of that opinion, citing Coastal States

Marketing, Inc. v. New England Petroleum Corp.,

supra, TECA says:

For purposes of determining TECA

jurisdiction, what is determinative is not

whether an EPAA question exists but whether

an EPAA question has been adjudicated ...

Jurisdiction is to be strictly construed.

Had this appeal been taken to TECA rather than to

the Circuit Court of Appeals, TECA would have been

obligated to dismiss the sppeal for lack of jurisdiction

upon the same grounds and for the same reasons as

stated in Texaco, Inc. et al. v. Department of Energy, et

al., supra. The argument which the respondents

espoused below in their motion to dismiss was, in

essence, the broader jurisdictional position

unsuccessfully taken in Texaco, Inc. et al. v.

Department of Energy, et al., supra, as presented by

Judge Hoffman in his dissent.

The Fifth Circuit Court of Appeals is not a court of

special or limited jurisdiction as is TECA. The Circuit

Court has jurisdiction over all appeals taken as a matter

of right from the United States District Court for the

Southern District of Florida. 28 U.S.C. §1294. The

Circuit Court should have taken an inclusive view of its

own jurisdiction, as TECA must take an exclusive view

of its jurisdiction.

2. Case by Case Determination of Jurisdiction is

Unsatisfactory

As TECA has acknowledged in its opinion in

Texaco, Inc. et al. v. Department of Energy, et al.,

supra, TECA has consistently decided its jurisdiction on

an issue-by-issue basis. The present system of “hit or

miss” appellate jurisdiction is totally unsatisfactory.

Jurisdiction should not be based upon case by case or

issue by issue analysis. The circuit courts as well as

TECA have recognized the confusion and possibility of

dual appellate review. E.g., Coastal States Marketing,

Inc. v. New England Petroleum Corp., supra, and

Texaco, Inc. et al. v. Department of Energy, et al.,

supra. The suggestion that appeals be lodged in both -

courts as a precautionary measure is patently offensive.

This suggestion does not preclude the distinct

possibility that both courts will accept jurisdiction — or

both will reject it, each court believing that jurisdiction

lies with the other.

The dismissal of the appeal leaves Ven-Fuel, Inc.

without appellate remedy. Neither remand nor direct

transfer to TECA is available. United States v. Cooper,

482 F.2d 1393 (TECA 1973); Citronelle-Mobile

Gathering, Inc. v. Gulf Oil Corporation, 591 F.2d 711

(TECA 1979).

10

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JAMES CURTIS BLECKE

Attorney for Petitioner

BLACKWELL, WALKER, GRAY,

POWERS, FLICK & HOEHL

2400 AmeriFirst Federal Building

One Southeast Third Avenue

Miami, Florida 33131

Telephone: (305) 358-8880

11

Append

*

IX

[FILED NOV 26 1979]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-3087

VEN-FUEL, INC.,

a Delaware corporation,

Plaintiff-Appellant,

versus

DEPARTMENT OF ENERGY and its

Secretary JAMES R. SCHLESINGER,

Etc., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Florida

Before GODBOLD, REAVLEY and ANDERSON,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellees’ motion to dismiss

the appeal is GRANTED.

App. 1

[FILED DEC 28 ’79]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-3087

VEN-FUEL, INC.,

a Delaware corporation,

Plaintiff-Appellant,

UV

DEPARTMENT OF ENERGY and its

Secretary JAMES R. SCHLESINGER,

Etc., ET AL.

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Florida

Before GODBOLD, REAVLEY and ANDERSON,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellant’s motion for

rehearing of this court’s dismissal order of November 26,

1979, is DENIED

App. 2

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT :

Civil Action No. 79-3087

Ven-Fuel, Inc.,

a Delaware Corporation,

Appellant,

Vv.

Department of Energy and its. Secretary, Charles

Duncan; Economic Regulatory Administration and

its Administrator, David J. Bardin; James C.

Easterday as Director of Enforcement, Region IV,

Economic Regulatory Administration; and the

UNITED STATES OF AMERICA,

Appellees.

MOTION TO DISMISS

FOR LACK OF JURISDICTION

Pursuant to Rule 27, Fed. R. App. P., federal

appellees* respectfully move this Court to dismiss this

action on the ground that the Court has no jurisdiction

over the appeal by plaintiff-appellant Ven-Fuel, Inc.

from the judgment of the district court below,

*James R. Schlesinger, the former Secretary of Energy, was a

party defendant to the District Court action from which this appeal

was taken. Pursuant to Rule 43(c)(1) F.R. App. P., Charles

Duncan, the present Secretary of Energy, should be substituted as

the party defendant.

App. 3

dismissing its claim for failure to exhaust its

administrative remedies. Exclusive jurisdiction to

entertain any such appeal would lie with the Temporary

Emergency Court of Appeals pursuant to Section

211(b)(2) of the Economic Stabilization Act of 1970, as

amended, 12 U.S.C. §1904 note (1976).

The Court is respectfully referred to the attached

Memorandum of Points and Authorities filed in support

of this Motion.

Respectfully submitted,

J. V. ESKANAZI

United States Attorney for

the Southern District of Florida

LLOYD G. BATES

Assistant United States

Attorney

ARTHUR E. GOWRAN

Deputy Assistant General

Counsel for Regulatory Litigation

ARTHUR S. WEISSBRODT

Attorney

Office of General Counsel

U.S. Department of Energy

Attorneys for Federal Appellees.

App. 4

[FILED APRIL 24, ’79]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 78-5603-Civ-NCR

VEN-FUEL, INC.,

a Delaware corporation

vs.

DEPARTMENT OF ENERGY, etc.

ORDER OF DISMISSAL

THIS CAUSE is before the court on the motion of

defendants to dismiss or, alternatively, to transfer. The

basis for defendants’ motion to dismiss is the failure of

plaintiff to exhaust its administrative remedies. The

court finds the reasoning of the cases cited by

defendants in its memorandum on the issue of the

necessity of the exhaustion of administrative remedies

to be persuasive and finds that there are no exceptional

factors in the instant case which would make judicial

review prior to the exhaustion of administrative

remedies appropriate. Accordingly, based upon the

authorities cited by defendants and the court’s review of

the record, it is

ORDERED AND ADJUDGED that plaintiff's

complaint is dismissed for failure to exhaust its

administrative remedies.

App. 5

DONE AND ORDERED this 23 day of April, 1979.

/s/ Norman C. Roettger, Jr.

U.S. District Judge

cc- counsel of record

App. 6

IN THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA

CASE NO. 78-5603-Civ-NCR

VEN-FUEL, INC.,

a Delaware corporation,

Plaintiff,

v8.

DEPARTMENT OF ENERGY and its Secretary,

JAMES R. SCHLESINGER: ECONOMIC

REGULATORY ADMINISTRATION and its

Administrator, DAVID J. BARDIN; JAMES C.

EASTERDAY, as Director of Enforcement, Region

IV, Econoic Regulatory Administration; and THE

UNITED STATES OF AMERICA,

Defendants.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

Plaintiff, VEN-FUEL, INC., a Delaware

corporation, by its undersigned attorneys, complains of

the above-named Defendants, as follows:

1. The jurisdiction of the Court to hear this action

is based upon the original jurisdiction of the Court to

hear:

App. 7

(a) Civil actions wherein the matter in

controversy exceeds the sum or value of

$10,000.00, exclusive of interest and costs, that

arise under the Constitution, laws or treaties of

the United States, except that no such sum or

value shall be required in any such action

brought against the United States, any agency

thereof, or any officer or employee thereof in his

official capacity, 28 U.S.C. §1331(a).

(b) Civil actions arising under any Act of

Congress regulating commerce or protecting

trade and commerce against restraints and

monopolies, 28 U.S.C. §1337.

2. Venue lies in this Court under 28 U.S.C.

§1391(e) as each Defendant is an officer or employee of

the United States or an agency thereof, and the Plaintiff

resides in this District, and no real property is involved

in this action, and, furthermore, it is in this District that

the cause of action arose.

3. VEN-FUEL, INC. (hereinafter “‘Plaintiff’’) is a

corporation organized and existing under the laws of the

State of Delaware and its office and principal place of

business is in Coral Gables, Dade County, Florida.

Plaintiff is a reseller-retailer of fuel oil.

4. Defendant, DEPARTMENT OF ENERGY

(hereinafter Defendant ‘“‘DOE”’), is a department of the

executive branch of the United States Government.

5. Defendant, JAMES R. SCHLESINGER, is the

Secretary of Energy, and an officer of the United States

or an agency thereof.

App. 8

6. Defendant, ECONOMIC REGULATORY

ADMINISTRATION (hereinafter Defendant “ERA’’) is

an agency of the DOE and is the successor agency to the

Federal Energy Administration (hereinafter “FEA”’).

7. Defendant, DAVID J. BARDIN, is the

Administrator of the ERA, and an officer or employee of

the United States or an agency thereof.

8. Defendant, JAMES C. EASTERDAY, is

Director of Enforcement for Region IV of the ERA, and

an officer or employee of the United States or an agency

thereof.

9. The fifth and last named Defendant is THE

UNITED STATES OF AMERICA, through its duly

constituted federal government.

10. Each of the above-named Defendants is being

sued in its official capacity.

Facts Giving Rise To This Action

11. On September 14, 1978, Defendant ERA

through its Office of Enforcement, Region IV, issued to

the Plaintiff a Notice of Probable Violation (hereinafter

“NOPV”’), pursuant to 10 C.F.R. §205.191, with the

case style “In the Matter of Ven-Fuels, Incorporated,

Case No. 412-H-00068.” A true and correct copy of said

NOPV is attached hereto as Exhibit “1.”

12. In pertinent part the NOPV issued to the

Plaintiff charges:

App. 9

“The Office of Enforcement of Economic

Regulatory Administration (ERA) of the

Department of Energy and the Federal Energy

Administration (FEA) have conducted an

audit of the books and records of Ven-Fuel, Inc.

(Ven-Fuels) pursuant to the authority

conferred by the Emergency Petroleum

Allocation Act of 1973, as amended (EPAA), 15

U.S.C. §751, et seq. That audit focused upon

sales of No. 6 fuel oil made from Ven-Fuel to

the Jacksonville Electric Authority (JEA)

during the period of October 1973 through

October 1974.” (at page 1).

“On the basis of information available to the

ERA as a result of the audit described above,

the ERA has reason to believe that violations of

6 C.F.R. §150.359 and 10 C.F.R. §212.93 have

occurred between October 1973 and October

1974 as further described herein” (at page 2).

13. The thrust of the NOPV as thus issued is the

possibility that overcharges occurred in connection with

the Plaintiff's sales of No. 6 fuel oil of varying sulphur

grades to the Jacksonville Electric Authority

(hereinafter “JEA”’’).

14. On September 21, 1973, the Plaintiff entered

into a contract with the JEA, a municipally owned

electric utility company in Jacksonville, Florida, to

supply 3.6 million barrels of 1.8% sulphur fuel oil at

$5.25 per barrel and 900,000 barrels of 2.5% sulphur fuel

oil at $4.05 per barrel, both prices subject to the

Venezuelan Government’s escalation of its “Host

App. 10

Government Take” (HGT). At that time JEA also

signed contracts with JOC Oil and Conoco Oil

Company, whereby JOC Oil was to supply 3.7 million

barrels of 1.8% sulphur fuel oil to JEA at approximately

$5.65 per barrel and Conoco to supply 900,000 barrels of

1% sulphur fuel oil at the Platts Oil Gram posting price,

F.O.B. Europe.

15. Shortly thereafter, the so-called “Arab Oil

Embargo” erupted, creating an “energy crisis” from

which the many electric utilities throughout the United

States began to suffer sudden scarcities and an overall

extremely tight supply of petroleum and petroleum

products. Also at that time, JOC Oil defaulted on its

contract with JEA, never having delivered any fuel oil

whatsoever to JEA. Conoco declared force majeure on

its JEA contract, having delivered approximately

450,000 barrels of its 900,000 barrel commitment. JEA,

continuing to receive its contracted for fuel oil supply

from the Plaintiff, requested the Plaintiff to increase the

contractual volume to make up for the aforementioned

suppliers who were unable to meet their commitments

to JEA. Plaintiff complied with JEA’s request and was

able to deliver the additional volumes needed by JEA.

16. On November 21, 1973, the Plaintiff and JEA

amended their contract to provide for an additional

volume of 3.7 million barrels of 1.8% sulphur fuel oil at

the contract price of $5.20 per barrel for the first 600,000

barrels in October and November, 1973, and for the first

300,000 barrels each month thereafter, and for monthly

volumes in excess of those volumes, at an additional

$1.02 per barrel. The contract amendment also provided

that the base contract price of $4.05 per barrel for the

2.5% sulphur would escalate to $5.77021 and for the

App. 11

1.8% sulphur from $5.20 to $7.06656 per barrel effective

November 1, 1973, to account for the increased

Venezuelan HGT.

17. When Conoco declared force majeure on its 1%

sulphur fuel oil, JEA was left completely without that

grade of oil and turned to the Plaintiff, and the Plaintiff

delivered two spot cargoes at mutually agreeable prices,

outside the contract volumes. The Plaintiff next aided

JEA by helping them to utilize a tanker (“Delian

Spirit”) which JEA had chartered for six months at a

very high rate of 360 worldscale (360 W.S.). As a genuine

effort to help JEA in very difficult times, Plaintiff

arranged for JEA to be able to utilize that tanker, which

was otherwise costing JEA approximately $10,000.00 a

day to transport its Venezuelan fuel oil purchased from

the Plaintiff. The Plaintiff's efforts in that regard

allowed JEA to defray a good part of their expenses on a

costly charter of the vessel, and, more importantly, to

reduce their cost of fuel oil purchased from the Plaintiff

by paying an FOB price rather than a CIF price, as

contracted for. The savings to JEA amounted to

approximately $280,000.00.

18. During the term of the contract which roughly

corresponded to the period in which the world was faced

with the Arab oil embargo and the onset of the energy

crisis, the HGT of all the producing countries escalated

to unprecedented levels. Venezuelan HGT was no

exception, thus, the 1.8% sulphur price rose from $5.20

to $11.50 per barrel, and the 2.5% sulphur price rose

from $4.05 to $10.07 per barrel. However on three

separate occasions, Venezuelan HGT increased by a

total amount of approximately $.63 per barrel which

amount was absorbed by the Plaintiff at the behest of

App. 12

JEA, which urged that it could not afford to pay the

increases. The Plaintiff was able to negotiate with its

suppliers and in a spirit of cooperation, said suppliers

and the Plaintiff agreed to absorb the three HGT

increases. Practically every other utility in Florida and

the United States, East and Gulf coasts paid the

additional HGT increases during said time. Total

pyr to JEA amounted to slightly over $3 million

ollars.

19. The history of the Plaintiff's contract with

JEA was one of reliable supply, cooperation and

restraint the plaintiff never once failed to deliver fuel oil

to JEA, at a time when even the largest oil companies in

the world were declaring force majeure and failing to

deliver during the Arab oil embargo, the Plaintiff was

selling to JEA at the level of eight and nine dollars per

barrel, at a time when such oil was selling for as high as

$24.00 to $28.00 per barrel on the world spot market.

The Plaintiff was a reliable and reasonable supplier to

JEA when other major oil companies refused to do

business with JEA, because of, inter alia, the low price

which JEA sought. Moreover, the large oil companies

and tanker owners were reluctant to deal with Florida

purchasers at the time, because of the State of Florida’s

overly strict Oil Bill Law. The Plaintiff was faced with

the same risks as the other suppliers regarding that law,

but continued to sell and deliver to JEA.

20. For reasons unknown to the Plaintiff, JEA did

not live up to its contractual obligations to allow

Plaintiff to match any bona fide competitive offer to

supply JEA for the 1974-1975 year. The FEA intervened

directing the Plaintiff to continue to serve as JEA’s

App. 13

“base supplier”, in accordance with FEA regulations in

effect at that time.

21. Shortly thereafter, JEA withheld from the

Plaintiff some $6 million dollars covering five unpaid

invoices representing fuel oil delivered under the

September 21, 1973 contract, as amended. The Plaintiff

was forced to bring suit against JEA for breach of

contract in unlawfully failing to pay for the fuel oil

supplied. This civil action entitled ‘“Ven-Fuel Inc. v.

Jacksonville Electric Authority, et al.” was filed in the

Circuit Court of the Eleventh Judicial Circuit in and for

Dade County, Florida, General Jurisdiction Division,

Case No. 75-7014 (Testa J). On November 7, 1975,

Plaintiff and JEA, on behalf of its customers, entered

into a Settlement Agreement whereby the Plaintiff

agreed to withdraw and dismiss its suit against JEA in

return for JEA making a Settlement Payment of

$5,429,552.20 in satisfaction of the JEA outstanding

payment for the five above-mentioned invoices. A true

and correct copy of said Settlement Agreement is

attached hereto as Exhibit “2”.

22. The Federal Energy Office (hereinafter

‘“FEO”) and the FEA, as successor agencies to the ERA,

had at all significant times prior to and during the

negotiation of said Settlement Agreement been

successively authorized to investigate and deal with

possible violations of price regulations for petroleum

products, and the FEA was at that time looking into

possible overcharges by the Plaintiff in connection with

its sale of fuel oil to JEA. The FEA was fully aware of

the Settlement Agreement between the Plaintiff and

JEA, and acquiesced in and encouraged such

settlement. The Plaintiff relied on a tacit understanding

App. 14

with the FEA that there were no instances of violations

of FEA regulations and no overcharges in the JEA

contract, but that if FEA were to investigate the

Plaintiff, any violations and potential liability of

Plaintiff would be limited to $75,000.00 an amount over

and above the Settlement Payment to be made by JEA

to the Plaintiff. This arrangement was arrived at by way

of a telephone conversation of November 5, 1975,

between Mr. Thomas R. McDade of the law firm of

Fulbright and Jaworski in Houston, Texas, then counsel

for the Plaintiff, and Mr. Douglas Robinson, of the

General Counsel’s office of the FEA at that time. In

accordance with such arrangement with the FEA, the

Plaintiff maintained the sum of $75,000.00 in a bank

account at the Flagship Bank of Miami, in Miami,

Florida for a period of thirty (30) days. Mr. McDade had

been assured by Mr. Robinson that by acquiescing in

and encouraging the consummation of the Ven-

Fuel/JEA Settlement Agreement of November 7, 1975,

the FEA was waiving any right it may have had to bring

pricing regulations against the Plaintiff, other than any

such violation up to a maximum penalty of $75,000.00.

Such arrangement is documented by a letter dated

November 6, 1975 from Mr. McDade and Mr. Robinson,

a true and correct copy of said letter being attached

hereto as Exhibit ‘‘3’’.

23. Moreover, as part of the Settlement

Agreement, which is Exhibit “2” hereto, the Plaintiff

and JEA executed mutual releases on behalf of their

own entities as well as on behalf of the customers of JEA

and the City of Jacksonville.

24. Approximately three years after the

Settlement Agreement was executed and became

App. 15

binding on all of the parties thereto as well as on the

FEA, as predecessor to the ERA, the ERA, through its

Office of Enforcement, Region IV, issued its NOPV

dated September 14, 1978, to the Plaintiff which was

served at the Plaintiff's offices in Coral Gables, Florida

on September 15, 1978.

25. In connection with the issuance of this NOPV,

which was originally incorrectly served on Mr. Thomas

McDade, who no longer represents the Plaintiff, Mr.

McDade on September 14, 1978 wrote a letter to

Defendant, James C. Easterday, as Director of

Enforcement, Region IV, of ERA, a true and correct

copy of said letter being attached hereto as Exhibit ‘4’.

This letter reflects Mr. McDade’s reaction on learning

that Defendant DOE and its supporting agencies had

breached the express agreement not to bring price

control violations against the Plaintiff, and it states in

pertinent part:

“T should like to point out that the DOE can

expect that I will be a witness at any

proceeding involving DOE for the reason that

DOE breached its express agreement and

understanding with the City of Jacksonville

and Ven-Fuel in connection with the

settlement of the litigation in which those

parties were involved, which settlement was

consummated on November 7, 1975. In my

judgment, DOE has committed an act of fraud

in connection with the purported NOPV, and I

should hope that Ven-Fuel will seek to satisfy

the settlement with the City of Jacksonville

based upon the fraudulent misrepresentations

of DOE.”

App. 16

26. Neither Defendant DOE nor the above-named

Defendant agencies and/or officers have heeded this and

other protests and objections made to the NOPV by the

Plaintiff, its attorneys and Mr. McDade since the date

of its issuance. One such material objection is the fact

that certain original documents, records and files which

are corporate property belonging to Plaintiff have been

and to the present continue to be retained by a Federal

Grand Jury in Jacksonville, Florida. The Plaintiff has

been unable to obtain, at the very least, complete and

totally legible copies of all documents as would be

necessary to frame its reply to the NOPV, and it

continues to be under a serious disability to fully

respond to the NOPV, which disability is caused by the

continuing wrongful refusal of the United States

Attorney for the Middle District of Florida, in charge of

the Jacksonville Grand Jury, to return Plaintiff's

original documents. The DOE through its Regional

Counsel, Mr. F. Edwin Hallman, Jr. has compelled

Plaintiff to file a reply to the NOPV by the close of

business, Friday, December 15th, 1978. A true and

correct copy of the letter dated November 21, 1978 from

Mr. Hallman setting this deadline is attached hereto as

Exhibit “5”. Consequently the Plaintiff’s reply to the

NOPYV, to be submitted to the DOE concurrent with the

filing of this action, is an unavoidably incomplete and

abbreviated response to said NOPV, forcing the

Plaintiff to undercut its defense posture in relation to

said NOPV, and Plaintiff is submitting said reply under

protest and without any waiver of those remedies

pursued herein.

27. The above-described disability on Plaintiff's

part to fully respond to the NOPV results by reason of a

raid and seizure of certain original documents, records

App. 17

and files which are corporate property belonging to the

Plaintiff, which raid and seizure was carried out by the

abovesaid Jacksonville Grand Jury, in purported

connection with that body’s investigations, at the

Plaintiff's offices in Coral Gables, Florida in October,

1974.

28. Through means unknown to the Plaintiff,

those documents, records and files belonging to the

Plaintiff were made available to other United States

Governmental agencies, including the FEA, predecessor

in interest to Defendants ERA and DOE. It is these

Defendants’ random and fortuitous use of seized

documents in a disorganized state in the custody of the

above-said Jacksonville Grand Jury which provides the

sole basis for the so-called “audit of the books and

records Ven-Fuels, Inc.” stated in the NOPV. However,

at no time significant hereto has a proper audit of the

Plaintiff been conducted at its offices, nor has the

Plaintiff been afforded an opportunity to explain and

clarify what might otherwise be unintelligible,

misleading or unclear documents used by Defendant

ERA.

Nature of this Action

29. This is a suit for a declaratory judgment,

pursuant to 28 U.S.C. §2201, that the NOPV which

Defendant DOE through its supporting agency,

Defendant ERA, issued to the Plaintiff on September

14, 1978, was improperly issued, and that such NOPV is

null and void, of no effect and unauthorized by law, and

for such further and necessary or proper relief, including

granting of an injunction, to enjoin Defendants from

App. 18

taking any action in a proceeding to enforce said NOPV

based on such declaratory judgment, 28 U.S.C. §2202.

30. The Plaintiff, because of the gravity of the

actual and threatened harm to it arising from the actual

and threatened enforcement by these Defendants of said

NOPV requests a speedy hearing in advancement of this

cause on this Court’s calendar pursuant to Rule 57 of the

Federal Rules of Civil Procedure.

31. In view of these Defendants’ actual and

threatened enforcement of the NOPV and Plaintiff's

contention that the NOPV is null and void, of no effect,

and its issuance improper and unauthorized by law,

there is an actual controversy within the jurisdiction of

this Court, and a binding declaration by this Court, as

to the validity of the NOPV, will effectively adjudicate

the rights of the parties.

First Wrong Complained Of

32. The Plaintiff repeats, realleges and reiterates

herein all of the allegations contained in paragraphs 1

through 30 of this Complaint.

33. Defendant DOE and the other Defendant

agencies and/or officials are estopped from asserting the

NOPV, Exhibit “1” hereto, against the Plaintiff because

the FEA, as their predecessor in interest, agreed with

the Plaintiff to refrain from bringing price control

violations against the Plaintiff, which agreement

induced the Plaintiff to make the afvre-described

settlement with JEA.

App. 19

34. The NOPV threatens imposition on the

Plaintiff of certain penalties described in 10 C.F.R.

§205.203 if it is determined that a violation has

occurred. However, the FEA, as predecessor in interest

to these Defendants, has previously waived any right it

may have had to bring pricing violations against the

Plaintiff, by reason of its having exercised its authority

pursuant to 10 C.F.R. §205.203(b)(2). This subsection

provides:

(b)(2) The FEA may at anytime refer the

violation to the Department of Justice for the

commencement of an action for civil penalties.

Where the FEA considers it to be appropriate

or advisable, it may compromise, settle and

collect. civil penalties. (Emphasis added).

35. It was precisely this authority which the FEA,

acting through Mr. Douglas Robinson of its General

Counsel’s Office, exercised back in November of 1975 in

relation to the then suspected overcharges by the

Plaintiff. The FEA’s unequivocal position at that time

was to induce the Plaintiff to consumate its Settlement

Agreement with JEA, Exhibit “2” hereto, and in return,

to forego any right it may have had to seek any penalties

against the Plaintiff in excess of a contingent maximum

penalty of $75,000.00, such contingent penalty to last for

a period of thirty (30) days. Thereafter, the FEA, as

predecessor in interest to these Defendants, waived any

right it may have had to bring pricing violations against

the Plaintiff in connection with the JEA contract. This

oral agreement between Mr. Robinson of the FEA and

Mr. McDade, then counsel for the Plaintiff, is

documented by Mr. McDade’s letters of November 6,

App. 20

1975 and September 14, 1978, Exhibits “3” and “4”

hereto respectively.

36. In addition, these Defendants are further

estopped from seeking to impose remedies against the

Plaintiff for the violations alleged in the NOPV by

reason of the Full and Complete General Mutual

Release of November 7, 1977, which was executed by the

Plaintiff and JEA simultaneous with the Settlement

Agreement of the same date. A true and correct copy of

this Full and Complete General Mutual Release is

attached hereto as Exhibit ‘6’.

37. Said Release, having been acquiesced in and

encouraged by the FEA, as predecessor in interest to

Defendants ERA and DOE, was entered into by JEA on

behalf of its customers and expressly released the

Plaintiff from any and all liabilities to JEA’s customers.

38. The purpose of a compliance remedy is to

correct the harm caused by the violation. In the case of

an overcharge by a utility supplier the remedy indicated

by Sections 5.501.00 and 5.501.01 of the CCH edition of

the ERA Enforcement Manual and 10 C.F.R. §205.195 is

a refund to be distributed on a pro rata basis to the

customers of the utility who were adversely affected by

the overcharge. In pertinent part, 10 C.F.R. §205.195(a),

addressing remedies, provides:

(a) ...Such action may include a direction

to the person to whom the order is issued to

make refunds directly to any purchasers of the

products involved, notwithstanding those

purchasers obtaining such products from an

App. 21

intermediate distributor, [e.g. public utility] of

such persons products ...” (emphasis and

bracketed material added).

39. Consequently, any overcharge which might be

collected by Defendants DOE and ERA in addition to

the settlement made between the Plaintiff and JEA

would necessarily revert to JEA’s customers, who have

previously and unconditionally released the Plaintiff

from any further liability. Perforce, these Defendants

are estopped from seeking to impose any such remedy

against the Plaintiff through the means of the NOPV.

Second Wrong Complained of

40. The Plaintiff repeats, realleges and reiterates

herein all of the allegations contained in paragraphs 1

through 30 of this Complaint.

41. The NOPV, as issued, is null and void, of no

effect, and its issuance improper and unauthorized by

law by reason of Defendant ERA’s non-compliance with

its own internal policies, procedures and regulations:

(a) Contrary to the procedure outlined in

Section 5.102.02 of the CCH edition of the ERA

Compliance Manual (1978), the ERA did not

precede its issuance of the NOPV with an issue

letter containing a request for a written reply

by the Plaintiff such as would have enabled

(b) The so-called “audit of the books and

records of Ven-Fuels, Inc.” was in direct

contravention of the clear Audit Guidelines set

forth under Chapter 4 of the CCH edition of the

ERA Enforcement Manual (1978). The

consequence of this is to point up that the

Plaintiff was not properly audited by

Defendant ERA in the preparation of its

findings toward the NOPV. To contend that

Defendant ERA’s random and fortuitous use of

seized documents in a disorganized state,

improperly made available to said Defendant

by the above-mentioned Jacksonville Grand

Jury, constitutes an “audit” of the Plaintiff's

books and records is a gross misstatement of

fact and an incorrect application of the terms

of 15 U.S.C. & 751 et seq and 10 C.F.R. §201.1

et seq. If a proper audit of the Plaintiff's books

and records had been conducted at the

Plaintiff's office, the Plaintiff would have been

afforded the opportunity to explain and clarify

what had to have been unintelligible,

misleading or unclear to Defendants DOE and

ERA’s “auditors.” Moreover, the fact that

these Defendants used a random set of seized

documents could not have insured the

documents constituted an accurate reflection

of the Ven-Fuel/JEA contract over the period

from October, 1973 to October, 1974.

these Defendants to ascertain the Plaintiffs

position on the factual and interpretive

matters that are the subject of the NOPV, and

on the estoppel by agreement outlined above.

App. 22

42. Consequently, the issuance of the NOPV was

improper and unauthorized by the very procedures and

policies which are internally used by Defendant ERA,

and said NOPV must be declared null and void and of

no effect.

App. 23

Third Wrong Complained Of

43. The Plaintiff repeats, realleges and reiterates

herein all of the allegations contained in paragraphs 1

through 30 of the Complaint.

44, It is now in excess of four (4) years since the

offices of the Plaintiff were raided and its original

documents, files and records seized in purported

connection with the above-mentioned Jacksonville

Grand Jury. Repeated requests have been made to the

United States Attorney for the Middle District of

Florida, in charge of said Jacksonville Grand Jury, to

return these original documents so as to enable the

Plaintiff to prepare its response to the NOPV.

Notwithstanding this, these original documents

continue to be retained by the Jacksonville Grand Jury,

and the Plaintiff has been likewise refused complete and

legible copies of all such documents. The Plaintiff

continues to be under a serious disability to fully

respond to the NOPV, which disability is caused by the

continuing wrongful refusal of the United States

Attorney for the Middle District of Florida to return to

Plaintiff the original documents which are the corporate

property of the Plaintiff.

45. While none of these Defendants has the

apparent authority to order or facilitate that said

documents be returned, they must at the very least be

restrained from pursuance of the NOPV against the

Plaintiff while this disability persists and while it

attempts to obtain the release of all said original

documents, which in addition to those taken during the

October, 1974 raid and seizure at Plaintiff's offices, now

include other papers which have been subsequently

App. 24

produced, and likewise lost, through various witness

subpoenas issued to the Plaintiff and its former

attorneys, the law firm of Fullbright and Jawarski in

Houston, Texas, in purported connection with the

above-said Jacksonville Grand Jury.

46. The Defendants, unless enjoined and

restrained will continue to pursue and seek to enforce

the NOPV against the Plaintiff, and the Plaintiff will be

subjected to the improper enforcement against it of said

NOPV, including the imposition of the penalties and

remedies against the Plaintiff, all of which will cost the

Plaintiff great expense and hardship.

App. 25

WHEREFORE the Plaintiff demands (1) that the

NOPV issued to it by Defendant ERA pursuant to 10

C.F.R. §205.191 on September 14, 1978 be declared null

and void, of no affect, and its issuance improper and

unauthorized by law; (2) that this Court restrain these

Defendants and their officers, employees, agents or

servants from pursuing and/or enforcing said NOPV; (3)

that pending the final hearing and determination of this

cause, a preliminary injunction issue restraining these

Defendants, their officers, employees, agents or servants

from pursuing and/or enforcing said NOPV; and (4) that

this Court issue such other or further relief as it may

deem necessary and proper.

BLACKWELL, WALKER, GRAY,

POWERS, FLICK & HOEHL

Attorneys for Plaintiff,

By: /s/ Joseph A. Moretz

Joseph A. Moretz

By: /s/ Nicolas A. Manzini

Nicolas A. Manzini

2400 First Federal Building

One Southeast Third Avenue

Miami, Florida 33131

Telephone: (305) 358-8880

App. 26