Opposition — Dubno v. Mobil Oil Corp.

No. 80-1813

IN THE

Supreme Court of the Wnited States

Octorer Term, 1980

—-— =. ——— ee

ui".

MAY 29 198)

sth taiehiadit tatiana]

“Moe he tt tC

orrK

Orrst T. Dusno, Commissioner of Revenue Services

of the State of Connecticut. ct al.. Petitioners,

v.

Moer. Ou. Corporation, Avoco Om

ComPANy, GETTY REFINING ANID MARKETING COMPANY,

Gutr Ort CorPorRATION, SUN O1r CoMPANY OF

PENNSYLVANIA, ATLANTIC RICHFIELD COMPANY,

CHEVRON U.S.A. Inc., Exxon Corporation AND

SHELL Oit Company, Respondents.

Cart R. Asetto, Attorney General of the State of

Connecticut, ct al., Pesitioners,

Vv.

Texaco Inc., Respondent.

ELta T. Grasso, Govenor of the State of Connecticut,

et al., Petitioners,

Vv -

AMERADA Hess Corporation, Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Second Circult

RESPONDENTS’ JOINT RRIEF IN OPPOSITION

[Counsel Listed On Inside Cover]

_————

PRESS OF RYRON S. ADAMS PRINTING, INC... WASTIINGTON, DC,

Nn tape

Wii E. Giynn

One Constituuion Plaza

Hlarttord, CE 06103

(203) 278-1330

Counsel of Record For

Mobil Oil Corporation

linvco Oil Company

Getty Refining and

Marketing Company

Gulf Oil Corporation

Sun Ow Company of

Pennsylvania

Alantic Richfield Company

Chevron U.S.A, Ine.

Exxon Corporation

Shell Oil Company

bkancis J. MeNAMARA, JR.

10 Stamford Forum

Stumlord, CT 06904

(203) 327-1700

Counsel of Record bor

Jexaco Ine.

MykoN C. BAtM

L101 17th St. NW,

Wishington, D.C. 20036

(202) 862-5000

Counsel of Record bor

sVwnerada less Corporation

i

QUESTIONS PRESENTED*

1. Did the Court of Appeals for the Second Circuit

correctly hold that the Temporary Emergency Court of

Appeals had exclusive jurisdiction to decide whether sec-

tion 13(b) of Connecticut Public Act No. 80-71 is

preempted by the federal Emergency Petroleum Alloca-

tion Act?

2. Did the Court of Appeals for the Second Circuit

correctly hold that the Temporary Emergency Court of

Appeals had exclusive jurisdiction to determine whether

the District Court correctly decided that the abstention

doctrine should not be applied in this case?

3. Did the Court of Appeals for the Second Circuit

correctly conclude that this action was not barred by 28

U.S.C. §1341?

* Respondents’ listing pursuant to Rule 28.1 is contained in a

separate appendix.

ili

TABLE OF CONTENTS

PAGE

OPIN CIN IID 5. oir og paca oe cc.sae ea ub chen eeee i

PMN SP PINE ince os dc as ns ve oes wena yeu iV

MNT SO DU SAM cnc. os divewe ew epes ean bie 2

NC, Se PUI on os ions aso uekae cdc os 0 ROMER 5

5 RR hg ae Samm SAPO Re 1, NA ARES 5

I. This Case Does Not Warrant Review.......... 5

II. The Court Of Appeals Was Entirely Correct In

Dismissing The Petitioners’ Appeal On The

Issues Of Preemption And Abstention ........ 7

A. The Temporary Emergency Court Of Ap-

peals Had Exclusive Jurisdiction Over The

PROMI GUNG: iis el aw kee Ke eee 7

B. The Temporary Emergency Court Of Ap-

peals Had Exclusive Jurisdiction Over The

Pm I soe ia kkk Pa oe bees 13

III. The Appeals Court Properly Held That 28

U.S.C. §1341 Did Not Bar The District Court

PE 5 RS oo eM TERR oh ee 15

IV. Petitioners’ Failure To File A Timely Appeal

With The Temporary Emergency Court Of Ap-

peals Does Not Warrant Extraordinary Relief

BS See Ritrerceng ear r nRnis Iaiame aes Hr 15

RI ee as . xd aces habe Cu oN Ed pes oe ee 19

PRECEDING PAGE WAS BLANK| “4

We

iv

TABLE OF AUTHORITIES

CASES: PAGE

Ar .L. ¥. Watson, 327 U.S. 582 (1946). ccc ces 9

ARCO v. Tribbit, 399 A.2d 535 (Del. Ch. 1977)........ 13

Bray v. U.S., 423 U.S. 73 (1975) «02... secscsecsceace 7, 14

Butler v. Dexter, 425 U.S. 262 (1976) .............008- 17

Chicago and Northwestern Transportation Co. v. Kalo

Brick & Tile Co., 49 U.S.L.W. 4232 (1981) ........ 12

Citronelle-Mobile Gathering, Inc. v. ev Oil Cor, i 591

F.2d 711 (TECA), cert. denied, 879

SO PNR a Wet nie oncke Fa) woos oes Be woe ve 6, 8, 10, 12

City of Burbank vy. Lockheed Air Terminal, Inc., 411

su aia aay bwin pe hb. 0 Recu wa Wola 9

City of New York v. New York Tel. Co., 468 F.2d 1401

Se a ae. bil'w'e wacneh 6 xs eh.nek es 14

Coastal States Marketing, Inc. v. New England Petro.

Corp., 604 F.2d 179 (2d Cir. 1979)....... 6, 7, 8, 10, 16

Gully v. Interstate Natural Gas Co., 292 U.S. 16

SS eats Bence lad isin Mie knee oe ont 17, 18

Harman v. Forssenius, 380 U.S. 528 (1965) ............ 14

Harris Truck Lines v. Cherry Meat Packers, 371 U.S.

pg RR ie EE Ng iy RR er 16

International Ladies’ Garment Workers’ Union v. Don-

nelly Garment Co., 304 U.S. 243 (1938) ......... 17, 18

Ivy Broadcasting Co. v. AT&T, 391 F.2d 486 (2d Cir.

CE WANS NG aude 8 pun bred? Hokie eed 4 dp ees 60% 12

Jones v. Rath Packing Co., 430 U.S. 519 (1977)........ 11

MT Inc. v. Baxley, 420 U.S. 799 (1975) ............. 17

Maryland vy. Exxon Corp., 370 A.2d 1102 (Md. 1977),

OAT Whe PET ite ial oie a

Mitchell v. Donovan, 398 U.S. 427 (1970) ...........45 17

Mobil Oil Corp. v. Dubno, 492 F.Supp. 1004 (D. Conn.

ENG ake eknls ck sbnak negpowetabaae 3, 9, 11, 13, 15

Table of Authorities Continued

CASES: PAGE

Mobil Oil Corp. v. Dubno, 639 F.2d 919 (2d Cir.

REE a ak vac Kee eReae hk 4, 9, 10, 13, 14, 15

Mobil Oil Corp. v. Tully, 499 F.Supp. 888 (N.D.N.Y.

SOSN SCC TES ERO RER ENO ET Ce RES aoe one tn 3, 16

Mobil Oil Corp. v. Tully, 639 F.2d 912 (2d Cir. 1981)... 10

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

(10th Cir. 1978), cert. denied, 441 U.S. 952

DEE ats hace o's nek bs eh car MO ee HR het 6, 8, 10, 12

M. Spiegel « Sons Oil Corp. v. B.P. Oil Corp., 531 F.2d

ee ee RR ds nies caePaca sen Cs 6, 8, 10, 12

Oklahoma Gas & Electric Co. v. Oklahoma Packing

Gate tis SEE cs bl areke bh ves owe emaens 17, 18

PE No hl shes Dba es AO CAPA baka ce eee ieetes 17

Quincy Oil Inc. v. F.E.A., 620 F.2d 890 (TECA 1980) .. 14

Railroad Commission v. Pullman, 312 U.S. 496 (1941)... 13

Reed v. Kroger Co., 478 F.2d 1268 (TECA 1973)....... 17

Shulthis v. McDougal, 225 U.S. 561 (1912) ............ 12

Standard Oil Co. v. D.O.E., 596 F.2d 1029 (TECA 1978) 14

Swift & Co. v. Wickham, 382 U.S. 111 (1965) ......... 9

T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d Cir. 1964),

cert, Genied, 381 U.S. 915 (1968)... cc ccc ccc ckcns 12

Texaco Inc. v. D.O.E., 616 F.2d 1193 (TECA

STE 6k s waren e icen Guy Sia x ead oa ke anid 6, 8, 10

U.S. v. Cooper, 482 F.2d 1393 (TECA 1973)........... 16

O.5..¥. Carreen,, fae 01S. 48s CURSO ovina cost side secs 17, 18

U.S. v. Robinson, 361 U.S. 220 (1960) ................ 16

William Jameson & Co. v. Morgenthau, 307 U.S. 171

SR ia caalk és cep a bea 4a ee bbs Cher eeieee 17, 18

vi

Table of Authorities Continued

STATUTES: PAGE

Economic Stabilization Act of 1970 (ESA), P.L. 91-379,

WS Eh GI ONE Ere ha roo os Fes wn weheewe 7, 16

Emergency Petroleum Allocation Act of 1973 (EPAA),

P.L. 93-159, 15 U.S.C. §§751-760h............. passim

Tax Injunction Act, 28 U.S.C. §1341 ............ 3, 4, 5, 15

SR ok. dk ws io «pinch ee tevin bs 15 ape el ae 17

DE ols ks cnt cu bec pay iobbevdsenenewee 15

Oe Bee NE ih ain ais son a hvbn vere pds hiap eae 10

Act Concerning State Revenue for the Fiscal Year Com-

mencing July 1, 1980, Conn. Public Act No. 80-71,

codified at Conn. Gen. Stat. §§12-587 to

SE AUEED ich exo va oe 2CRES AOD Cla ean ees passim

ADMINISTRATIVE ACTIONS:

es Ps SU RAMTOR « Wa enecivvcccuspeceveven 11

MISCELLANEOUS: +

Hearings before Conn. Finance, Revenue and Bonding

Committee, January 29, 1960-0... ccc ccw cee 2

Transcript of Debate in Conn. House of Representatives,

FE PAL TPE SERA CG ae ak Lk eakeh ekaoarta 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1813

OrEST T. DuBNO, Commissioner of Revenue Services

of the State of Connecticut, et al., Petitioners,

Vv.

Mosit Or CoRPORATION, AMOCO OIL

CoMPANY, GETTY REFINING AND MARKETING COMPANY,

GULF Or CORPORATION, SUN Or COMPANY OF

PENNSYLVANIA, ATLANTIC RICHFIELD COMPANY,

CHEVRON U.S.A. INc., ExxON CORPORATION AND

SHELL Ort CoMPANY, Respondents.

CaRL R. AJELLO, Attorney General of the © ate of

Connecticut, et al., Petitioners,

Vv.

TEXACO INC., Respondent.

ELLA T. Grasso, Govenor of the State of Connecticut,

et al., Petitioners,

Vv.

AMERADA HEss CORPORATION, Respondent.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals For The Second Circuit

RESPONDENTS’ JOINT BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Connecticut Public Act No. 80-71 became effective

on July 1, 1980. Section 1 of that Act imposed a two

precent tax on the ‘“‘gross earnings’’ derived by in-

tegrated petroleum companies from sales of petroleum

products in Connecticut. Respondents are all subject to

the tax, and they have been paying the tax as it has

fallen due.

In addition to imposing a tax on Respondents, the

Act also contained a provision designed to control the

prices of certain petroleum products sold in Connecticut.

That provision, section 13(b) of the Act, Pet. App. 45a,

prohibited any petroleum company subject to the tax im-

posed by section | of the Act from raising its wholesale

price in Connecticut for any product exempt from the

Emergency Petroleum Allocation Act of 1973 (P.L.

93-159, 15 U.S.C. §§751-760h) (‘‘EPAA’’) by more than

the average increase in its wholesale price for that pro-

duct in all ports on the eastern coast of the United

States. The obvious and explicit purpose of this price

control provision was to force the Respondents to

recover the cost of the new tax, to the extent that market

forces allowed them to recover it at all, in their prices

throughout the eastern United States.' The legislature

' “I think [in] making some of our fellow Americans in Loui-

siana and in the southeast and the oil-producing states[,] which

both in terms of their economy and in terms of their revenues have

reached [sic] an extraordinary bounty at our detriment [pay the

Connecticut tax] ... I’ve invented an idea which makes sense in

terms of fundamental fairness and it makes sense in terms of prac-

ticality.”’ Tr. of hearings before the Finance, Revenue and Bonding

Committee, January 29, 1980 at 8 (remarks of Sen. Curry). See also

Tr. of debate in the Connecticut House of Representatives, April

11, 1980, at 154 (comment of Rep. Lavine) (‘‘Frankly, Mr.

Speaker, I’m supportive of taxing the oil companies, I’m just not

supportive of passing that tax through to the citizens of

Connecticut.’’)

3

realized, as the District Court found, 492 F. Supp. at

1006, Pet. App. 9a, that in the absence of a provision

such as section 13(b) the cost of the gross receipts tax

would ordinarily be passed on to consumers in the state

that imposed the tax.

Respondents sought declaratory and injunctive relief

in the District Court from enforcement of the price con-

trol provisions of the Act. They did not challenge the tax

imposed by the Act. Respondents claimed in District

Court that the price control provision was preempted by

the EPAA and was repugnant to the Commerce Clause

and to the Due Process Clause of the United States

Constitution.

Without reaching the constitutional claims, the

Court held that section 13(b) was in conflict with the

federal energy policy established by the EPAA and the

implementing regulations issued thereunder and therefore

preempted under the Supremacy Clause of the United

States Constitution. As befits any preemption analysis,

the District Court reached its decision after engaging in a

thorough analysis of the applicable provisions of the

EPAA, its legislative history and the regulations pro-

mulgated thereunder. 492 F. Supp. at 1006-09, 1011-15;

Pet. App. lla-15a, 19a-27a. The District Court denied

sub silentio the Petitioners’ motion to dismiss which was

based on the doctrine of abstention and the Tax Injunc-

tion Act, 28 U.S.C. §1341.

On August 11, 1980, the last day possible, Peti-

tioners appealed the judgment of the District Court to

the United States Court of Appeals for the Second Cir-

cuit. During the pendency of that appeal, the District

Court for the Northern District of New York rendered

its decision in the case of Mobil Oil Corp. v. Tully, 499

F. Supp. 888 (N.D.N.Y. 1980), a case involving a New

4

York price control provision similar to the price control

provision in the Connecticut statute. The New York

State defendants in Tully also appealed to the Second

Circuit, and the two appeals were treated as companion

cases by the Court.of Appeals.

Respondents moved to dismiss the appeal on the

ground that the Temporary Emergency Court of Appeals

(““TECA’’) had exclusive jurisdiction over the appeal.

Similar motions were filed in the companion case. The

Court of Appeals held that the TECA had exclusive

jurisdiction to review the merits of the District Court’s

holding as to. preemption and to consider the Petitioners’

claim that the District Court should have abstained. Ac-

cordingly, the Court of Appeals dismissed the appeal as

to those claims. The Court of Appeals he!d that it did

have jurisdiction to consider the claim that the District

Court_ judgment was barred by 28 U.S.C. §1341 and af-

firmed the District Court on that issue. 639 F.2d 919,

Pet. App. la.

The New York defendants in the companion case

proceeded to present their claims on the merits of the

District Court’s judgment to the TECA.? The Connec-

ticut defendants did not file a notice of appeal with the

TECA and therefore proceeded by means of their peti-

tion for certiorari in this Court. While the New York

defendants have also sought review in this Court, their

petition is limited to the District Court’s holding that

section 1341 did not bar the New York action.

* The TECA heard arguments on the merits in the New York case

on April 2, 1981. The New York defendants had not raised an

abstention claim.

SUMMARY OF ARGUMENT

The Court of Appeals correctly determined that ex-

clusive appellate jurisdiction of an issue arising under the

EPAA rests with the TECA. On that issue, there is no

conflict or disagreement among the lower courts, nor is

there any apparent reason for review by this Court.

Similarly, there is no disagreement among lower courts

that two of the issues determined by the District Court,

preemption of a state statute by the EPAA and the ap-

plicability of the abstention doctrine to a claim that a

state statute is preempted by the EPAA, were issues aris-

ing under the EPAA. The determinations below are con-

sistent with the decisions of this Court.

The Court of Appeals correctly decided that the Tax

Injunction Act, 28 U.S.C. §1341, is inapplicable where

the tax is being paid and collected and is not under

challenge.

Since the judgments below were plainly correct,

there is no justification for vacating those judgments in

order to relieve Petitioners of the consequences of their

failure to follow proper appellate procedure.

ARGUMENT

1. This Case Does Not Warrant Review

The principal question presented by this case is

whether the Court of Appeals correctly held that it did

not have appellate jurisdiction to review the preemption

and abstention issues presented to it by the Petitioners.’

’ The minimal attention Petitioners devote to their argument that

the Court of Appeals erred in rejecting their claims with regard to

section 1341, Pet. 21, is a tacit admission that their argument is, to

say the least, weak. Review of the section 1341 argument is clearly

not warranted. See p. 15, infra.

6

That question does not warrant review by this Court. No

issue of national significance would be resolved by grant-

ing certiorari in this case because no issue of national

significance is presented, and no conflict among the

lower federal courts would be settled because none

exists.

The allocation of jurisdiction between the TECA

and the courts of appeals is not a matter of dispute

among the lower courts. Rather, the courts of appeals

and the TECA have agreed that the TECA has exclusive

appellate jurisdiction to review adjudications of ‘‘EPAA

issues’’ by a district court. Neither the courts of appeals

nor the TECA have had any difficulty in identifying

such issues. See Texaco Inc. v. D.O.E., 616 F.2d 1193

(TECA 1979); Coastal States Marketing, Inc. v. New

England Petroleum Corp., 604 F.2d 179 (2d Cir. 1979);

Citronelle-Mobile Gathering, Inc. v. Gulf Oil Corp., 591

F.2d 711 (TECA), cert. denied, 444 U.S. 879 (1979);

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

(10th Cir. 1978), cert. denied, 441 U.S. 952 (1979); M.

Spiegel & Sons Oil Corp. v. B.P. Oil Corp., 531 F.2d

669 (2d Cir. 1976).

Although Petitioners claim that there is a conflict

between the decision below and decisions of the TECA

and of this Court, Pet. 6, they do not identify any such

conflict. All Petitioners do is indicate that both the

TECA and this Court have recognized that the TECA’s

jurisdiction is limited. Nothing in the decision below

conflicts with this principle. The Court below simply

held that under the standards that all courts have

adopted to define the extent of the TECA’s limited

jurisdiction, the preemption and abstention issues in-

volved in this case can be heard on appeal only by the

TECA.

There is also no unresolved question of national im-

portance presented by this petition. Petitioners’ challenge

to the jurisdictional decision of the Court of Appeals is

necessitated solely by Petitioners’ failure to follow the

clear advice of the Court of Appeals that litigants file

dual notices of appeal in cases involving EPAA issues.

See Coastal States Marketing, Inc. v. New England

Peiroleum Corp., supra, 604 F.2d at 186 n.9. In short,

this petition presents a case of significance only to the

parties.

il. The Court Of Appeals Was Entirely Correct In Dismiss-

ing The Petitioners’ Appeal On The Issues Of Preemp-

tion And Abstention

A. The Temporary Emergency Court of Appeals had

exclusive jurisdiction over the preemption issue

Section 5(a)(1) of the EPAA, codified in 15 U.S.C.

§754(a)(1)(A), incorporates the judicial review provisions

of the Economic Stabilization Act of 1970, P.L. 91-379,

84 Stat. 796 (‘‘ESA’’), by providing that those judicial

review provisions shall apply to any regulation, order, or

action taken by the President (or his delegate) under the

EPAA “‘as if such regulation had been promulgated,

such order had been issued, or such action had been

taken under the Economic Stabilization Act of 1970.’

Section 211(b)(2) of the ESA, 12 U.S.C. §1904 note,

provides that the TECA has ‘‘exclusive jurisdiction of all

appeals from the district courts of the United States in

cases and controversies arising under [the ESA] or under

regulations or orders issued thereunder.’”*

* Section 211(b)(2) ‘carved out a limited exception to the broad

jurisdiction of the courts of appeals’ the purpose of which is ‘to

ass’re uniform interpretation...’ of the energy laws. Bray v.

United States, 423 U.S. 73, 74-75 (1975).

8

The Court of Appeals’ analysis and conclusion that

the TECA had exclusive jurisdiction over the issue of

whether the EPAA preempts section 13(b) are fully con-

sistent with the line of authority that has defined the

TECA’s jurisdiction. Petitioners concede the basic

ptemise that the TECA’s exclusive jurisdiction includes

cases that arise under the EPAA. Pet. 7,8. They focus

instead upon the issue of whether the present case is one

“arising under’? the EPAA. The standard for such an

inquiry is clear — the court must decide ‘‘whether an

EPAA- question has been adjudicated.’’ Texaco Inc v.

D.O.E., supra, 616 F.2d at 1198, citing Coastal States

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

supra, 604 F.2d at 187. If it has, the TECA has exclusive

jurisdiction over that EPAA issue and the appropriate

Court of Appeals has jurisdiction over other substantive

“issues in the same case. Coastal States Marketing, Inc. v.

New England Petroleum Corp., supra, 604 F.2d at 182.

The standard for determining whether an EPAA

question has been adjudicated has also been clearly

delineated. An EPAA question is adjudicated if the case

has required ‘‘application and interpretation of the

EPAA ... .”’ Citronelle-Mobile Gathering, Inc. v. Gulf

Oil Corp., supra, 591 F.2d at 716. See also, Mountain

Fuel Supply Co. v. Johnson, supra (exclusive jurisdiction

in the TECA where the ‘‘construction, applicability and

effect’’ of the EPAA is involved); M. Spiegel & Sons Oil

Corp. v..B.P, Oil Corp., supra (‘‘construction of the

EPAA”’ required). Under this standard the TECA’s ex-

clusive jurisdiction in the present case is apparent

because the District Court’s decision on the preemption

issue embodies an extensive construction and interpreta-

tion of the EPAA.

9

In preemption cases the court’s analytical duty ‘‘is

never one of interpretation of the Federal Constitution

but inevitably one of comparing two statutes.’’ Swift &

Co. v. Wickham, 382 U.S. 111, 120 (1965). Such cases

turn on the peculiarities and special features of the

federal statute or regulation involved. See City of Bur-

bank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 638

(1973). For this reason, preemption cases have uniformly

been held to ‘‘arise under’’ the preempting statute, not

under the Supremacy Clause. See, e.g., Swift & Co. v.

Wickham, supra; A.F.L. v. Watson, 327 U.S. 582, 591

(1946).

Thus, it was absolutely necessary for the District

Court to become, as it did, intricately involved in the

construction and interpretation of the EPAA, its

legislative history and the regu‘ations promulgated

thereunder, in order to decide that section 13(b) was

preempted. 492 F.Supp. at 1006-09, 1011-15, Pet. App.

lla-1Sa, 19a-27a. Reviewing that decision, the Court of

Appeals reached the only conclusion it could:

Because this decision [the district court’s] necessarily

involved a thorough analysis of the EPAA and the

Mandatory Price Regulations . . . the district judge

adjudicated an ESA (EPAA) issue and, therefore,

exclusive jurisdiction over this part of the case lies

with TECA pursuant to 15 U.SC. §754(a)(1).

639 F.2d at 921, Pet. App. Sa.

Petitioners rely on a number of unsupportable asser-

tions in an effort to obscure the plain validity of the

Court of Appeals decision. Each of their claims was con-

sidered by the Court of Appeals and properly rejected.

First, the Petitioners charge that the Court of Ap-

peals ‘‘completely ignored’’ their claim that this case

10

arose under the EPAA itself and not under a ‘‘regula-

tion promulgated under section 753(a) [of the EPAA],

... any order under [the EPAA], [or] any action taken

by the President (or his delegate) under [the EPAA],’’ as

is required by the jurisdictional provision of section

754(a)(1)(A). Pet. 7. The fact is that the Court of Ap-

peals did consider this argument and flatly rejected it.

Mobil Oil Corp. v. Tully, supra, 639 F.2d at 916, Pet.

App. 36a-37a.

Moreover, the extremely narrow interpretation of

the jurisdictional provision of section 754(a)(1)(A) urged

by Petitioners is contrary to the uniform interpretation

given this provision by the courts of appeals and the

TECA.* In addition, the ‘‘regulation promulgated under

Section 753(a) of [the EEPAA]’”’ referred to in

§754(a)(1)(A) includes not only the original program of

price controls but also the exemptions therefrom, exemp-

tions which are accomplished by amendment to ‘‘the

regulations’’. 15 U.S.C. §760a(b). Respondents’ preemp-

tion claim in the District Court plainly arose under the

regulations because it hinged on the interpretation ac-

corded the exemption process. The exemptions also con-

stitute ‘‘actions’’ and ‘‘orders taken by the President (or

his deiegate) under this chapter’’ within the meaning of

section 754(a)(1)(A). See 15 U.S.C. §§760(b)(2), 760a(b).°

* See Texaco Inc. v. D.O.E., supra, 616 F.2d at 1195; Coastal

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

604 F.2d at 182; Citronelle-Mobile Gathering, Inc. v. Gulf Oil

Corp., supra, 591 F.2d at 715; Mountain Fuel Supply Co. v.

Johnson, supra, 586 F.2d at 1379; M. Spiegel & Sons Oil Corp. v.

B.P. Oil Corp., supra, 531 F.2d at 670.

* Before the President could remove a petroleum product from

the list of products under active price control under the EPAA, he

or his delegate was required to transmit to Congress an ‘‘energy ac-

tion,” 15 U.S.C. §760a(c2); 42 U.S.C. §6421(a)(6). See, e.g.,

Tr.

Ne

1]

Petitioners’ second argument’ is that this action

arises under the explicit preemption provision of the

EPAA, 15 U.S.C. §755(b),’ and that actions under sec-

tion 755(b) are not within the appellate jurisdiction of

the TECA. This argument misconstrues. the plain

language of the applicable statutes.

The TECA has exclusive appellate jurisdiction over

cases arising under regulations, orders or actions under

the EPAA. Since section 755(b) requires an analysis of

EPAA regulations and orders to determine if there is a

conflict with a state law, any action ‘‘arising under’’ sec-

tion 755(b) must also arise under an EPAA regulation or

action. An appeal of a holding based on section 755(b) is

therefore necessarily within the exclusive TECA jurisdic-

tion contemplated by 15 U.S.C. §754.* Petitioners offer

no legislative history or judicial decision which remotely

suggests a contrary conclusion.

Petitioners’ third argument is that an EPAA issue

arises only if the EPAA itself or regulations, actions, or

Energy Action No. 6, 41 Fed. Reg. 40452 (Sept. 20, 1976) (exemp-

ting naphtha jet fuel from mandatory petroleum pricing

regulations).

’ Section 755(b) provides:

(b) The regulation under section 753 of this title and any order

issued thereunder shall preempt any provision of any program

for the allocation of crude oil, residual fuel oil, or any refined

petroleum product established by any State or local government

if such provision is in conflict with such regulation or any such

order.

* In addition, the District Court held that the Connecticut statute

was preempted by the EPAA and its implementing regulations

although the express preemption provision of section 755(b) was not

applicable. 492 F. Supp. 1014 n. 11, Pet. App. 25a, citing Jones v.

Rath Packing, 430 U.S. 519, 540-41 (1977). Thus, even if Peti-

tioners were correct that the TECA does not have jurisdiction over

cases arising under section 755(b), their argument would not apply

to this case.

12

orders thereunder are ‘‘directly questioned.’’ Pet. 13.

Nowhere in the statute, its legislative history or case law

is there any support for this assertion. Indeed, Peti-

tioners once again completely fail to offer any analysis

or support for their mutation of the ‘‘arising under”’

standard. The courts have uniformly held that an EPAA

issue exists and vests exclusive jurisdiction in the TECA

in any case involving ‘‘application and interpretation of

the EPAA ....”’ Citronelle-Mobile Gathering, Inc. v.

Gulf Oil Corp., supra; Mountain Fuel Supply Co. v.

Johnson, supra; M. Spiegel & Sons Oil Corp. v. B.P.

Oil Corp., supra.’

Petitioners’ final argument for granting their peti-

tion on the preemption issue is that ‘‘consistency of opi-

nion and maximization of TECA’s expertise ...’’ are

not involved in the question of whether the EPAA

preempts section 13(b). Pet. 14. Once again no support

exists for this contention. The very case the Petitioners

cite, Chicago and Northwestern Transportation Co. v.

Kalo Brick & Tile Co., 49 U.S.L.W. 4232 (1981), states

that the federal statute’s ‘‘construction’’ must be de,er-

mined in a preemption case. If preemption requires a

federal construction, then an EPAA preemption question

absolutely requires the TECA’s expertise because resolu-

tion depends upon the EPAA, its legislative history and

the regulations promulgated thereunder. The TECA is

the court most familiar with the EPAA, its regulations,

and the amendments thereto and is uniquely qualified to

resolve the question. Moreover, as the District Court

’ Moreover, this interpretation is consistent with the interpreta-

tion given to ‘‘arising under’’ in other jurisdictional sections of the

judicial code. See, e.g., Shulthis v. McDougal, 225 U.S. 561, 569

(1912); Ivy Broadcasting Co. v. AT&T, 391 F.2d 486, 492 (2d Cir.

1968); 7. B. Haris Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964),

cert. denied, 381 U.S. 915 (1965).

13

found, state price control statutes of the Connecticut

variety create ‘‘artificial market conditions’’ and risk

‘*the very ‘supply problems’ and ‘market distortions’ ”’

that are inimical to federal energy policy. 492 F. Supp.

at 1014, Pet. App. 26a. Such statutes pose a national

problem, and the preemption issue is thus properly

presented to a court with a national jurisdiction over

EPAA pricing rules.'®

B. The Temporary Emergency Court of Appeals had

exclusive jurisdiction over the abstention issue

The Court of Appeals refused to hear Petitioners’

claim that the District Court should have abstained

under the doctrine of Railroad Commission v. Pullman,

312 U.S. 496 (1941), because

a decision to abstain in this case would necessarily

involve a finding that some possible interpretation

of Section 13(b) would render the provision consis-

tent with the federal regulatory framework. Such a

finding, however, would necessarily entail some

analysis of the federal and state statutes and regula-

tions. Thus we will defer to TECA’s particular ex-

pertise in this area.

639 F.2d at 922, Pet. App. 6a. The Court of Appeals

was clearly correct. Abstention is warranted only if some

'* Petitioners rely on two state court cases as supporting the pro-

position that the preemption issue does not ‘‘present an EPAA

issue’. Pet. 11-12, citing Maryland v. Exxon Corp., 370 A.2d 1102

(Md. 1977), aff'd on other grounds, 437 U.S. 117 (1978), and

ARCO v. Tribbit, 399 A.2d 535 (Del. Ch. 1977). This argument is

frivolous. The jurisdictional issue was not decided in, mentioned

by, nor (to all appearances) even presented to the state courts in

these cases. Under these circumstances, the cases cannot possibly be

read as authority for the view Petitioners urge.

14

reasonably plausible interpretation of the state statute at

issue will render it consistent with the requirements of

federal law,'' Harman v. Forssenius, 380 U.S. 528,

535-36 (1965). Making that determination in this case

would have required the Court of Appeals to analyze the

requirements of the EPAA, but Congress has limited ap-

pellate analysis of the EPAA to the TECA in order to

achieve ‘‘national uniformity [and] consistency of deci-

sion.’’ Bray v. United States, supra, 423 U.S. at 74-75.

In addition, the analysis required on the abstention

issue, involving interpretations both of the EPAA and

section 13(b) of Connecticut Public Act 80-71, was the

same analysis required on the preemption issue. See pp.

3, 8-9 supra. Since the TECA had exclusive jurisdiction

over the preemption issue, assertion of jurisdiction by

the Court of Appeals over an abstention issue requiring

analysis of the same two statutes would have been a

waste of judicial resources.'?

'' The interpretation of section 13(b) on which Petitioners based

their abstention argument in the courts below would limit the reach

of that statute to products not within the definition of ‘‘petroleum

products’’ in section 4 of the EPAA, 15 U.S.C. §753. This pro-

posed construction would avoid federal preemption claims by

rendering section 13(b) inapplicable to the products sold in Connec-

ticut by Respondents, but it would do so by making section 13(b)

not applicable to anything.

'? The Court of Appeals was also correct in basing its refusal to

review the abstention claim on its conclusion that abstention was a

‘threshold issue which has no life apart from the substantive

[preemption] claim.’’ 639 F.2d at 921, Pet. App. 6a. Quincy Oil

Inc. v. F.E.A., 620 F.2d 890, 893 (TECA 1980) (mootness); Stand-

ard Oil Co. v. D.O.E., 596 F.2d 1029 (TECA 1978) (ripeness); City

of New York v. New York Tel. Co., 468 F.2d 1401 (TECA 1972)

(exhaustion of administrative remedies).

15

Ili. The Appeals Court Properly Held That 28 U.S.C. §1341

id Not Bar The District Court: Actions

Petitioners’ obvious lack of belief in their 28 U.S.C.

§1341 argument is appropriate in light of the extremely

thorough severability clause contained in Connecticut

Public Act No. 80-71, Conn. Gen. Stat., §12-601 (1981),

Pet. App. 45a. As the Court of Appeals noted, ‘‘it can-

not seriously be argued that the judgment of the court

below has enjoined, suspended, or restrained the assess-

ment, levy or collection of the gross receipts tax.’’ 639

F.2d at 922, Pet. App. 7a.

IV. Petitioners’ Failure To File A Timely Appeal With The

Temporary Emergency Court Of Appeals Does Not

Warrant Extraordinary Relief By This Court

Petitioners suggest that even if this Court concludes

that the decision of the court below was correct, it

should nevertheless vacate the decision of the District

Court (and presumably that of the Court of Appeals as

well) and remand the case to the District Court for the

entry of a new judgment which Petitioners could then

appeal to the TECA. They seek to justify this request by

characterizing the District Court’s opinion as an illogical

judicial error. A reading of Judge Blumenfeld’s careful

and exhaustive opinion, 492 F. Supp. 1004, Pet. App.

8a-28a, refutes this characterization. Petitioners also cite

cases which dealt with appeals from three-judge federal

courts convened pursuant to 28 U.S.C. §2281 where the

appellate path was not clear and argue that similar relief

should be afforded ‘‘where, as in this case, the law was

unclear or uncertain as to where the appeal should be

taken.”* Pet. 19.

The difficulty with Petitioners’ argument is that the

law was neither unclear nor uncertain as to the manner

-*%

16

of perfecting an appeal from the judgment of the

District Court in a risk-free procedure. The simple fact is

that the Petitioners: failed to follow crystal-clear guidance

by the Second Circuit, the Court in which they lodged

their appeal. The Second Circuit, a year before the deci-

sion of the District Court, explicitly told counsel facing

the issue that:

Uncertainty and the risk of appeal to the wrong

court can be avoided by filing two notices of ap-

peal, one in the district court to appeal to the Court

of Appeals, Fed.R.App.P.3(a), and one in the

TECA to appeal to that Court, Gen.R.T.E.C.A.

15(a). |

Coastal States» Marketing, Inc. v. New England

Petroleum Corp., supra, 604 F.2d at 186 n. 9.

Despite this warning and the absence of any un-

settled jurisdictional questions with respect to the

preemption.and abstention issues, the Petitioners ignored

the appellate jurisdiction of the TECA. By contrast,

Petitioners in the companion case, Mobil Oil Corp. v.

Tully, followed the clear directions of the Second Circuit

and filed two notices of appeal. Their argument on the

preemption claim was heard by the TECA on April 2,

1981.

There is no sufficient excuse for Petitioners’ failure

to appeal to the TECA within the time allowed by Con-

gress, ESA §211(b)(2), 12 U.S.C. §1904 note, to justify

the extraordinary relief that Petitioners request. See Har-

ris Truck Lines v. Cherry Meat Packers, 371 U.S. 215,

21? (1962); United States v. Robinson, 361 U.S. 220

(1960); United States v. Cooper, 482 F.2d 1393,

17

1399-1400 (TECA 1973); Reed v. Kroger Co., 478 F.2d

1268 (TECA 1973)."

The contrast between this case and the three-judge

court cases on which Petitioners rely is. clear. The earlier

decisions of this Court, in which, on direct appeal, the

judgment below was vacated for the entry of a new

judgment from which a proper appeal could be taken to

a court of appeals, were cases in which a three-judge

district court had been erroneously convened and in

which a decree granting or denying relief on the merits

had been entered. Gully v. Interstate Natural Gas Co.,

292 U.S. 16 (1934); Oklahoma Gas & Electric Co. v.

Oklahoma Packing Co., 292 U.S. 386 (1934); United

States v. Corrick, 298 U.S. 435 (1936); Jnternational

Ladies’ Garment Workers’ Union v. Donnelly Garment

Co., 304 U.S. 243 (1938); William Jameson & Co. v.

Morgenthau, 307 U.S. 171 (1939); Phillips v. United

States, 312 U.S. 246 (1941); Mitchell v. Donovan, 398

U.S. 427 (1970); MTM Inc. v. Baxley, 420 U.S. 799

(1975); Butler v. Dexter, 425 U.S. 262 (1976).

Indeed, in several of these cases, the three-judge

courts had actually granted relief which this Court held

they had no jurisdiction to grant. The consequences of a

mere dismissal of a direct appeal under 28 U.S.C. §1253

Or its predecessors would have been to let stand an er-

roneous decree entered by a court having no jurisdiction,

a situation expressly recognized by this Court. United

'S In Reed v. Kroger Co., supra, 478 F.2d at 1271, the TECA

stated:

In an effort to justify the complete absence of professional

care, counsel blandly claims reliance upon the oral advice of a

district court clerk. We strongly believe that professional stan-

dards require counsel to be familiar with, or to make at least a

reasonable effort to learn, the rules of the courts in which they

practice.

18

States v. Corrick, supra; International Ladies’ Garment

Workers’ Union v. Donnelly Garment Co., supra. In ad-

dition, these decisions were grounded upon the Court’s

power to enforce the limitations upon its own jurisdic-

tion by direct appeal. Oklahoma Gas & Electric Co. v.

Oklahoma Packing Co., supra; William Jameson & Co.

v. Morgenthau, supra; Gully v. Interstate Natural Gas

Co., supra.

In light of the foregoing, therefore, no basis has

been shown for requesting this Court to vacate the judg-

ment below. If the decision is incorrect, certiorari

jurisdiction is available to enable this Court to rectify

any error, if deemed appropriate; if the decision is cor-

rect, there is no justification for vacating a proper judg-

ment in order to enable Petitioners to remedy their own

delinquency in failing to file a timely notice of appeal to

the court having proper appellate jurisdiction.

19

CONCLUSION

For the reasons stated herein Respondents respect-

fully request that the petition for certiorari be denied.

Respectfully submitted,

RICHARD M. REYNOLDS WILLIAM _ E.,. GLYNN

ALLAN B. TAYLOR One Constitution Plaza.

Puiuip M. SMALL Hartford, CT 06103

Day, Berry & Howard (203) 278-1330

Of Counsel

Counsel of Record For

Mobil Oil Corporation

Amoco Oil Company

Getty Refining and

Marketing Company

Gulf Oil Corporation

Sun Oil Company of

Pennsylvania

Atlantic Richfield Company

Chevron U.S.A. Inc.

Exxon Corporation

Shell Oil Company

Eric Watt WIECHMANN FRANCIS J. MCNAMARA, JR.

JosEPH D. MAari 10 Stamford Forum

CUMMINGS & LocKwoop Stamford, CT 06904

Of Counsel (203) 327-1700

Counsel of Record For

Texaco Inc.

Myron C. BAUM

Rosert H. ELuior 1101 17th St. N.W.

Poo sca ag olny Washington, D.C. 20036

. (202) 862-5000

ere erg Hs, DELANEY Counsel of Record For

Of Counsel Amerada Hess Corporation

May. 1981