# Opposition — Dubno v. Mobil Oil Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 967

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1674%3A5. Public record. Not legal advice.