Petition — Zang v. United States

Office -Supreme Court, U.S.

FILE i,

81-146 t] sme 231961 |

No. heights

*

ALEXANDER

IN THE

Supreme Court of the Bnited States

OCTOBER TERM, 1981

W. DARRELL ZANG and

Louis PorTER, Petitioners,

Vv.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

JERRIS LEONARD

Counsel of Record

JOHN A. FIELD, ITI

RONALD A. GOODBREAD

JEROME R. SILVERBERG

DownlE & BARNETT JERRIS LEONARD &

Fourth Floor AsSsOcIATES, P.C

Six East Fifth ‘vivani

1700 Pennsylvania

Tulsa, Oklahoma 74103 Avenue, N.W.

Of Counsel:

JAMES C. LANG

SNEAD, LANG,

ADAMS, HAMILTON

(918) 583-3145 Suite 550

B. HAYDEN CRAWFORD Washington, D.C. 20006

CRAWFORD, CROWE & (202) 872-1095

nage Counsel for Petitioners

First National Bank

Tulsa, Oklahoma 74103

(918) 587-1128

July 23, 1981

ESS ESI A TESS ERS SSS IRAE!

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED

Whether the traditional standard of ‘‘arising under’’

as expressed in §211(b)(2) of the Economic Stabilization

Act is to be applied in order to invoke federal question

jurisdiction to require the Temporary Emergency Court

of Appeals to review energy-related cases wherein

criminal penalties are also involved.

TABLE OF CONTENTS

PAGE

Er Lic ccssewescus seeedescecseces i

EE decccicncens cep ssdesevccccecs iv

CLC Lel i sehlevsnverscesevesscsocese 2

UTC CCcreseehehenasecbecsccceccecveveses 2

STATUTORY PROVISIONS INVOLVED .............00e0e00: 2

EE UNE OED nce cccccscrocccccesvcccenes 3

REASONS FOR GRANTING CERTIORARI ..........00000005 6

I. The Traditional Application of the ‘‘Arising

Under’ Standards Embraces This Statutory

CUT CCCE CER shbcescsssoccccccdccess 7

A. Original Ingredient ..................44. 10

SE PEE op cecccccsceccvccecccens 11

ee 13

ccc bshavnenbivespeccsececs 13

E. Congressional Authority................. 15

II. The Purpose of Congress Was Clearly to Pro-

vide Broad Federal Question Jurisdiction to

TECA in Order to Address the Energy Crises

and to Serve the Purposes of Judicial Econ-

ee eases wéecc es vectsecccoees 18

nec ceesceeeececvecese 22

APPENDIX

iv

TABLE OF AUTHORITIES

CASES: PAGE

American Well Works Co. v. Layne & Bowler Co., 241

ae A CHEN 6 Adis Kann s cxwbbaineteesdnennean 11, 15

Association of Westinghouse Salaried Employees v.

Westinghouse Electric Corp., 348 U.S. 437 (1955)... 12

Baily v. Paterson, 369 U.S. 31 (1962) ........cceeeeees 13

Bell v. Hood, 327 U.S. 678 (1946) ..........ce ee eeeee 7,14

Bivens v. Six Unknown Named Agents, 403 U.S. 388

SUOUED ssbb n> unene beta socked onde socb sucess 12

Blue Bird Body Co. v. Ryder Truck Rental, 538 F.2d

jije-, 2 Se Ae rrr rer rere 17

Bock v. Perkins, 139 U.S. 628 (1891) ..........0ee eee 7

Bray v. United States, 423 U.S. 73 (1975). ........0005: 19

Canon v. University of Chicago, 441 U.S. 677 (1979) ... 20

Cohens v. Virginia, 6 Wheat. [19 U.S.] 264 (1821)... 8, 9, 15

Davis v. Passman, 442 U.S. 228 (1979) ..........00 eee 20

Division 1287, Amalgamated Transit Union, AFL-CIO

v. Kansas City Area Trans. Authority, 582 F.2d 444

(8th Cir. 1978), cert. denied, 439 U.S. 1090 (1979)... 11

Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976), cert.

Samtad, GIP UD. BIS AIG T 6.0 64 i960 hte sbecisacns

Duke Power Co. vy. Carolina Environmental Study

Se Ws Se CR a ro ek dadsnvesacese 14

Enders v. American Patent Search Co., 535 F.2d 1085

(9th Cir. 1976), cert. denied, 429 U.S. 888 (1976)....... 21

Gully vy. First National Bank in Meridian, 299 U.S.

UNS o:h0 0s ch Cased ber cu dodueubetacrs 11, 12, 20

Hagans v. Lavine, 415 U.S. 528 (1974) ...........0005 13

Hannis Distilling Co. v. Baltimore, 216 U.S. 285 (1910). 14

International Association of Machinists, AFL-CIO v.

Central Airlines, Inc., 372 U.S. 682 (1963)......... 12

Vv

Table of Authorities Continued

CASES: PAGE

Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391

Fede GP als BONE boric bre suiercbecescocsens 21

J.I. Case Co. v. Borak, 377 U.S. 426 (1964) .........5. 12

League to Save Lake Tahoe v. B.J.K. Corp., 547

ide BOT CUE Gale FEFED nc bsbc he ctaacnebessccs 11, 19

Levering & Barrigues Co. v. Morrin, 289 U.S. 103

RSH Rae a ea cee his ¥ 00. pedneauhnbneees nbwse 13

Louisville and Nashville Ry. Co. v. Mottley, 211 U.S.

SEE 5% chvib cee banedaueic beet asses oe 000% 12

Management Investors v. United Mine Workers of

America, 610 F.2d 384 (6th Cir. 1979) ............ 17

Mansfield, Coldwater & Lake Michigan Ry. v. Swan,

Cee Gy PG hel reaires ndonPaseceans anes 6

McGilvra v. Ross, 215 U.S. 70 (1909) ........0e cee eees 14

McLucas v. De Champlain, 421 U.S. 21 (1975)......... i4

Molina-Crespo v. Califano, 538 F.2d 572 (lst Cir.

ee bk be vidiees Meech i ews s Coven tee behest sebne:s 13

Montana-Dakota Utilities Co. v. Northwestern Public

SVE GOs. BEN Wie BOE CIFOR) ih evicscvececcraes 21

National Mutual Insurance Co. v. Tidewater Transfer

CO er See SRE bs vceebdenctneswaseaed es 20

Newburyport Water Co. v. Newburyport, 193 U.S. 561

SG Ud ineksscrictes las tpamalcee ses cerrdiayade 14

North American Phillips Corp. v. Emery Air Freight

CO, Bre ie Bee GOO Gs BETO cicevecedenssece 11

Osborn v. Bank of the United States, 9 Wheat. [22 U.S.]

PS eb dseedel vata dednnvered > 7, 8, 10, 16, 17, 20

PAAC v. Rizzo, 502 F.2d 306 (3rd Cir. 1974).......... 15

Payne v. Government of District of Columbia, 559 F.2d

ee Ce Mls SPP T da ctide nce hs Was chWes veces 14

Philbrook v. Glodgett, 421 U.S. 707 (1975) ............ 6

Phillips Petroleum v. Texaco, 415 U.S. 125 (1974)...... 12

vi

Table of Authorities Continued

CASES: PAGE

Robison v. Witchita Falls and North Texas Community

Action Corp., 507 F.2d 245 (Sth Cir. 1975) ........ 11

Romero v. International Terminal Opere.iig Co., 358

REE cds knvansvctsedesssacauee 6, 8, 12, 20

Rozado v. Wyman, 397 U.S. 397 (1970) ...... 0c eens 20

Sands v. Union Camp Corp., 559 F.2d 1345 (Sth Cir.

OR RENE eS BOR ND Cry rt ope Eiger el 17

Screven County v. Brier Creek Hunting & Fishing Club,

Inc., 202 F.2d 369 (Sth Cir. 1953), cert. denied, 345

ee I vas ban dneedevesadeseaeueanncsnes 13

Shoshone Mining Co. v. Rutter, 177 U.S. 504 (1900).... 8

Shulthis v. McDougal, 225 U.S. 561 (1912) ...... 11, 13, 19

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667

Scab shtventesocuhaesvaanaavacenees 13, 20, 22

Smith v. Kansas City Title and Trust Co., 255 U.S. 180

SN baile nds 00 cede nave Wanaance Boned eaanee ya 8

South Park Square Limited v. City of Jackson, 565 F.2d

332 (5th Cir. 1977), cert. denied, 436 U.S. 946

ST i khns 4c ipng ce eAReeeeeeh SSE EARNS bone Ke 14

Standard Ventures, Inc. v. State of Arizona, 499 F.2d

es ME diekec cc dbevaskeubabe cceskes oe 14

St. Mary’s Hospital of East St. Louis, Inc. v. Ogilvie,

re ae BE CPO Ges SPD a cceccceccscctceness 16

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

cert. denied, 381 U.S. 915 (1965) .....cccscccscces 12

Tennessee v. Davis, 100 U.S. 257 (1879) ...........055: 21

Textile Workers Union of America v. Lincoln Mills

of Alabama, 353 U.S. 448 (1957) ........ 10, 15, 17, 20

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22

S145 bandh he can cnetles cbauenebeknes édabens 13

(IGT) oo ccccccccccccccscvcceccesscssccccvescees 20

vii

Table of Authorities Continued

CASES: PAGE

Town of Greenhorn v. Baker County, 596 F.2d 349 (9th

Gils WUTEE roddsalas Co cnddcsbout bua yedXcins'ce tics 8

United Mine Workers of America v. Gibbs, 383 U.S.

PEE Chis chowtuctvasnwsasedaredeukecies 6, 18, 20

United States v. Eaton, 144 U.S. 677 (1892) ........... 21

United States v. George, 228 U.S. 14 (1913);........... 21

United States v. Heirs of Boisdore, 49 U.S. 113 (1849)... 16

United States v. Hudson & Goodwin, 7 Cranch [11 U.S.]

SEE OS Gin PUAN 6e sb 56has 6h Con eeeadd baa bees 21

United States v. Rumley 345 U.S. 41 (1953)............ 15

United States v. St. Regis Paper Co., 355 F.2d 688 (2d

oe RR rrr ry a Pre 16

Walsh v. Louisiana High School Athletic Association,

616 F.2d 152 (Sth Cir. 1980), cert. denied, 101 S.

eR. RR er eer ree 14

Wheeldin v. Wheeler, 373 U.S. 647 (1963) ..........665 8

Wiley v. National Collegiate Athletic Assn., 612 F.2d

437 (10th Cir. 1979), cert. denied 446 U.S. 943

SRN So OUsebeeR4Kbb es cae UCEVASbeakie Naas haces 14

UNITED STATES CONSTITUTION:

ET Sha vh 64603800 6a cei ua ra taesebebeeseces 18

PE MES b.00.8 0.6 d 040 viadeeee sb ened edad ewss.s's ae 7,18

tae cas thin thaeacwds deldeatsbivekacbesdceae 8, 22

STATUTES:

SERPS UPD inc death eisderecdsvenedtavesdess 17

EBUR Tong - |) + SAN pee a, 6, 1S, 16, 17, 19

id MRIS a'n's 0.60.60 500 ced vecadaeawvececssens 2

is TE A ob i-00G 0 0005 d0bs cnc veeses0se04s 3

BS U.S.C. $756. cc cccccccccccccccccccsccccccscscccas 3

viii

Table of Authorities Continued

STATUTES: PAGE

Le Flt. eer weer reTerETri chy Tere ye 3

SEs CEPR Acct casavdccecdecceseriqesestise Vine 3

ATI, BED OE a ccc ccccedcacedenevncasscausesececes 3

SE EEE UR cnn cacaaredvessequtesneudosesvedses 3

Pik Volt) - | er rrrrrrrrrrrr rrr creer 3

fk To SS rrrrrrryyy TrTPi Tey) CET 3

, GTR Uoml |». ” | PP PrrrTrrrr reer rei ee 2

FEDERAL REGULATIONS:

8D CS. CRIB GIAD a ccc cccccccccsecccseccnccscvcecs 3

SD C.F, BaP Skee cnc csascecanreesiguneoevess 3

ies GHMEIET cia ccccccsecadadedasecsvevetaecven 3

PER. SIRS 6 ccdecccceccvccecssancceccdcceces 3

JO C.F. GRID. 71TH wc ccccccccscccccscccccccecceces 3

10 *}.F.R. SBIZ AZIM) . oc ccccccccvcicccsceccccccce 3

Es URN ce ph dt ds baee dens cndussbedecsasiocien 3

GG Dy, CET 6c ccs cccciies cccvecsctivncedecesse 3

BPEL, Gee a cic ccc ccectcnccabecsecscccnesescs 3

Eon t MAA OTPTTTTEPP UL TEer er CUT 3

Court RULEs:

Bm. APP.R. 32...cccccccccccccccccscccccccepeceseces 2

Fed R.App.P. 4)... ccccccccccccccccccccccccsscceccs 16

MISCELLANEOUS:

Cohen, The Broken Compass: the Requirement That a

Case Arise ‘‘Directly’’ Under Federal Law, 115

U.PA.L.Rev. 890 (1967)... cccccccccccccccccese 12, 19

ix

Table of Authorities Continued

MISCELLANEOUS: PAGE

Kurland, The Romero Case and Some Problems of

Federal Jurisdiction, 73 Harv.L.Rev. 817 (1960)... 20

Mishkin, The Federal ‘‘Question’’ Jurisdiction of the

District Courts, 53 Cot.L.REv. 157 (1953) ......... 18

The Outer Limits of icine Under,’’ 54 N.Y.L.REv.

TNs xo CAG pase ds tas vansacucanesescastuan 9

S. Rep. No. 92-507, 92d Cong., Ist Sess. (1971) ........ 18

U.S. Cope. Conc. & Ap. News 2283 (1971) ........... 18

IN THE

Supreme Court of the United States

OcTOBER TERM, 1981

No.

W. DARRELL ZANG and

Louis Porter, Petitioners,

V.

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

Petitioners, W. Darrell Zang and Louis Porter, seek

certiorari through this petition in order to bring before

this Honorable Court the opportunity to clarify yet

another concept of cvpellate jurisdiction in an ‘‘arising

under’’ provision of a federal statute plainly granting

such review power to the Temporary Emergency Court

of Appeals (TECA). Petitioners respectfully pray that a

Writ Of Certiorari issue to review the final judgment of

that court handed down and entered on June 23, 1981.

2

OPINION BELOW

The opinion of the Temporary Emergency Court of

Appeals was a final judgment in denying a petition for

rehearing on a previous order' by that court on May 22,

1981, dismissing Petitioners’ appeal of the judgment by

the United States District Court for the Northern District

of Oklahoma. The District Court’s decision denied a

motion for judgment of acquittal, a motion for a new

trial, and a motion in arrest of judgment from the

conviction and sentence of Petitioners on sixteen counts

of Title 18 U.S.C. felony offenses. An appeal of this

action is also pending in the United States Court of

Appeals for the Tenth Circuit (No. 80-2227). On July

20, 1981, the Tenth Circuit stayed consideration of that

case pending the outcome of this Court’s determination

on this Petition for Certiorari.

JURISDICTION

The judgment of the Temporary Emergency Court

Appeals was entered on June 23, 1981. This Petition for

Certiorari is filed within thirty days of that date, pur-

suant to a special statutory provision. This Court’s

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

§211(G) of the Economic Stabilization Act, as amended.

See also Em.App.R. 32.

STATUTORY PROVISIONS INVOLVED

Section 211(b)(2) of the Economic Stabilization Act

provides:

Except as otherwise provided in this Section, the

Temporary Emergency Court of Appeals shall have

' This brief order appears in the appendix hereto, along with the

opinion for which rehearing was sought.

3

exclusive jurisdiction of all appeals from the district

courts of the United States in cases and controver-

sies 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 judgment by the district

court.

STATEMENT OF THE FACTS

Petitioners Louis Porter and W. Darrell Zang, were

indicted in the United States District Court for the Nor-

thern District of Oklahoma on April 2, 1980, and ar-

raigned on April 10, 1980, on sixteen separate criminal

counts including conspiracy,’ mail fraud,’ wire fraud,‘

and racketeering,’ on allegations of misdealings relating

to crude oil supplies and sales regulated by the Federal

Energy Administration (FEA) and the Department of

Energy (DOE).

The real basis for controversy was the Emergency

Petroleum Allocation Act (EPAA),° and concomitant

regulations,’ with commensurate criminal provisions

built into the Act.* While the United States has contend-

? 18. U.S.C. §371.

*18 U.S.C. §§2 & 1341.

*18 U.S.C. §§2 & 1343.

* 18 U.S.C. §§2, 1962(a), and 1963. On the same date the indict-

ment was returned the District Court granted a Government motion

to restrain Defendants from alienating any property purported to be

subject to confiscation under the indictment.

*15 U.S.C. §751 ef seq.

710 C.F.R. §§212.54; 212.71-74; 210.92(a) & (b); 211.67;

212.131(b)(1); 42 C.F.R. 41565; 62897; 64956; and 43 C.F.R. 26540.

* 15 U.S.C. §784.

4

ed that these EPAA provisions were not properly part of

the indictment, without them there would have been in-

sufficient evidence to support an indictment.’

On April 10, 1980, Defendants entered pleas of not

guilty to al! allegations. Thirty days later, Defendants fil-

ed motions to dismiss the indictment on the grounds that

the Government was selectively prosecuting them in at-

tempting to circumvent the misdemeanor provisions of

Title 15 under the EPAA by concurrently alleging felony

violations of Title 18 general criminal statutes. After

Government reply briefs on May 15, 1980, and Defen-

dant’s response briefs on May 29, 1980, plus an addi-

tional Government response on June 3, 1980, and sup-

plemental briefs by Defendants on June 4, 1980, the

District Court on July 18, 1980, denied the motions to

dismiss.

The Defendants filed an appeal of this denial before

the Temporary Emergency Court of Appeals on July 28,

1980. On August 1, 1980, the Government moved to

* Relying entirely upon the audits of the crude oil business con-

ducted by nationally renowned accounting firms, Petitioner Porter

was not informed until late 1978 of any prospective violations of the

EPAA. Upon being informed of these problems Porter sua sponte

informed the DOE, inviting its investigation and taking positive

steps to insure not only that disclosure was made to the DOE and

SEC, but also that repayment of possible overcharges was made

from a special contingency fund of some $7,000,000 established

specifically for that purpose. Moreover, Porter directed that a full

disclosure report be made to the DOE and he requested a DOE

audit of his past crude oil dealings to investigate possible EPAA

violations. Ironically, it was upon this document that the Govern-

ment predicated its investigation, indictment and conviction of

Porter and Zang. This conduct was not that of a criminal with mens

rea or even a participant with /ocus penitentiae; rather it was that of

a candid and efficient businessman seeking to comply with a com-

plex and ever-changing set of lugubrious regulations.

5

dismiss that appeal and after full and extensive briefing

and oral argument TECA, on March 5, 1981, declined to

consider the interlocutory appeal because of lack of

jurisdiction.

During the course of this interlocutory appeal, in

October, 1980, after a jury trial of two and one-half

weeks’ duration, Defendants were convicted on all

counts. Defendants’ post-trial motions were denied on

November 7, 1980, and the court entered judgment of

conviction and sentenced each defendant to concurrent

prison terms of five years on each count, fines totalling

$49,000 ard forfeiture of certain property.

Appeals from the District Court’s final order of

judgment and conviction were timely taken simultane-

ously to TECA and the United States Court of Appeals

for the Tenth Circuit. On April 1, 1981, the Government

moved to dismiss the pending appeals in TECA based on

the language of the March 5, 1981, TECA opinion

dismissing the interlocutory appeal.

On April 17, 1981, Defendants filed before TECA a

memorandum in opposition to the Government’s

dismissal motion, together with a motion for summary

reversal and remand.

Following the Government’s response to these fil-

ings by the Defendant, TECA, by opinion and order

dated May 22, 1981, dismissed the pending substantive

appeals, finding that TECA lacked jurisdiction. On June

5, 1981, Appellants Zang and Porter filed a petition for

rehearing en banc; however, the court denied that peti-

tion on June 23, 1981. It is from that denial that this

petition for certiorari is made.

6

REASONS FOR GRANTING CERTIORARI

This case presents another complex question of

jurisdiction which is ‘‘among the most difficult and sub-

tle that federal courts are called upon to make.”’

Romero vy. International Terminal Operating Co., 358

U.S. 354, 375 (1959). This microcosmic repetition of the

various ‘‘arising under’’ concepts is all the more reason

for this Court to grant certiorari. Here, as before, ‘‘the

first and fundamental question is that of jurisdiction,

first, of this court, and then of the court from which the

record comes. This question the court is bound to ask

and answer for itself... .’’ Mansfield, Coldwater &

Lake Michigan Ry. v. Swan, 111 U.S. 379, 382 (1884).

This Court, like all federal courts, has jurisdiction to

decide whether it has jurisdiction, Philbrook v. Glodgett,

421 U.S. 720, 721 (1975), and to review the jurisdiction

of an intermediate federal court.

The issue presented, therefore, is whether, in the

context of §211 of the Economic Stabilization Act, the

United States Temporary Emergency Court of Appeals

has jurisdiction to consider both energy-related issues

and collateral criminal charges ‘‘arising under’’ the plain

meaning of that phrase in the statute. More precisely

put, the question here is whether the Temporary

Emergency Court of Appeals correctly interpreted the

phrase ‘‘arising under’’ in §211(b)(2), by taking a

“limited approach [which] is unnecessarily grudging,”’

United Mine Workers of America v.Gibbs, 383 U.S.

715, 725 (1966) — a tact which this Court has previously

rejected, Petitioners submit that the lower Court was in-

correct in its interpretation of federal question jurisdic-

tion.

7

I. The Traditional Application of the ‘Arising Under’’

Standard Embraces This Statutory Provision

The classic test for interpreting the ‘‘arising under’’

standard under the Constitution'® was set down by Chief

Justice Marshall:

If it be a sufficient foundation for jurisdiction, that

the title or right set up by the party, may be

defeated by one construction of the constitutional

law of the United States, and sustained by the op-

posite construction, provided the facts necessary to

support the action be made out, then all the other

questions must be decided as incident to this, which

gives that jurisdiction. Those other questions cannot

arrest the proceedings. Under this construction, the

judicial power of the Union, extends effectively and

beneficially to that most important class of cases,

which depend on the character of the cause.* * *

We think, then, that when a question to which the

judicial power of the Union is extended by the con-

stitution forms an ingredient of the original cause, it

is in the power of congress to give the [federal ap-

pellate] courts jurisdiction of that cause, although

other questions of fact or of law may be involved in

it.

Osborn v. Bank of the United States, 9 Wheat. [22 U.S.]

738, 824 (1824).

This remedial interpretation of federal jurisdiction

has been maintained in an unbroken line of cases since

then. ‘‘As we stated in Bell v. Hood, 327 U.S. 678, 685

(1946), ‘the right of the petitioners to recover under their

complaint will be sustained if the ... and laws of the

United States are given one construction and will be

defeated if they are given another. For this reason the

... Court has jurisdiction.’ And see Bock v. Perkins,

'® Article III, §2.

8

139 U.S. 628, 630, (1891).’’ Wheeldin v. Wheeler, 373

U.S. 647, 649 (1963).

To be sure, in Osborn and its progeny, the Court

was considering original jurisdication by the United

States District Courts. However, the lineage of appellate

jurisdiction can be traced back equally as far. In a

classic appellate jurisdiction opinion, Chief Justice Mar-

shall also wrote that, ‘‘A case in law or equity consists

of the right of the one party, as well as the other, and

may truly be said to arise under the Constitution or a

law of the United States, whenever its correct decision

depends on the construction of either.’’ Cohens v.

Virginia, 6 Wheat. [19 U.S.] 264, 379 (1821). See also

Smith v. Kansas City Title and Trust Co., 255 U.S. 180

(1921).

Petitioners are aware, of course, that in these iand-

mark cases the issue was more properly one arising

under the Constitution of the United States rather than

one arising under any federal statute. Romero vy. Inter-

national Terminal Operating Co., 358 U.S. at 379 n. 51;

Shoshone Mining Co. v. Rutter, 177 U.S. 504 (1900).''

If, therefore, the high threshold constitutional stan-

dard is not to be applied to statutory interpretation, it is

likewise not easy to determine what precise statutory

standard is applicable since ‘‘[t]he relevant cases do not

supply a clear and logical test for establishing when a

case arises under federal law.’’ Town of Greenhorn v.

Baker County, 596 F.2d 349, 351 (9th Cir. 1979). It is

'' It is emphasized that Petitioners here, in addition to seeking an

interpretation of the statue in question, also contend that TECA’s

incorrect interpretation of that statute has denied them due process

of law under the Fifth Amendment to the United States Constitu-

tion.

9

sufficient to say that the existing tests as to when a case

arises under the federal question jurisdiction of this or

other constitutional or statutory courts, are vague. See

Note, The Outer Limits of ‘‘Arising Under,’’ 54

N.Y.U.L.REv. 978, 979 (1979).

Petitioners suggest herein that the threads from the

existing tests may be plaited into a sufficient jurisdic-

tional nexus to provide a requirement that the in-

termediate court below assume jurisdiction over their

claim. Whatever analytical distinctions exist between the

constitutional and statutory standards of the federal

question doctrine, if sufficient nexus can be shown, Peti-

tioners may justifiably rely on yet another of Chief

Justice Marshall’s maxims:

It is most true that this Court will not take jurisdic-

tion if it should not: but it is equally true, that it

must take jurisdiction, if it should. The judiciary,

cannot as the legislature may, avoid a measure,

because it approaches the confines of the constitu-

tion.* * * We have no more right to decline the ex-

ercise Of jurisdiction which is given, than to usurp

that which is not given. The one or the other would

be treason to the constitution.

Cohens v. Virginia, 6 Wheat. [19 U.S.] at 404. Peti-

tioners submit that no less a standard may be applied to

a temporary intermediate federal court. The ruling by

TECA that it lacks jurisdiction over these tandem energy

and criminal issues seeks to separate Damon and

Pythias, contravening the specific intent of Congress in

enacting this legislation.'? TECA’s inopportune opinion

on jurisdiction was one which tended to repeat un-

critically language from earlier decisions with insufficient

'? See further discussion of congressional intent below at pp.

18-22.

10

attention to and analysis of the case and statute which

were actually before the court. That decision, based on

the proferred standard herein, should be vacated and

remanded in the wake of this Petition for Certiorari.

Whatever the differing standards, it must be conced-

ed that there exist ‘‘some elements of analytical similari-

ty’’ between the Osborne case and this and interstitial

cases since then. See Textile Workers Union of America

v. Lincoln Mills of Alabama, 353 U.S. 448, 481-82

(1957) (Frankfurter, J. dissenting). In interpreting §211

pursuant to that analytical similarity, Petitioners propose

the following standard be applicable:

Jurisdiction ‘‘arises under’’ a statute of the United

States, when the issue presented forms an original

ingredient flowing directly from that statute which is

a substantial, not a frivolous, claim of jurisdiction

flowing from congressional authorization.

A. Original Ingredient

This element is directly traceable to Chief Justice

Marshall’s inquiry as to whether ‘‘[t]he question forms

an original ingredient in [the] cause.’’ Osborn v. Bank of

the United States, 9 Wheat. [22 U.S.] at 824. He

predicated that requirement on the finding that ‘‘when a

question to which the judicial power of the Union is ex-

tended by the Constitution, forms an ingredient of the

original cause, it is in the power of Congress to give the

[federal appellate] courts jurisdiction of that cause,

although other questions of fact or of law may be in-

volved in it.’’ Jd. at 823.

Here under the appropriate regulatory statute in Ti-

tle 15, both civil and criminal penalties arise directly

under the plain meaning of that law and in so doing

form ‘‘original ingredients’’ of the complaint on which

Petitioners were convicted. There can be no doubt that

under this interpretation, jurisdiction runs to the court

to which Congress has by statute granted appellate

jurisdiction. TECA therefore erred in refusing to assume

jurisdiction over all these concomitant issues.

B. Directly Related

Likewise the issue presented must be one arising

directly under the statute, not one which is collateral;

one which is necessary and not one which is merely

possible. See Gully v. First National Bank in Meridian,

299 U.S. 109, 118 (1936). See also North American

Phillips Corp. v. Emery Air Freight Corp., 579 F.2d

229, 233 (2d Cir. 1978) (‘‘whether federal law is a

pivotal issue in the case’’); Division 1287, Amalgamated

Transit Union, AFL-CIO v. Kansas City Area Trans.

Authority, 582 F.2d 444, 450 (8th Cir. 1978) (‘‘jurisdic-

tion must be a paramount and not a collateral issue’’);

League to Save Lake Tahoe v. B.J.K. Corp., 547 F.2d

1072, 1074 (9th Cir. 1976) (‘* ‘basic? ... and

‘necessary’ ’’); Robison v. Wichita Falls & North Texas

Community Action Corp., 507 F.2d 245, 249 (Sth Cir.

1975) (‘‘founded directly upon federal law’’).

A more basic interpretation of this requirement was

provided by Justice Holmes who observed that ‘‘a suit

arises under the law that creates the action.’’ American

Well Works Co. v. Layne & Bowler Co., 241 U. S. 257,

260 (1916), Other cases have elaborated on that primary

principle by holding that ‘‘a suit does not so arise unless

it really and substantially involves a dispute or con-

troversy respecting the validity, construction or effect of

such a law, upon which the determination of the result

depends.’’ Shulthis v. McDougal, 225 U.S. 56l, 569

(1912). Holmes’ formula has been found to be ‘‘more

12

useful for inclusion [in jurisdiction] than for [the] exclu-

sion for which it was intended.’’ 7.B. Harms Co. v.

Eliscu, 339 F.2d 823, 827 (2d Cir. 1964). See also

Association of Westinghouse Salaried Employees v.

Westinghouse Electric Corp., 348 U.S. 437, 450 (1955)

(plurality opinion of Frankfurter, J.). Thus, the conjunc-

tive issues presented in the Petitioners’ case — civil and

criminal penalties under the same or related statutes —

present issues arising direct/y under the requisite jurisdic-

tional statute. They are not subject to dismissal for want

of jurisdiction because they form ‘‘an entirely separate

and distinct class of cases’’ from that comprehended by

the statute. See Romero vy. International Terminal

Operating Co., 358 U.S. at 367. Nor would granting

jurisdiction in this case be a situation of ‘‘follow[ing] the

ascent [of jurisdiction] far enough, [so that] countless

claims of right can be discovered to have their source or

operative limits in the provisions of the federal statute.’’

Gully v. First National Bank in Meridian, 299 U.S. at

118.'’ An appeal properly arising, which may or may not

be lost later on the merits is not to be dismissed ab initio

on jurisdictional grounds.

'’ Although it must be said that if federal law grants the substan-

tive right, it may also be held that a federal remedy may be implied

from that right. E.g., Bivens v. Sic Unknown Named Agents, 403

U.S. 388, 392 (1971); J./. Case Co. v. Borak, 377 U.S. 426, 433-34

(1964); International Association of Machinists, AFL-CIO vy. Cen-

tral Airlines, Inc., 372 U.S. 682, 695-96 (1963). Petitioners here

claim a jurisdictional right predicated directly on the statute, rather

than seeking to raise jurisdiction by anticipating a defense. See

Phillips Petroleum vy. Texaco, 415 U.S. 125, 127-28 (1974);

Louisville and Nashville Ry. Co. v. Mottley, 211 U.S. 149, 152

(1908). See generally Cohen, The Broken Compass: The Require-

ment That a Case Arise “‘Directly’’ Under Federal Law, 115

U.Pa.L.Rev. 890 (1967).

13

C. Substantiality

Jurisdiction will likewise lie when the claim founded

directly upon federal law is a substantial one. This re-

quirement of substantiality has been a touchstone for

consideration of cases at the appellate level for virtually

all of our judicial history. As an independent issue, the

substantiality doctrine is ‘‘a statement of jurisdictional

principles,’’ Hagans v. Lavine, 415 U.S. 528, 536, 538

(1974), and ‘‘is a legal question open to independent ex-

amination on appeal.’’ Molina-Crespo v. Califano, 583

F.2d 572, 574 (lst Cir. 1978). Appellate courts will

therefore attach jurisdiction if a claim ‘‘raises in sharp

form the question whether a suit like this ‘arises under

the... laws... of the United States’... .’’ Skelly Oil

Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950).

A federal question presented, therefore, ‘‘must be

substantial and must form an integral part of the com-

plaint.’’ Screven County v. Brier Creek Hunting &

Fishing Club, Inc., 202 F.2d 369, 370 (Sth Cir. 1953).

See also Shulthis v. McDougal, 225 U.S. at 569. The

final determinant in this vein is that ‘‘if the plaintiff

really makes a substantial claim under an act of Con-

gress, there is jurisdiction whether the claim ultimately

be held good or bad.’”’ The Fair v. Kohler Die & Special-

ty Co., 228 U.S. 22, 25 (1913) (emphasis added).

D. Not Frivolous

The basic determinant, therefore, of whether an

issue is substantially raised under a federal question

claim of jurisdiction is that it be ‘‘not frivolous.’’ Just

as the federal claim must be a substantial one, so too

jurisdiction will lie unless it is ‘‘wholly insubstantial,’’

Baily v. Patterson, 369 U.S. 31, 33 (1962); Levering &

Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933)

14

(‘‘plainly unsubstantial’’); Hannis Distilling Co. v.

Baltimore, 216 U.S. 285, 288 (1910) (‘‘obviously

frivolous’’); McGilvra v. Ross, 215 U.S. 70, 80 (1909)

(‘‘no longer open to discussion’’); Newburyport Water

Co. v. Newburyport, 193 U.S. 561, 579 (1904) (‘‘so at-

tenuated and unsubstantial as to be absolutely devoid of

merit’’).

Thus the test for denial of jurisdiction ‘‘is a

rigorous one and if there is any foundation of plausibili-

ty to the claim, federal jurisdiction exists.’’ South Park

Square Limited v. City of Jackson, 565 F.2d 338, 342-43

(5th Cir. 1977). See also Duke Power Co. v. Carolina

Environmental Study Group, Inc., 438 U.S. 59, 70

(1978) (‘‘ ‘patently without merit’ ’’); McLucas v. De

Champlain, 421 U.S. 21, 32 (1975) (‘‘insubstantial’’);

Walsh v. Louisiana High School Athletic Association,

616 F.2d 152, 156 (Sth Cir. 1980) (‘‘ ‘obviously without

merit’ ’’); Wiley v. National Collegiate Athletic Assn.,

612 F.2d 473, 477 (10th Cir. 1979) (‘wholly insubstantial

or obviously frivilous’’); Payne v. Government of

District of Columbia, 559 F.2d 809, 823 (D.C. Cir. 1977)

(‘‘wholly unsubstantial and frivilous’’); Dreyfus v. Von

Finck, 534 F.2d 24, 28 (2d Cir. 1976) (‘‘so attenuated

and insubstantial as to be absolutely devoid of merit’’);

Standage Ventures, Inc. v. State of Arizona, 499 F.2d

248, 250 (9th Cir. 1974) (‘‘not sufficiently substantial’).

Unless, therefore, ‘‘the alleged claim under the...

federal statute clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction or where

such a claim is wholly insubstantial and frivolous,’’ Bell

v. Hood, 327 U.S. at 685, and where the petition does in

fact raise serious questions, both of law and fact, the ap-

pellate court can decide the issue only after it has assum-

ed jurisdiction over the controversy. Again, ‘‘the right of

15

the petitioners to recover under their complaint will be

sustained if the .. . laws of the United States are given

one construction and will be defeated if they are given

another. For this reason the . . . Court has jurisdiction.”’

Id.

In asserting that jurisdiction lies under §211(b)(2),

Petitioners rely on the well-settled premise that legisla-

tion must, if possible, be given a meaning that will

enable it to survive. E.g., United States v. Rumley, 345

U.S. 41, 45 (1953). Petitioners submit that this Court,

and the intermediate court, need go no further than the

plain meaning of the statute. ‘‘In the wise distribution of

governmental powers, this Court cannot do what a

President sometimes does in returning a bill to Congress.

We cannot return this provision to Congress and respect-

fully request that body to face the responsibility placed

upon it by the Constitution to define the jurisdiction of

the lower courts with some particularity and not to leave

these courts at large.’’ Textile Workers Union v. Lincoln

Mills, 353 U.S. at 484 (Frankfurter, J., dissenting). As

Chief Justice Marshall observed in Cohens, ‘‘A case...

may truly be said to arise under . . . a law of the United

States, whenever its correct decision depends on the con-

struction [of that law].’’ Cohens v. Virginia, 6 Wheat.

[22 U.S. at 379. Plainly, ‘‘[{a] suit arises under the law

that creates the cause of action.’’ American Well Works

Co. v. Layne & Bowler Co., 241 U.S. at 260.

E. Congressional Authority

Here jurisdiction arises over the construction of the

federal law creating the action. See PAAC v. Rizzo, 502

F.2d 306, 312 (3rd Cir. 1974). That law must be read in

its entirety and from the general scope of Congressional

intent; ‘‘we must not be guided by a single sentence or a

16

member of a sentence, but look [instead] to its object

and policy.’’ United States v. Heirs of Boisdore, 49 U.S.

113 (1849), See also United States v. St. Regis Paper

Co., 355 F.2d 688, 693 (2d Cir. 1966) (‘* ‘how, one sup-

poses, [the legislative scheme] *** would appear to a

**reasonable interpreter’ ’ ’’).

Here the factor which subjected Petitioners to

original liability in this case was an alleged violation of

the EPAA, a premise not merely incident to the criminal

code but inherent in the original statute itself. Thus, this

case ‘‘arises emphatically under the law; the act of con-

gress is its foundation ... The Act itself is the first in-

gredient in the case — is its origin — is that from which

every other part arises.’’ Osborn v. Bank of the U.S., 9

Wheat. [22 U.S.] at 824. For in this case, as with the

Bank of the United States in the Osborn case, the FEA

and DOE are creations and creatures of federal law.

Thus, the law itself provides the basic triggering

mechanism under which Petitioners are subject to the

jurisdictional authority of the trial court, and on appeal

as of right, Fed.R.App.P. 4(a), entitles them to invoke

the jurisdiction of the appropriate appellate court. That

appropriate court is the Temporary Emergency Court of

Appeals, not the United States Court of Appeals for the

Tenth Circuit. It is only ‘‘[i]Jn the absence of such trig-

gering allegations in the complaint, [that] the [Circuit]

Court of Appeals has jurisdiction over the appeal.’’

(Emphasis added). St. Mary’s Hospital of East St.

Louis, Inc. v. Ogilvie, 496 F.2d 1324, 1326 (7th Cir.

1974) (interpretation of §211(b)(2)).

There can be no doubt here, of course, that Con-

gress had the authority to create the special jurisdiction

inherent in this statute; nor, Petitioners submit, can

there be any doubt that Petitioners are entitled to invoke

17

that jurisdiction. Faced with the prospect of the ‘‘ascent

of appellate jurisdiction’ originating with the Osborn

case, Congress could have chosen to act otherwise, or

chosen an alternative phrase in plotting the jurisdictional

curtilage, e.g., ‘‘arising upon;’’ see 11 U.S.C. §110(a)(6);

Management Invesiors v. United Mine Workers of

America, 610 F.2d 384, 390-91 (6th Cir. 1979); or ‘‘aris-

ing out of;’’ see Blue Bird Body Co. v. Ryder Truck

Rental, 583 F.2d 717, 726 (Sth Cir. 1978); Sands v.

Union Camp Corp., 559 F.2d 1345, 1347 (Sth Cir. 1977).

But as Justice Frankfurter pointed out, ‘‘The traditional

interpretation ... is that the federal jurisdiction under

the ‘arising [under]’ clause . . ., though limited to cases

involving potential federal questions, has such flexibility

that Congress may confer it whenever there exists in the

background some federal proposition that might be

challenged, despite the remoteness of the likelihood of

actual presentation of such a federal question.’ Textile

Workers Union v. Lincoln Mills, 353 U.S. at 471(foot-

note omitted). And it is well-settled that, ‘‘[iJn every

other case, the power is to be exercised in its original or

appellate form, or both, as the wisdom of congress may

direct.’’ Osborn v. Bank of the United States, 9 Wheat.

[22 U.S.] at 820 (emphasis added).

Clearly the traditional notions of federal question

jurisdiction apply to §211(b)(2) as fully within the

generally accepted and plain meaning of the time-

honored federal phrase ‘‘arising under’’ federal law. The

Temporary Emergency Court of Appeals therefore erred

in finding that this principle was not broad enough to in-

fuse authority into its jurisdictional see.

Il. The Purpose Of Congress Was Clearly To Provide Broad

Federal Question Jurisdiction .o TECA In Order To Ad-

dress The Energy Crisis And To Serve The Purposes Of

Judicial Economy

As with the concept of ‘‘protective jurisdiction,’’'*

Congress has the legislative power under Article I to pass

a statute, such as the one sub judice, granting federal

jurisdiction and that jurisdictional statute is itself a ‘‘law

of the United States’’ within Article III, under which a

federal question may arise. It is all the more applicable

in those areas of the law in which Congress has an ar-

ticulated policy of regulating a field such as energy. C/.

Mishkin, The Federal ‘‘Question’’ Jurisdiction of the

District Courts, 53 Coi.L.Rev. 157, 184-96 (1953).'°

Here the purpose of Congress in enacting this

jurisdictional authority is clear from the face of the

legislative history. TECA was created ‘‘[t]o funnel into

one court ai// the appeals arising out of the District Court

and thus gain a consistency of decision.’’ S. Rep. No.

92-507, 92d Cong., Ist Sess., reprinted in 1971 U.S.

Cope. Cona. & Ap. News 2283, 2292 (emphasis added).

'* Discussed below at pages 20-22.

'* The fact that both civil and criminal penalties under the EPAA

and criminal penalties under Title 18, form the basis for Petitioners’

appeal, does not place it outside the ken of the jurisdiction of

TECA since both these appeals ‘‘form a separate but parallel legal

ground for relief also sought in a substantial claim based on federal

law[s}.’’ United Mine Workers v. Gibbs, 383 U.S. at 722. Even were

it otherwise, TECA under the circumstances should have bifurcated

the energy and criminal provisions and considered the former pur-

suant to its very raison d'etre, rather than rejecting the appeal in

toto.

19

In addition, the basic dictates of judicial economy

require that all issues ‘‘arising under’’ the jurisdictional

grant of authority of §211(b)(2) be heard and ad-

judicated in the same proceeding. These pragmatic con-

siderations of jurisdiction have been traditionally upheld

in federal case law. See Shulthis v. McDougal, 225 U.S.

at 569; League to Save Lake Tahoe v. B.J.K. Corp., 547

F.2d at 1074.'° With respect to TECA’s appellate

jurisdiction in particular, this Court has previously plac-

ed its imprimatur on this interpretation, ruling that one

of the primary functions of TECA jurisdiction is to

assure ‘‘uniform interpretation of the substantive provi-

sions of the stabilization scheme.’’ Bray v. United

States, 423'U.S. 73, 74 (1975).

Manifestly, therefore, the will of Congress was

plainly enunciated in §211(b)(2) and to allow the strin-

gent jurisdictional interpretation by TECA to stand

‘‘would contravene the whole trend of jurisdictional

legislation by congress, disregard[ing] the effect of the

functioning of the federal judicial system and [would]

distort the limited procedural purpose of the ... Act.’’

'© One noted authority suggests that the relevent pragmatic con-

siderations include such matters as: ‘‘the extent of the case load in-

crease for federal trial courts if jurisdiction is recognized; the extent

to which cases of this class will, in practice, turn on issues of state

or federal law; the extent of the necessity for an expert federal

tribunal to handle issues of federal law that do arise; the extent of

necessity for a sympathetic federal tribunal in cases of this class.’

Cohen, The Broken Compass: The Requirement That a Case Arise

“Directly’’ Under Federal Law, 115 U.Pa.L.Rev. at 916 (emphasis

added). Petitioners submit that Congress was mindful of all of these

factors in creating the Temporary Emergency Court of Appeals and

in enacting its jurisdictional authority under the EPAA and that no

significant additional case load would develop by recognizing the

purpose and intent of Congress in creating this broader jurisdiction.

20

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. at

673-74,"

Moreover, as noted above, the federal courts may

assume ‘‘protective jurisdiction’’ over collateral issues

within the same jurisdictional grant. See National

Mutual Insurance Co. v. Tidewater Transfer Co., 337

U.S. 582, 600 (1949). Thus, pursuant to Chief Justice

Marshall’s opinion in the Osborn case, where he ruled

that Congress could authorize a bank chartered by it to

sue in federal court even though non-federal issues were

involved, so too Congress’ infusion of jurisdictional

power to TECA under the EPAA enables that court to

take collateral criminal issues under its own protective

jurisdiction. Consequently, when Congress passes a

statute granting federal jurisdiction, that jurisdictional

statute itself is a ‘‘law of the United States’? under

which, as here, a federal question may arise.'*

'’ Although Petitioners claim that appellate jurisdiction here is re-

quired, rather than ‘‘permitted,’’ Gully v. First National Bank in

Meridian, 299 U.S. at 115-16, it can also be argued that the jurisdic-

tional appellate remedy ‘‘will lie in the penumbra of express

statutory mandates.’’ Textile Workers Union y. Lincoln Mills, 353

U.S. at 457. See also Touche Ross & Co. v. Reddington, 99 §.Ct.

2479, 2485 (1979); Davis v. Passman, 99 S.Ct. 2264, 2274 (1979);

and Canon v. University of Chicago, 99 S.Ct. 1946, 1961 (1979).

'* This concept can be analogized to well-settled principle of pen-

dant federal jurisdiction. See United Mine Workers v. Gibbs, supra.

That two or more federal statutes are involved, rather than mixed

federal and state issues, does not make protective jurisdiction any

less applicable, any more than it would vitiate pendant jurisdiction.

That term has been applied where the issue involved, not state

claims joined to federal, but two federal claims normally handled

differently within the federal court system. See, e.g., Romero v. In-

ternational Terminal Operating Co., 358 U.S. at 380-81; Rozado v.

Wyman, 397 U.S. 397, 402-05 (1970). See generally, Kurland, The

Romero Case and Some Problems of Federal Jurisdiction, 73

Harv.L.Rev., 817, 833-50 (1960).

21

Protective jurisdiction, as noted, may be pasticularly

applicable in those areas which Congress has chosen

specifically to regulate and for which it has provided

both civil and criminal penalties. Therefore, if for no

other reason than the fact that criminal penalties may at-

tach, there can be no question as to these issues ‘‘arising

under federal statute,’’ thus invoking the jurisdiction of

the appropriate statutory court. This conclusion, of

course, springs from the black letter principle that there

are no federal common law crimes. See generally United

States v. George, 228 U.S. 14 (1913); United States v.

Eaton, 144 U.S. 677 (1892); United States v. Hudson &

Goodwin, 7 Cranch [11 U.S.] 32 (1812). Since federal

criminal prosecutions must therefore rest on an act of

Congress defining the crime, it is clear that all such cases

‘‘arise under’’ the laws of the United States within the

meaning of the statutory and constitutional grant of

jurisdiction to the federal court system. See Tennessee v.

Davis, 100 U.S. 257 (1879). As already noted, therefore,

jurisdiction will lie in any claim arising directly under an

act of Congress, involving the construction of that

statute. See Montana-Dakota Utilities Co. v. Nor-

thwestern Public Service Co., 341 U.S. 246, 249 (1951).'"

The denial of such plain and implicit jurisdiction by

an appellate court, should therefore result in this Court’s

granting certiorari and ultimately vacating the in-

termediate judgment so that the lower court may explore

'* Thus, jurisdiction here is all the more compelling when applied

to statutory and regulatory laws. The difference between the

broader concept of ‘‘arising under the laws of the United States’’

(including common law) and the narrower concept of ‘‘arising under

an act of Congress’’ (statutory law) is elaborated in Enders v.

American Patent Search Co., 535 F.2d 1085, 1088-89 (9th Cir.

1976). Compare Ivy Broadcasting Co. v. American Tel. & Tel. Co.,

391 F.2d 486, 492-93 (2d Cir. 1968).

22

more fully ‘‘the legal significance’’ of those claims raised

by Petitioners’ briefs below. See Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. at 677-78.

CONCLUSION

Based on the fact that the intermediate court, due to

its stringent interpretation of a clear statutory grant of

its own jurisdiction, did not exercise jurisdiction plainly

granted, thus depriving Petitioners of their right to due

process of law under the Fifth Amendment to the United

States Constitution, a writ of certiorari should issue to

the Temporary Emergency Court of Appeals so that this

Court may properly construe the jurisdictional statute.

Respectfully submitted,

JERRIS LEONARD

Of Counsel: Counsel of Record

James C, LANG Joun A. Fiexp, Ul

SNEAD, LANG, RONALD A. GOoopBREAD

ADAMS, HAMILTON JEROME R. SILVERBERG

Downie & BARNETT

Fourth Floor , JERRIS LEONARD &

Six East Fifth ASSOCIATES, P.C.

Tulsa, Oklahoma 74103 1700 Pennsylvania

(918) 583-3145 Avenue

Suite 550

B. HAYDEN CRAWFORD Washington, D.C. 20006

CRAWFORD, CROWE & (202) 872-1095

BAINBRIDGE sie

Suite 1714 Counsel for Petitioners

First National Bank

Tulsa, Oklahoma 74103

(918) 587-1128

July 23, 1981

c.j.b.

APPENDIX

APPENDIX

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Nos. 10-29 and 10-30

Unitep States Or America, Plaintiff-Appellee,

v.

W. DARRELL ZANG and Louis

Porter, Defendants-Appellants.

Before INGRAHAM, Estes and Peck, Judges.

Upon consideration of Appellants’ Petition for Rehearing

and Suggestion of Rehearing En Banc,

It Is HEREBY ORDERED that said Petition and Suggestion

are DenieD. The mandate shall be issued on July 1, 1981.

For THE Court:

RutH H. JACOBSON

Clerk

/s/ DONNA M. BOLD

Donna M. Bold

Chief Deputy Clerk

June 23, 1981

2a

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Nos. 10-29 and 10-30

Unitep States Or America, Plaintiff-Appellee,

Vv.

W. DARRELL ZANG and Louls

Porter, Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Oklahoma

(No. SOCR-33-E)

Decided: May 22, 1981

B. HaypeNn CrawrorpD, Crawford, Crowe & Bainbridge,

Tulsa, Oklahoma, HirAM EASTLAND, Crosthwait, Terney, No-

ble & Eastland, Indianola, Mississippi, JoHN A. Fre.p, III,

Jerris Leonard & Associates, P. C., Washington, D.C., and

James C. LANG, Sneed, Lang, Adams, Hamilton, Downie &

Barnett, Tulsa, Oklahoma, Attorneys for Appellants, W. Dar-

rell Zang and Louis Porter.

Husert H. Bryant, United States Attorney for the Northern

District of Oklahoma, Tulsa, Oklahoma, and STEPHEN P.

LEARNED, U.S. Department of Justice, Washington, D.C.,

Attorneys for Appellee, United States of America.

Before INGRAHAM, Estes, and Peck, Judges.

PER CURIAM:

Defendants-Appellants, W. Darrell Zang and Louis

Porter (hereinafter ‘‘Appellants’’), appeal from the order

entered on November 7, 1980 by the United States District

Court for the Northern District of Oklahoma over-ruling a

motion for judgment of acquittal, a motion for new trial, and

a motion in arrest of judgment from the judgment of convic-

tion and sentence of Appellants of sixteen counts of Title 18

3a

U.S.C. felony offenses, i.e., conspiracy, mail fraud, wire

fraud, and racketeering. An appeal of this action is also pen-

ding in the United States Court of Appeals for the Tenth Cir-

cuit (No. 80-2227).

The Court has carefully considered the motion of Ap-

pellee, United States, for dismissal of these appeals (Nos.

10-29 and 10-30), Appellants Zang and Porter’s response

thereto, and the Reply of the United States to the Memoran-

dum of Appellants in Opposition to the Motion to Dismiss

the Appeals. Based upon the reason and authority cited in this

Court’s decision of March 5, 1981 in TECA No. 10-26,

United States v. Zang and Porter, — F.2d — , the Court con-

cludes it has no jurisdiction of these appeals and that such ap-

peals should be dismissed for want of jurisdiction.

In TECA No. 10-26 we dismissed Appellants’ appeal of

an order entered July 18, 1980 by the United States District

Court for the Northern District of Oklahoma, which order

denied Appellants’ motions to dismiss a 16-count indictment

(Appendix A to TECA 10-26 opinion) charging both Ap-

pellants with violations of certain general criminal statutes, Ti-

tle 18 U.S.C. §371 (conspiracy), §§1341 and 2 (mail fraud and

principals), §§1343 and 2 (wire fraud and principals) and

§§1962(a) and 1963 [racketeering (RICO)].

In dismissing No. 10-26 we concluded that ‘‘this court

lacks jurisdiction of this appeal and, in any event, the order

of the district court appealed from ... was correct, and ap-

pellants’ request for issuance of this court’s writ of man-

damus ordering the district court to sustain their motions to

dismiss the indictment should be denied and that this appeal

should be dismissed.’’ Slip Op. 13.

Our opinion in 10-26 states:

‘(T]he Temporary Emergency Court of Appeals (TECA)

lacks jurisdiction of this appeal.

Section 211(b)(2) of the Economic Stabilization Act of

1970 (ESA) provides that the Temporary Emergency

Court of Appeals shall have ‘‘exclusive jurisdiction of all

4a

appeals from the district court of the United States in

cases and controversies ing under this title or under

regulations or opinions issued thereunder.’’ 12 U.S.C.

§1904 note supp.). Section 5(a)(1) of the Emergency

Petroleum Allocation Act (EPAA), as amended, 15 U.S.

§754, incorporates and carries forward this of special jur-

isdiction.

The district court’s July 18 order denying defendants’

motions to dismiss the indictment is ‘‘case or controversy

arising under the EPA amended.”’ The Title 18 offenses

charged in the indictment are not actions giving rise to

TECA jurisdiction even if connected with regulatory

violation United States v. Cooper, 482 F.2d 1393 (T

1973). In Cooper the defendant was indicted violations of

regulations promulgated by the Economic Stabilization

Act, by raising rents, failing to keep rent records, and by

taking retaliatory against tenants. He was also indicted

for making false statements in violation of 18 U.S.C.

§100 lying about rent increases. At trial Cooper was ac-

quitted on all counts except the false statement in viola-

tion of Title 18 U.S.C. §1001 and the charging him with

taking retaliatory action against tenants. He appealed the

conviction on these counts to the Ninth circuit which

transferred the case the TECA. TECA concluded as

follows:

‘‘We do not believe that the charge in 1, based on

18 U.S.C. §1001, arises within appellate jurisdiction

of the TECA. We with the premise that a conviction

under U.S.C. §1001 would be appealable only to a

court of appeals, under 28 U.S.C. §1291, unless the

Stabilization Act provides otherwise. We find

nothing in Section 211(b)(2), of the Act which so

provides. Section 211(b)(2) speaks of ‘controversies

arising under this title or under regulations or orders

issued thereunder.” We do not think that Count 1,

being based on 18 U.S.C. §1001, was a controversy

5a

‘arising under’ any title of the Stabilization Act or

under egulations or orders issued thereunder.

* * *

“The language in the Stabilization Act, ‘in cases

and controversies arising under this title’ would re-

quire a loose construction in order to cover the

charge in Count 1 of false representations on matters

of rent control. Such a loose construction is unaccep-

table in light of the traditional rule that courts of

special jurisdiction should strictly construe their

statutory grants of jurisdiction.

‘*Moreover, there is no indication that Congress

intended to include existing offenses, already covered

by Title 18, under the umbrella of the Stabilization

Act. There was surely no need for such double

coverage. The ordinary criminal statutes remain

available to the prosecutor, and in fact the pro-

secutor in this case used such statutes in the indict-

ment against Cooper. (Footnote omitted)

‘‘We therefore hold that the charge in Count 1,

based on 18 U.S.C. §1001, was not a case or con-

troversy arising under the Stabilization Act.’’ 482

F.2d at 1397-1398.

In Bray v. United States, 423 U.S. 73, 96 S.Ct. 307

(1975), the Supreme Court stated with reference to Section

211(b)(2) of the ESA, as amended:

“This judicial-review provision was designed to provide

speedy resolution of cases brought under the Act and ‘to

funnel into one court all the appeals arising out of the

District Courts and thus gain in consistency of decision.’

S.Rep. N 95-507, p. 10 (1971), U.S. Code Cong. & Ad-

min News 1971, pp. 2283, 2292.

* * *

‘‘Nothing in the Act or in its legislative history indicates

that Congress intended ‘to include existing offenses,

6a

already covered under Title under the umbrella of the

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

13 (TECA 1973). Review in the TECA of criminal con-

tempt convictions relating to compliary investigations or

enforcement efforts is not necessary to assure uniform in-

terpretation of the substantive provision of the stabiliza-

tion scheme. Indeed, a requirement of such review would

only serve to undermine the prompt regulation of

Stabilization Act questions by burdening the TECA with

additional appeals.’’ (Footnote omitted) 96 S.Ct. 307,

309. Slip Op. 6

Page 9 of the slip opinion adds:

‘Appellants [took] the position that TECA had jurisdic-

tion of this appeal because ‘the real ba of the controversy is

the EPAA (15 U.S.C. §7 et seq.)’ ... and ‘that U.S.C. §754

specification superseded or preempted the general criminal

statute’ ..., thereby making this a case arising under the

EPAA, as amended... .’’ Slip Op. 9.

This Court rejected that argument, stating:

The authorities cited in the district court order appeal-

ed from sustain the conclusion that the EPAA as amend-

ed in 15 U.S.C. §754 not supersede nor impliedly repeal

the application of the provisions of the criminal statute

with which defendants were charged in the indictment.

Slip Op. 10.

* * *

Appellants have failed to show that Congress intended,

in enacting the EPAA amendments of 1975, including 15

U.S.C. §754 which provides maximum misdemeanor

criminal penalties for violations of the EPAA and regula-

tions promulgated thereunder, to take away from the

American people the protections afforded by the federal

felony mail fraud, wire fraud, racketeering (RICO) and

conspiracy statutes simply because defendants’ conduct

may also violate the EPAA providing misdemeanor

7a

punishment with conditional one-year maximum term of

imprisonment. Slip Op. 13.

Appellants make the patently erroneous contention that

they were charged with willful violation of the EPAA miscer-

tification regulations. They were not so charged. They were

indicted by a grand jury, as mandated by the Fifth Amend-

ment to the Constitution of the United States, and convicted

in a jury trial of Title 18 U.S.C. felony offenses of con-

spiracy, mail and wire fraud and conducting a racketeering

enterprise. Their guilt or innocence of the issues framed by

the counts in that indictment are the only material dispositive

issues in this case. Appellants’ repeated efforts to have this

court take over jurisdiction of Zang and Porter’s appeals have

resulted in delay in the disposition of these appeals by the

Tenth Circuit Court of Appeals upon which Congress has ex-

pressly conferred jurisdiction under 28 U.S.C. §1291, and it is

inimical to the goal of expeditious review of criminal cases for

this Court to interfere with the Tenth Circuit Court in the

disposition of these appeals.

Appellants’ reliance on cases like Citronelle-Mobile

Gathering Inc v. Gulf Oil Corp., 591 F.2d 711 (TECA 1979),

cert. denied, 444 U.S. 879, is misplaced. In that case

Citronelle sued Gulf for the contract price of crude oil, and

Gulf raised the affirmative defense of illegality of such price

under the EPAA pricing regulations. The court in Citronelle

stated:

‘(T]he resolution of the litigation in its enti requires ap-

plication and interpretation of the EPAA of 1973, as

amended Septeinber 29, 975... . ‘[C]onstruction of the

EPAA ... will control the litigation,’ the determination

of the proper price for crude oil in this case depends on

the retroactive application vel non of the EPAA amend-

ment Citronelle-Mobile, supra, at 716.

Appellants in the instant litigation raised no such affirmative

defense. Obviously; a resolution of an issue where Zang and

Porter violated an EPAA misdemeanor certification regula-

8a

tion would not ‘‘resolve this [felony] litigation * in its

entirety.’

TECA has uniformly applied the traditional rule ‘‘courts

of special jurisdiction should strictly construct their statutory

grants of jurisdiction.’ Texaco v. D.C. 616 F.2d 1193, 1197

(TECA 1979), quoting United States v. Cooper, 482 F.2d

1393, 1398 (TECA 1973).

It is therefore ORDERED and ADJUDGED that appeals of

Appellants, Zang and Porter, in TECA 10-29 and 10-30 be

and are hereby DismisseED IN WANT OF JURISDICTION.

* “(O}f a far more general and important character, essential to

the security of the [nation].’’ This court’s opinion, p. 10, in TECA

No. 10-26, United States v. Zang and Porter, — F.2d —-, citing

Wood v. United States 41 U.S. 342, 366 (1842).