# Petition — Zang v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 864

## Text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2588%3A1. Public record. Not legal advice.