Petition for Writ of Certiorari — Exxon Corp. v. United States

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Supreme Court. U.S.

FIL Ep

No. 85- : SEP 14 14985

SS See.

CLERK |

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1985

MARATHON PETROLEUM COMPANY, MOBIL OIL CORPORA-

TION, MURPHY OIL CORPORATION, ASHLAND OIL, INC.,

PENNZOIL COMPANY, TENNECO OI. COMPANY AND

Tosco CORPORATION,

Petitioners,

Vv.

UNITED STATES OF AMERICA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Of Counsel: R. BRUCE MCLEAN, P.C. \

JOHN A. EVANS DANIEL JOSEPH, P.C.*

MARATHON PETROLEUM Davip A. HOLZWORTH

COMPANY AKIN, GUMP, STRAUSS, HAUER

539 South Main Street AND FELD

Findlay, Ohio 45840 13833 New Hampshire Ave., N.W.

(419) 422-2121 Washington, D.C. 20036

* S Counsel for

GAIL F. SCHULZ

Mosix O1L CorPORATION Marathon Petroleum Company

3225 Gallows Road Mobil Oil Corporation

Fairfax, Virginia 22037 Murphy Oil Corporation

(703) 849-3000

H. Y. ROWE

W. BAYLESS ROWE

MURPHY OIL CORPORATION

200 Peach Street

FE] Dorado, Arkansas 71730

(501) 862-6411 * Counsel of Record

[Other counsel for petitioners are listed on the inside front cover. |

LTT EE LI TEE EEE SETED, BR A A PENI Re AN ry

WLSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

Y ) 7

Of Counsel:

ROBERT H. COMPTON

ASHLAND PETROLEUM

COMPANY

P.O. Box 391

Ashland, Kentucky 41114

(606) 329-3735

JAMES W. SHADDIX

PENNZOIL COMPANY

P.O. Box 2967

Houston, Texas 77001

(713) 546-8431

RALPH J. MAYNARD

ALFRED B. SMITH, JR.

TENNECO OIL COMPANY

P.O. Box 2511

Houston, Texas 77002

(713) 757-4249

ERIC SCHWARTZ

Tosco CORPORATION

2401 Colorado Avenue

Santa Monica, California

90406-24060"

(213) 207-7083

THOMAS A. DONOVAN

JUDITH A. MACKAREY

KIRKPATRICK & LOCKHART

1500 Oliver Building

Pittsburgh, Pennsylvania 15222

(412) 355-6500

Counsel for

Ashland Oil, Inc.

JOHN P. MATHIS

CATHERINE C. WAKELYN

BAKER & BoTTS

1701 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 457-5500

Counsel for

Pennzoil Company and

Tenneco Oil Company

KENNETH L. BACHMAN, JR.

EUGENE M. Goott

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N Street, N.W

Washington, D.C. 20036

(202) 728-2700

Counsel for Tosco Corporation

QUESTION PRESENTED

Whether a federal court may discharge its statutory

mandate to effect restitution by awarding a money judg-

ment of two billion dollars to state governments who

have made no claim or proof of loss:

(a) without first providing notice or opportunity

to persons claiming loss to prove their entitle-

ment to a portion of the restitution fund; and

(b) on a finding unsupported by record evidence

and contested by persons claiming loss that it

would be “futile” to look for persons actually

sustaining loss.

(i)

TABLE OF CONTENTS

QUESTION PRESENTED _oo....ccccc. 0 cccccccecccsececeeceeeeeees

RE I MRT UIUEE UID sone ncicncvesseisssecssecesoncnsnaecwssenes

I sco nacecanpsvasnasenachncnesivanseesninnsn heeataneches

aa iil saccsnnnnsakicidannananeannnent

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES AND REGULATIONS INVOLVED ..........

STATEMENT OF THE CASE. ........................0..csceeesceesss

The Basis For Imposing Liability —.....................

The District Court’s “Stay’’ Of Applications To

RE SEs a

The Basis Of The District Court’s Remedy........

Proceedings In The Court Of Appeals -............. on

REASONS FOR GRANTING THE PETITION ........

THE DECISION BELOW CONFLICTS WITH

THIS COURT’S HOLDINGS DEFINING RES-

TITUTION AND HOLDING THAT A FED-

ERAL COURT MAY NOT DISTRIBUTE A

COURT CREATED FUND WITHOUT PRO-

VIDING NOTICE AND AN OPPORTUNITY

TO BE HEARD TO POTENTIAL CLAIM-

SITIES Tdi Taaicnaiis tanchnltiadasaaiesdabaenndiniveaahiisipeipenAdaenwiabscnnnnsinns

A. The Remedy Approved By The Court Of Ap-

peals Does Not Constitute Restitution As

i Bey | Ee, nee

B. The Court Of Appeals Ignored Procedural

Safeguards Compelled By This Court’s De-

EE UE IR Oe ee

TABLE OF CONTENTS—Continued

ll. THE DECISION BELOW CONFLICTS WITH

THIS COURT’S HOLDINGS THAT A SUM-

MARY JUDGMENT REMEDY MAY NOT BE

SUSTAINED WHEN A DISPUTED ISSUE

OF MATERIAL FACT REMAINS, AND IN

THE TOTAL ABSENCE OF SUPPORTING

RECORD EVIDENCE. ............--......-....-..-....00000--+-

CIN acne senses secs ens enctestesnieren eeeninnnamnnnpeni

Page

(

TABLE OF AUTHORITIES

CASES: Page

Ashland Oil, Inc. v. Department of Energy, 760

Pf © ga . +) Sh. | RES cn ee 21

Central States Electric Co. v. City of Muscatine,

324 U.S. 188 (1945) .......... ines iakcandasbuebani crashed 10, 12, 20

Citronelle-Mobile Gathering, Inc. v. Edwards, 669

F.2d 717, cert. denied, 459 U.S. 877 (1982)........ 16

City of Philadelphia v. American Oil Co., 53

pf 8 ee gf Se. y 5 A Ocenen eee 18

Donovan v. Universitu of Texas, 643 F.2d 1201

I ss 17

Eastern Airlines, Inc. v. Atiantic Richfield Co.,

GOD FOr GOT CEA LOTOD ovnccccccescccncscnccnccececesssss 24

Eastman Kodak Co. v. Southern Photo Materials

mp i te ee eA ees 17

Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152

EUTIUIIE.siciinshccuaiatnsebnictetiatlocsbatsncalastasntianiasaducteataiaes ai 15

Federal Power Commission v. Interstate Natural

Gas Co., 336 U.S. 577 (1949) 0000... 10, 12, 16, 20, 24

Hanover Shoe, Inc. v. United Shoe Machinery Co.,

of! | RR Unry oie ot! Fee ID 18, 24

Hawaii v. Standard Oii Co. of California, 405

8 ee eee ee ee ek TNS 18

Hodgson v. Y. B. Quinada, 498 F.2d 5 (9th Cir.

SPUD -shcecehcinuiahectehpinrilsibnteashastbtc cei ie Cn 17

Hodgson v. Wheaton Glass Co., 446 F.2d 527 (3d

GA: TOD cicicveiitissldtint tie eee nL 17

Illinois Brick Co. v. Illinois, 481 U.S. 720 (1977)... 24

In re: Department of Energy Stripper Well

Exemption Litigation, 578 F. Supp. 586 (D. Kan.

SOD cskec:sniticinnbiinsplalcdeti tinier aee eae ES OnE e 21

In re: Folding Carton Antitrust Litigation, 744

eR By Et incre mane 17

Kennedy v. Silas Mason Co., 334 U.S. 249 (1948) .... 22

Marshali v. Quik-Trip Corp., 672 F.2d 801 (10th

GPs SINE hiciauibcedninia sagas ea ea 17

Panhandle Eastern Pipe Line Co. v. Federal

Power Commission, 179 F.2d 896 (8th Cir.

PROUT Sicccspotticdtiiiia ilealee cate oleae ne 17

Pasco, Inc. v. Federal Energy Administration, 525

F.2d 1891 (TECA 1975) a 6

TABLE OF AUTHORITIES—Continued

Page

Porter v. Warner Holding Co., 328 U.S. 395

ERIOUT . cnicsebieiecitiaenniibeienaianinal 10, 12, 14, 15, 16

Tumey v. Ohio, 273 U.S. 510 (1927) ......................... 21

Union Oil Company of California v. Department

of Energy, 688 F.2d 797 (TECA 1982), cert.

denied, 469 U.S. 1202 (1983) ............................... 6

United States v. Klein, 303 U.S. 276 (1938)........ 17

United States ». Lieb, 333 F. Supp. 424 (W.D.

Tex. 1971), aff'd, 462 F.2d 1161 (TECA 1972). 15

United States v. Morgan, 307 U.S. 183 (1939)... 10, 12

United States v. Sutton, F. Supp. —— (N.D.

Oe | Fee 14

Van Gemert v. Boeing Co., 739 F.2d 730 (2d Cir.

TEIN Scenssccvnciaatebbindebesaelidaditeainininaidnin 17

CONSTITUTIONAL PROVISIONS:

U.S. Constitution, Fifth Amendment .................... 2

STATUTES:

Economic Stabilization Act,

Pub. L. No. 92-210, 85 Stat. 743 (1971),

al 2, 3, 12, 15, 16

FS RRR RE aT ee aes 18

I anki ccaecannaeheshhninebiohienstioaiigiiaen 2

Emergency Petroleum Allocation Act,

Pub. L. No. 93-159, 87 Stat. 627 (1973),

I I isthe ehdcesientdellenialitalnatiil 2,18

The Warner Amendment,

Pub. L. No. 97-377, 96 Stat. 1830 (1982),

SI SII steisshcescicsieniceuhtnescaicsicinsariteciaaitbdadeilageetanlll 8, 9,19

U.S. CODE:

Ee ee ts Be II siichicccecscincnanneasdoenditeelceianidiainealiads 15

Be i IES cdlicsnsisiscesrscsnstiiiverpencherniantianstitaaideahiiieaninaeiiadies 2

a ee Be I sennrvensunecsictseapsteuasmiaiiabiasineapeasian 3, 12, 16

i IEE is isninisniindcninandssinmetibeieiediieniendentiaansaaeaie 8

Se a eI, «i sceseueecisieredeasenaanniene 8

42 U.S.C. § 7001 8

42 U.S.C. § 8621 8

ttt ee eee ee eee es

vii

TABLE OF AUTHORITIES—Continued

FEDERAL RULES OF CIVIL PROCEDURE: Page

NE a a shi asiiainsineoneamneien 11

TILDE D API SOR RON ll

| nhaeaiiinsiamucanaceeeicoennns 11, 22

SR a seceliaaeialateetl 4

OPINIONS OF THE COMPTROLLER GENERAL:

B-200170 (October 10, 1980) ...................... 18

Sy IE Oe I onic ccccccssesunsncsccssasesasencabonne 18

B-209600 (May 19, 1983) .................. ten 18

CODE OF FEDERAL REGULATIONS:

10 C.F.R. § 211.67 (1975) —........ Cane Re STC I en 6

10 C.F.R. § 212 Subpart V (1981) 0.0... 21

I re is Oe I ical cnincrvenssenennetsnssnstentsiansnitns 4

10 C.F.R. § 212.74 (1975) ..... SEER SO ie be 4

a I I on caacsccnnennnnqnncs otenseocenuionsese 6

FEDERAL REGISTER:

41 Fed. Reg. 13898 (April 1, 1976) 0. 23

41 Fed. Reg. 24516 (June 16, 1976) 23

41 Fed. Reg. 24518 (June 16, 1976) 0. 23

41 Fed. Reg. 30096 (July 22, 1976) —....0.. 23

41 Fed. Reg. 40451 (September 20, 1976) 23

44 Fed. Reg. 7070 (February 5, cet ETN 23

44 Fed. Reg. 12634 (March 8, 1979)... 23

44 Fed. Reg. 70118 (December 6, 1979) 23

50 Fed. Reg. 27400 (July 2, 1985) 00 13, 14, 21

LAW REVIEW ARTICLES:

Durand, An Economic Analysis cf Fluid Class Re-

covery Mechanisms, 34 Stan. L. Rev. 173 (No-

I Te 19

Nash, Collecting Overcharges From the Oil Com-

panies: The Department of Energy’s Restitu-

tionary Obligation, 32 Stan. L. Rev. 1039 (May

1980)

Sedetieittiit tiie ee) ee

viii

TABLE OF AUTHORITIES—Continued

TREATISES: Page

Restatement of Restitution § 1 ef seq. (19387) ........ 16

LEGISLATIVE MATERIALS:

128 Cong. Rec. 15116 (December 16, 1982) (daily

5 AE Se Ney en ee 19

128 Cong. Rec. 10435 (Decembsr 20, 1982) (daily

RD ccccccnsssnesaniniedonhtinnncnincnasinabnaienentaisneptaeisantasanmnmnesihanteetn 19

S. Rep. No. 507, 92d Cong., lst Sess., reprinted in

1971 U.S. Code Cong. & Ad. News 2283 .............. - 15

Hearing before the Subcommittee on Fnergy and

Power of the Committee on Interstate and For-

eign Commerce, House of Representatives, © * ‘

Cong., 2d Sess., on Settlements By the Depart

ment of Energy on Overcharges Within the

Petroleum Industry (October 14, 1980) -.......... 18

MISCELLANEOUS:

Energy Data Reports: Petroleum Statement,

Monthly, Prepared for the Office of Oil and Gas

Statistics of DOE (April 1980) —.......................... 23

IN THE

Suprene Court of the United States

OCTOBER TERM, 1985

No. 85-

MARATHON PETROLEUM COMPANY, MOBIL OIL CORPORA-

TICN, MURPHY OIL CORPORATION, ASHLAND OIL, INC.,

PENNZOIL COMPANY, TENNECO OIL COMPANY AND

Tosco CORPORATION,

. Petitioners,

UNITED STATES OF AMERICA, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

TEMPORARY EMERGENCY COURT OF APPEALS

OF THE UNITED STATES

Marathon Petroleum Company, Mobil Oil Corporation,

Murphy Oil Corporation, Ashland Oil, Ine., Pennzoil

Company, Tenneco Oil Company and Tosco Corporation,

hereby petition for a writ of certiorari to the Temporary

Emergency Court of Appeals of the United States

(“TECA”) in this case.

OPTNION BELOW

The opinion of the court of appeals is not yet re-

ported. The opinion of the district court appears at

561 F. Supp. 816.2

' The I'sts of parent, affiliate, and subsidiary companies required

by this Court’s Rule 28.1 appear in Appendices VIII-XIV.

* The opinions of the court of appeals and the district court are

contained in the Appendix to the petition for certiorari filed by

JURISDICTION

The judgment of the court of appeals was entered on

July A. 1985. Rehearing was denied on August 15,

1985. Ex. App. 269a. This Court’s jurisdiction is in-

voked under Section 211(g) of the Economic Stabiliza-

tion Act of 1970 (“ESA”), as amended, Pub. L. No. 92-

210, 85 Stat. 743, 12 U.S.C. § 1°94 note, as incorporated

by Section 5(a) (1) of the Emergency Petroleum Alloca-

tion Act of 1973, Pub. L. No. 93-159, 87 Stat. 627, 633,

15 U.S.C. § 754.

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES AND REGULATIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion in pertinent part provides:

No percun shall . . . be deprived of life, liberty, or

property, without due process of law, nor shall pri-

vate property be taken for public use, without just

compensation.

Section 209 Pub. L. No. 92-210, 85 Stat. 743 of the

Economic Stabilization Act of 1970, as amended, 12

U.S.C. § 1904 note, as incorporated by Section 5(a) (1)

of the Emergency Petroleum Allocation Act of 1973, Pub.

L. No. 93-159, 87 Stat. 627, 637, 15 U.S.C. § 754, in per-

tinent part provides:

Whenever it appears to any person authorized by

the President to exercise authority under this title

that any individual or organization has engaged, is

engaged, or is about to engage in any acts or prac-

tices constituting a violation of any order or regula-

tion under this title, such person may request the

Exxon Corporation that seeks review of the same court of appeals

decision of which review is sought here. Exxon Corp. v. United

States, No. 85- . References to those opinions herein are to

that Appendix, designated by “Ex. App. ” References to the

Appendix to this Petition are designated by “App. ——.”

Attorney General to bring an action in the appro-

priate district court of the United States to enjoin

such acts or practices, and upon a proper showing a

temporary restraining order or a preliminary or

permanent injunction shall be granted without bond.

Any such court may also issue mandatory injunc-

tions commanding any person to comply with any

such order or regulation. In addition to such injunc-

tive relief, the court may also order restitution of

moneys received in violation of any such order or

regulatien.

28 U.S.C. § 2041 provides:

All moneys paid into any court of the United

States, or received by the officers thereof, in any case

pending or adjudicated in such court, shall be forth-

with deposited with the Treasuver of the United

States or a designated depositary, in the name and

to the credit of such court.

This section shall not prevent the delivery of any

such money to the rightful owners upon security,

according to agreement of ; irties, under the direc-

tion of the court.

28 U.S.C. § 2042 provides

No money deposited [under section 2041 of this

title] shall be withdrawn except by order of court.

In every case in which the right to withdraw

money deposited in court [under section 2041] has

been adjudicated or is not in dispute and such money

has remained so deposited for at ieast five years

unclaimed by the person entitled thereto, such court

shall cause such money to be deposited in the Treas-

ury in the name and to the credit of the United

States. Any claimant entitled to any such money

may, on petition to the court and upon notice to the

United States attorney and full proof of the right

thereto, obtain an order directing payment to him.

Fed. R. Civ. P. 56(c) in pertinent part provides:

The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the aff-

davits, if any; show that there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law.

STATEMENT OF THE CASE

The unprecedented remedy imposed sua sponte by the

district court and affirmed by the majority of the court

of appeals would award the largest money judgment ever

entered against a private firm—nearly $2 billion, includ-

ing interest—to state governments for expenditure in

various energy aid and conservation programs, on the

basis of an unsupported finding that the persons actually

injured by the overcharges could not be identified.

A. The Basis For Imposing Liability

Granting the government’s motion for summary judg-

ment, the district court found, and the court of appeals

affirmed, that Exxon had violated the domestic crude oil

regulations contained in 10 C.F.R. Sections 212.73, 212.74

(1975) in overpricing crude oil produced and sold from a

unitized field known as the Hawkins Field Unit (“HFU”)

located near Tyler, Texas. The overcharges resulted

from placing volumes of crude oil in “upper tier” and

“exempt” categories, for which higher prices could be

charged, from January 1975 until the end of controls in

January 1981. The district court found, and the court of

appeals affirmed, that as operator of the HFU Exxon

“had caused, and is fully liable for, the violations” and

accordingly imposed liability for all overcharges arising

from the violations—approximately $2 billion with in-

terest included. Ex. App. 55a.

Petitioners do not challenge the finding of liability.

Indeed, petitioners believe that they were damaged by

these overcharges and have sought, but have been denied,

the opportunity to prove Petitioners limit their peti-

tion for certiorari to qu © :vns involving the remedy.

B. The District Court’s “Stay” Of Applications To

Intervene

Although the United States filed suit on June 8, 1978,

the remedy issue: was not briefed by either party until

September 1, 1982 and briefing was not completed until

October 6, 1982. In that briefing the United States

urged the district court to order payment of the judg-

ment into the U.S. Treasury without first conducting a

remedial proceeding to ascertain who had been injured

by the HUF overcharges. For this reason, petitioners

Pennzoil Company, Tenneco Oil Company, Ashland Oil,

Inc., and Tosco Corporation applied conditionally to inter-

vene in the district court on November 24, 1982, seeking

to be heard on remedy questions.* On December 15, 1982,

the district court stayed consideration of these requests,

ordering that “there shall be no filing of briefs amicus

curiae or responses thereto by the potential] intervenors

or the parties, respectively, concerning remedial issues

untii further order of this court.” App. 4a (emphasis

added). Petitioners Marathon, Mobil and Murphy had

% On December 5, 1980, Exxon had filed a Petition and Counter-

claim for Interpleader and Declaratory Relief requesting that Mobil

and Tosco, along with other purchasers of Hawkins Field crude oil

and certain other working interest and royalty interest owners in

the Hawkins Field, be interpled as defendants because of the com-

peting nature of their claims and the claims of DOE to the alieged

overcharges. On February 5, 1981, the district court sua sponte

deferred the presentation and consideration of the interpled parties’

claims “until a later time,” if and when Exxon’s liability for the

overcharges was established. App. 3a. The district court ordered

the defendants named in Exxon’s Interpleader Petition, including

Mobil and Tosco, to “answer or otherwise respond within 20 days

from the date of service of notice by this Court that such answers

or other responses shall be filed.” App. 3a. No such notice was ever

given and the stay of the interpleader action was never lifted, nor

was it even addressed in the final decision of the district court or

the majority opinion below.

actively considered intervention, but were dissuaded by

the district court’s order of December 15. The district

court thus led petitioners to believe that it would provide

notice and a hearing to potential claimants before the

remedy issue would be decided. However, on March 25,

1983, the district court issued its summary judgment on

both liability and remedy without ever entering a “fur-

ther order” giving notice to potential claimants or pro-

viding opportunity for claims of injury to be heard. In

a brief footnote, the district court denied the motion of

petitioners Ashland, Pennzoil, Tenneco and Tosco to in-

tervene. Ex. App. 249a-250a n.56.

C. The Basis Of The District Court’s Remedy

The district court held, and all parties agreed, that the

burden of the HFU overcharges was initially spread by

the purchasers of the HFU crude oi} to all refiners by

means of the Entitlements Program. 10 C.F.R. § 211.67

(1975). However, the district court went further and

assumed, without any record evidence, that refiners still

were not injured because the DOE price controls cover-

ing sales of refined products by refiners (10 C.F.R.

§ 212.83) permitted refiners to pass on their increased

post-entitlement crude costs attributable to the HFU

4 Ex. App. 247a. Almost all domestic crude oil is ultimately pur-

chased by refiners for refining into petroleum products. The En-

titlements Program was intended to equalize the benefits of access

to price-controlled domestic crude oil by requiring refiners with

greater than average access to such oil to purchase entitlements

from refiners with less than average access, thereby roughly equaliz-

ing the cost of all crude oil refined in the United States. See Union

Oil Company of California v. Department of Energy, 688 F.2d 797

(TECA), cert. denied, 459 U.S. 1202 (1983); Pasco Inc. v. Federal

Energy Administration, 525 F.2d 1391, 1895 (TECA 1975). As

the direct result of misclassification of crude oil from the HFU,

the amount of price-controlled crude oil reported to the Entitle-

ments Program was decreased, and the pool of price-controlled crude

to be spread among all refiners was diminished, raising each re-

finer’s post-entitlement cost of crude oil. Ex. App. 87a.

overcharges in refined product sales. The district court

further assumed that because this passthrough could oc-

cur, it did occur at all levels of the indus .y, so that the

“ultimate consumer” bore all of the cost of the HFU

overcharges. But the district court failed to account for

the fact (perhaps through ignorance caused by its fail-

ure to accept briefing from interested parties) that most

refined products—including diesel fuel, home heating oil,

boiler fuel (called “residual fuel oil’), jet fuel and as-

phalt—were not subject to price controls at virtually all

relevant times. (See footnote 19, infra.) Thus, the

court’s conclusion that a regulatory control mechanism

operated to effectuate cost passthrough in sales of these

products was erroneous.

Moreover, whether any HFU overcharges were in fact

passed through by refiners to their customers even in

sales of controlled products is a disputed issue of mate-

rial fact. DOE’s regulations did not set prices that had

to be charged. Rather, they set maximum prices only,

based on refiners’ costs, including costs of crude oil.

Market forces could and generally did cause refined prod-

ucts to sell below the maximum price. Thus it is not

clear that the HFU overcharges, which raised refiners’

crude oil costs and therefore raised their maximum prices

for controlled products, meant that a refiner would charge

a higher actual price for a controlled product. These

issues were expressly raised in Exxon’s opposition to the

United States’ motion for summary judgment.*

The district court then found, without evidence, that

overcharges borne by each “ultimate consumer” could not

* Indeed, the United States carefully refrained from arguing

that all HFU overcharges were borne by ultimate consumers, con-

ceding that “all domestic refiners, resellers, retailers and consumers

were overcharged as a consequence of Exxon’s violations.” Brief of

Plaintiff United States in Support of Summary Judgment in

the district court at 151-152. Thus, the United States conceded

that refiners, like petitioners, were one group among several that

sustained overcharges.

be ascertained. The judgment directed Exxon to pay

the full amount of the HFU overcharges plus interest

to the federal Treasury for deposit to an escrow account,

to be distributed to the states as additional money avail-

able using the Warner Amendment mechanism." This was

an idea of the court, not suggested by any party. App. 9a.

The Warner Amendment was an otherwise inapplicable

statute under which Congress had earlier made a one-

time-only appropriation of $200 million (a tenth of the

amount at issue here) in funds collected by the DOE

in consented settlements of EPAA enforcement proceed-

ings. Congress required the states to expend these funds

for five energy assistance programs whose designated

beneficiaries consist primarily of hospitals, public schools

and low income families.‘

The district court did not purport to find that the

intended beneficiaries of the judgment remedy had in

fact sustained any of the HFU overcharges. Rather, the

district court invoked “broad equitable power to order

restitution” which it asserted was not limited “to a par-

ticularly strict interpretation of restitution.” Ex. App.

256a. The district court asserted that the remedy would

serve the purpose of the price regulations “to relieve con-

sumers of some of the burden of towering oil costs... .

either by reducing overall consumption through conserva-

tion or by direct financial assistance to those most in

need.” Ex. App. 257a. On this basis alone, the district

® Section 155 of Pub. L. No. 97-377, 96 Stat. 1830, 1919 (1982).

7 The designated programs were: Weatherization Assistance Pro-

gram for Low Income Housing, 42 U.S.C. § 6861, et seq.; State

Energy Conservation Plans, 42 U.S.C. § 6321; Energy Conservation

Program for Schools and Hospitals, 42 U.S.C. § 6371; Energy Ex-

tension Service, 42 U.S.C. § 7001; Low Income Home Energy As-

sistance, 42 U.S.C. § 8621. As Judge Becker noted in dissent in

the court of appeals (Ex. App. 157a-166a), the states’ distribution

of the Warner Amendment funds was criticized by the General

Accounting Office for failing to conform to accounting procedures

that would insure that the funds were properly spent.

court asserted that its remedy was “the most appropri-

ate remedy in the circumstances of this case.” Id.

On April 6, 1983, petitioners Ashland, Tosco, Tenneco

and Pennzoil, among others, moved for reconsideration

of the district court’s denial of their motion to intervene.

On April 11, 1983, the district court granted in part the

motion for reconsideration and permitted those petition-

ers to intervene as a matter of right solely to appeal the

remedy issues. App. 5a.

On April 14, 1983, petitioners Marathon, Mobii and

Murphy moved to intervene as a matter of right, urging

the district court to reconsider its erroneous factual find-

ings on the impact of the overcharges and the lack of

factual and legal basis for the judgment remedy, and

alternatively seeking intervention for appeal. On April

29, 1983, the district court granted these petitioners’ mo-

tion to intervene and retailers’ similar motions, but solely

to appeal the judgment remedy described in the opinion.

App. 6a, 1la. The court did not conduct further proceed-

ings on the disputed factual issues underlying the remedy

before entering final judgment on June 7, 1983, adopting

without substantive alteration the Warner Amendment

remedy described in its opinion.

D. Proceedings In The Court Of Appeals

The court of appeals majority upheld the district court

remedy even though it declined to endorse the district

court’s conclusion that ultimate consumers had, in fact,

borne all overcharges. The majority based its affirmance

exclusively on the rationale “that any attempt to trace

increased costs atributable to the HFU overcharges ...

would be futile.” Ex. App. 88a. The majority also held

that the district court had been correct in arriving at

its decision without granting intervention to persons

claiming injury. Without elaboration, the majority then

affirmed the remedy as “a reasonable method of com-

pensating the consuming public for the HFU _ over-

charges.” Ex. App. 91a.

There was, of course, no evidentiary support for this

conclusion either. The court of appeals held that the initial

burden of HFU crude oil overcharges had been spread

among refiners by the Entitlements Program. However,

the majority, while holding that the DOE price control

“regulatory system” permitted refiners “tu pass inrough

increased costs to their customers” (Ex. App. 87a), also

ignored the fact that most refined products were decon-

trolled. Therefore, most of the “regulatory system” re-

lied on by the majority as effecting passthrough simply

did not exist. As to controlled refined products, the ma-

jority seemed to admit that refiners might not have been

permitted by the marketplace to use control mechanisms

to pass the increased costs through to customers, but held

that this was impossible to prove. Ex. App. 89a.

In a lengthy dissent, Judge Becker took exception to

the affirmance of the district court remedy. Relying

principally upon this Court’s decisions in Porter v. War-

ner Holding Co., 328 U.S. 395 (1946), United States v.

Morgan, 307 U.S. 183 (1939), Federal Power Commis-

sion v. Interstate Natural Gas Co., 336 U.S. 577 (1949)

and Central States Electric Co. v. Muscatine, 324 USS.

138 (1945), Judge Becker faulted the district court for

failing to discharge its responsibility to dispose of the

fund created by its decision in accordance with law. Ex.

App. 94a-110a. “That responsibility plainly cannot be

discharged by payment of the fund to those who show no

loss ....” Interstate Natural Gas, supra, 336 U.S. at

582 (emphasis added in dissent: ux. App. 101la-102a).

Judge Becker criticized the district court for its fail-

ure even to permit good faith claimants to the over

charge fund to intervene in the case prior to the imposi-

tion of a remedy. Ex. App. 128a ff. Noting that peti-

tioners and others were granted intervention as a matter

of right following entry of judgment (App. 6a), he con-

cluded that even the district court had recognized that

petitioners were! real parties in interest. He reasoned

that the failure of the district court to notify potential

claimants and afford them a hearing on their claims de-

prived them of a due process right (Ex. App. 122a ff.)

and contravened the policies underlying Fed. R. Civ. P.

Rules 19 and 24 requiring joinder and intervention as of

right of parties asserting a claim or interest in funds

controlled by the court. See also App. 9a.

Judge Becker further criticized the district court con-

clusion, relied upon by the majority in affirming the

remedy, that it was impossible to identify the victims of

the overcharges. In Judge Becker’s words “{n]o proof

exists in the record to support this factual conclusion;

nor is any supporting proof cited by the District Court.”

Ex. App. 143a-144a. At a minimum, Judge Becker rea-

soned, the district court ignored the requirement of Fed.

R. Civ. P. 56 that summary judgment be based on record

evidence and the absence of a material disputed issue of

fact. Thus, “[t]he District Court did in fact, if not in

name, issue an unauthorized summary judgment on

restitution issues, made easier by the limitations on the

scope of intervention, the time of intervention and the

stay of the interpleader issues, all without hearing those

claiming to be victims of the violations of law by Exxon.”

Ex. App. 145a. Accordingly, Judge Becker would have

remanded the remedy issue for the development of a

record, after notice and hearing, on which a proper

award of restitution could be based. Ex. App. 168a.

Petitions for rehearing were timely filed and denied

without comment by the court of appeals on August 15,

1985. Ex. App. 269a.

REASONS FOR GRANTING THE PETITION

The judgment in the present case awards $2 billion as

“restitution” and sets a precedent for disposition of very

large sums in other cases (see footnote 8). In affirming

the award of this vast sum, the Temporary Emergency

Court of Appeals departed from its own precedent, ig-

nored controlling decisions of this Court and other courts

of appeals concerning substantive and procedural rights

of persons claiming injury, and also permitted state gov-

ernments, who neither ciaimed nor established injury, to

receive the funds. The size of the judgment, the utter

disregard of controlling precedent, and the unprecedented

nature of the award all merit review by this Court.

In Section 209 of the Economic Stabilization Act Con-

gress mandated that courts apply the familiar concept

of restitution that this Court and other courts had pre-

viously used in effecting a remedy in similar cases arising

from price overcharges. Porter, supra; Morgan, supra;

Central States, supra; Interstate Natural Gas, supra.

Under those decisions, the court must provide notice and

an opportunity for parties claiming injury to be heard,

the fund must be held in court for a reasonable time to

permit claimants to come forward, and the sums must

be paid to injured persons or held in the Treasury pur-

suant to 28 U.S.C. § 2041-2042. Payment to persons not

injured by the overcharges does not constitute restitu-

tion. Interstate Natural Gas, supra.

The court of appeals violated every one of those con-

trolling doctrines in the present case. It affirmed a deci-

sion in which the district court had actively exeluded

and discouraged the intervention of persons claiming in-

jury. Thus losing the benefit of their evidence and views,

the court of appeals held without any record that it would

be impossible to identify and make restitution to any in-

jured persons. Rather than permit anyone to try, the

court of appeals made the wholly legislative determina-

tion, again without any record at all, that it was “equi-

table” for state governments to receive the money so that

they could spend more on certain programs for which

Congress had once designated other, much lesser, sums to

be spent. There was no precedent, finding, or evidence

of injury to support this remedy.

Nor did the court of appeals provide any legal ra-

tionale for its decision. Despite a lengthy dissent analyz-

ing controlling and contrary decisions from this Court,

the Temporary Emergency Court of Appeals and other

courts of appeals, to say nothing of the extensive briefing

and petitions for rehearing, the majority contented it-

self with the single ipse dixit that the district court “un-

questionably” possessed the authority to order this rem-

edy. Ex. App. 92a. Moreover, the majority’s attempt to

explain why it would be impossibie to prove injury is

seriously inaccurate and simply ignores the most impor-

tant assertion made by petitioners.

The result approved by the court of appeals is particu-

larly disturbing because of the unusual roles played by

the federal and state governments. They have not pur-

sued their traditional function of assisting injured per-

sons to obtain restitution and of serving as custodian of

the funds until either injured persons establish claims or

the funds escheat under appropriate procedures. Rather

they have become claimants themselves, s<tively asserting

that no actually injured person can peve injury and

that the money should go to their respective treasuries,

on the questionable assertion that payment to the govern-

ment is the same thing as payment to the government’s

injured citizens. There is no support for this result in

the statute or its history.

Although the federal government lost this unseemly

battle to the states in the district court, and withdrew its

novice of appeal on this issue, it has recently announced

its “policy”, duly published in the Federal Register, that

given the result in the present case and one other, the

states have now received enough and that the federal

Treasury, rather than the states, will from now on receive

“restitution” instead of injured persons.’ As a claimant,

* Policy Statement: signed by the Deputy Secretary of Energy,

50 Fed. Reg. 27400, 27402, col. 3 (July 2, 1985). Mentioned in the

the federal government pursues an interest that is quite

different from that of an even-handed administrator try-

ing to establish and administer a workable program, to

find those injured by violations of that program, and to

compensate them. Rather its interest, and the course it

has pursued here, is to complicate and obscure the issues

so that it, rather than persons injured, will end up with

the money. Whether, absent explicit statutory authority,

either federal or state governments may ever assume

such an active claimant’s role is ar unprecedented ques-

tion of great importance that alone merits certiorari.

This case should be reversed to preclude its use as prece-

dent both in other large cases under the EPAA and in

other areas where the government conducts economic

regulation.

I. THE DECISION BELOW CONFLICTS WITH THIS

COURT’S HOLDINGS DEFINING RESTITUTION

AND HOLDING THAT A FEDERAL COURT MAY

NOT DISTRIBUTE A COURT CREATED FUND

WITHOUT PROVIDING NOTICE AND AN OP-

PORTUNITY TO BE HEARD TO POTENTIAL

CLAIMANTS

In affirming the district court remedy, the majority of

the court of appeals ignored both the substantive and

procedural requirements for effectuating restitution of a

court created fund that were articulated in Porter, supra,

328 U.S. at 398, 402. When awarding restitution, a fed-

eral court “act[s] in the public interest by restoring the

status quo and ordeving the return of that which right-

fully belongs to the purchaser or tenant.” The court

“Policy Statement” as cases affected by it are United States v.

Sutton, ——— F.Supp. (N.D. Ok. September 14, 1984), TECA

Nos. 10-57, 10-58 (appeals docketed October 12, 1984) ($210 million

not including interest) and in re: Department of Energy Stripper

Well Exemption Litigation, D. Kan., MDL No. 378 ($1.2 billion

including interest). There are a number of other cases with

similar amounts at issue as to which remedy questions have not

been litigated.

“may act so as to adjust and reconcile competing claims

and so as to accord full justice to all the real parties in

interest; if necessary, persons not originally connected

with the litigation may be brought before the court so

that their rights in the subject matter may be determined

and enforced.” Jd®

A. The Remedy Approved By The Court Of Appeals

Does Not Constitute Restitution As Defined By

This Court

The district court remedy purports to implement Sec-

tion 209 of the ESA, which authorizes the court to “order

restitution of moneys received in violation of any .. .

regulation.” 12 U.S.C. $1904 note (emphasis added).

Added as an amendment to the ESA in 1971, the provi-

sion confirmed the “inherent equitable power in the court

to set things right and order restitution.” S. Rep. 92-507,

1971 U.S. Code Cong. & Ad. News 2283, 2291. By

restitution, Congress meant the refund of overcharges to

the party injured, as indicated by the case cited with

approval in the legislative history to the amendment. /d.

citing United States v. Lieb, 8833 F. Supp. 424 (W.D.

Tex. 1971), aff'd, 462 F.2d 1161 (TECA 1972) (ESA

s 209 authorizes agency to order refund of excess rent to

tenant).

The traditional limits of restitution have been fully

addressed by this Court in similar contexts. Restitution

does not permit a payment of overcharges to parties

that have made no proof of injury. In construing a

comparable remedial provision in the Emergency Price

Control Act of 1942, this Court held that when the

agency seeks restitution it “asks the court to act in the

public interest by restoring the status quo and ordering

® Porter restates the long established principle that “[c]ourts of

equity require, that all the parties concerned in intcrest shall be

brought before them, that the matter in controversy may be finally

settled.” Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 166 (1825)

(Marshall, C.J.)

the return of that which rightfully belongs to the pur-

chaser or tenant.” Porter, supra, 328 U.S. 395, 402.”

Under equitable principles, restitution means payment to

a person who was injured by the wrongtul act. “That

responsibility {to make restitution] cannot be discharged

by payment of the fund to those who show no BN SS aise

Interstate Natural Gas, supra, 336 U.S. at 582.

The remedy upheld by the majority is not restitution

within the meaning of ESA Section 209 or this Court’s

decisions." It does not rest on any evidentiary support

for the conclusion that ultimate consumers generally were

the victims of the HFU overcharges, and it certainly does

not rest on any record evidence that the intended benefi-

ciaries of the district court’s remedy sustained any “ver-

charges.

Nor was it necessary for the district court or the

court of appeals to have created 2 remedy. Congress has

provided a procedure, in 28 U.S.C. §§ 2041, 2042 for

those situations where entitlement to a fund in court is

not clear after litigation. Under that procedure, in cases

indistinguishable from the present, the amount is paid

into court, and any claimant may make application for

10 See also Restatement of Restitution, §1 and accompanying

comments, and Introductory Note to Chapter 7 (at 522) where

restitution is defined as “restoring to a person property trans-

ferred by him to another . . . It implies both a loss by him and

a receipt of something by another.”

11 Until this case, TECA appeared to have construed Section 209

to require restitution by means closer to the wraditional sense.

Citronelle-Mobil Gathering, Inc. v. Edwards, 669 F.2d 1717, 723,

cert. denied, 459 U.S. 877 (1982). In Citronelle, TECA vacated a

district court remedy that purported to equate payment of over-

charges to the U.S. Treasury with restitution, and recognized “that

the Government has a duty to try to ascertain those overcharged,

and refund them, with interest, from the restitution funds.” Id.

(emphasis in original). Moreover, the court held that pending loca-

tion of injured persons, the money should be held in court pursuant

to 28 U.S.C. §§ 2041, 2042. Id. at footnote 6.

it. The money must go to the Treasury after five years,

although even then if a valid claim appears it must be

paid. In re: Folding Carton Antitrust Vitigation, 744

F.2d 1252, 1255, 1259-60 (7th Cir. 1984); Marshall v.

Quik-Trip Corp., 672 F.2d 801, 807-8 (10th Cir. 1982) ;

Donovan v. University of Texas, 643 F.2d 1201, 1208

n.16 (5th Cir. 1981) ; Hodgson v. Y.B. Quinada, 498 F.2d

5, 6 (9th Cir. 1974); Hodgson v. Wheaton Glass Co.,

446 F.2d 527, 535-36 (3d Cir. 1971) ; Panhandle Eastern

Pipe Line Co. v. Federal Power Commission, 179 F.2d

896, 900-901, 903 (8th Cir. 1950) (en bane). See Van

Gemert v. Boeing Co., 739 F.2d 730, 733-736 (2d Cir.

1984). Such funds may go to a stafe only after escheat

proceedings. United States v. Klein, 303 U.S. 276, 279-

283 (1938); In re Folding Carton Antitrust Litigation,

supra; Panhandle Eastern, supra.

In this case the court of appeals majority, at the urg-

ing of federal and state governments, departed from this

line of cases and created different, non-statutory rights

for these governments. Instead of being custodians and

receiving the money only after it is definitively clear

that no claimant for it will succeed, they become claim-

ants themselves, seeking to defeat, rather than to assist,

claims of injury by private persons. In the preseut case,

for example, the government argued, and the court of

appeals agreed, that < claimant of injury would have to

meet a very steep burden of proof. Ex. App. 90a. Con-

veniently for the government, the difficult burden of

proof to establish private injury makes it all the easier

for the government to get the money.”

12 Here the government benefits from its role as expert agency

in its role as claimant. Of course it is not fair to require strict

proof from an injured party of precisely what would have happened

if the injury had not occurred where the fact of the injury makes

that precision impossible. See, e.g., Eastman Kodak Co. v. Southern

Photo Materials Co., 273 U.S. 259, 379 (1926). The court of «Jpeals

has done just that, with the dual results of making it easier for

the state or federa] governments to prevail and of supporting the

A court should base a remedy on adjudicated facts.

The terms “equity,” “restitution,” “reasonable” and “dis-

cretion” are not a license to do otherwise. Once a court

assumes a roving commission to divorce a remedy from

the liability found, no guidelines remain to control the

court’s largesse with funds rightfully belonging to

wronged parties..* The General Accounting Office has

sharply criticized the agency for arrogating what are es-

sentially legislative powers in fashioning remedies to

uninjured parties in administrative actions.‘* The same

criticism applies here.*®

court of appeals’ finding that it is “futile” to identify injured per-

sons. Cf. Hanover Shoe, Inc. v. United Shoe Machinery Co., 392

U.S. 481 (1968).

13In fact, the district court remedy is the antithesis of the re-

sponsible exercise of equitable power. It disregards prinviples

underlying Hawaii v. Standard Oil Co. of California, 405 U.S. 251,

264 (1972), where the Court reasoned that a state-based parens

patriae right of action, combined with U.S. government enforce-

ment powers and an individual right of action by every overcharged

party would “open the door to duplicative recoveries.” No such re-

covery is to be allowed absent “a clear expression of congressional

purpose to make it so.” Jd. Although the states have no parens

patriae cause of action under the EPAA, the district court has,

nonetheless, invested them with a parens patriae capacity to oversee

the distribution of the largest money judgment ever entered. In

doing so, the district court has placed the states in an adversary

position to numerous overcharged parties who are also among their

citizens. Moreover, because the EPAA also incorporates a private

right of action contained in ESA § 210, the award of the judgment

to parties without injury opens the door to a second recovery under

§ 210 by the parties actually sustaining injury.

14 See Hearing before the Committee on Energy and Power of

the Committee on Interstate and Foreign Commerce, House of

Representatives, 96th Cong., 2d Sess., on Settlements By the De-

partment of Energy on Overcharges Within the Petroleum Industry

(October 14, 1980) p. 2. The GAO’s analysis is set furth in the

three opinions: B-200170 (October 10, 1980); B-200170 (April 1,

1981) ; B-209600 (May 19, 1983).

15 See, e.g., City of Philadelphia v. American Oil Co., 53 F.R.D.

45, 71 (D.N.J. 1971). The use of so-called fluid recovery doctrines

And, in fact, the remedy chosen in this case represents

a serious incursion on the Constitutional powers of Con-

gress to appropriate funds for its own programs. The

district court ignored the intent of Congress that the

Warner Amendment be a one-time-only distribution from

consent order funds.’* Its remedy will contribute ten

times the amount of funding to the designated energy

programs that Congress deemed appropriate in its one-

time-only authorization. Whether to extend an act of

Congress beyond the limits that Congress itself set is not

a determination that should or can properly be made by

a court.

B. The Court Of Appeals Ignored Procedural Safe-

guards Compelled By This Court’s Decisions

Apart from this complete departure from statutory

and decisional demands concerning the substance of resti-

tution, the court of appeals approved a complete depar-

ture from procedural safeguards required by fifth amend-

ment due process as specifically interpreted by this Court.

The district court did not even permit real parties in

interest to present their claims. Rather, by staying two

to justify departure from traditional limits on a court’s remedial

powers has been advocated and criticized in the academic literature.

Compare Nash, Collecting Overcharges from the Oil Companies:

The Department of Energy’s Restitutionary Obligation, 32 Stan-

ford Law Review 1039 (May 1980) with Durand, An Economic

Analysis of Fluid Class Recovery Mechanisms, 34 Standard Law

Review 173 (November 1981).

16 See remarks of Senator Warner, the amendment’s sponsor at

128 Cong. Rec. 15116 (December 16, 1982) (daily ed.) and Repre-

sentative Dingell, Chairman of the House Subcommittee on Energy

and Power, 128 Cong. Rec. 10435 (December 20, 1982) (daily ed.)

Representative Dingell emphatically stated:

The provision is a one-time provision. It should not be viewed

as a precedent. It does not confer on DOE any new restitu-

tional or remedial authority or imply that the DOE has such

authority. It is a very limited provision aimed at helping

people. It is, I stress, an exclusive, one-time disbursement

authority.

applications for intervention until the remedy issue had

been decided, by failing to notify all potential claimants,

and by failing to conduct a hearing on the appropriate

distribution of the fund created by the judgment, the

district court effectively denied potential claimants to the

HFU overcharges any opportunity to be heard on the

merits of their claims. The court of appeals approved

this holding. That cuneclusion cannot be reconciled with

Central States, supra, 324 U.S. at 146, in which this

Court held that a fund in court that is subject to restitu-

tion to injured persons who are not initially parties must

“be held for a reasonable time to permit interested per-

sons to litigate the issue in a tribunal having jurisdic-

er x

The court of appeals majority excuses this lapse on

the theory that actual overcharges are incapable of judi-

cial proof. Ex. App. 86a-88a. But that “finding” is pure

speculation. The court is hardly in a position to know

whether proof is possible before giving injured persons

an opportunity to submit it. In Interstate Natural Gas

Justice Frankfurter effectively disposed of an identical

claim:

Various obstacles are conceived to stand in the way

of the lower court’s fulfillment of this task. But it

is, to say the least, premature to conjure up abstract

difficulties which, as a practical matter, may evap-

orate in the light of the informed advice which these

various regulatory agencies may be able to furnish

readily on the basis of their available records of the

financial condition of the utilities subject to them.

336 U.S. at 589-590 (concurring opinion). Of course

Justice Frankfurter assumed that regulatory agencies

would not themselves be claimants urging that the burden

of proof was so great that only the government should be

permitted to receive the money. With the DOE firmly

told that the federal Treasury is not a proper claimant,

it should be possible for the government to discharge its

appropriate duty.’”

17The DOE’s Office of Hearings and Appeals (which is not

autonomous and does not employ administrative law judges) has

administered a regulatory procedure for distribution of overcharge

funds collected in settlement of agency enforcement proceedings.

See 10 C.F.R. § 212 Subpart V (1981). See a’so, Ashland Oil Inc. v.

Department of Energy, 760 F.2d 298 (TECA 1985) which describes

the Subpart V procedure. Implementing these regulations, OHA

has in fact identified injured parties and directed some refunds

to be made. However, as noted in the dissent (Ex. App. 156a ff.),

the General Accounting Office has criticized DOE for not utilizing

these procedures to distribute all overcharge funds. The difficulty,

we submit, is that as long as the federal government expects to

end up with the funds itself, it will never vigcrousiy pursue iden-

tification and compensation of injured parties.

In one very large case, the district court for the District of

Kansas referred for fact finding the task of ascertaining the

parties injured as the result of an injunction issued in Jn re:

Department of Energy Stripper Well Litigation, 578 F. Supp. 586

(D. Kan. 1983). In the referral proceeding, which involves over

$1.2 billion including interest, OHA has determined that the over-

charges to certain levels of distribution can be proven in approxi-

mate amounts. Ex. App. 139a. DOE says the failure to make a

more precise determination proves its point that injui, cannot be

specified precisely. DOE “Policy Statement,” 50 Fed. Reg. 27400

(July 2, 1985). But it was—conveniently—in the federal govern-

ment’s financial interest for DOE to find it impo ible for others

to prove injury, and thus that finding is questionable. See Tumey

v. Ohio, 273 U.S. 510, 582 (1927). Nonetheless, the determination

reached by OHA in Subpart V proceedings and the findings made on

referral in the Stripper Well case squarely refute the district court

finding, affirmed by the majority, that overcharges are utterly in-

capable of proof.

II. THE DECISION BELOW CONFLICTS WITH THIS

COURT’S HOLDINGS THAT A SUMMARY JUDG-

MENT REMEDY MAY NOT BE SUSTAINED WHEN

A DISPUTED ISSUE OF MATERIAL FACT RE-

MAINS, AND IN THE TOTAL ABSENCE OF SUP-

PORTING RECORD EVIDENCE

As the dissent noted, the cases supporting the con-

clusion that the district court was without power to

render summary judgment on the remedy issue “on its

own initiative, without hearing’ and on the basis of

the disputed factual conclusion that those who sustained

HFU overcharges cannot be identified “are too numer-

ous to list and discuss... .” Ex. App. 144a. Summary

judgment on such a record contravenes Fed. R. Civ. P.

56. Kennedy v. Silas Mason Company, 334 U.S. 249,

256-257 (1948). “{Slummary procedures, however salu-

tary where issues are clear-cut and simple, present a

treacherous record for deciding issues of far-flung im-

port, on which this Court should draw inferences with

caution from complicated courses of legislation, con-

tracting and practice.” *

Had they not been precluded from establishing their

claims by the district court’s stay and order, petitioners

would have established that: (1) ultimate consumers

eould not have borne any HFU overcharges reflected in

sales of decontrolled netroleum products; and (2) suffi-

cient economic data exist to demonstrate that refiners

as a class absorbed at least an identifiable percentage

of the overcharges associated with controlled products.

18 The Advisory Committee Note to the 1963 Amendment to Fed.

R. Civ. P. 56 expressly states that “[w]here the evidentiary matter

in support of the motion does not establish the absence of a

genuine issue, summary judgment must be denied even if no op-

posing evidentiary matter is presented.”

Decontrolled products. The crude oil cost regulations

could not have served to transfer the impact of all HFU

overcharges to ultimate consumers because approximately

half the sales volume of petroleum products refined from

crude oil were exempt from those regulations during

most of the time at issue.” Because the regulations re-

quired crude oil costs to be allocated between exempt and

controlled products, even in theory a refiner could only

utilize the regulations (assuming favorable market con-

ditions) to pass on a proportionate amount of its share

of HFU crude oil overcharges in sales of the controlled

products. Neither the district court nor the court of

appeals has addressed this argument which, by itself,

completely undercuts the factual predicate of a remedy

designed solely to benefit so called ultimate consumers.”°

1 Residual fuel oil was decontrolled by the DOE’s predecessor,

the Federal Energy Administration (FEA), effective June 1, 1976.

41 Fed. Reg. 13896 (April 1, 1976). Middle distillates (No. 2

heating oil, No. 2 diesel fuel, No. 1 heating oil, No. 1 diesel fuel,

and kerosene) were decontrolled by FEA effective July 1, 1976. 41

Fed. Reg. 24516 and 24518 (June 16, 1976). Naphthas, gas oils

and “other products” were exempted effective September 1, 1976,

41 Fed. Reg. 30096 (July 22, 1976). Naphtha jet fuel was exempted

effective October 1, 1976. 41 Fed. Reg. 40451 (September 20, 1976).

Kerosene-base jet fuel and aviation gasoline were decontrolled by

DOE effective February 26, 1979. 44 Fed. Reg. 7070 (Feb. 5, 1979) :

44 Fed. Reg. 12634 (March 8, 1979). Butane and natural gasoline

were decontrolled effective January 1, 1980. 44 Fed. Reg. 70118

(December 6, 1979).

20 The percentage of HFU overcharges that could not be passed

on by means of the regulatory mechanism was roughly equal to the

percentage of total petroleum products exempted from price con-

trols. For example, from July 1, 1976 until January 27, 1981,

residual fuel oil and middle distillates (i.e., diesel fuel and home

heating oil) accounted for about 30% by volume of all domestic

refinery production. Energy Data Reports: Petroleum Statement,

Monthly, Prepared for the Office of Oil and Gas Statistics of DOE.

From July 1, 1976, a date when both of these categories of products

were exempt, until January 27, 1981, Exxon incurred $688,520,768.03

in overcharges. See 561 F. Supp. at 860, Appendix I. At least

Controlled products. In declining to afford petitioners

an opportunity to prove the amount of HFU overcharges

absorbed rather than passed through in sales of con-

trolled products, the district court concluded, and the

court of appeals affirmed, that the task of proving the

incidence of injury was impossibly complex.*' However,

ag the dissent noted, the district court reached this con-

clusion without an evidentiary record and in the face

of judicially noticeable proceedings in which the inci-

dence of overcharges had in fact been determined with

adequate precision. Ex. App. 126a. As this Court has

held in analogous regulatory contexts, the calculation of

overcharges is “an informed judgment by the federal

court and should have the flexibility and dispatch which

characterize the administrative process.” Interstate Nat-

ural Gas, supra, 336 U.S. at 584.

30 percent of these overcharges to refiners could not have been

passed on to purchasers in the regulated sales of price-controlled

refined products, because they were attributable to the exempt

products of residual fuel oil and middle distillates. In other words,

about $209,824,645.00 of these overcharges and $222,031,042.00

of the interest are attributable to sales of these two exempt prod-

ucts alone. No factual or legal basis exists for claiming that DOE

price regulations resulted in the passthrough of these costs by

refiners to consumers.

21 Had the district court or the appellate court majority applied

the principles of this Coury’s decisions in Hanover Shoe, Inc. v.

United Shoe Machinery Co., 392 U.S. 481 (1968) and Illinois Brick

Co. v. Illinois, 431 U.S. 720 (1977) as TECA had in Eastern Air-

lines Inc. v. Atlantic Richfield Co., 609 F.2d 497 (TECA 1979), the

impossibility of proving the absorption or pass on of overcharges

in transactions subsequent to the first purchases would have re-

quired the entire restitutionary award to be made to the first pur-

chaser unless a showing was made that a subsequent purchaser had

a fixed quantity cost plus contract or its functional equivalent.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Of Counsel:

JOHN A. EVANS

MARATHON PETROLEUM

COMPANY

539 South Main Street

Findlay, Ohio 45840

(419) 422-2121

WILLIAM C. STREETS

GAIL F. SCHULZ

MOBIL OIL CORPORATION

3225 Gallows Road

Fairfax, Virginia 22037

(703) 849-3000

H. Y. ROWE

W. BAYLESS RCWE

MURPHY OIL CORPORATION

200 Peach Street

F1 Dorado, Arkansas 71730

(501) 862-6411

ROBERT H. COMPTON

ASHLAND PETROLEUM

COMPANY

P.O. Box 391

Ashland, Kentucky 41114

(606) 329-3735

Respectfully submitted,

R. BRUCE MCLEAN, P.C.

DANIEL JOSEPH, P.C.*

DAvip A. HOLZWORTH

AKIN, GUMP, STRAUSS, HAUER

AND FELD

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 887-4000

Counsel for

Marathon Petroleum Company

Mobil Oil Corporation

Murphy Oil Corporation

THOMAS A. DONOVAN

JUDITH A. MACKAREY

KIRKPATRICK & LOCKHART

1500 Oliver Building

Pittsburgh, Pennsylvania 15222

(412) 355-6500

Counsel for

Ashland Oil, Inc.

* Counsel of Record

Of Counsel:

JAMES W. SHADDIX

PENNZOIL COMPANY

P.O. Box 2967

Houston, Texas 77001

(713) 546-8431

RALPH J. MAYNARD

ALFRED B. SMITH, JR.

TENNECO OIL COMPANY

P.O. Box 2511

Houston, Texas 77002

(713) 757-4249

ERIC SCHWARTZ

Tosco CORPORATION

2401 Colorado Avenue

Santa Monica, California

90406-2401

(213) 207-7083

JOHN P. MATHIS

CATHERINE C. WAKELYN

BAKER & BortTs

1701 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 457-5500

Counsel for

Pennzoil Company and

Tenneco Cil Company

KENNETH L. BACHMAN, JR.

EUGENE M. GOooTT

CLEARY, GOTTLIEB, STEEN

& HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

(202) 728-2700

Counsel for Tosco Corporation

APPENDICES

APPENDIX I

List and Status of Parties in the Appellate Court

as required by Rule 34.1(b)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

STATES OF ALABAMA, ARKANSAS, CALIFORNIA,

et al., Intervenor-Appellees,

EXXON CORPORATION, Defendant-Appellant; (No.

DC-93)

NATIONAL OIL JOBBERS COUNCIL and the JOB-

BERS’ GROUP, Intervenor-Appellants; (No. DC-91)

GLADIEUX REFINERY, INC., Intervenor-Appellants,

(No. DC-92)

INDICATED REFINERS, Champlin Petroleum Com-

pany, Ashland Oil, Ine., Tenneco Oil Company,

American Independent Refiners Association, Pennzoil

Company, and Texas City Refining, Inc., Intervenor-

Appellants, (No. DC-94)

GASOLINE RETAILERS, Luther Griffin, t/a Palmer

Highway Exxon, Edward McGovern, t/a Maple Ave-

nue Exxon, Anthory Monaco, t/a Milltown Exxon

Servicecenter, Inc., Donald E. Skilling, t/a Edon

Service Corp., Tex Shipley, t/a Shipley’s Standard

Service, Intervenor-Appellants; (No. DC-95)

TOSCO CORPORATION, Intervenor-Appellant; (No.

DC-96)

PHILADELPHIA ELECTRIC COMPANY, Intervenor-

Appellant; (No. DC-97)

AIR TRANSPORT ASSOCIATION OF AMERICA,

Intervenor-Appellant; (No. DC-98)

GERALDINE H. SWEENEY, RJG CAB, INC., NA-

TIONAL FREIGHT, INC., Intervenor-Appellants;

(No. DC-99)

MARATHON PETROLEUM COMPANY, MOBIL OIL

CORPORATION, and MURPHY OIL CORPORA-

TION, Intervenor-Apellants; (No. DC-100)

APPENDIX II

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

EXXON CORPORATION,

Defendant.

Filed Feb. 5, 1981

ORDER

This matter is before the court sua sponte. It appears

that the prosecution of defendant Exxon Corporation’s

Petition and Counterclaim for Interpleader and Declara-

tory Relief, which interpleads over 2000 parties, may

result in substantial administrative burdens being im-

posed on the parties and the court. It further appears

that the government’s theory of operator liability, which

underlies Exxon’s Petition and Counterclaim, may be

found to be inappropriate in a case currently pending

before the Temporary Emergency Court of Appeals,

Sauder v. DOE, appeal docketed, No. 10-25 (May 22,

1980). It further appears that, regardless of the decision

in Sauder v. DOE, Exxon’s motion to dismiss may then

be ripe for disposition by this court. Thus, it is not yet

clear that Exxon’s interpleader action need now proceed,

inasmuch as it is possible (although the court expresses

no opinion as to the relative likelihood) both that the

impetus behind Exxon’s petition and counterclaim may

be removed, and that this case may be dismissed. There-

fore, rather than addressing at this time the administra-

tive problems resulting from Exxon’s petition and coun-

terclaim, the court finds it advisable to extend the time

within which the interpled parties must respond to

Exxon’s petition and counterclaim. In this way, the

court will defer consideration and resolution of the ad-

ministrative problems until a later time. Therefore, in

accordance with the foregoing, it is, by the court, this

5th day of February, 1981,

ORDERED that all defendants in Exxon Corporation’s

Petition and Counterclaim for Interpleader and Declara-

tory Relief shall answer or otherwise respond within 20

days from the date of service of notice by this court that

such answers or other responses shall be filed.

/s/ Thomas A. Flannery

United States District Judge

APPENDIX III

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

- Plaintiff,

EXXON CORPORATION,

Defendant.

| Fited Dec. 15, 1982}

ORDER

Upon consideration of Defendant’s Motion to Stay Con-

sideration of the “Conditional Motion of Indicated Re-

finers to Intervene,” the submissions of the plaintiff and

the poiential intervenors in connection therewith, and the

entire record in this case, it is, by the Court, this 5th day

of December, 1982.

ORDERED that Defendant’s Motion to Stay Consid-

eration of the “Conditional Motion of Indicated Refiners

to Intervene” is granted; and it is further

ORDERED that the Indicated Refiners’ Conditional

Motion to Intervene is stayed until further order of this

Court, and no responses to that Motion shall be made by

the parties until 20 days after service of notice by this

Court that such responses shall be filed; and it is further

ORDERED that there shall be no filing of briefs ami-

cus curiae or responses thereto by the potential inter-

venors or the parties, respectively, concerning remedial

issues until further order of this Court.

/3s/ Thomas A. Flannery

United States District Judge

mite on eens

- tail Soe

APPENDIX IV

BEFORE THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

EXXON CORPORATION,

Defendant.

[Filed Apr. 11, 1983]

ORDER

This 11th day of April, 1983, it is hereby ORDERED

that the Motion of Indicated Refiners for Reconsideration

of Denial of Intervention filed on April 6, 1983 is

granted, that the Conditional Motion of the Indicated

Refiners filed on November 24, 1982 is granted, and that

Champlin Petroleum Company, Tenneco Oil Company,

Pennzoil Company, Tosco Corporation, Ashland Oil, Inc.,

Texas City Refining, Inc., and the American Petroleum

Refiners Association may intervene in this action solely

for purposes of appeal on the remedy issue.

/s/ Thomas A. Flannery

THOMAS A. FLANNERY

United States District Judge

APPENDIX V

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

EXXON CORPORATION,

Defendant.

[Filed Apr. 29, 1983]

MEMORANDUM

On March 25, 1983 this court issued a Memorandum

Opinion (“‘Mem.”) disposing of the parties’ cross-motions

for summary judgment and directing plaintiff Depart-

ment of Energy ‘“DOE”’) to submit a proposed judgment

for the court’s consideration within fifteen days, with

defendant Exxon Corporation (“Exxon”) to submit its

comments thereon no later than ten days thereafter.

DOE submitted its proposed judgment on April 11, 1983.

Exxon filed its reply on April 21, 1983.

After the issuance of the Memorandum Opinion severa!

motions to intervene were filed. The motions can be

divided into two groups, those by oil refiners, wholesalers

and retailers, on the one hand, and those by several

States on the other.' Both groups focus their attention on

1 Each of the motions to intervene is listed in the Order which

accompanies this Memorandum. In addition, a group of refiners

consisting of Champlin Petroleum Company, Tenneco Oil Company,

Mititasteie one mee

the remedy fashioned by the court which directs payment

by Exxon of the overcharges into an escrow account at

the United States Treasury, to be disbursed to the States

in accordance with the procedures of Section 155 of Pub.

L. No. 97-377. Mem. at 83-85. The industry applicants

contest that remedy, arguing that they were the victims

of the overcharges to whom restitution is due. They

now seek to intervene solely for the purpose of establish-

ing their right to appeal the remedy question to the

Temporary Emergency Court of Appeals (“TECA”). The

States, too, seek to intervene solely on the remedy issue,

but wish to have the opportunity to comment on the pro-

posed judgment as weil.

Both the industry applicants and the States contend

that they may intervene as a matter of right under Fed.

Pennzoil Company, Tosco Corporation, Ashland Oil, Inc., Texas

City Refining, Inc., and the American Petroleum Refiners Associa-

tion (the “Indicated Refiners”), filed a motion for reconsideration

of the denial of their earlier motion to intervene. The motion for

reconsideration was granted on April 11, 1983.

The “Retailers” appearing in the Order accompanying this

Memorandum filed a petition for limited intervention on January 20,

1983, which was denied in the Memorandum Opinion. Mem. at 77

n.56. Unlike the Indicated Refiners, the Retailers have filed no mo-

tion for reconsideration. The court, however, will swa sponte recon-

sider its denial of the Retailers’ petition for intervention in light

of the standards discussed at pp. 3-5, infra. The court will, however,

afford DOE and Exxon an opportunity to respond to the petition

for intervention, to address in particular the question of whether

the Retailers ought to be allowed to intervene not only on behalf of

themselves but also as representatives of a class of similarly situ-

ated retailers.

Finally, the States of Arkansas, Delaware, Iowa, Kansas, Louisi-

ana, North Dakota, Rhode Island and Texas have moved to intervene

and have also moved that the court certify a class consisting of all

States not otherwise represented by counsel before this court. The

court finds, however, that the proposed class is not so numerous

as to make joinder impracticable, in view of the narrowness of the

issue on which the States are being allowed to intervene, and so

will deny the motion for class certification.

Rule Civ. Pro. 24(a) (2), claiming an interest in the

subject matter of this action, namely, in the distribution

of the fund created by restitution of the overcharges by

Exxon. In the alternative, the applicants seek permissive

intervention under Fed. Rule Civ. Pro. 24(b) (2).

Both DOE and Exxon have opposed the various motions

of the States to intervene. DOE argues that the motions

are untimely and will result in undue delay and confu-

sion. Exxon argues that the States have no legally

protected “interest” in this action and that, in any event,

the States’ interest, if any, is adequately represented by

DOE. In addition, DOE and Exxon have opposed the

motion of one of the industry applicants, arguing that

it is untimely and that the interests of this applicant are

adequately represented by the one group of Indicated

Refiners whose motion to intervene has been granted.

The court finds that the applicants for intervention are

entitled to intervene as a matter of right under Fed.

Rule Civ. Pro. 24(a) (2).

Rule 24(a) (2) sets forth four prerequisites to inter-

vention of right: (1) an interest in the subject matter

of the action; (2) possible impairment as a practical

matter of the ability to defend that interest if interven-

tion is denied; (3) inadequate representation of that

interest by existing parties; (4) a timely application for

intervention.

The ‘interest” to be protected is not so narrowly defined

as Exxon would have it. The present language of Rule

24 was designed to liberalize the right to intervene in

federal actions, United States v. AT&T, 642 F.2d 1285,

1291 (D.C. Cir. 1980), and is to be “primarily a practi-

cal guide to disposing of lawsuits by involving as many

apparently concerned persons as is compatible with effi-

ciency and due process.” Smuck v. Hobson, 408 F.2d 175,

179 (D.C. Cir. 1969), quoting Nuesse v. Camp, 385 F.2d

694, 700 (D.C. Cir. 1967).

In this case, the industry applicants—refiners, whole-

salers, and retailers—ail allege that they, not the ulti-

mate consumers of petroleum products, bore the burden

of Exxon’s overcharges and are entitled to restitution.

For purposes of deciding whether to allow intervention

the court must accept a party’s well-pleaded allegations

as true, and cannot look behind those allegations to reach

the merits of the applicant’s claims as a basis for denying

intervention. United States v. AT&T, supra, 642 F.2d at

1291. The industry applicants have properly pleaded an

interest in the overcharges by Exxon, and so have satis-

fied the “interest” test. The States, for their part,

obviously have a strong interest in defending before this

court and on appeal this court’s decision that they, on

behalf of their citizens, are to receive restitution of the

overcharges.

Furthermore, the States have adequately demonstrated

that representation of their interest by DOE may be in-

adequate. The applicant need only show that representa-

tion of his interest “may be” inadequate, and the burden

of making that showing is “minimal.” Trbovich v. United

Mine Workers of America, 404 USS. 528, 538 n.10

(1972). DOE never pursued or even suggested the rem-

edy fashioned by this court. The States’ defense of their

interest may therefore be more vigorous than would

that of DOE.

Finally, timeliness is a requirement committed to the

discretion of the district court in light of all the circum-

stances. Piambino v. Bailey, 610 F.2d 1306 (5th Cir.

1980), and may be proper even after a judgment has

been entered. Nevilles v. EEOC, 511 F.2d 303 (8th Cir.

1975). In this case the court, at the request of DOE and

Exxon, had stayed earlier motions to intervene by indus-

try applicants pending resolution of the issue of Exxon’s

liability for the overcharges. The interest which the

, States seek to defend is in the overcharge escrow fund

to be created pursuant to the Memorandum Opinion.

ema mins /

10a

Accordingly, the appiications for intervention, ali filed

within a few weeks of that Memorandum Opinion, cannot

be denied as untimely.

In order to avoid undue delay, however, the scope of

the app..cants’ invervention shal! be limited to the ques-

tion of the proper remedy in this case. The district court

has the power to limit intervention. Smuck v. Hobson,

supra, at 179-80; cf. United States v. AT&T, supra, at

1291 (the limited nature of the intervenor’s interest de-

termines the scope of intervention). Moreover, in this

case none of the applicants has requested the right to in-

tervene with respect to the underlying substantive issues

of Exxon’s liability for the overcharges. Instead, each

seeks to advance its claim to restitution of those over-

charges. Accordingly, intervention by the industry ap-

plicants shall be solely for the purpose of arguing the

remedy issue on appeal before the TECA. The States

may intervene for the same purpose but they will be

permitted, in addition, to submit comments on DOE’s

proposed judgment and Exxon’s reply thereto. The

States’ comments shall be limited, however, to ensuring

disbursement of the funds in accordance with the proce-

dures described in the Memorandum Opinion, and shall

net address the several substantive arguments on the

merits by which Exxon contends that the amount of its

liability ought to be reduced.

An appropriate Order accompanies this Memorandum.

/s/ Thomas A. Flannery

United States District Judge

lla

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

EXXON CORPORATION,

Dejyendant.

[Filed Apr. 20, 1983]

ORDER

In accordance with the foregoing Memorandun, it is,

by the court, this 29th day of April, 1983,

ORDERED that the following applications for inter-

vention in this case shall be, and hereby are, granted:

A. Industry Intervenors

(1) Marathon Petroleum Company, Mobil Oil Cor-

poration, and Murphy Oil Corporation;

(2) The National Oil Jobbers Council and the “Job-

bers’ Group”;

B. States

(1) Alabama, California, Illinois, Michigan, Missis-

sippi and Ohio;

(2) Arkansas, Delaware, Iowa, Kansas, Louisiana,

North Dakota, Rhode Island and Texas;

12a

(3) New York;

(4) Commonwealth of Pennsylvania;

and it is further

ORDERED that the motion by Arkansas, Delaware,

Iowa, Kansas, Louisiana, North Dakota, Rhode Island

and Texas for certification of a class consisting of all

States not otherwise represented by counsel before this

court is denied; and it is further

ORDERED that the Industry Intervenors may inter-

vene solely for the purpose of appeal on the issue of the

proper remedy in this case; and it is further

ORDERED that the States may intervene only for the

purpose of appeal on the issue of the proper remedy in

this case and for the purpose of submitting comments to

this court on the parties’ proposed judgment, which com-

ments shall be limited to ensuring disbursement of funds

from the escrow account described in this court’s Memo-

randum Opinion of March 25, 1983 in accordance with

the procedures described therein; and it is further

ORDERED that the States shall submit their com-

ments on the proposed judgment no later than May 9,

1988; and it is further

ORDERED that plaintiff and defendant shall not later

than May 9, 1983 respond to the petition for limited

intervention filed January 20, 1983 by Luther Griffin t/a

Palmer Highway Exxon, et al. (the “Retailers”).

/s/ Thomas A. Flannery

United States District Judge

13a

APPENDIX VI

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

EXXON CORPORATION,

Defendant.

[Filed May 5, 1983]

ORDER

Upon consideration of the Motion By The States of

Arkansas, Delaware, Iowa, Kansas, Louisiana, North

Dakota, Rhode Island and Texas (“the States”) to Add

the State of West Virginia as an Intervenor-Plaintiff, the

Memorandum of Points and Authorities In Support

thereof, and all opposition thereto, it is this 5th day of

May 1983 hereby

ORDERED that the Motion of the States to add the

State of West Virginia as an Intervenor-Plaintiff shall

be, and hereby is, granted; and it is further

ORDERED that the State of West Virginia may

intervene only for the purpose of appeal on the issue of

the proper remedy in this case and for the purpose of

submitting comments to this Court on the parties’ pro-

posed judgment, which comments shall be limited to en-

l4a

suring the disbursement of funds from the escrow ac-

count described in this Court’s Memorandum Opinion of

March 25, 1983 in accordance with the procedures de-

seribed therein; and it is further

ORDERED that the State of West Virginia shall sub-

mit its comments on the proposed judgment no later

than May 9, 1983.

/s/ Thomas A. Flannery

United States District Judge

l5a

APPENDIX VII

UNITED S°ATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 78-1035

UNITED STATES OF AMERICA,

Plaintiff,

Vv.

EXXON CORPORATION,

Defendant.

[Filed May 5, 1983]

ORDER

This matter is before the court on three motions to

intervene. Upon consideration of the motions, and in

accordance with the reasons expressed in this court’s

Memorandum of April 29, 1983, it is, by the court,

this 5th day of May, 1983,

ORDERED that the motion to intervene of Consumers

Power Company, Hudson Refining Company, Inc., U.S.

Oil and Refining Company, and Gladieux Refinery, Inc.,

is granted; provided, that said intervention shall be

solely for the purpose of appeal on the issue of the

proper remedy in this case; and it is further

ORDERED that the motions to inierver.e of the State

of Minnesota and the State of New Jersey are granted;

provided that said intervention shall be only for the

purpose of appeal on the issue of remedy in this case and

l6a

for the purpose of submitting comments to this court

on the parties’ proposed judgment, which comments shall

be limited to ensuring disbursement of funds from the

escrow account described in this court’s Memorandum

Opinion of March 25, 1983 in accordance with the pro-

cedures described therein; and it is further

ORDERED that the States of Minnesota and New

Jersey shall submit their comments on the proposed

Judgment no later than May 9, 1983.

/s/ Thomas A. Flannery

United States District Judge

a ane es A

<a ns te

he Ae ey gee

oe a a OR ene Ad idee ML

17a

APPENDIX VIII

Marathon Petroleum Company is a wholly owned sub-

sidiary of Marathon Oil Company, which is in turn a

wholly owned subsidiary of United States Steel Corpora-

tion.

The subsidiaries and affiliates (not wholly owned) of

Marathon Petroleum Company are:

Adela Investment Company, S.A.

Altos Hornos de Vizcaya, S.A. (AHV)

Arctic LNG Transportation Company

Assoc. Manganese Mines of South Africa, Ltd.

Associated Ore & Metal Corporation, Ltd.

Athlone Prospecting & Development Corporation, Ltd.

Avsteel SWA, Ltd.

Badger Pipeline Company

Bartow Chemical Products

Blue Grass Phosphate Company

Brazaco-Mapri Industries Metalurgicas S.A.

Century IV Associates

Chrome Deposit Corp. (Court Holdings J.V.)

City Point Oil Terminal, Inc.

CLAM Petroleum Company

Clean Air, Inc. Joint Venture

Compagnie Miniere de l’Ogoorie (Comilog)

Companhia Meriodional deMineracao

Companhia Siderurgica Paulista “Cosipa”

Cook Inlet Pipe Line Company

Deepsea Ventures, Inc.

Deutsche Transalpine Olleitung GmbH

ECOL Beverage Company of Texas

Explorer Pipeline Company

Feralloys, Ltd.

FHS Automotive Parts Manufacturing Ltd.

FHS Stahlverformung GmbH

First National Bank (Albion, PA)

Fort Meade Chemical Products

—

18a

Globe Oil Company, U.S.A.

Gravecap, Inc.

Green Bay Terminal Corporation

Industria de Tubos y Perfiles, S.A. (Intupersa)

ITW-Mapri

Jupiter Mining and Prospecting Co. (Pty.) Ltd.

Kappa Mining & Prospecting Co., Ltd.

Kenai LNG Corporation

LaPointe Iron Company

Les Enterprises du Lac Lucault, Ince.

Live Oak Uranium Operations

Locap, Inc.

Loop, Inc.

Mecania Walsywa, Ltda.

Merinds Mineracao

Mineracao Buritirama Ltda.

Mineracao Carajas, Ltda.

Mineracao Maraba, Ltd.

Mineracao Xingu, Ltda.

Minerales Ordaz C.A.

Mobile (1-65) Superstructure—Joint Venture

Morrison-Knudsen, Fishback & Moore

Natkin and Company

Navios Shipholding, Inc.

Navios Corporation

Navios Ship Management Services, Inc.

Northern Tier Pipeline Co.

Oasis Oil Company of Libya, Inc.

Ocean Mining Associates—Joint Venture

Oil Insurance Limited

Oil Insurance Ltd.

Oresteel Investments (Proprietary), Ltd.

Paschen Contractors—Morrison-Knudsen

Petroleum Terminals, Incorporated

Pilot Oil Corporation

Platte Pipe Line Company

Polar LNG Shipping Corporation

Prieska Copper Mines (Pty.) Ltd.

19a

P.T. Pacific Nikkel Indonesia

RMI Company

Rockland Joint Venture (Cost-Sharing)

Russell Stewart Oil Company

SID-BEC-Normines, Inc.

Sigma Mining & Prospecting Co. (Pty.) Ltd.

Societe Des Mines De Fer De Guinee Pour L’Explora

Des Monts Nimba ( Mifuergui Nimba)

Soc. Italiana per L’Oleo.'..to Transalp., S.p.A.

Tenneco/USS Chemicals Joint Venture

Termerid Mineracao, SA

Ternionoss Acciai Inossidabili—S.p.A.

Tilden Iron Mining Company

Torremco Soc. Min. E. Com. Ltda.

Transalpine Finance Holdings, S.A.

Transalpine Olleitung in Osterreich GmbH

U-Save, Inc.

USS MaxTech Company, Inc.

USS MaxTech Company, Ltd.

USS MaxTech Company (Japan), Ltd.

USS-OCF-W&M Joint Venture

USS Technology (Japan), Ltd.

West Shore Pipeline Company

The West Union Canal Company

Wolverine Pipe Line Company

Zeerust Chrome Mines, Limited

Zuari Agro Chemicals Ltd.

20a

APPENDIX IX

Mobil Oil Corporation is a wholly owned subsidiary of

Mobil Corporation which is publicly held. Listed below

are the affiliates and subsidiaries of Mobil Corporation,

Mobil Oil Corporation, and their affiliates and subsidi-

aries which are or may be publicly held. For purposes

of this list only companies in which a five percent (5% )

or greater interest is held are considered.

NAME OF COMPANY

AB Djurgardsberg

Abu Dhabi Petroleum Company Limited

Ace Polymer Co., Ltd.

Adria-Wien Pipeline Gesellschaft m.b.H.

AIMCO (ALPHA) Shipping Company

AIMCO (Blasbjerg) Limited

AIMCO (OMEGA) Shipping Company Ltd.

Aircraft Fuel Supply B.V.

Airtankdienst Koln

AK Chemie GmbH

AK Chemie GmbH & Co KG

Akauma Rekisei Kogyo Kabushiki Kaisha

Alexandroupolis Petroleum Installation S.A.

Allied Asphalts Limited

Alpa Alet Ve Dayanikli Tuketim Mamulleri

Pazarlama A.S.

Altona Petrochemical Company Limited

Alyeska Pipeline Service Company

Ammenn GmbH

Ankara Gaz Satis Anonim Sirketi

Arabian American Oil Company

Arabian Energy Company Limited, The

Arabian International Maritime Company Limited

Arabian International Maritime Company

The Arabian Petroleum Supply Company (S.A.)

Arabian Shipping & Trading Company S.A.

ioscan eiiaaicidcilceacciaiiaaii

2la

ean 0a Due

Arabian Trading Company S.A.

Aral Aktiengesuilschaft

A/S Fjellvegen

A/S Kongens Plass I

A/S Moretral

The Associated Octel Company Limited

Associated Octel Company (Plant) Limited

ATAS-Anadolu Tasfiyehanesi Anonim Sirketi

Atlas Sahara S.A.

Australian Synthetic Rubber Company Limited

Autobahn-Betriebe Gesellschaft m.b.H.

Aviation Fuel Services Limited

Aygaz Anonim Sirketi

B.V. Beheersmaatschappij MOBEM

Basrah Petroleum Company Limited

Bataan Refining Corporation

Bayerische Erdgasleitung GmbH

Bin Sulaiman Mobil Towers

Bayerische Mineral Industrie A.G.

Beer GmbH

Beer GmbH & Co. Mineralol-Vertriebs—KG

Bostadsrattsforeningen Basunen, Malmo

Bostadsrattsforeningen Forarsatet, Orby

Bostadsrattsforeningen Silverskatten, Trelleborg

Bostadsrattsforeningen Skepparegarden, Norrkoping

Brazos Heights Housing Incorporated

| Brussels Airfuels Service S.C.

Buffalo River Improvement Corporation

Canner’s Steam Company, Incorporated

Cansulex Limited

Canyon Reef Carriers, Inc.

Cartoenvases Valencia, S.A.

Carton de Colombia, S.A.

Carton de Venezuela, S.A.

Cartones Nationales, S.A.

Celmisia Shipping Corporation

Celulosa y Papel de Colombia, S.A.

citadel iain

ee ee ne SMS Se Pe ae a

ROI Nth Lit Ml AP ON aD lige tN cts Ay ale

tts) AE AL AE ah Sime a RN alk a TS bah Lie,

22a

Central African Petroleum Refineries (Pvt) Limited

Central Kagaku Kabushiki Kaisha

Cercera 8.A.

Changi Airport Fuel Hydrant Installation Pte. Ltd.

Chuo Nenryo Gas Kabushiki Kaisha

Colombianos Distribuidores de Combustibles,

S.A. (CODI)

Colombianos Forestadores, S.A.

Colonial Pipeline Company

Comet-Brennstoffdienst GmbH

Commercial Polymers Pty. Ltd.

Commodore Maritime Company, S.A.

Compagnie Africaine de Transport Cameroun

Compagnie D’Iintreposage Communautaire

Compagnie Rhenane de Raffinage

Compagnie Senegalaise des Lubrifiants (C.S.L.)

Compania Colombiana de Empaques Bates, SSA

Compania Colombiana De Forestacion 8.A.

Compania de Lubricants de Chile Limitada

(Copec-Mobil Ltda.)

Compania Mexicana de Especialidades Industriales,

S.A. de C.V.

Consortium Raymond Duez

Constructora Calle 70, S.A.

Cook Inlet Pipe Line Company

Corrugadora de Carton, 8S. A.

Cyprus Petroleum Refinery Limited

D. Muhlenbruch GmbH

D. Muhlenbruch GmbH & Co. KG

Dai Nippon Jushi K.K.

Dearborn Land Company

De. Ba. S.p.A.—Industria Petrolifero Deposito di Bari

Depot Petrolier de Mourepiane

Depot Petrolier du Gresivaudan

Depot de Petrole Cotiers

Depots Petroliers de La Corse (DPLC)

Deutsche Pentosin-Werke GmbH

23a

Deutsche Transalpine Oelleitung GmbH

Dicomi S.r.].

Dixie Pipeline Company

Drivmedelscentralen AB

Dukhan Services Company

East Japan Oil Development Company Ltd.

Eastern Lease Company Ltd.

East Texas Salt Water Disposal Company

“moleum (Asphalts) Limited

Entrepot Petrolier de Chambery

Entrepot Petrolier de Dijon

Entrepot Petrolier de Mulhouse (E.P.M.)

Entrepot Petrolier de Nancy

Entreprise Jean Lefebvre

Erdgas-Verkaufs-Gesellschaft mbH

Erdoel-Lagergesellschaft mbH

Erdoel-Raffinerie Neustadt GmbH & Co. oHG

Erdoelbetrieb Reitbrook

Erdoelraffinerie Gesellschaft mbH in Liquidation

Etablissments Bouthenet

Ets. Le Goff

Ets. R. Saillard

Faavang Autoverksted A/S

FACEL

Fairwind Maritime Company, S.A.

Falconbridge Limited

Felix Oil Company

Fibil, S.A.

Fibras Internacionales de Puerto Rico, Inc.

Filtros De Costa Rica S.A.

Finsbury Printing Limited

Fountain Garage (East Park) Ltd. -

2 ountain Garage (Meadowhead) Ltd.

Fountain Garage (Mercury) Ltd.

Fountain Garage (Newbury Park) Ltd.

Fountain Garage (Stirchley) Ltd.

Frome-Broken Hill Company Proprietary Limited

24a

Fruehmesser Mineraloelhandels GmbH & Co. KG

Fruehmesser GmbH

Fuso Operations Kabushiki Kaisha

Futuro Enterprises (Christchurch) Ltd.

Futuro Homes (N.Z.) Ltd.

Gatwick Refueling Services Limited

Gaz Aletleri Anonim Sirketi

Geomines-Caen

Geovexin

Ghana Bunkering Services Limited

Goteborgs Branslesortering AB

Groupement Immobilier Petrolier G.I.P.

Groupement Petrolier Aviation G.P.A.

Groupement Petrolier De Brest (GPB)

Handelmaatschappij Hugenholtz & Co. B.V.

H. van der Heijden Service Stations B.V.

Heizoel-Handelsgesellschaft mbH

Hellas Gas Storage Company S8.A.

Home Counties Petroleum Products Limited

Hormoz Petroleum Company

Hydranten-Betriebs-Gesellschaft, Flughafen Frankfurt

Imkert G. Distribution De Produits Petroliers

Inmunizadoras Unidas, S. A.

Industria De Carbon Del Valle Cauca, S.A.

Industria Interamericana De Filtros Ltda. (INTERFIL)

Iranian Oil Participants Limited

Iranian Oil Services (Holdings) Limited

Iranian Oil Services Limited

Iraq Petroleum Company, Limited

Iraq Petroleum Pensions Limited

Iraq Petroleum Transport Company Limited

Iside, S.p.A.

Istanbul Petrol ve Makine Yaglari Limited Sirketi

Japan Airport Fueling Service Co. Limited

J.E.C.O.P.

K.K. Sankyo Plastics

K.K. Toresen

25a

Kanto Kygnus Sekiyu Hambai K.K.

Kanto Oil Pipeline Co., Ltd.

Kawasaki Kygnus Sekiyu Hambai Kabushiki Kaisha

Keihin Kygnus Sekiyv Hambai Kabushiki Kaisha

Keiyo Sea-Berth Company, Limited

Kettleman North Dome Association

Klaus Koehn GmbH

Klaus Koehn GmbH & Co. Mineraloel KG

Kobe Port Service Kabushiki Kaisha

Kurt Ammenn GmbH & Co. K.G.

Kygnus Ekika Gas Kabushiki Kaisha

Kygnus Kosan Kabushiki Kaisha

Kygnus Sekiyu Kabushiki Kaisha

Kyokyto Petroleum Overseas, Ltd.

Kyokuto Sekiyu Kogyo Kabushiki Kaisha

Les Supermarches De Cote D’Ivoire

Likit Petrol Gazi ve Yakit Ticaret A.S.

Loba Chemie Gesellschaft mbh

Lubricantes del Sur, S.A.

Madeleine Mines Ltd.

Marcaux & Cie

Matco Tankers (U.K.) Limited

Maury Manufacturing Company, Inc.

McIntyre Mines Limited

McIntyre Mines (Australia) Pty. Ltd.

McIntyre Mines (Nevada) Ltd.

Mediterranean Refining Company

Meentzen & Franke GmbH & Co.

Mert] GmbH

Mobil Ami, S.A.

Mobil Atlas Sociedad Anonima de Capital Variable

Mobil Comercio, Industria e Servicos Ltda.

Mobil Gaz-Mobil Petrol Gazlari Anonim Sirketi

Mobil Korea Lube Oil Industries Inc.

Mobil Motor Rest AG

Mobil Nile Oil Company

Mobil Oil Gabon

26a

Mobil Oil Ghana Limited

Mobil Oil Maroc

Mobil Oil Nigeria Limited

Mobil Oil Nord-Africaine

Mosul Petroleum Company Limited

Mote! Rest SA

Mt. Marrow Blue Metal Quarries Pty.

Near East Development Corporation

{eptune Bulk Terminals (Canada) Ltd.

New Zealand Refining Company Limited, The

New Zealand Synthetic Fuels Corp. Ltd.

New Zealand Synthetic Fuels ( Housing)

Corporation Limited

Nichimo Oil (Bermuda) Co., Ltd.

Nichimo Sekiyu Seisei Kabushiki Kaisha

Nippon Unicar Company Limited

Norddeutsche Erdgas-Aufbereitungs GmbH

Nordic Storage Company Ltd.

Nottingham Gas Limited

Nuova Europetrol S.p.A.

N.V. Rotterdam-Rijn Pijpleiding Maatschappi}

N.V. Socony-Standard-Vacuum Oil Company

Occidental de Empaques, Ltda.

Octel Associates

Octel S.A.

Oilkol (Proprietary) Limited

Oil Service Company of Iran (Private Company )

Oldenburgische Erdoel Gesellschaft mit

beschrankter Haftung

Olympic Pipe Line Company

Osage Pipe Line Company

P.T. Arun Natural Gas Liquefaction Company

P.T. Berau Coal

P.T. Stanvac Indonesia

Paloma Pipe Line Company

Pars Investment Corporation

P.6—Groep B.V.

arses ie re acaba

27a

Perretti Petroli S.p.A.

Petrocab

Petrogas Processing Ltd.

Petroleum Development (Cyprus) “Uimited

Petroleum Refineries (Austratiz !’roprietary Limited

Petroleum Services (Middle East) Limited

Petroleum Tankship Company Inc.

Petromin Lubricating Oil Company

Petromin Lubricating Oil Refining Company

Petromin-Mobil Yanbu Refinery Company Ltd.

Pipe Line Banal de La Goulette

Plegadizos para la Industria S.A.

Poly Oil Chimie (P.O.C.)

Qatar Petroleum Company Limited

Qualbank, Ine.

Rainbow Pipe Line Company, Ltd.

Reforestadora Andina, S.A.

Reforestadora del Cauca, S.A.

Rhodes Petroleum Installation S.A.

Rivers Court Estates, Limited

Rohol-Aufsuchungs Gesellschaft mbH

Samarco (Alpha) Shipping Company

Samarco (Beta) Shipping Company

Sanwa Kasei Kogyo Kabushiki Kaisha

Sarni S.p.A.

Saudia Arabian Maritime Company

Saudi Can Company, Ltd., The

Saudi Chemical Industries Company Limited

Saudi Maritime Company Ltd.

Saudi Tankers Limited

Saudi Yanbu Petrochemical Company

Schubert Kommanditgesellschaft

Segher de Mexico, S.A. de C.V.

Seibu Kygnus Sekiyu Hambai Kabushiki Kaisha

SENERCO

Seram Societa per Azioni (S.p.A.)

Sierra Leone Petroleum Refining Company Limited, The

28a

Smoky River Coal Limited

Smoky River Investments Limited

Sociedad Calle 67, Ltda.

Sociedade Portugal Marrocos SARL

Societa Italana per l’Oleodotto Transalpino, S.p.A.

Societe Africaine de Raffinage

Societe Alfred Ott & Cie

Societe Belge de Transport par Pipeline S.A.

Societe Camerounaise des Depots Petroliers (S.C.D.P.)

Societe Camerounaise Equatoriale De Fabrication

De Lubrifiants “S.C.E.F.L.”

Societe Civile de Mustapha

Societe Civile Immobiliere Courcelles-Etoile

Societe Civile Immobiliere de Construction de 34 Avenue

du General Leclere a Boissy-St-Leger

Societe Civile Immobiliere de Construction

“La Residence Brune”

Societe Civile Immobiliere du 10 Bd.

de la Republique A La Garenne-Colombes

Saeiete Civile Immobiliere Kleber-Ztoile

Societe Civile Immobiliere La Fontaine Saint Lucien

Societe Civile Immobiliere Mobil

Societe Dahomeenne d’Entreposage de

Produits Petroliers

Societe d’Armement Fluvial et Maritime “SOFLUMAR”

Societe de Construction & de Gestion CB 12

Societe de Distribution Castelroussine (SODICA)

Societe de Gaz D’Oceanic (SOGADOC)

Societe de Gestion des Stocks Petroliers de Cote D’Ivorie

Societe de Manutention de Carburants

Aviation (S.M.C.A.)

Societe de Manutention de Carburants

Aviation Dakar-Yoff

Societe de Manutention de Carburants

Aviation de Tahiti (SOMCAT)

Societe de Maperialx d’Etancheite Pour

Le Entreprises ( Meple)

29a

Societe d’Entreposage de Bobo-Dioulasso (S.E.B.)

Societe d’Entreposage d’Hydrocarbures

de Bingo (SEHBI)

Societe d’Entreposage de San Pedro (SESP)

Societe d’Entreposage Petrolier au Burundi

Societe d’Habitations a Loyer Modere

de la Seine Maritime

Societe des Bitumes et Cut-Backs du Cameroun

Societe Des Huiles Lemahieu

Societe de Pipe-Line Sud-Europeen

Societe Francaise Stoner-Mudge

Societe Gabonaise d’E ntroposage

de Produits Petroliers

Societe Gabonaise de Raffinage

Societe Industrielle des Asphaltes et Petroles

de Lattaquie (Syrie) S.A.

Societe Jean Roussel S. A.

Societe Ivoirienne de Fabrication

de Lubrifiants (S.I.F.A.L.)

Societe Ivoirienne de Raffinage

Societe Mauritanienne d’Entreposage

de Produits Petroliers

Societe Malienne D’Entreposage (SME)

Societe Nationale de Raffinage (Sonara)

Societe Nouvelle pour l’Epuration des H uiles

de Transformateurs—Septra

Societe Pizo De Formulation De Lubrifiants

(PIZOLUB)

Societe Tahitienne de Depots Petroliers

Societe Tchadienne D’Entre posage de Produits Petroliers

Societe Togolaise d’Entreposage (STE)

Sonarep (South Africa) (Proprietary) Limited

SONEX

South African Oil Refinery (Proprietary) Limited

South Saskatchewan Pipe Line Company

South West Africa Road Binders ( Proprietary) Limited

Strafjord Transport A.S.

30a

Sydney Metropolitan Pipeline Pty. Ltd.

Syria Petroleum Company Limited

T.R. Miller Mill Company, Inc.

Tanklagergesellschaft Koln-Bonn

Tecklenburg GmbH

Tecklenburg GmbH & Co. Energiebedarf K.G.

Texoma Pipe Line Company

Thailand Lubricant Products Limited

Thailand Solvent Products, Ltd.

Thums Long Beach Company

T. M. Duche Co., Inc.

Toa Nenryo Kogyo Kabushiki Kaisha

Tohko Plastics Co., Ltd.

Tonen Energy International Corp.

Tonen Maintenance Kabushiki Kaisha

Tonen Sekiyu Kagaku Kabushiki Kaisha

Tonen Tanker Kabushiki Kaisha

Tonen Technology Kabushiki Kaisha

Total Centrafricaine de Gestion (TOCAGES)

Toyoshina Film Co., Ltd.

Tradewind Maritime Co., S.A.

Transalpine Finance Holdings S.A.

Transalpine Oelleitung in Oesterreich

Gesellschaft m.b.H.

Trans-Arabian Pipe Line Company

Transgas Umschlags-Lager-Und Transport

Gesellschaft MbH

Turkish Petroleum Company Limited

Twifo Oil Plantations Ltd.

UBAG Unterflur Betankungsanlage

Flughafen Zurich

Union Grafica, S.A.

United Kingdom Oil Pipelines Limited

W.A.G. Pipeline Pty. Ltd.

Wako Kasei Kabushiki Kaisha

Wakohjushi Kabusiki Kaisha

Walton, Gatwick Pipeline Company Limited

3la

Werner Weidermann Mineraloelvertrieb G.m.b.H.

Western Platinum Ltd.

West Shore Pipe Line Company

Wilhelm Mert] GmbH & Co. KG

Wolverine Pipe Line Company

WSG, Warmservice Gmbh

Wyco Pipe Line Company

Wymondham Oil Storage Co., Limited

Zaire Mobil Oil

Zaire Services Des Entreprises Petrolieres

32a

APPENDIX X

Murphy Oil Corporation, a Delaware corporation, is

publicly held. Listed below are all parent companies,

subsidiaries (except wholly owned subsidiaries) and

affiliates of Murphy Oil Corporation.

Ozark Fuels Corporation

Butte Pipe Line Company

Collins Pipeline Company

T & M Terminal Company

Murphy Oil Company, Ltd.

Ocean Drilling & Exploration Company

Odeco Towing Services Pty.

Ben Odeco (Bermuda) Limited

Australian Odeco Pty. Limited

Ben Odeco Limited

Sub Sea Offshore (B) Berhad

Strongwork Diving (Saudi Arabia) Ltd.

Sub Sea Dolphin A/S

Lancer Services, Inc.

33a

APPENDIX XI

The following is a list of the affiliates and subsidiaries

(except those wholly owned) of Ashland Oil, Inc.

Allemania Chemical Company

American Syn-Fuels, Inc.

A M International, Inc.

Arch Mineral Corporation

Ashland Chemical Italiana S.p.A.

Target Chemicals, Limited

Ashland Coal, Inc.

Etablissement Locab

South Point Ethanol Company

Super Mom’s Kitchens Company

Wipe It Off, Inc.

Ashland Industrial Corporation

Ashland Tri-State Recreation Association, Inc. (ATRA)

Associated Grocers of Iowa Cooperative, Inc.

Boyle County Industrial Foundation

Business Development Corporation of Kentucky

Business Development Corporation of North Carolina

B.V. Ashland-Suedchemie v/h Necof

Campbellsville-Taylor County Foundation

Commonwealth Oil Refining Company, Inc.

Concrete Products, Inc.

CIC Cosmetics International Corp.

Datacare, Inc.

Devon Chemicals, Inc.

Digital Application, Inc.

D MI Furniture, Inc.

The Environmental Health Association of the

Carbon Black Industry, Inc.

Equal Opportunity Finance, Inc.

Atlas Pallet, Ine.

Commonwealth Lumber Company

Mt. Vernon Plastics Corporation

Ohio Falls, Inc.

34a

Progress Supermarket, Inc.

R/T International Technologies, Inc.

Erie Lackawanna Inc.

Farmers Union Grain Terminal Association

G A C Corporation

Graveap, Inc.

Greenville Industrial Development Co.

Hahn, Inc.

Heat Transfer Research, Inc.

Iberia Ashland Chemical S. A.

Industrial Development Corporation of Florida

Israel, State of

K DI Corp.

Kyline, Inc.

K & R Corporation

Locap Inc.

Loop Inc.

Melamine Chemicals, Inc.

Minnesota Pipe Line Company

Motel Properties, Incorporated

The Ocean Corporation

Oil Companies Institute for Marine

Pollution Compensation, Limited

Oil Insurance Limited

Orbitex, Inc.

Petroleum Club of Houston

Princeton Electronic Products, Inc.

Riverside Metal Products, Co.

Ronson Corporation

Rusco Industries, Inc.

Saudi Industrial Resins Limited

Service Stations Properties, Inc.

Seventy Sidney Corporation

Shippers & Receivers Co-op

Southeastern Investment Trust

Southern States Morganfield Co-op

S P H Hotel Company

SuperAmerica of Florida, Inc.

35a

Tecumseh Pipe Line Company

Terex Corporation

: Tygart Valley Development

; United Carbon India Limited

;

Weseca Development Co.

Wicks Companies, Inc.

Applied Chemical Products (Pty) Ltd.

: Applied Agricultural Products (Pty) Ltd.

Applied Foundry Products (Pty) Ltd.

Applied Industrial Products (Pty) Ltd.

: Chematron Products (Pty) Ltd.

Ashland-Avebene S. A.

Ashland Chemical Italiana SpA.

Ashland de Mexico S. A. de C. V.

Ashland Resinas Sinteticas, Ltds.

Ashland-Suedchemie-Kernfest GmbH

Ashland-Suedchemie-Gremolith AG

George Hantos & Co. OHG

; Kernfest-Webac, A.B.

Oleotecnico, S.A.

Arch Mineral Corporation

Medicine Bow Coal Company

Rnergy Development Co.

Crescent Petroleum Company

Ashland Oil (Nigeria) Company

Integon P & C Corporation

Delmar Plaza Associates

500 Cary Corporation

Travelers Inns of Charlotte, Inc.

Travelers Inns of Winston-Salem, Inc.

Travelers Inns of Wytheville, Inc.

Resource Sciences-Arabia Ltd.

Resource Sciences Gulf Limited

Williams Brothers Iran Consulting Engineers

Resources Sciences Malaysia Sdn. Bhd.

WICMAP Transport Pty. Ltd.

Williams Brothers Malaysia Sdn. Bhd.

Drew Ameroid Italiaia S.r.].

Pantry Pride, Inc.

36a

APPENDIX XII

The following is a list of the affiliates and subsidiaries

‘except those wholly owned) of Pennzoil Company:

National Transit Company (Pennsylvania)

The Eureka Pipe Line Company

Pennzoil (U.K.) Limited (United Kingdom)

Proven Properties Inc.

Sa ere Pees

37a

APPENDIX XIII

Tenneco Oil Company is a wholly owned subsidiary of

Tenneco, Ine. The following is a list of the subsidiaries

and affiliates of Tenneco, Ine. except for those wholly

owned.

Poclain S.A. (France)

Compania Tecnico Envasadora S.A.

Kern River Gas Supply Corporation (Delaware)

Kern River Service Corporation (Delaware)

Monroe Auto Peeas S.A. ( Brazil)

Tenneco Automotive Foreign Sales Corp. Limited

(Jamaica)

Collins Pipeline Company (Delaware)

Kern River Canal and Irrigating Company (California)

Alcan Ekeo Limited (United Kingdom)

A/S Haustrup-Ekeo Aluminium-Emballage (Denmark)

Toyo Ekeo Company, Ltd. (Toyo Ekeo Kubushiki,

Kaisha) (Japan)

Skogstra A/S N orway

T & M Terminal Company (Delaware)

Tenneco Insurance Ventures, Inc. ( Delaware)

FC Marine Ine. ( Delaware)

Mistal, Ine. (Delaware)

TENN-USS Chemicals Finance Corporation ( Delaware)

Tenneco Oil Company of Nigeria Unlimited (Nigeria)

Tenngasco Gas Gathering Company (Delaware)

HT Gathering Company (Delaware)

Oasis Pipeline Company ( Delaware)

Sara Gretes Cafeteria AB (Sweden)

Adela Investment Company S.A. ( Luxembourg)

Omni-Pac Gmbh ( Germany)

Omni-Pac S.A.R.L. (France)

P.P.M. Guindastes Hidraulicos S.A. ( Brazil)

S.A. Paper Chemicals ( Proprietary), Limited (South

Africa)

Case Vibromax Gmk» ( Germany)

Case Vibromax Gmbh und Co. (Germany)

38a

Vibromax France SARL (France)

Vibromax SCI (France)

Case Poclain Gmbh & Co. (Germany)

Depositas Del Norte, S.A. (Spain)

Albright & Wilson (Australia) Ltd. (Australia)

Albright & Wilson Match Phosphorous Co. Ltd. (United

Kingdom )

Akulu Marchon (PTY) Ltd. (South Africa)

Akulu Chemicals (PTY) Ltd. (South Africa)

Marchon-Paragon Holdings (PTY) Ltd. (South Africa)

Marchon-Paragon Sulphonation (PTY) Ltd. (South

Africa)

Universal Chemical Contractors (PTY) (South Africa)

Polyphosphates Inc. (Philippines)

Albright, Morarji and Pandit Limited (India)

Arndale Fuels Ltd. (United Kingdom)

Bracey Petroleum Products Ltd. (United Kingdom)

Butler Oil Products Ltd. (United Kingdom)

Tees Storage Limited (United Kingdom)

Intertractor Viehmann Gmbh & Co. (Germany)

Stoco Mutual Water and Sewer Company (California)

yz Ga ake Wanton bins

39a

APPENDIX XIV

Tosco Corporation does not have a parent company or

any affiliates or subsidiaries that are not wholly owned.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.