Opposition Brief — City of Long Beach v. Exxon Corp.

No. 87-571 p)

In the Supreme Court

OF THE

Supreme Court, U.§

Kicead a BRILE D

NOV i

OcTOBER TERM, 1987 a

JOSEPH FE. SPANIOL, JR

"tet =e

In re: Coordinated Pretrial Proceedings In

Petroleum Products Antitrust Litigation, M.D.L. 150

City oF LONG BEACH AND

STATE OF CALIFORNIA,

Plaintiffs-Petitioners,

VS.

Exxon CORPORATION,

MoBIL OIL CORPORATION,

SHELL OIL COMPANY,

CHEVRON CORPORATION,

(FORMERLY STANDARD OIL COMPANY

OF CALIFORNIA),

TEXACO INC., and

UNION O1L COMPANY OF CALIFORNIA,

Defendants-Respondents.

ON PETITION FOR WRITS OF CERTIORARI,

MANDAMUS AND PROHIBITION

TO THE TEMPORARY EMERGENCY

COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION

RONALD C. REDCAY

Counsel of Record

MATTHEW T. HEARTNEY

HUGHES HUBBARD & REED

555 South Flower Street

37th Floor

Los Angeles, California 90071

(213) 489-5140

| Names and Addresses of Counsel]

continued on inside cover |

Bowne of Los Angeles, Inc.. Law Printers. (213) 742-6600

OTIs PRATT PEARSALL

JAMES F. SPEYER

HvuGues HuBBarp & REED

One Wall Street

New York, New York 10005

(212) 709-7000

Attorneys for Respondents

Exzon Corporation,

Mobil Oil Corporation,

Shell Oil Company,

Texaco Inc. and Union Oil

Company of California

CHARLES W. MATTHEWS

Exxon Corporation

P.O. Box 2180

1895 Exxon Building

Houston, Texas 77001

(713) 656-3366

PHiutip K. VERLEGER

Davip A. DESTINO

McCutTcugEn, BLACK, VERLEGER &

SHEA

~ 600 Wilshire Boulevard

Los Angeles, California 90017

(213) 624-2400

A. P. LINDEMANN, JR.

Exxon Corporation 4

1251 Avenue of the Americas ™*

New York, New York 10020

(212) 398-2664

Attorneys for Respondent

Exxon Corporation

WILLIAM SIMON

JOHN S. KINGDON

ALAN M. GRIMALDI

Howrey & SIMON

1730 Pennsylvania Avenue, N.W. _

Washington, D.C. 20006

(202) 783-0800

RayMOND V. McCorp

Shell Oil Company

West Coast Litigation

523 West 6th Street, Suite 540

Los Angeles, California 90014

(213) 816-2270

Attorneys for Respondent

Shell Oil Company

DARRYL SNIDER

BROBECK, PHLEGER & HARRISON

444 South Flower Street

Los Angeles, California 90017

(213) 489-4060

HAROLD E. ZAHNER

JOAN BENJAMIN BROWN

UNOCAL .

1201 West 5th Street, Room 501

Los Angeles, California 90017

(213) 977-7885

Attorneys for Respondent

Union Oil Company of

California

ANTHONY P. BROWN

PuHILip L. JuDSON

RoBerT P. TAYLOR

EDWARD V. ANDERSON

PILLSBURY, MADISON & SuTRO

225 Bush Street

P.O. Box 7880

San Francisco, California 94120

(415) 983-1000

Attorneys for Respondent

Chevron Corporation

ANDREW J. KILCARR

HoGan & HARTSON

555 13th Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5600

CHARLES F. RICE

Mobil Oil Corporation

150 East 42nd Street

New York, New York 10017

(212) 883-4387

Attorneys for Respondent

Mobil Oil Corporation

RoBERT D. WILSON

Texaco Ine.

2000 Westchester Avenue

White Plains, New York 10650

(914) 253-4000

LESLIE C. RANDALL

MAuRYNE 8S. FENNELL

Texaco Ine.

10 Universal City Plaza

Universal City, California 91608

(813) 505-3025

MILTON J. SCHUBIN

BaRRY WILLNER

ATON ARBISSER

KaYE, SCHOLER, FIERMAN, Hays &

HANDLER

425 Park Avenue

New York, New York 10022

(212) 836-8000

Attorneys for Respondent

Texaco Inc.

i

QUESTIONS PRESENTED

1. Whether this Court should review a decision of the

Temporary Emergency Court of Appeals (“TECA’’) that

the Ninth Circuit has exclusive appellate jurisdiction over

an antitrust causation issue decided by the district court,

when TECA’s decision was correct and when an interven-

ing decision by the district court causes the causation

issue no longer to be presented on the facts.

2. Whether this Court should review TECA’s decision

not to decide two other issues collateral to the causation

issue, when that decision was correct because the inter-

vening district court decision also caused those issues no

longer to be involved in a real or substantial controversy,

and when those issues can become so involved only if the

Ninth Cireuit were both to reverse the district court’s

intervening decision and to affirm the causation decision.

ii

PARTIES TO THE PROCEEDING

A listing of parent companies, subsidiaries and affili-

ates of the Respondents is printed in Appendix E, which

due to its length is separately bound.

iii

TABLE OF CONTENTS

Proceedings In The District Court.............

Proceedings In The Courts of Appeal ..........

REASONS FOR DENYING THE WRIT ........

I,

TECA Correctly Decided That The Causation

Issue Is Within The Ninth Cireuit’s Jurisdiction 10

II.

TECA Correctly Determined Not To Decide The

Issues Within Its Jurisdiction............... 13

ITI.

Neither Of The Questions Presented Is Important

Outside Of This Litigation.................. 16

IV.

Mandamus Or Prohibition Is Not Appropriate... 17

CE 3. es eae b we awcase lawns ene 20

F

owrnw wd <a

Appendix A.

Appendix B.

Appendix C.

Appendix D.

Appendix E.

(sepa-

rately

bound)

iv

INDEX TO APPENDICES

Letter to Phillip B. Winberry, Clerk of

the United States Court of Appeals for

the Ninth Cireuit, from Petitioners’ Coun-

sel, dated December 24, 1984.

Plaintiffs’ Status Report Pursuant to

Order of August 24, 1987.

Response of Defendants-Appellees to

Plaintiffs’ Status Report Pursuant to

Order of August 24, 1987.

Plaintiffs’ Further Status Report Pursu-

ant to Order of August 24, 1987 and

Reply to Response of Defendants to

Plaintiffs’ Status Report dated August

25, 1987.

Listing of Parent Companies, Subsidiar-

ies and Affiliates of Respondents.

v

TABLE OF AUTHORITIES CITED

Cases

Page

Bray v. United States, 423 U.S. 73 (1975) ........ 10, 16

Christianson v. Colt Industries Operating Corp., 822

ae Ee GO ED 6.6.6.5 C85 db ckcneacs 16

City of Groton v. Federal Power Commission, 487

F.2d 927 (Temp. Emer. Ct. App. 1973) ....... 10

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

leum Corp., 604 F.2d 179 (2d Cir. 1979) ...... 10, 15

Helstoski v. Meanor, 442 U.S. 500 (1979) ........ 17

Hunt v. Liberty Lobby, Inc., 707 F.2d 1493 (D.C.

Ck SE Ak seke onda eend ite ieaa ee neuns 14

In re Coordinated Pre-Trial Proceedings in Petro-

leum Products Antitrust Litigation M.D.L. No.

150, 761 F.2d 710 (Temp. Emer. Ct. App. 1985) 6

In re Coordinated Pre-Trial Proceedings in Petro-

leum Products Antitrust Litigation M.D.L. No.

150, 788 F.2d 1571 (Temp. Emer. Ct. App. 1986) 7

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

cert. denied, 452 U.S. 967 (1981) ............. 11

Quincy Oil, Inc. v. Federal Energy Administration,

620 F.2d 890 (Temp. Emer. Ct. App. 1980) .... 12

RJG Cab, Inc. v. Hodel, 797 F.2d 111 (3d Cir. 1986) 11

Sierra Club v. Morton, 405 U.S. 727 (1972) ...... 18

Super Tire Engineering Co. v. McCorkle, 416 U.S.

Re SE acne Vai ako rea eee kee i ko hae. 18

Texaco Inc. v. Department of Energy, 616 F.2d 1193

(Temp. Emer. Ct. App. 1979) ................ 10, 11

United States v. F. & M. Schaefer Brewing Co., 356

alee Se EE Gaba caeckndadcevencdsheadsnce 18

vi

TABLE OF AUTHORITIES CITED

Cases

Page

United States, v. Wyatt, 680 F.2d 1080 (5th Cir.

Peake dex ENeekee heed nbndek ide és need 11

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S.

Pn tare ekiNOUdnd bee as onde son edneass 18

Zahn v. International Paper Co., 414 U.S. 291

| SE Sos deere WAN ORES hades sec kennekwe as 18

Rules

SN IS CED Dc Sco ccccccvcwccossscess 17

Supreme Court Rule 27.2... ......cccccccccccces 19

Federal Rule of Civil Procedure 54(b) .......... 5

Statutes

is + ¢cocces akan hae ii awh eka onsen 6% 3

i cL tee ae bbe ak CCRE EROS Cede Hae 3

seb cian nnwenea the dee heb eeweeus 3, 11, 12

in. <.saprtncedgeedesd ee baceos 18

Economic Stabilization Act of 1970............. 10

Emergency Petroleum Allocation Act of 1973 .... 10

Other Authority

133 Cong. Ree. S6099 (daily ed. May 6, 1987) ... 16

No. 87-571

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1987

In re: Coordinated Pretrial Proceedings In

Petroleum Products Antitrust Litigation, M.D.L. 150

City oF LONG BEACH AND

STATE OF CALIFORNIA,

Plaintiffs-Petitioners,

vs.

EXXON CORPORATION,

MoBIL OIL CORPORATION,

SHELL O1L COMPANY,

CHEVRON CORPORATION,

(FORMERLY STANDARD OIL COMPANY

OF CALIFORNIA),

TEXACO INC., and

UNION O1L COMPANY OF CALIFORNIA,

Defendants-Respondents.

ON PETITION FOR WRITS OF CERTIORARI,

MANDAMUS AND PROHIBITION

TO THE TEMPORARY EMERGENCY

COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents respectfully request that this Court deny

the petition for writs of certiorari, mandamus and prohi-

bition (the “Petition’”’), seeking review of the Temporary

Emergency Court of Appeals (“TECA”) opinion in this

2

ease. That opinion is printed at Appendix A to the

Petition.

STATEMENT OF THE CASE

Petitioners seek to justify this Court’s premature and

unnecessary intervention in this litigation by pointing to

an alleged “impasse” between TECA and the Ninth Cir-

cuit over which court has appellate jurisdiction of the

district court’s causation decision. Petitioners further

contend that this impasse places them in “an appellate

jurisdictional quagmire from which they cannot escape”

without this Court’s intervention. (Petition, at 3.) In fact,

neither the impasse nor the quagmire exists. Both are

creations of Petitioners’ mischaracterization of the pro-

ceedings in the appellate courts and of the issues actually

decided by the district court and presented for appeal.

Respondents submit this Statement to demonstrate

that there is no impasse over jurisdiction in the courts of

appeal. Rather, the Ninth Circuit’s stay of Petitioners’

appeal expired as a result of the TECA decision, and the

Circuit Court’s review of issues before it, which include

the causation issue, can dispose of Petitioners’ antitrust

claims without the need for this Court to decide the

purported Questions Presented by the Petition or for

TECA ever to decide any issues. This Statement also

shows that any confusion over appellate jurisdiction that

previously existed was of Petitioners’ own making.

Proceedings In The District Court

Petitioners sell crude oil (referred to as “net profits

oil”) to Respondents pursuant to long-term contracts.

Petitioners commenced this litigation in 1975, alleging

that since at least the early 1960’s Respondents had

conspired to depress the prices posted for California

erude oil, including Petitioners’ crude oil, in violation of

3

sections 1 and 2 of the Sherman Act (15 U.S.C. $§ 1 and

2). Petitioners sought treble damages pursuant to section

4 of the Clayton Act (15 U.S.C. $15) on the general

theory that “but for” the alleged conspiracy they would

have received higher prices for their crude oil. For the

period when Petitioners received the maximum prices

permitted by federal price control regulations (from Au-

gust 15, 1971 through October 1, 1976), Petitioners

claimed that those ceiling prices would have been higher

because federal price controls would have locked in the

“but for” prices as the ceiling prices. They sought dam-

ages equal to three times the gap between these hypotheti-

eal higher ceiling prices and the actual ceiling prices they

received. Petitioners also sought damages for breach of

contract.

In July 1984, the district court entered partial sum-

mary judgment (the “Price Control Decision”) dis-

missing Petitioners’ antitrust damage claims from April

12, 1972 through October 1, 1976 and thereafter to the

end of the damage period to the extent based upon “but

for” ceiling prices higher than the actual ceiling prices.

(Petition, at B-9.) The district court made three separate

decisions in granting that summary judgment. Most fun-

damentally, it held that governmental decisions to main-

tain price ceilings based upon the existing California

posted prices as a matter of law “supplanted the conspir-

acy as the effective reason for the level of the controiled

prices,” thereby precluding Petitioners’ damage claims

from satisfying the causation requirements of section 4 of

the Clayton Act (the “Causation Decision’’).' (Petition,

‘Contrary to Petitioners’ suggestion (Petition, at 8 & n.5), the

district court did not hold that the price control statutes or regula-

tions had “suspended or abolished” the antitrust laws or vested the

price control agencies with “exclusive jurisdiction” over Petitioners’

claims. Indeed, the district court in 1978 had denied defendants’

4

at B-7.) The district court also made two decisions per-

mitting it to apply this basic causation ruling to the

period prior to October 25, 1973, when Petitioners con-

tended that price ceilings did not apply to their crude oil.

First, the district court rejected Petitioners’ claim that

they were totally exempt from price controls prior to that

date (the “Exemption Decision”). Second, it rejected

Petitioners’ claim that Phase III price controls were not

legally binding regulations (the “Phase III Decision’’).”

At the time of the Price Control Decision, the district

court assumed arguendo that Petitioners could prove that

the posted prices upon which the ceiling prices were

based were set by conspiracy. The Price Control Decision

stated that “[f]or purposes of this decision, it is assumed,

without in any manner deciding, that the prices for net

profits oil received by Long Beach during the thirty-day

period ending August 14, 1971 were set pursuant to

conspiracy among the defendants.” (Petition, at B-6.)

The district court next granted a further partial sum-

mary judgment (the “Entitlements Decision”) on the

ground that another federal regulatory program — the

entitlements program — was the superseding cause of

Petitioners’ injury after November 1, 1974. The Entitle-

ments Decision resulted in the outright dismissal of the

remaining post-October 1976 antitrust claims and pro-

vided an alternative basis for dismissal of the post-

November 1974 antitrust claims previously dismissed by

the Price Control Decision (i.¢., those claims based upon

motion for partial summary judgment based upon exclusive jurisdic-

tion and its 1984 summary judgment accepted the earlier decision as

correct.

*The Petition apparently uses “Price Control issue” (as well as

“Neeb issue”) to refer to the Causation Issue. Except for a passing

reference in one footnote (id. at 8 n.6), the Petition does not mention

the Exemption or Phase III Issues.

5

the gap between the “but for” ceiling prices and the

actual ceiling prices).

Finally, in September 1985, the district court granted

summary judgment (the “Merits Decision”) dismissing

Petitioners’ antitrust claims in their entirety. This deci-

sion rested upon two alternative grounds, each of which is

inconsistent with the assumption underlying the Price

Control Decision that the pre-price control posted prices

were set by defendants’ conspiracy. The district court

found that those prices were attributable not to conspir-

acy, but to yet a third federal regulatory program — the

Mandatory Oil Import Program. As an alternative hold-

ing, it found that “[a]fter more than eight years of

discovery, the plaintiffs simply do not have the evidence

to prove the antitrust conspiracy that they allege.” The

district court entered final judgments pursuant to Fed. R.

Civ. P. 54(b) dismissing Petitioners’ antitrust claims.

Petitioners’ contract claims, although limited as to time

period by other summary judgments, remain pending in

the district court.

Proceedings In The Courts of Appeal

On December 24, 1984, Petitioners commenced the

appellate process by filing in the Ninth Circuit and TECA

identical petitions for interlocutory appeal of the Price

Control and Entitlements Decisions. Petitioners’ identi-

eal cover letters to each court (App. A hereto is Petition-

ers’ letter to the Ninth Cireuit) correctly stated that two

of the three issues identified for appeal — the Causation

Issue and the Entitlements Issue — were within the

Ninth Cireuit’s exclusive jurisdiction. The Ninth Circuit

responded first, denying the petitions without prejudice

pending renewal “in the event that the [TECA] rules that

6

it lacks subject matter jurisdiction.’’* (Petition, at D-1.)

On April 18, 1985, TECA decided to accept an interlocu-

tory appeal of the Price Control Decision, apparently (but

not clearly) limited to the Exemption and Phase III

Issues, and to decline the appeal from the Entitlements

Decision on the ground that TECA “does not have juris-

diction over damage issues in antitrust actions.” 761 F.2d

710, 712 (Temp. Emer. Ct. App. 1985). TECA’s Opinion

did not discuss the Causation Issue.

Petitioners then filed a motion requesting that TECA

also review the Causation Issue. Petitioners’ reversal of

position was based upon their newly made contention that

the district court actually had decided an exclusive juris-

diction issue, within TECA’s jurisdiction, and not an

antitrust causation issue, within the Ninth Circuit’s juris-

diction. In May 1985, TECA provisionally agreed to hear

the Causation Issue, reserving decision on its jurisdiction

until after briefing and argument. Petitioners’ reversal of

position, which led TECA provisionally to accept the issue

for review, engendered the confusion on the jurisdictional

issue that persisted until TECA’s recent ruling that the

Ninth Circuit had jurisdiction over the Causation Issue.

As discussed at pp. 11-12 infra, TECA correctly recog-

nized in that ruling that the question presented was an

antitrust causation issue within the Ninth Circuit’s juris-

diction, as Petitioners had initially contended.

Having convinced TECA to proceed with an interlocu-

tory appeal of all issues decided by the Price Control

Decision, Petitioners renewed their petition in the Ninth

‘The Petition’s statement (id. at 9 & n.7) that the Ninth Circuit

there “agreed” that all the issues decided by the Price Control

Decision were within TECA’s jurisdiction misstates this Order. The

Petition omits (without indicating the omission) the statement that

the Order was without prejudice and should be renewed if TECA

determined that it lacked jurisdiction.

7

Circuit for interlocutory review of the Entitlements Deci-

sion. Before the Ninth Circuit could act on the renewed

petition, the district court’s Merits Decision resulted in

final judgment dismissing the antitrust claims. The Mer-

its Decision caused the Ninth Circuit to refuse to accept

interlocutory appeal at a time when final appeal was

imminent. Similarly, the Merits Decision caused TECA to

dismiss the interlocutory appeal it had accepted, because

it no longer satisfied the requirements for such appeal.

788 F.2d 1571, 1574 (Temp. Emer. Ct. App. 1986).

After the entry of final judgment on the antitrust

claims, Petitioners filed new appeals to both courts. They

continued the confusion by again asserting that TECA

had jurisdiction over the Causation Issue. They caused

TECA, over Respondents’ objection, again to reserve

decision on jurisdiction until after briefing and argument.

And Petitioners, by arguing to the Ninth Circuit that

TECA had jurisdiction over the Causation Issue, caused

it to stay all briefing in that court “until TECA decides

whether it has jurisdiction over the price ceiling issue,”

(Petition, at E-1)* even though all parties agreed that the

Ninth Cireuit had jurisdiction over the other issues de-

eided by the district court. The Ninth Circuit noted that

TECA then had not yet determined whether it had juris-

diction over that issue and correctly reasoned that “[a]

decision by TECA on whether it has jurisdiction over the

“The Petition mischaracterizes the Ninth Circuit’s stay as effective

“pending TECA’s decision of the Price Control Issue” (1d. at Ques-

tion Presented 1) and “pending a decision by TECA of those issues

within TECA’s exclusive jurisdiction” (id. at 4). If either of these

statements were accurate, the Ninth Circuit stay would remain

effective, giving some basis for the alleged “impasse.”” However, the

stay actually ran to the time when “TECA decide[d] whether it

ha[d] jurisdiction over the” Causation Issue. Id. at E-1 (emphasis

added). Since TECA has made that decision, the stay is no longer

effective.

8

price ceiling issue will determine whether the issue should

be briefed in the Ninth Circuit.” (Petition, at E-1.) By

later order (Petition, at F-1), the Ninth Circuit continued

the stay for an additional three months or until TECA

“decides whether it has jurisdiction over the price ceiling

issue.” That order requested that the Petitioners file a

status report within 7 days of the expiration of the stay.

On August 18, 1987, TECA issued its Opinion dis-

missing the appeals and, more importantly, ruling that

the Causation Issue “is within the exclusive appellate

jurisdiction of the Ninth Circuit.” (Petition, at A-6.)

TECA made that ruling after extensive briefing and

argument and aware that the Ninth Circuit had stayed its

proceedings until TECA decided the jurisdictional issue.°

TECA’s ruling, as Petitioners’ Status Report recognized

(App. B hereto), caused the Ninth Cireuit stay to expire

by its terms. The parties’ status reports (Apps. B and C

hereto) requested the Ninth Circuit to proceed to hear

and, if necessary, decide all issues within its jurisdiction,

including the Causation Issue.® The status reports also

asked the Ninth Circuit to rule on motions concerning the

lengths of briefs and to set a briefing schedule so that the

*Petitioners’ contention that TECA’s ruling on the jurisdictional

issue is only a suggestion, not a holding, (Petition, at 12) is

disingenuous at best. The parties fully briefed, argued and presented

the jurisdictional issue for decision by TECA. TECA knew that its

decision of that issue was important, even if it did not decide any

issues on the merits, because the Ninth Circuit was awaiting its

decision on jurisdiction. And, the parties requested TECA to decide

the jurisdictional issue.

*Petitioners later filed a further status report (App. D hereto)

informing the Ninth Circuit of their intention to file the Petition in

this Court and suggesting that the Ninth Cireuit should proceed on

the causation issue only “[i]n the event the Supreme Court denies

plaintiffs’ petition for writ of certiorari or grants the petition but

does not rule that TECA must decide the ‘Neeb’ issue.”

9

_Cireuit Court could proceed finally to resolve those

appeals.

REASONS FOR DENYING THE WRIT

The Petition asks this Court to reverse the two deci-

sions that TECA made: (1) that TECA’s limited issue

jurisdiction does not extend to the Causation Issue and

(2) that TECA should not review any of the issues

decided by the Price Control Decision because the Merits

Decision removed its assumed predicate of an antecedent

conspiracy. .

Neither of these decisions merits this Court’s consider-

ation for several compelling reasons. First, both decisions

are correct: TECA refused to overreach to assume juris-

diction over an antitrust issue not within its limited grant

of jurisdiction. And, it properly exercised judicial re-

straint in not deciding issues within its jurisdiction that

may never be significant. Second, neither of the questions

decided by TECA is important outside of this litigation.

Third, even if the Petition presented important and recur-

ring questions — which it does not — this Court should

not undertake to review these questions when appeals

concerning issues to which they relate are pending before

the Ninth Circuit.

None of Petitioners’ reasons for premature review by

this Court withstands scrutiny. Appellate review is not at

an impasse, but is progressing through the Ninth Circuit

toward this Court in the normal fashion. This is not a

proper case for certiorari, much less one of the extraordi-

nary writs. Accordingly, this Court should deny the

Petition.

10

I.

TECA Correctly Decided That The Causation Issue Is

Within The Ninth Circuit’s Jurisdiction

Early in TECA’s existence, TECA and the Circuit

Courts settled the contours of TECA’s jurisdiction by

limiting TECA review to issues that arise under the

federal price control statutes (Economie Stabilization

Act of 1970 (“ESA”) and Emergency Petroleum Alloca-

tion Act of 1973 (“EPAA”)) or their implementing regu-

lations. See, e.g., Coastal States Marketing, Inc. v. New

England Petrolewm Corp., -604 F.2d 179, 185 (2d Cir.

1979); City of Groton v. Federal Power Commission, 487

F.2d 927, 936 (Temp. Emer. Ct. App. 1973). This Court

also recognized that Congress vested TECA with jurisdic-

tion over such issues, but no others, in order to assure

uniform and expert interpretation of the substantive pro-

visions of the price control statutes and regulations. Bray

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

TECA has jurisdiction only where the district court

actually decided an ESA or EPAA issue. Texaco Inc. v.

Department of Energy, 616 F.2d 1193, 1198 (Temp. Emer.

Ct. App. 1979) (“For purposes of determining TECA

jurisdiction, what is determinative is not whether an

EPAA question exists but whether an EPAA question has

been adjudicated’’). Because TECA has “issue,” and not

“ease,” jurisdiction, its appellate jurisdiction is

“not an either-or proposition with regard to the case

as a whole. Rather the Court takes jurisdiction over

those issues which it has authority to decide, refusing

to hear any others, although they are all part of the

Same case or controversy.”

11

Texaco Inc. v. Department of Energy, 616 F.2d at 1197."

Accordingly, TECA must “dissect the issues actually

before [it] to see whether the decision in the district

court involved the adjudication of an EPAA issue.” RJG

Cab, Ine. v. Hodel, 797 F.2d 111, 117 (3d Cir. 1986).

An ESA or EPAA issue, within TECA’s jurisdiction, is

one requiring either the construction, or a determination

of the validity, of the ESA or the EPAA or their regula-

tions, as is clear even from the opinions cited in the

Petition. See, e.g., United States v. Wyatt, 680 F.2d 1080,

1086 (5th Cir. 1982) (TECA had jurisdiction over a

constitutional challenge to the validity of EPAA regula-

tions and an interpretation of the contested terms of

those regulations, which the court described as “classic

‘EPAA issues’”). The Petition correctly states that a

determination of the preemptive effect of the price control

statutes which involves construction of those statutes

raises an ESA or EPAA issue. See, e.g., Mobil Oil Corp. v.

Tully, 639 F.2d 912, 915 (2d Cir.), cert. denied, 452 U.S.

967 (1981) (preemption issue required “construing and

interpreting the EPAA and its regulations”). However,

that principle is inapplicable here because, as TECA

ultimately coneluded, the Price Control Decision did not

involve a preemption or exclusive jurisdiction decision.

TECA correctly decided that the issue actually adjudi-

cated was an “antitrust damages issue under Section 4 of

the Clayton Act,” because it involved analysis of “the

proper causation standard required of appellants to prove

their claims of antitrust injury and antitrust damages.”

(Petition, at A-13.) The district court did not decide, as

"TECA construes its jurisdiction mindful that “ ‘courts of special

jurisdiction should strictly construe their statutory grants of juris-

diction.’ Texaco Inc. v. Department of Energy, 616 F.2d at 1197

(quoting United States v. Cooper, 482 F.2d 1393, 1398 (Temp. Emer.

Ct. App. 1973) ).

12

the Petition contends (id. at 9, 12), that price control

officials had either the authority, or the intent, to preempt

the antitrust laws. The actions of price control officials

simply provided the factual background to which the

district court applied principles of antitrust causation. In

so doing, the district court construed section 4 of the

Clayton Act, and not the price control statutes or their

regulations.

The Petition’s Appendices confirm the correctness of

TECA’s analysis of the Price Control Decision. The Deci-

sion shows that it is based upon the principle that a

plaintiff is not injured within the meaning of section 4 of

the Clayton Act where government action prevents him

“from asserting against the defendants a ‘legal right’

cognizable under the antitrust laws,” and it cites the

antitrust causation holdings in three opinions. (Petition,

at B-8.) The district court’s Conclusions of Law (Peti-

tion, at C-25-26; see nos. 5, 6 and 7) also clearly show that

it made an antitrust causation ruling interpreting section

4 of the Clayton Act, and did not interpret the ESA, the

EPAA or their regulations.

None of the opinions cited in the Petition supports

extending TECA’s jurisdiction to the Causation Issue

simply because price controls were involved. Opinions

such as Quincy Oil, Inc. v. Federal Energy Administra-

tion, 620 F.2d 890, 893 (Temp. Emer. Ct. App. 1980),

simply recognize TECA’s jurisdiction to decide “subsidi-

ary, procedural and threshold questions such as standing,

ripeness and venue” in order that it may perform “the

normal and necessary functions of any appellate court.”

That principle does not extend TECA jurisdiction to

important and substantive issues, such as the antitrust

Causation Issue.

Rather, the settled principles of TECA’s issue jurisdic-

tion discussed above establish that the issue is not within

13

TECA’s jurisdiction. There is no reason for this Court at

this late date in TECA’s existence to disturb any of those

principles. (See p. 16 infra.) Moreover, in light of the

district court’s intervening Merits Decision that there

was no evidence of a conspiracy in the first place, the

issue whether such conspiracy was the proximate cause of

the alleged injury is no longer presented. (See pp. 13-14

infra.) This Court should not undertake review where the

issue is hypothetical.

In addition to providing a reason why this Court should

not review the jurisdictional issue, the correctness of

TECA’s decision demonstrates that there is no appellate

“quagmire.” Thus, there is no reason to believe that the

Ninth Cireuit will reach a conclusion different than TECA

if it ever needs to reach the issue. Certainly, the Ninth

Cireuit’s January 1985 decision to defer the jurisdictional

issue for TECA’s determination in the first instance does

not indicate that it will disagree with the determination

TECA made the only time it ever considered the merits of

the jurisdictional issue.

Il.

TECA Correctly Determined Not To Decide The Issues

Within Its Jurisdiction

Having decided that the Causation Issue was not

within its jurisdiction, TECA needed to decide whether it

nonetheless should proceed to decide the Exemption and

Phase III Issues, which are within its jurisdiction. TECA

determined not to proceed on those issues, finding that

they “are not now involved in a real and substantial

controversy.” (Petition, at A-14.) TECA’s determination

is clearly correct for three distinct reasons.

The first is that the Merits Decision rendered the Price

Control Decision — including the decisions on the Causa-

14

tion, Exemption and Phase III Issues — moot by destroy-

ing its assumed predicate of an antecedent conspiracy.

(See p. 4 supra.) The district court’s finding that there

was no antecedent conspiracy has final preclusive effect,

which is not destroyed by the pendency of its appeal to

the Ninth Cireuit. See, e.g., Hunt v. Liberty Lobby, Inc.,

707 F.2d 1493, 1497-98 (D.C. Cir. 1983). Since TECA had

no jurisdiction to review that finding, TECA had to take it

as having extinguished the antitrust claims to which the

collateral Price Control Decision issues pertained. The

Petition’s argument that those issues are not moot simply

because “a mooting event may later occur” and all of the

eases cited in the Petition (id. at 13-14) are inapposite.

The mooting event here (the Merits Decision) already has

occurred. The issues are no less moot because a subse-

quent event (a Ninth Circuit reversal) may render them

not moot in the future.

The second reason is judicial economy and efficiency.

TECA may never need to review the Exemption or Phase

III Decisions. Only if the Ninth Cireuit (or this Court

reviewing the Ninth Circuit) were to reverse both alterna-

tive holdings of the Merits Decision would such review be

necessary to resolve Petitioners’ antitrust claims. Thus,

the Petition (id. at 14) concedes that the Merits Decision

provides a “sufficient basis” for dismissal of Petitioners’

antitrust claims. In these circumstances it would have

been wasteful of judicial resources for TECA to have

decided the issues and even more wasteful for this Court

now to decide to compel TECA to decide them.

The third reason is that the Exemption and Phase III

issues, which are the only issues within TECA’s jurisdic-

tion, are wholly collateral to, and dependent upon, the

Causation Decision. Even if the Ninth Cireuit were to

reverse the Merits Decision, those issues may become

significant only if the Ninth Circuit also were to affirm the

15

Causation Issue. In such circumstances, TECA should

stay its hand until the Ninth Circuit’s action makes it

clear that a decision by TECA will be significant. See

Coastal States Marketing, Inc. v. New England Petroleum

Corp., 604 F.2d at 187 n.10 (decision whether TECA or

the Cireuit Court should stay its hand depends upon the

circumstances of each case).

The Petition argues that TECA’s determination not to

decide those issues must be incorrect because the Ninth

Cireuit also could decide “to do nothing” if it “were to

apply TECA’s reasoning.” (Jd. at 14.) This argument is

incorrect, because the appeals to both courts are quite

different and the Ninth Cireuit could not, by following

TECA’s reasoning, decide to do nothing. The Merits

Decision does not depend upon any assumed predicate

that has been removed by a later decision of the district

court. Accordingly, it is not moot in the same sense that

the Price Control Decision was rendered moot by the

Merits Decision. Moreover, Petitioners’ contention that

the Ninth Cireuit could refuse to review the Entitlement

Decision because the Price Control Decision renders it

“surplusage” is based upon an outright distortion of that

decision. The Petition contends that the Price Control

Decision “cuts off damages from April 12, 1972 through

the end of the damage period.” (Petition, at 14-15.) The

Price Control Decision, however, cuts off damages only

through October 1, 1976. Thereafter, it dismissed only a

portion of those damages such that the Entitlements

Decision (or the Merits Decision) is necessary to dismiss

the remainder of those damages. Finally, Petitioners’

argument that the Ninth Cireuit could do nothing totally

ignores TECA’s decision that the Causation Decision is

within the Ninth Cireuit’s jurisdiction.

16

Il.

Neither Of The Questions Presented Is Important

Outside Of This Litigation

Both issues decided by TECA not only are not now

important in this litigation, but also never will be impor-

tant outside of this litigation. TECA and the Circuit

Courts (with this Court’s guidance in the Bray opinion,

supra) largely settled the contours of TECA’s issue

jurisdiction during the period when TECA was more

active. The issue is now relatively unimportant because

economy-wide price controls expired 14 years ago and oil

industry price controls expired almost 7 years ago. As a

result, there remain pending very few cases presenting

EPA or BSAA issues.® Moreover, even if issues involving

TECA jurisdiction were generally important, the issue

upon which TECA’s decision turned in this ease still

would not be important. That very narrow issue depended

entirely upon the determination whether the Price Con-

trol Decision adjudicated an antitrust causation or an

exclusive jurisdiction issue, not upon the decision of any

issue of jurisdictional law. Thus, the parties do not dis-

pute that the former issue is for the Ninth Cireuit and

that the latter issue would be for TECA.

The Petition’s analogy to the jurisdiction of the Fed-

eral Circuit, and citation to Christianson v. Colt Industries

Operating Corp., 822 F.2d 1544 (Fed. Cir. 1987), does not

support review of the TECA jurisdiction issue presented

here. Congress granted “case, not issue, jurisdiction” to

the Federal Circuit. 822 F.2d at 1552 n.9. Therefore, a

decision explaining the contours of TECA issue jurisdic-

*When he introduced legislation in May 1987 to abolish TECA,

Senator Hatch indicated that only 21 cases remained pending before

TECA. 133 Cong. Ree. S6099 (daily ed. May 6, 1987).

17

tion will not be useful in delimiting the contours of the

Federal Circuit’s case jurisdiction.

Similarly, the mootness issue is limited, at most, to a

very small number of cases. It can exist only where

Congress has vested appellate jurisdiction in two courts

over different issues in the same case. Only in such a case

can one appellate court be precluded from reaching an

issue because it is bound by a lower court decision in the

same case which it cannot review. Since TECA, with its

declining case load, is the only federal appellate court

with issue jurisdiction, this Court would serve little pur-

pose by providing guidance on this question.

IV.

Mandamus Or Prohibition Is Not Appropriate

Petitioners’ purported description of the Petition as

also seeking mandamus or prohibition (referred to herein

collectively as “mandamus’’) provides no reason for this

Court to intervene where review by certiorari is inappro-

priate for all of the reasons discussed above. Moreover,

Petitioners have failed to comply with either the substan-

tive or procedural requirements for mandamus.

Supreme Court Rule 26 creates a heavy burden for

mandamus: “It must be shown that the writ will be in aid

of the Court’s appellate jurisdiction, that there are pre-

sent exceptional circumstances warranting the exercise of

the Court’s discretionary powers, and that adequate relief

eannot be had in any other form or from any other court.”

“*The general principle which governs proceedings by

mandamus is, that whatever can be done without the

employment of that extraordinary writ, may not be done

with it. It lies only when there is practically no other

remedy.” Helstoski v. Meanor, 442 U.S. 500, 505 (1979)

(quoting Ex parte Rowland, 104 U.S. 604, 617 (1882)).

18

Petitioners have failed to show either that exceptional

circumstances are present or that adequate relief cannot

be had in another form or court. Their only attempt to

justify the issuance of an extraordinary writ is their

insistence that only with the help of this Court ean they

escape from the “appellate jurisdictional quagmire”’ in

which they are “trapped.” (Petition, at 3; see also 11.)

But, as demonstrated at pp. 8-9 supra, this “jurisdictional

quagmire” does not exist because the Ninth Circuit stay

expired by its terms once TECA decided the jurisdic-

tional issue.

Petitioners similarly have failed to demonstrate the

absence of other adequate relief. Certainly review of the

TECA opinion by writ of certiorari under 28 U.S.C.

§ 1254(1) is a potential remedy, as Petitioners acknowl-

edge by petitioning for such a writ themselves. Accord-

ingly, this Court should not issue a writ of mandamus if it

finds that certiorari is not merited.” The Ninth Cireuit

also could grant Petitioners adequate relief. If the Ninth

Cireuit were to reverse the Merits Decision and the

Causation Decision, Petitioners’ antitrust claims would

be fully reinstated, leaving no decisions for TECA on the

antitrust claims. Alternatively, if the Ninth Circuit affi

*This Court has consistently reviewed a Circuit Court’s dismissal

or other disposition of a case for lack of jurisdiction by writ of

certiorari, not by extraordinary writ. See, e.g., United States v. F. & M.

Schaefer Brewing Co., 356 U.S. 227, 230-31 (1958) (Seeond Circuit

dismissed appeal as untimely); Verlinden B.V. v. Central Bank of

Nigeria, 461 U.S. 480, 485-86 (1983) (Second Cireuit dismissed

appeal for lack of subject-matter jurisdiction); Sierra Club v. Morton,

405 U.S. 727, 731 (1972) (Ninth Cireuit vacated injunction on

grounds that petitioners lacked standing); Super Tire Engineering

Co. v. McCorkle, 416 U.S. 115, 121 (1974) (Third Cireuit dismissed

ease for mootness); Zahn v. International Paper Co., 414 U.S. 291, 292

(1973) (Seeond Circuit affirmed District Court’s refusal to certify a

class on jurisdictional amount-in-controversy grounds).

19

rms the Merits Decision, Petitioners’ antitrust claims

remain dismissed, but again there also are no decisions

left for TECA on those issues. In these circumstances,

this Court should not issue an extraordinary writ compel-

ling TECA to act before the Ninth Circuit.

This Court also should reject the Petition for manda-

mus on procedural grounds. Petitioners failed to comply

with Supreme Court Rule 27.2(a), which requires that a

petition seeking a writ of mandamus “identify by names

and office or function all persons against whom relief is

sought ***.” The Petition does not name the TECA

panel. Moreover, Supreme Court Rule 27.2(b) provides

that “[t]he petition shall be served on the judge or judges

to whom the writ is sought to be directed * * *.” Petition-

ers also failed to serve the TECA panel. (See Petition,

Proof of Service By Mail.)

20

CONCLUSION

For the reasons stated above, the Petition for writs of

certiorari, mandamus and prohibition should be denied.

Respectfully submitted,

RONALD C. REDCAY

COUNSEL OF RECORD

MATTHEW T. HEARTNEY

HuGHES HuBBARD & REED

555 South Flower Street

37th Floor

Los Angeles, California 90071

(213) 489-5140

CHARLES W. MATTHEWS OTIS PRATT PEARSALL

Exxon Corporation JAMES F. SPEYER

P.O. Box 2180 HuGHES HUBBARD & REED

1895 Exxon Building One Wall Street

Houston, Texas 77001 New York, New York 10005

(713) 656-3366 (212) 709-7000

Puitip K. VERLEGER Attorneys for Respondents

Davip A. DESTINO Exzon Corporation,

McCutTcHEN, BLACK, Mobil Oil Corporation,

VERLEGER & SHEA Shell Oil Company,

600 Wilshire Boulevard Texaco Inc. and Union Oil

Los Angeles, California 90017 Company of California

(213) 624-2400

WILLIAM SIMON

A. P. LINDEMANN, JR.

JOHN S. KINGDON

Exxon Corporation ALAN M. GRIMALDI

1251 Avenue of the Americas Howrey & SIMON

New York, New York 10020 1730 Pennsylvania Avenue, N.W.

(212) 398-2664 Washington, D.C. 20006

Attorneys for Respondent (202) 783-0800

Exxon Corporation RAYMOND V. McCorp

Shell Oil Company

West Coast Litigation

523 West 6th Street, Suite 540

Los Angeles, California 90014

(213) 816-2270

Attorneys for Respondent

Shell Oil Company

DARRYL SNIDER

BROBECK, PHLEGER & HARRISON

444 South Flower Street

Los Angeles, California 90017

(213) 489-4060

HAROLD E. ZAHNER

JOAN BENJAMIN BROWN

UNOCAL

1201 West 5th Street

Room 501

Los Angeles, California 90017

(123) 977-6404

Attorneys for Respondent

Union Oil Company of

California

ANTHONY P. BROWN

Puiuip L. JUDSON

RoBERT P. TAYLOR

EDWARD V. ANDERSON

PILLSBURY, MaDISON & SUTRO

225 Bush Street

P.O. Box 7880

San Francisco, California 94120

(415) 983-1000

Attorneys for Respondent

Chevron Corporation

ANDREW J. KILCARR

HoGan & HARTSON

555 13th Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5600

21

CHARLES F. RICE

Mobil Oil Corporation

150 East 42nd Street

New York, New York, 10017

(212) 883-4387

Attorneys for Respondent

Mobil Oil Corporation

RoBeErT D. WILSON

Texaco Inc.

2000 Westchester Avenue

White Plains, New York 10650

(914) 253-4000

LESLIE C. RANDALL

MauRYNE S. FENNELL

Texaco Inc.

10 Universal City Plaza

Universal City, California 91608

(813) 505-3025

MILTON J. SCHUBIN

BarRRY WILLNER

ATON ARBISSER

Kaye, SCHOLER, FIERMAN, Hays &

HANDLER

425 Park Avenue

New York, New York 10022

(212) 836-8000

Attorneys for Respondent

Texaco Inc.

A-1

APPENDIX A

LETTERHEAD

December 24, 1984

Honorable Phillip B. Winberry

Clerk of the United States Court of Appeals

for the Ninth Circuit

P.O. Box 547

San Francisco, California 94101

Dear Mr. Winberry:

Enclosed for filing are an original and three copies each

of two Petitions for permission to appeal two orders,

certified for interlocutory appeal on December 17, 1984,

by the United States District Court for the Central

District of California. We have bound these two petitions

together for the Court’s convenience, because the back-

ground of the action and the reasons necessitating imme-

diate appeal are common; however, the respective issues

on which appeal is sought are entirely distinct.

These Petitions are also being filed with the United

States Temporary Emergency Court of Appeals, in light

of various decisions, including Coastal States Marketing,

Inc. v. New England Petroleum Corporation, 604 F.2d 179,

187, n.10 (2d Cir. 1979), which noted that different issues

treated in a lower court’s decision are to be appealed to

A-2

different courts of appeals where the exclusive jurisdic-

tion of the Temporary Emergency Court of Appeals may

be involved.

We believe that the antitrust damage issues stated in

Question 1 of the Petition entitled “Petition . .. to Appeal

Decision on Federal Price Ceilings,” appearing at page 2

thereof, are subjects within the normal jurisdiction of the

Cireuit Courts of Appeals. Which court has jurisdiction

over the exemption issue defined in Question 2, also at

page 2 of that Petition, is not so clear, and that issue may

well be a matter for this Court to decide. The issues

treated in the Petition entitled “Petition ...to Appeal

Decision on Federal Entitlements Program” are matters

that we believe are within the jurisdiction of the Ninth

Circuit.

‘ In compliance with the local rules of the Ninth Cireuit

Court of Appeals, I hereby request twelve sets of applica-

tion materials for admission to practice before federal

courts in the Ninth Circuit on behalf of those attorneys of

record for plaintiffs who are not already admitted.

Thank you for your cooperation.

Yours truly,

KIMBA M. Woop

B-1

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Docket Nos. 86-5859

86-5860

IN RE:

COORDINATED PRETRIAL PROCEEDINGS IN

PETROLEUM PRODUCTS ANTITRUST

LITIGATION

City oF LONG BEACH, et al.,

Plaintiffs-Appellants,

vs.

STANDARD OIL COMPANY OF CALIFORNIA, et al.,

Defendants-Appellees.

Appeal From A Judgment By The

United States District Court For The

Central District of California

PLAINTIFFS’ STATUS REPORT

PURSUANT TO ORDER OF AUGUST 24, 1987

[Names and addresses of counsel omitted. |

I

PLAINTIFFS’ STATUS REPORT

PURSUANT TO ORDER OF AUGUST 24, 1987

On October 29, 1986 this Court entered an Order

(Judges Goodwin and Alarcon) staying briefing in these

B-2

cases on appeal until the Temporary Emergency Court of

Appeals of the United States (TECA) decides whether it

has jurisdiction over the price ceiling issue, or for a

period of six months, whichever occurs first. A copy of the

Order is attached as Exhibit 1. The Order further pro-

vided that upon expiration of the stay the parties were to

file status reports and, if appropriate, supplemental briefs

in support of their motions to establish a briefing sched-

ule. The six months stay ended without a decision by

TECA.

On May 8, 1987 plaintiffs filed a Status Report Pursu-

ant to Order of October 29, 1986 in which they reported

that oral argument had taken place before TECA on

February 13, 1987 but that no decision had been rendered

within the six months stay period. Plaintiffs also reported

that on April 23, 1987, plaintiffs had filed a motion

addressed to Chief Judge James R. Browning for the

appointment of a three judge panel to preside over all

phases of these consolidated appeals including prebrief-

ing issues. On June 30, 1987 that motion was denied

(Judges Pregerson and Alarcon).

On August 18, 1987, TECA rendered its decision, dis-

missing plaintiffs’ appeals “on the basis that they failed

to satisfy the jurisdictional requirements provided by

Section 211(b) (2) of the ESA, incorporated in 15 U.S.C.

See. 754(a)(1).” Three opinions were filed, a plurality

opinion by Judge Wesley E. Brown, a concurring opinion

by Judge William H. Becker and a dissenting opinion by

Judge Homer Thornberry. A copy of the three opinions is

attached hereto, marked Exhibit 2.

On August 24, 1987, the Court (Judges Goodwin and

Alarcon) entered an order that these appeals are further

stayed for three months from the entry of the order or

until TECA decides whether it has jurisdiction over the

B-3

price ceiling issue, whichever occurs first. The Order

further provided that within seven days of the expiration

of the stay, plaintiffs shall file a status report. A copy of

that order is attached hereto, marked Exhibit 3. Since

TECA dismissed plaintiffs’ appeals before entry of the

latest stay order that stay has expired and plaintiffs,

therefore, have promptly filed this status report.

II

REQUESTED COURSE OF ACTION

It is appropriate that this Court now rule on the

parties’ respective motions for oversized briefs, for exten-

sions of time for filing briefs and for determination of the

issues to be briefed. The appeals before this court have

been on file for approximately sixteen months and a

briefing schedule has not yet been set. The jurisdictional

questions which have arisen between this Circuit and

TECA unfortunately have disrupted the orderly progress

of these appeals. With the recent ruling by TECA, plain-

tiffs believe that there is no good reason for further delay

in these important actions. Therefore, plaintiffs respect-

fully request this Court to rule on the pending motions

and to set a definitive briefing schedule so that this twelve

year old case will not be further delayed.

Respectfully submitted,

BroaD, SCHULZ, LARSON &

WINEBERG

Royce H. ScHULZ

Gary L. HALLING

One California St., 14th Floor

San Franciseo, CA 94111

Telephone: (415) 986-0300

B-4

HOECKER, MCMAHON & WADE

GARY W. HOECKER

M. BRIAN MCMAHON

DAVID WADE

612 South Flower St., Suite 800

Los Angeles, CA 90017

JOHN R. CALHOUN,

City Attorney

JAMES N. McCaBgE,

Deputy City Attorney

333 West Ocean Blvd.

Long Beach, CA 90802

JOHN VAN DE Kamp,

Attorney General

ANDREA ORDIN,

Chief Assistant Attorney General

SANFORD GRUSKIN,

Assistant Attorney General

3580 Wilshire Blvd.

Los Angeles, CA 90010

THOMAS DOVE,

Deputy Attorney General

RICHARD LIGHT,

Deputy Attorney General

Office of the Attorney General

6000 State Building

350 McAllister Street

San Franciseo, CA 94102

Telephone: (415) 557-0211

Attorneys for Plaintiffs

By: Royce H. ScHuLz

[Proof of service and exhibits omitted. |

eS Se eee ee ee Ce Cae eee YO ee eH ee ae ke es a ” " = we ay

C-1

APPENDIX C

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 86-5859

86-5860

IN RE:

COORDINATED PRETRIAL PROCEEDINGS IN

PETROLEUM PRODUCTS ANTITRUST

LITIGATION

City or Lone BEACH, et al.,

Plaintiffs-Appellants,

V.

STANDARD OIL COMPANY OF CALIFORNIA, et al.,

Defendants-Appellees.

Appeal from a Judgment by the

United States District Court for the

Central District of California

RESPONSE OF DEFENDANTS-APPELLEES

TO PLAINTIFFS’ STATUS REPORT

PURSUANT TO ORDER OF AUGUST 24, 1987

[Names and addresses of counsel omitted. ]

PRELIMINARY

This Court has before it separate motions by plaintiffs-

appellants’ and defendants-appellees’ for the filing of

oversized briefs and for an extension of the time in which

to file briefs. In addition, plaintiffs have asked this Court

to order that the antitrust causation issue arising out of

the District Court’s July 19, 1984, federal price ceilings

summary judgment decision not be briefed (Plfs.’ Motion

at 9-18) or, in the alternative, that plaintiffs be permitted

to satisfy their briefing requirements on that issue by

merely submitting to this Court their briefs filed in TECA

which address, inter alia, the causation issue.* While,

judging from Plaintiffs’ Status Report Pursuant To Or-

der Of August 24, 1987 (‘‘Plaintiffs’ Status Report’),

neither the TECA ruling, the passage of time nor the

appeals filed within the last few weeks in this and a

related matter, has modified any of plaintiffs’ previously

taken positions, the same is not true as to defendants.

Rather, defendants urge that the Court consider the

following factors in ruling on the pending motions.

‘Plaintiffs’ Motion And Memorandum For Oversized Briefs, For

Extension Of Time For Filing Briefs And Re Issues To Be Briefed,

dated August 4, 1986 (‘‘Plfs.’” Motion’’).

*Motion Of Appellees For Leave To File Oversized Briefs And To

Set A Briefing Schedule, dated August 6, 1986 (‘““Defs.’ Motion”).

*Appellants’ Reply Memorandum To Appellees’ Motion For Over-

sized Briefs, For Extension Of Time For Filing Briefs And Re Issues

To Be Briefed, dated August 25, 1986, at 3. -

C-3

II.

REQUEST FOR PERMISSION TO FILE OVERSIZED

BRIEFS.

At the time defendants moved for permission to file

oversized briefs they asked, in recognition of the complex-

ity of this matter and out of an abundance of caution, that

their page limit entitlement be doubled from the 50 pages

each is entitled to under the rules to 100 pages per

defendant. (Defs.’ Motion at 10-23.) Plaintiffs also

sought a doubling of their page limit entitlement to 100

pages. (Plfs.’ Motion at 2-9.) Since that time, defendants

have had an opportunity to re-assess their requirements

and have concluded that while this complex case justifies

oversized briefs, each can adequately address the issues

before this Court in substantially fewer pages than origi-

nally requested. Therefore, defendants hereby amend

their motion and ask that each defendant be allowed 60

pages, 1.e., the 50 pages each is allowed by the rules, plus

10 additional pages in recognition of the complexity of

this matter. Defendants continue to request that they be

permitted to allocate these pages as they deem appropri-

ate between individual defendant briefs and a joint brief,

thereby affording them the flexibility to put as much as

possible into a joint brief and, in the process, limiting the

length of the individual briefs.

In making this request, defendants remain mindful of

the admonition of this Court’s Rule 28-4 that, to the

greatest extent practicable, all parties on a side join in a

single brief. In view of the fact, however, that each

defendant extensively briefed its individual summary

judgment motion in the District Court, it is a virtual

certainty that each will want the opportunity to submit a

separate brief in this Court. How the requested pages will

actually be allocated between the joint and individual

; C-4

briefs, however, must necessarily await review of plain-

tiffs’ opening brief.

ITI.

TIME FOR FILING OF BRIEFS.

Defendants continue to believe, for the reasons set

forth in Defs.’ Motion at 24, that they will need 120 days

from the filing of plaintiffs’ opening brief to prepare and

file responses.

With respect to plaintiffs’ time for the filing of a reply

brief, however, while defendants did not object to al- —

lowing 60 days for that purpose at the time they were

seeking permission to file 600 pages of responsive briefs,

with the significant reduction in the number of pages now

being requested by defendants, we now believe it inappro-

priate to allow plaintiffs 60 days to file a reply brief. We

suggest that 45 days is more than sufficient for that

purpose.

4 A

ISSUES TO BE BRIEFED.

In view of the ruling by TECA, attached as Exhibit 2 to

Plaintiffs’ Status Report, plaintiffs’ request that they not

be required to brief the antitrust causation issue raised by

the District Court’s price ceiling ruling has been rendered

moot. TECA has expressly ruled that this issue is “within

the exclusive appellate jurisdiction of the Ninth Circuit.”

Shp Opinion at 12. As such, it must either be briefed or

abandoned in this Court.

As respects plaintiffs’ alternative request, that in lieu

of including argument on this issue in their briefs filed in

this Court they simply be allowed to submit their TECA

|

C-5

briefs to this Court, defendants continue to believe, for

the reasons set forth in the Response Of Appellees To

Appellants’ Reply Memorandum -Filed August 25, 1986,

dated August 26, 1986, that such an/appreach can only

lead to confusion, prejudice to defendants and a waste of

judicial resources.

V.

THE NEW “CONTRACT” APPEALS.

Plaintiffs’ Status Report makes no mention of the fact

that there are now two more appeals before this Court

involving these same parties, one of which arises out of

the same District Court action from which this appeal has

been taken. (See Exhibits A and B hereto.) The appeal

arising from this very action, Ninth Cireuit Docket No. 87

6301, is from a Rule 54(b) final judgment entered by

Judge Gray in favor of defendants on plaintiffs’ “good

faith” posting contract claim. (A copy of that judgment is

annexed as Exhibit C.) The second, related, appeal, Ninth

Cireuit Docket No. 87 6300, is in People of the State of

California, et al. v. Chevron Corporation, et al., District

Court No. CV-86-1771-WPG. That appeal is also from a

Rule 54(b) final judgment entered by Judge Gray on

contract claims in a later time period but virtually identi-

eal to those previously disposed of in Ninth Circuit

Docket No. 87 6301. (A copy of that judgment is annexed

as Exhibit D. The basis for the judgment in No. 87 6300 is

that that action is an improper attempt to re-litigate

matters previously adjudicated in No. 87 6301.)

While defendants feel obligated to bring these appeals

to the Motion Panel’s attention, it is not their wish that

the appeals in this matter be further delayed by consoli-

dating them with either or both of the new appeals. While

defendants further believe that, in the interest of judicial

C-6

economy, it will be desirable, at the appropriate time, to

consolidate the two new contract appeals, no such request

is being made at this time.

VI.

CONCLUSION.

Defendants respectfully urge that the Court take the

changed circumstances set forth herein into consideration

in ruling on the presently pending motions for leave to file

oversized briefs, extensions of time and limitation of

issues to be briefed.

DATED: September 4, 1987.

Respectfully submitted,

PHILIP K. VERLEGER

DavipD A. DESTINO

McCuTCHEN, BLACK, VERLEGER

& SHEA

r 600 Wilshire Blvd.

Los Angeles, CA 90017

(213) 624-2400

KENNETH P. FOUNTAIN

Exxon Company, U.S.A.

Post Office Box 2180

1861 Exxon Bldg.

Houston, TX 77001

(713) 656-5621

C-7

A. P. LINDEMANN, JR.

Exxon Corporation

1251 Avenue of the Americas

Suite 4850

New York, NY 10020

(212) 333-6438

Davip A. DESTINO

Attorneys for Defendant-Appellee,

EXXON CORPORATION

And On Behalf Of The Following

Defendants-Appellees:

Chevron Corporation

Mobil Oil Corporation

Shell Oil Company

Union Oil Company of California

[Proof of service and exhibits omitted. |

D-1

APPENDIX D

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Docket Nos. 86-5859

86-5860

IN RE:

COORDINATED PRETRIAL PROCEEDINGS IN

PETROLEUM PRODUCTS ANTITRUST

LITIGATION

City OF LONG BEACH, et al.,

Plaintiffs-Appellants,

v.

STANDARD OIL COMPANY OF CALIFORNIA, et al.,

Defendants-Appellees.

Appeal From A Judgment By The

United States District Court For the

Central District of California

PLAINTIFFS’ FURTHER STATUS REPORT

PURSUANT TO ORDER OF AUGUST 24,

1987 AND REPLY TO RESPONSE OF DEFENDANTS

TO PLAINTIFFS’ STATUS

REPORT DATED AUGUST 25, 1987

D-2

Plaintiffs’ Further Status Report

Since filing their status report dated August 25, 1987,

plaintiffs have decided to petition the Supreme Court for

a writ of certiorari with respect to the decision of the

Temporary Emergency Court of Appeals dismissing

plaintiffs’ appeals which were pending in that Court.

Attached hereto, marked Exhibit 1, is a copy of a letter

dated September 9, 1987 from the Clerk of the Supreme

Court and an ORDER EXTENDING TIME TO FILE

PETITION FOR WRIT OF CERTIORARI to October 1,

1987.

On September 11, 1987, the United States Bankruptcy

Court for the Southern District of New York entered a

stipulated order on the motion of plaintiff, the City of

Long Beach, for relief from the automatic stay of the

bankruptcy code to permit plaintiffs to pursue their litiga-

tion against Texaco Inc. Pursuant to that order, para-

graph 1, plaintiffs are now free to prosecute these

consolidated appeals with respect to defendant Texaco. A

true and complete copy of the stipulation and order is

attached hereto, marked Exhibit 2.

Reply to Response of Defendants To Plaintiffs’ Status Re-

port Dated Augmst 25, 1987

In the event the Supreme Court denies plaintiffs’ peti-

tion for writ of certiorari or grants the petition but does

not rule that TECA must decide the “Neeb”’ issue, in the

interests of economy, this Court should permit that issue

to be briefed in this Court by submitting the briefs

already on file before TECA. Great sums of money have

already been spent by the parties in thoroughly briefing

that issue, and nothing of substance could be added to

what has already been written on the Neeb issue. Plain-

tiffs fear that the 100 pages they have requested for their

D-3

principal briefs will prove inadequate if they must also

brief the Neeb issue along with the antitrust issues, the

Entitlements issue and the Mandatory Oi: Import Pro-

gram issue. Defendants failed to explain why plaintiffs’

request if granted would “lead to confusion, prejudice to

defendants and a waste of judicial resources”. Response

at 4.

Plaintiffs object to defendant’s suggestion that in view

of their reduced page requests it would be “inappropriate

to allow plaintiffs 60 days to file a reply brief’. Response

at 3. Defendants suggest that plaintiffs should be given

only 45 days to answer their 300 pages while defendants

are to have 120 days to answer plaintiffs’ 100 pages. No

explanation is offered as to how defendants will be

prejudiced if plaintiffs have the 15 extra days in these

already 16 month old appeals.

Respectfully submitted,

BROAD, SCHULZ, LARSON

& WINEBERG

Royce H. ScHuLz

GarY L. HALLING

One California St., 14th Floor

San Franciseo, CA 94111

Telephone: (415) 986-0300

HOECKER, MCMAHON & WADE

GARY W. HOECKER

M. BRIAN MCMAHON

DAVID WADE

612 S. Flower St., Suite 800

Los Angeles, CA 90017

D-4

JOHN R. CaLHoun,

City Attorney

JAMES N. McCase,

Deputy City Atty.

333 West Ocean Blvd.

11th Floor

Long Beach, CA 90802

Telephone: (213) 590-4120

JOHN K. VAN DE Kamp,

Attorney General,

ANDREA 8. OrpDIN,

Chief Asst. Attorney General

SANFORD N. GRUSKIN,

Asst. Attorney General

3580 Wilshire Blvd.

Los Angeles, CA 90010

Telephone: (213) 736-2292

THOMAS P. Dove,

Deputy Attorney General

RICHARD N. LIGHT,

Deputy Attorney General

Office of the Attorney General

6000 State Building

350 McAllister Street

San Francisco, CA 94102

Telephone: (415) 557-0211

Attorneys for Plainti ffs

By: Royce H. Scuuuz

[Proof of service and exhibits omitted. |

PROOF OF SERVICE BY MAIL

The undersigned declares:

I am, and was at all times herein mentioned, a citizen of

the United States, a resident of the County of Los

Angeles, over the age of 18 years and not a party to this

action or proceeding. My business address is 1706 Maple

Avenue, Los Angeles, California 90015.

On November 2, 1987, I served the foregoing RESPON-

DENTS’ BRIEF IN OPPOSITION on the parties in this

action by mailing true copies thereof to counsel for the

parties, addressed as follows:

Shirley M. Hufstedler

Hufstedler, Miller, Carlson &

Beardsley

355 South Grand Avenue

Los Angeles, California 90071-3107

John K. Van de Kamp

Attorney Genera] of the

State of California

Sanford N. Gruskin

Assistant Attorney General

Richard N. Light

Deputy Attorney General

3580 Wilshire Boulevard

Los Angeles, California 90010

John R. Calhoun

City Attorney

James N. MeCabe

Deputy City Attorney

City Hall, 11th floor

333 West Ocean Boulevard

Long Beach, California 90802

Royce H. Schulz

Gary L. Halling

Broad, Schulz, Larson & Wineberg

One California Street, 14th Floor

San Francisco, California 94111

Gary W. Hoecker

M. Brian McMahon

Hoecker, McMahon & Wade

612 South Flower Street, Suite 800

Los Angeles, California 90017

Charles W. Matthews

Exxon Corporation

P. O. Box 2180

1895 Exxon Building

Houston, Texas 77001

Philip K. Verleger

David A. Destino

McCutchen, Black, Verieger & Shea

600 Wilshire Boulevard

Los Angeles, California 90017

A. P. Lindemann, Jr.

Exxon Corporation

1251 Avenue of the Americas

New York, New York 10020

William Simon

John S. Kingdon

Alan M. Grimaldi

Howrey & Simon

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Raymond V. McCord

Shell Oil Company

West Coast Litigation

523 West 6th Street

Suite 540

Los Angeles, California 90014

Darryl Snider

Brobeck, Phleger & Harrison

444 South Flower Street

Los Angeles, California 90017

Harold E. Zahner

Joan Benjamin Brown

UNOCAL

1201 West 5th Street

Room 501

Los Angeles, California 90017

Anthony P. Brown Robert D. Wilson

Philip L. Judson Texaco Ine.

Robert P. Taylor 2000 Westchester Avenue

Edward 7 ee 7 White Plains, New York 10650

Pillsbury, Madison tro

225 Bush Street Leslie C. Randall

P. 0. Box 7880 Mauryne S. Fennell

San Francisco, California 94120 Texaco Inc.

ian 10 Universal City Plaza

Andrew J. Kilcarr Universal City, California 91608

Hogan & Hartson ; ‘

555 13th Street, N.W. Milton J. Sehubin

Washington, D.C. 20004-1109 Barry Willner

Aton Arbisser

Charies F. Rice Kaye, Seholer, Fierman, Hays &

Mobil Oil Corporation Handler

150 East 42nd Street 425 Park Avenue

New York, New York 10017 New York, New York 10022

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing is

true and correct. Executed in Los Angeles, California,

this 2nd day of ember 1987.

~ CE CE MEDINA