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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 969

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0968%3A2. Public record. Not legal advice.