FRANK M. JOHNSON, Jr., Judge.
This is an appeal from orders entered August 29, 1978, and November 14, 1978, by the United States District Court for the District of Columbia. The consolidated cases concern challenges to an interim order of the Department of Energy (DOE) granting adjustment relief under the oil entitlements program to Commonwealth Oil Refining Co. (Corco).
The background to this dispute is an effort by the DOE to stimulate the production of California crude oil. On June 15, 1978, the DOE announced a special procedure using grants of exception relief to provide incentives for the transportation of California crude oil to refineries outside the state. On June 22, 1978, Corco applied for such exception relief, and on June 30, the
The following day, July 21, Exxon filed a notice of appeal from the interim decision with the Federal Energy Regulatory Commission (FERC). Texaco, Mobil, Crown, and the Independent Refiners Association of America (IRAA) followed suit. On August 8, FERC issued interim procedural regulations governing its review of requests for exception relief, and on August 9, FERC dismissed Exxon's appeal on the ground that it lacked statutory authority to review "grants" of relief. Interpreting § 504(b) of the DOE Act, 42 U.S.C. § 7194(b)(1), FERC ruled that it only has jurisdiction to review "denials" of requests for relief.
Texaco, Mobil, Exxon, Clark, and Crown filed complaints in the district court seeking a permanent injunction restraining the DOE from implementing the interim order. The IRAA filed a separate complaint alleging that FERC improperly refused to review the grant of interim relief. That point was the sole basis of the district court's decision. The district court held that FERC has authority to review the July 20 interim order. Accordingly the court remanded the proceeding to FERC.
The case is now before this Court on appeal by FERC. There are three issues:
Because this Court finds that it lacks jurisdiction, it need not reach the latter two issues.
Plaintiffs argue quite simply that the issue on appeal arises solely under the DOE Act, and that this Court's limited jurisdiction does not extend to such issues. Defendants concede that the issue appealed arises solely under the DOE Act, but argue that that issue is part of a larger "case or controversy" arising under the Emergency Petroleum Allocation Act (EPAA). Issues arising under the EPAA are indisputably the dominion of this Court.
A literal reading of the statutes lends plausibility to defendants' position. Precedent indicates, however, that this Court has consistently decided whether it has jurisdiction on an issue-by-issue basis. Because the issue on appeal here arises solely under the DOE Act, this Court lacks jurisdiction.
The DOE Act, 42 U.S.C. § 7192, in turn, provides that:
Agency action taken under the EPAA is one such function that has been transferred to the DOE. Therefore, judicial review of such agency action may be had, as provided by the EPAA, in the district court and subsequently in this Court. There is no question, for example, that an order granting or denying adjustment relief from the oil entitlements program may be appealed to this Court. But in its present posture, this is not such a case.
The complaint in this case challenges the interim adjustment relief granted to Corco. The district court, however, did not reach the merits of that decision and order. It stopped short of the merits, holding only that FERC erred in refusing to hear plaintiffs' objections to the interim decision and order. For purposes of this appeal, then, the only "agency action" being challenged is the "inaction" of FERC in refusing to entertain plaintiffs' appeals. That inaction was based on FERC's reading of Section 504(b)(1) of the DOE Act, 42 U.S.C. § 7194(b)(1), which provides:
Whether FERC must entertain an appeal from a grant as well as a denial of adjustment relief thus involves an interpretation of the DOE Act itself and not an application of any other law, the functions of which have been transferred to the DOE. Section 502(b) of the Act, 42 U.S.C. § 7192(b), thus controls judicial review. It provides that the district courts shall have exclusive original jurisdiction of all cases arising exclusively under the Act without special provision for appeal to TECA. That "omission" is decisive on the question of this Court's jurisdiction. This Court may act only where it has express authority to do so.
Defendants argue, however, that it is not the nature of the issue on appeal but the nature of the case or controversy that is determinative of this Court's jurisdiction. Both Section 211 of the Economic Stabilization Act and Section 502 of the DOE Act speak of "cases and controversies" in providing for judicial review. But TECA has repeatedly refused to exercise jurisdiction over issues or claims not arising under the EPAA even though they may be joined in the same case with other issues or claims that do arise under the EPAA. Longview
Defendants may be accurate in saying that the possibility of dual appellate review is confusing. But this Court has faced that possibility and endorsed it, as have the Courts of Appeal. In City of Groton, this Court cited Municipal Electric Utility Ass'n of Alabama v. FPC, 158 U.S.App.D.C. 188, 191-92, 485 F.2d 967, 970-71 (1973), in which the Court of Appeals for the District of Columbia said:
Likewise in Associated General Contractors, this Court took jurisdiction of some but not all of the issues, holding as to one issue that "any appeal would be within the exclusive jurisdiction of the United States Court of Appeals for the Tenth Circuit." 489 F.2d, at 751.
Defendants would have the Court distinguish these cases because the issues over which the Court refused to assert jurisdiction arose "under substantive regulatory authority distinct from those statutes over which this Court has exclusive appellate competence."
Our dissenting brother apparently accepts our conclusion that TECA has jurisdiction only over issues or claims arising under the EPAA. He contends, however, that the only claim in this case concerns the validity of the exception relief granted Corco — an EPAA issue — and that this claim subsumes the DOE Act question of whether FERC had authority to review the grant of relief.
We cannot agree. For purposes of determining TECA jurisdiction, what is determinative is not whether an EPAA question exists but whether an EPAA question has been adjudicated. See Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179 at 187 (2d Cir. 1979). The sole basis of the district court's decision and the sole concern on this appeal is the lower court's holding that FERC had review authority. The propriety of that holding, as the defendants concede, is not an EPAA question. It is a question that arises solely under the DOE Act.
Jurisdiction is to be strictly construed. Because the sole issue on appeal arises under the DOE Act, judicial review is governed by 42 U.S.C. § 7192(b) and not 15 U.S.C. § 754, as incorporated by 42 U.S.C. § 7192(a).
Accordingly, it is ORDERED and ADJUDGED that this appeal be dismissed for want of jurisdiction.
WALTER E. HOFFMAN, Judge, dissenting.
The majority has held that TECA has no jurisdiction to consider an action relating to the validity of exception relief granted under EPAA and regulations promulgated thereto. Thus, although denial of relief would be appealable, the granting of relief is effectively foreclosed and is not reviewable in any court.
The majority finds that Section 502(b), of the DOE Act, 42 U.S.C. § 7192(b), controls judicial review and that the "omission" of any appeal to TECA under Section 502(b) is decisive on the question of TECA's jurisdiction, citing TECA's refusal to exercise jurisdiction over issues or claims not arising under the EPAA even though joined in the same case with other issues or claims that do arise under EPAA. It is my view that these cases are distinguishable as, in our case, the only claim before the district court was an action respecting the validity of exception relief granted under EPAA and regulations promulgated thereunder, and a decision of the merits would definitely have to be appealed to TECA. The issue as to whether the Federal Energy Regulatory Commission (FERC) should have heard the appeal from the administrative action is an issue of law arising wholly within the claim under EPAA. It is not a separate, substantive claim for relief, but rather a procedural matter. By analogy, situations occur where a court has to determine what the law is in another jurisdiction — this does not destroy the jurisdiction of the court. Moreover,
Authorities cited by the majority are inapposite. Longview Refining Co. v. Shore, 554 F.2d 1006 (Em.App.1977), and Spinetti v. Atlantic Richfield Co., 522 F.2d 1401 (Em. App.1975), are essentially similar. They involved claims under anti-trust, state law claims, Fair Trade contract claims, and EPAA. TECA declined to take jurisdiction over the non-EPAA claims. City of Groton v. Federal Power Commission, 487 F.2d 927 (Em.App.1973), held that claims arising under the Federal Power Act cannot be raised in TECA, 487 F.2d at 935. Associated General Contractors v. Laborers International Union, Local 612, 489 F.2d 749 (Em.App. 1973), was more complex. In that case, an agency made a decision affecting the validity of bargaining agreements in reliance on the ESA. TECA, on appeal, held that such action by the agency was not authorized by the ESA, and remanded the case to the district court for further proceedings. After the decision on the merits, the case was again appealed to TECA where it was held that since the case no longer involved the ESA, there was no jurisdiction in TECA.
We must wonder as to the wisdom and necessity of creating a special court such as TECA. Approximately thirty percent of TECA's cases are decided upon jurisdictional grounds. Certainly, TECA is no longer a "temporary" court with the energy crisis here to stay. If we do not approach these jurisdictional questions with some broadening view, it may well result in the regular courts of appeal handling such matters as they do with other government agency actions.