The opinion of the court was delivered by: WEBER
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 566 F. Supp.]
AND NOW, this 22nd day of June 1983, IT IS ORDERED:
a) For the reasons stated in the accompanying memorandum, Defendant is entitled to assert the defense of laches. The laches issue will be separately tried.
b) The parties' cross-motions for summary judgment are hereby DENIED, without prejudice to their renewal after disposition of the defendant's laches defense.
c) Discovery is re-opened solely for inquiry into matters regarding defendant's laches defense. Discovery will close November 1, 1983.
d) Defendant's Pre-Trial Narrative on the issue of laches alone shall be filed on or before November 15, 1983. The Pre-Trial Narrative shall describe the issues to be addressed, list all witnesses with a short description of their testimony, and list all documents to be introduced at trial.
e) Plaintiff's Pre-Trial Narrative shall be failed on or before November 30, 1983. The Pre-Trial Narrative shall contain all information required in d) above. A Pre-Trial conference will be scheduled thereafter.
This is a declaratory judgment action which is now before the court on cross-motions for partial summary judgment. The plaintiff, United Refining Company, in its complaint and in its motion challenges the substantive and procedural validity of certain Department of Energy regulations, alternatively referred to as "banking regulations" or "fictitious recovery rules." In its motion the plaintiff contends that these regulations were not promulgated in a manner which comports with the requirements of either the Administrative Procedure Act, 5 U.S.C. § 551 et seq. or the Emergency Petroleum Allocation Act, 15 U.S.C. § 751 et seq.
The defendant in its answer to plaintiff's complaint and its own motion for partial summary judgment presents two allegations. First, the defendant contends that these regulations were validly promulgated. In addition, the defendant argues that the equitable doctrine of laches now bars plaintiff's assertion of this claim.
The defendant's defense of laches is of particular concern at this stage. On December 26, 1980, this court entered an opinion and order indicating that because the plaintiff's complaint was essentially "defensive" in nature the defendant was likely precluded from asserting a laches defense.
Since that time the Department of Energy has filed the materials supporting their cross-motions for partial summary judgment. In these materials the Department argues that laches is a defense which should be available to it in this case. The issue has been fully briefed by both parties. The Department points out that the regulations at issue were promulgated in September of 1974. The Department's administrative review of United Refining Company began some three years later in 1977. This lawsuit was filed two years after that in 1979. The Department argues that this constitutes a five year delay resulting in prejudice to the defendant. We do not at this time reach the merits of the government's laches defense. We must, however, consider the question of whether the government is entitled as a matter of law to interpose a defense of laches.
In Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), various drug manufacturers challenged labelling regulations claiming that the Food and Drug Administration and the Secretary of Health, Education and Welfare had exceeded their authority. The plaintiff sought declaratory ...