Appeal from the United States District Court for the Eastern District of Pennsylvania (Civ. 83-3265). Assigned May 22, 1986.
Before: SEITZ, HIGGINBOTHAM, and BECKER, Circuit Judges.
The plaintiffs, RJB Cab, Inc. (RJG), and Geraldine H. Sweeney (Sweeney), and the plaintiff-intervenor, Philadelphia Electric Co. (PECO) [hereinafter collectively "plaintiffs"], appeal a final order of the the district court dismissing for lack of standing and ripeness their challenge to the constitutionality of section 155 of the Further Continuing Appropriations Act of 1983, Pub. L. No. 97-377, 96 Stat. 1830, 1919-20 (1982) (the Warner Amendment or section 155). The government contends that this appeal should be dismissed for lack of subject matter jurisdiction because section 211(b)(2) of the Economic Stabilization Act, 12 U.S.C. § 1904 note, vests exclusive jurisdiction over it in the Temporary Emergency Court of Appeals (TECA).
The plaintiffs were consumers of gasoline and other petroleum products during the period of federal regulation of the prices of such products from 1973 through 1981.*fn1 The Warner Amendment directed disposition of some $200 million from a Department of Energy (DOE) escrow fund that contained sums received in settlement of DOE investigations of price control regulations. Under the Warner Amendment, the funds were to be disbursed into five designated state energy programs.
The plaintiffs alleged in the district court that, as victims of overcharges on gasoline and other price-regulated products, they were entitled to benefit either directly or indirectly from the escrowed funds, and would have so benefitted but for the enactment of the Warner Amendment. Because the Warner Amendment allegedly funneled off the $200 million impermissibly for the benefit of the "poor," its enactment, they claim, deprived them of property without due process of law or compensation, and violated the doctrine of separation of powers by usurping the functions of the executive (DOE) and judicial branches to whom had been committed the disbursal of the funds. Before describing further the procedural history of this action, it may be helpful to describe the statutory scheme for remedying violations of the oil pricing regulations, and the impact of the Warner Amendment thereon.
The Emergency Petroleum Allocation Act of 1973 (EPAA), Pub. L. No. 93-159, 87 Stat. 628 (1973), codified as amended at 15 U.S.C. §§ 751-760h, was enacted in response to the energy crisis of the early 1970's. It empowered the President to regulate the allocation and pricing of various petroleum products produced in or imported into the United States. See 15 U.S.C. § 753. The President's authority under the EPAA has been administered by a succession of federal agencies, of which the DOE is the most recent. 42 U.S.C. § 715(a). "The purpose of petroleum price regulation was to ensure fair allocation of petroleum resources at equitable prices and to encourage the search for new energy resources." United States v. Exxon Corp., 773 F.2d 1240, 1248 (Temp. Emer. Ct. App. 1985), cert. denied, 474 U.S. 1105, 106 S. Ct. 892, 893, 88 L. Ed. 2d 926, 106 S. Ct. 893 (1986). For a more detailed description of the history of the EPAA, see Exxon Corp. v. United States Dep't of Energy, 744 F.2d 98, 106 (Temp. Emer. Ct. App.), cert. denied, 469 U.S. 1077, 105 S. Ct. 576, 83 L. Ed. 2d 515 (1984).
We need not describe the regulatory scheme in detail. However, like other regulatory schemes, the EPAA and its accompanying regulations have enforcement mechanisms. First, DOE may enforce its regulations by issuing remedial orders. A remedial order may be proposed by the Economic Regulatory Administration (ERA) of DOE after suitable investigation has shown that a probably violation of DOE regulations has occurred. There is a process for contesting and appealing the issuance of remedial orders which advances through various stages, including hearings before DOE's Office of Hearings and Appeals (OHA) and appeals to the Federal Energy Regulatory Commission (FERC). See generally 10 C.F.R. §§ 205. 190-205.1991. Remedial orders may require rollbacks in prices, refunds of overcharges, and "such other action as DOE determines is necessary to eliminate or compensate for the effects of a violation." 10 C.F.R. § 205.1991.
As noted, DOE has discretion to implement a wide range of remedies from payment to first purchasers, Midwest Petroleum Co. v. Department of Energy, 760 F.2d 287 (Temp. Emer. Ct. App. 1985), to direct payments into the United States Treasury. Payne 22, Inc. v. United States, 762 F.2d 91 (Temp. Emer. Ct. App. 1984). In addition, DOE may petition OHA to implement "special refund procedures" under Subpart V of the DOE regulations, 10 C.F.R. §§ 205.280-205.288. When such a petition is received, OHA must issue an order providing for custody of the funds at issue, either in an escrow account or in some other way. 10 C.F.R. § 205.287(a).
The special refund procedures provides a mechanism for making refunds to persons injured by violations of DOE regulations in "situations in which the Department of Energy is unable to readily identify persons who are entitled to refunds specified [in remedial or consent orders] or to readily ascertain the amounts that such persons are entitled to receive." 10 C.F.R. § 205.280. Persons who feel they are entitled to restitution as victims of the violations apply for a refund, and OHA evaluates, and grants or denies, the applications. OHA need not consider applications for refund amounts that are too small to justify the administrative costs involved in processing them, 10 C.F.R. § 205.286(b), and "any remaining funds remitted pursuant to the Remedial Order to Consent Order shall be deposited in the United States Treasury or distributed in any other manner specified in the decision and order." 10 C.F.R. § 205.287(c). Indeed, where there are a great number of injured small purchasers, particularly consumers, payment into the Treasury of the whole amount provided for in the consent order has been considered "appropriate ... since 'the payment to the U.S. Treasury works to the benefit of all consumers and purchasers.'" Payne 22, Inc., 762 F.2d at 92, quoting DOE Notice of Adoption of Proposed Consent Order, 45 Fed. Reg. 80348 (1980) (emphasis in original).
DOE is not restricted to seeking enforcement administratively. The EPAA incorporates the enforcement mechanisms set forth in the Economic Stabilization Act of 1970 (ESA), 12 U.S.C. 1 1904 note. See 15 U.S.C. § 754(a)(1). The ESA provides for both public (section 209) and private (section 210) enforcement actions against violators of Doe regulations promulgated pursuant to the EPAA.
Section 209 empowers the DOE to bring actions in a United States district court to enjoin acts or practices in violation of DOE regulations, and to order restitution of any moneys received in violation of any such order or regulation." ESA, section 209. Section 210 allows direct purchasers injured by overcharges to recover trebled damages for such violations. ESA, section 210. See Gulf Oil Corp. v. Dyke, ...