Stertz v. Gulf Oil Corp.

528 F. Supp. 735 (1980)

Joseph STERTZ and Louis De Nicola, on their behalf and as representatives of all purchasers of oil and petroleum products from the Defendants, Plaintiffs,
v.
GULF OIL CORPORATION, Defendant,
and
James Schlesinger, Secretary of the Department of Energy, As Stakeholder.
Jeffrey A. WEINER, on his own behalf and as a representative of all others similarly situated, Plaintiff,
v.
GULF OIL CORPORATION, Defendant,
and
James Schlesinger, Secretary of the Department of Energy, As Stakeholder.

No. 78 Civ. 1813.

United States District Court, E. D. New York.

March 6, 1980.

Null & Null, P. C., Garden City, N. Y. by Douglas P. Null, Garden City, N. Y., Arnold Levin, Philadelphia, Pa. [Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa.], for Jeffrey A. Weiner.

Lord, Day & Lord, New York City, for Gulf Oil Corp.; John W. Castles, 3d, Michael J. Murphy, Banks Brown, New York City, Joe A. Rudberg, Thompson & Knight, Dallas, Tex., of counsel.

E. R. Korman, U. S. Atty.-E. D. N. Y., Brooklyn, N. Y. by Elaine C. Buck, Asst. U. S. Atty., Brooklyn, N. Y., for Dept. of Energy; Larry Ellsworth, Ted P. Gerarden, Paul M. Geier, Attys., Washington, D. C., of counsel.

MEMORANDUM AND ORDER

PLATT, District Judge.

With the advent of the economic dislocations of the early 1970's, Congress enacted the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 (note) ("the Act"). One of the stated purposes of that Act was to attempt to control the inflation that then afflicted, and more recently has devastated, our economy.^[1] Particular attention was given to the oil industry, as evidenced by Congress' passage of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq., which incorporates the 1970 legislation. Pursuant to those laws, Mandatory Petroleum Price Regulations were promulgated to set limits on prices legally chargeable for petroleum products. 10 C.F.R. Part 212.

The Regulations promulgated to establish and enforce appropriate price levels are exceedingly intricate and complex. While the Regulations provide for administrative remedies, Section 210 of the Act provides for legal remedies; unfortunately, the lines delineating the demarcation between administrative resolutions and legal relief are not always clearly drawn. The Code of Federal Regulations, 10 C.F.R. § 212.84, provides for disallowance of costs and includes provisions for the agency to require a "roll back" of prices and refunds to identifiable purchasers in the amount paid in excess of the amount permitted. At the same time, 12 U.S.C. § 1904 (note) provides for private suits by "any person suffering legal wrong" and allows the court to award plaintiffs "an amount not more than three times the amount of the overcharge upon which the action is based" plus reasonable attorneys' fees. (See especially Section 210 of the Act.)

This action presents a situation in which the dual nature of the remedies provided fosters confusion — and legal conflict. Plaintiffs, alleged purchasers of Gulf Oil Corporation ("Gulf") petroleum products, are seeking recovery, under § 210 of the Act, of overcharges purportedly made by Gulf in sales of those products. Gulf claims that it entered into a Consent Order with the Department of Energy ("DOE") dated July 26, 1978 in which Gulf agreed to pay all persons, including judgment creditors under § 210, their proportional share of the $42,240,000 ("$42.24 million" or "Consent Order Fund"), which sum Gulf agreed to pay to DOE. The DOE argues, however, that the $42.24 million was intended only as settlement of the administrative refund mandated by 10 C.F.R. Part 212 and in no way was intended to affect private legal remedies brought under § 210 of the Act.

DISCUSSION

The action now lies in the following procedural posture.

At a hearing held on November 2, 1979, it was agreed that while there were five motions in the first of the above cases^[*] presently pending before this Court, only three of them needed immediate consideration and the remaining two (for class certification and discovery) might await resolution of the first three.

The first of the three motions was made by James Schlesinger, Secretary of the DOE ("Secretary"), and sought (i) an order pursuant to Rule 12(b) of the Federal Rules of Civil Procedure ("FRCP") dismissing the action without prejudice or, alternatively, dismissing the Secretary from the action and striking all material relating to the Consent Order between the DOE and Gulf, or, in the further alternative, staying the first of the above-captioned actions pending completion of the distribution of the Consent Order Fund on the ground that the DOE has primary jurisdiction over the Consent Order Fund and (ii) an order pursuant to FRCP Rule 26(c) staying all discovery pending disposition of this motion. (Pursuant to an informal agreement between the parties, the last portion of such motion has been rendered in part academic in that partial discovery has been proceeding in these actions).

The second of the three motions was brought on by an Order to Show Cause submitted by Gulf, seeking a preliminary injunction restraining the Secretary from taking any steps to effect or implement the Consent Order and granting the defendant Gulf leave to amend its answer to allege cross claims against the Secretary. The Order to Show Cause also contained a temporary restraining order enjoining the Secretary from taking any steps to effect or implement the Consent Order. The temporary restraining order was granted on consent and is still in full force and effect.

The third motion was made by the Secretary and seeks an order, pursuant to FRCP Rule 12(c), granting judgment on the pleadings and dismissing the action as to the Secretary on the grounds that as to him, the action fails to state a claim upon which relief can be granted and that the Court lacks subject matter jurisdiction.

I

The first of the above-captioned actions was commenced with the filing of a Summons and Complaint by the plaintiffs on August 18, 1978. Thereafter, on September 25, 1978, plaintiffs filed an amended complaint. In essence, plaintiffs sue under § 210 of the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 (note) (expired April 30, 1974), as incorporated by the Emergency Petroleum Act of 1973, 15 U.S.C. § 751 et seq. (1976), on behalf of themselves and "all other purchasers of petroleum and petroleum products from Gulf from 1973 to 1976" (Amended Complaint pp. 2-3) and seek treble damages from Gulf in the amount of $221,700,000.00 plus attorneys' fees for alleged violations of the Emergency Petroleum Allocation Act. Plaintiffs also sue the Secretary as a Stakeholder of the Consent Order Fund. Prior to the commencement of this action Gulf, in an attempt to settle its differences with the DOE in the administrative action, agreed to pay the Fund to the DOE for distribution to injured purchasers of Gulf petroleum products. Plaintiffs seek to require the Secretary to pay this Consent Order Fund of $42,240,000.00 into the Registry of this Court (Amended Complaint p. 7), in an effort to protect their legal remedies. Issue was joined with the service and filing of Gulf's answer on or about October 31, 1978 and the Secretary's answer on or about November 14, 1978.

On or about November 27, 1978, plaintiffs served and thereafter filed a motion for class certification in the first of the above-captioned actions, pursuant to FRCP Rules 23(a) and 23(b)(3), asserting that plaintiffs' class included "all of those individuals and entities (both business and governmental) who purchased petroleum and petroleum products from Gulf between 1973 and 1976." Appearing in court, counsel for Gulf gave their conditional consent to plaintiffs' motion for class certification without prejudice to its rights to change its position and move to dissolve the class following discovery proceedings.

According to the Secretary, the Office of Special Counsel ("OSC") of the DOE's Economic Regulatory Administration, after its creation in December 1977, assumed from the Federal Energy Administration ("FEA"), a predecessor agency of the DOE, an investigation and audit of Gulf's interaffiliate "transfer of prices for crude oil which Gulf obtained abroad through its affiliates and imported into the United States." As a result of a prior investigation into Gulf's transfer pricing of foreign crude oil, the FEA had issued a Notice of Probable Violation dated May 8, 1974 and Notices of Proposed Disallowance dated July 14, 1975, August 29, 1975 and April 27, 1977. The latter Notice proposed a disallowance of $79,622,955.36 from Gulf's landed cost of foreign crude oil imported into the United States in transactions between Gulf's affiliated entities during the period October 1973 through May 1975.

For various reasons the OSC and Gulf determined it best to settle these alleged "probable violations" and they did so by entering into the Consent Order herein under 10 C.F.R. § 205.199J (see 43 Fed.Reg. 34186 (August 3, 1978)).^[2]

Under the terms of the Consent Order the OSC undertook to implement procedures to refund the $42,240,000.00 to all those "who may have been overcharged by Gulf" as the result of the alleged overstated costs. As is evident from the "Supplemental Comments of the Special Counsel for Compliance and Gulf Oil Corporation on proposed Decision and Order" dated and executed June 7, 1979, the OSC and Gulf have stipulated that the

"Consent Order was not intended to expose Gulf to double liability, i. e., to have any part of the $42.24 million paid to any persons or entities (including the United States) other than purchasers of Gulf products who may have been overcharged so long as any overcharge claims whether asserted by legal action or by administrative claim, of such persons against Gulf remain outstanding and unsatisfied."^[3]

Pursuant to a petition of the OSC, Mr. Melvyn Goldstein, Director of the Office of Hearings and Appeals ("OHA"), on August 28, 1978, issued an Interim Decision and Order^[4] announcing a proposed administrative procedure to refund the $42.24 million in an attempt to implement the Consent Order.

Gulf's claim is that this Interim Decision and Order of the OHA has the effect of "ensuring Gulf's exposure" to the very double liability which the Consent Order sought to avoid in that, inter alia, it "(a) provided no method for satisfying out of the $42.24 million judgment creditors who obtained judgments under Section 210, and (b) provided for payment from the fund to indirect purchasers of Gulf's products who did not have standing to sue Gulf under Section 210, thus depleting the amount of the fund available to satisfy judgment claimants." (Gulf's Supplemental Memorandum pp. 5-6).

According to Gulf, the first of the motions made by the DOE in December of 1978 to dismiss the first of the above-captioned actions on the grounds of primary jurisdiction would, if granted, leave intact the Interim Decision and Order and would preclude the application of any part of the Consent Order Fund to the satisfaction of any judgment that might be obtained in this or any other § 210 suit and would expose Gulf to the unintended double liability. (Id. p. 6). Therefore Gulf made the second of the above-referenced motions before this Court to enjoin the DOE from implementing the Consent Order in a manner which would expose Gulf to this double liability and to grant Gulf leave to amend its answer to allege cross-claims against the DOE.

The Government's positions and actions with respect to the intent of the Consent Order have not been consistent. The OSC first took the position (in opposition to Gulf's motion) that the question of any double liability was not raised by Gulf. (Affirmation of Paul Blum sworn to March 20, 1979).^[5] Thereafter, when Gulf pointed out that the OSC and Mr. Blum had previously acknowledged in connection with other matters that the Emergency Petroleum Allocation Act (15 U.S.C. § 751 et seq.) never contemplated the imposition of double liability upon an alleged violator such as Gulf, the OSC had to retract its erroneous position and execute the Supplemental Comments referred to above. In particular, Mr. Blum on November 23, 1977, some nine months before the Consent Order, had made a written submission to the DOE's OHA in which he had stated

"It might be argued that if DOE has already disgorged a violator of his unlawful overcharges through refunds to the Treasury, the violator sued in a private action may be required to pay twice for the same violation. Such a result was obviously not contemplated by the EPAA ..." Emphasis added.

Subsequent to the Consent Order of July 26, 1978, the DOE on February 9, 1979, in discussing the comments of persons who had questioned the authority of the DOE, in general, and the OHA, in particular, to promulgate the Regulations providing for the distribution of refunds, specifically stated that:

"It should first be noted that the regulations do not require all or any portion of the refunds to be paid to the Treasury. That particular remedy is only one of the methods permitted under the regulations, and moreover, the double liability problem to which the commenters (sic) refer could be avoided in cases in which payments may ultimately be made to the Treasury simply by delaying payment of all refunds until the period in which court actions can be initiated based on the pertinent violation has ended. At that time the outcome of all pending court actions would be known and special arrangements could be made to reimburse the defendant firm for court judgments." (Emphasis added). 44 Fed.Reg. # 29 at 8564.

Notwithstanding these subsequent acknowledgments of error by the OHA, and in particular its acknowledgment in the Supplemental Comments as to the intent of the Consent Order, and notwithstanding the fact that this Court had enjoined the Secretary on March 5, 1979 from "taking any steps to effectuate or implement the above-referred to Consent Order", the OHA of the DOE (in an apparent deliberate defiance of this Court's Order) issued under date of July 13, 1979, published and has left standing new special refund procedures designed to implement the Consent Order (44 Fed. Reg. 43094 et seq.). These procedures failed to implement the stipulated intent of the parties to the Consent Order, to wit, that the same "was not intended to expose Gulf to double liability."

Specifically, as indicated above, Gulf claims that this Final Decision and Order provides that in addition to § 210 judgment creditors and direct purchasers of Gulf products, indirect purchasers who do not have standing to proceed against Gulf in a judicial action will have a claim on the $42.24 million (id. p. 43097). The result, according to Gulf, will be to expose Gulf to the risk of being unable to satisfy § 210 judgment claims out of Consent Order Fund — a result contrary to the stipulated intent of the parties to the Consent Order. Further, Gulf claims that this Final Decision and Order violates the agreement between the parties that the OSC would have the right to approve any judicial settlements to be paid from the Consent Order Fund, "such approval not to be unreasonably withheld," by eliminating the reasonableness requirement. It further violates the stipulated agreement that in the event of a disagreement between Gulf and OSC as to the size of a reserve to cover lawsuits, an independent third party was to make that determination. The Final Decision and Order provides that the arbitrator is to be selected solely by the OHA.

Finally, and incredibly, the Government had the audacity at oral argument of these motions on November 2, 1979 to contend that the written agreement made and executed by the OSC on June 7, 1979 (see Supplemental Comments), did not mean what it said and that when it stated that "the Office of Special Counsel and Gulf agree that the July 26, 1978, Consent Order was not intended to expose Gulf to double liability" it meant that it only "agreed to recommend."

Of significance also in the background of these proceedings is the history of the second (Weiner) of the above-captioned actions which was commenced with the filing of a similar summons and complaint in the United States District Court for the Eastern District of Pennsylvania on May 17, 1979. On August 10, 1979, defendant Gulf moved to transfer that action to this Court and the Secretary filed a motion to dismiss on grounds similar to the ones he has advanced here. The District Court in the Eastern District of Pennsylvania granted Gulf's motion over the Secretary's objections in an Order dated August 17, 1979 and thereafter Gulf filed an answer in which it alleges four alternative cross claims against the Secretary. The first claim seeks an order that the Secretary comply with the Consent Order and agreements in the Supplemental Comments, and the second, third and fourth claims seek to annul the Consent Order on the ground of mistake, breach by the Secretary, and lack of authority on the part of the DOE to implement the same.

II

The question presented here is whether the DOE should be permitted to implement a Final Decision and Order dated July 13, 1979 formulating procedures to effect refunds of the $42.4 million settlement amount to (a) Section 210 judgment creditors and direct purchasers of Gulf products and (b) indirect purchasers of heating oil and gasoline (who do not have standing to proceed against Gulf in a judicial action).

The DOE argues that (i) plaintiffs' complaint against it must be dismissed under Dyke v. Gulf Oil Corp. and DOE, et al., 601 F.2d 557 (T.E.C.A.1979); (ii) Gulf's motion for leave to amend its answer in the first of the above consolidated actions (the Stertz case) must be denied under the Dyke decision; and (iii) Gulf's motions must be denied because they lack merit in that (a) Gulf cannot challenge the Consent Order and (b) Gulf's argument that the Consent Order is unenforceable is spurious.

Dyke did not hold, however, as the DOE suggests, that the DOE must be dismissed from these cases. In both the Stertz and the Weiner actions plaintiffs state claims against the DOE asserting that the DOE has no claim against the $42.24 million fund involved herein, and holds^[6] the same "which is properly the property of the plaintiffs." Plaintiffs further request that the DOE be required to pay the same over to the Registry of this Court to be awarded or credited to them.

The DOE moved to dismiss these claims as to it and while such motion was pending, Gulf served and filed an answer in the Weiner case in which it asserts cross claims alleging (i) breaches of the Consent Order of July 26, 1978 and the agreement between it and the DOE dated June 7, 1979 by the issuance of a Final Decision and Order dated July 13, 1979, and (ii) that the Consent Order is null and void and of no legal effect by reason of mistake, by reason of DOE's breach thereof, and by reason of DOE's lack of authority to implement the same.

At oral argument, plaintiffs concurred in these positions insofar as they seek to nullify the DOE's attempt by its Final Decision and Order to remove the $42.24 million dollars from the money available to the class plaintiffs on whose behalf they seek to bring their actions.

As indicated, DOE's reliance on Dyke is misplaced. That decision merely held that joinder of the DOE in this type of case was not, as Longview Refining Co. v. Shore, 554 F.2d 1006 (TECA), cert. denied, 434 U.S. 836, 98 S. Ct. 126, 54 L. Ed. 2d 98 (1977), had seemed to suggest, mandatory or in all cases necessary.^[7]Dyke did approve the holding in Associated General Contractors of America, Inc. v. Laborers International Local 612, 476 F.2d 1388 (Em. App.1973), that "no order of an ... agency should be mandated or subjected to invalidation in any judicial proceedings unless that agency has been made party to such proceedings." (476 F.2d at 1407). The Dyke opinion disapproved of joinder of the DOE where joinder would "bring to a complete halt ... the administrative auditing, investigation and remedial action which the agency could carry on independently under controlling statutes." 601 F.2d at 566. But as Gulf points out in its papers, most of the administrative proceedings are complete and the validity of the DOE's Final Decision and Order dated July 23, 1979 is under direct attack by interested parties.

Secondly, and of even greater significance, is the DOE's present intransigence on the question of subjecting Gulf to possible double liability. Recognizing the inequity of this position, the DOE Office of Special Counsel in writing "agree(d) that the July 26th Consent Order was not intended to expose Gulf to double liability." Notwithstanding this stipulation by its counsel, the DOE now takes the position that its OHA does not and need "not accept that" (Oral Argument TR 115).

In this Court's view, this is the second type of exception that the Dyke case contemplated^[8] and the precise situation contemplated by FRCP Rule 19(a)(2)(ii) which requires joinder of the DOE as a party. So long as the DOE continues to take the position that the parties to the Consent Order did not mean what they agree that they said, "the [double, multiple, or otherwise] inconsistent obligation[s] contemplated by the rule" (FRCP Rule 19(a)(2)(ii)) are a reality and represent judgments that cannot be "adjusted and reconciled" (Slip Op. at 20). DOE's motions to dismiss and for judgment on the pleadings are therefore denied.

III

There remains the question of Gulf's motion for a preliminary injunction restraining the DOE from publishing the Consent Order of July 1978 so as to make the same effective before a determination is made here with respect to "the true intent, meaning and validity of that order."

At the oral argument and in a subsequent letter dated November 15, 1979 addressed to the Court, DOE took the position that it would not be willing to postpone distribution to administrative claimants of the $42.24 million to be paid to the United States by Gulf pursuant to the Consent Order until the resolution of these actions in order to insure an equitable distribution of such moneys to all persons entitled thereto.

In view of the legitimate concern of Gulf that failure to so postpone distribution may result in double liability, particularly given the DOE's unwillingness to honor its previous written stipulation on this point and its actions taken in violation of this Court's order, this Court feels it has no alternative but to issue the requested preliminary injunction. Gulf's adversaries have evidenced some concern about allowing Gulf to withdraw from that part of the Consent Order which requires it to post at least $42.24 million for distribution to injured purchasers. The Court agrees that this should not be permitted if the DOE is to be enjoined until an equitable method of distribution can be agreed upon or ordered by this Court. Therefore, as a condition of the injunction this Court will require that Gulf post as security (i) a bond or undertaking in the amount of $42.24 million with this Court or (ii) the $42.24 million with a mutually agreed upon (or, failing agreement, Court designated) escrow bank or agent in an interest bearing account or with the Clerk of this Court.

CONCLUSION

Accordingly, the DOE's motions for dismissal and judgment on the pleadings are denied and Gulf's motion for a preliminary injunction and for leave to amend its answer is granted on the condition stated above.

APPENDIX

DEPARTMENT OF ENERGY

OFFICE OF SPECIAL COUNSEL

CONSENT ORDER ) WITH ) Case No. N00R00007 GULF OIL CORPORATION )

INTRODUCTION

Pursuant to the authority promulgated in 10 C.F.R. § 205.199J, and § 301 of the Department of Energy Organization Act, 42 U.S.C. § 7151, the Office of Special Counsel (OSC) of the Department of Energy (DOE) hereby enters into this Consent Order with Gulf Oil Corporation (Gulf). This Consent Order constitutes an agreement as to the disposition of the Notice of Proposed Disallowance issued to Gulf on April 27, 1977, and additional imported crude oil transactions found subject to disallowance. It specifically does not constitute an agreement as to any other matter subject to DOE regulations. Except as noted, this Consent Order is concerned exclusively with the crude oil component of Gulf's landed costs for the period October 1973 through May 1975 which is subject to disallowance pursuant to 6 C.F.R. § 150.356 and 10 C.F.R. § 212.83 and § 212.84.

JURISDICTION

The Office of Special Counsel was created by a delegation of authority from the Administrator of the Economic Regulatory Administration which was created by § 206 of the Department of Energy Organization Act, 42 U.S.C. § 7136. Consequently, OSC, as part of DOE, is empowered to conduct and conclude audits and proceedings concerning the DOE Mandatory Petroleum Price and Allocation Regulations.

FACTS

The stipulated facts upon which this Consent Order is based are contained in the following paragraphs numbered 1 through 5.

1. Gulf is a refiner subject to the refiner price rule and the transfer pricing rules of 6 C.F.R. § 150.356, 10 C.F.R. § 212.83 and § 212.84. In September 1973, the Cost of Living Council promulgated 6 C.F.R. § 150.356, 38 F.R. 25686 (September 14, 1973), which provided:

Whenever a firm uses a landed cost which is computed by use of its customary accounting procedures, the Council may allocate such costs between the affiliated entities if it determines that such allocation is necessary to reflect the actual costs of those entities or the Council may disallow any cost which it determines to be in excess of the proper measurement of costs.

This provision has continued in force to the present in the following sections: 10 C.F.R. § 212.83(e), 39 F.R. 1924 (January 15, 1974); 10 C.F.R. § 212.83(f), 39 F.R. 42368 (December 5, 1974); 10 C.F.R. § 212.83(b), 41 F.R. 15330 (April 12, 1976).

2. To establish standards for applying this section and to adopt more definitive regulations in this area, the Federal Energy Administration (FEA) issued two proposed rule-makings culminating in the promulgation of 10 C.F.R. § 212.84, 39 F.R. 38364 (October 31, 1974). See 39 F.R. 17771 (May 20, 1974); 39 F.R. 32310 (September 5, 1974).

3. Pursuant to § 212.84, Gulf reported its interaffiliate transfer prices to the FEA on Form FEA F701-M-O (Form 701). On the basis of the data collected from companies reporting third party transactions of foreign crude oil on Form 701, FEA has calculated maximum and representative prices for the months of October 1973 through May 1975 pursuant to the standards announced in § 212.84. Those prices were published in 42 F.R. 22190 (May 2, 1977).

4. Based on its determination of the maximum and representative prices, and an examination of the transfer prices reported to the FEA by Gulf, FEA issued a Notice of Proposed Disallowance (Notice) to Gulf on April 27, 1977. The Notice proposed the disallowance of $79,622,995.36 from Gulf's landed costs of crude oil imported in transactions between affiliated entities during the period October 1973 through May 1975. This revised Notice superseded the three original Notices, one issued to Gulf on July 14, 1975 and the remaining two on August 28, 1975. Gulf also received, under date of May 8, 1974, a Notice of Probable Violation (NOPV) alleging that Gulf's landed cost for certain crude oils imported in transactions between affiliated entities during the period October 1973 through January 1974 were overstated.

5. Gulf filed timely replies to each Notice and the NOPV issued to it, as well as a five-volume supplemental reply to the three original Notices. Gulf filed a formal response to the April 1977 Notice on June 9, 1977 and met with DOE officials on October 13, 1977. Gulf submitted additional information in subsequent conferences with OSC in connection with the issues raised in the Notice, asserting that it should be modified or rescinded. Gulf has contested the maximum and representative prices established for its crude oil from Ecuador, Columbia and Angola, which are determined in comparison to other crude oils in the same geographic region. Gulf has also contested the valuation of various Venezuelan crude oils and the market prices of Nigerian crude oil. The appropriate landed costs for Indonesian Katapa crude oil purchased through affiliates during the period August 1973 through January 1976 has also been considered.

6. OSC has informed Gulf that adjustments have been made to the disallowance, pursuant to modifications to the maximum and representative prices. The modifications to Venezuelan and Ecuadorian crude oil prices are the result of the correction of underlying data previously misreported to DOE. Further modifications to Ecuadorian prices were the result of the establishment of valid market prices in a number of months. The adjustments resulted in a total reduction of the disallowance of $5,709,511.51.

7. Gulf without admitting any noncompliance with, or violation of, any rule or regulation of the DOE, desires to resolve, pursuant to 10 C.F.R. § 205.199J, the dispute arising between itself and the OSC as a result of the matters described herein with minimal disruption to its business operations and without more formal compliance action by OSC. OSC, by means of this Consent Order, desires to conclude the pending compliance proceeding. Gulf and DOE recognize that the time periods involved and the determination of proper costs allowable make it most difficult to determine whether any person sustained an overcharge in the purchase of covered products from Gulf; and, therefore, Gulf and OSC have mutually determined to conclude these matters and agree to the terms and conditions specified herein.

TERMS AND CONDITIONS

8. Gulf agrees that within 15 days of notice that the Consent Order has been made final, it will tender to the United States, upon demand, a certified check in the amount of $42,240,000.00. The payment of this amount shall be in lieu of any other remedial action including a redetermination of increased costs of crude oil and resulting overrecoveries of costs, attributable to disallowed landed costs. Gulf and OSC agree that such payment to the United States represents the most effective method of achieving payment to those who may have been overcharged by Gulf.

9. Gulf further agrees to assist in the evaluation of any claims filed by persons asserting a right to any portion of the payment. Such evaluation will be made prior to disposition of the funds to the Treasury of the United States. DOE agrees that it will accept and discharge the full administrative DOE responsibility for establishing and administering a program for evaluating such claims and making restitution to such persons having validated claims.

10. OSC finds, due to the time and expense which could be involved in the litigation of the issues raised by Gulf, that it is in the best interest of the United States to deem Gulf to have complied with 6 C.F.R. § 150.356 and 10 C.F.R. § 212.83 and § 212.84 upon Gulf's fulfilling the requirements of this Consent Order.

11. In consideration of Gulf's agreement to the terms and conditions of this Consent Order, OSC agrees that Gulf's performance under this Consent Order will constitute compliance with 6 C.F.R. § 150.356, 10 C.F.R. § 212.83 and § 212.84 with respect to the determination of Gulf's imported crude oil costs in the period October 1973 through May 1975, including the landed costs of Indonesian Katapa crude oil purchased by Gulf through a foreign affiliate from August 1973 through January 1976. OSC also agrees that it would not further the public interest to take any additional action against Gulf with respect to the allegations in the previously mentioned Notice or the NOPV; provided, however, that OSC reserves the right to take further remedial action in this case if OSC determines that information upon which this Order is based was materially erroneous or that the actions of Gulf have not been undertaken in a manner consistent with the aforementioned terms and conditions of this Order or with applicable DOE rules and regulations. OSC hereby expressly further reserves the right to take such actions as may be appropriate under DOE regulations concerning other costs measured, reported or recovered by Gulf and which are not the subject of this Consent Order.

15. The provisions of 10 C.F.R. § 205.199J are applicable to this Consent Order and are incorporated by reference herein.

I, the undersigned, a duly authorized representative of Gulf Oil Corporation hereby agree to and accept on behalf of said corporation the foregoing Consent Order.

I, the undersigned, a duly authorized representative of the Office of Special Counsel hereby agree to and accept on behalf of the Department of Energy the foregoing Consent Order.

UNITED STATES OF AMERICA DEPARTMENT OF ENERGY OFFICE OF HEARINGS AND APPEALS

SUPPLEMENTAL COMMENTS OF THE SPECIAL COUNSEL FOR COMPLIANCE AND GULF OIL CORPORATION ON PROPOSED DECISION AND ORDER

The Special Counsel for Compliance (Special Counsel) of the Department of Energy (DOE) and Gulf Oil Corporation (Gulf) hereby jointly submit the following comments as a supplement to the comments submitted by the Special Counsel on April 20, 1979, and by Gulf on April 19, 1979, in the matter of the Proposed Decision and Order implementing special refund procedures in case No. DFF-0001. Following the submission of comments by Gulf and the Special Counsel on the Proposed Decision and Order, the Special Counsel and Gulf determined that it was necessary for them to have further discussions regarding the comments submitted by each of them. As a result of these further discussions, Gulf and the Special Counsel have reached agreement on matters which were not included in our respective comments, but which, in our opinion, should be included in the final Decision and Order adopted by the Office of Hearings and Appeals.

The Office of Special Counsel and Gulf agree that the July 26, 1978, Consent Order was not intended to expose Gulf to double liability, i. e., to have any part of the $42.24 million paid to any persons or entities (including the United States) other than purchasers of Gulf's products who may have been overcharged so long as any overcharge claims, whether asserted by legal action or by administrative claim, of such persons against Gulf remained outstanding and unsatisfied. Gulf has concurred with Special Counsel that a final Decision and Order incorporating these recommendations will minimize to an acceptable level Gulf's "double liability" concerns under the Proposed Decision and Order.

As more specifically stated below, Special Counsel and Gulf have agreed that direct purchasers of Gulf products who institute actions against Gulf pursuant to Section 210 of the Economic Stabilization Act of 1970 for overcharges based upon alleged regulatory violations resolved by the Consent Order, and who obtain judgments and settlements regarding such claims on or before fifteen (15) months from the date of publication of the final Decision and Order, should be compensated from the Consent Order fund of $42.24 million on an equal footing with direct purchasers making administrative claims, provided, however, that the amount of any such judgment to be satisfied from the Consent Order fund should be limited to such portion of the judgment which is the proportion of $42.24 million to the total overstatement of landed costs upon which the judgment is determined, if such disallowed landed costs exceeds $42.24 million.

Both Gulf and the Special Counsel agree that a reserve fund out of the Consent Order fund should be established for litigation pending and unresolved at the end of such fifteen (15) months from the date of publication of the final Decision and Order. Gulf and the Special Counsel also agree that any necessary expenses, as determined by the OHA, incurred in connection with the implementation of the final Decision and Order should be paid from the Consent Order fund.

In addition to these general considerations, Gulf and the Special Counsel have agreed that the following specific responses of the Special Counsel to Gulf's comments of April 19, 1979, as herein modified, represent the concepts of an administrative refund procedure which should be adopted for the distribution of the Consent Order fund.

Modified Response to Annex B to Gulf's Comments

A. (1) Persons who have obtained final judgments against Gulf after trial or by settlement with the approval of the Special Counsel, such approval not to be unreasonably withheld, in legal actions brought by direct purchasers pursuant to Section 210 of the Economic Stabilization Act which are based upon claims arising out of an alleged overstatement of landed crude oil costs during the period August 19, 1973, through January 1976 should be included within the class of persons who have validated claims under the final Decision and Order.

(2) Persons who within fifteen (15) months of the publication of the final Decision and Order have obtained settlements of claims against Gulf, other than settlements resulting in a final judgment as provided in A(1), which are asserted in legal actions brought by direct purchasers pursuant to Section 210 of the Economic Stabilization Act and which are based upon claims arising out of an alleged overstatement of landed crude oil costs during the period August 19, 1973, through January 1976 should be included within the class of persons who have validated claims under the final Decision and Order, but only to the extent that such settlement amounts are specifically approved by the Special Counsel, such approval not to be unreasonably withheld.

(3) If there are one or more pending claims against Gulf which are asserted in legal actions brought prior to the expiration of fifteen (15) months from the date of publication of the final Decision and Order by direct purchasers pursuant to Section 210 of the Economic Stabilization Act and which are based upon an alleged overstatement of landed crude oil costs during the period August 19, 1973, through January 1976, a reasonable reserve out of the $42.24 million should be created in order to provide for the payment of each such claim. Gulf and Special Counsel will use their best efforts to agree to the amount of reserve for each such claim as soon as practicable after the filing of the action. If the Special Counsel and Gulf are unable to agree upon the amount to be held in each such reserve within thirty (30) days following the expiration of the fifteen (15) month period, they shall immediately submit the determination to an independent third party with the expectation that such determination will be made within sixty (60) days following the submission to such third party. The Special Counsel and Gulf agree to assist the independent third party fully to expedite this determination.

B. The identification of those persons who are within the classes described in paragraphs A(1), A(2), and A(3) should be made within fifteen (15) months from the date of publication of the final Decision and Order.

C. No distribution of the Consent Order fund should be made prior to a determination as to (1) those amounts which are to be paid from that sum to persons described in paragraphs A(1) and A(2) above; (2) the amounts of the reserves agreed to by Gulf and the Special Counsel for persons described in paragraph A(3); and (3) the amounts which are to be paid to direct purchasers of covered petroleum products from Gulf who have filed administrative claims in the refund program. In order for persons described in paragraphs A(1) and A(2) to have their judgments or settlements considered for payment from the Consent Order fund, they, or Gulf on their behalf, should be required to file a claim with the DOE which is based upon such judgment or settlement. Persons described in paragraph A(3) who wish to have claims they have pending against Gulf in litigation under Section 210 of the ESA considered by the DOE, may also file claims under the administrative procedure. To the extent that such pending claims are validated and authorized for payment by the DOE, appropriate adjustments in the amounts to be held in reserve under paragraph A(3) should be made.

D. The amounts to be paid to persons described in paragraphs A(1) and A(2) should be made from the Consent Order fund on an equal footing with the amounts to be paid to direct purchasers of covered products from Gulf who only file administrative claims under the special refund procedures; provided, however, if a claim is filed by a person holding a judgment under paragraph A(1), or by Gulf on their behalf, which is based upon an overstatement by Gulf of landed costs for interaffiliate crude oil transactions in excess of $42.24 million, then the DOE may approve for payment only such portion of the judgment which is the proportion of $42.24 million to the total overstatement of landed costs upon which the judgment is determined.

E. The balance of the Consent Order fund remaining after a determination by the DOE of the total amounts to be paid to direct purchasers who have filed administrative claims, and to the persons described in paragraphs A(1) and A(2), and the appropriate amounts to be held in reserve under paragraph A(3), should be available for payment to persons other than direct purchasers of Gulf covered products who have filed administrative claims under the special refund procedures. The disbursement of any amount remaining after a determination of the sum payable to persons other than direct purchasers should be at the direction of and as determined by the OHA. The determination of the amount available to persons other than direct purchasers or the disbursement of the balance remaining need not await a resolution of the pending claims for which the reserves under paragraph A(3) are created.

F. (1) Gulf may retain the Consent Order fund in a separate identifiable account on its records, subject to such terms and conditions as are required by the OHA after consultation with Gulf. Gulf should be required to make only such payments from this fund as are directed by the OHA pursuant to the terms of the final Decision and Order. Payment to any particular class or claimant provided for hereunder need not await payment to any other class.

(2) As each claim for which a reserve has been established under paragraph A(3) is settled with the approval of the Special Counsel or results in a final judgment, the OHA should direct an appropriate payment for such settlement or judgment out of the reserve fund, such payment not to exceed the amount set aside in the reserve fund for the claim. The amount approved for payment may be limited, if appropriate, in accordance with the formula outlined in the second clause of paragraph D. If the amount paid for the settlement or judgment is less than the amount set aside in the reserve fund for the claim, then the remaining balance of such reserve should be available for payment to persons filing administrative claims and persons described in paragraphs A(1) or A(2) in accordance with the provisions herein. If the claims of such persons have been fully satisfied under the procedures adopted in the final Decision and Order, then the remaining balance should be disbursed in accordance with paragraph E, above.

G. If an action for judicial review of the Decision and Order is filed within 30 days of its publication in the Federal Register which challenges the authority of the DOE or the validity of the Decision and Order, then Gulf should not be obligated to pay any part of the Consent Order fund to claimants until fifteen (15) days following final adjudication or other resolution of such judicial action. To the extent that the action for judicial review challenges only a limited portion of the Decision and Order, then Gulf should be obligated to pay to persons with validated claims that portion of the Consent Order fund which is unaffected by the litigation. In the event that such an action for judicial review results in a determination that the authority of the DOE or the validity of the Decision and Order is materially deficient, in whole or in part, Gulf and Special Counsel have agreed they will negotiate in a good faith effort to promptly agree upon a remedy consistent with such determination with respect to the whole or any part of the Consent Order fund so affected by the determination.

Respectfully submitted, (s) Paul L. Bloom Paul L. Bloom Special Counsel for Compliance, Department of Energy (s) Charles A. Boyce Charles A. Boyce Associate General Counsel, Gulf Oil Corporation

Date: June 7, 1979.

NOTES

[1] Most, if not all, reputable economists agree that increasing oil, gold and other natural resource prices merely reflect the value of the currency and do not cause inflation. The latter is caused, for the most part, according to the experts, by the government's devaluing or "printing" of currency or increasing the money supply. See Alchian and Allen, Exchange and Production: Competition, Coordination, and Control, 2d Ed., Ch. 19, pp. 486 et seq. This is a basic lesson which unfortunately our executive and legislative leaders apparently have yet to learn or have deliberately ignored. At this writing, inflation in the United States is said to have reached the "crisis stage." The Wall Street Journal, February 26, 1980, pp. 1, 3, quoting a statement by the President.

[*] The Weiner action was consolidated with the Stertz action pursuant to an order of Judge Broderick from the Eastern District of Pennsylvania.

[2] Consent Order — See attached.

[3] Supplemental Comments — See attached.

[4] Interim Decision and Order — See attached.

[5] "At no time prior to executing the Consent Order did Gulf indicate concern over the terms or conditions of any such claims procedure, or over treatment of persons suing Gulf, including judgment creditors, in such a program." Blum affidavit at 5.

[6] While the DOE properly says it does not "hold" the funds because Gulf has to date refused to deliver them to it, nonetheless the DOE claims it is entitled to possession thereof and this asserted interest is sufficient for purposes of ascertaining whether plaintiffs have a claim against it.

[7] "We cannot agree ... that the legislative history of the [Economic Stabilization Act] supports the idea that in a private action under section 210 the administrative agency must or should be joined as an involuntary defendant." (Emphasis added). 601 F.2d at 564.

[8] "... over the objection of the agency it ordinarily may not be joined as a full-fledged party in section 210 actions, except ... under other compelling circumstances ...." (Emphasis added). 601 F.2d at 569.