Exxon Corp. v. Federal Energy Administration

HASTINGS, Judge

(dissenting).

The statement in Section 211(d)(2) of the Economic Stabilization Act, 12 U.S.C. § 1904 note, that appeals from decisions of district courts respecting injunctions “may be taken in accordance with the provisions of section 1292(b) of title 28, United States Code . . .,” presents this court with a difficult question of interpretation. There seem to be two possible interpretations of the provision. Either the mention of § 1292(b) precludes appeals pursuant to § 1292(a)(1), or the latter provision remains available. The two interpretations are each, at least in some respect, unsatisfactory. In light of the congressional policy behind the judicial review provisions of the Economic Stabilization Act, I find the majority’s view that § 1292(a)(1) review is precluded the far less satisfactory interpretation and I therefore dissent.

The majority holds that it was the intent of Congress to limit the appellate jurisdiction of the Temporary Emergency Court of Appeals over orders granting or denying preliminary injunctions to those which have been certified by the district court under 28 U.S.C. § 1292(b). A complete review of the legislative history of the Act reveals only a single *1405mention of 28 U.S.C. § 1292(b) in all of the committee reports and debates on the floor of the House and Senate. That single sentence, in the Senate committee report, does little more than restate the language of the statute:

To insure speedy disposition of this matter, an appeal may be taken from the granting of such an injunction from the district court to the Temporary Emergency Court of Appeals pursuant to the procedure provided in 28 USC 1292(b) for appealing interlocutory appeals in expedited form. S.Rep. No. 92-507, 92d Cong., 1st Sess. 12 (1971); U.S.Code Cong. & Ad.News, p. 2294 (1971).

I cannot join the majority’s conclusion that any decision to limit review to the provisions of § 1292(b) was “both intended and carefully considered.”

If Congress had in fact intended to restrict review of orders concerning injunctions to those certified by the district court, any careful consideration of the language of § 1292(b) and the cases which have interpreted it would have revealed that § 1292 would not be an appropriate vehicle to “insure speedy disposition” of orders respecting preliminary injunctions.

The Supreme Court in Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972), concluded that the statute’s legislative history demonstrated “that § 1292(b) was intended to establish jurisdiction in the courts of appeals to review interlocutory orders, other than those specified in § 1292(a), in civil cases in which they would have jurisdiction were the judgments final.” Id. at 168, 93 S.Ct. at 418 (footnote omitted). The Court further stated that “§ 1292(b) was intended to supplement § 1292(a), not to provide a substitute for it.” Id. at 168 n. 41, 93 S.Ct. at 418. The Court went on to consider, in dicta, the possible usefulness of § 1292(b) in securing review of orders concerning preliminary injunctions in a class of cases where resort to § 1292(a) was precluded. The Court said, “[T]he fact is that permitting interlocutory appeal under § 1292(b) would not bring these orders and the related evidence before the courts of appeals since they come within § 1292(a)(1).” Id. at 172 n. 47, 93 S.Ct. at 420. The implication of this observation for our jurisdictional question is clear. If, as the majority holds, § 211(d)(2) of the Economic Stabilization Act prevents use of § 1292(a)(1) to appeal orders granting or denying preliminary injunctions, then the certification procedure of § 1292(b) could not be used to appeal such orders either.

The Supreme Court’s observation was based on careful consideration of legislative history. The Court’s analysis is persuasive and should be followed here. But even if we were to reject as dicta the Supreme Court’s conclusion that § 1292(b) is wholly unavailable to review a preliminary injunction decision, § 1292(b), if available, would be a very awkward and inappropriate mechanism for such review.

The language of 28 U.S.C. § 1292(b) only makes sense if it supplements review as of right from orders concerning preliminary injunctions rather than supplants it. The section begins “when a district judge, in making in a civil action an order not otherwise appealable under this section . . . .” Since § 1292(a)(1) permits review of injunctive orders, by its own terms, the procedures of § 1292(b) are not to be applied to appeals from injunctions.

The standards for certification under § 1292(b) were not designed to be and are not suitable for application to preliminary injunctions. Section 1292(b) requires a “controlling question of law,” but the controlling issues in a preliminary injunction proceeding are in large part factual, such as whether there is irreparable harm to the plaintiff, whether harm to the defendant if an injunction is granted would outweigh benefit to the plaintiff, and whether an injunction would serve the public interest. There is substantial precedent supporting the view that § 1292(b) certification is inappropriate in matters that lie with*1406in the discretion of the district court,1 but the issuance of a preliminary injunction is “committed to the sound judicial discretion of the trial court.” League of Voluntary Hospitals v. Local 1199, Drug & Hospital Union, 490 F.2d 1398, 1401 (Em.App.1973).

While the legislative history of the Economic Stabilization Act fails to demonstrate a clear intent to restrict review of decisions about preliminary injunctions to the procedures of § 1292(b), it does contain a detailed statement of the congressional policies which the judicial review provisions were designed to implement:

The judicial review provision has been written with several important principles in mind: (1) speed and consistency of decisions in cases arising under the Act, (2) avoidance of any breaks or stays in the operation of the Stabilization Program, and (3) relief for particular persons aggrieved by the operation of the program. S.Rep. No. 92-507, 92d Cong., 1st Sess. 10 (1971); U.S.Code Cong. & Ad.News, p. 2292 (1971).

Limiting appeals from orders concerning preliminary injunctions tc those certified pursuant to § 1292(b) would be likely to produce delay and inconsistency rather than further the legislative intent. Considering the inapplicability of the requirements for a certification under § 1292(b) to preliminary injunction questions, a district court would often be correct in refusing to certify its order for appellate review. As a result, district court orders inconsistent with decisions of the Temporary Emergency Court of Appeals could remain in effect for substantial periods of time. While a party who had been denied preliminary relief in the district court could petition our court directly for an injunction, the party aggrieved by the issuance of an injunction by the district court would have no such alternative available. Thus, the situation Congress most feared, of injunctions creating breaks or stays in the program, is furthered by limiting review to § 1292(b).

The general design of the jurisdictional review provisions of the Economic Stabilization Act is to limit the relative authority of the district courts and to concentrate authority in our court. Limiting review of injunction orders to those properly certified under § 1292(b) would make district courts in cases arising under the Economic Stabilization and Emergency Petroleum Allocation Acts more powerful than they would be in other cases and our court less powerful than other courts of appeals. The district courts would have what the Supreme Court has described as “virtually unlimited authority over the parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974).

The holding of the majority here that § 1292(b) is the only avenue of appeal for orders respecting preliminary injunctions is not only inconsistent with the well-developed interpretation of § 1292(b) and the legislative policies behind the Economic Stabilization Act, but it is also inconsistent with the prior uniform practice of our court in hearing appeals from preliminary injunction decisions without requiring a § 1292(b) certification.

In Pacific Coast Meat Jobbers Ass’n v. Cost of Living Council, 481 F.2d 1388 (Em.App.1973), our court heard and decided an appeal by private parties which had been denied a preliminary injunction. While the court also had before it an original application for a preliminary injunction, the opinion of the court leaves no question that it was deciding both the preliminary application and the appeal. In League of Voluntary Hospitals, supra, the court stated that the case before it was “an appeal, pursuant to Section 211 of the Economic Stabilization Act” from an order granting a preliminary injunction, yet the court did not *1407find it necessary to discuss any possible jurisdictional obstacles to its hearing the case.

In County of Nassau v. Cost of Living Council, 499 F.2d 1340 (Em.App.1974), our court heard appeals by a government agency from a series of decisions of a district court granting among other relief, a temporary restraining order. In County of Nassau the jurisdictional question was explicitly considered. The court said:

At the threshold a question arises whether the temporary restraining order against the COLC’s temporary order is appealable. We hold that it is appealable under the rationale of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (decided Feb. 19, 1974) . . . . 499 F.2d at 1343.

In Sampson v. Murray, the Supreme Court held that a temporary restraining order would be considered as a preliminary injunction so that review under 28 U.S.C. § 1292(a)(1) would be available. The Court reasoned:

A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over the parties in an injunctive proceeding. 415 U.S. at 86-87, 94 S.Ct. at 951.

Since Sampson was an interpretation of § 1292(a)(1), our court’s reliance upon that case, is an implicit holding that the provisions of 28 U.S.C. § 1292(a)(1) permit our court to hear appeals from decisions concerning preliminary injunctions without a certification.

In light of this precedent, the inutility of § 1292(b) in reviewing preliminary.injunction orders and the legislative policies behind the judicial review provisions of the Economic Stabilization Act, I would hold that § 211(d)(2) of the Act does not preclude this court’s jurisdiction over appeals pursuant to 28 U.S.C. § 1292(a)(1). While I recognize that this holding would render the reference to § 1292(b) in § 211(d)(2) superfluous, I believe it achieves a far more satisfactory result than the holding of the majority-

. 9 Moore’s Federal Practice fl 110.22[2] at 261 (2d ed. 1973); C. Wright, Law of Federal Courts § 102 at 463 (2d ed. 1970). But see Katz v. Carte Blanche Corp., 3 Cir., 496 F.2d 747, 752-756, cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974).