specially concurring.
I concur with the result of Judge Sear’s scholarly opinion, and essentially in its reasoning. To supplement the primarily technical treatment there involved, I would make some additional observations concerning the practicalities of the situation; and I find it importantly necessary to deal aside from the question of finality of the lower court’s decision with an issue of the jurisdiction of this court, itself, which was briefed and argued by the parties but which Judge Sear has chosen not to address.
I
While more recently emphasizing the “finality” requirement theretofore established by Congress for appeals, and the vice of circumventing restrictions imposed by the Interlocutory Appeals Act of 1958, Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court has long recognized that it is impossible to devise a precise formula to resolve all marginal cases and that the requirement of finality is to be given a practical rather than a technical construction. Gillespie v. U.S. Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
But whether the question of appealability is considered from a technical or a practical standpoint the result should be the same in this case. Viewed from the former, the issue is not even marginal, for the elements of amount, priority and allowability of the claim are integral parts of a core issue in bankruptcy. With the lower court still having under consideration at least one and in essence perhaps two of these elements, its order dealing with only the third seems so basically interlocutory as to render the consideration of additional practicalities somewhat gratuitous.
Concerning the practicalities of the situation in general, however, I accept Judge Becker’s excellent analysis for the Court in Marine Petroleum Co. v. Champlin Petroleum Co., 657 F.2d 1231 (Em.App.1980), as a suitable frame of reference. With due consideration for the Cohen doctrine, we held that an order denying DOE’s motion for its dismissal as a party was immediately appealable without certification as an interlocutory appeal because the order appealed from was a final disposition of a claimed right which was not an ingredient of the cause of action; it did not require consideration with that cause of action; even if DOE could have taken an appeal from the final judgment, that would not have provided a remedy since for all practical purposes the order denying its dismissal was final, and the claim of DOE was separable from and merely collateral to rights asserted in the main action. In the attempted appeal now before us the right in question is an ingredient of the core issue concerning the allowances of DOE’s claim, which can be meaningfully disposed of finally only by a determination of both its amount and priority. We are agreed here that an appeal will lie from the allowance or disallowance of DOE’s claim, at which time the question of its priority as well as its amount can be reviewed. The question of priority is not separable from and collateral to the question of allowance.1 *1419Moreover, any practical disadvantages of a delay in reaching the merits which were noted in Marine Petroleum will not be present here; there is no possibility that DOE can receive a distribution until the bankruptcy court rules on the issue of allowance, including amount.
There are other practicalities. It remains possible that there will be a new appeal on the question of amount as well as priority. To fragment such an appeal by premature consideration of a part, offers little, if any, hope for the conservation of judicial resources. Indeed, the bankruptcy court’s failure to discuss the significance of statutory and regulatory provisions concerning restitutionary as distinguished from penalty procedures under the Emergency Petroleum Allocation Act and our related decisions, the considerable amount of other litigation now before the district courts and this court involving the various programs of DOE for restitution of overcharges in which only the identification of beneficiaries rather than the restitutionary character of DOE’s recoveries is questioned and the substantial concession of appellee during oral argument that individual reimbursement of those suffering actual damage would negate the basis for its penalty position, could lead to a reconsideration or modification of the present interlocutory decision before any further appeal.2
II
Citing Firestone Tire & Rubber Co. v. Risjord, supra, for the proposition that “[i]f an appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over,” Judge Sear avoids a discussion of the sole grounds upon which our jurisdiction has been questioned by any party in this case. In Firestone, however, the only jurisdictional point raised was that involving a lack of finality of the judgment from which an appeal was being attempted, and there was no question as to the competency of the court to review the judgment had it *1420been final. A court has the prerogative of both discussing and deciding questions concerning its own jurisdiction, and if there should be any order of discussing multiple jurisdictional points, it seems to me that first and most imperatively the question of the competency of the court over the subject matter should be addressed first, for if there is no jurisdiction in that sense, it would be immaterial whether the judgment appealed from is or is not final.
Especially in this case are the parties entitled to have us address, among any other issues of jurisdiction, the only point raised or discussed in the briefs or the argument, to furnish at least some guide should there be occasion for a further appeal and to avoid any possible implications from sub silentio treatment that the jurisdiction of this court over the subject matter of the proceedings below is suspect. I believe that an expression on that issue may transcend in importance the other jurisdictional problem raised by Judge Sear which has proved to be dispositive of this particular appeal. This may aid to a degree in the avoidance of abortive or needlessly duplicative appeals in the future3 not only in this case but in other cases of similar nature of which we are told there could be many. Moreover, in similar vein, we must address a reserved motion based on the discrete ground of our alleged lack of subject matter jurisdiction.
Appellee initially moved for the dismissal of DOE’s appeal for lack of jurisdiction in this court on the ground that this is not a case or controversy arising under the EPAA or regulations or orders issued pursuant thereto but rather one arising under the Bankruptcy Act. We directed that such issue be briefed along with the merits, and oral arguments have been heard as to both. In my opinion, appellee’s motion to dismiss this appeal on the ground stated should be expressly denied for reasons that follow.
In Bray v. United States, 423 U.S. 73, 74, 96 S.Ct. 307, 309, 46 L.Ed.2d 215 (1975), the Supreme Court stated:
... Congress created the TECA and vested it with “exclusive jurisdiction of all appeals from the district courts of the United States in cases and controversies arising under title or under regulations or orders issued thereunder.” § 211(b)(2), 85 Stat. 749. This judicial-review provision was designed to provide speedy resolution of cases brought under the Act and “to funnel into one court all the appeals arising out of the District Courts and thus gain in consistency of decision.” S.Rep. No. 92-507, p. 10 (1971). The provision thus carved out a limited exception to the broad jurisdiction of the courts of appeals over “appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291.
WTM contends that the issue adjudicated by the bankruptcy and the district courts and the issue actually presented on this appeal is whether “under § 726 of the United States Bankruptcy Code, a claim by the DOE for violation of applicable petroleum pricing regulations should be subordinated in payment to the claims of other creditors of debtor in a bankruptcy liquidation because it is a penalty under applicable bankruptcy law.” It says that the order appealed from does not interpret, construe or apply provisions of the EPAA or its regulations “in any manner whatsoever” but merely holds that DOE’s claim, if established in accordance with such statutes and regulations, “shall be subordinated in payment to other creditors in the liquidation of the debtor’s bankruptcy estate because of the applicable bankruptcy law which would characterize such claim as a penalty or forfeiture for purposes of priority of distribution on claims.”
*1421The cases cited in support of this argument are either contrary to WTM’s position or are distinguishable from the present case where the legal consequences of the claim at issue depend mainly upon an interpretation of the EPAA, its implementation and enforcement in light of the decisions of this court in other eases, and the congressional policy manifested by the federal act.4
DOE argues that the WTM motion “fits comfortably” within the plain language of the jurisdictional statute; that it challenges DOE’s claim for restitution of overcharges, which arises under the EPAA; that just as a complaint filed under the Declaratory Judgment Act challenging an EPAA claim “arises under” the EPAA and not under the Declaratory Judgment Act, the claim here “arises under” the EPAA and not under the Bankruptcy Act which merely provides the procedural context in which the critical dispute is involved; that the primary issue decided below and appealed here necessarily involves the EPAA and that WTM’s argument that the lower courts did not even address EPAA matters but simply held that under the Bankruptcy Act DOE’s claim was a penalty is specious because even the sub silentio treatment was an effective determination of the EPAA issue. A review of the pertinent decisions of this court in the light of the governing statute and the circumstances of the present case has proved convincing that DOE’s position is well taken.5
*1422In MGPC, Inc. v. Department of Energy, 673 F.2d 1277 (Em.App.1982), supra, Judge Duniway said for the Court:
To decide whether or not we have jurisdiction to hear an appeal, we look to the nature of the issue that is presented to us and not to the nature of the case or controversy presented below. Gulf Oil Corp. v. Department of Energy, Em. App., 1981, 639 F.2d 766, 767.
With respect to the subject matter thus defined, and except for a restriction not here relevant, we have the full powers of a circuit court of appeals, 12 U.S.C. § 1904 note, § 211(b)(1). This power includes the power to resolve those subsidiary, procedural and threshold questions — such as mootness, standing and ripeness — that are incidental to questions that are within our jurisdiction, because the power to do so is normal and necessary to the functioning of any appellate court. Quincy Oil, Inc. v. Federal Energy Administration, Em.App. 1980, 620 F.2d 890, 893. See also Department of Energy v. Crocker, Em. App., 1980, 629 F.2d 1341 (per curiam).
In United States v. Wickland, 619 F.2d 75 (Em.App.1980), we held that the issue of whether DOE could be estopped from enforcing the subpoena power granted it by the EPAA was an issue arising under the Act and therefore that TECA had exclusive jurisdiction of the appeal of the district court’s order requiring compliance with the subpoena. We there expressly rejected the appellant’s contention that the case presented only “general legal issues” of estoppel and subpoena enforcement “which the court of appeals can confront without addressing ESA or EPAA questions.” Id. at 78.
In United States Dept. of Energy v. Crocker, 629 F.2d 1341 (Em.App.1980), appellant contended that this court did not have jurisdiction to entertain a petition for a writ of mandamus because the district court’s rejection of DOE’s privilege claims “[does] not require any interpretation of, or even reference to, the Emergency Petroleum Allocation Act (EPAA) or to any other statute, regulation or order which would vest TECA with jurisdiction to entertain this Petition.” We rejected this contention, stating:
Here the discovery issue may affect the ability of litigants under the EPAA to obtain intra-agency evidence bearing upon the meaning and interpretation of regulations issued pursuant to the Economic Stabilization Act and the Emergency Petroleum Allocation Act. We find, therefore, that, as in Wickland, the district court has “adjudicated” an “EPAA issue.”
In Texaco, Inc. v. Department of Energy, 616 F.2d 1193 (Em.App.1979), supra, over the dissent of Judge Hoffman, this court held that where the sole issue on appeal was the district court’s holding that the Federal Energy Regulatory Commission had certain review authority and where the propriety of that holding was not a question arising under the EPAA but rather was a question that arose under the Department of Energy Organization Act which contained no jurisdictional grant, the Temporary Emergency Court of Appeals lacked jurisdiction. However, we distinguished that case from cases comparable to the present one:
Despite the existence in the cases of the common law claims for breach of contract, both opinions held that exclusive appellate jurisdiction vested in TECA because practically speaking “the resolution of the litigation in its entirety requires application and interpretation of the EPAA of 1973 as amended September 29, 1975,” 591 F.2d at 716. Decision by TECA was deemed appropriate because resolution of the one issue arising *1423under the EPAA would resolve the entire case. This assertion of jurisdiction is consistent with the general rule that TECA will not address issues not arising under the EPAA.
Texaco, supra, at 1197, n. 2.
In Ashland Oil Co. of Cal. v. Union Oil Co. of Cal., and subsequent cases concerning the statute of limitations problem in the EPAA context, supra, we determined that unless the policy of the EPAA would be thereby frustrated, state statutes of limitations would be followed since the EPAA contained no limitation provision. In Ash-land it was stated:
We have concluded that the national policy can best be harmonized with the state statute of limitations by applying the one year bar to Ashland’s second claim, and allowing maintenance of the first claim as an action other than for a penalty. Another result, we believe, would be inconsistent with the most persuasive local interpretation of the California statute of limitations. We further are of the opinion that overriding national policy would require us to comport any variance or uncertainty in the California rule to the indicated result.
567 F.2d at 990.
The alternatives in Ashland were to apply the California statute of limitations pertaining to a claim for a “penalty or forfeiture” or applying a longer period on the theory that the claim was an action “other than for a penalty or forfeiture.” Upon this very distinction we held that the penalty bar was applicable to the treble damage claim but that the claim for compensatory damages was not an action for a penalty or a forfeiture within the contemplation of the California statute in view of the holding of the California court that actions for damages beyond or without reference to actual loss were actions for penalties or forfeitures.
In Siegel Oil Co. v. Gulf Oil Corp., 701 F.2d 149 (Em.App.1983), involving a statute of limitations problem, we commented: “The nature of Siegel’s claim presents a question of federal law.”
In Rainey v. Union Oil Co. of California, 732 F.2d 1563 (Em.App.1984), supra, we stated: “All of plaintiff’s claims were related to, and dependent upon, application of the Emergency Petroleum Allocation Act (EPAA) and its regulations and hence we reject the contention of Union that this court lacks jurisdiction.”
It was explained in footnote 1 at 1564: ... Suffice it to note here that plaintiffs’ first claim alleging damages from Union’s circumvention of EPAA regulations was deemed by the trial court to have failed because plaintiffs did not activate those regulations by proper designation of Union as their new supplier and, not having been so designated, Union had no obligation to either plaintiffs or plaintiffs’ successors. Based on this theory the trial court also dismissed plaintiffs’ claims for tortious interference with the sale of plaintiffs’ business and breach of contract to supply gasoline because of assumed absence of any obligation on the part of Union beyond the faulted designation to support them. The drawing of fine lines, as Union would have us do, between the “arising under” and the “issue” formulation of our appellate jurisdiction is unnecessary in this case by reason of the interdependency of the respective claims.
In the present case, the paramount issue that had to be decided in the district court was not whether a claim for a “penalty” might be subordinated under the Bankruptcy Act. No one could, did, nor can question this. It was whether the claim of DOE as premised entirely upon provisions of the ESA and the EPAA and its regulations was in fact and law one for a penalty or one for restitution — and whether, indeed, again interpreting the prerogatives of the Agency and the practicalities of its procedures under the EPAA, there could be restitution beyond the “disgorgement” of profits illegally obtained by the oil company or whether in the situation before the Court this would suffice.
*1424The Temporary Emergency Court of Appeals has jurisdiction to consider cases necessarily involving, in whole or in part, ESA or EPAA issues, even though there may be other intertwined non-EPAA/ESA issues. On the other hand, Courts of Appeals do not have jurisdiction- to decide EPAA/ESA issues because as to such issues the jurisdiction of this court is exclusive.
The bankruptcy judge and the district court necessarily had to consider EPAA/ESA issues in arriving at a proper decision whether DOE’s claim was for a penalty or for restitution. Even though they did not do so expressly, their interlocutory decisions were dispositive of those issues at least for the time being. As such, they necessarily decided them, subject to the exclusive appellate jurisdiction of this court from any final decision to that effect.
With the foregoing qualifications and supplementation, I concur in Judge Sear’s opinion and with its dismissal of DOE’s present appeal.
. I find Judge Becker's observation in the later case of Petraco-Valley Oil v. U.S. Dept. of Energy, 633 F.2d 184, 198-99 (Em.App.1980), pertinent to the circumstances now before us:
The interlocutory order of the District Court clearly does not fall within this class of decisions appealable under § 1291, first defined in Cohen v. Beneficial Industrial Loan Corp., *1419supra, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The interlocutory decision of the District Court denying the motion for a temporary injunction, meets none of the tests of the Cohen case. It did not "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated” as described in the Cohen case, supra. The decision in question was not a final determination. It was not separable from and collateral to rights asserted in the action; on the contrary, the interlocutory relief sought was the same as that sought in a final judgment in the action. If the relief is denied in a final judgment, an appeal of right under § 1291 would lie. [Citations omitted.]
. By this we do not mean to be understood as saying that restoration of overcharges to precisely identified individuals is the sine qua non of restitution, for to do so would be inappropriately to ignore the massive congressional, administrative and judicial action that is now in progress better to insure maximum individual reimbursement for loss and, where that is impractical, appropriate reimbursement to the general class found to have been adversely affected. The additional insights being gained by the parties are indicated by supplemental material submitted to the Court following oral argument. This case in its present posture does not provide a suitable occasion to consider and document whether these commensurate or class restorations, as well as individual reimbursements, also are restitutionary rather than penal in character for the purposes of the Bankruptcy Act. Even though error in an interlocutory ruling appears plain, it would furnish no justification to disregard the finality requirement otherwise applicable. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 378, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981). The point that is germane now is that in view of the additional light on the problem of restitution for overcharges which is so rapidly being developed, it becomes all the more inappropriate to deprive the lower court of the additional information pending its final decision on the allowance of the claim in question.
The confusion pointed out by Judge Sear in DOE’s brief, n. 4, concerning reliance upon § 209 of the Economic Stabilization Act of 1970 is more apparent than real. This court has never questioned the authority of DOE to directly order restitution and has looked to § 209 to demonstrate one of the bases of that power. Sauder v. Department of Energy, 648 F.2d 1341, 1348-49 (Em.App.1981); Bonray Oil Co. v. Department of Energy, 472 F.Supp. 899 (W.D.Okl.1978) , aff’d per curiam, 601 F.2d 1191 (Em.App.1979) .
. DOE’s appeal to this court was timely filed. It appealed also to the Court of Appeals of the Fifth Circuit but that appeal was dismissed as untimely. Order filed December 17, 1984, in No. 84-1884, West Texas Marketing Corp., Debt- or, U.S. Department of Energy, plaintiff-appellant v. West Texas Marketing Corporation, Walter Kellog, Trustee for Debtor and David Snodgrass, defendants-appellees.
. Bray v. United States, supra (appeal from conviction of criminal contempt under 18 U.S.C. § 401 not within exclusive jurisdiction of TECA although connected with investigation of ESA violations, since the contempt charge initiated a separate and independent proceeding); United States v. Wyatt, 680 F.2d 1080 (5th Cir.1982) (issues were not removed from the jurisdiction of TECA simply because they comprehended legal principles beyond the EPAA); United States v. Uni Oil, Inc., 646 F.2d 946 (5th Cir.), cert. denied, 455 U.S. 908, 102 S.Ct. 1254, 71 L.Ed.2d 446 (1981) (although criminal indictments and defenses thereto made use of the EPAA and its regulations, Fifth Circuit had jurisdiction since resolution of the issues did not involve interpretation of substantive provisions of the EPAA); Coastal States Marketing v. New England Petro., 604 F.2d 179 (2d Cir.1979) (TECA had exclusive jurisdiction where issue adjudicated by district court was whether plaintiff had violated the EPAA); United States v. Zang, 653 F.2d 493 (Em.App.), cert. denied, 454 U.S. 864, 102 S.Ct. 323, 70 L.Ed.2d 164 (1981) (not within jurisdiction of TECA since determination of whether or not EPAA regulations were violated by appellants would not be dispositive of appeal); United States v. Zang, 645 F.2d 999 (Em.App.1981) (fact that criminal indictments included explanation of certain EPAA regulations was held not enough to give rise to TECA jurisdiction); Texaco, Inc. v. Department of Energy, 616 F.2d 1193 (Em.App.1979) (question on appeal was not an EPAA issue but one which arose solely under the DOE Act, thus TECA had no jurisdiction); Spinetti v. Atlantic Richfield Company, 522 F.2d 1401 (Em.App.1975) (counts of plaintiffs’ complaint which charged violations of antitrust and fair trade laws and certain contractual claims were not controversies arising under the ESA); Associated Gen. Con. Okl. Div. v. Laborers Int. U. Loc. 612, 489 F.2d 749 (Em.App.1973) (appeal from decision of district court after remand by TECA was within exclusive jurisdiction of Tenth Circuit Court of Appeals where issue did not involve the ESA); United States v. Cooper, 482 F.2d 1393 (Em.App.1973) (conviction under 18 U.S.C. § 1001 for making certain false representations was not a controversy arising under the ESA even though the matter involved was within the perimeter of activities assigned to and carried on by the Price Commission).
. See Ashland Oil Co. of Cal. v. Union Oil Co. of Cal., 567 F.2d 984 (Em.App.1977), cert. denied, 435 U.S. 994, 98 S.Ct. 1644, 56 L.Ed.2d 83 (1978); United States v. Thriftyman, Inc., 704 F.2d 1240 (Em.App.1983), and United States v. Phoenix Petroleum Co., 721 F.2d 1579 (Em.App.1984) (passing upon the validity of subpoenas issued by DOE in its investigation of violations of EPAA); Mobil Oil Corp. v. Dept. of Energy, 728 F.2d 1477 (Em.App.1983), cert. denied, — U.S.-, 104 S.Ct. 3545, 82 L.Ed.2d 849 (1984); Sohio Petroleum Co. v. Caribou Four Comers, 573 F.2d 1259 (Em.App.1978); Francis Oil and Gas, Inc. v. Exxon Corp., 687 F.2d 484 (Em.App.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); and Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375 (10th Cir.1978), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60 L.Ed.2d 1058 (1979) (construing contracts in the light of the EPAA); Rainey v. Union Oil Co. of California, 732 F.2d 1563, 1564, n. 1 (Em.App.1984) (state law and EPAA claims commingled or interdependent); Citronelle-Mobile, Etc. v. Gulf Oil Corp., 591 F.2d 711 (Em.App.), cert. denied, 444 U.S. 879, 100 S.Ct. 168, 62 L.Ed.2d 109 (1979) (breach of contract claim with counterclaim implicating the EPAA); Mosley v. Nationwide Purchasing, Inc., 485 F.2d 418 (Em.App.1973) (construing the venue statute in ESA case); Energy Reserves Group, Inc. v. Department of Energy, 589 F.2d 1082 (Em.App.1978) *1422(construing the Administrative Procedure Act in connection with a claim under the EPAA); MGPC, Inc. v. Department of Energy, 673 F.2d 1277 (Em.App.1982) (discovery and evidentiary hearing issues implicating an EPAA claim before the district court); and McWhirter Distribtiling Co., Inc. v. Texaco, Inc., 668 F.2d 511 (Em.App.1981) (considering a claim under the Federal Tort Claims Act for alleged tortious violation by DOE of its own regulations instigating an investigation of a supplier, and disposing of the case on the basis of the EPAA).