concurring in part, and dissenting in part.
CONCURRENCE IN PART
First, I wish to concur in the affirmance of the excellent opinion and judgment of the able District Judge on those difficult and complex issues, finding and concluding that Exxon Corporation was liable for overcharges and interest for violation of the applicable statutes and regulations fixing the maximum prices for the crude oil in question. On these issues, which include nearly all the major issues presented in these appeals, the District Judge found the facts and applied the applicable law in an unusually clear, discriminating and exemplary manner. See United States v. Exxon Corporation (D.D.C.1983), 561 F.Supp. 816, for the findings of fact and conclusions of law of the District Court incorporated in the judgment from which these appeals are taken. (Some supplementary undisputed facts in the Record in the District Court are cited in' the dissenting opinion which follows.)
DISSENT IN PART
Scope of Dissent
The portion of the majority opinion in this Court, from which I dissent, is included in the part entitled “X. The Remedy.” The majority opinion in this part concludes that the District Court exercised a legal discretion in ordering the funds representing illegal overcharges in the principal sum of $1,635,604,638.10 and interest to be paid by the Exxon Corporation to the United States Treasury to be held in trust for disbursement to the States for use in one or more of five energy conservation programs listed in the “Warner Amendment,” § 155 of P.L. 97-377, 96 Stat. 1830, 1919 (1982). Whether this disposition might have been within the discretion of the District Court, if the District Court in an efficient judicial manner had satisfied all legally established claims in restitution of victims of the overcharges is not a subject of this dissent. It may be that on a fuller record payments on doctrines of fluid recovery, cy pres or parens patriae or other applicable doctrines should be made to groups representing all the public or other identifiable groups of victims.
This disposition of the overcharges and interest was finally adjudged by the District Court, without any judicial or administrative attempt by notice and hearing, to identify the victims of the illegal overcharges or the amounts of the damages suffered by each victim or groups of victims. In fact, many parties claiming in good faith to be victims of the illegal overcharges were denied notice and an opportunity to be heard on their claims, or to intervene for these purposes.
In my opinion, this summary denial of a hearing on the claims in good faith of the alleged victims, violated established historical equitable principles of restitution and of procedural Due Process guaranteed by the *1288Fifth Amendment to the Constitution of the United States.
The historical equitable and constitutional principles, in my opinion, cannot be lawfully ignored in the discretion of a court, as explained hereinafter.
I
JUDICIAL DUTY AND POWER TO ORDER RESTITUTION
Under the controlling decisions of the Supreme Court of the United States, this Court and the Circuit Courts of Appeals, this dissenting opinion concludes, among other things, that the federal courts have the inherent historic equitable and constitutional duty and power to order restitution to parties damaged by violations of valid-statutes or regulations, or both, fixing prices, allocations and incidental rights and duties (as in the Entitlements Program).1
Therefore the inherent judicial duty and power to order such restitution exist (a) in civil actions, under § 209 of the Economic Stabilization Act, to enforce such valid statutes or regulations, or both, and (b) also in equitable civil actions in which the violations were temporarily protected by injunctions, wrongfully issued. This judicial duty and power is authorized by general law and was expressly confirmed by Congress in the last sentence of § 209 of the Economic Stabilization Act (ESA). 12 U.S.C. § 1904 note; 1971 U.S.Code, Congressional and Administrative News (USCCAN) 2291 reporting the legislative history of the ESA.2 As stated by the Supreme Court of the United States in Porter v. Warner Holding Company, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the judicial duty and power to order such restitution are broader and more flexible when the statutes or regulations in issue, or both, primarily serve the public, rather than a private interest, as in the EPAA, the EPCA and regulations thereunder, which primarily serve the public interest.
Selected controlling decisions of the Supreme Court of the United States defining and enforcing the judicial duty and power to order such restitution are cited and summarized hereinafter.
A.
Selected Controlling Decisions of Supreme Court of the United States on Duty and Power to Order Restitution
In Porter v. Warner Holding Company (Warner Holding), supra, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the duty and power of a federal court under , the Emergency Price Control Act of 1942 (Act), 50 U.S.C. § 925(a), to order restitution of rents collected in excess of legally permissible ceiling rates were defined, and enforced by the Supreme Court. In that case, the District Court had enjoined the defendant landlord from collecting excess rents, but declined to order restitution, holding there was no jurisdiction to do so under the Act. The Eighth Circuit Court of Appeals affirmed the judgment of the District Court.
The Supreme Court reversed the judgment of the District Court finding that the Administrator of the Office of Price Administration had invoked the equitable jurisdiction of the District Court by seeking an injunction to enforce the rent ceiling. *1289The Supreme Court then held that the District Court had the broad inherent equitable duty and power to do what justice required, stating:
“Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. Virginian R. Co. v. System Federation, R.E.D. 300 US 515, 552, 81 L ed 789, 802, 57 SCt 592 [601]. Power is thereby resident in the District Court, in exercising this jurisdiction, ‘to do equity and mould each decree to the necessities of the particular case.’ Hecht Co. v. Bowles, 321 US 321, 329, 88 L ed 754, 760 64 S Ct 587 [591]. It may act so as to adjust and reconcile competing claims and so as to accord full justice to all the real parties in interest; if necessary, persons not originally connected with the litigation may be brought before the court so that their rights in the subject matter may be determined and enforced. In addition, the court may go beyond the matters immediately underlying its equitable jurisdiction and decide whatever other issues and give whatever other relief may be necessary under the circumstances. Only in that way can equity do complete rather than truncated justice. Camp v. Boyd, 229 US 530, 551, 552 57 L ed 1317, 1326, 1327, 33 S Ct 785 [793]. (Emphasis added.)
“Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. (US) 497, 503, 9 L ed 508, 511. See also Hecht Co. v. Bowles, supra (321 US 330, 88 L ed 761, 64 S Ct 587).” Warner Holding, 328 U.S. at 398, 66 S.Ct. at 1089, 90 L.Ed. at 1336, 1337.
In Public Service Commission of Missouri v. Brashear Freight Lines (Brashear Freight), 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941), many common carriers secured in a District Court an invalid injunction against enforcement of a valid regulatory statute of Missouri imposing taxes and license fees on motor carriers operating in interstate commerce. The Supreme Court held that the District Court had the duty and power to assess damages including costs of litigation, taxes and fees, caused by the improperly granted injunction, under which the challenged taxes and license fees had been deposited in escrow, stating:
“Under long settled equity practice, courts of chancery have discretionary power to assess damages sustained by parties who have been injured because of an injunctive restraint ultimately determined to have been improperly granted. Russell v. Farley, 105 U.S. [15 Otto], 433, 44 et seq., 26 L ed 1060, 1064; Pease v. Rathbun-Jones Engineering Co., 243 US 273, 279, 61 L ed 715, 721, 37 S Ct 283 [286], Ann Cas 1918C 1147.” Brashear Freight, 312 U.S. at 629, 61 S.Ct. at 788, 85 L.Ed. at 1088.
In Brashear Freight, supra, the Eighth' Circuit Court of Appeals had failed to recognize and enforce the duty and power of the District Court to make restitution, despite the deposit in escrow or trust of the challenged taxes and license fees under the protection of the improperly issued injunction against enforcement of the regulatory statute of Missouri.
In 1960, the Supreme Court of the United States in Mitchell v. De Mario Jewelry (De Mario Jewelry), 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), expressly affirmed Warner Holding, supra, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946). In De Mario Jewelry, supra, the Supreme Court quoted the language of Warner Holding, supra, stating that a court in equity may *1290give whatever relief is necessary, and then stated:
“The applicability of this principle is not to be denied, either because the Court there [Porter v. Warner Holding Co.] considered a wartime statute, or because, having set forth the governing inquiry, it went on to find in the language of the statute affirmative confirmation of the power to order reimbursement. Id. 328 U.S. at 399 [66 S.Ct. at 1089]. When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.” De Mario Jewelry, 361 U.S. at 291, 292, 80 S.Ct. at 335, 4 L.Ed.2d at 326 (emphasis added).
In United States v. Morgan (Morgan II), 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939), the Supreme Court of the United States ruled on the disposition of a fund paid into the court pending the outcome of a suit to set aside an order by the Secretary of Agriculture under the Packers and Stockyards Act of 1921, 7 USCA §§ 181-229. The challenged order reduced scheduled rates at the Kansas City stockyards. The fund was the difference between the old, high rate and the new, low rate ordered by the Secretary of Agriculture. [In 1938, in an earlier case, the new low rate had been set aside by the Supreme Court. Morgan v. United States (Morgan I), 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129 (1938).]
In 1939 in Morgan II, supra, the Supreme Court stated that:
“Decision turns on the meaning and application of the provisions of the Packers and Stockyards Act, construed in the light of its-dominant purpose to secure to patrons of the stockyards prescribed stockyard services at just and reasonable rates, and upon the authority and duty of the district court to effectuate that purpose in making disposition of the fund.” United States v. Morgan, 307 U.S. at 188, 189, 59 S.Ct. at 798, 799, 83 L.Ed. at 1216 (emphasis added).
In 1939 in Morgan II, supra, the Supreme Court discussed further the authority and duty of the District Court, stating:
“The district court, in staying the Secretary’s order and at the same time arresting the excess payments to appellees under the scheduled rates, assumed the duty of making the proper disposition of the fund upon the termination of the litigation. The duty was the more imperative here because the court’s injunction order not only deprived the public of the benefit of the lower rates but obstructed any effective reparation order by the Secretary. Its action presupposed that the ownership of the excess payments was in doubt and could be finally determined only by an adjudication on the merits of the reasonableness of the filed rates. In taking the payments into custody it acted as a court of equity, charged both with the responsibility of protecting the fund and of disposing of it according to law, and free in the discharge of that duty to use broad discretion in the exercise of its powers in such manner as to avoid an unjust or unlawful result. It entered into no contract or understanding with the litigants; it entered into no undertaking as to the manner of disposing of the fund; its duty with respect to it is that prescribed by the applicable principles of law and equity for the protection of the litigants and the public, whose interests the injunction and the final disposition of the fund affect. Inland Steel Co. v. United States, 306 U.S. 153, ante, [83 L.Ed.] 557, 59 S.Ct. 415, supra. (Emphasis added.)
“It is familiar doctrine that the extent to which a court of equity may grant or withhold its aid, and the manner of moulding its remedies, may be affected by the public interest involved.” United States v. Morgan, 307 U.S. at 193, 194, 59 S.Ct. at 801, 83 L.Ed. at 1218, 1219.
Later, in Federal Power Commission v. Interstate Natural Gas Company (Interstate Natural Gas), 336 U.S. 577, 69 S.Ct. 775, 93 L.Ed. 895 (1949), the Supreme Court of the United States ordered that the *1291Court make restitution to the consumers rather than the first purchasers of natural gas of a fund accumulated in escrow pending review of a Federal Power Commission (FPC) order reducing ratés for natural gas. The pipeline companies that were the direct purchasers claimed the fund, but petitioner and several state and municipal agencies claimed that the fund should be paid to the ultimate consumers. The Court of Appeals ordered payment to the pipeline companies on the authority of Central States Electric Company v. Muscatine (Central States), 324 U.S. 138, 65 S.Ct. 565, 89 L.Ed. 801 (1945). The Supreme Court distinguished Central States, supra, on the fact that in the Interstate Natural Gas case, under review, the pipeline companies were subject to the jurisdiction of the FPC and federal law; and found that the aim of the Natural Gas Act was “to protect ultimate consumers of natural gas from excessive charges” because “[tjhey were the intended beneficiaries of rate reductions ordered by the federal commission____” Interstate Natural Gas, supra, 336 U.S. at 581, 69 S.Ct. at 778, 93 L.Ed. at 901. In that case, the Supreme Court reasoned that reduced rates would have been passed through by the wholesaler “unless we are to assume that the passage of the Natural Gas Act was an exercise in futility.” Interstate Natural Gas, 336 U.S. at 581, 69 S.Ct. at 778, 93 L.Ed. 895 at 901. In that case the Supreme Court further held that the lower court must look beyond the first purchaser and seek the proper recipients of the fund stating:
“But apart from those exceptions [unreasonably low rates by pipeline companies or pass through of rate reductions], it is the duty of the court to look beyond those companies for the rightful claimants of the fund. It is the responsibility of the court which distributes the fund accumulated under its stay order ‘to correct that which has been wrongfully done by virtue of its process.’ United States v. Morgan, 307 US 183, 197, 83 L ed 1211, 1220, 59 S Ct 795 [802], That responsibility plainly cannot be discharged by payment of the fund to those who show no loss by reason of the court’s action. ' (Emphasis added.)
* * • * * * *
“When a federal court of equity grants relief by way of injunction it has a responsibility to protect all the interests whom its injunction may affect. Inland Steel Co. v. United States, 306 US 153, 83 L ed 557, 59 S Ct 415. It assumes the duty to make disposition of the fund in accord with equitable principles. United States v. Morgan, supra, (307 US at 191, 83 L ed 1217, 59 S Ct 795 [at 799]). If in ■ a particular case the court reaches the question of reasonableness of rates, it does so only for purposes of distributing the fund for whose creation it alone was responsible. It does not fix or prescribe rates for the past or the future. The reasonableness of rates charged by the companies who claim the fund is wholly ancillary to the problem of determining what claimants are equitably entitled to share in it.
******
“In conclusion, the task of the federal court in distributing the fund accumulated by virtue of its stay order is to úndo the wrong which its process caused. The basic problem, therefore, is not to fix rates but to determine who suffered a loss as a result of the court’s action in granting the stay. What in fact would have happened as a consequence of federal or state law if the stay had not been issued, no one can know for a certainty. But federal court must make its prognostication, whether an excursion into federal or state law questions is entailed. Distribution of the fund should not involve prolonged litigation. It is an administrative matter involving the exercise of an informed judgment by the federal court and should have the flexibility and dispatch which characterize the administrative process.” Interstate Natural Gas, 336 U.S. at 582, 584, 69 S.Ct. at 778, 779, 93 L.Ed. at 901-903.
*1292B.
Controlling Cases from this Court on the Judicial Duty and Power to Order Restitution
This Court, the Temporary Emergency Court of Appeals of the United States (TECA), has consistently followed the controlling decisions of the Supreme Court of the United States in ordering restitution in cases in which illegal charges were collected in violation of a statute or regulation, or both. Citronelle-Mobile Gathering, Inc. v. Edwards (TECA 1982), 669 F.2d 717, cert. denied, 459 U.S. 877, 103 S.Ct. 172, 74 L.Ed.2d 141 (1982); Sauder v. Department of Energy (TECA 1981), 648 F.2d 1341; United States of America v. Pro Football, Inc. (TECA 1975), 514 F.2d 1396; DeRieux v. Five Smiths, Inc. (TECA 1974), 499 F.2d 1321, cert. denied, 419 U.S. 896, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); University of Southern California v. Cost of Living Council (TECA 1972), 472 F.2d 1065, cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Lieb (TECA 1972), 462 F.2d 1161.3
Citronelle-Mobile Gathering, Inc. v. Edwards (Citronelle),4 supra (TECA 1982), 669 F.2d 717, cert. denied, 459 U.S. 877, 103 S.Ct. 172, 74 L.Ed.2d 141 (1982), was our last definitive opinion on the duty and power to order restitution of excess prices collected in violation of statutes and regulations governing the price of petroleum products. In that case, the Secretary of Energy on behalf of the United States asserted an enforcement counterclaim under § 209 of the ESA on behalf of domestic customers alleged to have been overcharged. The District Court granted a partial summary judgment for the United States (Secretary) on the counterclaim under § 209 holding that the appellants (Citronelle-Mobile Gathering, Inc., and others) collected excess prices in violation of the ESA and EPAA and regulations thereunder. This Court then ordered and authorized restitution of the illegal excess charges by deposit in a trust account in accordance with the then existing General Accounting Office Procedures, or under a plan for a “Deposit Fund Account” or other appropriate procedures to be approved by the District Court stating in part:
“RESTITUTION IS APPROPRIATE RELIEF
“Having agreed with the district court’s determination that appellants have violated the provisions of the ESA, EPAA and the regulations promulgated thereunder which establish the ceiling price for the four sales of domestic crude oil, and the maximum lawful selling price for the resale of domestic crude oil, 6 C.F.R. part 150 and 10 C.F.R. part 212, this Court reviews the relief fashioned by the district court judge. The counterclaim seeks judgment requiring plaintiffs to pay into an escrow account, ‘for subsequent distribution to NEPCO customers’, the excess charges. Allegations place the sum between $6,000,000.00 and $9,000,000.00, exclusive of interest and civil penalties. No accurate calculations are before the Court at this time.
* ' * * * sk *
“An immediate confrontation with the method/process of enforcement emerges. Neither appellants, nor various amici attack restitution as being outside the scope of relief authorized, rather, they insist the decision ordering restitution to the United States Treasury is beyond the district court’s authority. The Court finds on this issue no justification for allowing plaintiffs to retain their illegal gains.
“The district court, sitting as a Court of Equity, unless otherwise provided by statutes here in contemplation, had ‘all the inherent equitable powers of the District Court ... available for the proper and com*1293píete exercise of that jurisdiction’; Porter, supra 328 U.S. at 398, 66 S.Ct. at 1089, and has power, ‘to do equity and mould each decree to the necessities of the particular case’; further, ‘It may act so as to adjust and reconcile competing claims ... so as to accord full justice to all the real parties in interest____’ The authority inherent in the equity powers guarantees complete rather than truncated justice. Camp v. Boyd, 229 U.S. 530, 551, 33 S.Ct. 785, 793, 57 L.Ed. 1317 (1913). The power of a district court to require restitution, as was pronounced in United States v. Lieb, 333 F.Supp. 424 (W.D.Tex.1971), was specifically endorsed and ratified by Public Law 92-2105 (Footnote 5, See U.S.Code and Congressional News, 92d Congress, 1st Session (1971) pp. 2283, 2291.) (Sec. 209), but nothing has been'pronounced as to payment to the United States Treasury. Federal district courts unquestionably possess broad discretion in fashioning equitable remedies, Franks v. Bowman Transportation, Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1975) but, as contemplated in the exercise of these powers to remedy civil wrongs and restore civil rights, the authority is vested to make the victims whole, ‘so far as possible, and restored to a position where they would have been had it not been for’ the unlawful violation, such as was practiced here. It follows that payment to the United States Treasury is not restitution, in the true sense of the word, or in the objectives of the statutes here involved. (Emphasis added).
“We face the brilliant rationale of the trial court in its envision of millions of customers along the east coast having been overcharged. Clear, however, is the fact that the sale of the over-priced oil was made to determinable utilities and other institutions along the Atlantic seaboard. Faced with a statute that specifically authorizes restitution, but makes no provision for direct payment to the treasury, we turn to University of Southern California, supra, which ordered refunds of excess charges for football tickets.
‘While this Court recognizes the considerable burden that such a refund demand places ... we recognize also the right of the agencies to require it.’
Id. at 1070.
We believe such a process to be a reasonable application of the power of the district court. This is obviously in the contemplation of defendant as evidenced by its request for relief. Actions by the United States under ESA § 209 are taken to enforce public, not private, rights. Thus, compensation is ‘a by-product of the agency’s effort to re-establish compliance with its regulatory scheme.’ Bulzan, supra, at 282. The central purpose of restitution is to determine the amount by which the wrongdoer has been unjustly enriched, and then to make him disgorge that amount. No proof is required that the plaintiff was damaged, much less the amount of any damage:
‘Restitution is generally awarded only in order to deprive the defendant of enrichment obtained at the plaintiff’s expense '... the general requirement does not mean that the gain to the defendant need be equated to the loss of the plaintiff, nor indeed that there need be any loss to the plaintiff except in the sense that a legally protected interest has been invaded.’
Restatement of Restitution, Sec. 1, Comment e (1937), cited in Sauder v. Doe, 648 F.2d 1341 (TECA 1981). The district court properly held that because NEPCO and PETCO aided and abetted the Chamberlain firms in their violation of the price regulations, for their material benefit, they are barred by ‘unclean hands’ from seeking or recovering any of the illegal profits.
“Apparently, however, restitution payments may be made to the Treasury under special order of the court. The Treasury holds the payments in a ‘Deposit Fund Account’ to be paid out at the direction of DOE. See General Accounting Office Procedures Manual, Title 7, Sec. 4.10(6). Cf. Hodgson v. Wheaton Glass Co., 446 F.2d 527, 535 (3d Cir.1971).6 (Footnote 6, See also 28 U.S.C. §§ 2041, 2042.) Receipts contained in those accounts are subject to a *1294‘constructive trust,’ Emery v. United States, 186 F.2d 900, 902 (9th Cir.1951); are treated as liabilities of the United States, see e.g., Treasury Combined Statement of Receipts, Expenditures, and Balances of the United States Government, Fiscal Year 1978 at 3, 12; and for their disbursement, an appropriation is not required. This affords an opportunity for DOE to pursue those proposals suggested by its request that the Court
‘Enter a judgment requiring Gathering, Services and Chamberlain to pay into an escrow account for subsequent distribution to NEPCO customers, a sum of ... ’
As determined by the district court the Government has demonstrated injury to a class of persons. Whether the defendant will ask to amend under Rule 15, Federal Rules of Civil Procedure, institute inter-pleader under Rule 22 and related statutes, or proceed otherwise is not revealed in the record before this Court. Suffice it to note that the Government has a duty to try to ascertain those overcharged, and refund them, with interest, from the restitution funds.
“The Order of the district court is modified and the case remanded to that forum for an Order directing the application to the General Accounting Office Procedures, and/or the furnishing of a plan for the ‘Deposit Fund Account’, and/or other appropriate procedures, to be approved by the district court.
“Meanwhile, within such time as the district court may direct, the parties will enter a stipulation, failing which, file appropriate motions in that forum.” Citronelle, 669 F.2d at 721-723.
The only different circumstances in this case that did not exist in the Citronelle case, supra, are the “decontrol” of petroleum prices and allocations in 1981 and the many changes in the statutes and regulations, and in the structure, operations, personnel, remedial policies and administrative decisions which governed the Department of Energy and its predecessors prior to “decontrol” (or “deregulation”) of the petroleum industry on January 28, 1981. The effect on restitution by judicial orders of these changed circumstances since “decontrol” are discussed hereinafter in reviewing the currently available remedies and procedures to accomplish judicial restitution.
The following additional decisions of this Court on the issues of restitution are substantially in agreement with the principles announced in the Citronelle case, supra. They are in inverse chronological order: United States v. Pro Football, Inc., (TECA 1975) 514 F.2d 1396, an action under § 209 ordering restitution of excess charges for football tickets; DeRieux v. Five Smiths, Inc., (TECA 1974) 499 F.2d 1321, cert. denied, 419 U.S. 896, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), ordering restitution of excess charges for football tickets; University of Southern California v. Cost of Living Council, (TECA 1972) 472 F.2d 1065, cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973), ordering restitution of excess charges for football tickets; and United States v. Lieb, (TECA 1972) 462 F.2d 1161, ordering restitution of rents in excess of rent guidelines.
C.
TECA Opinions Relied on in the Majority Opinion in Part “X. The Remedy.”
In the majority opinion in Part “X. The Remedy,” the majority concludes that it was within the discretion of the District Court to enter summary judgment (a) denying intervention; (b) refusing to grant a hearing in restitution proceedings to those claiming to be injured by the illegal overcharges; (c) and assuming without a hearing that all illegal overcharges had been spread “through the distribution chain, to the ultimate consumers” and (d) that the overcharges should be paid to the Treasury in escrow to dispense the funds to the States, by analogy to P.L. 97-377, § 155 (the “Warner Amendment”).
It is concluded in this dissent that the majority erred in concluding that the District Court in its Memorandum Opinion of March 25, 1983, 561 F.Supp. 816 had dis*1295cretion, without notice and hearing, to enter a summary judgment in conflict with (a) controlling decisions of the Supreme Court of the United States on Due Process; (b) historic equitable principles; (c) the controlling opinions of this Court; and (d) the last sentence of § 209 of the Economic Stabilization Act, supra, discussed hereinabove. The discussion, cases cited, statute cited, and conclusions expressed in Parts II and III of this dissenting opinion on Due Process, equitable principles of restitution and intervention are incorporated at this point by reference. They will not be repeated in this Part I, except to the extent necessary in distinguishing the cases relied on by the majority in Part “X. The Remedy.”
The following cases are relied on by the majority in Part “X. The Remedy”: Cities Service Co. v. Department of Energy, (TECA 1983) 715 F.2d 572; Dyke v. Gulf Oil Corporation, (TECA 1979) 601 F.2d 557; Bulzan v. Atlantic Richfield Co., (TECA 1980) 620 F.2d 278; Citronelle-Mobile Gathering, Inc. v. Edwards, (TECA 1982) 669 F.2d 717; Cities Service Co. v. Federal Energy Administration, (TECA 1975) 529 F.2d 1016.
In a supplemental letter5, the author of the majority opinion cited these additional cases in support of the majority opinion on “The Remedy”: Payne 22, Inc. v. United States of America, (TECA 1985) 762 F.2d 91; Midwest Petroleum Co. v. DOE, (TECA 1985) 760 F.2d 287.
None of these TECA cases, it is submitted, support the conclusions in the majority opinion or could serve as a precedent to hold that the District Court had discretion to render a summary judgment contrary to (a) Due Process guaranteed by the Constitution; (b) controlling decisions of the Supreme Court and of this Court on historic equitable principles; and (c) the last sentence of § 209 affirming historic controlling equitable principles on restitution.
The discussion of all the eases relied on by the majority follows.
Cities Service Company v. Department of Enerqy (Cities Service), (TECA 1983) 715 F.2d 572
The Cities Service case, supra, rules only on the right of intervention and the facts in the Cities Service case, supra, were distinguished from this case in that:
(a) the counterclaim in the Cities Service case under § 209 was settled by an Agreed Final Judgment (715 F.2d at 573 and 574), that provided for payment of an agreed sum to the U.S. Treasury;
(b) the District Court found that Cities Service Company “had no ‘interest’ within • the meaning of Fed.R.Civ.P. 24(a)(2),” in contrast to the finding in this case that the intervenors had an interest as defined by Rule 24(a)(2) (R. 31607); and
(c) the rule of the controlling TECA case of Citronelle-Mobile Gathering, Inc. v. Erwards, supra, 669 F.2d 717, cert. denied 459 U.S. 877, 103 S.Ct. 172, 74 L.Ed.2d 141 (1982), is recognized but distinguished because of the different facts stated above!
The Cities Service case, supra, is relied on by the majority to support the questionable conclusion that a party, entitled to a hearing on principles of Due Process, restitution and equitable principles of restitution in an action under § 209, has only a private action under § 210. But there is no case holding that any party that has rights under § 210 is not entitled to a hearing in restitution under § 209, under constitutional and equitable principles, principles of procedural Due Process, and the last-sentence of § 209 when the illegal overcharges are in the control of the court.
No reconciliation of the ruling of the majority, remitting the victims of the illegal overcharges to separate civil suits *1296under § 2106 is made by the majority with the controlling cases of the Supreme Court of the United States, in restitution, represented by Public Service Commission of Missouri v. Brashear Freight Lines, supra, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083, a restitution proceeding in which such a ruling such as that of the majority was reversed by the Supreme Court of the United States, which said:
“There can be no question of that judge’s right to deal with issues such as those here presented. Under long settled equity practice, courts of chancery have discretionary power to assess damages sustained by parties who have been injured because of an injunctive restraint ultimately determined to have been improperly granted. Russell v. Farley, 105 US [15 Otto] 433, 444 et seq., 26 L ed 1060, 1064; Pease v. Rathbun-Jones Engineering Co., 243 US 273, 279, 61 L ed 715, 721, 37 S Ct 283 [286], Ann Cas 1918C 1147. This power is, as stated, discretionary; there are of course cases where the Chancellor might properly conclude that parties should be remitted to an action at law. But this is not one of those cases. If petitioners had to bring actions at law, each of the seventy-six respondents might have to be made a defendant in a separate action. There is a controversy between the parties as to whether or not all of these respondents could be sued or served in the State of Missouri; to be compelled to sue some of them elsewhere would work a hardship on the state. In addition to this, part of the damages for which petitioners seek recovery is made up of various items of cost and expense incurred in the litigation; if petitioners succeed on the merits, there might conceivably be serious problems raised by the seventy-six respondents as to the portion of damages fairly attributable to each — a problem peculiarly appropriate to equity, and pre-eminently adapted to settlement by a single court. ” 312 U.S. at 629-630, 61 S.Ct. at 788-789, 85 L.Ed. at 1088 (emphasis added).
As pointed out above in Part II A. hereof, the rule of the Supreme Court on equitable historic doctrine of restitution in maximum price enforcement actions (all actions under § 209) is the same in injunction actions in which the injunction is later set aside, and overcharges are in an escrow fund. See Porter v. Warner Holding Company, supra, 328 U.S. 325 at 398, 66 S.Ct. 1086 at 1089, 90 L.Ed. 1332 at 1337, for analysis and quotation stating controlling rule.
Dyke v. Gulf Oil Corporation (Dyke), (TECA 1979) 601 F.2d 557
The actions involved in the Dyke case, supra, were private actions under § 210, wholly unlike the Exxon Corporation action under review and obviously distinguishable on this fact alone.
Further in the Dyke case, supra, this Court held that DOE may not be joined as a party in' § 210 actions in the absence of compelling circumstances not present in that case. The Dyke opinion reiterates generally the “separation of public and private remedies” language, but does not discuss the issues of restitution under § 209.
There is an obvious distinction to be drawn between “commingling of private and agency enforcement devices” proscribed in the Dyke opinion, 601 F.2d 557 at 567, and the hearing of victims’ claims to restitution under historic equitable and constitutional principles in a § 209 action, in which restitution may be made properly and accurately, ■ as authorized in the last sentence of § 209.
Bulzan v. Atlantic Richfield Company (Bulzan), (TECA 1980) 620 F.2d 278 This action by the plaintiff Bulzan was again a private action under § 210, and *1297wholly distinguished from the action under review, in which relief was secured on a claim under § 209.
This Court in its opinion in the Bulzan case, supra, held that a remedial order by the agency does not bar a private action under § 210, because of the “dual enforcement scheme that Congress incorporated into its regulatory plan.” Bulzan, supra, 620 F.2d at 284.
The Bulzan ease arose out of an agency remedial order which required the violator to make compensation to the injured private party. It is very clear from the Bul-. zan opinion that restitution under § 209 is to be made in the action under § 209 to injured parties, for the opinion states that an award under § 210 may be adjusted to take into account that type of earlier award under § 209. Bulzan, supra, 620 F.2d at 283-284.
Citronelle-Mobile Gathering, Inc. v. Edwards (Citronelle), (TECA 1982) 669 F.2d 717
The holding of this case is directly contrary to the conclusion reached by the majority. The Citronelle case is discussed as a controlling case of this Court earlier in this dissenting opinion in Part I B. on judicial equitable principles of restitution. This earlier discussion is incorporated here by reference, and the following additional comment is made here.
On facts similar to those in these appeals, the TECA Panel in Citronelle, supra, rejected the argument that it was impossible to make restitution to the injured parties because they were too numerous. The Court in the Citronelle case, supra, stated:
“We face the brilliant rationale of the trial court in its envision of millions of • customers along the east coast having been overcharged.” Citronelle, supra, 669 F.2d at 722.
But this Court, in the Citronelle case, did not give up and stop at the possibility that millions of persons were overcharged; on the contrary the Court went on to state:
“Clear, however, is the fact that the sale of the overpriced oil was made to determinable utilities and other institutions along the Atlantic seaboard. Faced with a statute that specifically authorizes restitution, but makes no provision for direct, payment to the treasury, we turn to University of California, supra, (472 F.2d 1065) which ordered refunds of excess charges for football tickets.
While this Court recognizes the considerable burden that such a refund demand places ... we recognize also the right of the agencies to require it.
Id. at 1070.
We believe such a process to be a reasonable application of the power of the district court.” Citronelle, supra, 669 F.2d at 722.
In the above quotations this Court held that the District Court in restitution proceedings must look for any identifiable victims of the overcharges, and that it makes no difference if the wrongdoer is caused “considerable burden” in making refunds.
The opinion in the Citronelle case, supra, goes on to state in 669 F.2d at 723 that “the Government has a duty to try to ascertain those overcharged____” This statement is the basis of the holding that the District Court must implement that duty by a judgment in restitution.
Cities Service Company v. Federal Energy Administration (Cities Service), (TECA 1975) 529 F.2d 1016
The Cities Service case, supra, did not involve an action under § 209 or issues of restitution, due process or intervention, as in this case. The Cities Service case, supra, was an action to enjoin enforcement of the old oil Entitlements Program.
The opinion in the Cities Service case, supra, states that the basic purpose of the Entitlements Program was to spread the burden of uncontrolled oil prices among “all sectors of the petroleum industry, all regions of the country, and among all consumers of petroleum products,” Cities Service, 529 F.2d at 1021. The Cities Service opinion states that all sectors of the petroleum industry were to bear the burden of increased oil prices and nowhere states that *1298consumers were to bear the entire burden of price increases or that a district court could summarily find that unidentified “ultimate consumers” were the only victims of illegal overcharges. Moreover, the language quoted above in the Cities Service case, supra, is addressed to the purpose of the Entitlements Program, and there is no evidence that reality inevitably conformed to the intentions of the agency in promulgating the Entitlements Program.
Further, the facts discussed in the recent entitlements exception regulations 10 C.F.R. § 211.69 cited in Addendum No. 2 hereof, including the Entitlements Adjustment Mechanisms, are contrary to the inferences drawn in the majority opinion from the Cities Service case, supra. For example, under 10 C.F.R. § 211.69, DOE authorizes and may pay out of illegal overcharge funds restitution of benefits owing but unpaid as exception relief from the Entitlements Program.
Midwest Petroleum Company v. U.S. Department of Energy (Midwest) (TECA 1985) 760 F.2d 287
In the Midwest case, supra, there was no finding that there were illegal overcharges by Fina, the seller, in any amount. As clearly recited in the opinion of this Court, “[wjithout any finding that Fina was in fact liable for any overcharges, DOE and Fina agreed to the Consent Order at issue in this case.” Midwest, supra, 760 F.2d at 288. The consent order provided for payment of damages from illegal overcharges to alleged victims. Thereafter the proposed consent order was published for comment in the Federal Register. Notice of adoption of the Order by DOE was later published in the Federal Register. Each of the appellants including Midwest accepted the settlement, and signed a release giving up the right to sue separately under § 210 or the federal petroleum price regulations “based on any ‘act, matter, case, statement, conduct, practice or thing whatever____’ ” Midwest, supra, 760 F.2d at 289. The action by Midwest was to rescind the releases for illegality and fraud. The holding was that the releases' were valid and that there was no proof “that the $14 million settlement represented ... overcharges.” Midwest, supra, 760 F.2d at 292. The Midwest case is not in point in this case where there was a finding of overcharges, no release, and no grounds shown to rescind a release given by any victim of the overcharges.
Payne 22, Inc. v. United States of America (Payne 22), (TECA 1985) 762 F.2d 91
The facts in this case were essentially like those in the preceding Midwest case, supra. The Payne 22 case, supra, involved (a) a Consent Order signed by the seller Sun Oil Company and DOE; (b) a finding by DOE of no evidence of overcharges; (c) a payment of refunds to certain purchasers of crude oil; '(d) publication of the Consent Order in the Federal Register for comment; (e) a failure to comment by Payne 22; (f) publication of adoption of the Consent Order by DOE; and (g) a class action fifteen months later by Payne 22. This case is obviously not in point. Further the Court in the Payne 22 case clearly and expressly distinguished that case from Citronelle-Mobile Gathering, Inc. v. Edwards, supra, in the following words:
“Payne cites Citronelle-Mobile Gathering, Inc. v. Edwards, 669 F.2d 717 (Temp.Emer.Ct.App.) cert. denied, 459 U.S. 877 [103 S.Ct. 172, 74 L.Ed.2d 141] (1982) to support its contentions. There, however, the district court concluded that Citronelle had violated the Regulations and determined who had been overcharged. Here, on the contrary, in the Consent Order the DOE alleges no violations by Sun and Sun denies any violations of the Regulations.” Payne 22, supra, 762 F.2d at 94.
This quotation supports the differing conclusions of this dissenting opinion rather than those of the majority.
D.
Selected Leading Cases from Circuit Courts of Appeals on Duty and Power to Order Restitution
The following leading cases of the Circuit Courts of Appeals of the United States define the duty and power of a District Court, improperly issuing an injunction, to *1299order restitution of damages caused thereby, to the parties suffering the damages: Middlewest Motor Freight Bureau v. United States (Middlewest), (C.A. 8 1970) 433 F.2d 212, cert. denied, 402 U.S. 999, 91 S.Ct. 2169, 29 L.Ed.2d 165 (1971); Coyne-Delaney Co., Inc. v. Illinois Capital Development Board, (C.A. 7 1983) 717 F.2d 385 at 390-392; State of Tennessee ex rel. Leech v. Dole, (C.A. 6 1984) 749 F.2d 331 at 337; U.S. v. Coca-Cola Bottling Company of Los Angeles, (C.A. 9 1978) 575 F.2d 222 at 228, cert. denied, 439 U.S. 959, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978); Commodity Futures Trading Commission v. Hunt, (C.A. 7 1979) 591 F.2d 1211, cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979); Securities and Exchange Commission v. Texas Gulf Sulphur Company, (C.A. 2 1971) 446 F.2d 1301 at 1307, cert. denied, 404 U.S. 1005, 92 S.Ct. 561, 30 L.Ed.2d 558 (1971); Moss v. Civil Aeronautics Board, (C.A.D.C.1975) 521 F.2d 298 at 306, cert. denied, 424 U.S. 966, 96 S.Ct. 1460, 47 L.Ed.2d 732 (1976); Interstate Commerce Commission v. B & T Transportation Co., (C.A. 1 1980) 613 F.2d 1182.
These cases confirm the uniform application of the equitable duty and power to order restitution in injunctive actions against enforcement as well as in enforcement actions. In all of the injunction cases, the inherent duty and power of the District Court to make restitution, to devise procedures, and to make equitable awards for the purpose of restitution, were recognized by the Circuit Courts of Appeals.
In the Middlewest case, supra, for example, the Court of Appeals stated the generally recognized principles of restitution as follows:
“IV. RESTITUTION AS A REMEDY FOR LOSSES SUFFERED BY VIRTUE OF AN INJUNCTION
“The issuance of an injunction will in many cases cause financial losses to interested parties as well as prevent irreparable injury to the procurers. More importantly in cases such as this, where the restraint is directed against an order of an administrative agency charged with regulating rates to be charged to the public at large, the injunction may cause substantial losses to the general public which can never be adequately compensated. In such cases, it is the duty of the court issuing the injunction to take necessary measures to protect the interests of parties before it, as well as the public interest. (This was done in this case by the issuing judge prudently requiring a substantial bond before issuing the temporary restraining order. The temporary restraining order is customarily issued, and usually ex parte, ■ to maintain the status quo pending a detailed review on the merits.)
“For some time, it was thought to be the law in the federal courts that the only remedies available to parties injured by the issuance of an injunction were an action for..damages on the injunction bond, if one had been required, in which case the amount recoverable was limited to the amount of the bond, or in the absence of a bond, an action for malicious prosecution where applicable. Russell v. Farley, 105 U.S. [15 Otto] 433, 26 L.Ed. 1060 (1881). The substantial limitations inherent in these remedies are readily apparent.
“But in 1919, the Supreme Court significantly expanded the protection to be accorded injured parties by allowing recovery in the nature of restitution in cases where that remedy might be appropriate. Arkadelphia Milling Company v. St Louis S.W. Ry. Co., 249 U.S. 134, 39 S.Ct. 237, 63 L.Ed. 517 (1919).” Mid-dlewest, 433 F.2d 212 at 225.
The additional eases from the Circuit Courts of Appeals of the United States, cited above, aré in agreement with the holding in the Middlewest case, supra, quoted above.
E.
Selected Controlling General Authorities on Duty and Power to Order Restitution in Equitable Injunctive Actions and Enforcement Actions
The general legal authorities on the subject of restitution are in agreement with the controlling judicial authorities of the *1300Supreme Court of the United States, of this Court and of the Circuit Courts of Appeals reviewed above. This is demonstrated by the following generally recognized authorities: Restatement of the Law of Restitution, Topic 1, Underlying Principles and § 74 applying to judgments reversed or set aside, Restatement of the Law of Restitution 2d (Tentative Draft No. 1, April 1983), § 1 on Underlying Principles of Restitution, § 1(e) Fault and wrongful conduct at pages 13 and 14, § l(i) Source of benefit at pages 22 and 23; II Palmer, The Law of Restitution (1978) § 9.19 at pages 290 and 291 on judgments subsequently reversed or set aside; Moore’s Federal Practice, Second Edition, 1f 38.11[6] note 8 and 11 65.10[1].
II
CONTROLLING DECISIONS ON NATURE OF REQUIRED HEARINGS FOR RESTITUTION
A.
Selected Controlling Decisions of the Supreme Court of the United Statés on the Nature of the Right to Restitution of Parties Damaged by Violations of Valid Statutes or Regulations or Both
It is a conclusion of this dissent that with the duty and power of district courts to order restitution in enforcement and injunction actions, there exists a correlative right in parties damaged to restitution in judicial actions whether enforcement actions (including those authorized by § 209 of the ESA) or private injunction actions against enforcement, in which the injunction is improperly issued. To further define the remedies available for these rights to restitution, it is necessary and desirable to determine the nature of these rights to restitution in the federal constitutional sense and in the federal equitable sense.
The right to recover monetary and other damages caused by a violation of law, including a legal administrative regulation, is a property right protected by the Due Process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States (and perhaps other clauses).
A recent controlling decision of the Supreme Court of the United States that the nature of these rights to restitution of monetary and other damages is a property right under the Due Process clauses is Logan v. Zimmerman Brush Company (Logan), 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), in which the Supreme Court stated that “a cause of action is a species of property” citing Mullane v. Central Hanover Bank and Trust Company (Mullane), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Supreme Court in Logan, supra, went on to state:
“The Court traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances.” 455 U.S. at 429, 102 S.Ct. at 1159, 71 L.Ed.2d at 273.
Civil litigants who seek judicial restitution by recourse to the courts are seeking to protect a property right. Other decisions supporting this basic classification of a cause of action or claim for damages as a property right are: Mullane, supra, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Cleveland Board of Education v. Loudermill (Loudermill), 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
The recognized texts on constitutional law in accord are: Nowak, Rotunda and Young, Constitutional Law (Second Edition) Chapter 15, Section II D, 546-553; Antieau, Modern Constitutional Law, § 7:11 to § 7:16, 540-548 in terms of “Civil Justice”; Tribe, American Constitutional Law, § 10-8 to § 10-11, 506-532, tracing the historical development of procedural due process in the context of protected interests.
B.
Selected Controlling Decisions on the Nature and Scope of Right to Due Process of Those Damaged by Violations of Valid Statues or Regulations or Both
Having recognized that the parties damaged by violations of statutes or regula*1301tions, or both, have the right to Due Process under the Fifth Amendment and under historical jurisprudence, this dissenting opinion must define the procedural due process to which they are entitled. Each party that may have a federal claim for restitution is entitled under the Due Process clause of the Fifth Amendment to notice and an opportunity for a judicial (or quasi-judicial administrative) hearing and decision on the claim for restitution. The selected controlling decisions of the Supreme Court of the United States defining the basic procedural due process rights required in federal judicial actions are as follows:7 Logan, supra, 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Mullane, supra, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Loudermill, supra, 470 U.S. -, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).
In Logan, supra, the Supreme Court stated:
“Justice Jackson, writing for the Court in Mullane v. Central Hanover Bank & Trust Co., 339 US 306, 94 L Ed 865, 70 S Ct 652 (1950), observed: ‘Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the ease.’ Id., at 313, 94 L Ed 865, 70 S Ct 652 [at 656]. At the outset, then, we are faced with what has become a familiar two-part inquiry: we must determine whether Logan was deprived of a protected interest, and, if so, what process was his due.
“The first question, we believe, was affirmatively settled by the Mullane case itself, where the Court held that a cause of action is a species of property protected by the Fourteenth Amendment’s Due Process Clause.” Logan, 455 U.S. at 428, 102 S.Ct. at 1153, 1154, 71 L.Ed.2d at 273 (footnote omitted).
C.
Selected Controlling Decisions on the Type of Hearing on Claims for Restitution Required by Procedural Due Process in Judicial Actions in Which Injunctions are Improperly Issued Before Final Judgment
In the controlling cases cited in Part I A., Selected Controlling Decisions of Supreme Court of the United States on Duty and Power to Order Restitution, it is uniformly held that the District Court has the duty and flexible equitable power to do equity and mould each decree to the necessities of the particular case, so long as procedural due process is accorded all persons claiming constitutionally protecta-ble property arid other rights. For example, in an equitable private enforcement action, similar in substance to an action under § 209, the District Court was ordered to employ all its equitable powers of a broader and more flexible character than usual because of the public interest. Warner Holding, supra, 328 U.S. at 398, 66 S.Ct. at 1089, 90 L.Ed. at 1336, 1337. And in Morgan II, supra, 307 U.S. at 193, 194, 59 S.Ct. at 801, 83 L.Ed. at 1218, 1219, the Supreme Court stated the manner of moulding the remedies .in the District Court, a court of equity, performing its duties to order restitution, may be affected by the public interest involved.
Under familiar principles of procedural due process, the Supreme Court has consistently held that under the Due Process clauses, in addition to notice, some form of hearing is required before an individual or other party can be deprived of a property interest. Matthews v. Eldridge (Eldridge), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly (Goldberg), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Loudermill, supra, 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). In Eldridge, supra, the rule was summarized as follows:
*1302“This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 US 539, 557-558, 41 L Ed 2d 935, 94 S Ct 2963 [2975], 71 Ohio Ops 2d 336 (1974). See, e.g., Phillips v. Commissioner, 283 US 589, 596-597, 75 L Ed 1289, 51 S Ct 608 [611] (1931). See also Dent v. West Virginia, 129 US 114, 125-125, 32 L Ed 623, 9 S Ct 231 [234] (1889). The ‘right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society/ Joint Anti-Fascist Comm. v. McGrath, 341 US 123, 168, 95 L Ed 817, 71 S Ct 624 [646] (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner/ Armstrong v. Manzo, 380 US 545, 552, 14 L Ed 2d 62, 85 S Ct 1187 [1191] (1965). See Grannis v. Ordean, 234 US 385, 394, 58 L Ed 1363, 34 S Ct 779 [783] (1914).” Eldridge, 424 U.S. at 333, 96 S.Ct. at 902, 47 L.Ed.2d at 32.
D.
Selected Controlling Decisions on the Nature of Required Hearings for Restitution in Judicial Actions in Which No Injunction was Issued Before Final Judgment
In judicial actions in federal courts involving restitution of charges and other injuries caused by a violation of a statute or regulation, or both, fixing maximum charges, the type of hearing required in addition to notice must be adequate to satisfy the procedural Due Process clause of the Fifth Amendment, but is flexible and may be devised to satisfy the existing circumstances and the public interest. See Warner Holding, supra, 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); Morgan II, supra, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939); Eldridge, supra, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg, supra, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); and Loudermill, supra, 470 U.S.-, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); at the pages cited above.
E.
Selected Controlling Decisions on the Nature of Required Hearings for Restitution in Administrative Proceedings
In many instances a fully functioning regulatory administrative agency of the Executive Branch may exercise statutorily delegated quasi-judicial functions, as well as delegated quasi-legislative and quasi-executive functions.8 Before decontrol (or “deregulation”) in January 1981 and for some time thereafter, the Department of Energy (DOE) exercised such quasi-judicial functions in determining violations and providing remedies for victims of violations. These functions were performed through proceedings for Notice of Probable Violations (NOPV), hearings thereon and proposed Remedial Orders. See Subpart V, 10 CFR § 205.280 through § 205.288 (1983), on administrative procecures of DOE for notice and hearing on alleged violations; See also Subpart 0,10 CFR § 205.190 through § 205.199J (1983), on procedures for administrative remedial action and orders.
Properly applied, these quasi-judicial administrative procedures of DOE, subject to judicial review by the federal courts under the Administrative Procedure Act, were adequate to provide procedural Due Process under the Fifth Amendment. For examples, see the decision of this Court in Missouri Terminal Oil Company v. Edwards, (TECA 1981) 659 F.2d 139, and Edles & Nelson, Federal Regulatory Process, Chapter 5 and 1984 Supplement.
The very recently published work 1 Koch, Administrative Law and Practice *1303(West Publishing Company 1985), Chapter 7, §§ 7.1 to 7.8 contains an excellent exposition of the historical and expanding application of the Due Process clause of the United States Constitution to administrative processes. Among other citations, this work cites cases of the Supreme Court of the United States from Mullane, supra, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), to Eldridge, supra, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), followed in this dissenting opinion.
But following decontrol in January 1981, • the change in personnel, policies, regulations, procedures and the practices of DOE has changed the administrative processes which provided restitution to the victims of violations. These changes have drawn DOE and the violators of statutes and regulations into new controversies about the sufficiency and legality of the actions of DOE, violators and alleged violators of statutes and regulations, under the duty and obligation to make restitution as declared by the controlling decisions of the Supreme Court of the United States and of this Court, summarized above.
Ill
DECISIONS AND AUTHORITIES ON INTERVENTION AND INTERPLEADER
A.
Rights of Claimants to Damages to Intervene in Restitution Proceedings and to Notice and Opportunity to be Heard in District Court
Following the filing on March 25, 1983 of its decisive Memorandum Opinion reported in 561 F.Supp. 816-864, containing comprehensive findings of fact and conclusions of law, the District Court directed plaintiff DOE to submit a form of proposed judgment in 15 days, 561 F.Supp. at 859. Defendant Exxon was ordered to file its reply thereto within 10 days thereafter. 561 F.Supp. at 859. The District Court, without allowing intervention and without notice to or opportunity for hearing by claimants to restitution of damages caused by Exxon’s violations, in the Memorandum Opinion of March 25, 1983 found the facts that restitution to any of the victims of the overcharges was impossible in the following excerpt:
“At the same time, price regulations applicable to refiners allowed them to pass along the inflated costs of Hawkins Field crude oil to purchasers of refined products. Under those rules the price a refiner could charge for a refined product was generally limited to the refiner’s May 15, 1973 price plus, among other costs, the increased cost of crude oil. 10 C.F.R. § 212.83(e)(2)(iii). Similar pass-through provisions for increased costs also applied to crude oil resellers, product resellers and retailers. See 10 C.F.R. Part 212, Subparts F and L. As a result of the pervasive system of price controls which then existed, therefore, Exxon’s overcharges were not, as it simplistically asserts, borne by Exxon itself, but instead were borne by ultimate consumers of petroleum products throughout the entire country.56
(Footnote) “56 on November 23,1982 and on January 20, 1983, certain refiners and independent retailers, respectively, filed motions to intervene in this action, arguing that they as victims of the Hawkins Field overcharges were entitled to any recovery DOE might obtain. The preceding discussion shows, however, that due to the workings of regulations applicable throughout the oil industry, from producer to retailer, the real victims are the unidentifiable millions of ultimate consumers of petroleum products. Accordingly, the motions to intervene are denied. (Emphasis added.)
“The broad scattering of the ill effects of Exxon’s wrongdoing renders impossible the tracing of the overcharges to their ultimate victims and the calculation of the precise damages suffered by each. Yet this court is still faced with the task of fashioning an equitable remedy.” 561 F.Supp. at 853.
The findings of fact and conclusions of law of the Memorandum Opinion of March 25, 1983 were incorporated without change *1304by reference, in a “JUDGMENT,” entered June 7, 1983, which did not mention expressly any claims to restitution or pending petition and counterclaim for interpleader. R. 31658-60. The judgment of June 7, 1983 recites that “the matter came before the Court on the parties’ cross-motions for summary judgment,” referring to the motions for summary judgment of the United States and Exxon described in the Memorandum Opinion. 561 F.Supp. at 818. The judgment of June 7, 1983, at R. 31659, implemented by reference the finding, quoted above, made without hearing the claimants to restitution, that “[t]he broad scattering of the ill effects of Exxon’s wrongdoing renders impossible the tracing of overcharges to their ultimate victims and the calculation of the precise damages suffered by each.” 561 F.Supp. at 853 (emphasis added). No authority is cited for the assumption that damages to the victims must be precisely9 calculated. On this basis the District Court in the judgment of June 7, 1983 ordered the overcharges of $1,635,604,638.10 and interest to be deposited by Exxon “into an interest-bearing Treasury escrow account” to be “held in trust by the Treasury” to be disbursed to each of the States and other eligible jurisdictions pursuant to instructions “consistent with this court’s Memorandum Opinion of March 25, 1983----” R. 31659.9 10 Review of the propriety of the proceedings on restitution issues, intervention and interpleader requires a summary of the record in the District Court, which follows.
B.
Orders of the District Court Denying and Allowing Intervention, Imposing Limitations on Intervenors and Dates Thereof
Before the filing of the Memorandum Opinion of March 25, 1983, the District Court had stayed the filing of applications to intervene by industry applicants. R. 38985, 39006. Later on April 29, 1983, the District Court belatedly but properly found the applications to intervene to be timely and that the applicants, who are intervenor-appellants herein, had a right to intervene under Rule 24(a)(2). In each instance, the intervention of right was properly granted but, this dissenting opinion concludes, contrary to law the intervention was limited to intervention for the purposes of appeal on the remedy issue only (with a limited privilege to comment by some intervenors). R. 31607-12. A summary of these orders follows:
1. Orders Denying Intervention Before Judgment of June 7, 1983.
The District Court on March 25, 1983 in its Memorandum Opinion denied in note 56 “motions” (properly, applications) to intervene, filed November 23 or 24, 1982 and January 20, 1983, for purposes of restitution described later of “certain refiners” and “independent retailers.” These applicants claimed to be victims of the overcharges later found to have been made by Exxon. The denial of these applications was based on the finding, made without an opportunity by the applicants for intervention to be heard, that “the real victims are the unidentifiable millions of ultimate consumers of petroleum products.” 561 F.Supp. at 853, note 56, quoted in full above, and expanded in the text, 561 F.Supp. at 853, 854.
One of the “motions” (properly, applications) to intervene denied in note 56 of the Memorandum Opinion of March 25, 1983 was the Conditional Motion of Indicated Refiners to Intervene filed November 23 or *130524, 1982 (stated in note 56 as November 23, 1982). R. 38960-65. This motion (application) to intervene was conditioned only on a decision of the Court granting judgment for plaintiff that defendant has violated the crude oil price regulations of DOE by overcharges; in that event the Indicated Refiners (intervenor-appellants herein) requested that the District Court conduct further proceedings permitting all interested parties to be heard on the issue of ultimate disposition of the overcharges, and ultimately to enter judgment for distribution to participants in the “Old Oil Entitlements Program” (R. 38960-1). This was a request in detail for appropriate restitution proceedings, and intervention therein, which should have been granted or otherwise satisfied. Intervention by the Indicated Refiners was later granted after the decisions of March 25, 1983 but only for the purpose of appeal, as stated hereinafter. R. 31408.
The other of the “motions” (properly, applications) to intervene denied on March 25, 1983 in note 56 was the Petition for Limited Intervention of Luther Griffin and other independent retailers of gasoline (R. 38986-91). The petition (application) to intervene stated that DOE was not adequately representing the petitioners (applicants) and others. (In regard to the States, inadequate representation by DOE as defined by Rule 24(a)(2) was found later by the District Court. R. 38990.) The petition (application) was limited to restitutionary proceedings. R. 38990-1.
By orders of the District Court, entered before March 25, 1983, consideration of these two applications (“motion” and “petition”) was stayed. R. 38985, 39006. Without vacating the stay orders and without hearing, these two “motions” (applications) were denied in note 56 of the Memorandum Opinion of March 25, 1983. 561 F.Supp. at 853. At the least, each should have been considered for granting before denial.
2. Orders Allowing Intervention Before Judgment of June 7, 1983.
On April 11, 1983, the District Court granted the “Conditional Motion” of the Indicated Refiners, previously denied and ordered that the refiner Champlin Petroleum Company, five other refiners and the American Refiners Association “may intervene in this action solely for purposes of appeal on the remedy issue.” R. 31408.
On April 29, 1983, by “Memorandum” (R. 31607-12) and “Order” (R. 31613-4), the District Court granted limited intervention to two . groups of several named parties in each group, described as “A. Industry In-tervenors” and “B. States.” The Industry Intervenors were permitted to intervene “solely for the purpose of appeal on the issue of the proper remedy____” The States were permitted to intervene “only for the purpose of appeal on the issue of the proper remedy” and of submitting limited comments on the “parties’ proposed judgment.” R. 31614. The “parties” referred to were United States and Exxon. R. 31607.
On May 5, 1983, Consumers Power Company and three refiners were permitted to intervene solely for the purpose of appeal on the remedy issue; and the States of Minnesota, New Jersey and West Virginia were permitted to intervene for the same limited purpose of appeal and limited comment stated in the Memorandum and Order of April 29, 1983. R. 31616-31619. '
3. Order Allowing Intervention on Date of Judgment, June 7, 1983.
By “Order” of June .7, 1983, the District Court granted leave to intervene to “several additional states, territories, and the District of Columbia (the ‘States’)” and reconsidered sua sponte its denial of the “petition” of January 29,1983 of Luther Griffin, et al., (“Retailers”) for limited intervention and granted leave to the Retailers to intervene only on their own behalf. R. 31661-2. The intervention of both the States and Retailers was “limited consistent with the Order of this court of April 29, 1983____” R. 31661-2. ..
4. Orders Allowing Intervention After Judgment of June 7, 1983.
On June 17, 1983, Philadelphia Electric Company (PECO) was granted leave to in*1306tervene in its own behalf only for the limited purpose of appeal on the issue of proper remedy as described in the Order of April 29, 1983.
On July 6, 1983, the Air Transport Association of America was granted leave to intervene for the limited purpose of appeal on the issue of proper remedy. R. 31680.
On July 6, 1983, Geraldine H. Sweeney, RJG Cab, Inc., and National Freight, Inc., were granted leave to intervene for the limited purpose of appeal on the issue of proper remedy. R. 31681.
C.
Validity and Effect of the Limitations on Right of Intervention
By denying intervention to claimants of constitutional property rights to restitution for a hearing or any other purpose,11 it is submitted that the District Court failed to perform its constitutional and equitable duties and procedural duties under Rule 24(a)(2) and to exercise its powers to accord Due Process and historic equitable rights to the claimants seeking to intervene and possibly other claimants to restitution. See Parts I and II above and discussion in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).
This limitation of intervention to purposes of appeal was also contrary to Rule 24(a) which, in the absence of exceptional circumstances, permits only “housekeeping” limitations or limitations for efficiency on intervention of right under Rule 24(a)(2) F.R.Civ.P.12
Timely intervention of right in the District Court under Rule 24(a)(2) should not have been limited to the purpose of appeal. Limitation of intervention under Rule 24(a)(2) is not authorized in absence of special circumstances not present in these cases. 7A Wright and Miller, Federal Practice and Procedure, § 1922, 623 at ,625 and cases therein cited, where it is stated:
“Thus, however desirable it may be that the courts have the power to impose reasonable conditions on the intervention of right, the fact that the Committee Note says that they have the power does not create the power if it does not otherwise exist. Nevertheless several courts have shown a willingness to accept the Note at face value and to allow the imposition of conditions on an intervenor of right. So long as these conditions are reasonable and are of a housekeeping nature, this view is likely to prevail. It seems very doubtful, however, that a court has the right to make significant inroads on the standing of an intervenor of right; and in particular, it should not be allowed to limit him in the assertion of counterclaims and other new claims.” 7A Wright and Miller, supra, at 625-26. (Footnotes omitted.)
It is obvious that no limitation on constitutional procedural Due Process rights and historic equitable rights will be permitted, in intervention under Rule 24(a)(2).
The same conclusion is reached in 3B Moore’s Federal Practice (Second Edition) 1124.07; H 24.09 and 1124.16. In 3B Moore’s, supra, U 24.09, there is discussed the lack of discretion to place significant limitations on intervention of right under Rule 24(a) as opposed to permissive intervention under Rule 24(b) which may be limited in the exercise of a judicial discretion. In 3B Moore’s, supra, 1T 24.16[4] discussing Status of the Intervenor, the right to press a claim of right by raising questions on the merits for protection of the intervenor is stated. So no limitations on constitutional *1307and historie equitable rights to be heard are permitted.
D.
Proper Allowance of Intervention Under Rule 24(a)(2) by the District Court
In its approach to decision on these applications for intervention, the District Court properly found a right to intervene under Rule 24(a)(2), stating:
“In this case, the industry applicants— refiners, wholesalers, and retailers — all allege that they, not the ultimate consumers of petroleum products, bore the burden of Exxon’s overcharges and are entitled to restitution. For purposes of deciding whether to allow intervention the court must accept a party’s well-pleaded allegations as true, and cannot look behind those allegations to reach the merits of the applicant’s claims as a basis for denying intervention. United States v. AT & T, supra, 642 F.2d at 1291. The industry applicants have properly pleaded an interest in the overcharges by Exxon, and so have satisfied the ‘interest’ test. The States, for their part, obviously have a strong interest in defending before this court and on appeal this court’s decision that they, on behalf of their citizens, are to receive restitution of the overcharges.” R. 31609-10.
In the “Memorandum” on intervention of April 29, 1983 containing findings of fact and conclusions of law, the District Court concluded that it had the power to limit the scope. of intervention to the purpose of appeal on the remedy issue, citing US. v. American Telephone and Telegraph Company, (C.A.D.C.1980) 642 F.2d 1285, and Smuck v. Hobson, (C.A.D.C.1969) 408 F.2d 175. R. 31611. In each of those cases there was a failure of any formal party to appeal, a circumstance not present in these appeals. Therefore, for that reason and probably other reasons, those two cases do not support the limitations on intervention to purposes of appeal in these cases. It is not desirable to extend this opinion by further discussion of the exceptional circumstances in those interesting cases, not present in these cases.
E.
1. Claims of Intervenor-Appellant Public Utility Philadelphia Electric Company (PECO), Consumers Power Company and Other Public Utilities.
Despite the fact that no notice and opportunity to file and prove claims for restitution were given to public utilities, Inter-venor-Appellant Philadelphia Electric Company (PECO), an investor owned public utility, claiming to be damaged by the illegal overcharges of Exxon sought leave to intervene in its own behalf, and sought certification as representative of a class of investor owned utilities supplying electricity and gas to consumers. As stated in Part III B. 4. above, after the decisive Memorandum Opinion and judgment of the District Court, this application to intervene was granted for the limited purpose of appeal on the issue of remedy only. R. 31681. The effect of this action of the District Court was to deny PECO the right to intervene for purposes of filing and presenting any claim for restitution of damages.13 (No comment will be made on the request for class certification because of the absence of a ruling by the District Court on the record and a fuller record.)
PECO and those joining in its brief on appeal, among other things, claim that the District Court erred in concluding without a hearing that all the overcharges were passed through to the ultimate consumers as a result of the pervasive system of price controls. They contend that the system of price controls (10 C.F.R. Part 212) did not require passing through of increased costs but merely permitted it.
*1308In regard to PECO it is reasonable to believe that PECO as a public utility supplying electricity and gas to consumers may have included the illegal overcharges in its rate base; and that as a public utility PECO would have standing to present a claim for restitution on behalf of its ratepayers to the extent that the overcharges were passed on. This dissent asserts that to summarily deny a claim for restitution under these circumstances is error. This conclusion is clear under the decisions of the Supreme Court of the United States, cited above, including Morgan II, supra, 307 U.S. 183, 59 S.Ct. 795, 83 L.Ed. 1211 (1939), and Interstate Natural Gas, supra, 336 U.S. 577, 69 S.Ct. 775, 93 L.Ed. 895 (1949). Decisions of this Court, and of the Circuit Courts of Appeals, on the duty and power to order restitution clearly support this conclusion.
Further, PECO and others claim that market forces may have prevented the passing through of the illegal overcharges. This is a possibility that may be a fact.
To the extent that PECO did not pass on the overcharges it may have a claim to restitution in its own behalf. In a related case we judicially noticed on the remedy issue that the DOE on reference by the District Court of Kansas filed an Interim Report of the Office of Hearings and Appeals (OHA) on the issue of the impact of illegal overcharges which reported that overcharges on natural gas may have been passed through to customers and that any refund may be passed through to customers. This Interim Report is quoted verbatim in part in Department of Energy v. Hunt, (TECA 1984) 734 F.2d 816 at 824-825. The memorandum and order of the District Court of Kansas retaining ultimate jurisdiction and referring the task of finding the facts concerning “the impact of the overcharges” to the OHA is reported in In re: The Department of Energy Stripper Well Exemption Litigation (Stripper Well), (D.Kan.1983) 578 F.Supp. 586. It is judicially noticed that the presumably final Report of the Office of Hearings and Appeals of the Department of Energy, (Report) was filed in the District Court of Kansas shortly after June 19, 1985, the date of the signature thereon of the Director of the Office of Hearings and Appeals of the DOE. It is a conservative appraisal of this Report to find that at least some of the damages from the illegal overcharges for stripper well crude oil can be proven in approximate amounts, and in regard to public utilities in some instances in amounts passed on to its rate payers.
Most of what has been determined concerning PECO may apply to Consumers Power Company, whose application to intervene and the action thereon is described in Part III B. 2. above.
2. Claims of the Appellant-Intervenors Users of Gasoline and Diesel Fuel in Motor Vehicles.
As noted in footnote 13 in the section immediately above, Sweeney and other consumers and end users of gasoline and diesel fuel in commercial and non-commercial vehicles asserted in the District Court and in this Court on appeal claims for restitution of damages caused by the illegal overcharges of Exxon. Like PECO they were summarily denied the opportunity to file and present these claims in the District Court. This action was contrary to the controlling decisions on restitution of the Supreme Court of the United States, and of this Court, reviewed in detail above. The District Court had the constitutional and equitable duty and authority to provide a suitable notice and hearing of these claims, among others, and to award any proven damages.
At least, to the extent that evidence shows that the overcharges were not passed on to others, damages may be claimed.
3. Claims of the Indicated Refiners, Other Refiners, American Refiners Association, Independent Retailers, Industry Intervenors and States.
As noted above in Part III B. 1., a group of refiners, entitled Indicated Refiners, and other refiners sought to intervene in No*1309vember 1982 before the decisive Memorandum Opinion of March 25, 1983 and the judgment of June 7, 1983. R. 38960-65.
This group requested that the District Court conduct further proceedings on disposition of the overcharges and the effect on victims including the effect of the “Old Oil Entitlements Program” which may have caused damages to those affected by illegal overcharges which resulted from misclassification of “old oil,” thereby wrongfully relieving purchasers thereof of payments to the Entitlements Fund and adversely affecting amounts paid to beneficiaries of the Entitlements Fund.
The applications to intervene of the refiners, and the American Refiners Association, and the action thereon is described in Parts III B. 1. and III B. 2. hereinabove.
The rulings and discussions hereinabove covering the Indicated Refiners apply to the claims of the other refiners, including intervenor-appellants Gladieux Refinery, Inc., U.S. Oil and Refining Company, Marathon Petroleum Company, Mobil Oil Corporation and Murphy Oil Corporation, and possibly to the American Refiners Association, if it has standing to claim damages in any respect.
The applications to intervene of independent retailers of gasoline including Luther Griffin and the action thereon is described in Parts III B. 1. and III B. 3. above. These independent retailers were entitled to participate as claimants in restitution proceedings. It was error to limit their intervention solely to purposes of appeal on the remedy issue.
The applications to intervene of the States, including the District of Columbia, the “Industry Intervenors” and the actions thereon are described in Parts III B. 1., Ill B. 2. and III B. 3. hereinabove. The limitations on intervention by these applicants to purposes of appeal on the issue of remedy was unauthorized.
Intervenor-Appellant Tosco Corporation (Tosco) and others described as small and independent refiners were permitted to intervene solely for the purpose of appeal. Tosco and six others were interpled by Exxon as crude purchasers against whom interpleader and declaratory relief were sought. Tosco and the six other refiners were entitled to notice and hearing on their claims to restitution.
Further, reasonable notice and opportunity to intervene in restitution proceedings should have been given to qualified claimants, including those who did not file applications to intervene.
4. Claims of Air Transport Association of America and Members.
The post-judgment action on the application of the Air Transport Association of America (Air Transport) to intervene limiting the intervention to the purpose of appealing the issue of proper remedy is described in Part III B. 4. hereinabove. The Intervenor-Appellant Air Transport states that its action is taken on behalf of 29 airlines, listed in Appendix A of its brief in this Court, that are direct purchasers from Exxon and end user consumers of kerosene base aviation jet fuel (kerojet).
While Air Transport as an association may, or may not have standing to claim damages sustained by its members, each of its members that was a direct purchaser and end user of jet fuel, the cost of which was increased by the overcharges, should have reasonable notice and an opportunity to present its claim to damages in restitution proceedings.
An airline which was an end user of the jet fuel may have passed on the illegal overcharges to its passengers, customers and others. But it cannot be assumed summarily that all damages were wholly passed on to the passengers and customers of any airline that claims the contrary. It is judicially noticed that an airline may at times be unprofitable and unable to pass on all its costs, and unable to make a normal profit.
F.
Conclusion on Right of Intervenors and Other Claimants to Restitution, Notice and Hearing
The (1) unconstitutional denial of procedural Due Process, to claimants to restitu*1310tion, (2) the improper limitations on the right to intervene under Rule 24(a)(2) F.R. Civ.P., and (3) the rendition of a summary judgment without hearing and without an adequate factual basis, considered separately and jointly, it is submitted, were' prejudicial errors in respect to all claimants to restitution. Before the District Court as a constitutional court of equity, proceeding in the exercise of its discretion, may order disposition of the funds remaining after satisfying all meritorious claims for restitution, the law requires as a minimum, notice and an opportunity for a hearing for all claimants to restitution.
G.
Failure to Consider Petition for Interpleader
In addition to failing to consider intervention requested before the decisive Memorandum Opinion of March 25, 1983 was entered, no action was expressly taken by the District Court to grant or deny the Petition and Counterclaim for Interpleader and Declaratory Relief of Exxon, filed December 5, 1980 (R. 105-302), requesting that appellant Tosco and six other “Crude Purchasers,” listed in Exhibit B thereto (R. 283), over 2,000 “Selling Owners” of crude oil from Hawkins Field, listed in Exhibit A thereto (R. 114-282), and the plaintiff United States be ordered to interplead their respective claims to the alleged excessive purchase prices and refunds (R. 111). On February 5, 1981 the District Court sua sponte by an “Order” chose to “defer consideration and resolution of the administrative problems” caused by the Petition and Counterclaim for Interpleader and Declaratory Relief (R. 864). In the same order the Court provided that the defendants named in the Petition and Counterclaim “answer or otherwise respond within 20 days from the date of service of notice by this court that such answers or other responses shall be filed.” R. 865. There is no record that the notice was ever filed or served on the United States, the Selling Owners or Crude Purchasers. This opportunity to begin restitution proceedings through interpleader was preempted without notice and hearing by the judgment of June 7, 1983.
IV
IMPROPER SUMMARY JUDGMENT ON RESTITUTION
In addition to violation of the constitutional principles, and the equitable historic duty and power to order restitution after notice and hearing, this dissenting opinion concludes that the District Court improperly rendered a summary judgment on restitution in implementing, in its judgment of June 7, 1983, its conclusion that it was impossible to identify the victims of the overcharge and determine the precise amount of damages, quoted above from its Memorandum Opinion of March 25, 1983. No proof exists in the record to support this factual conclusion; nor is any supporting proof cited by the District Court. If this conclusion of the District Court in whole or in part is based on judicial notice, the judicial notice of the underlying facts was unauthorized without a hearing, Rule 201(e), F.R.E., and probably unauthorized in any event. 1 Weinstein’s Evidence 11 201[03], from Davis, A System of Judicial Notice Based on Fairness and Convenience, Perspectives of Law, 69 at 93 (1964), as follows:
“The reason we use trial-type procedure, I think, is that we make the practical judgment, on the basis of experience, that taking evidence subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the parties. The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal’s attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both).”
*1311The power of the District Court to render this summary judgment on its own initiative, without hearing, was not authorized by the Federal Rules of Civil Procedure, or by Rule 56 in particular. The cases supporting this conclusion are too numerous to list and discuss, but the leading controlling cases of the Supreme Court of the United States are Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Arenas v. United States, 322 U.S. 419, 64 S.Ct. 1090, 88 L.Ed. 1363 (1944); Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Elgin Joliet & Eastern Railway Company v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945) , decision adhered to on rehearing, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928 (1946) ; Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); White Motor Company v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963); Agosto v. Immigration and Naturalization Service, 436 U.S. 748, 98 S.Ct. 2081, 56 L.Ed.2d 677 (1978). These cases are chosen in 6 Moore’s Federal Practice, Second Edition, 11 56.15[l-00], as the leading cases from the Supreme Court that state that Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial. A very large number of cases in accord are collected in 6 Moore’s, supra, H 56:15. In 10A Wright, Miller and Kane, Federal Practice and Procedure, § 2725 at pages 95-112, the same rule is stated citing many cases in accord. Further, in § 2725, supra, at page 112, the rule is stated that normally the court should notify the interested parties before rendering summary judgment in order to allow briefing and argument. In this case neither the parties designated as inter-pleader defendants in the petition and counterclaim by Exxon nor the applicants for intervention before the District Court before June 7, 1983 were notified or given an opportunity to be heard.
It is assumed that a summary judgment on the issues of restitution, if otherwise appropriate, may be entered on the initiative of the District Court as in this case, and that a summary judgment on restitution issues may be rendered without being so entitled as in this case. But such a summary judgment may not be entered without notice and hearing in the circumstances of this case. The District Court did in fact, if not in name, issue an unauthorized summary judgment on restitution issues, made easier by the limitations on the scope of intervention, the times of intervention and the stay of the interpleader issues, all without hearing those claiming to be victims of the violations of law by Exxon.
No Discretionary Equitable Disposition of Damages to Unidentifiable Victims Should Be Made Before Attempting to Identify and Make Restitution to Actual Victims
As discussed above, the District Court concluded without notice and hearing that it was impossible to trace the damages caused by the illegal overcharges of Exxon to the parties that were harmed thereby. Therefore, the District Court chose as a remedy to use by analogy the procedures of the “Warner Amendment,” P.L. 97-377, § 155, 96 Stat. 1919-1920 (1982). The Warner Amendment, 96 Stat. 1919, required overcharge refund payments be directed to the States (as defined) for use in one or more of five listed energy conservation programs when the victims of the overcharges could not be identified.
The District Court in its Memorandum Opinion of March 25, 1983, at 561 F.Supp. at 856-857 stated:
“The court shall order Exxon to make restitution to the United States Treasury of the full amount of the Hawkins Field overcharges, together with interest from the date of overcharge, the monies to be deposited into an escrow account, held in trust by the Department of Energy, to be disbursed in accordance with the procedures set forth in Section 155 of Pub.L. No. 97-377, 96 Stat. 1830, 1919 (1982).
*1312“In formulating its order, the court in no way relies on Section 155 as an express statutory grant of authority to this court, but acts instead in the exercise of its broad equitable powers to order restitution.59
However, Section 155 clearly bespeaks the intent of Congress that violators of the petroleum price regulations should be made to disgorge their illgotten gains even in situations, like the case before the court, where the victims of the petroleum overcharges cannot be identified. The colossal scale of Exxon’s wrongdoing, and the workings of pervasive regulations to spread the burden of that wrongdoing impossibly far and wide, must not deter this court from fashioning an appropriate equitable remedy. The purpose of the domestic petroleum price regulations was to keep oil prices down, to relieve consumers of some of the burden of towering oil costs. The five energy conservation programs identified in Section 155 operate across the nation to reduce that same burden, either by reducing overall consumption through conservation or by direct financial assistance to those most in need. Although one might speculate as to alternative remedies, this court respects the wisdom of the solution chosen by Congress and shall adopt it as the most appropriate equitable remedy in the circumstances of this case.”
As quoted above, the District Court stated that P.L. 97-377, § 155 was not followed as an express statutory grant of authority. That lack of authority is very clear from § 155 and its legislative history, for the following reasons:
1. Under § 155, the funds to be distributed must be “likely not to be ... refunded to injured persons because the purchasers of the refined petroleum products cannot be reasonably identified or paid or because the amount of each purchaser’s overcharge is too small to be capable of reasonable determination.” Section 155(a)(2), 96 Stat. 1919. The District Court did not make any attempt by any sort of equitable judicial restitution proceedings to refund the amounts overcharged by Exxon to injured parties. Therefore the District Court could not properly order all of Exxon’s overcharges be restored through § 155, even if the Warner Amendment could be applied by analogy, a question this dissent asserts need not be decided on these appeals.
2. Section 155 limited the amounts to be disbursed to $200,000,000. Section 155(e)(1), 96 Stat. 1919. Exxon’s overcharges, with interest, which the District Court properly found subject to restitution, far exceed that amount, even if any prior funds distributed under § 155 are ignored.
3. The funds to be distributed in § 155 were to come from settlements of alleged petroleum pricing and allocation violations, rather than from adjudications of a Court as in this case.
4. According to the legislative history of § 155, the statute was to establish “a one-time distribution of $200,000,000 to states ____” House of Representatives Conference Report No. 97-980 at page 198 (emphasis added). Representative John D. Dingell emphasized these limits as follows:
“The provision is a one-time provision. It should not be viewed as a precedent. It does not confer on DOE any new resti-tutional or remedial authority or imply that the DOE has such authority. It is a very limited provision aimed at helping people. It is, I stress, an exclusive, onetime disbursement authority.” 128 Congressional Record H10435 (December 20, 1982).
*1313The District Court seeks to avoid the above limits of § 155 by relying on its “broad equitable powers” but its equitable powers cannot bypass but must recognize the legal rights to restitution that exist in parties harmed by Exxon’s overcharges. Section 155 provided for the rights of potential claimants by expressly requiring funds to be used which “are not likely to be required for satisfying claims ____” Section 155(e)(1)(A), 96 Stat. 1919. In the discussion of the “Warner Amendment,” Senator J. Johnston, Jr., made the following statements:
“What we have involved here is a fund collected from those who overcharged but where the consumers cannot be identified, and that is the fund involved, and no other money.
“If it were involved with those who could be identified then indeed they should receive the money and they would have a vested right to receive that money.
“That money is not involved here but rather money from consumers who cannot be identified.” 128 Congressional Record S15126 (December 16, 1982) (emphasis added).
The fact that Congress chose to distribute a certain amount of money through § 155 should not be decisively significant in the exercise of a court’s equitable power to make restitution for the following reasons:
1. Congress showed no intention of making more than one distribution under § 155, although it could have done so.
2. Congress limited the amount to be distributed to $200,000,000 although it could have chosen a higher amount.
3. Portions of the legislative history indicate that an important motivation for the introduction of what became § 155 was the desire to ease the burden on the poor of rapidly increasing energy prices. Senator John W. Warner stated:
“I am convinced that this amendment is the best way to get these funds into the hands of Americans suffering from rapidly escalating energy prices during this frigid winter season.” 128 Congressional Record S15116 (December 16, 1982).
V
ENTITLEMENTS PROGRAM, RESTITUTION ISSUES AND DOE ACTIONS
The old oil Entitlements Program was fully operative during the control of prices and allocation of crude oil under the EPAA and the EPCA, and the Entitlements Program necessarily affected the issues to be resolved in restitution proceedings in the District Court for reasons which follow.14 The Entitlements Program was established by regulation of the predecessor of the DOE which prescribed its operation, includ*1314ing obligations and benefits. 10 C.F.R. § 211.67 (1974). The Entitlements Program was continued until decontrol on January 28, 1981, by regulation 10 C.F.R. § 211.67, as amended from time to time.
A good brief description of the Entitlements Program, and its purposes, by Judge Estes of this Court, is found in the ppinion in Pasco, Inc. v. Federal Energy Administration (Pasco), (TECA 1975) 525 F.2d 1391, as follows:
“To minimize the inflationary impact of world-wide oil prices and at the same time to provide an incentive for increased domestic production of crude oil, the ‘two-tier’ pricing system for crude oil was promulgated. The ‘two-tier’ pricing system basically imposes a ceiling price of approximately $5.25 per barrel on all ‘old’ oil and allows new and released oil to be sold without respect to the ceiling price, i.e., at approximately $11.28 per barrel. The FEA found, however, that while the ‘two-tier’ system met certain necessary objectives, the great disparity between the price of controlled and uncontrolled crude oil was having an unequal impact on all refiners. During the base period of May, 1973, composite crude oil costs of all refiners were approximately equal; however, with the pricing system in effect, the major integrated oil companies, who as a class had far greater access to old oil, had significantly lower composite crude oil costs in refining their products than did the small and independent refiners.
“To insure that all refiners and marketers shared equally in the benefits of price-controlled crude oil and the burdens of uncontrolled crude oil, the FEA adopted the Entitlements program. Under this program, a refiner must have one ‘entitlement’ for each barrel of old oil it refines during a particular month. All refiners are initially issued for each month an amount of entitlements equal to their proportionate share of the old oil refined during the month on a nationwide basis. Thus, a refiner running more old oil as a percentage of its total refinery runs than the national average would have to buy additional entitlements from a refiner which ran a smaller percentage of old oil during the month than the national average. The national ratio of old oil runs to total refinery runs is lowered somewhat by the issuance of additional entitlements to small refiners under the ‘small refiner bias’ built into the regulation and to certain eligible firms which import residual fuel oil and home heating oil. By requiring refiners and importers who sell entitlements to reduce their crude oil or product costs by the amount of the entitlement sales proceeds, and allowing a purchaser of entitlements to include the cost of entitlements in its crude oil costs, the FEA basically equalized the average weighted crude oil costs of all refiners, thereby eliminating the inequities caused by the ‘two-tier’ pricing system.” (Footnotes omitted.) Pasco, supra, 525 F.2d at 1394-1395.
After decontrol, as before decontrol, the DOE has been legally obliged to calculate and collect the obligations, and pay the benefits of the Entitlements Program accrued during control.15 The decontrol by the Executive in January 1981 under the provisions of the EPGA in 1975 seemed to contemplate that the DOE, as successor to the FEA, would continue its quasi-judicial actions to proceed, as before decontrol, to order refunds (make restitution) of illegal overcharges such as by Subpart V (10 C.F.R. §§ 205.280 through 205.288) and adjustments in the Entitlements Program, to *1315those damaged by the overcharges. For this purpose, there was enacted in 1975 § 6401 of Title 42 U.S.C., (§ 531 of Pub.L. 94-163, Title V) which provides as follows:
Ҥ 6401. Expiration of authority
“Except as otherwise provided in sub-chapter I or subchapter II of this chapter, all authority under any provision of subchapter I or subchapter II of this chapter and any rule, regulation, or order issued pursuant to such authority, shall expire at midnight, June 30, 1985, but such expiration shall not affect any action or pending proceedings, civil or criminal, not finally determined on such date, nor any action or proceeding based upon any act committed prior to midnight, June 30, 1985.”
The current status of administrative proceedings and actions by DOE to determine these obligations and benefits are not clear and should be determined by the District Court on notice and hearing. It is known that the DOE began to perform its obligations after decontrol by prescribing in detail the manner and timing of final adjustment of the Entitlements Program in 10 C.F.R. § 211.69 designated as “Entitlements Adjustment Mechanism,” adopted July 13,1981 and amended thereafter. The purpose of this § 211.69 was stated in paragraph (b) thereof to be “a method for an orderly termination of the domestic crude 011 entitlements program established in § 211.67.” The probability that claims would be allowed in administrative or judicial proceedings was recognized in the definition of “claim” in paragraph (c) of § 211.-69 as follows:
“ ‘Claim’ means the dollar amount determined by ERA to be owed to a firm resulting from adjustments, amendments or other modifications to any one or more Entitlements Notices issued by ERA pursuant to § 211.67 for the period from October 1, 1980, through January 27, 1981, or resulting from an administrative or judicial determination.” (Emphasis added.)
The effect on the obligations of Exxon to the DOE as administrator of the Entitlements Program, and to the potential or certified beneficiaries of the Entitlements Program was not determined by the District Court. It is possible that claimants under the Entitlements Program in addition to the applicants for intervention in the District Court might appear if given the opportunity and might prove their claims to restitution. It is established that applicants for intervention Gladieux and U.S. Oil sought the right to do so for themselves and others.
The performance by DOE of its obligations to administer the lawful orderly termination of the Entitlements Program could not be judicially assumed without a hearing of interested parties, and might be disproved. See Navajo Refining Company v. United States Department of Energy, (TECA 1984) 750 F.2d 966.
After the final judgment of the District Court on June 7, 1983, the DOE made some formal “final” and tentative decisions in 1984 and 1985 concerning the Entitlements Program. Nevertheless because these actions of the DOE are relevant to future judicial restitution proceedings, and may be judicially noticed by this Court, it is noted that the DOE on June 28, 1984, through the Economic Regulatory Administration (ERA) issued a “Notice of final decision; notice of public proceeding and public hearing” entitled “January 1981 and Entitlements Adjustment Notices.” This document was published in 49 Federal Register (F.R.), Number 129 of July 3, 1984 at pages 27410-27420. The final decision was the decision not to issue the January 1981 and Final Entitlements Adjustment Lists. 49 F.R. supra at 27413. The tentative decision dealt with “Outstanding Exception Orders.” 49 F.R. supra at 27418-27420. In this document described above, the final decision was supported by a relatively long recitation of history, administrative determinations of fact, notice of discretionary action and related matters concerning the subject matter. 49 F.R. supra at 27410-27418. No determination of the validity of any part thereof is in order since the document was not before the District Court.
*1316Also, on January 9, 1985 the ERA, for DOE, filed a “Final Decision” published in 50 Federal Register, No. 9, 1919-1925 of January 14, 1985, summarized therein as follows:
“The Economic Regulatory Administration (ERA) of the Department of Energy (DOE) is announcing the final decision concerning the Department’s policy on Entitlements exception orders. If the Office of Hearings and Appeals (OHA) determines that refiners as a class were injured by overcharge activity, OHA will fund receive orders from that portion of refund money which corresponds to the injury sustained by refiners as a class. Dispense orders will not be effectuated.” 50 F.R. at 1919.
The validity of any part of these, or any other administrative actions that may exist, is not discussed except to note that any material part of such document that is invalid under the Administrative Procedure Act (APA) or other statute, the United States Constitution, or historic equitable principles is ineffective.
It seems clear that the miscertification of crude oil as upper tier oil during control, and collection of wrongfully charged prices may have had some effect on the rights of others under the Entitlements Program, and that the resulting damages of the victims of overcharges might be satisfactorily shown in fact and amount. At least the contrary should not be assumed on judicial notice without notice and hearing, for reasons stated above.
VI
STATUTORY DUTIES AND POWERS OF THE COMPTROLLER GENERAL
The Comptroller General of the United States is and was obligated and empowered to monitor the operations of the DOE (and its predecessors) by Title 42 U.S.C. Section 7137 which provides as follows:
“The functions of the Comptroller General of the United States under Section 12 of the Federal Energy Administration Act of 1974 [15 USCS § 771] shall apply with respect to the monitoring and evaluation of all functions and activities of the Department under this Act [Department of Energy Organization Act, P.L. 95-91] or any other Act administered by the Department.. (Aug. 4, 1977, P.L. 95-91, Title II, § 207, 91 Stat. 574.)”
Title 15 U.S.C. Section 771 referred to in the paragraph quoted immediately above states in part the following:
“(a) Scope of activities; monitoring activity; data to Comptroller General from Administration; reports and recommendations to Congress. For the duration of this Act, the Comptroller General of the United States shall monitor and evaluate the operations of the Administration including its reporting activities. The Comptroller General shall (1) conduct studies of existing statutes and regulations governing the Administration’s programs; (2) review the policies and practices of the Administration; (3) review and evaluate the procedures followed by the Administrator in gathering, analyzing, and interpreting energy statistics, data, and information related to the management and conservation of energy, including but not limited to data related to energy costs, supply, demand, industry structure, and environmental impacts; and (4) evaluate particular projects or programs. The Comptroller General shall have access to such data within the possession or control of the Administration from any public or private source whatever, notwithstanding the provisions of any other law, as are necessary to carry out his responsibilities under this Act and shall report to the Congress at such times as he deems appropriate with respect to the Administration’s programs, including his recommendations for modifications in existing laws, regulations, procedures, and practices.”
Critical Opinions of the Comptroller General Since Decontrol on Duty to Attempt to Order Restitution of Illegal Overcharges
In the performance of these statutory duties and powers the Comptroller General *1317has repeatedly and formally advised DOE that it has exceeded its statutory power to collect and to dispose of funds collected in consent order settlements of monetary claims for alleged violations of petroleum price and allocation regulations by depositing funds in the Treasury, or otherwise disposing of them, without prior efforts to make restitution to victims of the overcharges. The first instance of judicial notice by this Court of the actions of the Comptroller General in so advising DOE was made in Department of Energy v. Hunt, (TECA 1984) 734 F.2d 816 at 824.
The Comptroller General has recently made a comprehensive report to the House of Representatives of the United States through the Subcommittee on Oversight and Investigations and the Committee on Energy and Commerce which in part, in Chapter 3 on the subject of restitution of illegal overcharges, states:
“CHAPTER 3
DOE NEEDS TO ENSURE THAT OIL OVERCHARGE DISTRIBUTIONS RESULT IN RESTITUTION TO INJURED PARTIES
“When parties injured by oil companies’ overcharges are not readily identifiable, ERA is required by DOE’s regulations to refer these cases to OHA, which is responsible for allowing potentially harmed parties to file a claim for a refund. If funds remain after all eligible claims are made, OHA can make payments to states. ERA, however, has bypassed OHA and has issued four consent orders that provide for oil companies to make direct payments to states without prior efforts to identify those overcharged and the amount of the overcharges. ERA did refer six other cases to OHA as required by DOE’s regulations.
“In these consent orders, ERA has agreed to several types of distributions as settlement of the oil companies’ alleged violations. Some of the orders have involved payments to institutions, such as state governments, that were not actually injured by the overcharges. The decision by the Comptroller General of the United States (62 Comp.Gen. 379 (1983)) concluded that ERA was in these cases improperly using the consent orders by making, or allowing the oil companies to make, distribution of overcharge refunds without prior efforts to identify those overcharged and the amount of the overcharges.
“DOE maintains that its regulations are not mandatory and that it has the authority to take such actions. As discussed in this chapter, we disagree and believe that DOE should follow its mandatory regulations and assure that the injured parties receive the benefit of the oil overcharge distributions.
“The following illustration shows, as of July 18, 1984, the four ERA consent orders and six OHA decisions and orders which resulted in payments to states. (The illustration in appendix II shows the payments that the eight states had received as of July 18, 1984, as a result of these orders and decisions. As discussed on page 6, we did not review the Virgin Islands’ use of funds received as a result of individual oil company consent orders.)
“Illustration 3
ERA Consent Orders and OHA Decisions and Orders Which Resulted, in Payments to States as of July 18, 1984 a
“Company distributions ordered by ERA Authorized uses of the funds Amountb
Chevron —Highways and bridge maintenance and repair
—Ridesharing (i.e. vanpool and carpool) programs
—Public transportation projects
*1318“Company distributions ordered by ERA_Authorized uses of the funds Amountb
Chevron
—Residential or commercial building energy audits
—Grant or loan programs for weatherization or other energy conservation equipment installation
—Energy assistance programs
—Airport maintenance or improvement
—Reduction in airport user fees
—Energy conservation or energy research offices and administration $25,000,000
Standard Oil Company (Ohio) Although DOE encouraged the states to use the funds for energy-related projects, DOE intended to provide maximum flexibility to the states in determining appropriate uses of the funds 10,000,000
Imperial Refineries Corporation —Same as Sohio
Site Oil —Energy-related purposes 600,000
Company of Missouri and Flash Oil Corporation (Site and Flash) 450,000
Total ERA-approved distributions $36,050,000
“Distributions ordered by OHA Authorized uses of the funds Amount15
Palo Pinto Oil and —Energy-related plans Gas 266,904
PVM Oil Associates, —Projects to benefit heating-oil customers in Inc. New York City 67,961
Worldwide Energy —Projects to benefit natural gas liquids Corporation users in Oklahoma and Texas 49,400
Armstrong and —Projects to benefit parties injured by Associates overcharges (Tex.) 9,863
Standard Oil —Projects to benefit class of persons injured Company (Indiana) by the overcharges — consumers of motor gasoline and middle distillates 24,000,000
Belridge Oil Company —Projects to benefit those citizens most likely affected by overcharges 95,821
Total OHA-ordered distributions 24,489,949
Total $60,539,949
"a Does not include payments to any state which, as a customer of the oil companies whose alleged violations were settled by terms of a consent order, qualified for a refund as a purchaser of petroleum products.
‘,l5 Amounts shown are the payments to the states specified in ERA’S consent orders and OHA’s decisions and orders and do not include any interest which DOE may have required the companies to pay.
*1319“ERA-ORDERED DISTRIBUTIONS MAY NOT RESULT IN RESTITUTION TO INJURED PARTIES
“The first four companies listed in the illustration are those which ERA ordered to make payments totaling $36 million to the states to settle alleged overcharges. The requirement for those payments was contained in the consent orders ERA and the companies signed in settling the companies’ alleged overcharges. We believe that ERA has improperly used these consent orders because the payments were made without giving overcharged customers an opportunity to present their claims through DOE’s established procedures. Also, the authorized uses of the funds were so general that there was little assurance that the funds would be used for restitutionary purposes.
“DOE’s regulations (10 C.F.R. Part 205, Subpart V), promulgated pursuant to the Emergency Petroleum Allocation Act of 1973, establish procedures for distributing oil overcharge refunds when those overcharged and the amounts of the overcharges cannot be readily identified. These procedures are designed to protect the rights of overcharged consumers and require ERA to refer overcharge cases to OHA when ERA cannot readily identify the parties injured by the oil companies’ overcharges. OHA then is responsible for obtaining public comments on its proposed method of making refunds and allowing potentially injured parties to file a claim for a refund. These procedures were followed for the last six companies listed in the illustration.
“ERA bypassed these procedures for the first four companies listed in the illustration. The consent orders for those companies did not present potentially injured parties an opportunity to file claims. Rather, payments went directly to the states without prior efforts to identify those overcharged and the amounts of overcharges.
“We have previously brought this matter to DOE’s attention in two opinions and two decisions of the Comptroller General of the United States.1 (Footnote 1, Comptroller General of the United States Opinions B-200170 Apr. 1, 1981, and 60 Comp.Gen. 15 (1980); and Decisions 62 Comp.Gen. 379 (1983) and 63 Comp.Gen. 189 (1984).) In these two documents, we said that DOE is legally bound to follow its own regulations, which require that the administrative procedures discussed above be followed in determining appropriate restitutionary distribution mechanisms. Consequently, we have concluded that DOE does not have the authority to avoid its subpart V regulations by agreeing to consent order provisions that distribute funds directly, without prior efforts to locate injured parties.
“DOE has maintained that it has the authority under the Emergency Petroleum Allocation Act of 1973 to take any action necessary to eliminate or compensate for the effects of a violation of its petroleum pricing and allocation regulations. In its May 25, 1984, Federal Register ruling, DOE said that it is not required by its regulations or statute to use the administrative procedures. Rather, DOE asserts that it has the authority to employ various forms of indirect restitution, including refunds to the miscellaneous receipts of the U.S. Treasury and payments to state governments.
“Based on our research of the applicable court decisions,2 (Footnote 2, See 62 Comp. Gen. 379, 382-383, 386-387 (1983).) We believe DOE’s authority is limited to making refunds to overcharged customers and to those likely to have been injured by the overcharges. We also believe that DOE has not been expressly granted any authority to promote the interests of consumers in general through direct payments to them or through grants made on their behalf to states or other entities. Therefore, we believe DOE did not have the authority to agree to consent order provisions such as the four discussed above.
“In addition to not following the subpart V procedures for these four cases, ERA has agreed to settlement terms which may not provide for restitution to injured parties. As shown in the illustration on page 22, the states can use these four settlement *1320distributions for purposes such as highway and bridge maintenance and repair, airport maintenance or improvement, energy conservation or energy research offices and administration, and energy-related projects. Based on our review of these four consent orders and the Federal Register notices announcing them, we did not find any provisions therein which would enable ERA to ensure that these refunds would result in direct restitution to injured parties.
“Even though a state may be complying with the provisions of the consent order, it might not be using the funds for restitutionary purposes. For example, Pennsylvania funded basic and applied research on energy use, New York funded its state energy office, and Georgia funded airport improvement projects. Texas, which as of July 18, 1984, had received $798,858 as a result of four consent orders (Chevron, Standard Oil (Ohio), Site and Flash, and Armstrong and Associates3) (Footnote 3, The Armstrong and Associates consent order accounted for only $14,232 ($9,863 refund plus $4,369 of interest) of the $798,-858 and was the only one of these four which OHA handled, under DOE’s subpart V procedures. As discussed in the next section, OHA usually approves states plans before disbursing the refunds. Because the Armstrong and Associates case involved only a small amount of funds, OHA did not require such approval in this case.) appropriated these funds to its Bureau of Economic Geology, University of Texas at Austin. The Deputy Director of the Bureau told us that they plan to use the funds for the following two research projects:
—identifying, classifying, and researching methods to enhance the recovery potential of existing Texas oil reservoirs and
—identifying and classifying Texas' lignite deposits and researching the economic recovery factors which would make exploration feasible.
“In our opinion, these two projects would directly benefit energy producers. Energy consumers would only indirectly benefit, and then only if the research resulted in the production of sufficient additional oil and/or lignite to help stabilize consumer prices of products produced from these resources.
“OHA’S PROCEDURES FOR ENSURING THAT STATES PROPERLY USE OIL OVERCHARGE DISTRIBUTIONS
“Although OHA ensures that states properly use the distributions which it orders, prior to March 1984 it had not ensured that the states were using the interest earned on these distributions in accordance with OHA-approved state plans. After we brought this matter to OHA’s attention in March 1984, it began to require the states to use such interest in accordance with state plans.
“For five of the six OHA-ordered distributions, OHA required the states to have their planned uses of the funds approved by OHA before the states received the funds. Also, for these five cases the states are required to submit a follow-on report to OHA on how they have used the funds.
“For the sixth case, Armstrong and Associates, OHA did not require either an approved plan or a follow-on report. OHA decided that in view of the small amount of funds ($9,863), it would not be cost effective to require the state to channel these funds to specific segments of the population who were most affected by the overcharges. Rather, OHA decided to deposit the $9,863 in Texas’ escrow account established to hold such funds pending the state legislature’s approval of how the funds would be used.
“We discussed this case with an OHA official, particularly because, in the Worldwide Energy Corporation case ($49,400 in May 1983), OHA required a plan and follow-on report from Oklahoma even though its share was only $8,828. The OHA official said that Armstrong and Associates was the first of these distributions (Jan. 1983) to the states. Since that time, OHA has been requiring a plan and follow-on report irrespective of the amount of the refund.
“Although OHA monitored five of the six refunds to the states, prior to March 1984 it did not monitor the states’ use of *1321the interest earned after they received these refunds. Of the eight states we visited, four (California, Georgia, Pennsylvania, and Texas) were using the interest they had earned on both the ERA-ordered and OHA-ordered distributions for general purposes, rather than for the same purposes as the refunds themselves. Arizona and New York were appropriately using their earned interest for the same purposes as their refunds. Florida officials had not yet decided how to use the interest and Louisiana officials could not provide adequate documentation on how they have used or will use their interest.
“After our discussion with an OHA official in March 1984, OHA began requiring states to use the interest earned on these refunds in accordance with the OHA-approved state plans. We agree with this requirement because we believe that the states’ use of the interest earned as a result of these oil overcharge refunds should be monitored and controlled by DOE.
“CONCLUSIONS
“Under DOE’s subpart V procedures, ERA is supposed to refer oil overcharge cases for which it is difficult to readily identify the injured parties to OHA for resolution. ERA, however, has not followed these procedures in all cases. As a result, the ERA-approved distributions of oil overcharge funds to the states may not have resulted in restitution to the injured parties. Rather, ERA has approved distributions to the states without ensuring that the distributions are directly related to those who were injured by the overcharges. To provide adequate assurance that the injured parties receive the benefit of the oil overcharge refunds, we reiterate the Comptroller General of the United States’ opinions and decisions that the Secretary of Energy comply with DOE’s mandatory procedures to identify injured parties.”
These recitations are factually supported by records too lengthy to quote, that are judicially noticed, listed in Addendum No. 1, hereof.
The opinions and decisions of the Comptroller General cited in footnotes 1 and 2 of the above quotation are judicially noticeable and should be considered as advisory in determining whether to rely on the DOE to assist in identifying those damaged by illegal overcharges and the amounts thereof. Those opinions and decisions, in part, rely on opinions of this Court on restitution.
Judicial notice has also been taken of the actions since decontrol in discontinuing the monthly publications of the Entitlements Program which served the purposes of restitution of damages resulting from illegal overcharges and implementing the restitu-tional purposes of exception determinations. See the complaint of Navajo Oil Co. v. United States Department of Energy, (TECA 1984) 750 F.2d 966.
Some of the records of the DOE concerning the Entitlements Program since decontrol are listed in Addendum No. 2 hereof.
If a district court finds that the DOE is unable or unwilling to assist in the process of identifying those damaged by the illegal overcharges found to have existed in this or other basic litigation, then other means including, if necessary, reference to a special master or special masters should be considered.
VII
POWER OF DISTRICT COURT TO TAX COSTS OF MAKING RESTITUTION
It is obvious that in restitution proceedings in equity the usual costs may be allowed by a district court to the prevailing party under Rule 54(d) F.R.Civ.P. against the party other than the United States, adjudged to have violated the statutes or regulations, or both. Because restitution proceedings may require additional costs and expenses in special circumstances a district court has the power to assess additional costs. Brashear Freight, supra, 312 U.S. 621 at 629, 61 S.Ct. 784 at 788, 85 L.Ed. 1883- at 1088 (1941); 10 Wright, Miller & Kane, Federal Practice and Procedure § 2668; 6 Moore’s Federal Practice, Second Edition, II 54.77[1] at 1702.
*1322If a district court finds it necessary or desirable under the exceptional circumstances to appoint a special master to conduct proceedings on all or some of the issues in the restitution proceedings, subject to judicial order of the district court the appointment and taxation of the additional cost and expenses, including compensation of the master, is authorized by Rule 53 F.R.Civ.P. 10 Wright, Miller & Kane, Federal Practice and Procedure § 2670; 6 Moore’s Federal Practice, Second Edition, 11 54.77[3].
CONCLUSIONS
For the foregoing reasons, the judgment of the District Court on the basic issues of the violations of the statutes and regulations, including misclassification of crude oil by Exxon and allowance of interest are properly affirmed. The detailed findings of fact and conclusions of law of the District Court on the basic issues supporting its judgment on the illegal overcharges and the amount thereof are sound and represent judicial performance of complex and difficult tasks in keeping with the best traditions of the judiciary of the United States.
The action of the District Court in ordering the entire amount of the overcharges and interest paid to the Treasury of the United States for disposition analogous to that provided in the Warner Amendment, § 155 of P.L. 97-377 should be reversed, and the issues of restitution of damages to those injured by the illegal overcharges .should be remanded to the District Court for further proceedings in accordance with the controlling equitable, constitutional and statutory principles discussed herein.
Addendum No. 1
Summary of Some Principal Administrative Decisions, Opinions and Orders Relevant to Restitution of Excessive Charges Under EPAA and EPCA (1977 to Present)
I.
Relevant Published Decisions and Published and Unpublished Opinions of the Comptroller General (CG) on Powers and Duties of the Department of Energy (DOE) Concerning Restitution of Overcharges under the EPAA and EPCA.
A. Published Decision by Special Assistant to CG in 63 Comp.Gen. 189 (1984), cited in Department of Energy v. Hunt, (TECA 1984) 734 F.2d 816 at 824;
B. Unpublished opinion of General Counsel (CG) directed to Theodore J. Garrish, General Counsel, DOE, B-210176 (October 4, 1984).
C. Unpublished opinion by Special Assistant to CG directed to Donald Paul Hodel, Secretary of Energy, B-210176 (October 4, 1984).
D. Published decision by Special Assistant to CG in 62 Comp.Gen. 379 (1983).
E. Unpublished opinion No. B-200170 (April 1, 1981).
F. Published opinion of CG in 60 Comp. Gen. 15 (1980).
II.
Final Decisions, Rulings and Notices about Refund Procedures of DOE, Economic Regulatory Administration (ERA) or Office of Hearings and Appeals (OHA) (one or more of them) 1983-1985.
A. Recent Notices of Implementation of Special Refund Procedures (February 1985):
1. Notice of Implementation of Special Refund Procedures, 50 F.R. 6244 (February 14, 1985).
2. Notice of Implementation of Special Refund Procedures and Solicitation of Comments, 50 F.R. 6240 (February 14, 1985).
3. Notice of Implementation of Special Refund Procedures, 50 F.R. 5307 (February 7, 1985).
4. Notice of Implementation of Special Refund Procedures, 50 F.R. 5305 (February 7, 1985).
5. Notice of Implementation of Special Refund Procedures, 50 F.R. 4785 (February 1, 1985).
*13236. Notice of Implementation of Special Refund Procedures, 50 F.R. 4774 (February 1, 1985).
7. Notice of Implementation of Special Refund Procedures, 50 F.R. 4766 (February 1, 1985).
8. Notice of Implementation of Second Stage Refund Procedures, 50 F.R. 4763 (February 1, 1985).
9. Notice of Implementation of Special Refund Procedures, 50 F.R. 4757 (February 1, 1985).
10. Notice of Implementation of Special Refund Procedures, 50 F.R. 4749 (February 1, 1985).
11. Notice of Implementation of Special Refund Procedures and Solicitation of Comments, 50 F.R. 4739 (February 1, 1985).
B. Noteworthy Final Decisions, Rulings and Notices about Refund Procedures:
1. Final Decision, 50 F.R. 1919 (January 14, 1985).
2. Notice of Final Decision; Notice of Public Proceedings and Public Hearing, 49 F.R. 27410 (July 3, 1984).
3. Ruling, 49 F.R. 22063 (May 25, 1984).
4. Notice of Issuance of Proposed Decision and Order for the Implementation of Special Refund Procedures, 49 F.R. 6542 (February 22, 1984).
5. Notice of Implementation of Special Refund Procedures and Solicitation of Comments, 49 F.R. 3125 (January 25, 1984).
6. Notice of Implementation of Special Refund Procedures and Solicitation of Comments, 48 F.R. 57608 (December 30, 1983).
7. Notice of Action Taken on Consent Order, 48 F.R. 28536 (June 22, 1983).
III.
Delegation Orders to OHA or ERA to Take Action or to Establish Policy of DOE, Issued by DOE.
A. Delegation Order No. 0204-4 (1977), quoted at 10 C.F.R. Part 1001, Appendix (1984). ■
B. Delegation Order No. 0204-24 (March 30, 1978).
C. Delegation Order No. 0204-24, Amendment No. 1 (May 5, 1980).
D. Delegation Order No. 0204-114 (December 20, 1984).
IV.
Ruling of Office of General Counsel of the DOE of May 22, 1984 “to clarify the scope of its remedial authority under the Emergency Petroleum Allocation Act, 15 U.S.C. 751 et seq., and to address certain opinions that the Comptroller General of the United States has offered on the subject.” This ruling was published in full in 49 F.R. pages 22063-22068, May 25, 1984, for the following express purpose: “Title 10 of the Code of Federal Regulations is hereby amended by adding Ruling 1984-1 to the Appendix to subchapter A to read as follows: ....” 49 F.R. 22063.
Addendum No. 2
Some Records of the DOE Concerning the Entitlements Program Since Decontrol Including a Regulation and “Final Decisions.”
Regulation 10 C.F.R. § 211.69 Entitlements Adjustment Mechanism, as amended at 46 F.R. 43654, August 31, 1981; 46 F.R. 63209, December 31, 1981.
“Final Decision” of Economic Regulatory Administration (ERA) “not to issue the January 1981 and Final Entitlements Adjustments lists (‘lists’) thereby ending the Entitlements Program” and “intent to receive additional comments on the most appropriate manner to handle outstanding exception orders. DOE’s tentative decision is not to give effect to the entitlements exception orders, but to consider potential mechanisms which would effectuate those orders under which firms would have received money.” This order includes parts entitled: “I. The History of the Entitlements Program.”; “II. The Decontrol Order and Subsequent Events Affecting the Issuance of Any Further Entitlements Lists.”; “III. Decision.”; “IV. Analysis *1324of Public Comments.”; “V. Treatment of Outstanding Exception Orders — Tentative Decisions.”; “VI. Comments Requested.”; “VII. Public Comment Procedures.”; “VIII. Procedural Matters.” 49 F.R. No. 129, 27410, July 3, 1984.
“Final Decision” of ERA of DOE “concerning the Department’s policy on Entitlements exception orders. If the Office of Hearings and Appeals (OHA) determines that refiners as a class were injured by the overcharge activity, OHA will fund receive orders from that portion of refund money which corresponds to the injury sustained by refiners as a class. Dispense orders will not be effectuated.” 50 F.R. No. 9, 1919, January 14, 1985. This decision includes parts entitled: “I. Introduction”; “II. Decision”; “HI. Discussion of Comments”; and “IV. Procedural Matters.” In part III, among other things, it is stated:
“One commenter questioned the extent to which the Citronelle exception order would be affected by this proceeding. The Citronelle order was an exception relating to the Tertiary Incentive Program and the certification regulations. Issues related to the Citronelle order are being adjudicated before DOE and the Courts.” 50 F.R. at 1925.
. Such inherent judicial duty and power to order restitution in civil actions exists whether the violations were, or were not, temporarily protected by an improperly issued injunction, later vacated by the issuing court or by an appellate court.
. The fact of recognition and endorsement rather than creation, by Congress, of the power and duty to order restitution in § 209 is established by the relevant portion of the legislative history of § 209 reported in 1971 USCCAN at page 2291 where it is stated:
"In addition to injunctive relief, the court may also order restitution of moneys received in violation of any regulation or order. It was not certain that, in these circumstances, there was an inherent equitable power in the court to set things right and order restitution. Restitution has been granted in several cases successfully prosecuted by the Government in Phase I (United States v. Lieb, Civil Action No. SA 71 CA 267, D.C., W.D.Tex., Oct. 13, 1971). This provision makes clear that the court has power to grant restitution.”
. In an unappealed final judgment within the scope of the appellate jurisdiction of this Court, a District Court ordered restitution of unlawful excess charges for football tickets in violation of the Economic Stabilization Act (ESA) of 1970. Oakland Raiders v. Office of Emergency Preparedness (N.D.Cal.1974), 380 F.Supp. 187.
. See additional discussion of Citronelle, supra, in Part I C, below.
. The two cases distinguished in this part are not in the-original draft of the majority opinion but were cited by the author of the majority opinion in a letter submitted after circulation of the original draft. Because they may be added to the original draft, they are included in this part.
. The logical result of the finding of the majority that all members of the public were victims of the overcharges and that each victim is limited to relief in a private action for damage under § 210 is that there are hundreds of millions of claims for relief for damages, a large number of which may be the subject of judicial actions, which would impose great and unbearable burdens on the judiciary and great financial burdens on the victims of the illegal' overcharges and the parties liable to the victims.
. A similar administrative procedural right to due process required of regulatory administrative agencies exercising delegated quasi-judicial functions will be discussed hereinafter.
. 1 Mezines, Stein & Gruff, Administrative Law § 1.01, 1-2 note 2, relying on and citing The Nature of Administrative Law by E. Barrett Pret-tyman, 44 Va.L.Rev. 685 (1958). Judge Pretty-man was Chairman of the President's Conference on Administrative Procedure, 1953-1955. Also see Schwartz, Administrative Law, Second Edition § 5.6.
. The law may require only proof of damages by a preponderance of the evidence "with a reasonable certainty." 22 Am.Jur.2d Damages, § 22, pages 40-42. The degree of certainty required may be less when the uncertainty is caused by the party at fault. 22 Am.Jur.2d Damages, § 23.
. In an Order dated June 17, 1983, the District Court found that "plaintiff and intervenors will ■not be prejudiced by the issuance of an unsecured stay" and ordered the June 7, 1983 judgment stayed "pending final disposition of all appeals in this case and for a period of 30 days following the issuance of a mandate____” R. 31665.
. The denial of intervention and hearing was before rendition of the Memorandum Opinion of March 25, 1983 and judgment of June 7, 1983, on grounds that “Exxon’s wrongdoing renders impossible the tracing of the overcharges to their ultimate victims and the calculations of the precise damages suffered by each.” 561 F.Supp. at 853.
. The District Court expressly and properly found Rule 24(a)(2) to be applicable and satisfied in all particulars in granting intervention on April 29, 1983 before final judgment. R. 31609.
. PECO, claiming to be an end user, has filed Joint Briefs with Geraldine H. Sweeney (Sweeney), RJG Cab Inc. (RJG) and National Freight Inc. (National Freight) alleged to be gasoline and diesel fuel consumers and end users in commercial and non-commercial motor vehicles.
"Accordingly, the escrow fund established pursuant to this court’s order shall of course not be subject to the provisions of subsection (e)(1) of Section 155 which limit the monies the Secretary of Energy may disburse to $200 million — received in settlements, not pursuant to judicial order — and which require a finding that the funds to be disbursed 'are not likely to be required for satisfying claims of potential claimants ...’ and that 'the use [of funds] under this section would be consistent with the remedial order or consent order covering such funds.' Section 155 shall otherwise apply in its entirety under this court’s order as the set of terms and conditions governing DOE's handling of the escrow account established to receive restitution payments from Exxon.
. See the Application for Limited Intervention filed April 29, 1983 (R. Index) in the District Court by the Intervenor-Appellants Gladieux Refinery, Inc. (Gladieux) and U.S. Oil and Refining Company (U.S. Oil) as members of the “Consumers Power Group” in which they stated, among other things, the following:
"1. Each member of the Consumers Power Group was a participant in the Old Oil Entitlements Program prior to the decontrol of crude oil in January 1981.
"2. This Court, in its Memorandum Opinion of March 25, 1983, found defendant, Exxon, liable for price overcharges (including interest) resulting from miscertification of crude oil at its Hawkins Field Unit, in an amount close to $1.5 billion.
"3. If a final determination with respect to this overcharge had been made prior to January 27, 1981, this substantial amount would automatically have been paid to all participants in the Entitlements Program. Those regulations no longer expressly require participants in the Entitlements Program to recertify their reported crude oil receipts to correct for overcharges. Consequently, no automatic mechanism for restitution of these overcharges to Entitlements Program participants now exists.
“4. No party is before this Court to represent the interests of Entitlements Program recipients during the relevant period.
"5. The Consumers Power Group are, therefore, entitled to intervene in this action as a matter of right, pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. In the alternative, this Court should grant the Consumers Power Group permission to intervene pursuant to Rule 24(b).” (R. 38468-9, duplicated at R. 38471-2.)
. For example, in Ashland Oil, Inc. v. DOE (Ashland), (TECA 1985) 760 F.2d 298, this Court affirmed the dismissal of Ashland’s suit under ESA §§ 209 and 210 to overturn or modify a settlement between DOE and Cotton Petroleum Company. This Court stated that:
“There has been no factual inquiry as to who was injured by Cotton’s overcharges. Instead, one of the purposes of the pending Subpart V proceeding is to make precisely that determination.” Ashland, supra, 760 F.2d at 301.
In the Subpart V proceedings the Office of Hearings and Appeals “explicitly proposed to permit such refiners [as Ashland] to submit claims in the refund procedure and demonstrate their injury.” Ashland, supra, 760 F.2d at 300.