Consolidated Edison Co. of New York, Inc. v. Ashcroft

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2002 Decided April 23, 2002

No. 01-5107

Consolidated Edison Company of New York, Inc., et al.,
Appellants

v.

John D. Ashcroft,
Attorney General of the United States and
Ruth A. Harvey, Attorney, Civil Division,
Department of State,
Appellees

Appeal from the United States District Court
for the District of Columbia
(No. 00cv01962)

Philip P. Kalodner argued the cause and filed the briefs
for appellant.

Bruce G. Forrest, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were

Roscoe C. Howard, Jr., U.S. Attorney, and William Kanter,
Deputy Director, U.S. Department of Justice.

Before: Sentelle, Henderson and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Following decades of oil overcharge
litigation under the Economic Stabilization Act of 1970, the
United States Attorney General recovered a multi-million
dollar judgment on behalf of thirty-seven utilities, including
the three appellants. Awarded by the United States District
Court for the Southern District of Alabama, that judgment
included an $800,000 surcharge payable to the Attorney Gen-
eral pursuant to the Federal Debt Collection Procedures Act.
Appellants then filed suit in the United States District Court
for the District of Columbia seeking a writ of mandamus that
would direct the Attorney General to pay the $800,000 to
them. Concluding that Appellants failed to show that the
Attorney General's retention of the surcharge amounted to a
violation of a clear ministerial duty that would warrant man-
damus, the district court denied the writ. We agree.

I.

The now-defunct Economic Stabilization Act of 1970 (ESA),
as amended, 12 U.S.C. s 1904 note, gave the President broad
authority to "issue such orders and regulations as he may
deem appropriate to stabilize prices." Pub. L. 91-379, s 202,
84 Stat. 799, 799 (1970) (expired 1974). Acting pursuant to
delegated ESA authority, see id. s 203, 84 Stat. at 800, the
Secretary of Energy created price controls for crude oil.
Under the ESA, the Attorney General (as well as private
parties) has authority to seek restitution for any "sale of
goods or services exceed[ing] the applicable ceiling under
regulations or orders issued under this title." Economic
Stabilization Act Amendments of 1971, Pub. L. 91-379,
ss 209-10, 85 Stat. 743, 748 (1971).

In 1977, the Attorney General intervened in litigation pend-
ing in the United States District Court for the Southern
District of Alabama to obtain ESA restitution on behalf of

thirty-seven utilities that had purchased crude oil at prices
exceeding Department of Energy limits. Among the thirty-
seven utilities were the three appellants: Consolidated Edi-
son, Long Island Lighting Company, and Niagara Mohawk
Power Corporation, to whom we will refer collectively
throughout this opinion as "Edison." Eleven years of litiga-
tion later, the Alabama district court awarded a judgment of
approximately $30 million in the Attorney General's favor.
Following another decade of litigation caused by the sellers'
efforts to escape payment, the court entered a final judgment
of $15.75 million. Pursuant to court order, the funds were
deposited into a Department of Energy escrow account for
distribution to the thirty-seven judgment beneficiaries on a
pro rata basis.

Central to this case, the Alabama judgment included an
$800,000 surcharge payable to the Attorney General pursuant
to the Federal Debt Collection Procedures Act. That Act
provides that the U.S. government "is entitled to recover a
10% surcharge of the amount of the recovered debt in connec-
tion with recovery of the debt." 28 U.S.C. s 3011(a).

After the Alabama district court denied Edison's motion to
intervene to challenge the surcharge, Edison filed suit in the
United States District Court for the District of Columbia
seeking a writ of mandamus that would direct the Attorney
General to remit the $800,000 surcharge to the Department of
Energy for transmission to the judgment beneficiaries. Ac-
cording to Edison, nothing in the Debt Collection Act autho-
rized the surcharge. Finding that "the decision of the Justice
Department to pursue recovery of a surcharge ... is not a
ministerial act[,] ... and it clearly is not so free from doubt
that the Government didn't have the authority and the discre-
tion to seek to invoke [the Debt Collection Act]," Tr. Mots.
Hr'g of 1/30/01 at 6, the district court dismissed the com-
plaint. Edison filed simultaneous appeals in this court and
the United States Court of Appeals for the Federal Circuit,

and successfully moved to stay the latter appeal pending the
resolution of this one.

II.

Before addressing the mandamus issue, we must consider
the Attorney General's arguments that jurisdiction lies exclu-
sively in the Federal Circuit and that, in any event, Edison
lacks Article III standing. We consider each argument in
turn.

The Attorney General's first argument rests on ESA sec-
tion 211, which placed exclusive jurisdiction over "cases or
controversies arising under" that statute in a specialized
federal court, the Temporary Emergency Court of Appeals.
Economic Stabilization Act Amendments of 1971, Pub. L.
92-210, s 211(a), 85 Stat. 743, 748 (1971). That court has
since been dissolved and its jurisdiction transferred to the
Federal Circuit. See Federal Courts Administration Act of
1992, Pub. L. 102-572, s 102(a), 106 Stat. 4506, 4506 (1992)
(abolishing the Temporary Emergency Court of Appeals); id.
at s 102(b), 106 Stat. at 4506 (codified as amended at 28
U.S.C. s 1295(a)(11)) (establishing exclusive Federal Circuit
jurisdiction over ESA issues). The Federal Circuit construes
its ESA jurisdiction narrowly. In Texas American Oil Co. v.
United States Department of Energy, the Federal Circuit
held that it possesses only " 'issue' jurisdiction, not 'case' or
'arising under' jurisdiction" over ESA issues, emphasizing
that such a holding "steadfastly implement[s] the jurisdiction-
al policy and practice of deciding only the ESA issues in a
case, leaving to the regional circuit courts all other issues
arising in the same transaction or joined to [the] ESA issues."
44 F.3d 1557, 1563 (Fed. Cir. 1995). In other words, the
Federal Circuit will only "decide certain questions that do not
aris[e] independently of the substantive [ESA] claim or cause
of action and have no life apart from that substantive claim."
Stertz v. Gulf Oil Corp., 783 F.2d 1064, 1069 (Temp. Emer.
Ct. App. 1986) (alterations in original) (internal quotation
marks and citations omitted). The Federal Circuit uses a
two-part test for determining whether an issue falls within its
exclusive ESA jurisdiction. First, resolution of the litigation
must require application or interpretation of the ESA or
regulations issued thereunder; and second, the ESA issue

must have been adjudicated in the district court. Tex. Am.,
44 F.3d at 1563.

The issue raised here fails the first element of the Texas
American test. Although the litigation leading to this appeal
has its origins in the ESA, the substantive question under
that statute--whether Edison was entitled to restitution for
alleged oil overcharges--was long ago resolved by the Ala-
bama district court. Moreover, the issue Edison now rais-
es--whether the Debt Collection Act authorizes the Attorney
General's $800,000 surcharge--requires neither interpretation
nor application of the ESA. Asked at oral argument to
identify any ESA issues we must decide to resolve this
appeal, the Attorney General's counsel candidly conceded
there are none. Because the Debt Collection Act question
has "life apart" from the substantive ESA cause of action that
gave rise to this litigation decades ago, we have jurisdiction to
consider it.

This result comports with decisions of both the Supreme
Court and one of our sister circuits holding that issues
relating to enforcement of an ESA judgment fall outside the
Federal Circuit's exclusive jurisdiction if they require neither
interpretation nor application of the ESA. In Bray v. United
States, the Supreme Court held that the Temporary Emer-
gency Court of Appeals' exclusive jurisdiction did not encom-
pass an appeal of a contempt proceeding growing out of a
party's refusal to produce documents subpoenaed in connec-
tion with a possible ESA violation. 423 U.S. 73, 73-74 (1975).
"Although the contempt charge related to an order entered in
connection with an investigation of [ESA] violations," the
Court explained, "it was not dependent on the existence of
such violations," and thus sufficiently separate from the sub-
stantive ESA issues that the Tenth Circuit should have
exercised jurisdiction. Id. at 75-76. Similarly, in Citronelle-
Mobile Gathering Inc. v. Watkins, the Eleventh Circuit re-
viewed a challenge to a district court's appointment of a
receiver whose sole purpose was to enforce an ESA judg-
ment. 934 F.2d 1180, 1184-85 (1991). The court pointed out
that because "appellants' liability for ESA ... violations has
already been fully litigated, ... [t]here remains no question

of liability based on those ... violations." Id. at 1185. It
went on to hold that because "the issues on this appeal
concern the post-judgment enforcement of the ... decision,"
the challenge to the appointment was not integrally related to
the ESA, thus not within the Federal Circuit's exclusive
jurisdiction. Id. Here too, determining whether the Attor-
ney General may retain the Debt Collection Act surcharge
does not require that we review--or even question--the
Alabama district court's conclusion that the ESA entitles
Edison to restitution for the oil overcharges.

Insisting that this case nevertheless belongs in the Federal
Circuit, the Attorney General claims that the district court
here considered "an important issue requiring the interpreta-
tion of the ... ESA," namely, whether "plaintiffs failed to
state a claim under the Economic Stabilization Act." Appel-
lee's Br. at 17, 18. It is true that the district court ruled that
because "there is no private right of action under the Eco-
nomic Stabilization Act Amendments of 1971[,] ... there is no
standing," and therefore extensively considered the ESA's
provisions for public and private rights of action as well as
related Federal Circuit decisions. Tr. Mots. Hr'g of 1/30/01
at 6, 6-11. The district court's ESA discussion, however, has
no effect on our jurisdiction. As the Federal Circuit has
repeatedly emphasized, its ESA jurisdiction is issue-specific,
and the issue we must resolve in this appeal does not require
in that Edison state a cause of action under the ESA.
Instead, because Edison sought a writ of mandamus, whether
it stated a cause of action depends on the All Writs Act, which
authorizes federal courts to "issue all writs necessary or
appropriate in aid of their respective jurisdictions and agree-
able to the usages and principles of law." 28 U.S.C. s 1651.

Next, the Attorney General contends that Edison seeks to
"split" its appeal, and that the company intends to follow up
any adverse result on the merits by briefing the same issues
again in its pending appeal in the Federal Circuit. Appellee's
Br. at 18-19. A bifurcated appeals process, however, seems
precisely what the Federal Circuit's issue-based approach
contemplates: "[A]ny issue requiring interpretation or appli-

cations of the ... ESA[ ] or related regulations has been held
to be within the exclusive purview of the [Federal Circuit],
and separated from the appeal of any other substantive
issue." Tex. Am., 44 F.3d at 1563. In any event, no duplica-
tive merits determinations could occur, for if we have jurisdic-
tion over the Debt Collection Act issue, that issue would
necessarily fall outside the Federal Circuit's exclusive ESA
jurisdiction.

Finally, the Attorney General cites Texas American for the
proposition that "[w]hen the [Federal Circuit] has taken
jurisdiction [of ESA issues], the court has occasionally been
required to consider and apply laws in interaction with the
ESA." Id. at 1564. But that proposition--where an issue
requires interpretation of both the ESA and another statute,
the Federal Circuit can exercise jurisdiction over the non-
ESA issue--sheds no light on which questions this circuit
may entertain. Besides, because the Debt Collection Act
issue does not require interpretation of the ESA, see supra at
5, no such "interaction" could take place.

As to Edison's standing, the Attorney General does not
articulate his claim in terms of the familiar constitutional
standard: a "concrete and particularized" "injury-in-fact" that
is "fairly ... trace[able]" to the conduct of the defendant and
may be "redressed by a favorable decision." Lujan v. De-
fenders of Wildlife, 504 U.S. 555, 560-61 (1992) (alterations in
original). Instead, he argues, the relief Edison seeks re-
quires "this court [to] attribute a desire on the part of the
Department of Energy to obtain, via judicial fiat, an order
running against federal officials from one Executive Branch
agency to another." Appellee's Br. at 20. We assume that
the Attorney General means that Edison's claim is not re-
dressable--that is, requiring him to remit the surcharge to
the Energy Department would fail to redress Edison's
claimed injury because it would fail to place the $800,000 in
the judgment beneficiaries' corporate hands. This claim,
however, ignores the Alabama district court's express re-
quirement that "[w]henever ... the amount held by DOE in
escrow for this case ... exceeds $1,000,000, but in any event
no less often than once every two years, DOE shall make

further pro rata payments to the claimants." Order of the
United States District Court of the Southern District for
Alabama at 2, Citronelle-Mobile Gathering, Inc. v. Watkins
(May 14, 1992) (No. Civ. 77-101-A). Thus, had the district
court here issued the writ and directed the Attorney General
to deposit $800,000 in the Department of Energy escrow
account, the Alabama district court's order would have re-
quired Energy to disburse those funds directly to Edison.
Accordingly, the presence of the Department of Energy as an
intermediary between Edison and the Attorney General does
not deprive Edison of standing.

III.

"[A] 'drastic' remedy, 'to be invoked only in extraordinary
situations,' " In re Papandreou, 139 F.3d 247, 249 (D.C. Cir.
1998) (quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 402
(1976)), mandamus is inappropriate except where a public
official has violated a "ministerial" duty. Such a duty must
be "so plainly prescribed as to be free from doubt and
equivalent to a positive command.... [W]here the duty is
not thus plainly prescribed, but depends on a statute or
statutes the construction or application of which is not free
from doubt, it is regarded as involving the character of
judgment or discretion which cannot be controlled by manda-
mus." Wilbur v. United States, 281 U.S. 206, 218-19 (1929).

We agree with the district court that Edison's showing falls
far short of this high standard. To begin with, the Attorney
General obtained the surcharge and now retains it pursuant
to a federal court order. He is thus complying with--not
violating--his legal obligations. Resisting this obvious propo-
sition, Edison argues that the Attorney General's possession
of the surcharge is so plainly wrong that it amounts to a
violation of a ministerial duty. In our view, however, this
argument amounts to a completely inappropriate collateral
attack on the Alabama court's judgment. See Roche v.
Evaporated Milk Ass'n, 319 U.S. 21, 26 (1946) (holding that
mandamus is only available to "confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it to

exercise its authority when it is its duty to do so"). Although
Edison never formally asked the district court here to manda-
mus the Alabama district court, the relief it seeks amounts to
exactly the same thing, for however phrased, Edison's com-
plaint challenges the Alabama district court's interpretation
of the Debt Collection Act.

Even if we were free to consider Edison's arguments, they
would provide no basis for mandamus. Edison first claims
that "this is simply a case in which a lawyer is withholding
funds improperly from his client," Appellants' Opening Br. at
32, thus violating a duty that is "ministerial, plainly defined,
peremptory, and owed to the plaintiff," id. (quoting Public
Citizen v. Kantor, 864 F. Supp. 208, 212 (D.D.C. 1994)). The
cases Edison cites, though, all involve attorneys refusing to
pay funds courts had awarded to clients. Here, by contrast,
the Alabama district court ordered the $800,000 paid to the
Attorney General. See Order of the United States District
Court for the Southern District of Alabama at 2, Citronelle-
Mobile Gathering, Inc. v. PeNa (Sept. 23, 1997) (No. Civ.
77-101-A).

Equally without merit is Edison's argument that the Debt
Collection Act so plainly does not authorize the surcharge
that the Attorney General wrongly possesses the $800,000
and should therefore be required to remit it to the judgment
beneficiaries. According to Edison, the "essence of the au-
thorized 'surcharge' is that it be imposed on the debtor as an
addition to the judgment debt," and "the withholding by the
Attorney General of funds due clients from the partially
collected judgment is a 'surcharge' not upon the debtor, but
upon the Judgment Beneficiaries." Appellants' Opening Br.
at 24. We agree with the district court that this argument is
"somewhat of a stretch." Tr. Mots. Hr'g of 1/30/01 at 14.
While the term "surcharge" might refer to an amount added
on to--not subtracted from--the judgment, the Debt Collec-
tion Act's language by no means unambiguously requires this
conclusion, and Edison cites no authority, other than Web-
ster's Dictionary, to support its interpretation. The dictio-
nary, however, provides no basis for concluding that the
Attorney General of the United States violated a duty "so

plainly prescribed as to be free from doubt and equivalent to
a positive command."

The district court's dismissal of the complaint is affirmed.

So ordered.