Van Vranken v. Atlantic Richfield Co.

ON PETITION FOR REHEARING.

RONEY, Circuit Judge.

ORDER

This case involves a judgment for overcharges under section 210(b) of the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 note (1976), as incorporated in the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq. (1982). The appeal was duly filed with the Temporary Emergency Court of Appeals (“TECA”) and transferred to the Court of Appeals for the Federal Circuit in accordance with the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506 (1992). This is one of the first TECA eases to be presented to this court under the Federal Courts Administration Act.

On September 30, 1993, this Court affirmed without opinion a district court judgment for the plaintiffs in the amount of 63 million dollars 11 F.3d 1069. Approximately two-thirds of that judgment was for prejudgment interest.

Defendant’s Petition for Rehearing challenges the action of this Court on the ground that the district court departed from TECA precedent and this court’s affirmance of that decision “effectively overrules that precedent.” Defendant seeks a pronouncement as to whether this Court will follow the precedents of TECA. Contrary to the argument of defendant, the district court’s decision, and ours, is consistent with TECA precedent. As the dissent’s review of the cases demonstrates, there is no TECA rule generally denying prejudgment interest under § 210. The cases turn on other factors, such as whether the damages are considered “certain.” The absence of a case the facts of which might have led TECA to grant prejudgment interest is not the same as a precedent denying it. TECA itself recognized this. See, e.g., Kern Oil & Refining v. Tenneco Oil Co., 868 F.2d 1279 (Temp.Emer.Ct.App.1989).

Plaintiffs are a class of individuals and entities who purchased refined petroleum products, mainly gasoline, from defendant Atlantic Richfield Company (“ARCO”) during the period from May 1, 1976 through January 28, 1981. They were awarded a judgment for 22.8 million dollars because ARCO overcharged them, specifically by overstating costs with respect to three import fees and duties claims: (1) customs duty offsets, (2) customs duty drawbacks/supplemental fee refunds, and (3) fee exempt licenses.

The district court awarded the plaintiffs prejudgment interest. ARCO alleges that the amount of the overcharges was “not certain.” Uncertainty in the amount of a claim is a ground for denying prejudgment interest. Eastern Air Lines, Inc. v. Atlantic Richfield Co., 712 F.2d 1402, 1410 (Temp.Emer.Ct.App.), cert. denied, 464 U.S. 915, 104 S.Ct. 278, 78 L.Ed.2d 258 (1983); Gulf Oil Co. v. Dyke, 734 F.2d 797, 806 (Temp.Emer.Ct.App.1983), cert. denied, 469 U.S. 852, 105 S.Ct. 173, 83 L.Ed.2d 108 (1984). And prejudgment interest sometimes turns on the willfulness of the defendant. See Zahir v. Shell Oil Co., 718 F.2d 1567, 1572-73 (Temp.Emer.Ct.App.1983).

The district court’s decision was properly affirmed. The overcharge was subject to exact mathematical computation based on objective evidence, rendering the amount claimed to be due certain, even though the parties differed over which factors were to be used in the computation. Further, a jury found that plaintiffs had proved the willfulness of ARCO’s violation of the price regulations by “clear and convincing” evidence. There was sufficient evidence to support the finding of willfullness, a point unchallenged on appeal. We need not consider whether a different result would obtain if the amount claimed were uncertain or if the violation were not willful.

ARCO also asserted legal error in the district court’s handling of cost banks. Over the course of a dozen years of pretrial proceedings, including appeals on various issues from the magistrate to the district judge, and from the district court to the Temporary Emergency Court of Appeals, the district court granted ARCO’s request to limit discovery of pricing information, which included information relevant to the cost recovery numbers that constituted ARCO’s cost banks. The district court accepted ARCO’s representations that trial of the issues of interaffiliate transfer costs, import licenses, fees, and duties, would suffice to resolve the overcharge issues. Consideration of all pricing information, ARCO argued, was unnecessary.

ARCO and the amicus American Petroleum Institute now insist that evidence concerning the amount of the cost banks was incorrectly excluded and is essential to'Van Vranken’s case. By motion to amend its answer, ARCO made this argument to the trial court. ARCO sought not to put the amount of its banked fuel costs into contention, but to require that the amount of the cost banks as reported by ARCO to the Department of Energy be accepted without challenge as to how they were calculated. We discern no abuse of discretion in the district court’s denial of ARCO’s motion to amend its answer on ARCO’s terms.

The court having considered the submissions of the parties,

IT IS ORDERED THAT:

(1) the decision of the district court is AFFIRMED in all respects, and

(2) the Petition for Rehearing is DENIED.

ORDER

A combined petition for rehearing and suggestion for rehearing in banc having been filed by the APPELLANT, and an AMICUS CURIAE brief having been filed in support of the appellant by American Petroleum Institute, and a response thereto having been invited by the court and filed by the CROSS-APPELLANT, and the petition for rehearing having been referred to and acted upon by the panel that heard the appeal, and, thereafter, the suggestion for rehearing in banc, the amicus curiae brief, and the response having been referred to the judges authorized to request a poll whether to rehear the appeal in banc, and a poll having been requested, taken, and failed, it is

ORDERED that the suggestion for rehearing in banc be, and the same hereby is, DECLINED.

NIES, Circuit Judge, would rehear the appeal in banc.