These appeals arise from remedial orders (“ROs”) issued by the Federal Energy Regulatory Commission (“FERC”) and affirmed by the United States District Court for the Southern District of Texas. On November 5, 1986, the Department of Energy (“DOE”) issued a RO finding that Petrade International, Inc. (“Petrade”) had violated certain crude oil resale regulations and ordering restitution of overcharges. Petrade Int’l, Inc., 15 DOE (CCH) ¶ 83,005 (1986).
On September 29, 1988, DOE issued a RO finding that Phoenix Petroleum Co. (“Phoenix”) had violated certain crude oil resale regulations and ordering restitution of overcharges. Phoenix Petroleum Co., 17 DOE (CCH) ¶ 83,019 (1988), modified, 18 DOE (CCH) ¶ 83,009 (1989).
On March 31, 1995, Petrade and Phoenix (collectively “the companies”) appealed concurrently to the Courts of Appeals for the
BACKGROUND
I. Introduction
FERC determined that Petrade had violated 10 C.F.R. § 212.186 (the “layering regulation”) and 10 C.F.R. § 212.183 (the “permissible average markup regulation” or the “PAM regulation”), Petrade,
Effective April 29, 1993, however, TECA was abolished, and all remaining actions within its jurisdiсtion were transferred to this court. Federal Courts Administration Act of 1992 (“FCAA”), Pub.L. No. 102-572, § 102, 106 Stat. 4506, 4506-07 (1992); Texas American Oil Corp. v. Department of Energy,
II. The Statutory and Administrative Framework
Enacted on August 15, 1970, the ESA authorized the President to “issue such orders and regulations as he may dеem appropriate” to “stabilize prices, rents, wages, and salaries.” Pub.L. No. 91-379, § 202, 84 Stat. 799, 799-800 (1970) (codified as amended at 12 U.S.C. §§ 1901-1910 note (1994)). On August 15, 1971, President Nixon exercised his authority under the ESA. In so doing,
On December 22, 1971, the ESA was extended and amended by the Economic Stabilization Act Amendments of 1971. Pub.L. No. 92-210, 85 Stat. 743 (1971). The 1971 ESA amendments added a judicial review provision, ESA section 211.
In 1973, the President’s ESA authority was augmented by adding ESA section 203(a)(3) to allow “in his judgment ... the establishment of priorities of use and ... allocation of supplies of petroleum products including crude oil” and was extended through April 30, 1974. Economic Stabilization Act Amendments of 1973, Pub.L. No. 93-28, 87 Stat. 27 (1973).
The ESA was not further extended, but portions of it were incorporated by reference in the EPAA, Pub.L. No. 93-159, 87 Stat. 627 (1973) (codified as amended, but omitted, at 15 U.S.C. §§ 751 et seq. (1994)). Enacted on November 27, 1973, the EPAA required the President, not later than 15 days after enactment, to promulgate regulations providing for the mandatory allocation of crude oil and other petroleum products in amounts and at prices specified in such regulations. EPAA § 4(a),
[Section] ... 211 of the [ESA] (as in effect on the date of enactment of this Act) shall apply to the regulation promulgated under section 4(a), to any order under this Act, and to any action taken by the President (or his delegate) under this Act, as if such regulation had been promulgated, such order had been issued, or such action had been taken under the [ESA]....
Pursuant to the EPAA/ESA on December 4, 1973, President Nixon issued Executive Order 11748, which established the FEO in the Executive Office of the President. Exec. Order No. 11,748, 3 C.F.R. 822 (1971-1975). The President delegated to the FEO all authority vested in him by the EPAA and by ESA § 203(a)(3) (authority to allocate petroleum products). Id. He also ordered the CLC to delegate to the FEO its ESA authority with respect to energy matters. Id.
The Federal Energy Administration Act of 1974 (“PEA Act”) created the FEA and transferred to it, inter alia, the energy functions of the CLC (as noted above, previously delegated to the FEO). Pub.L. No. 93-275, 88 Stat. 96 (1974) (codified as amended at 15 U.S.C. §§ 761 et seq. (1994)). Pursuant to the FEA Act, on June 25, 1974, President Nixon abolished the FEO, transferred all authority exercised by the FEO to the FEA, and delegated all of the President’s EPAA/ ESA authority to the FEA. Exec. Order No. 11,790, 3 C.F.R. 882 (1971-1975); Cities Serv. Co. v. Federal Energy Admin.,
Judicial review of administrative rulemak-ing of general and national applicability done under this [Act], except that done pursuant to the Emergency Petroleum Allocation Act of 1973, may be obtained only by filing a petition for review in the United States Court of Appeals for the District of Columbia within thirty days from the date of promulgation of any such rule, regulation, or order, and judicial review of administrаtive rulemaking of general, but less than national, applicability done under this [Act], except that done pursuant to the Emergency Petroleum Allocation Act of 1973, may be obtained only by filing a petition for review in the United States Court of Appeals for the appropriate circuit within thirty days from the date of promulgation of any such rule, regulation, or order, the appropriate circuit being defined as the circuit which contains the area or the greater part of the area within which the rule, regulation, or order is to have effect.
15 U.S.C. § 766(c).
In 1977, the FEA was succeeded by DOE. Enacted in August, 1977, the Department of Energy Organization Act (“DOE Act”) established DOE and FERC. Pub.L. No. 95-91, 91 Stat. 565 (1977) (codified at 42 U.S.C. §§ 7101 et seq. (1994)). The DOE Act provided that all functions vested by law in the FEA were to be transferred to and vested in the Secretary of DOE. 42 U.S.C. § 7151. The DOE Act terminated the FEA after all of its functions were transferred. 42 U.S.C. § 7293. Pursuant to the DOE Act, on October 1, 1977, all FEA functions were transferred to DOE. MAPCO Int'l Inc. v. FERC,
As did the ESA, the EPAA, and the FEA Act, the DOE Act contains a judicial review provision. As stated above, ESA section 211 created TECA to review cases and controversies arising under the ESA, and the EPAA incorporated, inter alia, ESA section 211 as its judicial review provision. While the FEA Act provided for judicial review of FEA administrative actions, it explicitly excepted any EPAA/ESA administrative action from the FEA judicial review provision. 15 U.S.C. § 766(c). The DOE Act judicial review provision differentiatеs between judicial review of DOE agency action arising under laws that contain specific judicial review provisions and DOE agency action arising under the DOE Act. DOE Act section 502(a) addresses the first category of agency action, and states in pertinent part as follows:
Judicial review of agency action taken under any law the functions of which are vested by law in, or transferred or delegat*1562 ed to the Secretary, [or] the [Federal Energy Regulatory] Commission ... shall, notwithstanding such vesting, transfer, or delegation, be made in the manner specified in or for such law.
42 U.S.C. § 7192(a). Thus, pursuant to the DOE Act, DOE agency actions undertaken under the EPAA/ESA are subject to judicial review in accordance with the judicial review provision of the EPAA/ESA — section 211 of the ESA
DOE Act section 502(b) addresses thе second category of agency action, and states in pertinent part as follows:
Notwithstanding the amount in controversy, the district courts of the United States shall have exclusive original jurisdiction of all other cases or controversies arising exclusively under this chapter, or under rules, regulations, or orders issued exclusively thereunder....
42 U.S.C. § 7192(b) (emphasis added). DOE Act section 502(b) did not restrict appeals from the district courts. Nor did it specify any special provision for appeals to TECA. Texaco Inc. v. Department of Energy,
While section 502(a) of the DOE Act, 42 U.S.C. § 7192(a), covers, but does not expressly address, EPAA/ESA actions, the next immediate provision, section 503, 42 U.S.C. § 7193, does. Section 503(a) prescribes how DOE may issue a RO to a person believed to have violated any regulation, rule, or order promulgated pursuant to the EPAA. 42 U.S.C. § 7193(а). Section 503(e) governs how FERC reviews ROs issued by DOE and prescribes that
[t]he Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the [DOE] remedial order, or directing other appropriate relief, and such order shall, for the purpose of judicial review, constitute a final agency action, except that enforcement and other judicial review of such action shall be the responsibility of [DOE].
42 U.S.C. § 7193(c). 42 U.S.C. § 7193 does not further address judicial review of EPAA administrative action.
As noted above, on April 29,1993, jurisdiction over EPAA/ESA appeals was transferred from TECA to this court. In effecting that transfer, the FCAA amended the ESA. FCAA section 102(a) struck ESA section 211, subsections (b) through (h), and substituted as subsection (b) the following:
(b) Appeals from orders or judgments entered by a district court of thе United States in cases and controversies arising under this title shall be brought in the United States Court of Appeals for the Federal Circuit if the appeal is from a final decision of the district court or is an interlocutory appeal permitted under section 1292(c) of title 28, United States Code.
FCAA § 102(a),
[N]o order of such agency [exercising authority under the ESA] shall be enjoined or set aside, in whole or in part, unless a final judgment determines that such order is in excess of the agency’s authority, or is based upon findings which are not supported by substantial evidence.
ESA § 211(d)(1),
Thus, under the existing statutory scheme, a person wishing to appeal a FERC decision arising from DOE administrative action -undertaken рursuant to the EPAA/ESA proceeds first in the appropriate United States District Court. Any subsequent appeal is to this court. However, as a result of the amendment of ESA section 211 by section 102(a) of the FCAA, there is no statutory provision in force that states the standard of review to be applied by the courts when judging DOE’s action.
III. TECA’s Jurisdiction
In Texas American, this court summarized TECA’s holdings as to its jurisdiction under the EPAA/ESA and held that TECA precedent and practice on jurisdictional matters shall apply to cases that reach this court as successor to TECA.
The threshold jurisdictional requirements for a TECA appeal were: “(1) resolution of the litigation must have required application or interpretation of the EPAA/ESA or its regulations, and (2) the EPAA/ESA issue must have been adjudicated in the district court.” Id.; Pennzoil Exploration & Prod. Co. v. Lujan,
DISCUSSION
Phoenix and Petrade contend that we lack jurisdiction and that we should transfer the case to the Fifth Circuit. Alternatively, they argue that we at least lack jurisdiction over certain issues and that we should sever and transfer those issues to the Fifth Circuit. The issues the companies say must be severed are (1) whether, in the proceedings before it, FERC improperly shifted the burden of proof to the companies, and (2) whether FERC erred by failing to cоnsider the companies’ arguments that the regulations at issue are invalid. If we have jurisdiction, the companies argue each of these issues presents grounds for setting aside the ROs. In addition, the companies contend that they did not engage in crude oil transactions subject to the EPAA/ESA regulations at issue.
I. Jurisdiction
A.
The July 1995 order of this court denying the motion to transfer to the Fifth Circuit relied upon Christianson v. Colt Indus. Operating Corp.,
Preliminarily, the companies argue that Christianson does not apply to this case, because the Fifth Circuit did not transfer the ease to us, but, rather, dismissed the concurrent appeal pending before it. The contention is without merit. First, Christianson cannot be avoided by a party filing concurrent appeals in two circuit courts, with either appeal subject to dismissal or being held in abeyance, rather than filing an appeal in one circuit court, with that appeal subject to transfer. Christianson controls. Second, the Fifth Circuit’s determination that it has no jurisdiction over the appeal is the law of the case. It may be overturned only upon a holding that it has no plausible basis. Id.; Texas American,
B.
Relying upon two cases, Texaco Inc. v. Department of Energy,
In Texaco, TECA distinguished between appeals that arose solely under the DOE Act, and those that arose under the EPAA and the DOE Act. As to the first, it held that it was without jurisdiction over an appeal that “involve[d] an interpretation of the DOE Act itself and not an application of any other law, the functions of which have been transferred to the DOE.” Texaco,
The companies, nevertheless, argue that the D.C. Circuit in Atlantic Richfield distinguished DOE EPAA/ESA enforcement proceedings that arose under the authority of DOE’s predecessors from proceedings that arose solely under the authority of DOE. At issue in Atlantic Richfield were alleged violations of price control regulations in two cases: the “Affiliate Transfer Case” and the “Property Case.”
By contrast, the validity of the Department’s action in the Property Case is a question arising exclusively under the [DOE] Act, and thus is beyond TECA’s jurisdiction. That case was commenced ... well after the effective date of the [DOE] Act. [The DOE Act] erected an entirely new scheme of enforcement of price-control regulations, entirely independent of the preexisting statutory framework within which the [FEA] functioned under the [ESA] and [EPAA]. The scope of the Secretary’s authority under Section 503 of the [DOE] Act is an issue arising solely under the [DOE] Act; it does not involve the construction, application or effect of either ... the [ESA or the EPAA]. We, not TECA, have jurisdiction to consider and decide ... the Property Case.
Id. at 780 (footnotes omitted). Pointing to the above statement from Atlantic Richfield, the companies note that the case now on appeal before us was commenced after the effective data оf the DOE Act and that the DOE Act “erected an entirely new scheme of price control regulations.” From this they argue that TECA jurisdiction did not extend to DOE Act section 503 enforcement actions, i.e. EPAA/ESA remedial orders initiated by DOE, such as those at issue here, because they came after the DOE Act’s effective date.
Under the companies’ interpretation of Atlantic Richfield, the D.C. Circuit’s jurisdictional holding would be in conflict with TECA’s holding in Texaco. Under Texaco, if the appeal required interpretation of only the DOE Act, TECA had no jurisdiction.
We reject the companies’ argument because it misreads Atlantic Richfield. The first issue in the Property Case was whether DOE Act section 503, 42 U.S.C. § 7193, vested all adjudicatory power over EPAA/ESA remedial orders in FERC, or whether DOE also had adjudicatory powers. Atlantic Richfield,
Even if the companies’ construction of Atlantic Richfield was correct, their jurisdictional argument still would fall short. It would do so because this court is bound by TECA precedent. Texas American,
The companies acknowledge that “[t]bis consolidated appeal involves judicial review of ‘Remedial Orders’ issued as final agency action by [FERC] under the exclusive authority of § 503(c) of the [DOE Act].” Section 503 pertains exclusively to remedial orders addressing “[violations of rules, regulations, or orders promulgated pursuant to [the EPAA].” As mentioned above, FERC found that Petrade violated the layering regulation and the permissible average markup regulation, Petrade,
Phoenix and Petrade argue, nevertheless, that under Texaco, TECA would not have had jurisdiction in this case because this appeal concerns “Remedial Orders ... issued by FERC under the exclusive authority of DOE Act § 503(c).” (emphasis added). The compаnies’ Texaco argument fails because this appeal does not “involve[ ] an interpretation of the DOE Act itself and not an application of any other law.” Texaco,
Alternatively, Phoenix and Petrade argue that if this court has jurisdiction over the appeal, the appeal nevertheless must be bifurcated and certain issues transferred back to the Fifth Circuit. Texas American recognized TECA’s jurisdictional policy and practice of deciding only the EPAA/ESA issues in a case, and leaving to the regional circuit courts all other discrete issues arising in the same transaction or joined to the EPAA/ESA issues.
The companies’ alternative jurisdictional argument also fails. In Pennzoil, TECA held that its jurisdiction extended to issues not arising under the EPAA when a meaningful ruling required consideration of the issues as a whole, the issues in the case were so commingled as to render separate treatment impractical, or the non-EPAA issues were subsidiary, preliminary, or threshold to an EPAA issue.
For the foregoing reasons, we conclude that the Fifth Circuit’s dismissal of this appeal in favor of this court was in accord with the precedent of TECA and this court. Thus, under Christianson, the Fifth Circuit’s decision to dismiss was plausible. The companies’ requests to transfer the appeal back to the Fifth Circuit, in whole or in part, are denied.
II. The Standard of Review
The parties contest the standard of review. In MAPCO, TECA summarized its standard of review as follows:
An appellate court’s examination of the summary judgment determination of the district court is a de novo review of the record and controlling law. However, judicial review of an agency action is statutorily limited by § 211(d)(1) of the [ESA]: The order may be set aside only if it is “in excess of the agency’s authority, or is based upon findings which are not supported by substantial evidence.” The [TECA] recognizes the DOE’s administrative expertise and accord[s] the agency’s determination grеat deference. Therefore, this court must approve the DOE decision if there is a rational basis for it.
The government responds that ESA section 211(d) still provides the standard of review because there are two ESAs: the original ESA, and the ESA as incorporated into the EPAA. Thus, while the original ESA section 211(d) was struck by FCAA section 102(a), the EPAA’s ESA section 211(d) “still exists.”
The companies reply that the FCAA clearly amended the ESA as incorporated in the EPAA, because the ESA as a separate statute expired in 1974. Accordingly, the companies argue, the section 211(d) standard of review has been eliminated from the statutory scheme. The companies do not state what standard of review applies to EPAA/ESA actions, however, as they acknowledge that ESA section 207(a) exempts functions exercised by DOE under the EPAA/ESA from operation of the Administrative Procedure Act.
Thus, apparently due to an oversight, Congress left this court without a statutorily prescribed standard of review over EPAA/ ESA agency actions. The FCAA, however, clearly directs that appeals of such actions shall be brought in this court. Thus, this court must necessarily apply a standard of review. We see no reason to deviate from the standard of review applied by TECA. As stated in MAPCO, this court will set aside an EPAA/ESA agency action only if it is in excess of the agency’s authority, or is based upon findings which are not supported by substantial evidence. We recognize DOE’s administrative expertise, accord the agency’s determination great deference, and must approve the DOE decision if there is a rational basis for it. MAPCO,
III. The Appeal of the ROs
In MAPCO, TECA reviewed the circumstances under which DOE issued the layering and PAM regulations (collectively “the regulations”). The court recounted that in the 1970s there was a large increase in the number of crude oil resellers and a change from the traditional reselling activities of gathering, storing, and transporting crude oil to an almost instantaneous transfer of title from a seller to a buyer. Id. at 238. Transfers where a firm obtained title to crude oil to be delivered in the future and transferred that right to future delivery to another firm were called “in-line transfers.” Id. at 238 n. 5. DOE issued the regulations in order to limit legitimate resellers (i.e. those gathering and moving crude oil) to a “permissible average markup” of their prices each month. No price markup was allowed for crude oil resales in which no legitimate reselling activity occurred. Id. at 238.
Under the layering regulation, “layering” is
the insertion of one or more “resellers” betwеen the producer and refiner and the charging of one or more markups, where the “layering” firm performs no service or other function traditionally and historically associated with the resale of crude oil.
Phoenix,
The price for crude oil charged by a reseller which in a sale performs no service or other function traditionally and historically associated with the resale of crude oil shall not exceed the actual price paid by the reseller for the crude oil....
Phoenix,
A reseller may charge any price in a sale of crude oil, provided that the reseller’s average markup for each mоnth shall not exceed the reseller’s permissible average markup, and provided that a reseller shall not unreasonably discriminate or grant unreasonable preferences in the pricing of crude oil among its purchasers. 42 Fed. Reg. 64856, 64865 (Dec. 29, 1977), reprinted at 10 C.F.R. § 212.183.
MAPCO,
The Phoenix FERC RO found that Phoenix had violated the layering regulation by also reselling crude оil at prices in excess of acquisition costs without providing any tradi
A.
Phoenix and Petrade argue that the regulations apply only to the sale of crude oil, i.e. the sale of a tangiblе good. The in-line transfers at issue, according to the companies, are not subject to the regulations as they do not involve the sale of crude oil, but the sale of intangible contract rights to future deliveries of crude oil. The companies base their argument on “the plain and ordinary meaning of ‘sale of crude oil’ in 10 C.F.R. § 212.181.” The government responds that under the companies’ interpretation of the regulation, all layered in-line transfers would be exempt from the regulations.
We find the companies’ argument unpersuasive. As TECA noted in MAPCO, the proscribed layering transactions involved resellers who never had physical possession of crude oil, but obtained title to crude oil to be delivered in the future and then transferred that right to future delivery to other resellers.
B.
The companies also argue that FERC improperly shifted the burden of proof of violation of the layering regulation when it accepted DOE’s showing that the transactions were in-line transfers. In Phoenix, the FERC ALJ found that DOE delineated a series of in-line transfers executed by Phoenix. Phoenix did not contest the characterization of these transactions as in-line transactions. Phoenix also admitted that it did not own or oрerate any crude oil pipelines or other crude oil transportation facilities. Phoenix,
TECA squarely rejected this burden of proof argument in MAPCO, where the company raised the same arguments that Phoenix and Petrade assert before us. TECA succinctly stated that “MAPCO has raised a red herring by claiming the burden of proof was wrongly shifted. There was no shifting; MAPCO simply failed to defend against the government’s evidence of MAPCO’s overcharge violations.” MAPCO,
Petrade’s PAM regulation burden of proof argument fails for the same reasons the layering regulation burden of proof argument failed. There was no improper shifting of the burden of proof, and Petrade has simply failed to defend against DOE’s evidence. Cf. MAPCO,
C.
The third issue raised by the companies also was decided by MAPCO. The companies assert that FERC erred because it failed to consider their arguments that the layering and PAM regulations were invalid. In Erickson Refining Corp., 41 FERC (CCH) ¶ 61,286 (1987), FERC held that it lacked jurisdiction to decide challenges to the validity of DOE’s crude oil regulations. See MAPCO,
CONCLUSION
We hold that we have jurisdiction over the appeal and each of the issues presented. As far as the merits are concerned, we hold that there were rational bases for the final ROs issued by FERC, and that the ROs were not based upon findings not supported by substantial evidence. Therefore, the decision of the district court affirming the ROs is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED.
Notes
. The enforcement proceeding against Petrade was instituted on December 1, 1983, when the Economic Regulatory Administration (“ERA”) of DOE issued a Proposed Remedial Order ("PRO”). Petrade, 15 DOE at 86,044. The Office of Hearings and Appeals ("OHA”) of DOE affirmed and modified the PRO, id. at 86,061, and thereby issued the DOE RO.
. The enforcement рroceeding against Phoenix was instituted on September 12, 1985, when the ERA issued a PRO. Phoenix, 17 DOE at 86,177. The OHA affirmed and modified the PRO. Id. at 86,197.
. We review the statutory and administrative history for three reasons. First, this appeal presents issues of first impression for this court, because the Federal Circuit only recently assumed jurisdiction over appeals that previously would have been taken to TECA. Second, the companies challenge our jurisdiction, and we must adhere to the "overarching principle that requires us continually to inquire into our jurisdiction because as [a] court[ ] of limited jurisdiction we cannot act without assuring ourselves of the statutory predicate for such action.” Smith v. Orr,
. The President’s authority under the EPAA originally was set to expire on February 28, 1975. Bonray,
. In any event, we have jurisdiction over the burden of proof issue as an EPAA/ESA issue which was adjudicated in the district court. The exclusive jurisdiction of TECA extended to “any issue requiring interpretation or application of the EPAA, ESA, or related regulations.” Texas American,
Moreover, the question of whether certain EPAA/ESA regulations are invalid is one that was adjudicated in the district court and requires interpretation or application of the ESA/EPAA and related regulations. We therefore also have jurisdiction оver this issue.
. ESA section 207(a) provides: "The functions exercised under this title are excluded from the operation of subchapter II of chapter 5, and chapter 7 of title 5, United States Code, except as to the requirements of sections 552, 553, and 555(e) of title 5, United States Code.”
. As stated earlier, the PAM regulation contained a "safe harbor" provision, section 212.183(c), whereby a reseller that exceeded the permissible average markup would nevertheless be deemed to be in compliance with the regulation if, in any month prior to the establishment of the permissible average markup, its prices for each grade and tier of crude oil did not exceed the prices of its nearest comparable reseller, for the same grade and tier for oil in that month.