the oral arguments of counsel, the court finds that plaintiffs are being required to pay certain import fees for licenses to import crude oil and petroleum products pursuant to Presidential Proclamation, that the United States Court of Appeals for the District of Columbia Circuit has found the President lacked authority under 19 U.S.C. 1862(b) (1970) to impose said import fees, that the defendants have filed a petition for certiorari to secure review of that decision by the United States Supreme Court, that a stay of the mandate of the United States Court of Appeals for the District of Columbia Circuit in that case has been extended by defendants' petition for a writ of certiorari pursuant to Rule 41(b) of the Federal Rules of Appellate Procedure, that as of the date of this order there has been no action by the United States Supreme Court upon the petition for a writ of certiorari, that defendants continue to assert the right to collect such import fees, that if such fees are collected by defendants the right of plaintiffs to recover such fees in the event their imposition and collection is held to be invalid by the United States Supreme Court is doubtful without any action by this court, that the sums involved are very large and would impose great and irreparable harm upon plaintiffs if not recovered in such event, that defendants will suffer almost no harm from conditional payment of the funds in question or the accumulation of interest thereon, that the entry of this order is in the public interest in that it protects certain interests claimed by the plaintiffs while also protecting the interests of the government in maintaining the orderly operation of the license fee program during the pendency of Supreme Court consideration and review, and that, in light of the small harm that defendants may suffer from the issuance of this order, and the Court of Appeals' decision concerning the President's lack of authority to impose the fees in question, plaintiffs have made an adequate showing of their likelihood of success on the merits.
Accordingly, the court being fully advised in the premises and for the reasons set forth in the court's Memorandum of Findings of Fact and Conclusions of Law filed with this order, it is, by the court this 16th day of October, 1975,
(1) That plaintiffs shall pay the oil import license fees on crude oil and petroleum products imposed pursuant to Presidential Proclamation No. 3279, as amended, pursuant to regulations promulgated by defendants under said Proclamation, and that said fees paid to defendants by plaintiffs and other similarly situated oil importers shall be paid into the United States Treasury by defendants upon the condition that these monies shall be held in a special account which shall be repayable in full to plaintiffs, other similarly situated oil importers who have made such payments, or such other persons, parties, or entities, if any, as may be subsequently adjudged to be entitled thereto, and such funds shall be held by the United States Treasury in such manner as to be available for such repayment upon order or adjudication that any such party is entitled to such repayment;
(2) That such funds paid into the United States Treasury on account of oil import fees shall be held and invested by the United States Treasury in United States government notes of approximately 90 days duration, or other similar interest-bearing government obligations, and that the interest on such funds shall be accrued in the special account and held in such manner as to be available for payment to plaintiffs, other oil importers for whom such funds are held, or any other party upon adjudication that any such parties are entitled to such payment;
(3) That the court retains jurisdiction of these actions for the enforcement, interpretation, modification or termination of this order, and for such other or further proceedings or order as the court may deem necessary or appropriate, in the light of any developments or changes in circumstances that may occur hereafter;
(4) That further proceedings herein, including the filing of answers, or other responses, to the complaints herein, discovery proceedings by any of the parties, and all pleadings or motions other than those specified in and permitted by this order, shall be held in abeyance until further order of this court;
(5) That, in light of the security afforded the defendants by the payment of import fees into a special account in the United States Treasury as provided herein, plaintiffs are not required to post bonds pursuant to Rule 65, Federal Rules of Civil Procedure, except as required in 10 C.F.R. 213.35 to secure payment of import fees incurred but not yet paid.
Thomas A. Flannery / UNITED STATES DISTRICT JUDGE
10-16-75 / Date