The opinion of the court was delivered by: JACKSON
This is an action for money damages under § 210 of the Economic Stabilization Act of 1970, 12 U.S.C. § 1904 note (1982) ("ESA"), as incorporated in the Emergency Petroleum Allocation Act of 1973 ("EPAA"), 15 U.S.C. §§ 751-760h (1982). Plaintiff James Bond, t/a Bond Texaco, Inc. ("Bond"), a Georgia service station owner, instituted this suit on March 1, 1983, on behalf of himself and all other similarly situated gasoline retailers, seeking to recover treble or actual damages resulting from alleged overcharges by defendant Texaco, Inc. ("Texaco"), a Delaware corporation, in the sale of domestic crude oil between August 19, 1973, and September 1, 1976, in violation of regulations of the United States Department of Energy and its predecessors (collectively referred to as "DOE") promulgated pursuant to ESA. The case is currently before the Court on plaintiffs' motion for partial summary judgment and on defendant's cross-motion for summary judgment of dismissal on limitations and standing grounds. For the reasons set forth below, defendant's motion will be granted and the complaint dismissed as barred by the statute of limitations the Court finds to be applicable to the cause of action asserted.
The following chronological facts, relevant to defendant's dispositive motion, are not in dispute. Texaco's alleged violations of the so-called "Property Pricing Rule,"
which allegedly began in August, 1973, and continued until September, 1976, apparently went undiscovered until 1978, at which time the Office of Special Counsel for the DOE issued a Notice of Probable Violation ("NOPV"), drawing attention to, inter alia, sales by Texaco of crude oil produced from its Louisiana properties at prices allegedly in excess of the lawful maximum selling price. Subsequently, on May 1, 1979, the DOE presented a "proposed remedial order" to Texaco, based in part upon the 1978 NOPV.
On March 1, 1983, five years after DOE issued its NOPV and nearly four years subsequent to the proposed remedial order, Bond filed this action for "restitution, injunctive and declaratory relief and to recover treble damages or actual damages, as a result of willful or other overcharges by defendant Texaco, Inc. in the sale of domestic crude oil in violation of regulations promulgated by [DOE] and its predecessor agencies under the authority of [ESA] . . . and subsequent enactments of Congress." Complaint para. 1. Plaintiff purports to sue on behalf of himself and "all independent (non-integrated) retailers of motor gasoline who are members of any affiliate organization of the Service Station Dealers of America or its predecessor, the National Congress of Petroleum Retailers, and who purchased gasoline during all or part of the period beginning August 19, 1973, and ending September 1, 1976." Stipulation as to Class Definition and Certification para. 2(a).
Texaco asserts that plaintiff's claims are barred under each of several potentially applicable statutes of limitations. There is no statute of limitations in § 210 of the ESA, but it is now definitively established law that, in the absence of a specific period of limitations provided by Congress for a federal cause of action, federal courts are to apply the most closely analogous state statute of limitations, see Gulf Oil Corp. v. Dyke, 734 F.2d 797, 808 (TECA), cert. denied, 469 U.S. 852, 105 S. Ct. 173, 83 L. Ed. 2d 108 (1984); Johnson Oil Co. v. DOE, 690 F.2d 191, 196 (TECA1982), the only qualification being that the result not be inconsistent with national policy. United Parcel Serv. v. Mitchell, 451 U.S. 56, 60-61, 101 S. Ct. 1559, 1562-1563, 67 L. Ed. 2d 732 (1981) overruled on other grounds, DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) (federal law must be applied if there is no closely analogous state law); Dyke, 734 F.2d at 808-09; Johnson, 690 F.2d at 196. Moreover, it is equally well-settled that, absent a federal limitations period, federal courts generally borrow the law of limitations of the state in which the federal trial court sits. See, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 210 n. 29, 96 S. Ct. 1375, 1389 n. 29, 47 L. Ed. 2d 668 (1976); Laffey v. Northwest Airlines, Inc., 238 U.S. App. D.C. 400, 740 F.2d 1071, 1093-94 (D.C.Cir.1984); Forrestal Village, Inc. v. Graham, 179 U.S. App. D.C. 225, 551 F.2d 411, 413 (D.C.Cir.1977).
The federal cause of action under § 210 of ESA most closely resembles those District of Columbia causes of action addressed by D.C.Code Ann. § 12-301(5), (7) and (8) (1981), limiting, respectively, the time within which to sue upon statutory penalties, contracts, and other miscellaneous causes of action for which a limitations period is not otherwise prescribed.
There is ample authority supporting the proposition that each of these provisions may be considered "analogous" to an action under § 210 seeking treble and/or actual damages stemming from alleged crude oil overcharges. In Ashland Oil Co. v. Union Oil Co., 567 F.2d 984, 991 (TECA1977), cert. denied, 435 U.S. 994, 98 S. Ct. 1644, 56 L. Ed. 2d 83 (1978), TECA affirmed the application of a one-year statute of limitations for forfeitures and penalties, similar to D.C.Code § 12-301(5), as analogous to a § 210 claim for treble damages. See also Hatoff v. Texaco, Inc., No. 76-1471-K, slip op. at 14 (D.Mass. March 28, 1985); Colorado Petroleum Products Co. v. Husky Oil Co., 646 F.2d 555, 558 (TECA1981). Similarly, courts have acknowledged the contractual aspects of a § 210 claim. See Hatoff, slip op. at 13. And a number of courts have resorted to general "catch-all" statutes of limitations similar to D.C.Code § 12-301(8) where no other more specific limitations period appears to obtain. See, e.g., Naph-Sol Refining Co. v. Murphy Oil Corp., 550 F. Supp. 297, 305-06 (W.D.Mich.1982); aff'd in part and rev'd in part on other grounds sub nom. Mobil Oil Corp. v. DOE, 728 F.2d 1477 (TECA1983), cert. denied sub nom. Murphy Oil Corp. v. Naph-Sol Refining Co., 467 U.S. 1255, 104 S. Ct. 3545, 82 L. Ed. 2d 849 (1984); Naph-Sol Refining Co. v. Cities Serv. Oil Co., 506 F. Supp. 77, 82-83 (W.D.Mich.1980).
Texaco's crude oil having been produced from oil fields in Louisiana, plaintiffs maintain that this Court should eschew all of the three apposite District of Columbia limitations periods in favor of Louisiana's ten-year limitation for actions on quasicontract, see La.Civ.Code Ann. art. 3499 (West Supp.1986), citing as authority for doing so TECA's own decision in Dyke. In Dyke, however, TECA "borrowed" the forum state's choice-of-law rules which, by state statute, "borrowed" in turn foreign limitations law in suits between non-residents upon causes of action arising elsewhere. 734 F.2d at 808. Not only does the District of Columbia have no such statute, the District's judicially declared choice-of-law rule is to the contrary. See Steorts v. American Airlines, Inc., 207 U.S. App. D.C. 369, 647 F.2d 194, 196 (D.C.Cir.1981); Hoffa v. Fitzsimmons, 218 U.S. App. D.C. 163, 673 F.2d 1345, 1360 (D.C.Cir.1982). This Court is thus constrained to apply the most appropriate District of Columbia statute of limitations, even under the most liberal of which this action is time-barred unless national policy dictates to the contrary.
Plaintiffs argue, in essence, that TECA based its decision in Johnson and Dyke on its determination of current national energy policy and not on the policy underlying Congress' initial enactment of ESA in 1970. This Court is not positioned, however, to second-guess the wisdom of TECA's determination of which national policy is to govern temporally, a question better left for TECA itself to resolve if and when an appeal is taken from the decision of this Court.
The District of Columbia recognizes the so-called "discovery" rule as to the inception of the limitations period, i.e., the cause of action accrues for limitations purposes not when the injury first occurred, but when the plaintiff discovered, or by the exercise of due diligence should have discovered, the facts giving rise to a claim. See, e.g., Kelton v. District of Columbia, 413 A.2d 919, 921 (D.C.1980); Dawson v. Eli Lilly & Co., 543 F. Supp. 1330, 1333 (D.D.C.1982). Plaintiff Bond, through the exercise of due diligence, could and should have discovered the facts upon which his claim is based at the time DOE issued its NOPV in 1978, and certainly no later than May 1, 1979, the date DOE presented a proposed remedial order to Texaco. Because the plaintiff failed to file his ...