Subpart V program. On January 14, 1988, the OHA denied plaintiff's and Tank Lines' Motion for Reconsideration. Defendants do not dispute that plaintiff and Tank Lines conducted two separate businesses and that there was no double counting of gallons of petroleum in their applications. Joint Stipulation at para. 18. The sole reason that defendants gave for denying plaintiff's application for restitution under the Subpart V program was that Tank Lines waived plaintiff's claim to relief by executing the Waiver Form.
Plaintiff is seeking relief based on two alternative theories of recovery. The first is that defendants have acted "unlawfully, arbitrarily and capriciously" in construing the Waiver Forms's language as precluding plaintiff from applying for relief under the Subpart V program. The other theory is that defendants acted "unlawfully, arbitrarily, and capriciously" by concluding that Tank Lines' submission of the Waiver Form was an irrevocable waiver of plaintiff's right to apply for restitution under the Subpart V program because of Tank Lines' attachment of a letter to the Waiver Form qualifying its application. The Court will base its ruling only on plaintiff's latter theory of recovery.
DEFENDANTS ARE EXALTING FORM OVER SUBSTANCE
The most telling paragraph of the Joint Stipulation is paragraph 20. This paragraph provides that "the OHA has dismissed ST applications in which Claim Forms themselves included any alterations or qualifications of the Waiver and Release provision or the Binding Agreement set forth in the ST claim Form." Joint Stipulation at para. 20. In other words, there would have been no waiver and both plaintiff and Tank Lines would have been eligible to apply for restitution for petroleum overcharges under the Subpart V program had Tank Lines qualified its application to the ST program on the actual Waiver Form rather than a letter stapled to it. If ever there was a clear case of exalting form over substance, this is surely it.
Besides exalting form over substance, defendants' argument is inconsistent with the recognized law concerning the execution of releases. "In construing the scope of [a] release, [it is necessary to] give effect to the intent of the parties, as demonstrated by the language of the release itself and the circumstances surrounding its execution." Northern Oil, Co. v. Standard Oil Co. of California, 761 F.2d 699 (Temp. Em. Ct. App.), cert. denied, 474 U.S. 821, 88 L. Ed. 2d 59, 106 S. Ct. 73 (1985) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 342-48, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971)) (emphasis added). Defendants' arguments in support of an effective waiver fail because they do not take into account the circumstances surrounding Tank Lines' execution of the Waiver Form; these circumstances include the letter stapled to the Waiver Form, the uncertainty within the OHA concerning the precise legal of effect of the language of the Waiver Form, and the approaching deadline for the filing of ST program applications. Accordingly, the Court finds that Tank Lines' did not waive plaintiff's right to recovery under the Subpart V program.
Plaintiff and Tank Lines had reason to question the legal effect of the Waiver Form and, therefore, prudently contacted a staff attorney at the OHA. The staff attorney expressed doubt as to the proper construction of the Waiver Form's language and advised Tank Lines to file its application in the alternative. In accordance with this advice, Tank Lines attached a letter to its Waiver Form clearly stating that it only wanted to be considered for the ST program if such consideration would not preclude plaintiff from being considered for the Subpart V program. To adopt defendants' conclusion that the letter stapled to the form did not qualify Tank Lines' waiver and that its waiver could only be qualified if Tank Lines' wrote on the actual form itself exalts from over substance.
Because the OHA decided that Tank Lines' participation in the ST program would preclude plaintiff from participating in the Subpart V program, it should have withdrawn Tank Lines' application from consideration for the ST program. Defendants' failure to withdraw the application was arbitrary and capricious and an abuse of discretion. Accordingly, the Court finds that Tank Lines' did not waive plaintiff's right to apply for relief under the Subpart V program and that plaintiff is entitled to summary judgment as a matter of law. As such, the OHA must now consider plaintiff's application to the Subpart V program on the merits.
The Court will issue an Order of even date herewith memorializing these findings.
In accordance with the Court's Opinion of even date herewith, it is, by the Court, this 8th day of December, 1988,
ORDERED that the plaintiff's motion for summary judgment shall be, and hereby is, granted; and it is
FURTHER ORDERED that the defendants' motion for summary judgment shall be, and hereby is, denied; and it is
FURTHER ORDERED that defendants' decisions and orders holding that Tank Lines waived plaintiff's right to apply for restitution under the Subpart V program shall be, and hereby are, set aside on the ground that they are arbitrary and capricious and an abuse of discretion; and it is
FURTHER ORDERED that defendants shall process plaintiff's application for restitution under the Subpart V program on the merits forthwith; and it is
FURTHER ORDERED that this case stands dismissed from the dockets of this Court.