or other entity however organized". Id. (Emphasis added).

While it is true that § 209 of the ESA, incorporated in § 5(a)(1) of the EPAA, 15 U.S.C. §754(a)(1), expressly grants the district courts the authority to "order restitution of moneys received" by "any individual or organization" which violates the Act, the section does not explicitly preclude administrative agencies from enjoying this same power. The cases cited by DOE for the proposition that restitution is an equitable remedy are helpful with respect to determining matters of personal liability. These cases, do not, however, squarely address the principal issue of whether DOE had the authority to issue, and consequently whether this Commission has the authority to review, a remedial order finding individuals personally liable for the actions of corporate entities. Bonray more directly addresses this question.

The district court in Bonray, which was affirmed in full by TECA, held that "nothing in... § 209... indicates that the agency charged with carrying out the provisions of the ESA could not order refund of overcharges". Bonray, 472 F.Supp at 903, aff'd per curiam, 601 F.2d 1191 (TECA 1979). The court went on to hold that:

"Since an agency order to refund overcharges is neither specifically authorized nor forbidden in the ESA and the EPAA, the court must look beyond the statutes to determine whether the FEA acted within its authority in issuing a Remedial Order compelling refund of overcharges."

Id.

The district court, after providing a detailed legislative history of the ESA and the EPAA, concluded that the FEA possessed the requisite statutory authority to order such refund overcharges.

Bonray evidences that DOE, its precursor, FEA, and the Commission as a reviewing body, have the statutory authority to order the restitution of corporate overcharges. Bonray, however, involved only corporate entities and does not specifically address the question of whether corporate officers can be held personally liable by an administrative tribunal for the restitution of overcharges caused by their corporations. While the cases cited by DOE with respect to personal liability, supra at 8-9, provide relevant guidance as noted, the presiding judge finds that the statutory language in § 503 of the DOEOA offers the most persuasive evidence with respect to this issue. § 503 states that DOE remedial orders can be issued to

5 See Sutton, 795 F.2d at 1060; Citronelle-Mobile Gathering Inc. v. O'Leary, 499 F.Supp 871,881 (S.D. Ala.1980) aff'd as modified, Citronelle I, 669 F.2d 717.

individuals, supra at 9-10. It, therefore, logically follows that the holding in Bonray is similarly applicable to corporate officers.

It is concluded that § 209 of ESA and § 503 of DOEOA, as reinforced by the holding in Bonray, provide DOE with the necessary statutory and precendential authority to find individual corporate officers personally liable for the overcharges of their corporate entities.

The presiding judge is aware that a different conclusion involving the personal liability of corporate officers was reached in the recent Bayport Decision and Proposed Order relied upon by Petitioners. The Bayport decision clearly viewed DOE's "central figure in tortious conduct" theory as a common law tort action. See supra at 6. On the other hand, the statutory and precedential arguments advanced by DOE in this case make it apparent that the challenged enforcement action is not rooted in nor predicted upon a common law theory. Rather, DOE's "theory" is simply a legal fiction created by DOE from language found in pertinent case law, concerning personal liability of corporate shareholders and officers to better implement its statutory authority to order restitution. It may be that DOE might have been wiser to eschew any reference to "central figure" or "tortious conduct" in connection with charging corporate individuals with regulatory violations, so as to avoid any confusion such as arises here. Nevertheless, a misnomer is not sufficient justification to invalidate DOE's authority to order restitution. As DOE put it, "it is only in a shorthand, nontechnical sense that DOE's case against an individual is sometimes referred to in condensed language as based on 'central figure' liability." DOE Brief in Support of RO at 40. Accordingly, it is determined on this record that DOE's empowerment to seek restitution here is based on statutory authority, and statutory authority only.

The presiding judge also finds that Petitioners are incorrect in their assertions that this proceeding involves private rights. Bulzan, Citronelle I and University of Southern California v. Cost of Living Commission, 472 F.2d 1065 (1972), conclusively hold that actions for restitution of overcharges for violations of the EPAA involve public, not private rights. Pelstar Energy, Inc., 52 FERC ¶ 63,006 (1990), echoes this holding. Pel-Star, a case involving a principal shareholder who was found personally liable for his Corporation's overcharges, found that "restitutions for violations of the federal

regulatory scheme. . . is a matter of public rights." Pel-Star, 52 FERC at p. 65,015.

Based on the above findings that (1) DOE possesses the necessary authority to order corporate officers to make restitution of corporate overcharges and (2) this proceeding does not involve private rights, the question of whether the Commission has authority to adjudicate common law theories, and Petitioners' argument concerning the right to a jury trial, are moot and need not be addressed.

2. The Extent of Meduna's Personal Liability

In their Reply Brief, Petitioners raise a new argument concerning Meduna's personal liability. According to Petitioners, "assuming arguendo" that the Commission has jurisdiction to impose personal liability under the "central figure in tortious conduct" theory, this theory nevertheless does not apply to Meduna. Petitioners' Reply Brief at 18,19. Petitioners maintain that Meduna fails to meet the definition of a "central figure".6 Petitioners assert that Meduna served in a "subordinate role" at Merit, performing only "nondiscretionary support functions." Id. at 21; see also Proposed Conclusions of Law at 2-4. Consequently, Petitioners argue that Meduna was never a "central figure" as defined by the cases cited in the PRO. Petitioners cite several cases for the proposition that a person must be found to have actively participated not merely benefited

from a company's unlawful activity in order to be deemed a "central figure". See generally Reply Brief at 22-29. This position was reasserted at oral argument. Tr. at 34-49.

At oral argument, Petitioners also urge that PetroTech Trading Co., 13 DOE 83,032 (1985), a case cited in the RO, is distinguishable from the case at bar. The individual Petitioner in PetroTech, it is emphasized, actively participated in an illegal scheme to miscertify crude oil. Tr. at 38. By contrast, Petitioners argue, Meduna was never personally involved in the alleged illegal trading which is the subject of this proceeding. Id. at 35; see also Proposed Conclusions of Law at 3. It is further claimed that under the two-part test for personal liability enunciated in the RO, the amount of compensation that Meduna received from Merit is immaterial if DOE cannot show that he personally participated in Merit's

6 Petitioners concede that Battle does meet the criteria for being a central figure. Petitioners continue to assert, however, that the Commission lacks the proper authority to impose personal liability under the central figure in tortious conduct theory. Id. at 18.

7 DOE filed a Motion on October 11, 1990, to strike, pursuant to Rule 907(a), that portion of Petitioners' Proposed Conclusions of Law (at 3-4) address

transactions. Tr. at 34, 39. Finally, Petitioners question why DOE ordered Meduna to make restitution when his share of the compensation, $2 million, is much smaller than that of W.S. Dumas, a principal in Merit. Petitioners note that DOE did not seek restitution from either Dumas or two of the Companies' former traders, Jerry D. Robison and Dennis Healy, which allegedly results in improper discrimination against, and irrational and disparate treatment to, Meduna. Id. at 41-42; see also Proposed Conclusions of Law at 3-4.

DOE responds by stating that the first part of the two-part test is met because evidence of Meduna's personal participation in the wrongdoings of Merit can be found in the undisputed positions which he held at the Company. At various times during the audit period, it is pointed out, Meduna served as General Manager, Director, Executive Vice President and Secretary of Merit. Tr. at 63. DOE also notes that Meduna owned 6 percent of Merit's stock throughout the period in question. Id. DOE alleges that Meduna's commissions, which grew from 3.2 to 5 percent of the Company's gross profits, demonstrate Meduna's undisputed involvement and prominence in Merit. Id. at 64, 65. DOE also emphasizes that although Petitioners claim that Meduna performed only administrative duties, he signed 78 of 82 sales contracts covering the challenged transactions during March and April 1980. Id. at 66.

DOE further maintains that PetroTech actually provides support for its position. DOE quotes PetroTech as holding that, even if the corporate officer in question held a position with little influence, he nevertheless participated in the illegal transactions and "received bonuses or percentages of company profits as a reward for his participation." Id. at 69.

With respect to why DOE did not order restitution from other Merit officers or traders, the RO states that Dumas had died before the PRO was issued, and that his estate had been closed. RO at 16, n.6. The RO also states that Robison had not been joined because (1) he was involved with Merit for only a small portion of the audit period, (2) he was not an officer, director or shareholder of Merit, and (3) he faced personal refund liability to DOE in the amount of five million dollars in overcharges in

ing this matter as improperly raising a "new issue," or alternatively to deny consideration of this matter. DOE filed an Answer on October 26, 1990, pointing out that this issue was timely raised and addressed before OHA at oral argument on September 22, 1989. In the circumstances, the issue is properly before this court, and, accordingly, It is ordered that the Motion is denied.

another case. Id. And with regard to Dennis Healy, DOE notes that Meduna earned more in commissions than Healy in every month during the audit period. Tr. at 66. None of these facts are disputed by Petitioners. Lastly, DOE argues that it is unnecessary to compare Meduna's compensation to others since Meduna and Battle are jointly and severally liable for the entire amount of the overcharges. Brief in Support of Remedial Order at 58, n.39. According to DOE, it is merely out of prosecutorial discretion that DOE chose to limit Battle and Meduna's personal liability to their percentage of shareholding in the corporation. Tr. at 67.

The presiding judge finds that Meduna's actions do meet the RO's two-part test for personal liability, and consequently that he can be found personally liable for the overcharges of Merit. Meduna actively participated in all aspects of the Company. Though he may have been hired to fill a "subordinate role," during his tenure he held several managerial positions including that of Executive Vice President. Reply Brief at 21. The record also evidences that Meduna signed contracts on behalf of the Company on numerous occasions. The corporate minutes for Merit confirm the extent of Meduna's involvement in the transactions in question. Counsel for DOE quotes the minutes as recognizing Meduna's increased involvement in Merit's "trading activities" and noting that "all four individuals ..." who were included in the compensation plan (including Meduna) "were involved in the trading of crude oil and petroleum products." Tr. at 65. Petitioners failed to challenge these minute entries both at oral argument and on brief. These facts evidence that the first requirement of OHA's two-part test has been met. The presiding judge determines that Meduna personally participated in the illegal transactions in which the overcharges occurred.

This conclusion is consistent with the decision in Houston Oil and Refining Inc. et al., 46 FERC ¶ 63,022, at p. 65,083 (1989). In that case, it was also found that an individual who was an officer responsible for signing contracts on behalf of the company was personally liable for the company's overcharges. Id. at p. 65,083.8

8 While it is true that the individual's personal participation in the illegal transactions was much greater in Houston Oil, this fact does not diminish Meduna's liability in the instant proceeding. Any perceived disparity in the treatment of Meduna and the individual in Houston Oil can be dispelled since

The second part of the test, which was never seriously in dispute, involves whether Meduna personally benefited from the overcharges. Petitioners concede that Meduna "profited enormously" from what could be considered "ill-gotten gains." Id. at 39, 40. The record evidences that the two and a quarter million dollars that Meduna received during the audit period was based on "a percentage of gross profit from sale of crude oil." Tr. at 63, 64. Consequently, the presiding judge finds that Meduna personally benefited from the illegal overcharges, and that the second half of the OHA test has been satisfied. Meduna, therefore, is personally liable for Merit's corporate overcharges.

Though Petitioners have conceded Meduna's personal liability if the presiding judge affirms DOE's position concerning personal liability for corporate overcharges, OHA's two-part test must nevertheless also be applied to Battle. Reply Brief at 19, n. 17. Battle personally participated in the illegal transactions. As President of Merit, he "played a leading role in managing and controlling" the Company's operations, and authorizing the illegal transactions in question. Brief in Support of RO at 58, citing PRO at 16, 18. He also personally benefited from the corporate overcharges since his commission amounted to $11,630,806.56 or 42 percent of Merit's earnings. There is no question, therefore, that Battle also satisfies OHA's test, and is liable for the Company's overcharges.

Proposed Order

Based on the foregoing, it is ordered that the Remedial Order issued on January 31, 1990, by the Director of the Office of Hearings and Appeals of the Department of Energy in the case of Merit Petroleum, Inc. et al., Case Number KRO-0530, 20 DOE [83,002 (1990), be, and is hereby, affirmed.

Pursuant to rule 913 of the Commission's Rules of Practice and Procedure (18 C.F.R. section 385.913), participants may file written comments within 15 days of this Proposed Order, and reply comments within 7 days after the comment date.

Meduna's liability in this proceeding has been expressly limited to his percentage of shareholding. The individual found personally liable for corporate overcharges in Houston Oil enjoyed no such limit on his liability.