NORTHERN NATURAL GAS COMPANY, ET AL., PETITIONERS V. MOBIL OIL CORPORTATION, ET AL. CITIES SERVICE GAS COMPANY, ET AL., PETITIONERS V. MOBIL OIL CORPORATION, ET AL. No. 87-786, 87-796 In the Supreme Court of the United States October Term, 1987 On Petitions for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit Brief for the United States TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Discussion Conclusion OPINIONS BELOW The opinion of the court of appeals (J.A. A1-A18) /1/ is reported at 818 F.2d 730. The opinion of the district court (J.A. A19-A96) is unreported. The prior opinion of the court of appeals on the issue of liability (J.A. A229-265) is reported at 441 F.2d 704, cert. denied, 404 U.S. 951. The original opinion of the district court on the issue of liability (J.A. A266-A397) is reported at 292 F. Supp. 619. The subsequent opinion of the district court on remand (J.A. A124-A228) is reported at 393 F. Supp. 949. The opinion on appeal from the second district court judgment (J.A. A97-A123) is reported at 666 F.2d 1297, cert. denied, 457 U.S. 1126. JURISDICTION The judgment of the court of appeals (J.A. A412-A413) was entered on July 22, 1987. On September 29, 1987, Justice White extended the time for filing the petitions for a writ of certiorari to and including November 9, 1987. Petitions for a writ of certiorari were filed by Cities Service Gas Company, et al. on November 7, 1987, and by Northern Natural Gas Company et al. on November 9, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether producer-sellers of natural gas containing helium are entitled to recover from their purchasers the reasonable value of the commingled helium in addition to the contract price for the natural gas because the price of the natural gas was regulated under the Natural Gas Act, 15 U.S.C. 717 et seq. 2. Whether the court of appeals erred in applying federal common law rather than state law. 3. Whether the court of appeals erred in affirming an increase in the percentage rates of prejudgment and postjudgment interest from the rates awarded by the prior judgment which had been affirmed on prior appeal and not remanded to the district court for further proceedings. 4. Whether the court of appeals erred in using the proceedings in one case to determine the outcome of another case involving different facts and different parties. STATEMENT 1. Natural gas produced from the Hugoton gas area in the southerwestern United States contains approximately 99% of the nation's recoverable supply of helium. In order to conserve this useful resource, which would otherwise be lost in the refining and burning of the natural gas, Congress enacted the Helium Act Amendments of 1960, 50 U.S.C. 167 et seq. Pursuant to this statutory authorization, the federal government contracted with various natural gas refining companies (the Helex Companies) /2/ for the extraction and purchase of helium. The contract price for the extracted helium was based upon government estimates of the costs it would incur were it to build and operate the helium extraction plants. Because of the perceived urgency in initiating the helium conservation program, the United States did not undertake extensive title checks to determine what interests, if any, respective landowners and lessee-producers might have in the commingled helium. An internal government memorandum written during the contract negotiations with the Helex Companies, however, shows that one component of the contract price was a $2.00 payment for each thousand cubic feet (mcf) of extracted helium to compensate the companies for any costs incurred in obtaining title to the helium. /3/ The government further agreed to indemnify the Helex Companies for any amount over approximately $3.00 per mcf that might subsequently be spent to obtain title to the commingled helium (J.A. A336). Each Helex Company purchased the helium-bearing gas it processed from its parent pipeline company, which in turn purchased the gas from many lessee-producers. The price of the natural gas sold by the lessee-producers was regulated by the Federal Power Commission (FPC) under the Natural Gas Act, 15 U.S.C 717 et seq. No additional sum above the FPC-regulated price was paid to the lessee-producers by the Helex Companies for the helium component of the gas stream. After the Helex Companies began extracting helium for sale to the United States, the lessee-producers' lessors (the landowners) brought several suits in state court claiming ownership of the helium. Three of the four Helex Companies and their parent pipeline companies responded by bringing this interpleader action in the United States District Court for the District of Kansas to determine the rights of the landowers and lessee-producers to the proceeds of the helium extraction contracts. 2. At the first trial of this case, the district court held that the FPC-regulated price for a natural gas stream was controlling, and neither the lessee-producers nor the landowners were entitled to additional compensation for the helium contained in their natural gas (J.A. A266-A397). The court of appeals reversed. It held that, although the gas sales contracts had conveyed title to the helium content of the gas stream to the Helex Companies, the price at which the gas was sold to the Helex Companies did not include a price for the helium contained in the stream. This was, according to the court of appeals, because the gas stream was sold at the FPC-regulated price and Section 11 of the Helium Act Amendments precluded the FPC from exercising jurisdiction over sales of helium. /4/ J.A. A254-A264. The court of appeals concluded that "the lessee-producers are entitled to the reasonable value of the contained helium" because "satisfactory utility regulation requires (that) result." J.A. A263-A264. The case was remanded to the district court for determination of the value of the helium sold to the Helex Companies and extracted by them for subsequent sale to the government. The United States intervened in the litigation because of its potential liability under the indemnification clause of its contracts with the Helex Companies. 3. On remand, the district court found that the reasonable value of the commingled helium ranged from $.60 to $.70 per mcf (J.A. A219). In setting this value, the court chiefly relied on expert witness analysis of certain comparable sales of helium-bearing gas (J.A. A200-A201). The court specifically rejected use of the "work () back" method of valuation proposed by the lessee-producers, under which the market value of refined helium is reduced by the costs of processing to arrive at the value of the commingled helium (J.A. A197-A198). 4. Between the 1971 decision of the court of appeals in this case and the district court decision in 1974 on remand, the fourth Helex Company, Phillips, was sued in the United States District Court for the Northern District of Oklahoma by its lessee-producer, Ashland, for the reasonable value of the commingled helium extracted by it. Ashland Oil, Inc. v. Phillips Petroleum Co., 364 F. Supp. 6 (N.D. Okla. 1973), aff'd in part, 554 F.2d 381 (10th Cir. 1975), cert. denied, 434 U.S. 921 and 968 (1977), on remand, 463 F. Supp. 619 (N.D. Okla. 1978), aff'd, 607 F.2d 335 (10th Cir. 1979), cert. denied, 446 U.S. 936 (1980). /5/ The United States intervened and was aligned as a party defendant. The district court in Ashland I, utilizing the work-back method rejected by the district court in this case, set the reasonable value for commingled helium at $11.76 to $11.68 per mcf. The district court judgments in Ashland I and in this case (Consolidated Helium II) were appealed to the court of appeals. The court ordered the two cases consolidated for briefing and en banc consideration in 1976. In 1977, the court issued an en banc opinion dealing only with Ashland I, specifically reserving decision in Consolidated Helium II. Ashland Oil, Inc. v. Phillips Petroleum Co., 554 F.2d 381, 384-385 (J.A. A482-A520). /6/ For nearly five years following the issuance of that opinion, Consolidated Helium II remained in what the court of appeals has since called "abated status' (J.A. A100). 5. In its 1977 en banc Ashland I opinion, the court of appeals approved the use of the work-back valuation method because, in its view, no free market for commingled helium existed. The district court's use of the work-back method, however, was held to be deficient in a few particulars and the case was remanded for reexamination of certain elements of the work-back formula. On remand, the district court in Ashland II used revised work-back calculations to set the value of commingled helium at $3.00 per mcf. /7/ J.A. A443-A481. The court of appeals substantially affirmed. J.A. A438-A442. It did, however, reverse the district court's denial of prejudgment interest, holding that the district court's previous award of such interest, affirmed on prior appeal, had become the law of the case (J.A. A441-A442). /8/ 6. With the conclusion of the Ashland litigation, the court of appeals finally turned to the appeal in the present case. In May 1981, the court of appeals removed this case from what it described as "abated status," terminated the en banc status ordered in 1976, and assigned it to a three-judge panel for oral argument. /9/ That panel held that the district court erred in 1974 in rejecting the work-back method of valuation because work-back had become "the law of the case" as a result of the 1977 en banc decision reversing Ashland I (J.A. A103, A109-A111). The court of appeals further held that $2.00 per mcf of helium is the minimum payment the lessee-producers were entitled to receive under the work-back method of valuation because this payment, in the court's view, was considered by both the Helex Companies and the United States to be the minimum amount that the Helex Companies might owe to third parties if a lawsuit arose over title to the helium (J.A. A114-A117). The court of appeals additionally held that the district court did not abuse its discretion in awarding prejudgment interest at 6 percent (J.A. A120-A122). The remand order to the district court stated (J.A. A123): Thus, the judgment of the trial court is set aside as to the valuation determination. On remand, the trial court shall undertake such further proceedings deemed necessary to enter judgment based upon the value less expense or work-back valuation, subject to the $2.00 per m.c.f. "floor" * * *. The District Court may undertake such other proceedings deemed proper in the light of this opinion. 7. On remand, the district court, applying the work-back method, found the reasonable wellhead value of helium extracted for each of the three Helex Companies in the suit as follows: Northern -- $3.22 per mcf; Cities -- $3.85 per mcf; National -- $3.82 per mcf (J.A. A86, A409-A410). These variations in value resulted from variations among the Helex Companies in initial contract price and price escalation clauses, the amount of helium delivered to the government each year, plant operating costs, and the investment base of each Helex Company. Although the court of appeals had affirmed the district court's previous award of 6 percent prejudgment interest and 8 percent postjudgment interest, the district court significantly increased the award of prejudgment interest to: 6 percent from the end of each year's helium production until November 12, 1974 (the date of the district court judgment in Consolidated Helium II); 8 percent from November 12, 1974, until July 1, 1980; 12 percent from July 1, 1980, until July 1, 1982; and 15 percent from July 1, 1982, until the date of the judgment in Consolidated Helium III awarding these new rates -- October 18, 1983. J.A. A93. /10/ 8. On appeal, the court of appeals affirmed the district court judgment in its entirety (J.A. A1-A18). With regard to the district court's increased interest award, the court of appeals explained that, because the prior district court judgment had been reversed as to valuation method but not liability, the date of that district court judgment -- November 12, 1974 -- remained the "'judgment' to be used to divide prejudgment and postjudgment interest" (J.A. A16-A17). DISCUSSION 1. Both sets of petitioners (87-786 Pet. 13-17; 87-796 Pet. 21-24) contend that the court of appeals erred in interpreting Section 11 of the Helium Act Amendments of 1960, 50 U.S.C. 167i (exempting the "sale, extracting, processing, transportation, or storage of helium" from Natural Gas Act regulation), as creating a regulatory "void" which prevented the lessee-producers from obtaining payment for the value of the commingled helium. Rather than abrogating existing natural gas contract rights, Section 11 of the Helium Act Amendments was intended, petitioners contend, only to permit producers to obtain compensation for the commingled helium separate from the remainder of the natural gas stream, the price of which is regulated by the Natural Gas Act. That the lessee-producers in the instant case failed to contract for a helium payment in addition to the price for the entire gas stream did not, petitioners urge, warrant the court of appeals' conclusion that additional payment for the commingled helium was required to implement the Natural Gas Act's regulatory scheme. Petitioners Cities Service, et al. further contend (87-796 Pet. 20-23) that the court of appeals erroneously treated the companies involved here as public utilities and by use of the work-back method of valuing the helium -- with a limit of 15 percent return on investment -- essentially engaged in unauthorized judicial rate-making. The United States agrees with petitioners that the court of appeals erred in concluding that the lessee-producers are entitled to additional compensation for the helium component of the natural gas stream which they sold the Helex Companies. In our view, the court of appeals based its decision on an inaccurate analogy between regulated entities, such as railroads, which cannot deviate from the prescribed rate by providing other services free of charge as part of the services being regulated, and the lessee-producers which, by failing to seek a separate helium payment in the gas contracts, provided free helium along with the regulated natural gas (J.A. A259, A263-A264). Neither the primary purpose of the Natural Gas Act -- to protect gas consumers from exhorbitant natural gas prices -- nor any of its subsidiary purposes would be furthered by separate payments for the unregulated helium commingled with the regulated natural gas, and the failure of the lessee-producers to contract for such additional payment does not require the courts to rewrite the contracts to correct this omission. To the extent that the court of appeals' decision on liability was motivated by the court's desire to prevent the Helex Companies from reaping a "windfall" from the government's interest in helium (J.A. A263), the court's concern was misplaced. It was the Helex Companies that entered into contracts with the government, built expensive extraction plants, and assumed the attendant risks. If that activity produced a profit, there is no basis in reason or equity for overturning private contracts and established principles of law in order to give the original sellers of the commingled helium a share of it. The Helex Companies, under their gas contracts, acquired the entire gas stream from the lessee-producers, and could either extract or ignore the helium component of that stream without incurring additional contractual obligations. Indeed, when the government ceases to buy it (as it has at present), helium is once again vented to the atmosphere and lost irretrievably. N.Y. Times, Oct. 27, 1987, at 15, col. 1. Helium thus has become "valuable" (i.e., marketable) only when the government has chosen to buy it. In sum, we agree with petitioners' claim that they should not have been required to make additional payments for the commingled helium. The Court, however, has denied petitions for a writ of certiorari presenting this issue on four previous occasions. 434 U.S. 921 and 968 (1977); 446 U.S. 936 (1980); 457 U.S. 1126 (1982) (see also 404 U.S. 951 (1971) (certiorari denied as out of time)). We therefore have refrained from petitioning again at this time, although we do note that the present petitions are the first to seek review of a final decision in this litigation which contains the most fully developed record on this issue. 2. Petitioners contend (87-786 Pet. 17-18; 87-796 Pet. 14-20) that the court of appeals erred in applying federal common law to various issues in this case, rather than state law as indicated by Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974). According to petitioners Cities, et al. (87-796 Pet. 14-16), application of state law would alter the result reached by the court below. For example, Kansas state law appears not to allow prejudgment interest in the circumstances of this case (see Lightcap v. Mobil Oil Corp., 221 Kan. 448, 465-467, 562 P.2d 1, 14-15 (1977)). The Court did hold in Phillips Petroleum Co. v. Texaco Inc., 415 U.S. at 129, that suits to recover the reasonable value of helium are, "in effect, * * * action(s) in quantum meruit, whose source is state law and not federal law." Thus, suits similar to the one at issue here do not "arise( ) under the Constitution, laws, or treaties of the United States" for the purpose of federal subject matter jurisdiction under 28 U.S.C. 1331(a). It may well follow that state and not federal law should govern all the rights and liabilities of the parties to this litigation. Nevertheless, it is not entirely clear that the court of appeals erred in applying federal law to construe the contracts at issue in this litigation. In contrast to Phillips Petroleum Co. v. Texaco, supra, federal subject matter jurisdiction in this case is clear, because it is properly in federal court under the provisions of 28 U.S.C. 1335, the federal interpleader statute. Furthermore, petitioners' state law argument is weakened here because of the pervasive influence of federal law -- the helium extraction contracts at issue here were authorized by and executed under express provisions of federal law. 50 U.S.C. 167 et seq. Finally, the United States may ultimately be liable under the indemnity clause of its contracts. The fact that this potential federal liability hinges upon the legal rights of claimants in more than one state (Kansas and Oklahoma) tends to justify the court of appeals' application of a uniform federal rule to the issues in this case. Where application of state law could "lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states," this Court has stated that the "desirability of a uniform rule is plain." Clearfield Trust Co. v. United States, 318 U.S. 363, 367 (1943). Thus, we do not believe that the decision of the court of appeals to apply federal common law to this litigation presents an issue that of itself requires review by this Court. 3. Petitioners Cities. et al. contend (87-796 Pet. 24-27) that the court of appeals violated the principle of law of the case in affirming the district court's large increase in the interest award on remand when the court of appeals' mandate to the district court in the prior appeal had not returned the issue of interest to the lower court for any further proceedings. The district court had the authority to exercise its discretion to award additional prejudgment interest on remand only if the mandate from the court of appeals returned the issue of prejudgment interest to the district court for further consideration. Otherwise, the court of appeals' affirmance of the 6 percent prejudgment interest conclusively settled the issue of that portion of the damage award and it became law of the case. Ashland II, 607 F.2d at 336; Consolidated Helium II, 666 F.2d at 1284-1285; Delano v. Kitch, 554 F.2d 1004, 1005 (10th Cir. 1977), cert. denied, 456 U.S. 946 (1982); Wylie v. Ford Motor Co., 536 F.2d 306, 309 (10th Cir. 1976). See also Elias v. Ford Motor Co., 734 F.2d 463, 465 (1st Cir. 1984) (district court lacked the power to amend judgment to increase prior award of prejudgment interest after the award had been affirmed on appeal). The mandate in Consolidated Helium II cannot reasonably be read to allow further consideration of the prejudgment interest award. It simply stated (J.A. A123): Thus, the judgment of the trial court is set aside as to the valuation determination. On remand, the trial court shall undertake such further proceedings deemed necessary to enter judgment based upon the value less expense or work-back valuation, subject to the $2.00 per m.c.f. "floor" * * *. The District Court may undertake such other proceedings deemed proper in the light of this opinion * * *. The court of appeals sought to rationalize its affirmance of the district court's increased interest award by noting that "commercial (interest) rates increased greatly" since the 1974 judgment and that petitioners had not been required to deposit the interpleader funds with the court pending final judgment in the case (J.A. A15, A17-A18). The court of appeals' rationale might have explained the district court's exercise of the authority to set increased interest rates. But the challenge on appeal was to the existence, not the exercise, of the authority to alter the interest award on remand. The court of appeals' reasons in favor of the higher interest rates simply have no relevance to that issue. The court of appeals also sought to justify its affirmance of the increased award of prejudgment interest based on a rationale that applies only to postjudgment interest. The court of appeals held that, even though it previously had reversed the district court's judgment in Consolidated Helium II, the date of that district court judgment (Nov. 12, 1974) remained the "date of the judgment" for purposes of calculating when prejudgment interest ended and postjudgment interest began because the reversal of Consolidated Helium II was not to "any extent sufficient to change the determinative judgment for these purposes" (J.A. A16-A17). Even if the court of appeals were correct in its conclusion that postjudgment interest should run from November 12, 1974, that would still utterly fail to justify the district court's increased award of prejudgment interest. Although the district court considered its award to be prejudgment interest at postjudgment rates (J.A. A87-A88), it is far from clear whether the court of appeals affirmed the increased rate of interest as prejudgment or postjudgment interest. However, regardless of which type of interest the court of appeals thought it was dealing with, the district court's increase in interest rate was not authorized by the mandate and was clear error. A district court has no authority on remand to calculate postjudgment interest from a date before its postremand decision, unless the mandate of the court of appeals directs otherwise. Briggs v. Pennsylvania R.R., 334 U.S. 304, 306 (1948); Reaves v. Ole Man River Towing, Inc., 761 F.2d 1111, 1112 (5th Cir. 1985); see also Gele v. Wilson, 616 F.2d 146, 149 (5th Cir. 1980) (when the mandate includes no instruction regarding when postjudgment interest is to commence, a party who considers himself entitled to interest from a date other than the judgment on remand must seek reformation of the mandate); Riha v. International Telephone & Telegraph Corp., 533 F.2d 1053, 1055 (8th Cir. 1976) (same). The mandate to the district court in the instant case did not mention postjudgment interest and cannot be interpreted as authorizing the district court to award postjudgment interest from any date other than that of the judgment on remand. /11/ In our view the court of appeals clearly erred in its interpretation of the district court's power on remand, and this aspect of its decision conflicts with the settled law in other circuits. Nonetheless, because of this decision's rather unclear rationale and its apparent direct conflict with other Tenth Circuit precedent -- Ashland II -- we cannot argue that this issue requires review by this Court. 4. Petitioners Northern, et al. (87-786 Pet. 18-21) understandably protest the court of appeals' use of the Ashland II litigation to settle the valuation dispute in this case, which involves different gas streams and different parties, and in which much more comprehensive evidence of valuation was presented. The objections raised by these petitioners to the court of appeals' use of an extended and unannounced "abatement" procedure, and then treating its decision in Ashland II as "the law of the case" for purposes of the present case, may well implicate fundamental notions of procedural fairness. Since the United States was a party in both the present case and Ashland II, however, objections to this procedure are more appropriately raised before this Court by petitioners Northern et al. than by the United States. CONCLUSION The United States does not oppose the petitions. Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Acting Assistant Attorney General LAURA E. FROSSARD Attorney JANUARY 1988 /1/ References to J.A. are to the consolidated appendix to the petitions filed by both sets of petitioners. /2/ The three Helex Companies in the instant case were Northern Natural Gas Company ("Northern"), Cities Service Gas Company ("Cities"), and National Helium Corporation ("National"). /3/ This $2.00 figure was derived from a 1958 helium extraction contract between the United States and the Colorado Interstate Gas Company, referred to as the "Keyes contract." Prior to the Keyes contract, the price for extracted helium generally had been based solely on the shrinkage in the volume of the natural gas stream resulting from the removal of the helium. The Keyes contract, however, included a $.04 per mcf of gas "processing fee" in addition to the shrinkage payment. Because the gas sold under the Keyes contract had a helium content of 2%, 50 mcf of gas had to be processed to obtain one mcf of helium. Thus, the "processing fee" for one mcf of extracted helium under the contract was $2.00 (J.A. A333-A336). /4/ Section 11 of the Helium Act Amendments of 1960, 50 U.S.C. 167i, provides: The provisions of the Natural Gas Act of June 21, 1938, as amended * * *, shall not be applicable to the sale, extraction, processing, transportation, or storage of helium either prior to or subsequent to the separation of such helium from the natural gas with which it is commingled, whether or not the provisions of such Act apply to such natural gas, and in determining the rates of a natural gas company under sections 4 and 5 of the Natural Gas Act, as amended (15 U.S.C. 717c, 717d), whenever helium is extracted from helium-bearing natural gas, there shall be excluded (1) all income received from the sale of helium; (2) all direct costs incurred in the extraction, processing, compression, transportation or storage of helium; and (3) that portion of joint costs of exploration, production, gathering, extraction, processing compression, transportation or storage divided and allocated to helium on a volumetric basis. /5/ In accordance with the established usage of the parties, Ashland I refers both to the district court opinion of 1973 and the court of appeals opinion of 1975; Ashland II refers to the district court opinion of 1978 on remand, and the court of appeals opinion of 1979. Similarly, Consolidated Helium I refers both to the district court opinion in this case in 1968 and the court of appeals opinion in 1971; Consolidated Helium II refers to both the district court opinion of 1974 and the court of appeals opinion of 1981; and Consolidated Helium III refers to the district court opinion of 1983 and the decision below. /6/ This Court denied certiorari (434 U.S. 921, 968 (1977). /7/ The $3.00 per mcf figure was adopted by the district court as an average reasonable value for the commingled helium (J.A. A481). The court found that the actual value of the commingled helium ranged from a low of minus $.40 per mcf to a high of $5.34 per mcg (J.A. A480). /8/ This Court again denied certiorari (446 U.S. 936 (1980)). /9/ The court offered the following explanation of why the appeal in this case had been "abated" for nearly five years (J.A. A100): The practical consideration for the use of the abatement procedure was to employ only one district court initially for a redetermination of the helium valuation pursuant to the specific guidelines, directions and instructions contained in Ashland I. It was believed that further Oklahoma district court proceedings would serve to resolve the valuation issue in the related cases. /10/ The district court explained that the 8 percent rate had been the Kansas postjudgment interest rate at the time of the judgment in Consolidated Helium II, but that the Kansas postjudgment interest rate had been raised twice since 1974: effective July 1, 1980, the rate increased to 12 percent; and, effective July 1, 1982, the rate increased to 15 percent. The district court found that "interest at the statutory rates provides fair and reasonable compensation," and then awarded prejudgment interest after the date of the judgment in Consolidated Helium II at the state postjudgment interest rate in effect during each subsequent period until the date of the district court's judgment in Consolidated Helium III (J.A. A87-A88). /11/ Moreover, even if the mandate had allowed postjudgment interest to be awarded from the date of the earlier judgment, the district court's "stair-stepped" award of postjudgment interest at successively higher rates would have exceeded the court's statutory authority. Postjudgment interest is authorized by 28 U.S.C. 1961 which, at the time of the district court judgment in Consolidated Helium II (November 12, 1974), provided that postjudgment interest be "calculated from the date of the entry of the judgment," at the rate allowed by State law. In 1974, Kansas law provided a postjudgment interest rate of 8 percent. Section 1961 does not provide the district court or the court of appeals any discretion in its application. Reeves v. International Telephone & Telegraph Corp., 705 F.2d 750, 752 & n.5 (5th Cir. 1983); Twin City Sportservice, Inc. v. Charles O. Finley & Co., 676 F.2d 1291, 1311 (9th Cir.), cert. denied, 459 U.S. 1009 (1982).