Tidewater Oil Co. v. United States
Opinion of the Court
delivered the opinion of the Court.
On July 13, 1966, the United States filed a civil antitrust suit against Phillips Petroleum Co. (Phillips) and petitioner Tidewater Oil Co. (Tidewater). The complaint alleged that Phillips’ acquisition of certain
Petitioner continued as a party to the suit during some five years of pretrial discovery and preparation.
To determine the relevance of 28 U. S. C. § 1292 (b) for Government civil antitrust cases, it is necessary first to consider the original purpose of § 2 of the Expediting Act and the over half-century of experience with that section in the context of interlocutory appeals provisions that preceded the enactment of § 1292 (b) in 1958.
In an effort to “expedite [certain] litigation of great and general importance,” 36 Cong. Rec. 1679 (remarks of Sen. Fairbanks) ,
Congress thus initially determined to speed appellate review by channeling appeals in Expediting Act cases directly to this Court and to avoid the delay inherent in piecemeal appeal by conditioning appeal upon the presence of a “final judgment.”
During the 25 years following the enactment of the Expediting Act, Congress amended the Evarts Act provision governing interlocutory appeals to the courts of
“[The Evarts Act] provisions governing appeals in general were amended by the Expediting Act so that in suits in equity under the Anti-Trust Act ‘in which the United States is complainant,’ the appeal should be direct to this Court from the final decree in the trial court. Thus, Congress limited the right of review to an appeal from the decree which disposed of all matters . . . ; and it precluded the possibility of an appeal to either [this Court or the court of appeals] from an interlocutory decree.” Id., at 558 (emphasis added).
And a decade and a half later, in Allen Calculators v. National Cash Register Co., 322 U. S. 137, 142 (1944), the Court reiterated “that jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals but solely in this court, and [the Expediting Act] limited the right of appeal to final decrees.” It is true that interlocutory orders in Government civil antitrust cases were subsequently held reviewable by way of extraordinary writs under the All Writs Act, 28 U. S. C. § 1651 (a), but application for the extraordinary writ must be made to this Court where “sole appellate jurisdiction lies” in such cases. United States Alkali Export Assn. v. United States, 325 U. S. 196, 201-203 (1945);
The wording of the interlocutory appeals provision was again altered in the 1948 revision of the Judicial Code.
In sum, then, our examination of the history and evolution of the present § 1292 (a) (1) — the direct descendant of the original interlocutory appeals provision contained in the Evarts Act — has convinced us that at least up to the passage of § 1292 (b) in 1958, Congress had not impaired the original exclusivity of this Court’s jurisdiction under § 2 of the Expediting Act. As is usually true of questions of statutory construction, the issue is not totally free from doubt.
With this background, the question becomes what effect, if any, the enactment of § 1292 (b) in 1958 had upon this Court's theretofore exclusive appellate jurisdiction in Government civil antitrust cases. Section 1292 (b) provides in relevant part:
“When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .”
At the outset petitioner contends that there is simply no conflict between this provision and § 2 of the Expediting Act. It suggests that “civil action” must be read as an all-inclusive phrase that covers, inter alia, Government civil antitrust eases. At the same time, it points out that § 1292 (b) is concerned only with interlocutory orders, while the Expediting Act deals only with final judgments. Thus, petitioner concludes that the enactment of § 1292 (b) made discretionary interlocutory appeals available where none had previously existed, and that the two statutes are in complete harmony with one another.
Such a facile argument could also be made to support the contention that § 1292 (a)(1) can be invoked in Expediting Act cases — were it not for the fact that, as we have already seen, § 2 does not merely apply solely to a “final judgment” but also limits the right of appeal to a
“The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff’s favor, are interlocutory since they do not end the litigation and are not therefore, under existing provisions of law, appealable.”
This is hardly supportive of petitioner’s position, and yet throughout the legislative materials the focus similarly remains on interlocutory orders in civil cases that would be appealable to the courts of appeals upon final judgment.
Petitioner’s case is further weakened by the extraordinary result that acceptance of its position would yield. Section 1292 (a) provides for an appeal as a matter of right from a number of specified types of interlocutory orders — in particular, interlocutory orders granting or denying injunctions. Those interlocutory orders not within subsection (a), however, were made appeal-able in § 1292 (b), subject to the judgment and discretion of the district court and the court of appeals. Greater importance obviously was attached to those
In any event, petitioner has failed to convince us that permitting appeals under § 1292 (b) would provide a meaningful solution — if any solution at all — to the various problems created for the Court by the Expediting Act. In the first place, the availability of interlocutory appeals under § 1292 (b) would not reduce the number of Government civil antitrust cases that could be brought.
Nor are we even certain that the expeditious termination of litigation in the district courts — the express purpose of § 1292 (b)
Ill
Hence, we conclude that § 1292 (b) did not establish jurisdiction in the Court of Appeals over interlocutory orders in Expediting Act cases. The exclusive nature of
Affirmed.
Mr. Justice White joins the Court’s opinion except for the advisory to Congress reflecting one view of the relative merits of the Expediting Act.
Tidewater then transferred title to its Western Marketing and Manufacturing Division to Phillips.
Tidewater merged with Getty- Oil Co. on September 30, 1967. It has never been contended that that merger altered Tidewater’s legal status in this case.
In its motion to be dismissed, Tidewater contended “that Section 7 of the Clayton Act is directed only against the acquiring corporation and not against the seller, that the sale of assets by defendant Tidewater Oil Company to Phillips Petroleum Company has long ago been consummated, that no relief is obtainable against Tidewater Oil Company, and that its presence in the suit is no longer necessary or appropriate.”
Subsequent to the decision by the Ninth Circuit in this case, the Court of Appeals for the Seventh Circuit held that § 1292 (b) could be used to take an interlocutory appeal in a Government civil antitrust case. See Fisons Ltd. v. United States, 458 F. 2d 1241, 1244-1248, cert. denied, 405 U. S. 1041 (1972). The only other court of appeals to consider the question, the Court of Appeals for the District of Columbia Circuit, reached the same result as the Ninth Circuit in this case. See Farbenfabriken Bayer, A. G. v. United States, 1968 CCH Trade Cas. ¶ 72,570, cert. denied, 393 U. S. 959 (1968); Glaxo Group, Ltd. v. United States, Misc. No. 3261 (June 25, 1968).
405 U. S. 986 (1972). We had originally denied certiorari, 404 U. S.941 (1971).
Act of Sept. 2, 1958, Pub. L. 85-919, 72 Stat. 1770.
See also Shenandoah Valley Broadcasting v. ASCAP, 375 U. S. 39, 40 (1963), modified, 375 U. S. 994 (1964).
Section 1 of the Expediting Act, 15 U. S. C. §28, requires that a three-judge district court be convened to hear any Governitíent civil antitrust case that the Attorney General certifies to be of “general public importance.” See also 49 U. S. C. § 44. This three-judge court provision is also a reflection of the “great importance” attached to Government civil antitrust cases and was intended to provide a mechanism for full consideration of such cases by a panel of judges “before presentation to the Supreme Court as if heard by the United States circuit court of appeals.” H. R. Rep. No. 3020, 57th Cong., 2d Sess., 2 (1903). But this provision has been seldom used.
Act of Feb. 11, 1903, § 2, 32 Stat. 823, as amended, Act of Mar. 3, 1911, §291, 36 Stat. 1167; Act of June 9, 1944, c. 239, 58 Stat. 272; Act of June 25, 1948, § 17, 62 Stat. 989. As originally enacted, the statute read in relevant part as follows:
“That in every suit in equity pending or hereafter brought in any circuit court of the United States under any of said Acts, wherein the United States is complainant, ... an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from the entry thereof
There is no contention here that the very minor changes in wording effected by the subsequent amendments and codifications of the statute in any way altered the original meaning of the Act.
Act of Mar. 3, 1891, § 2, 26 Stat. 826.
Act of Mar. 3, 1891, §6, 26 Stat. 828.
Act of June 6, 1900, c. 803, 31 Stat. 660, amending Act of Mar. 3, 1891, § 7, 26 Stat. 828, as amended, Act of Feb. 18, 1895, 28 Stat. 666 (emphasis added).
In United States v. California Cooperative Canneries. 279 U. S. 553, 558 (1929), Mr. Justice Brandéis, speaking for the Court, detailed the causes of delay that prompted the Expediting Act:
“Congress sought by the Expediting Act to ensure speedy disposition of suits in equity brought by the United States under the Anti-Trust Act. Before the passage of the Expediting Act the opportunities for delay were many. From a final decree in the trial court under the Anti-Trust Act an appeal lay to the Circuit Court of Appeals; and six months were allowed for taking the appeal. From the judgment of the Court of Appeals an appeal lay to this Court; and one year was allowed for taking that appeal. Act of March 3, 1891, c. 517, §§ 6, 11, 26 Stat. 826, 828, 829. See United States v. E. C. Knight Co., 60 Fed. 306; 60 Fed. 934; 156 U. S. 1; United States v. Trans-Missouri Freight Association, 53 Fed. 440; 58 Fed. 58; 166 U. S. 290. Moreover, there might*156 be an appeal to the Circuit Court of Appeals from a decree granting or denying an interlocutory injunction, Act of June 6, 1900, c. 803, 31 Stat. 660.”
See also United States Alkali Export Assn. v. United States, 325 U. S. 196, 203 (1945).
United States v. Cities Service Co., 410 F. 2d 662, 664 (CA1 1969); see Brown Shoe Co. v. United States, 370 U. S. 294, 364 (1962) (Harlan, J., dissenting in part and concurring in part); 36 Cong. Rec. 1679 (remarks of Sen. Fairbanks); cf. n. 7, supra.
Act of July 2,1890, c. 647, 26 Stat. 209.
In saying this, we are not to be understood as necessarily accepting today an important premise that underlies § 2 — namely, that the courts of appeals, subject to review on certiorari in this Court, are incapable of providing the uniformity of interpretation necessary to the administration of the antitrust laws. See infra, at 170. In 1903, the courts of appeals had been in existence for only 12 years and various reservations about them had not yet been dispelled. See F. Frankfurter & J. Landis, The Business of the Supreme Court 258 (1927). Since that time, we have had over a half-century of experience with the courts of appeals — including experience in the field of private antitrust litigation — which has resolved any initial doubts. See ibid.
Act of Apr. 14, 1906, c. 1627, 34 Stat. 116.
Act of Mar. 3, 1911, § 129, 36 Stat. 1134.
Act of Feb. 13,1925, amending § 129, 43 Stat. 937.
Act of Apr. 11, 1928, c. 354, 45 Stat. 422.
The 1906 amendment removed the limitation on interlocutory appeal to causes "in which an appeal from a final decree may be taken ... to the circuit court of appeals” and provided simply that such an appeal may be taken to the court of appeals “in any cause.” Act of Apr. 14, 1906, c. 1627, 34 Stat. 116. In codifying the Evarts Act interlocutory appeals provision in 1911, “in any cause” was struck, and the provision was amended to allow the courts of appeals to entertain appeals from interlocutory orders “notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court.” Act of Mar. 3, 1911, § 129, 36 Stat. 1134. Finally, the famous Judges’ Bill of 1925, in turn struck the “notwithstanding” language, with the result that the codified provision, § 129, simply allowed an appeal to be “taken from [an] interlocutory order or decree [granting or denying an injunction or appointing a receiver] to the circuit court of appeals . . . .” Act of Feb. 13, 1925, amending § 129, 43 Stat. 937.
The 1928 amendment is completely without relevance here since it merely extended the applicability of the statute to interlocutory orders issued by the District Courts of Alaska, Hawaii, the Virgin Islands, and the Canal Zone. Act of Apr. 11, 1928, c. 354, 45 Stat. 422.
See S. Rep. No. 2192, 59th Cong., 1st Sess. (1906): H. R. Rep. No. 542, 59th Cong., 1st Sess. (1906); 40 Cong. Rec. 1723, 1742, 4429, 4856-4857, 5056.
As to the 1911 amendment, see S. Rep. No. 388, 61st Cong., 2d Sess., pt. 1, p. 53 (1910); H. R. Doc. No. 783, 61st Cong., 2d Sess., 57 (1910); H. R. Rep. No. 818, 61st Cong., 2d Sess. (1910); S. Doc. No. 848, 61st Cong., 3d Sess. (1911); 45 Cong. Rec. 4001. As to the 1925 amendment, see S. Rep. No. 362, 68th Cong., 1st Sess., 3 (1924); H. R. Rep. No. 1075, 68th Cong., 2d Sess., 4-5 (1925); Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee ón the Judiciary, 68th Cong., 1st Sess., 12 (1924).
Thus, the 1906 amendment, see n. 20, supra, was intended to render ineffective certain evasive pleading tactics that had theretofore been employed to take advantage of the fact that under the Evarts Act an interlocutory appeal could be taken where only a nonconstitutional issue was at stake but not where a constitutional issue was involved. See H. R. Rep. No. 542, 59th Cong., 1st Sess., 2-3 (1906); 40 Cong. Rec. 1723 (remarks of Rep. Brantley); id., at 4856 (remarks of Sen. Bacon).
The legislative history concerning the 1911 amendment, see n. 20, supra, indicates that the “notwithstanding” language was designed to “remove any doubt” that the limitation — initially struck by the 1906 amendment- — on interlocutory appeals to those cases in which an appeal might be taken to the court of appeals after a final decree had been eliminated. But this merely suggests an intent finally to resolve with even more specific language the problem of
As to the 1925 version of the interlocutory appeals provision, see n. 20, supra, the analysis prepared by the committee of this Court which drafted it explained that the “notwithstanding” language was “eliminated as having no further application in view of the repeal of” the provisions that had necessitated the initial 1906 amendment. Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 12 (1924). And if the addition of the “notwithstanding” language in 1911 did not establish court of appeals jurisdiction over interlocutory orders in Expediting Act cases, we fail to see how dropping that language in 1925 did so. At the same time, elsewhere in the Judges’ Bill, § 2 of the Expediting Act was carried forward without alteration. See Act of Feb. 13, 1925, amending § 238 (1), 43 Stat. 938. In doing so, it was stated: “A direct review by the Supreme Court of an interlocutory or final judgment or decree of a district court may be had where it is so provided in the following Acts or parts of Acts, and not otherwise: (1) Section 2 of the Act of February 11, 1903, 'to expedite the hearing and determination’ of certain suits brought by the United States under the antitrust . . . laws . . . .” Ibid, (emphasis added). Section 2, of course, has never contained a provision allowing appeal of interlocutory orders. Moreover, Mr. Justice Van Devanter, a member of this Court’s committee that prepared the bill, testified before the Senate Committee that the character of Expediting Act cases “suggest[s] that they should go directly to the Supreme Court rather than through the circuit courts of appeals” without any indication that an exception was being introduced for interlocutory appeals to the courts of appeals. Hearing on S. 2060 and S. 2061 before a Subcommittee of the Senate Committee on the Judiciary, 68th Cong., 1st Sess., 33 (1924). See also S. Rep. No. 362, 68th Cong., 1st Sess., 3 (1924).
Certainly the Court spoke fully cognizant of at least the amendment contained in the Judges’ Bill of just four years before, see n. 20, supra, since all seven sitting Justices had been on the Court when its committee submitted the bill to Congress.
In Alkali Export Assn., the Court went on to say:
“[Extraordinary] writs may not be used as a substitute for an authorized appeal; and where, as here, the statutory scheme \_the Expediting Act] permits appellate review of interlocutory orders only on appeal from the final judgment, review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews.” 325 U. S., at 203 (emphasis added).
Nevertheless, the Court found that exigent circumstances associated with the District Court’s denial of the defendant’s motion to dismiss the action justified immediate review by common-law certiorari in the particular case. Id., at 203-204.
The Court in De Beers-, stating that “[w]hat is . . . said [in Alkali Export Asm] applies in this instance,” 325 U. S., at 217, granted review under the All Writs Act of a preliminary injunction, although normally review would have been to the court of appeals under what is now 28 U. S. C. § 1292 (a)(1).
Of course, nothing we say today signifies a retreat from our previous statements that appeals of interlocutory orders in Government civil antitrust cases cannot be taken even to this Court.
Act of June 25, 1948, 62 Stat. 929.
In 1951 reference to the District Court of Guam was inserted in the section, Act of Oct. 31, 1951, §49, 65 Stat. 726, and reference to the District Court for the Territory of Alaska was removed from the section effective upon the admission of Alaska into the Union in 1959, Act of July 7, 1958, § 12 (e), 72 Stat. 348. Finally, when subsection (b) was added to the section, the former entire section was designated subsection (a). Act of Sept. 2, 1958, Pub. L. 85-919, 72 Stat. 1770.
The portion of the provision governing appeal of interlocutory orders appointing receivers and related matters became 28 U. S. C. § 1292 (2) (1946 ed., Supp. II), now 28 U. S. C. § 1292 (a) (2).
See S. Rep. No. 1559, 80th Cong., 2d Sess., 1-2 (1948) (“great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval”); H. R. Rep. No. 308, 80th Cong., 1st Sess., 1-8 (1947).
H. R. Rep. No. 2646 of the Committee on Revision of the Laws of the House of Representatives to accompany H. R. 7124, 79th Cong., 2d Sess., App. A107-108 (1946). See also H. R. Rep. No. 308 of the Committee on the Judiciary of the House of Representatives to accompany H. R. 3214, 80th Cong., 1st Sess., App. Al10-111 (1947).
Compare n. 20, supra, with n. 23, supra.
See supra, at 160-161. Similarly, two of three courts of appeals which have considered the question have concluded that an interlocutory appeal does not lie under § 1292 (a)(1) in Expediting Act cases. See United States v. Cities Service Co., 410 F. 2d 662 (CA1 1969); United States v. FMC Corp., 321 F. 2d 534 (CA9 1963). But see United States v. Ingersoll-Rand Co., 320 F. 2d 509, 511-517 (CA3 1963).
Cf. S. Rep. No. 2434, 85th Cong., 2d Sess., 3 (1958); H. R. Rep. No. 1667, 85th Cong., 2d Sess., 2 (1958).
It was only subsequent to the enactment of § 1292 (b) that a single Court of Appeals concluded — despite the unqualified statements by this Court since United States v. California Cooperative Canneries, 279 U. S., at 558, to the contrary — that an interlocutory appeal would lie under § 1292 (a)(1) in a Government civil antitrust case. See United States v. Ingersoll-Rand Co., 320 F. 2d, at 511-517. See also Fisons Ltd. v. United States, 458 F. 2d, at 1244-1248, cert. denied, 405 U. S. 1041 (1972) (§ 1292 (b)).
See S. Rep. No. 2434, 85th Cong., 2d Sess. (1958); H. R. Rep. No. 1667, 85th Cong., 2d Sess. (1958); Hearings on H. R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess. (1958); 104 Cong. Rec. 8002 (remarks of Rep. Keating). See also Report of the Proceedings of the Regular Annual Meeting of the Judicial Conference of the United States 32-33 (1951); Report of the Proceedings of a Special Meeting of the Judicial Conference of the United States 7 (1952); Report of the Proceedings of the Regular Annual Meeting of the Judicial Conference of the United States 27-28 (1953).
The Senate Report suggests the denial of a motion to dismiss an antitrust action as barred by the statute of limitations as one instance in which an interlocutory appeal might be desirable. But it goes on to state:
“Disposition of antitrust cases may take considerable time, yet upon appeal following final disposition of such cases, the court of appeals may well determine that the statute of limitations had run and for that reason the district court did not have jurisdiction.” S. Rep. No. 2434, 85th Cong., 2d Sess., 3 (1958) (emphasis added). The reference to antitrust cases in.Chief Judge John J. Parker’s testimony at the hearings on § 1292 (b) was also clearly limited to private treble-damages actions. See Hearings on H. R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., 9 (1958).
38 Stat. 731, 15 U. S. C. § 15.
S. Rep. No. 2434, 85th Cong., 2d Sess., 2 (1958) (emphasis added).
See id., at 2-3; H. R. Rep. No. 1667, 85th Cong., 2d Sess., 1 (1958); Hearings on H. R. 6238 before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 2d Sess., 8 (1958).
Cf. H. R. Rep. No. 1667, 85th Cong., 2d Sess., 1-2 (1958).
Petitioner suggests two avenues of escape from this anomalous situation: (1) that under § 1292 (a) (1) an interlocutory appeal may in fact lie from an injunctive order in a Government civil antitrust case; (2) that if an appeal from such an order cannot be taken under § 1292 (a), it may nevertheless be taken under § 1292 (b) since, the argument goes, the latter applies to all orders not ap-pealable under the former, “whatever the nature of the order and whatever the reason for its non-appealability.” Reply Brief for Petitioner 7-8. Our discussion in Part I of this opinion is sufficient to dispose of petitioner’s first contention. As to the second argument, while the language of § 1292 (b) is unqualified on its face, the legislative history indicates that Congress was concerned only with orders of types other than those specified in § 1292 (a); in other words, § 1292 (b) was intended to supplement § 1292 (a), not to provide a substitute for it. See n. 35, supra. Moreover, it would be, to say the least, extraordinary for Congress to have resorted to such a subtle method of establishing for the first time in Government civil antitrust cases interlocutory appeals for orders of the type specified in § 1292 (a) without giving any hint whatsoever that this was its purpose.
Brief for United States 18.
Nor can it be ignored that subsequent to both the 1948 revision which resulted in § 1292 (a) and the enactment of § 1292 (b), we have reaffirmed that a final judgment is an essential prerequisite
The sole exception to this would be if the certified question had previously been considered by way of certiorari.
Only if we were to dispose of a controlling question in such a way as to end all proceedings would the possibility of a subsequent appeal be foreclosed. A threshold issue of jurisdiction might present such a controlling question; but even that type of issue will often not end an entire Government civil antitrust case which might involve a number of parties — as is true in this case where the certified question relates to only one of the two defendants.
See also Fisons Ltd. v. United States, 458 F. 2d 1241 (CA7), cert. denied, 405 U. S. 1041 (1972) (service of process); Farbenfabriken Bayer, A. G. v. United States, 1968 CCH Trade Cas. ¶72,570 (CADC), cert. denied, 393 U. S. 959 (1968) (quasi in rem jurisdiction).
Other than threshold procedural issues, the question consistently sought to be raised on interlocutory appeal has been the propriety of orders granting or denying preliminary injunctions with respect to proposed acquisitions. See United States v. Cities Service Co., 410 F. 2d 662 (CA1 1969); United States v. FMC Corp., 321 F. 2d 534 (CA9 1963); United States v. Ingersoll-Rand Co., 320 F. 2d 509 (CA3 1963). Although appeals of such orders would involve the merits of the antitrust actions, the fact is that permitting interlocutory appeal under § 1292 (b) would not bring these orders and the related evidence before the courts of appeals since they come within § 1292 (a)(1). Cf. n. 41, supra. Moreover, because of the need for speed if an acquisition is to be enjoined before accomplished, requests for such interlocutory orders must be determined after, at most, only an initial hearing and without full development of th" record. Consequently, appeals from such orders would not necessarily bring before the courts of appeals the lengthy records and numerous documents with which we have often been forced to deal after final judgment.
See S. Rep. No. 2434, 85th Cong., 2d Sess., 1-2 (1958).
Of course, this problem would not exist if the interlocutory decision were reviewed immediately on certiorari in this Court; but, as we have already seen, this alternative entails serious problems of its own.
In this respect, it must be recalled that interlocutory appeal under § 1292 (b) is subject to the decision of the court of appeals in the exercise of its discretion, to allow appeal of the question certified by the district court. Thus, the effectiveness of § 1292 (b) in Government civil antitrust cases would be dependent upon the willingness of the courts of appeals to assume this new burden aware of the limited import of their decisions and of the fact that interlocutory appeals in such eases would represent only added work for them, since they would not otherwise consider any appeal.
Dissenting Opinion
dissenting.
I agree with Mr. Justice Stewart that the appeal of the interlocutory order in this case to the Court of Appeals under 28 U. S. C. § 1292 (b) was not barred by the Expediting Act. But I disagree with the intimations in both the majority opinion and the other dissenting opinion that because of our overwork the antitrust cases should first be routed to the courts of appeals and only then brought here.
The case,for our “overwork” is a myth. The total number of cases filed has increased from 1063 cases in the 1939 Term to 3643 in the 1971 Term. That increase has largely been in the in forma pauperis cases, 117 being filed in the 1939 Term and 1930 in the 1971 Term. But we grant certiorari or note probable jurisdiction in very few cases. The signed opinions of the Court (which are only in argued cases) totaled 137 in the 1939 Term with
The load of work so far as processing cases is concerned has increased. That work is important; and in many ways it is the most important work we do. For the selection of cases across the broad spectrum of issues presented is the very heart of the judicial process. Once our jurisdiction was largely mandatory and the backlog of cases piled high. The 1925 Act
Neither taking that jurisdiction from us nor the device of reducing our jurisdiction is necessary for the perform-
The Expediting Act, 15 U. S. C. §§28, 29, involved in the present case, does not contribute materially to our caseload. In the 1967 Term we had 12 such cases but only three of them were argued, the others being disposed of summarily. In the 1968 Term we had eight, but only three were argued. In the 1969 Term we had four; only two being argued. In the 1970 Term only two such cases reached us and each was argued. In the 1971 Term four such cases reached us, two of them being argued.
If there are any courts that are surfeited, they are the courts of appeals. In my Circuit — the Ninth- — it is not uncommon for a judge to write over 50 opinions for the court in one term. That Circuit has at the present time a 15-month backlog of civil cases, while we are current. The average number of signed opinions for the Court in
Separate opinions — including dissents and concurring opinions — multiply. If they are added to the total of 149 for the 1971 Term, the overall number would be 328. But the writing of concurrences, dissents, or separate opinions is wholly in the discretion of the Justice. It is not mandatory work; it is writing done in the vast leisure time we presently have.
The antitrust cases are only small fractions of our caseload. Yet they represent large issues of importance to the economy, to consumers, and to the maintenance of the free-enterprise system. Congress has expressed in the Sherman Act,
It is of course for Congress and Congress alone to determine whether the Expediting Act
It is true that several Justices over the years have expressed the desire that the antitrust cases come to us only by certiorari to the courts of appeals. So far as I am aware the only opinion speaking for the Court containing that suggestion is United States v. Singer Mfg. Co., 374 U. S. 174. But there the idea was contained only in a footnote (id., at 175 n. 1); and as Mr. Chief Justice Hughes was wont to say, “Footnotes do not really count.”
Not including orders of dismissal or affirmance.
Including orders of dismissal or affirmance.
Judiciary Act of Feb. 13, 1925, 43 Stat. 936.
Ford Motor Co. v. United States, 405 U. S. 562; United States v. Topco Associates, 405 U. S. 596.
The antitrust cases not argued in the 1967-1971 Terms were either reversed out of hand or affirmed out of hand (some of these being companion cases to those that were argued), or dismissed as moot, or dismissed for want of jurisdiction. There were three dismissed for want of jurisdiction.
Farbenfabriken Bayer A. G. v. United States, 393 U. S. 216, involved an interlocutory order in which we ruled that we had no jurisdiction. Standard Fruit & S. S. Co. v. United Fruit Co., 393 U. S. 406, involved an effort of a corporation, not a party, to inspect the divestiture plans being submitted to the District Court pursuant to a consent judgment. Garrett Freightlines v. United States, 405 U. S. 1035, involved an appeal from a defendant dismissed from the antitrust case because of the primary jurisdiction of the Interstate Commerce Commission over the acquisition in question.
Sherman Anti-Trust Act of July 2, 1890, e. 647, 26 Stat. 209, 15 U. S. C. §§ 1-7.
Clayton Act of Oct. 15, 1914, 38 Stat. 730, 15 U. S. C. § 12 et seq., § 44.
Robinson-Patman Act of June 19, 1936, 49 Stat. 1526, 15 U. S. C. §§ 13, 13a, 13b, 21a, 1013.
Celler-Kefauver Act of Dec. 29, 1950, 64 Stat. 1125, 15 U. S. C. §§ 18, 21.
For the legislative history of the Act see H. R. Rep. No. 3020, 57th Cong., 2d Sess.
Senator Fairbanks, leading exponent of the Act, said in reporting it to the Senate: “The far-reaching importance of the cases arising under antitrust laws now upon the statute books or hereafter to be enacted, and the general public interest therein, are such that every reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object.” 36 Cong. Rec. 1679.
Dissenting Opinion
dissenting.
The Expediting Act, enacted in 1903, provides that in civil antitrust actions brought by the United States “an appeal from the final judgment of the district court will lie only to the Supreme Court.” (Emphasis added.) Section 1292 (b), enacted in 1958, provides that when a district court, “in making in a civil action an order not otherwise appealable under this section,” shall appropriately certify the question involved, the court of appeals has discretionary jurisdiction to hear an interlocutory appeal from that order. Thus, the Expediting Act, by its terms, relates only to appeals from final judgments in a limited category of cases, while § 1292 (b) applies to appeals from certain interlocutory orders in all civil actions. The Expediting Act does not prohibit court of appeals jurisdiction under § 1292 (b), for the former applies only to final judgments, while the latter applies only to interlocutory orders. To find any inconsistency whatever between the two statutes thus requires rejection of the plain meaning of each of them — rejection, in short, of a most basic principle of statutory construction. As the Court of Appeals for the Seventh Circuit recognized in Fisons Ltd. v. United States, 458 F. 2d 1241, 1245 (1972), “the language of each [can] be given full effect without limiting the scope of the other.”
The legislative history of § 1292 (b) indicates that its primary benefit was expected to occur in the protracted or “big” cases, including civil antitrust litigation.
“Whatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory. . . . Direct appeals not only place a great burden on the Court but also deprive us of the valuable assistance of the Courts of Appeals.”
See also Brown Shoe Co. v. United States, 370 U. S. 294, 355 (1962) (Clark, J., concurring); id., at 364-365 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., 370 U. S. 460, 477 n. (1962) (Har-
It is said that a ban on court of appeals jurisdiction under § 1292 (b) in Government antitrust cases is to be derived from the provisions of § 1292 (a)(1). The latter section provides that the courts of appeals shall have jurisdiction of appeals from interlocutory orders of district courts granting or denying injunctions “except where a direct review may be had in the Supreme Court.” The argument is that that language expressly excludes court of appeals jurisdiction in Expediting Act cases; and since there is nothing in the language of § 1292 (b) that contradicts this express exclusion, interlocutory orders in Expediting Act cases are likewise not appealable under § 1292 (b). If § 1292 (b) did allow court of appeals jurisdiction in this case, it is said, the result would be that an interlocutory order in a Government antitrust case could be appealed to a court of appeals only if it did not involve an injunction; and that result would effectively turn § 1292 on its head, because in non-Expediting Act cases, § 1292 gives priority to injunctive orders, which may be appealed as of right.
There are several answers to this argument. At the outset, it is not clear that the major premise — that § 1292 (a)(1) expressly excludes court of appeals jurisdiction in Expediting Act cases — is valid. On that question, the
But even if the Expediting Act does bar court of appeals jurisdiction to review interlocutory injunctive orders under § 1292 (a) (1) in Government antitrust cases, it does not follow that there must be a similar bar to § 1292 (b) jurisdiction. The very fact that § 1292 (a) (1) contains express language which at least arguably creates an exception to court of appeals jurisdiction, while § 1292. (b) contains no such language, is reason enough to treat the two differently. Beyond that, § 1292 (a)(1) has a history dramatically different from § 129.2 (b). That history was thoroughly reviewed in United States v. Cities Service Co., 410 F. 2d 662 (CA1 1969), in United States v. Ingersoll-Rand Co., 320 F. 2d 509 (CA3 1963), and in the Court’s opinion today, ante, at 155-163, and need not be discussed in detail here. Suffice it to say that the original version of § 1292 (a)(1) was
As to the point that this interpretation would “turn § 1292 on its head,” it is certainly arguable that if an appeal from an injunctive order in an Expediting Act case cannot be had under § 1292 (a)(1), it may still be taken under § 1292 (b). Section 1292 (b) relates to orders “not otherwise appealable under this section,” whatever the nature of the order and whatever the reason for its nonappealability. Hence, if, in Government antitrust cases, courts of appeals have no jurisdiction under § 1292 (a)(1), then an interlocutory injunctive order would be an order “not otherwise appealable,” and § 1292 (b)’s discretionary jurisdiction might well be held to apply.
It is also argued that the basic policy of the Expediting Act was to remove all court of appeals jurisdiction in Government antitrust cases. According to this argument, although the Act speaks only of final judgments, it must be understood to include interlocutory appeals, since, at the time the Act was passed, the courts of appeals could review interlocutory orders only in cases where they could review final judgments. From United States v. California Cooperative Canneries, 279 U. S. 553, 558 (1929), to Brown Shoe Co. v. United States, 370 U. S., at 305 n. 9, the argument goes, this Court has consistently indicated that courts of appeals may not exercise jurisdiction in Expediting Act cases, regardless of whether the appeal is from a final or interlocutory order; and it should not be assumed that Congress in 1958 repealed this longstanding interpretation by legislation that is not addressed specifically to appeals in these cases.
I fail to see how we effect anything like a repealer of the Expediting Act by construing § 1292 (b) to permit court of appeals jurisdiction thereunder in Expediting Act cases. As demonstrated above, there is no inconsistency whatever between this construction of § 1292 (b) and the plain language of the Expediting Act. It is equally clear that the reason why in 1903, and indeed for 55 years thereafter, courts of appeals could not review noninjunctive interlocutory orders in cases where they could not review the final judgment is not that the Expediting Act forbade such review, but that there was no statutory authority for such review in any cases whatsoever. In 1958, however, Congress broke with the old policy against interlocutory appeals from noninjunc-tive orders and specifically provided that such appeals
The cases cited by the Government do not persuade me otherwise. California Canneries, of course, was decided 29 years before the enactment of § 1292 (b); and whatever was said there was a judgment on what Congress had done, not on what it could do or on the meaning of what it was to do 29 years later. Brown Shoe does postdate the enactment of § 1292 (b); but that case involved a direct appeal to this Court, and the only question about appealability was whether the appealed order was final. The issue of court of appeals jurisdiction under § 1292 (b) was not involved there, nor was the 1958 Act even mentioned in the short footnote .dictum so heavily relied on by the Government. That dictum did little more than quote the language of California Canneries, and it surely cannot be understood to decide the issue now before us.
Finally, it is said that it would be anomalous for a court of appeals that is without jurisdiction to entertain an appeal from a final judgment to decide an interlocutory issue that could control the outcome of the case. But there is no case in which the judgment of a court of appeals is necessarily final. Whenever a court of appeals decides a controlling question of law in any litigation, its views are subject to review here. Far from being anomalous, interlocutory review of potentially dis-positive questions by the courts of appeals in Government antitrust cases would be helpful to this Court, giving us the benefit of intermediate appellate consideration in these cases. We could then exercise our cer-tiorari power informed by the reasoning of an appellate
We cannot, of course, create an appellate jurisdiction not created by Congress, however desirable. But what Congress has conferred, we should not reject.
I would reverse the order of the Court of Appeals denying Tidewater’s petition to appeal under § 1292 (b) for lack of jurisdiction, and I would remand this case to that court with directions to consider the merits of the petition to appeal.
In reporting the bill that became the Expediting Act, Senator Fairbanks stated that:
“[E]very reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object.” 36 Cong. Rec. 1679.
The Senate Report on the bill that became § 1292 (b) stated:
“This legislation results from a considerable study by committees of the Judicial Conference. The legislation itself was introduced at the request of the Administrative Office of the United States Courts pursuant to the direction of the Judicial Conference of the United States. . . . The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff’s favor, are interlocutory since they do not end the litigation and are not therefore, under existing provisions of law, appealable. . . .
“The committee believes that this legislation constitutes a desirable addition to the existing authority to appeal from interlocutory orders of the district courts of the United States. . . . Any legislation, therefore, appropriately safeguarded, which might aid in the*180 disposition of cases before the district courts of the United States by saving useless expenditure of court time is such as to require the approbation of all those directly concerned with the administration of justice in the Ünited States.” S. Rep. No. 2434, 85th Cong., 2d Sess., 2, 4 (1958).
The Senate Report stated:
“There are many civil actions from which similar illustrations could be furnished. For example, in an antitrust action a plea may be entered that the claim is barred by the statute of limitations. If this motion is denied, under existing law the matter is not appeal-able and the case then goes forward to trial. Disposition of antitrust cases may take considerable time, yet upon appeal following final disposition of such cases, the court of appeals may well determine that the statute of limitations had run and for that reason the district court did not have jurisdiction.” Id., at 3.
Although the antitrust cases referred to in the Senate Committee Report on § 1292 (b) were apparently private cases, rather than Government litigation, the proposed legislation was introduced, after considerable study, at the direction of the Judicial Conference of the United States (n. 2, supra), whose members — all eminent federal judges — were surely familiar with the appellate procedure in civil antitrust cases brought by the Government.
The House Report on the bill explains this provision by quoting a letter of the Attorney General as follows:
“There are a number of cases now provided by statute where appeals may be made directly to the Supreme Court from the district and circuit courts ....
“The class of cases that I suggest should be brought within this rule, it seems to me, is of as great importance as any of those referred to. The suggested provision requiring a full bench of the circuit judges would insure the cases receiving as full consideration before presentation to the Supreme Court as if heard by the United States circuit court of appeals.” H. R. Rep. No. 3020, 57th Cong., 2d Sess., 2 (1903).
United States v. Cities Service Co., 410 F. 2d 662 (CA1 1969); United States v. FMC Corp., 321 F. 2d 534 (CA9 1963).
United States v. Ingersoll-Rand Co., 320 F. 2d 509 (CA3 1963). The reasoning of the Third Circuit in this case was as follows: Section 1292 (a)(1) permits an appeal to a court of appeals of interlocutory injunctive orders “except where a direct review may be had in the Supreme Court.” Since the Supreme Court has direct review in Expediting Act cases only from final judgments, it has none from interlocutory orders. Hence, the exception in § 1292 (a) (1) does not bar court of appeals jurisdiction over interlocutory injunctive orders in Government antitrust cases. The court then concluded:
“In fact, it is extremely difficult and requires doing violence to the language of the statute to escape the conclusion that interlocutory orders, such as the one at bar, are reviewable by a court of appeals excepting and only excepting those types of cases in which an interlocutory order is directly reviewable by the Supreme Court.” 320 F. 2d, at 517.
Reference
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- TIDEWATER OIL CO. v. UNITED STATES Et Al.
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- Published