410 F. 2d 662 - United States v. Cities Service Company

This is an appeal from an interlocutory order in a civil action brought by the United States under Section 7 of the Clayton Act, 38 Stat. 731 (1914), as amended, 15 U.S.C. 18 (1958). The government alleges that acquisition by Cities Service of properties constituting the retail gasoline business of Jenney Manufacturing Company may substantially lessen competition or tend to create a monopoly. On May 1, 1968 the district court, pursuant to a stipulation, entered an order subject to further orders of the court, govering the disposition of the acquired properties pending the outcome of the case. The parties, however, were unable to agree as to whether Cities Service should be allowed to sell one of the acquired properties, the Chelsea Marine petroleum terminal, and the question was submitted to the court. The district court, after hearing, denied Cities Service's motion for approval of the sale.1

Initially we must decide whether a court of appeals has jurisdiction over interlocutory appeals in civil antitrust actions brought by the government.

The parties are in agreement that this court has jurisdiction. Appellant Cities Service relies chiefly on the language of 28 U.S.C. 1292(a)(1) and the Third Circuit decision in United States v. Ingersoll-Rand Co., 320 F.2d 509 (3d Cir. 1963) for the proposition that 'since there is no provision for direct appeal to the Supreme Court of the order denying the motion for an order approving the sale of the Chelsea terminal, the Court has jurisdiction over such appeal by virtue of Section 1292(a)(1).' Appellee, the United States government, more broadly argues that legislative history, despite conventional judicial assumptions to the contrary, has long supported court of appeals jurisdiction over interlocutory orders in antitrust actions.

We have therefore faced a joint and unopposed advocacy for our taking jurisdiction. Handicapped by the lack of an adversary confrontation on this issue, we have nevertheless been obligated to seek and assess the considerations which might militate against the jurisdictional posture sought by both parties. Unfortunately, the unespoused case seems the more persuasive to us.

This is a confrontation between two statutes of hallowed history. One is the statute defining part of the appellate jurisdiction of courts of appeals, now 28 U.S.C. 1292(a)(1), which says they shall have jurisdiction over appeals from 'interlocutory orders of the district courts of the United States * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct revew may be had in the Supreme Court.' This had its origins in section 7 of the Evarts Act of 1891, creating the courts of appeals, and has gone through a number of mutations. The other statute is the 'Expediting Act',32 Stat. 823 (1903), as amended, 15 U.S.C. 29 (1958), which provides that in any civil antitrust action brought by the government, 'an appeal from the final judgment of the district court will lie only to the Supreme Court.'

The purposes of the two statutes are to some extent conflicting. Section 1292 represents a Congressional judgment that some interlocutory orders are of such significance that appellate review is necessary in order prevent irreparable harm to an unsuccessful litigant. The purpose of the Expediting Act was to facilitate review by the Supreme Court of a class of antitrust cases deemed particularly important.2 While scholars and jurists alike question the appropriateness of automatic Supreme Court review and the desirability of expedition of an entire case to the Supreme Court, it is clear that the taking by courts of appeals of jurisdiction to review interlocutory orders in government civil antitrust actions would to some extent impinge upon both aspects of the Expediting Act: the final review jurisdiction of the Supreme Court and expedition to the Supreme Court.3

The critical question in our view, therefore, is whether there have been any indications from Congress in legislation since the passing of the Expediting Act that the operation of that Act was to be modified, for we are unwilling to assume that a clear policy was altered by indirection. We conclude that there have been no such indications. In passing the Expediting Act in 1903, Congress chose to effectuate its intent by vesting review of antitrust actions directly in the Supreme Court. In 1906, 1911, and 1925 legislative changes restored interlocutory review jurisdiction to the courts of appeals in certain classes of cases. However, at no time did Congress address itself to interlocutory appeals in antitrust actions.4 The 1948 revision of the Judicial Code (1292) did no more than codify existing law. In short, we cannot assume that the Expediting Act has been partially repealed sub silentio. We are persuaded that the history of the relevant legislation supports our holding and it is to a more detailed discussion of that history that we now turn.

Cities Service contends that the 1948 revision of the Judicial Code creates a symmetrical scheme, with 1291 saying that courts of appeals could review final judgments of district courts except where direct review of such judgments may be had in the Supreme Court, and 1292 giving courts of appeals review of interlocutory orders unless their direct review is to be had in the Supreme Court. This indeed is what the Third Circuit held in United States v. Ingersoll-Rand, 320 F.2d 509 (3d Cir. 1963) in a thoughtful opinion by Judge Biggs.

This is persuasive, were this a matter of first impression. But what we face is not a clear slate, but rather a palimpsest of many layers of statutory changes, legislative history, and Supreme Court interpretation.

Except for Ingersoll-Rand, decisions of the Supreme Court and courts of appeals have unanimously taken the position, since United States v. California Cooperative Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838 (1929), that the Expediting Act bars appeals from interlocutory orders in government antitrust cases to courts of appeals, As stated by Mr. Justice Brandeis in dictum in Canneries, '* * * Congress limited the right of review to an appeal from the decree which disposed of all matters, see Collins v. Miller, 252 U.S. 364, (40 S.Ct. 347, 64 L.Ed. 616) and it precluded the possibility of an appeal to either court from an interlocutory decree.' This principal, as the government phrases it, became 'commonplace' in subsequent case law.5 Of recent vintage is the recognition of Canneries in the brief but explicit majority opinion reference and the extensive discussion of Mr. Justice Harlan, concurring and dissenting, in Brown Shoe Co. v. United States, 370 U.S. 294, 305, n. 9, and 357-365, 82 S.Ct. 1502, 8 L.Ed.2d 510. And, most recently, Mr. Justice Goldberg, acting as Circuit Justice in considering the government's application for temporary injunction of a merger pending the filing and disposition of writs of certiorari in the Supreme Court, in United States v. FMC Corp., 84 S.Ct. 4, 11 L.Ed.2d 20 (1963), declared himself unpersuaded that, as Ingersoll-Rand had held, the 1948 revision of the Judicial Code had 'implicitly repealed a wellestablished construction of the Expediting Act.' Id. at 7.

In the case at bar, the government, which has made the more extensive argument for jurisdiction, does not quarrel with Mr. Justice Goldberg's analysis of the 1948 code revision. It urges us to follow the result of Ingersoll-Rand but for a different reason: namely, that while the 1948 code revision merely confirmed prior law, the prior law, Canneries notwithstanding, gove power to courts of appeals to review interlocutory injunctions in this type of antitrust case.

The development of the prior law may be summarized as follows:

(1) In 1891 the Evarts Act (26 Stat. 828), creating the present system of Courts of Appeals, contained two sections relevant to our discussion. Section 5 specified six kinds of cases where final orders of a district court were directly reviewable by the Supreme Court.6 Section 7 provided that interlocutory injunctive orders were reviewable in courts of appeals only in cases in which these courts would review final orders. As of this time, final district court orders in antitrust cases not being directly reviewable by the Supreme Court, courts of appeals had both final and interlocutory review jurisdiction.

(2) In 1903 the Expediting Act was passed, section 2 of which made final orders in antitrust cases directly reviewable in the Supreme Court, thus withdrawing from circuit courts of appeals both the interlocutory and final review which section 7 had given them. The government deems significant a letter to the House Judiciary Committee at the time from the Attorney General in which he equates in the importance of direct review by the Supreme Court the Evarts section 5 cases, see n. 4, and certain antitrust cases. H.R.Rep. No. 3020, 57th Cong., 2 Sess. (1903), pp. 1-2.7 The government urges that because the Attorney General grouped the section 5 cases with certain antitrust cases in 1903 in justifying their direct review by the Supreme Court, it follows that Congress in later years similarly had antitrust cases in mind when it gave interlocutory review power to courts of appeals over section 5 cases and made no reference to antitrust cases. This seems to us a tenuous link at best and in the light of the clear policy of the Expediting Act, an insufficient predicate for a subsilentio modification of the Expediting Act.

(3) Between 1891 and 1906 the practice had grown up of alleging spurious constitutional questions in order to qualify a case under Evarts section 5 for direct Supreme Court review and thus to foreclose review of orders relating to preliminary injunctions. In 1906, therefore, Congress amended Evarts section 7, eliminating the final order limitation on jurisdiction of courts of appeals to review interlocutory injunctive orders, and providing that an appeal may be taken to a court of appeals from such an order 'in any cause'.

The government contends that, while the debates in Congress were concerned primarily with the practive of tacking on to a suit a spurious constitutional issue (40 Cong.Rec. 4856-4857 (1906)), the language of the legislation is sweeping and brooks no exceptions. It also leans heavily on language from the Report of the House Committee on the Judiciary (H.R.Rep. No. 542, 59th Cong., 1st Sess. (1906), p. 2), which admittedly is equally unqualified. We look at this language in its context, however, both because such a step is generally advisable and because it would seem odd for the Congress to add an interlocutory jurisdiction to the three year old section 2 of the Expediting Act without mentioning it.

The House report begins with a listing of the Supreme Court direct appeal cases in Evarys section 5; it then cites the decree limitation on the interlocutory review jurisdiction of courts of appeals and proceeds with the language we quote in the margin.8 The report concludes with a reference to cases where plaintiffs, after once having gotten an interlocutory order for an injunction only to have it reversed by a court of appeals, filed a new petition containing identical allegations but adding a constitutional question and neatly foreclosed appeal. The report then commented, 'The Committee is of opinion that the law should be so amended that, in the cases mentioned, the right of appeal (i.e., to a court of appeals) wouls still exist.' Id. at p. 3. We think it clear, therefore, that the Congress had its mind primarily on dealing with the spurious constitutional issue problem and, while dealing with it, saw fit to extend interlocutory review of courts of appeals to the Evarts section 5 types of cases, constitutional and non-constitutional. We see no intention to deal with the problem of harmonizing the expedition of antitrust cases with the allocation of judicial burden as between the Supreme Court and the courts of appeals.

Were we construing in vacuo this 1906 legislation, we might well say that even though the Congress may not have realized that it was adding an interlocutory review jurisdiction where none had existed before, it nevertheless did just that. But, as we have noted, this followed the Expediting Act before the ink was hardly dry, and in turn was followed by other history, both legislative and judicial.

(4) In 1911 section 129 of the Judicial Code codified Evarts section 7, changing the 'in any cause' language to allow court of appeals to review 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.' (36 Stat. 1134). All we know of the intent of the Congress was that the purpose of the change was 'to remove any doubt upon this point.' S.Rep. No. 388, 61st Cong., 2d Sess. (1911), p. 53. Again the language is sweeping but with no indication that any substantive change in the Expediting Act was intended. Nor, apparently, was any attempt made to take advantage of the language.9

(5) This bring us to the Judges' Bill of 1925 (43 Stat. 937) which amended the interlocutory review jurisdiction of courts of appeals (129) by dropping the 1911 'notwithstanding' language. The relevant language then stood: 'Where * * * an injunction is granted (etc.) * * * an appeal may be taken from such interlocutory order or decree to the circuit court of appeals * * *.'

This legislation was unique in that the bill, and the analysis and review of its provisions were prepared by a committee of the Supreme Court on its own initiative, to reduce its obligatory jurisdiction. Hearing on S. 2060 and S. 2061 before a subcommittee of the Senate Judiciary Committee, 68th Cong., 1st Sess. (1925), pp. 1, 6. It deleted some of the old Evarts section 5 (then section 238) direct review matters from its jurisdiction: cases involving jurisdictional, prize, constitutional and treaty questions. The new section 238 read in part as follows:

'Sec. 238. 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 or interstate commerce laws, and so forth. * * *'

(The remaining three classes of direct review cases were writs of error in certain non-double jeopardy criminal cases, appeals from interlocutory injunctions to suspend the enforcement of a state statute or order, and appeals from interlocutory and final decrees of the Interstate Commerce Commission.)

The Court committee's explanation for dropping the caveat regarding court of appeals interlocutory jurisdiction ('notwithstanding an appeal in such case might, upon final decree * * * be taken directly to the Supreme Court') was that it was 'eliminated as having no further application in view of the repeal of the existing provisions of section 238, the only material changes' being the addition of modification or refusal to modify an injunction and refusal of an order to wind up a receivership as occasions for review. Hearing on S. 2060, supra, p. 12. Mr. Justice Van Devanter made clear what was in the Court committee's mind when he testified that the first and fourth classes of section 238, antitrust and interstate commerce cases, 'are heard in the district court by three judges, one of whom must be a circuit judge. This and the character of the cases make it suggest that they should go directly to the Supreme Court rather than through the circuit court of appeals.' Hearing on S. 2060, supra p. 33.

It therefore appears that the Court committee-- and the Congress-- thought that the bill so reduced the direct Supreme Court review class of cases that all that were left were either cases where the courts of appeals now had both interlocutory and final review jurisdiction or cases where, even though the Supreme Court retained final direct review, the cases were heard originally before a statutory three judge court. But while this dichotomy covered government civil antitrust cases, certified by the Attorney General to be of general public importance and thus heard initially by a three judge court, it did not cover such cases heard by a single judge.

The question of interlocutory jurisdiction over civil antitrust cases brought before a single judge was obviously not a subject for attention-- possibly because few if any litigants thought they had appeal rights from interlocutory orders. See n. 9. But this observation does not advance the argument that the Judges' Bill created a new interlocutory jurisdiction. If the 1911 'notwithstanding' language did not create such jurisdiction, then dropping such language because the same coverage could be achieved without it could be no more effective. Moreover, one fact stands out: section 238 clearly retained without erosion whatever jurisdiction section 2 of the Expediting Act conferred, whether interlocutory or final. There appears no intention to carve anything out of this for the courts of appeals.

Four years after the Judges' Bill became law, in 1929, Canneries was decided by a unanimous Court of seven judges, all of whom had been on the Court when its committee submitted the Judges' Bill. Under these circumstances we find it impossible to say that its crisp but clear interpretation of the sweep of the Expediting Act-- which had remained untouched by the legislation stemming from the Judges' Bill-- can be dismissed as non-binding dictum or that its holding can be distinguished because it dealt with an interlocutory jurisdiction law of the District of Columbia rather than with section 129, the predecessor of 1292(a)(1).

(6) The only remaining development to consider is the 1948 revision of the Judicial Code which reclassified section 129 as section 1292(a)(1), adding the phrase 'except where a direct review may be had in the Supreme Court.' Here we say, contrary to the holding in Ingersoll-Rand, that the phoof is manifold that codification was not intended to make changes of any significance.10 Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 1 L.Ed. 786 (1957).

We realize that time has made ancient good much less couth than it was in 1903, and that requiring Supreme Court review of final district court actions in government civil antitrust cases and barring any court of appeals review of interlocutory orders make little sense today. The call for another-- and hopefully less ambiguous-- change in jurisdiction has been sounded on both the judicial11 and legislative fronts.12 This, however, is beyond what we conceive to be the limits of our innovative reach, particularly since the subject matter is our own interlocutory jurisdiction. Baltimore Contractors' Inc. v. Bodinger, 348 U.S. 176, 185, 75 S.Ct. 249, 99 L. 233 (1945).

It may well be that the Expediting Act is a prime candidate for revision. However, the patient demands a more extensive cure than that suggested by the parties to this appeal. In order to accommodate the interest of allowing interlocutory appeals while preserving the expediting purpose of the Expediting Act-- if indeed that purpose retains its priority-- it would not be sufficient merely to permit the review sought here. It would also the necessary to consider imposition of an abbreviated appeal period,13 or the giving of such cases a priority status on the calendar.14 This kind of expedition, however, might not be necessary in many cases, while interlocutory orders in certain cases might be deemed important enough for certification to the Supreme Court.15 Perhaps Congress would also wish either to abolish the little used provision for three judge courts or to distinguish between interlocutory orders from such courts as opposed to those from a single judge.16 There is also the much discussed question whether the Attorney General or the district court or each should be empowered to certify appeals as meriting expedited Supreme Court review.17 These proposals may not constitute major surgery but in our judgment their implementation is beyong the power of the courts.

Appeal dismissed.