Tidewater Oil Company v. United States

PETITIONER: Tidewater Oil Company
RESPONDENT: United States
LOCATION: American Trust & Security Company

DOCKET NO.: 71-366
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 409 US 151 (1972)
ARGUED: Oct 11, 1972
DECIDED: Dec 06, 1972

A. Raymond Randolph, Jr. - for the respondents, pro hac vice, by special leave of Court
Moses Lasky - for petitioner

Facts of the case


Media for Tidewater Oil Company v. United States

Audio Transcription for Oral Argument - October 11, 1972 in Tidewater Oil Company v. United States

Warren E. Burger:

Next in number 71-366, Tidewater Oil against United States and Phillips Petroleum.

Mr. Lasky you may precede.

Moses Lasky:

Mr. Chief Justice and may it please the court.

The issue in this case can be stated quite quickly and quite succinctly.

It is a question of statutory construction.

It can be stated this way, “Does the Court of Appeals have jurisdiction under the Interlocutory Appeals Act of 1958 to entertain an interlocutory appeal in a Government civil antitrust case or has that appeal been precluded by the much earlier Expediting Act of 1903.”

Now the Act of 1958 was of course a revolutionary act because it was the customary and traditional animosity of the law to interlocutory appeals that had been existed from time immemorial, first broken through in the Evarts Act of 1891 to have interlocutory appeals on the injunctive orders.

In 1958, as a result of the experience of judges, and administrative office of the courts, the Interlocutory Appeals Act was enacted because it was believed there were situations where an interlocutory appeal could be very helpful in speeding along the law in situation of both the District Judge certified the cases in appropriate one and the Court of Appeals felt the same.

Warren E. Burger:

Well perhaps you have put your finger on the essence of the case, it works if they both feel the same way about it?

Moses Lasky:


Yes and our Court of Appeals here did not pass upon that.

It simply said it had no jurisdiction even to consider the matter.

Warren E. Burger:

Broadly, they did not feel the same way about it for different reasons?

Moses Lasky:

They didn't consider the matter on its merits.

Now this case the present case would, if the Court of Appeals had jurisdiction, have been the perfect textbook example of an appropriate case for an interlocutory appeal.

Now the question on which the interlocutory appeal was certified by the District Court was a sharp, simple and controlling question of law.

This suit had been filed in 1966 to enjoin acquisition by Phillips Petroleum Company of certain of the assets in the West of Tidewater Oil Company charging that it would violate Clayton Act, Section 7.

After extensive hearings, taking of evidence, the District Court had denied a restraining order, denied a preliminary injunction and the parties although the closing date had come, did not consummate the case could deferred -- doing anything at all until the District Court had denied the restraint and injunction and then the transaction was consummated, the sale was made.

The case then proceeded for the next five years as one for divestiture against Phillips Petroleum.

And the seller, my client, Tidewater remained in the case passively except to respond to all discovery, and then when discovered was completed and the government announced it was ready to go to trial.

Tidewater moved to dismiss the action as against it on the simple legal proposition that Section 7 is not aimed at the seller, but is directed solely at the buyer.

That was a clean cut proposition.

If we were correct that prevented the cases to Tidewater and as the trial judge said that the case would be a different case.

The district judge, this time a different district judge denied the motion.

Our motion to be dismissed but being doubtful of the correctness of his decision, he volunteered to certify for interlocutory appeal or in the alternative suggested that would mandamus.

Well mandamus was of course not an open remedy because the court had jurisdiction to decide what the laws meant.

He had jurisdiction to misconstrue the law, so mandamus was not over.

Now, we did hereupon petitioned the Ninth Circuit within the time allowed by the Act for an interlocutory appeal.

That court held that it lacked jurisdiction and it held that the Expediting Act of 1903 precluded it from having jurisdiction.

It did saw however solely upon the basis of authorities having to do with the jurisdiction of a Court of Appeals to entertain an appeal from orders granting or denying interlocutory injunctions and that has a wholly different history as I will suggest and indicate.