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


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.

Moses Lasky:

Now the case is here before this Court because of the conflict.

The Ninth and the District of Columbia circuits both in the same quick decision cited some authorities that held that Court of Appeals lacks jurisdiction under the Interlocutory Appeals Act.

The Seventh Circuit in a very careful opinion has held that Court of Appeals do possess jurisdiction.

And thereupon, this Court having denied my petition for certiorari, granted it upon a petition for rehearing.

Now the place to start analysis I would assume must be the text of two statutes.

If it isn’t the place to end it now, this is certainly the place to start analysis.

The Interlocutory Appeals Act of 1958 states in the plaintiffs possible language, “that in a civil action, an interlocutory appeal to a Court of Appeals may be taken, if the District Court makes a certain certification on the Court of Appeals and its discretionary permits.”

In other words, in a civil action are all comprehensive, they are unlimited as to type of suit, there are unlimited as to litigant.

On the other hand, the Expediting Act which was enacted of course 55 years earlier says nothing at all about interlocutory appeals.

There is not a word in it about the subject.

It simply says, “That an appeal from the final judgment” and “in the Government civil antitrust suit will lie only to this Court.”

Now as the Seventh Circuit very closely observed if these two acts had been enacted by Congress simultaneously, the language of each could have been given effect without limiting the scope of the other.

And it is of course the fundamental principle that of statutory construction that where there are two acts effect should be given to each, if possible.

Now as the Seventh Circuit commented, there is entirely different language with respect to interlocutory appeals from injunctive orders, that goes back to the Evarts Act of 1891.

And what the Evarts Act said was that an interlocutory appeal on injunctive orders can be taken to a Court of Appeals if that court has the jurisdiction to hear an appeal from the final judgment, that was in the Act.

So that what when in 1903, the Expediting Act was passed which said that appeals from final judgments as its language in Government civil antitrust cases lay to this Court alone, that class of cases seize to be the class of cases to that the Evarts Act had to do with by its express language.

Now over the years, there has been — there have been revisions in the language of the Evarts Act, revisions of amendments and codifications, finally getting into the judicial code in 1948 and as a result there has been debate whether the Court of Appeals can entertain an appeal from interlocutory injunctive order as of right and again there is a conflict.

The Ninth Circuit and one of the other circuits holds no and the First Circuit held yes.

And that question has never reached this Court because it was never to anybody’s interest to bring it here.

Now I am not debating that line of decisions here, it’s not the problem we are dealing with.

We’re dealing here with the right to interlocutory appeal not as of right but discretionary under the Act of 1958.

Warren E. Burger:

You are speaking discretionary to the Ninth Circuit Court of Appeals in this one?

Moses Lasky:


Yes and that if the Court please is why I do not ask this Court to determine whether the appeal should be allowed.

I merely ask this Court to tell the Ninth Circuit that it has jurisdiction to consider that question and to remand this case to the Ninth Circuit to exercise its discretion and to determine whether we should have an appeal.

It’s well established I think that if lower court denies that it has jurisdiction and therefore refuses to exercise it this Court can tell it you do have jurisdiction now exercise it.

What the Ninth Circuit might do to my petition for leave to appeal when we get back is an open question, but it’s not a question I can present to this Court.

Now the government’s argument here has been that the Expediting Act is a special act and that 1958 Interlocutory Appeals Act is a general act and that a later general is not repeal an earlier special act unless it is very specific, but the error in that argument is that both acts are special acts and the Act of 1958 repeals nothing.

I would say they are both special acts in this sense.

The Expediting Act of 1903 is a special act dealing with the problem of appeal from a final judgment in a specific kind of case, Government civil antitrust.

Moses Lasky:

The Interlocutory Appeals Act of 1958 is a special act dealing with the right to take interlocutory appeals in all kinds of legislation.

No repeal of the Expediting Act is involved here because as I have already suggested to the Court the Expediting Act is nothing about interlocutory appeals.

Now the reason, the reason why before 1958 there was no right to an interlocutory appeal in a Government antitrust case was not that the Expediting Act prohibited it, but because there was no act of Congress which authorized it.

Prior to 1891 there was no act that authorized any interlocutory appeal.

Then we had an act that authorized interlocutory appeals on injunctive orders to a court that had a jurisdiction over the final appeal, but not until 1958 that any kind of law or statute authorize interlocutory appeal from a different character.

So the Act of 1958 repeals nothing, it added something brand new to the law, something which the courts have felt would be useful and I have cited in the brief, a statement from the Harvard Journal on legislation that the Judgment of the Congress that the Interlocutory Appeals Act would expedite litigation have proved to be sound from experience.

Now we come then to this question, that government has relied primarily on dictum, language of Justice Brandeis in United States versus California Canneries, the famous language and I will read those two sentences because this what the case has been made to turn on by the court below.

He said the court referring to the provisions concerning appeal prior to the Expediting Act, these provisions governing appeals in general were amended by the Expediting Act so that the suit in equity under the Antitrust Act “In which the United 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 have precluded the possibility of an appeal to either court from an interlocutory decree.

That’s the language my adversary seeks to fasten on us as somehow disposing of this case.

I have two observations I wish to make about that language and I believe both them are very (Inaudible).

First the court was not then laying down any rule of constitutional law.

It says there cannot be interlocutory appeals and that everything must be decided on a final appeal.

It was laying down no law of nature, some to use of expression of Mr. Justice Homes, some bruiting omni presence in the sky.

It was saying nothing about some immutable perpetual restriction.

It was chief speaking about (Inaudible) legislative policy on the state of the statutes in 1925 and it was entirely correct in what it said because since Congress had made no provision for an interlocutory appeal and it provided that it could only — the final appeal went to this Court it was correct there was no way to get an interlocutory appeal.

Now the Interlocutory Appeals Act was enacted 55 years after the Expediting Act, about 30 years after the California Canneries case was a sharp break with former attitudes about desirability of interlocutory appeals.

As I have already suggested it was a new departure manifesting erratically different attitude toward interlocutory appeals from the former antipathy.

And in the Canneries case this Court was at most expressing a judgment on what Congress had done, not on what Congress could do or what might be doing 30 years later.

Potter Stewart:

The colloquy of course is — this language was later coated in Brown Shoe?

Moses Lasky:

Yes it was.

Potter Stewart:

And after the enactment of the new law in 1958?

Moses Lasky:

Now the point the Brown Shoe was that it was pure dictum.

The question was not — that was not the question in Brown Shoe.

The question in Brown Shoe was whether a decision by the trial court in an acquisition violated the law before it had created a remedy was sufficiently final to permit appeal to toll and the court held it was.

Then in a footnote, it had this statement.

Now as to that of course it is well settled that not only the dictum is not binding, but statements made in a context in which the matter is not even before the court should not be given broad and exaggerated value.

Just the other day I said the other day, in May of this year in Kastigar versus the United States, visited here which is reported in 406 United States this Court observed that broad language, particularly in dictum and in the context of ancillary points, not essential to the decision of the court has no weight.

Now not only was Brown Shoe dictum where the Court wasn’t dealing with the question, it wasn’t presented to it for its consideration but what was said in the Canneries case on the subject was also a dictum, also a dictum for this reason.

There what was being appealed from was an order denying a motion for leave to intervene after a final decree, the United States versus Swift & Company and it’s settled law that a post judgment order on appeal from a post judgment order is not an interlocutory appeal.

Moses Lasky:

It itself is an appeal from a final order which this Court has held in El Paso case, one of the El Paso Natural Gas cases, well, settled at the time and most of Justice Brandeis’ opinion was pointing that out if that was a final order therefore the appeal lay only to that court.

Warren E. Burger:

Mr. Lasky let me get back with you if you will.

If the District Judge was correct that there was an issue of law which might dispose of the whole litigation and in your position is that the Court of Appeals then should have resolved that issue.

Would that be open to a petition for a certiorari?

Moses Lasky:


Warren E. Burger:

Now, then I suppose it was decided and accepted that would be final disposition of the case there will no petition for cert.

Isn’t that somewhat incompatible at least with the concept of the statute that appeals were to be directly to this Court?

Moses Lasky:

Well, I can answer that.

Warren E. Burger:

The final disposition of the case was to here as a matter of right?

Moses Lasky:

The Expediting Act was enacted under certain suppositions.

That this was a way to expedite litigation and experience has shown that it was not.

Secondly, that it was better to get the case into the hands of this Court and bypass the Courts of Appeal and as the Seventh Circuit remarked much more has been read into the Expediting Act then it actually contained.

Now we’re coming now to questions of policy and as to this I think my adversaries when they present this questions of policy or holding the sword by its blade.

This Court has frequently observed that it appreciates, I can make good use of the screening function of the Court of Appeals, it is useful.

This Court or justices of this Court have more than once in the last few years observed that the Expediting Act is not as desirable to Milly (ph) as it once was.

Now we have an act here, and my adversary says they can conceive legislation to handle the problem much better than this and I do not dispute, the Congress might think of legislation better than this, but I say, here is an act that exists and what aid the Congress has given to this Court should not be spurned even if there maybe foul.

Now let me address myself to the question of two things whether this is an anomalous procedure and whether it would impose a burden on this Court instead of alleviating a burden which I submit is the case.

It is not anomalous.

Congress has a right to experiment on appellate procedure.

It could well determine that interlocutory appeals are helpful.

It did so determined experience showed it was right.

At the same time he could very well say but let us not burden Supreme Court with interlocutory appeals.

Let us carry them through the Court of Appeals, then this Court through it certiorari jurisdiction having the benefit of that screening, the benefit of that judgment can look at it upon a petition for certiorari and determine whether it deserves further review.

William H. Rehnquist:

Mr. Lasky, supposing that the Ninth Circuit had held otherwise as to its jurisdiction and entertained your appeal and ruled with you, would the result had been in that case goes back to the district court for a dismissal and then doesn’t the government have a right to appeal under the Expediting Act to this Court?

Moses Lasky:

It would have a right to appeal under the Expediting Act to this Court at the end of the whole case or immediately if the Court made a proper order I think it is under Rule 54, I don’t have the exact rule number, but could have specified no reason for delay on that appeal, that is true.

William H. Rehnquist:

It could.

At any rate the proprietary of the decision of the Court of Appeals could have been reviewed under the Expediting Act by this Court at some future statement?

Moses Lasky:


In other this Court remains the final word in Government civil antitrust cases, but it also remains the final word in every other case.

And in every other case it determines that question whether it should intervene after it has had the benefit of the views of Court of Appeals.

Moses Lasky:

The procedure that I say submit the Interlocutory Appeals Act offers is that it can do the same here and I would submit that it would be extraordinarily useful if the courts below made greater use of this kind of procedure.

Now there are other arguments that have been presented by my adversaries and I approach the matter from a standpoint of responding to adversaries argument because it seems to me and as it seemed to the Seventh Circuit if you take the language of the statute on his face, it is plainly in favor of the interlocutory appeal.

The only way adversaries read the language to eliminate that is to bring the bear upon an erroneous history which is — or the history of interlocutory appeals from injunctive orders.

Now one other argument has been presented by Solicitor General’s Office which is that interlocutory appeals from injunctive orders deserve, are more meritorious, and should be allowed more than interlocutory appeals of the discretionary type that the 1958 Act deals with.

Of course that is a value judgment, they start with that premise.

And they say that no interlocutory appeal lies from an injunctive order in a Government antitrust suit and it would be very anomalous then to permit it to lie from another type of order.

This is one of the major arguments made in the Solicitor General’s brief and it has several flaws about it.

In first place, it is by no means clear that an injunction does — an appeal does not lie form an interlocutory appeals injunctive order in a Government antitrust suit under 28 U.S.C. § 1292 (a).

Now 1292 (a) is the old Evarts Act brought up to date.

1292 (b) is the Interlocutory Appeals Act of 1958.

There was a difference.

Where you have an appeal under 1292 (a) it is as of right of injunctive orders, receiverships.

To have an appeal under 1292 (b) it is a matter of joint discretion of the two lower courts.

Now it is not at all settled that there is no (Inaudible) as of right from an injunctive order because as I say there is a conflict between the circuits on that and this Court has never resolved it.

But assuming that you cannot have an appeal from an injunctive order as of right under 1292 (a) then you do have that right under 1292 (b) because 1292 (b) says, here is its language, “When a district judge in making in a civil action an order not otherwise appealable under this section” that’s 1292, “then the 1958 procedure applies.”

So that the argument doesn’t hold up.

I submit the matter in this way.

The Interlocutory Appeals Act of 1958 was the combination of a growing feeling over the years with the old, hard rule against interlocutory appeals was injurious to the administration of justice and it opened it up.

The Interlocutory Appeals Act repealed nothing.

It added something to the law.

On a face of the statute literally it allows an interlocutory appeal in any kind of civil case to a Court of Appeals if the two lower courts believe it isn’t a appropriate case.

William H. Rehnquist:

Mr. Lasky, if you are right in your last contention that 1292 (b) did repeal something, it did not repeal 1292 (a)’s limitation on right to appeal injunctive decrees to the court that had jurisdiction?

Moses Lasky:

In this — it not really repealed add to because 1292 (a) is a right to appeal as a right.

It does not call for any certification by the District Court.

It calls for no permission by Court of Appeal.

Then had an order to — in order to come in under 1292 (b) one would have to show that there is involved a controlling question of law upon which there is good grounds for dispute.

I think and that the decision would expedite the litigation.

Those were the tests that have to be made under 1292 (b) that do not have to be made under 1292 (a).

Now in how many injunction, preliminary injunction cases, matters that would — you could meet those tests, I do not know.

I think you might often be able to do so because an interlocutory injunction as was observed, I think by Mr. Justice Fortas in one of the cases in this Court, granted in a Section 7 case often has the effect of terminating the transaction and terminating litigation.

Moses Lasky:

So that I submit that the statute on its face allows an interlocutory appeal.

I submit that the statute, so interpreted, so applied would go along way to alleviate the burden of this Court, would give the court the benefit of the screening action of the Court of Appeals and I do not dispute that Congress might well look at it again and determine what other relief would be in order, but that is no reason to spurn the relief which Congress has presently given to us.

Thank you.

Warren E. Burger:

Thank you Mr. Lasky.

Mr. Randolph.

A. Raymond Randolph, Jr.:

Mr. Chief Justice and may it please the Court.

Mr. Lasky is quite right in characterizing the issue here is one of the statutory interpretation somewhat complicated because here we have two statutes to interpret, the Expediting Act in 1903 and the interlocutory appeals and then the 1958, which is Section 1292 (b).

Since we believe that the Expediting Act controls the decision in this case and that decision below should therefore be affirmed, I will begin with that statute.

Section 2 of the Expediting Act provides and I quote “that in Government civil antitrust cases, an appeal from the final judgment of the district court will lie only to the Supreme Court.”

SAC passed in 1903 had two basic purposes.

One to eliminate the delay of intermediate appeals and two to ensure that this Court and only this Court would decide that the questions in the cases presented there in these cases because of their importance in order to and order to ensure nationwide uniformity in the interpretation of the antitrust laws.

Now, accomplish — Congress accomplished both of these objectives in the Act as it obvious from its terms include direct path from the District Court to this Court in final judgments, for review of final judgments.

But it also precluded interlocutory appeals to the Courts of Appeals and it did this because of the time that was passed the Evarts Act as Mr. Lasky pointed out said that the Courts of Appeals had jurisdiction to review interlocutory appeals only in cases where they had jurisdiction to review the final judgment.

William H. Rehnquist:

Well, then was the Evarts Act and not the Expediting Act that precluded interlocutory appeals, wasn’t it?

A. Raymond Randolph, Jr.:

Well, I think that question can be cleared up when I discuss the cases that have interpreted the Expediting Act.

If Congress wanted to do — if Congress had the purpose of precluding intermediate appeals in the Expediting Act and we think it did.

It would have been just simply superfluous word to say and also we do not want any interlocutory appeals to take place.

It didn’t have to say that because under the provisions of the Evarts Act there would be no interlocutory appeals once the Expediting Act was passed and that is why Congress when they gave this Court the jurisdiction over final judgments precluded interlocutory appeals.

Now, over the years there has been a consistent interpretation of the Expediting Act to mean exactly what Congress intended to mean.

In 1929 Mr. Justice Brandeis stated for the Court that the Expediting Act had amended the provisions of the Evarts Act and he said, in the Expediting Act, Mr. Lasky pointed this also, Congress “limited the right of review to an appeal from a decree which disposed of all matters and precluded the possibility of an appeal either to this Court or to the Court of Appeals from an interlocutory decree.”

And Mr. Lasky tells us that was difficult.

Mr. Justice Brandeis who was noted for his sensitivity to jurisdiction, in pronouncing that statement, was not the holding of the Court and he tells us this because he says that in that case what we really had was a final judgment, but I think if this Court examines the opinion in California Canneries, they will notice that Mr. Justice Brandeis never did resolve whether the order being appealed from in that case was a final judgment or a final decree or an interlocutory decree, what decree.

What he said was it doesn’t matter which it is because the Courts of Appeals had jurisdiction over neither.

15 years later, after the opinion in the California Canneries case, this Court decided a case entitled Allen Calculators which we have cited, I believe on the page 23 of our brief.

In that case, the Court also relying on California Canneries and again — again stated, “jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals but solely in this Court and the Expediting Act, the Expediting Act limited the right of appeal to the final decrees,” not the Evarts Act, the Expediting Act.

Then surely they are after in two other cases in Alkali Exporters and in De Beers case both of which involved the review of interlocutory orders and Government civil antitrust cases by the common law writ of certiorari under the All Writs Act, the Court said that sole appellate jurisdiction in these kinds of cases lies in this Court.

It said the Expediting Act “permits appellate review of interlocutory orders only on appeal from final judgment” and it pointed out that the Act “manifests the plain indication of the legislative purpose to avoid piecemeal reviews.”

This brings us to Brown Shoe decided in 1962, four years after the amendment to the interlocutory Appeals Act that Tidewater relies upon.

Mr. Chief Justice Warren for the majority cited Canneries and said that in the Expediting Act, Congress precluded appeals to this Court and to the Courts of Appeals from interlocutory decrees.

Mr. Lasky points out that 1292 (b) was not involved in Brown Shoe.

A. Raymond Randolph, Jr.:

That is true, but what was involved in Brown Shoe was the question whether the decree in that case was a final judgment and one of the factors that motivated the Court to hold that it was a final judgment, was simply that if it was not, it was not appealable at all.

William H. Rehnquist:

Mr. Randolph I have read the footnote of Brown Shoe and I do not get any impression from the footnote that the Court was even aware that 1292 (b) had been passed several years early, do you think I am wrong?

A. Raymond Randolph, Jr.:

Well, I do not know whether the Court was aware of it of it or not but –

William H. Rehnquist:

There is certainly no indication in the footnote there?

A. Raymond Randolph, Jr.:

I think it’s significant that the Court in making that statement as the Court has said since 1929 in all of the cases I have just discussed.

It said that the statute that governs appeals in Government civil antitrust cases since 1903 is the Expediting Act.

William H. Rehnquist:

But if they were not aware of a statute passed in 1958, certainly that footnote isn’t addressed in to detain the construe —

A. Raymond Randolph, Jr.:


I am not arguing that that should be considered to hold, not at all.

But I think it is also a significant that in his concurring opinion Mr. Justice Clark, coincidentally was no friend of the Expediting Act, stated and I quote again, “that the Act declares in appeals and civil antitrust cases in which the United States is complainant and lie only to this Court.

It does deprives the parties of an intermediate appeal and Mr. Justice Harlan in his separate opinion said and I quote again that “Congress has seem fit to make this Court the sole appellate tribunal for civil antitrust cases instituted by the United States in doing so as chosen to limit this Court’s review and power to final judgments.

William H. Rehnquist:

Did any of those separate opinions mention 1292 (b)?

A. Raymond Randolph, Jr.:

Not (b) but Mr. Justice Harlan did mention the Interlocutory Appeals Act and he said that if this were other than a Government civil antitrust case, it could have been — the decree could have been appealed to the Courts of Appeals under 1292 (a), that’s on page 365-370 US 365.

Potter Stewart:

Well, all of that is generally of justice through the statement of the general rule and the general facts of the matter.

None of those opinions addressed themselves to the problem we have here, did they really at all?

A. Raymond Randolph, Jr.:

Well, I think they did in the sense that I am now about to propose to the Court.

Potter Stewart:

I was here then and I read the opinions before they were published?

A. Raymond Randolph, Jr.:

1292 (b) certainly [Attempt to Laughter] certainly was not involved in any of these cases, we agree with that.

But the important point is that we find from every justice that has ever spoken about the matter, saying that the purpose of Congress in passing the Expedite, Expediting Act was to preclude interlocutory appeals in the Courts of Appeals and that Congress did just that.

William H. Rehnquist:

But Congress changes purposes in the new Act?

A. Raymond Randolph, Jr.:

And I think that is one of the questions that I am gong to discuss.

Since that is what we have, a consistent interpretation of the Expediting Act for since 1929 to 1962 at least and I might add that in opinions we cited in our brief by Mr. Justice Goldberg in Chambers, he repeated the same thing.

That it is against this background, this is the background against which Tidewater argues that it may appeal from an interlocutory decree in this case and relies upon 1292 (b) which says that when a district judge in making in a civil action in order not otherwise appealable under this Section certifies that it involves a controlling question of law about which there is substantial difference of opinion that and it may as resolution on appeal may advance termination litigation then the Court of Appeals has discretion whether to hear the appeal.

Tidewater’s position amounts to this that although the Courts of Appeals have no jurisdiction to review final judgments in this case they may nevertheless cite controlling questions of law in Governments civil antitrust cases by reviewing interlocutory orders.

In others words, they may speak about and decide controlling questions of the law in cases where they have no authority to speak with finality.

Byron R. White:

Except that for a (Inaudible)

A. Raymond Randolph, Jr.:

I am sorry I do not understand your question Mr. Justice White.

Byron R. White:

Well, is it their position they can review and give injunction orders to interlocutory exempted orders?

A. Raymond Randolph, Jr.:

Is it Tidewater’s position?

In their reply brief they come very close to taking that position.

A. Raymond Randolph, Jr.:

They say —

Byron R. White:

So you think from 91 — 992 (a) is clear that Courts of Appeals may not review interlocutory exempted orders?

A. Raymond Randolph, Jr.:

That’s right.

The justice department, I might add had argued otherwise for a number of years had attempted to argue otherwise —

Warren E. Burger:

And you said this approach that Mr. Lasky fancies would defeat the objective of having this Court and only this Court be the final arbitrator?

A. Raymond Randolph, Jr.:


I think so.

But I think as far as the question of statutory interpretation involved in here what it means is that given that consistent interpretation of the Expediting Act of 1903 and I have said what it stands for and what this Court has said it stands for, the question is whether anything changed in 1958 by the passage of this general provision that applies to appeals in general and if Congress were about to change the Expediting Act and has been trying to do that now and might add with Bill before it since 1963 at least, one would expect at least a reference to the Expediting Act in the provision that supposedly repeals part of it.

William H. Rehnquist:

But the Expediting Act does not by its terms deal with interlocutory appeal, does it?

A. Raymond Randolph, Jr.:

This Court said —

William H. Rehnquist:

Does the Expediting Act by its terms deal with interlocutory appeals?

A. Raymond Randolph, Jr.:

Not on its face but I think you have to forget about 50 years of history and the legislative history behind it to say that Expediting Act as its purpose did not preclude interlocutory appeals, that was one of the reasons that it was passed.

Byron R. White:

Does it say final judgments?

A. Raymond Randolph, Jr.:

It says only final judgments on the face.

Byron R. White:

So it does deal with interlocutory appeals since the interlocutory appeals may not be solved here?

A. Raymond Randolph, Jr.:

Well, that is right.

What it does not say is —

Byron R. White:

If possibly it means that no interlocutory appeals should be taken in?

A. Raymond Randolph, Jr.:

So that is what this Court had said for since 1929.

Byron R. White:

(Inaudible) interlocutory appeals?

A. Raymond Randolph, Jr.:

Mr. Justice Rehnquist asked me whether one can see that on his face, it does not say interlocutory appeal and that was my — what I was trying to —

Warren E. Burger:

It deals with apply explicit exclusions?

A. Raymond Randolph, Jr.:

That is right and that was not in inadvertence or that was one of the very reasons it was passed.

Warren E. Burger:

Does the legislative history give us any aid there?

A. Raymond Randolph, Jr.:

Of the Interlocutory Appeals Act or the Expediting Act Mr. Justice?

Warren E. Burger:

Well, either, either.

A. Raymond Randolph, Jr.:

Well, with I think so and I am about to discuss, discuss that question.

It would seem that reasonable to expect and since what we are talking about is revision of the policy of procedural policy that has been followed for 50 years that if Congress were about to revise that, they would at least mention the Expediting Act.

They will discuss it thoroughly or say this is the way the Expediting Act should be revised.

But one will search in vain in the three years of committee reports, this Bill 1292 (b) passed in 1958 came about as the result of a draft by the judicial conference of the United States.

A. Raymond Randolph, Jr.:

In three years of reports which we cited in our brief, there is not one word about the Expediting Act or any indication they intended to revise that.

There is not one word about Government civil antitrust cases.

One can look through the congressional hearings on this bill, the house report, the senate report, the remarks on the floor in Congress, again, not one word about the Expediting Act.

Not one word about Government civil antitrust cases and yet Tidewater tells us that the very purpose of this Bill was to repeal the Expediting Act insofar as it precluded interlocutory appeals.

Now there is mentioned, there is some mention of antitrust cases.

We have to remember that all the Expediting Act deals with is Government civil antitrust cases and we think it is perfectly clear that when Congress was talking about antitrust cases in the legislative history of 1292 (b) they were referring only to private treble-damage actions.

That is on page 11 of our brief.

That is wrong?

I apologize, it is page 29 of our brief.

That is on page 11, Tidewater’s brief, this is quoted.

But the senate reports says that disposition of antitrust cases may take considerable time, yet upon appeal found final disposition of such cases, the Court of Appeals know and may will determine the statute of limitation had run and so on and so forth.

What is obvious is what they are talking about there is private treble-damage action because the final disposition of that kind of antitrust case would go to the Court of Appeals whereas in the government case it will come to this Court and no one has disputed that.

There was another reason why that — which is not mentioned in our brief which occurred to me, why that cannot apply — why that quotation cannot apply to Government civil antitrust cases and simply this, that when the United States brings an action for an injunction under the Sherman Act or the Clayton act that there’s no statute of limitations.

I think that the examples in the senate report and in the house report that deal with antitrust cases were taken from Chief Judge Parker’s testimony in the hearings on 1292 (b) and as the Court refers to that they will notice that Chief Judge Parker testifying about it, did say that he was only talking about private anti — private treble-damages actions.

He said, take for example on action of private treble-damages action.

William H. Rehnquist:

Mr. Randolph, is there no a statute of limitations at all in the Government civil antitrust action?

A. Raymond Randolph, Jr.:

For injunctive relief?

William H. Rehnquist:

For injunctive relief?

A. Raymond Randolph, Jr.:

There is one in the private treble-damages action, it is four years after the cause of action accrues.

William H. Rehnquist:

But none under Government?

A. Raymond Randolph, Jr.:

That is right.

Byron R. White:

What would you suggest as the reason for 1292 (b)?

A. Raymond Randolph, Jr.:

I think the reason is the same as the reason for allowing any interlocutory appeal which is simply that it says the litigants in trial courts is great deal.

Byron R. White:

And I suppose the reasons for 1292 (b) would apply equally do the kind of the suit we have in this case?

A. Raymond Randolph, Jr.:


Byron R. White:

And there would be no reason if you could think of to exclude this kind of case from 1292 (b) if you were approaching it rationally (Inaudible)?

A. Raymond Randolph, Jr.:

Well —

Byron R. White:

You would have your interlocutory of appeal?

A. Raymond Randolph, Jr.:

Yes, I can think of a reason.

Byron R. White:

You have an interlocutory appeal somewhere, anyway?

A. Raymond Randolph, Jr.:

Well, let me just say this.

Now, since 1963 Congress has been considering Bills to revise the Expediting Act and as we pointed out in our brief they came very close in the last Congress to giving a thorough revision to the Expediting Act.

And what they were about to do there was make it the basic rule that all these appeals will go to the Courts of Appeals.

The justice department supported this legislation, but then there would be an exception that after the final judgment of the District Court and if the Attorney General of the District Court certified that the case was of general public importance then there would be a direct appeal of this Court, but this Court would have discretion to refuse the appeal and remand the case of the Court of Appeals.

The one provision that is being contained in every Bill before Congress since 1963 and these were cited in our brief, is dealing with interlocutory appeals and it says this that appeals shall be allowed under 1292 (a), but not otherwise and that’s the bill that passed both houses of Congress last year and the reason for it is in the committee reports, I haven’t cited this in our brief, but in the committee reports on the Bill that was in the last house of Congress that Congress thought it would be anomalous to have the Courts of Appeals deciding controlling questions of the law in a case where the direct appeal might go to the Supreme Court of the United States.

Byron R. White:

Now is that — are those reasons expressed in the —

A. Raymond Randolph, Jr.:

In the committee report?

Byron R. White:


A. Raymond Randolph, Jr.:

Yes, they are.

If I can read the directly for a minute to make our point, so I can show you there that is the reason that is expressed there, I can give you the citation —

Byron R. White:

So you think there is some reason, some sensible reason for saying that the policy of 1292 should not reach cases like this?

A. Raymond Randolph, Jr.:


I think also the question that remains in this case that constantly remains in this case is why would — if Congress wanted to revise the Expediting Act, why would they have done it this way?

And we had — we’re given an expedite – well, first of all they did not even mention the Expediting Act in any of the history and what we have is a clear policy of the Expediting Act, includes interlocutory appeals and I think that unless Congress even deals with that question that a general statute can’t repeal that Expediting Act provision.

But the rationalization that Tidewater gives is well what Congress wanted to do is save this Court a lot of time and wanted to reduce this Court’s workload because of the direct appeals under the Expediting Act.

Well, the strange thing is that that’s not mentioned at all in any of the commission — committee reports, the hearings and anything else.

But the interesting about it is, I fail to see how appeals under the interlocutory appeals provision is going to reduce this Court’s workload one iota because the point is that no matter what the Court of Appeals decides when the interlocutory appeal, the number of cases where a direct appeal would lie remains the same.

In fact —

Byron R. White:

Do you agree that if Court of Appeals had allowed this interlocutory appeal and it decided for Tidewater that — that would that — the matter would have gone back to the District Court and that issue would have been appealable here by the government?

A. Raymond Randolph, Jr.:

It would depend, it would depend.

Well, first of all there could be a petition for certiorari from the Court of Appeals, that judgment.

That would be one avenue and the Court would get the case after considering —

Byron R. White:

I know, but if that — that means that if you don’t have an appeal as a right?

A. Raymond Randolph, Jr.:

Well, if it goes back, this is a question that has never been decided by the Court, but it’s possible, when you have multiple parties in the case under Rule 54 (d) of the Rules of Civil Procedure, a district judge may enter an order as to one party —

Byron R. White:

This is the final —

A. Raymond Randolph, Jr.:

— a final judgment order and then we may appeal just simply that part of the case under the Expediting Act.

Byron R. White:

As a final judgment of both party?

A. Raymond Randolph, Jr.:

As the final judgment, but anyway take for example, a case that derives under the Clayton — Section 7 of the Clayton Act and the question in the case is that is there is a motion to dismiss by the defender.

He claims Section 7 doesn’t cover conglomerate mergers and the District Court denies the motion to dismiss.

Now, suppose you can have an interlocutory appeal.

A. Raymond Randolph, Jr.:

Well, the defendant then takes as you know certainly a controlling question of law, certainly important.

Maybe it is substantial difference of opinion about it, the defendant takes his appeal to the Courts of Appeals.

The Court of Appeals affirms let’s suppose and says the Section 7 may in fact cover conglomerate mergers, then what happens?

Of course since it’s such an important question, the defendant petitions for certiorari and then what does this Court do?

Well, it looks at it, it’s certainly important, I mean, if that is the test for granting certiorari, certainly significant.

Suppose the Court grants certiorari and then decides that issue, somewhat in the abstract I might happen and then what happens?

Well, then the case goes back to the District Court and suppose the court says Section 7 does cover conglomerate mergers, the case goes back, you have a full trial after which there could be another direct appeal because the claim would be then that the evidence does not support the judgment of the District Court.

The case would have looked — the court would have at the case twice.

Warren E. Burger:

Well —

A. Raymond Randolph, Jr.:

Suppose —

Warren E. Burger:

That wouldn’t be the only basis on which the appeal could be taken.

It might be on the basis that the District Court was wrong as a matter of law, would it not?

A. Raymond Randolph, Jr.:


It could be on any number —

Warren E. Burger:

For following the Court of Appeals?

A. Raymond Randolph, Jr.:


But suppose that the — suppose there were interlocutory appeals allowed and how many times would the Court have to look at the case? Once, one time.

Of course the litigants, you know, if the Court finally decides that Section 7 does not cover conglomerate mergers, it put the litigants to a great deal of effort, they put the Trial Court to a great deal of effort that might otherwise have been avoided.

But the point is that that — Congress made that judgment with respect to Government civil antitrust cases.

It decided, look we have a choice.

One is to allow interlocutory appeals and save the litigants and time in District Courts, the other is to get expeditious review on appeal.

Congress made the choice in 1903.

It hasn’t changed it yet, it very well may in the future, it’s been considering that.

But that’s — that judgment as the Government civil antitrust case is already been made.

We do not think it has been revised.

William H. Rehnquist:

Mr. Randolph, supposing that we were to hold that 1292 (b) did apply to this sort of situation.

Don’t you think that since the certification by the district judge is discretionary and the entertainment of the appeal by the Court of Appeals is also discretionary that those, the lower federal courts could be trusted to be pretty sparing with this type of — of allowing us type of appeal?

A. Raymond Randolph, Jr.:

Well, I just have no basis on which to make that judgment.

I might say this though that in these Government civil antitrust cases, I would — if I were a district judge, perhaps my inclination would be that if there were any way to get it off my back, I’d do that and one of the ways may very well be to keep certifying interlocutory appeals.

Warren E. Burger:

District judges do not traditionally act that way very often, Mr. Randolph?

A. Raymond Randolph, Jr.:

Thankfully not, I maybe hypothetical with myself, but anyway that possibility is real.

I think that is something that Congress has to consider, the possibility of too many certifications and therefore slowing down the disposition of these cases where time is important.

The cases do drag out over a number of years, but I think time is important in these cases.

Particularly when you have injunctions in effect or injunction is not which is a usual type situation.

And so I think in summary what it comes down to is this, that the system of the appellate review for Expediting Act cases that Tidewater envisages.

With Circuit Courts of Appeals that have no jurisdiction to review final judgments passing on controlling questions of law is an anomaly in the federal appellate system.

There is no other area of federal appellate law where that exists.

Now, Tidewater says, that’s may be Congress experimented, but it seems strange that Congress did not even mention this, mentioned the possibility of this kind of system arising.

If it was attempting an experiment it did not even know what ingredients it was pouring into the brew.

And I think that in itself casts substantial doubt in the correctness of Tidewater’s position.

And we add to this the fact there is no indication, whatsoever the Congress considered the Expediting Act or even considered in the revision of 1292 (b), the burdens on this Court and that it’s doubtful at best that Tidewater’s proposed scheme would even save this Court any trouble and that in a long series of cases from the Canneries case to Brown Shoe every Justice who has spoken on the matter said that the Expediting Act forbids interlocutory appeals.

When you put all this together, we believe that there is no doubt that the court below correctly held that it didn’t have jurisdiction over Tidewater’s appeal and we think therefore that decision would be affirmed — the decision below should be affirmed.

Warren E. Burger:

Thank you Mr. Randolph.

Do you have anything further Mr. Lasky?

Moses Lasky:

No, if the Court please, I have to submit.

Warren E. Burger:

Thank you gentleman.

The case is submitted.