84 S.Ct. 4 (1963), United States v. Fmc Corp.

Citation:84 S.Ct. 4, 11 L.Ed.2d 20
Party Name:UNITED STATES v. FMC CORPORATION and American Viscose Corporation.
Case Date:August 09, 1963
Court:United States Supreme Court

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84 S.Ct. 4 (1963)

11 L.Ed.2d 20



FMC CORPORATION and American Viscose Corporation.

United States Supreme Court.

Aug. 9, 1963


Before Mr. Justice GOLDBERG in Chambers.

The United States applies to me for an order enjoining the acquisition by respondent FMC Corporation ('FMC') of the business of American Viscose Corporation ('Avisco') pending the filing with and disposition by this Court of writs of certiorari. FMC and Avisco oppose the application. The parties have submitted memoranda and have argued before me in support of their positions. Two issues are presented: (1) Whether 28 U.S.C. s 1292(a)(1) confers jurisdiction upon a Court of Appeals to review the denial by a single district judge of an interlocutory injunction in an antitrust suit subject to s 2 of the Expediting Act of 1903, 15 U.S.C. s 29; and (2) whether in the present case, if jurisdiction is lacking under 28 U.S.C. s 1292(a)(1), this Court should issue a temporary

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injunction under the all-writs section of the Judicial Code, 28 U.S.C. s 1651(a), on the ground that consummation of the proposed merger might frustrate effective relief.

The application arises from a complaint filed by the United States in the District Court for the Northern District of California, Southern Division, alleging that s 7 of the Clayton Act prohibits the acquisition by FMC of the 'operating assets' of Avisco. Under a contract dated January 21, 1963, FMC agreed to purchase the business assets of Avisco for $116,000,000 on June 28, 1963. That date, however, was expressly made subject to extension in the event of a court injunction but in no case beyond September 30, 1963. On June 6, 1963, the United States filed its motion in the District Court for a preliminary injunction to restrain the acquisition pending trial on the merits. Supporting and opposing affidavits and memoranda of fact and law were filed by the parties. After argument the District Court denied the motion and also declined to issue a temporary injunction pending appeal to the Court of Appeals. 1

The United States, relying on 28 U.S.C. s 1292(a)(1), then filed a notice of appeal to the Court of Appeals for the Ninth Circuit. That court granted a temporary injunction pending disposition of the appeal, 2 and subsequently, on July 30, entered a brief opinion and order dismissing the appeal on the ground that it lacked jurisdiction to review interlocutory orders in antitrust cases. United States v. FMC Corp. & American Viscose Corp., No. 18753, 9 Cir., 321 F.2d 534. 3 In its opinion the Ninth Circuit expressly disagreed with the decision of the Third Circuit in United States v. Ingersoll-Rand Co., et al., No. 14405, June 5, 1963, 320 F.2d 509, which held that Courts of Appeals have jurisdiction under 28 U.S.C. s 1292(a)(1) to review interlocutory injunction orders in antitrust cases.

The question of appealability turns on the relationship between s 2 of the Expediting Act of 1903, 15 U.S.C. s 29, and s 1292(a)(1) of the Judicial Code, 28 U.S.C. s 1292(a)(1). The Expediting Act provides that: 'In every civil action brought in any district court of the United States under any of said (Antitrust) Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.' Section 1292(a)(1), codified in the Judicial Code of 1948, 4 grants the Courts of Appeals 'jurisdiction of appeals from: (1) Interlocutory orders of the district courts * * * modifying, refusing or dissolving injunctions * * * except where a direct review may be had in the Supreme Court.' From this language, the Government and the Third Circuit in Ingersoll-Rand, supra, reason that 'since the Expediting Act does not provide for 'direct review * * * in the Supreme Court' of interlocutory injunction orders--only of final judgments--such interlocutory orders are reviewable in the courts of appeals.' 5 However, this

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Court in a series of decisions extending over many years has consistently declared that by reason of the provisions of the Expediting Act no appeal lies, either to this Court or to the Courts of Appeals, from an interlocutory order in an antitrust case tried before a single district judge. 6 This rule has been followed by Courts of Appeals 7 other than the Third Circuit in Ingersoll-Rand and was well expressed by Mr. Justice Brandeis writing for the Court in United States v. California Cooperative Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 425, 73 L.Ed. 838:

'These 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, 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 interpretation accords with the recognized congressional purpose of eliminating, in antitrust cases, the delays inherent in allowing interlocutory appeals and review in two appellate courts. Neither the language of s 1292(a) (1) nor its legislative history in the 1948 codification 8 warrants any alteration in this interpretation, which the Government concedes was 'commonplace' 9 until Ingersoll-Rand. As recently as 1962, The Chief Justice writing for the Court in Brown Shoe Co. v. United States, 370 U.S. 294, 305, 82 S.Ct. 1502, 1512--1513, 8 L.Ed.2d 510, emphasized that under the Expediting Act only final orders are reviewable in antitrust cases such as this.

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In a note, The Chief Justice explained that: 'Congress thus limited the right of review in such cases to an appeal from a decree which disposed of all matters, and it precluded the possibility of an appeal either to this Court or to a Court of Appeals from an interlocutory decree.' Id., 370 U.S. at 305, n. 9, 82 S.Ct. at 1512, 8 L.Ed.2d 510. Whether the rule would be different where a three-judge court has been convened 10 need not now be considered. 11

The Government's contention and the opinion in Ingersoll-Rand are plausible but not persuasive. It would do violence to the plain meaning of the Expediting Act, the basic congressional policy there expressed, and the decisions of this Court, to invite piecemeal litigation of antitrust cases by permitting interlocutory appeals. The Ingersoll-Rand decision held in effect that the 1948 codification implicitly repealed a well-established construction of the Expediting Act. This Court observed in Fourco Glass Co. v. Transmirra Products Corp. et al., 353 U.S. 222, 227, 77 S.Ct. 787, 790, 1 L.Ed.2d 786, that: 'Statements made by...

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