Tidewater Oil Co v. United States

Decision Date06 December 1972
Docket NumberNo. 71-366,71-366
Citation409 U.S. 151,34 L.Ed.2d 375,93 S.Ct. 408
PartiesTIDEWATER OIL CO., Petitioner, v. UNITED STATES and Phillips Petroleum Company
CourtU.S. Supreme Court

The Expediting Act, providing that in a civil antitrust action brought by the United States in a federal district court an appeal from that court's final judgment will lie only to this Court, lodged exclusive appellate jurisdiction over such actions in this Court and thus bars the courts of appeals from asserting jurisdiction over interlocutory orders covered by 28 U.S.C. § 1292(b), as well as over other interlocutory orders specified in § 1292(a). The legislative history of those provisions contains no indication of a congressional intent to impair the original exclusivity of this Court's jurisdiction under the Expediting Act. Pp. 154—174.


Moses Lasky, San Francisco, Cal., for petitioner.

A. Raymond Randolph, Jr., Washington, D.C., for the respondents, pro hac vice, by special leave of Court.

Mr. Justice MARSHALL 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 assets and operations of Tidewater violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. The District Court denied the United States' motion for a temporary restraining order to prevent consummation of the acquisition,1 and its subsequent motion for a preliminary injunction to require either rescission of the acquisition or maintenance by Phillips of the going-concern value of the transferred assets and operations.

Petitioner continued as a party to the suit during some five years of pretrial discovery and preparation.2 Then in April 1971, following the Government's announcement that it was ready for trial, petitioner moved to be dismissed as a party.3 The District Court denied the motion, but found that it involved '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 this litigation.' It therefore certified 'its order denying defendant's motion to dismiss for interlocutory appeal under Section 1292(b) of Title 28 of the United States Code.' As required by the statute, Tidewater then applied to the Court of Appeals for the Ninth Circuit for leave to prosecute the appeal. That court, however, denied the application relying solely on its previous decision in United States v. FMC Corp., 321 F.2d 534 (1963). There an attempt was made to appeal an interlocutory order denying a preliminary injunction in a Government civil antitrust case. Notwithstanding that 28 U.S.C. § 1292(a)(1) provides for an appeal of right to the courts of appeals from an order granting or denying preliminary injunctions, the Ninth Circuit held that it lacked jurisdiction over such an appeal in a Government civil antitrust case because of § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, which provides that '(i)n every civil action brought in any district court of the United States under any of (the 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.' In this case, then, the Court of Appeals extended its prior ruling to interlocutory orders within § 1292(b). Because this decision raises an important question of federal appellate jurisdiction and because a conflict among the circuits subsequently developed on this question,4 we granted certiorari.5 For the reasons that follow, we affirm the decision of the Court of Appeals.


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 1958.6

In an effort to 'expedite (certain) litigation of great and general importance,' 36 Cong.Rec. 1679 (remarks of Sen. Fairbanks),7 Congress enacted § 2 of the Expediting Act in 19038 to withdraw all intermediate appellate jurisdiction in Government civil antitrust cases. At the time of the passage of the Expediting Act, the then recently established circuit courts of appeals9 had jurisdiction under the Evarts Act over an appeal not only from a 'final decision'10 but also from 'an interlocutory order or decree' granting or continuing an injunction or appointing a receiver 'in a cause in which an appeal from a final decree may be taken . . . to the circuit court of appeals.'11 Hence, by lodging exclusive appellate jurisdiction over the 'final judgment of the district court' in this Court, the Expediting Act necessarily eliminated court of appeals jurisdiction over appeals from interlocutory, as well as final, decrees in Government civil antitrust cases.

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.'12 But mere speed in the disposition of Government civil antitrust cases was not Congress' only concern; that result might have been achieved simply by establishing procedures for the expeditious handling of such cases in the courts of appeals. Congress was also intent upon facilitating review by this Court 'of a class of antitrust cases deemed particularly important.'13 Because of the importance of uniform interpretation of the antitrust law,14 which was still in its infancy in 1903, it is understandable that Congress chose to establish this special appellate procedure for Government civil antitrust cases, which were thought generally to involve issues of wide importance.15

During the 25 years following the enactment of the Expediting Act, Congress amended the Evarts Act provision governing interlocutory appeals to the courts of appeals on four separate occasions—in 1906,16 1911,17 1925,18 and 1928.19 It can be argued that on its face the very first of these amendments once again made interlocutory appeals available to the courts of appeals in Government civil antitrust cases and that the language of each successive amendment, where relevant, perpetuated that state of affairs.20 But, while the clear meaning of statutory language is not to be ignored, 'words are inexact tools at best,' Harrison v. Northern Trust Co., 317 U.S. 476, 479, 63 S.Ct. 361, 363, 87 L.Ed. 407 (1943), and hence it is essential that we place the words of a statute in their proper context by resort to the legislative history. Nowhere is this better illustrated than in this case. For we find it in- conceivable that Congress, having purposefully withdrawn the jurisdiction of the courts of appeals in certain antitrust cases in 1903, would reestablish it in the same cases—but only for interlocutory orders—just three years later in 1906, without making any reference to that purpose. Yet no mention of either the Expediting Act or Government civil antitrust cases is to be found in the legislative history of the 1906 amendment to the interlocutory appeals provision21—or, for that matter, in that of the successive amendments insofr as they are relevant;22 rather, for each amendment some purpose wholly unrelated to Expediting Act cases is apparent from the relevant legislative materials.23 In light of this, we find it impossible to ascribe to Congress an intent to impair the original exclusivity of this Court's jurisdiction under § 2 through any of these amendments to the interlocutory appeals provision.

This clearly was the view of the seven members of the unanimous Court in United States v. California Cooperative Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838 (1929). There, in rejecting the argument that an appeal lay to the court of appeals from an order denying a motion to intervene in a Government civil antitrust case, the Court stated:24

'(t)he 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, 49 S.Ct., at 425 (emphasis added).

And a decade and a half later, in Allen Calculators v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 908, 88 L.Ed. 1188 (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, 65 S.Ct. 1120, 1124—1125, 89 L.Ed. 1554 (1945); De Beers Consolidated Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1132, 89 L.Ed. 1566 (1945).25

The wording of the interlocutory appeals provision was again altered in the 1948 revision of the Judicial Code.26 The result after certain subsequent minor changes not here relevant27—was the present 28 U.S.C. § 1292(a)(1), which allows '(i)nterlocutory orders of the district courts . . . granting, continuing, modifying,...

To continue reading

Request your trial
84 cases
  • Krangel v. Crown, Civ. No. 91-0210-R(P).
    • United States
    • U.S. District Court — Southern District of California
    • May 4, 1992
    ...held that a change during codification is not intended to alter the statute's scope."); Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375 (1972) ("The function of the Revisers of the 1948 Code was generally limited to that of consolidation and codifica......
  • Federal Communications Commission v. Pacifica Foundation
    • United States
    • U.S. Supreme Court
    • July 3, 1978
    ...meaning of the anticensorship provision. H.R.Rep.No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375. We conclude, therefore, that § 326 does not limit the Commission's authority to impose sanctions on lic......
  • U.S. v. Denson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 5, 1979
    ...of statutory interpretation "a most basic principle of statutory construction." Tidewater Oil Co. v. United States, 409 U.S. 151, 178, 93 S.Ct. 408, 424, 34 L.Ed.2d 375 (1972) (Stewart, J., dissenting). The United States Supreme Court explained this rule in one of its early cases: Where the......
  • International Tel. & Tel. Corp. v. General Telephone & Electronics Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 25, 1975
    ...of the § 16 proviso. We note that GTE makes no claim of exemption or immunity in this appeal. Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972), and Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d 841 (2d Cir. 1963), cert. denied, 376 U.......
  • Request a trial to view additional results
3 books & journal articles
  • Has the Supreme Court really turned RICO upside down?: an examination of NOW v. Scheidler.
    • United States
    • Journal of Criminal Law and Criminology Vol. 85 No. 4, March 1995
    • March 22, 1995
    ...v. American Petroleum Inst., 448 U.S. 607 (1980); Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623 (1977); Tidewater Oil v. United States, 409 U.S. 151 (1972); Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 (1972); Shapiro v. United States, 335 U.S. 1 (1948); Helvering v. Griffi......
    • United States
    • Michigan Law Review Vol. 116 No. 8, June 2018
    • June 1, 2018
    ...concerns include Thompson v. Keohane, 516 U.S. 99, 106 (1995); Key v. Doyle, 434 U.S. 59, 67-68 (1977); Tidewater Oil Co v. United States, 409 U.S. 151, 170 (1972); Hanna v. Plumer, 380 U.S. 460, 463 (1965); Magnum Import Co. v. Coty, 262 U.S. 159, 163 (1923); and Lau Ow Bew v. United State......
    • United States
    • Full Court Press Zalma on Property and Casualty Insurance
    • Invalid date
    ...Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831, n. 4 (1989); Finley v. United States, supra, at 554; Tidewater Oil Co. v. United States, 409 U.S. 151, 162 (1972). On the point in issue here, there is no such clear expression in the shift from specific language to the general, and the Reviser’s ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT