United States v. American Society of Composers, A. & P.

• Decision Date: 14 April 1964
• Docket Number: Docket 28086.,No. 402,402
• Parties: UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee. Application of SHENANDOAH VALLEY BROADCASTING, INC., et al., Petitioners-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

331 F.2d 117 (1964)

UNITED STATES of America, Plaintiff, v. AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, Defendant-Appellee.

Application of SHENANDOAH VALLEY BROADCASTING, INC., et al., Petitioners-Appellants.

No. 402, Docket 28086.

United States Court of Appeals Second Circuit.

Argued March 30, 1964.

Decided April 14, 1964.

Certiorari Denied June 22, 1964.

Walter R. Mansfield, Donovan, Leisure, Newton & Irvine, New York City, for petitioners-appellants.

Arthur H. Dean, New York City (William Piel, Jr., Herman Finkelstein, New York City, Lloyd N. Cutler, of Wilmer, Cutler & Pickering, Washington, D. C., and Frederick A. Terry, Jr., of Sullivan & Cromwell, New York City, of counsel), for defendant-appellee.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

Certiorari Denied June 22, 1964. See 84 S.Ct. 1917.

FRIENDLY, Circuit Judge:

I.

A year ago we dismissed this appeal because of what we considered to be "the controlling force of the Expediting Act 32 Stat. 823 (1903) in routing all appeals from final judgments in actions by the Government under the antitrust laws to the Supreme Court . . ."; 2 Cir., 317 F.2d 90, 94 (1963), a construction which we thought to follow from the language of the statute and from decisions applying it such as Terminal R.R. Ass'n v. United States, 266 U.S. 17, 45 S. Ct. 5, 69 L.Ed. 150 (1924); United States v. California Co-op. Canneries, 279 U.S. 553, 558-559, 49 S.Ct. 423, 73 L.Ed. 838 (1929); United States Alkali Export Ass'n v. United States, 325 U.S. 196, 201-202, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); and De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). As our opinion indicated, we were troubled by the fact that although the order of the District Court dismissing appellants' application seemed indeed to be "final" so far as this action was concerned, the Supreme Court, without explanation and over Mr. Justice Black's dissent, had dismissed the appeal that appellants had taken to it, 371 U.S. 540, 83 S.Ct. 519, 9 L.Ed.2d 508 (1963). We thought this might have been founded on special principles relating to applications by persons not parties to the action, dismissal of whose claims for relief therein would leave them free to pursue other remedies, and that in any event denial of jurisdiction by the Supreme Court, for whatever reason, did not give us a role under a statute from whose scheme we considered the courts of appeals to have been excluded. On appellants' petition for certiorari, the Supreme Court summarily reversed, 375 U.S. 39, 84 S.Ct. 8, 11 L.Ed. 2d 8 (1963), explaining per curiam that its dismissal of the appeal that had been taken to it had been based on an "unexpressed view" that the Expediting Act was subject to an unexpressed exception with respect to a controversy which, as was deemed the case here, "is entirely between private parties and is outside the main stream of the litigation in which the Government is directly concerned."¹ Appeals to the courts of appeals peals from final orders in such controversies were held to lie under 28 U.S.C. § 1291.

The Supreme Court's description of the exception which it found implicit in the Expediting Act created a further problem of appellate jurisdiction. Before taking their appeals to the Supreme Court and to this court, appellants waited 58 days after the entry of judgment in the District Court, relying as to the latter on the provisions of 28 U.S.C. § 2107 and F.R.Civ.Proc. 73(a) allowing 60 days from the entry of judgment for all parties to appeal "in any action in which the United States or an officer or agency thereof is a party." In view of the Supreme Court's characterization of the instant controversy as "entirely between private parties," which appellee thought to raise a question as to the timeliness of the appeal to this court, it petitioned the Supreme Court for rehearing and obtained a modification of the per curiam opinion so that the cause, instead of being "remanded to the Court of Appeals for consideration on its merits," as originally ordered, was "remanded to the Court of Appeals for further proceedings in conformity with this opinion," 375 U. S. 994, 84 S.Ct. 627, 11 L.Ed.2d 467 (1964); Mr. Justice Goldberg and Mr. Justice Black thought the earlier order proper. We must therefore initially pass upon appellee's contention that the appeal is untimely because not taken within the 30 days normally allowed.

It is in the last degree undesirable to read into a procedural statute or rule, fixing the time within which action may be taken, a hidden exception or qualification that will result in the rights of clients being sacrificed when capable counsel have reasonably relied on the language. Section 2107 of Title 28 and F.R.Civ.Proc. 73(a) unequivocally allow "to all parties" 60 days to appeal in any action "in which the United States or an officer or agency thereof is a party." The stated criterion is whether the United States is a party to the action, a test clearly satisfied here, and not whether the United States is concerned with the particular order sought to be appealed — something that often cannot be accurately determined when the order is made. The only contrary case cited by appellee is Virginia Land Co. v. Miami Shipbuilding Corp., 201 F.2d 506 (5 Cir. 1953), where the court did say that the statute and Rule were "not intended to change the rule in respect to appeals by other persons from orders with which the United States had no concern simply because of the fact that the United States was a party to the proceeding below but not to the issues involved in the appeal." Whether or not we would follow that statement on such extreme facts as were there presented, we find it inapplicable here, as other courts of appeal have found when it has been cited to them. Division of Labor Law Enforcement v. Stanley Restaurants, Inc., 228 F.2d 420, 423 (9 Cir. 1955); American Export Lines, Inc. v. Revel, 262 F.2d 122, 126 (4 Cir. 1958); East v. Crowdus, 302 F.2d 645, 646-647 (8 Cir. 1962). In the Fifth Circuit case the United States had brought suit against Miami Shipbuilding Corporation for unpaid taxes and had had a receiver appointed; Virginia Land had filed a claim; four years after the United States had settled with Miami Shipbuilding and the receivership had been terminated, Virginia Land moved to have Miami Shipbuilding substituted as a respondent and to avail itself of the 60-day provision for appealing from a denial.² The United States had thus long since become a merely nominal party.

That is a far cry from this case. The consent decree gives the United States a continuing role in this action, authorizing it by the usual provisions to inspect the records of the defendant, to interview its officers, and to require reports from it; retaining jurisdiction to enable any of the parties to apply "for such further orders and directions as may be necessary or appropriate in relation to the construction of or carrying out of this Judgment, for the modification thereof, for the enforcement of compliance therewith and for the punishment of violations thereof"; and providing that at any time after five years the United States might apply for vacation or modification of the Judgment. It is patent that the United States had an interest in the very application here made. As the plaintiff at whose instance the decree was entered, the United States had a stake in having the bargain performed according to its understanding of what had been agreed; if appellants are right in saying that the decree required ASCAP to grant the type of license they sought, ASCAP's refusal would thus present an issue of compliance on which the United States might well desire to be heard. On the other hand, if appellants are seeking to impose on ASCAP obligations it had not undertaken, the United States might have an interest in opposing, because of the adverse effect such a precedent might have on its ability to obtain consent decrees in other cases, or for substantive reasons. Indeed, the United States did submit two memoranda to the District Court. In the first it took the position "that should the applicant show their request to be reasonable, in our opinion, the judgment requires ASCAP to offer a license of the type requested," and in the second it went further in aligning itself with appellants. Although this is not a requisite to the applicability of the 60-day provision, the Government could thus have appealed from the dismissal of appellants' applications — although we cannot now be altogether sure to what court such an appeal would have lain. Similarly if the United States had sided with ASCAP in the district court, it could have appealed from an order granting appellants' applications. Indeed, when the case was last here, the United States did participate to the extent of urging that the appeal be dismissed for want of jurisdiction on our part.

Appellee responds to such considerations by saying, with no little force, that however all this might seem if we were free to exercise our judgment, the Supreme Court has conclusively determined that "The controversy which is disposed of by the District Court's order is entirely between private parties and is outside the main stream of the litigation in which the Government is directly concerned." 375 U.S. at 40, 84 S.Ct. at 11 L.Ed.2d 8. But we cannot assume the Supreme Court thus meant to force us to hold the appeal untimely. If the Court had thought its language had the controlling effect for which appellee contends, it would not initially have reversed our judgment and remanded to us for consideration on the merits, but would have denied certiorari or affirmed on the ground of untimeliness, which appellee's brief in opposition to the grant of certiorari had urged as an alternative support for our dismissal of the appeal. Also the dissent on the order on rehearing makes it clear that the entire Court considered...