United States v. Cities Service Company

• Decision Date: 08 May 1969
• Docket Number: No. 7216.,7216.
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. CITIES SERVICE COMPANY et al., Defendants. Cities Service Oil Company, Appellant.
• Court: U.S. Court of Appeals — First Circuit

410 F.2d 662 (1969)

UNITED STATES of America, Plaintiff, Appellee, v. CITIES SERVICE COMPANY et al., Defendants Cities Service Oil Company, Appellant.

No. 7216.

United States Court of Appeals First Circuit.

May 8, 1969.

James D. St. Clair, Wellesley Hills, Mass., with whom Harold Hestnes and Hale & Dorr, Boston, Mass., were on brief, for appellant.

Wm. Richard Haddad, Atty., Dept. of Justice, with whom Edwin M. Zimmerman, Richard W. McLaren, Asst. Attys. Gen., and Gregory B. Hovendon, Atty., Dept. of Justice, were on brief, for the United States, appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is an appeal from an interlocutory order in a civil action brought by the United States under Section 7 of the Clayton Act, 38 Stat. 731 (1914), as amended, 15 U.S.C. § 18 (1958). The government alleges that acquisition by Cities Service of properties constituting the retail gasoline business of Jenney Manufacturing Company may substantially lessen competition or tend to create a monopoly. On May 1, 1968 the district court, pursuant to a stipulation, entered an order subject to further orders of the court, governing the disposition of the acquired properties pending the outcome of the case. The parties, however, were unable to agree as to whether Cities Service should be allowed to sell one of the acquired properties, the Chelsea Marine petroleum terminal, and the question was submitted to the court. The district court, after hearing, denied Cities Service's motion for approval of the sale.¹

Initially we must decide whether a court of appeals has jurisdiction over interlocutory appeals in civil antitrust actions brought by the government.

The parties are in agreement that this court has jurisdiction. Appellant Cities Service relies chiefly on the language of 28 U.S.C. § 1292(a) (1) and the Third Circuit decision in United States v. Ingersoll-Rand Co., 320 F.2d 509 (3d Cir. 1963) for the proposition that "since there is no provision for direct appeal to the Supreme Court of the order denying the motion for an order approving the sale of the Chelsea terminal, the Court has jurisdiction over such appeal by virtue of Section 1292(a) (1)." Appellee, the United States government, more broadly argues that legislative history, despite conventional judicial assumptions to the contrary, has long supported court of appeals jurisdiction over interlocutory orders in antitrust actions.

We have therefore faced a joint and unopposed advocacy for our taking jurisdiction. Handicapped by the lack of an adversary confrontation on this issue, we have nevertheless been obligated to seek and assess the considerations which might militate against the jurisdictional posture sought by both parties. Unfortunately, the unespoused case seems the more persuasive to us.

This is a confrontation between two statutes of hallowed history. One is the statute defining part of the appellate jurisdiction of courts of appeals, now 28 U.S.C. § 1292(a) (1), which says they shall have jurisdiction over appeals from "interlocutory orders of the district courts of the United States * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." This had its origins in section 7 of the Evarts Act of 1891, creating the courts of appeals, and has gone through a number of mutations. The other statute is the "Expediting Act", 32 Stat. 823 (1903), as amended, 15 U.S.C. § 29 (1958), which provides that in any civil antitrust action brought by the government, "an appeal from the final judgment of the district court will lie only to the Supreme Court."

The purposes of the two statutes are to some extent conflicting. Section 1292 represents a Congressional judgment that some interlocutory orders are of such significance that appellate review is necessary in order to prevent irreparable harm to an unsuccessful litigant. The purpose of the Expediting Act was to facilitate review by the Supreme Court of a class of antitrust cases deemed particularly important.² While scholars and jurists alike question the appropriateness of automatic Supreme Court review and the desirability of expedition of an entire case to the Supreme Court, it is clear that the taking by courts of appeals of jurisdiction to review interlocutory orders in government civil antitrust actions would to some extent impinge upon both aspects of the Expediting Act: the final review jurisdiction of the Supreme Court and expedition to the Supreme Court.³

The critical question in our view, therefore, is whether there have been any indications from Congress in legislation since the passing of the Expediting Act that the operation of that Act was to be modified, for we are unwilling to assume that a clear policy was altered by indirection. We conclude that there have been no such indications. In passing the Expediting Act in 1903, Congress chose to effectuate its intent by vesting review of antitrust actions directly in the Supreme Court. In 1906, 1911, and 1925 legislative changes restored interlocutory review jurisdiction to the courts of appeals in certain classes of cases. However, at no time did Congress address itself to interlocutory appeals in antitrust actions.⁴ The 1948 revision of the Judicial Code (§ 1292) did no more than codify existing law. In short, we cannot assume that the Expediting Act has been partially repealed sub silentio. We are persuaded that the history of the relevant legislation supports our holding and it is to a more detailed discussion of that history that we now turn.

Cities Service contends that the 1948 revision of the Judicial Code creates a symmetrical scheme, with § 1291 saying that courts of appeals could review final judgments of district courts except where direct review of such judgments may be had in the Supreme Court, and § 1292 giving courts of appeals review of interlocutory orders unless their direct review is to be had in the Supreme Court. This indeed is what the Third Circuit held in United States v. Ingersoll-Rand, 320 F.2d 509 (3d Cir. 1963) in a thoughtful opinion by Judge Biggs.

This is persuasive, were this a matter of first impression. But what we face is not a clear slate, but rather a palimpsest of many layers of statutory changes, legislative history, and Supreme Court interpretation.

Except for Ingersoll-Rand, decisions of the Supreme Court and courts of appeals have unanimously taken the position, since United States v. California Cooperative Canneries, 279 U.S. 553, 49 S. Ct. 423, 73 L.Ed. 838 (1929), that the Expediting Act bars appeals from interlocutory orders in government antitrust cases to courts of appeals. As stated by Mr. Justice Brandeis in dictum in Canneries, "* * * 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 principal, as the government phrases it, became "commonplace" in subsequent case law.⁵ Of recent vintage is the recognition of Canneries in the brief but explicit majority opinion reference and the extensive discussion of Mr. Justice Harlan, concurring and dissenting, in Brown Shoe Co. v. United States, 370 U.S. 294, 305, n. 9, and 357-365, 82 S.Ct. 1502, 8 L. Ed.2d 510. And, most recently, Mr. Justice Goldberg, acting as Circuit Justice in considering the government's application for temporary injunction of a merger pending the filing and disposition of writs of certiorari in the Supreme Court, in United States v. FMC Corp., 84 S.Ct. 4, 11 L.Ed.2d 20 (1963), declared himself unpersuaded that, as Ingersoll-Rand had held, the 1948 revision of the Judicial Code had "implicitly repealed a well-established construction of the Expediting Act." Id. at 7.

In the case at bar, the government, which has made the more extensive argument for jurisdiction, does not quarrel with Mr. Justice Goldberg's analysis of the 1948 code revision. It urges us to follow the result of Ingersoll-Rand but for a different reason: namely, that while the 1948 code revision merely confirmed prior law, the prior law, Canneries notwithstanding, gave power to courts of appeals to review interlocutory injunctions in this type of antitrust case.

The development of the prior law may be summarized as follows:

(1) In 1891 the Evarts Act (26 Stat. 828), creating the present system of Courts of Appeals, contained two sections relevant to our discussion. Section 5 specified six kinds of cases where final orders of a district court were directly reviewable by the Supreme Court.⁶ Section 7 provided that interlocutory injunctive orders were reviewable in courts of appeals only in cases in which these courts would review final orders. As of this time, final district court orders in antitrust cases not being directly reviewable by the Supreme Court, courts of appeals had both final and interlocutory review jurisdiction.

(2) In 1903 the Expediting Act was passed, section 2 of which made final orders in antitrust cases directly reviewable in the Supreme Court, thus withdrawing from circuit courts of appeals both the interlocutory and final review which section 7 had given them. The government deems significant a letter to the House Judiciary Committee at the time from the Attorney General in which he equates in the importance of direct review by the Supreme Court the Evarts section 5 cases, see n. 4, and certain antitrust cases. H.R.Rep. No. 3020, 57th Cong., 2d Sess. (1903), pp. 1-2.⁷ The government urges that because the Attorney General grouped the section 5 cases with certain antitrust cases in 1903 in justifying their direct review by the Supreme Court, it follows that Congress in later years similarly had antitrust cases in mind when it gave interlocutory review power to ...