United States v. District Court, Docket No. 19396.

• Decision Date: 01 December 1948
• Docket Number: Docket No. 19396.
• Citation: 171 F.2d 285
• Parties: UNITED STATES v. DISTRICT COURT FOR SOUTHERN DISTRICT OF NEW YORK.
• Court: U.S. Court of Appeals — Second Circuit

171 F.2d 285 (1948)

UNITED STATES v. DISTRICT COURT FOR SOUTHERN DISTRICT OF NEW YORK.

Docket No. 19396.

United States Court of Appeals Second Circuit.

December 1, 1948.

Leonard J. Emmerglick of Washington, D. C., for petitioner.

William Watson Smith, of Pittsburgh, Pa., opposed.

Before L. HAND, Chief Judge, and SWAN and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM.

We dismissed the plaintiff's petition on October 28, 1947, because we thought that it was properly a part of a second possible appeal in the action, over which we should have no jurisdiction.¹ The Supreme Court granted certiorari, and reversed our order,² holding that, regardless of whether it would have jurisdiction over a second appeal — a question as to which it reserved judgment — the petition raised only the question whether the district court had acted in accordance with our mandate; and that this was not so inextricably enmeshed in a second appeal that we should not decide it, even though we shall not have jurisdiction over a second appeal itself. It remitted the case without any expression of opinion, for us to decide the petition on the merits.

The prayer for relief is twofold: (1) That we direct the district court to strike out from Article XII of the judgment a clause, which gives leave to "Alcoa" to apply to the district court "for a determination of the question whether it still has a monopoly of the aluminum ingot market in the United States"; and (2) that we direct the court to dismiss "Alcoa's" petition, filed in accordance with the leave so granted. The purport of the article as a whole may be compressed as follows: after the Surplus Property Administrator shall have propounded an overall plan for the disposal of government owned aluminum plants, the Attorney General may ask the district court (1) to dissolve "Alcoa" in whole or in part; (2) to enforce the plan, "if the same shall establish competitive conditions" in the industry; (3) for such other relief as will "establish" such conditions, if the plan does not; and, on its part "Alcoa" may ask the court to decide "whether it still has a monopoly of the aluminum ingot market." The plaintiff's position, as we understand it, is that the clause which gives leave to "Alcoa" to ask the court to decide whether it still has a monopoly, is equivalent to making that issue determine the question of dissolution. We do not so interpret it; it must be read in harmony with the leave given to the Attorney General which we have...