United States v. Munsingwear

Decision Date22 November 1949
Docket NumberNo. 13875,13876.,13875
Citation178 F.2d 204
PartiesUNITED STATES v. MUNSINGWEAR, Inc. (two cases).
CourtU.S. Court of Appeals — Eighth Circuit

John W. Graff, United States Attorney, St. Paul, Minn., for appellant.

John M. Palmer, Minneapolis, Minn. (Frederick H. Stinchfield and Stinchfield, Mackall, Crounse & Moore, Minneapolis, Minn., were with him on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The question for decision is whether the unconditional dismissal by this Court of an appeal from a judgment of a District Court, entered after a trial on the merits of a case controlled by federal law, prevents the judgment from becoming a bar to the relitigation, in a subsequent action between the same parties upon a different claim, of the identical issue determined by the judgment, if the dismissal of the appeal was based upon on the conclusion that the case had become moot.

These appeals are from judgments dismissing two actions for treble damages, upon the ground that an identical and controlling issue in each had been previously tried and determined in a prior action and that the judgment in that action barred the relitigation of the issue.

There is no substantial dispute as to the pertinent facts. On June 9, 1944, Chester Bowles, Administrator, Office of Price Administration, filed a complaint in the District Court against Munsingwear, Inc. (No. 13,875 in this Court). Two claims were stated in the complaint in two separate counts. The first was for an injunction, under § 205(a) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A. Appendix, § 925(a), to prevent the alleged violation by the defendant of Maximum Price Regulation No. 221 as amended. The second was for treble damages under § 205 (e) of the same Act, 50 U.S.C.A.Appendix, § 925(e). Each of the counts charged that the defendant had violated and was violating the Regulation in the pricing of its goods. In its answer the defendant denied that it had violated the Regulation.

By agreement of the parties and a pretrial order of the District Court, the treble damage claim stated in the second count of the complaint was to be held in abeyance until the final adjudication of the claim for an injunction stated in the first count.

On June 6, 1945, the same plaintiff brought another action against the defendant for treble damages under § 205(e) of the Act for the alleged violation of the same price regulation during the year subsequent to the period covered by the complaint in the first action. (The second action is No. 13,876 in this Court.) This action, by agreement, was continued pending the outcome of the trial of the first or injunction count of the complaint in the first action.

The sole issue under the injunction count (Count One of the complaint in the first action) was whether the defendant had or had not violated Maximum Price Regulation No. 221 in the pricing of its goods. If that issue were to be finally adjudicated in favor of the defendant, the plaintiff would not be entitled to an injunction nor to treble damages. If, on the other hand, the issue were to be decided in favor of the plaintiff, the final judgment would settle the question of his right to an injunction and to damages, and the only remaining issue in the treble damage actions would be the amount which he was entitled to recover under the second count of the complaint in the first action and under the complaint in the second action.

The issue under the injunction count was tried to the District Court in May, 1945. The court filed its opinion on October 22, 1945. Bowles v. Munsingwear, Inc., 63 F. Supp. 933. Findings of fact and conclusions of law were filed on January 19, 1946. The court determined that the defendant had "at all times complied in all material respects with MPR 221 as amended, and it is not and has not been in violation thereof." A judgment of dismissal was entered on January 19, 1946, from which an appeal was taken to this Court.

Paul A. Porter, as Administrator of the Office of Price Administration, succeeded Bowles as plaintiff. Porter was succeeded by Philip B. Fleming, Administrator, Office of Temporary Controls, and Fleming was eventually succeeded by the United States, which was, of course, at all times the real party in interest.

On November 12, 1946, while the appeal from the judgment entered after the trial of the injunction count of the complaint in the first action was pending, the commodity involved was decontrolled by an Executive Order of the Price Administrator. The appeal was thereafter submitted to this Court upon two motions of the defendant (appellee): (1) a motion to dismiss the appeal or to affirm the judgment because of the failure of the plaintiff (appellant) to comply with the Rule of this Court relating to the statement of points relied upon in his brief; and (2) a motion to dismiss the appeal because the case had become moot due to the Executive Order decontrolling the commodity in suit. This Court's opinion is found in Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125. After stating that it would be warranted in affirming the judgment appealed from for noncompliance by the appellant with Rule 11(b) Fourth of this Court, page 127 of 162 F. 2d, the Court proceeded to consider the motion to dismiss on the ground that the case had become moot. That motion was sustained, and the appeal was dismissed. Page 128 of 162 F.2d. The mandate of this Court was dated June 19, 1947, and shows that the dismissal of the appeal was based upon the conclusion that the case had become moot, and was not based upon a violation of any Rule of this Court.

On February 3, 1948, the defendant moved the District Court to dismiss the treble damage claims still pending against it, namely, the claim stated in Count Two of the complaint in the first action and the claim stated in the complaint in the second action. The ground for the motion was that the judgment on the first or injunction count of the complaint in the first action barred further proceedings on the treble damage claims.

The District Court, on June 2, 1948, entered an order directing its Clerk to enter a judgment of dismissal in each of the two treble damage actions. The order contained the following recital:

"At the hearing on said motions, it was conceded by counsel for the plaintiff that a redetermination of the same issues of violation of Maximum Price Regulation No. 221 as amended, as those determined by the judgment in said injunction action would be an essential prerequisite to the recovery of any damages in the said pending treble-damage actions, and he also conceded that he would submit the issues of violation in the treble-damage actions on the same record and evidence as that taken, transcribed and printed in said injunction action."

The contention of the Government on these appeals is stated in its brief as follows:

"When a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is moot, the judgment is not conclusive against him under the doctrine of res judicata in a subsequent action on a different cause of action."

The Government argues that "since the appeal from the judgment in the injunction suit was dismissed solely on the grounds of mootness and since the treble-damage actions are different causes of action Woodbury v. Porter, 8 Cir., 158 F.2d 194; Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125, the matters decided in the former suit are not conclusive by way of collateral estoppel in the instant action."

The main reliance of the Government in support of its contention is § 69(2), American Law Institute, Restatement of the Law of Judgments, which reads as follows:

"Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action."

We quote, also, Comment d. on Subsection (2) of § 69 (Restatement of the Law of Judgments, page 317):

"Where a judgment has been rendered against a party by a court of first instance, and on his appeal the appellate court refuses to review the proceedings because the controversy has become moot, the judgment is not binding in a subsequent action between the parties based upon a different cause of action."

This rule finds some support in Gelpi v. Tugwell, 1 Cir., 123 F.2d 377. There an appeal was taken from a judgment of the Supreme Court of Puerto Rico denying the appellant a writ of mandamus directing the Governor of Puerto Rico to reinstate her in the office from which she had allegedly been unlawfully removed. Before her appeal was ruled upon, the term of the office she had held had expired. Her case was dismissed as moot. The court said, however, at page 378 of 123 F.2d:

"Since appellant, without fault on her part, is prevented from obtaining a review of the judgment below merely because, from intervening events, the appeal has become moot, that judgment will not become res judicata on the issues involved, in any subsequent litigation based upon a different cause of action. Appellant will be free to attack collaterally the executive order of removal, either in a suit for salary, or in an appropriate proceeding to test her eligibility to hold certain civil offices should she later aspire thereto."

Judge Magruder, in a dissenting opinion, expressed the view that, while it was too late to order appellant's reinstatement, a decree vacating the executive order of which she complained, would not be inappropriate, since it would settle the questions of her right to recover her unpaid salary and of her eligibility to hold other offices. In other words, Judge Magruder was of the opinion that the matter decided against her should not be regarded as moot. However, he said, at page 379 of 123 F.2d:

"The opinion of the court, in...

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  • Milton S. Kronheim & Co., Inc. v. District of Columbia
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 9, 1996
    ...from, or of reserving the issue determined by that judgment for relitigation by the parties...." United States v. Munsingwear, Inc., 178 F.2d 204, 209 (8th Cir.1949). The Supreme Court affirmed. The Court rejected the government's argument that "res judicata should not apply" to "those who ......
  • United States v. Munsingwear
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    • November 13, 1950
    ...the District Court directing the treble damage actions to be dismissed. On appeal the Court of Appeals, by a divided vote, affirmed. 178 F.2d 204. The controversy in each of the suits concerned the proper pricing formula applicable to respondent's com- modities under the maximum price regul......
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    • U.S. Court of Appeals — District of Columbia Circuit
    • January 10, 1952
    ...the District Court directing the treble damage actions to be dismissed. On appeal the Court of Appeals, by divided vote, affirmed. 178 F.2d 204. The Supreme Court granted certiorari in each of the two treble damage actions and affirmed the decision of the Court of Appeals, thus itself decid......
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    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 27, 1973
    ... ... Walter E. WASHINGTON et al., Appellees ... No. 71-1164 ... United States Court of Appeals, District of Columbia Circuit ... Argued June 13, 1972 ... Decided ... But I also think United States v. Munsingwear, Inc., 2 to which this circuit has long adhered, requires vacation of so much of the order as ... ...
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