United States v. Ohio Power Company

• Decision Date: 01 April 1957
• Docket Number: No. 312,312
• Citation: 353 U.S. 98,1 L.Ed.2d 683,77 S.Ct. 652
• Parties: UNITED STATES of America, Petitioner, v. The OHIO POWER COMPANY
• Court: U.S. Supreme Court

353 U.S. 98

77 S.Ct. 652

1 L.Ed.2d 683

UNITED STATES of America, Petitioner,

v The OHIO POWER COMPANY.

No. 312.

Decided April 1, 1957.

PER CURIAM.

On June 11, 1956, we unanimously vacated sua sponte our order of December 5, 1955, 350 U.S. 919, 76 S.Ct. 192, 100 L.Ed. 805, denying the timely petition for rehearing in this case, 351 U.S. 980, 76 S.Ct. 1044, 100 L.Ed. 1495, so that this case might be disposed of consistently with the companion cases of United States v. Allen-Bradley Co., 352 U.S. 306, 77 S.Ct. 343, 1 L.Ed.2d 347, andNational Lead Co. v. Commissioner, 352 U.S. 313, 77 S.Ct. 347, 1 L.Ed.2d 352, in which we had granted certiorari the same day, viz.June 11, 1956.351 U.S. 981, 76 S.Ct. 1052, 100 L.Ed. 1496.If there is to be uniformity in the application of the principles announced in those two companion cases, the judgment below in the instant case cannot stand.Accordingly we now grant the petition for rehearing, vacate the order denying certiorari, grant the petition for certiorari, and reverse the judgment of the Court of Claims on the authority of United States v. Allen-Bradley Co., supra, andNational Lead Co. v. Commissioner, supra.

We have consistently ruled that the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.This policy finds expression in the manner in which we have exercised our power over our own judgments, both in civil and criminal cases.Clark v. Manufacturers Trust Co., 337 U.S. 953, 69 S.Ct. 1525, 93 L.Ed. 1754;Goldbaum v. United States, 347 U.S. 1007, 74 S.Ct. 861, 98 L.Ed. 1132;Banks v. United States, 347 U.S. 1007, 74 S.Ct. 861, 98 L.Ed. 1132;McFee v. United States, 347 U.S. 1007, 74 S.Ct. 862, 98 L.Ed. 1132;Remmer v. United States, 348 U.S. 904, 75 S.Ct. 288, 99 L.Ed. 710;State of Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464, 100 L.Ed. 486;Boudoin v. Lykes Bros. S.S. Co., 350 U.S. 811, 76 S.Ct. 38, 100 L.Ed. 727;Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075;Achilli v. United States, 352 U.S. 1023, 77 S.Ct. 588.

Reversed.

Mr. Justice BRENNAN and Mr. Justice WHITTAKER took no part in the consideration or decision of this case.

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice BURTON join, dissenting.

The Court's action in overturning the judgment of the Court of Claims in this case, nearly a year and a half after we denied certiorari, and despite the subsequent denial of two successive petitions for rehearing, is so disturbing a departure from what I conceive to be sound procedure that I am constrained to dissent.

This is a tax case involving the right of the War Production Board to certify that only part of the actual cost of wartime facilities, constructed by a taxpayer at the instance of the Government, was necessary in the national defense and hence subject to accelerated amortization under § 124(f) of the Internal Revenue Code of 1939.¹Claiming that the War Production Board had no power to certify less than the full cost of such facilities, the Ohio Power Company sued the Government in the Court of Claims to recover an alleged overpayment of taxes, asserting that it was entitled to accelerated amortization of the full cost of wartime facilities which it had constructed, and not merely of that part of the cost which the War Production Board had certified as necessary in the interest of national defense.The Court of Claims, sustaining this contention, entered judgment in favor of the taxpayer on March 1, 1955.²

On August 12, 1955, the Government petitioned for certiorari, its time for filing having been duly extended.We denied the petition on October 17, 1955.350 U.S. 862, 76 S.Ct. 104, 100 L.Ed. 765.On November 10, 1955, the Government filed a timely petition for rehearing, requesting that its consideration be deferred until the case of Commissioner of Internal Revenue v. National Lead Co.,³ involving this same tax question, had been decided by the Court of Appeals for the Second Circuit.We denied this petition on December 5, 1955.350 U.S. 919, 76 S.Ct. 192, 100 L.Ed. 805.On February 14, 1956, the Court of Appeals decided National Lead in favor of the Government, ⁴ and on April 3, 1956, the Court of Claims, in Allen-Bradley Co. v. United States,⁵ decided the same tax question favorable to the taxpayer, as it had already done in the Ohio Power case.This, then, provided the Government with the 'conflict' which had been lacking at the time when the Court denied its petition for certiorari in the present case.On this basis the Government, on May 3, 1956, petitioned for certiorari in Allen-Bradley,⁶ and at the same time petitioned for leave to file a second petition for rehearing in the Ohio Power case.On May 28, 1956, the Court denied that petition because it was both long out of time and 'consecutive,'⁷351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480, and thus for the third time refused to take the case.Nevertheless, two weeks thereafter, on June 11, 1956, the Court, incident to its grants of certiorari in the Allen-Bradley and National Lead cases, vacated sua sponte its order of December 5, 1955 denying the Government's original timely petition for rehearing in the Ohio Power case.351 U.S. 980, 76 S.Ct. 1044, 100 L.Ed. 1495.And today the Court grants that petition, some 16 months after it had originally been denied, and reverses the Court of Claims' judgment in favor of the taxpayer.

I.

In my opinion, today's order reversing the Court of Claims violates our own Rules.That order is based upon the Court's order of June 11, 1956, which vacated the order of December 5, 1955 denying the Government's first petition for rehearing of the denial of certiorari.This June 11 order thus purported to continue consideration of the original petition for rehearing, which is now granted.Under our Rules, I think the order of June 11 was improvidently issued.⁸Had the Government, just prior to June 11, 1956, petitioned to vacate the order of December 5, 1955, the petition would have violated Rule 58 of our Revised Rules, whether considered as, in effect, a petition for rehearing of that order, in which case it would have been out of time, or as a petition for rehearing of the original denial of certiorari, in which case it would have been both out of time and 'consecutive.'⁹To say that the order of June 11 could escape Rule 58 because it was made on the Court's initiative seems to me to involve the most hypertechnical sort of reasoning.

If we are to follow our Rules the order of June 11, and with it today's order, must fall, for this litigation must be considered to have been closed on December 5, 1955, when the Court denied the Government's first petition for rehearing.

II.

Rule 58, by marking the end of a case in this Court, is intended to further the law's deep-rooted policy that adjudication must at some time become final.I think we should follow it.Prior to 1948, the outside limit of rules of finality in the federal courts was the end of the term, because, except for the extraordinary writs, federal courts were considered to have no power to deal with their judgments after the end of the term at which they were rendered.Bronson v. Schulten, 104 U.S. 410, 415, 26 L.Ed. 797.In 1948Congress abolished the 'end of term' rule by a statute, 28 U.S.C. § 452,28 U.S.C.A. § 452,¹⁰ which was expressly made applicable to this Court.28 U.S.C. § 451,28 U.S.C.A. § 451.The effect of § 452 was to leave the federal courts untrammeled in establishing their own rules of finality.But the history of § 452 indicates that the courts were to have no power to re-examine their judgments otherwise than in accordance with their established rules or statutes.Section 452 was modeled on Rule 6(c) of the Federal Rules of Civil Procedure,28 U.S.C.A.¹¹See the Reviser's Note to § 452,28 U.S.C., p. 4142,28 U.S.C.A. p. 463.As originally promulgated in 1938, Rule 6(c) had referred only to the 'expiration of a term' and not to its 'continued existence.'In 1944this Court held that a District Court had inherent power to vacate a judgment and enter a new one, with the effect of extending a party's right to appeal, notwithstanding such action was not authorized by any rule of the District Court, because the term had not yet expired.Hill v. Hawes, 320 U.S. 520, 524, 64 S.Ct. 334, 336, 88 L.Ed. 283.Thereafter, Rule 6(c) was amended to provide that the 'continued existence or expiration' of the term should not affect the power of a court.The purpose was 'to prevent reliance upon the continued existence of a term as a source of power to disturb the finality of a judgment upon grounds other than those stated in these rules.'Advisory Committee on Rules of Civil Procedure, Report of Proposed Amendments to Rules, H.R.Doc. No. 473, 80th Cong., 1st Sess. 50(1946).The 'continued existence or' language of amended Rule 6(c) was taken bodily into § 452.

The history of § 452 thus casts grave doubt, to say the least, on the power of the Court to do what it has done in this case, for its action was certainly not taken 'upon grounds * * * stated in (its) rules.'¹²I recognize that § 452 does not prevent the Court from changing its Rules, but if the statute means what its history suggests, such changes should be made on a general and not ad hoc basic, lest cases which are alike be treated differently.¹³

This Court, however, has never faced the problems raised by § 452, but has proceeded on the assumption that the statute does not affect the Court's inherent power over its judgments; in other words, that by resorting to such power the Court may affect judgments by action which would otherwise be out of time under the Rules.If that view be correct, it follows that finality of adjudication in this Court ultimately depends on the Court's self-restraint.That, and the doubtful meaning of § 452 seem to me in any event to argue...