Opposition Brief — Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America

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IN THE

Supreme Cet of the United States

OCTOBER TERM, 1992

No. 92-477

COLORADO INTERSTATE GAS COMPANY,

Petitioner,

V.

NATURAL GAS PIPELINE COMPANY OF AMERICA

and NGPL-TRAILBLAZER, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

PAUL E. GOLDSTEIN JOEL I. KLEIN *

= 701 East 22nd Street RICHARD G. TARANTO

= Lombard, IL 60148 KLEIN, FARR, SMITH &

coo HARVEY I. SAFERSTEIN TARANTO

ete IRELL & MANELLA (202) 775-0184

{ , 1800 Avenue of the Stars CHARLES ALAN WRIGHT

faa) Los Angeles, CA 90067 727 East 26th Street

- HICKEY & EVANS

— 1712 Carey Avenue

_—* Cheyenne, WY 82001

— PAUL KORMAN

1747 Pennsylvania Ave., N.W.

— Washington, D.C. 20006 * Counsel of Record

Fe)

Laden WILSON - Grae Painting Co., Inc. - 788-0096 - WASHINGTON, D.C. 20001

_— - LLL LL

TABLE OF CONTENTS

TABLE OF AUTHORITIES 0000.

il st) i | by y |, Saree adiihdsccocadiaaaiaalaoaotan

Oe NII io nsicies aotearoa nn lascdiulalioccceer ll Som

1. Factual Background ...

2. District Court Proceedings 000

3. The 1989 Court of Appeals’ Judgment...

4. Motions to Depart from the Appellate Mandate.

5. The 1992 Court of Appeals’ Judgment

REASONS FOR DENYING THE PETITION ___

1. The Antitrust Question 0000

2. The Post-Judgment Tort Award Question _.__

SOEe NM REUUUIPEN sssl.nissiotss ns gumipbeaianontoenanenuicerarcea

oN ek wD

ii

TABLE OF AUTHORITIES

Cases Page

Brotherhood of Locomotive Firemen and Engine-

men v. Bangor & Aroostook R.R., 389 U.S. 327

(1967) ... wis sini dsoadanvn alse ice eee il

Cole v. Violette, 319 US. 581 (1948) . 10

Colorado Interstate Gas Co. v. FERC, 791 F.2d

803 (10th Cir. 1986), cert. denied 479 U.S. 1043

(1987) wu wciusiniectnstysd aE a

Colorado Interstate Gas Co. Natural Gas Pipe-

line Co. of America, 885 Fod 683 (10th Cir.

1989), cert. denied, 111 S. Ct. 441 (1990) ......4, 5, 6, 13

Colorado Interstate Gas Co. v. Natural Gas Pipe-

line Co. of America, 661 F. Supp. 1448 (D. Wyo.

1987), rev'd in part and aff’d in part, 885 F.2d

683 (10th Cir. 1989), cert. denied, 111 S. Ct. 441

to

Cor Brosdeusting Corp. v. Cohn, 420 U.S. 469

Ci) non RS Be omen SN orp 11

Department of Ba’ aki ing v. Pink, 317 U.S. 264

(1942) veastieres 10

FCC v. L eague of Women V oters, 468 U.S. 364

(1984) na . ae Le ee 10

First English Evangelical Lutheran Church v.

County of Los Angeles, 482 U.S. 304 (1987) 11

Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th

Cir.), cert. denied, 377 U.S. 993 (1964) 13, 14

Northwestern Indiana Tel. Co. v. FCC, 872 F.2d

465 (D.C. Cir. 1989), cert. denied, 110 S. Ct.

757 (1990) .... Aca gee eee eee eee 17

Omni Outdoor Advertising, Ine. v. Columbia Out-

door — Inc., No. 88-1388 (4th Cir.

Sept. 2, 1992) . — 17

Price v. Sersell, 784 P.2d 614 (Wyo. 1989) . wa 7

Rickards v. Canine Eye Registration Found., 783

F.2d 1329 (9th Cir.), cert. denied, 479 U.S. 851

(ERD ane csiicink.cicaccopscnsseuceeen ennai 14

Seese v. Volkswagenw erk, A.G., 679 F.2d 336 (34

Cir. 1062) ........ PsA eA. 17

Spectrum Sports, Inc. v. McQuillan, No. 91-10,

cert. granted, 112 S. Ct. 1557 (1992) ...............10, 18, 14

ill

TABLE OF AUTHORITIES—Continued

Page

Standard Oil Co. v. United States, 429 U.S. 17

(1976) BR 8 I LEO RETR 5

Werner v. Carbo, 731 F.2d 204 (4th Cir. 1984) 16

Wisconsin Gas Co. v. FERC, 770 F.2d 1144 (D.C.

Cir. 1985), cert. denied, 476 U.S. 1114 (1986). 2

Statutes and Rules

28 U.S.C. § 1257 Ta : 11

§ 2101 (c) vont ie OT SEN cena 10

§ 2107 12

§ 2201 11

Sup. Ct. R. 29.1 ae a ee 2

Fed. R. Civ. P. 49 (a) 15

Fed. R. Civ. P. 60(b) 11, 15, 16

Administrative Materials

Colorado Interstate Gas Co.

27 FERC (CCH) *£ 61,315 (1984) 2

29 FERC (CCH) © 61,124 (1984) 2

30 FERC (CCH) £ 61,073 (1985) 2

Order No. 380, FERC Stats. & Regs. (CCH)

*" 30,571 (1984) ._... nei 2

Other Materials

R. Stern, E. Gressman, & S. Shapiro, Supreme

Court Practice (6th ed. 1986) 10, 11, 12, 18

Restatement (Second) of Torts § 766A (1979) 3,7

11 C. Wright & A. Miller, Federal Practice and

Procedure (1973) aR ee eC ELT 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-477

COLORADO INTERSTATE GAS COMPANY,

Petitioner,

V~

NATURAL GAS PIPELINE COMPANY OF AMERICA

and NGPL-TRAILBLAZER, INC..

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

JURISDICTION

The judgment of the court of appeals was entered on

May 6, 1992. Pet. App. la. Timely petitions for rehear-

ing were denied on June 16, 1992. This Court has juris-

diction under 28 U.S.C. § 1254(1) to review the May 6,

1992, judgment of the court of appeals.

STATEMENT

1. Factual Background. In the early 1980s, the long-

time shortage of natural gas rapidly changed into a

severe glut. As a result, in July 1983, respondent Natural

Gas Pipeline Company of America (Natural), an inter-

state pipeline, reduced its purchases of high-priced gas

from petitioner Colorado Interstate Gas (CIG), another

interstate pipeline. Although the contract between CIG

and Natural had minimum purchase provisions, those

provisions—and all similar provisions in pipeline con-

tracts throughout the industry—were expressly declared

unlawful by the Federal Ene rgy Regulatory Commission

(FERC), for the specific purpose of freeing customers

like Natural to choose their suppliers. FERC set the rates

Natural was to continue paying CIG for gas not pur-

chased (to cover certain fixed costs), and Natural agreed

to continue paying those rates to CIG.'

Some time after July 1983, CIG stopped its purchases

of certain high-priced gas from Champlin Petroleum Com-

pany in western Wyoming. Subacute Champlin be-

gan selling that gas to Natural. To tr ansport the gas

out of Wyoming to the midwest, Natura] purchased trans-

portation services on a newly constructed “system” con-

sisting of three independent pipelines laid end-to-end—the

so-called “Trailblazer System.” Each of the three pipe-

lines had its own FER( -approved rates and entered into

its own contracts; the middle pipeline, the WIC Pipeline,

was wholly owned by CIG; the eastern pipeline, the Trail-

blazer Pipeline, was one-third owned by Natural’s sub-

sidiary, respondent NGPL-Trailblazer.*

' FERC orders specifically concerned with the CIG-Natural con

tract may be found at 27 FERC (CCH) © 61,315 (1984 ), 29 FER(

(CCH) © 61,124 (1984), and 30 FERC (CCH) © 61,073 (1985). The

Tenth Circuit affirmed in Colorado Interstate Gas Co. v. FERC

791 F.2d 808 (1986), cert. de nied, 479 U.S. 1042 (1987). The

industry-wide order may be found at Orde) No, 380, FERC Stats.

& Regs. (CCH) © 30,571 (1984). The D.C. ( Ircuit affirmed in Wis

eonsin Gas Co. v. FERC, 770 F.2d 1144 (1985), cert. denied, 476

U.S. 1114 (1986).

* Pursuant to Rule 29.1 of the Rules of this Court, respondents

state that NGPL-Trailblazer, Inc.. has no non-wholly owned sub

sidiaries and is wholly owned by Natural Gas Pipeline Company

of Ame elem Which itself has no non-wholly owned subsidiaries.

All of Natural’s stock is owned by MidCon Corp., which is wholly

owned by Occidental Petroleum Corporation,

3

2. District Court Proceedings. In April 1984, CIG

brought suit against respondents in the United States

District Court for the District of Wyoming. First, de-

spite FERC’s invalidation of the minimum-purchase pro-

visions of the CIG-Natural contract. CIG alleged that

Natural breached the contract when it reduced its pur-

chases. Second, CIG alleged a violation of the Sherman

Act based on the same conduct, claiming that Natural

had attempted to monopolize a market consisting of long-

distance transportation of gas out of Wyoming. In par-

ticular, CIG argued that, by exercising its contract right

to reserve capacity on the CIG pipeline, Natural had

tried to confer a monopoly on the “Trailblazer System’’

(thus necessarily including CIG’s portion, the WIC Pipe-

line). Third, CIG asserted that Natural was liable under

Section 766A of the Restatement (Second) of Torts for

tortiously interfering with CIG’s contract with Champlin.

Specifically, CIG claimed that Natural. by curtailing its

purchases from CIG, had made CIG’s performance of its

contract with Champlin “more expensive or burdensome”

($ 766A) by allegedly depriving CIG of a buyer for the

gas CIG had been buying from Champlin.

The jury returned a verdict for CIG on all three claims.

The district court rejected Natural’s legal challenges to

the verdict. See Colorado Interstate Gas Co. v. Natural

Gas Pipeline Co. of America, 661 F. Supp. 1448 (D. Wyo.

1987), rewd in part and aff'd in part, 885 F.2d 683 (10th

Cir. 1989), cert. denied, 111 S. Ct. 441 (1990). The dis-

trict court did, however, adjust the damages award. In

particular, one element of damages was found by the jury

both on the tort claim and on the antitrust claim—

$15,204,555 in “demand charge” damages." Because anti-

trust damages are trebled, CIG asked the district court

to eliminate the duplication by “subtract|ing|] .. . the

*CIG had agreed to pay certain “demand charges” to reserve

capacity in two facilities in Wyoming for transporting the Champlin

gas out of the region. CIG claimed that the facilities be came use-

less to it when Natural reduced its purchases and CIG stopped tak-

ing Champlin gas.

demand charge payments from the tortious interference

award,” and the district court did so, including them only

as antitrust damages. CIG’s Brief on First Appeal at 16

(citing Doc. 578, Judgment of Nov. 10, 1986); see Pet.

App. 5a, 48a, 51a-52a. The court also remitted a portion

of the remaining tort damages.‘ As a result. the total

award to CIG was for $412,237,972, of which $8,008,839

were tort damages. See 661 F. Supp. at 1479; 885 F.2d

at 691 n.12; Pet. App. 5a n.1, 44a-45a, 48a.

3. The 1989 Court of Appeals’ Judqment. On Nat-

ural’s appeal, the Tenth Circuit reversed the breach-of-

contract award as preempted (885 F.2d at 686-90) but

affirmed the tort award (id. at 690-91), which it noted

was for $8,00/8],839 (id. at 691 n.12). The court also

reversed the antitrust award (id. at 691-97), holding that

there was insufficient proof of a critical element of at-

tempted monopolization, namely, a dangerous probability

of success. On this issue, the court noted that CIG’s claim

was “unusual” because it alleged, not that Natural was

seeking a monopoly for itself, but that Natural was try-

ing to confer a monopoly on the “System,”’ which was not

even a single economic actor. 855 F.2d at 692. The court

concluded that, in the unique circumstances of this case

(not “typical,” id. at 694), there was “no room for specu-

lation” about the possibility of monopoly power: here, the

“dangerous probability” question came down to whether

actual monopoly power had already been achieved, and

it had not. Jd. at 695.

Thus, the court explained that the only tool Natural had

for affecting the market—its right to reserve capacity

under the CIG-Natural contract and thereby tie up some

of CIG’s pipeline—was inherently limited and had been

fully exhausted: Natural had already done all that it

‘These damages consisted of $24,026,517 for restitution of trans

portation profits allegedly made by the Trailblazer Pipeline (the

eastern pipeline in the “System”). The court awarded only one-

third of that amount because only one-third of the Trailblazer Pipe-

line was owned by NGPL-Trailblazer. See Pet. App. 5a n.l, 44a.

could conceivably do and therefore could confer no greater

market power on the “Trailblazer System” than it had

already done.” And it was clear that the “System” was

not shown (or found by the jury) to have monopol)

power—the ability to exclude competition and raise prices.

In particular, CIG failed to prove how much of its capac-

ity was tied up or, therefore, that it was actually excluded

from the market; indeed, the evidence suggested the

opposite. 885 F.2d at 693, 694 n.19, 696 n.25.° Sim-

ilarly, there was no proof of supracompetitive prices for

transportation on the “System”; indeed, the court observed

that such transportation was “inexpensive.” 885 F.2d at

693.'

° The court observed that ‘“Natural’s predatory conduct consisted

of exercising its contract rights with CIG to prevent CIG from

offering transportation services to long distance customers” and

that Natural had “exercis{ed] all its rights under the [contract

to tie up the entire capacity it had reserved.” 885 F.2d at 695

Therefore, the court explained, Natural could not shift any more

market share it had already shifted, and if the “System” did

not yet have market power, there was no danger of its acquiring

any. “The necessarily limited scope of Natural’s objective leaves

no room for speculation about the probability that the Trailblaze.

System would gain a monopoly.” Jbid.

° The court noted that, while Natural’s actions tied up “‘a certain

amount of space” in CIG’s pipeline, CIG, which never asked FER(

to eliminate Natural’s reservation of rights, simply did not prove

how much capacity it had left. 885 F.2d at 694 n.19. The court also

observed that CIG was clearly able to offer capacity at least on an

“interruptible” basis (id. at 693) and that CIG enjoyed “record

profitability during Natural’s tie-up” (id. at 696 n.25).

? The only statement made by the Tenth Circuit about prices on

the “Trailblazer System” was that transportation along that route

was “inexpensive.” 885 F.2d at 693. Although CIG in its petition

quotes from a sentence that uses the term ‘“supracompetitive prices”

(Pet. 9, 14), that sentence, as the Solicitor General explained in his

amicus brief on CIG’s previous petition, “does not refer to any evi-

dence of supracompetitive pricing” and does not say that System

prices were supracompetitive, but merely makes the “even if” asser-

tion that “the duration of any ability to charge supracompetitive

prices would be limited” (89-1508 U.S. Br. 17). We note. too, as

6

Having reversed the antitrust award, which included

the demand-charge damages, the court of appeals had

no occasion to address Natural’s specific challenges to

those damages (see Natural’s Brief at 33, 46-47), which,

as noted, the court understood not to be part of the tort

award before it. CIG, while disputing Natural’s claim

that these damages were “speculative” (CIG Brief at 94

n.105), simply never presented to the court of appeals,

even as an alternative ground for partial affirmance, any

argument that the demand-charge damages should be

reinstated in the tort award if liability on the antitrust

claim were reversed. Omission of such an argument,

Whether or not deliberate, served a familiar tactical in-

terest: keeping the tort award “low” ($8 million rather

than $23 million) might make the antitrust and contract

claims look like the only opportunities for giving “some-

thing” to CIG. Even after the Tenth Circuit’s decision,

CIG did not ask the court to reinstate the demand-charge

damages in the tort award (which would have required

the court to consider Natural’s objections to those dam-

ages!. Instead, CIG filed a rehearing petition only on

the contract and antitrust claims, which the court denied.

The Tenth Circuit’s judgment was by its terms final,

With (‘as the court of appeals later said) “only the min-

isterial function remaining |for the district court] of

entry of a corrected judgment therefor.” Pet. App. 9a.

The court held that judgment should be entered for Nat-

ural on the contract and antitrust claims and (as the

court later said) lorrnigrsae the tortious interference part

of the district court’s decision and judgment” for CIG

on the tort claim. Ibid. (citing 885 F.2d at 697). The

mandate remanded the case only for the district court

the Solicitor General did on the previous certiorari petition, that

CIG’s repeated reliance for its factual claims on the opinion of

the district judge (e.g., Pet. b, 6, 8) is clearly inappropriate, be-

cause the judge “was not the trier of fact” (89-1508 U.S. Br. 17

n.19).

“to enter judgment” in accordance with the opinion. Pet.

App. 4a (quoting mandate).

CIG subsequently sought certiorari, raising the con-

tract claim and the identical antitrust question CIG has

included in the present petition. See 89-1508 Pet. i. The

Court solicited the views of the United States, which

explained that the case was highly unusual in its facts

and that the decision of the Tenth Circuit was correct

and did not warrant further review. 89-1508 U.S. Br.

11-20. This Court denied CIG’s certiorari petition without

dissent. 111 S. Ct. 441 (1990),

4. Motions to Depart from the Appellate Mandate. Be-

fore the district court entered the final judgment as

directed hy the Tenth Circuit’s mandate, CIG filed a

motion asking for “reinstatement” of the demand-charge

damages ($15,204,555) in the final tort award. Pet. App.

O0a. Natural disputed the propriety of the demand-

charge damages on several grounds. Natural also filed a

motion seeking a tort judgment in its favor based on a

new decision of the Wyoming Supreme Court, rendered

one week after the Tenth Circuit denied CIG’s rehearing

petition and issued its mandate, declaring that Wyoming

law did not recognize Restatement § 766A, the basis of

CIG’s tort claim.” The district court rejected Natural’s

arguments, concluding that choice-of-law principles re-

“In Price v. Sorrell, 784 P.2d 614 (1989), the Wyoming Supreme

Court said: “we... decline to adopt § 766A even though we have

previously embraced §§ 766 and 766B.” 784 P.2d at 615. The court

specifically rejected the conclusion of the district court in this case

that Wyoming would recognize § 766A (id. at 616): “the Federal

District Court for the District of Wyoming has predicted that Wyo-

ming would recognize a cause of action under the Restatement.

Second, Torts § 766A (1979), since we have already embraced §§ 766

and 766B as noted above. Colorado Interstate Gas v. Natural Gas

Pipeline Co. of America, 661 F. Supp. 1448, 1469 (D. Wyo. 1987).

While we were persuaded that $$ 766 and 766B offered legal theories

that enhanced Wyoming jurisprudence, we are not so persuaded

with regard to § 766A.”

5

quired application of Colorado rather than Wyoming

law and upholding the demand-charge damages. Pet. App.

45a-45a. But the court granted CIG’s motion and entered

judgment for CIG in the amount of $23,213,394 plus

interest, solely on the tort claim. /d. at 52a-53a.

5. The 1992 Court of Appeals’ Judgment. Natural

appealed the new judgment, challenging the district court’s

choice-of-law and demand-charge rulings. Pet. App. 8a.

CIG did not take any cross-appeal from the district court’s

judgment or otherwise raise, mention, or preserve any

antitrust claim. The Tenth Circuit vacated the district

court decision, holding that the district court had erred

in failing to enter judgment on the tort claim fo)

$8,008,839 plus interest in accordance with the mandate

on the 1989 appeal. /d. at 8a-14a.

As to CIG’s claim for the additional demand-charge

damages, the court observed that “the tort award appealed

to this court {in the first appeal] totalled $8,008,839”

(Pet. App. 5a n.1) and that “the propriety of awarding

the demand charge payments as tort damages” was not

before the court in the first appeal (id. at lla (internal

quotation marks omitted)). The court then pointed out

that its ruling in the first appeal rendered the $8 million

tort award -final. The court explained that it had “af-

firmed” that award and “remanded with instructions ‘to

enter Judgment in accordance with the opinion,’ ” render-

ing “the tort portion of the district court’s original judg-

ment ... final, with only the ministerial function e-

maining of entry of a corrected judgment therefor.”

Id. at 9a (quoting mandate). After noting that “CIG

could have, but did not, seek rehearing or to have this

court recall its mandate for any correction it thought

Was necessary” (id. at 9a n.3), the court reasoned that,

as a consequence of the affirmance, CIG’s claim for re-

instatement of the demand-charge damages in the district

court could only have been seeking relief from a final

judgment under Rule 60(b) (6). Pet. App. 9a-10a. But,

)

the court ruled, “on the facts before us, we must. con-

clude that the relief sought by CIG—a change in the

content of the judgment affirmed by this court—is un-

Supported by an extraordinary reason to justify relief.”

fd. at 10a. The court observed, citing obvious “concerns

of finality” (ibid.), that the district court was obliged

to comply strictly with the mandate directing it “to enter

judgment on the tort award” and that CIG simply was

not entitled to “a second appeal ... to challenge the

affirmed tort award.” Jd. at 1la.°

REASONS FOR DENYING THE PETITION

CIG presents two questions for review. The first ques-

tion, which is word-for-word the same antitrust question

CIG presented to this Court after the first appeal, is

not properly presented on this appeal and, in any event,

is no more worthy of certiorari now than it was two years

ago. The second question, which challenges the Tenth

Circuit’s refusal to permit the district court to add dam-

ages to the tort award affirmed on the first appeal, is

based on a series of patent mischaracterizations of the

opinion below. What the Tenth Circuit actually held is

plainly correct and not in conflict with any decisions of

this Court or of any other court. Further review should

be denied, and the case finally brought to a close.

1. The Antitrust Questiow. For the second time, CIG

seeks review of the Tenth Circuit’s 1989 antitrust ruling.

This challenge must be rejected for at least three reasons.

First, CIG is necessarily challenging the Tenth Circuit’s

® For similar finality reasons, the Tenth Circuit also held that

the district court was not entitled to consider Natural’s claim for

a tort judgment in its favor. Pet. App. 12a-l4a. The court con-

cluded that no different result was justified by the fact that Nat-

ural’s contention, unlike CIG’s claim for Noe demand-charge dam-

ages, was unavailable on the first appeal beéause it was based on

subsequent events—a clear change in law after denial of rehearing

on the first appeal.

10

1989 judgment, but because that was a final judgment,

it couid be challenged only at that time and cannot (again)

be presented for review three years later. Second, CIG

cannot seeek review of the Tenth Circuit’s 1992 judgment

on antitrust grounds because that judgment includes no

antitrust ruling and, indeed, because CIG ratsed no anti-

trust_argument to the Tenth Circuit in the 1992 appeal.

Third, even if the antitrust question were properly pre-

sented, this Court has already correctly deemed the Tenth

Circuit’s antitrust ruling unworthy of further review,

and the pendency of Spectrum Sports, Inc. v. McQuillan,

No. 91-10, in no way alters that conclusion.

a. CIG’s antitrust claim is out of time. By its terms,

this claim challenges the judgment of the court of appeals

in the first appeal, which was entered in 1989. CIG’s

current petition on this question is well outside the 90-

‘ day period (plus up to 60 days’ extension) allowed for

review of a court of appeals judgment. 28 U.S.C.

$2101 ic). 7

The i989 judgment, on its face and as the Tenth

Circuit later explained (see pages 6-8, supra), was a final

judgment fully resolving the case, “so that nothing re-

mained to be done by the lower court except the min-

isterial act of entering the judgment which the appellate

court had directed.” Department of Banking v. Pink,

317 U.S. 264, 267 (1942); R. Stern, E. Gressman, & S.

Shapiro, Supreme Court Practice § 3.8, at 122 (6th ed.

1986). And it is settled that “[w]here the order or

judgment is final in this sense, the time for applying to

this Court runs from the date of the appellate court’s

order.” Pink, 317 U.S. at 268; Cole v. Violette, 319 U.S. :

581 (1943); see FCC v. League of Women Voters, 468

U.S. 364, 373 n.10 (1984); Stern, Gressman, & Shapiro,

supra, $3.10, at 133." The Tenth Circuit’s 1989 ruling

1 Indeed, even if further non-ministerial proceedings had been

contemplated on the separate state-law tort claim—which they were

— ee Me

11

Was in no conceivable sense interlocutory—which is the

precondition to postponing review of certain rulings until

they become part of a later final judgment, as the Court

must do in state-court cases (28 U.S.C. § 1257: Stern.

Gressman, & Shapiro, supra, § 3.7 et seg.) and as it

ordinarily does as well in federal-court cases (see Broth-

erhood of Locomotive Fire men and Engine men v, Bangor

& Aroostook R.R., 389 U.S. 327, 328 (1967) ; Stern, Gress-

man, & Shapiro, supra, $$ 2.2, 4.18, at 41, 224). Thus.

the time for review of the 1989 judgment ran from the

date of that judgment, and had long since expired when

CIG filed its current petition three years later.

Any other rule would wreak havoe with the judicial

system’s and litigants’ strong interests in finality. If a

litigant like CIG could challenge a final court of appeals

disposition of the case long after the time allowed under

28 U.S.C. § 2201—and could do so even after unsuccess-

fully petitioning once—the case would never be over.

Any litigant could repeatedly challenge a final court of

appeals judgment by the simple expedient of filing a

motion for relief from the judgment (see Fed. R. Civ. P.

60(b)) and then reraising its already-resolved claims on

appellate and certiorari review. Such a use of post-judg-

ment motions would destroy the finality guaranteed by

the time limits for review.

In a footnote, CIG cites a number of decisions to sup-

port the assertion that “issues raised upon a previous

appeal may be subject to review before this Court after

a subsequent appeal.” Pet. 12 n.6. But those decisions

are inapt, and the principle asserted incorrect as stated.

The cited cases stand for nothing more than the propo-

sition that “the Court on certiorari to review a final

decree can reach back and correct errors in the interlocu-

not—the 1989 court of appeals judgment would still be final on the

antitrust claim. See First English Evangelical Lutheran Church

v. County of Los Angeles, 482 U.S. 304, 309 n.3 (1987): Cox Broad-

casting Corp. v. Cohn, 420 U.S. 469, 480 (1975).

12

tory proceedings below, even though no attempt was made

to secure review of the interlocutory decree or even though

such an attempt was made without success.” Stern, Gress-

man, & Shapiro supra, § 2.2, at 41 (emphasis added).

Thus, every case cited by CIG involved a first appellate

ruling that was by its terms interlocutory: in every

such case, further substantive trial-court proceedings

(e.g., to assess damages! were specifically contemplated

by the first appellate court ruling (e.g., permitting liabil-

ity). The first ruling therefore could be challenged (only)

on review of the later final judgment.'' In the present

case, by contrast, the judgment on the first appeal was

final, not interlocutory, and therefore had to be challenged

(as it was) at the time it was rendered.

b. To the extent that CIG’s antitrust challenge seeks

review of the 1992 court of appeals’ ruling, the effort

must fail for a separate (though related) reason. The

Tenth Circuit’s 1992 judgment involved an appeal from

the district court’s 1990 judgment, which by its terms

awarded relief only on the tort claim. Pet. App. 52a-

53a. Indeed, the district court (following CIG’s own

motion! cited Fed. R. Civ. P. 54’s provision for partial

judgments in entering the judgment on only one of the

claims in the case. Jd. at 42a, 48a, 52a. CIG’s antitrust

claim thus was not involved in, and hence cannot be pre-

sented on review of, the Tenth Circuit’s 1992 ruling on

appeal from that judgment.”

11 Indeed, in every such case, the very same claim or cause of

action was presented on the second appeal after the non-ministeriai

remand, so that the threshold issues resolved in the first appeal were

necessarily part of the final ruling on the second appeal.

12 We note in this regard that, on July 15, 1992, the district

court carried out the mandate of the Tenth Circuit’s 1992 judgment

and entered a new final judgment explicitly ruling in favor of Nat-

ural on the antitrust claim (as well as the contract claim). The

30-day time for appeal (28 U.S.C. § 2107) has run, and CIG has not

taken an appeal.

13

Moreover, if the 1990 district court judgment is some-

how read as implicitly rejecting the antitrust claim, then

CIG was plainly obliged to challenge that rejection by

appeal or cross-appeal to the Tenth Circuit before it could

pursue the issue here. See Stern, Gressman, & Shapiro,

supra, § 6.35, at 382. Yet CIG took no such appeal; in-

deed, CIG made no attempt whatever to preserve its

antitrust claim in the Tenth Circuit on the second appeal

—even after this Court granted the petition in Spectrum

Sports on March 30, 1992 (112 S. Ct. 1557), more than

one month prior to the Tenth Circuit decision. In short,

because this claim was neither raised in nor considered

by the Tenth Circuit on the appeal resulting in the 1992

ruling, it is not properly presented on review of that

ruling in this Court. See Stern, Gressman, & Shapiro,

supra, § 6.26, at 364.

ec. Even if it were properly presented, the antitrust

question is not worthy of certiorari review. This precise

question was fully considered by this Court in 1990, and

the Court denied certiorari without dissent. The reasons

why the Tenth Circuit’s antitrust ruling is correct, fact-

specific, and unworthy of further review were fully set

out in Natural’s brief in opposition and the Solicitor

General’s amicus brief (in No. 89-1508) at that time.

(The Tenth Circuit itself described the case as “unusual”

and hardly “typical.” &8&5 F.2d at 692, 694.) The ex-

planations in those briefs need not be repeated here, and

nothing has changed to alter the conclusion that review

is unwarranted.

In particular, the pendency of Spectrum Sports in no

way warrants reaching a different conclusion—or holding

the present petition. Spectrum Sports involves the valid-

ity of the Ninth Circuit rule, first articulated in Lessig

v. Tidewater Oil Co., 327 F.2d 459, 474 (9th Cir.), cert.

denied, 377 U.S. 993 (1964), that permits an inference

of a dangerous probability of successful monopolization

from certain conduct and intent on the part of the de-

fendant, without independent proof of relevant market

14

share. But in the present case, CIG never cited the Lessig

rule in the court below or otherwise presented any argu-

ment or assertion seeking to uphold antitrust liability on

the basis of any such rule. See CIG Brief on First Ap-

peal at 56-62 (argument on dangerous probability). CIG

is therefore not entitled to raise the issue in this Court.

In any event, the resolution of Spectrum Sports could

not affect this case, because the question of inferring a

dangerous probability of achieving monopoly power is

simply not presented here. As explained above, this was

a highly unusual case of attempted monopolization in

which the facts left “no room for speculation about the

probability that the Trailblazer System would gain a

monopoly” (885 F.2d at 695): “because the full potential

market impact of Natural’s conduct had been achieved

... [t]he question of probability of success had resolved

itself into the question whether success had been achieved”

(89-1508 U.S. Br. 16). Because there was no proof that

the “System” had already achieved monopoly power, the

Tenth Circuit concluded on these facts that “from the

beginning, Natural’s [conduct] presented no danger” that

Natural could propel the “System” to a monopoly. 885

F.2d at 695. In such a case, the question of “inferring”

a dangerous probability of suecess—the issue in Lessiq

and Spectrum Sports—cannot arise; indeed, even the

Ninth Circuit does not permit such an inference where,

as here, the court concludes that achievement of monopoly

Status is never possible. See Rickards v. Canine Eye

tegistration Found., 783 F.2d 1329, 1335-36, cert. denied,

479 U.S. 851 (1986). Accordingly, no legitimate purpose

would be served by holding the present petition for

Spectrum Sports.

2. The Post-Judgment Tort Award Question. In its

second question presented, CIG argues that the Tenth

Circuit erroneously held that, when overlapping dam-

ages are awarded on two claims and liability on one of

the claims is reversed on appeal, such a reversal “is no

15

justification for limiting common damages supported by

a surviving claim.” Pet. 15. CIG presents a host of

arguments and authorities to challenge that alleged hold-

ing. Id. at 16-25. But there is a simple answer to CIG’s

ite effort to obtain review: CIG’s entire argument

levant to the present case, for the Tenth Circuit

|

nowhere held what CIG accuses it of holding.

elabor:

is irre

Quite simply, nothing whatever in the Tenth Circuit

opinion denies that a plaintiff may have common damages

affirmed on a surviving claim, or even that a plaintiff may

obtain an “‘affirmance” on appeal of damages that the

district court had explicitly subtracted from the original

award on the surviving theory. All that the Tenth Cir-

cuit held is that the plaintiff cannot withhold its request

for such an affirmance during the appeal and then make

that request to the district court after the appeal has

been decided and the case finally resolved, when there is

no action left for the district court to take but the min-

isterial one of entering the corrected judgment as man-

dated. Nothing in that ruling threatens special verdict

practice under Fed. R. Civ. P. 49(a) (see Pet. 18-20).

requires unnecessary cross-appeals (id. at 20-21), alters

the scope of “the mandate rule” (id. at 21-22), or dimin-

ishes the availability of relief from a judgment under

Rule 60(b) (Pet. 23-25). And not a single decision cited

by CIG (id. at 18-23) allows the plaintiff to make such

a request for the first time in the district court after the

appellate court has finally resolved the case and remanded

for the ministerial act of entering final judgment."

18 We note in particular that CIG’s citation of Standard Oil Co.

v. United States, 429 U.S. 17 (1976), in urging the availability of

relief under Rule 60(b) is plainly inapposite. See Pet. 24. Standard

Oil did not address the substantive standards for relief under tule

60(b), but merely the procedural question whether permission must

be obtained from the court of appeals before the district court may

consider a Rule 60(b) motion for relief from a judgment affirmed

on appeal. CIG cites no case in conflict with the Tenth Circuit’s

16

This case illustrates the correctness of the Tenth Cir-

cuit’s ruling. Neither prior to the Tenth Circuit’s 1989

decision, nor on rehearing, did CIG present to the court of

appeals the readily available argument that the demand-

charge damages should be affirmed as tort damages if

antitrust liability were reversed.'* CIG presented this

argument only later, to the district court. If such litiga-

tion conduct were allowed, there would inevitably be

multiple appeals, as there were here, because any sub-

stantive challenges to the “reinstated” damages—such

as Natural’s challenges in this case—would have to be

reargued and then adjudicated in a second round of liti-

gation in the district court and court of appeals. Allow-

ing such conduct would also encourage parties in CIG’s

position regularly to delay resolution of the case and

to pursue the tactical interest that CIG’s litigation con-

duct in this case served: to raise the apparent stakes on

ruling that a party may not use Rule 60(b) to raise an argt 2nt

that, though fully available, it refrained from raising on appeal.

CIG also cites several decisions under Rule 60(b)(5), but in only

one had the party seeking relief bypassed a prior appeal in the case,

and the court of appeals in that case itself described its holding as

“very narrow.” Werner v. Carbo, 731 F.2d 204. 209 (4th Cir.

1984). There, all parties and the courts had agreed that a doctor

and the doctor’s “professional corporation” were to be treated iden-

tically with respect to liability. After the doctor’s liability was

reversed on appeal, the court of appeals held that the professional

corporation should be relieved of liability as well, despite its tech-

nical failure to include itself in the doctor’s appeal. In such an

unusual circumstance, there was no potential for seeking tactical

advantage and no prospect of multiple litigation to resolve issues

not addressed in the initial appeal. Werner is not in conflict with

the Tenth Circuit ruling here.

'* CIG’s petition itself effectively admits that CIG did not make

such a request to the court of appeals. Thus, in arguing that the

“mandate rule” and the “law of the case” doctrine cannot preclude

its claim for the demand-charge damages, CIG necessarily asserts

that the question of upholding such damages as part of the tort

award upon reversal of antitrust liability was not presented to the

Tenth Circuit on the 1989 appeal. Pet. 21-22,

17

the other theories of liability. See page 8, supru. The

practice CIG followed in this case thus impairs the strong

interests of the judicial system and other litigants in

finality and the avoidance of piecemeal litigation."

15 See, e.g., Northwestern Indiana Tel. Co. v. FCC, 872 F.2d 465,

470 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 757 (1990) (“It is

elementary that where an argument could have been raised on an

initial appeal, it is inappropriate to consider that argument on a

second appeal following remand.”) (citation omitted): Omni Out-

door Advertising, Inc. v. Columbia Outdoor Adve rtising, Inc., No.

88-1388, slip op. 5 (4th Cir. Sept. 2, 1992): Seese v. Volkswagen-

werk, A.G., 679 F.2d 336, 337 (3d Cir. 1982) (“The district court

is without jurisdiction to alter the mandate of this Court on the

basis of matters included or includable in defendants’ prior appeal.’’)

(citing cases); 11 C. Wright & A. Miller, Federal Practice and

Procedure § 2851, at 142 (1973) (“Rule 60 is not a substitute for

appeal.””) (footnote omitted) ; id. § 2864, at 214 (“The broad power

granted by [Rule 60(b)(6)] is not for the purpose of relieving a

party from free, calculated, and deliberate choices he has made.

A party remains under a duty to take legal steps to protect his own

interests.”) (footnote citing Ackermann v. United States, 340 U.S.

193, 197 (1970), omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

PAUL E. GOLDSTEIN

701 East 22nd Street

Lombard, IL 60148

HARVEY I, SAFERSTEIN

JAMES N. ADLER

STEVEN A. MARENBERG

IRELL & MANELLA

1800 Avenue of the Stars

Los Angeles, CA 90067

PAUL J. HICKEY

HICKEY & EVANS

1712 ( arey Avenue

Cheyenne, WY 82001

PAUL KORMAN

1747 Pennsylvania Ave., N.W.

Washington, D.C. 20006

Dated: October 13, 1992

Respectfully submitted,

JOEL I. KLEIN *

RICHARD G. TARANTO

KLEIN, FARR, SMITH &

TARANTO

2550 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

CHARLES ALAN WRIGHT

727 East 26th Street

Austin, TX 78705

* Counsel of Record