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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 956

## Text

| EILEQD |
(6) } OCT 13 wee

praise THe CLE
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1313%3A2. Public record. Not legal advice.