Brief for Respondent on Jurisdiction — Federal Trade Commission v. Minneapolis-Honeywell Regulator Co.

LIBRARY hee en

SUPREME COURT.US. |

IN THE

Supreme Court of the United States

Ocrover Term, 1952

No. ll

FEDER. AL TRADE C OMMISSION,

Petitioner,

~ MINNEAPOLIS-HONEYWELL REGULATOR

COMPANY, = | Bier Sal ay

? : Respondent.

On Writ oF C ERTIORARI TO THE UNITE p STATES Cou RT.

or APPEALS FOR THE SEVENTH CIRCUIT:

o

an

BRIEF FOR RESPONDENT ON JURISDICTION |

-

‘- ALBERT R. CONNELLY,

al ‘Counsel for Respondent,

15 Broad Street,

ae New York 5, N. Y.

%,

DonaLp C. SWATLAND,

“Witt. FREEMAN,

Of Counsel.

October &, 1952.

to

oa |

“INDEX

Judgment Below», ae J » oa 4a S : a nada eneeees

Jurisdiction chee thes Fetes e seen eee | cee ceeeene

Statutes Involve See feet eee tenet e ees

Question Presented ..... eer cere eee i tetas a

Summary of. Argument ...’..... be rp Pe gia ies ye

- Statement of the Facts Re ee LENE

Argument:

l. An application for a writ of certiorari is untimely

if made more than 90 days after entry of the

judgment sought to be rev OWE Ui ss be hance

_ The issue here sought to be reviéwed-was decided

by the July 5 judgment and was not affected by

the September.18 decree. ...... a ss at gral Beale

The September 18 decree did not start a new

period within which to apply for a writ of certi-

orari_as to tha issue decided by the Jug judg:

Ta NI, AE, LM wie ae MR Ey °

. This Court has consistently held that the reitera-

tion of a final judgment in connection with addi-

12

tional matter not ailecting the finality of the —

original judgment does not start a new period

_within which to apply for certiorari .........:

None of petitioner’s arguments supports it con-

tention that its application for a writ of certiorari

WES THN oe win eee he SIEN ees bs os ew dite aes

Conchuies 5... okie seria ie oat iola Recta PEA Rene gh gseureas aL

~ teats

ii

’

TABLE ‘OF CASES

) PAGE

Billson v. LaPdner,67 Minn. 35,69 N. W. 477 (1896). 23

Bowman v. Loperena, 311 U.S. 262 (1940) ........ 24

Cohen v. Beneficial Industrial Lean Corp., 337 U.

AT CGS Yo ee as a bow eee a Saks Fhe eee 21

Credit Company v. Arkansas Central Ry. Co. 128 .

Ry oe CRG): ce 5 ove TOR ae hee 27

Department of Banking v. Pink, 317 U.S. 264 (1942)

6, 12, 15, 16

Dickinson v. Pilvclvun Conversion Corporation, 338

U.S. 507 1950) \.. os tae 6, 15, 18, 19, 21

Fults v. ‘Laird, 24 F. 24172 (6th Cir. 1928) ........ 23

Gypsy Oil Co. v. Escoe; 275 U. S. 498 (1927) ....... 24

Hewey y. Andrews, 82 Ore. 448, 159 P. 1149 (1916) .. 23

Hill v. Hawes, 320 U, S. $20 (1944) 0... eee ees 22

Hope Basket Company v. Product Advancement Cor-

poration, M2 U-S. SSS (W991) dee ees nee cee ‘12

Johnson v. i..sentrager, 339 U. S. 763 situa oa 24

. Leishman v. Associated Electric Co., 318 U. S. 203

(IGAS) 6s 4s35 Pee TE ON ANG ATR Det Core ee ee =

Luck v. Hopkins, 92 Tex. 426, 49 S. W. 360 (1899) . 7

Matton Steamboat Co. v. "Murphy, 319 U. S. 412:

CRS oe iis win o's oko OL EAR OHA ADI ON Mas Ee as 26

Memphis v. Brown, o4 U.S.799 C1876) SS 23, 25, 26

Monarch Brewing Co: v. George J. Meyer Mfg. Co.,

130 F. 2d 582 (9th Cir. 1942) Ny aig pte yasle ae gh aS 22

Pfister v. Northern Illinois F inancial Corporation, 317

Uy S344 (1962) cn he ee a eae ores ene. 24

» Reconstruction Finance Corp. v. Mouat, 184 F. 2d +4

(Sth Cir. 1950) . vec cscap cae ttccevesvetosacs 24

Rubber Co. v Goodyear, 6 Wall. 153 (Up. 1867 Vireiae; ea

; PAGE

“* Standard Oil Company v. Federal Trade’ Conunission,

PAO USS... 258 (1988 ) ah ev eee ee WN ee

Toledo Scale Couns Vv. Computing Scale Company,

261 U.S, 399 (1923) ... (acne. ey iy TS SA, 2

Union Guardian Trust Co. v. Jastromb, 47 F. 2d 689 —

Cees Ce BEE ck cv cb te Ses daa Fa

eUnited States v. Crescent Amusement Co., 323 UL S2

rk Sa 2 re eae duke ccecia uen ch eeeeeue 24

United States v. Hark, 320 U. 5, Sh Cee vie hs “228"

Voorhees v. John T..Noye Mfg. Co., 151_U. S, 133

ET ETS Beemer gees OR cant ae ae aera oe Pee PE ae 24

Wayne United an Co: Vv. “On vens- Illinois Glass (Cam-

pany, 300 U.S. 131 (1937). bis candi eee

{

Zimmern v. United States, 298 U.S. 107 (1936). - . .23, 25

TABLE OF STATUTES

Fs BY RES ES DO ree he ot kw a ae Cai ee 3.14

. b

28 U. S.C. § 1254/1) SSRN Ae ace Se

28-U-S. ©. — eg | eee ee vayep oe la, 14

Clayton Act, § 2, 38 Stat. 730 (1914), as ainended by

the Robin Patman Act, 49 Stat. 1526 (1936), 15

— —

ee hee WA EO) ce ee edn AEST ae epi RAG. HE

Ciavion Act, § 3, 38 Stat. 7 731 (1914), 15 U.S.C. $14

(1946) ies Fe ee as pak Cis Eee’ tee wale ass PFE. ke

Federal “Trade Commission Act, § 5, 38 Stat. 719

(1914), as amended, 52 Stat. itl (1938), 15.U,S,€. (

B45 CMG) ee SRE pn ae Ce. Saeed

a

iv

‘MISCELLANEOUS AUTHORITIES

ie eee ee RAE Gi see.

Wale SO i ely ce Sr aes ys a

IN THE

pce Court of the. Huited States

OcToBER TERM, 1952

FEDERAL. TRADE Siac MISSION,

Petitioner,

vs eh a

. No. 11 |

MINNEAPOLIS-HONEYWELL REGULATOR

: CoMPANY, wo: _ Sober i

Respondent.

{ ys

On WRIT OF CERTIORARI TO THE UNITED STATES Court

a: oF APPEALS FOR THE SEVENTH Circuit

_ BRIEF FOR R RESPONDENT ON JURISDICTION*

tS pe eae eae %

>

"Judgment Below

The judgment a the Conlt of Appeals fog the Seventh

Circuit, entered in wot of respondent (M-H),* on July 5,

1951, and the opinion bf the Court of Appeals (reported at

191 F. 2d 786) upon which’such judgment was based, appear

in’ the-printed ‘transeript of record; respectively, at pages

2316 and 2308-2315.; The decree of: the Court of Appeals

entered on September 18, 1951, in favor of petitioner appears

in the printed transcript of record at pages 2316- 2319.

*Respondent has filed a separate heel ‘on the 1 merits.

e

Jurisdiction |

In opposing the. petition for x writ of certiorari herein,

M- H invited the: attention of the Coyrt”to the matter

of the timeliness of the applicd#yon for a writ. The peti-

tion -having been filed on December 14, 1951, more sthan—

‘90 days had élapsec sincé the entry, on July 5, 1951, of the

judgment which, in reality, is the judgment here sought

to be reviewed. Accordingly, it was argued that this Court

‘was without jitisdiction under the Judicial Code [Title 28, ©

United States Codé, § 2101 (c)} to O eatertain the applica-,

tion. . cans

In its order: of March 3, 1952 (342 U. S. 940) iw which ©

a writ ‘of certiorari herein was granted, this Court spe-

cifically requested counsel to discuss it briefs and on oral

argument the question raised as to the timeliness of the —

‘application, thereby preserving the issue of jurisdiction

for its further consideration. oF

“Statutes Involved

The issue thus raised is to be determined with reference

to Sections 1254(1), 2101(¢) and 452 of the Judicial Code

_ and Rules 20, 22 and 30 of the Rules of the Court of Appeals

‘for the Seventh Circuit. The relevant portions ‘of. those

Sections.and Rules are as follows:

S ection 1254:

“Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods:

“t1) By writ of certiorari’ granted upon the

petition of any party to any civil or criminal case;

before or after rendition of judgment or decree.”

Section 2101: ee

“(e) Any other appeal or any writ ofcertiorari

intended to bring any Judgment or decree in a civil

action, suit or proceeding beforé.the Supreme Court

for review shall be taken or applied for within niriety

days aftet the entry of such judgment or decree. A

+» justice of the Supreme Court, for good cause shown,

may extend the time for applying for a writ of cer-

tiorari for ® period not ene sixty days.”

© .

Se ection 452:

ce

“The continued existence or expiration of.a term

— of court in no way affects the power of the court t a)

do any act or take any proceeding.”

Rule 20: | eee er

“Opinions of the court.—All opinions released

by the court shall, on the same day, be handed to the

_ Clerk to Be filed, and a copy thereof mailed to counsel

for each party. In all cases except that of a decree

enforcing the-order of. an administrative tribunal,

judg ent shall be. entered on the date the opinion

is filéd.”

Rule 22 ;

“Rehearing.—Printed petition for rehearing

may be filed within 15 days after entry of judg-

ment. Three copies of such petition shall-be served

forthwith by the clerk of this court upon the opposing

party, who within 10 days from such service may file

a printed answer, three copies of, which shall be

served on the opposing party, and the petition shall

be determiried without oral argument unless other-

wise ordered. Thirty copies of such petition and /

~ answer shali be filed with the clerk of this court.”

/

/

/

Rule 30) 5. °° .

. “Decrees enforcing orders of -administrative

fribunals.—When an opinion of this’ court is filed

directing the entry of a decree enforcing the order: -

ot an administrative agency, board or commission,

the agency, board or commission concerned shall

within ten days serve upon the adverse party and file

with -the clerk of this court a proposed decree in

conformity with the opinion.” If the adverse party

objects to the proposed decree as-not being in con-

formity with the opinion, he shall within five days

after receiving a copy’ of the decree proposed, serve

upon the agency, board or commission concerned

and file with the clerk of this court a suggested decree -

deemed to be in conformity with the opinion.. The

- court will thereupon settle and enter the decree with-

out further hearing or. argument.” ae

Question Presented

Was the time of petitioner within which to apply for a

writ of certiorari extended as to the issue fully and finally

determined by the judgment of July 5, 1951,'merely because

the Court of Appeals later entered a decree which inci-

dentally reiterated its July 5 judgment, but which was

‘admittedly entered for the sole purpose of f ormally disposing

of certain totally unrelated issues act now, or even then,

. in. controversy ? |

- Summary of Argument.

The only contested issue before the Court of Appeals

related to Part IIT of the Federal Trade Commission order.

That issue, involving allegations of unlawful price discrimi.

etd res

“nation under the Robinson-! ere Act, was fully and Gnally |

decided on July 5; 1951, w hen the Court. of Appeals handed

down its opinian rev ersing Part LIl-of the order. and dis- “

missing Count III of the complaint. On the same day, pur-:

suant to Rule 20 of the Court of Appeals Rules. judgment—

was entered in accordance with such opinion. > |

The judgment. so entered-made complete: disposition ot

the only i issue of which review is now sought.

“On September 18, 1951, a further decree was: entered

by. the Court of Appeals at the request of thes Conimis-

sion, Although that decree incidentally reiterated the July

5 judgment, its only purpose, even as argued by the Com-

mission, was to affiym and enforce Parts J] and I] of the

Commission’s order (involving alleged violations of the

Federal Trade Commission Act and of the ‘ ‘tving clause”

‘provisions of the Claytén Act). The Commission specifi-

cally did not seek any further action as to Part III, which it

“recognized as having been finally disposed of by the July’ 5

judgment. Since M- H two years before had expressly

-abandongd its contest of Parts ] and Ti of the order, the

entry of- a decree thereon was at best only a forgimlity. In

any event the decree so entered did not mi ify, and did not

purport to modify, the July 5 judgment.*

After entry of the July 5 judgment, which finally deter-

mined the only contested issue before the-Court of Appeals,

the Commission had 90 days within (hich to vp a review

by this Court [Title 28, United States Code, $2101 (c) |.

and that period was not enlarged by the sabbath decree

-entered solely to dispose formally of certain unrelated and

<

* T here is no differ nee in substance? aeons the I ily § judgment

as originally entered and as subsequently reiterated: as part of the

September, 18 decree.

4

6

uncontested matters presented in the same litigation. Toledo

Scale Company v. Computing Scale Company; 261 U.S. 399,

418 (1923) ; Department of Banking v. Pink, 317 U.S. 264

-(1942);-see_also Dickin SON V. Petroleum Conversion Cor-

poration, 338 U. S. 507 (T1950). Since the petition for a .

_ writ of certiorari was not filed until December 14, 1951,

this Court is without capita to consider the decision

of the Court of Appeals as to Part III of the Commission’s

‘order. To continue the allowance of a writ of certiorari

under such circumstances would be to nullify the clear

meaning of. the statute.

~The application. for review hav ing been untimely, the

writ should be dismissed.

| Statement of the Facts |

The Complaint. The proceeding before the Commis-

sion was instituted by the service upon M-H of a complaint

dated: holes 23, 1943 (R. 2-11). Such complaint: was —

in three counts, and_it is important to note—as the Com-

mission does in its brief ‘(p. 5)—that the several counts

against M-H are separate and distinct, each involving a

different statute, different charges, different evidence and

different cease and desist provisions. Thus, Count I of. the

complaint, charging violation of Section 5 of the Federal

Trade Commissiong\ct, alleged that M-H had jnisused cer- .

tain patents of which it was the owner or under which it was

an exclusive licensee. Various other allegations of.Gount I

relating to certain exclusive dealing contracts entered-into |

hy M-H_ and its ctistomers were restated ir Count II as

being violative of Section 3 of the Clayton Act. Count TIT,

on the other, hand, allegéd violation of Section 2(a) of the

sa ee

he eon 7 a

Clayton Act, as amended by the Robi ison- Patman Act, and

was concerned only with diserimindtions in price which the

wiul under that Act, as

amended. It is perfectly ev ident. that the charge under

Count IIL alleging ynlaw ful price discrimination was

totally unrelated to, “anh

Commission alleged to be unl;

nad nothing whatsoever to do w ith,

the: charges under’Counts /] and II oi the complaint.

The Decisions Below! On February 21, 1946, at the

conclusion of extended hearings, the Trial Examiner filed

his, report recommending that a cease and desist order, be

isstied as to Counts J and II but that the charges under

Count HI. be dismissed (R. 2166-2203). On January 14,

1948, after the matter had been briefed and argued before

- the Commission, an order to cease and desist was issued

with respect to all three C ovnts,. that’ order being divided |

Se

= to Parts 1,1] and IIT to correspy nd with the three Counts

~

of the complaint (R,.2262- 2265). In making that order,

“the majority of the Eotndasion: one commissioner dissent-

- ing; declined to follow the recommendation of ‘the Tria!

Examiner that Count I] be dismissed {R. 2265- aid ene

March

Contest of Parts 1 and I abandoned by M-H. O

on July 18,1949, in whieh M- H advised the. Court that Parts

|_and II of the order were no k myer challenged atid that

jits argument. support of ‘the petitic mm would be addressed |

11, 1948, M-H filed in the Court of Appeals for the. Seventh ©

Gites its pietition to review the Commission’ s order (R. |

ae 2283-2289). However.. to. the extent that it sought review

of Parts I and of the order, such petition was expressly

abandoned by M-H in its brief filed i in the Court of Appeals .._

‘only te ‘Part 11. As \ was specifically stat ed: in that. briet

“The remainder of the Order is not here chal

lenged.” -

ast _\ tS 8

Indeed, the absence of any issue as to Parts I.and II was

_ Clearly recognized by the Commision,in its brief filed on

December iS, 1949, in which it stated (p. 27):

oe . All of the alleged errors ‘relating t to the

Oremuiasiale findings as to the.facts and its.order

to cease and desist made undef Count I arid Count-IT

of the complai t have been abandoned by petitioner, -

and in its brief detitioner argues only as to the alleged

errors rélating to the Commission’s findings and

order entered under Count ‘III of the complaint.”

*

No argument with respect to Parts I and IT of.the order’

"was ever made to the Court of Appeals either by M-H or by

the Commission in any later briefs or on orat argument of -

the cause.* - 3 44 Ads |

: The July 5 J ude peas On July 5, 1951, the Court of

tats rendered its opinion 1 (R. 2308-2315). After stating ©

- that the Commission's oo was in three parts, the opinion |

continues R. 2308).:. |

_ Since M-H does not a hes Parts I and

‘JI of the order based on the first two counts of the

complaint we shall make no further: reference to

them."

The ne issue then remaining for eee es related to .Part

III of the order, and as to that issue the Court of Appeals

unanimously held that the Commission must be: reversed,

saying (R. 2315):

3 “The Court of Raxselk on-January 21, 1950, deferred oral argu-

’ -ment until after the decision by this Court in Standard Oil Company v.

Federal- Trade Commission (No. t, October Term, 1950). After

that decision had been handed down [340 U’/S. 271 (1951)], the

_ parties filed new~ briefs. .In its substitute brief of March 15, 1951,

~-M-H-again-declared ( P. 1) that it did not chatlenge Parts I and II of

the order. aK /

, /

ee Se

“Part Ill of the order must be reversed and

Count IL? of the complaint upon which it is based,

_ dismissed. It is so ordered.”

7 Copies of the opinion were nailed & "i 5 counsel for the parties

on the day the opinion was filed. oe

’ Also on July 5, 1951, pursuant to Rule 20 of the Court of :

Appeals Rules, judgment .was entered in accordance with

the Court’s opinion of that day. The camplete text of such

. judgment is (R. 2316):

“This cause came on to.be heard on the tran-_

script of the record from the F¢deral Trade Com-

mission and was argued by coufisel.

_ “On consideration whereof, it is ordered and

adjudged by this Court that Part III of the deci-—

sion of the Federal Trade Commission entered in

this cause on January 14; 1948, be, and the same is

. hereby, Reversed, and.Count HI of the Complaint

- upon which it is based be, and ve same’ is hereby

_ Disrnissed.”

— On August 6, 1951, a certified copy, of the judgment

was sent to the Commission, in: liew of mandate, the for-

warding letter stating: ;

| “Enclosed herewith please find a certified copy of

the decree of this Court entered in this cause on July

5, 1951. |

“Kindly acknowledge receipt of the same and oblige.

‘Yours truly,

os pee Wee. McCary |

- -Deputy Clerk”

10

The Commission replied on August 8, 1951, as follows:

“Receipt is acknowledgéd of your letter of

August 6, 1951, enclosing certified copy of the decree

entered in the above entitled.matter on July 5, 1951.

| Very truly yours,

(Signed) D.C. Daniel ©

D, C. Daniel,

_Secretarv.”

mt

A certified copy of each of such letters has been filed Ww ith

the Clerk of this Court.

I he September 18 ee. On August -21,.1951, the” _

Commission presented to the Court of Appeals a memo-

randum* in support of a,proposed decree which it sought

to have entered affirming and enforcing Parts I and II of

its order. That memorandum, after stating at the outset

- (par. 1) that Part HI had already been disposed of by the

July’ | /judgment, went on to. point out:

! (a) that Parts I ang II of the order were unrelated

ib Part III (par. 2); : |

/ (b) that M-H had previously abandoned its contest

/fot Parts | and II (par. 11); and _

=~,

(c) that the Commission was scotdindly entitled

to a decree affirming and enforcing Parts I and II

(par. 14),

tr 6

Although the proposed ;decree accompanying the memo- -

randuni contained a reiteration of the July 5 judgment as

to Part II], it is perfectly evident that the only relief sought

-*Petitioner statesin- its brief (p. 37, in. 24) that a copy of such

me mor: andum has been filed with the ‘lerk of this Court.

mee

11

by the Commission in requesting entry of tae September 18

decree was the affirmance and enforcement of Parts I and

II. The memorandum itself makes that fact entirely clear

(pp. 1, 4-and 8):

“On July 5, 1951, the Court entered its opinion

and judgment reversing Part III of the decision of

the Federal Trade Commission dated June 14, 1948,

_and dismissing Count II].of the complaint on which

it is based. No disposition has been made of the

Cress-Petition filed by the Commission for:affrm- — .-

ance and enforcement uf the entire decision. .. .

‘e

_ “Ib: In its briefs filed herein the petitioner aban - ,

doned its attack upon Parts | and II of the order and

challenged only the validity of Part I1]-of the order’

(see page 1 of petitioner’s brief dated March 15,

1951).. Thus, petitioner concedes the validity of

- Parts 1 and II of the order and does-not contest

the prayér of the Commission’s Cross-Petitioneand

brief with respect to the.afhrmance and enforcement

of Parts I and. II of the order.

sg

S

“14. In conclusion, it is submitted that the Court

should make and enter herein a decree affirming and

_enforcing Parts I and II of the Commission’s order

to cease and desist.” [Emphasis supplied. ]

On September 18, 1951, the Court of Appeals entered

the form Of decree proposed by the Commission (R. 2316-

2319). On December 14, 1951, the Solicitor General fled

a petition for certiorari on behalff of the Commission.

However, the only issue which that petition presented to

this Court for review, i.c., whether Part III of the Com-

smission’s order should have been reversed, was adjudicated

pi.

°

12

with finality “el the judgment of the Court’ ot - Appeals

entered on July 5, 1951. :

ARGUMENT. _

J], An application for a writ of certiorari is untimely if

made more than 90 days after entry of the sodgrnent sought

to be reviewed.

This Court has time andAgain held that it does not

have jurisdiction to entertain an untimely petition for a

writ of certiorari. Hope Basket en v. Product Ad-

vancenient Corporation, 342 U. S. 833 \( 1951) (petition

91 days after judgment) ; Depurweicn of Ranking v. Pirk,

317 U.S. 204 (1942) (petition 124 days after judgment

sought to be reviewed). The statute itself [Title 28, .

United States Code, § 2101(c)] requires that application

be made “within ninety days after entry of such as

: a

Pa — |

rh :

In the present case the Commission waited from July

3, 1951, to ae 14, 1951, betore filing its petition

or decree”’.

tor a writ of cerhidrari—a span of 162 days. The appli-

cation was, therefore, untimely,

2. The issue here acai to be reviewed was decided by

the July 5 judgment and was not affected by the sie denis 18.

deerce.

Va

The regularity of the July 5 judgment and the finality

ot its ad judi cation are not open io question. The judgment

Was entered on the day the opinion upon which it was based

was filed, all pursuant to the applicable provisions Of -the

Court of Appeals Rules’( see Rule 20, supra at p. 3). Copies

ot the opinion and judgment were sent to the Commission

13

A . ne

and were accepted without protest of any sort. The judg-

ment was not interlocutory in nature, as is apparent on its

face, and when read in connection with the opinion pursuant

to which it was entered, it compels the conclusion that the.

Court of Appeals intended thereby to make final disposition

of.the issue before it. . Its purpose and effect were’ to bring

about a complete and unambiguous disposition of Part II]

of the Commission’s order.

The Court of Appeals was never asked by the Com-—

mission .to alter the July 5 judgment. The fact is, of

course, that the Court of Appeals did not alter it.

The proceedings subsequent to the entry of the July 5

judgment were concerned solely with Parts I and I] of the

Commission's order, the contest. of which had long since

been abandoned, by M-H and as to whieh-the Court of

: Appeals had made no adjudication. Those proceedings did

not affect, nor were they calculated to affect, the finality of

the judgment already entered as to Part III. Indeed, they

were addressed to parts of the Commission’s order which

bore no relation at all to its Part III. Those proceedings,

which wefe concerned only with affirmance and entforce-

ment of Parts I and II, did not seek a rehearing* or any

modification of the adverse judgment already entered.

‘It is, therefore, clear that the issue between the parties

as to Part IIL of the Commission’s order was disposed of:

with reviewable finality on July 5, 195%, when the judgment

of that date was entered. “That is the judgment which, in

oe ot ce %

*Clearly the memorandum filed by the‘Cemmission in support of

the. entry of a decree affirming and enforcing Parts I and il of the:

order could not be characterized as a. petition for rehearing of the

July. 5 judgment, which it expressly recognized as dispositive of

Part IL. The’ memorandum by its terms limited the relief sought to

matjers in no/way related to the judgment theretofore entered.

>

~

€)

14

reality, is sought to be brought before this Court under the _

. statute | Title 28, United States Code, § 2101 (c) i The

time within which to apply for a ivrit of certiorari to review

that judgment commenced to run on the date on which it was

entered...

' 3. The ‘September 18 decree did not start a new period’

within which to apply for a writ of certiorari as ‘to the issue

decided by the ay, 5 judgment.

If the Commission is correct in its position that entry of.

, the September 18 decree stanted a new-90-day period within:

WW hich to seek review of the July, 5 judgment, the fixed peried ~

of limitation contemplated by: Section 2101 (c) would be-

come a completely indefinite period. “The only prerequisites

for extending the statutory period. would be. for counsel’

to develop a plausible reason why some matter—regardless

of how unrelated to the r¢al issues between the -parties—

should be added to w hat had. already been decided and to -

"have an addition il decree entered. cov ering the 1 new matter

and reiterating the original judgment:

Indeed, this process would. not even be limited by’ the

term of the Court of ~\ppeals, . Section 452 of the Judicial |

pany odesprov ides ( ee 28, United States Code, § 452):

“The scaientied existence or expiration of a term

‘of court.in no way affects the pane of the’ court

to do any-act or té ake any proceeding.”

Thus, the September 18, 1951, decree cculd just as well have

been, entered in 1952, or 1953, so far as the facts of this

case are concerned. Section 452 would permit stich entry. If

the Gomimission is corr ect in its position.that a decree like the

‘

Gereeei ie Sea

September 18 decfee starts a new 90-day period, then the .

time within w hich*to apply for a writ df certiorari as to the

July: 5 judgment would never come to an end.

4, This Enact has consicintly held that the reiteration of a

final judgment in convection with additional matter not affect-

ing the finality of the original judgment does‘ not start a new

at within: which to apply for certiorari.

With the entry on July 5-191, ofa pees disposing

of Part III of the Commission’ s order, the Court.of Appeals

‘disposed of thei ily contested issue in the litigation. The _

-mere fact that such aoe was later reiterated 1 in connec-

in thé.action Api not Salers the time within which to seek a a

review thereof. Department of cyanate v. Pink, 317 U.S.

264 (1942) ;.Toledo Scale Company. . Computing Scale.

Company, 261°U. S. 399 (1923); see also Dickinson v.

Petrale ume Conversion Corporation, 338 U. S. 507 (1950).

In the Pink case ithe New York Court of Appeals had

entered a judgment affirming an erder of the New York

Supreme Court, and the remittitur thercon had issued. on,

~ the same day. Thereafter, a mation w as filed in the Court of

Appeals to. amend the remittitur to ‘recite that a federal.

question had been presented-and decided. The Court of

Appeals granted that motion, and the remittityr was modi-

‘fied accordingly.. A petition for certioxgti, filed within

three months after the second remittitir but more than three

months after the first remittitur, was’ held untimely. _In its

opinion this Court stated (317 U. S. at 266): , |

“Under the three-months linjitation ithposed by

the statute, 28 U SC § 350; the petition for certiorari <

Bs | te 16

is timely only ‘if the amendment of the remittitur _

extended the time within which to apply for certio-

rari. We are unable to conclude that it’ had such’

effect. Unlike a motion for reargument or rchear-

ing, tt did not seek to have the Court of Appeals re-

consider any question decided in the case. The final

judgment already rendered was not challenged ; what.

was sought was merely the court’s cértification that

a federal question had been presented to it for _deci-

sion, and this could have no different effect on the —

finality of the judgment than a like amendment of the

court’s opinion.” hes mama supplied. ] |

The factual parallelism between the issue here before

‘the Court and that resalved per curiam in the Pink case is

obvious. . The: application of the Commission to enter the

September 18 decree did not seek reconsideration in any.

: way of the issue resglved by the Court of Appeals in \its

July 5 judgment, which was the only issue contested by the

parties. The September. 18 decree in no way altered that

judgment. It merely added provisions relating. to Parts I

_and II of the Commission’s order, which were not challenged

by M-H and which had not been itf controversy since M- H

abandoned its petition to review those Parts two years

before. | .

In Toledo Scale C ompany v. Computing Scale C ompany,

261 U. S. 399 (1923), an adverse judgment in a patent

infringement suit had been entered against the Toledo Com-

pany and affirmed by the Court of Appeals for the Seventh

Circuit [279 Fed. 648 (1921) ].- A timely petition for cer- '

tiorari had been denied [257 U-S. 657 ( 1922 )]. “*There-

7 after, the C omputing. Company applied té the C ourt of Ap-

peals for a further decree against the Toledo Company -en-

joining the continuance of certain other litigation calculated °

i i

to defeat enforcement of the judgment already obtained.

The Court of Appeals thereupon entered a further decree

which adhered to its affirmance of the earlier judgment but

which contained additional provisions designéd to give the

complete relief that had been sought... A second petition for :

certiorari, filed more than 90 days after the entry of the first

decree but within 90 days after the entry of the. second -

_ decree, was granted: by this Court. Jn deciding the case,

however, this Court expressly limited its review to the —

_ additional ‘matter added by the new decree. In doing so, —

this Court made ‘it clear that the reason for thus limiting

the scope of ‘its decision Was the jurisdictional statute, not

‘the fact that a previous petition had been denied. In its

opinion, the. Court said (261°U. S. at 417-18): -

“Tt is insisted by counsel for the petitioner that

it is within our power; and it is‘our duty. on this

writ to go into the merits of the issue of the validity

of the Smith patent and of the correctness of the

money decree for profits. . We were asked to do this |

by an application for writ of certiorari which .we

denied January 9, 1922. .257 U. S. 657. The decree

then sought to. hh iewed was entered in October,

1921. The application for this second writ of cer-

tiorari which we are now considering was not ‘made

until May 22, 1922, more than three months after

the final decree in the circuit court of appeals’ for the

payment of profits. Section 6 of the. Act of Septem-

ber 6,.1916 . . . directs:

“ “That no writ of error, appeal, or writ ‘of |

certiorari ‘intended to bring up any cause for re-

view by the Supreme Court shall be allow ed or

entertained unless duly applied for within three

months after entry of the judgment or decree

complained of.’ ;

a 18

\'This deprives us of. jurisdiction to consider the’

silts of the decree of October, 1921..

. In the case before us, the decree of October,

1921, Ww whtigh we declined to review. in January, 1922,

was a final decree, and we are ex pressly denied power

to review it. afier three months.” {Emphasis sup-.

plied. | : ; | : Sea’ Ae pe

It is also important to oie that after this Court had

rendered its unarinrous opinion in the 7 oledo case, a peti-

tion for rehearing: was filed addressed in part: to the ruling

on the timeliness question, -It was there argued that this

S ourt had ov -erlooked the fact that the October 1921 decree -

“was amended by the Court of Appeals and reentered at |

' the same term of Court, on March 25, 1922.’* That argu-

“ment, which if identical with the one urged by petitioner

in the present case, was rejected by this Court in the Toledo:

case on May 21, 1923, Seé Supreme Court Docket for No.

339, October T erm, 1922, showing rehearing denied.

ier Dickinson v. Petroleum Conversion Corporation,

— 338:-U. S. 507 + 1950), the Petroleum Corporation and

certain of its stockholders, as intervenors, asserted claims |

against two individuals. After trial, the District Court

dismissed certain claims of. the Corporation, holding

in effect that the intervenors as a class ‘were entitled to

enforce such claims. That judgment, from which the Petro-

leum Corporation took no appeal; was entered April 10,

1947, and rdserved for future determin; ation the respective

-. rights of the individual participants in the class who were

entitled to share 1 in the recovery. Thereafter, on August 3,

ee a a

*See p. 3; petition for rehe aring in. No. 339, October Ferm, 1922.

teceived in the Office of the Clerk of the United States Suprerne Court)

on May 8, 1923.

ae a 3

sei the court, “having made such determination, entered

a “Final Decree” , which disposed ot the issues teserved

in the: 1947 deeree and recited that, those i issues having been

determined: by the court, “the said | 1947] decree is hereby

made, final”.* The 1948 decree did not make any adjudica- —

" tion of any issue involving the C orporation or otherwise

change the 1947 decree as to it. On September 1, 1948, the

Petroleum Corporation’s ‘receiver in bankruptcy sought to

appeal from “so much of this 1948 decree as dismissed”

the Corporation's claims. A motion to dismiss the appeal

was denied by the Court of Appeals, but this Court on.cer-

tiorari reversed, holding that the time within which the Cor-

poration might appeal front the 1947 decree was not en¥irged

by the subsequent entry’ of the 1948 decree. ‘This Court

pointed out that the 1948 decree did not make any change,

so far as concerned the Corporation, in the 1947 decree,

and adjudicated only other issues which had been reserved

for future determination, saying with reference to such

additional issues (338 U. S. at 515-16) :

“. . . The court obviously selected with deliberation

the issues it would close by the decree and those it

would reserve for future decision. ~ If it had any

purpose to leave open any issue concerning Petro-

leum’s contentions, or, affecting its interests, half a

line in the decree would have done so. But that half-

line was not written -

“We hold the decree of April 10, 1947. to have

heen a final one as to Petroleum and one trom which

it could have appe ‘aled and that its failure to appeal

$€Compare ‘the emphi asis placed by petitioner on the caption “Final

Decree” contained.in. the September. 18 decree in the instant case (BF,

pp. 1, 27, S4, 37, 38, 47). Se Py

20

therefrom forfeits its right of review. ZJts attempt

. to geview the earlier decree by appealing. from ‘the

later one is Ineffective, and its appeal should be dis-

. missed.” _ [Emphasis supplied. s

5. None of petigener'’s arguments supports its contention that

its appli¢ation for a writ of certiorari-was timely.

Petitioner nowhere serious!) disputes the fact chat the

July 5 judgment spttled with reviewable. finality the issue

as to Part III of the Commission’s order ; nor does it dispute:

the fact that a lapse of 90 days, without niore, would have *

terminated its right to apply for a writ of certiorari to bring 7

‘that judgment before this Court.

Petitioner argues .( Br., pp. 46-47), however, that its.

time within. which to apply for a review of the judgment

dismissing: Part II] of its order should not be computed

from the date of entry of that judgment because at that

time it was open to the Commission to apply to the Court

below for a decree affirming and enforcing Parts I and II

of its order. r, and, theretore, that a timely application for a’

writ of certiorari to review the July 5 judgment would have

involved the possibility of multiple review proceedings. Thus

it suggests thet a review might have been sought by the’

.Commission if afirmance.and enforcement of Parts.] and I]

had been denied or by M- H if affirmance and enforcement

“were decreed. Such a suggestion. is, OT course, completely

unrealistic in view of the fact that for over two years irs there

‘ had chad_been no-dispute at all as to the fofm or substance of

\ Parts | and 1] -6f the Commission’s order. But even.it there

had been a real possibility that: either party would seek re-

view of the decree entered with respect to Parts { and TI,

- such possibility would: not have affected the right of the

21

Commission to apply fr review of the judgment reversing

Part I11; for this Court has held that successive applica-

tions for writs of certiorari to review successive judgments

on unrelated issues in, the same_case are entirely. proper.

‘Toledo Scale Company v. C omputing Scale Cc ompany, supra,

‘261 U.'S. wr (P9ES) a cc ,

_ Furthermore, the only authority to which cetigonet

refers in. support of its argument are certain general. state-

ments about review precedure contained in the opinions of

this Court fh Dickinson v. Petroleum Conversion Cor pora-

tion, 338 U.S. 507 (1950); discussed supra at pp. 18-20,and

Cohen v. Beneficial Industrial Loan Corporation, 337 .U. S,

541 (1949); Each of those cases, however, is a flat holding

_ by this Court that the reviewable finality of a judgment

determining claims of right (like the July 5 judgment here)

is not affected by a subsequent decree adjudicating other.

issues in'the same case. Indeed, those cases expressly hold

that the time. within w hich to seek rev iew of such earlier .

judgment is not enlarged by the entry of a subsequent decree.

Recoghizing that its petition must be dismissed. if it’

cannot show: that the reviewable finality of-the July 5.adju-

dication was affected by the subsequent -proceedings, peti-

tioner argues (Br., pp. 37-39) that the Court of Appeals

intended the September 18 decree to be its “final decree,”

superseding the. July 5 judgment as to the issue involved i im .

| Part [lI of the Commissign's order.

| As we have seen, this argument cannot mean that the

Couit of Appeals on July 5 did‘not regard its judgment then

entered as a final adjudie ation of that issue. The fact that

the Court of Appeals did not immediately enter a decree as

to Parts I and IT must mean either that the Court did

tiot deem the entry of such a decree of any importance in. |

the light of M-H’s abandonment of its contest as to Parts

e

en

le

| ae II, or that thie is desired. tu reserve tts final. dis-

position of the unc “ontested Issues’ involy ed in those: Parts

until such time, if,ever, as the Commission ‘might decide |

to submit a formal, decree ot allirmance and enforcement.

That the Court did not inumedis itely dispos¢ of Parts I and

II did not,,of course, affect the rev iewable finality of its |

judgmé€nt entered after careful deliberation as to Part Ii

(the only contested issue )—nor_ was: At so ‘intended.

. As we have pointed out under Point 2 (supra at pp. 12-

14), the instant case is one w here the initial judgment ot the

Court below compels the conclusion that the Court intended

thereby to make final disposition of the ‘contested issue be-

fore it. : The cases cited by petitioner involving mere docket

entries followed by format judgments are, therefore, quite -

beside the point; being cases where the earlier act of. the

lower court. was demonstrably not intended to be its final

judgment.* Nor is petitioner helped by cases in which the,

ground-as the first entry and having no purpose at all unless

‘intended to serve as thé court’ s final judgment with respect

to the mattérs dealt with in the ‘arlier entry.** Sucl? cases

earlier act of the court might have been its judgment but-for

the entry .of a _second judgment | covering only the’ same.

.

“ey .

are wholly inapplicable to the instant case, since the av owed |

and only purpose of the September 18 decree was‘to dispose. ap:

of additional matters not even considered in the July 5 judg-.

ment. We ¢> not believe that petitioner itself takes any

decree would be. only “an empty form” unless the Court ‘of

\

*United.States v. Hark, 320 U.S. . 931 (1944) ; Hill v. Hawes,

329 U.S. 520 (1944); Monarch Brewing Co. v. George J. Meyer

Mfg. Co., 130 F. 2d 582 (9th Cir. 1942).. ;

**(nited\ States v. Hark, 320 U.S. 531 | 1031 }; Union Guardian

Trust Co. v. Jastromb, 47 F. 24-689 (6th Cir. 1931). en

,

"stock in the suggestion (Br., p. 38) that the September 18 -

4

ears Bartow

Pears pee

tf

ee

. 2 i”

mie nee

Po

Appeals’ intended it rathér than the July 3 judgment to be:

‘dispositive as to Part 11] of the Commission’s order.

However that may be, petitioner goes on to argue (Br.

- pp. Sag) that the. Court of Appéals, merely beeause of she

entry of the ‘September ik decree, intended that decree to be .

_ its final disposition of Part IIT for purposes of review, even -

though the Court up to that time had regarded its July 5

judgment as finally determining the issue raised by Part I.

-. That argument is, of Course, based entirely upon the asSump-

tion that the Court of Appeals intended its September! 18 de+

cree In some way to affect the finality of its July 5 jiidgment.

But, since the € ‘ourt had be€n careful to point out in its opin-

ion the absence of any contest over the substance or form of ,

Parts L.and I] of the Commission’s order, the entry of a

_ ‘subsequent .decree affirming and enforcing those Parts,

being attest only a formality, could rot possibly indicate: ”

an intention to alter the finality of a judgment entered with

the admitted purpose of disposing once and for all of the

only contest tissue in the case, fe. , the propriety ot Part iT

of the Commission's order.

Petitioner’s argument that its application for certiorari

in this case is tin™W\ is manifestly not advanced by reference.

(Br., pp. 42, 43) to cases* holding that when the adjudica-

_-tion sought to be reviewed has been altered by amendment

or modification of a judgment, the time within which an

appeal may be taken runs from the date of the amendment

or modification. There ‘simply has not been any. stich

amendment or modification in the instant case.

*Zimmern Vv. United States, 298 U.-S. 167 (1936) ; Memphis a

Brown, 94 U.S. 715 (1876): Rubber Cs. Vv. Goodyear, 6 Wali. 153

S. 1867); Fults.v. Laird, 24 F. 2d 172 (6th Cir. 1928) ; Hewey

Andrews, 82 Ore. 44&, 159 P. 1149 (1916) 3 Luck v.. iopkins, 92 ;

oy Tex. -426, 49 S. W. 360 (1899) ; Billson v. Lardner, 67 Minn. 35, 69

N.. W. a¢ (1896). é Teak

2

- 24.

Equally beside the point are the numerous cases* ‘cited

, by petitioner (Br., p. 45) which hold that the time to appeal

‘is extended by a timely motion for reargument or to modify _

the judgment sought to be reviewed: In each of such

cases the motion in question did seek reargument or rehear- |

ing, did request the Court to change its previously arrived-at {

legal conclusions, did seek’ the reconsideration of contro-

verted quéstions contested in the case or did: request the

addition to. the judgment of new matter relating to and |

directly affecting the finality of the original’ judgment.”

Thus in the: Leishman case petitioner's motion requesting «) 4)

amended findings, when entertained by the Court, was

held: to: have extended the timé to si dere because (318

Uae Ng :

The motion was not addressed to mere-mat-

ters of fifo but. raised questions of substance since~ |

it sought reconsideration of cértain basic findings of -

fact and the alteration of the conclusions of the court.

' In short the necessary effect was to ask that rights -

already adjudicated be altered. Consequently it de-

prived the judgment of that finality which is essen-

tial to appealability.” [Emphasis supplied. ]

Obvioysly such cases are no authority at all for an en-.

largement of time within which torseek | review, .since peti-

- tloner did not seek reargument or rehearing, did not chal-.

lenge tlie correctness. of the Court’ s earlier disposition of

4

*Johnson v: Eisentrager, 339 U. . 763. (1950) ; : ‘United States

“v. Crescent Amusement Coa, 323 U. “$ 173 (1944); Leishman v. &

Associated Electric Co., 318 U.S. = (1943) ; Pfister v. North-

* ern Illinois Finance’ Corp., 317 U. S. 144 (1942); Bowman v. °

Loperena, 311 U. S. 262 (1940); W ayne United. Gas Co. v. Owens-

IBinois Glass Co., 300 U. S. 131 (1937) ;- Gypsy Oil Co. v. Escoe, 275

U. S. 498 (1927) ; Voorhees v. John T. Noye Mfg. Co., 151 U.S. 135

(1894); Reconstruction Finance Corp. v. Mouat, 184 F, eh 44 (9th

Cir. 1950).

25°

the case and sought in the subsequent decree the disposition

vai: of unrelated and uncontested issues. 3

» Petitioner states ( Br., p. 45) that the cases indicate that

a petition for rehearing “extends the time to appeal with re- ©

“spect to all parts of a judgment, not merely the portion which

3 ‘\the petition or motion seeks to have modified”. While that

* " statement may be true, it is without significance here; for.

there was-no petition for rehearing i in this case with respect

to any part of the July 5 judgment. Petitioner did not at

any time, either before or after the 15-day period allowed by

Rule 22 of the Rules of the Court below for petitions. for

rehearing, seek from the Court below any alteration of the

rights adjudicated by the July 5 judgment. Accordingly,

petitioner’s time within which to apply for certiorari to re-

view that judgment i is not affected by consideratiofs applic-

’ able to petitions for rehearing. sate.

_. Petitioner is, in the end, reduced to arguing ( Br. - 41)

that the entry of a second judgment which adjudicates :

wholly different, unrelated issues and incidentally reiterates,”

without change, an earlier judgment that finally settled other

issues, supersedes’ the earlier judgment for ptirposes of re-

view. This argument of petitioner | parallels the one made ©

to this Court in the petition for rehearing in Toledo Scale

Company v. Computing Scale Company, 261 U. S., 399

(1923), rehearing denied, Supreme Court Docket No. 399,.

October Term, 1922 (supra at pp. 16-18). The: argument

in the Toledo case is repeated here almost without change.

Aside from the fact that this Court rejected the argufnent —

- in the Toledo case, the authorities referred to by petitoner* ”

*Zimniern v. United States, 298 U. S. 167° (1936) ; Memphis v.

Brown, 94 U. S.715 (1876) ; Rubber Co. %. Goodyear. 6 Wall. 153

(U.S. 1867): Union Guardian Trust Co. v. Jastromb; 4 F. 2d 689

(6th Cir. 1931). 2

See ese

simply do not -supjSort the proposition for which they a

cited. .Thus in Memphis v. Brown, 94 U.S. 75. (1876

_. this Court expressly pointed out that the substantial chang

effected by the secoyd judgment was the crucial fact whi

accounted for treating the earlier judgment as havi ‘ing bes

ae superseded (94 U.S. at 717):

“We think that the order’ ‘ade by the Circu

Court, May 20, 1876, upon ‘the motion to subje

merchants: capital to-the tax. was such a final jud;

ment as may be brought here for reexamination |

a writ of error. The precise question decided by th

_ order had never before been-presented in the caus

. The city was then for the first.time required, WW e.

press terms, 'to subject this particular class of pro,

erty tosthe.adjudged taxation. The writ was, ther

. fore, properly sued; out. be es ue judgment. gee

— Snpphed. } ed ?

Petitioner, in arguing that its petition. in this case

timely, overlooks certain obvious truths:

‘First: The Commission did not have to wait until ¢

September 18 decree was entered to seek a review of tl

July 5 judgment. It would not have been hampered: :

any Ww ag ‘in applying for a writ of certiorari to review tl

July ‘judgment if the: September 18 decree had nev

been ee au

~Seéond: M- H was entitled to believe on Octaber 4 (¢

days after entry of the July 5 judgment ) that the proceee

ings with respect to Part III of the Commission's oy

“were at an end. Matton Steamboat Co. v. Murphy. .

U.S. 412 (1943). The Matton St Boner C O. Case is Cite

by petitioner itself (Br... p. 47) for the proposition th

‘

7 a

the purpose of statutes limiting the period for review

is to “‘set a definite time beyond which prospective appellees

may know, if no appeal has been filed, that the htigation is

over.’ |

°

Third: If the September 18 decree had been intended

to supersede the July 5 judgment for purposes of review,

- without otherwise making any change relating to the issues «

thereby determined and which are the only issues sought.

to be reviewed. in this Court, the action of the Court of

Appeals would have been a flagrant violation of the estab-

lished rule tliat a judge or court may not: enlarge the time

for review: beyond the period prescribed by statute. See

Wayne United Gas Co. Vv. Oweris-Illinois Glass. Co., 300

~ULS. 131 (1937); Credit Company v. Arkansas Central

Railway Co.; 128 U.S 3. 258 (1888). =. | 3

Conclusion | |

The writ ef certiorari should be dismissed for want of

jurisdiction,

Respectfully submitted,

Apert R. CONNELLY,

Counsel for Respondent,

“+ 15 Broad Street, |

? New York 5, N. Y.

Donatp C. SWATLAND,

WIL FREEMAN,

Of Counsel.

Octoher S,. 195z: