Opinion — Granny Goose Foods, Inc. v. Teamsters

428 OCTOBER TERM, 1973

Opinion of the Court 415 U.S.

wanted to negotiate separate contracts with petitioner

em

The same day the complaint was filed, the Superior

Court issued a temporary restraining order enjoining all

existing strike activity and ordering the defendants to

show cause on May 26, 1970, why a preliminary

injunction should not issue during the pendency of the

suit. An amended complaint adding petitioner Standard

Brands, Inc., was filed on May 18, and a modified tempo-

rary restraining order was issued that same day

a prohibition against strike activities directed to

that employer.

On May 19, 1970, after having been served with the

May 15 restraining order but before the scheduled hear-

ing on the. order to show cause, the Union and the

individual defendants removed the proceeding to the

District Court on the ground that the action arose under

§ 301 of the Labor Management Relations Act, 1947, 61

Stat. 156, 29 U. S. C. $185“ On May 20, 1970, an

amended removal petition was filed to take into account

the modified temporary restraining order of May 18...

Simultaneously with the filing of the removal petition,

the defendants filed a motion in the District Court

dissolve the temporary restraining order. The sole

ground alleged in support of the motion was that the

District Court lacked jurisdiction to maintain. the

restraining order under this Court’s decision in Sinclaw

Refining Co. v. Atkinson, 370 U. S. 195 (1962), where

agreement. The Board ultimately determined that the Union’

withdrawal was not timely because negotiations had begun on Jam

uary 7, 1970, prior to the attempted withdrawal. We, of —

express no view on this issue.

*In Aveo Corp. v. Aero Lodge No. 735, 390 U. 8. 557 (1968)) we

held that § 301 (a) suits initially brought im state courts may be

removed to the designated federal forum under the federal-questios

removal jurisdiction delineated in 28 U. S. C. § 1441.

GRANNY GOOSE FOODS, INC..». TEAMSTERS 429

423 Opinion of the Court

the Court held that notwithstanding § 301’s grant of

jurisdiction to federal courts over suits between employ-

ers and unions for breach of collective-bargaining agree-

ments, §4 of the Norris-La Guardia Act, 47 Stat. 70,

29 U. 8. C. § 104, barred federal courts from issuing an

injunction against a strike allegedly in violation of a

collective-bargaining agreement containing a no-strike

clause. ‘

The employers then filed a motion to remand the case

to the Superior Court, alleging that the defendants had

waived their right to removal by submitting to the juris-

diction of the state court. The Union’s motion to dis-

solve and the employers’ motion to remand came on for

a hearing on May 27, 1970. The motion to remand was

denied from the bench. With respect to the motion to

dissolve, the employers brought to the attention of the

District Court our grant of certiorari in Boys Markets

v. Retail Clerks Union, 396 U. S. 1000 (1970), which

was interpreted as an indication that the Court would

re-examine its holding in Sinclair. As Boys Markets had

been argued here in April 1970, the District Court

refrained from taking any’ action on the motion to dis-

solve until it received further guidance from this Court.

On June 1, 1970, we handed down our decision in Boys

Markets v. Retail Clerks Union, 398 U. 8. 235, overruling

Sinclair and holding that a district court could enjoin a

strike in breach of a no-strike clause in a collective-

bargaining agreement and order arbitration under the

agreement. Three days later, on June 4, 1970, the Dis-

trict Court entered a brief order denying the motion to

dissolve the state court temporary restraining order, citing

Boys Markets.

Evidently picketing and strike activity stopped and

the labor dispute remained dormant after June 4. The

flame was rekindled, however, when on November 9,

OCTOBER TERM, 1973

Opinion of the Court 415 U.S.

1970, the Union sent the employers telegrams requesting

bargaining to arrive at a collective-bargaining agree-

ment and expressing the Union’s continued belief that

it was not bound by the national and local agreements

negotiated by the multiunion-multiemployer groups,

The employers answered that there was no need to

bargain because, in their view, the Union was bound by.

the national and local agreements. The conflict remained

unresolved, and on November 30, 1970, the Union com-

menced its strike activity once again.

The next day the employers moved the District Court

to hold the Union, its agents, and officers in contempt

of the modified temporary restraining order issued by the

Superior Court on May 18. A hearing was held on the

motion the following day. The Union’s argument that

the temporary restraining order had long since expired

was rejected by the District Court on two grounds

First, the Court concluded that its earlier action denying

the motion to dissolve the temporary restraining order

gave the order continuing force and effect. Second, the

Court found that § 1450 itself served to continue the

restraining order in effect until affirmatively dissolved

or modified by the Court. Concluding after the hearing

that the Union had willfully violated the restraining

order, the District Court held it in criminal contempt

and imposed a fine of $200,000.°

* Three-fourths of the fine was conditioned on the Union's failure

to end the strike within 24 hours of the Court’s order, one-half on

failure to end the strike within 48 hours, and one-fourth on failure

to end the strike within 72 hours.

Although we do not rest our decision on this point, there seems

to be much evidence in the record suggesting that even if the

restraining order remained in effect and had been violated, the

violation was not willful. A finding that the violation was willful

obviously presupposes knowledge on the part of the Union that

the order was still in effect. Whether or not the order in fact

ela at ll a ee i ee tit te i ge ee

GRANNY GOOSE FOODS, INC. v. TEAMSTERS 431

423 Opimion of the Court

Leaving aside for the moment the question whether

the order denying the motion to dissolve the temporary

restraining order was effectively the grant of a prelimi-

nary injunction, it is clear that whether California law

or Rule 65 (b) is controlling, the temporary restraining

order issued by the Superior Court expired long before

the date of the alleged contempt. Section 527 of the

California Code of Civil Procedure,* under which the

remained in effect on November 30, the Union evidently believed

it had expired. Prior to commencing its strike in’ November, the

Union informed the employers through its attorney that it did

“not understand from the file that there is presently in effect any

order which forbids Local 70 from bargaining with the employer,

or from pressing its position that it has a right to bargain for a

separate contract. A motion to dissolve a temporary restraining

order against econorhic action was denied by the federal court, but

that temporary restraining order has long since become ineffective

by virtue of the statutory limitation on its duration, and there has

been no application for a preliminary injunction.

“Accordingly, the federal court case is pending, but there are

no outstanding orders which affect the assertion by Local 70 of

rights which it claims... .” App. 67.

* Section 527 (Supp. 1974), provides:

“An injunction may be granted at any time before judgment upon

a verified complaint, or upon affidavits if the complaint in the one

case, or the affidavits in the other, show satisfactorily that sufficient

grounds exist therefor. A copy of the complaint or of the affidavits,

upon which the injunction was granted, must, if not previously

served, be served therewith.

“No preliminary injunction shall be granted without notice to

the opposite party; nor shall any temporary restraining order be

granted without notice to the opposite party, unless it shall appear

from facts shown by affidavit or by the verified complaint that great

or irreparable injury would result to the applicant before the matter

can be heard on notice. In case a temporary restraining order shall

be granted without notice, in the contingency above specified, the

matter shall be made returnable on an order requiring cause to be

shown why the injunction should not be granted, on the earliest day

OCTOBER TERM, 1973

Opinion of the Court 415 U.S,

a

order was issued, provides that temporary restraining

orders must be returnable no later than 15 days from

the date of the order, 20 days if good cause is shown,

and unless the party obtaining the order then proceeds

to submit its case for a preliminary injunction, the

(echqeceny: reciealing etter, Mast: fe Salve Simi-

shih "thn badhbclbsal of the Wak: AU dateut. 68. aie: ind. lane te

15 days or, if good cause appears to the court, 20 days from the

date of such order. When the matter first comes up for hearing the

days prior to such hearing, a copy of the complaint

affidavits to be used in such application and a copy of

and authorities in support of such application; if he be

or if he shall fail to serve a copy of his complaint, affidavits

points and authorities, as herein required, the court shall dissolve

the temporary restraining order. The defendant, however, shall be

entitled, as of course, to one continuance for a reasonable period,

if he desire it, to enable him to meet the application for the pre

liminary injunction. The defendant may, in response to such order to

show cause, present affidavits relating to the granting of the pre

liminary injunction, and if such affidavits are served on the applicant

at least two days prior to the hearing, the applicant shall not be

entitled to any continuance on account thereof. On the day upop

which such order is made returnable, such hearing shall take prece-

dence of all other matters on the calendar of said day, except older

matters of the same character, and matters to which special prece-

dence may be given by law. When the cause is at issue it shall

be set for trial at the earliest possible date and shall take precedence

of all other cases, except older matters of the same character, and

matters to which special precedence may be given by law.”

? The time limitation of § 527 has been strictly construed by the

California courts. See, e. g., Smith v. Superior Court, 64 Cal. App.

722, 222 P. 857 (1923); Sharpe v. Brotzman, 145 Cal. App. 2d 354,

302 P. 2d 668 (1956); Oksner v. Superior Court, 229 Cal. App. 2d

672, 40 Cal. Rptr. 621 (1964) ; Agricultural Prorate Comm’n v.Superior

Court, 30 Cal. App. 2d 154, 85 P. 2d 898 (1938).

Petitioners argue that the time limitation of § 527 is not ap

plicable here because it is operative only with respect to orden

GRANNY GOOSE FOODS, INC. v. TEAMSTERS 433

423 Opinion of the Court

larly, under Rule 65 (b),* temporary restraining orders

must expire by their own terms within 10 days after

entry, 20 days if good cause is shown. thc

granted without. notice to the adverse party. In the present. case,

petitioners indicate, telephonic notice was given to the Union's

counsel on May 15, the day the employers first sought the restraining

order, counsel was served with all documents prior to a hearing

arranged that day, and counsel was present in the courtroom and

presented argument on behalf of the Union at that hearing.

We think it clear from § 527, however, that this kind of informal

notice and hearing does not convert the temporary restraining order

into a preliminary injunction of unlimited duration under state law.

Section 527 provides that when a case comes up for a hearing on

a preliminary injunction, the party seeking the injunction “must

have served upon the opposite party at least two days prior to sue)

hearing, a copy of the complaint and of all affidavits to be used

in such application and a copy of his points and authorities in

support of such application ....” (Emphasis added.) In providing

that no preliminary injunction shall be granted without notice to

the opposite party, we think the statute thus contemplates notice

of at least two days, with a meaningful opportunity to prepare for

the hearing, rather than the kind of informal, same-day notice

that was given in this case.

with Union counsel

granting the temporary restraining order,

the court set the case for a hearing on the application for a pre-

liminary injunction within the 15-day limit imposed by § 527.

In any event, we need not res our holding on this interpretation

of state law, for even if this restraining order could have had un-

limited duration under California law, it was subject to the time

limitations of Rule 65 (b) after the case was removed to federal

court. See infra, at 437-440. Although by its terms Rule 65 (b), like

§527, only limits the duration of restraining orders issued without

notice, we think it applicable to the order in this case even though

informal notice was given. The 1966 Amendments to Rule 65 (b),

[Footnote 8 is on p. 434)

a OCTOBER TERM, 1973

Opinion of the Court 4150.8. —

Petitioners argue, however, that notwithstanding the

time limitations of state law, § 1450 keeps all state court

injunctions, including ex parte temporary restraining

requiring the party seeking a temporary restraining order to certify

to the court in writing the efforts, if any, which have been made to

give either written or oral notice” to the adverse party or his

attorney, were adopted in recognition of the fact that informal

notice and a hastily arranged hearing are to be preferred to no

notice or hearing at all. See Advisory Committee’s Note, 39 F. R. D.

124-125. But this informal, same-day notice, desirable though

it may be before a restraining order is issued, is no substitute for

the more thorough notice requirements which must be satisfied to

obtain a preliminary injunction of potentially unlimited duratisn.

The notice required by Rule 65 (a) before a preliminary injunction

can issue implies a hearing in whieh the defendant is given a fair

opportunity to oppose the application and to prepare for such op-

position. Sims v. Greene, 161 F. 2d 87 (CA3 1947). The same-day

notice provided in this case before the temporary restraining

order was issued does not suffice. See Bailey v. Transportation-

Communication Employees Union, 45 F. R. D. 444 (ND Miss. 1968).

See also C. Wright & A. Miller, Federal Practice & Procedure: Civil

§ 2949, p. 468 (1973 ed.), reading into Rule 65 (a) a five-day-notice

requirement based on Fed. Rule Civ. Proc. 6 (d).

* Rule 65 (b) provides:

“(b) Temporary Restraining Order; Notice; Hearing; Duration.

“A temporary restraining order may be granted without written or

oral notice to the adverse party or his attorney only if (1) it clearly

appears from specific facts shown by affidavit or by the verified

complaint that immediate and irreparable injury, loss, or damage

will result to the applicant before the adverse party or his attor-

ney can be heard in opposition, and (2) the applicant’s attorney

certifies to the court in writing the efforts, if any, which have been

made to give the notice and the reasons supporting his claim that

notice should not be required. Every temporary restraining order

granted without notice shall be indorsed with the date and how

of issuance; shall be filed forthwith in the clerk’s office and

entered of record; shall define the injury and state why it is #

reparable and why the order was granted without notice; and

shall expire by its terms within such time after entry, not to exceed

10 days, as the court fixes, unless within the time so fixed the order,

sSa~ Fae

a ere Ses sa 737 fas PF

GRANNY GOOSE FOODS, INC. ». TEAMSTERS 435

423 Opinion of the Court

orders, in full force and effect after removal until affirm.

atively dissolved or modified by the District Court. To

the extent this reading of § 1450 is inconsistent with

the time limitations of Rule 65 (b), petitioners contend

the statute must control.

At the outset, we can find no basis for petitioners’

argument that § 1450 was intended to turn ex parte

state court temporary restraining orders of limited dura-

tion into federal court injunctions of unlimited duration.

Section 1450 was simply designed to deal with the

unique problem of.a shift in jurisdiction in the middle

of a case which arises whenever cases are removed from

state to federal court, In this respect two basic pur-

poses are served. Judicial i

,

set down for hearing at the earliest possible time and takes prece-

dence of all matters except older matters of the same character;

and when the motion comes o

On 2 days’ notice

to the party who obtained the temporary restraining order without

notice or on such shorter notice to that party as the court may pre-

seribe, the adverse party may appear and moye its dissolution or

modification and in that event the court shall proceed to hear and

determine such motion as expeditiously as the ends of justice require.”

OCTOBER TERM, 1973

Opinion of the Court 415 U.S,

in state court, for example, need not be duplicated in

federal court. In addition, the statute ensures that

interlocutory orders entered by the state court to protect

various rights of the parties will not lapse upon removal.

Thus attachments, sequestrations, bonds, undertakings;

securities, injunctions, and other orders obtained in state

court all remain effective after the case is removed to

federal court.

But while Congress clearly intended to preserve

effectiveness of state court orders after removal, th

is no basis for believing that § 1450 was designed to give

injunctions or other orders greater effect after removal

to federal court than they would have had if the case

had remained in state court. After removal, the federal

court “takes the case up where the State court left it

off.” Duncan v. Gegan, 101 U.S. 810, 812 (1880). The

“full force and effect” provided state court orders after

removal of the case to federal court was not intended

te fle hme rt lh ent metab ee Tm

have had in state court.”

® See, e. g.. Madron vy. Thomas, 38 F. R. D. 177 (ED Tenn. 1965);

Murphy v. E. 1. Du Pont de Nemours & Co., 26 F. Supp. 999 (WD Pa,

1939); Borton v. Connecticut Gen. Life Ins. Co., 25 F. Supp. 579

(Neb. 1938). Of course, repleading may be required by the Distm

Court in appropriate cases. See, e. g., Foust v. Baltimore & OR.

Co., 91 F.Supp. 817 (SD Ohio 1950) ; Shell Petroleum Corp. v. -

25 F. Supp. 879 (Minn. 1938).

10 We note that § 1450 expressly provides that attachments. ot

sequestrations effected by the state court prior to removal °

hold the goods or estate to answer the final judgment or

in the same manner as they would have been held to answer §

judgment or decree had it been rendered by the State court.”

tioners argue that since post-removal treatment of an attachment

effected in the state court was expressly made dependent on_ the

provisions of state law, while no such express. provision ~e Bit

with respect to injunctions issued by the state court prior to

a ESS ee

GRANNY GOOSE FOODS, INC. v. TEAMSTERS 487

Opinion of the Court

Section 1450 implies as much by recognizing district

court's authority to dissolve or modify injunctions, orders,

and all other proceedings had in state court iO,

parte Fisk, 113 U. S. 713 (1885). There it was

that an order to take the deposition of a witness issued by

the state court prior to removal was binding in federal

court and could not be reconsidered by the federal court,

notwithstanding its inconsistency with certain federal

statutes governing procedure in federal courts. The

Court rejected this contention, and said that the predeces-

sor of § 1450

“declares orders of the State court, in a case after-

wards removed, to be in force ‘until dissolved or

modified by the Circuit Court. This fully recog-

nizes the power of the latter court over such orders.

And it was not intended to enact that an order made

Congress must have intended that injunction orders not be controlled

after removal by the durational limitations of state law. .

As we view the matter, the express provision in § 1450 that state

law governs attachments after removal is simply an additional state-

ment of long-settled federal law providing that in all cases in fed-

eral court, whether or not removed from state court, state law is

incorporated to determine the availability of prejudgment remedies

for the seizure of person or property to. secure satisfaction of the

judgment ultimately entered. See Fed. Rule Civ. Proc. 64. Section

1450 makes it clear that this settled rule of federal law applies to

removed cases as well. If anything, therefore, it supports our con-

dusion that the other procedural requirements of federal law, in-

duding the time limitations of Rule 65 (b), must be applied to

state court temporary restraining orders after the case has been

removed to federal court. See infra, at 487-440.

OCTOBER ‘TERM, ‘1973

Opinion of the Court 415 U.8.

in the State court, which affected: or might affect

the mode of trial yet to be had, could change &

; ST cette cee ee ee

; airerngthe nes tt

“The (iilbictdah ait removed his case into -~

Circuit Court has a right to have its further progres

governed by the law of the latter court, and not by

that of the court from which it was removed: and

if one of the advantages of this removal. was |

escape from this examination, he has a right to tl

sig a i ia cial removed.” Id, a

725-726.

See lan, Kaba. Worthington, 104 U. s. 44 (1881) ; Free

man v, Bee Machine Co., 319 U. S. 448 (1943). mo

By the same token, seapondent Union. had a tight

the protections of the time limitation in Rule. 65 (b)

once the case was removed to the District: Court. The

Federal Rules of Civil Procedure, like other provisions

of federal law, govern the mode of proceedings in federal

court after removal. See Fed. Rule Civ. Proc. 81 (e)."

In addition, we may note that although the duratidnal

limitations imposed on ex parte restraining orders ar

now codified in a federal rule, they had their origin in

§ 17 of the Clayton Act. of 1914, 38. Stat. 737. As.the

House Report recommending its enactment emphasised,

the durational and other limitations imposed on tempo-

rary restraining orders were thought necessary to cure 3

serious problem of “ill-considered injunctions wi

notice,” ’ The stringent restrictions imposed by iv,

“ae

™ See generally Wright & Miller, supra, n. 7, § 1024, at 10

and cases there cited.

1? See H. R. Rep. No. 627, 63d Cong., 2d Sess., 25°(1914):

eee On Ce eS SS Se YS Cre

~-" es ™

GRANNY GOOSE FOODS, INC. v..- TEAMSTERS 439

423 Opinion of the Court

and now by Rule 65," on. the availability of ex parte

entire jurisprudence runs*counter to the

ek 175, z 180 (1968),

F. is bys

§ 1450 as an exception to its broader, longstanding policy

secommodated. by applying the following rule: An

& parte temporary restraining order issued by a state

court prior to removal remains in. force after removal

3 Section 17 of the Clayton Act was codified as 28°U.'8)'C. § 381

(1940 ed.), and was repealed by the Judicial Code Revision Act of

1048, 62 Stat. 997, for the stated reason that it was covered by

Rule 65. See H. R. Rep. No. 308, 80th Cong., Ist Sess., A236 (1947).

“See, ¢. g., Pan American World Airways v. Flight Engineers’

Assn., 306 F. 2d 840 (CA2 1962): Smotherman v. United States,

186 F. 2d 676 (CA10 1950); Sims v. Greene, 161 F.2d 87 (CA3

1947). This basic

le time and takes precedente of ‘all

matters except older matters of the same character...”

4 OCTOBER TERM, 1973)

Opinion of the Court 415 U.8

gy a nat et

measured from the date of removal™ = >

Applying our holding to the..present) case is si

The temporary restraining order was issued by the

Superior Court’ on “May 18, 1970;.and would have

poet Sone 3, Thee neo oe

days, or until June 2.. The case was removed to :

court on May 20, 1970. The temporary restraining

therefore ‘expired-on May 30, 1970, applying the

limitation of Rule 65 (b) from the date of removal. .

panes tetanic hate rng Acero

and the Union violated no order when it resumed i

ee ; : so Se

it 6 OGRES

12 ii HOE lic bites thik gee

the operation of § 1450, the District ‘Court’s denial ¢

the Union’s motion to dissolve the temporary r

order effectively converted the order into a

injunction of unlimited duration. ‘The Court of

rejected this argument out of hand, phermphriyse

Union’s unsuccessful effort to dissolve the order before

it died a natural death did not convert the oF

resttaining order into a preliminary injunction or e

it from relying on the death certificate.” 472 F. 2d,’

767. We reach essentially the same conclusion... ..

* The following two illustrations ‘should suffice to darity

holding. Where the state court issues a temporary restraining ot

of 15 days’ duration on Day 1 and the case is removed to federal cou

on Day 13, the order will expire on Day 15 im federal court just

would have expired on Day 15 im state court. Where, howe

a state court issues a temporary restraining order of 15qlays’ di

tion on Day 1 and the case is removed to the federal court on

2, the restraining order will expire on Day 12, applying the 1

time limitation of Rule 65 (b) measured from the date of

Of course, in either case, the District Court could extend the i

straining order for up to an additional 10 days, for good cause

shown, under Rule 65 (b).

GRANNY GOOSE FOODS, INC: »TEAMSTERS 441

3 Opinion ‘of the Court

As indicated earlier, once a case has been refnoved to

federal court, its course is-to be governed by federal law,

it

t SPI a,

ti 2 ¥ ' _

wu gene

ives ise

tir. 3 4 injune on. Se

gel C. Wright & A. Miller, Federal Practice &

Procedure: Civil § 2954, p. 523 (1973 ed.). 3 ors

¥* See, ¢. gj Robert W. Stark, Jr., Inc.v. Néw Y ork Stock Exchange,

466 F. 2d':743; (CA2: 1972); Crowther v2 \Seaborg, 415 (F.2d

437 (CA10 1969); Garlock, Inc. v. United Seal, Inc., 404 F, 2d 256

(CA6 1968).

OE ee a a ee ee

442 OCTOBER TERM, 1978

Opinion of the Court 415 U.8

In the present case we think it plain that the hearing

on the Union's motion to dissolve the restraining, orde

cannot be considered to be a hearing on a

injunction, and that the District Court's order denying

the motion to dissolve cannot reasonably be construed

as the grant of a preliminary injunction. There is m

indication in the record that either party or the Distriét

Court itself treated the May 27 hearing as a

on an application for a preliminary injunction.

employers made no attempt at that time to present

their case for a preliminary injunction. Likewise, the

Union made no attempt at that time to present ‘its

defense that it was not bound by the new national

and local agreements because it had made a timely i

drawal from the multi-union bargaining unit

said contracts. See n. 3, supra. The. court itself |

not indicate that it was undertaking a hearing on a P

liminary injunction. As far as we can tell, it net

addressed itself at the hearing to the various equital

factors involved in considering a preliminary injunction

but only considered the employers’ argument that. the

case should be remanded to the state court because #

right to remove had been waived by the Union’s app

thee the ayuesey retraintly afer Aguld by deca

that the temporary restraining order should be di \

for want of jurisdiction under the Sinclair holding. _ *

We cannot accept petitioners’ argument that the ¢

trolling factor is that the Union had the |

be heard on the merits of the pr “injuneti

When it’ saved ih the Disizict Court: to dasolve,

temporary restraining order. Rule 65 (b) does not

upon the party against whom a temporary

order has issued the burden of coming forward and pr-

senting its case against a preliminary injunction. 4)

the contrary, the Rule provides that “{1]n case a tempo

GRANNY GOOSE FOODS, INC. ». TEAMSTERS 443

493 Opinion of the Court

rary restraining order is grahted without notice, the

motion for a preliminary injunction shall be set down

for hearing at the earliest possible time . . . and when

the motion comes on for hearing the party who obtained

the temporary restraining order shall proceed with the

for a preliminary injunction and, if he does

not do so, the court shall dissolve the temporary restrain-

ing order.” The burden was on the employers to show

that they were entitled to a preliminary injunction, not

on the Union to show that they were not.

Even were we to assume that the District Court had

intended by its June 4 order to grant a preliminary

injunction, its intention was not manifested in an appro-

priate form. Where'a hearing on a preliminary injune-

tion has been held after issuance of a temporary restrain-

ing order, and where the District Court decides to grant

the preliminary injunction, the appropriate procedure

is not simply to continue in effect the temporary restrain-

ing order, but rather to issue a preliminary injunction,

accompanied by the necessary findings of fact and con-

clusions of law." As stated by the Second Circuit:

ire a Att US rcs ed 6 necing, held

cannot serve to extend indefinitely beyond the

period limited by [Rule 65(b)] the time during

which a temporary restraining order temainis’effec-

> &

" Fed. Rule Civ. \Proe, 52,(a) provides, that. “im. granting 08

refusing interlocutory i injunctions the. gourt: shall... set forth the

continued beyond the time limits permitted under Rule 65 (b), and

where the required findings of fact and conefusidns of law have not

been set forth, the order is invalid. See, ¢. g., National Médiation

Ba. v. Air Line Pilots Assn. 116 U. . D.

35 (1963); Sime v. Greene, 160 F

TSP RRA SSP "HRA FF PE SF Be

OCTOBER TERM, 1973

Opinion of the Court 415 UB

i, @., the issuance or denial of a preliminary injune

tion, not in extension of the temporary stay.” Pas

American World Airways v. Flight Engineers’ Assn,

306 F. 2d 840, 842 (1962) (foowenten contents

See also Sims v. Greene, 160 F. 2d 512 (CA3 1947).

As the fine imposed in this case exemplifies, serious

penalties can befall those who are found to be in con

tempt of court injunctions. Accordingly, one basic

ciple built into Rule 65 is that those against whom an

injunction is issued should receive fair and

drawn notice of what the injunction actually prohibit

“The judicial contempt power is a potent weapon,

When it is founded upon a decree too vague to. be

understood, it can be a deadly one, Congres

responded to that danger by requiring that a f

court frame its orders so that those who must, obey

them will know what the court intends to require

and what it means to forbid. . The most, funda-

mental. postulates of our legal. order,, forbid .the

imposition of a penalty for disobeying a

389 U. S. 64, 76 (1967).

It would be inconsistent. with this basic principle to

countenance procedures whereby parties against whom

an injunction is directed are left to guess .

intended duration. Rule 65 (b) provides that

rary restraining orders expire by

within 10 days of their issuance.

intends to supplant such an order

28 Rule 65 (d) provides:

beh. Ry, anerenen: fen SO PenIent Lee Be OPN, the. act #

acts sought to be restrained .

4

:

SEV SESS

aT e >

S

GRANNY GOOSE FOODS, INC)». TEAMSTERS 445

23 Rennovist, J, concurring in judgment

nary injunction of unlimited duration pending a final

decision on the merits or further order of the court, it

should issue an order clearly saying so. And where it

has not done so, a party against whom a temporary

restraining order has issued may reasonably assume that

the order has expired within the time limits imposed by

Rule 65 (b).. Here, since the only orders entered were

& temporary restraining order of limited duration and an

order denying a motion to dissolve the temporary order,

the Union had no reason to believe that a preliminary

injunction of unlimited duration had been issued.

Since neither § 1450 nor the District Court’s denial of

the Union’s motion to dissolve the temporary restraining

order effectively converted that order into a preliminary

injunction, no order. was in effect on November 30, 1970,

over six months after the temporary restraining order

was issued."* There being no order 'to violate, the Dis-

triet Court erred in holding the Union in contempt, and

the judgment of the Court of Appeals reversing the Dis-

trict Court’s adjudication of contempt must be

Affirmed.

Mr. Justice RewNnevuist, with whom THE CHIEF

Justice, Mr. Justice Stewart, and Mr. Justice PowEL.

join, concurring in the judgment.

I agree with the Court that the judgment of the Court

of Appeals for the Ninth Circuit in this case should be

affirmed, since there was no ‘injunctive order in effect at

the time that respondent's allegedly contemptuous con-

duct oceurred: “But I do not ‘join that portion of the

Court’s opinion which lays down a “rule” for all

:m

"In view of our disposition of the case, we need not and do not

reach respondent’s argument that notwithstanding Boys Markets v.

Retail Clerks Union, 398 U.S, 235 (1970), the temporary restraining

order issued im this case should be governed by the 5-day limit -of

$7 of the Norris-La Guardia Act, 29 U. S.C. § 107.

446 OCTOBER TERM, 1973

Rexunouist, J., concurring in judgment 415 U.8.

involving 28 U. 8. C. § 1450) the statute which all par-

ties agree is controlling in the case before us. In my

view, the announcement of this “rule” is neither neces.

sary to the decision of this case nor consistent with the

provisions of the statute itself. ' ;

The Court persuasively demonstrates in its opinion that

the temporary restraining order issued by the California

Superior Court had expired by its own terms long before

the alleged contempt occurred. And I see nothing in

the language or legislative history of 28 U. 8. C. § 1450,

providing that “{a}ll injunctions, orders, and other pro-

ceedings had in such action prior to its removal shall

remain in full force and effect until dissolved or modified

by the district court,” which would indefinitely extend the

Superior Court’s restraining order beyond the time of ite

normal expiration under state law. ‘Since the temporary

restraining order, had the case remained in state coutt,

concededly would have expired in early June, respondent's

actions in November and December could not have coir

stituted a contempt of that order. ue

The Court also persuasively demonstrates that none

of the proceedings occurring after removal of the cas

to the United States District Court had the effect of

converting the subsisting state court temporary restrain-

ing order into a preliminary injunction of indefinite

duration. Those proceedings addressed markedly differ

ent issues and certainly did not give the state ae

a new, independent federal exi 3

Having said this much, the Court Sammi

case before it. The opinion then goes on,

devise a “rule” that

“[a]n ex parte temporary restraining order iseued

*The relevant provision of 28 U. S. C. § 1450 reads: =

“All injunctions, orders, and other proceedings had in such atti

prior to its removal shall remain in full, foree and effect until d

solved or modified by the district court.”

GRANNY GOOSE FOODS, INC. v. TEAMSTERS 447

423 Rennouist, J., concurring in judgment

& state court prior to removal remains in force

after removal no longer than it. would have remained

in effect under state law, but in no event does the

tions imposed by Rule 65 (b), measured from the

date of removal.” (Footnote omitted. )

the second clause of the “rule” devi by the Court

seems quite contrary to the specific language of 28 U.S.C.

§ 1450. HGEBOI-F

The Court apparently bases this latter clause of the

“rule” upon the observation that “respondent: Union had

a right to the protections of the time limitation in Rule

65 (b) once the case was removed to the District Court.”

While this. premise probably has a good deal to recom-

mend it as a matter of practicality or of commoi ‘sense,

the language of the statute gives no hint that rules of

practice governing issuance of federal injunctions in

the first instance were automatically to be incorporated

in applying its terms. The statute says that the state

a's ae” SP SFT BSA - Praer a s&s

tion of temporary restraining orders which is exemplified

in Rule 65 (b) can be fully protected in cases removed

a

OCTOBER TERM, 1973

Rexnaquist, J., concurring in judgment 415 U.&

to the District Court by an application to modify or

dissolve a state court restraining order which is incom-

patible with those terms.* Such a procedure would be

quite consistent with § 1450, which specifically contem.

plates dissolution or modification by the District Court

upon an appropriate showing, | in a way that the “rule”

devised by the Court in this case is not. It is

that many orders issued under rules of state procedt re,

primarily designed, after all, to provide suitable proce.

dures for state courts rather than to frustrate federal pro-

cedural rules in removed actions, would by their term

remain in effeet for 2 period of time far longer than that

contemplated by ‘the comparable Federal Rule of Civil

Procedure. But in the rare case where such a conditidn

obtains, it is surely not asking too much of a litigant in

#.nemnareea sane: to camaply: sith § 1450. and eflemeien

move for appropriate modification of the state order...

Therefore, although la desunitoonbesinine’ teoahiccal

which the Court fashions to govern cases of this type,

I concur in its conclusion that respondent’s activity ii

November and December 1970 did not violate any injune

tive order which was in force at that time.* ‘hat

ef

by

. 2 Indeed, respondent’s motion to dissolve the state court onder

beeause of the prohibitions contained in the Norris-LaGuardia Act,

29 U. S. ©. § 104, was just such a motion. That motion was denied

by the Distriet Court, however, and respondent made no further

effort to obtain a modification or dissolution of the state restraining

order prior to its expiration. se

31 see no oceasion for the Court’s rather casual speculation, com

tained ‘in n. 5 of its opinion, that the respondent's violation. of

the order, even were it effective at the time of its later

may not have been “willful.” “The Court has concluded that

order was not effective at that later time, and it can serve no usefdl

purpose to. speculate about the sufficiency of the evidence with re

spect to violation of a defunct order. bps, OF

; a

De PR BR BR Se

Per Curiam

DeMARCO v. UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

eat ieee eee

No. 73-5684. Decided March 18, 1974

A:Goveenmnend-witcit, wlio: hd bein nected fit titidwar; taati

fied at petitioner’s*trial that no promises had been made to the

witness regarding disposition of his case. Petitioner, for the first

time on appeal of his conviction, contended that the witness’ testi-

mony was false on the basis of the prosecutor's statements at the

subsequent sentencing hearing of the witness, who had pleaded to a

lesser charge in a superseding indictment. The Court of Appeals,

after examining the transcript of the sentencing hearing, concluded

that no leniency promise had been made prior to the witness’ testi-

mony at petitioner’s trial, Held: Had there been a promise to

the witness before he testified, a reversal of petitioner's conviction

would be required, Giglio v. United States, 405 U. 8. 150, ‘and

Napue v. Illinois, 360 U. S. 264, and the factual issue of whether

the plea bargain that obviously was made with the witness preceded

or followed petitioner’s trial should have been resolved by the

District Court after an evidentiary hearing.

Certiorari granted; vacated and remanded.

Per CurraM,

At petitioner’s trial, a Government witness who had

been indicted with petitioner, testified that the Govern-

ment had made no promises to him with respect to the

disposition of his case. Petitioner was convicted and he

appealed. Meanwhile, the witness had pleaded to a

lesser charge contained in a superseding indictment; and

at his sentencing hearing, the United States Attorney

made certain statements that petitioner interpreted as

proving that promises had been made to the witness prior

to his testimony and that the witness had testified falsely

at petitioner’s trial. Without presenting the matter to

the District Court, petitioner pressed the question in the

450 OCTOBER TERM, 1973

Per Curiam 415 U.8.

Court of Appeals. That court accepted the tendered is-

sue, eXamined the transcript of the hearing at which the

witness was sentenced, considered the Government's re-

sponse in the Court of Appeals and, although the prose-

cutor’s remarks were deemed ambiguous and the question

thought to be a “close” one, concluded that no promises

had been made to the witness prior to the witness’ test

mony at petitioner’s ‘trial. ineee oS

Unquestionably, had there been a promise to the wit-

ness prior to his testimony, Giglio y.. United States, 405

U. S, 150 (1972), and Napue v. Illinois, 360 U.S. 264

(1959), would require reversal of petitioner’s conviction,

It is also clear that there was a plea bargain between

the witness and the Government at some point, the ques

tion being whether it was made after or before petitioner's

trial, This factual issue was dispositive of the case, and

it would have been better practice not to resolve it’ in

the Court of Appeals based only on the materials then

before the court. The issue should have been remanded

for initial disposition in the District Court after an eve

dentiary hearing.* We therefore grant the petition for

certiorari and the motion to proceed in forma pauperis,

vaeate the judgment of the Court of, Appeals, and

remand the case to that court with instructions to remand

the case to the District Court for further proceedings

consistent with this opinion. sts] fee ig

Late

*The Government’s response to the Petition for certiorari

that factfinding is the basic responsibility of district courts, mathe

than appellate courts, and that the Court of Appeals should tet

have resolved in the first instance this factual dispute which had net

been considered by the District Court. See, ¢. g., General: Blectrit

Credit Corp. v. Robbins, 414 F. 2d 208, 211 (CA8 1969); Yanish.

Barber, 232 F. 2d 939, 946-947 (CAQ 1956). See also 5A J. Moor,

Federal Practice { 52.06 [2] n. 1 (2d ed. 1974).

Ee ee eee ee a oe a or ee, ee ea ae

DeMARCO v. UNITED STATES

Mr. Justice Reunauist, with whom THe CHIEF

Justice and-Mr. Justice Powe. join, dissénting.

of 21 U. 8. C. $174 (1964 ed.). The Court of Appeals

summarily rejected petitioner's attacks on

of the evidence to convict him, and dealt i

this

of —

Court of.

grounds for any

claim of error here... I, would deny certiorari,