# Tidewater Oil Co. v. United States/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Stewart
[p178] MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST concurs, and MR. JUSTICE DOUGLAS concurs in part, dissenting.
The Expediting Act, enacted in 1903, provides that in civil antitrust actions brought by the United States "an appeal from the final judgment of the district court will lie only to the Supreme Court." (Emphasis added.) Section 1292 (b), enacted in 1958, provides that when a district court, "in making in a civil action an order not otherwise appealable under this section," shall appropriately certify the question involved, the court of appeals has discretionary jurisdiction to hear an interlocutory appeal from that order. Thus, the Expediting Act, by its terms, relates only to appeals from final judgments in a limited category of cases, while § 1292 (b) applies to appeals from certain interlocutory orders in all civil actions. The Expediting Act does not prohibit courts of appeals jurisdiction under § 1292 (b), for the former applies only to final judgments, while the latter applies to interlocutory orders. To find any inconsistency whatever between the two statutes thus requires rejection of the plain meaning of each of them—rejection, in short, of a most basic principle of statutory construction. As the Court of Appeals for the Seventh Circuit recognized in Fisons, Ltd. v. United States, 458 F.2d 1241, 1245 (1972), "the language of each [can] be given full effect without limiting the scope of the other."
[p179] Moreover, the purpose of § 1292 (b) is wholly inconsistent with that of the Expediting Act. The 1903 statute was motivated by the view that Government antitrust actions are so important that they should be expedited. Shenandoah Valley Broadcasting v. ASCAP, 375 U.S. 39, 40 (1963). So, too, the motivation behind § 1292 (b), enacted 55 years later, was the contemporary view that interlocutory appeals involving important and controlling questions of law are a useful means of expediting litigation. Although § 1292 (b) authorizes a departure from the general rule against interlocutory appeals, it does so only for the purpose of materially advancing the ultimate termination of the litigation. Thus, the [p180] Expediting Act and § 1292 (b) are animated by precisely the same objectives and warranted by precisely the same circumstances, and they should be read together as supplementing each other, not as antagonistic.
The legislative history of § 1292 (b) indicates that its primary benefit was expected to occur in the protracted or "big" cases, including civil antitrust litigation. Yet, if no appeal can be taken to a court of appeals under § 1292 (b) in a civil antitrust suit where the Government is plaintiff, then the purpose behind the statute cannot be served at all in these cases, for no statute provides for such an interlocutory appeal directly to this Court. It seems to me that if Congress had wanted to exclude cases like this one from the beneficent provisions of § 1292 (b), it would have said so.
[p181] The Expediting Act originally provided that Government antitrust cases would be heard by a panel of judges upon the certification of the Attorney General. That provision is now 15 U.S.C. § 28, which provides for a panel of three. The purpose of the provision was to ensure that cases would receive full consideration by a panel of judges before presentation to this Court. The Expediting Act, of course, has been criticized because it routes complex cases directly here without benefit of screening by the courts of appeals. As we stated in United States v. Singer Mfg. Co., 374 U.S. 174, 175 n. 1 (1963):
   "Whatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory.... Direct appeals not only place a great burden on the Court but also deprive us of the valuable assistance of the Courts of Appeals."
See also Brown Shoe Co. v. United States, 370 U.S. 294, 355 (1962) (Clark, J., concurring); id., at 364-365 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., 370 U.S. 460, 477 n. (1962) [p182] (Harlan, J., dissenting); Ford Motor Co. v. United States, 405 U.S. 562, 595 n. 5 (1972) (BURGER, C.J., concurring in part and dissenting in part). Interlocutory appeals under § 1292 (b) in Government antitrust cases could provide screening of at least some issues in at least some cases by courts of appeals before those issues reach this Court; and this, as shown above, would be consistent with the original policy of the Expediting Act. The Court's decision today precludes, in cases like this, both the useful expediting effect of § 1292 (b), and the equally desirable potential of intermediate review by the courts of appeals of important legal issues.
It is said that a ban on court of appeals jurisdiction under § 1292 (b) in Government antitrust cases is to be derived from the provisions of § 1292 (a)(1). The latter section provides that the courts of appeals shall have jurisdiction of appeals from interlocutory orders of district courts granting or denying injunctions "except where a direct review may be had in the Supreme Court." The argument is that language expressly excludes court of appeals jurisdiction in Expediting Act cases; and since there is nothing in the language of § 1292 (b) that contradicts this express exclusion, interlocutory orders in Expediting Act cases are likewise not appealable under § 1292 (b). If § 1292 (b) did allow court of appeals jurisdiction in this case, it is said, the result would be that an interlocutory order in a Government antitrust case could be appealed to a court of appeals only if it did not involve an injunction; and that result would effectively turn § 1292 on its head, because in non-Expediting Act cases, § 1292 gives priority to injunctive orders, which may be appealed as of right.
There are several answers to this argument. At the outset, it is not clear that the major premise—that § 1292 (a)(1) expressly excludes court of appeals jurisdiction in Expediting Act cases—is valid. On that question, the [p183] Circuits are divided, the First and the Ninth denying their jurisdiction, and the Third upholding appealability. We have never before faced the question nor resolved the conflict.
But even if the Expediting Act does bar court of appeals jurisdiction to review interlocutory injunctive orders under § 1292 (a)(1) in Government antitrust cases, it does not follow that there must be a similar bar to § 1292 (b) jurisdiction. The very fact that § 1292 (a)(1) contains express language which at least arguably creates an exception to court of appeals jurisdiction, while § 1292 (b) contains no such language, is reason enough to treat the two differently. Beyond that, § 1292 (a)(1) has a history dramatically different from § 1292 (b). That history was thoroughly reviewed in United States v. Cities Service Co., 410 F.2d 662 (CA1 1969), in United States v. Ingersoll-Rand Co., 320 F.2d 509 (CA3 1963), and in the Court's opinion today, ante, at 155-163, and need not be discussed in detail here. Suffice it to say that the original version of § 1292 (a)(1) was [p184] enacted in 1891, and that the provision went through several changes in language in succeeding years, during which its relationship to the 1903 Expediting Act was often unclear. See United States v. Cities Service Co., 410 F.2d, at 666-669. The provision was finally codified in its present form in 1948, although, as the above-mentioned conflict between the circuits demonstrates, that codification did not make its relationship to the Expediting Act any clearer. Section 1292 (b), on the other hand, was an entirely new statute, written on a clean slate in 1958, and representing a sharp break with the traditional policy against appeals from noninjunctive interlocutory orders. At that time, there was already growing doubt about the wisdom of the Expediting Act; and the fact that Congress conferred § 1292 (b) jurisdiction without making any express exception for cases where direct review may be had in this Court—such as had been in § 1292 (a)(1) for some years—is surely some indication that Congress in 1958 was expressing the contemporary view that interlocutory appeals to the courts of appeals on controlling questions of law provide a desirable tool that should not be denied even in Expediting Act cases.
As to the point that this interpretation would "turn § 1292 on its head," it is certainly arguable that if an appeal from an injunctive order in an Expediting Act case cannot be had under § 1292 (a)(1), it may still be taken under § 1292 (b). Section 1292 (b) relates to orders "not otherwise appealable under this section," whatever the nature of the order and whatever the reason for its nonappealability. Hence, if, in Government antitrust cases, courts of appeals have no jurisdiction under § 1292 (a)(1), then an interlocutory injunctive order would be an order "not otherwise appealable," and § 1292 (b)'s discretionary jurisdiction might well be held to apply.
[p185] In short, there is no validity to the argument that the terms of § 1292 (a)(1), whatever they may mean, have any bearing upon the proper interpretation of § 1292 (b).
It is also argued that the basic policy of the Expediting Act was to remove all court of appeals jurisdiction in Government antitrust cases. According to this argument, although the Act speaks only of final judgments, it must be understood to include interlocutory appeals, since, at the time the Act was passed, the courts of appeals could review interlocutory orders only in cases where they could review final judgments. From United States v. California Cooperative Canneries, 279 U.S. 553, 558 (1929), to Brown Shoe Co. v. United States, 370 U.S., at 305 n. 9, the argument goes, this Court has consistently indicated that courts of appeals may not exercise jurisdiction in Expediting Act cases, regardless of whether the appeal is from a final or interlocutory order; and it should not be assumed that Congress in 1958 repealed this longstanding interpretation by legislation that is not addressed specifically to appeals in these cases.
I fail to see how we effect anything like a repealer of the Expediting Act by construing § 1292 (b) to permit court of appeals jurisdiction thereunder in Expediting Act cases. As demonstrated above, there is no inconsistency whatever between this construction of § 1292 (b) and the plain language of the Expediting Act. It is equally clear that the reason why in 1903, and indeed for 55 years thereafter, courts of appeals could not review noninjunctive interlocutory orders in cases where they could not review the final judgment is not that the Expediting Act forbade such review, but that there was no statutory authority for such review in any cases whatsoever. In 1958, however, Congress broke with the old policy against interlocutory appeals from noninjunctive orders and specifically provided that such appeals [p186] may be taken to the courts of appeals in their discretion in all civil actions, where the question is properly certified. I see no reason, in the absence of some statutory prohibition, to refrain from applying that clear language, whether or not the court of appeals can review the final judgment.
The cases cited by the Government do not persuade me otherwise. California Canneries, of course, was decided 29 years before the enactment of § 1292 (b); and whatever was said there was a judgment on what Congress had done, not on what it could do or on the meaning of what it was do to 29 years later. Brown Shoe does postdate the enactment of § 1292 (b); but that case involved a direct appeal to this Court; and the only question about appealability was whether the appealed order was final. The issue of court of appeals jurisdiction under § 1292 (b) was not involved there, nor was the 1958 Act even mentioned in the short footnote dictum so heavily relied on by the Government. That dictum did little more than quote the language of California Canneries, and it surely cannot be understood to decide the issue now before us.
Finally, it is said that it would be anomalous for a court of appeals that is without jurisdiction to entertain an appeal from a final judgment to decide an interlocutory issue that could control the outcome of the case. But there is no case in which the judgment of a court of appeals is necessarily final. Whenever a court of appeals decides a controlling question of law in any litigation, its views are subject to review here. Far from being anomalous, interlocutory review of potentially dispositive questions by the courts of appeals in Government antitrust cases would be helpful to this Court, giving us the benefit of intermediate appellate consideration in these cases. We could then exercise our certiorari power informed by the reasoning of an appellate [p187] court, and there might be no later direct appeal at all from the final judgment. And surely interlocutory appeals under § 1292 (b) in Government antitrust cases would serve to lighten the burden on trial courts and litigants alike.
We cannot, of course, create an appellate jurisdiction not created by Congress, however desirable. But what Congress has conferred, we should not reject.
I would reverse the order of the Court of Appeals denying Tidewater's petition to appeal under § 1292 (b) for lack of jurisdiction, and I would remand this case to that court with directions to consider the merits of the petition to appeal.

## Notes

* ↑ In reporting the bill that became the Expediting Act, Senator Fairbanks stated that: "[E]very reasonable means should be provided for speeding the litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object." 36 Cong. Rec. 1679.
* ↑ The Senate Report on the bill that became § 1292 (b) stated: "This legislation results from a considerable study by committees of the Judicial Conference. The legislation itself was introduced at the request of the Administrative Office of the United States Courts pursuant to the direction of the Judicial Conference of the United States.... The bill results from a growing awareness of the need for expedition of cases pending before the district courts. Many cases which are filed in the Federal district courts require the district judge to entertain motions at an early stage in the proceedings which, if determined, against the plaintiff, result in a final order which would then be appealable to the circuit courts of appeals of the United States. However, such motions, if determined in the plaintiff's favor, are interlocutory since they do not end the litigation and are not therefore, under existing provisions of law, appealable.... ..... "The committee believes that this legislation constitutes a desirable addition to the existing authority to appeal from interlocutory orders of the district courts of the United States.... Any legislation, therefore, appropriately safeguarded, which might aid in the disposition of cases before the district courts of the United States by saving useless expenditure of court time is such as to require the approbation of all those directly concerned with the administration of justice in the United States." S. Rep. No. 2434, 85th Cong., 2d Sess., 2, 4 (1958).
* ↑ The Senate Report stated: "There are many civil actions from which similar illustrations could be furnished. For example, in an antitrust action a plea may be entered that the claim is barred by the statute of limitations. If this motion is denied, under existing law the matter is not appealable and the case then goes forward to trial. Disposition of antitrust cases may take considerable time, yet upon appeal following final disposition of such cases, the court of appeals may well determine that the statute of limitations had run and for that reason the district court did not have jurisdiction." Id., at 3.
* ↑ Although the antitrust cases referred to in the Senate Committee Report on § 1292 (b) were apparently private cases, rather than Government litigation, the proposed legislation was introduced, after considerable study, at the direction of the Judicial Conference of the United States (n. 2, supra), whose members—all eminent federal judges—were surely familiar with the appellate procedure in civil antitrust cases brought by the Government.
* ↑ The House Report on the bill explains this provision by quoting a letter of the Attorney General as follows: "There are a number of cases now provided by statute where appeals may be made directly to the Supreme Court from the district and circuit courts .... "The class of cases that I suggest should be brought within this rule, it seems to me, is of as great importance as any of those referred to. The suggested provision requiring a full bench of the circuit judges would insure the cases receiving as full consideration before presentation to the Supreme Court as if heard by the United States circuit court of appeals." H. R. Rep. No. 3020, 57th Cong., 2d Sess., 2 (1903).
* ↑ United States v. Cities Service Co., 410 F.2d 662 (CA1 1969); United States v. FMC Corp., 321 F.2d 534 (CA9 1963).
* ↑ United States v. Ingersoll-Rand Co., 320 F.2d 509 (CA3 1963). The reasoning of the Third Circuit in this case was as follows: Section 1292 (a) (1) permits an appeal to a court of appeals of interlocutory injunctive orders "except where a direct review may be had in the Supreme Court." Since the Supreme Court has direct review in Expediting Act cases only from final judgments, it has none from interlocutory orders. Hence, the exception in § 1292 (a) (1) does not bar court of appeals jurisdiction over interlocutory injunctive orders in Government antitrust cases. The court then concluded: "In fact, it is extremely difficult and requires doing violence to the language of the statute to escape the conclusion that interlocutory orders, such as the one at bar, are reviewable by a court of appeals excepting and only excepting those types of cases in which an interlocutory order is directly reviewable by the Supreme Court." 320 F.2d, at 517.