*1 FEDERAL TRADE COMMISSION v. MINNE
APOLIS-HONEYWELL REGULATOR CO. Argued 15-16, 1952. Decided December 1952. No. October *2 for the cause argued Stern Acting General Solicitor Assistant Acting brief were him on the With petitioner. T. Friedman, W. M. Clapp, Daniel Attorney General B. Dawkins. and Kelley Robert respondent. the cause Connelly argued Albert R. Freeman. Will the brief was him on With opinion delivered Vinson Justice Mr. Chief the Court. jurisdiction— one of in case is question
The initial filed within for certiorari petition whether it not. that was hold by law.1 We allowed period by peti- initiated proceeding of a out grows cause At that in Commission, Trade the Federal tioner, complaint a three-count issued time, the Commission of § charged violation Count I respondent. against charged II Act;2 Count Trade Commission of the Federal III dealt Count Act;3 3 of the Clayton § a violation of as Clayton Act (a) of § violation an alleged with A protracted Act.4 the Robinson-Patman amended The Commission proceeding followed. administrative counts, on all three against respondent finally determined (e). 1 28 U. S. C. §2101 719, 15 C. 45. 38 Stat. § 731, 15 ü. S. C. 38 Stat. §14. (a). 1526, 15 S. C. 13 amended, 49 U. as Stat. § 38 Stat. order, and desist three parts, issued cease covering each of the three violations.
Respondent petitioned Appeals Court for the Seventh Circuit to review and set aside this order. The parts of all sought Commission enforcement of its order in a cross-petition.
Respondent completely abandoned its attack on Parts I and II In argument, order. briefs and oral made it respondent legality clear that the of Part III was only contested issue before the Court of Appeals. Neither party argued any briefed or question arising out I II. of Parts July 5,
On the Court of announced its opinion decision. The stated that respondent since did *3 “challenge not Parts I II and of the order based on the two complaint first counts of the we shall make no further reference them.” The court then went .on hold that Part III petitioner’s of order could not be sustained by substantial evidence and should be reversed. 191 F. 2d 786. On the same day, the court entered its judgment, the pertinent portion reading as follows:
“. . . it is ordered and adjudged by this Court that Part III of the decision of the Federal Trade Commission in entered on January cause 1948, be, and the same is hereby, Reversed, and III Count of complaint upon which it is based be, and the same is hereby Dismissed.” The Court of Appeals requires petitions for rehearing to be filed “within 15 days after entry of judgment.” The Commission filed no such petition. On August 21, 1951, long expiration after the of this 15-day period, and after a certified copy of judgment, said in lieu of man- date, issued, the Commission filed memorandum with the court which reads part as follows: and opinion its entered 1951 the Court July 5,
“On III of the decision of reversing Part 14, January dated Trade Commission Federal upon complaint III of the dismissing Count and made of has been disposition based. No it is affirm- Commission filed the Cross-Petition decision. of the entire and enforcement ance Cross-Peti- Commission position takes e., i. to the extent sustained, in part be tion should a decree herein make and enter should that the Court order Commission’s II of the Parts I and affirming Minneapolis- commanding and and desist to cease obey the same Company to Regulator Honeywell . . . therewith. comply aban- petitioner
“11. In filed herein its briefs II order I and of the Parts upon its attack doned III Part validity of only the challenged March brief dated petitioner’s 1 of (see page order validity concedes 1951). Thus, petitioner does contest the I and II the order and Parts and brief Cross-Petition of the Commission’s prayer affirmance and enforcement with to the respect II order.” I and Parts sought the Commission this memorandum Clearly, by *4 Part III; relative to judgment of the alteration no judgment reversing entry acknowledged it fact, it to be It not even claim 5, III 1951. did July Part Parts rehearing. It was submitted a for petition “In conclu- uncontested, and II of the order were I and and should make . the Court sion . . submitted Parts I and enforcing affirming ... a decree enter and desist.” order to cease II of the Commission’s 1951, the Court of issued 18, September On Again “Final Decree.” the court its what it called Part III of the and decreed” that adjudged “ordered, III of and Count hereby order “is reversed Commission’s the same it is based be and complaint upon affirm went on to The court then hereby dismissed.” for judgment providing entered a II, I and and it Parts no reciting again that there was enforcement, after their order. phase contest over peti- the Commission filed its 14, 1951, On December Obviously, petition was out of tion for certiorari. to run ninety-day filing period began time unless September the second entered on anew from 940, granting certiorari, In our order U. S. 18, applica- to discuss the “timeliness of the we asked counsel tion for the writ.”
Petitioner refers us to cases which have held that when untimely petition a court considers on its merits an a for. an rehearing, untimely or motion to amend matters in a for judgment, appeal may begin substance the time run anew from the date on which the court disposed untimely application.5 apparently Petitioner would equate its memorandum August 21, 1951, untimely with petition an re- hearing affecting Part III. But certainly language every inference therein is to contrary. When petitioner memorandum, seeking filed its the time for rehearing long expired. had since
Moreover, the memorandum was labeled neither as a petition rehearing for a nor aas motion to amend the previous judgment, and in no purport manner did it seek such relief. On the contrary, the Commission indi- cated quite that was content to let the Court of Appeals’ July decision of 5 stand undisturbed. Since we cannot Corp., v. Finance Bowman 144, (1942); 5 Pfister Loperena, Wayne (1940); United Gas Co. Owens-Illinois 137-138
211 would petitioner 21 as August of memorandum the treat filing a for that the time hold it, we cannot us treat have simply because enlarged for certiorari petition take some to below the court prompted have may paper the merits of had no effect action further petition in the to review now asked we are that decision for certiorari. be deemed must application us that tells
Petitioner changes actually a “when court because be in time to run begins to petition or appeal the time judgment, rehearing has for petition a whether irrespective of anew 6 our interpretation petitioner’s think We filed.” been is too liberal. decisions had Court of true that may be
While
a new
July 5 with
judgment of
supersede
power
recognized,
has
that court itself
true, as
it is also
one,7,
must
re-
seek
losing party
within which
the time
court
the lower
just because
enlarged
be
cannot
view
enlarged.8 Thus,
be
thinks it should
its discretion
has been
entered
previously
a judgment
mere fact
not toll
way does
in an immaterial
revised
or
reentered
sought.9 Only
review must be
within which
the time
substance,10 or
changes
court
matters
the lower
when
judgment previously
in a
ambiguity,11
genuine
resolves
appeal
an
must
within which
period
rendered should
run
begin to
for certiorari filed
petition
or a
be taken
6
petitioner, p.
Brief
7
167
v.
States,
§452; see Zimmern
28
S. C.
United
U.
(1936).
8
(1950).
F. 2d
304
Pictures,
v.
181
See Fine
Paramount
9
(1942);
v.
S.
Banking
Pink,
Toledo
317 U.
Department
(1923);
Co., v.
U. S. 399
Computing
Credit
Scale
Scale Co.
(1888).
Co., Ltd. v.
The review, us does not meet this test. It re- seeks to have iterated, change, everything without which had been de- July controversy on Since the one between the cided to matters had been parties only related the which ad- any judicated July 5, significance, we cannot ascribe concerned, judgment.13 far as timeliness is to the later as on the puts great emphasis Petitioner fact that the September judgment 18 was labeled “Final De- by Appeals, the Court of whereas the “Final” cree” word from missing judgment July was the entered on 5. But question think the petitioning we of whether the time for was enlarged certiorari to be cannot turn adjec- on the tive which the court below to caption chose use the of its second judgment. Indeed, judgment of July 5
12Compare
Goodyear,
(1868) (appeal
Rubber Co. v.
Accordingly, the
Dismissed. Black, dissenting. Mr. Justice today is to leave what the Court does The end result of I think is so Appeals decree which standing a Court argu- well be reversed without wrong that it could clearly Trade an order of the Federal set aside ment. The decree stop directing Minneapolis-Honeywell Commission by selling Act (a)2 of the Robinson-Patman violating § cheaper than to some customers oil burner controls only aside the Appeals set others. The Court of circum- permitted order as under some Commission’s further and ordered the Commis- stances. It went much 14 Corp., 507, 514 338 U. S. Dickinson v. Petroleum Conversion See (1950). Murphy, Matton Co. v. See Steamboat against III the complaint Count
sion to dismiss doing In Court of Minneapolis-Honeywell. so the Congress an has made invaded area which Appeals the Federal Trade Com- the exclusive concern v. Morton mission. See Federal Trade Commission Salt Co., 55; Federal Power Commission v. Idaho Co., Power S. Federal Communications 17, 20; U. Co., Broadcasting v. Pottsville S. 134, Commission U. 145-146.
Moreover, Court of held that there was no finding evidence at all to substantiate the Commission quantity that a pricing system Minneapolis- discount Honeywell price resulted in discriminations that violated 2 (a) of the Robinson-Patman Act. But § there evi- dence before the Commission that some customers of Minneapolis-Honeywell given were substantially bigger than purchases given competitors. discounts those their And the Commission found that these variations were not justified by any differences costs of manufacture, delivery. sale or emphasized We have such show- ing amply supports a Commission cease and desist order. Federal Trade Commission v. Morton Salt 37, 47. of Appeals The Court here failed to follow our *8 holding in the Morton Salt For case. this reason also it should be reversed.
I think following the facts show petition the certiorari here in was filed time. The Court of was petitioned by Minneapolis-Honeywell to review and set aside Trade Commission order in its entirety. Later Minneapolis-Honeywell apparently validity conceded of part of the order and the court’s first July 5, decree of 1951, failed to on all pass provisions the of the Commis- sion’s order.1 The Commission had ninety days to ask 1See, g., “Though e. may the merits of the cause have been sub stantially decided, any thing, though while merely formal, remains done, to be pass upon this Court subject. any cannot the If from that we that partial review order if was a “final” one. Within that ninety days, on August 21, 1951, the Com mission asked the of Appeals Court to pass on the re mainder of the order. In response a new and expanded decree of the Court of Appeals came down September 18, 1951, marked “Final Decree.” 14, 1951, December within ninety days after rendition of this “Final Decree,” the Commission filed here its petition for certiorari which the Court now dismisses.
1 think that no statute, precedent or reason relied on by the Court requires of dismissal this cause. Of course appealability of a judgment depends on its being “final” in the legalistic sense. But there is no more ambiguous word in all legal lexicon.2 The Court of Appeals thought its second not its first decree “final.” Coun- sel for the Commission evidently believed the second judgment was the “final” I one. am confident many lawyers would have thought the same under this Court’s former cases. ISo would have viewed the judg- second ment before today’s holding. Former cases would have intermediate stage in proceedings appeal might an be taken to Supreme Court, appeal might be repeated great oppres parties.” sion of the Mr. Chief Justice speaking Marshall for the Court in & Fire Ins. Co. New Adams, York v. 573, Life Pet. of . (1835) “We think that the decree is decree, not a final and that this jurisdiction court has no appeal. final, decree is not because it does dispose controversy entire between the parties.” Keystone Iron Co. Martin, (1889). “It practice the settled court, and the same in King’s Bench England, that the writ will not lie until the whole of the matters in controversy in the suit below disposed are of. . . . The cause is not up be sent fragments.” Holcombe McKusick, How. 2“Probably question no equity practice has subject been the frequent more discussion in this court finality than the of de crees. . . . The cases, it conceded, must be altogether are not har *9 McGourkey monious.” v. Toledo Co., & Ohio R. 536, 146 S.U. 544- 545. Cf. Dickinson v. Petroleum Corp., Conversion 507, 338 U. S. 511. the incom- from appeal of rejection strongly
pointed review.3 “piecemeal” attempted as an decree first plete for grounds rational and logical advances majority the rather than judgment first that the conclusion was second That the “final.” one second was by supportable equally is speaking, “final,” legalistically in argu- But more so.4 if not precedent, and logic, reason that the fact ignore we should “finality” over ing should proceeding of type that declared has Congress here. and of Court in the both be reviewable denied when review that declaration frustrate We on the a belief supported such have would of cases A multitude following: the g., Note and See, e. counsel. part of Commission Morgantown encouraged.” never been appeals have piecemeal “But begin very “Congress from 254, 258. Royal S. Ins. 337 U. v. appeal of what disposition on forbidding piecemeal has, by ning enfeebling against controversy, set itself single is a purposes practical 323, States, S. 309 U. v. United Cobbledick judicial administration.” concep merely technical policy is not of this “The foundation 325. ‘The case is litigation. against piecemeal 'finality.’ It is one tions Bridge River v. Luxton North fragments. . . .’ up in be sent not to 229, States, S. 324 U. v. United 337, Catlin 341.” Co., 147 U. S. 233-234. entry the 28th doubt facts we cannot “Upon these decree settling of the the terms an order as intended was November the 5th entry made on thereafter; entered to be the final counsel as by and the the court regarded both December in the cause. decree ele entry had the essential first all question that do not “We by other action no followed decree, if it had been of a final ments such. But as very been treated court, might properly have of the Court, Circuit intent of governed obvious be we must hold, therefore, proceedings. We must apparent the face decree.” be the Rubber December to final 5th of decree of the Fed See also Goodyear, Company 155-156 v. Wall. 20-21; Hill Co., 344 U. S. v. Power Idaho Power Commission eral 531; Zim Hark, 520; v. States Hawes, S. United 320 U. Brown, Memphis 167; States, mern v. United *10 litigant because of his failure to guess right when con- in August fronted 1951 with a puzzle, the answer to which no one could know until today.
In prior cases cited the Court’s opinion this Court ways grant has found litigants review to bedeviled and confused the judicially fog created of “finality.” In prior those cases the Court recognized vagueness finality rule and refused to throw out of court litigants who had acted bona fide. It is unfortunate that today the Court fails to utilize this same judicial kind of ingenuity to afford this litigant Congress the review saw provide fit to the public interest. proceedings against Minneapolis-Honeywell began
before the Commission years ago. nine Sixteen hundred pages of put evidence were on the record. It all goes to nought apparently because Commission counsel lacked sufficient clairvoyance to anticipate this Court would hold that the July judgment rather than the one in September was final. practice Rules of and procedure should be used to promote the ends of justice, to de- feat them.6 Douglas, Justice dissenting.
Mr. While I do not believe the merits of the case are as clear as Mr. Justice Black I indicates, join in parts opinion his which deal with the question whether the petition for certiorari was timely under 28 U. S. C. (c). §2101
5See cases cited in Note 4.
Hormel v.
Helvering,
Maty
557. See also
Gras
selli
200-201. Cf. Hazel-Atlas
Chemical
Co.
Hartford-Empire Co.,