Westinghouse Electric Corp. v. City of Burlington, 326 F.2d 691

Westinghouse Electric Corp. v. City of Burlington

326 F.2d 691 | D.C. Cir. | 1964

Concurrence Opinion

BURGER, Circuit Judge

(concurring specially):

The holdings of the Eighth1 and Second 2 Circuits on this point seem to rely considerably on the legislative history of Section 5(b), but in common with Circuit Judge Breitenstein in his opinion for the Tenth Circuit3 and Chief Judge Hastings for the Seventh Circuit,4 I find the legislative history “interesting but not decisive of the issue.” At best, the legislative history suggests to me that different members of the key Committees of the Congress had different ideas as to the state of the existing law and as to the impact of the amendment on limitations. Certainly some members of Congress *693thought they were accomplishing the result usually sought by the framers of statutes of limitations — the cutting off •of stale claims. However, I would not read Justice Frankfurter’s opinion in the Holmberg case as controlling. Although cases involving conspiracy to fix prices or to engage in monopolistic practices have elements in common with fraud, they .are not fraud cases in the sense of the situations dealt with in Bailey v. Glover, its progeny, and Holmberg v. Armbrecht, supra, majority opinion.

I concur in our holding with considerable reservation and on the assumption that at some stage the Supreme Court must re-examine the problem and resolve it.

. Kansas City, Missouri v. Federal Pacific Electric Co., 310 F.2d 271 (8th Cir. 1962) , cert, denied, 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 415 (1963).

. Atlantic City Electric Co. v. General Electric Co., 312 F.2d 236 (2d Cir. 1962), cert, denied, 373 U.S. 909, 83 S.Ct. 1298, 10 L.Ed.2d 411 (1963).

. Public Service Co. of New Mexico v. General Electric Co., 315 F.2d 306, 310 (10th Cir.), cert, denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963).

. Allis Chalmers Mfg. Co. v. General Electric Co., 315 F.2d 558, 563 (7th Cir. 1963) .

Lead Opinion

PER CURIAM:

The issue urged1 by appellants has already been litigated unsuccessfully in related suits before the Courts of Appeals for the Second,2 Seventh,3 Eighth,4 and Tenth 5 Circuits. Petitions for certiorari were denied three times by the Supreme Court.6 The matter is under submission in the Fifth7 and Ninth8 Circuits. The Third Circuit has denied leave to take an interlocutory appeal.9 Under the circumstances, we wonder whether the issue can really be said to be still open for adjudication. If it is, we would adopt the reasons stated10 by Chief Judge Lumbard for the Second Circuit, en banc, and affirm, the order of the District Court.

Affirmed.

. The question presented is whether the statute of limitations set forth in Sections 4B and 5(b) of the Clayton Act, 38 Stat. 731, 69 Stat. 283, 15 U.S.C. §§ 15b, 16 (b), is tolled because of “fraudulent concealment.” • See Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L.Ed. 636 (1875) ; Holmberg v. Armbrecht, 327 U. S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946). The court below held that it is.

. Atlantic City Electric Co. v. General Electric Co., 2 Cir., 312 F.2d 236 (1962), cert, denied, 373 U.S. 909, 83 S.Ct. 1298, 10 L.Ed.2d 411 (1963).

. Allis-Chalmers Mfg. Co. v. Commonwealth Edison Co., 7 Cir., 315 F.2d 558 (1963).

. Kansas City, Missouri v. Federal Pacific Electric Co., 8 Cir., 310 F.2d 271 (1962), cert, denied, 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 415 (1963).

. Public Service Co. of New Mexico v. General Electric Co., 10 Cir., 315 F.2d 306, cert, denied, 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963).

. See Notes 2, 4 and 5, supra.

. City of San Antonio v. General Electric Co., W.D.Tex., Civ. No. 3063 (December 7, 1962), appeal pending, 5 Cir.

. Department of Water & Power v. Allis-Chalmers Mfg. Co., S.D.Cal., 213 F.Supp. 341 (1963), appeal pending, 9 Cir.

. United States v. General Electric Company, E.D.Pa., 209 F.Supp. 197 (1962), leave to appeal under 28 U.S.C. § 1292(b) denied, 3 Cir., September 21, 1962.

. See Note 2, supra.