SHENANDOAH VALLEY BROADCASTING INC. v. A.S.C.A.P. - 375 U.S. 994 (1964)
U.S. Supreme Court
SHENANDOAH VALLEY BROADCASTING INC. v. A.S.C.A.P. , 375 U.S. 994 (1964)
375 U.S. 994
SHENANDOAH VALLEY BROADCASTING INC. et al., petitioners,
AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS.
Supreme Court of the United States
January 20, 1964
Petition for rehearing granted and the last sentence of the per curiam opinion announced on October 21, 1963, is amended to read: 'The petition is therefore granted and the judgment is re-
versed and the cause remanded to the Court of Appeals for further proceedings in conformity with this opinion.'
Mr. Justice GOLDBERG, with whom Mr. Justice BLACK joins, dissenting from the order granting rehear ng and from the modification of the original opinion.
In my view, the cause was properly remanded 'to the Court of Appeals for consideration on its merits,' 375 U.S. 39, 41, 10d 8, and there is no reason to modify the original opinion.
Respondent requests the change in order to be free upon remand to argue to the Court of Appeals that petitioners originally failed to perfect their appeal to that court because they did not comply with the 30- day requirement of Rule 73(a) of the Federal Rules of Civil Procedure. The Rule provides that:
- 'When an appeal is permitted by law from a district court to a court of appeals the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from unless a shorter time is provided by law, except that in any action in which the United States or an officer or agency thereof is a party the time as to all parties shall be 60 days from such entry, ....' [Emphasis added.]
Petitioners, having filed their notice of appeal with the Court of Appeals more than 30 days but less than 60 days after the entry of the District Court order dismissing their petition, contend that the 60-day limitation applies, that their appeal to the Court of Appeals was timely, and, therefore, that this Court properly remanded the case for consideration on the merits. Petitioners argue that the proceedings they had instituted in the District Court must be regarded as a continuation of the original suit brought by the United States, that the United States is a 'party' to the action within the meaning of 28 U.S.C. 2107 and Rule 73( a), and, therefore, all the parties [375 U.S. 994 , 996]