Tidewater Oil Co. v. United States
409 U.S. 151 (1972)

Annotate this Case

U.S. Supreme Court

Tidewater Oil Co. v. United States, 409 U.S. 151 (1972)

Tidewater Oil Co. v. United States

No. 71-366

Argued October 11, 1972

Decided December 6, 1972

409 U.S. 151




The Expediting Act, providing that, in a civil antitrust action brought by the United States in a federal district court, an appeal from that court's final judgment will lie only to this Court, lodged exclusive appellate jurisdiction over such actions in this Court, and thus bars the courts of appeals from asserting jurisdiction over interlocutory orders covered by 28 U.S.C. § 1292(b), as well as over other interlocutory orders specified in § 1292(a). The legislative history of those provisions contains no indication of a congressional intent to impair the original exclusivity of this Court's jurisdiction under the Expediting Act. Pp. 409 U. S. 154-174.


MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a concurring statement, post, p. 409 U. S. 174. DOUGLAS, J., filed a dissenting opinion, post, p. 409 U. S. 174. STEWART, J., filed a dissenting opinion, which REHNQUIST, J., joined, and DOUGLAS, J., joined in part, post, p. 409 U. S. 178.

MR. JUSTICE MARSHALL delivered the opinion of the Court.

On July 13, 1966, the United States filed a civil antitrust suit against Phillips Petroleum Co. (Phillips) and petitioner Tidewater Oil Co. (Tidewater). The complaint alleged that Phillips' acquisition of certain

Page 409 U. S. 152

assets and operations of Tidewater violated § 7 of the Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § 18. The District Court denied the United States' motion for a temporary restraining order to prevent consummation of the acquisition, [Footnote 1] and its subsequent motion for a preliminary injunction to require either rescission of the acquisition or maintenance by Phillips of the going-concern value of the transferred assets and operations.

Petitioner continued as a party to the suit during some five years of pretrial discovery and preparation. [Footnote 2] Then, in April, 1971, following the Government's announcement that it was ready for trial, petitioner moved to be dismissed as a party. [Footnote 3] The District Court denied the motion, but found that it involved

"a controlling question of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from [the] order may materially advance the ultimate termination of this litigation."

It therefore certified "its order denying defendant's motion to dismiss for interlocutory appeal under Section 1292(b) of Title 28 of the United States Code." As required by the statute, Tidewater then applied to the Court of Appeals for the Ninth Circuit for leave to prosecute the appeal. That court, however, denied the application, relying solely on its previous

Page 409 U. S. 153

decision in United States v. FMC Corp., 321 F.2d 534 (1963). There, an attempt was made to appeal an interlocutory order denying a preliminary injunction in a Government civil antitrust case. Notwithstanding that 28 U.S.C. § 1292(a)(1) provides for an appeal of right to the courts of appeals from an order granting or denying preliminary injunctions, the Ninth Circuit held that it lacked jurisdiction over such an appeal in a Government civil antitrust case because of § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U.S.C. § 29, which provides that,

"[i]n every civil action brought in any district court of the United States under any of [the Antitrust] Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court."

In this case, then, the Court of Appeals extended its prior ruling to interlocutory orders within § 1292(b). Because this decision raises an important question of federal appellate jurisdiction, and because a conflict among the circuits subsequently developed on this question, [Footnote 4] we granted certiorari. [Footnote 5] For the reasons that follow, we affirm the decision of the Court of Appeals.

Page 409 U. S. 154


To determine the relevance of 28 U.S.C. § 1292(b) for Government civil antitrust cases, it is necessary first to consider the original purpose of § 2 of the Expediting Act and the over half-century of experience with that section in the context of interlocutory appeals provisions that preceded the enactment of § 1292(b) in 1958. [Footnote 6]

In an effort to "expedite [certain] litigation of great and general importance," 36 Cong.Rec. 1679 (remarks of Sen. Fairbanks), [Footnote 7] Congress enacted § 2 of the Expediting Act in 1903 [Footnote 8] to withdraw all intermediate appellate jurisdiction in Government civil antitrust

Page 409 U. S. 155

cases. At the time of the passage of the Expediting Act, the then recently established circuit courts of appeals [Footnote 9] had jurisdiction under the Evarts Act over an appeal not only from a "final decision," [Footnote 10] but also from "an interlocutory order or decree" granting or continuing an injunction or appointing a receiver "in a cause in which an appeal from a final decree may be taken . . . to the circuit court of appeals." [Footnote 11] Hence, by lodging exclusive appellate jurisdiction over the "final judgment of the district court" in this Court, the Expediting Act necessarily eliminated court of appeals jurisdiction over appeals from interlocutory, as well as final, decrees in Government civil antitrust cases.

Congress thus initially determined to speed appellate review by channeling appeals in Expediting Act cases directly to this Court, and to avoid the delay inherent in piecemeal appeal by conditioning appeal upon the presence of a "final judgment." [Footnote 12] But mere speed in

Page 409 U. S. 156

the disposition of Government civil antitrust cases was not Congress' only concern; that result might have been achieved simply by establishing procedures for the expeditious handling of such cases in the courts of appeals. Congress was also intent upon facilitating review by this Court "of a class of antitrust cases deemed particularly important." [Footnote 13] Because of the importance of uniform interpretation of the antitrust law, [Footnote 14] which was still in its infancy in 1903, it is understandable that Congress chose to establish this special appellate procedure for Government civil antitrust cases, which were thought generally to involve issues of wide importance. [Footnote 15] During the 25 years following the enactment of the Expediting Act, Congress amended the Evarts Act provision governing interlocutory appeals to the courts of

Page 409 U. S. 157

appeals on four separate occasions -- in 1906, [Footnote 16] 1911, [Footnote 17] 1925, [Footnote 18] and 1928. [Footnote 19] It can be argued that, on its face, the very first of these amendments once again made interlocutory appeals available to the courts of appeals in Government civil antitrust cases, and that the language of each successive amendment, where relevant, perpetuated that state of affairs. [Footnote 20] But, while the clear meaning of statutory language is not to be ignored, "words are inexact tools, at best," Harrison v. Northern Trust Co.,317 U. S. 476, 317 U. S. 479 (1943), and hence it is essential that we place the words of a statute in their proper context by resort to the legislative history. Nowhere is this better illustrated than in this case. For we find it inconceivable

Page 409 U. S. 158

that Congress, having purposefully withdrawn the jurisdiction of the courts of appeals in certain antitrust cases in 1903, would reestablish it in the same case -- but only for interlocutory orders -- just three years later in 1906, without making any reference to that purpose. Yet no mention of either the Expediting Act or Government civil antitrust cases is to be found in the legislative history of the 1906 amendment to the interlocutory appeals provision [Footnote 21] -- or, for that matter, in that of the successive amendments insofar as they are relevant; [Footnote 22] rather, for each amendment, some purpose wholly unrelated to Expediting Act cases is apparent from the relevant legislative materials. [Footnote 23] In light of this, we find

Page 409 U. S. 159

it impossible to ascribe to Congress an intent to impair the original exclusivity of this Court's jurisdiction under § 2 through any of these amendments to the interlocutory appeals provision.

Page 409 U. S. 160

This clearly was the view of the seven members of the unanimous Court in United States v. California Cooperative Canneries,279 U. S. 553 (1929). There, in rejecting the argument that an appeal lay to the court of appeals from an order denying a motion to intervene in a Government civil antitrust case, the Court stated: [Footnote 24]

"[The Evarts Act] provisions governing appeals in general were amended by the Expediting Act so that, in suits in equity under the Anti-Trust Act 'in which the United States is complainant,' the appeal should be direct to this Court from the final decree in the trial court. Thus, Congress limited the right of review to an appeal from the decree which disposed of all matters . . . ; and it precluded the possibility of an appeal to either [this Court or the court of appeals] from an interlocutor decree."

Id. at 279 U. S. 558 (emphasis added). And a decade and a half later, in Allen Calculators v. National Cash Register Co.,322 U. S. 137, 322 U. S. 142(1944), the Court reiterated

"that jurisdiction to review District Court decrees was not vested in the Circuit Courts of Appeals, but solely in this court, and [the Expediting Act] limited the right of appeal to final decrees."

It is true that interlocutory orders in Government civil antitrust cases were subsequently held reviewable by way of extraordinary writs under the All Writs Act, 28 U.S.C. § 1651(a), but application for the extraordinary writ must be made to this Court where "sole appellate jurisdiction lies" in such cases. United States Alkali Export Assn. v. United States,325 U. S. 196, 325 U. S. 201-203 (1945);

Page 409 U. S. 161

De Beers Consolidated Mines v. United States,325 U. S. 212, 325 U. S. 217 (1945). [Footnote 25]

The wording of the interlocutory appeals provision was again altered in the 1948 revision of the Judicial Code. [Footnote 26] The result -- after certain subsequent minor changes not here relevant [Footnote 27] -- was the present 28 U.S.C. § 1292(a)(1), which allows ''[i]nterlocutory orders of the district courts . . . granting, continuing, modifying, refusing

Page 409 U. S. 162

or dissolving injunctions. . . [Footnote 28] to be appealed to the courts of appeals "except where a direct review may be had in the Supreme Court." (Emphasis added.) This final clause is susceptible of two plausible constructions that yield opposite results in cases subject to the Expediting Act. A direct review of interlocutory orders in Government civil antitrust cases clearly may be had in this Court, thus barring resort to § 1292(a)(1) -- or so it would seem. But direct review may not be had when the interlocutory order is entered, since there is no "final judgment," the predicate of an appeal under the Expediting Act. Therefore, were the final clause construed as directed only at the present availability of review in this Court, it would not, on its face, bar an interlocutory appeal. However, the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification. [Footnote 29] Consequently, a well established principle governing the interpretation of provisions altered in the 1948 revision is that "no change is to be presumed unless clearly expressed." Fourco Glass Co. v. Transmirra Products Corp.,353 U. S. 222, 353 U. S. 228 (1957). We find no such clear expression here. To the contrary, the Revisers' Notes fail to reveal any intention to expand the scope of the preexisting jurisdiction of the courts of appeals over interlocutory appeals; the new § 1292 is described merely as a consolidation of a number of previously separate code provisions -- including the general

Page 409 U. S. 163

interlocutory appeals provision -- "with necessary changes in phraseology to effect the consolidation." [Footnote 30]

In sum, then, our examination of the history and evolution of the present § 1292(a)(1) -- the direct descendant of the original interlocutory appeals provision contained in the Evarts Act -- has convinced us that, at least up to the passage of § 1292(b) in 1958, Congress had not impaired the original exclusivity of this Court's jurisdiction under § 2 of the Expediting Act. As is usually true of questions of statutory construction, the issue is not totally free from doubt. [Footnote 31] Yet, in the last analysis, whatever ambiguity may exist in the lengthy history of the original interlocutory appeals provision relative to the Expediting Act, it results primarily from the absence of any consideration of Government civil antitrust cases in that history, and thus emphasizes the extent to which appellate jurisdiction in such cases has long been viewed as a peculiarly distinct matter. Cf. United States Alkali Export Assn. v. United States, 325 U.S. at 325 U. S. 202-203. Certainly, this conclusion finds substantial support in our prior decisions in which we have consistently interpreted our appellate jurisdiction under § 2 as exclusive. [Footnote 32]

Page 409 U. S. 164


With this background, the question becomes what effect, if any, the enactment of § 1292(b) in 1958 had upon this Court's theretofore exclusive appellate jurisdiction in Government civil antitrust cases. Section 1292(h) provides in relevant part:

"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order. . . ."

At the outset, petitioner contends that there is simply no conflict between this provision and § 2 of the Expediting Act. It suggests that "civil action" must be read as an all-inclusive phrase that covers, inter alia, Government civil antitrust cases. At the same time, it points out that § 1292(b) is concerned only with interlocutory orders, while the Expediting Act deals only with final judgments. Thus, petitioner concludes that the enactment of § 1292(b) made discretionary interlocutory appeals available where none had previously existed, and that the two statutes are in complete harmony with one another.

Such a facile argument could also be made to support the contention that § 1292(a)(1) can be invoked in Expediting Act cases -- were it not for the fact that, as we have already seen, § 2 does not merely apply solely to a "final judgment," but also limits the right of appeal to a

Page 409 U. S. 165

"final judgment." Likewise, we can hardly accept petitioner's suggestion that, when Congress enacted § 1292(b), it wrote upon a clean slate insofar as appeals from interlocutory orders in Expediting Act cases are concerned. Nor do we find in § 1292(b) the "sharp break with the traditional policy" of limited availability of interlocutory appeal so apparent to the dissent. The new provision hardly created a general right of interlocutory appeal; rather, it only extended the availability of such appeals to a limited group of orders -- not previously covered by § 1292(a) -- that involve "a controlling question of law" the immediate appeal of which "may materially advance the ultimate termination of the litigation." [Footnote 33] In short, the consistent construction that had been accorded § 2 prior to the enactment of § 1292(b) [Footnote 34] cannot simply be ignored in determining the impact of that section on Government civil antitrust cases, cf. Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Comm'n,393 U. S. 186, 393 U. S. 191-194 (1968). Acceptance of petitioner's contention would require us to conclude that § 1292(b) was intended to revise the policies underlying the Expediting Act for the first time -- that it was intended as the first departure from the purposes of avoiding piecemeal appeal and of limiting review of important questions of antitrust law to this Court. We have been unable to discern any such intention.

Page 409 U. S. 166

The legislative history associated with § 1292(b) contains no mention of cases within the Expediting Act. [Footnote 35] Reference, to be sure, was made to antitrust cases, but it is clear on the face of these statements [Footnote 36] that they refer only to private treble-damages actions. [Footnote 37] In fact, rather than indicating that § 1292(b) was intended to apply to antitrust cases subject to final review in this Court under the Expediting Act, the legislative history strongly suggests an essentially contrary conclusion: the subsection was intended to apply only to interlocutory orders, "not otherwise appealable under" § 1292(a), in civil actions in which the courts of appeals would have jurisdiction over an appeal from the final judgment

Page 409 U. S. 167

under 28 U.S.C. § 1291. For instance, in explaining the proposed statute, the Senate Report on § 1292(b) states: [Footnote 38]

"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."

This is hardly supportive of petitioner's position, and yet, throughout the legislative materials, the focus similarly remains on interlocutory orders in civil cases that would be appealable to the courts of appeals upon final judgment. [Footnote 39]

Petitioner's case is further weakened by the extraordinary result that acceptance of its position would yield. Section 1292(a) provides for an appeal as a matter of right from a number of specified types of interlocutory orders -- in particular, interlocutory orders granting or denying injunctions. Those interlocutory orders not within subsection (a), however, were made appealable in § 1292(b), subject to the judgment and discretion of the district court and the court of appeals. Greater importance obviously was attached to those

Page 409 U. S. 168

types of interlocutory orders specified in subsection (a) than to those covered by (b). [Footnote 40] Nevertheless, petitioner would have us conclude that Congress intended to establish court of appeals jurisdiction for all interlocutory orders in Expediting Act cases except those orders for which an appeal of right is provided in § 1292(a)(1). [Footnote 41] As the Government notes, such a result would effectively turn § 1292 on its head. [Footnote 42] Consistent with the evident thrust of the statute's legislative history, the much more sensible conclusion is that § 1292(b) was intended to establish jurisdiction in the courts of appeals to review interlocutory orders, other than those specified in § 1292(a), in civil cases in which they would have jurisdiction were the judgments final. [Footnote 43]

Page 409 U. S. 169

At the foundation of the petitioner's position in this case is the contention that § 1292(b) is the panacea for the special burdens imposed on this Court by § 2 of the Expediting Act. Both the Court and various individual Members have, on occasion, commented that,

"[w]hatever 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,"

for "[d]irect appeals not only place a great burden on the Court, but also deprive us of the valuable assistance of the Courts of Appeals." United States v. Singer Mfg. Co.,374 U. S. 174, 374 U. S. 175 n. 1 (1963); see Ford Motor Co. v. United States,405 U. S. 562, 405 U. S. 595 n. 5 (1972)(BURGER, C.J., concurring in part and dissenting in part); United States v. Borden Co.,370 U. S. 460, 370 U. S. 477 n. (1962) (Harlan, J., dissenting); Brown Shoe Co. v. United States,370 U. S. 294, 370 U. S. 355 (1962)(Clark, J., concurring); id. at 370 U. S. 364-365 (Harlan, J., dissenting in part and concurring in part). Further, in light of the present size of our docket, direct review "seldom results in much expedition," since we normally must examine the entire record and resolve all questions, however unsubstantial. Id. at 370 U. S. 355 (Clark, J., concurring); see id. at 370 U. S. 364 (Harlan, J., dissenting in part and concurring in part); United States v. Borden Co., supra, at 370 U. S. 477 n. (Harlan, J., dissenting).

Page 409 U. S. 170

Our action today should not be construed as a retreat from these previous remarks. On the contrary, we remain convinced that, under present circumstances, the Expediting Act fails to hasten substantially the final disposition of important antitrust actions while it unjustifiably burdens this Court with inadequately sifted records and with cases that could be disposed of by review in the courts of appeals. Uniformity in the interpretation and administration of the antitrust laws continues to be an important consideration. But such uniformity could be adequately ensured by the availability of review in this Court on certiorari of cases involving issues of general importance -- together with the "[l]imited expediting of such cases, under the discretion of this Court," Ford Motor Co. v. United States, supra, at 405 U. S. 595 n. 5 (BURGER, C.J., concurring in part and dissenting in part), where time is a factor. The simple fact is that

"[t]he legal issues in most [Government] civil antitrust cases are no longer so novel or unsettled as to make them especially appropriate for initial appellate consideration by this Court, as compared with those in a variety of other areas of federal law,"

Brown Shoe Co. v. United States, supra, at 370 U. S. 364 (Harlan, J., dissenting in part and concurring in part). Yet, despite all of these criticisms, our personal views as to the wisdom of § 2 are, of course, no basis for disregarding what we are bound to recognize as the plain and unaltered intent of Congress to require that appeals in Government civil antitrust cases be taken only from final judgments, and only to this Court.

In any event, petitioner has failed to convince us that permitting appeals under § 1292(b) would provide a meaningful solution -- if any solution at all -- to the various problems created for the Court by the Expediting Act. In the first place, the availability of interlocutory appeals under § 1292(b) would not reduce the number of Government civil antitrust cases that could be brought

Page 409 U. S. 171

to this Court on direct appeal upon the entrance of a final judgment. Nor would it reduce the number of issues subject to review by this Court; any issue determined on interlocutory appeal would normally be open to consideration on final appeal, [Footnote 44] and doubtless some party would raise an issue appealed under § 1292(b), since it must have involved "a controlling question of law." Also, there would be the added problem of applications for certiorari following a certified appeal in Expediting Act cases. By definition, the issue will be a substantial one, and, where the appellate decision is questionable, it would be necessary to decide whether to grant certiorari, which might require the Court to consider a particular case, on two separate occasions, [Footnote 45] or to deny certiorari, which might mean allowing the district court to proceed to final judgment on an erroneous basis. Given the potential waste of limited judicial resources -- those either of this Court or of the district court -- associated with each choice, neither can be considered attractive. Finally, in emphasizing the value of the screening function that court of appeals review would provide in Expediting Act cases, we have consistently focused upon the lengthy records and complex factual issues common to such cases. Yet, as is illustrated by this very case, in which the certified question relates to a motion to dismiss a party, questions that would be presented to the courts of appeals under § 1292(b) would often involve threshold procedural issues not

Page 409 U. S. 172

requiring extensive analysis of the record. [Footnote 46] With respect to such issues, the screening function performed by intermediate appellate review is of far less significance than it would be with respect to questions of, say, relevant market, competition, or agreement. But these latter questions can be properly decided only after full development of the evidence, and it is therefore doubtful, at best, that interlocutory appeals would aid this Court in dealing with them on final review. [Footnote 47]

Nor are we even certain that the expeditious termination of litigation in the district courts -- the express purpose of § 1292(b) [Footnote 48] -- would be materially advanced in the context of Government civil antitrust cases by acceptance of petitioner's contention. Permitting interlocutory appeals under § 1292(b) in Expediting Act

Page 409 U. S. 173

cases would result in an anomalous situation: the court of appeals would have jurisdiction over certain interlocutory orders, but not over the final judgment, which would be appealable only to this Court. An interlocutory appeal taken under § 1292(b) must, of course, involve "a controlling question of law" the immediate appeal of which "may materially advance the ultimate termination of the litigation." In the normal case, the decision of such a question on interlocutory appeal is final, since the same court reviews the final judgment, and the likelihood of review in this Court on certiorari is very small. Here, however, the decision of the court of appeals on the interlocutory order would essentially be only an advisory opinion to the district court, since the issue would usually be open to relitigation on appeal of the final judgment to this Court. [Footnote 49] The net result would be added work for the courts of appeals, [Footnote 50] with no assurance that there would ultimately be a saving of district court time.


Hence, we conclude that § 1292(b) did not establish jurisdiction in the Court of Appeals over interlocutory orders in Expediting Act cases. The exclusive nature of

Page 409 U. S. 174

the jurisdiction created in § 2 of the Expediting Act has consistently been recognized by this Court, and we hold today that that exclusivity remains unimpaired. Despite our interest in a restructuring of our jurisdiction under the Expediting Act, we are neither willing nor able to adopt the ungainly half-measure offered by the petitioner in this case.


MR. JUSTICE WHITE joins the Court's opinion except for the advisory to Congress reflecting one view of the relative merits of the Expediting Act.

[Footnote 1]

Tidewater then transferred title to its Western Marketing and Manufacturing Division to Phillips.

[Footnote 2]

Tidewater merged with Getty Oil Co. on September 30, 1967. It has never been contended that that merger altered Tidewater's legal status in this case.

[Footnote 3]

In its motion to be dismissed, Tidewater contended

"that Section 7 of the Clayton Act is directed only against the acquiring corporation, and not against the seller, that the sale of assets by defendant Tidewater Oil Company to Phillips Petroleum Company has long ago been consummated, that no relief is obtainable against Tidewater Oil Company, and that its presence in the suit is no longer necessary or appropriate."

[Footnote 4]

Subsequent to the decision by the Ninth Circuit in this case, the Court of Appeals for the Seventh Circuit held that § 1292(b) could be used to take an interlocutory appeal in a Government civil antitrust case. See Fisons Ltd. v. United States, 458 F.2d 1241, 1244-1248, cert. denied, 405 U.S. 1041 (1972). The only other court of appeals to consider the question, the Court of Appeals for the District of Columbia Circuit, reached the same result as the Ninth Circuit in this case. See Farbenfabriken Bayer, A.G. v. United States, 1968 CCH Trade Cas.

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