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-
Page 375 U.S.
994 , 995
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
Page 375 U.S.
994 , 996
have 60 days from the entry of judgment to file a notice of
appeal.
The Court in granting rehearing does not pass on the merits of
these contentions, leaving them for consideration by the Court of
Appeals. I do not believe that the Court of Appeals need consider
this procedural question and wish to point out why our original
opinion properly directed that court to consider the case on its
merits.
We are here confronted with a situation in which, at the time
when review of a District Court decision was sought, two questions
concerning appellate jurisdiction had not definitely been settled.
First, it was not altogether clear whether review in this type of
action should be sought in the Court of Appeals or directly in this
Court under 2 of the Expediting Act, 32 Stat. 823, as amended, 15
U.S.C. 29. To avoid being impaled upon the horns of this procedural
dilemma, petitioners attempted to pursue both routes. We have now
clarified the law and held that the Expediting Act was inapplicable
and that review should proceed through the Court of Appeals.
375 U.S. 39.
Second, even if the first question had not been beset by
uncertainties, it was not clearly settled whether, in proceeding to
the Court of Appeals, petitioners' case would come within the
60-day, as opposed to the 30-day, appeal limitation. Under these
circumstances, given the prior complexities and our decision that
the case is one to be reviewed by the Court of Appeals, we should
now issue an order which will insure that petitioners' right to
appellate review is properly safeguarded. We have the power to do
precisely that.
The Court has frequently held, in cases involving attempted
direct appeals from three-judge District Courts to this Court, that
'where the question of jurisdiction was not obviously settled by
prior decisions,' the Court will enter 'an order framed to save
appellants their proper remedies.' Phillips v. United States,
312 U.S.
246, 254, 484.
Page 375 U.S.
994 , 997
See also Walling v. James V. Reuter, Inc.,
321 U.S. 671, 676-678,
828-829; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co.,
292 U.S.
386, 392; Gully v. Interstate Natural Gas Co.,
292 U.S.
16, 19. To accomplish this the Court has remanded 'the cause to
the co rt which heard the case so that it may enter a fresh decree
from which appellants may, if they wish, perfect a timely appeal to
the circuit court of appeals.' Phillips v. United States, supra,
312 U.S. AT 254, 61 S. Ct. at 484. Here, as in the cited decisions,
we have a case in which, as a result of uncertainties in federal
appellate procedures and without unreasonable action by
petitioners, it is conceivable under the Court's modified opinion
that an appellate review of the merits of the case may not only be
unnecessarily delayed but even ultimately thwarted. What we have
accomplished indirectly in the cited cases-to the end of
safeguarding the statutory right to appellate review-we should be
able to do directly in the exercise of our powers of appellate
supervision. Compare Bartone v. United States,
375 U.S. 52.
A remand to the Court of Appeals for consideration on the merits
is expressly authorized by 28 U.S.C. 2106 which provides that:
'The Supreme Court or any other court
of appellate jurisdiction may affirm, modify, vacate, set aside or
reverse any judgment, decree, or order of a court lawfully brought
before it for review, and may remand the cause and direct the entry
of such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the
circumstances.'
The decisions in the above-cited cases establish that this Court
has on numerous occasions made 'such disposition of the case as
justice requires' as is authorized by the statute. Walling v. James
V. Reuter, Inc ., supra, 321 U.S. at 676, 64 S. Ct. at 829. In the
present case there can be no doubt that a hearing on
Page 375 U.S.
994 , 998
the merits would 'be just under the circumstances.' The fact
that this case has proven to involve two procedural difficulties,
instead of simply one as in other instances, should not so confuse
the matter as conceivably to defeat the realization of appellate
review on the merits. This case, which has been in this Court twice
and which will now be in the Court of Appeals for a second time,
should be decided in that court on the merits. The right to
appellate review should no longer be delayed or denied as a result
of uncertainties in federal procedures.