Respondent operators of a California "hot plant," at which
asphaltic concrete for surfacing highways is manufactured and sold
entirely intrastate, alleging violations of,
inter alia, §
2(a) of the Clayton Act, as amended by the Robinson-Patman Act
(hereafter § 2(a)), and §§ 3 and 7 of the Clayton Act, brought suit
against petitioner liquid asphalt producers and two of their
subsidiaries, to which such asphalt is sold and which use it to
manufacture and sell asphaltic concrete in competition with
respondents. Section 2(a) forbids "any person engaged in commerce,
in the course of such commerce" to discriminate in price "where
either or any of the purchases involved in such discrimination are
in commerce" and the discrimination has substantial anticompetitive
effects "in any line of commerce." Section 3 makes it unlawful "for
any person engaged in commerce, in the course of such commerce" to
make tie-in sales or enter exclusive dealing arrangements where the
effect "may be to substantially lessen competition or tend to
create a monopoly in any line of commerce." And § 7 forbids certain
acquisitions by a corporation "engaged in commerce" of the assets
or stock "of another corporation engaged also in commerce" where
the effect may be substantially to lessen competition "in any line
of commerce in any section of the country." The District Court held
that it had no jurisdiction of the claims because the market for
asphaltic concrete is exclusively and necessarily local, but the
Court of Appeals reversed, holding that the jurisdictional
requirements of §§ 2(a), 3, and 7 were satisfied by the fact that
sales of asphaltic concrete are made for use in interstate
highways.
Held:
1. The fact that interstate highways are instrumentalities of
commerce does not render petitioners' conduct with respect to a
material sold for use in constructing these highways "in commerce"
as a matter of law for purposes of §§ 2(a), 3, and 7 of the Clayton
Act.
Overstreet v. North Shore Corp., 318 U.
S. 125, and
Alstate Construction Co. v. Durkin,
345 U. S. 13,
distinguished. Pp.
419 U. S.
193-199.
Page 419 U. S. 187
2. The "in commerce" language of the Robinson-Patman and Clayton
Act provisions in question does not extend on an "effects on
commerce" theory to petitioners' sales and acquisitions. Pp.
419 U. S.
199-203.
(a) In face of the longstanding judicial interpretation of the
language of § 2(a) requiring that "either or any of the purchases
involved in such discrimination [be] in commerce," as meaning that
§ 2(a) applies only where "
at least one of the two transactions
which, when compared, generate a discrimination . . . cross[es] a
state line,'" Hiram Walker, Inc. v. A & S Tropical,
Inc., 407 F.2d 4, 9; Belliston v. Texaco, Inc., 455
F.2d 175, 178, and the continued congressional silence on the
subject, this Court is not warranted in extending § 2(a) beyond its
clear language to reach a multitude of local activities hitherto
left to state and local regulation. Pp. 419 U. S.
199-201.
(b) The "effects on commerce" theory, whereby §§ 3 and 7 of the
Clayton Act would be held to extend to acquisitions and sales
having substantial effects on commerce, even if legally correct,
fails here for want of proof, since respondents presented no
evidence of effect on interstate commerce from the use of asphaltic
concrete in interstate highways. Pp.
419 U. S.
201-203.
487 F.2d 202, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ.,
joined. MARSHALL, J., filed a concurring opinion,
post, p.
419 U. S. 203.
DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
419 U. S.
204.
Page 419 U. S. 188
MR. JUSTICE POWELL delivered the opinion of the Court.
This case concerns the jurisdictional requirements of § 2(a) of
the Clayton Act, as amended by the Robinson-Patman Act, 49 Stat.
1526, [
Footnote 1] 15 U.S.C. §
13(a), and of §§ 3 and 7 of the Clayton Act, 38 Stat. 731, as
amended, 15 U.S.C. §§ 14 and 18. It presents the questions whether
a firm engaged in entirely intrastate sales of asphaltic concrete,
a product that can be marketed only locally, is a corporation "in
commerce" within the meaning of each of these sections, and whether
such sales are "in commerce" and "in the course of such commerce"
within the meaning of §§ 2(a) and 3 respectively. The Court of
Appeals for the Ninth Circuit held these jurisdictional
requirements satisfied, without more, by the fact that sales of
asphaltic concrete are made for use in construction of interstate
highways. 487 F.2d 202 (1973). We reverse.
I
Asphaltic concrete is a product used to surface roads and
highways. It is manufactured at "hot plants" by combining, at
temperatures of approximately 375� F, about 5% liquid petroleum
asphalt with about 95% aggregates and fillers. The substance is
delivered by truck to construction sites, where it is placed at
temperatures of about 275� F. Because it must be hot when placed
and because of its great weight and relatively low value, asphaltic
concrete can be sold and delivered profitably only within a radius
of 35 miles or so from the hot plant.
Petitioners Union Oil Co., Gulf Oil Corp., and Edgington Oil
Co., defendants below, produce liquid petroleum
Page 419 U. S. 189
asphalt from crude oil at their California refineries. The
companies sell liquid asphalt to their subsidiaries and other firms
throughout the Western States. The market in liquid asphalt is
interstate, and each oil company concedes that it engages in
interstate commerce.
Petitioner Union Oil sells some of its liquid asphalt to its
wholly owned subsidiary, Sully-Miller Contracting Co., which uses
it to manufacture asphaltic concrete at 11 hot plants in Los
Angeles and Orange Counties, Cal. Gulf Oil sells all of its liquid
asphalt to its wholly owned subsidiary, petitioner Industrial
Asphalt, Inc. Industrial distributes the liquid asphalt to third
parties and also uses it to produce asphaltic concrete at 55 hot
plants in California, Arizona, and Nevada. Edgington Oil sells its
liquid asphalt to,
inter alia, Sully-Miller, Industrial,
and respondents.
Respondents Copp Paving Co., Inc., Copp Equipment Co., Inc., and
Ernest A. Copp, [
Footnote
1a] operate a hot plant in Artesia, Cal., where they produce
asphaltic concrete both for Copp's own use as a paving contractor
and for sale to other contractors. Copp's operations and asphaltic
concrete sales are limited to the southern half of Los Angeles
County, where it competes with Sully-Miller and Industrial in the
asphaltic concrete market. All three firms sell a more than
de
minimis share of their asphaltic concrete for use in the
construction of local segments of the interstate highway system.
Neither Copp, Industrial, nor Sully-Miller makes any interstate
sales of the product. [
Footnote
2]
Page 419 U. S. 190
Copp filed this complaint in the District Court for the Central
District of California against the oil companies, Sully-Miller, and
Industrial, seeking injunctive relief and treble damages. [
Footnote 3] The complaint, as amended,
alleged that the various defendants had committed a catalog of
antitrust violations with respect to both the asphalt oil and
asphaltic concrete markets. Claiming harm to itself as a consumer
of liquid asphalt, Copp alleged: that the defendants had fixed
prices and allocated the asphalt oil market geographically, in
violation of § 1 of the Sherman Act 26 Stat. 209, as amended, 15
U.S.C. § 1; that they had sold liquid asphalt at discriminatory
prices to Copp and other purchasers, in violation of § 2(a) of the
Robinson-Patman Act; and that Gulf Oil had violated § 7 of the
Clayton Act by acquiring Industrial. Also claiming harm to itself
as a competitor in the asphaltic concrete market, Copp further
alleged: that the defendants had fixed prices, divided the market
geographically, and employed various methods of monopolizing and
attempting to gain a monopoly in the Los Angeles area market, in
violation of §§ 1 and 2 of the Sherman Act; that, in violation of §
3 of the Clayton Act, Industrial and Sully-Miller had conditioned
sales of asphaltic concrete in areas where Copp did not compete on
customers' agreeing to buy only from the defendants in areas where
Copp did compete, and had "tied" sales of asphaltic concrete to
sales of other commodities and to favorable extensions of credit;
that, in violation of § 7 of the Clayton Act, Gulf Oil had acquired
Industrial and Union Oil had acquired Sully-Miller, these
acquisitions apparently having the effect of lessening competition
in the Los Angeles asphaltic concrete market; and, finally, that
Industrial and Sully-Miller had discriminated in the prices at
which they sold asphaltic concrete, charging
Page 419 U. S. 191
higher prices in areas where Copp did not compete, this in
violation of § 2(a).
Because of the liquid asphalt claims, the case was one of the
Western Liquid Asphalt cases transferred, pursuant to 28 U.S.C. §
1407, to the District Court for the Northern District of California
for coordinated pretrial proceedings. [
Footnote 4] The defendants thereafter moved for summary
judgment in favor of Sully-Miller, against which Copp had alleged
only violations arising from conduct in the asphaltic concrete
market. The motion also sought to limit the issues as to the other
defendants to those involving liquid asphalt.
The District Court ordered full discovery as to jurisdiction
over Copp's asphaltic concrete claims. At the conclusion of
discovery, Copp's jurisdictional showing rested solely on the fact
that some of the streets and roads in the Los Angeles area are
segments of the federal interstate highway system, and on a
stipulation that a greater than
de minimis amount of
asphaltic concrete is used in their construction and repair. The
District Court thereupon entered an order dismissing all claims
against Sully-Miller and those claims against the other defendants
involving the marketing of asphaltic concrete.
In its opinion accompanying this order, the court explicitly
discussed only the jurisdictional requirements of the Sherman Act.
[
Footnote 5] On the facts
presented to it, the court found that asphaltic concrete is made
wholly from components produced and purchased intrastate, and
that
Page 419 U. S. 192
the product's market is exclusively and necessarily local.
Because of these factors, the court concluded that the alleged
restraints of trade in asphaltic concrete could not be deemed
within the flow of interstate commerce, despite use of the product
in interstate highways. Moreover, Copp had failed to show, either
by deduction from the evidence or by the evidence itself, that the
alleged restraints as to asphaltic concrete would affect any
interstate market. It had neither shown a necessary or probable
adverse consequence to the construction of interstate highways and
hence to the flow of commerce, nor had it suggested or supported a
theory by which restraints on local trade in asphaltic concrete
affect the interstate liquid asphalt market. The court held that it
lacked jurisdiction of Copp's asphaltic concrete claims under the
Sherman Act, and therefore that Copp also had failed to support
jurisdiction under the Robinson-Patman and Clayton Acts.
On Copp's interlocutory appeal, 28 U.S.C. § 1292(b), the Ninth
Circuit reversed, holding as to the Sherman Act claims
"that the production of asphalt for use in interstate highways
rendered the producers 'instrumentalities' of interstate commerce
and placed them 'in' that commerce as a matter of law."
487 F.2d at 204. Having so concluded, the court held that
jurisdiction properly attached to Copp's Clayton and
Robinson-Patman Act claims as well, since those Acts were intended
to supplement the purpose and effect of the Sherman Act.
Id. at 205-206. [
Footnote
6]
We granted certiorari, despite the interlocutory character of
the Ninth Circuit's judgment, because of the importance of the
issues both to this litigation and to
Page 419 U. S. 193
proper interpretation of the jurisdictional reach of the
antitrust laws, and because of ostensible conflicts with decisions
of other circuits. [
Footnote 7]
We limited the grant, however, to the questions arising under the
Clayton and Robinson-Patman Acts. [
Footnote 8] 415 U.S. 988 (1974).
II
The text of each of the statutory provisions involved here is
set forth in the margin. [
Footnote
9] In brief, § 2(a) of the
Page 419 U. S. 194
Robinson-Patman Act forbids "any person engaged in commerce, in
the course of such commerce," to discriminate in price "where
either or any of the purchases involved in such discrimination are
in commerce" and where the discrimination has substantial
anticompetitive effects "in any line of commerce." Section 3 of the
Clayton Act makes it unlawful "for any person engaged in commerce,
in the course of such commerce" to make tie-in sales or enter
exclusive dealing arrangements, where the effect "may be to
substantially lessen competition or tend to create a monopoly in
any line of commerce." Section 7 of the Clayton Act forbids certain
acquisitions by a corporation "engaged in commerce" of the assets
or stock "of another corporation engaged also in commerce," where
the effect may be substantially to lessen competition "in any line
of commerce in any section of the country."
The explicit reach of these provisions extends only to persons
and activities that are themselves "in commerce," the term
"commerce" being defined in § 1 of the Clayton Act, insofar as
relevant here, as "trade or commerce among the several States and
with foreign nations. . . ." 15 U.S.C. § 12. This "in commerce"
language differs distinctly from that of § 1 of the Sherman Act,
which includes within its scope all prohibited conduct "in
restraint of trade or commerce among the several States, or with
foreign nations. . . ." The jurisdictional reach of § 1 thus is
keyed directly to effects on interstate markets and the interstate
flow of goods. Moreover, our cases have recognized that, in
enacting § 1 Congress "wanted to go to the utmost extent of its
Constitutional power in restraining trust and monopoly agreements.
. . ."
Page 419 U. S. 195
United States v. South-Eastern Underwriters Assn.,
322 U. S. 533,
322 U. S. 558
(1944). Consistently with this purpose and with the plain thrust of
the statutory language, the Court has held that, however local its
immediate object, a "contract, combination . . . or conspiracy"
nonetheless may constitute a restraint within the meaning of § 1 if
it substantially and adversely affects interstate commerce.
E.g., Mandeville Island Farms v. American Crystal Sugar
Co., 334 U. S. 219,
334 U. S. 234
(1948). "If it is interstate commerce that feels the pinch, it does
not matter how local the operation which applies the squeeze."
United States v. Women's Sportswear Mfrs. Assn.,
336 U. S. 460,
336 U. S. 464
(1949).
In contrast to § 1, the distinct "in commerce" language of the
Clayton and Robinson-Patman Act provisions with which we are
concerned here appears to denote only persons or activities within
the flow of interstate commerce -- the practical, economic
continuity in the generation of goods and services for interstate
markets and their transport and distribution to the consumer. If
this is so, the jurisdictional requirements of these provisions
cannot be satisfied merely by showing that allegedly
anticompetitive acquisitions and activities affect commerce. Unless
it appears (i) that Sully-Miller engages in interstate commercial
activities (§ 7), (ii) that Industrial's alleged exclusive dealing
arrangements and discriminatory sales occur in the course of its
interstate activities (§§ 2(a) and 3), and (iii) that at least one
of Industrial's allegedly discriminatory sales was made in
interstate commerce (§ 2(a)), Copp's claims must fail.
Copp argues, and the Court of Appeals for the Ninth Circuit
agreed, that it had made exactly this sort of "in commerce"
showing. Copp does not contend that Industrial and Sully-Miller, in
fact, make interstate asphaltic concrete sales or are otherwise
directly involved in national
Page 419 U. S. 196
markets.
Cf. United States v. Philadelphia National
Bank, 374 U. S. 321,
374 U. S. 336
n. 12 (1963). Nor does it contend that the local market in
asphaltic concrete is an integral part of the interstate market in
other component commodities or products. Instead, Copp's "in
commerce" argument turns entirely on the use of asphaltic concrete
in the construction of interstate highways.
In support of this argument, Copp relies primarily on cases
decided under the Fair Labor Standards Act. [
Footnote 10] In the first of these,
Overstreet v. North Shore Corp., 318 U.
S. 125 (1943), the Court held that, because interstate
roads and railroads are indispensable instrumentalities of
interstate commerce, employees engaged in the construction or
repair of such roads are employees "in commerce" to whom, by its
terms, the Fair Labor Standards Act extends. Subsequently in
Alstate Construction Co. v. Durkin, 345 U. S.
13 (1953), the Court held that, since interstate
highways are instrumentalities of commerce, employees engaged in
the manufacture of materials used in their construction are
properly deemed to be engaged "in the production of goods for
commerce," within the meaning of that phrase in the Fair Labor
Standards Act. Copp reasons that, since the connection between
manufacture of road materials and interstate commerce was enough
for application of the Fair Labor Standards Act, it also should be
sufficient to warrant invocation of the Clayton and Robinson-Patman
Act provisions against sellers and sales of such materials.
But we are concerned in this case with significantly different
statutes. As in
Overstreet and
Alstate, there is
no question of Congress' power under the Commerce Clause to include
otherwise ostensibly local activities within the reach of federal
economic regulation, when
Page 419 U. S. 197
such activities sufficiently implicate interstate commerce.
[
Footnote 11] The question,
rather, is how far Congress intended to extend its mandate under
the Clayton and Robinson-Patman Acts. [
Footnote 12] The answer depends on the statutory
language, read in light of its purposes and legislative history.
See FTC v. Bunte Bros., 312 U. S. 349
(1941).
Congress has deemed interstate highways critical to the national
economy and has authorized extensive federal participation in their
financing and regulation. Nothing, however, in the Federal-Aid
Highway Act [
Footnote 13] or
other legislation evinces an intention to apply the full range of
antitrust laws to persons who, as part of their local business,
supply materials used in construction of local segments of
interstate roads. Nor does the fact that interstate highways are
instrumentalities of commerce somehow render the suppliers of
materials instrumentalities of commerce as well, in the sense used
in
Overstreet. No different conclusion can be drawn from
Alstate. The statute involved there explicitly reached
persons employed "in the production of goods for commerce."
Congress could and, according to the Court in
Alstate, did
find that the federal concerns embodied in the Fair Labor Standards
Act required its application to employees producing
Page 419 U. S. 198
materials for use in interstate highways. But neither this nor
the Court's holding in
Alstate places such employees, or
the sellers and sales of such materials, "in commerce" as a matter
of law for purposes of the Clayton and Robinson-Patman Acts.
Copp's "in commerce" argument rests essentially on a purely
formal "nexus" to commerce: the highways are instrumentalities of
interstate commerce; therefore any conduct of petitioners with
respect to an ingredient of a highway is
per se "in
commerce." Copp thus would have us expand the concept of the flow
of commerce by incorporating categories of activities that are
perceptibly connected to its instrumentalities. But whatever merit
this categorical "inclusion and exclusion" approach may have when
dealing with the language and purposes of other regulatory
enactments, it does not carry over to the context of the
Robinson-Patman and Clayton Acts. The chain of connection has no
logical endpoint. The universe of arguably included activities
would be broad and its limits nebulous in the extreme.
See
Alstate Construction Co. v. Durkin, supra, at
345 U. S. 17-18
(DOUGLAS, J., dissenting). More importantly, to the extent that
those limits could be defined at all, the definition would in no
way be anchored in the economic realities of interstate markets,
the intensely practical concerns that, underlie the purposes of the
antitrust laws.
See United States v. Yellow Cab Co.,
332 U. S. 218,
332 U. S. 231
(1947).
In short, assuming,
arguendo, that the facially narrow
language of the Clayton and Robinson-Patman Acts was intended to
denote something more than the relatively restrictive
flow-of-commerce concept, we think the nexus approach would be an
irrational way to proceed. The justification for an expansive
interpretation of the "in commerce" language, if such an
interpretation is viable at all, must rest on a congressional
intent that the Acts
Page 419 U. S. 199
reach all practices, even those of local character, harmful to
the national marketplace. This justification, however, would
require courts to look to practical consequences, not to apparent
and perhaps nominal connections between commerce and activities
that may have no significant economic effect on interstate markets.
We hold, therefore, that Sully-Miller's and Industrial's sales to
interstate highway contractors are not sales "in commerce" as a
matter of law within the jurisdictional ambit of Robinson-Patman
Act § 2(a) and Clayton Act §§ 3 and 7.
III
Our rejection of the "nexus to commerce" theory requires that
the Ninth Circuit's judgment be reversed. Copp also advances,
somewhat obliquely, a second theory to support that judgment. It
contends that, despite the facially narrow "in commerce" language
of the Robinson-Patman and Clayton Act provisions, Congress
intended those provisions to manifest the full degree of its
commerce power. Therefore, it is argued, the language should not be
limited to the flow of commerce concept defined by this Court and
other courts, but rather should be held to extend, as does § 1 of
the Sherman Act, to all persons and activities that have a
substantial effect on interstate commerce. We find this theory
equally unavailing on the record here.
A
As to § 2(a) of the Robinson-Patman Act at least, the
extraordinarily complex legislative history fails to support Copp's
argument. When the Patman bill was passed by the House, it
contained, in addition to the present narrow language of § 2(a),
the following provision:
"[I]t shall also be unlawful for any person,
whether in
commerce or not, either directly or indirectly, to
Page 419 U. S. 200
discriminate in price between different purchasers . . . where .
. . such discrimination may substantially lessen competition. . . .
[
Footnote 14]"
The Conference Committee, however, deleted this "effects on
commerce" provision, leaving only the "in commerce" language of §
2(a). [
Footnote 15] Whether
Congress took this action because it wanted to reach only price
discrimination in interstate markets or because of its then
understanding of the reach of the commerce power, [
Footnote 16] its action strongly militates
against a judgment that Congress intended a result that it
expressly declined to enact. Moreover, even if the legislative
history were ambiguous, the courts in nearly four decades of
litigation have interpreted the statute in a manner directly
contrary to an "effects on commerce" approach. With almost perfect
consistency, the Courts of Appeals have read the language requiring
that "either or any of the purchases involved in such
discrimination [be] in commerce" to mean that § 2(a) applies only
where "
at least one of the two transactions which, when
compared, generate a discrimination . . . cross[es] a state line.'"
[Footnote 17] In the face of
this longstanding
Page 419 U. S.
201
interpretation and the continued congressional silence, the
legislative history does not warrant our extending § 2(a) beyond
its clear language to reach a multitude of local activities that
hitherto have been left to state and local regulation. See FTC
v. Bunte Bros., 312 U. S. 349
(1941).
B
With respect to §§ 3 and 7 of the Clayton Act, the situation is
not so clear. Both provisions were intended to complement the
Sherman Act and to facilitate achievement of its purposes by
reaching, in their incipiency, acts and practices that promise, in
their full growth, to impair competition in interstate commerce.
E.g., United States v. E. I. du Pont de Nemours & Co.,
353 U. S. 586,
353 U. S. 589
(1957);
Standard Fashion Co. v. Magrane-Houston Co.,
258 U. S. 346
(1922). The United States argues in its
amicus brief that,
given this purpose, the "in commerce" language of 3 and 7 should be
seen as no more than a historical anomaly. When these sections were
originally enacted, it was thought that Congress' Commerce Clause
power reached only those subjects within the flow of commerce, then
defined rather narrowly by the Court. Thus, it is argued, the "in
commerce" language was thought to be coextensive with the reach of
the Commerce Clause and to bring within the ambit of the Act all
activities over which Congress could exercise its constitutional
authority. Since passage of the Act, this Court's decisions
Page 419 U. S. 202
have read Congress' power under the Commerce Clause more
expansively, extending it beyond the flow of commerce to all
activities having a substantial effect on interstate commerce.
See Mandeville Island Farms v. American Crystal Sugar Co.,
334 U.S. at
334 U. S.
229-233. The United States concludes that the scope of
the Clayton Act, like that of the Sherman Act, should be held to
have expanded correspondingly, both because of Congress' clear
intention to reach as far as it could and because Congress' purpose
to foster competition in interstate commerce could not otherwise
wholly be achieved.
This argument from the history and practical purposes of the
Clayton Act is neither without force nor without at least a measure
of support. [
Footnote 18]
But whether it would justify radical expansion of the Clayton Act's
scope beyond that which the statutory language defines --
expansion, moreover, by judicial decision, rather than amendatory
legislation -- is doubtful. In any event, this case does not
present an occasion to decide the question. Even if the Clayton Act
were held to extend to acquisitions and sales having substantial
effects on commerce, a court cannot presume that such effects
exist. The plaintiff must allege and prove that apparently local
acts, in fact, have adverse consequences on interstate markets and
the interstate flow of goods in order to invoke federal antitrust
prohibitions.
See United States v. Yellow Cab Co., 332
U.S. at
332 U. S.
230-234.
Copp was allowed full discovery as to all interstate commerce
issues. It relied primarily on the nexus theory rejected above, and
presented no evidence of effect on interstate commerce. Instead it
argued merely that such effects could be presumed from the use of
asphaltic concrete in interstate highways. The District Court
concluded,
Page 419 U. S. 203
on the basis of the record before it, that petitioners' alleged
antitrust violations had no "substantial impact on interstate
commerce." [
Footnote 19]
There may be circumstances in which activities, like those of
Sully-Miller and Industrial, would have such effects on commerce.
On the record in this case, however, the conclusion of the District
Court that no such circumstances existed here cannot be considered
erroneous. This being so, the "effects on commerce" theory, even if
legally correct, must fail for want of proof.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
Hereafter, for simplicity, cited as § 2(a) of the
Robinson-Patman Act.
[
Footnote 1a]
^1a. Respondents are collectively referred to hereinafter as
Copp.
[
Footnote 2]
Although Industrial's Nevada hot plant is sufficiently close to
the California and Arizona borders to allow sales and deliveries to
those States, Industrial has disavowed such sales, without
contradiction. App. 117.
[
Footnote 3]
15 U.S.C. § 15.
[
Footnote 4]
In re Western Liquid Asphalt, 303 F. Supp. 1053 (JPML
1969);
In re Western Liquid Asphalt, 309 F. Supp. 157
(JPML 1970). As explained
infra, the case here concerns
only asphaltic concrete, not liquid asphalt.
[
Footnote 5]
1972 CCH Trade Cases � 74,013
The court held the asphalt oil claims against the oil companies
and Industrial within its jurisdiction because of the interstate
character of that market. That ruling is not before us.
[
Footnote 6]
The court reserved the question of summary judgment in favor of
defendant Sully-Miller, holding that question not properly before
it under Fed.Rule Civ.Proc. 54(b).
[
Footnote 7]
28 U.S.C. § 1254(1).
See Hawaii v. Standard Oil Co. of
California, 405 U. S. 251
(1972).
[
Footnote 8]
Because of our limited grant and because of the Ninth Circuit's
reservation of judgment as to Sully-Miller,
see n 6,
supra, Union Oil and
Industrial are the only defendants who have participated in
argument here.
[
Footnote 9]
Robinson-Patman Act, § 2(a), Act of June 19, 1936, c. 592, 49
Stat. 1526, 15 U.S.C.§ 13(a):
"It shall be unlawful for any person engaged in commerce, in the
course of such commerce, either directly or indirectly, to
discriminate in price between different purchasers of commodities
of like grade and quality, where either or any of the purchases
involved in such discrimination are in commerce . . . where the
effect of such discrimination may be substantially to lessen
competition or tend to create a monopoly in any line of commerce. .
. ."
Clayton Act, Act of Oct. 15, 1914, c. 323, 38 Stat. 730, as
amended:
Section 3 (15 U.S.C. § 14):
"It shall be unlawful for any person engaged in commerce, in the
course of such commerce, to lease or make a sale or contract for
sale of goods, wares, merchandise, machinery, supplies, or other
commodities . . . on the condition, agreement, or understanding
that the lessee or purchaser thereof shall not use or deal in the
goods, wares, merchandise, machinery, supplies, or other
commodities of a competitor or competitors of the lessor or seller,
where the effect of such lease, sale, or contract for sale or such
condition, agreement, or understanding may be to substantially
lessen competition or tend to create a monopoly in any line of
commerce."
Section 7 (15 U.S.C. § 18):
"No corporation engaged in commerce shall acquire, directly or
indirectly, the whole or any part of the stock or other share
capital . . . of another corporation engaged also in commerce,
where in any line of commerce in any section of the country, the
effect of such acquisition may be substantially to lessen
competition, or to tend to create a monopoly. . . ."
[
Footnote 10]
52 Stat. 1060, as amended, 29 U.S.C. § 201
et seq.
[
Footnote 11]
E.g., Heart of Atlanta Motel v. United States,
379 U. S. 241,
379 U. S.
249-258 (1964).
[
Footnote 12]
The jurisdictional inquiry under general prohibitions like these
Acts and § 1 of the Sherman Act, turning as it does on the
circumstances presented in each case and requiring a particularized
judicial determination, differs significantly from that required
when Congress itself has defined the specific persons and
activities that affect commerce and therefore require federal
regulation.
Compare United States v. Yellow Cab Co.,
332 U. S. 218,
332 U. S.
232-233 (1947),
with, e.g., Perez v. United
States, 402 U. S. 146
(1971);
Maryland v. Wirtz, 392 U.
S. 183 (1968); and
Katzenbach v. McClung,
379 U. S. 294
(1964).
[
Footnote 13]
23 U.S.C. § 101
et seq.
[
Footnote 14]
H.R. 8442, 74th Cong., 2d Sess. (1936) (emphasis added).
[
Footnote 15]
H.R.Conf.Rep. No. 2951, 74th Cong., 2d Sess. (1936).
[
Footnote 16]
Compare F. Rowe, Price Discrimination under the
Robinson-Patman Act 77-83 (1962)
with Note, Restraint of
Trade -- Robinson-Patman Act, 86 Harv.L.Rev. 765, 770-772
(1973).
[
Footnote 17]
Hiram Walker, Inc. v. A & S Tropical, Inc., 407
F.2d 4, 9 (CA5),
cert. denied, 396 U.S. 901 (1969);
Belliston v. Texaco, Inc., 455 F.2d 175, 178 (CA10),
cert. denied, 408 U.S. 928 (1972).
No decision of this Court implies any contrary approach. In
Moore v. Mead's Fine Bread Co., 348 U.
S. 115 (1954), the plaintiff sold bread locally, in
competition with Mead's, a firm with bakeries in several States.
Moore alleged that Mead's sold bread in his town at a price lower
than that which it charged for bread delivered from its in-state
plant to customers in an adjoining State. The Tenth Circuit held
that Mead's activities were essentially local, and that, if § 2(a)
applied to them it would exceed Congress' commerce power. The Court
(DOUGLAS, J.) unanimously reversed, stating that Congress clearly
has power to reach the local activities of a firm that finances its
predatory practices through multistate operations. This language,
however, spoke to the commerce power, rather than to jurisdiction
under § 2(a). In fact, Mead's did have interstate sales and its
price discrimination thus fell within the literal language of the
statute.
[
Footnote 18]
See Standard Oil Co. v. United States, 337 U.
S. 293,
337 U. S.
314-315 (1949).
[
Footnote 19]
1972 CCH Trade Cases � 74-013, p. 92,208. Copp makes no specific
objection here to the District Court's use of summary judgment
procedure,
see Brief for Respondents 11-12, nor to the
form of the judgment. Moreover, there is no indication that Copp
was foreclosed from presenting all available evidence concerning
the interstate commerce issues, at least as to §§ 3 and 7.
Cf.
McBeath v. Inter-American Citizens for Decency Comm., 374 F.2d
359, 363 (CA5 1967). In any event, assuming that the interstate
commerce requirements of §§ 3 and 7 are properly deemed issues of
subject matter jurisdiction, rather than simply necessary elements
of the federal claims,
cf., e.g., United States v. Employing
Plasterers Assn., 347 U. S. 186
(1954);
Mandeville Island Farms v. American Crystal Sugar
Co., 334 U. S. 219
(1948); 5 J. Moore, Federal Practice 38.36[2.-2], p. 299 (2d
ed.1974), there is, as the dissenting opinion by MR. JUSTICE
DOUGLAS notes, an identity between the "jurisdictional" issues and
certain issues on the merits, and hence, under
Land v.
Dollar, 330 U. S. 731
(1947), no objection to reserving the jurisdictional issues until a
hearing on the merits. By the same token, however, there is no
objection to use, in appropriate cases, of summary judgment
procedure to determine whether there is a genuine issue of material
fact as to the interstate commerce elements.
MR. JUSTICE MARSHALL, concurring.
I join in the judgment and opinion of the Court, with one
qualification. Part III-B of the opinion correctly notes that we
have no occasion today to pass upon the
Page 419 U. S. 204
applicability of the Clayton Act to activities having a
substantial effect on commerce although not "in commerce," since no
such effects are present in this case. For the same reason, we
ought not to characterize the construction offered by the United
States as a "radical expansion of the Clayton Act's scope." As the
Court itself says, "the situation is not so clear." Until the issue
is properly presented by a case requiring its resolution, I would
express no opinion on it.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins,
dissenting.
I suppose it would be conceded that, if one person or company
acquired all the asphaltic concrete plants in the United States,
there might well be a violation of § 2 of the Sherman Act, which
makes unlawful a monopoly of "any part of the trade or commerce
among the several States." 26 Stat. 209, as amended, 15 U.S.C. § 2.
Moreover, even though their sales were all intrastate, they would
come within the ban of § 1 of the Sherman Act, if they
substantially affected interstate commerce. For in the Sherman Act,
we held, "Congress wanted to go to the utmost extent of its
Constitutional power in restraining trust and monopoly agreements.
. . ."
United States v. South-Eastern Underwriters Assn.,
322 U. S. 533,
322 U. S. 558
(1944).
While the Clayton Act modified the Sherman Act by restricting
possible application of the antitrust laws to labor unions,
[
Footnote 2/1] and by expanding the
scope of those laws to cover the aggregation of economic power
through stock acquisitions, [
Footnote
2/2] there is not a word to suggest that
Page 419 U. S. 205
when Congress defined the term "commerce" it desired to contract
the scope of that term. [
Footnote
2/3] The legislative history does not furnish even a bare
suggestion or inference that "commerce" under the Clayton Act meant
something less than it meant under the Sherman Act. The Clayton Act
became the law in 1914; and prior to that time the Court had held
over and over again that acts or conduct wholly intrastate might be
"in restraint of trade or commerce" as that phrase was used in the
Sherman Act.
Swift & Co. v. United States,
196 U. S. 375,
196 U. S. 397
(1905);
United States v. Patten, 226 U.
S. 525,
226 U. S.
541-543 (1913). These holdings were reflected in the
"affecting commerce" standard of the
Shreveport Rate Cases,
Houston Texas R. Co. v. United States, 234 U.
S. 342,
234 U. S.
353-355 (1914). The primary definition of commerce, for
Clayton Act purposes, is "trade or commerce among the several
States." [
Footnote 2/4] In the
years just preceding passage of
Page 419 U. S. 206
that Act, this Court had held on several occasions that the
phase "among the several States" embraces all commerce save that
"which is confined to a single State
and does not affect
other States."
Second Employers' Lability Cases,
223 U. S. 1,
223 U. S. 467
(1912) (emphasis added);
The Minnesota Rate Cases,
230 U. S. 352,
230 U. S.
398-399 (1913). In applying the Clayton Act prohibitions
to persons and corporations "engaged in commerce [among the several
States]," Congress thus may reasonably be said to have intended to
reach persons or corporations whose activities, while wholly
intrastate in nature, affect other States through their effects on
interstate commerce.
The holding in
Transamerica Corp. v. Board of
Governors, 206 F.2d 163, 166 (CA3 1953), that Congress, when
it enacted the Clayton Act, desired "to exercise its power under
the commerce clause of the Constitution to the fullest extent," has
nothing to rebut it. Congress apparently was not as timorous as the
present Court in moving against centers of economic power and
practices that aggrandize it. Heretofore, that is the way we have
read the Clayton Act: that Act was intended to complement the
Sherman Act by regulating in their incipiency actions which might
irreparably damage competition before reaching the level of actual
restraint proscribed by the Sherman Act, and, in the absence of
some indication of legislative intent to the contrary, we should
not lightly assume that Congress intended to undercut that
complementary function by circumscribing the jurisdictional reach
of the Clayton Act more narrowly than that of the
Page 419 U. S. 207
Sherman Act. [
Footnote 2/5]
See United States v. Penn-Olin Chemical Co., 378 U.
S. 158,
378 U. S.
170-171 (1964);
United States v. E. I. du Pont de
Nemours & Co., 353 U. S. 586,
353 U. S. 589,
597 (1957);
Standard Fashion Co. v. Magrane-Houston Co.,
258 U. S. 346,
258 U. S.
355-356 (1922); S.Rep. No. 698, 63d Cong., 2d Sess., 1
(1914). And that is the way in which we assumed that the
Celler-Kefauver Act in 1950, 64 Stat. 1125, 15 U.S.C. § 18,
addressed itself to the problem. For we said in
Brown Shoe Co.
v. United States, 370 U. S. 294,
370 U. S.
315-323 (1962), that the legislative history showed
congressional concern over the "desirability of retaining
local
control' over industry and the protection of small businesses."
Id. at 370 U. S.
315-316. One dramatic way of leveling local business is
pulling it into a vast interstate business regime of the nature
alleged in this complaint.
Page 419 U. S. 208
I
I agree with the court below that jurisdiction may be sustained
on an "in commerce" theory. [
Footnote
2/6] Clayton Act § 3 and 7 apply to persons or corporations
"engaged in commerce"; we have held, in a line of cases arising
under the Fair Labor Standards Act (FLSA), 52 Stat. 1060, as
amended, 29 U.S.C. § 201
et seq., that persons or
enterprises engaged in building or repairing toll roads, bridges,
and canal locks are "engaged in commerce," and therefore within the
reach of the commerce power, by virtue of their relationship to
indispensable instrumentalities of our system of interstate
commerce.
Mitchell v. Vollmer & Co., 349 U.
S. 427 (1955);
Fitzgerald Co. v. Pedersen,
324 U. S. 720
(1945);
Overstreet v. North Shore Corp., 318 U.
S. 125 (1943). It is true, as the majority notes, that
the FLSA and the antitrust laws are different statutes, but the
critical difference between the statutes arises in an area which in
no way weakens the applicability of the FLSA cases to the present
inquiry.
In the FLSA and in many other regulatory enactments, Congress
itself has determined that certain classes of activities have a
sufficient impact upon interstate commerce to warrant regulation of
the entire class, regardless of whether an individual instance of
the activity in question can be shown to be in or to affect
commerce.
See generally Perez v. United States,
402 U. S. 146,
402 U. S.
152-154 (1971);
United States v. Darby,
312 U. S. 100,
312 U. S.
119-121
Page 419 U. S. 209
(1941). The FLSA represents such a congressional determination
with respect to the payment of wages below a specified level and
with respect to employment exceeding a specified number of hours
per week (under specified conditions). 29 U.S.C. §§ 206, 207. Once
either of these practices is found to exist with respect to an
employer or employee covered by the FLSA, the regulatory provisions
of that Act are called into play without further inquiry into the
possible effect of the individual employer's practices on
interstate commerce.
In the antitrust laws, Congress has provided a different sort of
treatment. The Sherman Act broadly prohibits practices in restraint
of trade or commerce, and the Clayton and Robinson-Patman Acts bar
price discrimination, tie-ins, and corporate stock or assets
acquisitions where "the effect of" such practices "may be
substantially to lessen competition or tend to create a monopoly in
any line of commerce." The finding that a person or corporation is
covered by these Acts does not trigger automatic application of the
regulatory prohibition; instead, a court must go on to make an
individualized determination of the actual or potential impact of
that particular person's or corporation's activities on competition
or on interstate commerce. [
Footnote
2/7]
It is in this respect that the antitrust laws differ from the
FLSA and other regulatory enactments. The present case, however,
does not turn on that difference, because it does not raise the
issue of whether the actions of the
Page 419 U. S. 210
named defendants had a sufficiently adverse effect on interstate
commerce to make out a violation of the antitrust laws; that issue
goes to the merits of Copp's claims, and cannot properly be reached
at this stage. Instead, the case as now presented raises the
threshold issue of whether the named defendants are within the
jurisdictional reach of the antitrust laws, and our inquiry on that
point does not differ significantly from our inquiry under the FLSA
or any other regulatory statute. The FLSA covers employers of
employees "engaged in commerce or in the production of goods for
commerce"; the Clayton Act and Robinson-Patman Act provisions at
issue here cover persons or corporations "engaged in commerce." We
have held, in FLSA and Federal Employers' Liability Act (FELA)
cases, that Congress' use of the phrase "engaged in commerce" is
sufficiently broad to reach employees engaged in repairing highways
or in carrying bolts to be used for bridge repairs,
Overstreet
v. North Shore Corp., supra; in light of the purposes of the
Clayton Act, I see no reason why the phrase "engaged in commerce"
as used in that Act should not be read equally broadly, and should
not thereby be deemed sufficient to reach corporations engaged in
building highways or in producing and supplying the very materials
used in such construction. As the Court of Appeals aptly noted:
"Regulation of business practices through the antitrust laws . .
. may justifiably reach further than some other types of regulation
because the antitrust laws are concerned directly with aiding the
flow of commerce."
487 F.2d 202, 204 (1973).
II
An alternative ground for affirming the judgment below, likewise
rejected by the majority, is that the Clayton Act's "engaged in
commerce" jurisdictional language is sufficiently broad to
encompass corporations which are
Page 419 U. S. 211
not in the flow of commerce itself but which, through their
activities, affect commerce. For the reasons stated in the
introductory portion of this opinion, I, for one, am persuaded that
Clayton Act §§ 3 and 7 are as broad as the Sherman Act in this
respect. The majority expressly disclaims any intent to resolve
that issue on the ground that Copp has failed to produce any
"proof" of such effects, and is therefore not entitled to continue
this suit even under a broad reading of the jurisdictional phrase;
in my view, the burden of proof which the Court thereby imposes
upon Copp is one which may not properly be imposed at this stage of
the litigation.
The complaint alleges the acquisition by Gulf of named companies
with the purpose and effect of creating a monopoly under the
Sherman Act and likewise substantially lessening competition and
creating a monopoly in violation of § 7 of the Clayton Act. Like
allegations are made respecting certain acquisitions of Union Oil.
Allegations are made that the petitioners divide the geographic
areas of competition for the purpose of eliminating competition.
The petitioners are alleged to indulge in tie-in practices, whereby
base rock material would be sold substantially more cheaply to
contractors who buy their asphaltic concrete from the named
petitioners. The complaint alleges that the petitioners have
maintained high prices in areas where there is no competition and
that, where competition exists, they sell their products at
artificially low prices -- below cost--and that that is the
practice of petitioners where they compete with Copp. Thus,
violations of the Sherman Act, Clayton Act, and Robinson-Patman Act
are alleged.
There has been no trial. The case was disposed of on pleadings
and affidavits. The District Judge ordered discovery so that all
the parties could "develop the facts bearing upon the question of
whether the alleged conspiracy
Page 419 U. S. 212
was one affecting interstate commerce." At the end of the time
allotted for discovery, the District Court ruled that "the local
activities of the defendants with regard to asphaltic concrete did
not have a substantial impact on interstate commerce," and as
respects one of the defendants (who is not a party in the case now
before us) granted its motion for summary judgment. [
Footnote 2/8]
The Court of Appeals speaking through Judge Alfred T. Goodwin
said -- properly, I think:
"Nor can we accept defendants' argument that the plaintiffs must
show not only that the parties and sales are 'in' commerce but must
show that competition was injured before the court has
jurisdiction. This is the result of confusing the substantive with
the jurisdictional requirements of the antitrust laws. It is not
necessary for a plaintiff to prove his whole case in order to give
the courts jurisdiction to hear it."
487 F.2d at 206.
The allegations and the complaint plainly gave the District
Court jurisdiction. [
Footnote 2/9]
What a trial on the merits might
Page 419 U. S. 213
produce no one knows. The District Judge said:
"I conclude that the local activities of the defendants with
regard to asphaltic concrete did not have a substantial impact on
interstate commerce."
That could not possibly be said until at least the plaintiffs
had offered their proof; yet, as the Court of Appeals said, the
plaintiffs need not prove, on a motion that goes to the
jurisdiction of the court, the merits of their case in order to
obtain an opportunity to try it. [
Footnote 2/10]
[
Footnote 2/1]
38 Stat. 731, 15 U.S.C. § 17.
See H.R.Rep. No. 627, 63d
Cong., 2d Sess., 14-16 (1914);
United States v. Hutcheson,
312 U. S. 219
(1941).
[
Footnote 2/2]
15 U.S.C. § 18; H.R.Rep. No 627,
supra, at 17.
See
also United States v. Penn-Olin Chemical Co., 378 U.
S. 158,
378 U. S.
170-171 (1964);
United States v. E. I. du Pont de
Nemours & Co., 353 U. S. 586,
353 U. S. 597
(1957).
[
Footnote 2/3]
The definition of "antitrust laws" as used in the Clayton Act
includes the Sherman Act. 15 U.S.C. § 12. The definition of
"commerce" was actually
"broadened so as to include trade and commerce between any
insular possessions or other places under the jurisdiction of the
United States, which at present do not come within the scope of the
Sherman antitrust law or other laws relating to trusts."
H.R.Rep. No. 627,
supra, at 7.
The Sherman Act declares illegal every contract, combination, or
conspiracy "in restraint of trade or commerce among the several
States. . . ." 15 U.S.C. § 1. It also makes a misdemeanor a
monopoly of "any part of the trade or commerce among the several
States. . . ." 15 U.S.C. § 2.
[
Footnote 2/4]
"Commerce," as used in the Clayton Act, is defined in § 1 as
follows:
"'Commerce,' as used herein, means trade or commerce among the
several States and with foreign nations, or between the District of
Columbia or any Territory of the United States and any State,
Territory, or foreign nation, or between any insular possessions or
other places under the jurisdiction of the United States, or
between any such possession or place and any State or Territory of
the United States or the District of Columbia or any foreign
nation, or within the District of Columbia or any Territory or any
insular possession or other place under the jurisdiction of the
United States."
15 U.S.C. § 12.
[
Footnote 2/5]
Indeed, we would have to sit as a Committee of Revision over
Congress, shaping the law to fit our prejudices against antitrust
regulations, to hold that "in commerce" as used in the Clayton Act
was intended to provide less comprehensive coverage than the
language of the Sherman Act. Prior to passage of the Clayton Act,
labor union practices had been held by this Court to affect
commerce, and thus to fall within the reach of the Sherman Act,
despite the fact that the union activities could not be regarded as
being in the flow of commerce.
Loewe v. Lawlor,
208 U. S. 274,
208 U. S.
300-301 (1908).
See also Teamsters Local 167 v.
United States, 291 U. S. 293,
291 U. S. 297
(1934);
Apex Hosiery Co. v. Leader, 310 U.
S. 469 (1940);
United States v. Employing Plasterers
Assn., 347 U. S. 186,
347 U. S. 189
(1954). If the Court is right today in saying that "in commerce" as
used in the Clayton Act is to be read more restrictively than the
Sherman Act, then those who drafted the Clayton Act (including
Louis D. Brandeis) to protect labor were needlessly concerned -- no
express exemption of labor would have been necessary, since the "in
commerce" language of the Clayton Act (if narrowly read) would not
have supported judicial attempts to reach labor activities on an
"affecting commerce" theory. The drafters obviously thought
otherwise.
[
Footnote 2/6]
The decision of the Court of Appeals on the Sherman Act issue,
which remains intact by virtue of our limited grant of certiorari,
held that petitioners and their alleged activities were
sufficiently "in commerce" to support Sherman Act jurisdiction. 487
F.2d 202, 205 (1973). The majority now holds, however, that
petitioners and their alleged activities were not sufficiently "in
commerce" to support Clayton and Robinson-Patman Act coverage. In
light of the latter holding, it is difficult to imagine the
reception that Copp's Sherman Act claims will receive on
remand.
[
Footnote 2/7]
Of course, in a limited range of Sherman Act cases, this Court
has held that certain practices are
per se violations of
the antitrust laws; that is to say, these practices are
conclusively presumed to be illegal without the need for any
particularized inquiry into their effects.
See generally White
Motor Co. v. United States, 372 U. S. 253,
372 U. S.
259-262 (1963), and cases collected therein. These cases
may be viewed as limited exceptions to the individualized approach
described in the text above.
[
Footnote 2/8]
Federal Rule Civ.Proc. 56 "deals with the merits" of a claim and
if in favor of the defendant is "in bar and not in abatement," 6 J.
Moore, Federal Practice � 56.03, p. 2051 (2d ed.1974). Lack of
jurisdiction of the court is a matter in abatement and thus is not
usually appropriate for a summary judgment, which is not a
substitute for a motion to dismiss for want of jurisdiction.
Id. at 2052-2053.
On the general propriety of discovery orders of this sort,
see 4
id. 26.56[6]; but
"[t]here are cases . . . in which the jurisdictional questions
are so intertwined with the merits that the court might prefer to
reserve judgment on the jurisdiction until after discovery has been
completed."
Id. at 26-191.
See also the discussion in
419
U.S. 186fn2/10|>n. 10,
infra.
[
Footnote 2/9]
The issue of whether there is subject matter jurisdiction raises
the question whether the complaint, on its face, asserts a
nonfrivolous claim "arising under" federal law.
Baker v.
Carr, 369 U. S. 186,
369 U. S.
199-200 (1962);
Bell v. Hood, 327 U.
S. 678,
327 U. S.
682-683 (1946). If such a claim is stated, the District
Court is then empowered to assume jurisdiction and to determine
whether the claim is good or bad, on the basis of a motion to
dismiss for failure to state a claim or cause of action.
Romero
v. International Terminal Operating Co., 358 U.
S. 354,
358 U. S. 359
(1959);
Montana-Dakota Utilities Co. v. Northwestern Public
Service Co., 341 U. S. 246,
341 U. S. 249
(1951). Such a dismissal is on the merits, not for want of
jurisdiction.
Bell v. Hood, supra.
[
Footnote 2/10]
It is sometimes said that, where the district court's
jurisdiction is challenged, that court has the power, either on its
own motion or on motion of a party, to inquire into the facts as
they exist for purposes of resolving the jurisdictional issue.
Land v. Dollar, 330 U. S. 731,
330 U. S. 735
n. 4 (1947), and cases cited;
Local 6, American Federation of
Musicians v. Bonatz, 475 F.2d 433, 437 (CA3 1973). On the
other hand, if the jurisdictional issue is closely intertwined with
or dependent on the merits of the case, the preferred procedure is
to proceed to a determination of the case on the merits.
McBeath v. Inter-American Citizens for Decency Comm., 374
F.2d 359, 362-363 (CA5),
cert. denied, 389 U.S. 896
(1967);
Jaconski v. Avisun Corp., 359 F.2d 931, 935-936
(CA3 1966).
The cases cited for the proposition that a district court may
inquire into jurisdictional facts on a motion to dismiss for want
of jurisdiction are cases in which the jurisdictional issue was
whether the plaintiff met the amount in controversy requirement.
That jurisdictional issue is sufficiently independent of the merits
of the claim to warrant independent examination, if challenged.
Where the jurisdictional issue is more closely linked to the
merits, disposition of the jurisdictional issue on motion becomes
inappropriate. Thus, in
Land v. Dollar, where the
complaint alleged that members of the United States Maritime
Commission were unlawfully holding
Page 419 U. S. 214
shares of Dollar stock under a claim that the stock belonged to
the United States, the District Court dismissed on the ground that
the suit was against the United States. In affirming a reversal of
that dismissal, the Court said:
"[A]lthough as a general rule the District Court would have
authority to consider questions of jurisdiction on the basis of
affidavits as well as the pleadings, this is the type of case where
the question of jurisdiction is dependent on decision of the
merits."
330 U.S. at
330 U. S. 735.
This was true because if the plaintiffs prevailed on either of
their theories on the merits (that the Commission was without
authority to acquire the shares, or that the contract was simply a
pledge of the shares, rather than an outright transfer), then they
would also prevail on the jurisdictional issue. And in the
McBeath case,
supra, the Court of Appeals for the
Fifth Circuit reversed a pretrial dismissal of a Sherman Act claim
on grounds of lack of jurisdiction (for failure to show an effect
on interstate commerce). Relying on
Land v. Dollar, it
held that the issue of effects on interstate commerce was so
intertwined with the merits of the claim that it was error for the
District Court to dismiss without giving the plaintiff a full
chance to prove his case on the merits.
In cases such as
United States v. Employing Plasterers
Assn., 347 U. S. 186
(1954);
Mandeville Island Farms v. American Crystal Sugar
Co., 334 U. S. 219
(1948); and
United States v. Yellow Cab Co., 332 U.
S. 218 (1947), this Court has reviewed "interstate
commerce" issues in the context of dismissals of antitrust suits
prior to trial on the merits. Those dismissals, however, were
based, not upon motions for summary judgment or for dismissal for
want of jurisdiction, but rather upon motions to dismiss for
failure to state a claim. In such cases, of course, the allegations
of the complaint must be taken as true.
Id. at
332 U. S. 224.
In the case now before us, the District Court clearly went beyond
the face of the complaint and required respondents to produce proof
of interstate effects.