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United States v. American Society of Composers

decided: April 14, 1964.


Author: Friendly

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:


A year ago we dismissed this appeal because of what we considered to be "the controlling force of the Expediting Act in routing all appeals from final judgments in actions by the Government under the antitrust laws to the Supreme Court." 317 F.2d 90, 94 (1963), a construction which we thought to follow from the language of the statute and from decisions applying it such as Terminal R.R. Ass'n v. United States, 266 U.S. 17 (1924); United States v. California Co-op. Canneries, 279 U.S. 553, 558-59 (1929); United States Alkali Export Ass'n v. United States 325 U.S. 196, 201-02 (1945); and De Beers Consol. Mines, Ltd. v. United States 325 U.S. 212, 217 (1945). As our opinion indicated, we were troubled by the fact that although the order of the District Court dismissing appellants' application seemed indeed to be "final" so far as this action was concerned, the Supreme Court, without explanation and over Mr. Justice Black's dissent, had dismissed the appeal that appellants had taken to it 371 U.S. 540 (1963). We thought this might have been founded on special principles relating to applications by persons not parties to the action, dismissal of whose claims for relief therein would leave them free to pursue other remedies, and that in any event denial of jurisdiction by the Supreme Court, for whatever reason, did not give us a role under a statute from whose scheme we considered the courts of appeals to have been excluded. On appellants' petition for certiorari, the Supreme Court summarily reversed 375 U.S. 39 (1963), explaining per curiam that its dismissal of the appeal that had been taken to it had been based on an "unexpressed view" that the Expediting Act was subject to an unexpressed exception with respect to a controversy which, as was deemed the case here, "is entirely between private parties and is outside the main stream of the litigation in which the Government is directly concerned."*fn1 Appeals to the courts of appeals from final orders in such controversies were held to lie under 28 U.S.C. § 1291.

The Supreme Court's description of the exception which it found implicit in the Expediting Act created a further problem of appellate jurisdiction. Before taking their appeals to the Supreme Court and to this court, appellants waited 58 days after the entry of judgment in the District Court, relying as to the latter on the provisions of 28 U.S.C. § 2107 and F.R. Civ. Proc. 73(a) allowing 60 days from the entry of judgment for all parties to appeal "in any action in which the United States or an officer or agency thereof is a party." In view of the Supreme Court's characterization of the instant controversy as "entirely between private parties," which appellee thought to raise a question as to the timeliness of the appeal to this court, it petitioned the Supreme Court for rehearing and obtained a modification of the per curiam opinion so that the cause, instead of being "remanded to the Court of Appeals for consideration on its merits," as originally ordered, was "remanded to the Court of Appeals for further proceedings in conformity with this opinion," 375 U.S. 994 (1964); Mr. Justice Goldberg and Mr. Justice Black thought the earlier order proper. We must therefore initially pass upon appellee's contention that the appeal is untimely because not taken within the 30 days normally allowed.

It is in the last degree undesirable to read into a procedural statute, or rule, fixing the time within which action may be taken, a hidden exception or qualification that will result in the rights of clients being sacrifced when capable counsel have reasonably relied on the language. Section 2107 of Title 28 and F.R. Civ. Proc. 73(a) unequivocally allow "to all parties" 60 days to appeal in any action "in which the United States or an officer or agency thereof is a party." The stated criterion is whether the United States is a party to the action, a test clearly satisfied here, and not whether the United States is concerned with the particular order sought to be appealed - something that often cannot be accurately determined when the order is made. The only contrary case cited by appellee is Virginia Land Co. v. Miami Shipbuilding Corp ., 201 F.2d 506 (5 Cir. 1953), where the court did say that the statute and Rule were "not intended to change the rule in respect to appeals by other persons from orders with which the United States had no concern simply because of the fact that the United States was a party to the proceeding below but not to the issues involved in the appeal." Whether or not we would follow that statement on such extreme facts as were there presented, we find it inapplicable here, as other courts of appeal have found when it has been cited to them. Division of Labor Law Enforcement v. Stanley Restaurants, Inc ., 228 F.2d 420, 423 (9 Cir. 1955); American Export Lines, Inc. v. Revel, 262 F.2d 122, 126 (4 Cir. 1958); East v. Crowdus, 302 F.2d 645, 646-47 (8 Cir. 1962). In the Fifth Circuit case the United States had brought suit against Miami Shipbuilding Corporation for unpaid taxes and had had a receiver appointed; Virginia Land had filed a claim; four years after the United States had settled with Miami Shipbuilding and the receivership had been terminated, Virginia Land moved to have Miami Shipbuilding substituted as a respondent and to avail itself of the 60-day provision for appealing from a denial.*fn2 The United States had thus long since become a merely nominal party.

That is a far cry from this case. The consent decree gives the United States a continuing role in this action, authorizing it by the usual provisions to inspect the records of the defendant, to interview its officers, and to require reports from it; retaining jurisdiction to enable any of the parties to apply "for such further orders and directions as may be necessary or appropriate in relation to the construction of or carrying out of this Judgment, for the modification thereof, for the enforcement of compliance therewith and for the punishment of violations thereof"; and providing that at any time after five years the United States might apply for vacation or modification of the Judgment. It is patent that the United States had an interest in the very application here made. As the plaintiff at whose instance the decree was entered, the United States had a stake in having the bargain performed according to its understanding of what had been agreed; if appellants are right in saying that the decree required ASCAP to grant the type of license they sought, ASCAP's refusal would thus present an issue of compliance on which the United States might well desire to be heard. On the other hand, if appellants are seeking to impose on ASCAP obligations it had not undertaken, the United States might have an interest in opposing, because of the adverse effect such a precedent might have on its ability to obtain consent decrees in other cases, or for substantive reasons. Indeed, the United States did submit two memoranda to the District Court. In the first it took the position "that should the applicant show their request to be reasonable, in our opinion, the judgment requires ASCAP to offer a license of the type requested," and in the second it went further in aligning itself with appellants. Although this is not a requisite to the applicability of the 60-day provision, the Government could thus have appealed from the dismissal of appellants' applications - although we cannot now be altogether sure to what court such an appeal would have lain. Similarly if the United States had sided with ASCAP in the district court, it could have appealed from an order granting appellants' applications. Indeed, when the case was last here, the United States did participate to the extent of urging that the appeal be dismissed for want of jurisdiction on our part.

Appellee responds to such considerations by saying, with no little force, that however all this might seem if we were free to exercise our judgment, the Supreme Court has conclusively determined that "The controversy which is disposed of by the District Court's order is entirely between private parties and is outside the main stream of the litigation in which the Government is directly concerned." 375 U.S. at 40. But we cannot assume the Supreme Court thus meant to force us to hold the appeal untimely. If the Court had thought its language had the controlling effect for which appellee contends, it would not initially have reversed our judgment and remanded to us for consideration on the merits, but would have denied certiorari or affirmed on the ground of untimeliness, which appellee's brief in opposition to the grant of certiorari had urged as an alternative support for our dismissal of the appeal. Also the dissent on the order on rehearing makes it clear that the entire Court considered the issue of timeliness to be fairly open for our consideration on remand. The reconciliation between the Supreme Court's view on the applicability of the Expediting Act and ours on the applicability of the 60-day rule may be that the controversy is within the stream of the Government's interest although not within "the main stream." To whatever extent the 60-day rule requires that the Government be more than a nominal party, we hold that the requirement was satisfied here, and that the appeal to this court thus was timely.


The Amended Final Judgment of March 14, 1950, considerably amplified an earlier consent judgment entered in the Government's anti-trust suit against ASCAP nine years before. The 1941 judgment contained many negative injunctions with respect to licensing, but had no provision specifically addressed to television, which had not yet been developed commercially, and no provision for judicial fixing of license fees if a licensee and ASCAP were unable to agree on terms. The 1950 Judgment was designed, in part, to fill these gaps, as well as to meet the problems with respect to motion picture licensing revealed by Alden-Rochelle, Inc. v. ASCAP, 80 F.Supp. 888 (S.D.N.Y. 1948) and M. Witmark & Sons v. Jensen, 80 F.Supp. 843 (D. Minn. 1948).

The request which the appellant television stations made of ASCAP on October 18, 1961, was for new blanket and per program licenses*fn3 that would exclude not only programs obtained from a television network, comprising some 62% of the program time of network affiliated stations, as was the case in the licenses previously negotiated,*fn4 but also programs consisting of filmed or taped material made by independent film producers, comprising some 68% of the broadcasters' non-network program time. The economic effect of a license thus restricted would be that either the producer would have to make his own performance licensing arrangements with ASCAP or the copyright owner, or the television station would have to negotiate these on an individual basis before broadcasting; the complications incident to the latter alternative would be likely to cause the former generally to be the practical result. ASCAP refused to grant the request for the new form of licenses and the District Court declined to require it to do so.

Appellants place prime reliance on the opening sentence of Section IX(A) of the Judgment, which says:

"Defendant ASCAP shall, upon receipt of a written application for a license for the right of public performance of any, some or all of the compositions in the ASCAP repertory, advise the applicant in writing of the fee which it deems reasonable for the license requested."

Although a strictly literal reading of this would indeed require ASCAP to quote a fee for any type of license requested, such a reading ignores both context and good sense. The sentence is the springboard for a complicated set of provisions, stretching over two printed pages, which prescribe the mechanics for arriving at reasonable fees; the purpose of Section IX was to describe how fees were to be set for licenses that ASCAP was bound to grant, not to delineate ASCAP's obligations to grant them. Appellants' counsel concedes that ASCAP was not bound to grant every kind of license which the ingenuity or whim of hundreds of television station owners could devise; commendable and necessary as the concession ...

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