author: Mr. Justice Douglas

text:
    HARRIS v. UNITED STATES.
    No. 6.
    Argued October 11-12, 1965.
    Decided December 6, 1965.

      Ronald L. Goldfarb argued the cause for petitioner. With him on the briefs were E. David Rosen and Jacob Kossman.

      Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin, Beatrice Rosenberg and Sidney M. Glazer.

   Mr. Justice Douglas

delivered the opinion of the Court.

This case brings back to us a question resolved by a closely divided Court in Brown v. United States, 359 U. S. 41, concerning the respective scope of Rule 42 (a) and of Rule 42 (b) of the Federal Rules of Criminal Procedure. Petitioner was a witness before a grand jury and refused to answer certain questions on the ground of self-incrimination. He and the grand jury were brought before the District Court which directed him to answer the questions propounded before the grand jury, stating that petitioner would receive immunity from prosecution. He refused again to give any answers to the grand jury. He was thereupon brought before the District Court and sworn. The District Court repeated the questions and directed petitioner to answer, but he refused on the ground of privilege. The prosecution at once requested that petitioner be found in contempt of court “under Rule 42 (a).” Counsel for petitioner protested and requested an adjournment and a public hearing where he would be permitted to call witnesses. The District Court denied the motion and thereupon adjudged petitioner guilty of criminal contempt, imposing a sentence of one year’s imprisonment. The Court of Appeals affirmed, 334 F. 2d 460. We granted certiorari, 379 U. S. 944.

Rule 42 (a) is entitled “Summary Disposition” and reads as follows:

“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

Rule 42 (a) was reserved “for exceptional circumstances,” Brown v. United States, 359 U. S. 41, 54 (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of “the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,” ibid., and in light of the wording of the Rule. Summary contempt is for “misbehavior” (Ex parte Terry, 128 U. S. 289, 314) in the “actual presence of the court.” Then speedy punishment may be necessary in order to achieve “summary vindication of the court’s dignity and authority.” Cooke v. United States, 267 U. S. 517, 534. But swiftness was not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings.

Cases of the kind involved here are foreign to Rule 42 (a). The real contempt, if such there was, was contempt before the grand jury — the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify “committed in the actual presence of the court” for the purposes of Rule 42 (a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Even though we assume arguendo that Rule 42 (a) may at times reach testimonial episodes, nothing in this case indicates that petitioner’s refusal was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures (Cooke v. United States, supra, at 536), was necessary. Summary procedure, to use the words of Chief Justice Taft, was designed to fill “the need for immediate penal vindication of the dignity of the court.” Ibid. We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, that the limits of the power to punish for contempt are “[t]he least possible power adequate to the end proposed.” In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here committed was far outside the narrow category envisioned by Rule 42 (a).

Rule 42 (b) provides the normal procedure. It reads:

“A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

Such notice and hearing serve important ends. What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened'silence. Refusal to answer may be due to fear — fear of reprisals on the witness or his family. Other extenuating circumstances may be present. We do not suggest that there were circumstances of that nature here. We are wholly ignorant of the episode except for what the record shows and it reveals only the barebones of demand and refusal. If justice is to be done, a sentencing judge should know all the facts. We can imagine situations where the questions are so inconsequential to the grand jury but the fear of reprisal so great that only nominal punishment, if any, is indicated. Our point is that a hearing and only a hearing will elucidate all the facts and assure a fair administration of justice. Then courts will not act on surmise or suspicion but will come to the sentencing stage of the proceeding with insight and understanding.

We are concerned solely with “procedural regularity” which, as Mr. Justice Brandéis said in Burdeau v. McDowell, 256 U. S. 465, 477 (dissenting), has been “a large factor” in the development of our liberty. Rule 42 (b) prescribes the “procedural regularity” for all con-tempts in the federal regime except those unusual situations envisioned by Rule 42 (a) where instant action is necessary to protect the judicial institution itself.

We overrule Brown v. United States, supra, and reverse and remand this case for proceedings under Rule 42 (b).

Reversed and remanded.

Mr. Justice Stewart, with whom Mr. Justice Clark, Mr. Justice Harlan, and Mr. Justice White join, dissenting.

The issue in this case is the procedure to be followed when a witness has refused to answer questions before a grand jury after he has been ordered to do so by a district court. This issue, involving Rule 42 (a) and Rule 42 (b) of the Federal Rules of Criminal Procedure, was, as the Court says, resolved in Brown v. United States, 359 U. S. 41. That was six years ago. Since then this Court has made no changes in Rule 42 (a) or 42 (b). But today Brown is overturned, and the question it “resolved” is now answered in the opposite way.

The particular question at issue here is of limited importance. But in this area the Court’s duty is important, involving as it does the responsibility for clear and consistent guidance to the federal judiciary in the application of ground rules of our own making. We are not faithful to that duty, I think, when we overturn a settled construction of those rules for no better reasons than those the Court has offered in this case.

The limited scope of the question at issue is made clear by the present record. A grand jury in the Southern District of New York was investigating alleged violations of the Communications Act of 1934. The petitioner appeared before this grand jury pursuant to a subpoena. He refused to answer a number of questions about an interstate telephone call upon the ground of possible self-incrimination. .The petitioner was then granted immunity from any possible self-incrimination under § 409 (1) of the Communications Act. Only after giving the petitioner and his lawyer full opportunity to be heard did the District Judge rule that the petitioner was clothed with complete constitutional immunity from self-incrimination, and only then did he direct the petitioner to answer the grand jury’s questions. The petitioner returned to the grand jury room and again refused to answer the questions, this time in direct and deliberate disobedience of the District Judge’s order.

It is common ground, I suppose, that the petitioner was then and there in contempt of court. Since the petitioner’s refusal to obey the judge’s order did not occur within the sight and hearing of the judge, a contempt proceeding could then have been initiated only under Rule 42 (b). Such a proceeding would have been fully consonant with our decision in Brown, and a judge “more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course.” 359 U. S., at 50. In such a proceeding all that would have been required to prove the contempt would have been the testimony of the grand jury stenographer, and the judge could then have imposed sentence. Such a procedure is often followed.

Instead, however, the District Judge in this case followed the alternative procedure approved in Brown. He made one last effort to aid the grand jury in its investigation and gave the petitioner a final chance to purge himself of contempt. The petitioner and his lawyer appeared before the judge in open court. After the petitioner was sworn as a witness, the judge propounded the same questions which the petitioner had refused to answer before the grand jury. The petitioner again refused to answer. At the conclusion of the questioning the judge asked, “Does anybody want to say anything further?” The only response from the petitioner’s counsel, then or later, was a brief renewal of his attack upon the purpose of the grand jury investigation and the scope of the immunity which had been conferred upon the petitioner — legal questions which the judge had, after a complete hearing, fully determined before he had ordered the petitioner to answer the grand jury’s questions in the first place.

The procedure followed by the District Court in this case was in precise conformity with Rule 42 (a) and with long-settled and consistently followed practice. It is a procedure which, in this context, is at least as fair as a Rule 42 (b) proceeding. The petitioner, represented by counsel, was accorded an additional chance to purge himself of contempt; he and his counsel were accorded full opportunity to offer any explanation they might have had in extenuation of the contempt — to inform the “sentencing judge of all the facts.” And finally, there is no reason to assume that a sentence imposed for obduracy before a grand jury is likely to be more severe in a Rule 42 (a) proceeding than one imposed after a proceeding under Rule 42 (b). Indeed, the recent Rule 42 (b) cases in the Southern District of New York referred to by the Court indicate the contrary. A sentence for contempt is reviewable on appeal in either case, and there is nothing to suggest that in the exercise of this reviewing power an appellate court will have any more information to go on in the one case than in the other.

For these reasons I would affirm the judgment of the Court of Appeals.

       “The Court: Anything further ?
      “Mr. Maloney: No, your Honor.
      “I think the record speaks for itself, and I would ask your Honor to find this witness in contempt of court under Rule 42 (a) of the Federal Rules of Criminal Procedure.
      “Mr. Polakoff: Your Honor, if this is a contempt proceeding I respectfully request an adjournment. I want to have the minutes and I want to have an opportunity to discuss them and consider them with my client and to look up the law.
      “I further request, your Honor, a hearing where I will be permitted to call witnesses, perhaps a grand juror or two or more; perhaps the places the phone calls allegedly were made as indicated by the assistant, to prove to your Honor that there could be no possible violation of the Communications Act.
      “I have not been told what tariff has been violated; no law has been cited or rule or regulation to your Honor or to me, and that requires research.
      “I also would request that the contempt hearing be held in public.
      “The Court: Your request is denied. This is a contempt committed in open court, and I adjudge the defendant guilt}' of a criminal contempt rule under Rule 42 (a).”

       And See Nye v. United States, 313 U. S. 33, 52-53; In re Michael, 326 U. S. 224, 227; Cammer v. United States, 350 U. S. 399, 404.

       Rule 42 (a) was described by the Advisory Committee as “substantially a restatement of existing law. Ex parte Terry, 128 U. S. 289; Cooke v. United States . . . .” We have confirmed this on more than one occasion, e. g., Offutt v. United States, 348 U. S. 11, 13-14; Brown v. United States, supra, at 51.

       Chief Justice Taft said in Cooke v. United States, supra, at 537:
      “Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.”

       In more than one instance in the Southern District of New York, from which this case comes, witnesses cited for testimonial contempt before the grand jury were given hearings under Rule 42 (b). E. g., United States v. Castaldi, 338 F. 2d 883; United States v. Tramunti, 343 F. 2d 548; United States v. Shillitani, 345 F. 2d 290; United States v. Pappadio, 346 F. 2d 5. There is no indication that this procedure impeded the functioning of the grand jury.

        Brown v. United States was reaffirmed and followed in Levine v. United States, 362 U. S. 610.

       The proposed amendments to Rules of Criminal Procedure for the United States District Courts, approved on September 22-23, 1965, by the Judicial Conference of the United States, make no changes in Rule 42 (a) or Rule 42 (b).

       No argumentation or factual data are contained in the Court’s opinion today which were not fully revealed in the dissenting opinion in Brown, 359 U. S., at 53-63, passim, and considered by the Court there. Nor is it suggested that the Brown rule has proved to be unclear or difficult of application. The considerations attending the overruling of Brown are quite unlike those involved in the overruling that occurred in Swift & Co., Inc. v. Wickham, ante, p. 111, where the Court changed a procedural rule which it found unworkable in actual practice.

       48 Stat. 1070 and 1100, 47 U. S. C. §§ 203 (c) and 501 (1964 ed.), and 18 U. S. C. § 1952 (1964 ed.).

       48 Stat. 1096, 47 U. S. C. §409 (l) (1964 ed.).

       The prevailing opinion today says, “The real contempt, if such there was, was contempt before the grand jury . . . .” But a grand jury is without power itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify, if, after appearing, he refuses to do so.

       “When upon his return to the grand jury room the petitioner again refused to answer the grand jury’s questions, now in direct disobedience of the court’s order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42 (b). See Carlson v. United States, 209 F. 2d 209, 216 (C. A. 1st Cir.).” 359 U. S., at 50.

       See cases cited in note 5 of the Court’s opinion, ante, p. 167.

       The record shows that the court was “opened by proclamation.”

       Before imposing sentence, the judge gave petitioner and his counsel still another opportunity to offer any explanation they might have of the petitioner’s obduracy:
      “The Court: I have already made my position perfectly clear, but I will say it again: I have directed you to answer these questions before the grand jury, and I have directed you to answer them here. It is my ruling that you cannot be prosecuted for any answer that you give under the circumstances of this case. Do you still refuse, Mr. Harris?
      “The Witness: I respectfully refuse to answer on the grounds it would tend to incriminate me.
      “The Court: Anything further?”

      . See, in addition to Brown v. United States, 359 U. S. 41, and Levine v. United States, 362 U. S. 610: Rogers v. United States, 340 U. S. 367; Wilson v. United States, 221 U. S. 361, 369; Hale v. Henkel, 201 U. S. 43, 46; United States v. Curcio, 234 F. 2d 470, 473 (C. A. 2d Cir.), rev'd on other grounds, 354 U. S. 118 (1957); Lopiparo v. United States, 216 F. 2d 87 (C. A. 8th Cir.); United States v. Weinberg, 65 F. 2d 394, 396 (C. A. 2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook 467 (N. Y. 1874); People ex rel. Hackley v. Kelly, 24 N.Y. 74, 79-80 (1861); In re Harris, 4 Utah. 5, 8-9, 5 P. 129, 130-132 (1884); Heard v. Pierce, 8 Cush. 338, 342-345 (Mass. 1851).

      . See note 5 of the Court's opinion, ante, p. 167. United States v. Castaldi, 338 F. 2d 883 (two years); United States v. Tramunti, 343 F. 2d 548 (one year); United States v. Shillitani, 345 F. 2d 290 (two years); United States v. Pappadio, 346 F. 2d 5 (two years).

      . See Green v. United States, 356 U. S. 165, 188; Yates v. United States, 356 U. S. 363; Nilva v. United States, 352 U. S. 385, 396; Brown v. United States, 359 U. S. 41, 52.


source: Caselaw Access Project

author:
Mr. Justice Clark
      Mr. Justice Harlan,

license: Public Domain

text:
    WALKER PROCESS EQUIPMENT, INC. v. FOOD MACHINERY & CHEMICAL CORP.
    No. 13.
    Argued October 12-13, 1965.
    Decided December 6, 1965.

      Charles J. Merriam argued the cause for petitioner. With him on the briefs were Edward A. Haight and Louis Robertson.

      Sheldon 0. Collen argued the cause for respondent. With him on the brief were R. Howard Goldsmith, Charles W. Ryan and Lloyd C. Hartman.

      Daniel M. Friedman argued the cause for the United States, as amicus curiae, urging reversal. On the brief were Assistant Attorney General Orrick and Robert B. Hummel.

   Mr. Justice Clark

delivered the opinion of the Court.

The question before us is whether the maintenance and enforcement of a patent obtained by fraud on the Patent Office may be the basis of an action under § 2 of the Sherman Act, and therefore subject to a treble damage claim by an injured party under § 4 of the Clayton Act. The respondent, Food Machinery & Chemical Corp. (hereafter Food Machinery), filed this suit for infringement of its patent No. 2,328,655 covering knee-action swing diffusers used in aeration equipment for sewage treatment systems. Petitioner, Walker Process Equipment, Inc. (hereafter Walker), denied the infringement and counterclaimed for a declaratory judgment that the patent was invalid. After discovery, Food Machinery moved to dismiss its complaint with prejudice because the patent had expired. Walker then amended its counterclaim to charge that Food Machinery had “illegally monopolized interstate and foreign commerce by fraudulently and in bad faith obtaining and maintaining ... its patent . . . well knowing that it had no basis for ... a patent.” It alleged fraud on the basis that Food Machinery had sworn before the Patent Office that it neither knew nor believed that its invention had been in public use in the United States for more than one year prior to filing its patent application when, in fact, Food Machinery was a party to prior use within such time. The counterclaim further asserted that the existence of the patent had deprived Walker of business that it would have otherwise enjoyed. Walker prayed that Food Machinery’s conduct be declared a violation of the antitrust laws and sought recovery of treble damages.

The District Court granted Food Machinery’s motion and dismissed its infringement complaint along with Walker’s amended counterclaim, without leave to amend and with prejudice. The Court of Appeals for the Seventh Circuit affirmed, 335 F. 2d 315. We granted cer-tiorari, 379 U. S. 957. We have concluded that the enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present. In such event the treble damage provisions of § 4 of the Clayton Act would be available to an injured party.

I.

As the case reaches us, the allegations of the counterclaim, as to the fraud practiced upon the Government by Food Machinery as well as the resulting damage suffered by Walker, are taken as true. We, therefore, move immediately to a consideration of the legal issues presented.

Both Walker and the United States, which appears as amicus cunde, argue that if Food Machinery obtained its patent by fraud and thereafter used the patent to exclude Walker from the market through “threats of suit” and prosecution of this infringement suit, such proof would establish a prima facie violation of § 2 of the Sherman Act. On the other hand, Food Machinery says that a patent monopoly and a Sherman Act monopolization cannot be equated; the removal of the protection of a patent grant because of fraudulent procurement does not automatically result in a § 2 offense. Both lower courts seem to have concluded that proof of fraudulent procurement may be used to bar recovery for infringement, Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945), but not to establish invalidity. As the Court of Appeals expressed the proposition, “only the government may ‘annul or set aside’ a patent,” citing Mowry v. Whitney, 14 Wall. 434 (1872). It went on to state that no case had “decided, or hinted that fraud on the Patent Office may be turned to use in an original affirmative action, instead of as an equitable defense. . . . Since Walker admits that its anti-trust theory depends on its ability to prove fraud on the Patent Office, it follows that . . . Walker’s second amended counterclaim failed to state a claim upon which relief could be granted.” 335 F. 2d, at 316.

II.

We have concluded, first, that Walker’s action is not barred by the rule that only the United States may sue to cancel or annul a patent. It is true that there is no statutory authority for a private annulment suit and the invocation of the equitable powers of the court might often subject a patentee “to innumerable vexatious suits to set aside his patent.” Mo wry, supra, at 441. But neither reason applies here. Walker counterclaimed under the Clayton Act, not the patent laws. While one of its elements is the fraudulent procurement of a patent, the action does not directly seek the patent’s annulment. The gist of Walker’s claim is that since Food Machinery obtained its patent by fraud it cannot enjoy the limited exception to the prohibitions of § 2 of the Sherman Act, but must answer under that section and § 4 of the Clayton Act in treble damages to those injured by any monopolistic action taken under the fraudulent patent claim. Nor can the interest in protecting patentees from “innumerable vexatious suits” be used to frustrate the assertion of rights conferred by the antitrust laws. It must be remembered that we deal only with a special class of patents, i. e., those procured by intentional fraud.

Under the decisions of this Court a person sued for infringement may challenge the validity of the patent on various grounds, including fraudulent procurement. E. g., Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806 (1945); Hazel-Atlas Co. v. Hartford-Empire Co., 322 U. S. 238 (1944); Keystone Driller Co. v. General Excavator Co., 290 U. S. 240 (1933). In fact, one need not await the filing of a threatened suit by the patentee; the validity of the patent may be tested under the Declaratory Judgment Act, 28 U. S. C. § 2201 (1964 ed.). See Kerotest Mfg. Co. v. C-O Two Fire Equipment Co., 342 U. S. 180, 185 (1952). At the same time, we have recognized that an injured party may attack the misuse of patent rights. See, e. g., Mercoid Corp. v. Mid-Continent Investment Co., 320 U. S. 661 (1944). To permit recovery of treble damages for the fraudulent procurement of the patent coupled with violations of § 2 accords with these long-recognized procedures. It would also promote the purposes so well expressed in Precision Instrument, supra, at 816:

“A patent by its very nature is affected with a public interest. ... [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.”

III.

Walker’s counterclaim alleged that Food Machinery obtained the patent by knowingly and willfully misrepresenting facts to the Patent Office. Proof of this assertion would be sufficient to strip Food Machinery of its exemption from the antitrust laws. By the same token, Food Machinery’s good faith would furnish a complete defense. This includes an honest mistake as to the effect of prior installation upon patentability — so-called “technical fraud.”

To establish monopolization or attempt to monopolize a part of trade or commerce under § 2 of the Sherman Act, it would then be necessary to appraise the exclusionary power of the illegal patent claim in terms of the relevant market for the product involved. Without a definition of that market there is no way to measure Food Machinery’s ability to lessen or destroy competition. It may be that the device — knee-action swing diffusers — used in sewage treatment systems does not comprise a relevant market. There may be effective substitutes for the device which do not infringe the patent. This is a matter of proof, as is the amount of damages suffered by Walker.

As respondent points out, Walker has not clearly articulated its claim. It appears to be based on a concept of per se illegality under § 2 of the Sherman Act. But in these circumstances, the issue is premature. As the Court summarized in White Motor Co. v. United States, 372 U. S. 253 (1963), the area of per se illegality is carefully limited. We are reluctant to extend it on the bare pleadings and absent examination of market effect and economic consequences.

However, even though the per se claim fails at this stage of litigation, we believe that the case should be remanded for Walker to clarify the asserted violations of § 2 and to offer proof thereon. The trial court dismissed its suit not because Walker failed to allege the relevant market, the dominance of the patented device therein, and the injurious consequences to Walker of the patent’s enforcement, but rather on the ground that the United States alone may “annul or set aside” a patent for fraud in procurement. The trial court has not analyzed any economic data. Indeed, no such proof has yet been offered because of the disposition below. In view of these considerations, as well as the novelty of the claim asserted and the paucity of guidelines available in the decided cases, this deficiency cannot be deemed crucial. Fairness requires that on remand Walker have the opportunity to make its § 2 claims more specific, to prove the alleged fraud, and to establish the necessary elements of the asserted § 2 violation.

Reversed and remanded.

Mr. Justice Harlan,

concurring.

I join the Court’s opinion. I deem it appropriate, however, to add a few comments to what my Brother Clark has written because the issue decided is one of first impression and to allay possible misapprehension as to the possible reach of this decision.

We hold today that a treble-damage action for monopolization which, but for the existence of a patent, would be violative of § 2 of the Sherman Act may be maintained under § 4 of the Clayton Act if two conditions are satisfied: (1) the relevant patent is shown to have been procured by knowing and willful fraud practiced by the defendant on the Patent Office or, if the defendant was not the original patent applicant, he had been enforcing the patent with knowledge of the fraudulent manner in which it was obtained; and (2) all the elements otherwise necessary to establish a § 2 monopolization charge are proved. Conversely, such a private cause of action would not be made out if the plaintiff: (1) showed no more than invalidity of the patent arising, for example, from a judicial finding of “obviousness,” or from other factors sometimes compendiously referred to as “technical fraud”; or (2) showed fraudulent procurement, but no knowledge thereof by the defendant; or (3) failed to prove the elements of a § 2 charge even though he has established actual fraud in the procurement of the patent and the defendant’s knowledge of that fraud.

It is well also to recognize the rationale underlying this decision, aimed of course at achieving a suitable accommodation in this area between the differing policies of the patent and antitrust laws. To hold, as we do, that private suits may be instituted under § 4 of the Clayton Act to recover damages for Sherman Act monopolization knowingly practiced under the guise of a patent procured by deliberate fraud, cannot well be thought to impinge upon the policy of the patent laws to encourage inventions and their disclosure. Hence, as to this class of improper patent monopolies, antitrust remedies should be allowed room for full play. On the other hand, to hold, as we do not, that private antitrust suits might also reach monopolies practiced under patents that for one reason or another may turn out to be voidable under one or more of the numerous technicalities attending the issuance of a patent, might well chill the disclosure of inventions through the obtaining of a patent because of fear of the vexations or punitive consequences of treble-damage suits. Hence, this private antitrust remedy should not be deemed available to reach § 2 monopolies carried on under a nonfraudulently procured patent.

These contrasting factors at once serve to justify our present holding and to mark the limits of its application.

       26 Stat. 209, 15 U. S. C. § 2 (1964 ed.):
      “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor . . . .”

       38 Stat. 731, 15 U. S. C. § 15 (1964 ed.):
      “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.”

       The patent in question was issued in the name of the inventor, Lannert. But he had previously assigned the patent rights to his employer, Chicago Pump Company, a division of Food Machinery.

       See, e. g., United States v. New Wrinkle, Inc., 342 U. S. 371, 376 (1952).

       This conclusion applies with equal force to an assignee who maintains and enforces the patent with knowledge of the patent’s infirmity.


author:
Mr. Justice Harlan
      Mr. Justice Brennan,

text:
    HANNA MINING CO. et al. v. DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION, AFL-CIO, et al.
    No. 7.
    Argued October 12, 1965.
    Decided December 6, 1965.

      John H. Hanninen argued the cause for petitioners. With him on the brief was Lucian Y. Ray.

      Lee Pressman argued the cause for respondents. With him on the brief was David Scribner.

      Acting Solicitor General Spritzer, Arnold Ordman, Dominick L. Manoli, Norton J. Come and Laurence S. Gold filed a brief for the United States, as amicus curiae, urging reversal.
   Mr. Justice Harlan

delivered the opinion of the Court.

The present controversy once again brings before the Court the troublesome question of where lies the line between permissible and federally preempted state regulation of union activities.

I.

Petitioners (“Hanna”) are four corporations whose integrated fleet of Great Lakes vessels carries cargo in interstate and foreign commerce and is operated by one of the four, the Hanna Mining Company. The respondent District 2, Marine Engineers Beneficial Association (“MEBA”) represented the licensed marine engineers in Hanna’s fleet under a collective bargaining agreement terminating on July 15,1962. According to Hanna, while negotiations for a new contract continued during August 1962, a majority of the marine engineers informed Hanna by written petitions that they did not wish to be represented by MEBA. Hanna then declined to negotiate further until MEBA’s majority status was established by a secret ballot. Without acquiescing in this proposal or questioning any of the employee signatures on the petitions, MEBA responded on September 12, 1962, by picketing one of Hanna’s ships unloading at a dock in Duluth, Minnesota, with signs giving the ship’s name, stating that Hanna unfairly refused to negotiate with MEBA, and indicating that no dispute existed with any other employer. Because of the continued picketing, dock workers refused day after day to unload the ship. From September 12 until shipping ended for the winter, MEBA similarly picketed Hanna ships at other Great Lakes ports, including Superior, Wisconsin.

Hanna turned first to the National Labor Relations Board. On September 12, it petitioned the Regional Director at Cleveland, Ohio, to hold a representation election among Hanna’s engineers to prove or disprove MEBA’s majority status. The petition was dismissed at the end of September on the stated ground that the engineers were “supervisors” under §2(11) of the National Labor Relations Act,' and automatically excluded from the Act’s definition of “employees” under § 2 (3), so election proceedings under § 9 were not warranted; giving the same reason, the Board in November declined to overturn this decision. As a second measure, Hanna on September 15, 1962, filed charges with the Regional Director in Minneapolis, Minnesota, alleging that MEBA had violated § 8 (b) (4) (B) of the Act, by inducing work stoppages among dockers at Duluth through improper secondary pressure. In October, the Regional Director dismissed the charges and the General Counsel sustained the dismissal in December, stating that MEBA’s conduct at Duluth and at other sites investigated did not exceed the bounds of lawful picketing under the Board’s standards. Hanna’s third and last appeal to the Board came on September 27, 1962, when it filed charges with the Regional Director in Cleveland, Ohio, accusing MEBA of organizational or recognitional picketing improper under § 8 (b)(7) of the Act. The Regional Director dismissed the charge in October and in the next two months the General Counsel affirmed the dismissal because in seeking to represent “supervisors” rather than “employees” MEBA fell outside the section.

Winter brought an end to both shipping and picketing for several months but when the navigation season opened in the spring of 1963 MEBA pickets once more appeared. After picketing occurred at Superior, Wisconsin, Hanna filed suit on June 24, 1963, in a Wisconsin circuit court. The complaint and affidavits alleged that MEBA was picketing Hanna’s vessels at the docks of the Great Northern Railway Company at Superior in the same manner as the 1962 picketing and with the same improper aim of forcing its representation on unwilling engineers; Hanna stated that workers of other employers were refusing to render service to Hanna’s vessels and it prayed for injunctive relief against further picketing of the vessels and the docks where they berthed and against any other attempt of MEBA to impose representation on Hanna engineers. The Circuit Court dismissed the suit in July for lack of jurisdiction over the subject matter. In April 1964 the Wisconsin Supreme Court affirmed the decision. 23 Wis. 2d 433,127 N. W. 2d 393. While agreeing that the picketing could be deemed illegal under Wisconsin law, that court held that the picketing arguably violated §§ 8 (b) (4) (B) and 8 (b) (7) of the federal labor Act and so fell within the Board’s exclusive jurisdiction marked out in San Diego Unions v. Garmon, 359 U. S. 236. In light of other language in Garmon the Wisconsin Supreme Court held that the General Counsel’s dismissal of charges under §§ 8 (b)(4)(B) and 8 (b)(7) did not foreclose the possibility of a preempting violation, even assuming the 1963 picketing in Superior mirrored the 1962 picketing in Duluth. We invited the views of the United States, 379 U. S. 942, granted certiorari, 380 U. S. 941, and now reverse and remand.

I — I t — l

The ground rules for preemption in labor law, emerging from our Garmon decision, should first be briefly summarized: in general, a State may not regulate conduct arguably “protected by § 7, or prohibited by § 8” of the National Labor Relations Act, see 359 U. S., at 244-246; and the legislative purpose may further dictate that certain activity “neither protected nor prohibited” be deemed privileged against state regulation, cf. 359 U. S., at 245. For the reasons that follow, we believe the Board's decision that Hanna engineers are supervisors removes from this case most of the opportunities for preemption.

When in 1947 the National Labor Relations Act was amended to exclude supervisory workers from the critical definition of “employees,” § 2 (3), it followed that many provisions of the Act employing that pivotal term would cease to operate where supervisors were the focus of concern. Most obviously, § 7 no longer bestows upon supervisory employees the rights to engage in self-organization, collective bargaining, and other concerted activities under the umbrella of § 8 of the Act, as amended, 61 Stat. 140, 29 U. S. C. § 158 (1964 ed.). See Labor Board v. Budd Mfg. Co., 169 F. 2d 571. Accordingly, activity designed to secure organization or recognition of supervisors cannot be protected by § 7 of the Act, arguably or otherwise. Compare Labor Board v. Drivers Local Union, 362 U. S. 274, 279. Correspondingly, the situations in which that same activity can be prohibited by the Act, even arguably, are fewer than would be the case if employees were being organized or seeking recognition. There can be no breach of §8 (b)(7), curtailing organizational or recognitional picketing, because there cannot exist the forbidden objective of requiring representation of “employees” by the picketing organization. Nor could one even advance the argument unsuccessfully urged in Drivers Local Union that § 8 (b) (1)(A), 61 Stat. 141, 29 U. S. C. § 158 (b)(1)(A) (1964 ed.), condemns the picketing as restraint or coercion of employees exercising their § 7 right not to organize or bargain collectively.

Even though such efforts to unionize supervisors are not protected by the Act, or in the respects immediately relevant prohibited by it, the question arises whether Congress nonetheless desired that in their peaceful facets these efforts remain free from state regulation as well as Board authority. Compare Teamsters Union v. Morton, 377 U. S. 252, 258-260. Arguing that the States are indeed powerless in this respect, MEBA pitches its case chiefly on the 1947 amendment of the “employee” definition and on the concurrent enactment of § 14 (a) of the Act, 61 Stat. 151, 29 U. S. C. § 164 (a) (1964 ed.), which provides in relevant part that “[n]othing herein shall prohibit any individual employed as a supervisor from becoming or remaining a member of a labor organization . . . It is contended that the amendment and this section signify a federal policy of laissez faire toward supervisors ousting state as well as Board authority and, more particularly, that to allow the Wisconsin injunction would obliterate the opportunity for supervisor unions that Congress expressly reserved.

This broad argument fails utterly in light of the legislative history, for the Committee reports reveal that Congress’ propelling intention was to relieve employers from any compulsion under the Act and under state law to countenance or bargain with any union of supervisory employees. Whether the legislators fully realized that their method of achieving this result incidentally freed supervisors’ unions from certain limitations under the newly enacted § 8 (b) is not wholly clear, but certainly Congress made no considered decision generally to exclude state limitations on supervisory organizing. As to the portion of § 14 (a) quoted above, some legislative history suggests that it was not meant to immunize any conduct at all but only to make it “clear that the amendments to the act do not prohibit supervisors from joining unions . . . .” S. Rep. No. 105, 80th Cong., 1st Sess., p. 28; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 60 (“[T]he first part of this provision [§ 14 (a)] was included presumably out of an abundance of caution.”). However, even assuming that § 14 (a) itself intended also to make it clear that state law could not prohibit supervisors from joining unions, the section would have no application to the present facts; for picketing by a minority union to extract recognition by force of such pressures is decidedly not a sine qua non of collective bargaining, as indeed its limitation by § 8 (b)(7) in nonsupervisor situations attests.

The remaining question in this phase of the case is whether the supervisory status of Hanna's engineers has been settled “with unclouded legal significance,” Garmon, 359 U. S., at 246, so as to preclude arguable application of the Act in the respects discussed. We hold that the Board’s statement accompanying its refusal to order a representation election does resolve the question with the clarity necessary to avoid preemption. While MEBA does not contend that the Board erred in its determination, an abstract difficulty arises from the lack of a statutory channel for judicial review of such a Board decision. Compare Hotel Employees v. Leedom, 358 U. S. 99 (equity action to obtain election). However, the usual deference to Board expertise in applying statutory terms to particular facts assures that its decision would in any event be respected in a high percentage of instances, and so diminished a risk of interference with federal labor policy does not justify use of the preemption doctrine to thwart state regulation bound to be legitimate on this score in almost all cases.

III.

A further basis for preemption, urged by MEBA and adopted by the Wisconsin Supreme Court, is that the picketing at Superior exerted secondary pressure arguably violating § 8 (b)(4)(B). The argument appears to be that a state injunction banishing the pickets inevitably impinges upon the Board’s authority to regulate facets of the picketing that might exceed “primary” picketing and violate § 8 (b) (4) (B) — facets never specified by MEBA but presumably those that ignore the Board’s limitations on time, location, and manner of common situs picketing. See Sailors’ Union of the Pacific (Moore Dry Dock), 92 N. L. R. B. 547. However, as will appear, no arguable violation exists if Hanna’s proof lives up to its allegations; further, even assuming a violation, federal interests normally justifying preemption are absent from this case.

Hanna’s claim that there is no arguable violation rests, of course, on the finding made by the Regional Director and the General Counsel in declining to issue a complaint under § 8 (b)(4)(B) with respect to MEBA’s 1962 picketing. The Wisconsin' Supreme Court refused to credit this finding because of this Court’s comment in Garmon that the “refusal of the General Counsel to file a charge” is one of those dispositions “which does not define the nature of the activity with unclouded legal significance.” 359 U. S., at 245-246. This language allows more than one interpretation, but we take it not to apply to those refusals of the General Counsel which are illuminated by explanations that do squarely define the nature of the activity. The General Counsel has statutory “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints,” § 3 (d) of the Act, as amended, 61 Stat. 139, 29 U. S. C. § 153 (d) (1964 ed.), and his pronouncements in this context are entitled to great weight. The usual inability of the charging party to contest the General Counsel’s adverse decision in the courts, see Hourihan v. Labor Board, 91 U. S. App. D. C. 316, 201 F. 2d 187, does to be sure create a slight risk if state courts may proceed on this basis, but in the context of this case we believe the risk is too minimal to deserve recognition.

Even taking the General Counsel’s ruling at face value, MEBA stresses that the § 8 (b)(4)(B) charge by Hanna concerned picketing in Duluth in September 1962 while the picketing before the Wisconsin court occurred at Superior in spring 1963. Yet Hanna accompanied the 1962 charge with information as to the 1962 picketing in several ports including Superior. The Regional Director is said to have conducted an investigation in Superior as well as in Duluth, and the General Counsel’s letter on the § 8 (b)(4)(B) charge appeared to state that activity at the sites other than Duluth also did not violate the Act. See n. 7, supra. And while some months intervened between the fall 1962 picketing at Superior and its resumption at that port in spring 1963, Hanna has offered to prove that the picketing remained the same in all significant respects including the picket signs employed, the location of the pickets, and the pickets’ general behavior. If this proof is furnished, the chance that the picketing sought to be enjoined conceals a § 8 (b) (4)(B) violation seems remote indeed.

Additionally, even if a §8 (b)(4)(B) violation were present, central interests served by the Garmon doctrine are not endangered by a state injunction when, in an instance such as this, the Board has established that the workers sought to be organized are outside the regime of the Act. Cf. Ineres S. S. Co. v. Maritime Workers, 372 U. S. 24. Most importantly, the Board’s decision on the supervisory question determines, as we have already shown, that none of the conduct is arguably protected nor does it fall in some middle range impliedly withdrawn from state control. Consequently, there is wholly absent the greatest threat against which the Garmon doctrine guards, a State’s prohibition of activity that the Act indicates must remain unhampered.

Nor is this a case in which the presence of arguably prohibited activity may permit the Board to afford complete protection to the legitimate interests advanced by the State. Since Hanna as the primary employer is present at the picketed situs, the primary picketing proviso of §8 (b)(4)(B) severely inhibits the Board’s use of that section to reach the volatile core of the conduct, the impact on secondary employers that follows from the mere presence of the pickets at a common situs. Section 8 (b) (7) which might provide full relief is rendered inapplicable by the supervisor ruling. Thus, so far as Garmon may proceed on the view that the opportunity belongs to the Board wherever it and the State offer duplicate relief, it has limited application to the present facts.

In concluding that the Act does not preempt the State’s authority to quench the picketing said to have occurred in this case, we do not retreat from Garmon, Rather, we consider that neither the terms nor the policies of that decision justify its extension to the present facts, an extension producing untoward results noted by the Wisconsin Supreme Court itself. 23 Wis. 2d 433, 446, 127 N. W. 2d 393, 399.

The judgment of the Supreme Court of Wisconsin is reversed and the case is remanded to that court for proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Brennan,

concurring.

I agree with the Court that § 14 (a) does not evince a congressional decision to exclude state regulation of picketing aimed at organizing supervisors and securing the employer’s recognition of the union. The question here, however, is whether Congress has excluded state regulation when that picketing also has secondary aspects arguably within the reach of §8 (b)(4)(B). I agree with the Court that state regulation is likewise not precluded in such case.

The proviso to § 8 (b)(4)(B) expressly states “[t]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” (Emphasis supplied.) While Congress thus provided that primary picketing is not rendered unlawful under the Act merely by having secondary aspects, the italicized words of the proviso evince a congressional intention to leave undisturbed whatever other provisions of law regulate primary picketing. Ordinarily such regulation occurs under the National Labor Relations Act. The primary aspects of supervisory picketing are not, however, regulated by the federal Act; and I think the assumption that regulation will occur, which underlies the italicized words of the proviso, is strong enough to support the Court’s conclusion that state regulation of supervisory organizational picketing is not preempted.

It is true that we said in Garmon that States have no power to regulate “activities” arguably subject to the federal Act; picketing which, because of its secondary aspects, is arguably subject to § 8 (b)(4)(B) is, by one construction, an “activity.” But Garmon was not a case in which only incidental aspects of picketing were arguably subject to federal power and in which the alternative to state regulation was a regulatory void which Congress plainly assumed would not exist. In this limited context, it is permissible to distinguish the primary from the secondary aspects of the picketing, and hold that the States may regulate the former, although preempted as to the latter, and although the necessary effect of regulation curbs both secondary and primary aspects of the picketing. This choice seems more consistent with the congressional meaning, since the alternative is to immunize the primary aspects of such common-situs picketing from state regulation, and that alternative finds no support either in policy or in the statute. Thus, I think that the Wisconsin courts may consider so much of the complaint as is addressed to the primary aspects of MEBA’s picketing.

       The remaining respondents are officers, agents, and representatives of MEBA, and what is said of it in this opinion applies equally to them.

       National Labor Relations Act, as amended, § 2 (11), 61 Stat. 138, 29 U. S. C. § 152 (11) (1964 ed.), gives a functional definition of the term “supervisor.”

       National Labor Relations Act, as amended, §2 (3), 61 Stat. 137, 29 U. S. C. § 152 (3) (1964 ed.), provides in relevant part that the “term ‘employee’ . . . shall not include . . . any individual employed as a supervisor

       National Labor Relations Act, as amended, § 9, 61 Stat. 143, 29 U. S. C. § 159 (1964 ed.), pertinently provides in subsection (c) that petitions may be entertained and elections ordered to determine “the representative defined in subsection (a) of this section”; and subsection (a) pertinently provides that “[Representatives designated or selected ... by the majority of the employees in a unit . . . shall be the exclusive representatives of all the employees in such unit” for collective bargaining purposes.

       In relevant part the Board’s letter stated that as the “appeal makes no affirmative claim that a majority of the 'employees’ as distinguished from 'supervisors’ are sought to be represented in an appropriate unit and as a unit of supervisors is otherwise inappropriate, no question concerning representation in an appropriate unit exists.” While this pronouncement could be clearer, the parties do not dispute that it affirms or refuses to disturb the Regional Director’s explicit finding.

       National Labor Relations Act, as amended, §8 (b)(4)(B), 73 Stat. 542, 29 U. S. C. § 158 (b)(4)(B) (1964 ed.), provides in relevant part that it shall be an unfair labor practice for a labor organization or its agents:
      “ (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to . . . transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services . . . where ... an object thereof is—
      “(B) forcing or requiring any person to cease . . . handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless . . . certified .... Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.”

       The letter from the General Counsel's office stated in part: “[T]he evidence revealed that the picketing by MEBA at the common situs herein conformed to Moore Dry Dock standards . . . . Furthermore, MEBA's activity at other sites did not evince an unlawful object on the part of the Union inconsistent with the ostensibly primary object of the picketing at the situs of the dispute.”

       National Labor Relations Act, as amended, §8 (b)(7), 73 Stat. 544, 29 U. S. C. § 158 (b) (7) (1964 ed.), provides, excluding portions and exceptions not here relevant, that it is an unfair labor practice for a labor organization or its agents to picket any employer with an object of forcing “an -employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization” as their bargaining agent unless such labor organization is certified or seeks certification.

       A second, clarifying letter from the General Counsel’s office stated in part: “Our disposition of this case was predicated solelj' on our conclusion that the supervisory status of the licensed engineers precluded a finding that the Union’s picketing and other activity was for an object proscribed by Section 8 (b) (7) of the Act.”

       See Vogt, Inc. v. International Brotherhood, 270 Wis. 321a, 74 N. W. 2d 749, aff’d sub nom. Teamsters Union v. Vogt, Inc., 354 U. S. 284.

       National Labor Relations Act, as amended, § 7, 61 Stat. 140, 29 U. S. C. § 157 (1964 eel.), provides that “employees” shall have the right to engage in, or in general to refrain from, the mentioned activities.

       Summarizing the impact of the new measure on supervisory personnel, the Senate Report stated: “[T]he bill does not prevent anyone from organizing nor does it prohibit any employer from recognizing a union of foremen. It merely relieves employers who are subject to the national act free from any compulsion by this National Board or any local agency to accord to the front line of management the anomalous status of employees.” S. Rep. No. 105, 80th Cong., 1st Sess., p. 5. See also H. R. Rep. No. 245, 80th Cong., 1st Sess., pp. 13-17.

       By contrast, sometimes offensive conduct may be restrained by a state remedy that has no impact at all on related activity arguably within the Board’s exclusive province. See, e. g., Youngdahl v. Rainfair, Inc., 355 U. S. 131, upholding a state injunction against violence but setting it aside so far as it reached peaceful picketing.

       Aside from the §14 (a) line of argument already answered, we do not find at all apposite Teamsters Union v. Morton, 377 U. S. 252, holding a State powerless to award damages against a striking union for requesting a secondary employer to cease business with the struck employer. While in Morton preemption was premised on the fact that the secondary pressure did not come within the ban fixed by § 8 (b) (4) (B) and adopted by § 303 (a) of the Labor Management Relations Act, as amended, 73 Stat. 545, 29 U. S. C. § 187 (a) (1964 ed.), the conduct there occurred in the context of a peaceful economic strike by employees, a sphere in which the federal interest is especially pervasive. By contrast the present case, involving secondary pressure wielded to impose representation on unwilling supervisors, finds itself at that far comer of labor law where, as we have shown, federal occupation is at a minimum and state power at a peak.

        Hattiesburg Unions v. Broome Co., 377 U. S. 126, cited to us by MEBA, may illustrate this concern. There, the union’s organizational picketing at a common situs was enjoined by the State because its objective violated state law. In urging that the picketing’s possible violation of § 8 (b) (4) (B) preempted state authority, the Solicitor General suggested that it may also have been “lawful picketing” outside the State’s reach so far as not prohibited by the section. Memorandum, p. 6, n. 7. See also Michelman, State Power To Govern Concerted Employee Activities, 74 Harv. L. Rev. 641, 652-653 (1961) (citations omitted): “[A] state generally may not enjoin conduct thought to be a federal unfair labor practice. The reason is that, despite the state court’s contrary belief, the conduct may, as a matter of federal law, be privileged.”

       In Marine Engineers v. Interlake Co., 370 U. S. 173, we overturned a state ban on picketing arguably violating § 8 (b) (4) (B); and to the counterargument that the picketing group was not a “labor organization” subject to § 8 (b), we pointed out that this decision was for the Board. Unlike the present case, in Interlake the § 8 (b) (4)(B) remedy had not been tried; but quite apart from that consideration, had the Board held the union a “labor organization” and also held those being organized to be “employees” — another point not recently decided by the Board — complete relief against the picketing might well have been available under § 8 (b) (7). See 370 U. S., at 182-183.

      It could be argued that this assumption supports a scope of state regulation no broader than that ordinarily provided by the federal Act. It is not necessary to resolve that argument here.


author: Per Curiam.

text:
    UNITED STATES v. HUCK MANUFACTURING CO. et al.
    No. 8.
    Argued November 15, 1965.
    Decided December 6, 1965.

      Assistant Attorney General Turner argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Frank Goodman and Robert B. Hummel.

      Dennis G. Lyons and Thomas W. Pomeroy, Jr., argued the cause for appellees. With them on the brief were Paul A. Porter, William L. McGovern, John A. Blair, S. K. McCune and W. Walter Braham, Jr.

   Per Curiam.

Judgment affirmed by an equally divided Court.

Mr. Justice Fortas took no part in the consideration or decision of this case.


text:
    ROGERS et al. v. PAUL et al.
    No. 532.
    Decided December 6, 1965.

      Jack Greenberg, James M. Nabrit III, Derrick A. Bell, Jr., and George Howard, Jr., for petitioners.

      John P. Woods for respondents.
   Per Curiam.

The petition for writ of certiorari to the Court of Appeals for the Eighth Circuit and the motion to add parties are granted. The judgment of that court is vacated and the case is remanded to the District Court for the Western District of Arkansas for further proceedings consistent with this opinion.

1. This class action to desegregate the public high schools of Fort Smith, Arkansas, was commenced several years ago in the name of two Negro students. One of the students has since graduated and the other has entered the last high school grade. A motion to add parties is made on behalf of two additional Negro students. It is alleged therein, and not denied by respondents, that these students are in the 10th and 11th grades of high school and that they are members of the class represented, seeking the same relief for all the reasons offered by the original party plaintiffs. That motion is accordingly granted.

2. The desegregation plan adopted in 1957 desegregates only one grade a year and the 10th, 11th and 12th high school grades are still segregated. The students who are petitioners here were assigned to a Negro high school on the basis of their race. Those assignments are constitutionally forbidden not only for the reasons stated in Brown v. Board of Education, 347 U. S. 483, but also because petitioners are thereby prevented from taking certain courses offered only at another high school limited to white students, see Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 U. S. 631; Sweatt v. Painter, 339 U. S. 629. Petitioners are entitled to immediate relief; we have emphasized that “[d]elays in desegregating school systems are no longer tolerable.” Bradley v. School Board, ante, p. 103, at 105. Pending the desegregation of the public high schools of Fort Smith according to a general plan consistent with this principle, petitioners and those similarly-situated shall be allowed immediate transfer to the high school that has the more extensive curriculum and from which they are excluded because of their race.

3. From the outset of these proceedings petitioners have challenged an alleged policy of respondents of allocating faculty on a racial basis. The District Court took the view that petitioners were without standing to challenge the alleged policy, and accordingly refused to permit any inquiry into the matter. The Court of Appeals sustained this ruling, holding that only students presently in desegregated grades would have the standing to make that challenge. 345 F. 2d 117, 125. We do not agree and remand for a prompt evidentiary hearing on this issue.

Even the Court of Appeals’ requirement for standing would be met on remand since petitioners’ transfer to the white high school would desegregate their grades to that limited extent. Moreover, we reject the Court of Appeals’ view of standing as being unduly restrictive. Two theories would give students not yet in desegregated grades sufficient interest to challenge racial allocation of faculty: (1) that racial allocation of faculty denies them equality of educational opportunity without regard to segregation of pupils; and (2) that it renders inadequate an otherwise constitutional pupil desegregation plan soon to be applied to their grades. See Bradley v. School Board, supra. Petitioners plainly had standing to challenge racial allocation of faculty under the first theory and thus they were improperly denied a hearing on this issue'

Vacated and remanded.

Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice White and Mr. Justice Fortas would set the case down for argument and plenary consideration.

      The constitutional adequacy of the method chosen for assigning students to the schools for purpose of desegregating the lower grades is not before us, and the method contemplated for the high schools is not part of the record.


text:
    GEORGE F. HAZELWOOD CO. v. PITSENBARGER, ASSESSOR.
    No. 567.
    Decided December 6, 1965.

      Joseph A. Blundon for appellant.

      C. Donald Robertson, Attorney General of West Virginia, and George H. Mitchell and J. Patrick Bower, Assistant Attorneys General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    MARCHEV et ux. v. TOWNSHIP OF LIVINGSTON.
    No. 571.
    Decided December 6, 1965.

      James T. Dowd for appellants.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    CALIFORNIA DEMOCRATIC COUNCIL et al. v. ARNEBERGH et al.
    No. 583.
    Decided December 6, 1965.

      Leon M. Cooper for appellants.

      Thomas C. Lynch, Attorney General of California, Charles A. Barrett, Assistant Attorney General, Sanford N. Gruskin, Deputy Attorney General, Harold W. Kennedy, Roger Amebergh, pro se, and Bourke Jones for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    NEHRING v. GERRITY.
    No. 614.
    Decided December 6, 1965.
   Per Curiam.

The appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    MISANI v. ORTHO PHARMACEUTICAL CORP. et al.
    No. 595.
    Decided December 6, 1965.
    Appellant pro se.

      Clyde A. Szuch and Stanley C. Smoyer for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is denied.


text:
    508 CHESTNUT, INC. v. CITY OF ST. LOUIS et al.
    No. 605.
    Decided December 6, 1965.

      Morris A. Shenker and Bernard J. Mellman for appellant.

      Thomas F. McGuire and Aubrey B. Hamilton for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


author: Per Curiam. Mr. Justice Douglas

text:
    SOLOMON v. SOUTH CAROLINA.
    No. 588.
    Decided December 6, 1965.

      Ellis Lyons for appellant.

      Daniel R. McLeod, Attorney General of South Carolina, and E. N. Brandon, Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.

Mr. Justice Douglas

is of the opinion that the judgment should be reversed on the authority of Sherbert v. Verner, 374 U. S. 398. And see McGowan v. Maryland, 366 U. S. 420, 561, 577 (dissenting opinion).

Mr. Justice Brennan and Mr. Justice Stewart are of the opinion that probable jurisdiction should be noted.