author: Mr. Chief Justice Warren

text:
    INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFL-CIO, LOCAL 283 v. SCOFIELD et al.
    No. 18.
    Argued October 20, 1965.
    Decided December 7, 1965

      Joseph L. Rauh, Jr., argued the cause for petitioners in both cases. With him on the briefs were John Silard, Daniel H. Pollitt, Stephen I. Schlossberg, Eugene Gress-man, Harold A. Katz, Irving M. Friedman, Philip L. Padden, William S. Zeman and Benjamin Rubenstein.

      Solicitor General Marshall argued the cause for respondents in both cases. With him on the brief for the National Labor Relations Board were Ralph S. Spritzer, Arnold Ordman, Dominick L. Manoli and Norton J. Come.

       Together with No. 53, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Local 133, UAW, AFL-CIO v. Fafnir Bearing Co. et al., on certiorari to the United States Court of Appeals for the Second Circuit.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

The two cases before us present converse sides of a single question — whether parties who are wholly successful in unfair labor practice proceedings before the National Labor Relations Board have a right to intervene in the Court of Appeals review proceedings.

In No. 18 (Scofield), the Union Local was charged by four individual employees with violations of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U. S. C. § 151 et seq. (1964 ed.), for fining certain Union members for exceeding incentive pay ceilings set by the Union. The General Counsel of the Board issued a complaint. After a full hearing, the Board dismissed the complaint, 145 N. L. R. B. 1097. The individual employees then sought review in the Seventh Circuit. The General Counsel filed an answer supporting the decision. At this point, the Union file.d a timely motion of intervention, alleging that it would be directly affected should the appellate court set aside the Board’s decision and direct the entry of a remedial order against it. Neither the individual employees nor the Board opposed intervention. A division of the Seventh Circuit denied the motion to intervene, but authorized the Union to file a brief as amicus curiae without leave to participate in oral argument. The Union sought review here, and we granted certiorari to review the denial of intervention because of the importance of the issue and the conflict among the courts of appeals, 379 U. S. 959. Further proceedings were stayed pending the completion of our review.

In No. 53 (Fajnir), the Local filed unfair labor practice charges against the Fafnir Bearing Company. The charging party alleged that the company had violated its statutory bargaining obligation by refusing to permit the contracting Union to conduct its own time studies of job operations in the plant. The Union allegedly needed to conduct these studies to ascertain whether it should proceed to arbitration. ' The General Counsel issued a complaint, a hearing was held, and the Board entered a cease- and-desist order against the company, 146 N. L. R. B. 1582. The company petitioned for review in the Second Circuit, and the Board filed a cross-petition for enforcement. The Union — -the successful party before the Board — moved to intervene, alleging numerous grounds in support. Both the company and the Board opposed intervention. The Second Circuit denied the motion, although cognizant of the difficulties of the problem, and authorized the Union to file an amicus brief. 339 F. 2d 801. We granted certiorari, 380 U. S. 950, and consolidated Fajnir with Scofield in order to consider both facets of the intervention problem.

We hold that both the successful charged party (in Scofield) and the successful charging party (in Fajnir) have a right to intervene in the Court of Appeals proceeding which reviews or enforces Labor Board orders. We think that Congress intended to confer intervention rights upon the successful party to the Labor Board proceedings in the court in which the unsuccessful party challenges the Board’s decision.

A threshold question concerns our jurisdiction to grant certiorari. Under § 1254 (1) of the Judicial Code, only a "party" to a case in the Court of Appeals may seek review here. In both these cases, the Union seeking certiorari was denied intervention and relegated to the status of an amicus curiae. Because an amicus is not a "party" to the case, it would not have been entitled to file a petition to review a judgment on the merits by the Court of Appeals, Ex parte Leaf Tobacco Board, 222 U. S. 578, 581; Ex parte Cutting, 94 U. S. 14, 20-22. In view of our decision herein, we think that § 1254 (1) permits us to review the orders denying intervention. See Railroad Trainmen v. Baltimore & O. R. Co., 331 U. S. 519.

Congress has made a careful adjustment of the individual and administrative interests throughout the course of litigation over a labor dispute. The Labor Act does not, however, provide explicitly for intervention at the appellate court level. Section 10 (f) of the Act, 61 Stat. 148, as amended, 29 U. S. C. § 160 (f) (1964 ed.), serves as our guide, even though it is silent on the intervention problem. It states, in pertinent part:

“Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set. aside.”

Similarly, no specific standards govern the propriety of intervention in Labor Board review proceedings. The Rules of the Courts of Appeals typically provide: “A person desiring to intervene in a case where the applicable statute does not provide for intervention shall file with the court and serve upon all parties a motion for leave to intervene.”

Lacking a clear directive on the subject, we look to the statutory design of the Act. Cf. Scripps-Howard Radio v. Commission, 316 U. S. 4, 11. Of course, in considering the propriety of intervention in the courts of appeals, our discussion is limited to Labor Board review proceedings. Federal agencies are not fungibles for intervention purposes — Congress has treated the matter with attention to the particular statutory scheme and agency.

In some instances, the words of the statute themselves elicit an answer. When the Board enters a final order against the charged party, it is clear that the phrase “[a]ny person aggrieved” in § 10 (f) enables him to seek immediate review in the appropriate Court of Appeals. Alternatively, if the Board determines that a complaint should be dismissed, the charging party has a statutory right to review as a “person aggrieved.” A hybrid situation occurs when the Board dismisses certain portions of the complaint and issues an order on others. As to that portion which results in a remedial order against him, the charged party is aggrieved; likewise, the charging party is aggrieved with respect to the portion of the decision dismissing the complaint. Each one is a “party” in a consolidated appeal, and has invariably been granted leave to intervene with regard to the portion of the order on which the Board found in his favor.

Scofield serves as an example of another variant in review proceedings. The unsuccessful charging party to the Board proceedings petitioned for review, and the successful charged party wished to intervene. The vast majority of the courts have recognized his right to do so. Recognition of intervention rights in this instance is in complete accord with the statements in Ford Motor Co. v. Labor Board, 305 U. S. 364, 369, 373, that:

“While § 10 (f) assures to any aggrieved person opportunity to contest the Board's order, it does not require an unnecessary duplication of proceedings. The aim of the Act is to attain simplicity and directness both in the administrative procedure and on judicial review. . . .
“. . . The jurisdiction to review the orders of the Labor Relations Board is vested in a court with equity powers, and while the court must act within the bounds of the statute and without intruding upon the administrative province, it may adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of the judicial review is consonant with that of the administrative proceeding itself, — -to secure a just result with a minimum of technical requirements. . .

To allow intervention to the charged party in the first appellate review proceeding is to avoid “unnecessary duplication of proceedings,” and to adhere to the goal of obtaining “a just result with a minimum of technical requirements.” Analysis of the Act’s machinery in practice so indicates. A decision of the reviewing court to set aside a Board order dismissing a complaint has the effect of returning the case to the Board for further proceedings. This normally results in the Board’s entering an order against the charged party. From this remedial order, as noted, the charged party is aggrieved and may seek review. Judicial time and energy is then expended in pursuit of issues already resolved in the first appeal. Moreover, the second appeal could lead to undesirable “circuit shopping” and useless proliferation of judicial effort. Under § 10 (f), an aggrieved person has the option pf obtaining review either in the circuit in which he maintains his residence or place of business or in the Court of Appeals for the District of Columbia Circuit. In the second appellate proceeding, he could obtain a hearing in the circuit which did not originally decide the validity of the Board's dismissal of the complaint. Permitting intervention in the first review thus centralizes the controversy and limits it to a single decision, accelerating final resolution. This is in accord with one of the objectives of the Labor Act — the prompt determination of labor disputes.

Permitting intervention also insures fairness to the would-be intervenor. If intervention is permitted, the parties to the Board proceedings are able to present their arguments on the issues to a reviewing court which has not crystallized its views. To be sure, if intervention is denied in the initial review proceeding, the charged party would not be bound by the decision under technical res judicata rules. Still, the salient facts having been resolved and the legal problems answered in this initial review, subsequent litigation serves little practical value to the potential intervenor. In the second appellate proceeding, the Court of Appeals would almost invariably defer to the initial decision as a matter of stare decisis or of comity. See, e. g., Siegel Co. v. Labor Board, 340 F. 2d 309; Zdanok v. Glidden Co., 327 F. 2d 944, 949-950, cert. denied, 377 U. S. 934.

Allowing intervention does not affect the discretionary-review powers of this Court. One occupying the status of intervenor in the Court of Appeals proceeding may seek certiorari from the decision there, Steelworkers v. Labor Board, 373 U. S. 908, 376 U. S. 492; Mine Workers v. Eagle-Picher Co., 325 U. S. 335, 338-339. Denial of intervention in the initial review proceedings — and the attendant remand to the Board and second appeal to the Court of Appeals — only results in a delay of the time when the disaffected party may seek review here. Should we decide to grant certiorari, the first review would seem the more propitious time, since all the parties are then before the Court and the dispute has been fully developed without inconvenience to either private party. Steelworkers v. Labor Board, 376 U. S. 492, affords an apt illustration. The Court of Appeals had permitted intervention to the charged party who sought review from the adverse decision there. We reversed unanimously. The Board itself had not sought certiorari because “the Solicitor General concluded that other cases were entitled to priority in selecting the limited number of cases which the government [could] properly ask this Court to review.” Memorandum for the NLRB, p. 2, filed in connection with the petition for certiorari, No. 89, October Term, 1963. Had the charged party been denied intervention in the Court of Appeals, the decision of the Government not to apply for certiorari — unrelated to the merits of the cause — would have unnecessarily postponed resolution on that important issue.

In fact, the Labor Board itself agrees that intervention by charged parties will not impair effective discharge of its duties and may well promote the public interest. The rights typically secured to an intervenor in a reviewing court — to participate in designating the record, to participate in prehearing conferences preparatory to simplification of the issues, to file a brief, to engage in oral argument, to petition for rehearing in the appellate court or to this Court for certiorari — are not productive of delay nor do they cause complications in the appellate courts. Appellate records in Labor Board cases are generally complete, and whatever material the charged party may see fit to add to the appendix will not affect the burden in preparation. Participation in defining the issues before the court guarantees that all relevant material is brought to its attention, and makes the briefs on the merits more meaningful. The charged party is usually accorded the right as an amicus to file a brief on the merits even if denied intervention. Participation in oral argument does not necessarily enlarge the total time allocated, since parties aligned on the same side are usually required to share the time. And, as noted, petitioning for certiorari at this time has the salutary effect of insuring prompt adjudication. Further, if a charged party permitted to intervene decides to acquiesce in the decision or if certiorari is denied by this Court, it is likely that he will then stipulate to the entry of an order against him. This would obviate the need for supplemental agency or court proceedings. On the other hand, an amicus — with- the exception of the right to file a brief— might be unable adequately to present all the relevant data to the court.

Finally, an element of fortuity would be injected by the denial of intervention to a successful party in the Board proceedings. When the charged party loses before the Board, he is accorded a statutory right to immediate review and may seek or oppose this Court’s ultimate review of the case. If he prevails at the agency level, however, denial of intervention deprives him of the rights accorded a losing party, even though the issue before the reviewing court is identical — whether a remedial order should have been entered against the charged party. These considerations lead us to the assumption that Congress would not intend, without clearly expressing a view to the contrary, that a party should suffer by his own success before the agency.

Additionally, helpful analogies may be found in the Judicial Review Act of 1950, governing intervention in the Courts of Appeals by private parties directly affected by agency orders, and in the Federal Rules of Civil Procedure. We take these provisions to mean that Congress has exhibited a concern that interested private parties be given a right to intervene and participate in the review proceedings involving the specified agency and its orders.

II.

The problem of whether intervention should be granted to the successful charging party to the Labor Board proceedings presents considerations somewhat distinct from the case of the intervening charged party. Resolution of the problem is no easy matter, and it is understandable that the courts have divided on the issue. Still, we believe that Congress intended intervention rights to obtain.

The Board opposes intervention in Fafnir. A charged party may incur a liability on account of an order being entered against him. Fairness to him thus requires that he be allowed to intervene to preclude that possibility. On the other hand, the Board reasons, the charging party stands only to become a beneficiary of an order entered. As such, he is but another member of the public whose interests the Board is designed to serve. The Labor Board is said to be the custodian of the “public interest,” to the exclusion of the so-called “private interests” at stake. Support for this view is claimed to be found in our decision in Amalgamated Util. Workers v. Consolidated Edison Co., 309 U. S. 261 (1940). Also, the Board fears that enabling the intervenor to petition for certio-rari from an adverse circuit decision will be inimical to the public interest. We disagree.

In prior decisions, this Court has observed that the Labor Act recognizes the existence of private rights within the statutory scheme. These cases have, to be sure, emphasized the “public interest” factor. To employ the rhetoric of “public interest,” however, is not to imply that the public right excludes recognition of parochial private interests. A perusal of the statutory scheme and of the Board’s Rules and Regulations is illustrative.

The statutory machinery begins with the filing of an unfair labor practice charge by a private person, § 10 (b), 61 Stat. 146; see also, 24 Fed. Reg. 9102 (1959), 29 CFR § 102.9 (1965). When the General Counsel issues a complaint and the proceeding reaches the adjudicative stage, the course the hearing will take is in the agency’s control, but the charging party is accorded formal recognition: he participates in the hearings as a “party”; he may call witnesses and cross-examine others, may file exceptions to any order of the trial examiner, and may file a petition for reconsideration to a Board order, 28 Fed. Reg. 7973 (1963), as amended, 29 CFR § 102.46 (1965). Of course, if the Board dismisses the complaint, he can obtain review as a person aggrieved, which serves the “public interest” by guaranteeing that the Board interpretation of the relevant provisions accords with the intent of Congress.

And that the charging party may have vital “private rights” in the Board proceeding is clear in this very case, which also involves, potentially, a breach of the parties’ collective bargaining agreement. Under oür decisions in the Steelworkers trilogy, 363 U. S. 564, 574, 593, and Carey v. Westinghouse Corp., 375 U. S. 261, the Union could take whatever contractual claim it had to arbitration and from there to a federal court. And while it is true that the rights and duties under § 301 (a) of the Labor Act, 61 Stat. 156, are not coextensive with those redressed in Labor Board proceedings, a determination by an appellate court that the Union has no statutory right to conduct its own time studies will surely have an impact upon a later decision by an arbitrator or an appellate court under § 301 (a) on the contractual issue.

In short, we think that the statutory pattern of the Labor Act does not dichotomize “public” as opposed to “private” interests. Rather, the two interblend in the intricate statutory scheme. Nor do we think that our holding in Amalgamated Util. Workers, 309 U. S. 261, casts doubt on these notions. The Court there held that private parties who initiated unfair labor practice charges may not prosecute a contempt action against the charged party in the court which enforces the Labor Board order. In the same case, the private parties had been permitted to intervene in the Court of Appeals when the merits of the Board’s decision were at stake, 309 U. S., at 263. We find nothing inconsistent in denying the right of a private party to institute a contempt proceeding — where the Board’s expertness in achieving compliance with orders is challenged — and, on the other hand, in permitting intervention in a proceeding already in the court for decision. When the court is to rule on the merits of the Board’s order, the Act supports the view that it is the court and not the agency which will define the public interest, see § 10 (d), 49 Stat. 454, Ford Motor Co. v. Labor Board, 305 U. S. 364.

The Board also argues that permitting intervention will adversely affect its tactical or budgetary decision not to bring a case here for review. But the opportunity is open to the Board to advise this Court whether a case that the intervening charging party brings here is an appropriate vehicle to raise important issues. And Congress has entrusted to this Court, rather than the Labor Board, discretionary jurisdiction to review cases decided by the Courts of Appeals.

Many of the considerations which favor intervention in Scofield are also pertinent here. Of special note is the capriciousness we would have to ascribe to Congress in refusing to afford the successful party to a Labor Board proceeding an opportunity tantamount to that of the unsuccessful party in persuading an appellate court. The charging party, like the charged party, should not be prejudiced by his success before the agency. Accordingly, we reverse both cases and remand them to the respective courts for further proceedings.

It is so ordered.

       Section 1254 (1), 28 U. S. C. § 1254 (1) (1964 ed.), provides: “Cases in the courts of appeals may be reviewed by the Supreme Court . . . :
      "(1) By writ of certiorari granted upon the petition of any party to any civil . . . case, before or after rendition of judgment or decree.”

       Second Circuit Rule 13 (f); Seventh Circuit Rule 14(f). The other circuits which provide for intervention have substantively identical rules: First Circuit Rule 16 (6); Third Circuit Rule 18 (6); Fourth Circuit Rule 27 (6); Sixth Circuit Rule 13 (6); Eighth Circuit Rule 27 (f); Ninth Circuit Rule 34 (6); Tenth Circuit Rule 34 (6); District of Columbia Circuit Rule 38 (f).

        Darlington Mfg. Co. v. Labor Board, 325 F. 2d 682 (C. A. 4th Cir.), vacated and remanded on other grounds, sub nom. Textile Workers v. Darlington Co., 380 U. S. 263; Industrial Union of

        Marine & Shipbuilding Workers v. Labor Board, 320 F. 2d 615 (C. A. 3d Cir.); Labor Board v. Wooster Div. of Borg-Warner Corp., 236 F. 2d 898 (C. A. 6th Cir.); see also American Newspaper Publishers Assn. v. Labor Board, 190 F. 2d 45 (C. A. 7th Cir.).

      . Carrier Corp. v. Labor Board, 311 F. 2d 135 (C. A. 2d Cir.), reversed on other grounds, sub nom. Steelworkers v. Labor Board, 376 U. S. 492; Local 1441, Retail Clerks International Assn. v. Labor Board, 326 F. 2d 663 (C. A. D. C. Cir.); Amalgamated Clothing Workers of America v. Labor Board, 324 F. 2d 228 (C. A. 2d Cir.); Minnesota Milk Co. v. Labor Board, 314 F. 2d 761 (C. A. 8th Cir.); Great Western Broadcasting Corp. v. Labor Board, 310 F. 2d 591 (C. A. 9th Cir.); Selby-Battersby & Co. v. Labor Board, 259 F. 2d 151 (C. A. 4th Cir.); Kovach v. Labor Board, 229 F. 2d 138 (C. A. 7th Cir.). Contra, Superior Derrick Corp. v. Labor Board, 273 F. 2d 891 (C. A. 5th Cir.), cert. denied, 364 U. S. 816; Amalgamated Meat Cutters v. Labor Board, 267 F. 2d 169 (C. A. 1st Cir.), cert. denied, 361 U. S. 863; Haleston Drug Stores, Inc. v. Labor Board, 190 F. 2d 1022 (C. A. 9th Cir.).

       There are, of course, cases in which the Court of Appeals will remand to the Board to take additional evidence or to reconsider the order in light of litigational developments. In these cases, there is a greater opportunity for the party originally victorious before the Board successfully to persuade it or the appellate court than in the case in which no additional evidence need be taken. Still, the considerations discussed herein strongly suggest the propriety of intervention in these cases as well, especially since, at the time a motion for leave to intervene is filed, the reviewing court will not be fully apprised of the issues involved in the case.
      Then, too, only 12 proceedings in which the Board had entered an order dismissing the complaint and the charging party appealed the dismissal in the Court of Appeals occurred during the 1964 fiscal year. See 29 NLRB Ann. Rep. 201, Table 19 (1964). In eight of these, the Board orders were affirmed in full. Ibid. The small caseload gives further support for the notion that the courts of appeals, and the Board, will not be disadvantaged by allowing intervention to the charged party.

       In the rare instance in which the reviewing court does not abide by these principles, an even more aggravated situation could result. In the second review proceeding, if the now-successful charging party is denied intervention and the appellate court takes a different view of the applicable law, the charging party might later have the opportunity to seek review again as a “person aggrieved.” Thus, three or even more review proceedings could be engendered out of the failure to permit intervention at the most convenient stage — the initial review proceeding. Such an incongruous result should not be sanctioned in light of our statement in Ford Motor Co. v. Labor

        Board, 305 U. S. 364, 370, that although “there are two proceedings, separately carried on the docket, they were essentially one so far as any question as to the legality of the Board’s order was concerned.”

       The Labor Board may also adversely affect the rights of the private parties in other instances. For example, the Board may decide a case and later re-evaluate its position at a time when that case is before an appellate court. The General Counsel, in such a situation, cannot be expected wholeheartedly to attempt to convince an appellate court of the correctness of a doctrine which the Board itself has abandoned.

       First Circuit Rule 28 (3); Second Circuit Rule 23 (c); Third Circuit Rule 31 (3); Fourth Circuit Rule 15 (3); Fifth Circuit Rule 25 (3); Sixth Circuit Rule 20 (3); Seventh Circuit Rule 21 (b); Eighth Circuit Rule 13 (c); Ninth Circuit Rule 20 (3); Tenth Circuit Rule 20 (3); District of Columbia Circuit Rule 19 (c).
      Additionally, all the circuits have rules which permit the court to increase the time for oral argument upon a showing of good cause.

       Review of commission orders in general is governed by the provisions of the Judicial Review Act of 1950 (the Hobbs Act), 64 Stat. 1129, 5 U. S. C. §§ 1031-1042 (1964 ed.). The provision regarding appellate court intervention, 5 U. S. C. § 1038, provides as follows:
      “The Attorney General shall be responsible for and have charge and control of the interests of the Government in all court proceedings authorized by this chapter. The agency, and any party or parties in interest in the proceeding before the agency whose interests will be affected if an order of the agency is or is not enjoined, set aside, or suspended, may appear as parties thereto of their own motion and as of right, and be represented by counsel in any proceeding to review such order. . . .”

       The Federal Rules of Civil Procedure, of course, apply only in the federal district courts. Still, the policies underlying intervention may be applicable in appellate courts. Under Rule 24 (a) (2) or Rule 24 (b) (2), we think the charged party would be entitled to intervene. See Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 505-506; Textile Workers Union of America v. Allendale Co., 96 U. S. App. D. C. 401, 403-404, 226 F. 2d 765, 767-768.
      The Advisory Panel on Labor-Management Relations Law issued a report, S. Doc. No. 81, 86th Cong., 2d Sess. (1960), which contained a statement of policy that “any party to NLRB proceedings should be allowed to intervene in the appellate proceedings,” p. 17.

       The cases which have permitted intervention usually have not discussed the question, e. g., Labor Board v. Johnson, 322 F. 2d 216 (C. A. 6th Cir.); Kearney & Trecker Corp. v. Labor Board, 210 F. 2d 852 (C. A. 7th Cir.), cert. denied, sub nom. Kearney-Trecker Employees, UAW v. Labor Board, 348 U. S. 824; West Texas Utilities Co. v. Labor Board, 184 F. 2d 233 (C. A. D. C. Cir.), cert. denied, 341 U. S. 939. Contra, Labor Board v. Retail Clerks Assn., 243 F. 2d 777, 783 (C. A. 9th Cir.); Stewart Die Casting Corp. v. Labor Board, 132 F. 2d 801 (C. A. 7th Cir.); Aluminum Ore Co. v. Labor Board, 131 F. 2d 485, 488 (C. A. 7th Cir.).

       Cf. Hart and Wechsler, The Federal Courts and The Federal System, 326 (1953):
      "Haven’t you noticed how frequently the protected groups in an administrative program pay for their protection by a sacrifice of procedural and litigating rights? The agency becomes their champion and they stand or fall by it. Does this phenomenon reflect a disregard or a recognition of the equities of the situation?”
      See also Jaffe, The Public Right Dogma in Labor Board Cases, 59 Harv. L. Rev. 720 (1946).

        Labor Board v. Fansteel Metallurgical Corp., 306 U. S. 240, 258; Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194; Nathanson v. Labor Board, 344 U. S. 25, 27; Smith v. Evening News Assn., 371 U. S. 195. See Jaffe, The Individual Right to Initiate Administrative Process, 25 Iowa L. Rev. 485, 528-531 (1940).

       The NLRB Rules and Regulations and Statements of Procedure, 29 CFR § 102.8 (1965), afford the charging party this status. The section provides as follows:
      “The term 'party’ as used herein shall mean . . . any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any Board proceeding, including, without limitation, any person filing a charge or petition under the act, any person named as respondent, as employer, or as party to a contract in any proceeding under the act . . . .” (Emphasis added.)

       For an analysis of the rights of a charging party before the Board, see Comment, 32 U. Chi. L. Rev. 786 (1965). Of course, the considerations involved in determining whether the charging party has certain rights before the Board are not dispositive on the question of appellate intervention. In the first place, the need for centralized control over the agency hearings and the standards under which they operate is much greater at the administrative than the appellate level, where perforce an adequate record has been made for adjudication. Also, the statistics of the NLRB reveal that over 97% of the unfair labor practice charges are resolved before the circuit court has entered a decree. 29 NLRB Ann. Rep. 178-179, Table 7 (1964). This winnowing process diminishes once a case is lodged in the circuit court and falls within our supervisory power over the federal courts. Then, too, manpower and budgetary considerations are of great concern at the administrative level. These factors are not nearly as great when a labor dispute reaches the appellate courts since the Board will invariably appear to defend its order.

       In the Board’s opinion in Fafnir, the charging party’s interests were referred to a dozen times as a statutory right of the "private party,” 146 N. L. R. B., at 1585-1587.

       See Retail Clerks Local 137 v. Food Employers Council, Inc., 351 F. 2d 525.

       The Court placed great weight upon the language and legislative history behind § 10 (a), 49 Stat. 453, as it read at that time:
      “The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall he exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.” (Emphasis added.)
      The italicized portion of § 10 (a) was deleted in the Taft-Hartley amendments to the Wagner Act in 1947, when Congress added the union unfair labor practice provisions and enacted § 301 (a). While it is true that the Labor Board does not confer a private administrative remedy, it is equally true that, since 1947, it serves substantially as an organ for adjudicating private disputes. See Report of the Advisory Panel on Labor-Management Relations Law, supra, n. 10, p. 5.

       The Board also claims that the charging party, if permitted to intervene, will be able to thwart proposed settlements between the Board and the charged party when the case is in the appellate court. Nothing in the record indicates that this will be the consequence of allowing intervention and we intimate no view on the question.

       As in the case of the charged party, disallowing intervention could lead to duplicity in appellate review, “circuit shopping,” unfairness to the successful party to the Board proceedings, etc.


source: Caselaw Access Project

author: Mr. Justice Douglas Mr. Justice Harlan,

license: Public Domain

text:
    UNITED GAS IMPROVEMENT CO. et al. v. CALLERY PROPERTIES, INC., et al.
    No. 21.
    Argued October 18-19, 1965.
    Decided December 7, 1965

      Richard A. Solomon argued the cause for the Federal Power Commission. With him on the brief were Acting Solicitor General Spritzer, Howard E. Wahrenbrock, Robert L. Russell and Josephine H. Klein.

      William T. Coleman, Jr., argued the cause for United Gas Improvement Co. et al., petitioners in No. 21 and respondents in No. 26. With him on the briefs were Samuel Graff Miller, Richardson Dilworth, Harold E. Kohn, Bertram D. Moll and Vincent P. McDevitt.

      Kent H. Brown argued the cause for Public Service Commission of New York, petitioner in No. 22 and respondent in No. 26. With him on the briefs was Morton L. Simons.

      J. Evans Attwell argued the cause for Ocean Drilling & Exploration Co., petitioner in No. 26 and respondent in Nos. 21, 22 and 32. With him on the briefs were W. H. Drushel, Jr., J. A. O’Connor, Jr., and H. Y. Rowe.

      Herbert W. Varner argued the cause for Superior Oil Co. et al., respondents in Nos. 21, 22 and 32. With him on the brief was H. H. Hillyer, Jr.

      Richard F. Generelly argued the cause and filed a brief for Callery Properties, Inc., respondent in Nos. 21, 22 and 32.

      Paul W. Hicks argued the cause for Placid Oil Co. et al., respondents in Nos. 21, 22 and 26. With him on the brief were Robert W. Henderson and Thomas G. Crouch.

      H. H. Hillyer, Jr., filed a brief for J. R. Frankel et al., respondents in Nos. 21, 22 and 32.

       Together with No. 22, Public Service Commission of New York v. Cattery Properties, Inc., et al., No. 26, Ocean Drilling & Exploration Co. v. Federal Power Commission et al., and No. 32, Federal Power Commission v. Cattery Properties, Inc., et al., also on certiorari to the same court.

   Mr. Justice Douglas

delivered the opinion of the Court.

The Federal Power Commission in 1958-1959 granted unconditional certificates of public convenience and necessity to numerous producers of gas in south Louisiana, the sales contracts of the producers calling for initial prices ranging from 21.4 cents to 23.8 cents per Mcf. After deliveries commenced under those contracts, consumer interests challenged the orders in various courts of appeals. The Court of Appeals for the Third Circuit sustained the Commission’s action (United Gas Improvement Co. v. Federal Power Comm’n, 269 F. 2d 865) but we vacated the judgment (Public Service Comm’n v. Federal Power Comm’n, 361 U. S. 195) for reconsideration in light of Atlantic Refining Co. v. Public Service Comm’n (CATCO), 360 U. S. 378; and the other courts of appeals did likewise.

The Commission thereupon instituted an area rate proceeding for south Louisiana and consolidated the remanded cases with that proceeding. 25 F. P. C. 942. It advised the producers of their potential obligation to refund any amounts eventually found to be inconsistent “with the requirements of the public interest and necessity” under § 7 of the Natural Gas Act, 52 Stat. 824, as amended, 15 U. S. C. § 717f. 27 F. P. C. 15. Later the Commission in the interest of expedition severed the present group of applications and set them for a hearing in a consolidated proceeding under § 7. 27 F. P. C. 482. At the end, the Commission imposed two conditions on the certificates granted in these cases. First, it provided that the producers commence service at 18.5 cents per Mcf., plus 1.5 cents tax reimbursement where applicable, a price that it found to be “in line” with prices for Commission-certificated sales of gas from the southern Louisiana production area under generally contemporaneous contracts, 30 F. P. C. 283, 288-289. Second, it provided that until just and reasonable area rates are determined for south Louisiana, or until July 1, 1967, whichever is earlier, the producers shall not file any increased rates above 23.55 cents, the level at which rate filings might trigger increased rates by other producers under the escalation provisions of their contracts with the pipeline companies here involved. 30 F. P. C. 283, 298.

In addition, the Commission ordered the producers to refund to their customers the amounts in excess of the proper initial price which they had already collected under the original certificate. 30 F. P. C. 283, 290.

On review the Court of Appeals held that the Commission erred in limiting producers to an initial “in-line” price without first canvassing evidence bearing on the question of what would be a just and reasonable price for the gas. It further held that the Commission had no power to place an upper limit on future rates that a producer might file. Finally, the Court of Appeals, while upholding the power of the Commission to order refunds, held that the measure of such refunds was not to be the difference between the “in-line” price and the original contract price, but between the latter and the just and reasonable price subsequently to be fixed. 335 F. 2d 1004. We granted certiorari, 380 U. S. 931. We reverse the Court of Appeals.

We think the Commission acted lawfully and responsibly, in line with our decision in the CATCO case where we held that it need not permit gas to be sold in the interstate market at the producer’s contract price, pending determination of just and reasonable rates under § 5, 52 Stat. 823, 15 U. S. C. § 717d. 360 U. S. 378, 388-391. Rather, we held that there is ample power under § 7 (e), to attach appropriate protective conditions. And see Federal Power Comm’n v. Hunt, 376 U. S. 515, 524-527. The fixing of an initial “in-line” price establishes a firm price at which a producer may operate, pending determination of a just and reasonable rate, without any contingent obligation to make refunds should a just and reasonable rate turn out to be lower than the “in-line” price. Consumer protection is afforded by keeping the “in-line” price at the level where substantial amounts of gas have been certificated to enter the market under other contemporaneous certificates, no longer subject to judicial review or in any way “suspect.” We believe the Commission can properly conclude under § 7 that adequate protection to the public interest requires as an interim measure that gas not enter the interstate market at prices higher than existing levels. To consider in this § 7 proceeding the mass of evidence relevant to the fixing of just and reasonable rates under § 5 might in practical effect render nugatory any effort to fix initial prices. We said in CATCO that § 7 procedures are designed “to hold the line awaiting adjudication of a just and reasonable rate” (360 U. S., at 392), and that “the inordinate delay” in § 5 proceedings (360 U. S., at 391) should not cripple them.

The second condition, which temporarily bars rate increases beyond 23.55 cents per Mcf., was likewise aimed at keeping the general price level relatively constant pending determination of the just and reasonable rate. We noted in Federal Power Comm’n v. Hunt, supra, at 524, that “a triggering of price rises often results from the out-of-line initial pricing of certificated gas” and that the possibility of refund does not afford sufficient protection. And see Federal Power Comm’n v. Texaco Inc., 377 U. S. 33, 42-43. We think, contrary to the Court of Appeals, that there was ample power under § 7 (e) for the Commission to attach these conditions for consumer protection during this interim period though the certificate was not a temporary one, as in Hunt, but a permanent one, as in CATCO and Federal Power Comm’n v. Texaco Inc., supra.

The “in-line” price of 18.5 cents is supported by the contract prices in the south Louisiana area that were not “suspect,” and the selection of 23.55 cents beyond which a price increase might trigger escalation reflects the Commission’s expertise.

We also conclude that the Commission’s refund order was allowable. We reject, as did the Court of Appeals below, the suggestion that the Commission lacked authority to order any refund. While the Commission “has no power to make reparation orders,” Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 618, its power to fix rates under § 5 being prospective only, Atlantic Refining Co. v. Public Service Comm’n, supra, at 389, it is not so restricted where its order, which never became final, has been overturned by a reviewing court. Here the original certificate orders were subject to judicial review; and judicial review at times results in the return of benefits received under the upset administrative order. See Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 200-201. An agency, like a court, can undo what is wrongfully done by virtue of its order. Under these circumstances, the Commission could properly conclude that the public interest required the producers to make refunds for the period in which they sold their gas at prices exceeding those properly determined to be in the public interest.

We think that the Commission could properly measure the refund by the difference between the rates charged and the “in-line” rates to which the original certificates should have been conditioned. The Court of Appeals would delay the payment of the refund until the “just and reasonable” rate could be determined. We have said elsewhere that it is the duty of the Commission, “where refunds are found due, to direct their payment at the earliest possible moment consistent with due process.” Federal Power Comm’n v. Tennessee Gas Transmission Co., 371 U. S. 145, 155. These excessive rates have been collected since 1958; under the circumstances, the Commission was not required to delay this refund further. And the imposition of interest on refunds is not an inappropriate means of preventing unjust enrichment. See Texaco, Inc. v. Federal Power Comm’n, 290 F. 2d 149, 157; Philip Carey Mfg. Co. v. Labor Board, 331 F. 2d 720, 729-731.

Reversed.

Mr. Justice Fortas took no part in the consideration or decision of these cases.

Mr. Justice Harlan,

concurring in part and dissenting in part.

While the Commission's expansive view of its powers seems to me largely defensible in the abstract, I believe its actual decision reveals error and unfairness in important respects.

I.

The price condition, alone of the three key prongs of the Commission’s order, can in my view be wholly sustained. The chief challenge to it stems from the exclusion in the § 7 hearing of a mass of cost and supply-demand evidence tendered by producers. Although the encompassing § 7 standard of public convenience and necessity encourages a broad inquiry, the Commission has given valid reasons for limiting itself to the in-line price for the time being. Area pricing ultimately aims to simplify proceedings under the statute, .but the transition to it is said to strain the Commission’s present resources for investigation. See Wisconsin v. FPC, 373 U. S. 294, 298-300, 313-314. The in-line price, comparatively easy to fix, provides a firm basis for producers, helps avoid unre-fundable initial overcharges, and exerts a downward pressure on price; at the same time, producers can file increases under § 4 with a six-month delay at most. The Commission has given a fair trial to cost evidence, and nothing in the offer of proof suggests a supply-demand crisis warranting court intervention with this administrative approach.

In locating the in-line price, the Commission has ignored a number of contemporaneous high-price contracts labeled “suspect” because then under review, disapproved, or deemed influenced by those under review or disapproved. Although the danger of using a crooked measuring rod demands some precaution, this blanket exclusion also chances some distortion in favor of an unduly low in-line price. In the main the producers have chosen not to brief this question, apparently under the misapprehension that the Government has not here sought to sustain the exclusion of these contracts or that the lower court’s failure to reach the question precluded this Court from doing so. But while the suspect order rule may by default be abided in this instance, I would not close the door to future arguments for a different solution of the dilemma.

A last troubling aspect of the in-line price derives from a critical and unusual circumstance: it, like the other conditions in this case, was imposed for the first time on remand, several years after an unconditioned permanent certificate had issued. Presumably for six months hence, producers will be compelled to sell at a price they might not have accepted when free to refuse; for all that appears, the price may even be below cost, let alone a fair profit. However, in general the producers apparently did not seek an option to cancel future sales if dissatisfied by the newly conditioned certificates, the six-month delay is both brief and familiar, and I cannot say the Commission did not have a legitimate interest in imposing the in-line price at the time it did.

II.

The price-increase moratorium also seems to me a measure not generally beyond the Commission’s grasp, but it should not be sustained on the record before us. Recognizing force in the contrary view of the Court of Appeals, I do not believe that § 4 must be read to bestow on producers an invincible right to raise prices subject only to a six-month delay and refund liability. Cf. FPC v. Texaco Inc., 377 U. S. 33; FPC v. Hunt, 376 U. S. 515. A freeze until 1967 is not permanent price-fixing, and in this interregnum between individual and area pricing, the hazard of irreversible price increases warrants imposing some brake. A lengthy moratorium — coupled with a refusal to consider cost or supply-demand figures in setting prices for the duration — might present a real risk of choking off supply, but such a case is not before us.

Nevertheless, a moratorium instituted on remand is a hazardous device at best, and the present one is simply not supported by evidence. Because the producers have no chance to refuse the certificates after commencing delivery, the ceiling may coerce sales at unfairly low prices. Yet while the present moratorium must be endured longer than the in-line price, at least it permits the producers to charge a markedly higher amount; and as the safety valve for a price explosion, the moratorium could be upheld. At this point, however, the Government’s argument fails for lack of proof that a price explosion is likely if increases rise above the moratorium figure. The Commission’s figure was not considered by its hearing examiner, who made no recommendation for a moratorium. The Commission report itself devotes no more than one conclusory sentence, qualified by a footnote, to the question of what specific price rise will trigger increases at large, 30 F. P. C., at 298; rather than amplifying, the Government brief merely contends that the point has not been adequately preserved under § 19 — a contention I do not accept. Several producers state that the Commission’s fear of triggering has not been realized although sales are currently being made by them at levels above the intended moratorium price.

III.

While agreeing that the Commission has power to order refunds in the case before us, I believe the measure of repayment it selected is illogical and harsh. On the initial question of power, it must be conceded that nothing in the statute provides for refunds when a sale has been approved without qualification; but approval in the present instances had not become final for want of judicial review, and an equitable power to order refunds may fairly be implied.

The measure of refunds is another matter. The Commission has now directed that the producers repay the difference between the amounts collected over four to six years and the figure it has now established as the original in-line price. Since the in-line price has been fixed without reference to cost evidence and falls below the opening levels set in the negotiated contracts, the producers may well be receiving less than cost, as some of them expressly claim; and this imposed revision downward of prices covers not six months but a period of years.

The obvious refund formula, implicated by the statute itself and adopted by the Court of Appeals, would call for repayment of all amounts collected in excess of the “just and reasonable” price; that price, measured under §§ 4 and 5, naturally takes due account of costs. The Government retorts that producers have no “right” to sell their gas for a “just and reasonable” price under the statute, a proposition perhaps true in the limited sense that the public convenience and necessity might yet exclude fair-profit sales by a uniquely high cost producer or in the face of a glutted market. No attempt is made, however, to class the present facts with such imaginable situations. Nor is advance exclusion from the interstate market so fearsome as an unexpected repricing of a completed sale depriving the seller of profit or costs.

On the present facts the Government has failed to point to any public interest overriding the potent claims of the producers to a fair return on their past four to six years of sales. Any triggering caused by the amounts previously charged has already spent its force and cannot be undone. Unconvincingly, the Government implies the producers may be comparatively well off with the present formula because it provides a final figure now and the “just and reasonable” price might prove to be below the in-line price; however, instant certainty as to past prices is no great gain since taxes and royalties have already been paid, and the chance that producers may get more than they deserve by following the in-line price is not a substitute for assuring them a fair return. About the only concrete advantage cited by the Government for the in-line price is that it speeds refunds to consumers. Assuming that a compromise cannot be reached as in other cases, elaborate cost data should become available in the next year or two with the completion of the southern Louisiana area rate proceeding. Consumers, who assuredly expected no refunds when they paid their gas bills as long ago as six years, certainly do not suffer seriously in waiting a bit longer for refunds that individually must be minute in most cases.

The incongruity of the Commission’s refund formula is well portrayed by considering what would have happened if the Commission had originally granted the certificates now thought proper by this Court. By accepting certificates conditioning sales at the in-line price, the producers could immediately have filed for increases, suffering at most a six-month delay. Even if the Commission’s moratorium survived, the ceiling during this four-to-six-year period would have been 23.55 cents rather than the 18.5-cent figure now imposed. Thus, even had the Commission not erred in the first instance in favor of the producers, they still could have collected payments well in excess of 18.5 cents subject only to the ultimate finding of a “just and reasonable” price now denied them by the Commission.

In line with the foregoing discussion, I would uphold the Commission’s decision fixing an in-line price, remand the case for further findings on the triggering price for a moratorium if the Commission wishes to pursue the point, and set aside the refund with leave to order repayments based on the “just and reasonable” price.

       See United Gas Improvement Co. v. Federal Power Comm’n, 283 F. 2d 817; Public Service Comm’n v. Federal Power Comm’n, 109 U. S. App. D. C. 292, 287 F. 2d 146; United Gas Improvement Co. v. Federal Power Comm’n, 287 F. 2d 159; United Gas Improvement Co. v. Federal Power Comm’n, 290 F. 2d 133; and United Gas Improvement Co. v. Federal Power Comm’n, 290 F. 2d 147.

       Section 7 (e) provides in part:
      “The Commission shall have the power to attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require.”

       In the early post-CATCO cases, the Commission apparently proceeded on a case-by-case basis, considering whatever evidence might have been presented. See, e. g., Continental Oil Co., 27 F. P. C. 96, 102-108. Experience convinced it that the minimal utility derived from cost and economic trend evidence was outweighed by the administrative burdens and delays its consideration inevitably produced. See Skelly Oil Co., 28 F. P. C. 401, 410-412. The Commission properly and constructively exercised its discretion in declining to consider this large quantity of evidence. To have done so would have required a considerable expenditure of manpower, cf. Wisconsin v. Federal Power Comm’n, 373 U. S. 294, 313. We have previously encouraged the Commission to devise reasonable means of streamlining its procedures, see Federal Power Comm’n v. Hunt, supra, at 527, and we regard the Commission’s decision here as an appropriate step in that direction. Cf. Federal Power Comm’n v. Texaco Inc., 377 U. S. 33, 44.

       The problem of refunds for amounts collected above the “in-line” price is not affected here by any filing under § 4 for increases within the limits of the triggering moratorium. 52 Stat. 822, 15 U. S. C. § 717c. Under §4 (d), a 30-day notice to the Commission and to the public is required for all rate increases, the Commission having authority under § 4 (e) to suspend the new rate for five months and thereafter to act only “after full hearings.” If the Commission has not acted at the expiration of the period of suspension, the new rates become effective. The Commission may require the producer to furnish a bond, and thereafter may compel refund of “the portion of such increased rates or charges by its decision found not justified.”

       Section citations herein are all to the Natural Gas Act, 52 Stat. 821, as amended, 15 U. S. C. §§ 717-717w (1964 ed.).

       See the majority’s note 3, ante, p. 228.

       See Petition of the FPC for Certiorari, p. 15, n. 14.

       This precise ground of attack upon the moratorium was set forth by at least one producer. See ODECO Application for Rehearing Before the FPC. R. 603. Applications of other producers argued instead that any moratorium was plainly illegal under the Fifth Circuit’s decision in Hunt v. FPC, 306 F. 2d 334, which had not then been reversed by this Court. 376 U. S. 615. See Petition of Placid Oil et al. for Rehearing Before the FPC, p. 35. Under these circumstances, § 19 does not seem to me to preclude allowing all producers the benefit of the error pinpointed by ODECO.

       Deliveries commenced under all or nearly all the contracts in 1959 at prices exceeding 18.5 cents. The Commission’s order directing the in-line price, refunds, and the moratorium issued four years later in 1963, and it has been under judicial review for the past two years. The record does not clearly indicate what rate increases the producers may already have filed with the Commission.

       On several occasions, the Commission has approved agreements by producers to refund a fixed fraction of the difference between the amounts collected and the settlement price. See Texaco Inc., 28 F. P. C. 247 (other producers severed from the instant case); Continental Oil Co., 28 F. P. C. 1090 (on remand from CATCO).


author: Mr. Justice Stewart Mr. Justice Douglas,

text:
    WESTERN PACIFIC RAILROAD CO. et al. v. UNITED STATES et al.
    No. 12.
    Argued October 19, 1965.
    Decided December 7, 1965.

      Paul Bender, pro hac vice, by special leave of Court, and Walter G. Treanor argued the cause for appellants. With Mr. Bender on the brief for the United States were Acting Solicitor General Spritzer, Assistant Attorney General Turner, Lionel Kestenbaum, Jerry Z. Pruzansky
      and John H. Dougherty. With Mr. Treanor on the briefs for Western Pacific Railroad Co. et al. were E. L. Van Dellen and E. Barrett Prettyman, Jr.

      Robert W. Oinnane argued the cause for appellee Interstate Commerce Commission. With him on the brief was Robert S. Burk. Frank S. Farrell argued the cause for appellees Northern Pacific Railway Co. et al. With him on the brief were William P. Higgins, Charles W. Burkett and Earl F. Requa.

   Mr. Justice Stewart

delivered the opinion of the Court.

Section 3 (4) of the Interstate Commerce Act, as amended, 54 Stat. 902, 49 U. S. C. § 3 (4) (1964 ed.), commands that “All carriers subject to the provisions of this chapter . . . shall not discriminate in their rates, fares, and charges between connecting lines . ...” The meaning of the term “connecting lines” is the crucial question in this controversy between the Western Pacific Railroad Company, on the one hand, and the Union Pacific Railroad Company and the Northern Pacific Railway Company, on the other. Western Pacific contends that it is a “connecting line” in relation to these carriers and that, therefore, it is entitled to invoke against them the provisions of § 3 (4) prohibiting discriminatory rates. The Interstate Commerce Commission and the District Court held otherwise.

Western Pacific filed a complaint with the Commission, alleging, in part, that Union Pacific and Northern Pacific practice rate discrimination against it. The alleged discrimination consists in the refusal of these carriers, except with respect to a few commodities, to enter into joint through rates via Portland, Oregon, with the route of which Western Pacific is part, although they maintain a full line of such rates with a competitor, the Southern Pacific Company. The hearing examiner found in favor of Western Pacific, but Division 2 of the Commission reversed. The Division found both that Western Pacific could not invoke the provisions of § 3 (4) because it was not a “connecting line,” and that, even if it were, the evidence did not establish the “similarity of circumstances and conditions” that would compel rate treatment equal to that accorded to Southern Pacific. The Division refused to accord Western Pacific “connecting line” status on the ground that it neither physically connects with the allegedly discriminating carriers at the point of discrimination, nor participates in existing through routes with them through that point. Western Pacific R. Co. v. Camas Prairie R. Co., 316 I. C. C. 795. When the full Commission denied further hearing, Western Pacific brought this action in the United States District Court for the Northern District of California to set aside the Commission’s order. The three-judge court dismissed the complaint solely on the ground that Western Pacific was not a “connecting line.” Western Pacific R. Co. v. United States, 230 F. Supp. 852. It agreed with the Commission’s limited definition of the term and said, “Any further liberalization of the present definition will have to come from the Supreme Court.” Id., at 855. We noted probable jurisdiction. 379 U. S. 956.

Analysis of “connecting line” status in this case is closely tied to the geographical, structural, and economic relationships among the railroads involved. Union Pacific, Northern Pacific and their short-line connections provide exclusive rail service between many points in the Pacific Northwest and Portland, Oregon. From Portland, the two competitive routes in question descend, at times parallel, at times intertwined, to Southern California. The route closest to the seacoast consists largely of Southern Pacific. To the east of this route lies the so-called Bieber route whose completion in 1931 was authorized by the Commission to provide competition with Southern Pacific. The Bieber route is composed of the end-to-end connections of three different companies: the Great Northern Railway from Portland to Bieber, California; the Western Pacific from Bieber to Stockton; and the Atchison, Topeka & Santa Fe from Stockton to Southern California. Thus the Bieber route and Southern Pacific both connect with the allegedly-discriminating carriers at Portland where facilities for the interchange of traffic exist.

The Bieber route carriers presently enjoy joint through rates among themselves. Moreover, the other two participants in that route have expressed willingness to join with Western Pacific in the joint rates it seeks with Union Pacific and Northern Pacific. Union Pacific and Northern Pacific, for over 50 years, have maintained through routes and a full line of joint rates with Southern Pacific via Portland. They have refused, however, except for a few commodities, to offer through routes and joint rates on traffic moving on the. Bieber route through Portland. The joint rates established with Southern Pacific are lower than the combination of local rates that would otherwise apply. Since the Bieber route carriers can offer joint rates only with respect to a few commodities, they cannot match the lower rates offered by Southern Pacific to shippers of most commodities between points in California and points in the Pacific Northwest exclusively served by Union Pacific and Northern Pacific via Portland.

The Commission and the District Court held, however, that even under these circumstances, Western Pacific is not a “connecting line” eligible to complain of the alleged discrimination. In argument here the Commission and the appellee railroads contend that to qualify for that status Western Pacific must show more than that it participates in an established through route that connects with Union Pacific and Northern Pacific, and that all the participants in the route stand willing to cooperate with these carriers in establishing joint through rates. We are urged to hold that to qualify under § 3 (4) as a complainant “connecting line” a railroad must either itself make a direct connection with the discriminating carrier, or be part of a through route that already includes the carrier. We cannot accept such a construction of the statute.

The literal meaning of the statute does not require-that construction. To be sure, the term, “connecting lines” suggests the requirement of an actual physical connection between the complainant and the discriminating carrier. The term “line,” however, admits of more than a single meaning limited to the track owned exclusively by one railroad company. It may also be interpreted reasonably to include a functional railroad unit such as the Bieber through route involved here. Moreover, all parties in this litigation recognize that in Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, this Court rejected the contention that “connecting line” is a term limited to the meaning that the statutory language might initially suggest. Mr. Justice Brandéis, speaking for a unanimous Court, wrote, “There is no warrant for limiting the meaning of 'connecting lines’ to those having a direct physical connection .... The term is commonly used as referring to all the lines making up a through route.” Id., at 293.

There also is no warrant for limiting the meaning of “connecting lines” to the lines making up a through route that already includes the discriminating carrier. We have been referred to no previous judicial or administrative decisions compelling that conclusion. The Atlantic Coast Line case, supra, imposes no such limitation. It established that the term “connecting lines” extends beyond physical connection to encompass lines participating in a through route, but it does not even hint of any limitation on the nature of the thrbugh route, much less hold that the through route must already include the discriminating carrier. Our subsequent definition of “through route” in Thompson v. United States, 343 U. S. 549, adds no more to an analysis of “connecting line” under § 3 (4). In that case, which arose under §§15 (3) and 15 (4) of the Act, we held that the Commission had improperly applied the test of the existence of a through route: “. . . whether the participating carriers hold themselves out as offering through transportation service.” 343 U. S., at 557. Section 3 (4) does not use the term “through route.” But even if, after Atlantic Coast Line, a carrier may qualify as a “connecting line” if it is one of the “lines making up a through route,” 284 U. S., at 293, the Thompson test offers no solution to the problem presented here. It simply does not speak to the question whether the discriminating carrier must be one of the participating carriers offering through service in conjunction with the carrier seeking “connecting line” status.

The reason the issue presented in this case has not been decided before now may be that discrimination of the sort complained of here is uncommon. In most instances it is to the advantage of railroads such as Union Pacific and Northern Pacific to encourage the movement of traffic over their lines from as many sources as possible. Moreover, when such discrimination does occur the railroad connecting directly with the discriminating carrier is likely to take the lead as complainant.

In the absence of any settled construction of § 3 (4), then, its manifest purpose to deprive railroads of discretion to apportion economic advantage among competitors at a common interchange must be the basic guide to decision. Just such discretion would be conferred upon railroads in a position to discriminate if we were to hold that their decisions not to enter through route relationships with connecting through routes could bar nonadjacent participants in such through routes from eligibility to complain. Indeed such a holding would result in an anomalous set of circumstances clearly illustrated in the present context. No one doubts that Southern Pacific, by virtue of its direct physical connection, would be eligible to complain of rate discrimination if it were practiced in favor of the Bieber route. It is also undisputed that Great Northern would be eligible to complain of the present discrimination, not merely as it affects its segment of the Bieber route, but on behalf of the route as a whole. Moreover, it is clear that if Union Pacific and Northern Pacific had entered a through route relationship with the Bieber route and then had decided to abandon it, or to set rates somewhat higher than those set for Southern Pacific, any participant in the Bieber route could complain of that discrimination. We cannot therefore construe § 3 (4) to bar these participants from eligibility to complain solely because they have been put to an even greater competitive disadvantage by the refusal of the allegedly discriminating carriers to enter a through route relationship with them comparable to the one established with Southern Pacific. Hence, we hold that to qualify as a “connecting line,” in the absence of physical connection, a carrier need only show that it participates in an established through route, making connection at the point of common interchange, all of whose participants stand willing to cooperate in the arrangements necessary to eliminate the alleged discrimination.

Such a construction of “connecting line” does not interfere with the function of the Commission under § 15 (3) of the Act, 54 Stat. 911, 49 U. S. C. § 15 (3) (1964 ed.), to require the establishment of through routes and joint rates “in the public interest.” Section 3 (4) is applicable only to a narrower range of situations involving discrimination at a common interchange. Moreover, the remedy in § 3 (4) situations need not entail the establishment of through routes, joint rates, or indeed any particular form of relief. All that is required is the elimination of discriminatory treatment. See Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U. S. 287, 292-293; United States v. Illinois Central R. Co., 263 U. S. 515, 520-521. Finally, our holding does no more than to define the characteristics of a carrier eligible to complain. Relief is warranted only if it also appears that differential treatment is not justified by differences in operating conditions that substantially affect the allegedly discriminating carrier. See United States v. Illinois Central R. Co., supra, at p. 521; Atchison, Topeka & Santa Fe R. Co. v. United States, 218 F. Supp. 359, 369.

In the present case, having found that Western Pacific was not eligible to complain, the District Court did not reach the question whether it was entitled to relief. We therefore vacate the judgment and remand this case to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Douglas,

dissenting.

Under the Interstate Commerce Act, 49. U. S. C. § 1 et seq., as I read it, there are two ways of obtaining “through routes.” One is to qualify as a “connecting line” within the meaning of § 3 (4) where a similarly situated competing carrier has been given a through route. The other is to apply for a rate for a “through route” under § 1 (4). In the event that a carrier refuses to establish a “through route,” the Commission may “upon complaint or upon its own initiative without complaint,” establish a “through route” when “deemed by it to be necessary or desirable in the public interest.” § 15 (3).

In this case appellants sought a “through route” with certain appellee railroads on the same basis as the joint rates those railroads had established with the Southern Pacific. In an adversary proceeding the Commission denied the establishment of a “through route” under § 1 (4) saying:

“. . . The shippers urge that the rates and routes sought would give them more freedom of choice in the movement of their goods, would improve transportation service, time in transit, and car supply, and make available additional transit privileges. Nothing of record, however, indicates that the existing through routes and joint rates are inadequate to meet the needs of the shipping public. In fact the failure of the shipper witnesses to initiate in the last 31 years a determined campaign to persuade the defendants of the necessity of establishing through routes between points on the complainants’ lines in California and points on the defendants’ lines in the Northwest, is at least some indication of the adequacy of the existing routes. The expression 'in the public interest’ means more than a mere desire on the part .of shippers for something that would merely be convenient or desirable for them. This desire must be weighed against the effect on other carriers and the general public. On the basis of this record, we cannot find that the public interest would be served by requiring the establishment of joint rates and through routes which are substantially slower and costlier than the present routes.” 316 I. C. C. 795, 810-811.

What the Court does today is to let § 3 (4) swallow § 1 (4) by letting any segment of a multi-carrier through route become a “connecting line.” For then the ban in § 3 (4) on discriminatory rates in effect forces the establishment of “through routes” with “just and reasonable rates” as required by § 1 (4), without satisfying any of the conditions of § 1 (4) and of § 15 (3). Indeed after today, the whole protective scheme of § 15 (3) which makes the Commission the guardian of “through routes” (see St. Louis R. Co. v. United States, 245 U. S. 136, 142-143) breaks down.

In addition to the conditions set forth in § 15 (3) the Commission’s power to compel the establishment of through routes is limited by § 15 (4), which prevents the Commission from establishing any through route requiring a carrier to “short haul” itself except where particular circumstances (enumerated in § 15 (4)) are found to exist. See Thompson v. United States, 343 U. S. 549, 552-556; Denver & R. G. W. R. Co. v. Union P. R. Co., 351 U. S. 321, 325 et seq.; Chicago, M., St. P. & P. R. Co. v. United States, 366 U. S. 745. Can a carrier after today’s decision be compelled to “short haul” itself where an internal segment of a multi-carrier through route invokes § 3(4)?

Section 3 (4) narrowly construed to include only lines that physically abut, would, of course, lift some cases from § 1 (4) and from § 15. But those are the exceptions, relatively few in number. The Court multiplies those almost without end when it holds that any interior segment of an established multi-carrier through route is a “connecting line” within the meaning of § 3 (4).

Today’s decision uproots the established concept of “through routes.” As we stated in Thompson v. United States, 343 U. S. 549, 557 (quoting from the Commission’s 21st Annual Report to Congress):

“A through route is a continuous line of railway formed by an arrangement, express or implied, between connecting carriers. . . . Existence of a through route is to be determined by the incidents and circumstances of the shipment, such as the billing, the transfer from one carrier to another, the collection and division of transportation charges, or the use of a proportional rate to or from junction points or basing points. These incidents named are not to be regarded as exclusive of others which may tend to establish a carrier’s course of business with respect to through shipments.”

Then we added:

“In short, the test of the existence of a ‘through route’ is whether the participating carriers hold themselves out as offering through transportation service. Through carriage implies the existence of a through route whatever the form of the rates charged for the through service.” Ibid. (Italics added.)

And see Denver & R. G. W. R. Co. v. Union P. R. Co., 351 U. S. 321, 327, 330.

Here there has been no “holding out” by the participating carriers (either consensually or as a result of any Commission action) that offers this interior segment of this multi-carrier route to become a part of any “through route.” If we are to allow § 1 (4) and §§ 3 (4) and 15 (3) to exist in harmony, we must adhere to that requirement, restricting “connecting line” to those lines that have a direct physical connection with the allegedly discriminating carrier.

Atlantic Coast Line R. Co. v. United States, 284 U. S. 288, is not opposed. While the line in question was only a segment in a multi-carrier system, it had “through routes” with the other carriers in controversy. Id., at 292. The words “connecting lines” were therefore used to include “all the lines making up a through route.” Id., at 293. But there is no “through route” here, the defendants not having agreed to one and the Commission having expressly disallowed one pursuant to its power under § 15 (3).

       Section 3 (4) provides in full:
      "All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term ‘connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common carrier by water subject to chapter 12 of this title.”

       Western Pacific and its subsidiaries named as defendants: The Northern Pacific Railway Company, The Union Pacific Railroad Company, and certain of their short-line connections. These railroads denied the allegations of the complaint. The Southern Pacific Company intervened in opposition to the complaint. The complaint also named as defendants: The Atchison, Topeka & Santa Fe Railway Company, The Great Northern Railway Company, and certain short-line connections. These railroads answered expressing willingness to join in the relief sought by Western Pacific.
      The complaint also alleged violation of § 1 (4) of the Act which requires, in part, that railroads establish “reasonable through routes” with other carriers and “just and reasonable rates, fares, charges, and classifications applicable thereto . . . .” When such routes are not established voluntarily, the Commission has authority under §15 (3), to prescribe them “in the public interest.” This authority is subject to the short-haul limitation embodied in §15(4). Although the complainants indicated a willingness to rely solely on the alleged violation of § 3 (4), the Commission found against them on the § 1 (4) allegation as well. No question under § 1 (4) is presented here.

         Great Northern R. Co. Construction, 166 I. C. C. 3, 39; 170 I. C. C. 399.

       Pursuant to 28 U. S. C. § 2322 (1964 ed.), the United States was named as defendant in the District Court. It did not, however, join with the Commission in defense of the Commission’s order, and it supports Western Pacific in this Court.

       In the Atlantic Coast Line case, certain railroads leasing the Carolina, Clinchfield & Ohio Railway with the approval of the Commission filed restrictive schedules designed ultimately to exclude an as yet incomplete extension of the Georgia & Florida Railroad from participating, when completed, in joint rates over the Clinchfield. The Commission ordered the schedules canceled on the ground that they violated terms in the lease, accepted by the lessees, on which the Commission had conditioned its approval. One condition required the lessees to permit the Clinchfield to be used as a link for through traffic with “such other carriers, now connecting, or which may hereafter connect, with [it] . . . .” 284 U. S., at 292, note 3. The extension of the Georgia & Florida made connection with the Clinchfield only via the rails of an intermediate carrier. This Court sustained the Commission’s order, however, and held that the Georgia & Florida was a carrier connecting with the Clinchfield because it was one of the “lines making up a through route.” 284 U. S., at 293. Even assuming that the through route referred to was not one limited to the complaining carrier and the intermediate carrier, it is clear that this Court was not faced with the question whether the complaining railroad would be regarded as a “connecting line” if the through route establishing the connection did not also encompass the Clinchfield. In short, Atlantic Coast Line did not present the issue squarely before us now.

       Although we do not regard Chicago, Indianapolis & Louisville R. Co. v. United States, 270 U. S. 287, as dispositive of the question presented, that case, on its facts, supports the conclusion we reach.

       In response to an inquiry at oral argument, the parties have submitted memoranda agreeing that through routes and joint rates are ordinarily established by voluntary agreement, and that a railroad usually interchanges traffic on a comparable basis with competing railroads at a common interchange. See also Thompson v. United States, 343 U. S. 549, 554.

       Section 15 (3) provides in relevant part:
      “The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter ... or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated.”

       Section 3(4) provides:
      “All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines; and shall not discriminate in their rates, fares, and charges between connecting lines, or unduly prejudice any connecting line in the distribution of traffic that is not specifically routed by the shipper. As used in this paragraph the term 'connecting line’ means the connecting line of any carrier subject to the provisions of this chapter or any common' carrier by water subject to chapter 12 of this title.” (Italics added.)
      The discriminatory refusal to enter into through routes has been held to constitute a violation of § 3 (4). See Dixie Carriers, Inc. v. United States, 351 U. S. 56.

       Section 1 (4) provides in part:
      “It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; . . .”

       Section 15 (3) provides in part:
      “The Commission may, and it shall whenever deemed by it to be necessary or desirable in the public interest, after full hearing upon complaint or upon its own initiative without complaint, establish through routes, joint classifications, and joint rates, fares, or charges, applicable to the transportation of passengers or property by carriers subject to this chapter, or by carriers by railroad subject to this chapter and common carriers by water subject to chapter 12 of this title, or the maxima or minima, or maxima and minima, to be charged, and the divisions of such rates, fares, or charges as hereinafter provided, and the terms and conditions under which such through routes shall be operated.”

       The term “multi-carrier through route” is used here to indicate a route composed of two or more carriers which have established among themselves a through route with joint rates. This, of course, describes the Bieber route from southern California to Portland.

       Congress has refused, although requested to do so by the Commission, to repeal § 15 (4). See Thompson v. United States, supra, at 555.

       Section 3 (4) was not involved. What was in litigation was the construction of one of its earlier orders allowing one carrier to lease another. Commission approval was accompanied by conditions assuring “equal service, routing, and movement of competitive traffic to and from all connecting lines” reached by the lessee. 284 U. S., at 292. It was in that context that the Court held that carriers were protected even though their rails did not “physically abut” on the rails of the lessee. 284 U. S., at 293.


author: Mr. Justice Black

text:
    HAZELTINE RESEARCH, INC., et al. v. BRENNER, COMMISSIONER OF PATENTS.
    No. 57.
    Argued November 17, 1965.
    Decided December 8, 1965.

      Laurence B. Dodds argued the cause for petitioners. With him on the briefs was George R. Jones.

      J. William Doolittle argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Douglas and Lawrence R. Schneider.

      Irwin M. Aisenberg filed a brief, as amicus curiae, urging reversal.
   Mr. Justice Black

delivered the opinion of the Court.

The sole question presented here is whether an application for patent pending in the Patent Office at the time a second application is filed constitutes part of the “prior art” as that term is used in 35 U. S. C. § 103 (1964 ed.), which reads in part:

“A patent may not be obtained ... if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art . . . .”

The question arose in this way. On December 23, 1957, petitioner Robert Regis filed an application for a patent on a new and useful improvement on a microwave switch. On June 24, 1959, the Patent Examiner denied Regis’ application on the ground that the invention was not one which was new or unobvious in light of the prior art and thus did not meet the standards set forth in § 103. The Examiner said that the invention was unpatentable because of the joint effect of the disclosures made by patents previously issued, one to Carlson (No. 2,491,644) and one to Wallace (No. 2,822,526). The Carlson patent had been issued on December 20, 1949, over eight years prior to Regis’ application, and that patent is admittedly a part of the prior art insofar as Regis’ invention is concerned. The Wallace patent, however, was pending in the Patent Office when the Regis application was filed. The Wallace application had been pending since March 24, 1954, nearly three years and nine months before Regis filed his application and the Wallace patent was issued on February 4, 1958, 43 days after Regis filed his application.

After the Patent Examiner refused to issue the patent, Regis appealed to the Patent Office Board of Appeals on the ground that the Wallace patent could not be properly considered a part of the prior art because it had been a “co-pending patent” and its disclosures were secret and not known to the public. The Board of Appeals rejected this argument and affirmed the decision of the Patent Examiner. Regis and Hazeltine, which had an interest as assignee, then instituted the present action in the District Court pursuant to 35 U. S. C. § 145 (1964 ed.) to compel the Commissioner to issue the patent. The District Court agreed with the Patent Office that the co-pending Wallace application was a part of the prior art and directed that the complaint be dismissed. 226 F. Supp. 459. On appeal the Court of Appeals affirmed per curiam. 119 U. S. App. D. C. 261, 340 F. 2d 786. We granted certiorari to decide the question of whether a co-pending application is included in the prior art, as that term is used in 35 U. S. C. § 103. 380 U. S. 960.

Petitioners’ primary contention is that the term “prior art,” as used in § 103, really means only art previously publicly known. In support of this position they refer to a statement in the legislative history which indicates that prior art means “what was known before as described in section 102.” They contend that the use of the word “known” indicates that Congress intended prior art to include only inventions or. discoveries which were already publicly known at the time an invention was made.

If petitioners are correct in their interpretation of “prior art,” then the Wallace invention, which was not publicly known at the time the Regis application was filed, would not be prior art with regard to Regis’ invention. This is true because at the time Regis filed his application the Wallace invention, although pending in the Patent Office, had never been made public and the Patent Office was forbidden by statute from disclosing to the public, except in special circumstances, anything contained in the application.

The Commissioner, relying chiefly on Alexander Milburn Co. v. Davis-Bournonville Co., 270 U. S. 390, contends that when a patent is issued, the disclosures contained in the patent become a part of the prior art as of the time the application was filed, not, as petitioners contend, at the time the patent is issued. In that case a patent was held invalid because, at the time it was applied for, there was already pending an application which completely and adequately described the invention. In holding that the issuance of a patent based on the first application barred the valid issuance of a patent based on the second application, Mr. Justice Holmes, speaking for the Court, said, “The delays of the patent office ought not to cut down the effect of what has been done. . . . [The first applicant] had taken steps that would make it public as soon as the Patent Office did its work, although, of course, amendments might be required of him before the end could be reached. We see no reason in the words or policy of the law for allowing [the second applicant] to profit by the delay . . . .” At p. 401.

In its revision of the patent laws in 1952, Congress showed its approval of the holding in Milburn by adopting 35 U. S. C. § 102 (e) (1964 ed.) which provides that a person shall be entitled to a patent unless “(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent.” Petitioners suggest, however, that the question in this case is not answered by mere reference to § 102 (e), because in Milburn, which gave rise to that section, the co-pending applications described the same identical invention. But here the Regis invention is not precisely the same as that contained in the Wallace patent, but is only made obvious by the Wallace patent in light of the Carlson patent. We agree with the Commissioner that this distinction is without significance here. While we think petitioners’ argument with regard to § 102 (e) is interesting, it provides no reason to depart from the plain holding and reasoning in the Milburn case. The basic reasoning upon which the Court decided the Milburn case applies equally well here. When Wallace filed his application, he had done what he could to add his disclosures to the prior art. The rest was up to the Patent Office. Had the Patent Office acted faster, had it issued Wallace’s patent two months earlier, there would have been no question here. As Justice Holmes said in Mil-burn, “The delays of the patent office ought not to cut down the effect of what has been done.” P. 401.

To adopt the result contended for by petitioners would create an area where patents are awarded for unpatentable advances in the art. We see no reason to read into § 103 a restricted definition of “prior art” which would lower standards of patentability to such an extent that there might exist two patents where the Congress has plainly directed that there should be only one.

Affirmed.

       It is not disputed that Regis’ alleged invention, as well as his application, was made after Wallace’s application was filed. There is, therefore, no question of priority of invention before us.

       H. R. Rep. No. 1923, 82d Cong., 2d Sess., p. 7 (1952).

       35 U. S. C. § 122 (1964 ed.) states: “Applications for patents shall be kept in confidence by the Patent Office and no information concerning the same given without authority of the applicant or owner unless necessary to carry out the provisions of any Act of Congress or in such special circumstances as may be determined by the Commissioner.”