Today in Supreme Court History: August 9

United States v. FMC Corp., 84 S.Ct. 4 (decided August 9, 1963): Goldberg says he has no jurisdiction to stay a merger which allegedly violated the Clayton Act.  Here, the U.S. brought suit in the District Court which denied its motion for a stay.  The U.S. appealed to the Circuit Court, which held that it had no jurisdiction.  At issue was the “Expediting Act”, 15 U.S.C. §29, under which final judgments in antitrust cases brought by the U.S. can only be appealed directly to the Supreme Court.  This had been construed to mean that there can be no appeal (to any court) of nonfinal orders in such suits.  Goldberg notes that there is a split in the circuits (the Third Circuit disagreeing with the others) but he goes along with the majority view.  (As Circuit Justice he didn’t have the power to resolve the split; the Court eventually resolved it by agreeing with Goldberg, Tidewater Oil v. U.S., 1972, though the statute was later changed.)  Also at issue was the “all writs” statute, 28 U.S.C. §1651(a), which codifies the common law view that an appellate court has the power to order injunctions (and any other relief) in aid of its appellate jurisdiction.  Goldberg holds that the Expediting Act, being specific to this situation, was controlling.