United States v. FMC Corp.

Full title: UNITED STATES of America, Appellant, v. FMC CORPORATION and American…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 30, 1963

321 F.2d 534 (9th Cir. 1963)

Opinion

No. 18753.

July 30, 1963.

William H. Orrick, Jr., Asst. Atty. Gen., Robert L. Wright, Robert B. Hummel, Lionel Kestenbaum, Joel E. Hoffman, Lewis Bernstein, Nicolaus Bruns, Jr., and Carl D. Lobell, Attys., Anti-Trust Division, Dept. of Justice, Washington, D.C.; Lyle L. Jones, Atty., Anti-Trust Div., Dept. of Justice, San Francisco, Cal., for appellant.

Pillsbury, Madison Sutro, Francis R. Kirkham and William E. Mussman, San Francisco, Cal., for appellee FMC Corp.

Simpson Thacher Bartlett, Whitney North Seymour and William J. Manning, New York City, for appellee American Viscose Corp.

Before HAMLEY and DUNIWAY, Circuit Judges and MATHES, District Judge.

DUNIWAY, Circuit Judge.

This is an appeal, purportedly taken under 28 U.S.C. § 1292(a) (1), from an order denying a motion for a preliminary injunction. The action was brought by the United States under section 15 of the Clayton Act ( 15 U.S.C. § 25) to enjoin the acquisition by one of the appellees of the "operating assets" of the other, as being in violation of section 7 of the Clayton Act ( 15 U.S.C. § 18). On June 27, 1963, this court granted a stay, pending appeal.

We are of the opinion that we lack jurisdiction of this appeal, by reason of the provisions of the Expediting Act of 1903 (C. 544, 32 Stat. 823) now 15 U.S.C. § 29. See: United States v. California Cooperative Canneries, 1929, 279 U.S. 553, 558, 49 S.Ct. 423, 73 L.Ed. 838; Allen Calculators, Inc. v. National Cash Register Co., 1944, 322 U.S. 137, 142, 64 S.Ct. 905, 88 L.Ed. 1188; United States Alkali Export Assn. v. United States, 1945, 325 U.S. 196, 201-202, 65 S.Ct. 1120, 89 L.Ed. 1554; De Beers Mines v. United States, 1945, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566; Brown Shoe Co. v. United States, 1962, 370 U.S. 294, 305, 82 S.Ct. 1502, 8 L.Ed. 2d 510; Missouri-Kansas Pipe Line Co. v. United States, 3 Cir., 1939, 108 F.2d 614, 615; National Ass'n. of Real Estate Boards v. United States, 85 U.S.App.D.C. 165, 176 F.2d 631; United States v. American Society of Composers, Authors Publishers, 2 Cir., 1963, 317 F.2d 90. We are unable to agree with the contrary decision of the Third Circuit in United States v. Ingersoll-Rand Co., 1963, 320 F.2d 509 (June 5, 1963).

The stay granted by the order of June 27, 1963, is dissolved. The appeal is dismissed for want of jurisdiction.