In a suit by the United States under the Sherman Act, the
District Court entered a decree requiring respondent,
inter
alia, to "grant to any user making written application
therefor a nonexclusive license to perform all of the compositions"
in respondent's repertory subject to a reasonable license fee. On
request of petitioners for a license, respondent refused to fix a
fee. Pursuant to the decree, petitioners applied to the District
Court for an order fixing a reasonable fee. The District Court
found that the decree did not require respondent to issue the type
of license petitioners had requested, and it dismissed the
application. Petitioners appealed to the Court of Appeals, and also
appealed directly to this Court under § 2 of the Expediting
Act, 15 U.S.C. § 29. This Court dismissed the direct appeal to
it "for want of jurisdiction."
371 U. S. 540.
Thereafter, the Court of Appeals dismissed the appeal to it on the
ground that all such appeals are "routed" to this Court by the
Expediting Act.
Held: An appeal from an ancillary order of this type is
not within the Expediting Act, and an appeal does lie to the Court
of Appeals under 28 U.S.C. § 1291 . Pp.
375 U. S.
39-41.
317 F.2d 90, certiorari granted; reversed, and cause
remanded.
PER CURIAM.
In 1950, the District Court for the Southern District of New
York entered an amended consent decree in a government
Page 375 U. S. 40
Sherman Act suit requiring ASCAP,
inter alia to "grant
to any user making written application therefor a nonexclusive
license to perform all of the compositions in the ASCAP repertory"
subject to a reasonable license fee. On request of petitioners for
a license, ASCAP refused to fix a fee and, as provided by the
amended consent decree, this application was filed for an order to
fix a reasonable fee. The District Court found that the consent
decree did not require ASCAP to issue the type of license
petitioners requested, and therefore dismissed the application.
208 F.
Supp. 896. The petitioners took an appeal to the Court of
Appeals, and also perfected a direct one to this Court under §
2 of the Expediting Act. 15 U.S.C. § 29. We dismissed the
appeal filed here for want of jurisdiction,
371 U.
S. 540 (1963). Thereafter, the Court of Appeals
dismissed the appeal perfected there, 317 F.2d 90, on the ground
that all appeals are "routed" to this Court by the Expediting Act,
and this petition brings that question here once again.
The dismissal that we heretofore entered was based on our
unexpressed view that the appeal from an ancillary order of this
type was not within the Expediting Act. Direct appeals to this
Court are authorized by that Act only from final judgments where
the United States is a complainant. The purpose of the Act is to
expedite litigation of "great and general importance" where the
Government is the aggrieved party.
See 36 Cong.Rec. 1679
(1903). The controversy which is disposed of by the District
Court's order is entirely between private parties, and is outside
the mainstream of the litigation in which the Government is
directly concerned.
Compare Terminal R. Ass'n of St. Louis v.
United States, 266 U. S. 17;
Aluminum Co. of America v. United States, 302 U.
S. 230. In these circumstances, and the order being
final, rather than
Page 375 U. S. 41
interlocutory, we believe that the appeal does lie under 28
U.S.C. § 1291. The petition is therefore granted, and the
judgment is reversed and the cause remanded to the Court of Appeals
for consideration on its merits.
It is so ordered.
MR. JUSTICE BLACK acquiesces in the Court's judgment because of
the holding in the prior appeal.
