Federal Trade Commission v. Minneapolis-Honeywell Regulator Company/Dissent Black
Mr. Justice BLACK, dissenting.

The end result of what the Court does today is to leave standing a Court of Appeals decree which I think is so clearly wrong that it could well be reversed without argument. The decree set aside an order of the Federal Trade Commission directing Minneapolis-Honeywell to stop violating § 2(a) of the Robinson-Patman Act by selling oil burner controls to some customers cheaper than to others. The Court of Appeals not only set aside the Commission's order as permitted under some circumstances. It went much further and ordered the Commission to dismiss Count III of the complaint against Minneapolis-Honeywell. In doing so the Court of Appeals invaded an area which Congress has made the exclusive concern of the Federal Trade Commission. See Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 55, 68 S.Ct. 822, 832, 92 L.Ed. 1196; Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20, 73 S.Ct. 85, 86; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 145-146, 60 S.Ct. 437, 442-443, 84 L.Ed. 656.

Moreover, the Court of Appeals held that there was no evidence at all to substantiate the Commission finding that a quantity discount pricing system of Minneapolis-Honeywell resulted in price discriminations that violated § 2(a) of the Robinson-Patman Act. But there was evidence before the Commission that some customers of Minneapolis-Honeywell were given substantially bigger discounts on purchases than those given their competitors. And the Commission found that these variations were not justified by any differences in costs of manufacture, sale or delivery. We have emphasized that such a showing amply supports a Commission cease and desist order. Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 47, 68 S.Ct. 822, 829, 92 L.Ed. 1196. The Court of Appeals here failed to follow our holding in the Morton Salt case. For this reason also it should be reversed.

I think the following facts show that the petition for certiorari here was filed in time. The Court of Appeals was petitioned by Minneapolis-Honeywell to review and set aside a Trade Commission order in its entirety. Later Minneapolis-Honeywell apparently conceded validity of part of the order and the court's first decree of July 5, 1951, failed to pass on all the provisions of the Commission's order.  The Commission had ninety days to ask that we review that partial order if it was a 'final' one. Within that ninety days, on August 21, 1951, the Commission asked the Court of Appeals to pass on the remainder of the order. In response a new and expanded decree of the Court of Appeals came down September 18, 1951, marked 'Final Decree.' December 14, 1951, within ninety days after rendition of this 'Final Decree,' the Commission filed here its petition for certiorari which the Court now dismisses.

I think that no statute, precedent or reason relied on by the Court requires dismissal of this cause. Of course appealability of a judgment depends on its being 'final' in the legalistic sense. But there is no more ambiguous word in all the legal lexicon.  The Court of Appeals thought its second not its first decree was 'final.' Counsel for the Commission evidently believed the second judgment was the 'final' one. I am confident many lawyers would have thought the same under this Court's former cases. So I would have viewed the second judgment before today's holding. Former cases would have pointed strongly to rejection of appeal from the incomplete first decree as an attempted 'piecemeal' review. 

The majority advances logical and rational grounds for its conclusion that the first judgment rather than the second one was 'final.' That the second judgment was 'final,' legalistically speaking, is equally supportable by logic, reason and precedent, if not more so.  But in arguing over 'finality' we should not ignore the fact that Congress has declared that this type of proceeding should be reviewable both in the Court of Appeals and here. We frustrate that declaration when review is denied a litigant because of his failure to guess right when confronted in August 1951 with a puzzle, the answer to which no one could know until today.

In prior cases cited in the Court's opinion this Court has found ways to grant review to litigants bedeviled and confused by the judicially created fog of 'finality.'  In those prior cases the Court recognized the vagueness of the finality rule and refused to throw out of court litigants who had acted bona fide. It is unfortunate that the Court today fails to utilize this same kind of judicial ingenuity to afford this litigant the review Congress saw fit to provide in the public interest.

The proceedings against Minneapolis-Honeywell began before the Commission nine years ago. Sixteen hundred pages of evidence were put on the record. It all goes to nought apparently because Commission counsel lacked sufficient clairvoyance to anticipate that this Court would hold that the July judgment rather than the one in September was final. Rules of practice and procedure should be used to promote the ends of justice, not to defeat them.  

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