UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
January 18, 1954
STANDARD OIL CO.
FEDERAL TRADE COMMISSION.
Before J. EARL MAJOR, Chief Judge. F. RYAN DUFFY, Circuit Judge, and WALTER C. LINDLEY, Circuit Judge.
On August 9, 1946, the Federal Trade Commission entered a cease and desist order directed to Standard Oil Company. On October 11, 1949, this court directed that said order, as modified, be enforced. On appeal the United States Supreme Court reversed the judgment of this court and remanded the case to us with instructions to remand same to the Federal Trade Commission, to make findings in conformity with that court's opinion. On February 14, 1951, this court entered an order containing the following language: "It is ordered and adjudged by this Court that the judgment of this Court. entered in this cause on March 11, 1949, be, and the same is, hereby cacated and set aside, and that this cause be, and the same is, hereby remanded to the Federal Trade Commission with instructions to make findings in conformity with the opinion of the Supreme Court of the United States filed on January 8, 1951."
On March 26, 1953, the Federal Trade Commission re-certified to this court "that part of the record which had been returned to said Commission," together with modified findings of fact and conclusions of law, a modified order, and dissenting opinions by two members of the Commission. The Commission requested that this court place the matter on our calendar for rebriefing and re-argument.
On May 19, 1953, this court entered an order containing, among others, the following provisions:
"* * * IT IS ORDERED: That the recertified portion of the record, and the modified findings of fact and conclusions of law, together with the dissenting opinions of two members of the Federal Trade Commission be received and made a part of the official file of this case before this court.
"IT IS FURTHER ORDERED: That, as the Federal Trade Commission, under the remand from this court, was without power or authority to issue its 'modified order' dated January 16, 1953, the same is entirely void, but may be considered by this court as a suggestion by the Commission as to the form of a modification of the original order of said Commission dated August 9, 1946."
On October 14, 1953, Standard Oil Company filed a petition with this court praying that this court vacate its order of May 19, 1953, on the ground that it was without jurisdiction to enter same, and that the cause be remanded to the Federal Trade Commission for further consideration. On November 10, 1953, the Federal Trade Commission filed an answer praying that said petition be denied. Thereafter Empire State Petroleum Association filed a petition asking for leave to intervene and to file a brief as amicus curiae; similar petitions were filed by National Congress of Petroleum Retailers, Inc. and Retail Gasoline Dealers Association of Michigan, Inc., by Citrin-Kolb Oil Company, and by National Oil Jobbers Council, Inc.
IT IS ORDERED: That the various petitions to intervene hereinbefore described be and the same are each hereby denied, but that the briefs filed by said petitioners as amici curiae be received and filed by the Clerk of this Court. 26, 1953. the order of this court dated May 19, 1953, be and the same is hereby vacated and set aside, for the reason that this court was without jurisdiction to enter same. The Clerk of this Court is directed to return to the Federal Trade Commission the findings of fact and conclusions of law, orders, papers, and documents which said Commission "re-certified" to this court on March 26, 1953.
For the information of all concerned, this court is of the opinion that the only procedure by which it may in the future consider any modified findings of fact and conclusions of law or order of the Commission herein is in accordance with the provisions of Sec. 11 of the Clayton Act.
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