United States v. International Union, United Mine Workers of America, 190 F.2d 865 (D.C. Cir. 1951)

This is an appeal by the United States (hereafter referred to as the Government) from a judgment of the United States District Court for the District of Columbia entered March 4, 1950. The judgment dismissed a petition for a rule to show cause against the appellee, International Union, United Mine Workers of America (hereafter referred to as the Union), dismissed a rule to show cause issued pursuant to the petition, and adjudged that the Union was not guilty of civil contempt for failure, as charged in the petition, to comply with a temporary restraining order issued by the District Court.

The National Bituminous Coal Wage Agreement of 1948 (hereafter referred to as the Agreement of 1948), entered into between the Union and numerous Coal Operators and Associations (hereafter referred to as Operators) expired by its own terms on June 30, 1949. A dispute arose as to the terms and conditions of a successor agreement and no successor agreement was entered into until March 4, 1950. In late December, 1949, sporadic work stoppages commenced in the bituminous coal mines in the United States. These increased so that by the early part of 1950 there was a substantial diminution in bituminous coal production. On February 11, 1950, the Attorney General, at the direction of the President acting pursuant to Section 208 of the Labor Management Relations Act, 1947, 29 U.S.C. § 178 (hereafter referred to as the Act), instituted, by filing a complaint, the proceeding out of which this appeal has arisen.¹  The complaint named the Government as plaintiff and the Union and John L. Lewis, its president, and some one hundred and one Operators, as defendants. The complaint alleged the existence of an unresolved labor dispute between the Union and the Operators and the existence of a strike affecting a substantial part of an industry engaged in trade and commerce among the several states and with foreign nations and in the production of goods for commerce; that if permitted to continue, the strike would imperil the national health and safety; that the strike was a concerted work stoppage on the part of the Union which had continued since on or about February 6, 1950, and was preceded by, or was a continuation of, a number of successive concerted total or partial stoppages of work on the part of the Union commenced in the early summer of 1949, of varying periods of duration, and affecting coal mining operations in various areas in the United States; that the strike and its predecessor work stoppages had resulted from unresolved labor disputes affecting wages, hours, terms and conditions of employment attending the failure of the Union and the Operators, or a great majority of them, signatory to the Agreement of 1948, to agree to a continuance thereof beyond June 30, 1949, or to execute a successor agreement or agreements; that unless the strike was enjoined, the Government would suffer irreparable injury for which it had no adequate remedy at law.²  The complaint prayed that the District Court: (1) enjoin the Union from continuing the strike; (2) order the Union to instruct, and take all appropriate action necessary to insure that the instructions were carried out, all members of the Union to cease the strike and to return to work in the mines under the terms and conditions of employment of the 1948 Agreement; (3) enjoin both the Union and the Operators from encouraging, causing or engaging in a lockout or strike at any bituminous coal mine covered by the 1948 Agreement; (4) order the Union and the Operators to engage in free and collective bargaining for the purpose of resolving their disputes, as contemplated by the Act; (5) issue, pending the final determination of the case, a preliminary injunction enjoining the Union and the Operators in the manner and form aforesaid; (6) issue, pending the issuance of the preliminary injunction, a temporary restraining order restraining and enjoining the Union and the Operators in the manner and form aforesaid; (7) grant such other and further relief to the Government as might be just and proper.

Upon the filing of the complaint, and upon the same date, February 11, 1950, the District Court, acting ex parte and upon the basis of the allegations of the complaint and of the statements in the supporting affidavits and in the Report of the Board of Inquiry, issued against the Union and John L. Lewis and the Operators, the temporary restraining order prayed for. The order reflected the first four paragraphs of the prayer. Its text is set forth in the margin.³  The order, stating its terms briefly: (1) restrained the Union from continuing the strike; (2) directed the Union to instruct, and to take all appropriate action necessary to insure that the instructions were carried out, all members of the Union employed in the mines to cease the strike and to return to their employment; (3) restrained both the Union and the Operators from causing or engaging in a lockout or strike or work stoppage; (4) directed the Union and the Operators to engage in collective bargaining for the purpose of resolving their disputes. The order was served upon the Union and John L. Lewis, president, on the date of its issuance. The order as issued expired at 11:20 A.M., February 21, 1950. On February 20, 1950, the District Court extended it to 11:20 A.M., March 3, 1950.

Notwithstanding the issuance and service of the restraining order, the work stoppage in the bituminous coal mines continued, and on February 20, 1950, the Government filed a petition for a rule requiring the Union to show cause why it should not be punished for civil and criminal contempt of the District Court. The petition recited the filing of the complaint and the issuance and service of the temporary restraining order and charged violation of the first three paragraphs thereof. In brief, the petition charged that at no time after the service of the order had the Union brought the strike to an end or taken appropriate action to insure that the Union miners discontinue the strike and return to their employment; that, on the contrary, the Union had continued to cause and engage in a strike at the mines and had engaged in a course of action interfering with the jurisdiction of the court and obstructing the determination of the case; and that the strike had continued uninterruptedly to the date of the filing of the petition. Following the filing of the petition for the rule on February 20, 1950, the District Court, on the same day, issued a rule against the Union requiring it to show cause on February 27, 1950, why it should not be punished for civil and criminal contempt. The rule directed that if upon the return by the Union it should be found that the alleged contempt had not been sufficiently purged, a trial should be had.

On February 24, 1950, the Union filed its answer to the rule and to the petition for the rule. The answer attacked the jurisdiction of the District Court to issue the temporary restraining order and the rule, attacked the constitutionality of the Act and of the restraining order, and asserted that the order violated the rights of the members of the Union as miners not to work, particularly in the absence of a collective bargaining agreement. The answer averred that the Executive Board of the Union had not issued a strike call or requested a referendum for the approval of a strike call, or done any act to cause, permit or encourage the alleged strike or its continuance.⁴  The answer then described steps assertedly taken by the Union, through its officers, to obtain obedience to the instructions of the District Court in the restraining order and to end the work stoppages — in particular the sending of telegraphic messages to the Union's district presidents, officers and agents, copies of the same to each of the local unions, publication of the same in the United Mine Workers Journal, and the sending of a report to all local union officers and members instructing immediate obedience to the directions of the District Court in the restraining order and termination of the work stoppages and return of the miners to work. The answer averred further that despite such messages, instructions and endeavors on the part of the Union to persuade its members to return to work, they, not being under obligation to work by virtue of any existing contract, and having a legal right to sell or not to sell their labor and to sell it upon such terms and conditions as they chose, refused to return to work and determined to continue the work stoppages which, according to the assertions of the answer, they had of their individual volition decided upon prior to the issuance of the restraining order. The answer asserted that the means employed by the Union to cause its members to return to work were those which it had on prior occasions successfully employed and that only powers of recommendation were available to the Union and its officers under the Union's Constitution. The answer alleged finally that the refusal of the miners to return to work was without suggestion, direction or authorization of the Union and was contrary to the directions given by the Union as above described.⁵ 

On February 27, 1950, the Union, after denial by the District Court of a motion that the rule to show cause and the petition for the rule be dismissed and the Union discharged from the rule, entered a plea of not guilty to the charges of civil and criminal contempt and waived trial by a jury. The cause, under the issues made up by the pleadings above described, came on for hearing on February 27 and 28, and March 1, 1950, before the District Court sitting without a jury.

It is not necessary, in view of the disposition which we are obliged, as appears below, to make of this appeal, to describe in detail the evidence relied upon by the Government in support of the petition for the rule, and by the Union in support of its answer. This evidence is, however, summarized in the margin.⁶  It is sufficient here to state that after completion of the hearing on March 1, 1950, the District Court, on March 4 following, found that the Union had not, since service upon it on February 11, 1950, of the temporary restraining order, disobeyed or violated the same, but that it had followed and in good faith complied therewith; and the court concluded that the Union was not guilty of civil contempt of the District Court. On the same date the District Court adjudged, ordered and decreed that the Union was not guilty of civil contempt and that the petition for a rule to show cause and the rule itself and the proceeding for civil contempt should be dismissed and the Union discharged.⁷  On the same date the court determined that "there is no just reason for delay" and ordered that "final judgment in these proceedings for civil contempt be entered forthwith."⁸  On the date of the entry of the judgment of not guilty of civil contempt, March 4, 1950, this appeal was taken.

The Government's points on appeal, as stated in its brief, are, first, that: "The nationwide mass work stoppage after February 11, 1950, by the virtual totality of the Union's membership in the bituminous coal industry was a continuation of a strike by the Union. As such it constituted clear, unequivocal, and wilful disobedience and contempt by the Union of the temporary restraining order which in express language enjoined the Union from continuing the strike;" second, that: "The Union wilfully and deliberately disobeyed and contemned the temporary restraining order by not taking, through its president and other officers, `all appropriate action as may be necessary to insure' the carrying out of the instructions to the members of the Union to return to work and cease the strike. The finding to the contrary made by the district court is clearly erroneous." As argued, these points on the merits are, stating them in reverse order: That there was no substantial evidence to support the finding of the trial court that the Union had not disobeyed the temporary restraining order but had followed and in good faith complied with the same; but that even if the trial court's finding in respect of the Union as an entity acting through its officers was supported by the evidence, nevertheless the Union must be held legally responsible for the mass action of its members in not returning to work after the service of the restraining order.

The Union contends, first, that the civil contempt judgment was interlocutory and not final and is therefore not appealable under Section 1291 of Title 28 of the United States Code, and that the court is therefore without jurisdiction of the appeal; second, that the appeal is moot and should for that reason be dismissed. On the contingency that the court should decide against it upon the two contentions just stated, the Union argues further that the Government's points on appeal, as stated in the brief and argued, are both without merit.

If this case is moot it is not necessary to pass upon the question of the jurisdiction of the court to consider the appeal. If this case is moot it is not possible for the court to determine the two points urged by the Government which involve the merits; settled principles of our jurisprudence forbid United States Courts to decide abstract questions. As the Supreme Court said in California v. San Pablo &c. Railroad, 149 U.S. 308, 314, 13 S. Ct. 876, 37 L. Ed. 747 (1893) and reiterated in United States v. Hamburg-American Co., 239 U.S. 466, 475-476, 36 S. Ct. 212, 60 L. Ed. 387 (1916): "The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it." See also Brownlow v. Schwartz, 261 U.S. 216, 43 S. Ct. 263, 67 L. Ed. 620 (1923); Stearns v. Wood, 236 U.S. 75, 35 S. Ct. 229, 59 L. Ed. 475 (1915); Richardson v. McChesney, 218 U.S. 487, 31 S. Ct. 43, 54 L. Ed. 1121 (1910); Jones v. Montague, 194 U.S. 147, 24 S. Ct. 611, 48 L. Ed. 913 (1904); Mills v. Green, 159 U.S. 651, 16 S. Ct. 132, 40 L. Ed. 293 (1895); Cheong Ah Moy v. United States, 113 U.S. 216, 5 S. Ct. 431, 28 L. Ed. 983 (1885); Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067 (U.S. 1850); Spreckels Sugar Co. v. Wickard, 75 U.S.App.D.C. 44, 131 F.2d 12 (1941).

The considerations urged in support of the contention of the Union that this case is moot are that pending the appeal, on or about March 5, 1950, the labor dispute between the Union and the Operators was settled by the execution of the National Bituminous Coal Wage Agreement of 1950; that the work stoppages ceased and the miner members of the Union returned to their employment on March 6, 1950; that they have ever since continued in their employment in the mines; that normal production of bituminous coal was restored and the national emergency came to an end.⁹  The Union contends that the objectives of the injunction proceeding and of the civil contempt proceeding having thus eventuated and the necessity for civil contempt sanctions having thus been removed the civil contempt issue is moot and the appeal must be dismissed. We think this contention is correct.

A civil contempt proceeding is wholly remedial, to serve only the purposes of the complainant, not to deter offenses against the public or to vindicate the authority of the court. Penfield Co. v. Securities & Exchange Comm., 330 U.S. 585, 590 et seq., 67 S. Ct. 918, 91 L. Ed. 1117 (1947); McCrone v. United States, 307 U.S. 61, 64, 59 S. Ct. 685, 83 L. Ed. 1108 (1939); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 et seq., 31 S. Ct. 492, 55 L. Ed. 797 (1911). While the petition for the rule to show cause in the instant case sought punishment of the Union for both civil and criminal contempt for the alleged failure to obey the temporary restraining order, this appeal involves only the judgment of not guilty of civil contempt and the dismissal of the contempt proceeding in its civil aspect. The Government, as complainant, sought by the contempt proceeding in its civil aspect to coerce the Union into obeying the restraining order and sought thus to accomplish the return of the miner members of the Union to their work in the mines. These objectives were accomplished when, pending the appeal, the labor dispute was settled, the miner members of the Union returned to their employment, normal production of bituminous coal was restored and the national emergency was thus brought to an end. It is clear that under these circumstances the contempt proceeding is moot. Brownlow v. Schwartz, supra; Gompers v. Bucks Stove & Range Co., supra; Buck's Stove & Range Co. v. Am. Fed. of Labor, 219 U.S. 581, 31 S. Ct. 472, 55 L. Ed. 345 (1911). In Brownlow v. Schwartz, as in the instant case, an act ordered to be performed occurred before the appeal came on to be heard. In the Brownlow case the Court of Appeals of the District of Columbia had reversed a decree of the Supreme Court of the District of Columbia dismissing a petition for a writ of mandamus to compel the issuance by the Building Inspector of the District of a permit for the construction of a building and had remanded with directions to issue the writ. A writ of error was allowed by the Supreme Court of the United States, but before its allowance the building permit was issued and the building in question was constructed. On these facts the Supreme Court held that the case had become moot and was therefore no longer a subject appropriate for judicial action. The Court said: "It thus appears that there is now no actual controversy between the parties — no issue on the merits which this Court can properly decide. The case has become moot . . . (1) because the permit, the issuance of which constituted the sole relief sought by petitioner, has been issued and the building to which it related has been completed . . .. [¹⁰ ] This Court will not proceed to a determination when its judgment would be wholly ineffectual for want of a subject matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this Court uniformly has declined to entertain." 261 U.S. at pages 217-218, 43 S. Ct. 263. In addition to cases which have been mentioned above in this opinion, the Court cited: Heitmuller v. Stokes, 256 U.S. 359, 41 S. Ct. 522, 65 L. Ed. 990 (1921); Commercial Cable Co. v. Burleson, 250 U.S. 360, 39 S. Ct. 512, 63 L. Ed. 1030 (1919); Public Utility Commissioners v. Compania General, 249 U.S. 425, 39 S. Ct. 332, 63 L. Ed. 687 (1919); Berry v. Davis, 242 U.S. 468, 470, 37 S. Ct. 208, 61 L. Ed. 441 (1917); American Book Co. v. Kansas, 193 U.S. 49, 24 S. Ct. 394, 48 L. Ed. 613 (1904); Codlin v. Kohlhausen, 181 U.S. 151, 21 S. Ct. 584, 45 L. Ed. 793 (1901); Singer Manufacturing Co. v. Wright, 141 U.S. 696, 12 S. Ct. 103, 35 L. Ed. 906, (1891); Little v. Bowers, 134 U.S. 547, 557, 10 S. Ct. 620, 33 L. Ed. 1016 (1890). In the Brownlow case the writ of error in the Supreme Court of the United States was to the judgment of the Court of Appeals directing issuance of the writ of mandamus by the Supreme Court of the District of Columbia, whereas in the instant case the appeal is not from the temporary restraining order itself but from the judgment that the Union was not guilty of civil contempt for failure, as charged, to comply with the restraining order. But if a review of a mandatory order becomes moot when the act ordered has been performed, as in the Brownlow case, a fortiori an appeal from a judgment of not guilty in a contempt proceeding instituted for the purpose of coercing obedience to a temporary restraining order becomes moot when the objectives of that order have eventuated, as in the instant case. In Gompers v. Bucks Stove & Range Co., supra, it was expressly held that the contempt proceeding necessarily ended with the settlement of the main cause of which it was a part.

If, in the instant case, we considered the appeal on the merits and reversed the judgment of not guilty of civil contempt and directed the District Court to coerce the Union into obeying the temporary restraining order, we would be doing and requiring a futile thing because the ultimate objectives of both the restraining order and of the civil contempt proceeding have, pending the appeal, eventuated; and if we affirmed we would be ruling in respect of events that have passed beyond recall.

The Government attempts to avoid the force of such reasoning and authorities as are set forth above not by denying their validity, but by asserting that the ambit of a civil contempt proceeding is sufficiently broad to include not only coercive measures to compel obedience to an order issued in a complainant's favor but also compensation to the complainant for loss or damage suffered by him from the contemnor's disobedience. The Government admits that "it is true that the cessation by the Union of the strike, subsequent to the adjudication by the district court of the Union's innocence of civil contempt, removed the need for any coercive sanctions to operate in futuro." But the Government urges that "the remedial sanctions relating to the compensation and reparation to be awarded to the United States for the Union's past disobedience of the temporary restraining order from February 11, 1950, through March 4, 1950, remain open and live issues . . . [which] can be disposed of only after this Court has determined the instant appeal from the district court's judgment dismissing the civil contempt proceeding." This dismissal deprived the Government, so we are told, "of the opportunity to demonstrate and obtain reparation for the loss . . . occasioned by the Union's conduct in contemning the temporary restraining order." The Government asserts that "The judgment from which this appeal is taken is . . . equivalent, in effect, to a judgment which finally dismisses an action to recover damages for tortious conduct (see Parker v. United States, 153 F.2d 66, 70); and the right to such damages obviously survives even where subsequent developments in respect of the principal suit — in which an injunction was properly issued — render unnecessary any future continuation of the injunction. Cf. Rice & Adams Corporation v. Lathrop, 278 U.S. 509; Hohorst v. Howard, 37 F. 97; Miller v. Edison Electric Illuminating Co., 66 App.Div. 470, 472, 73 N.Y. Supp. 376, 377, sustained as to the point here involved in 184 N.Y. 17, 20, 76 N.E. 734, 735." In brief, the Government contends that although the instant case may be moot as to the coercive relief sought in the petition for the rule to show cause — the need of such relief having been obviated by the ending of the labor dispute, the return of the Union miners to work and the consequent dissipation of the national peril — the case is not moot as to compensatory relief allowable to the Government in the civil contempt proceeding; i. e., compensation for loss or damage occasioned the Government by the Union's charged failure to obey the temporary restraining order. In final bulwark of this position the Government urges that Gompers v. Bucks Stove & Range Co., supra, is distinguishable from the instant case because in the former the parties to the settlement were also the parties to the injunction suit and contempt proceeding, whereas in the instant case the Government, the party complainant in the injunction suit and the contempt proceeding, was not a party to the settlement — that having been effected by the Union and the Operators.

It is of course true as the Government asserts that the reach of a civil contempt proceeding is broad enough remedially to include not only measures to compel obedience to a court order, but also compensation for loss or damage sustained by the complainant through the contemnor's disobedience. As said by Mr. Chief Justice Vinson speaking for the Court in United States v. Mine Workers, 330 U.S. 258, 303, 304, 67 S. Ct. 677, 91 L. Ed. 884 (1947): "Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained. Gompers v. Bucks Stove & Range Co., supra, at 448, 449." But the application by the Government in the instant case of this well settled proposition is unsound and leads to unsupportable conclusions because of a false premise — the premise that in the civil contempt proceeding tried in the District Court there was, in addition to the issue as to coercive relief, an issue as to compensation for loss or damage occasioned the Government. There was no such issue. Hence no such issue remained "open and live"; hence, the dismissal of the civil contempt proceeding did not deprive the Government "of the opportunity to demonstrate and obtain reparation for the loss . . . occasioned by the Union's conduct in contemning the temporary restraining order"; hence there was no "judgment . . . equivalent . . . to a judgment which finally dismisses an action to recover damages for tortious conduct"; and hence no "right to such damages . . . survives." The petition for the rule to show cause charging failure to obey the temporary injunction contains no allegation of loss or damage suffered by the Government therefrom. Moreover, neither the appendixes to the briefs nor the full record, including the transcript of the contempt hearing, discloses any offer by the Government of evidence of loss or damage. There is in the preamble to the temporary restraining order a recital by the District Court that it appears "from the verified complaint, the affidavits annexed thereto and the verified report of the Board of Inquiry that immediate and irreparable injury, loss and damage would result to the United States . . . before notice could be served to adverse parties and a hearing had on the application . . . for a temporary restraining order." This was the usual recital of a trial court in justification of ex parte action, and the District Court's order following this recital was, as has been stated above, ex parte. But we find neither in the verified complaint, nor in the affidavits annexed thereto, nor in the report of the Board of Inquiry any reference to loss or damage to the Government. The District Court's recital was in this respect in error. Had the Government in the contempt hearing offered evidence of loss or damage and had the District Court admitted this evidence, the absence in the petition for the rule to show cause of an allegation of loss or damage might not, in view of Rule 15 (b) of the Federal Rules of Civil Procedure, have been fatal because the District Court could, within its discretion, upon motion, have permitted amendment of the pleadings to conform to the evidence; indeed under that Rule had such evidence been offered and received and an issue of compensation for loss or damage not raised by the pleadings thus been tried, failure so to amend the pleadings would not have affected the result of the trial of such an issue. But in the absence of both allegation and proof — even of an offer of proof — of loss or damage, the Government cannot justly claim that the contempt proceeding was one for compensation as well as for coercive relief. The case the mootness of which is in question is the case which was tried and appealed, not some case which might have been tried and appealed. The case which was tried and appealed was a civil contempt proceeding the object of which was to coerce the Union into obeying the restraining order, and it was such a proceeding only. That case is moot.

The cases of Rice & Adams Corporation v. Lathrop, Hohorst v. Howard and Miller v. Edison Electric Illuminating Co., cited by the Government, lend no support to its contentions in the instant case in respect of the question of mootness. None of those cases involved a question of mootness. All three sought damages as well as an injunction. The Rice & Adams case was a suit in the District Court for the Western District of New York to enjoin infringement of a patent and for an accounting of profits alleged to have been realized by the infringer and for damages assertedly sustained by the patent owner. Since the patent was about to expire, infringement had ceased and the responsibility of the defendant was unquestioned, the trial court denied, on a discretionary basis, a motion for a preliminary injunction. But the court nevertheless, over the objection of the defendant, instead of transferring the case to the law docket, retained jurisdiction in equity for a disposition of the issues in respect of profits and damages. Hohorst v. Howard was again a suit in equity to enjoin infringement of a patent and to obtain an accounting of profits from past infringements. The question was whether or not upon the death of the defendant the suit might be revived against her executrix, who was not alleged to have infringed. The Circuit Court for the Eastern District of New York held that it could. Miller v. Edison Electric Illuminating Co. was a suit in the Supreme Court of New York by a building owner to enjoin the operation of an electric light plant alleged to have injured his building and for damages. The Supreme Court found that by the time of the trial the operation of the plant had been so modified that no injury was being worked to the plaintiff's property, and that it was improbable that the plant would be so used as to work injury in the future, and accordingly withheld injunctive relief. The court, nevertheless, since at the time the action was commenced the plaintiff was entitled to the equitable relief prayed for, retained jurisdiction for the determination of damages. The Court of Appeals of New York affirmed this action. These three cases stand merely for the proposition stated by the Supreme Court of the United States in Rice & Adams Corporation v. Lathrop that a court of equity once having properly acquired jurisdiction of a case for any purpose will ordinarily retain jurisdiction for all purposes, including the determination of legal rights that otherwise would fall within the exclusive authority of a court of law. But they do not parallel on the facts the instant case because in the latter the District Court did not, after declining to issue an injunction, retain jurisdiction for the determination of loss or damage. It could not have done so because, as above pointed out, no loss or damage was either alleged or proved in the contempt hearing. It is to be added that, even assuming the existence in the contempt proceeding of an issue of loss or damage to the Government, the contention of the Government that that issue could be disposed of only after this court determined the instant appeal from the District Court's judgment dismissing the civil contempt proceeding is not supported by any citation of authority, has no support in any authority of which we are aware, is contrary to the only decision we have been able to find on the subject, Newcomb v. United States, 98 F.2d 25 (9th Cir. 1938), and is contrary to established trial practice in United States Courts. That practice requires that a complainant suing for damages alleged to have resulted from a violation of law shall introduce at the trial evidence not only of the facts which as a matter of law, under the complainant's theory of the case, establish the defendant's liability, but also evidence of the loss or damage he claims to have suffered. The theory of the Government apparently is that it had a right to present its case in the District Court upon the issue of liability alone and that, if it received an adverse decision upon that issue, it then had a right to appeal, and, in the event of a reversal on the merits, a right to a second trial on the issue of loss or damage. Other litigants are afforded no such opportunity to try their cases piecemeal even in the absence of a settlement of the controversy during the appeal, much less when such a settlement has been effected as in the instant case. The Government is entitled to the same procedural rights as are enjoyed by other litigants, but not to more.

The distinction urged by the Government as above set forth in respect of Gompers v. Bucks Stove & Range Co. is, we think, not material. It may be that if the Government had in the civil contempt proceeding pleaded and proved loss or damage suffered by it through the failure of the Union, as charged, to obey the temporary restraining order it might not have been bound, so far as a right to recover such compensation was concerned, by the settlement between the Union and the Operators. But upon this we are not obliged to rule and do not rule for the reason that the Government neither pleaded nor proved loss or damage, and therefore such a question is not before us. In the absence of an issue concerning loss or damage, the question which we have to decide is not whether the Government was bound by the settlement between the Union and the Operators of the labor dispute, but whether the civil contempt proceeding, to which the Government was a party — which the Government itself instituted to secure obedience to the temporary restraining order — became moot by the accomplishment, through the settlement, of the objectives of that order. We hold that the civil contempt proceeding did become moot.

The Government argues further in its brief, on the question of mootness, that "The same considerations that impart finality, for the purposes of the statutory jurisdiction of an appellate court (supra, pp. 2-4), destroy appellee's contention that the case has been rendered moot." For this the Government cites Lamb v. Cramer, 285 U.S. 217, 52 S. Ct. 315, 76 L. Ed. 715 (1932) and Lynham v. Hufty, 44 App.D.C. 589, 593 (1916). The parenthetical reference is to a contention earlier in the Government's brief that the judgment of not guilty of civil contempt is a final judgment which is independently appealable. We are unable to see what bearing either this argument or the cases cited have upon the question of mootness. That question is not whether or not an appeal can be taken from a judgment of not guilty of civil contempt independently of an appeal in the basic injunction proceeding itself of which the temporary restraining order and the contempt proceeding were incidents. The question is whether or not such an appeal, if it can be independently taken, is rendered moot by the eventuation of the objectives sought in the temporary restraining order to secure obedience to which the civil contempt proceeding was instituted.

It was suggested by the Government during the oral argument of the appeal that in the event of a reversal on the merits the Government might be awarded costs and that this saves the case from mootness. No authorities were cited to this effect, and we are aware of none. Such authorities as we find are to the contrary. Bender v. Donoghue, 70 F.2d 723 (5th Cir. 1934) and Clark v. Fairbanks, 249 Fed. 431 (5th Cir. 1918). If the suggestion of the Government were correct, no case on appeal would ever be moot because in all cases on appeal there is a possibility of an award of costs to the appellant in the event of a reversal. The Government's suggestion would abolish the doctrine that the settlement of a controversy pending appeal renders the appeal moot.

We have given consideration to the classes of cases typified by Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310 (1911); Gay Union Corporation v. Wallace, 71 App.D.C. 382, 112 F.2d 192 (1940); and Boise City Irr. & Land Co. v. Clark, 131 Fed. 415 (9th Cir. 1904), in which, against a contention that they were moot, orders which had expired or become inoperative were reviewed. In the Southern Pacific Terminal case, the order required the appellants to cease and desist for a period of not less than two years from granting undue preferences and advantages to a shipper in respect of wharfage charges and wharfage space. The two-year period had expired pending the appeal. The Supreme Court nevertheless held that it would review the order for the reasons that it might be the basis of further proceedings, and was of continuing character and capable of repetition and that such orders should not, because short term, evade review. In Gay Union v. Wallace, a cane sugar allotment order issued by the Secretary of Agriculture under the Sugar Act of 1937, 7 U.S.C.A. § 1111 et seq. — which required him to make annual determinations of sugar quotas and to apportion them among given areas and to make individual allotments of the area quotas — had become inoperative pending the appeal. This court nevertheless reviewed it because the Sugar Act was still in effect and as the court said: ". . . it seems not unlikely that the order complained of may be replaced by another of substantially similar import and that appellants, in the current year, will find themselves in the same position as in the preceding year, since, in the very nature of things, it will be again impossible to secure a court review and obtain a decision before the end of the allotment period."¹¹  In the Boise City case, an order of a board of county commissioners, acting as a board of water commissioners, which prescribed maximum irrigation rates chargeable to consumers by an irrigation company for the irrigation season of a given year was reviewed notwithstanding the expiration of the year. The Court of Appeals decided the case "partly because the rate, once fixed, continues in force until changed as provided by law, and partly because of the necessity or propriety of deciding some question of law presented which might serve to guide the municipal body when again called upon to act in the matter." The underlying theory of these three decisions appears to be that a reviewing tribunal may properly establish a guide for an administrative body or official in respect of orders which may be the basis of further proceedings or are of continuing character or may be repeated, but which, because short term, may evade review. Even assuming some similarity between the temporary restraining order in the instant case and the orders reviewed in the three cases stated, there is obviously no similarity between them and the judgment of not guilty of civil contempt which is the subject of the appeal in the instant case. Certainly that judgment has no similarity to an irrigation rate order, or to a sugar allotment order, or to an order forbidding an illegal preference to a shipper.

The appeal is dismissed as moot.

FAHY, Circuit Judge, dissenting.

As the very thoughtful opinion of Chief Judge STEPHENS demonstrates, and as I understand the Government does not dispute, the question of coercive relief in the civil contempt proceeding¹  has become moot by the settlement of the strike and the return of the miners to work. But the main question of contempt itself is not thereby rendered moot because other relief, in the form of compensatory damages, is sought as a consequence of the alleged contempt. The able opinion of the court treats the contempt proceedings as if they were for coercive relief alone because the pleadings and evidence in those proceedings do not refer to compensatory damages, from which the court concludes there was no issue in that regard. As I appraise the course of events in the District Court the procedure followed was first to determine the issue of contempt, the question of relief or remedy to be considered subsequently should the contempt issue be resolved against the Union. Thus, the rule to show cause did not refer to the type of relief which might be granted. It directed the Union to show cause "why it should not be punished as and for civil and criminal contempt," without specification either of coercive or compensatory relief incident to the alleged civil contempt. It further provided that in event, by the time the return to the rule to show cause was made, it should be found that the alleged contempt had not sufficiently been purged, a trial should be held, again without specification in the order to this effect of the kind of relief or remedy the court might adopt if the trial resulted in finding that contempt had been committed. This was a reasonable mode of proceeding, though perhaps not the only mode.

The petition of the United States upon the basis of which the court issued the rule to show cause upon the Union includes a prayer for general relief. This furnishes an adequate basis for the admission of evidence as to the appropriate remedy should contempt be found to have occurred. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449, 31 S. Ct. 492, 55 L. Ed. 797. It was not essential that such evidence be adduced prior to determination of the basic issue of contempt. Accordingly, as it seems to me, that issue of contempt remains, unless we should hold as a matter of law that compensatory damages are not available to the United States.² 

A majority of the court do not reach the merits of the questions of contempt or of compensatory damages, so I express no opinion as to them. Since in my view, because of those questions, the case is not moot, I think they should be considered and decided by the court.