STEPHENS, Chief Judge.
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.
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.
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.
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.
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
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.
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 . . ..[
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
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
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
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
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."
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 proceeding
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.
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.
NOW, THEREFORE, it is by the Court this 11th day of February, 1950, ORDERED:
1. That the defendant, International Union, United Mine Workers of America, and its officers, agents, servants and employees, and all persons in active concert or participation with them, be and they hereby are restrained pending further order of this Court from continuing, in whole or in part, the strike now in existence at bituminous coal mines throughout the United States of America owned or operated by coal operators and associations signatory to the National Bituminous Coal Wage Agreement of 1948 (hereinafter referred to as the Agreement), and that the said Union and its officers, agents, servants and employees, and all persons in active concert or participation with them, be and they hereby are restrained pending further order of this Court from in any manner engaging in, permitting or encouraging the said strike or its continuation, in whole or in part.
2. That the said Union, acting through its president and other appropriate officers, agents, servants and employees, forthwith instruct, and take all appropriate action as may be necessary to insure that such instructions are carried out, all members of the said Union employed in the bituminous coal mines covered by the Agreement to cease the said strike, to return to their employment forthwith and to begin and to continue work under the wages, hours, terms and conditions of employment set forth in the said Agreement, except in such instances in which new collective bargaining agreements shall have been effected between the defendant Union and any operator defendant or defendants, in which event the terms of such new agreements shall prevail; and that the said Union, acting through the said officers, agents, servants, and employees cease, desist and refrain from ordering, encouraging, recommending, instructing, inducing or in any wise permitting the said strike to continue, in whole or in part.
3. That the defendants, and each of them, and their officers, agents, servants and employees, and all persons in active concert or participation with them, be and they hereby are restrained pending further order of this Court from encouraging, causing or engaging in a lockout or strike or work stoppage, in whole or in part, at any bituminous coal mines covered by the Agreement, or from in any manner interfering with or affecting the orderly continuance of work as customarily scheduled at the said coal mines, or from changing, altering or deviating from the wages, hours, terms and conditions of employment set forth in the said Agreement, except by the mutual consent of the Union and the Operator defendant concerned, and from taking any action which would interfere with the Court's jurisdiction, or which would impair, obstruct or render fruitless the determination of this case by the Court.
4. That the defendants engage in free collective bargaining in good faith for the purpose of resolving their disputes and that they make every effort to adjust and settle their differences as contemplated by the National Emergencies provisions of the Labor Management Relations Act, 1947.
5. That this restraining order shall expire at 11:20 a. m. o'clock a. m. [sic] on February 21, 1950, unless before such time the order for good cause shown is extended, or unless the defendants consent that it may be extended for a longer period.
6. That plaintiff's motion for a preliminary injunction be set down for hearing on February 20, 1950, at 10 o'clock a. m. in the Motions Court.
The Government relied upon evidence to the effect that: A letter of January 31, 1950, from the President to the president of the Union and to the Operators proposed the maintenance of normal production of coal for seventy days, beginning February 6, 1950, during which time a fact-finding board to be appointed by the President would inquire into the dispute and make recommendations which would not bind the parties. On February 4, 1950, John L. Lewis, president of the Union, rejected this offer in a letter asserting, in respect of the prospect of an injunction to compel the members of the Union to return to work, that "It is questionable whether one could postulate that such mass coercion would insure enthusiastic service from grateful men." This letter was included in the February 15, 1950 issue of the United Mine Workers Journal distributed to the bituminous coal mine membership of the Union. The total production of bituminous coal for the week ended February 11, 1950, was about 80% below normal. Approximately 85% of the bituminous coal miners of the United States were members of the Union and of such membership between 90% and 95% were not at work during the week ended February 11, 1950. The lowered rate of production and the number of members of the Union absent from the mines continued through the week ended February 18, 1950, and through February 20, 21 and 22. Some 370,000 bituminous coal miners who were members of the Union were not working on February 11, 1950, and did not return to their employment at any time after service of the temporary restraining order on that date. As of the week ended February 11, 1950, the estimated stock of bituminous coal on hand in the United States totaled only about sixteen days' supply and at the consumption rate of December, 1949, there would, on March 11, 1950, be a deficit in the nation's bituminous coal supply of 7,200,000 tons. At the time of a work stoppage in the bituminous coal industry by members of the Union in December, 1946, John L. Lewis, president of the Union, sent a letter to all members of the Union and to all local unions in the bituminous districts of the United States couched (according to the Government's contention) in more effective terms than the telegrams and messages sent by the Union in the instant case. This single communication in 1946, in a situation similar to that involved in the instant case, resulted in a successful termination of the strike and immediate resumption of coal production. In response to the Union's telegram of February 11, 1950, instructing the Union members to return to work in obedience to the temporary restraining order, telegrams were received by the Union officials from a number of local unions stating that the members of these locals declined to return to work until a contract had been signed.