La Buy v. Howes Leather Co.
La Buy v. Howes Leather Co.
Opinion of the Court
delivered the opinion of the Court.
These two consolidated cases present a question of the power of the Courts of Appeals to issue writs of mandamus to compel a District Judge to vacate his orders entered under Rule 53 (b) of the Federal Rules of Civil Procedure referring antitrust cases for trial before a master. The petitioner, a United States District Judge sitting in the Northern District of Illinois, contends that the Courts of Appeals have no such power and that, even if they did, these cases were not appropriate ones for its exercise. The
History of the Litigation. — These petitions for mandamus, filed in the Court of Appeals, arose from two antitrust actions instituted in the District Court in 1950.
The record indicates that the cases had been burdensome to the petitioner. In Roklfing alone, 27 pages of the record are devoted to docket entries reflecting that petitioner had conducted many hearings on preliminary pleas and motions. The original complaint had been twice amended as a result of orders of the court in regard to misjoinders and severance; 14 defendants had been dismissed with prejudice; summary judgment hearings had resulted in a refusal to enter a judgment for some of the defendants on the pleadings; over 50 depositions had been taken; and hearings to compel testimony and require the production and inspection of records were held. It appears that several of the hearings were extended and included not only oral argument but submission of briefs, and resulted in the filing of opinions and memoranda by the petitioner. It is reasonable to conclude that much time would have been saved at the trial had petitioner heard the case because of his familiarity with the litigation.
The References to the Master. — The references to the master were made under the authority of Rule 53 (b) of the Federal Rules of Civil Procedure.
The Power of the Courts of Appeals. — Petitioner contends that the power of the Courts of Appeals does not extend to the issuance of writs of mandamus to review interlocutory orders except in those cases where the review of the case on appeal after final judgment would be frustrated. Asserting that the orders of reference were in exercise of his jurisdiction under Rule 53 (b), petitioner urges that such action can be reviewed only on appeal and not by writ of mandamus, since by congres
The Discretionary Use of the Writs. — It appears from the docket entries to which we heretofore referred that the petitioner was well informed as to the nature of the antitrust litigation, the pleadings of the parties, and the gist of the plaintiffs’ claims. He was well aware of the theory of the defense and much of the proof which necessarily was outlined in the various requests for discovery, admissions, interrogatories, and depositions. He heard arguments on motions to dismiss, to compel testimony on depositions, and for summary judgment. In fact, peti
The use of masters is “to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause,” Ex parte Peterson, 253 U. S. 300, 312 (1920), and not to displace the court. The exceptional circumstances here warrant the use of the extraordinary remedy of mandamus. See Maryland v. Soper, 270 U. S. 9, 30 (1926). As this Court pointed out in Los Angeles Brush Corp. v. James, 272 U. S. 701, 706 (1927): “. . . [W]here the subject concerns the enforcement of the . . . [r]ules which by law it is the duty of this Court to formulate and put in force,” mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at page 707, were the Court “. . . to find that the rules have been practically nullified by a district judge . . . it would not hesitate to restrain [him]. . . .” The Los Angeles Brush Corp. case was cited as authority in 1940 for a per curiam opinion in McCullough v. Cosgrave, 309 U. S. 634, in which the Court summarily
It is claimed that recent opinions of this Court are to the contrary. Petitioner cites Bankers Life & Casualty Co. v. Holland, 346 U. S. 379 (1953), and Parr v. United States, 351 U. S. 513 (1956). The former case did not concern rules promulgated by this Court but, rather, an Act of Congress, the venue statute. Furthermore, there we pointed out that the “. . . All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or ‘usurpation of judicial power’ . . . .” 346 U. S., at 383. Certainly, as the Court of Appeals found here, there was a clear abuse of discretion. In the Parr case, the District Court had not exceeded or refused to exercise its functions. It dismissed an indictment because the Government had elected to prosecute Parr in another district under a new indictment. The effect of the holding was merely that the dismissal of the first indictment was not an abuse of the discretion vested in the trial judge.
It is also contended that the Seventh Circuit has erroneously construed the All Writs Act as “conferring on it a ‘roving commission’ to supervise interlocutory orders of the District Courts in advance of final decision.” Our examination of its opinions in this regard leads us to the conclusion that the Court of Appeals has exercised commendable self-restraint. It is true that mandamus should
We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper
Affirmed.
Rohlfing v. Cat’s Paw Rubber Co., No. 50 C 229, U. S. D. C. N. D. Ill., and Shaffer v. U. S. Rubber Co., No. 50 C 844, U. S. D. C. N. D. Ill.
The figures indicated refer to the number of parties at the time of the petition for mandamus. When the action was originally filed there were 87 plaintiffs and 25 defendants.
The figures indicated refer to the number of parties at the time of the petition for mandamus. When the action was originally filed there were 10 plaintiffs and 20 defendants.
Rule 53 (b) provides:
“(b) REFERENCE. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it.”
The fact that the master is an active practitioner would make the comment of Chief Justice Vanderbilt with regard to the effect of references appropriate here. In his work, Cases and Materials on Modern Procedure and Judicial Administration (1952), at pages 1240-1241, he states:
“There is one special cause of delay in getting cases on for trial that must be singled out for particular condemnation, the all-too-prevalent habit of sending matters to a reference. There is no more effective way of putting a case to sleep for an indefinite period than to permit it to go to a reference with a busy lawyer as referee. Only a drastic administrative rule, rigidly enforced, strictly limiting the matters in which a reference may be had and requiring weekly reports as to the progress of each reference will put to rout this inveterate enemy of dispatch in the trial of cases.”
“ (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Dissenting Opinion
dissenting.
The issue here is not whether Judge La Buy’s order was reviewable by the Court of Appeals. The sole question is whether review should have awaited final decision in the cause or whether the order was reviewable before final decision by way of a petition under the All Writs Act for the issuance of a writ of mandamus addressed to it. I do not agree that the writ directing Judge La Buy to vacate the order of reference was within the bounds of the discretionary power of the Court of Appeals to issue an extraordinary writ under the All Writs Act.
“The power to issue them is discretionary and it is sparingly exercised. . . . This is not a case where a court has exceeded or refused to exercise its jurisdiction, see Roche v. Evaporated Milk Assn., 319 U. S. 21, 26, nor one where appellate review will be defeated if a writ does not issue, cf. Maryland v. Soper, 270 U. S. 9, 29-30. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The ex*261 traordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Assn., supra, at p. 30.” 351 U. S., at 520.2
The action of the Court of Appeals for the Seventh Circuit here under review is outside these limitations. The case before the Court of Appeals was “not a case where a court has exceeded or refused to exercise its jurisdiction. . . .” Rule 53 (b) of the Federal Rules of Civil Procedure vested Judge La Buy with discretionary power to make a reference if he found, and he did, that “some exceptional condition” required the reference.
But, regrettable as is this Court’s approval of what I consider to be a clear departure by the Court of Appeals from the settled principles governing the issuance of the extraordinary writs, what this Court says in reaching its result is reason for particularly grave concern. I think this Court has today seriously undermined the longstanding statutory policy against piecemeal appeals. My brethren say: “Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it has power in proper circumstances, as here, to issue writs of mandamus reaching them. . . . This is not to say that the conclusion we reach on the facts of this case is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders.” I understand this to mean that proper circumstances are present for the issuance of a writ in this case because, if the litigants are not now heard, the Court of Appeals will not have an opportunity to relieve them of the burden of the added expense and delay of decision alleged to be the consequence of the reference. But that bridge was crossed by this Court in Roche and Alkali, where this very argument was rejected: “Here the inconvenience to the litigants results alone from the circumstance that Congress has provided for review of the district court’s order only on review of
What this Court is saying, therefore, is that the All Writs Act confers an independent appellate power in the Courts of Appeals to review interlocutory orders. I have always understood the law to be precisely to the contrary. The power granted to the Courts of Appeals by the All Writs Act is not an appellate power but merely an auxiliary power in aid of and to protect the appellate jurisdiction conferred by other provisions of law, e. g., the power to review final decisions granted by 28 U. S. C. § 1291,
The power of the Courts of Appeals to issue extraordinary writs stems from § 14 of the Judiciary Act of 1789.
The focal question posed for a Court of Appeals by a petition for the issuance of a writ is whether the action of the District Court tends to frustrate or impede the ultimate exercise by the Court of Appeals of its appellate jurisdiction granted in some other provision of the law. The answer is clearly in the affirmative where, for example, the order of the District Court transfers a cause to a District Court of another circuit for decision. That was Josephson, where the Court of Appeals for the First Circuit held that an order of a District Court in the circuit transferring a case to the District Court of another circuit was within the reach of the Court of Appeals’ power under the All Writs Act because “the effect of the order is that the district judge has declined to proceed with the determination of a case which could eventually come to this court by appeal from a ‘final decision’.”
This Court’s reliance upon Los Angeles Brush Corp. v. James, 272 U. S. 701, and McCullough v. Cosgrave, 309 U. S. 634, is, in my opinion, misplaced. Those cases involved the power, not of the Courts of Appeals, but of this Court, to issue extraordinary writs. In Josephson, Chief Judge Magruder took pains to emphasize the “caution that decisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. The reason is that the Supreme Court might have been exercising a different sort of power from the strictly auxiliary power given to us under the all writs section.” 218 F. 2d, at 179. This “different sort of power” derived from § 13 of the Judiciary
Furthermore, Los Angeles Brush Corp. was a case where a reference was made, not because a district judge decided that the particular circumstances of the particular case required a reference, but pursuant to an agreement among all the judges of that District Court always to appoint masters to hear patent cases regardless of the circumstances of particular cases. The McCullough situation was much the same. As that case was delimited in Roche, this Court was there confronted by a case of “the persistent disregard of the Rules of Civil Procedure prescribed by this Court.” 319 U. S., at 31.
The key to both Los Angeles Brush Corp. and McCullough is found in the language in the former in 272 U. S., at 706:
“. . . we think it clear that where the subject concerns the enforcement of the Equity Rules which by law it is the duty of this Court to formulate and put in force, and in a case in which this Court has the ultimate discretion to review the case on its merits, it may use its power of mandamus and deal directly with the District Court in requiring it to conform to them.” (Emphasis added.)
In other words, neither of those cases can be accepted as supporting what the Court of Appeals undertook to do here, both because of.the absence in old § 234 of the “in aid of” jurisdiction limitation now contained in § 1651,
“Contrary to the view which seems to have been occasionally taken, or at least sub silentio assumed, in other courts of appeals, we do not think that 28 U. S. C. § 1651 [the All Writs Act] grants us a general roving commission to supervise the administration of justice in the federal district courts within our circuit, and in particular to review by a writ of mandamus any unappealable order which we believe should be immediately reviewable in the interest of justice.” 218 F. 2d, at 177.
The view now taken by this Court that the All Writs Act confers an independent appellate power, although not so broad as “to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders,” in effect engrafts upon federal appellate procedure a standard of interlocutory review never embraced by the Congress throughout our history, although it is written into the English Judicature Act
The polestar of federal appellate procedure has always been “finality,” meaning that appellate review of most interlocutory actions must await final determination of the cause at the trial level. “Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all.” Cobbledick v. United States, 309 U. S. 323, 324-325. The Court’s action today shatters that statutory policy. I protest, not only because we invade a domain reserved by the Constitution exclusively to the Congress,
The power of the Court of Appeals to correct any error in Judge La Buy’s reference is found exclusively in the power to review final decisions under § 1291. The Court of Appeals erred by assuming a nonexistent power under the All Writs Act to review this interlocutory order in advance of final decision. Insofar as the Court approves this error, I must respectfully dissent.
" (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28U.S.C. §1651 (a).
Cf. Bankers Life & Cas. Co. v. Holland, 346 U. S. 379; Ex parte Fahey, 332 U. S. 258.
It should be noted that the objection to references stated by Chief Justice Vanderbilt, as quoted in footnote 5 of the majority opinion, is reflected in New Jersey Revised Rules 4:54-1, which provides as follows: “No reference for the hearing of a matter shall be made to a master, except under extraordinary circumstances, upon approval of the Chief Justice, or for the taking of a deposition, or as to matters heard by a standing master appointed by the Supreme Court.” (Emphasis added.) If the federal rule required a like consent by a chief judge, a reference without such consent would be outside the jurisdiction of the District Court, and, therefore, subject to correction by writ of mandamus. The vital distinction is that the federal rule as presently framed vests discretion in the District Courts.
319 U. S., at 30. Cf. United States Alkali Export Assn. v. United States, 325 U. S. 196, 202-203.
“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, . . . except where a direct review may be had in the Supreme Court.” 28 U. S. C. § 1291.
Section 1292, in substance, confers upon the Courts of Appeals jurisdiction of appeals from interlocutory orders of the District Courts relating to injunctions, receivership, and certain admiralty and patent infringement cases.
1 Stat. 81, substantially re-enacted in § 262 of the Judicial Code of 1911, 36 Stat. 1162.
Accord, Wiren v. Laws, 90 U. S. App. D. C. 105, 194 F. 2d 873; Gulf Research & Development Co. v. Harrison, 185 F. 2d 457.
In the Josephson case, Chief Judge Magruder said much the same thing:
“If the district judge had held on to the case, i. e., had denied the motion for transfer, such action would have preserved, not frustrated, any potential appellate jurisdiction which we might have had; and we are at a loss to understand how we could properly review on mandamus an order denying a transfer, on the pretense that such a review would be in 'aid’ of our -appellate jurisdiction.” 218 F. 2d, at 181.
1 Stat. 80, 81, substantially re-enacted in § 234 of the Judicial Code of 1911, 36 Stat. 1156. -
Judicature Act, 1925, 15 & 16 Geo. 5, c. 49, § 31 (1) (i).
E. g., Miss. Code Ann., 1942, § 1148; N. J. Rev. Rules 2:2-3.
See, e. g., the discussion by Mr. Justice Jacobs in Appeal of Pennsylvania R. Co., 20 N. J. 398, 120 A. 2d 94; Crick, The Final Judgment as a Basis for Appeal, 41 Yale L. J. 539; Note, 50 Col. L. Rev. 1102; Note, 58 Yale L. J. 1186; Report, Special Meeting of Judicial Conference of the United States, p. 7 (March 20-21, 1952); Report, Regular Annual Meeting of Judicial Conference of the United States, p. 27 (1953).
N. Y. Civ. Prac. Act, § 609.
U. S. Const., Art. Ill, § 1.
The seriousness of the problem of calendar congestion in both federal and state courts prompted the Attorney General of the United States, in May 1956, to call a conference on court congestion and delay. This conference resulted in the appointment of a distinguished committee to formulate a frontal attack upon the problem. Rogers, Towards Eliminating Delayed Justice, an address prepared for delivery before the Mid-Atlantic Regional Meeting of the American Bar Association, October 11,1956.
Reference
- Full Case Name
- La BUY, UNITED STATES DISTRICT JUDGE, v. HOWES LEATHER CO., INC., Et Al.
- Cited By
- 663 cases
- Status
- Published