# La Buy v. Howes Leather Company/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
352 U.S. 249
La Buy v. Howes Leather Company
Argued: Oct. 17 and 18, 1956. --- Decided: Jan 14, 1957
Mr. Justice BRENNAN, with whom Mr. Justice FRANKFURTER, Mr. Justice BURTON and Mr. Justice HARLAN join, 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. Only last Term, in Parr v. United States, 351 U.S. 513, 76 S.Ct. 912, this Court restated those bounds:
'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 Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, nor one where appellate review will be defeated if a writ does not issue, cf. State of Maryland v. Soper, 270 U.S. 9, 29-30, 46 S.Ct. 185, 189, 70 L.Ed. 449. Here the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction. The extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals. Roche v. Evaporated Milk Ass'n, supra, 319 U.S. at page 30, 63 S.Ct. at page 943.' 351 U.S. at page 520, 76 S.Ct. at page 917.
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. Here also 'the most that could be claimed is that the district (court) * * * erred in ruling on matters within (its) jurisdiction.' If Judge La Buy erred in finding that there was an 'exceptional condition' requiring the reference or did not give proper weight to the caveat of the Rule that a 'reference to a master shall be the exception and not the rule,' that was mere error 'in ruling on matters within (the District Court's) jurisdiction.' Such mere error does not bring into play the power of the Court of Appeals to issue an extraordinary writ. Nor did Judge La Buy's order of reference present the Court of Appeals with a case 'where appellate review will be defeated if a writ does not issue.' The litigants may suffer added expense and possible delay in obtaining a decision as a consequence of the reference, but Roche settles that 'that inconvenience is one which we must take if Congress contemplated in providing that only final judgments should be reviewable.'
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 long-standing 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 the final judgment, and not from an abuse of judicial power, or refusal to exercise it, which it is the function of mandamus to correct.' 319 U.S. at page 31, 63 S.Ct. at page 944.
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, 28 U.S.C.A. § 1291, and to review specified exceptional classes of interlocutory orders granted by 28 U.S.C. § 1292, 28 U.S.C.A. § 1292. This holding that an independent appellate power is given by the All Writs Act not only discards the constraints upon the scope of the power to issue extraordinary writs restated in Parr, but, by the very fact of doing so, opens wide the crack in the door which, since the Judiciary Act of 1789, has shut out from intermediate appellate review all interlocutory actions of the District Courts not within the few exceptional classes now specified by the Congress in § 1292.
The power of the Courts of Appeals to issue extraordinary writs stems from § 14 of the Judiciary Act of 1789. Chief Judge Magruder, in In re Josephson, 1 Cir., 218 F.2d 174, provides us with an invaluable history of this power and of the judicial development of its scope. He demonstrates most persuasively tht '(t)he all writs section does not confer an independent appellate power; the power is strictly of an auxiliary nature, in aid of a jurisdiction granted in some other provision of law, as was sharply pointed out in Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 29-31, 63 S.Ct. 938 (943-944). * * *' 218 F.2d at page 180.
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'.' 218 F.2d at page 181. In contrast, a District Court order denying a transfer would not come under the umbrella of power under the All Writs Act, since retention of the cause by the District Court can hardly thwart or tend to defeat the power of the Court of Appeals to review that order after final decision of the case. The distinction between the grant and denial of transfer was recognized in Carr v. Donohoe, 201 F.2d 426, where the Court of Appeals for the Eighth Circuit denied a petition for writ of mandamus directed to an order of a District Court transferring the cause to another District Court within the same circuit. The Court of Appeals properly noted that the order was merely a nonappealable interlocutory order in nowise impairing its actual or potential jurisdiction to review that and any other action after final decision, observing: 'It seems obvious that the transfer of the * * * action * * * to (another district in the same circuit) cannot in any way impair or defeat the jurisdiction of this Court to review any appealable order or judgment which eventually may be entered in the case.' 201 F.2d at pages 428 429.
This Court's reliance upon Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481, and McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992, 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 page 179. This 'different sort of power' derived from § 13 of the Judiciary Act of 1789, granting the Supreme Court power to issue writs of mandamus 'in cases warranted by the principles and usages of law. This provision, unlike the All Writs Act, was not restricted in its use to aiding the jurisdiction of the appellate court, and therefore might be deemed to have granted a broader power to this Court than that conferred on the Courts of Appeals by the latter statute.
Furthermore, Los Angeles Brush Mfg. 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 page 31, 63 S.Ct. at page 944.
The key to both Los Angeles Brush Mfg. Corp. and McCullough is found in the language in the former in 272 U.S. 706, 47 S.Ct. 288:
'* * * 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, and of anything approaching a wholesale disregard of the rules prescribed by this Court, such as was involved there. I subscribe fully to Chief Judge Magruder's conclusion in Josephson:
'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 (28 U.S.C.A. § 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 page 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 and is followed in varying degrees in some of the States. That standard allows interlocutory appeals by leave of the appellate court. It is a compromise between conflicting viewpoints as to the extent that interlocutory appeals should be allowed. The federal policy of limited interlocutory review stresses the inconvenience and expense of piecemeal reviews and the strong public interest in favor of a single and complete trial with a single and complete review. The other view, of which the New York practice of allowing interlocutory review as of right from most orders is the extreme example, perceives danger of possible injustice in individual cases from the denial of any appellate review until after judgment at the trial.
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, 60 S.Ct. 540, 541, 84 L.Ed. 783. 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, but as well because the encouragement to interlocutory appeals offered by this decision must necessarily aggravate further the already bad condition of calendar congestion in some of our District Courts and also add to the burden of work of some of our busiest Courts of Appeals. More petitions for interlocutory review, requiring the attention of the Courts of Appeals, add, of course, to the burden of work of those courts. Meanwhile final decision of the cases concerned is delayed while the District Courts mark time awaiting action upon the petitioners. Rarely does determination upon interlocutory review terminate the litigation. Moreover, the District Court calendars become longer with the addition of new cases before older ones are decided. This, then, interposes one more obstacle to the strong effort being made to better justice through improved judicial administration.
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.

## Notes

* ↑ '(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.' 28 U.S.C. § 1651(a), 28 U.S.C.A. § 1651(a).
* ↑ Cf. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106; Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041.
* ↑ 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 page 30, 63 S.Ct. at page 943. Cf. United States Alkali Export Ass'n v. United States, 325 U.S. 196, 202 203, 65 S.Ct. 1120, 1124-1125, 89 L.Ed. 1554.
* ↑ '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, 28 U.S.C.A. § 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, 9 Cir., 185 F.2d 457.
* ↑ In the Josephson case, Chief Judge Magruder said much the same thing:
* ↑ 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. III, § 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, and address prepared for delivery before the Mid-Atlantic Regional Meeting of the American Bar Association, October 11, 1956.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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