# Miner v. Atlass/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
363 U.S. 641
Hon. Julius H. MINER and Hon. Edwin A. Robson, etc., Petitioners, v. H. Leslie ATLASS.
Argued: March 3, 1960. --- Decided: June 20, 1960
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, dissenting.
The Court today strikes down a local admiralty rule which has counterparts in District Courts throughout the country. In fact, the statistics of the most recent fiscal year in the experience of the federal courts indicate that over half the admiralty litigation in the federal courts is conducted in courts having discovery-deposition rules like the one today nullified. I cannot agree to a judgment which lightly brings about so widespread a turning back of the clock in the admiralty practice throughout the Nation.
I agree with the Court that the first and second contentions of the petitioners, on which reliance is put that the judgment should be reversed, are not well taken; but I must dissent from the Court's rejection of the third, and truly substantial, contention of petitioners. This is that the order for discovery depositions made here was sanctioned by the District Court's local Admiralty Rule 32 and that that rule is a valid exercise of the District Court's rulemaking power. There is no doubt that the order in question was authorized by the local rule; and so the only question is of the rule's validity. The question is one of power; and to me the Court's opinion fails completely to demonstrate a lack of power to promulgate the rule in question in this District Court and the many District Courts having a very substantial admiralty business which have adopted similar rules. The local rule was promulgated under authority of this Court's General Admiralty Rule 44, which provides:
'Rule 44. Right of trial courts to make rules of practice.
'In suits in admiralty in all cases not provided for by these rules or by statute, the district courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.'
The authority established by General Admiralty Rule 44, under this Court's statutory powers, is separate in form and different in expression from the general statutory authority of the District Courts, with the other federal courts, to make 'rules for the conduct of their business.' 28 U.S.C. § 2071, 28 U.S.C.A. § 2071. Whatever the precise content of § 2071, I think as a separate authority General Admiralty Rule 44 must be read separately as a grant of power to the District Courts to make admiralty rules of procedure effective as to actions within them, subject only to the limitations specified in the rule or otherwise implicit in law. This seems to be the obvious meaning of the rule, and it should be taken at its face value. See Papanikolaou v. Atlantic Freighters, Ltd., 4 Cir., 232 F.2d 663, 665; Galveston Dry Dock & Construction Co. v. Standard Dredging Co., 2 Cir., 40 F.2d 442, 444. Cf. British Transport Commission v. United States, 354 U.S. 129, 138, 77 S.Ct. 1103, 1107, 1 L.Ed.2d 1234. Civil Rule 83 is quite similar in concept, and appears to be given a comparable interpretation. Russell v. Cunningham, 9 Cir., 233 F.2d 806, 811; 7 Moore, Federal Practice (2ed ed.), 83.03. Cf. United States v. Hvass, 355 U.S. 570, 575, 78 S.Ct. 501, 504, 2 L.Ed.2d 496.
Clearly a rule providing for discovery by way of deposition practice is one regulating procedure. See Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479. The Court does not venture to deny this. Of course this procedural rule may be as important as many a 'substantive' doctrine, but there is nothing in General Rule 44 confining the local rulemaking power to exercises in the trivial. Hence the District Court rule is prima facie valid (as the Court apparently admits), and we must examine whether it is invalidated by reason of conflict with some rule promulgated by this Court, or some statute. No statute precludes the local rule; but the court holds that it is precluded by some of this Court's General Admiralty Rules. The Court gingerly draws some support from the circumstance that the amendatory Admiralty Rules promulgated by this Court in 1939-General Admiralty Rules 31 through 32C-incorporated some of the Civil Rules' discovery devices but not others. On this basis it is concluded that the District Courts are precluded from adopting local rules that establish in admiralty the Civil Rules discovery devices not adopted in the General Admiralty Rules-such as Civil Rule 26. But certainly this negative inference does not follow. This Court's promulgation of General Admiralty Rules 31 through 32C made the observance of those rules, counterparts of Civil Rules as they were, mandatory on the District Courts. As to those Civil Rules dealing with discovery and pretrial practice that were not adopted by General Admiralty Rules, the inference is obvious that they were not made mandatory upon the District Courts; but it does not follow that the District Courts' power under General Admiralty Rule 44 in regard to local rules was lessened. This Court decided that the rules it promulgated in the discovery area were enough for the time being as General Admiralty Rules; but there is not a word in the rules that inhibits the District Courts from going further if they desire. The test of General Rule 44 is simply whether the local rules are 'not inconsistent' with the general. There is not a word in the General Rules indicating that their discovery devices shall constitute the only ones permissible. Howe then does the Court come to a contrary conclusion?
The Court's basic reason, it appears, why this local rule is to be held void under the negative implications of the 1939 amendments to the General Admiralty Rules, is that it was not promulgated with the safeguards provided for in the current General Admiralty Rules Enabling Act. 28 U.S.C. § 2073, 28 U.S.C.A. § 2073; see also 28 U.S.C. § 331, 28 U.S.C.A. § 331 (advisory function of Judicial Conference). There are many answers to this contention. Perhaps the most basic is that these safeguards are relevant only to General Admiralty Rules-rules which are promulgated by this Court, and whose observance is mandatory in admiralty throughout the country. The statutes that ordain those safeguards do not require them of local rules; and this reflects the difference in Congress' approach between rulemaking carried on on a local basis, and General Rule-making, which ends all forms of local innovations and prescribes a rule for the whole country. If the District Court for the Northern District of Illinois had attempted to promulgate a rule for the whole country, the Court's observations would have some point.
Furthermore, one of the protective provisions-the provision for Judicial Conference advice (which is not mandatory even on this Court, incidentally)-was not even in effect as to General Rules at the time this local rule was adopted. And the General Admiralty Rules additions of 1939, which introduced sweeping liberalizations of discovery practice, and which the Court finds preclusive of this supplementary local rule, were promulgated with none of these safeguards-with no advisory report at all, and with no submission to Congress. Yet there is no doubt as to their validity. The reason of course is that there was no statutory requirement for the use of these procedures; the Court had the power to promulgate these rules without them. And unquestionably in 1939 this Court could have promulgated a General Rule in the terms of the local rule here. By the same token, so did the District Court, under General Admiralty Rule 44, which stood side-by-side with the 1939 amendments, have the power to make this local rule without reference to Congress; there was no statute requiring it to make such a reference and in fact no procedure by which the reference could have been made. The local rule may be one providing for a 'basic' change in procedure, but it is still a local rule; it was validly authorized by General Admiralty Rule 44 to be promulgated, as local rules may be promulgated, without reference to Congress; and I think we break faith with the District Courts when we give them a power which we later declare to be a mirage.
The court finds support for its position from the fact that this Court has never promulgated a General Rule for deposition-discovery since 1948, when it received the power to supersede statutes in the exercise of its General Admiralty Rule-making power. To be sure, Civil Rule 26 then could have been promulgated in admiralty by this Court (as it could not have been before, in toto). But the local rule, which does not contain any provision contrary to existing statutes, was not dependent on any such power. It did not require the exercise of a power reserved exclusively to this Court. And the failure of this Court to promulgate a General Rule in the post-1948 era hardly reflects on the validity of the local rules. Perhaps this Court thought that the time was not ripe for a General Rule; that the problem for a while was best approached through local experimentation. Certainly there does not have to be evidence that the Court thought the local rules made the promulgation of a General Rule 'unnecessary,' as the Court today intimates. For the local rule to be valid, it is enough that it have been promulgated within the scope of the District Court's authority. It is not a prerequisite on the validity of a local rule that it make General Rules unnecessary. Obviously this is one of the intrinsic differences between a local rule and a General Rule.
The Court's holding stops up one of the most plentiful sources of reform and revision of the General Admiralty Rules; a source very relevant to revision of the discovery rules. In developing the Civil Discovery Rules, there was a great body of state court experience with discovery depositions on which to draw, and Civil Rule 26's formulators drew upon it. See 4 Moore, Federal Practice (2d ed.), 26.01. If there is consideration whether Civil Rule 26, or a comparable provision, should be promulgated as a General Admiralty Rule, the question will occur whether the discovery deposition procedure is suitable to the particular problems of the admiralty court. State court and Federal Civil Rules experience may arguably not be of great value here. For example, there has been opposition to a general rule making the Civil Rules applicable in admiralty to cases unprovided for in the other Admiralty Rules by those who argue that the problems of admiralty are so unique that the Civil Rules will fit badly. See Report of the Standing Committee on Admiralty and Maritime Law, American Bar Association, in 76 Ann.Rep.A.B.A. (1951), pp. 182-183. It would appear difficult either to evaluate the correctness of this attitude, or to investigate which civil rules would work well in admiralty, without some District Court experience in applying them. If it is being held that, every time this Court's General Admiralty Rules deal with a general subject, all parts of the subject, though untouched by the General Rules, become insulated from further rulemaking by the District Courts, the most fruitful source, and perhaps the only valid source, of experience as to further revision of the General Admiralty Rules would be choked off-the experience of the various District Courts under their local admiralty rules. We should be loath to draw any negative inference from our rules that would produce such a result.
We are not apprised how broad the principle of implicit preclusion the Court today establishes may be. It would be pure speculation to attempt to enumerate the local rules which might be struck down on the basis of it because they deal with an important subject matter and there are General Rules which move in the same area as they do. The result is a cloud of uncertain proportions on the local rules.
Obviously the Court is greatly influenced by the fact that any local admiralty oral deposition rule must to some extent be a piecemeal effort, because even if discovery can be provided for by local deposition rule, the local rule cannot change the provisions of the de bene esse act regulating admissibility into evidence. So Mercado v. United States, 2 Cir., 184 F.2d 24, holds, and there is no gainsaying its correctness. Thus the District Courts themselves cannot give the whole subject of depositions the integrated treatment that the Civil Rules give it, or that an admiralty deposition rule from this Court, with its post-1948 power to supersede statutes, could give it. There is force to this point, but its force is not against the validity of the local rule. I do not see how it affects the power of the District Courts, under General Admiralty Rule 44, to deal with the matter as far as they can. It may have considerable force in indicating that this Court, and those who advise it in this regard, should be more careful to examine whether a general rule should be promulgated. But the question here is one of the District Court's power, and to me that seems unimpaired, so long as it is confined to the use of the deposition for discovery.
However well-motivated may be the basis on which the Court today strikes down this rule and the many, many local rules like it, I cannot conclude that its action has any basis in law. It may well be desirable that this Court promulgate a General Rule in the premises, and certainly, informed with this Court's power to supersede statutes, such a rule might provide a better approach to the problem than the local rules can provide. And the area may be one that particularly lends itself to uniform regulation. But if that is so, the answer is for this Court to promulgate such a rule, not to strike down local rules which, within their territorial and statutory limitations, provide some sort of solution for the problem in the interim. This Court has granted local rulemaking power to the District Courts through General Admiralty Rule 44 and Civil Rule 83; and I submit we should not seek to escape the plain consequences of such a grant of power whenever we believe that it has been exercised in an area where we think we could do better. When we do act on admiralty discovery depositions through a General Rule, the local rules will be superseded; and that will be time enough.
The Court's action nullifies these many local admiralty discovery-deposition rules, and casts an uncertain cloud over other local admiralty and civil rules. It creates an unfortunate hiatus in the development of discovery in admiralty by postponing the further collection of practical experience on the matter until a General Rule can be produced. I can see no legal reason why the exercise of the District Court's rulemaking powers should not be permitted to go forward, and accordingly I dissent from the judgment affirming the Court of Appeals' issuance of the extraordinary writs.

## Notes

* ↑ In the fiscal year ending June 30, 1959, over half the private admiralty actions filed in the District Courts were brought in districts having rules similar to the one in question here. Local admiralty rules expressly providing for the taking of depositions of witnesses (including nonparty witnesses) in accord with the Civil Rules have been adopted in the Southern District of New York (Admiralty Rule 32); the Northern District of New York (Admiralty Rule 32); the Southern and Northern Districts of Florida (joint Admiralty Rule 24); the Northern District of California (Admiralty Rule 13); and the Western District of Washington (Admiralty Rule 25 and 25A), besides the Northern District of Illinois. In the fiscal year referred to, these districts were responsible for 1,743 of the 3,424 private admiralty actions filed in the District Courts, or 50.9%.
* ↑ These contentions are first, that admiralty courts have inherent power to order such depositions, and second, that this power is conferred by General Admiralty Rule 32C.
* ↑ Before the codification of 1948, the statutory predecessors of 28 U.S.C. § 2071, 28 U.S.C.A. § 2071, themselves were more clear in providing for some practice rulemaking power in the trial courts. See R.S. § 918, and its somewhat differently worded predecessor, § 7 of the Act of March 2, 1793, 1 Stat. 335. See also R.S. § 913, derived from the early Process Acts. But as early as the First General Admiralty Rules of 1844, this Court had provided for subsidiary rulemaking power by the District Courts, in terms fairly similar to those of the present General Admiralty Rule 44. See General Admiralty Rule 46 of 1844, 3 How. xiii.
* ↑ In the last-cited case, Judge Learned Hand went so far as to say of a District Court rule promulgated under the authority of R.S. § 918 and General Admiralty Rule 44, that it was 'the result of the exercise of a power to legislate, delegated by Congress, though circumscribed by the statute which gives it, and by anything contained in the general laws, or the Supreme Court rules, as the statute itself declares. Within these limits the District Court may disregard existing practice as freely as Congress itself; its action has the force of law * * * and we are as much bound to observe it as a statute.' 40 F.2d, at page 444.
* ↑ The Court rightly rejects the contention that the de bene esse act itself, R.S. §§ 863-865, operates through negative implication to prevent the promulgation by a District Court of any other deposition rule, and hence makes this local rule fall as violative of a statute. General Admiralty Rule 44 does not purport to invest District Courts with this Court's current power to supersede statutes under the Admiralty Rules Enabling Act, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073. But there is no inconsistency between the de bene esse act and the local rule. The act provides a method for the introduction of depositions into evidence; the local rule regulates their taking for discovery. The local rule contains a provision designed to subject the admissibility into evidence of depositions taken under it to the provisions of the act. It is said that the Fisk and Tooth Crown cases, Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117; Hanks Dental Ass'n v. International Tooth Crown Co., 194 U.S. 303, 24 S.Ct. 700, 48 L.Ed. 989, implied that the de bene esse act, and the other statutes regulating the taking of depositions for use as testimony, then on the books (see note 6, infra), amounted to an implicit exclusion of all other means of examination, for discovery purposes, or otherwise. These cases were based primarily on the provisions of R.S. § 861 for the taking of testimony in open court (see note 12, infra); but even if they were based in part on negative inferences from the deposition acts, they have not been honored as authorities in admiralty. For this Court's 1939 amendatory General Admiralty Rules, dealing extensively with discovery, were promulgated at a time when all these statutes were on the books, and when this Court's rulemaking powers in admiralty did not extend to the power to supersede statutes. It has been recognized in the admiralty jurisprudence here, accordingly, that the various statutory provisions referred to in Fisk and Tooth Crown are to be taken as relating only to the introduction of proof at trial, and not to discovery practice. Accordingly there is no barrier in those cases, or in the de bene esse act, to the local rule here involved.
* ↑ Of course, in 1939 this Court had no authority to promulgate in admiralty that part of Civil Rule 26 which provides for the reception of depositions in evidence, to the extent that it was inconsistent with the de bene esse act and such other statutes as R.S. §§ 866-870, 875, providing for various means of taking evidence other than in open court. See 3 Benedict, Admiralty (6th ed. 1940), §§ 397-401. All these statutes except the de bene esse act were repealed in the 1948 codification of the Judicial Code. 62 Stat. 993. This inability was due to the fact that until the 1948 revision of the Judicial Code, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073, this Court's Admiralty Rules Enabling Act did not contain a power to supersede statutes. R.S. § 917. See also R.S. §§ 862 and 913. Civil Rule 26 contains provisions for the reception of depositions as evidence different from those of the de bene esse act. Hence it could not have been promulgated in terms in admiralty then, only in a form like the local rule here which avoids conflict with the statute. See note 5, supra; cf. Mercado v. United States, 2 Cir., 184 F.2d 24.
* ↑ Not only might a local rule on discovery depositions serve as a supplement to the General Rules on discovery, but to the pretrial conference practice. See General Admiralty Rule 44 1/2, added 316 U.S. 716. Cf. Dowling v. Isthmian S.S.C.orp., 3 Cir., 184 F.2d 758, 773.
* ↑ It should be noted that a similar authority to that of General Admiralty Rule 44 is vested in the District Courts by Civil Rule 83, empowering the District Courts to make local rules of civil procedure. No submission of these local rules to Congress is contemplated by this Court's Rules. No power to supersede statutes is delegated by either the General Admiralty Rule or the Civil Rule. It might be noted that generally (but cf. 28 U.S.C. § 2074, 28 U.S.C.A. § 2074) only where this power is given, has Congress provided for a procedure whereby new rules are reported to it and laid on the table before it. See the original Civil Rules Enabling Act, the Act of June 19, 1934, c. 651, 48 Stat. 1064, and its present form, 28 U.S.C. § 2072, 28 U.S.C.A. § 2072, and the current Admiralty Rules Enabling Act, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073. Contrast the old civil rulemaking authority in the lower courts, R.S. § 918, and the old Admiralty Rules Enabling Act, R.S. § 917, together with R.S. §§ 862 and 913. These provisions did not empower the courts to supersede pre-existing statutes (although § 917's predecessor may have been itself an implicit repealer of certain statutes, see note 12, infra); and they provided for no procedure whereby the rules would be laid before Congress.
* ↑ This provision was added to § 331 of the Judicial Code by the Act of July 11, 1958, 72 Stat. 356. The local rule in question was in effect in 1955. See 5A Benedict, Admiralty (7th ed. 1959), p. 833. Of course this is not relevant to the efficacy of a local admiralty rule, since even today local rules are not covered by § 331; but it is interesting to note that the provisions of § 331 that the Court treats as relevant here would not even have been applicable to a General Rule promulgated at the time this local rule was.
* ↑ There is some suggestion in the Court's opinion that General Admiralty Rule 44 itself should be narrowly construed because it was not reported to Congress. But that procedure was not required at the time it was promulgated; and in promulgating it, there is no evidence to show that this Court did not exercise the plenitude of its rulemaking powers under the then-existing statutes. See note 6, supra.
* ↑ See note 5, supra.
* ↑ The Court rightly rejects the argument that the local rule is in conflict with General Admiralty Rule 46, which requires that 'the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute, or agreement of parties.' Old cases here have held discovery-deposition practice at law inconsistent with comparable provisions, Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117; Hanks Dental Ass'n v. International Tooth Crown Co., 194 U.S. 303, 24 S.Ct. 700, 48 L.Ed. 989; but these cases hardly offer guides to our decision under the present General Admiralty Rules. The primary basis of these decisions, rendered in 1885 and 1904, was that discovery depositions were thought to be inconsistent with the then-existing statute, applicable at law, providing that all testimony be given orally in open court except as otherwise statutorily provided. R.S. § 861. See Hanks Dental Ass'n v. International Tooth Crown Co., supra, 194 U.S. at page 308, 24 S.Ct. at page 702. Modern practice has come to see the making of testimonial proof and the taking of discovery depositions as quite separate matters. There would seem no reason why a limitation on the former should affect the latter. See Republic of France v. Belships Co., D.C., 91 F.Supp. 912, 913. And the provisions for the taking of testimony in open court found in General Admiralty
* ↑ Cf. notes 5 and 6, supra.
* ↑ The Judicial Conference has responsibilities in this area, as has been developed, see 28 U.S.C. § 331, 28 U.S.C.A. § 331; United States v. Isthmian S.S.C.o., 359 U.S. 314, 323-324, 79 S.Ct. 857, 862, 3 L.Ed.2d 845; and an Advisory Committee to this Court on the General Admiralty Rules has recently been formed.
* ↑ The local rule in question here, with an exception for use as impeachment or contradiction of the deponent when he has testified, makes admissibility in evidence depend generally upon the fulfillment of the conditions specified in R.S. § 865. It does not provide for admissibility in the circumstances set forth in Civil Rule 26(d)(3), items 4 and 5, which present occasions for admission not having counterparts in the de bene esse act.
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