Earl Warren: Number 486, J. David Stern, petitioner, versus South Chester Tube Company. Mr. Freeman.
David L. Freeman: Mr. Chief Justice, and may it please the Court. This is an appeal from the judgment of the Circuit Court of Appeals of the Third Circuit affirming the order of the District Court of Pennsylvania dismissing the appellant?s complaint. The appellant was the plaintiff in the case. He was a resident of the State of New York and a shareholder in the defendant corporation. He filed a complaint seeking to have the court grant an order permitting him to examine the books of the defendant corporation. This is a right given by the statutes of Pennsylvania under which the defendant corporation was incorporated. The defendant filed an answer or the merits denying the good faith of the plaintiff, the appellant here. Also, denying that the court had jurisdiction of the subject matter. Subsequently, just before the case came to trial about three years later, the defendant filed a motion for summary judgment, in which it said that the District Court had no power to grant the type of order prayed for. That is an order in the nature of a mandamus. The District Court agreed with the contention of the defendant, dismissed the complaint. We appealed to the circuit court which also agreed with the contention of the defendant. Judge Smith wrote the opinion. It was concurred in by Judge Freedman and Judge Ganey wrote a dissenting opinion. This appeal then followed. Under the laws of the State of Pennsylvania, a stockholder is given the right to examine the books of the corporation at reasonable times and for reasonable purposes. The statutes of the State of Pennsylvania then go on to say that this right to examine the books may be enforced by what is called a writ of mandamus. Though I surmise that if the statutes had not said so, that the courts in the State of Pennsylvania would probably have found some other method of enforcing this writ either by way of an equity proceeding or by conforming some common law writ of the state. Now, the courts further have held, that is the courts of the State of Pennsylvania, that the courts of equity in that state can not enforce this right because there is a remedy at law. But the courts inequity will enforce the right if some other relief is called for or is asked for. This case we asked for no other relief. We asked merely to examine the books. The District Court and circuit court said, Well the State of Pennsylvania calls this a writ of mandamus, you are asking for an order in the nature of a writ of mandamus, we have no right to grant this. And this position arises in the following manner. The District Courts being courts of inferior jurisdiction, of course had only the power granted, or rather the jurisdiction granted to them by Congress. Now, Congress in the original -- under the original judiciary acts and subsequently, has granted the District Court?s jurisdiction in civil matters. In the first cases which arose on this subject, case of McIntire-Wood -- of the McIntire and Wood McClung versus Sullivan, decided that the -- under this statute the District Courts had no right to grant a writ of mandamus. In those cases what was prayed for was an order against a land registrar to register a deed. A land registrar was an executive officer of the federal government. The courts or rather the Supreme Court in those cases said, We are given civil? -- or rather ?the District Court is given civil jurisdiction." This is a writ against an executive officer. This is not civil jurisdiction. So the point in those early cases was not that the District Courts did not have a right to issue a mandatory order. The point was that the District Courts did not have a right to issue an order against an executive officer of the federal government, because it was considered that this was in the nature of the old prerogative writ of mandamus and was not the jurisdiction which Congress wished to confer upon the District Courts of the United States. Now, these cases were followed by cases which dealt with the enforcement of the payments of debts by the states. A case such as Rosenbaum and Bauer I mentioned in my brief dealt with the question of forcing the state officer to pay bonds. And the usual manner in which the state and municipal debts are collected is by a writ of mandamus in the states against those particular officers. And the courts have held that in diversity cases, the federal courts have no right to issue this type of order against the state officers again on the ground that this is in the nature of the old prerogative writ. This concerns the interference of the judiciary with the executive branches. It concerns the problem of the federal government versus the state government, and for these reasons, it was felt that the Congress never intended the District Courts to have power to interfere in these very delicate matters. The next case decided on this subject by the Supreme Court was the Knapp case. The Knapp case dealt with the construction of certain features the Interstate Commerce Act and the question on that case was whether a writ of mandamus could be granted requiring the railroad to publish a tariff. The court in that case said that, We weren't given this right that is the District Court is not given this right by the Act and besides there are equitable revenues under the Act by which the saying resell could be reached. I?m not quite certain why that was so important in those days, why it was so important for the federal court to say that we can do this by way of equity and we cannot do it by way of mandamus. And I suppose it is because they thought in terms of causes of action rather than in terms of rights and remedies as we do today. Nevertheless, that case, I think, is one which does not deal with ordinary civil litigation and does not come within the meaning of the word civil jurisdiction. These are the cases which the Supreme Court has decided. In the lower courts, there are -- there have recently been, since the 1960s a few cases at which the lower courts have said, We are bound by the decisions of the Supreme Court which stated that we have no power to issue a writ of mandamus. These cases are very often dealt with cases of officials either of the state or of the federal government. And those cases I think also do not come within the terms civil jurisdiction. However, there were a few cases in the lower court where they decided that they didn't have the right to issue a writ of mandamus in a case where an ordinary mandatory order in civil litigation was prayed for. Cases similar to this one, cases in which a stockholder wanted to examine the books of a corporation. It is our position that merely because the State of Pennsylvania enforces this right by what it terms a writ of mandamus, and merely because the same word mandamus is applied to different things that the right of the District Court to issue that type of order is not limited -- that was never intended to be limited by Congress. If you state the proposition in this way, if you say, Congress never intended the District Courts to have the power to issue a mandatory order in private civil litigation where it is requested by one individual against another, I think the question answers itself, because the mere statement of that question which shows that the courts would be so inhibited in granting relief under modern conditions that is impossible for Congress ever to have desired such an end. It is our position that the District Courts do not have a right generally to issue mandatory orders against public or state officials except as modified by a recent Act in 1962, but that they do have the right to issue orders against individuals to enforce purely private rights and private litigation. Now, the dissenting judge in the Circuit Court of Appeals approached the problem in a slightly different manner. He said or he inferred that under the present rules, there are no -- there is no differentiation between actions at law in equity, we only have civil actions. And if a mandatory order is asked for, who is to say whether it's asked for at law or whether it?s asked for in equity. The mere fact that the state says that you do it by an action and mandamus at law doesn't bind us here. We have a right under the doctrine of the York case and under the general doctrines of the federal courts to make up our own enforcement laws unless they are specifically prohibited to us. There certainly is nothing in the statutes which inhibits the District Court from making a mandatory order. The statutes merely say that the District Courts shall have civil jurisdiction. Everything else with regard to mandatory orders and private litigation is substantive which has been added only by the lower courts under, I believe the mistaken impression that the word mandamus so taints a mandatory order of any kind that the lower courts, District Courts have no right to grant that writ.
Abe Fortas: Mr. Freeman, I doubt if this is relevant but why didn't you go into the state court?
David L. Freeman: Well that's a rather delicate subject sir. I did not go into the state courts because I felt that the adversary was so powerful that I would not -- I would perhaps not get my problem today in court. That was the only reason that I did not go into the state courts. May I reserve some of my time for rebuttal?
Earl Warren: You may. Mr. Brown.
Richard P. Brown, Jr.: Mr. Chief Justice, may it please the Court. While it is true that the narrow issue presented in this case is whether a Federal District Court has jurisdiction to issue a mandatory order in the nature of mandamus where that is the only relief requested. There is a much more fundamental issue which is presented by this case. And that is whether an individual state by conferring a certain right and a certain remedy upon a plaintiff which remedy is enforceable in the in the state courts can thereby expand the jurisdiction of the federal court in a diversity case so as to grant the same remedy to that plaintiff in spite of the jurisdictional limitations contained in the Acts of Congress with respect to the federal court. I think it's clear in this case that the relief requested by the plaintiff is in the nature of mandamus. That is, it is a mandatory order directed to a corporation to disclose certain records which the plaintiff wishes to see, and I --
Speaker: Well do you suppose the Pennsylvania remedy had been characterized as a mandatory injunction instead of mandamus, would that have made any difference?
Richard P. Brown, Jr.: I don't believe so Your Honor, because in the case of Smith against Bourbon County in this Court, it was said that this remedy is a -- the objection to the granting of this remedy is a substantive one and that it cannot be cured by converting the action into an equitable action or by calling it by any other name. If it is in the nature of a mandamus, that is a mandatory order directed to someone to carry out an act, it is subject to the jurisdictional objection. I think it is important for us in this connection to examine the language of the act which is being considered here. The old Writs Act which is found in Section 1651 of Title 28 of the United States Code. That language says that, The Supreme Court and all courts established by Acts of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions.
Byron R. White: Now, you said a moment ago that a previous case here in the Court held that at anytime a federal court issues an order to a party to carry out an act that this is in the nature of mandamus.
Richard P. Brown, Jr.: I don't think I meant to say that Your Honor, but I did.
Byron R. White: But that's what you said, now what did you mean?
Richard P. Brown, Jr.: What I intended to say was that in the case of Smith versus Bourbon County the Court's words were, This court would be without jurisdiction and certainly that lack of jurisdiction cannot be supplied by converting the proceeding into a Bill in equity. The objection is one of substance and not merely of form. It cannot be waived and it can not be ignored. And I believe that in answer to the question of Mr. Justice Harlan --
Byron R. White: I know but, go ahead, go ahead.
Richard P. Brown, Jr.: Yes, well I submit that any action in which the relief requested is in the nature of mandamus whether it is called an equitable action or a mandatory injunction action.
Byron R. White: How do you tell that? Awhile ago you said you'd tell that when you order somebody to do an act.
Richard P. Brown, Jr.: I think --
Byron R. White: Now is that (Voice Overlap) --
Richard P. Brown, Jr.: -- it's the substantive nature of the relief requested, that's correct. A mandatory order in which there is no other jurisdictional aspect such as lack of adequate remedy at law.
Byron R. White: Yes, I know but that circular that's -- how do you recognize when something is an action for a mandamus?
Richard P. Brown, Jr.: Well, my understanding of the original meaning of mandamus is that it was an order by the court directed to a lower court to a judicial officer, to a federal officer, to a state officer or to a corporate officer to do an act.
Byron R. White: How about an order to arbitrate address to a corporation?
Richard P. Brown, Jr.: I think, if the Court please, if that order is the result of a federal arbitration act for example it is --
Byron R. White: But its --
Richard P. Brown, Jr.: -- it?s true, it's a mandatory order.
Byron R. White: -- not the result -- there isn't any federal act which requires them to provide for arbitration, this is a contract, contract between the parties to arbitrate. And you go into court and say to the federal court, please issue in order to arbitrate, there's been a breach of contract and the other party refuses to arbitrate. Now order that corporate officer to arbitrate.
Richard P. Brown, Jr.: I think --
Byron R. White: Now, is that in the nature of mandamus?
Richard P. Brown, Jr.: Yes, I think it is a mandatory order but if it is granted --
Byron R. White: And is federal court has no jurisdiction in issue?
Richard P. Brown, Jr.: -- if it is granted in aid of the court's jurisdiction otherwise acquired, the court has the power to issue it. If there is no other ground for federal jurisdiction or if the relief requested is not in aid of that jurisdiction, the mandatory which is requested, if that is the only relief sought is without the jurisdiction of the court.
Byron R. White: Well, would that be true of any specific performance in any diversity case where the action is on a contract and one party wants the other party order to specifically perform that --
Richard P. Brown, Jr.: That sounds to me like an ordinary equitable action in which the relief sought is mandatory injunction, and if there is an inadequate remedy at law and if the court feels that it is necessary to issue that order in aid of its jurisdiction, the court would have power to issue.
Byron R. White: Yes, but where do they get this jurisdiction otherwise this other jurisdiction? All the party wants when it comes in is in order to specifically to enforce contract against this corporation.
Richard P. Brown, Jr.: I think the federal courts have equitable jurisdiction where there is --
Byron R. White: Diversity, where there's diversity?
Richard P. Brown, Jr.: And where there's an inadequate remedy at law.
Byron R. White: Yes.
Richard P. Brown, Jr.: If there were an adequate remedy at law and if there were merely diversity and jurisdictional amount involved and the --
Byron R. White: Let's assume no adequate remedy at law and there?s diversity jurisdiction, and yet the only relief sought is an injunction?
Richard P. Brown, Jr.: I think that if the court has equitable jurisdiction --
Byron R. White: Or if you would call in a mandamus.
Richard P. Brown, Jr.: If the court has equitable jurisdiction, Your Honor, and if it feels that in order to enforce that jurisdiction it needs to issue the mandatory order, it has jurisdiction to issue.
Byron R. White: Well now, where do you -- how do you distinguish this case? This is diversity, or is diversity -- do you claim there's a remedy at law here?
Richard P. Brown, Jr.: Yes, Your Honor.
Byron R. White: What is it?
Richard P. Brown, Jr.: There is clearly an adequate remedy at law in the state court.
Byron R. White: What is it?
Richard P. Brown, Jr.: An action which is denominated in the state court, mandamus.
Byron R. White: Well you won't turn over these books apparently.
Richard P. Brown, Jr.: There are certain records of this corporation which this plaintiff has requested which we have declined to disclose to him. They are records relating to the earnings of wholly owned subsidiaries of this corporation. And we have declined on the grounds of the lack of good faith of this plaintiff, but I think that would be an issue on the merits which would be decided in the state court applying the rules of law applicable to corporations of that state. And if the plaintiff made out a proper case, the state court would grant him that relief and there is no suggestion that I know of that the federal court --
Byron R. White: Well, if your argument is only whether or not the federal court ought to as a matter of equity issue this order, why that?s one thing, but as I understand it do you say that the court has no jurisdiction either to get to that question?
Richard P. Brown, Jr.: As we --
Byron R. White: Isn't that right?
Richard P. Brown, Jr.: That's correct, Your Honor. We say that where there is no --
Byron R. White: Well, I certainly don't understand then how you distinguish between this situation and the enforcement of the --
Richard P. Brown, Jr.: In this situation, Your Honor --
Byron R. White: -- contract.
Richard P. Brown, Jr.: -- there is an adequate remedy at law available to the plaintiff in the state court --
Byron R. White: Well, that doesn't destroy jurisdiction.
Richard P. Brown, Jr.: The jurisdiction of the federal court.
Byron R. White: Does it?
Richard P. Brown, Jr.: I think Your Honor the jurisdiction is limited in by Section 1332.
Byron R. White: That just may go to whether there's equitable -- whether the court should issue an injunction.
Richard P. Brown, Jr.: That is correct, Your Honor. If there's an adequate remedy at law, the court does not have equitable jurisdiction. If it is not a civil action the court does not have jurisdiction.
Byron R. White: Well, would you be -- are you suggesting then that the rule for which you're contending is just that in these circumstances when you may get a remedy in the state court, an injunction should not issue. And if the --
Richard P. Brown, Jr.: No.
Byron R. White: --court has no jurisdiction and it's just an ordinary straightforward question of whether equitable jurisdiction should be exercised.
Richard P. Brown, Jr.: No, Your Honor. I'm not contending for that. I'm suggesting that if the federal court has jurisdiction to grant equitable relief, it can issue a mandatory order in order of that injunction -- that jurisdiction. But where the only remedy sought is in the nature of mandamus with no equitable considerations involved, the jurisdiction of the court does not lie.
Byron R. White: Well we're back to where we started now here.
Richard P. Brown, Jr.: Yes. I'd like to call the Court?s attention to the congressional intent which we believe controls the situation. The original judiciary article -- judiciary act in 1789 was limited the jurisdiction of the federal courts severely in the nature of the writs which they could issue. And I think as it's indicated in our brief, Charles Warren in his article in the Harvard law review points out that that was a compromise to get the votes of those in the constitutional convention who were willing to have a federal constitution, but they were not willing to have federal courts with unlimited jurisdiction. And in the intervening years, since 1789, Congress has enacted a number of Acts in which it has conferred on the federal courts mandamus jurisdiction in certain specified isolated areas. For example, in the Interstate Commerce Act, jurisdiction is given to the federal court to issue a mandamus against a carrier to file tariffs, but it does not give mandamus jurisdiction with respect to Section 20 of the Interstate Commerce Act which compels, or which calls upon carriers to file annual reports with the Commission. Similarly, in 1962, Congress enacted Section 1361 of Title 28 of the United States Code, which is the general jurisdictional section of Title 28. And in that amendment, it was provided the District Court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof, to perform a duty owed to the plaintiff. It was -- it would have been very easy if Congress had wished to confer unlimited jurisdiction upon the federal courts to issue orders in the nature of mandamus. To have simply provided, the District Court shall have original jurisdiction of any action in the nature of mandamus period, but Congress did not choose to do that. And this omission was not inadvertent. It was clearly intentional, because if the Court please, there were three congressional reports filed prepared and submitted at the time that amendment was being considered. Two House Reports and one Senate Report, and in each of those reports in 1962 there appears the following language. The single exception to the general proposition that the U.S. District Courts do not have jurisdiction over original actions for mandamus is the U.S. District Court for the District of Columbia. And not only did that language in each of the congressional reports, but it was incorporated into the congressional record at the request of Senator Mansfield, the majority leader, at the time that that Bill was being considered. Now, we submit that with that legislative history of the original limitation upon the power of the federal courts in 1789, the limited expansion of that jurisdiction over the intervening years enacts such as the Interstate Commerce Act. And the conduct of Congress in 1962 in passing this limited amendment to the jurisdictional statute providing for the issuance of writs of mandamus solely as to public officers of the United States, not as to state officers, not as to local officers and not as to corporations. If there is to be any change in the jurisdiction of the federal courts in the area of the issuance of writs in the nature of mandamus where that is the only relief sought, this change should come from Congress through a considered study of the situation and consultation with the bench and bar of the legal organizations and full study of the consequences of such a change.
Thurgood Marshall: Mr. Brown, you remember Mr. Justice Fortas just asked Mr. Freeman why he didn't go into state court. Would it be unfair for me to ask you why you are unwilling to litigate the point as to whether or not your duty bound to turn these books over in the federal court?
Richard P. Brown, Jr.: We would be happy to and we're prepared to litigate it in either the federal court or the state court Mr. Justice Marshall. The reason we raised the jurisdictional question was that we knew that jurisdictional questions can be raised at any time up to the end of the case even on the court's own motion. And we didn't want to get to the end of this case after a long trial and then appeal, and then find that some court would say that the federal court did not have jurisdiction. So we felt that it was important to get that question decided as soon as was convenient. It was not because we did not want to litigate it.
Thurgood Marshall: It was -- you were the one that filed for the summary judgment.
Richard P. Brown, Jr.: I believe Mr. Freeman inadvertently misspoke on that. What happened was that the plaintiff filed a motion for summary judgment which was denied. We filed a motion to dismiss on jurisdictional ground and that was granted.
Thurgood Marshall: Well that's what I -- well thank you.
Richard P. Brown, Jr.: I'd like if I may Your Honor --
Thurgood Marshall: I asked you what injury your crime would suffer by having this litigated into federal instead of the state court.
Richard P. Brown, Jr.: I don't think we would suffer any injury. I think there is no policy consideration that I can see why a federal court should not be able to issue a writ in the nature of mandamus where that?s the only relief sought. On the other hand I think that there's no policy consideration necessarily why the federal courts should want to intervene in this kind of a matter where it's purely between a stockholder and a corporation of a state under the state law where there is no suggestion that the state court isn't in a position to fairly and adequately handle the case.
Thurgood Marshall: Suppose there's no writ of mandamus or a writ of something else issued, would you deny that the federal court has jurisdiction.
Richard P. Brown, Jr.: If that's --
Thurgood Marshall: Aside this issue.
Richard P. Brown, Jr.: Yes, as I understand it --
Thurgood Marshall: To turn over that book, would you deny that the federal court has jurisdiction to litigate the issue of whether the corporation should turn over its books to the litigant?
Richard P. Brown, Jr.: If that -- if the plaintiff were to request that as his only relief, as we understand it that is relief in the nature of mandamus and that is jurisdictionally prohibited.
Hugo L. Black: Suppose he didn't ask for a mandamus or an order. He just asked to have it litigated.
Potter Stewart: What if he just asked for a declaratory judgment, for example?
Richard P. Brown, Jr.: I think he would be entitled to get a declaratory judgment assuming that the jurisdictional statutes of --
Potter Stewart: There was adversity here.
Richard P. Brown, Jr.: Yes.
Potter Stewart: And there was a federal declaratory judgment act.
Richard P. Brown, Jr.: Yes.
Potter Stewart: That the court would have jurisdiction --
Richard P. Brown, Jr.: That's right.
Potter Stewart: -- to parties. And I gather now you concede in answer to Justice Black's question also of the subject matter.
Richard P. Brown, Jr.: Yes.
Hugo L. Black: Then why? Why should the law be so foolish as to let the federal court have jurisdiction to try the issue and deny jurisdiction to enforce its judgment.
Richard P. Brown, Jr.: I honestly can't answer why Congress felt that federal court should not be able issue mandatory orders with -- unless it's in aid of other jurisdiction. Apparently, it is historical and I don't, as I say, see any present policy reason why not.
Hugo L. Black: That's the way most bad rules determine to the law, isn't it, historically?
Richard P. Brown, Jr.: Well, except that this one has been long continued and apparently, intentionally by Congress. May I turn for a moment Your Honors to the question of affect of Erie against Tompkins upon the court?s view of this case? Judge Ganey's dissent in the Court of Appeals argues that under the doctrine of Erie against Tompkins, a federal court in a diversity case ought to be able to grant the identical relief to a plaintiff which he would have gotten if he had gone into the state court. And it appears to be Judge Ganey's contention that Erie against Tompkins deals not only with the rules of law to be applied by the court, but with the remedies which the court is able to grant. As I read Erie against Tompkins, it deals with the interpretation of the Rules of Decision Act and holds that in deciding a case on the merits, the federal court sitting in a diversity case should apply not only the statutory law of the state in which it sits but also the common law decided by the courts of that state. So that a decision on the merits of that case would not be different for a plaintiff in the federal court that it would have been in the state court because of rules of decision which would applied differently in the state court from the federal court. And as I read Guarantee Trust Company against York, the so called outcome determinative test which is been widely referred to is really a test as to what rules of decision will be applied. And we submit that neither -- that this Court in deciding Erie against Tompkins and Guarantee Trust Company against York did not intend to decide that not only must the rules of decision of the state be applied in determining the answer on the merits, but also that every remedy available in a state court must be available in the federal court in a diversity case. And I submit that this Court didn't intend to say that because of the recognized jurisdictional limitations on certain kinds of cases which the federal courts are not at liberty to consider and decide. I would like to offer to the Court two or three examples in this connection. Section 1332 of Title 28 provides that the District Court has jurisdiction in a civil action. It has long been held that civil -- the word civil action does not include ordinary domestic relations cases, support orders, illegitimacy determinations and that sort of thing. It is also been held that civil action does not include such things as will contests and administration of estates and trusts which are customarily left to the state courts to decide, but if Judge Ganey's theory were carried out, if there were diversity of citizenship and a jurisdictional amount involved, and if the plaintiff could go into the state court and get relief in a domestic relations case or in a will contest the federal court ought to be able to grant him that same relief without regard to any jurisdictional limitations. Let me offer another example. The Norris-LaGuardia Act imposes a jurisdictional limitation which prevents federal courts from granting injunctions in labor disputes, but there are 14 states which have no little Norris-LaGuardia Act. And in those 14 states, a plaintiff can go into the state court and obtain an injunction in the labor dispute. If Judge Ganey's interpretation of Erie against Tompkins were correct, a plaintiff in a diversity case ought to be able to come into the federal court and obtain an injunction in a labor dispute regardless of the jurisdictional limitations imposed by Congress under the Norris-LaGuardia Act.
Byron R. White: But you couldn't obtain that in the case. If you couldn't get the injunction in federal court, you say therefore you shouldn?t be able to get one here either.
Richard P. Brown, Jr.: I say that I don't know what the jurisdiction of the Supreme Court is under these circumstances, but the federal as I understand the Norris-LaGuardia Act, the federal District Courts do not have authority to issue injunctions in general in labor disputes.
Byron R. White: Well, that's what it says, but would you suggest in that case that the federal court didn?t have jurisdiction of the case?
Richard P. Brown, Jr.: I'm not sure Your Honor because I don't know enough about the workings of the Norris-LaGuardia Act.
Byron R. White: And if it would, would it have jurisdiction in this case before us now?
Richard P. Brown, Jr.: I think not Your Honor in either case because if the Norris-LaGuardia Act says, as I believe it does, that a federal court cannot issue an injunction in a labor dispute. By the same token, a federal court cannot issue an order in the nature of mandamus in this situation.
Byron R. White: But it could give a declaratory judgment.
Richard P. Brown, Jr.: I think under the Declaratory Judgments Act, if there is a justiceable controversy you -- it can give a declaratory judgment as to rights.
Byron R. White: So this is really is then just a question of equitable -- just a question of whether or not this is an appropriate case in which to -- in which equity should act, rather than subject matter jurisdiction.
Richard P. Brown, Jr.: I feel Your Honor that equitable jurisdiction is something different. It involves inherently the lack of an adequate remedy at law. And if to aid supporting --
Byron R. White: Is that all you're arguing about here? I thought you're telling us the court couldn't entertain the action at all?
Richard P. Brown, Jr.: As we understand the All Writs Act, the court cannot entertain an action in which the only relief sought is a mandatory order which is not in aid of some other jurisdiction such as equitable jurisdiction. Now, we submit, if the Court please that faced with the language of the All Writs Act with the clear intent of Congress as it has been reflected as recently as 1962, and with the interpretation of Erie against Tompkins, as we understand it, that it deals with rules of decision and not with conferring remedies upon a federal court in a diversity case. That this Court should not interpret Erie against Tompkins or the All Writs Act in a manner which is inconsistent with the intent of Congress, and therefore we ask that the judgment of the Court of Appeals for the Third Circuit be affirmed.
Thurgood Marshall: Mr. Brown, suppose we didn't have the Pennsylvania procedure for mandamus law in this, and they filed the same type of case, would the federal court have jurisdiction?
Richard P. Brown, Jr.: I think Mr. Justice Marshall, if a federal court had some remedy whether it's called mandamus or equity or whatever it's called, by which a plaintiff can obtain relief in the state court --
Thurgood Marshall: No, I'm talking about this complaint here. What for the fact that there is this remedy which is labeled mandamus in Pennsylvania, would this be a good complaint and would the court have jurisdiction?
Richard P. Brown, Jr.: I think the state court certainly would. I don't think it matters what it's labeled.
Thurgood Marshall: This complaint is in the federal court.
Richard P. Brown, Jr.: Yes, I don't think it matters what the case is labeled Your Honor. The question is whether the relief sought is in the nature of mandamus. Not a writ of mandamus but something which Congress considered to be in the nature of mandamus.
Thurgood Marshall: Well that's -- I'm with Mr. Justice White on this, I mean, isn't a mandatory injunction in the nature of mandamus.
Richard P. Brown, Jr.: Yes it is, but there is inherent in a mandatory injunction as I believe I've said to Mr. Justice White, the existence of some need for equitable relief and not an ordinary adequate remedy at law, which is available to the plaintiff in this case.
Thurgood Marshall: Well, I would assume that mandatory injunction would be an equitable proceeding I would assume that.
Richard P. Brown, Jr.: That's right. And in order for the court to obtain jurisdiction, it must first be demonstrated that the plaintiff does not have the adequate remedy at law in the state court which it does no matter what the relief is called in the state court.
Thurgood Marshall: Is that jurisdiction?
Richard P. Brown, Jr.: I believe that equitable jurisdiction is a jurisdictional fact, Your Honor.
Thurgood Marshall: Even though we don't have separation anymore in the federal court?
Richard P. Brown, Jr.: That's correct. The fact that there is one form of act --
Thurgood Marshall: Well, something still holds on then.
Richard P. Brown, Jr.: I think the fact that there is one form of action called a complaint, a civil action, does not determine the nature of the relief. And if the nature of the relief sought is equitable relief, it is necessary for the court to find that there is an inadequate remedy at law in order for jurisdiction to be conferred.
Thurgood Marshall: But if you stick to your jurisdictional point, how does the District Court get jurisdiction to find that there is a remedy at law? You either have jurisdiction or you don't.
Richard P. Brown, Jr.: Well, I think at the outset Your Honor, the complaint and the answer will raise the facts with -- will present the facts for the court with respect to the existence of an adequate remedy at law. And that would be a threshold determination by the court before it could determine what relief to grant.
Earl Warren: If this was -- if this statute Pennsylvania provided that the remedy should be damages of a thousand dollars a day until the relief was granted, would they have jurisdiction of that Federal courts have --
Richard P. Brown, Jr.: Would the state court or the federal court, Your Honor?
Earl Warren: Federal court.
Richard P. Brown, Jr.: I think that that would be the determination of an ordinary damage action would be a civil action in the ordinary sense in which a mandatory order is not being asked, it's merely the award of damages and that would be within the court's jurisdiction and the court could decide the case and grant that relief.
Earl Warren: And I suppose that added to that, that the court had the power to compel than to conform to the act?
Richard P. Brown, Jr.: I'm not sure that I understand the question Your Honor but --
Earl Warren: But suppose you said a thousand dollars, they entitle the damager a thousand dollars a day and the court has a power to enforce this judgment to that effect?
Richard P. Brown, Jr.: Well, I think that that the power to enforce a judgment is inherent in the jurisdiction of the court without regard with to any question as to whether it's a merely mandatory order. I think that a writ of execution on a judgment would take care of that aspect of the problem.
Earl Warren: Well, isn't it that more or less a distinction without a difference in this kind of a situation.
Richard P. Brown, Jr.: I concede Your Honor that there does not seem to be any policy reason why a federal court should not be able to grant a mandatory order where that's the only relief asked. I see no objection to Congress giving that power to the court. All I say is that Congress has not given that power to the court and I don't think that Erie against Tompkins or any interpretation of it gives that power to the court to the Federal District Court.
Earl Warren: And if our interpretation of the statue differs from yours, your client would suffer no injustice?
Richard P. Brown, Jr.: The issue would be litigated in the federal court as to plaintiff's right to the relief he seeks, in the same way that it would've been in the state court, that's correct Your Honor, but I don't know why with the present crowding of the federal dockets in diversity cases, there would be any need for any policy reason why a federal court would want to assert jurisdiction in a case in which that is the only relief that's asked.
Earl Warren: Perhaps only in the interest of justice.
Richard P. Brown, Jr.: Well, I agree Your Honor, if there was any question that justice would be better in the federal court than in the state court in a situation involving a corporations -- the requirements of enforcing the corporations duty to disclose its records, then there might be a federal policy consideration which would militate in favor of a change in the law on that subject. Thank you, sir.
Earl Warren: Mr. Freeman.
David L. Freeman: I have no reply sir.
Earl Warren: Very well.