Earl Warren: Number 109, Snyder versus Harris. Mr. Seigel.
Charles Alan Seigel: Yes, Your Honor, justice. Mr. Justice, this is a case that was initially instituted in the Eastern District of Missouri by the petitioner, a diversity case brought under the Federal Rule 23, the class action rules seeking to recover for herself and for some 4,000 members of her class a judgment in the amount of $1,200,000.00. The petitioner is the owner of some 2,000 shares of stock of the Missouri Union Fidelity Insurance Company. In the petitioner's complaint, it is alleged that the National Western Life Insurance Company entered into an agreement with the controlling members of the Board of Directors of Missouri Fidelity Union Trust Company, Insurance Company, whereby the National Western agreed that they would buy some 300,000 shares of stock owned by the directors and members of the directors family for a premium price of a $1,200,000.00 and by premium price I mean $1,200,000.00 over what the stock was sell for in the market and the condition was, is that these directors resign and that -- and that is what happened. The directors did resign on the shares being purchased and the nominees and national western were then elected to control to the board of directors and were then elected to control of the executive committee and the financial committee. The relief sought in the petition, the complaint was that this $1,200,000.00 should be distributed to the shareholders of Missouri Union Fidelity because that this was an illegal sale of the officers of the directors and it was a breach of trust owed by the directors to the stockholders. The respondent filed a motion to dismiss taking the position in the motion to dismiss that the claim of each member of the class was a separate and distinct claim and that in as much as the claim, the respective amount of the petitioner's case was only $8,740.00 that the jurisdictional amount of $10,000.00 had not been met. The district judge, District Court sustained this motion. This was affirmed by the Court of Appeals and certiorari is applied for and granted to the court on this matter. The sustaining of this motion to dismiss is what made up the issues in this case. The respondents' claim that under the old rule, Federal Rule 23 and of many cases decided before the amended rule of Federal Rule 23, is that you could not aggregate, you cannot aggregate separate and distinct claims. It's the position of the petitioner that amended rule, Federal Rule 23 does awake completely with any designation of separate distinction claims and that under Federal Rule 23 there is provided for one action and one judgment finding on the whole class except those who want to be -- indicate that they want to be excluded. There is no such thing as separate and distinct claim, therefore aggregation is permitted. Now going into a little history, the United States Constitution Article 3 says that the judicial power should be in one Supreme Court and then such inferior courts as the Congress should then designate. The Section 2 of the Constitution provides that the judicial powers should extend to matters of citizens of different states. Now in the Judicial Act of 1789, there was set forth by Congress the jurisdiction amount of $500.00 for jurisdiction in district courts. This has now been extended presently to $10,000.00. As might be expected after there was set this jurisdictional limit, there came up the problem -- there came the problem as what happens in joinder cases and what happens in class action cases, how do you compute to $10,000.00. For the courts then looked, they cannot look to statute, there was nothing in the statute a term saying how it should be determined. There's nothing in the Constitution so they then look to their rules, the rules of common law and of equity practice as it grew up as to joinder equity practice and also the interpretations to the old amended -- old Federal Rule 23 which really was a codification of the rule, the old rules of common law joinder and of equity practice. And as we go back and to look at the common law rules of joinder class actions and of equity practice, and as also was -- were codified in Federal Rule 23, we find that there was such terms used as joint and common and separate and distinct and the courts came down with this theory. They came down with this theory by looking not at the statutes, not the constitution but at their own procedural rules and they came with this conclusion that if there was a joint action and that would be an action for example when there was an interpretation of a trust, a raise that would be binding and all the parties plaintiff, this was a true class action and therefore aggregation should be permitted. But if there was a separate and distinct claims, such as the claims which we admit under the prior rule would be this particular case that these could not be aggregated because there could be separate judgments and in every respect under Federal Rule 23, the old Federal Rule 23 and under the old equity and common law practice, the -- even though there was a joinder or clause of class action when there was a separate distinct claims, each claim maintained its own identity. This joint and several claims were called spurious claims and in these claims the court would not allow aggregation and again under Federal Rule 23, the old rule Federal 23 is that the only effect of a joinder and a class action whether a separate or distinct claims was that the -- when the person do had a separate distinct claim could intervene in the action. It was not binding on any other members of the class unless the class member actually intervened in the action and the -- there could be separate and distinct judgments and there could be a judgment for plaintiff and it could be against the plaintiff. In 19 -- July of 1967, amended Rule 23 was passed and basically the amended Rule 23 provides, is that when the class is so numerous, they're being practical to join all the parties involved and there are common questions of law in fact common to the class and that their claims or defenses common to the class and that the petitioner will fairly represent the class and that the questions of law in fact common to members of the class prevail over any question affecting individual members then a class action may be maintained and then after -- if a judgment is entered, the rule specifically says, the judgment -- does not say the judgments, the judgment in such an action, not in actions, shall describe the member of this class and shall be binding on all members of the class who do not notify the court after being notified by the court that the action is pending that they want to be excluded. So, as in this particular case if the petitioner was prevailed, there would be one judgment in the amount of $1,200,000.00 and which will be binding on all members of the class except those members who notified the court that they do not want to be included in the judgment.
Byron R. White: What would they have left?
Charles Alan Seigel: Mr. Justice, they would be distributed to each member of this class, his respective share.
Byron R. White: How about those ones who notified that they didn't want to be part of the action? What would they have retained by that action?
Charles Alan Seigel: They would have to retain the right to bring their own independent action Mr. Justice. They could bring an independent action for example in the State Court action if they so desire.
Byron R. White: So they were -- so there would be at least two actions in that possible.
Charles Alan Seigel: There could be, that's correct Mr. Justice.
Byron R. White: And if a hundred shareholder, each said “I want to stay out”, there would be -- all of those hundred could bring their own separate action?
Charles Alan Seigel: That is correct.
Byron R. White: And state their own cause of action.
Charles Alan Seigel: That is correct.
Byron R. White: And what if -- what if two of those hundred joined in one suit? Two named -- two parties, two of his class, two of the hundred who said we don't want to be part of this case, then brought in their own name --
Charles Alan Seigel: Mr. Justice the --
Byron R. White: Their own actions against the company each for 2,000 -- each for $5,000.00.
Charles Alan Seigel: They could maintain that action. The --
Byron R. White: How could they do that?
Charles Alan Seigel: Well, if they do not have the $10,000.00 jurisdictional amount involved between them, then they would file their suit in the state court.
Byron R. White: Yes but as between them they do, but you say that -- you say the two stockholders may aggregate if they bring -- if two stockholders joined in one action against the company?
Charles Alan Seigel: Under the class action rules, yes.
Byron R. White: Well this isn't a class action. They don't report to be bringing a class action for anybody. They just say we are bringing our own causes of action, the two of us, right here.
Charles Alan Seigel: Well, if their claims are in excess of $10,000.00, they could bring it in the federal court, if they were not, they would bring their claims in the state court.
Byron R. White: I understand that, how -- what makes you say that can aggregate in that case?
Charles Alan Seigel: Well, in that case Mr. Justice that would be a simple case of joinder of two --
Byron R. White: That's right, exactly.
Charles Alan Seigel: -- of two plaintiffs and that would not fall under the class action rule and the old rules as far as joinder would apply.
Byron R. White: Which means that they couldn't aggregate?
Charles Alan Seigel: That is correct.
Byron R. White: So they wouldn't -- they couldn't bring their action in the federal court?
Charles Alan Seigel: Well, under the old rule that this was strictly a joinder case Mr. Justice, that would be correct because I want to make it clear, is that our position on -- that the claim should be aggregated is really based solely --
Byron R. White: I know.
Charles Alan Seigel: -- on amended rule, Federal Rule 23.
Byron R. White: I understand that, I understand that.
Charles Alan Seigel: And under the case that Mr. Justice has put forth, is that would be just simply a permissive joinder --
Byron R. White: Simple joinder case, no aggregation.
Charles Alan Seigel: And I think that we have to look to the old court decisions on that and that there would not be aggregation because the sole basis of our claim for aggregation is amended Rule 23 which now provides for one judgment finding of the whole class.
Byron R. White: But in that, there's a case I brought you, I gave to you, you said there would be no aggregation but nevertheless both parties would be bound by the judgment.
Charles Alan Seigel: In -- Mr. Justice in the case that you mentioned, there could be -- there would be not one judgment, there would be two separate judgments because this thing in a strictly permissive joinder case, there is not provision for a single judgment. There -- it would be a judgment for each plaintiff and --
Byron R. White: But nevertheless when the lawsuit was over, both parties would be bound.
Charles Alan Seigel: That is correct.
Byron R. White: And furthermore, the issues of that fact and law are identical.
Charles Alan Seigel: That is correct, that is correct. But I might point this out that theoretically in a permissive joinder case, there could be different judgments whereas in a class action under amended Rule 23, there cannot be different judgments, there is one judgment that is binding on the whole class and there is only one consistent judgment that cannot be separate judgments or like four or one member of the class against the other because the rule says that if the claims or defenses are not common, then there should not be a class action rule. So there is no possibility of inconsistent judgment and amended Rule 23.
Abe Fortas: Well your position really means that the jurisdictional amount is not “would not be consequential for purposes of determining federal jurisdiction in diversity case,” that's a practical effect, that would of course -- in theory you could have as -- my Brother White's question indicated you could have enough stockholder saying we don't want to be included so that the remaining group would not have the $10,000.00 jurisdictional amount, but actually the position that you take construing the rule wouldn't mean that anybody could start a stockholder's derivative action as a practical matter and would not be troubled by the jurisdiction -- requirement of a jurisdictional amount.
Charles Alan Seigel: Mr. Justice that would be so as long as the -- the aggregate amount of the total claims of the whole class was in excess of the $10,000.00 jurisdiction.
Abe Fortas: This probably would -- probably worth bringing the suit?
Charles Alan Seigel: Right, that's correct. The respondents have contended that we must look to the old rules as to aggregation. The old rules as to what the courts -- the decisions what the courts held that there could not be aggregation if there were separate distinct claims. We must look to the old federal rule which had this break down and use these terms, a carryover from the old common law and class actions of joint common and several and that as I indicated that if it was a joint claim, there could be aggregation but if it were several, there cannot be. Now, that is what the respondents looked to in support of their position. But now when the petitioner wants to look at amended Rule 23 to find out that there can be aggregation in the whole claims, the respondents now claim that this is in violation of rule 82 of the federal rules of civil procedure which says that the federal rules cannot expand federal jurisdiction. I submit that if the petitioner in seeking to justify aggregation and rule -- under amended Rule 23 is in violation of expanding jurisdiction then the respondents in looking at the court's interpretation of its own rules, its own common law rules, equity rules and old rule Federal 23 is also in violation of the restrictions of rule 82 which says not only must you not extend jurisdiction, you might not limit jurisdiction. Otherwise if we are expanding jurisdiction by looking on amended Rule 83, they are limiting jurisdiction by looking at the old Federal Rule 23 and we're looking at the court's decisions which were handed down before the old Rule 23, obviously a court cannot limit its own jurisdiction but actually what we are not -- we're not really talking about jurisdiction. We are talking about procedure. The amended Rule 23 in no way seeks to increase or decrease the amount of the $10,000.00 jurisdictional amount. It simply provides a procedure that where in a class action brought under amended Rule 23, there is one binding judgment and this judgment is binding on the whole class. And we might say that how is it possible in a case such as this one when there is one binding judgment on the whole class which would -- could be in amount of $1,200,000.00 that there is not in controversy, the sum of $10,000.00. Again, I want to emphasize is that we are talking about one judgment the rule speaks about one judgment and one action. I've been talking about theory and there is a practical sensibility to the amended Rule 23. A class action really is -- was thought of and enacted and devised to provide a form to get rid of a multitude of cases, decide them all in one case and also it was devised to give a small litigant, a chance to litigate his claim of the makers -- the rule recognized this when they -- in their statements, the advice of committee notes that they were doing their way completely with these terms, joint, common, several, true, spurious and hybrid actions. These were being done away and there was going to be provided new amended Rule 23 would provide it for only one action. These terms were no longer going to be looked to and I submit that if we take the interpretation as urged by the respondent in this case that there would never be a very seldom ever be brought an action under -- excuse me, the amended class action rules. And as for this reason, the first requirement of amended Rule 23 is that the class be so numerous, that it would be impractical to bring them all before the court. I cannot think of any case that I've read or heard about and with there was so many people that suffered independent damages of $10,000.00 that they could not be brought before the court and most of the cases such as the case we are talking about, you find persons who has sustained damages of $500.00, a thousand dollars, in our case, the petitioner in this case was $8,740.00 but in very few case if any will you find so many people that would be impractical to bring the court, each one of them has sustained a $10,000.00 and therefore the position urged by the respondent really completely makes Rule 23, amended Rule 23 a nullity, it will never be used and I suggest and urge this Court that the interpretation urged by the petitioner be adopted. That was the intention of the framers of the rule that small litigants haven't formed to litigate their claims and that under the federal -- amended Rule 23 that there would be one action, one judgment binding on all the members of the class that have not chosen to be excluded and certainly in this case, that amount would be for an excess of the $10,000.00 jurisdictional amount.
Abe Fortas: But it isn't quite bad, is it? It's a question of whether you have to litigate in a state or to federal courts.
Charles Alan Seigel: Well the --
Abe Fortas: I mean to say you have a forum.
Charles Alan Seigel: There -- that's true. There could be a forum but I think that the litigants are entitled to an impartial forum as provided for -- by the diversity of the citizen -- the citizenship of provisions of our -- of a traditional act of the constitution, pardon me. And the mere fact that there might be a form in the state court, does not mean that there cannot be also be a form in the federal court and I think it was the intention of the framers to have a rule -- the state courts -- none that I know have this particular rule. I think it was the intention of the framers of amended Rule 23 to provide such a form because it was seen that under the old rule is that no class actions were being brought. The only thing that was happening was, is that when there is a separate and distinct claims that one or two persons would intervene in the case, it was really a method of permissive joinder. It's all the old class action rule was and it was not a class action in the true sense. It was not designed to do a way and to finally decide a multitude of claims. It was not designed to give as a class action should be to give the small litigant a chance to litigate his claim and I think that was the intention of the framers, I think it is clearly expressed when they -- as I indicated before, the state -- the class must be so numerous. Well, obviously we know that there can never -- that in -- from our practical dealing with life that there would not be so many people and very seldom it would be so many people that would lose $10,000.00 in a transaction it would be impractical to bring it into the court. So the framers were thinking of the small litigant.
Thurgood Marshall: That was in the old rule, wasn't it?
Charles Alan Seigel: That is correct.
Thurgood Marshall: That same provision, wasn't it? There's nothing new about that provision.
Charles Alan Seigel: No, that is correct Mr. Justice, it was in the old rule forever --
Thurgood Marshall: The number didn't change that.
Charles Alan Seigel: That is correct but the old rule could not work because the -- each person under the old rule, they're being separate and distinct claims had to have suffered a $10,000.00 jurisdictional amount lost so the purpose of a class action rule of doing a way with a multitude of litigation would not be -- would not have been carried forth.
Thurgood Marshall: Professor Capton doesn't quite agree with you, does he?
Charles Alan Seigel: No. Thank you very much.
Earl Warren: Mr. Zemelman.
James L. Zemelman: Mr. Chief Justice and may it please the Court. I would like to first direct the Court's attention to one particular position that we've adopted in our prosecution of this matter. That is and I'll start out with that that the history of the aggregation doctrine leads us as the respondents to the inescapable conclusion that the doctrine, that's the aggregation doctrine is not tied to the federal rules of civil procedure. The aggregation doctrine began approximately a hundred years prior to the time that our federal rules were enacted. The jurisdiction of our lower courts was established by the legislature and from time to time modified and amended until such times it reached the $10,000.00 limitation that it presently has. Admittedly when the federal rules of civil procedure were amended, there was an effort on the part of the advisory committee to give it seems to me the federal district courts wider discretion as to the type, the latitude that they could choose in applying any sort of joinder application. Nevertheless, it's our contention, it's been our contention form the beginning that this amendment to Rule 23 although it does a way with the designations we call hybrid, spurious and true and those I remind this Court were creations I think of the writers rather than of the courts. Nevertheless, they have to be used today as some form of a guideline. Mr. Justice White asked my opponent as to what procedure might be evolved in the event that various of the parties within a class should seek to remove themselves from that class and clearly as we pointed our in our brief. The possibility is that the final remaining or remaining parties would not have the jurisdictional limit. I think that the intention of the federal rules was not to determine whether or not the party litigant could get into court but rather what procedure might be used to simplify the approach that the court could take to the handling of the various litigation before it. The jurisdictional limits that are imposed upon the courts must be viewed first and in this instance, it's a $10,000.00 limitation. The plaintiff in this case by the admission of counsel has only approximately an $8,000.00 claim and that only by aggregation could she have as a forum the federal court. She is not without of form, the Missouri Rules of Civil Procedure as set out in our brief provide the same or comparable provisions as did Rule 23 prior to its amendment. It would be my understanding that the simple result of the amendment to the rule was to promulgate a more practical working of the class procedure. It enabled the court to determine whether or not a matter if filled within the class action procedures and would be appropriate to that court. But prior to making that determination, it seems to me that this court or any court has to determine whether or not the jurisdictional requirements are met. Counsel has suggested that we might be talking about a limiting factor by invoking Rule 82. Federal Rule 82 says and I quote in part “That the jurisdiction shall not be extended or limited.” I am not suggesting to this Court that we're talking about any limitation. The limitation is in existence by the present statutory enactment being the $10,000.00 limitation. We're suggesting that the Court is not changing that. We're merely suggesting that if petitioner's application were applied here that any number of people with separate and distinct claims with a common matter of law in fact could join in and bring a cause before the court. In the federal district court in making its decision in this matter, it referred to the Pinel case and we subsequently called the court's attention to Troy Bank of Troy, Indiana versus G. A. Whitehead and in that case probably the aggregation doctrine is more clearly defined than in any I have read and that points out that when two or more plaintiffs having separate and distinct demands unite for convenience and economy that is in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount. Clearly in this case, this plaintiff bringing of this lawsuit on her own seeking the $8,000.00 based upon her 2,000 shares does not have a forum in the federal court. She is not limited from a day in court but she is limited in our -- at least within in our understanding of the forum of this court or of the federal courts.
Abe Fortas: Well isn't the claim in the present case peculiarly a derivative claim? That is to say a claim of the corporation against some of its officers and directors?
James L. Zemelman: Mr. Justice Fortas, it is not. This is a class action claim that has been brought not under the derivative proceedings of the federal court. There is a derivative suit that has been filed and I would point that out to this Court by a shareholder in the state courts of Missouri. In addition, this particular petitioner has filed cases in the District Court in the State of California and in the District Court of the State of Wisconsin. One of which was dismissed, the California case. The Wisconsin case following the holding of the Tenth Circuit in the Gas Service case and accepting that proposition determine that the action was properly brought and overruling so to speak the decision of the Eighth Circuit Court in our case and in the Fifth Circuit Court in the case of Alvarez versus Pan American Life Insurance Company.
Abe Fortas: Well I'm not sure I understand you, isn't the claim here corporate mismanagement or use of inside, the claim here, let's say now as I recall it, the claim is that the insiders sold their stock to -- at a specially high price to a company which sought to acquire control of your claim, is that right?
James L. Zemelman: The allegation Mr. Justice Fortas is that certain of the directors --
Abe Fortas: Yes.
James L. Zemelman: -- who controlled a large block of their stock.
Abe Fortas: Yes.
James L. Zemelman: Sold their stock to other persons.
Abe Fortas: At a premium price.
James L. Zemelman: At a premium price and the claims --
Abe Fortas: Now the resulting -- the resulting cause of action is conventionally speaking a corporate cause of action, is it not?
James L. Zemelman: It may be in this instance --
Abe Fortas: And this would be typically a derivative stockholder's action.
James L. Zemelman: The one petitioner, the petitioner in our state courts in Missouri has chosen that route, the derivative route. In this instance, what the petitioner has chosen to do is to recover not for the corporation but for the stockholders themselves, this fund that they've determined by multiplication to be approximately $1,200,000.00. They're not seeking this money for the corporation which is the derivative action. My corporation has been damaged I as a shareholder seek to recover when new directors will not take such action.
Abe Fortas: Now let us suppose that the stockholder here had brought this as a derivative action, that is to say, assert of the cause of action on behalf of the corporation or recovery to go to the corporation if the suit were successful. Would you still challenge the jurisdictional amount?
James L. Zemelman: This would take some thought but it would appear that if it was the corporation that we're seeking the fund by it before. If the fund was to be sought for the corporation and no singular stockholder, I think this is an important element and no singular stockholder was to realize other than the enrichment of the corporation.
Abe Fortas: Well that's a derivative stockholder's action.
James L. Zemelman: Right. In that situation it would be conceivable that if the amount that had been taken away from the corporation were a $1,200,000.00 that they would reach the jurisdictional limit but that is not the case here.
Abe Fortas: Well you say to be conceivable, I go with you, I could conceive of a lot of things.
James L. Zemelman: Well --
Abe Fortas: But do you think that is a correct construction, correct interpretation of the law. In other words, this I believe that the question is quite relevant to your case when I say so, because the question that we have to consider is whether the rule that we would lay down in this case will also apply to a derivative stockholder's action or would not -- or whether the two are distinguishable, that's really what I'm asking you.
James L. Zemelman: Well, I am not certain that I agree with, Mr. Justice Fortas that the same procedure would be followed in a derivative action. I don't --
Abe Fortas: I'm asking you whether the rule that with respect to computing jurisdictional amount in the case before us now would necessarily apply, had the stockholder here brought a derivative stockholder's action whether you say that the rule is the same or if it's different and if you think that it would be different, what would be the rule in a derivative action?
James L. Zemelman: I think that they would have to be different and I think that the derivative -- I don't -- it's my understanding that Rule 23 be that the procedure is on (b) (3) that the -- we're proceeding under here is a derivative action. It's a class, a form of class action and that under a derivative action, the amount in controversy would be determined by what the corporation would be entitled to rather than by aggregating the claims of the very stock.
Abe Fortas: You mean that stockholder owning one share of stock worth $1.00 would have -- would satisfy the requirements of jurisdictional amount provided that it brought a derivative stockholder's action?
James L. Zemelman: A shareholder with one share of stock worth a market value of $1.00 in bringing a shareholder's derivative actions, I care not with the value of the shareholder stock is, it's what is the amount of the claim that that shareholder is asserting on behalf of that corporation. In this instance, we are led down the path of a single shareholder seeking a single recovery for her self and by --
Abe Fortas: No but she is not.
James L. Zemelman: Well she is --
Abe Fortas: She brought a class action.
James L. Zemelman: That is what -- no, that is what she's doing -- well, she's doing this under the class action procedure here. She is saying to this -- to the federal court that I may aggregate my $8,000.00 claim with your $4,000.00 claim and your $11,000.00 claim.
Abe Fortas: Suppose nobody comes in and joins here.
James L. Zemelman: Well --
Abe Fortas: Been -- and what would be and let's suppose the court -- and let's suppose the plaintiff wins. Now, would the judgment rendered by the court be related solely to these ones, stockholder's holdings or would it be a judgment on behalf of the entire class?
James L. Zemelman: It's my position that in this case, in this litigation assuming it follows the merit, the merits or the cost that this -- that the federal district court in Missouri would give this lady an award of, and I will refer to my -- which I can't really find, some $8,000.00, a judgment for $8,000.00.
Abe Fortas: Well then you are back to the point of saying that this is not a proper class action under the rule as amended, aren't you?
James L. Zemelman: Under Rule 23 (b), I'm saying that she has not the jurisdictional requisite to come within the class action. Yes.
Abe Fortas: Alright, you understand my point, my quarrel with you because I'm saying that if you say that this is a proper class action under Rule 23 as amended, then I believe you have the greatest difficulty in sustaining your position that the recovery would be limited to the damages according to this single stockholder on the kind of her single holdings.
James L. Zemelman: This is a separate and distinct claim brought by this petitioner enacting Rule 23 (b) as they interpret it to be which entitles them to ask because of the cumbersome condition of the class to represent the class.
Thurgood Marshall: Suppose the petitioner had one $10,000.01.
James L. Zemelman: I'm sorry.
Thurgood Marshall: Suppose the petitioner was claiming for her self $10,000.01. Then she could file a class action?
James L. Zemelman: She may if she has $10,000.00 herself and she as I understand it --
Thurgood Marshall: Well she got that $10.01, it has to be over ten.
James L. Zemelman: $10,000.01, yes.
Thurgood Marshall: Then she could file a class action?
James L. Zemelman: Then she could bring this action, absolutely.
Thurgood Marshall: And everything would attach to it.
James L. Zemelman: It would attach in the way that counsel wishes it to attach that a judgment would be rendered which would bind the class excepting for those members of the class that chose to get out of it.
Thurgood Marshall: Well some could refuse to take the money.
James L. Zemelman: Take the action as to be excused from.
Thurgood Marshall: Yes refused to take the money.
James L. Zemelman: Well they could ask to be excused from the action and bring their own private action. I don't think this will happen, the practicality dictate otherwise. I would like to speak to one additional point, that's this that one of the matters that's been beleaguered here has been this feeling sorry for this people who do not have the jurisdictional requirement to get in this Court. But not withstanding that, we have every day and the courts of this land, cases where plaintiffs and petitioners have 9,800 or $9,999.00 and they are unable to avail these themselves of this forum. If this is the excuse that's going to be used to allow them to arrive within the forum of the federal court, then of course new learning is going to have to be established here and it is our position and our argument that the entire aggregation doctrine which has been derived and from the many cases that have come before this in the other federal courts, will have to be waived away and I don't believe that ipso facto, we're going to take wand in a race, all of these procedures and again, I go back to my initial claim which is this that it's our contention that the jurisdictional requirements have to be met and then we look to the federal rules of civil procedure to determine what manner of action may be brought here and if a class action properly lies because I have the $10,000.01 then so be it, I'm in this Court. Otherwise, I am limited to a perfectly adequate forum which provides the same sort of determination as the federal court. I'm not led to believe that the state courts of Missouri are going to be arbitrary in reaching a decision here anymore than I would be at the federal courts and I feel that an adequate result if the law so supports, it can be achieved by the petitioner in the state courts. Again, I allude to the fact that based upon my interpretation, the interpretation of Judge Harper in our District Court and a reading of the Advisory Committee indicates that this a procedural working and that under the doctrine established in the Pinel case, under the doctrine established in the Troy Bank versus Whitehead case and under all of the cases that we've cited in our brief that the aggregation doctrine is not to be wiped away. It's a procedural -- it's a doctrine that determines that is determinative of the jurisdictional requisites needed to get into this Court. I would call Mr. Chief Justice Warren's attention to a paragraph that we've referred to in our brief which points out among other things that the increase in 1958 of the jurisdictional amount to $10,000.00 seemingly has only had a slight effect on the workload of the jurist -- of the judiciary. If this effort on the part of petitioner to invoke Federal Rule 23 (b) is allowed to be utilized under the situation that they claim, then I can see that this Court will be flooded with just extensive litigation because all of those claimants who have one cent that when they get together and get $10,000.01 together under a separate and distinct claim procedure will have the forum of this Court available to them. This petitioner represent -- recognized the separate and distinct nature of its claim throughout and we merely urge upon this Court that the decisions of the Fifth Circuit which this Court -- which applied for certiorari to this Court and which is subsequently denied the decision of the Eight Circuit and of by the way some of the federal districts of Illinois are very well reasoned and have arrived at a proper result. I would call the Court's attention to one other case. There are two cases in Illinois which go in opposite routes and it would be our position that the Booth versus General Dynamics case which seems to permit an aggregation. Actually, was viewed in the Lesh case also cited in our brief and recognized by the Lesh case as reaching an improper result. I would also like to call this Court's attention to the Gas Service Company case. The Tenth Circuit in reaching its result, it was at least was our determination in relying on the Gibbs versus Buck case has misconstrued the decision of that case but that in fact in that case an examination shows that all of the parties that were petitioners to that case have the requisite jurisdictional amount so that there was no question here as to whether aggregation was required. And it seems to me that the Buck case, Gibbs versus Buck case reiterates and reaffirms the earlier and later decisions of this Court that the aggregation doctrine is a well thought up and a well situated doctrine that should not be wiped away and I would suggest to this Court that if the Court feels that amended Rule 23 (b) permits this than what the Court is doing is in one fell's hoop is wiping out the aggregation doctrine which seems to us to be a very realistic doctrine that has been established for over a hundred years in this Court. Thank you very much.
Earl Warren: Mr. Seigel.
Charles Alan Seigel: I'll just have very short -- two short statements.
Earl Warren: Very well.
Charles Alan Seigel: Mr. Justice, members of the Court, I think that question that really brings this whole thing to a point is the question what happens if there is $10,000.01 or $10,001.00, does that make it a class action? Well under the theory of the respondents, although respondents suggested does here but under the theory it would not because still for each -- under their theory, for each member of the class you would have to have $10,000.00 and as I stated before, where we ever going to find a class action as we think of a class action where there have been so many people that have sustained $10,000.00 lost. The amended rule would be a complete futility, be a futile. The amount raised --
Earl Warren: Mr. Zemelman argued that each of them have to have $10,000.00 interest or that one have to have $10,000.00 and then he could aggregate.
Charles Alan Seigel: Well, Mr. Justice he -- on being questioned here by Mr. Justice Marshall, his answer was, is that if the petitioner had $10,001.00, that would permit a class action.
Earl Warren: Yes.
Charles Alan Seigel: However, throughout their brief, they take the position that there are separate and distinct claims and that there must be $10,000.00 for each claim.
Earl Warren: Where do you find that in his brief?
Charles Alan Seigel: Well, -- bear with me just one second Mr. Justice. Here, they say -- well Mr. Justice, Mr. Zemelman in behalf of the respondents cite the case in United States Supreme Court case of Troy.
Earl Warren: Where is this?
Charles Alan Seigel: On page 13.
Earl Warren: 13?
Charles Alan Seigel: Of the respondent's brief. And I think this sets forth their position that -- and this was under the old rule and under the old court procedure of joinder when two or more plaintiffs having separate and distinct demands unite for convenience in economy to a single suit, it is essential that the demand of each be the requisite jurisdictional amount and so --
Potter Stewart: That's joinder, that's not a class action. That that appears from the language is to be simple joinder.
Charles Alan Seigel: That is correct Mr. Justice but it's the position of the respondent in this case that the rules of aggregation for joinder apply in the class action. Now under the old Rule 23, it was really no more than a joinder action and so in interpreting the amended Rule 23 is really the first class action as we think of it that the federal court has ever had. Amend that the old Rule 23 was no more than a permissive joinder because when there was separate distinct claims and common questions of law, all it did was give a person having a separate and distinct claim be right to come into the Court and join and any judgment, there would be separate judgments and it would not bind any other members of the class. It was not a class action --
Thurgood Marshall: But isn't it also true that the old rule require that the named plaintiff and for example a spurious class suit, the name plaintiff must have all of the -- all emphasize underscore jurisdictional qualifications to maintain the action as an individual, isn't that the old rule?
Charles Alan Seigel: Mr. Justice, the rule does not so state. That was the interpretation that was given by the courts not by looking at the rule or not looking by any statute, by looking at the old principles of what was a joint claim and what was a true -- a common claim. There is nothing in the rule.
Thurgood Marshall: But the spurious class action required that. That the first plaintiff have to be diversity 10,000 plus 3,000 it was then plus of age and everything and then the class was mass outside, --
Charles Alan Seigel: Well Mr. Justice that the rule --
Thurgood Marshall: If you file that, the only amendment, only change that you can argue for would be that the one person would have to set it then anybody could come in. You would -- I don't see how you can argue that they're asking that everybody has to show 10,000. I don't understand the argument to me, not at all.
Charles Alan Seigel: Well, it's just that has been their position throughout the whole proceedings and I might say this is that Mr. Justice, there is nothing in the old Rule 23 that in any way indicates or states that the person bringing a separate and distinct claim must have separate and independent federal jurisdiction.
Thurgood Marshall: Because the rules cannot touch jurisdiction. You get jurisdiction out of the code.
Charles Alan Seigel: Well, Mr. Justice, as our position in this case that when we talk about jurisdiction, what we are talking about is the $10,000.00 limitation that was established originally it was 500 by the Federal Judiciary Act. This was established by Congress. We are not talking about jurisdiction because there is no statute at all that tells how you should compute that $10,000.00 amount. We are talking about a method of procedure.
Thurgood Marshall: (Voice Overlap) the decisions of this Court?
Charles Alan Seigel: Pardon, I didn't here you.
Thurgood Marshall: Should we look to the decisions of this Court?
Charles Alan Seigel: I think that we have --
Thurgood Marshall: That's what the respondent's doing.
Charles Alan Seigel: But I -- that is correct. Now, the respondent is looking to decisions of this Court. Now a court cannot limit jurisdiction or cannot expand jurisdiction. A rule cannot limit or expand jurisdiction so we must be talking about procedure because the Court cannot touch jurisdiction that is set by statute.
Potter Stewart: Well except that Congress I suppose can be presumed to have known the case law at the time it enacted these various jurisdictional amounts. Isn't that fair to say?
Charles Alan Seigel: Well, I assume the Congress did know the case law but of course there was no mention as to how computation should be made but still the Court had to look to its procedural rules to find out how the jurisdictional amounts will be computed and then that's we are urging here.
Potter Stewart: In this $10,000.00 -- the current $10,000.00 jurisdictional amount in diversity jurisdiction, I suppose reflects some sort of a policy on the part of Congress to limit diversity jurisdiction to that extent.
Charles Alan Seigel: That is correct.
Potter Stewart: And in so limiting it, I suppose the Congress as I said earlier can -- we have to assume the Congress knew about the cases that had construed the requirements with respect to class actions, isn't that?
Charles Alan Seigel: Well, there at the time when the Congress initially passed the jurisdictional amounts, there really wasn't any -- this is way back in 1789, there really wasn't any law as far as joinder and class actions --
Potter Stewart: And back then the amount was $500.00.
Charles Alan Seigel: That is correct. But the point is and I know I emphasized, this is that you're only talking about jurisdiction when you talk about raising or lowering the 10,000 a month. We are not talking about that. We say that amended Rule 23 has provided for a procedure whereby there is a binding one single judgment in a class action, binding on each and every member of the class which is not -- choose to withdraw from the class and that in this case that one single action, one single judgment would be a $1,200.000.00 --
Abe Fortas: Your adversary says that that's not the way you framed your complaint. If you framed your complaint that way then it might very well be argued that that is a way of determining the amount in controversy and that the amount in controversy namely the judgment to be entered if you win exceeds $10,000.00 and your argument has a point. Your adversary seems to contest that that is the way you drafted your complaint that says you got a complaint in the state court as I remember that on that theory but that this is not such an action and I take it you dispute that.
Charles Alan Seigel: Mr. Justice, I might say that the -- there isn't action in the state court, a corporate -- traditional corporate derivative action which we do not participate in and that our position is this. Our action is brought on behalf of the stockholders, not on behalf of the corporation for the reason is that if this $1,200,000.00 will be covered and would be paid in to the corporation that it would be the wrongdoers who now control, who would be getting the benefit of this premium that was paid to them and there are cases to substantiate our position. So therefore, we are asking that the million and our complaint specifically states that we are asking judgment for a $1,200,000.00 for the members of the class, that is the judgment prayed for.
Potter Stewart: In other words you agree that this is not a derivative action?
Charles Alan Seigel: This is not a derivative action.
Earl Warren: Very well.
Charles Alan Seigel: Thank you very much.


Clement C. Rinehart: -- to appoint but I think Mr. Spritzer gave a wrong impression about the second suit, the independent suit filed by the Government on the -- the identical cause of action, the identical words, was brought before, the set off was pleaded in this case. And that suit still is going on to -- to the issue and testimony has been taken but the Government doesn't proceed with it because they're waiting to hear how this case comes out. So we have the result that the identical words appeal on two pieces of paper, one of them is called an answer in this suit and the other is called a libel in the independent suit that's still pending and they will be decided before the same judges and the merits of the case will be determined. And that also satisfies the -- the requirement of Section 227 that you spoke of, Mr. Justice Whittaker because that only requires a new suit to be brought by the Government in case a judgment is recovered against the Government on the -- respondents claim here.
William J. Brennan, Jr.: Well, what does your -- what does your --
Clement C. Rinehart: If the debt is not already in suit.
William J. Brennan, Jr.: What does your client gain by his victory here, I don't follow with any --
Clement C. Rinehart: Well, our -- our client gains exactly the thing that I think is one of the reasons that the Government doesn't want this to happen. If the Government -- if we obtain the decree or hold the decree which we now have, then the Government is required to either accept our claim or to assert its -- or prosecute its suit, its independent suit to a conclusion. And if it fails to do so, then we are entitled successfully, then the statute expressly provides Section 227 of Title 31 that as compensation for the delay, our client is entitled to interest. Congress has so provided and that's the remedy that they were entitled to have of what -- they get to this set off voice, why of course, that's a different sort of situation.
Speaker: And you would get -- in other words, you would get the full amount of your judgment in cash --
Clement C. Rinehart: Yes, sir.
Speaker: -- subject to the Government's right in this other suit or under a new proceeding under this other section to suit to recover the amount on the other claim.
Clement C. Rinehart: Well, we wouldn't get any cash, Your Honor, until their suit had been concluded because they have a suit pending and the general accounting office would be entitled to withhold payment of our judgment until that other suit was concluded.
Charles E. Whittaker: Mr. Rinehart, may I see if I understand what you said that interest only is involved. Isn't what the Government sought to do in this case was to prosecute this independent claim at the same trial? And would you not be entitled to interest in any case on your claim?
Clement C. Rinehart: Well, as I understood the suit -- I mean the question that was asked by, Mr. Justice Brennan, as what difference it makes to us now --
Charles E. Whittaker: Yes.
Clement C. Rinehart: -- to our client now. And I -- I -- I think that --
William J. Brennan, Jr.: Well, I -- I --
Clement C. Rinehart: -- that was my answer.
William J. Brennan, Jr.: -- I understand why you understood it that way, I didn't phrase it too well. But what I -- the question I meant to ask was the one that Justice Whittaker is reaching now. Could not this whole thing have been disposed of in the one suit without any disadvantage to your client?
Clement C. Rinehart: Well, I think that that is probably so except that within the violation of the Admiralty Rule and that is -- that's in this particular case was because I think that the cross claim that the Government has set up is within admiralty jurisdiction but the moment you -- you depart from the rule, you get into all the troubles that you have in Admiralty where you have limited jurisdiction over the subject matter. You have actions in rem and you -- and all sorts of complications that would arise and that's one reason why I think that it would be wrong for the Court, on the basis of the facts in one particular litigation to make a change in the general rule which has existed for nearly a century and a half and presumably with good reason. And it -- it should be done by independent rule making if it is to be done when all the pros and cons can properly be considered, but not on the basis of the record of particular facts in the particular case.
Charles E. Whittaker: May I ask, as in that connection for any statutes, Mr. Rinehart. Are not Rules 16 and 17 of the District Court in New York rules of practice?
Clement C. Rinehart: That's right, Your Honor.
Charles E. Whittaker: Now then, isn't Section 227 a substantive law?
Clement C. Rinehart: Well --
Charles E. Whittaker: And I wonder then if that's so, whether or not 227 being substantive if it is, wouldn't take precedence over those rules of practice and in this particular case, allow the Court to determine both of those claims in one suit.
Clement C. Rinehart: Well, it -- 227 of course doesn't -- that if the matter is all -- not already in suit, the Government shall bring suit, that's what Section 227 --
Charles E. Whittaker: No, it says a little more. It says that, “If there's are judgment against the United States and the United States has a claim against the judgment creditor, the controller must withhold payment. And if the Government's claim is not in suit, then he must put it in suit and continue to withhold until the Government claim is liquidated and then off set.”
Clement C. Rinehart: That's what I understand that section to be. Yes, sir.
Charles E. Whittaker: Now -- now that I don't quite understand if that's -- if that's a rule of substantive law, then why wouldn't that supersede these local rules of practice which the District Court was authorized to promulgate and did under the names -- numbers of 16 and 17.
Clement C. Rinehart: Well, I don't understand that that entitles the -- the Section 227 entitles the United States to prosecute the suit that's called for, in a way, was in violation of the rules of practice of the particular Court. And this would be in violation of the rules of admiralty to permit the set off of an unrelated counterclaim, was in the same suit. I don't understand that Section 227 is intended to overrule the practice that exist and which another statute, the suits in Admiralty Act requires to be observed in the case.
Charles E. Whittaker: I'm thinking about this practicality. And here you've got both parties in the Court. And there is the original libel in the cross-libel. The Government can't pay on the -- in a judgment rendered on the original libel until the cross-libel has been liquidated, under Rule 220 -- under Rule -- statute 227.
Clement C. Rinehart: That's right, Your Honor.
Charles E. Whittaker: And then why in the interest of direct settlement and conservation of motion, wouldn't it be best to settle those matters into one action and get this thing closed up?
Clement C. Rinehart: Well Your Honor, I -- I really don't see any difference between a prosecuting -- a -- a claim which the Government's claim is labeled as set off in the one hand and taking the same claim and labeling it a libel in the same trials and the same considerations have to be brought before the Court and the Court has to make its decision. And then there's no -- and so, there's nothing impracticable in -- in letting the Government go ahead, doesn't -- has done with an independent suit.
Felix Frankfurter: Could -- could --
Clement C. Rinehart: That will be done.
Felix Frankfurter: Mr. Rinehart, let me --
Clement C. Rinehart: Yes.
Felix Frankfurter: -- ask you this. Buttoning on to what you've just said. You brought this libel against the Government.
Clement C. Rinehart: Yes, sir.
Felix Frankfurter: And the Government filed an independent libel for its charter money.
Clement C. Rinehart: Yes, Your Honor.
Felix Frankfurter: Could two libels -- is there anything in the rule or in admiralty practice that bars the Court from consolidating those two proceedings in a single hearing before a single judge?
Clement C. Rinehart: Yes, Your Honor.
Felix Frankfurter: There is.
Clement C. Rinehart: And that's -- that's what the District Judge held, there was a motion to consolidate by the Government. And --
Felix Frankfurter: Now, why -- what route -- what rule is that the same?
Clement C. Rinehart: Well, because it -- it offends -- it makes -- you can only file a cross-libel, that's what it would technically be. This independency will be a cross-libel. If it arises out of the same transaction as the original libel, now the -- that's what the -- the rule of this Court says too, Rule 44 which is quoted in the brief.
Felix Frankfurter: But -- but there is a difference, deal -- take -- take this Court. A suit is filed here, a petition for certiorari filed, is granted and we set the case down for argument, be granted. Two weeks later or a month later, there's another petition, fully independent party, totally different party. And this Court consolidates those two cases in argument, fused within one case in argument, dividing time appropriately, dispose of it in one opinion. Now, why -- just tell me what rule, either explicit rule or what practice in admiralty and the reason for it that disabled the District Courts from granting a libel that's filed by -- is -- by -- is -- by Isthmian Steamship Company against the United States in a totally separate libel filed on a separate day by Uncle Sam against the Isthmian Company. What is there in rules, either of the local, of the -- the Southern District or this Court or admiralty practice with bars consolidating those two proceedings and having them heard by a single judge. Assuming both -- assuming further that they're both plain admiralty cases, not raising questions of jury trial, I don't see why I have to -- I like to disclose my mind to counsel. I see no reason why I can't devise a limited rule because I can't devise a larger rule. But why I can't decide one type of case because some other type of case would be different and raise different considerations.
Clement C. Rinehart: Well, Your Honor, of course that -- that isn't the hypothesis on which the Government's argument proceeds. They say they admit our claim so there wasn't any issue to be fought out and brought up to this Court on whether we had a -- our client had a good claim or not. The whole thing is the --
Felix Frankfurter: No, but there is this -- this wastefulness of -- of -- I'll come back to what you say you might lose and the Government doesn't want to give. There is this waste of -- of judicial -- I don't mean time but judicial energy and -- and a lot of waste in having extra security of action to which Justice Whittaker referred to.
Clement C. Rinehart: Well, that's -- that's what I failed to understand, Your Honor. The same cause of action asserted by the Government in the same words is going to be tried, whether we try it and call it a setoff or whether you try it and call it a libel. And that -- and the merits of the Government's claim are going to be adjudicated. Now, that takes only one trial, one judge's time and he -- he -- perhaps the same judge had --
Felix Frankfurter: Perhaps -- perhaps, you are raising it --
Clement C. Rinehart: Well, it may --
Felix Frankfurter: -- with objective conditions.
Clement C. Rinehart: Well, of course there may be a different judge but it's in the same Court at any rate.
Felix Frankfurter: Why do you have to have all these separate courts, separate judges, separate papers, different clerks?
Clement C. Rinehart: No, the same clerks --
Felix Frankfurter: -- different (Voice Overlap) --
Clement C. Rinehart: -- same -- same room, one has a different number on it than the other, that's all. But result -- result would be --
Felix Frankfurter: Well, what I can understand --
Clement C. Rinehart: -- entirely --
Felix Frankfurter: I can well understand and that's why a person's descriptive. I can well understand if the claiming, the libeling would lose anything. I'm just now -- I'm putting to one side the rule of the Court and your rightful appeal that it's my business to obey the law, I try to. And I'm assuming that there's no block in the room, I'm assuming this is the reason taken, what is there that prevents this thing from being cleaned up in a single proceeding provided -- provided that you're not -- your client is not of pocket or isn't inconvenience or hasn't his claim in the slightest degree impaired.
Clement C. Rinehart: You're -- you're assuming there isn't any existing rule, Your Honor.
Felix Frankfurter: What?
Clement C. Rinehart: Absolutely.
Felix Frankfurter: I think -- yes. Yes. Right.
Clement C. Rinehart: Fundamentally, of course , there's nothing in this particular state of facts that I can see that would make it --
Felix Frankfurter: But -- but this isn't a -- this isn't a white crow, this isn't the case, the libel which never will arise again.
Clement C. Rinehart: Oh, no -- no, Your Honor. I don't say that that -- that this is a unique case at all but I do say there are plenty of them in admiralty that aren't anything like this. That it would be --
Felix Frankfurter: Well then, why get --
Clement C. Rinehart: -- affected by a change in the rule. And that it --
Felix Frankfurter: And if -- if other cases present embarrassment to the prosecution of a rightful claim, then that's a good reason for qualifying it and say that's not a case in which cross claims, using the word “broadly” should be applied.
Clement C. Rinehart: Well if -- just so long as the certainty is in the practice, that's what is the main consideration because of course, you can't keep changing the -- the rules all the time very happily for the members of the bar at any rate. Of course, one judge may think, well the reason for the rule doesn't apply in this case and we won't pay any attention to the statute --
Felix Frankfurter: Well, I -- but you suggested a little while ago that it would be disadvantaged as to interest.
Clement C. Rinehart: Well, I think that -- I think we would be.
Felix Frankfurter: Now, if you're disadvantaged, that raises that -- that sort of -- that -- that's a very relevant, substantial -- now why would you be disadvantaged? Why couldn't the judgment be entered on your claim? I think you shouldn't be disadvantaged merely because the Government can say, “We've done it at defense.”
Clement C. Rinehart: Well, I think that Your Honor is right and I agree with you fully but of course, you always run the risk that somebody may take a different view of the thing, and here we -- we have a claim that is undisputed. We're entitled to have it paid and that's (Voice Overlap) --
Hugo L. Black: Well, are you entitled to have it paid. Suppose you get a judgment --
Clement C. Rinehart: Only one way or another, Your Honor.
Hugo L. Black: Suppose you get a judgment now, can you get it paid?
Clement C. Rinehart: What do you mean, get cash for it?
Hugo L. Black: Oh, yes.
Clement C. Rinehart: No Your Honor, we cannot until the other case --
Hugo L. Black: Cannot get cash.
Clement C. Rinehart: -- has been concluded. No, that's correct.
Hugo L. Black: Do not get cash until the Government filed a new suit or filed some closer suits.
Clement C. Rinehart: No. No, the -- the suit is already pending.
Hugo L. Black: Well, in his case it's already pending.
Hugo L. Black: But --
Clement C. Rinehart: Yes.
Hugo L. Black: -- you don't have to be tried out too in all the courts into that case.
Clement C. Rinehart: Oh, that's (Voice Overlap) --
Hugo L. Black: And then the Government would have to continue to pay you interest because it was not all decided in one suit.
Clement C. Rinehart: No, it -- it would be simply because they -- they didn't (Voice Overlap) --
Hugo L. Black: If the Government lost --
Clement C. Rinehart: -- they held back money that was owing --
Hugo L. Black: If the Government's lost --
Clement C. Rinehart: On -- on --
Hugo L. Black: -- which is all right.
Clement C. Rinehart: Yes.
Hugo L. Black: Which is all right. If the Government losses -- but why if it were decided that this rule does pay the substantive rule of law. Wouldn't it also be true that your interest would be protected if you tried it all that in one suit, the same as though you waited until a second suit could be filed and maybe go through another Court, somebody have to pay some extra cost. But why -- why shouldn't this and Justice Frankfurter asked --
Clement C. Rinehart: Why -- and certainly --
Hugo L. Black: Why shouldn't the others be allowed?
Clement C. Rinehart: I think it should be allowed, Your Honor. If the Government doesn't maintain its counterclaims successfully then I think that the interest should be allowed on our undisputed claim.
Hugo L. Black: Well, if the Government --
Clement C. Rinehart: Or we get it automatically under the statute the way it is now. It isn't led to the discretion --
Hugo L. Black: Well --
Clement C. Rinehart: -- of any --
Hugo L. Black: Well, would it be any how --
Clement C. Rinehart: -- (Voice Overlap) --
Hugo L. Black: Would it be anyhow if Congress has given the right to the Government to have its claims tried in this way, what right has the circuit up there to adopt rules, it deprive it of the benefit of this kind of a proceeding.
Clement C. Rinehart: Well, it isn't anything that the Second Circuit has adopted, Your Honor. This is the -- the rule in admiralty has existed from the beginning. It's never been enlarged by statute presumably because they've got a special situation of limited jurisdiction, peculiar jurisdiction in rem in all sorts of things that make it -- I think inadvisable to have a rule permitting unlimited settlements.
Hugo L. Black: That's -- you raise all these questions but none of them apply to this case.
Clement C. Rinehart: Well, I -- I know but the rule applies, Your Honor --
Hugo L. Black: Well, it may -- may be so, that may be so that that's --
Clement C. Rinehart: Whether the reasons for a rule applies or not, it's another point. But the point is that Congress has passed the law which says that the rules that govern private litigation shall govern suits against the Government. And the first thing the Government does in this suit is to ask for a special rule, an exception to be made in favor of the Government when Congress says that -- that the ground rules that apply to the other litigants also apply to the Government.
Hugo L. Black: Congress has also said that the Government shall have certain rights in connection with its lawsuit.
Clement C. Rinehart: Well, they're not --
Hugo L. Black: It's 227.
Clement C. Rinehart: -- they're not being deprived of any right whatsoever in this case. There's no prejudice whatever that the Government suffer -- suffers. Now --
Hugo L. Black: Well, somebody's got to suffer some prejudice in having the basis of extra cost.
Clement C. Rinehart: Well --
Hugo L. Black: At least that much.
Clement C. Rinehart: I hope we -- [Laughter] but --
Speaker: May I ask you, one question?
Clement C. Rinehart: Yes.
Speaker: Assuming that the rule -- assuming that one were to agree with you on Rule 16. The reason that Judge Dimmick as I see it refused to consolidate was because of the Local Admiralty Rule, Rule 13.
Clement C. Rinehart: Which is the same as the -- this Court's general rule to Rule 44.
Speaker: That's -- that's consolidation now.
Clement C. Rinehart: Yes.
Speaker: That's assuming that you couldn't plead -- the Government couldn't plead this -- the subject matter of its independent suit by way of set off to your suit.
Clement C. Rinehart: That is correct, Your Honor.
Speaker: Or maybe --
Clement C. Rinehart: You -- you -- if you may not do it by setoff, you may not do it by cross-libel either in admiralty. You have to -- to the difference between setoff and cross-libel is simply this. That you can't recover affirmatively on a setoff which is pleading on the answer.
Speaker: Yes.
Clement C. Rinehart: But you may recover affirmatively on a cross-libel. But in both cases, the cross-libel and the setoff must relate to the transaction or cause of action that is alleged in the libel.
Speaker: So that the District Court, you think if Rule 13 is to be observed, would have had no right to exercise the discretion to consolidate, a general discretion to consolidate that Justice Frankfurter is suggesting.
Clement C. Rinehart: That -- that's correct, Your Honor, I don't --
Earl Warren: Mr. Rinehart, as I understand that the -- the Government has two arguments. One is that it is entitled under the -- under the rules to maintain this counterclaim and the second one is that if the rule is different, it wants us to reconsider the rule.
Clement C. Rinehart: Yes, sir.
Earl Warren: Now, assume that -- assume that we decide the case on that second issue, one way or the other. I think some of the members of the Court, I'm sure I would, would like to know what financial injury would occur to your client if we decide against your position on that issue?
Clement C. Rinehart: Well, apart from the -- the interest question which I have already spoken of, I don't -- the -- and that doesn't necessarily mean that we would lose but under Section 227, we have a clear right to the interest. Now, if the case is reversed and it goes back for trial on the setoff, then of course it's in the discretion of the trial judge as to whether or not, assuming the Government is unsuccessful, he allows interest on our claim.
Earl Warren: Then wouldn't the judge in the same -- be entitled? The same discretion if it tried it in the two lawsuits?
Clement C. Rinehart: Well, it --
Earl Warren: As if it tried to be (Voice Overlap) --
Clement C. Rinehart: -- it would be either be a question of whether or not the Government recovered interest from us under their claim. Of course, if it's --
Earl Warren: Yes.
Clement C. Rinehart: -- if these independent suits was tried.
Earl Warren: Yes. Well -- well, but what difference does it make if the judge decides your interest in one lawsuit instead of two so far as your financial interest is concerned?
Clement C. Rinehart: The same decision in both cases, I don't see any --
Earl Warren: Well --
Clement C. Rinehart: -- any in this particular suit.
Earl Warren: Well, are you deprived of any -- any defenses or you -- in the Government's case that -- that you couldn't have in this -- in this one suit?
Clement C. Rinehart: On the facts of this particular suits, Your Honor, of course, you're putting a question to me that I -- I'm not entirely sure about. That just now I don't see how that would -- there'll be any defense that we'd be deprived of, we couldn't assert against the Government's setoff. But --
Earl Warren: Then -- then really what -- what you're arguing for is just a strict maintenance of that -- an adherence to that rule because it is the rule.
Clement C. Rinehart: Well, as to what the statute requires --
Earl Warren: Yes.
Clement C. Rinehart: -- Your Honor.
Earl Warren: Well, I -- I see. That's --
Clement C. Rinehart: Yes.
Earl Warren: -- what you are not -- because it will result in any -- any financial injury to you.
Clement C. Rinehart: No. Then -- then there's another thing that I would like to mention before my time is up and that is if the rule is changed, where you come to suits by the Government against private parties so as to permit the Government to interpose the setoffs. They're going to be left with a very incongruous situation because by statute, under the Public Vessels Act, when the Government is the actor and sues the private party in admiralty, you may not by statutory rule, Section 3 of the Public Vessels Act assert against the Government any setoff unless that -- these are words arising out of the subject matter for cause of action contained in the Government's libel. In other words, the private party, when he sues the Government, has to observe the Admiralty Rule and will have to no matter what the Court does about any rule in this case because no decisional rule could change that statute and the Government would have the Admiralty Rule applicable in cases where it was the litigant or of in the libel.
Felix Frankfurter: May I ask, Mr. Rinehart?
Clement C. Rinehart: Yes.
Felix Frankfurter: One reason why I'm very unsympathetic to the ancient distinction, the only distinction between setoff in Congress' way and then so on. And also arising out of the same transaction, arising out of the same transaction. As you well know, the courts have done all sorts of things under that phrase, “Arising out of.” I mean to say, they've arisen out of something that didn't arise off, merely because of hostility to that narrow procedure. That's correct, isn't it?
Clement C. Rinehart: Well, I -- that -- that's certainly --
Felix Frankfurter: Is that correct?
Clement C. Rinehart: -- their -- indifferent views if there was.
Felix Frankfurter: Now -- yes, while you call it different view. What I want to know from you is this. Admiralty courts in applying the rule for which you contend, have they been -- have they been -- what shall I call it, latitude (Inaudible) in finding whether they did or didn't arise out of it?
Clement C. Rinehart: Well, I -- I won't say that -- that all the decisions are -- are entirely harmonious but I don't think there's very much spread or conflict between them on that particular point, Your Honor. Now, of course I have the -- I have a number of other points but now I'll have to rely on my brief for those. But I do think that the -- no prejudice whatever can result to the Government and I do think that if the rule is to be changed, it ought to be changed in the rule making procedure that's proscribed by the statute so that all the pros and cons can be brought out.
Felix Frankfurter: You've done pretty well.