Atlass v. Miner

• Decision Date: 31 March 1959
• Docket Number: No. 12516.,12516.
• Citation: 265 F.2d 312
• Parties: H. Leslie ATLASS, Petitioner, v. Hon. Julius H. MINER and Hon. Edwin A. Robson, Judges of the United States District Court for the Northern District of Illinois, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

265 F.2d 312 (1959)

H. Leslie ATLASS, Petitioner, v. Hon. Julius H. MINER and Hon. Edwin A. Robson, Judges of the United States District Court for the Northern District of Illinois, Respondents.

No. 12516.

United States Court of Appeals Seventh Circuit.

March 31, 1959.

Edward B. Hayes, Warren C. Ingersoll, Chicago, Ill., for petitioner.

Robert W. MacDonald, Chicago, Ill., for respondent.

Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.

HASTINGS, Circuit Judge.

We have before us the petition of H. Leslie Atlass for the issuance of a writ of mandamus or prohibition to be directed to the Honorable Julius H. Miner and the Honorable Edwin A. Robson and any other Judge of the United States District Court for the Northern District of Illinois, prohibiting the enforcement of an order entered by Judge Miner directing petitioner and others to submit to oral discovery deposition in an admiralty proceeding now pending in the district court.

The proceeding below is entitled, "In the Matter of the Petition of H. Leslie Atlass for exoneration from or limitation of liability as owner of a certain vessel known as Yacht Sis", in the United States District Court for the Northern District of Illinois and there numbered 57 C 722. This proceeding was first assigned to Judge Miner who, after hearing oral argument on the motion of certain claimants and petitioner's objections thereto, on November 24, 1958, entered an order granting the movants leave to take the depositions of petitioner and others named therein. The cause was subsequently reassigned to Judge Robson before whom it is now pending. The order of November 24, 1958 is under attack in the present petition. In answer to a rule to show cause the respondents have filed their response and memorandum.

At the outset it can be said that we agree with respondents that mandamus and prohibition are extraordinary remedies and should be reserved only for the most extraordinary causes. This court has been slow to resort to these remedies in the exercise of its supervisory powers over the district courts and we have been unwilling to allow their use as a substitute for appeal. Ex Parte Fahey, 1947, 332 U.S. 258, 259-260, 67 S.Ct. 1558, 91 L.Ed. 2041. However, believing as we do that the critical issue raised at this juncture strikes at a fundamental procedural question, to await its determination until the hearing of an appeal on the merits of the case would afford a clearly inadequate remedy. Further, the resolution of this question will affect procedure in all admiralty proceedings in the Northern District of Illinois and may serve to avoid a conflict in the district courts of this circuit. Since we are here concerned with the rule-making power of the district courts, our present consideration may likewise serve to crystallize this problem and afford a clear opportunity for its further review if such is found to be necessary. Accordingly, we shall determine this petition on its merits. See Roche v. Evaporated Milk Association, 1943, 319 U.S. 21, 31, 63 S.Ct. 938, 87 L.Ed. 1185; McCulloch v. Cosgrave, 1940, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992; Los Angeles Brush Mfg. Co. v. James, 1927, 272 U.S. 701, 705, 47 S.Ct. 286, 71 L.Ed. 481.

The motions of the claimants below on which the order of November 24, 1958 was based recited in part:

"FOR AN ORDER, pursuant to Admiralty Rule 32 and Rules 26, 28 and 30 of the Federal Rules of Civil Procedure 28 U.S.C.A., granting the claimant and complainant leave to take the oral depositions of H. Leslie Atlass, * * *, material witnesses herein, for the purposes of discovery only, * * *." (Our emphasis.)

Respondents contend that the words "Admiralty Rule 32" in the foregoing motion refer to District Court Admiralty Rule 32, rather than Supreme Court Admiralty Rule 32 as petitioner urges, and we shall accept this interpretation in our subsequent consideration of this matter.

The District Court for the Northern District of Illinois has adopted thirty-three Admiralty Rules covering various phases of admiralty practice. Among these is Rule 32 which provides:

"The taking and use of depositions of parties and witnesses shall be governed by the Federal Rules of Civil Procedure except as otherwise provided by statute and except that their use shall be limited as hereinafter set forth. * * *." (Here follow the provisions relating to the use of depositions.)

The ultimate question before us for determination relates to the validity of this rule. Does the district court have the power through adoption of this rule to require a party in an admiralty proceeding to submit to oral discovery deposition?

Rule-making power generally is vested in all federal courts by Congress pursuant to 28 U.S.C.A. § 2071. Congress has given authority to the Supreme Court of the United States to make admiralty rules for the district courts in 28 U.S.C.A. § 2073, which provides in part as follows:

"The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions and the practice and procedure in admiralty and maritime cases in the district courts of the United States and all courts exercising admiralty jurisdiction in the Territories and Possessions of the United States."

Certainly one of the purposes the Congress must have intended was to achieve uniformity in admiralty practice and procedure:

"The admiralty and maritime jurisdiction being, by the Constitution, entirely transferred from the States to the general government and made a purely Federal jurisdiction, of limited extent and peculiar character, it was from the outset deemed desirable that it should be uniform throughout the States, * * *." 2 Benedict, Admiralty 2 (6th Ed. 1940).

Under authority of 28 U.S.C.A. § 2073, the Supreme Court has from time to time promulgated Rules of Practice in Admiralty and Maritime Cases, the present rules having been put into effect on March 7, 1921. See Title 28 U.S.C.A. It is undisputed that such rules have the force of statute.

The Supreme Court has authorized the district courts to make local admiralty rules pursuant to its Admiralty Rule 44, which provides:

"In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules." (Our emphasis.)

Respondents here contend with much persuasiveness that their local District Court Admiralty Rule 32 was promulgated and fully authorized by Congress and the Supreme Court by virtue of 28 U.S. C.A. § 2071 and § 2073, and Supreme Court Admiralty Rule 44. It will be noted in this connection that local District Court Admiralty Rule 32 by its express terms adopts the Federal Rules of Civil Procedure.

In adopting the Federal Rules of Civil Procedure, 28 U.S.C.A., for the government of civil proceedings in the district courts, the Supreme Court prescribed the practice relating to depositions and discovery in Rules 26 to 37, inclusive. In Rule 81, the Supreme Court determined the general applicability of all of the Federal Rules of Civil Procedure and expressly limited their application in admiralty proceedings in the following language.

"Rule 81. Applicability in General.

"(a) To What Proceedings Applicable.

"(1) These rules do not apply to proceedings in admiralty. * *." (Our emphasis.)

It is conceded that the Supreme Court has not made any provision for the taking of oral discovery depositions in its Admiralty Rules. However, the Supreme Court has amended the present Admiralty Rules of 1921 on several occasions: In 1930, to direct that opinions upon trials of issues should find facts and state conclusions of law (Rule 46½); in 1932, to regulate the review by the court of a report by a commission (Rule 43½); and "most important of all, in 1939, to adopt seven of the Rules of Civil Procedure of 1938 relating to interrogatories, discovery, examination before trial, and scope of examinations and cross-examinations." 2 Benedict, Admiralty 2-3 (6th Ed. 1940). Thus, the Supreme Court, in their Admiralty Rule 31 (written interrogatories to parties), Rule 32 (discovery and production of documents), Rule 32A (physical and mental examination), Rule 32B (admission of facts and genuineness of documents) and Rule 32C (refusal to make discovery), adopted the identical text of Rules 33, 34, 35, 36 and 37, respectively, of the Federal Rules of Civil Procedure. It did not amend its Admiralty Rules to adopt Rule 26, F.R.C.P., 28 U.S.C.A. to provide for discovery by deposition. It is not for us to guess or speculate why this provision was omitted, but discovery by deposition is all the more conspicuous by its absence.

In passing, it may be observed that in 1939 the Supreme Court further amended its Admiralty Rules by adopting Rule 46A (scope of examination and cross-examination) and Rule 46B (record of excluded evidence) by using the identical text of Rule 43(b) and (c), F.R.C.P., 28 U.S.C.A., respectively; and in 1942, by adopting Rule 44½ (pre-trial procedure; formulating issues) which states: "Rule 16 of the Rules of Civil Procedure shall be applicable in cases in Admiralty." The obvious effect of these bodily adoptions of specific Federal Rules of Civil Procedure is to give uniformity in these matters to practice and procedure in admiralty proceedings in all district courts.

The logical inference from this course of conduct on the part of the Supreme Court is that, if it had intended that discovery by deposition be permitted in district court admiralty procedure, it would have expressly authorized it when making its 1939 amendments. It is further significant that it did not leave the adoption of pre-trial procedure to local rule-making when it expressly made such a provision in 1942.

In reaching this conclusion we find ourselves in disagreement with the Third...