1. Congress has power to regulate the practice and procedure of
federal courts, and may exercise it by delegating to the Supreme or
other federal courts authority to make rules not inconsistent with
the statutes or Constitution of the United States. P.
312 U. S. 9.
2. The Act of June 19, 1934, empowering the Supreme Court to
prescribe rules for the District Courts of the United States in
civil actions, was restricted in its operation to matters of
pleading, practice, and procedure. P.
312 U. S. 10.
3. Insofar as they are within the authority granted by Congress,
the Rules of Civil Procedure prescribed by the Supreme Court under
authority of the Act of June 19, 1934, repeal the Conformity Act.
P.
312 U. S. 10.
4. Rule 35 of the Rules of Civil Procedure for the District
Courts of the United States, which provides that, in a suit in
which the physical or mental condition of a party is in
controversy, the court may order the party to submit to a physical
or mental examination by a physician,
held within the
authority granted by Congress in the Act of June 19, 1934, and
consistent with the limitation of that Act that the rules
prescribed shall not abridge, enlarge, or modify the "substantive
rights" of any litigant. P.
312 U. S. 14.
5.
Union Pacific Ry. Co. v. Botsford, 141 U.
S. 250, and
Camden & Suburban Ry. v.
Stetson, 177 U. S. 172,
explained. P.
312 U. S. 11.
6.Rules 35 and 37 of the Rules of Civil Procedure are rules of
procedure, and their prescription did not exceed the authority
granted by the Act of June 19, 1934, merely because they involve
"important" or "substantial" rights. P.
312 U. S. 13.
Page 312 U. S. 2
7. That Congress reserved the power to examine, before they
should become effective, rules proposed pursuant to the Act, and
took no adverse action in respect of Rule 35, indicates that no
transgression of legislative policy was found. P.
312 U. S. 15.
8. Refusal to obey an order under Rule 35 requiring a party to
submit to a physical or mental examination is exempted by Rule
37(b)(2)(iv) from punishment as for a contempt. The remedies for
such refusal are those enumerated in Rule 37(b)(2)(i), (ii), and
(iii). P.
312 U. S. 16.
9. The action of the District Court in this case, punishing as
for contempt a refusal to obey an order under Rule 35 requiring a
plaintiff to submit to a physical examination, was such plain error
as this Court may notice although not assigned or specified either
in the Circuit Court of Appeals or here. P.
312 U. S. 16.
108 F.2d 415 reversed.
Certiorari, 309 U.S. 650, to review the affirmance of an order
committing for contempt.
Page 312 U. S. 6
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This case calls for decision as to the validity of Rules 35 and
37 of the Rules of Civil Procedure for District Courts of the
United States. [
Footnote 1]
In an action brought by the petitioner in the District Court for
Northern Illinois to recover damages for bodily injuries inflicted
in Indiana, respondent answered, denying the allegations of the
complaint, and moved for an order requiring the petitioner to
submit to a physical examination by one or more physicians
appointed by the court to determine the nature and extent of her
injuries. The court ordered that the petitioner submit to such an
examination by a physician so appointed.
Compliance having been refused, the respondent obtained an order
to show cause why the petitioner should
Page 312 U. S. 7
not be punished for contempt. In response, the petitioner
challenged the authority of the court to order her to submit to the
examination, asserting that the order was void. It appeared that
the courts of Indiana, the state where the cause of action arose,
hold such an order proper, [
Footnote 2] whereas the courts of Illinois, the state in
which the trial court sat, hold that such an order cannot be made.
[
Footnote 3] Neither state has
any statute governing the matter.
The court adjudged the petitioner guilty of contempt, and
directed that she be committed until she should obey the order for
examination or otherwise should be legally discharged from custody.
The petitioner appealed.
The Circuit Court of Appeals decided that Rule 35, which
authorizes an order for a physical examination in such a case, is
valid, and affirmed the judgment. [
Footnote 4] The writ of certiorari was granted because of
the importance of the question involved.
The Rules of Civil Procedure were promulgated under the
authority of the Act of June 19, 1934, [
Footnote 5] which is:
"Be it enacted . . . That the Supreme Court of the United States
shall have the power to prescribe, by general rules, for the
district courts of the United States and for the courts of the
District of Columbia, the forms of process, writs, pleadings, and
motions, and the practice and procedure in civil actions at law.
Said rules shall neither abridge, enlarge, nor modify the
substantive
Page 312 U. S. 8
rights of any litigant. They shall take effect six months after
their promulgation, and thereafter all laws in conflict therewith
shall be of no further force or effect."
"Sec. 2. The court may at any time unite the general rules
prescribed by it for cases in equity with those in actions at law
so as to secure one form of civil action and procedure for both:
Provided, however, That, in such union of rules, the right
of trial by jury as at common law and declared by the seventh
amendment to the Constitution shall be preserved to the parties
inviolate. Such united rules shall not take effect until they shall
have been reported to Congress by the Attorney General at the
beginning of a regular session thereof and until after the close of
such session."
The text of the relevant portions of Rules 35 and 37 is:
"Rule 35. Physical And Mental Examination Of Persons."
"(a) Order for Examination. In an action in which the mental or
physical condition of a party is in controversy, the court in which
the action is pending may order him to submit to a physical or
mental examination by a physician. The order may be made only on
motion for good cause shown and upon notice to the party to be
examined and to all other parties and shall specify the time,
place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made."
"Rule 37. Refusal To Make Discovery: Consequences."
"(a) Refusal to Answer. . . ."
"(b) Failure to Comply With Order."
"(1)
Contempt. If a party or other witness refuses to
be sworn or refuses to answer any question after being directed to
do so by the court in the district in which the deposition is being
taken, the refusal may be considered a contempt of that court.
"
Page 312 U. S. 9
"(2)
Other Consequences. If any party . . . refuses to
obey . . . an order made under Rule 35 requiring him to submit to a
physical or mental examination, the court may make such orders in
regard to the refusal as are just, and, among others, the
following:"
"(i) An order that . . . the physical or mental condition of the
party . . . shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the
order;"
"(ii) An order . . . prohibiting [the disobedient party] . . .
from introducing evidence of physical or mental condition;"
"(iii) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party;"
"(iii) An order striking out pleadings or orders or in addition
thereto, an order directing the arrest of any party or agent of a
party for disobeying any of such orders except an order to submit
to a physical or mental examination."
The contention of the petitioner, in final analysis, is that
Rules 35 and 37 are not within the mandate of Congress to this
court. This is the limit of permissible debate, since argument
touching the broader questions of Congressional power and of the
obligation of federal courts to apply the substantive law of a
state is foreclosed.
Congress has undoubted power to regulate the practice and
procedure of federal courts, [
Footnote 6] and may exercise that power by delegating to
this or other federal courts authority to make rules not
inconsistent with the statutes
Page 312 U. S. 10
or Constitution of the United States; [
Footnote 7] but it has never essayed to declare the
substantive state law, or to abolish or nullify a right recognized
by the substantive law of the state where the cause of action
arose, save where a right or duty is imposed in a field committed
to Congress by the Constitution. On the contrary, it has enacted
that the state law shall be the rule of decision in the federal
courts. [
Footnote 8]
Hence, we conclude that the Act of June 19, 1934, was purposely
restricted in its operation to matters of pleading and court
practice and procedure. Its two provisos or caveats emphasize this
restriction. The first is that the court shall not "abridge,
enlarge, nor modify the substantive rights" in the guise of
regulating procedure. The second is that, if the rules are to
prescribe a single form of action for cases at law and suits in
equity, the constitutional right to jury trial inherent in the
former must be preserved. There are other limitations upon the
authority to prescribe rules which might have been, but were not,
mentioned in the Act -- for instance, the inability of a court, by
rule, to extend or restrict the jurisdiction conferred by a
statute. [
Footnote 9]
Whatever may be said as to the effect of the Conformity Act
[
Footnote 10] while it
remained in force, the rules, if they are within the authority
granted by Congress, repeal that statute, and the District Court
was not bound to follow the Illinois practice respecting an order
for physical examination. On the other hand if the right to be
exempt from such an order is one of substantive law, the Rules
Page 312 U. S. 11
of Decision Act [
Footnote
11] required the District Court, though sitting in Illinois, to
apply the law of Indiana, the state where the cause of action
arose, and to order the examination. To avoid this dilemma, the
petitioner admits, and, we think, correctly, that Rules 35 and 37
are rules of procedure. She insists, nevertheless, that, by the
prohibition against abridging substantive rights, Congress has
banned the rules here challenged. In order to reach this result,
she translates "substantive" into "important" or "substantial"
rights. And she urges that, if a rule affects such a right, albeit
the rule is one of procedure merely, its prescription is not within
the statutory grant of power embodied in the Act of June 19, 1934.
She contends that our decisions and recognized principles require
us so to hold.
The petitioner relies upon
Union Pacific Ry. Co. v.
Botsford, 141 U. S. 250, and
Camden & Suburban Ry. Co. v. Stetson, 177 U.
S. 172. But these cases in reality sustain the validity
of the rules. In the
Botsford case, an action to recover
for a personal injury suffered in the territory of Utah [
Footnote 12] was instituted in the
United States Circuit Court for Indiana, which refused to order a
physical examination. This court affirmed, on the ground that no
authority for such an order was shown. There was no suggestion that
the question was one of substantive law. The court first examines
the practice at common law, and finds that it never recognized such
an order. Then, acknowledging that a statute of the United States
authorizing an order of the sort would be valid, the opinion finds
there is none. Thus, the matter is treated as one of procedure, for
Congress has not, if it could, declared by statute the substantive
law of a state. After
Page 312 U. S. 12
stating that the decision law of Indiana on the subject appeared
not to be settled, and that a cited statute of that State was not
in point, the court added that the question was not one of the law
of Indiana, but of the law of the United States, and that the
federal statutes, by their provisions as to proof in actions at
law, precluded the application of the Conformity Act. Again,
therefore, the opinion recognized that the matter is one of
procedure, for both the cited federal statutes, concerning the mode
of proof in federal courts, and the Conformity Act, deal solely
with procedure.
In fine, the decision was only that the making of such an order
is regulable by statute, that the federal statutes forbade it, and
hence the Conformity Act could not be thought to authorize the
practice by reference to and incorporation of state law.
In the
Stetson case, the action was brought in the
District Court for New Jersey by a citizen of Pennsylvania who,
while a citizen of New Jersey, had been injured in the latter
state. A statute of New Jersey authorized the state courts to order
a physical examination of a plaintiff in an action for damages
pending therein. The District Court refused to order such an
examination, on the ground that it lacked power so to do. After a
verdict and judgment for plaintiff, the defendant appealed to the
Circuit Court of Appeals, assigning the refusal as error. That
court certified the question, 104 F. 1004, and this court answered
that the District Court had power to order the examination.
The court stated that, in the
Botsford case, there was
no statute authorizing such an order, but said that here, there was
a state statute which, by the Rules of Decision Act, was made a law
of the United States, and must be given effect in a trial in a
federal court. While it is true the court referred to the Rules of
Decision Act, R.S. § 721, and not to the Conformity Act, R.S. §
914, the
Page 312 U. S. 13
entire discussion goes upon the assumption that the matter is
procedural. In any event, the distinction between substantive and
procedural law was immaterial, for the cause of action arose, and
the trial was had, in New Jersey. [
Footnote 13]
In the instant case, we have a rule which, if within the power
delegated to this Court, has the force of a federal statute, and
neither the
Botsford nor the
Stetson case is
authority for ignoring it.
The remaining case on which petitioner leans is
Stack v. New
York, N.H. & H. R. Co., 177 Mass. 155, 58 N.E. 686, where
the court agreed with the view expressed in the
Botsford
case that common law practice did not warrant the entry of such an
order, and said it was for the legislature, rather than the courts,
to alter the practice. But, if Rule 35 is within the authority
granted, the federal legislature sanctioned it as controlling all
district courts.
We are thrown back, then, to the arguments drawn from the
language of the Act of June 19, 1934. Is the phrase "substantive
rights" confined to rights conferred by law to be protected and
enforced in accordance with the adjective law of judicial
procedure? It certainly embraces such rights. One of them is the
right not to be injured in one's person by another's negligence, to
redress infraction of which the present action was brought. The
petitioner says the phrase connotes more -- that, by its use,
Congress intended that, in regulating procedure, this Court should
not deal with important and substantial rights theretofore
recognized. Recognized where, and by whom? The state courts are
divided as to the power in the absence of statute to order a
physical examination. [
Footnote
14] In a number, such an order is authorized
Page 312 U. S. 14
by statute or rule. [
Footnote
15] The rules in question accord with the procedure now in
force in Canada and England. [
Footnote 16]
The asserted right, moreover, is no more important than many
others enjoyed by litigants in District Courts sitting in the
several states, before the Federal Rules of Civil Procedure altered
and abolished old rights or privileges and created new ones in
connection with the conduct of litigation. The suggestion that the
rule offends the important right to freedom from invasion of the
person ignores the fact that, as we hold, no invasion of freedom
from personal restraint attaches to refusal so to comply with its
provisions. If we were to adopt the suggested criterion of the
importance of the alleged right, we should invite endless
litigation and confusion worse confounded. The test must be whether
a rule really regulates procedure -- the judicial process for
enforcing rights and duties recognized by substantive law, and for
justly administering remedy and redress for disregard or infraction
of them. That the rules in question are such is admitted.
Finally, it is urged that Rules 35 and 37 work a major change of
policy, and that this was not intended by Congress. Apart from the
fact, already stated, that the policy of the states in this respect
has not been uniform, it is to be noted that the authorization of a
comprehensive system of court rules was a departure in policy, and
that the new policy envisaged in the enabling act of 1934 was that
the whole field of court procedure be regulated in the interest of
speedy, fair, and exact determination of the truth. The challenged
rules comport with this policy. Moreover, in accordance with the
Act, the rules were submitted
Page 312 U. S. 15
to the Congress so that that body might examine them and veto
their going into effect if contrary to the policy of the
legislature.
The value of the reservation of the power to examine proposed
rules, laws, and regulations before they become effective is well
understood by Congress. It is frequently, as here, employed to make
sure that the action under the delegation squares with the
Congressional purpose. [
Footnote
17] Evidently the Congress felt the rule was within the ambit
of the statute, as no effort was made to eliminate it from the
proposed body of rules, although this specific rule was attacked
and defended before the committees of the two Houses. [
Footnote 18] The Preliminary Draft
of the rules called attention to the contrary practice indicated by
the
Botsford case, as did the Report of the Advisory
Committee and the Notes prepared by the Committee
Page 312 U. S. 16
to accompany the final version of the rules. [
Footnote 19] That no adverse action was
taken by Congress indicates at least that no transgression of
legislative policy was found. We conclude that the rules under
attack are within the authority granted.
The District Court treated the refusal to comply with its order
as a contempt, and committed the petitioner therefor. Neither in
the Circuit Court of Appeals nor here was this action assigned as
error. We think, however, that, in the light of the provisions of
Rule 37, it was plain error of such a fundamental nature that we
should notice it. [
Footnote
20] Section (b)(2)(iv) of Rule 37 exempts from punishment as
for contempt the refusal to obey an order that a party submit to a
physical or mental examination. The District Court was in error in
going counter to this express exemption. The remedies available
under the rule in such a case are those enumerated in Section
(b)(2)(i)(ii) and (iii). For this error, we reverse the judgment
and remand the cause to the District Court for further proceedings
in conformity to this opinion.
Reversed.
[
Footnote 1]
28 U.S.C. following § 723c.
[
Footnote 2]
South Bend v. Turner, 156 Ind. 418, 60 N.E. 271;
Aspy v. Botkins, 160 Ind. 170, 66 N.E. 462;
Lake Eris
& W. R. Co. v. Griswold, 72 Ind.App. 265, 125 N.E. 783;
Valparaiso v. Kinney, 75 Ind.App. 660, 131 N.E. 237.
[
Footnote 3]
Chicago v. McNally, 227 Ill. 14, 81 N.E. 23;
Mattice v. Klawans, 312 Ill. 299, 143 N.E. 866;
People
v. Scott, 326 Ill. 327, 157 N.E. 247.
[
Footnote 4]
108 F.2d 415.
[
Footnote 5]
C. 651, 48 Stat. 1064, 28 U.S.C. §§ 723b, 723c.
[
Footnote 6]
Wayman v.
Southard, 10 Wheat. 1,
23 U. S. 21;
Bank of United States v.
Halstead, 10 Wheat. 51,
23 U. S. 53;
Beers v.
Haughton, 9 Pet. 329,
34 U. S.
359-361.
[
Footnote 7]
Wayman v. Southard, supra, 23 U. S. 42;
Bank of the United States v. Halstead, supra, 23 U. S. 61;
Beers v. Haughton, supra, 34 U. S.
359.
[
Footnote 8]
R.S. 721, 28 U.S.C. § 725.
[
Footnote 9]
Hudson v. Parker, 156 U. S. 277,
156 U. S. 284;
Venner v. Great Northern Ry. Co., 209 U. S.
24,
209 U. S. 35;
Davidson Bros. Marble Co. v. Gibson, 213 U. S.
10,
213 U. S. 18;
Meek v. Centre County Banking Co., 268 U.
S. 426,
268 U. S.
434.
[
Footnote 10]
R.S. 914, 28 U.S.C. § 724.
[
Footnote 11]
Supra, note 8
[
Footnote 12]
The opinion does not so state, but the record filed in this
court so shows.
[
Footnote 13]
As above pointed out, if the matter is one of substantive law,
R.S. § 721 requires the application of the law of Indiana, which
authorizes an order for examination.
[
Footnote 14]
See Wigmore on Evidence, 3d Ed., § 2220, note 13.
[
Footnote 15]
See Notes to the Rules of Civil Procedure, printed by
the Advisory Committee March, 1938, p. 32.
[
Footnote 16]
Wigmore on Evidence, 3d Ed., § 2220, note 13; 31 & 32 Vict.
c. 119, § 26.
[
Footnote 17]
An analogy is found in the organic acts applicable to some of
the territories, before their admission to statehood, which
provided that laws passed by the territorial legislature should be
valid unless Congress disapproved. § 5 of the Ordinance of 1787;
See Pease v. Peck,
18 How. 595. Territory of Florida, § 5 of the act of March 30, 1822
(3 Stat. 655); Territory of Louisiana, § 4 of the act of March 26,
1804 (2 Stat. 284), and § 3 of the act of March 3, 1805 (2 Stat.
331); Territory of Minnesota, § 6 of the Act of March 3, 1849 (9
Stat. 405); Territory of New Mexico, § 7 of the act of September 9,
1850 (9 Stat. 449); Territory of Oregon, § 6 of the act of August
14, 1848 (9 Stat. 325, 326); Territory of Utah, § 6 of the act of
September 9, 1850 (9 Stat. 455); Territory of Washington, § 6 of
the act of March 2, 1853 (10 Stat. 175); Territory of Wisconsin, §
6 of the act of April 20, 1836 (5 Stat. 12, 13). Similar provisions
are now applicable to Alaska, Puerto Rico, the Virgin Islands and
the Philippines. 48 U.S.C. §§ 90, 826, 1405o, 1054.
Cf. the provisions for lying over before Congress in §
407 of the act of March 3, 1933, 47 Stat. 1519, and § 5 of the
Reorganization Act of 1939, 53 Stat. 562.
[
Footnote 18]
Hearings before the Committee on the Judiciary, House of
Representatives, 75th Cong., 3rd Sess., pp. 117, 141; Hearings
before a Subcommittee of the Committee on the Judiciary, U.S.
Senate, 75th Cong., 3rd Sess., pp. 36, 37, 39, 51.
[
Footnote 19]
Preliminary Draft (May, 1936) of Rules of Civil Procedure for
the District Courts of the United States and the Supreme Court of
the District of Columbia, Advisory Committee on Rules for Civil
Procedure, p. 71; Notes to the Rules of Civil Procedure for the
District Courts of the United States (March, 1938), p. 32.
[
Footnote 20]
Supreme Court Rule 27, par. 6;
Mabler v. Eby,
264 U. S. 32,
264 U. S. 45;
Kessler v. Strecker, 307 U. S. 22,
307 U. S.
34.
MR. JUSTICE FRANKFURTER (dissenting).
Union Pacific Railway Co. v. Botsford, 141 U.
S. 250, denied the power of the federal courts in a
civil action to compel a plaintiff suing for injury to the person
to submit to a physical examination. Nine years later, in
Camden & Suburban Ry. Co. v. Stetson, 177 U.
S. 172,
Page 312 U. S. 17
the
Botsford decision was treated as settled doctrine.
The present issue is whether the authority which Congress gave to
this Court to formulate rules of civil procedure for the district
courts allows displacement of the law of the
Botsford
case. Stated more particularly, is Rule 35, authorizing such
physical examination, valid under the Rules Enabling Act of June
19, 1934, 48 Stat. 1064, 28 U.S.C. §§ 723b, 723c. It is urged that,
since this Rule pertains to procedure, it is valid because outside
the limitations of that Act, whereby "said rules shall neither
abridge, enlarge, nor modify the substantive rights of any
litigant."
Speaking with diffidence in support of a view which has not
commended itself to the Court, it does not seem to me that the
answer to our question is to be found by an analytic determination
whether the power of examination here claimed is a matter of
procedure or a matter of substance, even assuming that the two are
mutually exclusive categories with easily ascertainable contents.
The problem seems to me to be controlled by the policy underlying
the
Botsford decision. Its doctrine was not a survival of
an outworn technicality. It rested on considerations akin to what
is familiarly known in the English law as the liberties of the
subject. To be sure, the immunity that was recognized in the
Botsford case has no constitutional sanction. It is
amenable to statutory change. But the "inviolability of a person"
was deemed to have such historic roots in Anglo-American law that
it was not to be curtailed "unless by clear and unquestionable
authority of law." In this connection, it is significant that a
judge as responsive to procedural needs as was Mr. Justice Holmes
should, on behalf of the Supreme Judicial Court of Massachusetts,
have supported the
Botsford doctrine on the ground that
"the common law was very slow to sanction any violation
Page 312 U. S. 18
of or interference with the person of a free citizen."
Stack v. New York, N.H. & H. R. Co., 177 Mass. 155,
157, 58 N.E. 686.
So far as national law is concerned, a drastic change in public
policy in a matter deeply touching the sensibilities of people or
even their prejudices as to privacy, ought not to be inferred from
a general authorization to formulate rules for the more uniform and
effective dispatch of business on the civil side of the federal
courts. I deem a requirement as to the invasion of the person to
stand on a very different footing from questions pertaining to the
discovery of documents, pretrial procedure, and other devices for
the expeditious, economic, and fair conduct of litigation. That
disobedience of an order under Rule 35 cannot be visited with
punishment as for contempt does not mitigate its intrusion into an
historic immunity of the privacy of the person. Of course, the Rule
is compulsive in that the doors of the federal courts, otherwise
open, may be shut to litigants who do not submit to such a physical
examination.
In this view, little significance attaches to the fact that the
Rules, in accordance with the statute, remained on the table of two
Houses of Congress without evoking any objection to Rule 35, and
thereby automatically came into force. Plainly, the Rules are not
acts of Congress, and cannot be treated as such. Having due regard
to the mechanics of legislation and the practical conditions
surrounding the business of Congress when the Rules were submitted,
to draw any inference of tacit approval from nonaction by Congress
is to appeal to unreality. And so I conclude that to make the
drastic change that Rule 35 sought to introduce would require
explicit legislation.
Ordinarily, disagreement with the majority on so-called
procedural matters is best held in silence. Even in the present
situation, I should be loath to register dissent did
Page 312 U. S. 19
the issue pertain merely to diversity litigation. But Rule 35
applies to all civil litigation in the federal courts, and thus
concerns the enforcement of federal rights, and not merely of state
law in the federal courts.
MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE MURPHY
agree with these views.