CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1940

SIBBACH v. WILSON & CO., INC.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 28. Argued December 17, 1940.-Decided January 13, 1941. 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. 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. 10.

3. In so far 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. 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. 14. 5. Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, and Camden & Suburban Ry. v. Stetson, 177 U. S. 172, explained. P. 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. 13.

301335-41-1

1

Argument for Petitioner.

312 U.S.

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. 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. 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. 16.

108 F. 2d 415, reversed.

CERTIORARI, 309 U. S. 650, to review the affirmance of an order committing for contempt.

Mr. James A. Velde, with whom Messrs. Royal W. Irwin and Lambert Kaspers were on the brief, for petitioner.

It may be that an order compelling the plaintiff to submit to a physical examination does not determine the right which the plaintiff seeks to have adjudicated in the litigation, and in that aspect involves "procedure" and not "substantive law." Nevertheless, the order invades "substantive rights."

Does the field of "rights" excluded from the rule-making power include only the rights that determine the outcome of litigation, the ultimate rights sought to be adjudicated by the litigants? Clearly, Congress may not delegate to the courts the power to declare by rule what rights of this character exist.

Procedural devices may invade human rights that the common law has long sought to protect. The doctrine of the separation of powers alone, apart from other constitutional limitations, forbids Congress to delegate rulemaking power as to a procedural device of this character.

1

Argument for Petitioner.

The question is whether the particular matter is "exclusively legislative" or "judicial."

If the matter involves a general principle or a question of public policy that the legislature is able to pass upon, it should not be dealt with by a rule of court, but by a legislative enactment.

Obvious examples of procedural devices that affect important rights, and so involve broad questions of policy, are those that violate constitutional limitations, such as the due process clause. See Kring v. Missouri, 107 U. S. 221.

Common law privileges and inhibitions against testifying such as the disability of a party to testify or of one spouse to testify for or against the other-are a part of the law of evidence and so within the field of "procedure." Yet, whether or not they should have a place in our legal system is of great public interest,—an important question of public policy. May Congress delegate to the courts the power to determine such questions by court rule?

Apparently Congress believed, since procedure may extend to the line where "substantive law" begins, it was desirable not to delegate to the Court the power to make rules that abridge, enlarge, or modify some important rights involved in procedure. It is significant that the Act uses the words "substantive rights" rather than "substantive law."

If rules of "procedure" could not be construed to involve "substantive rights," the second sentence in the Act would be surplusage.

Decisions of this Court indicate that an order for a physical examination modifies substantive rights. Union Pacific Ry. Co. v. Botsford, 141 U. S. 250; Camden & Suburban Ry. Co. v. Stetson, 177 U. S. 172.

Rule 35 is grouped with others under the heading "Depositions and Discovery." While it may seem to

Argument for Respondent.

312 U.S.

involve merely a question of discovery, in fact it differs markedly from the other rules, which merely permit a litigant to obtain before trial the discovery of matters that have always been provable at the trial by testimony obtainable by a subpoena ad testificandum or a subpoena duces tecum. This shift does not involve a change in substantive rights. Also, litigants have been able to obtain in equity some of the same remedies that are provided by Rules 26, 33, and 34, which thus do not effect a change in rights. Rule 35, in providing a method of physical examination before trial, would permit what has not been heretofore permitted at the trial or at any other stage of the proceeding. Also, as pointed out in the Stack case, 177 Mass. 155, an order for a physical examination was not procurable in equity. These considerations show why Rule 35 abridges substantive rights while Rules 26, 33, and 34 do not.

As a discovery device Rule 35 is of little value, at least in a court sitting in Illinois, where communications between patient and physician are not privileged. By taking the deposition of the plaintiff and the plaintiff's physician, the defendant is able to discover all that the plaintiff knows about the plaintiff's own case.

The law of Indiana is inapplicable. An order for a physical examination is governed by the law of the forum.

Mr. J. F. Dammann, with whom Mr. K. F. Montgomery was on the brief, for respondent.

Under the law of Indiana, where this cause of action arose, the courts have the power to enter an order directing a physical examination. City of South Bend v. Turner, 156 Ind. 418; Aspy v. Botkins, 160 Ind. 170; Kokomo M. & W. Co. v. Walsh, 58 Ind. App. 182; Lake Erie & W. R. Co. v. Griswold, 72 Ind. App. 265; City of Valparaiso v. Kinney, 75 Ind. App. 660. That matters of substantive law are controlled by the law of the State

1

Argument for Respondent.

where the cause of action arose was settled by this Court in Erie R. Co. v. Tompkins, 304 U. S. 64.

If the matter involved in the order is one of procedure, then it is controlled by the Rules of Civil Procedure.

Congress has the power and duty to prescribe the procedure in the federal courts, and that power can be validly delegated to the courts. Wayman v. Southard, 10 Wheat. 1; Beers v. Haughton, 9 Pet. 328; Bank of U. S. v. Halstead, 10 Wheat. 22, 27.

The Act authorizes rules covering the entire field of practice and procedure.

Rule 35 does not involve substantive law, nor abridge or modify a substantive right established by substantive law. The substantive rights in this case are those out of which the right of action arose. The rule affects merely the procedure whereby that right of action is sought to be determined; it is a part of the means whereby the court determines the facts upon which the right of action is based.

The facts and opinion in Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, demonstrate that the matter is procedural.

Camden & Suburban Ry. Co. v. Stetson, 177 U. S. 172, does not hold that the matter is one of substantive law. There was no question before the Court requiring any distinction between substantive and procedural law.

The contention that the term "substantive rights" means rights that are important or of substance is untenable. No litigant has a substantive right in any kind of procedure. Luria v. United States, 231 U. S. 9; Ochoa v. Hernandez, 230 U. S. 139; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398.

The court is asked to adopt an entirely new theory and to place the dividing line with reference to the rule-making power, not between substantive law and procedural