The Rule-Making Power and Powers Over Process

SECTION 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.


Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.331 However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman v. Southard,332 which sustained the validity of the Process Acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later, in Fink v. O’Neil,333 in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States, and hence the government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have “no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it.”334 Conceding, in 1934, the limited competence of legislative bodies to establish a comprehensive system of court procedure, and acknowledging the inherent power of courts to regulate the conduct of their business, Congress authorized the Supreme Court to prescribe rules for the lower federal courts not inconsistent with the Constitution and statutes.335 Their operation being restricted, in conformity with the proviso attached to the congressional authorization, to matters of pleading and practice, the Federal Rules of Civil Procedure thus judicially promulgated neither affect the substantive rights of litigants336 nor alter the jurisdiction337 of federal courts and the venue of actions therein338 and, thus circumscribed, have been upheld as valid.

Limitations to The Rule Making Power.—The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule “can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law.” This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules “which lower courts make for their own guidance under authority conferred.”339 As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.340

The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression, and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.341 Such powers are said to be essential to and inherent in the organization of courts of justice.342 While the Court has not “precisely delineated the outer boundaries” of a federal court’s inherent powers to manage its own internal affairs, the Court has recognized two limits on the exercise of such authority.343 First, a court, in exercising its inherent powers over its own processes, must act reasonably in response to a specific problem or issue “confronting the court’s fair administration of justice.”344 Second, any exercise of an inherent power cannot conflict with any express grant of or limitation on the district court’s power as contained in a statute or rule, such as the Federal Rules of Civil Procedure.345 In applying these two standards, the Court has recognized that a district court, as an exercise of its inherent powers, can in limited circumstances rescind an order to discharge a jury and recall that jury in a civil case.346 The Supreme Court has also acknowledged that federal courts possess the inherent power to control other aspects of regulating internal court proceedings, including having the inherent power to (1) hear a motion in limine;347 (2) dismiss a case for the convenience of the parties or witnesses because of the availability of an alternative forum348 ; and (3) stay proceedings pending the resolution of parallel actions in other courts.349 The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.350 Nonetheless, while the exercise of an inherent power can, at times, allow for departures from even long-established, judicially crafted common law rules,351 courts are not “generally free to discover new inherent powers that are contrary to civil practice as recognized in the common laws.”352

331 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629 (1924).

332 23 U.S. (10 Wheat.) 1 (1825).

333 106 U.S. 272, 280 (1882).

334 See Miner v. Atlass, 363 U.S. 641 (1960), holding that a federal district court, sitting in admiralty, has no inherent power, independent of any statute or the Supreme Court’s Admiralty Rules, to order the taking of deposition for the purpose of discovery. See also Harris v. Nelson, 394 U.S. 286 (1969), in which the Court found statutory authority in the “All Writs Statute” for a habeas corpus court to propound interrogatories.

335 In the Act of June 19, 1934, 48 Stat. 1064, and contained in 28 U.S.C. § 2072, Congress, in authorizing promulgation of rules of civil procedure, reserved the power to examine and override or amend rules proposed pursuant to the act which it found to be contrary to its legislative policy. See Sibbach v. Wilson, 312 U.S. 1, 14–16 (1941). Congress also has authorized promulgation of rules of criminal procedure, habeas, evidence, admiralty, bankruptcy, and appellate procedure. See Hart & Wechsler (6th ed.), supra at 533–543 (discussing development of rules and citing secondary authority). Congress in the 1970s disagreed with the direction of proposed rules of evidence and of habeas practice, and, first postponing their effectiveness, enacted revised rules. Pub. L. 93–505, 88 Stat. 1926 (1974); Pub. L. 94–426, 90 Stat. 1334 (1976). On this and other actions, see Hart & Wechsler (6th ed.), supra.

336 However, the abolition of old rights and the creation of new ones in the course of litigation conducted in conformance with these judicially prescribed federal rules has been sustained as against the contention of a violation of substantive rights. Sibbach v. Wilson, 312 U.S. 1, 14 (1941).

337 Cf. United States v. Sherwood, 312 U.S. 584, 589–590 (1941).

338 Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).

339 Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 263 U.S. 629, 635, 636 (1924). It is not for the Supreme Court to prescribe how the discretion vested in a Court of Appeals should be exercised. As long as the latter court keeps within the bounds of judicial discretion, its action is not reviewable. In re Burwell, 350 U.S. 521 (1956).

340 McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 43 U.S. (2 How.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 140 (1985) (court of appeal rule conditioning appeal on having filed with the district court timely objections to a master’s report). In Rea v. United States, 350 U.S. 214, 218 (1956), the Court, citing McNabb v. United States, 318 U.S. 332 (1943), asserted that this supervisory power extends to policing the requirements of the Court’s rules with respect to the law enforcement practices of federal agents. But compare United States v. Payner, 447 U.S. 727 (1980).

341 Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884); Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866).

342 Eberly v. Moore, 65 U.S. (24 How.) 147 (1861); Arkadelphia Co. v. St. Louis S.W. Ry., 249 U.S. 134 (1919).

343 See Dietz v. Bouldin, 579 U.S. ___, No. 15–458, slip op. at 4 (2016).

344 Id. at 4–5.

345 Id. at 4.

346 Id. at 5–7 (acknowledging that while it is “reasonable” to allow a jury to reconvene after a formal discharge to correct an error and while such an exercise of authority does not conflict with a rule or statute, the exercise of the inherent power to rescind a discharge order needs to be “carefully circumscribed” to guarantee the existence of an impartial jury); see also id. at 9–10 (holding that a court, in exercising an inherent power to rescind a discharge order, must consider, among other factors, (1) the length of delay between discharge and recall; (2) whether jurors have spoken to anyone after discharge; (3) any reaction to the verdict in the courtroom; and (4) any access jurors may have had to outside materials after discharge). The rule provided in Dietz extends only to civil cases, as additional constitutional concerns— namely, the attachment of the double jeopardy bar—may arise if a court were to recall a jury after discharge in a criminal case. See id. at 10.

347 See Luce v. United States, 469 U.S. 38, 41 n.4 (1984). A motion in limine is a preliminary motion resolved by a court prior to trial and generally regards the admissibility of evidence. See Black’slaw Dictionary 1171 (10th ed. 2014).

348 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–08 (1947). This doctrine is called forum non conveniens.See Black’slaw Dictionary 770 (10th ed. 2014) (defining forum non conveniens as the “doctrine that an appropriate forum—even though competent under the law—may divest itself of jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might also have been properly brought in the first place.”).

349 See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).

350 Gagnon v. United States, 193 U.S. 451, 458 (1904).

351 See Dietz, slip op. at 11 (assuming that, even if courts at common law lacked the inherent power to rescind a jury discharge order, a court’s exercise of its inherent powers can depart from the common law). The term “common law” refers to the body of English law that was “adopted as the law of the American colonies and supplemented with local enactments and judgments.” See Black’slaw Dictionary 334 (10th ed. 2014).

352 See Dietz, slip op. at 12.

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