U.S. Supreme Court Goldberg v. Kelly, 397
U.S. 254 (1970) Goldberg v. Kelly No. 62 Argued October 13,
1969 Decided March 23,
1970 397
U.S. 254 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus Appellees are New York City residents receiving financial aid
under the federally assisted Aid to Families with Dependent
Children program or under New York State's general Home Relief
program who allege that officials administering these programs
terminated, or were about to terminate, such aid without prior
notice and hearing, thereby denying them due process of law. The
District Court held that only a pre-termination evidentiary hearing
would satisfy the constitutional command, and rejected the argument
of the welfare officials that the combination of the existing
post-termination "fair hearing" and informal pre-termination review
was sufficient. Held: 1. Welfare benefits are a matter of statutory entitlement for
persons qualified to receive them, and procedural due process is
applicable to their termination. Pp. 397 U. S.
261 -263.

															2. The interest of the eligible recipient in the uninterrupted
receipt of public assistance, which provides him with essential
food, clothing, housing, and medical care, coupled with the State's
interest that his payments not be erroneously terminated, clearly
outweighs the State's competing concern to prevent any increase in
its fiscal and administrative burdens. Pp. 397 U. S.
264 -266.

															3. A pre-termination evidentiary hearing is necessary to provide
the welfare recipient with procedural due process. Pp. 397 U. S. 264 , 397 U. S.
266 -271.

															(a) Such hearing need not take the form of a judicial or quasi -judicial trial, but the recipient must be provided
with timely and adequate notice detailing the reasons for
termination, and an effective opportunity to defend by confronting
adverse witnesses and by presenting his own arguments and evidence
orally before the decisionmaker. Pp. 397 U. S.
266 -270. Page 397 U. S. 255 (b) Counsel need not be furnished at the pre-termination
hearing, but the recipient must be allowed to retain an attorney if
he so desires. P. 397 U. S.
270 .

															(c) The decisionmaker need not file a full opinion or make
formal findings of fact or conclusions of law, but should state the
reason for his determination and indicate the evidence he relied
on. P. 397 U. S.
271 .

															(d) The decisionmaker must be impartial, and, although prior
involvement in some aspects of a case will not necessarily bar a
welfare official from acting as decisionmaker, he should not have
participated in making the determination under review. P. 397 U. S.
271 . 294 F.
Supp. 893 , affirmed.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															The question for decision is whether a State that terminates
public assistance payments to a particular recipient without
affording him the opportunity for an evidentiary hearing prior to
termination denies the recipient procedural due process in
violation of the Due Process Clause of the Fourteenth
Amendment.

															This action was brought in the District Court for the Southern
District of New York by residents of New Page 397 U. S. 256 York City receiving financial aid under the federally assisted
program of Aid to Families with Dependent Children (AFDC) or under
New York State's general Home Relief program. [ Footnote 1 ] Their complaint alleged that the New
York State and New York City officials administering these programs
terminated, or were about to terminate, such aid without prior
notice and hearing, thereby denying them due process of law.
[ Footnote 2 ] At the time Page 397 U. S. 257 the suits were filed, there was no requirement of prior notice
or hearing of any kind before termination of financial aid.
However, the State and city adopted procedures for notice and
hearing after the suits were brought, and the plaintiffs, appellees
here, then challenged the constitutional adequacy of those
procedures.

															The State Commissioner of Social Services amended the State
Department of Social Services' Official Regulations to require that
local social services officials proposing to discontinue or suspend
a recipient's financial aid do so according to a procedure that
conforms to either subdivision (a) or subdivision (b) of § 351.26
of the regulations as amended. [ Footnote 3 ] The City of New York Page 397 U. S. 258 elected to promulgate a local procedure according to subdivision
(b). That subdivision, so far as here pertinent, provides that the
local procedure must include the giving of notice to the recipient
of the reasons for a proposed discontinuance or suspension at least
seven days prior to its effective date, with notice also that, upon
request, the recipient may have the proposal reviewed by a local
welfare official holding a position superior to that of the
supervisor who approved the proposed discontinuance or suspension,
and, further, that the recipient may submit, for purposes of the
review, a written statement to demonstrate why his grant should not
be discontinued or suspended. The decision by the reviewing
official whether to discontinue or suspend aid must be made
expeditiously, with written notice of the decision to the
recipient. The section further expressly provides that

															"[a]ssistance shall not be discontinued or suspended prior to
the date such notice of decision is sent to the recipient and his
representative, if any, or prior to the proposed effective date of
discontinuance or suspension, whichever occurs later."

															Pursuant to subdivision (b), the New York City Department of
Social Services promulgated Procedure No. 68-18. A caseworker who
has doubts about the recipient's continued eligibility must first
discuss them with the recipient. If the caseworker concludes that
the recipient is no longer eligible, he recommends termination Page 397 U. S. 259 of aid to a unit supervisor. If the latter concurs, he sends the
recipient a letter stating the reasons for proposing to terminate
aid and notifying him that, within seven days, he may request that
a higher official review the record, and may support the request
with a written statement, prepared personally or with the aid of an
attorney or other person. If the reviewing official affirms the
determination of ineligibility, aid is stopped immediately and the
recipient is informed by letter of the reasons for the action.
Appellees' challenge to this procedure emphasizes the absence of
any provisions for the personal appearance of the recipient before
the reviewing official, for oral presentation of evidence, and for
confrontation and cross-examination of adverse witnesses. [ Footnote 4 ] However, the letter does
inform the recipient that he may request a post-termination "fair
hearing." [ Footnote 5 ] This is
a proceeding before an independent Page 397 U. S. 260 state hearing officer at which the recipient may appear
personally, offer oral evidence, confront and cross-examine the
witnesses against him, and have a record made of the hearing. If
the recipient prevails at the "fair hearing," he is paid all funds
erroneously withheld. [ Footnote
6 ] HEW Handbook, pt. IV, §§ 6200-6500; 18 NYCRR §§ 4.2-84.23. A
recipient whose aid is not restored by a "fair hearing" decision
may have judicial review. N.Y.Civil Practice Law and Rules, Art. 78
(1963). The recipient is so notified, 18 NYCRR § 84.16. I The constitutional issue to be decided, therefore, is the narrow
one whether the Due Process Clause requires that the recipient he
afforded an evidentiary hearing before the termination of
benefits. [ Footnote 7 ] The
District Court held Page 397 U. S. 261 that only a pre-termination evidentiary hearing would satisfy
the constitutional command, and rejected the argument of the state
and city officials that the combination of the post-termination
"fair hearing" with the informal pre-termination review disposed of
all due process claims. The court said:

															"While post-termination review is relevant, there is one
overpowering fact which controls here. By hypothesis, a welfare
recipient is destitute, without funds or assets. . . . Suffice it
to say that to cut off a welfare recipient in the face of . . .
'brutal need' without a prior hearing of some sort is
unconscionable unless overwhelming considerations justify it." Kelly v. Wyman, 294 F.
Supp. 893 , 899, 900 (1968). The court rejected the argument
that the need to protect the public's tax revenues supplied the
requisite "overwhelming consideration."

															"Against the justified desire to protect public funds must be
weighed the individual's overpowering need in this unique situation
not to be wrongfully deprived of assistance. . . . While the
problem of additional expense must be kept in mind, it does not
justify denying a hearing meeting the ordinary standards of due
process. Under all the circumstances, we hold that due process
requires an adequate hearing before termination of welfare
benefits, and the fact that there is a later constitutionally fair
proceeding does not alter the result." Id. at 901. Although state officials were party
defendants in the action, only the Commissioner of Social Services
of the City of New York appealed. We noted probable jurisdiction,
394 U.S. 971 (1969), to decide important issues that have been the
subject of disagreement in principle between the three-judge court
in the present case and that convened in Wheeler v.
Montgomery, No. 14, post, p. 397 U. S. 280 ,
also decided today. We affirm.

															Appellant does not contend that procedural due process is not
applicable to the termination of welfare benefits. Page 397 U. S. 262 Such benefits are a matter of statutory entitlement for persons
qualified to receive them. [ Footnote 8 ] Their termination involves state action that
adjudicates important rights. The constitutional challenge cannot
be answered by an argument that public assistance benefits are "a privilege,' and not a 'right.'" Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 627 n. 6 (1969). Relevant constitutional restraints apply as much to
the withdrawal of public assistance benefits as to disqualification
for unemployment compensation, Sherbert v. Verner, 374 U. S. 398 (1963); or to denial of a tax exemption, Speiser v.
Randall, 357 U. S. 513 (1958); or to discharge from public employment, Slochower v.
Board of Higher Education, 350 U. S. 551 (1956). [ Footnote 9 ] The extent
to which procedural due process Page 397 U. S. 263 must be afforded the recipient is influenced by the extent to
which he may be "condemned to suffer grievous loss," Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.
S. 123 , 341 U. S. 168 (1951) (Frankfurter, J., concurring), and depends upon whether the
recipient's interest in avoiding that loss outweighs the
governmental interest in summary adjudication. Accordingly, as we
said in Cafeteria & Restaurant Workers Union v.
McElroy, 367 U. S. 886 , 367 U. S. 895 (1961),

															"consideration of what procedures due process may require under
any given set of circumstances must begin with a determination of
the precise nature of the government function involved, as well as
of the private interest that has been affected by governmental
action." See also Hannah v. Larche, 363 U.
S. 420 , 363 U. S. 440 ,
442 (1960).

															It is true, of course, that some governmental benefits may be
administratively terminated without affording the recipient a
pre-termination evidentiary hearing. [ Footnote 10 ] Page 397 U. S. 264 But we agree with the District Court that, when welfare is
discontinued, only a pre-termination evidentiary hearing provides
the recipient with procedural due process. Cf. Sniadach v.
Family Finance Corp., 395 U. S. 337 (1969). For qualified recipients, welfare provides the means to
obtain essential food, clothing, housing, and medical care.
[ Footnote 11 ] Cf. Nash
v. Florida Industrial Commission, 389 U.
S. 235 , 389 U. S. 239 (1967). Thus, the crucial factor in this context -- a factor not
present in the case of the blacklisted government contractor, the
discharged government employee, the taxpayer denied a tax
exemption, or virtually anyone else whose governmental entitlements
are ended -- is that termination of aid pending resolution of a
controversy over eligibility may deprive an eligible recipient of
the very means by which to live while he waits. Since he lacks
independent resources, his situation becomes immediately desperate.
His need to concentrate upon finding the means for daily
subsistence, in turn, adversely affects his ability to seek redress
from the welfare bureaucracy. [ Footnote 12 ]

															Moreover, important governmental interests are promoted by
affording recipients a pre-termination evidentiary hearing. From
its founding, the Nation's basic Page 397 U. S. 265 commitment has been to foster the dignity and wellbeing of all
persons within its borders. We have come to recognize that forces
not within the control of the poor contribute to their poverty.
[ Footnote 13 ] This
perception, against the background of our traditions, has
significantly influenced the development of the contemporary public
assistance system. Welfare, by meeting the basic demands of
subsistence, can help bring within the reach of the poor the same
opportunities that are available to others to participate
meaningfully in the life of the community. At the same time,
welfare guards against the societal malaise that may flow from a
widespread sense of unjustified frustration and insecurity. Public
assistance, then, is not mere charity, but a means to "promote the
general Welfare, and secure the Blessings of Liberty to ourselves
and our Posterity." The same governmental interests that counsel
the provision of welfare, counsel as well its uninterrupted
provision to those eligible to receive it; pre-termination
evidentiary hearings are indispensable to that end.

															Appellant does not challenge the force of these considerations
but argues that they are outweighed by countervailing governmental
interests in conserving fiscal and administrative resources. These
interests, the argument goes, justify the delay of any evidentiary
hearing until after discontinuance of the grants. Summary
adjudication protects the public fisc by stopping payments promptly
upon discovery of reason to believe that a recipient is no longer
eligible. Since most terminations are accepted without challenge,
summary adjudication also conserves both the fisc and
administrative time and energy by reducing the number of
evidentiary hearings actually held. Page 397 U. S. 266 We agree with the District Court, however, that these
governmental interests are not overriding in the welfare context.
The requirement of a prior hearing doubtless involves some greater
expense, and the benefits paid to ineligible recipients pending
decision at the hearing probably cannot he recouped, since these
recipients are likely to be judgment-proof. But the State is not
without weapons to minimize these increased costs. Much of the
drain on fiscal and administrative resources can be reduced by
developing procedures for prompt pre-termination hearings and by
skillful use of personnel and facilities. Indeed, the very
provision for a post-termination evidentiary hearing in New York's
Home Relief program is itself cogent evidence that the State
recognizes the primacy of the public interest in correct
eligibility determinations, and therefore in the provision of
procedural safeguards. Thus, the interest of the eligible recipient
in uninterrupted receipt of public assistance, coupled with the
State's interest that his payments not be erroneously terminated,
clearly outweighs the State's competing concern to prevent any
increase in its fiscal and administrative burdens. As the District
Court correctly concluded,

															"[t]he stakes are simply too high for the welfare recipient, and
the possibility for honest error or irritable misjudgment too
great, to allow termination of aid without giving the recipient a
chance, if he so desires, to be fully informed of the case against
him so that he may contest its basis and produce evidence in
rebuttal."

															294 F. Supp. at 904-905. II We also agree with the District Court, however, that the
pre-termination hearing need not take the form of a judicial or quasi -judicial trial. We bear in mind that the statutory
"fair hearing" will provide the recipient Page 397 U. S. 267 with a full administrative review. [ Footnote 14 ] Accordingly, the pre-termination hearing
has one function only: to produce an initial determination of the
validity of the welfare department's grounds for discontinuance of
payments in order to protect a recipient against an erroneous
termination of his benefits. Cf. Sniadach v. Family Finance
Corp., 395 U. S. 337 , 395 U. S. 343 (1969) (HARLAN, J., concurring). Thus, a complete record and a
comprehensive opinion, which would serve primarily to facilitate
judicial review and to guide future decisions, need not be provided
at the pre-termination stage. We recognize, too, that both welfare
authorities and recipients have an interest in relatively speedy
resolution of questions of eligibility, that they are used to
dealing with one another informally, and that some welfare
departments have very burdensome caseloads. These considerations
justify the limitation of the pre-termination hearing to minimum
procedural safeguards, adapted to the particular characteristics of
welfare recipients, and to the limited nature of the controversies
to be resolved. We wish to add that we, no less than the
dissenters, recognize the importance of not imposing upon the
States or the Federal Government in this developing field of law
any procedural requirements beyond those demanded by rudimentary
due process.

															"The fundamental requisite of due process of law is the
opportunity to be heard." Grannis v. Ordean, 234 U.
S. 385 , 234 U. S. 394 (1914). The hearing must be "at a meaningful time and in a
meaningful manner." Armstrong v. Manzo, 380 U.
S. 545 , 380 U. S. 552 (1965). In the present context, these principles require that a
recipient have timely and adequate notice detailing the reasons for
a Page 397 U. S. 268 proposed termination, and an effective opportunity to defend by
confronting any adverse witnesses and by presenting his own
arguments and evidence orally. These rights are important in cases
such as those before us, where recipients have challenged proposed
terminations as resting on incorrect or misleading factual premises
or on misapplication of rules or policies to the facts of
particular cases. [ Footnote
15 ]

															We are not prepared to say that the seven-day notice currently
provided by New York City is constitutionally insufficient per
se, although there may be cases where fairness would require
that a longer time be given. Nor do we see any constitutional
deficiency in the content or form of the notice. New York employs
both a letter and a personal conference with a caseworker to inform
a recipient of the precise questions raised about his continued
eligibility. Evidently the recipient is told the legal and factual
bases for the Department's doubts. This combination is probably the
most effective method of communicating with recipients.

															The city's procedures presently do not permit recipients to
appear personally, with or without counsel, before the official who
finally determines continued eligibility. Thus, a recipient is not
permitted to present evidence to that official orally, or to
confront or cross-examine adverse witnesses. These omissions are
fatal to the constitutional adequacy of the procedures.

															The opportunity to be heard must be tailored to the Page 397 U. S. 269 capacities and circumstances of those who are to be heard.
[ Footnote 16 ] It is not
enough that a welfare recipient may present his position to the
decisionmaker in writing or second-hand through his caseworker.
Written submissions are an unrealistic option for most recipients,
who lack the educational attainment necessary to write effectively
and who cannot obtain professional assistance. Moreover, written
submissions do not afford the flexibility of oral presentations;
they do not permit the recipient to mold his argument to the issues
the decisionmaker appears to regard as important. Particularly
where credibility and veracity are at issue, as they must be in
many termination proceedings, written submissions are a wholly
unsatisfactory basis for decision. The second-hand presentation to
the decisionmaker by the caseworker has its own deficiencies; since
the caseworker usually gathers the facts upon which the charge of
ineligibility rests, the presentation of the recipient's side of
the controversy cannot safely be left to him. Therefore, a
recipient must be allowed to state his position orally. Informal
procedures will suffice; in this context, due process does not
require a particular order of proof or mode of offering evidence. Cf. HEW Handbook, pt. IV, § 6400(a).

															In almost every setting where important decisions turn on
questions of fact, due process requires an opportunity to confront
and cross-examine adverse witnesses. E.g., ICC v. Louisville
& N. R. Co., 227 U. S. 88 , 227 U. S. 93 -94
(1913); Willner v. Committee on Character & Fitness, 373 U. S. 96 , 373 U. S.
103 -104 (1963). What we said in Page 397 U. S. 270 Greene v. McElroy, 360 U. S. 474 , 360 U. S.
496 -497 (1959), is particularly pertinent here:

															"Certain principles have remained relatively immutable in our
jurisprudence. One of these is that, where governmental action
seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he
has an opportunity to show that it is untrue. While this is
important in the case of documentary evidence, it is even more
important where the evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness,
intolerance, prejudice, or jealousy. We have formalized these
protections in the requirements of confrontation and
cross-examination. They have ancient roots. They find expression in
the Sixth Amendment. . . . This Court has been zealous to protect
these rights from erosion. It has spoken out not only in criminal
cases, . . . but also in all types of cases where administrative .
. . actions were under scrutiny."

															Welfare recipients must therefore be given an opportunity to
confront and cross-examine the witnesses relied on by the
department.

															"The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be heard by counsel." Powell v. Alabama, 287 U. S. 45 , 669
(1932). We do not say that counsel must be provided at the
pre-termination hearing, but only that the recipient must be
allowed to retain an attorney if he so desires. Counsel can help
delineate the issues, present the factual contentions in an orderly
manner, conduct cross-examination, and generally safeguard the Page 397 U. S. 271 interests of the recipient. We do not anticipate that this
assistance will unduly prolong or otherwise encumber the hearing.
Evidently, HEW has reached the same conclusion. See 45 CFR
§ 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR § 220.25, 34 Fed.Reg.
13595 (1969).

															Finally, the decisionmaker's conclusion as to a recipient's
eligibility must rest solely on the legal rules and evidence
adduced at the hearing. Ohio Bell Tel. Co. v. PUC, 301 U. S. 292 (1937); United States v. Abilene & S. R. Co., 265 U. S. 274 , 265 U. S.
288 -289 (1924). To demonstrate compliance with this
elementary requirement, the decisionmaker should state the reasons
for his determination and indicate the evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U. S.
48 , 260 U. S. 57 -59
(1922), though his statement need not amount to a full opinion, or
even formal findings of fact and conclusions of law. And, of
course, an impartial decisionmaker is essential. Cf. In re
Murchison, 349 U. S. 133 (1955); Wong Yang Sung v. McGrath, 339 U. S.
33 , 339 U. S. 45 -46
(1950). We agree with the District Court that prior involvement in
some aspects of a case will not necessarily bar a welfare official
from acting as a decisionmaker. He should not, however, have
participated in making the determination under review. Affirmed. [For dissenting opinion of MR. CHIEF JUSTICE BURGER, see
post, p. 397 U. S.
282 .]

															[For dissenting opinion of MR. JUSTICE, STEWART, see
post, p. 397 U. S.
285 .]

															[ Footnote 1 ]

															AFDC was established by the Social Security Act of 1935, 49
Stat. 627, as amended, 42 U.S.C. §§ 601-610 (1964 ed. and Supp.
IV). It is a categorical assistance program supported by federal
grants-in-aid but administered by the States according to
regulations of the Secretary of Health, Education, and Welfare. See N.Y. Social Welfare Law §§ 343-36 (1966). We
considered other aspects of AFDC in King v. Smith, 392 U. S. 309 (1968), and in Shapiro v. Thompson, 394 U.
S. 618 (1969).

															Home Relief is a general assistance program financed and
administered solely by New York state and local governments.
N.Y.Social Welfare Law §§ 157-165 (1966), since July 1, 1967,
Social Services Law §§ 157-166. It assists any person unable to
support himself or to secure support from other sources. Id. § 158.

															[ Footnote 2 ]

															Two suits were brought and consolidated in the District Court.
The named plaintiffs were 20 in number, including intervenors.
Fourteen had been or were about to be cut off from AFDC, and six
from Home Relief. During the course of this litigation, most,
though not all, of the plaintiffs either received a "fair hearing"
( see infra at 397 U. S.
259 -260) or were restored to the rolls without a
hearing. However, even in many of the cases where payments have
been resumed, the underlying questions of eligibility that resulted
in the bringing of this suit have not been resolved. For example,
Mrs. Altagracia Guzman alleged that she was in danger of losing
AFDC payments for failure to cooperate with the City Department of
Social Services in suing her estranged husband. She contended that
the departmental policy requiring such cooperation was inapplicable
to the facts of her case. The record shows that payments to Mrs.
Guzman have not been terminated, but there is no indication that
the basic dispute over her duty to cooperate has been resolved, or
that the alleged danger of termination has been removed. Home
Relief payments to Juan DeJesus were terminated because he refused
to accept counseling and rehabilitation for drug addiction. Mr.
DeJesus maintains that he does not use drugs. His payments were
restored the day after his complaint was filed. But there is
nothing in the record to indicate that the underlying factual
dispute in his case has been settled.

															[ Footnote 3 ]

															The adoption in February, 1968, and the amendment in April of
Regulation § 51.26 coincided with or followed several revisions by
the Department of Health, Education, and Welfare of its regulations
implementing 42 U.S.C. § 602(a)(4), which is the provision of the
Social Security Act that requires a State to afford a "fair
hearing" to any recipient of aid under a federally assisted program
before termination of his aid becomes final. This requirement is
satisfied by a post-termination "fair hearing" under regulations
presently in effect. See HEW Handbook of Public Assistance
Administration (hereafter HEW Handbook), pt. IV, §§ 6200-6400. A
new HEW regulation, 34 Fed.Reg. 1144 (1969), now scheduled to take
effect in July, 1970, 34 Fed.Reg. 13595 (1969), would require
continuation of AFDC payments until the final decision after a
"fair hearing," and would give recipients a right to appointed
counsel at "fair hearings." 45 CFR § 205.10, 34 Fed.Reg. 1144
(1969); 45 CFR § 220.25, 34 Fed.Reg. 1356 (1969). For the
safeguards specified at such "fair hearings," see HEW
Handbook, pt. IV, §§ 6200-6400. Another recent regulation now in
effect requires a local agency administering AFDC to give

															"advance notice of questions it has about an individual's
eligibility so that a recipient has an opportunity to discuss his
situation before receiving formal written notice of reduction in
payment or termination of assistance." Id. pt. IV, § 2300(d)(5). This case presents no issue
of the validity or construction of the federal regulations. It is
only subdivision (b) of § 351.26 of the New York State regulations
and implementing procedure 68-18 of New York City that pose the
constitutional question before us. Cf. Shapiro v.
Thompson, 394 U. S. 618 , 394 U. S. 641 (1969). Even assuming that the constitutional question might be
avoided in the context of AFDC by construction of the Social
Security Act. or of the present federal regulations thereunder, or
by waiting for the new regulations to become effective, the
question must be faced and decided in the context of New York's
Home Relief program, to which the procedures also apply.

															[ Footnote 4 ]

															These omissions contrast with the provisions of subdivision (a)
of § 351.26, the validity of which is not at issue in this Court.
That subdivision also requires written notification to the
recipient, at least seven days prior to the proposed effective
date, of the reasons for the proposed discontinuance or suspension.
However, the notification must further advise the recipient that,
if he makes a request therefor, he will be afforded an opportunity
to appear at a time and place indicated before the official
identified in the notice, who will review his case with him and
allow him to present such written and oral evidence as the
recipient may have to demonstrate why aid should not be
discontinued or suspended. The District Court assumed that
subdivision (a) would be construed to afford rights of
confrontation and cross-examination and a decision based solely on
the record. 294 F.
Supp. 893 , 906-907 (1968).

															[ Footnote 5 ]

															N.Y.Social Welfare Law § 353(2) (1966) provides for a
post-termination "fair hearing" pursuant to 42 U.S.C. § 602(a)(4). See n 3, supra. Although the District Court noted that HEW had
raised some objections to the New York "fair hearing" procedures,
294 F. Supp. at 898 n. 9, these objections are not at issue in this
Court. Shortly before this suit was filed, New York State adopted a
similar provision for a "fair hearing" in terminations of Home
Relief. 18 NYCRR §§ 84.2-84.23. In both AFDC and Home Relief, the
"fair hearing" must be held within 10 working days of the request,
§ 84.6, with decision within 12 working days thereafter, § 84.15.
It was conceded in oral argument that these time limits are not in
fact, observed.

															[ Footnote 6 ]

															Current HEW regulations require the States to make full
retroactive payments (with federal matching funds) whenever a "fair
hearing" results in a reversal of a termination of assistance. HEW
Handbook, pt. IV, §§ 6200(k), 6300(g), 6500 (a); see 18
NYCRR § 358.8. Under New York State regulations, retroactive
payments can also be made, with certain limitations, to correct an
erroneous termination discovered before a "fair hearing" has been
held. 18 NYCRR § 351.27. HEW regulations also authorize, but do not
require, the States to continue AFDC payments without loss of
federal matching funds pending completion of a "fair hearing." HEW
Handbook, pt. IV, § 6500(b). The new HEW regulations, presently
scheduled to become effective July 1, 1970, will supersede all of
these provisions. See n 3, supra. [ Footnote 7 ]

															Appellant does not question the recipient's due process right to
evidentiary review after termination. For a general discussion of
the provision of an evidentiary hearing prior to termination, see Comment, The Constitutional Minimum for the
Termination of Welfare Benefits: The Need for and Requirements of a
Prior Hearing, 68 Mich.L.Rev. 112 (1969).

															[ Footnote 8 ]

															It may be realistic today to regard welfare entitlements as more
like "property" than a "gratuity." Much of the existing wealth in
this country takes the form of rights that do not fall within
traditional common law concepts of property. It has been aptly
noted that

															"[s]ociety today is built around entitlement. The automobile
dealer has his franchise, the doctor and lawyer their professional
licenses, the worker his union membership, contract, and pension
rights, the executive his contract and stock options; all are
devices to aid security and independence. Many of the most
important of these entitlements now flow from government: subsidies
to farmers and businessmen, routes for airlines and channels for
television stations; long-term contracts for defense, space, and
education; social security pensions for individuals. Such sources
of security, whether private or public, are no longer regarded as
luxuries or gratuities; to the recipients, they are essentials,
fully deserved, and in no sense a form of charity. It is only the
poor whose entitlements, although recognized by public policy, have
not been effectively enforced."

															Reich, Individual Rights and Social Welfare: The Emerging Legal
Issues, 74 Yale L.J. 1245, 1255 (1965). See also Reich,
The New Property, 73 Yale L.J. 733 (1964).

															[ Footnote 9 ] See also Goldsmith v. United States Board of Tax
Appeals, 270 U. S. 117 (1926) (right of a certified public accountant to practice before
the Board of Tax Appeals); Hornsby v. Allen, 326 F.2d 605
(C.A. 5th Cir. 1964) (right to obtain a retail liquor store
license); Dixon v. Alabama State Board of Education, 294
F.2d 150 (C.A. 5th Cir.), cert. denied, 368 U.S. 930
(1961) (right to attend a public college).

															[ Footnote 10 ]

															One Court of Appeals has stated:

															"In a wide variety of situations, it has long been recognized
that, where harm to the public is threatened, and the private
interest infringed is reasonably deemed to be of less importance,
an official body can take summary action pending a later
hearing." R. A. Holman & Co. v. SEC, 112 U.S.App.D.C. 43, 47,
299 F.2d 127, 131, cert. denied, 370 U.S. 911 (1962)
(suspension of exemption from stock registration requirement). See also for example, Ewing v. Mytinger & Casselberry,
Inc., 339 U. S. 594 (1950) (seizure of mislabeled vitamin product); North American
Cold Storage Co. v. Chicago, 211 U. S. 306 (1908) (seizure of food not fit for human use); Yakus v. United
States, 321 U. S. 414 (1944) (adoption of wartime price regulations); Gonzalez v.
Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964)
(disqualification of a contractor to do business with the
Government). In Cafeteria & Restaurant Workers Union v.
McElroy, supra, at 367 U. S. 896 ,
summary dismissal of a public employee was upheld because, "[i]n
[its] proprietary military capacity, the Federal Government . . .
has traditionally exercised unfettered control," and because the
case involved the Government's "dispatch of its own internal
affairs." Cf. Perkins v. Lukens Steel Co., 310 U.
S. 113 (1940).

															[ Footnote 11 ]

															Administrative determination that a person is ineligible for
welfare may also render him ineligible for participation in
state-financed medical programs. See N.Y.Social Welfare
Law § 366 (1966).

															[ Footnote 12 ]

															His impaired adversary position is particularly telling in light
of the welfare bureaucracy's difficulties in reaching correct
decisions on eligibility. See Comment, Due Process and the
Right to a Prior Hearing in Welfare Cases, 37 Ford.L.Rev. 604,
610-611 (1969).

															[ Footnote 13 ] See, e.g., Reich. supra, n 8, 74 Yale L.J. at 1255.

															[ Footnote 14 ]

															Due process does not, of course, require two hearings. If, for
example, a State simply wishes to continue benefits until after a
"fair" hearing, there will he no need for a preliminary
hearing.

															[ Footnote 15 ]

															This case presents no question requiring our determination
whether due process requires only an opportunity for written
submission, or an opportunity both for written submission and oral
argument, where there are no factual issues in dispute or where the
application of the rule of law is not intertwined with factual
issues. See FCC v. WJR, 337 U. S. 265 , 337 U. S.
275 -277 (1949).

															[ Footnote 16 ]

															"[T]he prosecution of an appeal demands a degree of security,
awareness, tenacity, and ability which few dependent people have."
Wedemeyer & Moore, The American Welfare System, 54 Calif.L.Rev.
326, 342 (1966).

															MR. JUSTICE BLACK, dissenting.

															In the last half century, the United States, along with many,
perhaps most, other nations of the world, has moved far toward
becoming a welfare state, that is, a nation that, for one reason or
another, taxes its most Page 397 U. S. 272 affluent people to help support, feed, clothe, and shelter its
less fortunate citizens. The result is that, today, more than nine
million men, women, and children in the United States receive some
kind of state or federally financed public assistance in the form
of allowances or gratuities, generally paid them periodically,
usually by the week, month, or quarter. [ Footnote 2/1 ] Since these gratuities are paid on the
basis of need, the list of recipients is not static, and some
people go off the lists and others are added from time to time.
These ever-changing lists put a constant administrative burden on
government, and it certainly could not have reasonably anticipated
that this burden would include the additional procedural expense
imposed by the Court today.

															The dilemma of the ever-increasing poor in the midst of
constantly growing affluence presses upon us, and must inevitably
be met within the framework of our democratic constitutional
government if our system is to survive as such. It was largely to
escape just such pressing economic problems and attendant
government repression that people from Europe, Asia, and other
areas settled this country and formed our Nation. Many of those
settlers had personally suffered from persecutions of various
kinds, and wanted to get away from governments that had
unrestrained powers to make life miserable for their citizens. It
was for this reason, or so I believe, that, on reaching these new
lands, the early settlers undertook to curb their governments by
confining their powers Page 397 U. S. 273 within written boundaries, which eventually became written
constitutions. [ Footnote 2/2 ] They
wrote their basic charters, as nearly as men's collective wisdom
could do so, as to proclaim to their people and their officials an
emphatic command that:

															"Thus, far and no farther shall you go, and where we neither
delegate powers to you, nor prohibit your exercise of them, we the
people are left free. [ Footnote
2/3 ]"

															Representatives of the people of the Thirteen Original Colonies
spent long, hot months in the summer of 1787 in Philadelphia,
Pennsylvania, creating a government of limited powers. They divided
it into three departments -- Legislative, Judicial, and Executive.
The Judicial Department was to have no part whatever in making any
laws. In fact, proposals looking to vesting some power in the
Judiciary to take part in the legislative process and veto laws
were offered, considered, and rejected by the Constitutional
Convention. [ Footnote 2/4 ] In
my Page 397 U. S. 274 judgment, there is not one word, phrase, or sentence from the
beginning to the end of the Constitution from which it can be
inferred that judges were granted any such legislative power. True, Marbury v.
Madison , 1 Cranch 137 (1803), held, and properly, I
think, that courts must be the final interpreters of the
Constitution, and I recognize that the holding can provide an
opportunity to slide imperceptibly into constitutional amendment
and law-making. But when federal judges use this judicial power for
legislative purposes, I think they wander out of their field of
vested powers and transgress into the area constitutionally
assigned to the Congress and the people. That is precisely what I
believe the Court is doing in this case. Hence, my dissent.

															The more than a million names on the relief rolls in New York,
[ Footnote 2/5 ] and the more than
nine million names on the rolls of all the 50 States were not put
there at random. The names are there because state welfare
officials believed that those people were eligible for assistance.
Probably, in the officials' haste to make out the lists, many names
were put there erroneously in order to alleviate immediate
suffering, and undoubtedly some people are drawing relief who are
not entitled under the law to do so. Doubtless some draw relief
checks from time to time who know they are not eligible, either
because they are not actually in need or for some other reason.
Many of those who thus draw undeserved gratuities are without
sufficient property to enable the government to collect back from
them any money they wrongfully receive. But the Court today holds
that it would violate the Due Process Clause of the Fourteenth
Amendment to stop paying those people weekly or monthly allowances
unless the government first affords them a full "evidentiary
hearing," even Page 397 U. S. 275 though welfare officials are persuaded that the recipients are
not rightfully entitled to receive a penny under the law. In other
words, although some recipients might be on the lists for payment
wholly because of deliberate fraud on their part, the Court holds
that the government is helpless, and must continue, until after an
evidentiary hearing, to pay money that it does not owe, never has
owed, and never could owe. I do not believe there is any provision
in our Constitution that should thus paralyze the government's
efforts to protect itself against making payments to people who are
not entitled to them.

															Particularly do I not think that the Fourteenth Amendment should
be given such an unnecessarily broad construction. That Amendment
came into being primarily to protect Negroes from discrimination,
and while some of its language can and does protect others, all
know that the chief purpose behind it was to protect ex-slaves. Cf. Adamson v. California, 332 U. S.
46 , 332 U. S. 71 -72,
and n. 5 (1947) (dissenting opinion). The Court, however, relies
upon the Fourteenth Amendment, and, in effect, says that failure of
the government to pay a promised charitable instalment to an
individual deprives that individual of his own property in
violation of the Due Process Clause of the Fourteenth Amendment. It
somewhat strains credulity to say that the government's promise of
charity to an individual is property belonging to that individual
when the government denies that the individual is honestly entitled
to receive such a payment.

															I would have little, if any, objection to the majority's
decision in this case if it were written as the report of the House
Committee on Education and Labor, but, as an opinion ostensibly
resting on the language of the Constitution, I find it woefully
deficient. Once the verbiage is pared away, it is obvious that this
Court today adopts the views of the District Court "that to cut off
a welfare recipient in the face of . . . brutal need' without a
prior Page 397 U. S.
276 hearing of some sort is unconscionable," and therefore, says
the Court, unconstitutional. The majority reaches this result by a
process of weighing "the recipient's interest in avoiding" the
termination of welfare benefits against "the governmental interest
in summary adjudication." Ante at 397 U. S. 263 .
Today's balancing act requires a "pre-termination evidentiary
hearing," yet there is nothing that indicates what tomorrow's
balance will be. Although the majority attempts to bolster its
decision with limited quotations from prior cases, it is obvious
that today's result does not depend on the language of the
Constitution itself or the principles of other decisions, but
solely on the collective judgment of the majority as to what would
be a fair and humane procedure in this case. This decision is thus only another variant of the view often
expressed by some members of this Court that the Due Process Clause
forbids any conduct that a majority of the Court believes "unfair,"
"indecent," or "shocking to their consciences." See, e.g.,
Rochin v. California, 342 U. S. 165 , 342 U. S. 172 (1952). Neither these words nor any like them appear anywhere in
the Due Process Clause. If they did, they would leave the majority
of Justices free to hold any conduct unconstitutional that they
should conclude on their own to be unfair or shocking to them.
[ Footnote 2/6 ] Had the drafters of
the Due Process Clause meant to leave judges such ambulatory power
to declare Page 397 U. S. 277 laws unconstitutional, the chief value of a written
constitution, as the Founders saw it, would have been lost. In
fact, if that view of due process is correct, the Due Process
Clause could easily swallow up all other parts of the Constitution.
And, truly, the Constitution would always be "what the judges say
it is" at a given moment, not what the Founders wrote into the
document. [ Footnote 2/7 ] A written
constitution, designed to guarantee protection against governmental
abuses, including those of judges, must have written standards that
mean something definite and have an explicit content. I regret very
much to be compelled to say that the Court today makes a drastic
and dangerous departure from a Constitution written to control and
limit the government and the judges, and moves toward a
constitution designed to be no more and no less than what the
judges of a particular social and economic philosophy declare, on
the one hand, to be fair, or, on the other hand, to be shocking and
unconscionable.

															The procedure required today as a matter of constitutional law
finds no precedent in our legal system. Reduced to its simplest
terms, the problem in this case is similar to that frequently
encountered when two parties have an ongoing legal relationship
that requires one party to make periodic payments to the other.
Often the situation arises where the party "owing" the money stops
paying it and justifies his conduct by arguing that the recipient
is not legally entitled to payment. The recipient can, of course,
disagree and go to court to compel payment. But I know of no
situation in our legal system in which the person alleged to owe
money to Page 397 U. S. 278 another is required by law to continue making payments to a
judgment-proof claimant without the benefit of any security or bond
to insure that these payments can be recovered if he wins his legal
argument. Yet today's decision in no way obligates the welfare
recipient to pay back any benefits wrongfully received during the
pre-termination evidentiary hearings or post any bond, and, in all
"fairness," it could not do so. These recipients are, by
definition, too poor to post a bond or to repay the benefits that,
as the majority assumes, must be spent as received to insure
survival.

															The Court apparently feels that this decision will benefit the
poor and needy. In my judgment, the eventual result will be just
the opposite. While today's decision requires only an
administrative, evidentiary hearing, the inevitable logic of the
approach taken will lead to constitutionally imposed,
time-consuming delays of a full adversary process of administrative
and judicial review. In the next case, the welfare recipients are
bound to argue that cutting off benefits before judicial review of
the agency's decision is also a denial of due process. Since, by
hypothesis, termination of aid at that point may still "deprive an
eligible recipient of the very means by which to live while he
waits," ante at 397 U. S. 264 ,
I would be surprised if the weighing process did not compel the
conclusion that termination without full judicial review would be
unconscionable. After all, at each step, as the majority seems to
feel, the issue is only one of weighing the government's pocketbook
against the actual survival of the recipient, and surely that
balance must always tip in favor of the individual. Similarly
today's decision requires only the opportunity to have the benefit
of counsel at the administrative hearing, but it is difficult to
believe that the same reasoning process would not require the
appointment of counsel, for otherwise the right to counsel is a
meaningless one, since these Page 397 U. S. 279 people are too poor to hire their own advocates. Cf. Gideon
v. Wainwright, 372 U. S. 335 , 372 U. S. 344 (1963). Thus, the end result of today's decision may well be that
the government, once it decides to give welfare benefits, cannot
reverse that decision until the recipient has had the benefits of
full administrative and Judicial review, including, of course, the
opportunity to present his case to this Court. Since this process
will usually entail a delay of several years, the inevitable result
of such a constitutionally imposed burden will be that the
government will not put a claimant on the rolls initially until it
has made an exhaustive investigation to determine his eligibility.
While this Court will perhaps have insured that no needy person
will be taken off the rolls without a full "due process"
proceeding, it will also have insured that many will never get on
the rolls, or at least that they will remain destitute during the
lengthy proceedings followed to determine initial eligibility.

															For the foregoing reasons, I dissent from the Court's holding.
The operation of a welfare state is a new experiment for our
Nation. For this reason, among others, I feel that new experiments
in carrying out a welfare program should not be frozen into our
constitutional structure. They should be left, as are other
legislative determinations, to the Congress and the legislatures
that the people elect to make our laws.

															[ Footnote 2/1 ]

															This figure includes all recipients of Old-age Assistance, Aid
to Families with Dependent Children, Aid to the Blind, Aid to the
Permanently and Totally Disabled, and general assistance. In this
case, appellants are AFDC and general assistance recipients. In New
York State alone, there are 951,000 AFDC recipients and 108,000 on
general assistance. In the Nation as a whole, the comparable
figures are 6,080,000 and 391,000. U.S. Bureau of the Census,
Statistical Abstract of the United States: 1969 (90th ed.), Table
435, p. 27.

															[ Footnote 2/2 ]

															The goal of a written constitution with fixed limits on
governmental power had long been desired. Prior to our colonial
constitutions, the closest man had come to realizing this goal was
the political movement of the Levellers in England in the 1640's.
J. Frank, The Levellers (1955). In 1647, the Levellers proposed the
adoption of An Agreement of the People which set forth written
limitations on the English Government. This proposal contained many
of the ideas which later were incorporated in the constitutions of
this Nation. Id. at 135-147.

															[ Footnote 2/3 ]

															This command is expressed in the Tenth Amendment:

															"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."

															[ Footnote 2/4 ]

															It was proposed that members of the judicial branch would sit on
a Council of Revision which would consider legislation and have the
power to veto it. This proposal was rejected. J. Elliot, 1 Elliot's
Debates 160, 164, 214 (Journal of the Federal Convention); 395, 39
(Yates' Minutes); vol. 5, pp.151, 164 166, 344-349 (Madison's
notes) (Lippincott ed. 1876). It was also suggested that The Chief
Justice would serve as a member of the President's executive
council, but this proposal was similarly rejected. Id., vol. 5, pp. 442, 445, 446, 462.

															[ Footnote 2/5 ] See 397
U.S. 254 fn2/1|>n. 1, supra. [ Footnote 2/6 ]

															I am aware that some feel that the process employed in reaching
today's decision is not dependent on the individual views of the
Justices involved, but is a mere objective search for the
"collective conscience of mankind;" but, in my view, that
description is only a euphemism for an individual's judgment.
Judges are as human as anyone, and as likely as others to see the
world through their own eyes and find the "collective conscience"
remarkably similar to their own. Cf. Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S.
518 -519 (1965) (BLACK, J., dissenting); Sniadach v.
Family Finance Corp., 395 U. S. 337 , 395 U. S.
350 -351 (1969) (BLACK, J., dissenting).

															[ Footnote 2/7 ]

															To realize how uncertain a standard of "fundamental fairness"
would be, one has only to reflect for a moment on the possible
disagreement if the "fairness" of the procedure in this case were
propounded to the head of the National Welfare Rights Organization,
the president of the national Chamber of Commerce, and the chairman
of the John Birch Society.


U.S. Supreme Court Beacon Theatres, Inc. v. Westover, 359
U.S. 500 (1959) Beacon Theatres, Inc. v.
Westover No. 45 Argued December 10,
1958 Decided May 25, 1959 359
U.S. 500 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus In anticipation of a suit by petitioner for treble damages under
the Sherman and Clayton Acts, the prospective defendant brought
suit against petitioner in a Federal District Court for a
declaratory judgment which would have settled some of the key
issues in such an antitrust suit, and prayed that the bringing of
such a suit be enjoined pending outcome of the declaratory judgment
litigation. Petitioner filed a counterclaim raising the issues
which would have been raised in the antitrust suit for treble
damages, and demanded a jury trial. Purporting to act in the
exercise of its discretion under Rules 42(b) and 57 of the Federal
Rules of Civil Procedure, the District Court ruled that it would
try in equity, without a jury, the issues common to both
proceedings before trying petitioner's counterclaim. The Court of
Appeals held that the District Court had acted within the proper
scope of its discretion, and it denied petitioner's application for
a writ of mandamus requiring the District Court to set aside its
ruling. Held: the judgment of the Court of Appeals is reversed.
Pp. 359 U. S.
501 -511.

															1. The District Court's finding that the complaint for
declaratory relief presented basically equitable issues draws no
support from the Declaratory Judgment Act, which specifically
preserves the right to a jury trial for both parties. P. 359 U. S.
504 .

															2. If petitioner would have been entitled to a jury trial in a
treble damage suit, he cannot be deprived of that right merely
because the prospective defendant took advantage of the
availability of declaratory relief to sue petitioner first. P. 359 U. S.
504 .

															3. Since the right to trial by jury applies to treble damage
suits under the antitrust laws, and is an essential part of the
congressional plan for making competition, rather than monopoly,
the rule of trade, the antitrust issues raised in the declaratory
judgment suit were essentially jury questions. P. 359 U. S.
504 .

															4. Assuming that the pleadings can be construed to support a
request for an injunction against threats of lawsuits, and as
alleging the kind of harassment by a multiplicity of lawsuits which
would traditionally have justified equity in taking jurisdiction
and settling Page 359 U. S. 501 the case in one suit, nevertheless, under the Declaratory
Judgment Act and the Federal Rules of Civil Procedure, neither
claim can justify denying petitioner a trial by jury of all the
issues in the antitrust controversy. Pp. 359 U. S.
506 -511.

															(a) Today, the existence of irreparable harm and inadequacy of
legal remedies as a basis of injunctive relief must be determined
not by precedents under discarded procedures, but in the light of
the remedies now made available by the Declaratory Judgment Act and
the Federal Rules of Civil Procedure. Pp. 359 U. S.
506 -510.

															(b) Viewed in this manner, the use of discretion by the District
Court under Rule 42(b) to deprive petitioner of a full jury trial
of the issues in the antitrust controversy cannot be justified. P. 359 U. S.
508 .

															5. Mandamus is available under the All Writs Act, 28 U.S.C. §
1651, to require jury trial where it has been improperly denied. P. 359 U. S.
511 .

															252 F.2d 864 reversed.

															MR. JUSTICE BLACK delivered the opinion of the Court.

															Petitioner, Beacon Theatres, Inc., sought by mandamus to require
a district judge in the Southern District of California to vacate
certain orders alleged to deprive it of a jury trial of issues
arising in a suit brought against it by Fox West Coast Theatres,
Inc. The Court of Appeals for the Ninth Circuit refused the writ,
holding that the trial judge had acted within his proper discretion
in denying petitioner's request for a jury. 252 F.2d 864. We
granted certiorari, 356 U.S. 956, because

															"Maintenance of the jury as a factfinding body is of such
importance and occupies so firm a place in our history and
jurisprudence that any seeming curtailment of the right to a jury
trial should be scrutinized with the utmost care." Dimick v. Schiedt, 293 U. S. 474 , 293 U. S.
486 . Page 359 U. S. 502 Fox had asked for declaratory relief against Beacon, alleging a
controversy arising under the Sherman Antitrust Act, 26 Stat. 209,
as amended, 15 U.S.C. §§ 1, 2, and under the Clayton Act, 38 Stat.
731, 15 U.S.C. § 15, which authorizes suits for treble damages
against Sherman Act violators. According to the complaint, Fox
operates a movie theatre in San Bernardino, California, and has
long been exhibiting films under contracts with movie distributors.
These contracts grant it the exclusive right to show "first run"
pictures in the "San Bernardino competitive area" and provide for
"clearance" -- a period of time during which no other theatre can
exhibit the same pictures. After building a drive-in theatre about
11 miles from San Bernardino, Beacon notified Fox that it
considered contracts barring simultaneous exhibitions of first-run
films in the two theatres to be overt acts in violation of the
antitrust laws. [ Footnote 1 ]
Fox's complaint alleged that this notification, together with
threats of treble damage suits against Fox and its distributors,
gave rise to "duress and coercion" which deprived Fox of a valuable
property right, the right to negotiate for exclusive first-run
contracts. Unless Beacon was restrained, the complaint continued,
irreparable harm would result. Accordingly, while its pleading was
styled a "Complaint for Declaratory Relief," Fox prayed both for a
declaration that a grant of clearance between the Fox and Beacon
theatres is reasonable and Page 359 U. S. 503 not in violation of the antitrust laws, and for an injunction,
pending final resolution of the litigation, to prevent Beacon from
instituting any action under the antitrust laws against Fox and its
distributors arising out of the controversy alleged in the
complaint. [ Footnote 2 ] Beacon
filed an answer, a counterclaim against Fox, and a cross-claim
against an exhibitor who had intervened. These denied the threats
and asserted that there was no substantial competition between the
two theatres, that the clearances granted were therefore
unreasonable, and that a conspiracy existed between Fox and its
distributors to manipulate contracts and clearances so as to
restrain trade and monopolize first-run pictures in violation of
the antitrust laws. Treble damages were asked.

															Beacon demanded a jury trial of the factual issues in the case,
as provided by Federal Rule of Civil Procedure 38(b). The District
Court, however, viewed the issues raised by the "Complaint for
Declaratory Relief," including the question of competition between
the two theatres, as essentially equitable. Acting under the
purported authority of Rules 42(b) and 57, it directed that these
issues be tried to the court before jury determination of the
validity of the charges of antitrust violations made in the
counterclaim and cross-claim. [ Footnote 3 ] A common issue of the "Complaint for
Declaratory Relief," the counterclaim, and the cross-claim was the
reasonableness of the clearances granted to Fox, which depended, in
part, on the Page 359 U. S. 504 existence of competition between the two theatres. Thus, the
effect of the action of the District Court could be, as the Court
of Appeals believed, "to limit the petitioner's opportunity fully
to try to a jury every issue which has a bearing upon its treble
damage suit," for determination of the issue of clearances by the
judge might

															"operate either by way of res judicata or collateral
estoppel so as to conclude both parties with respect thereto at the
subsequent trial of the treble damage claim."

															252 F.2d at 874.

															The District Court's finding that the Complaint for Declaratory
Relief presented basically equitable issues draws no support from
the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; Fed.Rules
Civ.Proc. 57. See also 48 Stat. 955, 28 U.S.C. (1940 ed.)
§ 400. That statute, while allowing prospective defendants to sue
to establish their nonliability, specifically preserves the right
to jury trial for both parties. [ Footnote 4 ] It follows that, if Beacon would have been
entitled to a jury trial in a treble damage suit against Fox, it
cannot be deprived of that right merely because Fox took advantage
of the availability of declaratory relief to sue Beacon first.
Since the right to trial by jury applies to treble damage suits
under the antitrust laws, and is, in fact, an essential part of the
congressional plan for making competition, rather than monopoly,
the rule of trade, see Fleitmann v. Welsbach Street Lighting
Co., 240 U. S. 27 , 240 U. S. 29 ,
the Sherman and Clayton Act issues on which Fox sought a
declaration were essentially jury questions.

															Nevertheless, the Court of Appeals refused to upset the order of
the district judge. It held that the question of whether a right to
jury trial existed was to be judged Page 359 U. S. 505 by Fox's complaint read as a whole. In addition to seeking a
declaratory judgment, the court said, Fox's complaint can be read
as making out a valid plea for injunctive relief, thus stating a
claim traditionally cognizable in equity. A party who is entitled
to maintain a suit in equity for an injunction, said the court, may
have all the issues in his suit determined by the judge without a
jury, regardless of whether legal rights are involved. The court
then rejected the argument that equitable relief, traditionally
available only when legal remedies are inadequate, was rendered
unnecessary in this case by the filing of the counterclaim and
cross-claim which presented all the issues necessary to a
determination of the right to injunctive relief. Relying on American Life Ins. Co. v. Stewart, 300 U.
S. 203 , 300 U. S. 215 ,
decided before the enactment of the Federal Rules of Civil
Procedure, it invoked the principle that a court sitting in equity
could retain jurisdiction even though later a legal remedy became
available. In such instances, the equity court had discretion to
enjoin the later lawsuit in order to allow the whole dispute to be
determined in one case in one court. [ Footnote 5 ] Reasoning by analogy, the Court of Appeals
held it was not an abuse of discretion for the district judge,
acting under Federal Rule of Civil Procedure 42(b), to try the
equitable cause first, even though this might, through collateral
estoppel, prevent a full jury trial of the counterclaim and
cross-claim which were as effectively stopped as by an equity
injunction. [ Footnote 6 ] Page 359 U. S. 506 Beacon takes issue with the holding of the Court of Appeals that
the complaint stated a claim upon which equitable relief could be
granted. As initially filed, the complaint alleged that threats of
lawsuits by petitioner against Fox and its distributors were
causing irreparable harm to Fox's business relationships. The
prayer for relief, however, made no mention of the threats, but
asked only that, pending litigation of the claim for declaratory
judgment, Beacon be enjoined from beginning any lawsuits under the
antitrust laws against Fox and its distributors arising out of the
controversy alleged in the complaint. Evidently of the opinion that
this prayer did not state a good claim for equitable relief, the
Court of Appeals construed it to include a request for an
injunction against threats of lawsuits. This liberal construction
of a pleading is in line with Rule 8 of the Federal Rules of Civil
Procedure. See Conley v. Gibson, 355 U. S.
41 , 355 U. S. 47 -48.
But this fact does not solve our problem. Assuming that the
pleadings can be construed to support such a request, and assuming
additionally that the complaint can be read as alleging the kind of
harassment by a multiplicity of lawsuits which would traditionally
have justified equity to take jurisdiction and settle the case in
one suit, [ Footnote 7 ] we are
nevertheless of the opinion that, under the Declaratory Judgment
Act and the Federal Rules of Civil Procedure, neither claim can
justify denying Beacon a trial by jury of all the issues in the
antitrust controversy.

															The basis of injunctive relief in the federal courts has always
been irreparable harm and inadequacy of legal Page 359 U. S. 507 remedies. [ Footnote 8 ] At
least as much is required to justify a trial court in using its
discretion under the Federal Rules to allow claims of equitable
origins to be tried ahead of legal ones, since this has the same
effect as an equitable injunction of the legal claims. And it is
immaterial, in judging if that discretion is properly employed,
that, before the Federal Rules and the Declaratory Judgment Act
were passed, courts of equity, exercising a jurisdiction separate
from courts of law, were, in some cass, allowed to enjoin
subsequent legal actions between the same parties involving the
same controversy. This was because the subsequent legal action,
though providing an opportunity to try the case to a jury, might
not protect the right of the equity plaintiff to a fair and orderly
adjudication of the controversy. See, e.g., New York Life Ins.
Co. v. Seymour, 45 F.2d 47. Under such circumstances, the
legal remedy could quite naturally be deemed inadequate. Inadequacy
of remedy and irreparable harm are practical terms, however. As
such, their existence today must be determined not by precedents
decided under discarded procedures, but in the light of the
remedies now made available by the Declaratory Judgment Act and the
Federal Rules. [ Footnote 9 ] Page 359 U. S. 508 Viewed in this manner, the use of discretion by the trial court
under Rule 42(b) to deprive Beacon of a full jury trial on its
counterclaim and cross-claim, as well as on Fox's plea for
declaratory relief, cannot be justified. Under the Federal Rules,
the same court may try both legal and equitable causes in the same
action. Fed.Rules Civ.Proc. 1, 2, 18. Thus, any defenses, equitable
or legal, Fox may have to charges of antitrust violations can be
raised either in its suit for declaratory relief or in answer to
Beacon's counterclaim. On proper showing, harassment by threats of
other suits, or other suits actually brought, involving the issues
being tried in this case, could be temporarily enjoined pending the
outcome of this litigation. Whatever permanent injunctive relief
Fox might be entitled to on the basis of the decision in this case
could, of course, be given by the court after the jury renders its
verdict. In this way, the issues between these parties could be
settled in one suit giving Beacon a full jury trial of every
antitrust issue. Cf. Ring v. Spina, 166 F.2d 546. By
contrast, the holding of the court below while granting Fox no
additional protection unless the avoidance of jury trial be
considered as such, would compel Beacon to split his antitrust
case, trying part to a judge and part to a jury. [ Footnote 10 ] Such a result, which involves
the postponement and subordination of Fox's own legal claim for
declaratory relief, as well as of the counterclaim which Beacon was
compelled by the Federal Rules to bring, [ Footnote 11 ] is not permissible.

															Our decision is consistent with the plan of the Federal Rules
and the Declaratory Judgment Act to effect Page 359 U. S. 509 substantial procedural reform while retaining a distinction
between jury and nonjury issues and leaving substantive rights
unchanged. [ Footnote 12 ]
Since, in the federal courts, equity has always acted only when
legal remedies were inadequate, [ Footnote 13 ] the expansion of adequate legal remedies
provided by the Declaratory Judgment Act and the Federal Rules
necessarily affects the scope of equity. Thus, the justification
for equity's deciding legal issues once it obtains jurisdiction,
and refusing to dismiss a case merely because subsequently a legal
remedy becomes available, must be reevaluated in the light of the
liberal joinder provisions of the Federal Rules which allow legal
and equitable causes to be brought and resolved in one civil
action. [ Footnote 14 ]
Similarly, the need for, and therefore the availability of, such
equitable remedies as Bills of Peace, Quia Timet, and Injunction
must be reconsidered in view of the existence of the Declaratory
Judgment Act, as well as the liberal joinder provision of the
Rules. [ Footnote 15 ] This is
not only in accord with the spirit of the Rules and the Act, Page 359 U. S. 510 but is required by the provision in the Rules that

															"[t]he right of trial by jury as declared by the Seventh
Amendment to the Constitution or as given by a statute of the
United States shall be preserved . . . inviolate. [ Footnote 16 ]"

															If there should be cases where the availability of declaratory
judgment or joinder in one suit of legal and equitable causes would
not in all respects protect the plaintiff seeking equitable relief
from irreparable harm while affording a jury trial in the legal
cause, the trial court will necessarily have to use its discretion
in deciding whether the legal or equitable cause should be tried
first. Since the right to jury trial is a constitutional one,
however, while no similar requirement protects trials by the court,
[ Footnote 17 ] that
discretion is very narrowly limited, and must, wherever possible,
be exercised to preserve jury trial. As this Court said in Scott v. Neely, 140 U. S. 106 , 140 U. S.
109 -110:

															"In the Federal courts, this [jury] right cannot be dispensed
with except by the assent of the parties entitled to it, nor can it
be impaired by any blending with a claim, properly cognizable at
law, of a demand for equitable relief in aid of the legal action,
or during its pendency. [ Footnote 18 ]"

															This longstanding principle of equity dictates that only under
the Page 359 U. S. 511 most imperative circumstances, circumstances which, in view of
the flexible procedures of the Federal Rules, we cannot now
anticipate, [ Footnote 19 ]
can the right to a jury trial of legal issues be lost through prior
determination of equitable claims. See Leimer v. Woods, 196 F.2d 828, 833-836. As we have shown, this is far from being
such a case.

															Respondent claims mandamus is not available under the All Writs
Act, 28 U.S.C. § 1651. Whatever differences of opinion there may be
in other types of cases, we think the right to grant mandamus to
require jury trial where it has been improperly denied is settled.
[ Footnote 20 ]

															The judgment of the Court of Appeals is Reversed. MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															Beacon allegedly stated that the clearances granted violated
both the antitrust laws and the decrees issued in United States
v. Paramount Pictures, Inc., 66 F.
Supp. 323 ; 70 F. Supp.
53 , affirmed in part and reversed in part, 334 U. S. 334 U.S.
131, subsequent proceedings in the District
Court, 85 F. Supp.
881 . The decrees in that case set limits on what clearances
could be given when theatres were in competition with each other,
and held that there should be no clearances between theatres not in
substantial competition. Neither Beacon nor Fox, however, appears
to have been a party to those decrees. Their relevance, therefore,
seems to be only that of significant precedents.

															[ Footnote 2 ]

															Other prayers aside from the general equitable plea for "such
further relief as the court deems proper" added nothing material to
those set out.

															[ Footnote 3 ]

															Fed.Rules Civ.Proc., 42(b) reads:

															"The court, in furtherance of convenience or to avoid prejudice,
may order a separate trial of any claim, cross-claim, counterclaim,
or third-party claim, or of any separate issue or of any number of
claims, cross-claims, counterclaims, third-party claims, or
issues."

															Rule 57 reads in part: "The court may order a speedy hearing of
an action for a declaratory judgment, and may advance it on the
calendar."

															[ Footnote 4 ] See, e.g., (American) Lumbermens Mut. Cas. Co. of Illinois
v. Timms & Howard, Inc., 108 F.2d 497; Hargrove v.
American Cent. Ins. Co., 125 F.2d 225; Johnson v. Fidelity
& Casualty Co., 238 F.2d 322. See Fed.Rules
Civ.Proc. 57, 38, 39.

															[ Footnote 5 ] Compare Enelow v. New York Life Ins. Co., 293 U.
S. 379 , with American Life Ins. Co. v. Stewart, 300 U. S. 203 . See also City of Morgantown v. Royal Ins. Co., 337 U. S. 254 ; Peake v. Lincoln Nat. Life Ins. Co., 15 F.2d 303.

															[ Footnote 6 ]

															252 F.2d at 874. In Ettelson v. Metropolitan Life Ins.
Co., 317 U. S. 188 , 317 U. S. 192 ,
this Court recognized that orders enabling equitable causes to be
tried before legal ones had the same effect as injunctions. In City of Morgantown v. Royal Ins. Co., 337 U.
S. 254 , the Court denied at least some such orders the
status of injunctions for the purposes of appealability. It did
not, of course, imply that, when the orders came to be reviewed,
they would be examined any less strictly than injunctions. 337 U.S.
at 337 U. S.
258 .

															[ Footnote 7 ] See, e.g., Smyth v. Ames, 169 U.
S. 466 , 169 U. S. 515 ; Detroit of Detroit Citizens' Street R. Co., 184 U.
S. 368 , 184 U. S.
378 -382; cf. Matthews v. Rodgers, 284 U.
S. 521 .

															[ Footnote 8 ] E.g., 54 U. S. Wheeling
& Belmont Bridge Co., 13 How. 518, 54 U. S. 561 ; Parker v. Winnipiseogee Lake
Cotton & Woollen Co. , 2 Black 545, 67 U. S. 551 ; Enelow v. New York Life Ins. Co., 293 U.
S. 379 .

															[ Footnote 9 ] See, e.g., Cook, Cases on Equity (4th ed.), 18; 4
Pomeroy, Equity Jurisprudence (5th ed.), § 1370; 5 Moore, Federal
Practice, 154-158; Morris, Jury Trial Under the Federal Fusion of
Law and Equity, 20 Tex.L.Rev. 427, 441-443. Cf. Maryland
Theater Corp. v. Brennan, 180 Md. 377, 389, 24 A.2d 911; Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869. But cf. 1 Pomeroy, Equity Jurisprudence (5th ed.), §§ 182,
183. Significantly the Court of Appeals itself relied on the
procedural changes brought about by the Federal Rules when it found
the plea for equitable relief valid, for it did so by relying on Conley v. Gibson, 355 U. S. 41 , which
emphasized the liberal construction policies of the Rules.

															[ Footnote 10 ]

															Since the issue of violation of the antitrust laws often turns
on the reasonableness of a restraint on trade in the light of all
the facts, see, e.g., Standard Oil Co. v. United States, 221 U. S. 1 , 221 U. S. 60 , it
is particularly undesirable to have some of the relevant
considerations tried by one factfinder, and some by another.

															[ Footnote 11 ]

															Fed.Rules Civ.Proc., 13(a).

															[ Footnote 12 ] See 28 U.S.C. § 2072; Fed.Rules Civ.Proc. 39(a), 57. See also Stainback v. Mo Hock Ke Lok Po, 336 U.
S. 368 , 336 U. S. 382 ,
note 26; United States v. Yellow Cab Co., 340 U.
S. 543 , 340 U. S.
555 -556.

															[ Footnote 13 ] See 36 Stat. 1163, derived from Act of Sept. 24, 1789,
§ 16, 1 Stat. 82. This provision, which antedates the Seventh
Amendment, is discussed in 5 Moore, Federal Practice, 32. See,
e.g., 60 U. S. Town of
Babin, 19 How. 271, 60 U. S.
277 -278; Insurance Co. v.
Bailey , 13 Wall. 616, 80 U. S.
620 -621; Grand Chute v.
Winegar , 15 Wall. 373; Buzard v. Houston, 119 U. S. 347 , 119 U. S.
351 -352.

															[ Footnote 14 ] See Fed.Rules Civ.Proc., 1, 2, 18. Cf. Prudential
Ins. Co. of America v. Saxe, 77 U.S.App.D.C. 144, 134 F.2d 16,
31-34; Morris, Jury Trial Under the Federal Fusion of Law and
Equity, 20 Tex.L.Rev. 427, 441-443.

															[ Footnote 15 ] See 1 Pomeroy, Equity Jurisprudence (5th ed.) §§ 251
3/4, 254, 264(b); 5 Moore, Federal Practice, 32; but cf.
id., 209-211. See also Note, The Joinder Rules and
Equity Jurisdiction in the Avoidance of a Multiplicity of Suits, 12
Md.L.Rev. 88. Of course, unless there is an issue of a right to
jury trial or of other rights which depend on whether the cause is
a "legal" or "equitable" one, the question of adequacy of legal
remedies is purely academic, and need not arise.

															[ Footnote 16 ]

															Fed.Rules Civ.Proc. 38(a). In delegating to the Supreme Court
responsibility for drawing up rules, Congress declared that:

															"Such rules shall not abridge, enlarge or modify any substantive
right, and shall preserve the right of trial by jury as at common
law and as declared by the Seventh Amendment to the
Constitution."

															28 U.S.C. § 2072. The Seventh Amendment reads:

															"In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States than according to the
rules of the common law."

															[ Footnote 17 ] See Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d
796, 798-799; cf. 53 U. S. Fitzhugh, 12 How. 443, 53 U. S.
459 -460.

															[ Footnote 18 ]

															This Court has long emphasized the importance of the jury trial. See Parsons v.
Bedford , 3 Pet. 433, 28 U. S. 446 . See also Galloway v. United States, 319 U.
S. 372 . Id. at 319 U. S. 396 (dissenting opinion).

															[ Footnote 19 ]

															For an example of the flexible procedures available under the
Federal Rules, see Ring v. Spina, 166 F.2d 546, 550.

															[ Footnote 20 ] E.g., Ex parte Simons, 247 U.
S. 231 , 247 U. S.
239 -240; Ex parte Peterson, 253 U.
S. 300 , 253 U. S.
305 -306; Bereslavsky v. Caffey, 161 F.2d 499
(C.A. 2d Cir.); Canister Co. v. Leahy, 191 F.2d 255; Black v. Boyd, 248 F.2d 156, 160-161 (C.A. 6th Cir.). Cf. Bruckman v. Hollzer, 152 F.2d 730 (C.A. 9th Cir.). But cf. In re Chappell & Co., 201 F.2d 343 (C.A. 1st
Cir.). See also La Buy v. Howes Leather Co., 352 U.
S. 249 .

															MR. JUSTICE STEWART, with whom MR. JUSTICE HARLAN and MR.
JUSTICE WHITTAKER concur, dissenting.

															There can be no doubt that a litigant is entitled to a writ of
mandamus to protect a clear constitutional or statutory right to a
jury trial. But there was no denial of such a right here. The
district judge simply exercised his inherent discretion, now
explicitly confirmed by the Federal Rules of Civil Procedure, to
schedule the trial of an equitable claim in advance of an action at
law. Even an abuse of such discretion could not, I think, be
attacked Page 359 U. S. 512 by the extraordinary writ of mandamus. [ Footnote 2/1 ] In any event, no abuse of discretion is
apparent in this case.

															The complaint filed by Fox stated a claim traditionally
cognizable in equity. That claim, in brief, was that Beacon had
wrongfully interfered with the right of Fox to compete freely with
Beacon and other distributors for the licensing of films for
first-run exhibition in the San Bernardino area. The complaint
alleged that the plaintiff was without an adequate remedy at law,
and would be irreparably harmed unless the defendant were
restrained from continuing to interfere -- by coercion and threats
of litigation -- with the plaintiff's lawful business
relationships.

															The Court of Appeals found that the complaint, although
inartistically drawn, contained allegations entitling the
petitioner to equitable relief. [ Footnote 2/2 ] That finding is accepted in the prevailing
opinion today. If the complaint had been answered simply by a
general denial, therefore, the issues would, under traditional
principles, have been triable as a proceeding in equity. Instead of
just putting in issue the allegations of the complaint, however,
Beacon filed pleadings which affirmatively alleged the existence of
a broad conspiracy among the plaintiff and other theatre owners to
monopolize the first-run exhibition of films in the San Bernardino
area to refrain from competing among themselves, and to
discriminate against Beacon in granting film licenses. Based upon
these allegations, Beacon asked damages in the amount of $300,000.
Clearly these conspiracy allegations stated a cause of action
triable as of right by a Page 359 U. S. 513 jury. What was demanded by Beacon, however, was a jury trial not
only of this cause of action, but also of the issues presented by
the original complaint.

															Upon motion of Fox, the trial judge ordered the original action
for declaratory and equitable relief to be tried separately to the
court and in advance of the trial of the defendant's counterclaim
and cross-claim for damages. The court's order, which carefully
preserved the right to trial by jury upon the conspiracy and damage
issues raised by the counterclaim and cross-claim, was in
conformity with the specific provisions of the Federal Rules of
Civil Procedure. [ Footnote 2/3 ] Yet
it is decided today that the Court of Appeals must compel the
district judge to rescind it.

															Assuming the existence of a factual issue common both to the
plaintiff's original action and the defendant's counterclaim for
damages, I cannot agree that the District Court must be compelled
to try the counterclaim first. [ Footnote 2/4 ] Page 359 U. S. 514 It is, of course, a matter of no great moment in what order the
issues between the parties in the present litigation are tried.
What is disturbing is the process by which the Court arrives at its
decision -- a process which appears to disregard the historic
relationship between equity and law. I The Court suggests that "the expansion of adequate legal
remedies provided by the Declaratory Judgment Act . . . necessarily
affects the scope of equity." Does the Court mean to say that the
mere availability of an action for a declaratory judgment operates
to furnish "an adequate remedy at law," so as to deprive a court of
equity of the power to act? That novel line of reasoning is at
least implied in the Court's opinion. But the Declaratory Judgment
Act did not "expand" the substantive law. Page 359 U. S. 515 That Act merely provided a new statutory remedy, neither legal
nor equitable, but available in the areas of both equity and law.
When declaratory relief is sought, the right to trial by jury
depends upon the basic context in which the issues are presented. See Moore's Federal Practice (2d ed.) §§ 38.29, 57.30;
Borchard, Declaratory Judgments (2d ed.), 399-404. If the basic
issues in an action for declaratory relief are of a kind
traditionally cognizable in equity, e.g., a suit for
cancellation of a written instrument, the declaratory judgment is
not a "remedy at law." [ Footnote
2/5 ] If, on the other hand, the issues arise in a context
traditionally cognizable at common law, the right to a jury trial,
of course, remains unimpaired, even though the only relief demanded
is a declaratory judgment. [ Footnote
2/6 ]

															Thus, if, in this case, the complaint had asked merely for a
judgment declaring that the plaintiff's specified manner of
business dealings with distributors and other exhibitors did not
render it liable to Beacon under the antitrust laws, this would
have been simply a "juxtaposition of parties" case in which Beacon
could have demanded a jury trial. [ Footnote 2/7 ] But the complaint in the present case, as
the Court recognizes, presented issues of exclusively equitable
cognizance, going well beyond a mere defense to any subsequent
action at law. Fox sought from the court protection against
Beacon's allegedly unlawful interference with its business
relationships -- protection which this Page 359 U. S. 516 Court seems to recognize might not have been afforded by a
declaratory judgment, unsupplemented by equitable relief. The
availability of a declaratory judgment did not, therefore, operate
to confer upon Beacon the right to trial by jury with respect to
the issues raised by the complaint. II The Court's opinion does not, of course, hold or even suggest
that a court of equity may never determine "legal rights." For
indeed it is precisely such rights which the Chancellor, when his
jurisdiction has been properly invoked, has often been called upon
to decide. Issues of fact are rarely either "legal" or "equitable."
All depends upon the context in which they arise. The examples
cited by Chief Judge Pope in his thorough opinion in the Court of
Appeals in this case are illustrative:

															". . . [I]n a suit by one in possession of real property to
quiet title, or to remove a cloud on title, the court of equity may
determine the legal title. In a suit for specific performance of a
contract, the court may determine the making, validity and the
terms of the contract involved. In a suit for an injunction against
trespass to real property, the court may determine the legal right
of the plaintiff to the possession of that property. Cf. Pomeroy, Equity Jurisprudence, 5th ed., §§ 138-221, 221a, 221b,
221d, 250."

															252 F.2d 864, 874.

															Though apparently not disputing these principles, the Court
holds, quite apart from its reliance upon the Declaratory Judgment
Act, that Beacon, by filing its counterclaim and cross-claim,
acquired a right to trial by jury of issues which otherwise would
have been properly triable to the court. Support for this position
is found in the principle that, "in the federal courts, equity has
always acted only when legal remedies were inadequate. . . ." Yet
that principle is not employed in its traditional sense as a
limitation upon the exercise of power by a court of Page 359 U. S. 517 equity. This is apparent in the Court's recognition that the
allegations of the complaint entitled Fox to equitable relief --
relief to which Fox would not have been entitled if it had had an
adequate remedy at law. Instead, the principle is employed today to
mean that, because it is possible under the counterclaim to have a
jury trial of the factual issue of substantial competition, that
issue must be tried by a jury even though the issue was primarily
presented in the original claim for equitable relief. This is a
marked departure from long settled principles.

															It has been an established rule

															"that equitable jurisdiction existing at the filing of a bill is
not destroyed because an adequate legal remedy may have become
available thereafter. [ Footnote
2/8 ]" American Life Ins. Co. v. Stewart, 300 U.
S. 203 , 300 U. S. 215 . See Dawson v. Kentucky Distilleries & Warehouse Co., 255 U. S. 288 , 255 U. S. 296 .
It has also been long settled that the District Court, in its
discretion, may order the trial of a suit in equity in advance of
an action at law between the same parties, even if there is a
factual issue common to both. In the words of Mr. Justice Cardozo,
writing for a unanimous Court in American Life Ins. Co. v.
Stewart, supra: "A court has control over its own docket. . . . In the exercise
of a sound discretion, it may hold one lawsuit in abeyance to abide
the outcome of another, especially where the parties and the issues
are the same. . . . If request had been made by the respondents to
suspend the suits in equity till the other causes were disposed of,
the District Court could have considered whether justice would not
be Page 359 U. S. 518 done by pursuing such a course, the remedy in equity being
exceptional and the outcome of necessity. . . . There would be many
circumstances to be weighed, as, for instance, the condition of the
court calendar, whether the insurer had been precipitate or its
adversaries dilatory, as well as other factors. In the end, benefit
and hardship would have to be set off, the one against the other,
and a balance ascertained." 300 U. S. 300 U.S.
203, 300 U. S.
215 -216. [ Footnote
2/9 ] III The Court today sweeps away these basic principles as
"precedents decided under discarded procedures." It suggests that
the Federal Rules of Civil Procedure have somehow worked an
"expansion of adequate legal remedies" so as to oust the District
Courts of equitable jurisdiction, as well as to deprive them of
their traditional power to control their own dockets. But obviously
the Federal Rules could not and did not "expand" the substantive
law one whit. [ Footnote 2/10 ]

															Like the Declaratory Judgment Act, the Federal Rules preserve
inviolate the right to trial by jury in actions historically
cognizable at common law, as under the Constitution they must.
[ Footnote 2/11 ] They do not
create a right of trial Page 359 U. S. 519 by jury where that right "does not exist under the Constitution
or statutes of the United States." Rule 39(a). Since Beacon's
counterclaim was compulsory under the Rules, see Rule
13(a), it is apparent that, by filing it, Beacon could not be held
to have waived its jury rights. [ Footnote 2/12 ] Compare American Mills Co. v.
American Surety Co., 260 U. S. 360 . But
neither can the counterclaim be held to have transformed Fox's
original complaint into an action at law. [ Footnote 2/13 ] See Bendix Aviation Corp. v.
Glass, 81 F. Supp.
645 .

															The Rules make possible the trial of legal and equitable claims
in the same proceeding, but they expressly affirm the power of a
trial judge to determine the order in which claims shall be heard.
Rule 42(b). Certainly the Federal Rules were not intended to
undermine the basic structure of equity jurisprudence, developed
over the centuries and explicitly recognized in the United States
Constitution. [ Footnote 2/14 ]

															For these reasons, I think the petition for a writ of mandamus
should have been dismissed.

															[ Footnote 2/1 ] Compare Black v. Boyd, 248 F.2d 156, with Black v.
Boyd, 251 F.2d 843.

															[ Footnote 2/2 ] Cf. De Groot v. Peters, 124 Cal. 406, 57 P. 209; California Grape Control Bd. v. California P.
Corp., 4 Cal. App. 2d
242 , 244, 40 P.2d 846. Compare Kessler v. Eldred, 206 U. S. 285 ; International News Service v. Associated Press, 248 U. S. 215 , 248 U. S. 236 ; Truax v. Raich, 239 U. S. 33 , 239 U. S.
38 .

															[ Footnote 2/3 ]

															Rule 42(b) provides:

															"(b) Separate Trials. The court, in furtherance of convenience
or to avoid prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party claim, or of any separate
issue or of any number of claims, cross-claims, counterclaims,
third-party claims, or issues."

															The Note to Rule 39 of the Advisory Committee on Rules states
that,

															"When certain of the issues are to be tried by jury and others
by the court, the court may determine the sequence in which such
issues shall be tried."

															This language was at one time contained in a draft of the Rules,
but was deleted because "the power is adequately given by Rule
42(b). . . ." Moore's Federal Practice (2d. ed.) § 39.12, n. 8. See also Rule 57, which provides, inter alia, that "The court may order a speedy hearing of an action for a
declaratory judgment and may advance it on the calendar."

															[ Footnote 2/4 ]

															It is not altogether clear at this stage of the proceedings
whether the existence of substantial competition between Fox and
Beacon is actually a material issue of fact common to both the
equitable claim and the counterclaim for damages. The respondent
ingeniously argues that determination in the equitable suit of the
issue of competition between the theatres would be determinative of
little or nothing in the counterclaim for damages.

															"The fact issue in the action for equitable and declaratory
relief is whether the Fox West Coast California Theatre and the
Petitioner's drive-in are substantially competitive with each
other. The fact issue in the counterclaim is whether the
cross-defendants and co-conspirators therein named conspired
together in restraint of trade and to monopolize in the manner
alleged in the counterclaim. Absent conspiracy, whether or not the
distributors licensed a single first run picture to Petitioner's
drive-in, be it in substantial competition or not in substantial
competition with other first run theatres in the San Bernardino
area, Petitioner will not have made out a case on its counterclaim.
. . . If Petitioner, on its counterclaim, should fail to prove
conspiracy, the issue of competition between the theatres is
meaningless. If petitioner, on the other hand, succeeds in proving
the allegations of its counterclaim, the conspiracy to monopolize
first run and to discriminate against the new drive-in, the
existence or nonexistence of competition between the theatres would
exculpate none of the alleged wrongdoers, although, if there was an
absence of competition between the drive-in and the other first run
theatres, as Petitioner contended in its answer to the complaint,
it might have some difficulty proving injury to its business."

															[ Footnote 2/5 ] State Farm Mut. Auto. Ins. Co. v. Mossey, 195 F.2d 56,
60; Connecticut General Life Ins. Co. v. Candimat
Co., 83 F. Supp.
1 .

															[ Footnote 2/6 ] Dickinson v. General Accident F. & L. Assur. Corp., 147 F.2d 396; Hargrove v. American Cent. Ins. Co., 125
F.2d 225; Pacific Indemnity Co. v. McDonald, 107 F.2d
446.

															[ Footnote 2/7 ]

															Moore's Federal Practice (2d ed.) § 57.31(2). "Transposition of
parties" would perhaps be a more accurate description. A typical
such case is one in which a plaintiff uses the declaratory judgment
procedure to seek a determination of nonliability to a legal claim
asserted by the defendant. The defendant in such a case is, of
course, entitled to a jury trial.

															[ Footnote 2/8 ]

															The suggestion by the Court that

															"This was because the subsequent legal action, though providing
an opportunity to try the case to a jury, might not protect the
right of the equity plaintiff to a fair and orderly adjudication of
the controversy"

															is plainly inconsistent with many of the cases in which the rule
has been applied. See, e.g., Beedle v. Bennett, 122 U. S. 71 ; Clark v. Wooster, 119 U. S.
332 .

															[ Footnote 2/9 ]

															It is arguable that, if a case factually similar to American
Life Ins. Co. v. Stewart were to arise under the Declaratory
Judgment Act, the defendant would be entitled to a jury trial. See footnote 7 But
cf. 5 Moore's Federal Practice (2d ed.), p. 158.

															[ Footnote 2/10 ]

															Congressional authorization of the Rules expressly provided that
"Said rules shall neither abridge, enlarge, nor modify the
substantive rights of any litigant." 48 Stat. 1064. See 28
U.S.C. § 2072.

															[ Footnote 2/11 ]

															"In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any Court of the United States than according to the
rules of the common law."

															U.S.Const., Amend. VII. See Rules 38, 39, Fed.Rules
Civ.Proc.

															[ Footnote 2/12 ]

															This is not, of course, to suggest that the filing of a
permissive "legal" counterclaim to an "equitable" complaint would
amount to a waiver of jury rights on the issues raised by the
counterclaim.

															[ Footnote 2/13 ]

															Determination of whether a claim stated by the complaint is
triable by the court or by a jury will normally not be dependent
upon the "legal" or "equitable" character of the counterclaim. See Borchard, Declaratory Judgments (2d ed.), p. 404.
There are situations, however, such as a case in which the
plaintiff seeks a declaration of invalidity or non-infringement of
a patent, in which the relief sought by the counterclaim will
determine the nature of the entire case. See Moore's
Federal Practice (2d ed.) § 38.29.

															[ Footnote 2/14 ]

															"The judicial Power shall extend to all Cases, in Law and
Equity. . . ." Art. III, § 2.