U.S. Supreme Court Chauffeurs Local 391 v. Terry, 494
U.S. 558 (1990) Chauffeurs, Teamsters and Helpers
Local No. 391 v. Terry No. 88-1719 Argued December 6,
1989 Decided March 20,
1990 494
U.S. 558 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus McLean Trucking Company and petitioner Chauffeurs, Teamsters and
Helpers Local No. 391 (Union) were parties to a collective
bargaining agreement which covered respondent employees. When the
Union declined to refer to the grievance committee respondents'
charges against McLean -- arising from McLean's layoff and recall
policies -- on the ground that the relevant issues had been
determined in two prior proceedings concerning complaints that the
Union had referred to the committee on respondents' behalf,
respondents filed suit in the District Court. Alleging that McLean
had breached the collective bargaining agreement in violation of §
301 of the Labor Management Relations Act, 1947, and that the Union
had violated its duty of fair representation, they requested
injunctive relief and, inter alia, compensatory damages
for lost wages and health benefits. They also made a jury demand
for all issues triable by a jury. After McLean filed for
bankruptcy, the action against it, and all claims for injunctive
relief, were dismissed. The Union then moved to strike the jury
demand on the ground that no right to a jury trial exists in a duty
of fair representation suit. The District Court denied the motion,
and the Court of Appeals affirmed, holding that the Seventh
Amendment entitled respondents to a jury trial on their claim for
monetary relief. Held: The judgment is affirmed.

															863 F.2d 334, affirmed.

															JUSTICE MARSHALL delivered the opinion of the Court with respect
to Parts I, II, III-B, and IV, concluding that the Seventh
Amendment entitles respondents to a jury trial. Pp. 494 U. S.
563 -564, 494 U. S.
570 -574.

															(a) To recover money damages in an action for breach of the duty
of fair representation, an employee must prove both that the
employer's action violated the terms of the collective bargaining
agreement and that the union breached its duty of fair
representation in handling the grievance. DelCostello v.
Teamsters, 462 U. S. 151 , 462 U. S.
163 -164. Pp. 462 U. S.
563 -564.

															(b) The remedy respondents seek entitles them to a jury trial on
all issues presented in the suit. That remedy -- compensatory
damages -- is traditionally legal relief, and has none of the
attributes that must be present before this Court will characterize
money damages as equitable. Page 494 U. S. 559 The relief is not restitutionary, because the backpay sought is
not money wrongfully held by the Union, but wages and benefits
respondents would have received from McLean had the Union processed
their grievances properly. Nor is the monetary award incidental to,
or intertwined with, injunctive relief, because respondents here
are seeking only money damages. Moreover, although backpay under
Title VII of the Civil Rights Act of 1964 is considered an
equitable remedy, this characterization does not require that money
damages for breach of the duty of fair representation be considered
equitable as well. Congress has specifically characterized Title
VII backpay as a form of "equitable relief," but it has made no
similar pronouncement regarding damages for breach of the duty of
fair representation. Further, this Court has noted that Title VII
backpay sought from an employer would generally be restitutionary
in nature. Pp. 494 U. S.
570 -574.

															JUSTICE MARSHALL, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE BLACKMUN, concluded in Part III-A:

															1. To determine whether a particular action will resolve legal
(as opposed to equitable) rights, such that the plaintiff is
entitled to a jury trial, courts must examine both the nature of
the issues involved and, more importantly, the remedy sought. Tull v. United States, 481 U. S. 412 , 481 U. S.
417 -418. Pp. 494 U. S.
564 -565.

															2. A comparison of respondents' action to 18th-century causes of
action leaves the jury trial question in equipoise, because it
reveals that this action presents both equitable and legal issues.
The duty of fair representation claim is comparable to an equitable
action by a trust beneficiary against a trustee for breach of
fiduciary duty. DelCostello, supra -- which, in
determining the appropriate statute of limitations in a hybrid
action, noted in dicta that an attorney malpractice action,
historically an action at law, is the closest state law analogy to
a duty of fair representation claim -- did not consider the trust
analogy, which more fully captures the relationship between the
Union and the represented employees. Nevertheless, respondents'
action cannot be characterized as wholly equitable, since the § 301
issue -- which respondents must prove in order to prevail -- is
comparable to a breach of contract claim, a legal issue. United
Parcel Service, Inc. v. Mitchell, 451 U. S.
56 . Pp. 494 U. S.
565 -570.

															JUSTICE BRENNAN proposed that the historical test mandated by
the Seventh Amendment should turn solely on the comparison of the
relief sought to relief historically available in equity or at law,
and that the Court should dispense with the process of comparing
the right at issue with 18th-century English forms of action. Since
the nature of the remedy is always given more weight than the
nature of the analogous right, it is unlikely that the proposed
analysis would result in different decisions. Page 494 U. S. 560 Comparisons of contemporary rights with ancient writs have
needlessly convoluted Seventh Amendment jurisprudence and embroiled
courts in recondite controversies better left to legal historians.
Moreover, the nature of the rights available under modern statutes
is so remote in form and concept from 18th-century forms of action
that, too often, there is no firm basis for comparison. Because the
nature of remedies available today corresponds far more directly to
the nature of remedies available in Georgian England, the proposed
analysis would not only be more manageable than the current test,
but also more reliably grounded in history. Pp. 494 U. S.
574 -581.

															JUSTICE STEVENS concluded that the relevant historical question
is not whether the suit was specifically recognized at common law,
but whether the nature of the substantive right asserted is
analogous to common law rights, and whether the relief sought is
typical of an action at law. A sufficient basis for the Court's
holding is provided by the evolution of the duty of fair
representation doctrine through suits tried to juries, the
well-recognized duty to scrutinize any proposed curtailment of the
right to a jury trial with the utmost care, and the fact that a
duty of fair representation action resembles a common law attorney
malpractice action more closely than it does any other action. Pp. 494 U. S.
581 -584.

															MARSHALL, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III-B, and
IV, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, and
STEVENS, JJ., joined, and an opinion with respect to Part III-A, in
which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined.
BRENNAN, J., post, p. 494 U. S. 574 ,
and STEVENS, J., post, p. 494 U. S. 581 ,
filed opinions concurring in part and concurring in the judgment.
KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and
SCALIA, JJ., joined, post, p. 494 U. S.
584 . Page 494 U. S. 561 JUSTICE MARSHALL delivered the opinion of the Court except as to
Part III-A.

															This case presents the question whether an employee who seeks
relief in the form of backpay for a union's alleged breach of its
duty of fair representation has a right to trial by jury. We hold
that the Seventh Amendment entitles such a plaintiff to a jury
trial. I McLean Trucking Company and the Chauffeurs, Teamsters and
Helpers Local No. 391 (Union) were parties to a collective
bargaining agreement that governed the terms and conditions of
employment at McLean's terminals. The 27 respondents were employed
by McLean as truckdrivers in bargaining units covered by the
agreement, and all were members of the Union. In 1982, McLean
implemented a change in operations that resulted in the elimination
of some of its terminals and the reorganization of others. As part
of that change, McLean transferred respondents to the terminal
located in Winston-Salem and agreed to give them special seniority
rights in relation to "inactive" employees in Winston-Salem who had
been laid off temporarily.

															After working in Winston-Salem for approximately six weeks,
respondents were alternately laid off and recalled several times.
Respondents filed a grievance with the Union, contesting the order
of the layoffs and recalls. Respondents also challenged McLean's
policy of stripping any driver who was laid off of his special
seniority rights. Respondents claimed that McLean breached the
collective bargaining agreement by giving inactive drivers
preference over respondents. After these proceedings, the grievance
committee ordered McLean to recall any respondent who was then laid
off and to lay off any inactive driver who had been recalled; in
addition, the committee ordered McLean to recognize respondents'
special seniority rights until the inactive employees were properly
recalled. Page 494 U. S. 562 On the basis of this decision, McLean recalled respondents and
laid off the drivers who had been on the inactive list when
respondents transferred to Winston-Salem. Soon after this, though,
McLean recalled the inactive employees, thereby allowing them to
regain seniority rights over respondents. In the next round of
layoffs, then, respondents had lower priority than inactive
drivers, and were laid off first. Accordingly, respondents filed
another grievance, alleging that McLean's actions were designed to
circumvent the initial decision of the grievance committee. The
Union representative appeared before the grievance committee and
presented the contentions of respondents and those of the inactive
truckdrivers. At the conclusion of the hearing, the committee held
that McLean had not violated the committee's first decision.

															McLean continued to engage in periodic layoffs and recalls of
the workers at the Winston-Salem terminal. Respondents filed a
third grievance with the Union, but the Union declined to refer the
charges to a grievance committee on the ground that the relevant
issues had been determined in the prior proceedings.

															In July, 1983, respondents filed an action in District Court,
alleging that McLean had breached the collective bargaining
agreement in violation of § 301 of the Labor Management Relations
Act, 1947, 61 Stat. 156, 29 U.S.C. § 185 (1982 ed.), [ Footnote 1 ] and that the Union had violated
its duty of fair representation. Respondents requested a permanent
injunction requiring the defendants to cease their illegal acts and
to reinstate Page 494 U. S. 563 them to their proper seniority status; in addition, they sought, inter alia, compensatory damages for lost wages and health
benefits. In 1986, McLean filed for bankruptcy; subsequently, the
action against it was voluntarily dismissed, along with all claims
for injunctive relief.

															Respondents had requested a jury trial in their pleadings. The
Union moved to strike the jury demand on the ground that no right
to a jury trial exists in a duty of fair representation suit. The
District Court denied the motion to strike. After an interlocutory
appeal, the Fourth Circuit affirmed the trial court, holding that
the Seventh Amendment entitled respondents to a jury trial of their
claim for monetary relief. 863 F.2d 334 (1988). We granted the
petition for certiorari to resolve a Circuit conflict on this
issue, [ Footnote 2 ] 491 U.S.
903 (1989), and now affirm the judgment of the Fourth Circuit. II The duty of fair representation is inferred from unions'
exclusive authority under the National Labor Relations Act (NLRA),
49 Stat. 449, 29 U.S.C. § 159(a) (1982 ed.), to represent all
employees in a bargaining unit. Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 177 (1967). The duty requires a union

															"to serve the interests of all members without hostility or
discrimination toward any, to exercise its discretion with complete
good faith and honesty, and to avoid arbitrary conduct." Ibid. A union must discharge its duty both in
bargaining with the employer and in its enforcement of the
resulting collective bargaining agreement. Ibid. Thus, the
Union here was required to pursue respondents' grievances in a
manner consistent with the principles of fair representation. Page 494 U. S. 564 Because most collective bargaining agreements accord finality to
grievance or arbitration procedures established by the collective
bargaining agreement, an employee normally cannot bring a § 301
action against an employer unless he can show that the union
breached its duty of fair representation in its handling of his
grievance. DelCostello v. Teamsters, 462 U.
S. 151 , 462 U. S.
163 -164 (1983). Whether the employee sues both the labor
union and the employer or only one of those entities, he must prove
the same two facts to recover money damages: that the employer's
action violated the terms of the collective bargaining agreement
and that the union breached its duty of fair representation. Id. at 462 U. S.
164 -165. III We turn now to the constitutional issue presented in this case
-- whether respondents are entitled to a jury trial. [ Footnote 3 ] The Seventh Amendment provides
that "[i]n Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be
preserved." The right to a jury trial includes more than the common
law forms of action recognized in 1791; the phrase "Suits at common
law" refers to

															"suits in which legal rights [are] to be ascertained and
determined, in contradistinction to those where equitable rights
alone [are] recognized, and equitable remedies [are]
administered." Parsons v.
Bedford , 3 Pet. 433, 28 U. S. 447 (1830); see also ibid. ("[T]he amendment then may well be
construed to embrace all suits which are not of equity and
admiralty jurisdiction, whatever may be the peculiar form which
they may assume to settle legal rights"). The right extends to Page 494 U. S. 565 causes of action created by Congress. Tull v. United
States, 481 U. S. 412 , 481 U. S. 417 (1987). Since the merger of the systems of law and equity, see Fed.Rule Civ.Proc. 2, this Court has carefully
preserved the right to trial by jury where legal rights are at
stake. As the Court noted in Beacon Theatres, Inc. v.
Westover, 359 U. S. 500 , 359 U. S. 501 (1959),

															"'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.'"

															(quoting Dimick v. Schiedt, 293 U.
S. 474 , 293 U. S. 486 (1935)).

															To determine whether a particular action will resolve legal
rights, we examine both the nature of the issues involved and the
remedy sought.

															"First, we compare the statutory action to 18th-century actions
brought in the courts of England prior to the merger of the courts
of law and equity. Second, we examine the remedy sought and
determine whether it is legal or equitable in nature." Tull, supra, at 481 U. S.
417 -418 (citations omitted). The second inquiry is the
more important in our analysis. Granfinanciera, S. A. v.
Nordberg, 492 U. S. 33 , 492 U. S. 42 (1989). [ Footnote 4 ] A An action for breach of a union's duty of fair representation
was unknown in 18th-century England; in fact, collective
bargaining Page 494 U. S. 566 was unlawful. See N. Citrine, Trade Union Law 4-7 (2d
ed.1960). We must therefore look for an analogous cause of action
that existed in the 18th century to determine whether the nature of
this duty of fair representation suit is legal or equitable.

															The Union contends that this duty of fair representation action
resembles a suit brought to vacate an arbitration award because
respondents seek to set aside the result of the grievance process.
In the 18th century, an action to set aside an arbitration award
was considered equitable. 2 J. Story, Commentaries on Equity
Jurisprudence § 1452, pp. 789-790 (13th ed.1886) (equity courts had
jurisdiction over claims that an award should be set aside on the
ground of "mistake of the arbitrators"); see, e.g., 58 U. S. Marsh, 17 How. 344 (1855) (reviewing bill in equity to vacate
an arbitration award). In support of its characterization of the
duty of fair representation claim, the Union cites United
Parcel Service, Inc. v. Mitchell, 451 U. S.
56 (1981), in which we held that, for purposes of
selecting from various state statutes an appropriate limitations
period for a § 301 suit against an employer, such a suit was more
analogous to a suit to vacate an arbitration award than to a breach
of contract action. Id. at 451 U. S. 62 .
[ Footnote 5 ]

															The arbitration analogy is inapposite, however, to the Seventh
Amendment question posed in this case. No grievance committee has
considered respondents' claim that the Union violated its duty of
fair representation; the grievance process was concerned only with
the employer's alleged breach of the collective bargaining
agreement. Thus, respondents' claim against the Union cannot be
characterized as an action to vacate Page 494 U. S. 567 an arbitration award because

															"'[t]he arbitration proceeding did not, and indeed, could not,
resolve the employee's claim against the union. . . . Because no
arbitrator has decided the primary issue presented by this claim,
no arbitration award need be undone, even if the employee
ultimately prevails.'" DelCostello, 462 U.S. at 462 U. S. 167 (quoting Mitchell, supra, at 451 U. S. 73 (STEVENS, J., concurring in part and dissenting in part) (footnotes
omitted)).

															The Union next argues that respondents' duty of fair
representation action is comparable to an action by a trust
beneficiary against a trustee for breach of fiduciary duty. Such
actions were within the exclusive jurisdiction of courts of equity.
2 Story, supra, § 960, p. 266; Restatement (Second) of
Trusts § 199(c) (1959). This analogy is far more persuasive than
the arbitration analogy. Just as a trustee must act in the best
interests of the beneficiaries, 2A W. Fratcher, Scott on Trusts §
170 (4th ed.1987), a union, as the exclusive representative of the
workers, must exercise its power to act on behalf of the employees
in good faith, Vaca v. Sipes, 386 U.S. at 386 U. S. 177 .
Moreover, just as a beneficiary does not directly control the
actions of a trustee, 3 Fratcher, supra, § 187, an
individual employee lacks direct control over a union's actions
taken on his behalf, see Cox, The Legal Nature of
Collective Bargaining Agreements, 57 Mich.L.Rev. 1, 21 (1958).

															The trust analogy extends to a union's handling of grievances.
In most cases, a trustee has the exclusive authority to sue third
parties who injure the beneficiaries' interest in the trust, 4
Fratcher, supra, § 282, pp. 25-29, including any legal
claim the trustee holds in trust for the beneficiaries, Restatement
(Second) of Trusts, supra, § 82, comment a. The trustee
then has the sole responsibility for determining whether to settle,
arbitrate, or otherwise dispose of the claim. Restatement (Second)
of Trusts, supra, § 192. Similarly, the union typically
has broad discretion in its decision whether and how to pursue an
employee's grievance against Page 494 U. S. 568 an employer. See, e.g., Vaca v. Sipes, supra, at 386 U. S. 185 .
Just as a trust beneficiary can sue to enforce a contract entered
into on his behalf by the trustee only if the trustee "improperly
refuses or neglects to bring an action against the third person,"
Restatement (Second) of Trusts, supra, § 282(2), so an
employee can sue his employer for a breach of the collective
bargaining agreement only if he shows that the union breached its
duty of fair representation in its handling of the grievance, DelCostello, supra, at 462 U. S.
163 -164. See Bowen v. United States Postal
Service, 459 U. S. 212 , 459 U. S. 243 (1983) (WHITE, J., concurring in judgment in part and dissenting in
part).

															Respondents contend that their duty of fair representation suit
is less like a trust action than an attorney malpractice action,
which was historically an action at law, see, e.g., Russell v.
Palmer, 2 Wils. K.B. 325, 95 Eng.Rep. 837 (1767). In
determining the appropriate statute of limitations for a hybrid §
301/duty of fair representation action, this Court in DelCostello noted in dictum that an attorney malpractice
action is "the closest state law analogy for the claim against the
union." 462 U.S. at 462 U. S. 167 .
The Court in DelCostello did not consider the trust
analogy, however. Presented with a more complete range of
alternatives, we find that, in the context of the Seventh Amendment
inquiry, the attorney malpractice analogy does not capture the
relationship between the union and the represented employees as
fully as the trust analogy does.

															The attorney malpractice analogy is inadequate in several
respects. Although an attorney malpractice suit is in some ways
similar to a suit alleging a union's breach of its fiduciary duty,
the two actions are fundamentally different. The nature of an
action is in large part controlled by the nature of the underlying
relationship between the parties. Unlike employees represented by a
union, a client controls the significant decisions concerning his
representation. Moreover, a client can fire his attorney if he is
dissatisfied with his attorney's Page 494 U. S. 569 performance. This option is not available to an individual
employee who is unhappy with a union's representation, unless a
majority of the members of the bargaining unit share his
dissatisfaction. See J. I. Case Co. v. NLRB, 321 U.
S. 332 , 321 U. S.
338 -339 (1944). Thus, we find the malpractice analogy
less convincing than the trust analogy.

															Nevertheless, the trust analogy does not persuade us to
characterize respondents' claim as wholly equitable. The Union's
argument mischaracterizes the nature of our comparison of the
action before us to 18th-century forms of action. As we observed in Ross v. Bernhard, 396 U. S. 531 (1970),

															"The Seventh Amendment question depends on the nature of the issue to be tried, rather than the character of the
overall action." Id. at 396 U. S. 538 (emphasis added) (finding a right to jury trial in a shareholder's
derivative suit, a type of suit traditionally brought in courts of
equity, because plaintiffs' case presented legal issues of breach
of contract and negligence). As discussed above, see
supra, at 494 U. S. 564 ,
to recover from the Union here, respondents must prove both that
McLean violated § 301 by breaching the collective bargaining
agreement and that the Union breached its duty of fair
representation. [ Footnote 6 ]
When viewed in isolation, the duty of fair representation issue is
analogous to a claim against a trustee for breach of fiduciary
duty. The § 301 issue, however, Page 494 U. S. 570 is comparable to a breach of contract claim -- a legal issue.
[ Footnote 7 ]

															Respondents' action against the Union thus encompasses both
equitable and legal issues. The first part of our Seventh Amendment
inquiry, then, leaves us in equipoise as to whether respondents are
entitled to a jury trial. B Our determination under the first part of the Seventh Amendment
analysis is only preliminary. Granfinanciera, S. A. v.
Nordberg, 492 U.S. at 492 U. S. 47 . In this case, the only remedy sought is a
request for compensatory damages representing backpay and benefits.
Generally, an action for money damages was "the traditional form of
relief offered in the courts of law." Curtis v. Loether, 415 U. S. 189 , 415 U. S. 196 (1974). This Court has not, however, held that "any award of
monetary relief must necessarily be legal' relief." Ibid. (emphasis added). See also Granfinanciera,
supra, at 492 U. S. 86 , n.
9 (WHITE, J., dissenting). Nonetheless, because we conclude that
the remedy respondents seek has none of the attributes that must be
present before we will find an exception to the general rule and
characterize damages as equitable, we find that the remedy sought
by respondents is legal. First, we have characterized damages as equitable where they are
restitutionary, such as in "action[s] for disgorgement of improper
profits," Tull, 481 U.S. at 481 U. S. 424 . See also Curtis v. Loether, supra, at 415 U. S. 197 ; Porter v. Warner Holding Co., 328 U.
S. 395 , 328 U. S. 402 (1946). The backpay sought by respondents Page 494 U. S. 571 is not money wrongfully held by the Union, but wages and
benefits they would have received from McLean had the Union
processed the employees' grievances properly. Such relief is not
restitutionary.

															Second, a monetary award "incidental to or intertwined with
injunctive relief" may be equitable. Tull, supra, at 481 U. S. 424 . See, e.g., Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 , 361 U. S.
291 -292 (1960) (District Court had power, incident to
its injunctive powers, to award backpay under the Fair Labor
Standards Act; also backpay in that case was restitutionary).
Because respondents seek only money damages, this characteristic is
clearly absent from the case. [ Footnote 8 ]

															The Union argues that the backpay relief sought here must
nonetheless be considered equitable because this Court has labeled
backpay awarded under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (1982 ed.), as equitable. See
Albemarle Paper Co. v. Moody, 422 U.
S. 405 , 422 U. S.
415 -418 (1975) (characterizing backpay awarded against
employer Page 494 U. S. 572 under Title VII as equitable in context of assessing whether
judge erred in refusing to award such relief). It contends that the
Title VII analogy is compelling in the context of the duty of fair
representation because the Title VII backpay provision was based on
the NLRA provision governing backpay awards for unfair labor
practices, 29 U.S.C. § 160(c) (1982 ed.) ("[W]here an order directs
reinstatement of an employee, back pay may be required of the
employer or labor organization"). See Albemarle Paper Co. v.
Moody, supra, at 422 U. S. 419 .
We are not convinced.

															The Court has never held that a plaintiff seeking backpay under
Title VII has a right to a jury trial. See Lorillard v.
Pons, 434 U. S. 575 , 434 U. S.
581 -582 (1978). Assuming, without deciding, that such a
Title VII plaintiff has no right to a jury trial, the Union's
argument does not persuade us that respondents are not entitled to
a jury trial here. Congress specifically characterized backpay
under Title VII as a form of "equitable relief." 42 U.S.C. §
2000e-5(g) (1982 ed.) ("[T]he court may . . . order such
affirmative action as may be appropriate, which may include, but is
not limited to, reinstatement or hiring of employees, with or
without back pay . . or any other equitable relief as the court
deems appropriate"). See also Curtis v. Loether, supra, at 415 U. S.
196 -197 (distinguishing backpay under Title VII from
damages under Title VIII, the fair housing provision of the Civil
Right Act, 42 U.S.C. §§ 3601-3619 (1982 ed.), which the Court
characterized as "legal" for Seventh Amendment purposes). Congress
made no similar pronouncement regarding the duty of fair
representation. Furthermore, the Court has noted that backpay
sought from an employer under Title VII would generally be
restitutionary in nature, see Curtis v. Loether, supra, at 415 U. S. 197 ,
in contrast to the damages sought here from the Union. Thus, the
remedy sought in this duty of fair representation case is clearly
different from backpay sought for violations of Title VII. Page 494 U. S. 573 Moreover, the fact that Title VII's backpay provision may have
been modeled on a provision in the NLRA concerning remedies for
unfair labor practices does not require that the backpay remedy
available here be considered equitable. The Union apparently
reasons that, if Title VII is comparable to one labor law remedy,
it is comparable to all remedies available in the NLRA context.
Although both the duty of fair representation and the unfair labor
practice provisions of the NLRA are components of national labor
policy, their purposes are not identical. Unlike the unfair labor
practice provisions of the NLRA, which are concerned primarily with
the public interest in effecting federal labor policy, the duty of
fair representation targets " the wrong done the individual
employee.'" Electrical Workers v. Foust, 442 U. S.
42 , 442 U. S. 49 , n.
12 (1979) (quoting Vaca v. Sipes, 386 U.S. at 386 U. S. 182 ,
n. 8) (emphasis deleted). Thus, the remedies appropriate for unfair
labor practices may differ from the remedies for a breach of the
duty of fair representation, given the need to vindicate different
goals. Certainly, the connection between backpay under Title VII
and damages under the unfair labor practice provision of the NLRA
does not require us to find a parallel connection between Title VII
backpay and money damages for breach of the duty of fair
representation. We hold, then, that the remedy of backpay sought in this duty of
fair representation action is legal in nature. Considering both
parts of the Seventh Amendment inquiry, we find that respondents
are entitled to a jury trial on all issues presented in their
suit. IV On balance, our analysis of the nature of respondents' duty of
fair representation action and the remedy they seek convinces us
that this action is a legal one. Although the search for an
adequate 18th-century analog revealed that the claim includes both
legal and equitable issues, the money damages respondents seek are
the type of relief traditionally awarded by courts of law. Thus,
the Seventh Amendment entitles respondents Page 494 U. S. 574 to a jury trial, and we therefore affirm the judgment of the
Court of Appeals. It is so ordered. [ Footnote 1 ]

															Section 301(a) of the Labor Management Relations Act, 1947,
provides for suits by and against labor unions:

															"Suits for violation of contracts between an employer and a
labor organization representing employees in an industry affecting
commerce as defined in this chapter, or between any such labor
organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the
parties."

															61 Stat. 156, 29 U.S.C. § 185(a) (1982 ed.).

															[ Footnote 2 ] Compare Leach v. Pan American World Airways, 842 F.2d
285 (CA11 1988) (no right to a jury trial), with United
Transportation Union, Local 74 v. Consolidated Rail Corp., 881
F.2d 282 (CA6 1989) (allowing plaintiff the right to a jury trial); Terry v. Chauffeurs, Teamsters and Helpers, Local 391, 863
F.2d 334 (CA4 1988) (same); Quinn v. DiGiulian, 238
U.S.App.D.C. 247, 739 F.2d 637 (1984) (same); Roscello v.
Southwest Airlines Co., 726 F.2d 217 (CA5 1984) (same).

															[ Footnote 3 ]

															Because the NLRA, 49 Stat. 449, 29 U.S.C. § 159(a) (1982 ed.),
does not expressly create the duty of fair representation, resort
to the statute to determine whether Congress provided for a jury
trial in an action for breach of that duty is unavailing. Cf.
Curtis v. Loether, 415 U. S. 189 , 415 U. S. 192 ,
n. 6 (1974) (recognizing the " cardinal principle that this
Court will first ascertain whether a construction of the statute is
fairly possible by which the [constitutional] question may be
avoided'" (quoting United States v. Thirty-seven
Photographs, 402 U. S. 363 , 403 U. S. 369 (1971))). [ Footnote 4 ]

															JUSTICE STEVENS' analysis emphasizes a third consideration,
namely whether "the issues [presented by the claim] are typical
grist for the jury's judgment." Post at 494 U. S. 583 .
This Court, however, has never relied on this consideration "as an
independent basis for extending the right to a jury trial under the
Seventh Amendment." Tull v. United States, 481 U.
S. 412 , 481 U. S. 418 ,
n. 4 (1987). We recently noted that this consideration is relevant
only to the determination

															"whether Congress has permissibly entrusted the resolution of
certain disputes to an administrative agency or specialized court
of equity, and whether jury trials would impair the functioning of
the legislative scheme." Granfinanciera, S. A. v. Nordberg, 492 U.S. at 492 U. S. 42 , n.
4. No one disputes that an action for breach of the duty of fair
representation may properly be brought in an Article III court;
thus, the factor does not affect our analysis.

															[ Footnote 5 ]

															We later abandoned the reliance on state statutes of limitations
for § 301 actions, and instead applied the federal limitations
period for unfair labor practice charges, § 10(b) of the NLRA, 49
Stat. 453, as amended, 29 U.S.C. § 160(b) (1982 ed.), to both a §
301 claim against an employer and a duty of fair representation
claim against a union. DelCostello v. Teamsters, 462 U. S. 151 (1983).

															[ Footnote 6 ]

															The dissent characterizes this opinion as "pars[ing] legal
elements out of equitable claims. " Post at 494 U. S. 590 .
The question whether the Seventh Amendment analysis requires an
examination of the nature of each element of a typical claim is not
presented by this case. The claim we confront here is not typical;
instead, it is a claim consisting of discrete issues that would
normally be brought as two claims, one against the employer and one
against the union. Had the employer remained a defendant in this
action, the dissent would surely agree that the § 301 claim against
the employer was a separate claim. The Seventh Amendment analysis
should not turn on the ability of the plaintiff to maintain his
suit against both defendants, when the issues in the suit remain
the same even when he can sue only the union. Consideration of the
nature of the two issues in this hybrid action is therefore
warranted.

															[ Footnote 7 ]

															In United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 (1981), we found a § 301 action against the employer more analogous
to a suit to set aside an arbitration award than to a breach of
contract suit because the employee, to overturn the grievance
committee's decision, had to prove that the union violated its duty
of fair representation. Id. at 451 U. S. 62 . In
that case, we analyzed the action as a whole; in this case,
however, the Seventh Amendment requires that we treat each issue
separately. When considered by itself, the § 301 issue is closely
analogous to a breach of contract claim.

															[ Footnote 8 ]

															Both the Union and the dissent argue that the backpay award
sought here is equitable because it is closely analogous to damages
awarded to beneficiaries for a trustee's breach of trust. See
post at 494 U. S. 587 .
Such damages were available only in courts of equity, because those
courts had exclusive jurisdiction over actions involving a
trustee's breach of his fiduciary duties. See 3 W.
Fratcher, Scott on Trusts § 205, p. 240 (4th ed.1987); Restatement
(Second) of Trusts § 205(a), and comment c, illustration 2
(1959).

															The Union's argument, however, conflates the two parts of our
Seventh Amendment inquiry. Under the dissent's approach, if the
action at issue were analogous to an 18th-century action within the
exclusive jurisdiction of the courts of equity, we would
necessarily conclude that the remedy sought was also equitable
because it would have been unavailable in a court of law. This view
would, in effect, make the first part of our inquiry dispositive.
We have clearly held, however, that the second part of the inquiry
-- the nature of the relief -- is more important to the Seventh
Amendment determination. See supra at 494 U. S. 565 .
The second part of the analysis, therefore, should not replicate
the "abstruse historical" inquiry of the first part, Ross v.
Bernhard, 396 U. S. 531 , 396 U. S. 538 ,
n. 10 (1970), but requires consideration of the general types of
relief provided by courts of law and equity.

															JUSTICE BRENNAN, concurring in part and concurring in the
judgment.

															I agree with the Court that respondents seek a remedy that is
legal in nature, and that the Seventh Amendment entitles
respondents to a jury trial on their duty of fair representation
claims. I therefore join Parts I, II, III-B, and IV of the Court's
opinion. I do not join that part of the opinion which reprises the
particular historical analysis this Court has employed to determine
whether a claim is a "Sui[t] at common law" under the Seventh
Amendment, ante at 494 U. S. 564 ,
because I believe the historical test can and should be
simplified.

															The current test, first expounded in Curtis v. Loether, 415 U. S. 189 , 415 U. S. 194 (1974), requires a court to compare the right at issue to
18th-century English forms of action to determine whether the
historically analogous right was vindicated in an action at law or
in equity, and to examine whether the remedy sought is legal or
equitable in nature. However, this Court, in expounding the test,
has repeatedly discounted the significance of the analogous form of
action for deciding where the Seventh Amendment applies. I think it
is time we dispense with it altogether. [ Footnote 2/1 ] I would decide Seventh Amendment questions
on the basis of the relief sought. If the relief is legal in
nature, i.e., if it is the kind of relief that
historically was available from courts of law, I would hold that
the parties have a constitutional right to a trial by jury --
unless Congress has permissibly delegated the particular dispute to
a non-Article III decisionmaker and jury trials would Page 494 U. S. 575 frustrate Congress' purposes in enacting a particular statutory
scheme. [ Footnote 2/2 ]

															I believe that our insistence that the jury trial right hinges
in part on a comparison of the substantive right at issue to forms
of action used in English courts 200 years ago needlessly
convolutes our Seventh Amendment jurisprudence. For the past decade
and a half, this Court has explained that the two parts of the
historical test are not equal in weight, that the nature of the
remedy is more important than the nature of the right. See
ante at 494 U. S. 565 ; Granfinanciera, S. A. v. Nordberg, 492 U. S.
33 , 492 U. S. 42 (1989); Tull v. United States, 481 U.
S. 412 , 481 U. S. 421 (1987); Curtis v. Loether, supra, at 415 U. S. 196 .
Since the existence of a right to jury trial therefore turns on the
nature of the remedy, absent congressional delegation to a
specialized decisionmaker, [ Footnote
2/3 ] there remains little purpose to our rattling through dusty
attics of ancient writs. The time has come to borrow William of
Occam's razor and sever this portion of our analysis. Page 494 U. S. 576 We have long acknowledged that, of the factors relevant to the
jury trial right, comparison of the claim to ancient forms of
action, "requiring extensive and possibly abstruse historical
inquiry, is obviously the most difficult to apply." Ross v.
Bernhard, 396 U. S. 531 , 396 U. S. 538 ,
n. 10 (1970). Requiring judges, with neither the training nor time
necessary for reputable historical scholarship, to root through the
tangle of primary and secondary sources to determine which of a
hundred or so writs is analogous to the right at issue has
embroiled courts in recondite controversies better left to legal
historians. For example, in Granfinanciera, S. A. supra, decided last Term, both JUSTICE WHITE, in dissent, and I, writing
for the Court, struggled with the question whether an equity court
would have heard the suit that was comparable to the modern
statutory action at issue. I quoted Professor Garrard Glenn. Id. at 492 U. S. 44 .
JUSTICE WHITE countered that

															"[o]ther scholars have looked at the same history and come to a
different conclusion. Still others have questioned the soundness of
the distinction that Professor Glenn drew. . . . Trying to read the
ambiguous history concerning fraudulent conveyance actions in
equity. . . has perplexed jurists in each era, who have come to
conflicting decisions each time that the question has found
relevance." Id. at 492 U. S. 85 (footnote omitted). I countered with an item-by-item evaluation of
JUSTICE WHITE's sources. See id. at 492 U. S. 47 , n.
6. [ Footnote 2/4 ] Page 494 U. S. 577 To be sure, it is neither unusual nor embarrassing for members
of a court to disagree, and disagree vehemently. But it better
behooves judges to disagree within the province of judicial
expertise. Furthermore, inquiries into the appropriate historical
analogs for the rights at issue are not necessarily susceptible of
sound resolution under the best of circumstances. As one scholar
observes:

															"[T]he line between law and equity (and therefore between jury
and nonjury trial) was not a fixed and static one. There was a
continual process of borrowing by one jurisdiction from the other;
there were less frequent instances of a sloughing off of older
functions. . . . The borrowing by each jurisdiction from the other
was not accompanied by an equivalent sloughing off of functions.
This led to a very large overlap between law and equity."

															James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655,
658-659 (1963).

															In addition, modern statutory rights did not exist in the 18th
century, and even the most exacting historical research may not
elicit a clear historical analog. [ Footnote 2/5 ] The right at issue here, for example, is a
creature of modern labor law quite foreign to Georgian England. See ante at 494 U. S.
565 -566. Justice Stewart recognized the perplexities
involved in this task in his dissent in Ross v. Bernhard,
supra, at 396 U. S. 550 ,
albeit drawing a different conclusion. "The fact is," he said,

															"that there are, for the most part, no such things as inherently
'legal issues' or inherently 'equitable issues.' There are only
factual issues, and, 'like chameleons, [they] take their color from
surrounding circumstances.' Thus, the Court's 'nature of the Page 494 U. S. 578 issue' approach is hardly meaningful. [ Footnote 2/6 ]"

															I have grappled with this kind of inquiry for three decades on
this Court, and have come to the realization that engaging in such
inquiries is impracticable and unilluminating.

															To rest the historical test required by the Seventh Amendment
solely on the nature of the relief sought would not, of course,
offer the federal courts a rule that is in all cases
self-executing. Courts will still be required to ask which remedies
were traditionally available at law, and which only in equity. But
this inquiry involves fewer variables and simpler choices, on the
whole, and is far more manageable than the scholasticist debates in
which we have been engaged. Moreover, the rule I propose would
remain true to the Seventh Amendment, as it is undisputed that,
historically, "[j]urisdictional lines [between law and equity] were
primarily a matter of remedy." McCoid, Procedural Reform and the
Right to Jury Trial: A Study of Beacon Theatres, Inc. v.
Westover, 116 U.Pa.L.Rev. 1 (1967). See also Redish,
Seventh Amendment Right to Jury Trial: A Study in the Irrationality
of Rational Decision Making, 70 Nw.U.L.Rev. 486, 490 (1975) ("In
the majority of cases at common law, the equitable or legal nature
of a suit was determined not by the substantive nature of the cause
of action, but by the remedy sought"). [ Footnote 2/7 ] Page 494 U. S. 579 This is not to say that the resulting division between claims
entitled to jury trials and claims not so entitled would exactly
mirror the division between law and equity in England in 1791. But
it is too late in the day for this Court to profess that the
Seventh Amendment preserves the right to jury trial only in cases
that would have been heard in the British law courts of the 18th
century. See, e.g., Curtis v. Loether, 415 U.S. at 415 U. S. 193 ("Although the thrust of the Amendment was to preserve the right to
jury trial as it existed in 1791, it has long been settled that the
right extends beyond the common law forms of action recognized at
that time"); Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959) (rejecting the relevance of the chancellor's historic
ability to decide legal claims incidental to a case brought in
equity and holding that, in mixed cases, the parties are not only
entitled to a jury trial on the legal claims, but that this jury
trial must precede a decision on the equitable claims -- with the
attendant collateral estoppel effects); Ross v. Bernhard, 396 U. S. 531 (1970) (requiring a jury trial on the legal issues in a
shareholders' Page 494 U. S. 580 derivative suit even though the procedurally equivalent suit in
the 18th century would have been heard only in equity).

															Indeed, given this Court's repeated insistence that the nature
of the remedy is always to be given more weight than the nature of
the historically analogous right, it is unlikely that the
simplified Seventh Amendment analysis I propose will result in
different decisions than the analysis in current use. In the
unusual circumstance that the nature of the remedy could be
characterized equally as legal or equitable, I submit that the
comparison of a contemporary statutory action unheard of in the
18th century to some ill-fitting ancient writ is too shaky a basis
for the resolution of an issue as significant as the availability
of a trial by jury. If, in the rare case, a tie-breaker is needed,
let us break the tie in favor of jury trial. [ Footnote 2/8 ]

															What Blackstone described as "the glory of the English law" and
"the most transcendent privilege which any subject can enjoy," 3 W.
Blackstone, Commentaries *379, was crucial in the eyes of those who
founded this country. The encroachment on civil jury trial by
colonial administrators was a "deeply divisive issue in the years
just preceding the outbreak of hostilities between the colonies and
England," and all 13 States reinstituted the right after
hostilities ensued. Wolfram, The Constitutional History of the
Seventh Amendment, 57 Minn.L.Rev. 639, 654-655 (1973). "In fact, [t]he right to trial by jury was probably the only one
universally secured by the first American constitutions.'" Id. at 655 (quoting L. Levy, Freedom of Speech and Press
in Early American History -- Legacy of Suppression 281 (1963
reprint)). Fear of a Federal Government that had not
guaranteed Page 494 U. S. 581 jury trial in civil cases, voiced first at the Philadelphia
Convention in 1787 and regularly during the ratification debates,
was the concern that precipitated the maelstrom over the need for a
bill of rights in the United States Constitution. Wolfram, supra, at 657-660.

															This Court has long recognized the caliber of this right. In Parsons v.
Bedford , 3 Pet. 433, 28 U. S. 446 (1830), Justice Story stressed:

															"The trial by jury is justly dear to the American people. It has
always been an object of deep interest and solicitude, and every
encroachment upon it has been watched with great jealousy."

															Similarly, in Jacob v. New York City, 315 U.
S. 752 , 315 U. S. 752 -753
(1942), we said that

															"[t]he right of jury trial in civil cases at common law is a
basic and fundamental feature of our system of federal
jurisprudence . . . [a] right so fundamental and sacred to the
citizen [that it] should be jealously guarded by the courts."

															We can guard this right and save our courts from needless and
intractable excursions into increasingly unfamiliar territory
simply by retiring that prong of our Seventh Amendment test which
we have already cast into a certain doubt. If we are not prepared
to accord the nature of the historical analog sufficient weight for
this factor to affect the outcome of our inquiry, except in the
rarest of hypothetical cases, what reason do we have for insisting
that federal judges proceed with this arduous inquiry? It is time
we read the writing on the wall, especially as we ourselves put it
there.

															[ Footnote 2/1 ]

															I therefore also do not join Part III-A of JUSTICE MARSHALL's
opinion because it considers which 18th-century actions are
comparable to the modern-day statutory claim brought here.

															[ Footnote 2/2 ]

															As the majority notes, ante at 494 U. S. 565 ,
n. 4, where Congress has delegated a particular claim to an
administrative agency or specialized court of equity, a court must
consider whether the delegation is a permissible one and "whether
jury trials would impair the functioning of the legislative
scheme." Granfinanciera, S. A. v. Nordberg, 492 U. S.
33 , 492 U. S. 42 , n.
4 (1989). These questions are not implicated in this case, as it is
undisputed that an action for breach of the duty of fair
representation may be brought in an Article III court. Ante at 494 U. S. 565 ,
n. 4.

															[ Footnote 2/3 ]

															Even where Congress has assigned resolution of a dispute to a
specialized forum, the right to a jury trial does not turn on
whether the analogous 18th-century action was legal or equitable.
As we explained in Granfinanciera, S. A. supra, at 492 U. S. 42 and
n. 4, a court first looks to the analogous historical form of
action and the nature of the relief sought, alloting greater weight
to the nature of the relief. If this inquiry leads the court to
conclude that the party is entitled to a jury trial, the court must
consider whether the party is asserting a public right or private
right -- a distinction contingent on the government's role in
creating the right, see 492 U.S. at 492 U. S. 42 , n.
4 -- and whether jury trials would impair the functioning of the
legislative scheme. The result of the search for a historical
analog is subordinate to the nature of the relief sought and
irrelevant to the subsequent inquiry.

															[ Footnote 2/4 ]

															The lower courts have not had an easier time of it. In Danuk
v v. Zavatt, 289 F.2d 46 (CA2 1961), Judge Friendly, writing
for the majority, admitted that his exegesis of the history of the
Court of Exchequer from the 12th to the 18th century "may seem to
reek unduly of the study." Id. at 48. Judge Clark, in
dissent, quipped " if not of the museum,'" id. at 59,
and denounced the majority for constructing its argument of "unreal
and unjustified" steps beginning with the attachment to the claim
of "an inapt label, namely, that of the writ of debt," which "as
set forth, say, in Chitty" did not look to Judge Clark like the
modern statutory tax claims at issue. Ibid. He called this
a "venture in nomenclature" and berated the majority for its fast
reliance on "somewhat uncertain history" as well. Ibid. [ Footnote 2/5 ] See also McCoid, Procedural Reform and the Right to
Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U.Pa.L.Rev. 1, 2 (1967) ("[C]omplications stem from historical
shifts and overlapping jurisdiction. Moreover, the careful
historian encounters difficulty in applying the fruits of his study
to contemporary civil litigation involving subject matter and
procedural patterns unused, and sometimes unknown, in 1791")
(footnotes omitted).

															[ Footnote 2/6 ]

															Quoting James, Right to a Jury Trial in Civil Actions, 72 Yale
L.J. 655, 692 (1963).

															[ Footnote 2/7 ]

															There are, to be sure, some who advocate abolishing the
historical test altogether. See, e.g., Wolfram, The
Constitutional History of the Seventh Amendment, 57 Minn.L.Rev.
639, 742-747 (1973). Contrary to the intimations in JUSTICE
KENNEDY's dissent, see post at 494 U. S.
592 -594, I am not among them. I believe that it is
imperative to retain a historical test for determining when parties
have a right to jury trial for precisely the same reasons JUSTICE
KENNEDY does. It is mandated by the language of the Seventh
Amendment, and it is a bulwark against those who would restrict a
right our forefathers held indispensable. Like JUSTICE KENNEDY, I
have no doubt that courts can and do look to legal history for the
answers to constitutional questions, see post at 494 U. S.
593 -594, and therefore the Seventh Amendment test I
propose today obliges courts to do exactly that.

															Where JUSTICE KENNEDY and I differ is in our evaluations of
which historical test provides the more reliable results. That
three learned Justices of the Supreme Court cannot arrive at the
same conclusion in this very case, on what is essentially a
question of fact, does not speak well for the judicial solvency of
the current test. My concern is not merely the competence of courts
to delve into this peculiarly recalcitrant aspect of legal history,
and certainly not, as JUSTICE KENNEDY summarizes it, the
"competence of the Court to understand legal history" in general. Post at 494 U. S. 594 .
My concern is that, all too often, the first prong of the current
test requires courts to measure modern statutory actions against
18th-century English actions so remote in form and concept that
there is no firm basis for comparison. In such cases, the result is
less the discovery of a historical analog than the manufacture of a
historical fiction. By contrast, the nature of relief available
today corresponds more directly to the nature of relief available
in Georgian England. Thus the historical test I propose, focusing
on the nature of the relief sought, is not only more manageable
than the current test, it is more reliably founded in history.

															[ Footnote 2/8 ] See also Granfinanciera, S. A., 492 U.S. at 492 U. S. 92 (BLACKMUN, J., dissenting) ("The uncertainty in the historical
record should lead us, for purposes of the present inquiry, to give
the constitutional right to a jury trial the benefit of the
doubt").

															JUSTICE STEVENS, concurring in part and concurring in the
judgment.

															Because I believe the Court has made this case unnecessarily
difficult by exaggerating the importance of finding a precise
common law analogue to the duty of fair representation, I do not
join Part III-A of its opinion. Ironically, by stressing the
importance of identifying an exact analogue, the Court has
diminished the utility of looking for any analogue. Page 494 U. S. 582 As I have suggested in the past, I believe the duty of fair
representation action resembles a common law action against an
attorney for malpractice more closely than it does any other form
of action. See United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , 451 U. S. 74 (1981) (opinion concurring in part and dissenting in part). Of
course, this action is not an exact counterpart to a malpractice
suit. Indeed, by definition, no recently recognized form of action
-- whether the product of express congressional enactment or of
judicial interpretation -- can have a precise analog in 17th- or
18th-century English law. Were it otherwise, the form of action
would not in fact be "recently recognized."

															But the Court surely overstates this action's similarity to an
action against a trustee. Collective bargaining involves no
settlor, no trust corpus, and no trust instrument executed to
convey property to beneficiaries chosen at the settlor's pleasure.
Nor are these distinctions reified matters of pure form. The law of
trusts originated to expand the varieties of land ownership in
feudal England, and evolved to protect the paternalistic
beneficence of the wealthy, often between generations and always
over time. See 1 W. Fratcher, Scott on Trusts § 1 (4th
ed.1987); L. Friedman, A History of American Law 212, 222-223
(1973). Beneficiaries are protected from their own judgment.
[ Footnote 3/1 ] The attorney-client
relationship, by contrast, advances the client's interests in
dealings with adverse parties. Clients are saved from their lack of
skill, but their judgment is honored. Union members, as a group,
accordingly have the power to hire, fire, and direct the actions of
their representatives -- prerogatives anathema to the paternalistic
forms of the equitable trust. [ Footnote
3/2 ] Page 494 U. S. 583 Equitable reasoning calibrated by the sophisticated judgment of
the jurist, the accountant, and the chancellor is thus
appropriately invoked when the impact of a trustee's conduct on the
future interests of contingent remaindermen must be reviewed.
However, the common sense understanding of the jury, selected to
represent the community, is appropriately invoked when disputes in
the factory, the warehouse, and the garage must be resolved. In
most duty of fair representation cases, the issues, which require
an understanding of the realities of employment relationships, are
typical grist for the jury's judgment. Indeed, the law defining the
union's duty of fair representation has developed in cases tried to
juries. Thus, Vaca v. Sipes, 386 U.
S. 171 (1967), was itself a jury trial as were, for
example, Electrical Workers v. Foust, 442 U. S.
42 (1979), and Bowen v. United States Postal
Service, 459 U. S. 212 (1983).

															As the Court correctly observed in Curtis v. Loether, 415 U. S. 189 , 415 U. S. 195 (1974),

															"in an ordinary civil action in the district courts, where there
is obviously no functional justification for denying the jury trial
right, a jury trial must be available if the action involves rights
and remedies of the sort typically enforced in an action at
law."

															As I had occasion to remark at an earlier proceeding in the same
case, the relevant historical question is not whether a suit was
"specifically recognized at common law," but whether "the nature of
the substantive right asserted . . . is analogous to common law
rights," and whether the relief sought is "typical of an action at
law." Rogers v. Loether, 467 F.2d 1110, 1116-1117 (CA7
1972). Duty of fair representation suits are for the most part
ordinary civil actions involving the stuff of contract and
malpractice disputes. There is accordingly no ground for excluding
these actions from the jury right.

															In my view, the evolution of this doctrine through suits tried
to juries, the useful analogy to common law malpractice Page 494 U. S. 584 cases, and the well-recognized duty to scrutinize any proposed
curtailment of the right to a jury trial "with the utmost care," ante at 494 U. S. 565 ,
provide a plainly sufficient basis for the Court's holding today. I
therefore join its judgment and all of its opinion except for Part
III-A.

															[ Footnote 3/1 ]

															"The duties of the trustee are such as the creator of the trust
may choose to impose; the interests of the beneficiaries are such
as he may choose to confer upon them."

															1 Fratcher, Scott on Trusts § 1, p. 2.

															[ Footnote 3/2 ]

															Indeed, to make sense of the trust analogy, the majority must
apparently be willing to assume that the union members, considered
collectively, are both beneficiary and settlor, and that the
settlor retains considerable power over the corpus, including the
power to revoke the trust. That is an odd sort of trust.

															JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SCALIA
join, dissenting.

															This case asks whether the Seventh Amendment guarantees the
respondent union members a jury trial in a duty of fair
representation action against their labor union. The Court is quite
correct, in my view, in its formulation of the initial premises
that must govern the case. Under Curtis v. Loether, 415 U. S. 189 , 415 U. S. 194 (1974), the right to a jury trial in a statutory action depends on
the presence of "legal rights and remedies." To determine whether
rights and remedies in a duty of fair representation action are
legal in character, we must compare the action to the 18th-century
cases permitted in the law courts of England, and we must examine
the nature of the relief sought. See Granfinanciera, S. A. v.
Nordberg, 492 U. S. 33 , 492 U. S. 42 (1989). I agree also with those Members of the Court who find that
the duty of fair representation action resembles an equitable trust
action more than a suit for malpractice. See ante at 494 U. S.
568 -569.

															I disagree with the analytic innovation of the Court that
identification of the trust action as a model for modern duty of
fair representation actions is insufficient to decide the case. The
Seventh Amendment requires us to determine whether the duty of fair
representation action "is more similar to cases that were tried in
courts of law than to suits tried in courts of equity." Tull v.
United States, 481 U. S. 412 , 481 U. S. 417 (1987). Having made this decision in favor of an equitable action,
our inquiry should end. Because the Court disagrees with this
proposition, I dissent. Page 494 U. S. 585 I Both the Union and the respondents identify historical actions
to which they find the duty of fair representation action most
analogous. The Union contends that the action resembles a
traditional equitable suit by a beneficiary against a trustee for
failing to pursue a claim that he holds in trust. See, e.g.,
Caffrey v. Darby, 6 Ves. Jun. 489, 495-496, 31 Eng.Rep. 1159,
1162 (Ch. 1801); Restatement (Second) of Trusts § 205(a), and
Illustration 2, pp. 458, 459 (1957) (Restatement). In other words,
the Union compares itself to a trustee that, in its discretion, has
decided not to press certain claims. The respondents argue that the
duty of fair representation action resembles a traditional legal
malpractice suit by a client against his lawyer for mishandling a
claim. See, e.g., Pitt v. Yalden, 4 Burr. 2060, 98
Eng.Rep. 74 (K.B. 1767); Russell v. Palmer, 2 Wils. K.B.
325, 95 Eng.Rep. 837 (1767). They contend that the Union, when
acting as their legal representative, had a duty to press their
grievances.

															JUSTICE MARSHALL, speaking for four Members of the Court, states
an important and correct reason for finding the trust model better
than the malpractice analogy. He observes that the client of an
attorney, unlike a union member or beneficiary, controls the
significant decisions concerning his litigation, and can fire the
attorney if not satisfied. See ante at 494 U. S.
568 -569. Put another way, although a lawyer acts as an
agent of his client, unions and trustees do not serve as agents of
their members and beneficiaries in the conventional sense of being
subject to their direction and control in pursuing claims. An
individual union member cannot require his union to pursue a claim,
and cannot choose a different representative. See 29
U.S.C. § 159(a) (1982 ed.) (making the union elected by the
employees in a bargaining unit the exclusive representative); Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 177 (1967) (allowing a union to exercise discretion in fulfilling its
duty of fair representation). A trustee, likewise, may exercise Page 494 U. S. 586 proper discretion in deciding whether to press claims held in
trust, see Blue v. Marshall, 3 P. Wms. 381, 383-384, 24
Eng.Rep. 1110, 1111 (Ch. 1735); Restatement, supra, § 192,
and in general does not act as an agent of his beneficiaries, see Taylor v. Davis, 110 U. S. 330 ,
334-335 (1884) ("A trustee is not an agent. An agent represents and
acts for his principal. . . . [A trustee] has no principal"); 1 A.
Scott, Law of Trusts § 8, pp. 74-79 (3d ed.1967) (distinguishing
trustees from agents).

															Further considerations fortify the conclusion that the trust
analogy is the controlling one here. A union's duty of fair
representation accords with a trustee's duty of impartiality. The
duty of fair representation requires a union "to make an honest
effort to serve the interests of all of [its] members, without
hostility to any." Ford Motor Co. v. Huffman, 345 U.
S. 330 , 345 U. S. 337 (1953). This standard may require a union to act for the benefit of
employees who, as in this case, have antithetical interests. See Cox, The Legal Nature of Collective Bargaining
Agreements, 57 Mich.L.Rev. 1, 21 (1958). Trust law, in a similar
manner, long has required trustees to serve the interests of all
beneficiaries with impartiality. See Stuart v. Stuart, 3
Beav. 430, 431, 49 Eng.Rep. 169, 169-170 (1841); Restatement, supra, § 183 ("When there are two or more beneficiaries of
a trust, the trustee is under a duty to deal impartially with
them"); 2 Scott, supra, § 183, pp. 1471-1472, and n.
2.

															A lawyer's duty of loyalty is cast in different terms. Although
the union is charged with the responsibility of reconciling the
positions of its members, the lawyer's duty of loyalty long has
precluded the representation of conflicting interests. See
Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me.
1824) (Story, J.); H. Drinker, Legal Ethics 103 (1953) (describing
the ancient history of the prohibition on simultaneous
representation). A lawyer, at least absent knowing waiver by the
parties, could not represent both the respondents and the senior
laid-off workers as the Page 494 U. S. 587 Union has done in this case. Cf. ABA Model Rules of
Professional Conduct 1.7(b) (1984); ABA Model Code of Professional
Responsibility DR 5-l05(C) (1980).

															The relief available in a duty of fair representation action
also makes the trust action the better model. To remedy a breach of
the duty of fair representation, a court must issue an award
"fashioned to make the injured employee whole." Electrical
Workers v. Foust, 442 U. S. 42 , 442 U. S. 49 (1979); see Steele v. Louisville & Nashville R. Co., 323 U. S. 192 , 323 U. S.
206 -207 (1944); Vaca v. Sipes, supra, at 386 U. S. 187 .
The court may order an injunction compelling the union, if it is
still able, to pursue the employee's claim, and may require
monetary compensation, but it cannot award exemplary or punitive
damages. See Foust, supra, at 442 U. S. 52 .
This relief parallels the remedies prevailing in the courts of
equity in actions against trustees for failing to pursue claims. See, e.g., Caffrey v. Darby, supra, at 497, 31 Eng.Rep. at
1163 (ordering the trustee to make a beneficiary whole for failing
to make a timely claims); see also Restatement, supra, § 205, and Comment a; G. Bogert & G. Bogert,
Law of Trusts and Trustees § 862, p. 40, n. 10 (rev.2d
ed.1982).

															These remedies differ somewhat from those available in attorney
malpractice actions. Because legal malpractice was a common law
claim, clients sued their attorneys for breach of professional
obligations in the law courts. See R. Mallen & V.
Levit, Legal Malpractice §§ 4 and 5, pp. 14-18 (2d ed.1981). No one
maintains that clients could obtain from these courts the
injunctive relief offered in duty of fair representation actions.
The evidence suggests that compensatory damages in malpractice
cases resembled the monetary relief now awarded in duty of fair
representation actions. See, e.g., Pitt v. Yalden, supra, at 2062, 98 Eng.Rep. at 75-76 (opinion of Yates, J.) (discussing
the measure of damages). Yet, as a historical matter, juries did
have the authority to award exemplary damages in at least some tort
actions. See Browning-Ferris Industries v.
Kelco Disposal, Inc. , 492 Page 494 U. S. 588 U.S. 257, 492 U. S. 274 ,
and n. 20 (1989); Curtis v. Loether, 415 U.S. at 415 U. S. 196 .
Although the parties have not cited any punitive damage award in an
attorney malpractice action prior to 1791, courts have awarded such
damages since the 19th century. See Mallen & Levit, supra, § 315, pp. 365-367; Wade, The Attorney's Liability
for Negligence, 12 Vand.L.Rev. 755, 772 (1959).

															For all these reasons, the suit here resembles a trust action,
not a legal malpractice action. By this I do not imply that a union
acts as a trustee in all instances or that trust law, as a general
matter, should inform any particular aspects of federal labor law.
Obvious differences between a union and a trustee will exist in
other contexts. I would conclude only that, under the analysis
directed by our precedents, the respondents may not insist on a
jury trial. When all rights and remedies are considered, their
action resembles a suit heard by the courts of equity more than a
case heard by the courts of law. See Tull, 481 U.S. at 481 U. S. 417 .
From this alone it follows that the respondents have no jury trial
right on their duty of fair representation claims against the
Union. II The Court relies on two lines of precedents to overcome the
conclusion that the trust action should serve as the controlling
model. The first consists of cases in which the Court has
considered simplifications in litigation resulting from modern
procedural reforms in the federal courts. JUSTICE MARSHALL asserts
that these cases show that the Court must look at the character of
individual issues, rather than claims as a whole. See ante at 494 U. S. 569 .
The second line addresses the significance of the remedy in
determining the equitable or legal nature of an action for the
purpose of choosing the most appropriate analogy. Under these
cases, the Court decides that the respondents have a right to a
jury because they seek money damages. See ante at 494 U. S.
570 -573. These authorities do not support the Court's
holding. Page 494 U. S. 589 A In three cases we have found a right to trial by jury where
there are legal claims that, for procedural reasons, a plaintiff
could have or must have raised in the courts of equity before the
systems merged. In Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), Fox, a potential defendant threatened with legal antitrust
claims, brought an action for declaratory and injunctive relief
against Beacon, the likely plaintiff. Because only the courts of
equity had offered such relief prior to the merger of the two court
systems, Fox had thought that it could deprive Beacon of a jury
trial. Beacon, however, raised the antitrust issues as
counterclaims and sought a jury. We ruled that, because Beacon
would have had a right to a jury trial on its antitrust claims, Fox
could not deprive it of a jury merely by taking advantage of modern
declaratory procedures to sue first. The result was consistent with
the spirit of the Federal Rules of Civil Procedure, which allow
liberal joinder of legal and equitable actions, and the Declaratory
Judgment Act, 28 U.S.C. §§ 2201, 2202 (1982 ed.), which preserves
the right to jury trial to both parties. See 359 U.S. at 359 U. S.
509 -510.

															In Dairy Queen, Inc. v. Wood, 369 U.
S. 469 (1962), we held, in a similar manner, that a
plaintiff, by asking in his complaint for an equitable accounting
for trademark infringement, could not deprive the defendant of a
jury trial on contract claims subsumed within the accounting.
Although a court of equity would have heard the contract claims as
part of the accounting suit, we found them severable under modern
procedure. See id. at 369 U. S.
477 -479.

															In Ross v. Bernhard, 396 U. S. 531 (1970), a shareholder-plaintiff demanded a jury trial in a
derivative action asserting a legal claim on behalf of his
corporation. The defendant opposed a jury trial. In deciding the
case, we recognized that only the courts of equity had procedural
devices allowing shareholders to raise a corporation's claims. We
nonetheless Page 494 U. S. 590 again ruled that modern procedure allowed trial of the legal
claim to a jury. See id. at 396 U. S.
542 .

															These three cases responded to the difficulties created by a
merged court system. See McCoid, Procedural Reform and the
Right to Jury Trial: A Study of Beacon Theatres, Inc. v.
Westover, 116 U.Pa.L.Rev. 1 (1967). They stand for the
proposition that, because distinct courts of equity no longer
exist, the possibility or necessity of using former equitable
procedures to press a legal claim no longer will determine the
right to a jury. JUSTICE MARSHALL reads these cases to require a
jury trial whenever a cause of action contains legal issues and
would require a jury trial in this case because the respondents
must prove a breach of the collective bargaining agreement as one
element of their claim. See ante at 494 U. S.
569 -570.

															I disagree. The respondents, as shown above, are asserting an
equitable claim. Having reached this conclusion, the Beacon,
Dairy Queen, and Ross cases are inapplicable.
Although we have divided self-standing legal claims from equitable
declaratory, accounting, and derivative procedures, we have never
parsed legal elements out of equitable claims absent specific
procedural justifications. Actions which, beyond all question, are
equitable in nature may involve some predicate inquiry that would
be submitted to a jury in other contexts. For example, just as the
plaintiff in a duty of fair representation action against his union
must show breach of the collective bargaining agreement as an
initial matter, in an action against a trustee for failing to
pursue a claim, the beneficiary must show that the claim had some
merit. See 3 A. Scott, Law of Trusts § 192, pp. 1589-1590,
and n. 6 (3d ed.1967). But the question of the claim's validity,
even if the claim raises contract issues, would not bring the jury
right into play in a suit against a trustee.

															Our own writing confirms the consistency of this view with
respect to the action before us. We have not deemed the elements of
a duty of fair representation action to be independent of each
other. Proving breach of the collective Page 494 U. S. 591 bargaining agreement is but a preliminary and indispensable step
to obtaining relief in a duty of fair representation action. We
have characterized the breach of contract and duty issues as
"inextricably interdependent," and have said that,

															"[t]o prevail against either the company or the Union, . . .
[employee-plaintiffs] must not only show that their discharge was
contrary to the contract, but must also carry the burden of
demonstrating breach of duty by the Union." DelCostello v. Teamsters, 462 U.
S. 151 , 462 U. S.
164 -165 (1983) (internal quotation marks omitted). The
absence of distinct equitable courts provides no procedural reason
for wresting one of these elements from the other.

															The Court also rules that, despite the appropriateness of the
trust analogy as a whole, the respondents have a right to a jury
trial because they seek money damages. See ante at 494 U. S.
570 -573. The nature of the remedy remains a factor of
considerable importance in determining whether a statutory action
had a legal or equitable analog in 1791, but we have not adopted a
rule that a statutory action permitting damages is, by definition,
more analogous to a legal action than to any equitable suit. In
each case, we look to the remedy to determine whether, taken with
other factors, it places an action within the definition of "Suits
at common law."

															In Curtis, 415 U.S. at 415 U. S.
195 -196, for example, we ruled that the availability of
actual and punitive damages made a statutory antidiscrimination
action resemble a legal tort action more than any equitable action.
We made explicit that we did not "go so far as to say that any
award of monetary relief must necessarily be legal' relief." Id. at 415 U. S. 196 .
Although monetary damages might cause some statutory actions to
resemble tort suits, the presence of monetary damages in this duty
of fair representation action does not make it more analogous to a
legal action than to an equitable action. Indeed, as shown above,
the injunctive and monetary remedies Page 494 U. S. 592 available make the duty of fair representation suit less
analogous to a malpractice action than to a suit against a
trustee.

															In Tull, 481 U.S. at 481 U. S. 422 ,
the availability of damages again played a critical role in
determining the right to a jury trial. In an environmental suit by
the Government for injunctive relief and a civil penalty, both an
equitable public nuisance action and a legal action in debt seemed
appropriate historical models. We decided between them by noting
that only the courts of law could award civil penalties. See
id. at 481 U. S.
422 -425. In the present case, however, one cannot
characterize both the trust analogy and the legal malpractice
comparisons as appropriate; the considerations discussed above,
including the remedy available, all make the trust model superior.
As we stated in Tull, "[o]ur search is for a single historical analog, taking into
consideration the nature of the cause of action and the remedy as
two important factors." Id. at 481 U. S. 422 ,
n. 6. The trust action alone satisfies this standard.

															In Granfinanciera, S. A. v. Nordberg, 492 U. S.
33 (1989), we again found the presence of monetary
relief critical in determining the nature of a statutory action as
a whole. We held that, despite some evidence that both the courts
of law and equity had jurisdiction over fraudulent conveyances,
only a court of law could entertain an action to recover an alleged
fraudulent transfer of a determinate sum of money. See id. at 492 U. S. 43 -47.
As in Curtis and Tull, however, the particular
importance of monetary damages in Granfinanciera does not
carry forward into this case. The courts of equity could and did
award the kind of damages sought by the respondents here. The
respondents' mere request for backpay in no way entitles them to a
jury under the Seventh Amendment.

															The Court must adhere to the historical test in determining the
right to a jury, because the language of the Constitution Page 494 U. S. 593 requires it. The Seventh Amendment "preserves" the right to jury
trial in civil cases. We cannot preserve a right existing in 1791
unless we look to history to identify it. Our precedents are in
full agreement with this reasoning, and insist on adherence to the
historical test. No alternatives short of rewriting the
Constitution exist. See F. James, Civil Procedure § 8.5,
p. 352 (1965) ("For good or evil, both the constitutio[n] and the
charters of the merged procedure embody the policy judgment, quite
deliberately made, to leave the extent of jury trial about where
history had come to place it"); Shapiro & Coquillette, The
Fetish of Jury Trial in Civil Cases: A Comment on Rachal v.
Hill, 85 Harv.L.Rev. 442, 449 (1971) ("Even the most ardent
critic of any historical test would concede that matters that would
have fallen entirely within the jurisdiction of a court of equity
or admiralty in 1791 do not come within the definition of a suit at common law' under the seventh amendment"). If we abandon the
plain language of the Constitution to expand the jury right, we may
expect Courts with opposing views to curtail it in the
future. It is true that a historical inquiry into the distinction
between law and equity may require us to enter into a domain
becoming less familiar with time. Two centuries have passed since
the Seventh Amendment's ratification, and the incompleteness of our
historical records makes it difficult to know the nature of certain
actions in 1791. The historical test, nonetheless, has received
more criticism than it deserves. Although our application of the
analysis in some cases may seem biased in favor of jury trials, the
test has not become a nullity. We do not require juries in all
statutory actions. See, e.g., Lehman v. Nakshian, 453 U. S. 156 , 453 U. S. 162 ,
n. 9 (1981) (no jury trial right in suits against the United
States); Katchen v. Landy, 382 U.
S. 323 , 382 U. S.
337 -340 (1966) (no jury trial right on certain
bankruptcy claims); Luria v. United States, 231 U. S.
9 , 231 U. S. 27 -28
(1913) (no jury trial right in action to cancel naturalization).
The historical test, in fact, resolves most cases without
difficulty. See C. Wright, Law Page 494 U. S. 594 of Federal Courts § 92, p. 609 (4th ed.1983) ("[T]he vast and
controversial literature that has developed as to the scope of the
jury right is, fortunately, not in proportion to the practical
importance of the problem in the actual working of the
courts").

															I would hesitate to abandon or curtail the historical test out
of concern for the competence of the Court to understand legal
history. We do look to history for the answers to constitutional
questions. See, e.g., Fay v. Noia, 372 U.
S. 391 , 372 U. S.
399 -415 (1963) (opinion of BRENNAN, J.); Atascadero
State Hospital v. Scanlon, 473 U. S. 234 , 473 U. S.
260 -302 (1985) (BRENNAN, J., dissenting). Although
opinions will differ on what this history shows, the approach has
no less validity in the Seventh Amendment context than
elsewhere.

															If Congress has not provided for a jury trial, we are confined
to the Seventh Amendment to determine whether one is required. Our
own views respecting the wisdom of using a jury should be put
aside. Like JUSTICE BRENNAN, I admire the jury process. Other
judges have taken the opposite view. See, e.g., J. Frank,
Law and the Modern Mind 170-185 (1931). But the judgment of our own
times is not always preferable to the lessons of history. Our whole
constitutional experience teaches that history must inform the
judicial inquiry. Our obligation to the Constitution and its Bill
of Rights, no less than the compact we have with the generation
that wrote them for us, do not permit us to disregard provisions
that some may think to be mere matters of historical form. IV Because of the employer's bankruptcy, the respondents are
proceeding only against the Union in the suit before us. In a
typical duty of fair representation action, however, union members
may sue both their union and their employer. See Vaca v.
Sipes, 386 U.S. at 386 U. S. 186 .
The Union argues that a duty of fair representation action against
an employer also would have an equitable character because it
resembles another Page 494 U. S. 595 trust action entertained in the courts of equity. It contends
that, if a trustee fails to pursue a claim according to his duty,
the beneficiary may join the trustee and the third party in one
action and assert in his own name both the claim of breach of
fiduciary duty and the claim against the third party. See Restatement § 282(1), p. 44 (1957); 4 A. Scott, Law of Trusts §
282.1, pp. 2338-2340 (3d ed.1967); Bowen v. United States
Postal Service, 459 U. S. 212 , 459 U. S. 243 (1983) (WHITE, J., concurring in judgment in part and dissenting in
part). In this case, we do not have to determine the correctness of
this analogy, nor must we decide whether Beacon, Dairy
Queen, or Ross would require a jury trial in a suit
against an employer. I would deny a jury trial to the respondents
here, but would leave these other questions for a later time.
Because the Court has reached a different result, I dissent.


U.S. Supreme Court Temple v. Synthes Corp., Ltd., 498 U.S. 5 (1990) Temple v. Synthes Corporation,
Ltd. No. 90-295 Decided Nov. 5, 1990 498 U.S.
5 ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT PER CURIAM. Petitioner Temple, a Mississippi
resident, underwent surgery in October, 1986, in which a "plate and
screw device" was implanted in his lower spine. The device was
manufactured by respondent Synthes, Ltd. (U.S.A.) (Synthes), a
Pennsylvania corporation. Dr. S. Henry LaRocca performed the
surgery at St. Charles General Hospital in New Orleans, Page
498 U. S. 6 Louisiana. Following surgery, the
device's screws broke off inside Temple's back. Temple filed suit against Synthes in
the United States District Court for the Eastern District of
Louisiana. The suit, which rested on diversity jurisdiction,
alleged defective design and manufacture of the device. At the same
time, Temple filed a state administrative proceeding against Dr.
LaRocca and the hospital for malpractice and negligence. At the
conclusion of the administrative proceeding, Temple filed suit
against the doctor and the hospital in Louisiana state
court. Synthes did not attempt to bring the
doctor and the hospital into the federal action by means of a
third-party complaint, as provided in Federal Rule of Civil
Procedure 14(a). Instead, Synthes filed a motion to dismiss
Temple's federal suit for failure to join necessary parties
pursuant to Federal Rule of Civil Procedure 19. Following a
hearing, the District Court ordered Temple to join the doctor and
the hospital as defendants within twenty days or risk dismissal of
the lawsuit. According to the court, the most significant reason
for requiring joinder was the interest of judicial economy. App. C
to Pet. for Cert. A-12. The court relied on this Court's decision
in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968), wherein we recognized that one focus of Rule 19 is "the
interest of the courts and the public in complete, consistent, and
efficient settlement of controversies." Id. at 390 U. S. 111 .
When Temple failed to join the doctor and the hospital, the court
dismissed the suit with prejudice. Temple appealed, and the United States Court of Appeals for the
Fifth Circuit affirmed. 898 F.2d 152 (1990) (judgment order). The
court deemed it "obviously prejudicial to the defendants to have
the separate litigations being carried on," because Synthes'
defense might be that the plate was not defective, but that the
doctor and the hospital were negligent, while the doctor and
hospital, on the other hand, might claim that they were not
negligent, but that the plate was defective. Page 498 U. S. 7 App. A to Pet. for Cert. A-3. The Court of Appeals found that
the claims overlapped and that the District Court therefore had not
abused its discretion in ordering joinder under Rule 19. A petition
for rehearing was denied.

															In his petition for certiorari to this Court, Temple contends
that it was error to label joint tortfeasors as indispensable
parties under Rule 19(b) and to dismiss the lawsuit with prejudice
for failure to join those parties. We agree. Synthes does not deny
that it, the doctor, and the hospital are potential joint
tortfeasors. It has long been the rule that it is not necessary for
all joint tortfeasors to be named as defendants in a single
lawsuit. See Lawlor v. National Screen Service Corp., 349 U. S. 322 , 349 U. S.
329 -330 (1955); Bigelow v. Old Dominion Copper
Mining & Smelting Co., 225 U. S. 111 , 225 U. S. 132 (1912). See also Nottingham v. General American Communications
Corp., 811 F.2d 873, 880 (CA5) (per curiam ), cert.
denied, 484 U.S. 854 (1987). Nothing in the 1966 revision of
Rule 19 changed that principle. See Provident Bank, supra, 390 U.S. at 390 U. S.
116 -117, n. 12. The Advisory Committee Notes to Rule
19(a) explicitly state that

															"a tortfeasor with the usual 'joint-and-several' liability is
merely a permissive party to an action against another with like
liability."

															Advisory Committee's Notes on Fed.Rule Civ. Proc. 19, 28
U.S.C.App., p. 594, at 595. There is nothing in Louisiana tort law
to the contrary. See Mullin v. Skains, 252 La. 1009, 1014, 215 So. 2d
643 , 645 (1968); La.Civ.Code Ann., Arts. 1794, 1795 (West
1987).

															The opinion in Provident Bank, supra, does speak of the
public interest in limiting multiple litigation, but that case is
not controlling here. There, the estate of a tort victim brought a
declaratory judgment action against an insurance company. We
assumed that the policyholder was a person "who, under § (a),
should be joined if feasible.'" 390 U.S. at 390 U. S. 108 ,
and went on to discuss the appropriate analysis under Rule 19(b),
because the policyholder could not be joined without destroying
diversity. Id. at 109-116. After examining the factors set
forth in Rule 19(b), we determined that the Page 498 U. S. 8 action could proceed without the policyholder; he therefore was
not an indispensable party whose absence required dismissal of the
suit. Id. at 390 U. S. 116 , 390 U. S.
119 .

															Here, no inquiry under Rule 19(b) is necessary, because the
threshold requirements of Rule 19(a) have not been satisfied. As
potential joint tortfeasors with Synthes, Dr. LaRocca and the
hospital were merely permissive parties. The Court of Appeals erred
by failing to hold that the District Court abused its discretion in
ordering them joined as defendants and in dismissing the action
when Temple failed to comply with the court's order. For these
reasons, we grant the petition for certiorari, reverse the judgment
of the Court of Appeals for the Fifth Circuit, and remand for
further proceedings consistent with this opinion. It is so ordered.