Chauffeurs Teamsters and Helpers Local No. 391 v. Terry/Dissent Kennedy

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, 194, 94 S.Ct. 1005-1008, 39 L.Ed.2d 260 (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, 42, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (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 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, 417, 107 S.Ct. 1831, 1835, 95 L.Ed.2d 365 (1987). Having made this decision in favor of an equitable action, our inquiry should end. Because the Court disagrees with this proposition, I dissent. 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 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, 177, 87 S.Ct. 903, 909-910, 17 L.Ed.2d 842 (1967) (allowing a union to exercise discretion in fulfilling its duty of fair representation). A trustee, likewise, may exercise 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, 4 S.Ct. 147, 149-150, 28 L.Ed. 163 (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, 337, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (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 laidoff workers as the Union has done in this case. Cf. ABA Model Rules of Professional Conduct 1.7(b) (1984); ABA Model Code of Professional Responsibility DR 5-105(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, 49, 99 S.Ct. 2121, 2126, 60 L.Ed.2d 698 (1979); see Steele v. Louisville & Nashville R. Co., 323 U.S. 192, 206-207, 65 S.Ct. 226, 233-234, 89 L.Ed. 173 (1944); Vaca v. Sipes, supra, 386 U.S., at 187, 87 S.Ct., at 915. 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, 442 U.S., at 52, 99 S.Ct., at 2127. 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 U.S. 257, 274, and n. 20, 109 S.Ct. 2909, 2919, and n. 20, 106 L.Ed.2d 219 (1989); Curtis v. Loether, 415 U.S., at 196, 94 S.Ct., at 1009. Although the parties have not cited any punitive damages 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 417, 107 S.Ct., at 1835. From this alone it follows that the respondents have no jury trial right on their duty of fair representation claims against the Union.

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 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 570-573. These authorities do not support the Court's holding.

* 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, 79 S.Ct. 948, 3 L.Ed.2d 988 (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 509-510, 79 S.Ct., at 956-957.

In Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (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 477-479, 82 S.Ct., at 899-900.

In Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (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 again ruled that modern procedure allowed trial of the legal claim to a jury. See id., at 542, 90 S.Ct., at 740.

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 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 collectivebargaining 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, 164-165, 103 S.Ct. 2281, 2290-2291, 76 L.Ed.2d 476 (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 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 195-196, 94 S.Ct., at 1008-1009, 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 196, 94 S.Ct., at 1009. 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 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 422, 107 S.Ct., at 1838, 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 422-425, 107 S.Ct., at 1838-1839. 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 421, n. 6, 107 S.Ct., at 1837, n. 6. The trust action alone satisfies this standard.

In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (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 43-47, 109 S.Ct., at 2791-2793. 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 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, 162, n. 9, 101 S.Ct. 2698, 2702, n. 9, 69 L.Ed.2d 548 (1981) (no jury trial right in suits against the United States); Katchen v. Landy, 382 U.S. 323, 337-340, 86 S.Ct. 467, 476-478, 15 L.Ed.2d 391 (1966) (no jury trial right on certain bankruptcy claims); Luria v. United States, 231 U.S. 9, 27-28, 34 S.Ct. 10, 15, 58 L.Ed. 101 (1913) (no jury trial right in action to cancel naturalization). The historical test, in fact, resolves most cases without difficulty. See C. Wright, Law 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, 399-415, 83 S.Ct. 822, 827-836, 9 L.Ed.2d 837 (1963) (opinion of BRENNAN, J.); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 260-302, 105 S.Ct. 3142, 3156-3178, 87 L.Ed.2d 171 (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.

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 186, 87 S.Ct., at 914. The Union argues that a duty of fair representation action against an employer also would have an equitable character because it resembles another 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, 243, 103 S.Ct. 588, 606, 74 L.Ed.2d 402 (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.