Before FRANKFURTER, Circuit Justice, FRANK and HINCKS, C. JJ.
FRANK, C.J.: On November 11, 1954, the defendant, Underwood Corporation, engaged in interstate commerce, filed a complaint in the Connecticut Superior Court, seeking in addition to damages for alleged pecuniary injuries an injunction against alleged activities of the plaintiffs; a copy of that complaint is set forth in the Appendix to this opinion. On November 22, 1954, plaintiffs filed a complaint in the court below seeking an injunction to restrain Underwood from prosecuting its state-court action. The next day, plaintiffs moved for a temporary injunction. After argument, Judge Smith entered an order granting a preliminary injunction which restrained Underwood from proceeding with its state-court suit, "so far as it seeks injunctive relief." On December 16, Judge Smith denied Underwood's motion for dissolution of the preliminary injunction. Underwood at once filed a notice of appeal and moved in this Court for an order staying Judge Smith's injunction order pending appeal. After considering the oral arguments and briefs concerning that motion, this Court, on December 23, entered an order denying it. That order is quoted in part in the Appendix to this opinion. We set December 30 as the date for argument of the appeal, and heard it on that date.
1. The basic problem is that of the jurisdiction of the district court.*fn1 There is no diversity of citizenship here. However, 28 U.S.C. Section 1337 confers on federal district courts jurisdiction of "any civil proceedings arising under any Act of Congress regulating commerce." The Labor-Management Relations Act, 29 U.S.C. Section 141 et seq., is such an Act. But 28 U.S.C. Section 2283 carves out a large segment of what would otherwise be the district court's jurisdiction, by providing that a federal court "may not grant an injunction to stay proceedings in a state-court except as expressly authorized by Act of Congress, or when necessary in aid of its jurisdiction, or to protect or effectuate its judgment." Section 10 of the Labor-Management Relations Act (29 U.S.C. Section 160) - in subsections (j) and (1) - expressly authorizes a federal district court, in certain specified circumstances, to issue injunctive orders at the suit of the N.L.R.B.; and, were there such a suit, the court below would be the particular district court empowered by that Act to do so.*fn2 But the specified circumstances grounding jurisdiction to make any such order do not here exist, since Underwood has not lodged with the Board a charge of unfair labor practices.
There remains the question whether the phrase "necessary in aid of its jurisdiction," in 28 U.S.C. Section 2283, supplies the basis of jurisdiction. In approaching that question, we make the following assumptions, arguendo: (1) Underwood in its state-court suit sought injunctive relief against nothing other than conduct constituting unfair labor practices exclusively covered by the Labor-Management Relations Act.*fn2a (2) The state court has no valid power to grant such an injunction, so that if it did enter an injunction order, that order, if affirmed by the highest state court, would be reversed by the United States Supreme Court on the ground that, in the Act, Congress conferred such power exclusively upon the federal courts. See Garner v. Teamsters Union, 346 U.S. 485. That is, we assume, arguendo, that the exception noted in Garner, 346 U.S. at 488, does not permit the state court to grant such injunctive relief at the suit of Underwood. (See infra, point 2 of this opinion.)*fn3
We add a further assumption, arguendo, i.e., that the court below, at the suit of the Board, would have had potential jurisdiction, as "necessary in aid of its jurisdiction," under 28 U.S.C. Section 2283, to enjoin Underwood from prosecuting its state-court suit, notwithstanding Underwood had not filed a complaint with the Board. In Capital Service, Inc. v. N.L.R.B., 347 U.S. 501, the company obtained a state court injunction against certain union conduct, and also petitioned the Board. The Board found the union's conduct in part protected and in part prohibited by Section 8(b)(4). Where there is such an unfair practice, Section 10(1) allows the Board to procure an injunction against the union. The Board sought two injunctions from the federal district court - one against the union under Section 10(1) and one against the company to prevent it from enforcing its state decree. The United States Supreme Court held that, since the district court could enjoin the union under Section 10(1), it could issue a valid injunction against the company "in aid of its jurisdiction."
But here the company filed no complaint with the Board. Nevertheless, as above noted, we assume, arguendo, that, if the Board here had sought the injunction, there would have been jurisdiction in the district court. An analogy may be found in judicial interpretation of the All Writs Act, 28 U.S.C. Section 1651(a) which provides,
"The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."
It has been held that a federal appellate court, "in aid of its jurisdiction," may issue a writ of mandamus to require a district judge to hear a case clearly within his jurisdiction which he has erroneously refused to hear.*fn4 In such a situation, the jurisdiction of the appellate court, thus aided, is potential; it acts "so that the power of review may not be defeated."*fn5
So here it is arguable that, if moved by the Board, the district court, by enjoining Underwood, could have acted validly to prevent the state court from intruding on the exclusive power of the Board and the exclusive jurisdiction of the district court. For then it might be said that the Board had a legal interest entitled to protection, and thus a "standing" to maintain such a suit, with the consequence that the district court would have potential jurisdiction in "aid of its jurisdiction." Cf. Board of Governors of Federal Reserve System v. Transamerica Corporation, 184 F.2d 311 (C.A.9); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F.2d 775 (C.A.2). We may also assume, arguendo, that the same would be true if here the Board had intervened and asked the court to grant the injunction.*fn6
All the foregoing assumptions, however, do not help here, since the Board did not ask the district court to act. This outstanding fact distinguishes Bowles v. Willingham, 321 U.S. 503; Porter v. Lee, 328 U.S. 246; and Porter v. Dicken, 328 U.S. 252. The plaintiffs have at stake no legally protected interest of their own, and therefore have no "standing" to maintain their suit.*fn7 It follows, we think, that the district court lacked power to grant an injunction "in aid of its jurisdiction," because it had no jurisdiction to aid.
Despite the absence of a legally protected interest in plaintiffs, it may be assumed, arguendo, that they could have maintained their suit, and the court would have had potential jurisdiction, if Congress had provided that an "aggrieved person" (or the like) could, in such manner, vindicate or protect the Board's interest;*fn8 for then the plaintiffs would be part of a class of what we have called "private attorney generals."*fn9 But, as there is no such statutory provision,*fn10 we think the district court had no jurisdiction. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41; Amalgamated Workers v. Edison Company, 309 U.S. 261.
We recognize that the result may be regarded as undesirable, if, as we have assumed, arguendo, Underwood's state-court complaint seeks an injunction against nothing but unfair labor practices which are exclusively covered by the Labor-Management Relations Act. For, if the state-court does grant such an injunction, and if its order is fatally defective as exceeding the proper area of state jurisdiction but is affirmed by the highest state court, then, long before that order can be reversed by the United States Supreme Court, its practical effect may well be to break the strike by invalid means.*fn10a Thus, on that assumption, by refusing to complain to the Board, the company may achieve its aim and thereby frustrate the Congressional policy embodied in the Labor-Management Relations Act, described as follows in Garner v. Teamsters Union, 346 U.S. 485, pages 499-500:
"The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the national Labor-Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits."
It may be, as plaintiffs' counsel suggests, that the Board's failure to intervene, or otherwise to seek injunctive relief here, derives entirely from its want of a sufficient staff, and that, accordingly, frustration of the Congressional ...