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Civil Procedure Fall 2014

Cohen “Cheat Sheet” on Shaffer




Beyond appellate review, you can also petition for what are called “extraordinary writs”.  These are writs by which the appellate court orders the trial court to do or not to do something.  The two most common are mandamus, ordering the trial court to do something it has a mandatory duty to do, and prohibition to stop the court from doing something it has no jurisdiction to do.


The distinction between mandamus and prohibition has broken down over time such that now everyone just calls these petitions mandamus.


In federal court, the power to issue a writ comes from the All Writs Act, 28 U.S.C. § 1651(a): “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.”


  • The words “in aid of” jurisdiction is interpreted to mean you can only issue a writ when the district court has done something it has no power to do or abused its discretion in a way that usurps power of the Court of Appeals.

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  • The grants of writs are always discretionary not automatic, hence the “extraordinary” in “extraordinary writs.”   

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  • The error has to be “clear and indisputable” not just a matter where the COA has a different view from the district court.

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  • To get the writ you can’t have any other avenue for relief, including appeal. So it is not a substitute for appeal.

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    Examples of Situations where Mandamus is Granted


  • A district court proceeding without PJ. 
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  • Review of judge’s decision not to recuse herself. 
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  • To correct lower court’s refusal to permit a jury. 
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  • In old days it was used to undo improper class certification for class actions, but the rules introduce a special appellate mechanism in FRCP 23(f) so now mandamus should be unavailable for that.
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    Mandamus Cases


  • (We’ve actually seen this before!) World Wide Volkwagen v. Woodsen was a mandamus; Woodsen was the judge who denied motion to dismiss for lack of PJ.  In some states, that is how a mandamus proceeding is captioned, with the name of the judge whose decision is being challenged. In other states, it is the name of the court, so “Asahi v. Superior Court.”
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    In the federal courts we no longer put the judge’s name in since it is too personal. The judge is technically a party but in most cases he does not elect to participate because the losing side is arguing for him….sometimes, though, both sides are against him as in …


  • (A Recent Example) Cheney v. US District Court, S. Ct. 2004:
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    Facts: VP Cheney seeks writ of mandamus to prevent discovery on Energy task force. 

    Procedural History: DC Circuit declines mandamus saying Cheney could assert Executive Privilege, therefore mandamus not appropriate.

    S. Ct.: not a precondition for mandamus that he exert executive privilege before seeking mandamus.  Requires as preconditions (1) No adequate means to get the relief sought, (2) movant shows that the right to relief is clear and indisputable, (3) the court issuing the writ must exercise its discretion and be satisfied that the writ is appropriate under the circumstances.