Another post on how the sausage is made: Petitions for writs of mandamus by pro se litigants


Let’s discuss making sausage.


Rule 21 of the Rules of Appellate Procedure provides in pertinent part as follows:

a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must file a petition with the circuit clerk with proof of service on all parties to the proceeding in the trial court. The party must also provide a copy to the trial-court judge. All parties to the proceeding in the trial court other than the petitioner are respondents for all purposes.

(2)(A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(i) the relief sought;

(ii) the issues presented;

(iii) the facts necessary to understand the issue presented by the petition; and

(iv) the reasons why the writ should issue.

(C) The petition must include a copy of any order or opinion or parts of the record that may be essential to understand the matters set forth in the petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the petition or may invite an amicus curiae to do so. The trial-court judge may request permission to address the petition but may not do so unless invited or ordered to do so by the court of appeals.

(5) If briefing or oral argument is required, the clerk must advise the parties, and when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge

The authority to issue a writ of mandamus comes from the All Writs Act. 28 U.S. Code § 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.”)

Essentially, a writ of mandamus is a direction by a superior court to a district judge.  It tells the judge to do, or refrain from doing, something that is inconsistent with the trial judge’s previous order (action). It is a way to get an issue before the superior court when an appeal would not be authorized because whatever the trial judge did was not a final order and normally no appeal will be heard from non-final orders. It also can be used when the petitioner lacks standing to appeal.

In the hands of experienced federal practitioners, the ability to seek review via a writ of mandamus is an important tool. For a fascinating mandamus case with extremely good lawyers that involved yours truly, see US v. FastNos. 12-2752, 12-2769 (8th Cir. 2013) (denying crime victim’s petition for writ of mandamus regarding my award of restitution in a criminal case involving child pornography), on remand from the Supreme Court, US v. Fast, Nos. 12-2752, 12-2769 (8th Cir. 2014) (remanding the case to me in light of Paroline v. United States, 134 S. Ct. 1710 (2014).)*

On the other hands, the ability to seek a writ of mandamus by pro se filers is a problem. Often, those petitions are entirely lacking in merit, and sometimes they are plainly frivolous. They slow down cases. Frequently, the Court of Appeals will call for a response from the trial judge before ruling, and the judge must then submit a careful written response. Moreover, the trial judge frequently freezes the case in place awaiting a decision from the Court of Appeals because the judge worries that if the petition is granted the bell cannot be unrung.

While the problem is, in my view, significant, I don’t know of any solution to it. I am reminded that making sausage is not a pretty process.


*On remand, I made the same award.


20 responses

  1. FYI, I’m one of Paroline’s lawyers and we cited your Fast decision both to the en banc Fifth Circuit and as I recall, the Supreme Court. You were right. Eight members of the Supreme Court said so.

  2. “Making sausage is not a pretty process.” But more often than not, it is the fault of the adulterers on the bench, who swore out solemn oaths to “administer justice without respect to persons” and “faithfully and impartially discharge” the duties they were assigned, and are almost as faithful to their oaths as Tiger Woods was to ex-wife Elin:

    The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.

    Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L.Rev. 1107, 1108 (2004) (emphasis added).

    When a judge says that a pro se motion is “frivolous,” it buries the needle on my bullshit detector, because in as many instances, the same request would be taken seriously if filed by seasoned counsel. And how in the hell would YOU know, anyway? YOU told us that you don’t even bother to read the damned briefs, for chrissake! Remember?

    As we have been reminded, federal judges are literally trained on how to get rid of those pesky pro se lawsuits, and we all know how your guild does it. As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

    Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

    Monroe Freedman, Speech (to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit) (May 24, 1989), reprinted in 128 F.R.D. 409, 439 (emphasis added).

    Professor Llewellyn adds that judges routinely “manhandl[e] … the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.” Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960). Judge Kozinski accuses his colleagues of “using [their] power as federal judges to constitutionalize [their] personal preferences,” Silveira v. Lockyer, 328 F. 3d 567, 569 (9th Cir. 2003) (Kozinski, J., dissenting from denial of hearing en banc); concurrences would fill a Brandeis brief. E.g., Maura D. Corrigan [then, the Chief Justice of the Michigan Supreme Court] and J. Michael Thomas, “Dice-Loading” Rules of Statutory Interpretation, 57 N.Y.U. Ann. Survey of Amer. Law 231 (2003); Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21, 24 (Nov. 1996); Benjamin Wittes, “Without Precedent,” 296-2 Atlantic Monthly 39 (Sept. 2005) (relating trenchant remarks of Judge Silberman of the D.C. Court of Appeals, and Judge Fletcher of the Ninth Circuit); Patricia M. Wald [former Chief Judge of the D.C. Circuit], The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995); Richard S. Arnold [Eighth Circuit], Unpublished Opinions: A Comment, 1 J. of App. Prac. & Process 219, 222 (1999); Erwin Chemerinsky, Closing the Courthouse Doors to Civil Rights Litigants, 5 U. Pa. J. Const. L. 537, 539 (2002); Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990) (case study), et al. ad nauseum.

    Cherry-pick and even make up new facts — judges always do — and you can make any petition appear frivolous. “Courts and judges always lie. Lying is the nature of the judicial activity.” Martin Shapiro, Judges as Liars, 17 Harv. J.L. & Pub. Pol’y 155,155 (1994).

    Sure, some pro se litigants file arguably frivolous motions. So do attorneys. When attorneys do it, it is mostly to harass. Pro se litigants are there out of brute necessity, and are doing the best they can. So, it takes longer. BFD. They deserve the same courtesy as the professionals; their filing fees spend every bit as well. When a filing is genuinely frivolous, see Rule 11 and Rule 38, respectively. If you can’t be patient, you have no fuckin’ business being on the federal bench.

  3. What an interesting screed, Anonymous. I think you supported the judge’s post quite well. All he said was that “[o]ften, those [pro se] petitions are entirely lacking in merit, and sometimes they are plainly frivolous.” He did not say they always fell in one of those categories. He did not demonstrate a lack of patience with them. He did not suggest that the claims are not given the same attention as a petition by counsel. Your insults exemplify the problem with many pro se filings, which can often [not always] be replete with personal attacks having no relationship to the issue under discussion.

  4. Anonymous,

    One more of these I and I will block you from further comments. Indeed, I suspect I already have, and you are using a different URL. But just to be clear, you have now been warned (again?).

    All the best.


  5. A question, if I might: Do pro se litigants start out that way, or do they lose respect for the system because they know they are being jobbed? When even judges tell us that they were trained to “get rid of” their cases, they probably didn’t read their briefs, and they will make up the facts they need to get rid of their cases, it is hard to see how they should maintain any respect for the system.

    Posner. Silberman. Wald. Kozinski. Miner. Arnold. Freedman. Chemerinsky. Llewellyn. Shapiro. Those citations are not from lightweights. Four of the judges should have made it to the Supreme Court. When I write briefs, I make sure the judges notice their names. If they are saying that people can no longer trust the system, the system is in trouble.

  6. LawDog,

    Pro se litigants are at an extreme disadvantage because they don’t have a lawyer and they are frequently clueless about the legal system. That is a big problem, but our court expends enormous effort to level the playing field. I manage our pro se docket for all the judges. I also manage the excellent pro law clerk who does nothing but handle pro se matters.

    I can assure you that we treat pro se litigants with the same care and concern that we treat counseled cases. But we cannot and will not advocate on behalf of a pro se litigant.

    You might also take a look at our web site. There we provide A Guide to Self Representation for Non-Prisoners and Self-Help Resources for the Self-Represented Litigant. We also provide various forms for use by pro se litigants.

    Still further, in some cases we will appoint and pay counsel $2,000 to represent a pro se litigant particularly if a trial is likely. (If the pro se party wins, in many cases counsel will also receive attorney fees from the court.) Payment of the $2,000 comes from the dues lawyers pay and not the government. See Amended Plans for the Administration of the Federal Practice Fund and the Federal Practice Committee, part IIA(1) pp. 1-2.

    In short, I am entirely satisfied that your concerns about pro se litigants have been seriously addressed in our court. I cannot speak for other courts.

    All the best.


  7. LOL! Now you know how we feel. 🙂

    We have this set of rules we call the Constitution, but judges keep breaking it, and daring us to do something about it.

    A fascinating blog. I congratulate you on it.

  8. Talcott Parsons noted that one function of lawyers was to be a filter to strain out the raw emotions of the parties before the case is presented to the court. The emotions of pro se litigants come through raw and painful and all too often are focused on the often legally irrelevant pain they feel. With the best will in the world judges are human and Justice Jackson’s remark about habeas petitions and needles and hay stacks has a broader application. As long as we do legal aid on the very cheap in civil litigation the probably will not go away. There may have been someone who had just one beer but he was probably found guilty of DUI. As a side note its been a long time since I read Llewellyn, but a certain manipulation of cases to make the system work better was not something he would disapprove of.

  9. LawDog I am not sure that there ever was a time when a lot of people were not suspicious of law and lawyers. This distrust was a common theme of Roscoe Pound’s though the explanations he gave for this provoke Judge Frank’s great line about Pound’s bed time stories for the tired bar. Moreover most folks seem to be sure they know what the Constitution means ever if more often that not they do not know what it says.

  10. Judge Kopf,

    It’s not my concern. People don’t usually go off like that unless they have a grievance with the system, and the stellar names cited above give them good reason to have one. Mostly, I am curious as to why.

    I like your plan. People who elect pro se have no other option, and hope against hope that the law will somehow protect them. It rarely does. If your system works, people haven’t lost their faith by the time they get to appeal.

    I agree that an amateur has no chance at trial against an experienced trial lawyer in a fact-intensive case, and the smart amateur would bring one in the minute he got past summary judgment. But Judge Gertner has told us that that would never happen in her District, because judges were trained to ‘get rid of’ those cases. I take you at your word, and find you to be a decent man, but I’m also taking her at hers and presume the same. Litigants who got the Gertner treatment would figure it out pretty quickly, as most judges aren’t exactly subtle about it.

    In a law-intensive case, the pro se isn’t at that much of a disadvantage. if the facts are judicially noticeable, it all comes down to the briefs. When a trial judge rules against the pro se and the ruling makes no earthly sense (or worse yet, there is no explanation!), an institutional bias is reasonably inferred. Kozinski says as much, and he is so brilliant that you argue with him at your peril.

    The technical quality of a ruling matters. Your job is not so much to rule as to instruct, which is why Professor Shapiro’s remark is so disturbing.

    If I recall correctly, there was one case mentioned here where the judges sat in judgment of their own case. You really don’t need a law degree to see that that is horribly wrong (assuming neither exception applies). The pro se who got ‘jobbed’ like that would have cause to be livid. No judge should ever countenance anything as outrageous as that.

    Assuming that this is the same guy you banned, I can see why he might be going off. He has a point.

  11. I agree with Justice Black, but am cognizant of the axiom that law has to make sense. A decision that makes sense can mollify the loser, but when a judge takes flagrant liberties with either the law or facts, it cannot, nor should it.

  12. Pro se petitions (not just for mandamus) tend to suffer from three related flaws: 1) the drafter does not know/understand the procedural rules governing the drafting of pleadings; 2) the drafter does not understand the substantive law governing those claims; and 3) the drafter does not know how to write in a manner that clearly communicates her complaint (of course, some trained lawyers suffer from a similar flaw).

    The first and the third flaws combine to make it difficult to figure out exactly what the pro se petitioner claims is happening and why he thinks he is entitled to relief from that allegedly improper action. The second flaw is what makes many of the petitions appear frivolous (even if there might be some merit buried somewhere in the petition).

  13. TMM,

    Very well put.

    When we see a deficient pro se complaint that is not clearly frivolous (like suing God), we write an opinion explaining why it is deficient and we give the pro se party leave to amend. That, at least, gives a sincere pro se litigant some direction.

    All the best.


  14. I just read that a pro se has recently filed a hand written complaint in the district of Nebraska (Omaha) a lawsuit against “every homosexual” and wants the Court to determine once and for all whether homosexuality is a sin or not. (Something like that).

    There really needs to be a mechanism in place where the Clerk (or someone) can simply refuse to accept a complaint like that, with a directive that if the putative plaintiff continues their nonsense they will be held in contempt. And then the courts need to start making some examples.

    I’m not kidding.

    This kind of stuff really does waste a considerable amount of time, and is costly. I just received a decision on summary judgment in a serious civil rights case that took just over four years for the U.S. district court to decide (not Nebraska). I think some of that is related to all the b.s. complaints that courts waste too much time on. Very frustrating.

  15. Anon.,

    I cannot comment on that case. Among other things, I manage our Court’s pro se docket and the pro se law clerk.

    All the best.


  16. For example:

    An Auburn woman calling herself an ambassador for God and his son, Jesus Christ, filed a federal lawsuit Friday against all homosexuals.

    Sylvia Driskell, 66, said in the suit that she is petitioning the U.S. District Court of Omaha to be heard “in the matter of homosexuality. Is homosexuality a sin, or not a sin?”

    In a seven-page letter framed as a lawsuit, she cited Bible passages that described homosexuality as an abomination and against nature, and she said never before has the nation or the state been “besiege(d) by sin.”

    “Will all the judges of this nation judge God to be a lier [sic]?” Driskell asked.

    She said she petitioned the court because she feels it imperative to stand up for the moral principles on which the nation was founded.

    (Sylvia vs. The Special Snowflakes).

  17. Yet, pro se lawsuits filed by seasoned attorneys from top-drawer schools receive the same dismissive treatment. Neither law nor civil procedure have become so incomprehensible that an Ivy-League educated physician (a pro se I know) can’t grasp the basics.

    Pro se petitions are a lot like appellate opinions. Some are masterpieces, and others (especially, unpublished ones) leave you wondering just what in hell the author was thinking.

    If our legal system has become so formulaic and complex that the services of a lawyer are absolutely required, then just maybe, we need to re-think them.

  18. The woman clearly is entitled to her opinion and thats all we can learn from her letter.

    My understanding is that judges are supposed to follow laws, not give opinions.
    I dont come here to be entertained. thank you

    I have been wrongfully convicted of offering to sell meth via text messages. My phone was submitted to sid extraction and results show no texts from my phone to the officers phone. He claims he deleted the texts from his phone before trial. I was arrested a block from home. The circumstantial evidence of me being at a location supposedly where a meeting had been arranged via text message was the prosecutions claim. there was no expert to lay any foundation of cell phone records so the court allowed prosecution and witness to do so, claiming that the system mustve had a glitch and deleted the texts from my phone.
    Late evidence, after 2 preliminary hearings, brought in during trial, officer claiming i admitted guilt to the officer during booking became admissable without any inclusion or mention of me making statements in the police report. Did i mention that the case was previously dismissed and refiled without any new discovery or cause? This is a perfect example of the mess a pro se deals with and its only the beginning. Putting every aspect in the proper text and meaningful order so to be at least read, is difficult when there are so many issues to address. I was arrested 3 times because of this case. 1 time i walked into court 1 day late and was thrown in jail for 3 days until i posted bail. another time was after the case was refiled, the next day a warrant was issued for my arrest, the police came to my house and arrested me. once again I posted bail. The lab report went from locker to an unknown then to chemist back to locker, from 2 grams to 2.9 then to 1.9. expert testified he couldnt explain why the photos differed from his performance and analysis. no matter how educated, any person trying to explain my unfortunate experience with the system, will most likely confuse the reader. im not emotional or reaching for silly strings, begging for a shoulder to cry on. No, The court wants conviction, they will do what it takes to get a conviction. $10,000 total ive paid to bail out of jail now $4500 I owe to probation. I cant vote, cant pass a background check. My education has been delayed. my life is ruined. my father passed away, i had court orders to not leave californi. missed his funeral. I am a taxpayer, small business owner, law abiding citizen. no previous record.

    pro se i cant win

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