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.


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