Mandamus is an Extraordinary Remedy
Mandamus is an extraordinary remedy. See Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976).
Within the discretion of the issuing court, the writs traditionally may be “used . . . only ‘to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.'” Id. (citations omitted). To obtain such relief, a petitioner must show that “(1) no other adequate means exist to attain the relief he desires, (2) the party’s right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (internal quotation marks and citation omitted).
To the extent that he uses his petition for a writ of mandamus to challenge the District Court’s ruling on a separate mandamus petition, we note that mandamus is not a substitute for appeal. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004) (citations omitted); Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). While mandamus relief is available under a different, and less demanding, standard under 18 U.S.C. § 3771 in the appropriate circumstances, see 18 U.S.C. § 3771(d)(3); Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006); United States v. Rigas, 409 F.3d 555, 562 (2d Cir. 2005), it is not available to El Aemer El Mujaddid here. Even assuming that El Aemer El Mujaddid is a crime victim for whom mandamus and other relief is available under § 3771 (a generous assumption based on the ambiguous evidence he proffers regarding an alleged violation of a federal peonage statute, see 18 U.S.C. § 3771(e) (defining “crime victim”)), he has in no way shown that he is being deprived of the rights accorded crime victims, see id. at § 3771(a). Furthermore, he does not even seek enforcement of those rights, relying on 18 U.S.C. § 3771 instead to win other forms of relief. For these reasons, El Aemer El Mujaddid is not entitled to mandamus relief, so we will deny his petition.
“Mujaddid alleged, inter alia, causes of action under 42 U.S.C. §§ 1983, 1985, and 1986 for the deprivation of his constitutional rights. It appears that Mujaddid claimed his procedural and substantive due process rights had been violated and that his arrest and criminal prosecution violated federal law.” IN RE: EL AEMER EL MUJADDID, Petitioner On a Petition for Writ of Mandamus from the United States District Court for the District of New Jersey (Related to D.N.J. Civ. No. 18-cv-14021) Submitted Pursuant to Rule 21, Fed. R. App. P. January 17, 2019, Before MCKEE, SCHWARTZ and BIBAS, Circuit Judges (Opinion filed: January 29, 2019) OPINION UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 18-3756
“In the instant case, moreover, the District Court has not yet entered an order on Mujaddid’s remand motion. Even if we were to liberally construe Mujaddid’s petition as challenging the delay he has experienced in having his remand motion disposed of, we would conclude that mandamus relief is not warranted. Although a District Court has discretion over the management of its docket, see In re Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir. 1982), a federal appellate court “may issue a writ of mandamus on the ground that [the District Court’s] undue delay is tantamount to a failure to exercise jurisdiction.”Madden, 102 F.3d at 79. The defendants responded to Mujaddid’s remand motion at the end of October 2018, and the Magistrate Judge conducted a status conference in November 2018. Thus, little more than two to three months have lapsed since the motion has been ripe for disposition. We do not find a delay of this length troubling in the instant case. We are confident that the District Court will rule on Mujaddid’s motion in due course and without undue delay.”
Federal Rules of Criminal Procedure › Title Ix. General Provisions › Rule 60. Victim’s Rights (a) In General. (1) Notice of a Proceeding. The government must use its best efforts to give the victim reasonable, accurate, and timely notice of any public court proceeding involving the crime. The statute provides that the victim, as authorized by 18 U.S.C. § 377l (d) and (e) may assert the victim’s rights. 18 U.S.C. §3771(e) makes provision for the rights of victims who are incompetent. The statute provides that those rights are to be asserted in the district court where the defendant is being prosecuted (or if no prosecution is underway, in the district where the crime occurred). In the administrative law context in the United States, the requirement that mandamus can be used only to compel a ministerial act has largely been abandoned. By statute or by judicial expansion of the writ of mandamus in most of the U.S. states, acts of administrative agencies are now subject to judicial review for abuse of discretion. Judicial review of agencies of the United States federal government, for abuse of discretion, is authorized by the U.S. Administrative Procedures Act. The authority of the United States district courts to issue mandamus has been expressly abrogated by Rule 81(b) of the Federal Rules of Civil Procedure, but relief in the nature of mandamus can be had by other remedies provided for in the Rules, where provided by statute, or by use of the District Court’s equitable powers. See Pollard, The Evolution of Parliament 329-331 (1964).
The fact, then, that the Relator is without any other legal remedy, and is of itself good ground for a mandamus where the right is clear. (Tappan on Mandamus, pp. 5, 9, 10.). While Writs of Prohibition and Writs of Mandamus are “somewhat different,” United States v. Santtini, 963 F.2d 585, 593 (3d Cir. 1992), “modern courts have shown little concern for the technical and historical difference between the two writs,” id. Therefore, the Relator “need not precisely state which writ [he] seeks. (Citation the Supreme Court has explained that “mandamus should issue to prevent [an] action…so palpably improper as to place it beyond the scope of the rule invoked.” La Buy v. Howes Leather Co., 352 U.S. 249,256 (1957).
While reiterating its general rule that mandamus is “a drastic remedy that is seldom issued and its use is discouraged,” the Third Circuit nevertheless found “the kind of extraordinary situation in which we are empowered to issue the writ of mandamus,” in United States v. Higden, No. 10-3882 (March 17, 2011). We have stated in the past that “‘when the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.’” We have used the mandamus procedure on numerous past occasions to review and correct erroneous rulings on motions to remand. See In re Dutile, 935 F. 2d 61(5thCir.1991) (granting writ of mandamus where remand was incorrectly denied); see also, e.g., In re Excel Corp., 10 6F. 3d 1197 (5thCir.1997); In re Allstate Ins. Co., 8F.3d 219(5thCir.1993); In re Digicon Marine, Inc., 966 F.2d 158(5thCir.1992); In re Shell Oil Co.,932 F.2d 1518 (5thCir.1991); In re Allied Signal, Inc., 919 F.2d 277 (5th Cir.1990) In The United States Court Of Appeals For The Fifth Circuit No.11 40115 In re: Crystal Power Company, LTD. Relator Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.
In the Fifth Circuit case, the appellate court exercised mandamus jurisdiction over a series of district court orders See In re: United States, 397 F.3d 274, 283-87 (5th Cir. 2005). See In re: United States, 614 F.3d 661, 666 (7th Cir. 2010). The court concluded: “So clear is this, and so manifest the excess of emotion demonstrated by the judge in excluding the evidence, that we can only conclude that the exacting standard for the grant of a writ of mandamus . . . has been satisfied.”Id exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” Kerr v. United States Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976).
“[E]ven in the presence of a clear error of law which would otherwise escape review and a showing by a party that his right to relief is ‘clear and indisputable,’ issuance of a writ is within [the court’s] discretion” and -24-this Court may choose not to issue a writ. See Communication Workers of Am. v. Am. Tel. & Tel. Co., 932 F.2d 199, 208 (3d Cir. 1991) (citing Lusardi v. Lechner, 855 F.2d 1062, 1070 (3d Cir. 1988)) A district court cannot usurp judicial power by finding certain facts and applying Third Circuit precedent to those facts. See United States v. Farnsworth, 456 F.3d 394, 403 (3d. Cir. 2006).
The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” 28 U.S.C. sec. 1651(a); Clinton v. Goldsmith, 526 U.S. 529, 534 (1999), including writs of mandamus, In re Loudermilch, 158 F.3d 1143, 1145 (11th Cir. 1998) (per curiam); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973) (per curiam), although these courts have no general power to issue such writs. Fed. R. Civ. P. 81(b). The Act does not enlarge our jurisdiction. Clinton v. Goldsmith, supra, 526 U.S. at 535; United States v. Tablie, 166 F.3d 505 (2d Cir. 1999) (per curiam). We can issue mandamus against a state judicial officer, In re Grand Jury Proceedings, 654 F.2d 268, 277 (3d Cir. 1981)–until superseded by the writ of habeas corpus ad testificandum, 28 U.S.C. sec. 2241(c)(5); Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 42-43 (1985)
Although the writ of mandamus was abolished by FED. R. CIV. P. 81(b), federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. § 1651. Actions in the nature of mandamus are provided for in 28 U.S.C. § 1361, which states as follows: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. In The United States District Court For The Western District Of Texas Austin Division Catherine L. Marston Ph.D § #1306127 § § V. § A-12-CA-254-SS § Amalia Rodriguez-Mendoza, § Travis County District Clerk in her Official § Capacity § Report And Recommendation Of United States Magistrate Judge. “[U]nder 28 U.S.C. § 1651 (All Writs Statute) federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions, including writs in the nature of mandamus.” See Haggard v. State of Tennessee, 421 F.2d 1384, 1385 (6th Cir. 1970). While 28 U.S.C. § 1361 gives the district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. United States District Court Western District of Kentucky at Paducah Jonathan Hack Petitioner V. Civil Action No. 5:11cv-P61-R Commonwealth Of Kentucky Et Al. Respondents. Under 28 U.S.C. § 1361, a federal district court has jurisdiction of a mandamus action “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff
Intermediate appellate courts have also recognized the importance of mandamus to avoid trial court abuse in improperly limiting or denying discovery. See, e.g., Kentucky Fried Chicken Nat’l Mgmt. Co. v. Tennant, 782 S.W.2d 318 (Tex.App. — Houston [1st Dist.] 1989, orig. proceeding) (writ granted when discovery of plaintiff’s psychiatric records denied); Foster v. Heard, 757 S.W.2d 464 (Tex.App. — Houston [1st Dist.] 1988, orig. proceeding) (mandamus issued against trial court’s denial of discovery of post-accident investigation report); Super Syndicate, Ltd. v. Salazar, 762 S.W.2d 749 (Tex.App. — Houston [14th Dist.] 1988, orig. proceeding) (granting mandamus against trial court’s denial of discovery of claims investigator’s files); Goodspeed v. Street, 747 S.W.2d 526 (Tex.App. — Fort Worth 1988, orig. proceeding) (trial court’s denial of discovery of hospital records based on privilege without presentation of evidence overturned); Estate of Gilbert v. Black, 722 S.W.2d 548, 551 (Tex.App. — Austin 1987, orig. proceeding) (denial of discovery of insurer’s internal communications overturned on mandamus, despite argument that “mandamus is proper only [for] improperly ordered discovery of privileged material, not when the trial court has denied discovery.”); Essex Crane Rental Corp. v. Kitzman, 723 S.W.2d 241 (Tex.App. — Houston [1st Dist.] 1986, orig. proceeding) (writ granted to correct trial court’s order quashing deposition); Velasco v. Haberman, 700 S.W.2d 729, 730 (Tex.App. — San Antonio 1985, orig. proceeding) (mandamus appropriate “not only where the trial court order improperly grants discovery, but the writ may also issue where the trial court improperly limits or denies discovery.”); Aztec Life lns. Co. v. Dellana, 667 S.W.2d 911 (Tex.App. — Austin 1984, orig. proceeding) (mandamus issued against trial court for denying discovery of claims files).”* * * And according to the theory of the common law, the King is the fountain of justice, and where the laws did not afford a remedy, and enable the individual to obtain his right, by the regular forms of judicial proceedings, the prerogative powers of the sovereign were brought in aid of the ordinary judicial powers of the court, and the mandamus was issued in his name to enforce the execution of the law.” State, ex Rel. Pressley, v. Indus. Comm 228 N.E.2d 631 (Ohio 1967)
In Patterson, the Seneca Nation was brought into court as a defendant by a person who claimed he was improperly denied enrollment as a member of the Seneca Nation and sought a mandamus order to compel the Nation to enroll him. Matter of Patterson v. Seneca Nation 157 N.E. 734 (N.Y. 1927)
As we discussed at the outset, under principles of mandamus jurisdiction, the Court of Appeals may exercise its power to issue the writ only upon a finding of “exceptional circumstances amounting to a judicial `usurpation of power,'” Will, 389 U.S., at 95, or a “clear abuse of discretion,” Bankers Life, 346 U.S., at 383. As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court’s actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties. This is especially so here because the District Court’s analysis of whether mandamus relief is appropriate should itself be constrained by principles similar to those we have outlined, supra, at 380-382, that limit the Court of Appeals’ use of the remedy. The panel majority, however, failed to ask this question. Instead, it labored under the mistaken assumption that the assertion of executive privilege is a necessary precondition to the Government’s separation-of-powers objections. PAGE 391 Cheney v. U.S. Dist. Court for D.C 542 U.S. 367 (2004)