Writ
of Mandamus - An Order to Compel an Order
man·da·mus
(măn-dā'məs)
Law.
n. A writ issued by a superior court ordering a public
official or body or a lower court to perform a specified duty.
tr.v.,
-mused, -mus·ing,
-mus·es. To serve or compel with
such a writ.
Mandamus
[Latin, We comand.] A
writ or order that is issued from a court of
superior
jurisdiction that commands an inferior tribunal,
corporation, municipal corporation, or individual to
perform, or refrain from performing, a particular act,
the performance or omission of which is required by law
as an obligation.
A writ or order of mandamus is an
extraordinary court order because it is made without the
benefit of full judicial process, or before a case has
concluded. It may be issued by a court at any time that
it is appropriate, but it is usually issued in a case
that has already begun.
Generally, the decisions of a
lower-court made in the course of a continuing case will
not be reviewed by higher
courts until there is a final
judgment in the case. On the federal level, for
example, 28 U.S.C.A. § 1291 provides that
appellate review of lower-court decisions should be
postponed until after a final judgment has been made in
the lower court. A writ of mandamus offers one exception
to this rule. If a party to a case is dissatisfied with
some decision of the trial court, the party may appeal
the decision to a higher court with a
petition for a writ of mandamus before the trial
proceeds. The order will be issued only in exceptional
circumstances.
The writ of mandamus was first used by
English courts in the early seventeenth century. It
migrated to the courts in the American colonies, and the
law on it has remained largely the same ever since. The
remedy of mandamus is made available through court
opinions, statutes, and court rules on both the federal
and state levels. On the federal level, for example, 28
U.S.C.A. § 1651(a) provides that courts "may issue all
writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law."
The Supreme Court set forth some
guidelines on writs of mandamus in Kerr v. United
States District Court, 426 U.S. 394, 96 S. Ct. 2119,
48 L. Ed. 2d 725 (1976). In Kerr, the Court
upheld the denial of a writ of mandamus sought by prison
officials to prevent the district court from compelling
them to turn over personnel and inmate files to seven
prisoners who had sued the prison over alleged
constitutional violations. The officials argued that
turning over the records would compromise prison
communications and confidentiality.
The Supreme Court observed in Kerr
that the writ of mandamus was traditionally used by
federal courts only to confine an inferior court to
a lawful exercise of its jurisdiction, or to compel an
inferior court to exercise its authority when it had
a duty to do so. The Court also noted that mandamus is
available only in exceptional cases because it is so
disruptive of the judicial process, creating disorder
and delay in the trial. The writ would have been
appropriate, opined the Court, if the trial court had
wrongly decided an issue, if failure to reverse that
decision would irreparably injure a party, and if there
was no other method for relief. Because the prison
officials could claim a privilege to withhold certain
documents, and had the right to have the documents
reviewed by a judge prior to release to the opposing
party, other remedies existed and the writ was
inappropriate.
Although traditionally writs of
mandamus are rare, they have been issued in a growing
number of situations. They have been issued by federal
courts when a trial judge refused to dismiss a case even
though it lacked jurisdiction; refused to reassign a
case despite a
conflict of interest; stopped a trial for
arbitration or an administrative remedy; denied a
party the opportunity to intervene, to file a
cross-claim, or to amend a
pleading; denied a
class action; denied or allowed the consolidation or
severance of two trials; refused to permit depositions;
or entered an order limiting or denying
discovery of
evidence.
The writ of mandamus can also be
issued in a mandamus proceeding, independent of any
judicial proceeding. Generally, such a petition for a
mandamus order is made to compel a judicial or
government officer to perform a duty owed to the
petitioner. For example, in Massachusetts, each year the
commonwealth's attorney general and each district
attorney must make available to the public a report on
wiretaps and other interceptions of oral com-
munications conducted by law enforcement officers. If
the report is not made available, any person may compel
its production by filing an
action for mandamus (Mass. Gen. Laws Ann. ch. 272, §
99 [West 1996]). If successful, a court would issue an
order directing the attorney general and district
attorneys to produce the information. The attorney
general and district attorneys have a chance to defend
their actions at a hearing on the action. If the parties
fail to comply with a mandamus order, they may be held
in
contempt of court and fined or jailed.
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US Attorneys > USAM > Title 4 > Civil
Resource Manual
215 Mandamus
Mandamus is an extraordinary remedy, which should only be used
in exceptional circumstances of peculiar emergency or public importance.
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957); United States v. McGarr, 461
F.2d 1 (7th Cir. 1972). The All Writs Act, 28 U.S.C. § 1651(a), confers the
power of mandamus on federal appellate courts. LaBuy v. Howes Leather Co.,
supra.
Mandamus may be appropriately issued to confine an inferior court to a lawful
exercise of prescribed jurisdiction, or when there is an usurpation of judicial
power. See Schlagenhauf v. Holder, 379 U.S. 104 (1964). Mandamus may be employed
to require a lower court to enforce the judgment of an appellate court, or to
keep such a court from interposing unauthorized obstructions to the enforcement
of the judgment of a higher court. See United States v. District Court, 334 U.S.
258, 263 (1948) (to enforce obedience to court of appeals mandate). Where the
right was clear and indisputable, mandamus issued to compel a lower court to
release a boat under an assertion of the immunity of a foreign sovereign. Spacil
v. Crowe, 489 F.2d 614 (5th Cir. 1974). It has been utilized to compel the
issuance of a bench warrant. Ex parte United States, 287 U.S. 241, 248 (1932).
The district courts have no jurisdiction of a
suit seeking mandamus against the United States. United States v. Jones, 131
U.S. 1 (1889); Minnesota v. United States, 305 U.S. 382 (1939); McCune v. United
States, 374 F. Supp. 946 (S.D.N.Y. 1974). 28 U.S.C. § 1361, giving the United
States district court jurisdiction of "an 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," speaks only of compelling an officer or
employee. The committee reports accompanying this enactment make clear that the
legislation did not create new liabilities or new causes of action against the
United States. See S.Rep. No. 1992, 87th Cong., 2d Sess. 2; H.Rep. No. 536, 87th
Cong., 2d Sess. 1.
Courts have no authority to grant relief in
the nature of mandamus if the plaintiff has an adequate legal remedy aside from
mandamus, such as a suit for monetary judgment or the opportunity to raise the
legal issues involved in a suit brought by the government. United States ex
rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 544 (1937); Spielman Motor Co.
v. Dodge, 295 U.S. 89 (1935); Whittier v. Emmet,
281 F.2d 24, 28-29 (D.C. Cir. 1960); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir.
1973); Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), cert. denied, 411 U.S.
918 (1973). Mandamus is not available, if a statutory method of review is
authorized. Wellens v. Dillon, 302 F.2d 442 (9th Cir.), app. dism., 371 U.S. 90
(1962).
Mandamus does not supersede other remedies; it
only comes into play when there is a want of such remedies.
See Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), cert. denied, 397 U.S. 941
(1970).
The power of a district court to compel official action by mandatory order is
limited to the enforcement of nondiscretionary, plainly defined, and purely
ministerial duties. See Decatur v. Paulding, 39 U.S. (1 Pet.) 496, 514-17
(1840); Work v. Rives, 267 U.S. 175, 177 (1925); Wilbur v. United States, 281
U.S. 206, 218 (1930). An official action is not ministerial unless "the duty in
a particular situation is so plainly prescribed as to be free from doubt and
equivalent to a positive command." Wilbur v. United States, supra; See United
States ex rel. McLennan v.
Wilbur, 283 U.S. 414, 420 (1931); ICC v. New York, N.H. & H.R. Co., 287 U.S.
178, 204 (1932); United States ex rel. Girard Trust Co. v. Helvering, supra;
Will v. United States, 389 U.S. 90 (1967); Donnelly v.
Parker, 486 F.2d 402 (D.C. Cir. 1973). "But where there is discretion . . . even
though its conclusion be disputable, it is impregnable to mandamus." United
States ex rel. Alaska Smokeless Coal Co. v. Lane, 250 U.S. 549, 555 (1919).
November 1998 Civil Resource Manual 215
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