Coram What? An Introduction to Federal Special Writs
The common law special writs available to Florida state courts are fairly well known to Florida practitioners, thanks in large part to several informative articles in this publication.1 Considerably less well understood, however, is the role of special writs in federal courts. In an effort to remedy this, this article provides Florida practitioners with a rudimentary understanding of the various federal writs while contrasting them with their Florida counterparts.
Evidence of the rarity of federal extraordinary writs can be found on the website for the Administrative Office for the United States Courts (AOUSC). The AOUSC compiles statistics from the various circuits and presents them in a series of useful tables.2 Those tables reflect, to take one example, that in 2010 (April 1, 2009 – March 31, 2010), only 504 of the 6,833 cases terminated by the 11th Circuit were “original proceedings.”3 A similar barometer of the rarity of special writ practice in federal courts is the near absence of reported cases on the topic in the 11th Circuit.4 The apparent underuse of special writs in federal courts is perhaps attributable to their arcane nature — an attribute this article hopes to remedy in part.
Part one of this article discusses the All Writs Act. Part two discusses the most significant writs available in federal court — mandamus, prohibition, and quo warranto. Although federal writs of habeas corpus, certiorari, and injunction are undoubtedly significant writs, they are dealt with here in passing because they are topics unto themselves and have received abundant attention. Part three of this article will discuss the minor and abolished writs.
The All Writs Act
The starting point for federal special writ practice is the All Writs Act5 ( AWA). Enacted in 1911, the AWA states that “[t]he 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.” This statute is not an independent source of subject matter jurisdiction for federal courts.6 Therefore, the critical requirement under the AWA is that the issuance of a writ be “necessary or appropriate in aid of [a court’s]. . . jurisdiction.”
The AWA authorizes the issuance of a writ if it is necessary to preserve the prospective jurisdiction of an appellate court. Moore’s Federal Practice explains: “The case need not be pending in the appellate court; it is enough that the lower court’s action might frustrate the appellate court’s eventual jurisdiction.”7 For example, in In re United States, 572 F.3d 301, 306-307 (7th Cir. 2009), the government, in a prosecution for felon in possession of a firearm, sought a writ of mandamus to compel the district court judge to recuse himself based on the judge’s improper involvement in plea negotiations and commentary that “called into question his impartiality.” The government argued that mandamus was necessary because, by the time for a direct appeal, “the damage to the public perception of the judicial system already has been done, and the party may not then seek relief because the simple appearance of partiality is, at most, harmless error.”8 The Seventh Circuit agreed, and issued a writ of mandamus directing the judge “to remove himself from further proceedings in” the case.9
Because the AWA is not an independent source of federal subject matter jurisdiction, it tends to exclude state courts and judges from the reach of federal writs. In Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586, 586 (4th Cir. 1969), a criminal defendant in a state proceeding sought a writ of mandamus from the Fourth Circuit to “compel the Superior Court of Mecklenburg County, North Carolina, to furnish him, without cost, a transcript of a trial in that court in 1966 which resulted in his conviction of a criminal offense.”
The defendant argued that “he intend[ed] to use the transcript for the purpose of preparing a petition for state post-conviction review of his conviction.”10 The Fourth Circuit rejected this argument, holding that “since [it] lack[ed] appellate jurisdiction over the courts of the State of North Carolina, [it] also lack[ed] jurisdiction to issue the requested writ of mandamus.”11 In so doing, the Gurley court reasoned that the power of federal courts to issue writs under the AWA “exists for the sole purpose of protecting the respective jurisdictions of those courts. And in the U.S. Courts of Appeals, this authority is only incidental to and in aid of appellate jurisdiction,. . . which Congress has given it over district courts,. . . and administrative boards and agencies.”12 A number of other circuits have reached similar holdings.13
Many of the writs otherwise available under the AWA have been replaced by statute. In Pennsylvania Bureau of Corrections v. U.S. Marshals Services, 474 U.S. 34, 43 (1985), the Supreme Court held “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” In a similar vein, courts will not issue writs under the AWA where there is an adequate alternative remedy.14
Mandamus, Prohibition, and Quo Warranto
• Mandamus — The 11th Circuit has described mandamus (Latin for “we command”15 ) as “an extreme form of equitable relief” that is “‘designed to require an official to perform an act required by law.’”16 In Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1385 (11th Cir. 1998) (en banc), the circuit noted “that the writ of mandamus may issue to correct a clear abuse of discretion or the failure to carry out a ministerial task.” The Armstrong court further explained, “[w]e may issue the writ ‘only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion.’”17 As discussed in part one of this article, the requirement of a lack of an adequate alternative remedy is true of all writs issued under the AWA. Right away, astute Florida practitioners will note that federal mandamus differs from Florida mandamus because the federal writ can be used to “correct a clear abuse of discretion,” whereas the signature attribute of Florida mandamus is its inapplicability to discretionary acts.
Fed. R. Civ. P. 81(b) largely abolished common law writs of mandamus in federal civil proceedings. However, federal courts may still issue writs of mandamus under the All Writs Act so long as the writ is “‘in aid of their respective jurisdictions and agreeable to the usages and principles of law.’”18 In a similar vein, the Fifth Circuit in Calderon v. Florida, No. 10-60455, 2010 WL 5297741 at *1 (5th Cir. Dec. 23, 2010), noted that “‘a federal court lacks the general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought.’”19
Additionally, 28 U.S.C. §1361 (Mandamus Act) provides that “[t]he 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.” As the court in Mohwish v. Gentry, 156 F.3d 1231 (6th Cir. 1998) (table), explained: “To establish mandamus jurisdiction [under 28 U.S.C. §1361], a petitioner must establish that: 1) he has a clear right to relief; 2) the defendant has a clear, non-discretionary duty to act; and 3) there is no other adequate remedy available.”20
In Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1234-35 (10th Cir. 2005), the 10th Circuit analyzed the history of the Mandamus Act and noted that, traditionally, “mandamus was available against federal officials, but only in the [d]istrict [c]ourt for the District of Columbia,” because that court had inherited the common law jurisdiction of the courts of Maryland. The Simmat court further explained that the Mandamus Act was designed to expand the use of this procedure to all federal district courts.21 It is unclear whether the Mandamus Act provides an independent basis of jurisdiction.22
It is perhaps a bit of an oversimplification, but Florida practitioners who understand Florida writs of certiorari and mandamus can think of federal mandamus as a federal counterpart that combines the two state writs into one, and, as noted above, can reach discretionary rulings. This combined function is perhaps the result of the U.S. Supreme Court’s use of certiorari to review lower court decisions, thereby occupying the space taken by certiorari under Florida law. In effect, the two systems are opposites: Federally, certiorari is the province of the U.S. Supreme Court, whereas the Florida Supreme Court cannot resort to certiorari as a matter of its constitutionally limited jurisdiction.
The First Circuit, in In re Urohealth Systems, Inc., 252 F.3d 504, 506 (1st Cir. 2001), implicitly recognized that the AWA may grant federal courts the authority to grant common law writs of certiorari.23 As a practical matter, though, federal courts of appeal typically rely on mandamus in situations where Florida intermediate courts of appeal use certiorari. In Florida, writs of certiorari are often used to seek review of attorney-client privilege claims in discovery.24 However, federal courts frequently rely on writs of mandamus to review these orders.25 Some other situations in which mandamus relief has been successfully sought include 1) challenges to orders remanding a cause of action removed to federal court for which no interlocutory appeal is provided;26 2 ) claims of First Amendment privilege;27 and 3) challenges to a temporary restraining order where irreparable harm would result from its enforcement.28
• Prohibition — Unlike under Florida law, federal writs of prohibition are closely related to federal writs of mandamus, such that the two are often sought in tandem and spoken of interchangeably.29 The two writs are frequently sought in the alternative.30 Courts will often construe requests for one as requests for the other where appropriate.31 As In re Duro Industries, Inc., 293 B.R. 271, 277 (B.A.P. 1st Cir. 2003), explains, the difference is in their function:
A writ of mandamus is an order “directing a public official to perform a duty exacted by law.”. . . An order prohibiting certain judicial action is termed a writ of prohibition — the obverse of mandamus — but there is no practical distinction in procedures dealing with them in appellate tribunals.32
A recent case in which the writ was granted is University of Texas at Austin v. Vratil, 96 F.3d 1337 (10th Cir. 1996). There, the writ was used to prevent a district court in a lawsuit against the NCAA from treating various state schools comprising the NCAA as “real parties in interest.”33 The fact that the authors had to go back to 1996 in their search for a mere example of a successful application for a writ of prohibition underscores its relative lack of use in the federal system.
• Quo Warranto — Quo warranto (Latin for “by what authority”34 ) is “an ancient writ used by the King of England to determine if an individual’s claim to an office or franchise is well-founded.”35 Theoretically, federal courts can issue writs of quo warranto against corporate officers, but a court must have subject matter jurisdiction to do so.36 A more likely use of this writ is to challenge the authority of federal public officials to hold office.
Interestingly, “[q]uo warranto actions in federal courts seem to be governed by the provisions of [the D.C. Code].”37 Additionally, the writ may only be sought by the “Attorney General of the United States or the United States attorney” or, “by leave of the court,” an “interested person” acting as a relator on behalf of the United States.38 Despite the D.C. Code’s relator provision, the D.C. Circuit has held that “actions against public officials. . . can only be instituted by the Attorney General.”39 Nonetheless, a person having a claim to an office may be able to institute quo warranto proceedings if the Attorney General or U.S. attorney refuses to act.40
Federal quo warranto has gained attention as a result of the “birther” movement. In Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010), the court was confronted with a quo warranto petition challenging President Obama’s right to hold office. The court dismissed the claim: “Because Ms. Taitz is neither the Attorney General of the United States nor the United States attorney for the District of Columbia, she does not have standing to bring a quo warranto action challenging a public official’s right to hold office.”41 As a practical matter, federal quo warranto is probably best viewed by Florida practitioners as a theoretical matter only — based on a search for “quo warranto” in Westlaw’s CTA11 database, only two cases discuss the writ in passing.
Minor and Abolished Writs
A number of common law writs have been replaced by statute. Others are now so limited in scope that they are only rarely invoked. As such, modern judicial treatment of these writs — whose Latin names provide little guidance as to their function — is often extremely limited. Nonetheless, some knowledge of these writs may prove invaluable because, in the rare situations when these writs can be invoked, they often provide the only avenue for relief.
Writs of coram nobis (Latin for “before us”42 ), sometimes called writs of error coram nobis , are an “ancient common-law remedy designed ‘to correct errors of fact.’”43 & #x201c;In American jurisprudence the precise contours of coram nobis have not been ‘well defined.’”44 The writ is “generally sought to review a criminal conviction where a motion under 28 U.S.C. §2255 is unavailable because petitioner is no longer serving a sentence.”45 & #x201c;To obtain coram nobis relief, a petitioner must demonstrate continuing legal consequences of the petitioner’s conviction. . . . To do so, petitioner must show a concrete threat of serious harm.. . . Speculative harms are insufficient to meet this test.”46 Between the 11th Circuit and the pre-split Fifth Circuit, there appears to be only one published opinion approving the grant of this writ — United States v. Peter, 310 F.3d 709, 716 (11th Cir. 2002).47 In Peter, the petitioner’s guilty plea was no longer valid in light of an intervening Supreme Court precedent.48 The circuit deemed the resulting error jurisdictional and issued the writ to remedy the overreaching.49
The writ of audita querela (Latin for “the complaint having been heard”50 ) is similar to coram nobis :
Usually, a writ of coram nobis is used to attack a judgment that was infirm at the time it issued, for reasons that later came to light. contrast, a writ of audita querela is used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition. It is meant only to allow a defendant to present a defense not discovered until after judgment was rendered.51
Both coram nobis and audita querela were expressly abolished in civil cases by Fed. R. Civ. P. 60(e) and remain “available only to the extent that they ‘fill gaps’ in the current system of federal post-conviction relief.”52
Scire facias (Latin for “you are to make known, show cause”53 ) is “a judicial writ at common law to revive judgments or to obtain satisfaction thereof, from sureties upon bail or other recognizances taken in proceedings in which the judgment was rendered.”54 It was abolished in federal district courts by Fed. R. Civ. P. 81(b).55
Ne exeat (Latin for “that he not depart”56 ) is “a restraint upon the common right of movement from place to place within the United States and upon emigration.”57 The requirements of the writ are comparable to the requirements necessary for an injunction.58 It “should not be employed for any purpose akin to imprisonment for debt.”59 In Florida, the writ is used in connection with the collection of alimony and support obligations.60 The federal government occasionally relies upon it for tax collection.61
Extraordinary writs are some of the most quirky procedural devices that our judicial system has inherited from the common law. Few are familiar with them, particularly so in the federal system. Although this lack of understanding is certainly understandable in light of how rarely they are applicable and their Latin labels, it is no excuse. These writs are still potentially critical remedies under the correct circumstances. It is the authors’ intention that this article provides a starting point for practitioners to cut through the clutter of competing rules, statutes, and common law, as well as the Latin nomenclature, and recognize the limited but valuable role that federal special writs can play.
1 Sylvia H. Walbolt & Joseph H. Lang, Jr., Original Proceedings, Writ Large, 83
Fla. B.J. 38 (Oct. 2009); Valeria Hendricks, Which Writ is Which? A Trial Attorney’s Guide to Florida’s Extraordinary Writs, 81
Fla. B.J. 46 (April 2007); Jack R. Reiter, Common Law Writs – From the Practical to the Extraordinary, 80
Fla. B.J. 32 (Feb. 2006).
2 U.S. Courts, Statistics, http://www.uscourts.gov/Statistics.aspx.
3 Office of Judges Programs, Statistics Division, Administrative Office of the United States Courts, Federal Judicial Caseload Statistics (Mar. 31, 2010), https://www.uscourts.gov/statistics-reports/analysis-reports/federal-judicial-caseload-statistics.
4 A search of Westlaw’s CTA11 database for the Westlaw topic number for mandamus (250), “the most frequently used writ” in federal courts, reveals four 2010 cases discussing the writ.
5 2 8 U.S.C. §1615.
6 See United States v. Denedo, 129 S. Ct. 2213, 2222 (2009).
7 James Wm. Moore et al., Moore’s Federal Practice §204.02 (3d ed. 1997).
8 In re United States, 572 F.3d at 309.
9 Id. at 312-13.
10 Gurley, 411 F.2d at 586-87.
11 Id. at 587.
13 In re Mangino, 201 Fed. Appx. 888, 889-90 (3d Cir. 2006); Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988); White v. Ward, 145 F.3d 1139, 1140 (10th Cir. 1988); Moye v. Clerk, DeKalb County Superior Court, 474 F.2d, 1275, 1275-76 (5th Cir. 1973); Haggard v. State of Tenn., 421 F.2d 1384, 1386 (6th Cir. 1970).
14 Moody v. United States, 874 F.2d 1575, 1578 (11th Cir. 1989).
15 Black’s Law Dictionary
980 (8th ed. 2004).
16 Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1220 (11th Cir. 2002)
(quoting Corn v. City of Lauderdale Lakes, 904 F.2d 585, 587 (11th Cir. 1990)).
17 Armstrong, 138 F.3d at 1385-86 (quoting In re Temple, 851 F.2d 1269, 1271 (11th Cir. 1998)).
18 Preferred Sites, LLC, 296 F.3d at 1220 (quoting 28 U.S.C. §1651).
19 Calderon, 2010 WL 5297741 at *1 (quoting Moye, 474 F.2d at 1275-76).
20 Mohwish, 1998 WL 466567 at *2.
21 Simmat, 413 F.3d at 1234-35.
22 Compare id. at 1235 (“Federal courts have often invoked §1361 as the jurisdictional basis for challenges to federal prison conditions.”) with Starbuck v. City and County of S.F., 556 F.2d 450, 459 n.18 (“[§1361] does not provide an independent ground for jurisdiction.”).
23 See In re Urohealth Sys., Inc., 252 F.3d at 506.
24 See Walbolt & Lang, Original Proceedings, Writ Large, 83
Fla. B.J. 38, 41 (Oct. 2009); Hendricks, Which Writ is Which? A Trial Attorney’s Guide to Florida’s Extraordinary Writs, 81
Fla. B.J. 46, 47 (April 2007); Reiter, Common Law Writs – From the Practical to the Extraordinary, 80
Fla. B.J. 32, 34 (Feb. 2006).
25 See, e.g., Jenkins v. Weinshienk, 670 F.2d 915, 917 (10th Cir. 1982); cf. Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 376 (2004).
26 Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 352-53 (1976).
27 Perry v. Schwarzenegger, 591 F.3d 1147, 1156-59 (9th Cir. 2010).
28 Matter of Vuitton et Fils, S.A., 606 F.2d 1, 5 (2d Cir. 1979).
29 See, e.g., In re Justices of the Superior Court Dept. of Mass. Trial Court, 218 F.3d 11, 15 n.3 (1st Cir. 2000).
30 See, e.g., In re Dominguez, 131 S. Ct. 608 (2010).
31 See, e.g., In re Atlantic Pipe Corp., 304 F.3d 135, 138 n.1 (1st Cir. 2002); In re Weyraugh, No. 94-8006, 1994 WL 173875 (D.C. Cir. 1994).
32 In re Duro Indus., Inc., 293 B.R. at 277 (quoting 19
James Wm. Moore et al., Moore’s Federal Practice §204.01(2)(c) (3d ed.1997)).
33 Vratil, 96 F.3d at 1341.
34 Black’s Law Dictionary
1285 (8th ed. 2004).
35 Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1131 n.5 (9th Cir. 1994).
36 See Belec v. Amerco, 39 F.3d 1186 (9th Cir. 1994).
37 Andrade v. Lauer, 729 F.2d 1475, 1497-98 (D.C. Cir. 1984).
38 D. C. Code § 16-3502 to -3503.
39 Andrade, 729 F.2d at 1498.
40 Newman, 238 U.S. at 547.
41 Taitz, 707 F. Supp. 2d 1.
42 Black’s Law Dictionary
362 (8th ed. 2004).
43 United States v. Denedo, 129 S.Ct. 2213, 2220 (2009) (quoting United States v. Morgan, 346 U.S. 502, 507 (1954)).
44 Id. at 2220 (quoting Bronson v. Schulten, 104 U.S. 410, 416 (1882)).
45 Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).
46 Id. at 158.
47 & #x201c;Terms and Connectors” search of Westlaw database “CTA11” for “grant ‘coram nobis.’”
48 Peter, 310 F.3d at 712.
49 Id. at 715-16.
50 Black’s Law Dictionary
141 (8th ed. 2004).
51 7 A C.J.S. Audita Querela §4 (internal citations omitted).
52 United States v. Feist, 585 F. Supp. 2d 1107, 1110 (D.N.D. 2008).
53 Black’s Law Dictionary
1373 (8th ed. 2004).
54 Western Sur. Co. v. United States, 100 F.2d 88, 90 (9th Cir. 1938).
55 Id. at 89.
56 Black’s Law Dictionary
1060 (8th ed. 2004).
57 D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 209 (1932).
58 United States v. Shaheen, 445 F.2d 6, 10 (7th Cir. 1971) (Stevens, J.).
59 Id. at 11.
60 Fla. Stat. §61.11(1) (2010).
61 See 26 U.S.C. §7402(a); United States. v. Mathewson, No. 92-1054-CIV, 1993 WL 113434 at *1-*2 (S.D. Fla. 1993).
Erik W. Scharf is a former federal law clerk and board certified appellate specialist.
Wayne R. Atkins was admitted to The Florida Bar in 2010 and is an associate of Erik W. Scharf, P.A.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Bretton C. Albrecht, assistant editors.