4.14 Mandamus and Prohibition

• Library: Appellate Practice - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

4.14 MANDAMUS AND PROHIBITION

4.1401 Mandamus—The Bauman Analysis. Some years ago, in Bauman v. United States District Court, ¹¹⁵ the court attempted to distill from the reported decisions an analytical framework for assessing petitions for mandamus. The court identified "some general admonitory language" and five "guiding principles." The admonitions, based directly on language from opinions of the Supreme Court, included:

1.	The remedy of mandamus is a drastic one, to be applied only in extraordinary situations.
2.	The writ has traditionally been used in the federal courts 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.
3.	Only exceptional circumstances, amounting to a judicial usurpation of power justify the invocation of this extraordinary remedy.
4.	Review by mandamus does not run the gauntlet of reversible errors. 116

Bauman identified five "specific guidelines" for analysis of a mandamus petition, recognizing that they "do not always result in bright-line distinctions":

1.	The party seeking the writ has no other adequate means, such as a direct appeal, to attain the desired relief;
2.	The petitioner will be prejudiced or damaged in a way not correctable on appeal;

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3.	The district court's order is clearly erroneous as a matter of law;
4.	The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and
5.	The district court's order raises new and important problems, or issues of law of first impression. 117

Bauman has been cited by courts in all circuits except the Fourth Circuit. Courts citing Bauman have recognized that not all five guidelines will apply in every situation, ¹¹⁸ and that, in particular, the fourth and fifth guidelines may be mutually exclusive. ¹¹⁹

4.1402 Mandamus—The Fourth Circuit's Analysis. As of the date of this writing, no court in the Fourth Circuit has cited Bauman. In denying mandamus petitions through per curiam orders, ¹²⁰ the Fourth Circuit consistently articulates a shorter set of governing principles:

1.	Mandamus is a drastic remedy and should be used only in extraordinary situations, citing Kerr v. United States District Court 121 and United States v. Moussaoui; 122
2.	Mandamus relief is available only when the petitioner has a clear right to the relief sought, citing In re First Federal Savings & Loan Ass'n; 123 and
3.	Mandamus may not be used as a substitute for appeal, citing In re Lockheed Martin Corp. 124

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In Moussaoui, the court, quoting Supreme Court precedent, phrased this third principle as "the party seeking issuance of a writ [must] have no other adequate means to attain the relief he desires." ¹²⁵

4.1403 Prohibition. While a writ of prohibition may be sought alone, a request...