Coram what? An introduction to federal special writs.

Author:Scharf, Erik W.
Position:Appellate Practice

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 Act (5) (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...

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