In re W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Petitioners.
No. 75-1464.
United States Court of Appeals, Fifth Circuit.
July 24, 1975.
Rehearing and Rehearing En Banc Denied Oct. 6, 1975.
As to the second proposition, that regardless of the shortcomings of the charge, as laid in the indictment, somehow a case was made out: in addition to the quotations, supra, from Part II of the panel opinion, I turn to an additional, statement in that opinion, 497 F.2d at 933:
It is undisputed that the United States offered no proof that the deposits of the Union were insured in the manner charged.
That was enough to end the matter.
As to the search point covered by Judge Dyer‘s dissent, the majority labors mightily to salvage a patently unconstitutional search and seizure. This ad hoc approach serves the purpose, in addition to preserving Mrs. Hand‘s conviction, of approving unbelievably sloppy police work.
As to Part II, to which this dissent is directed, incredibly inefficient and insufficient pleading and proof by a United States Attorney, or perhaps his assistant, while certainly not approved, is not condemned either. I do not perceive a valid reason for this court to rescue this gentleman.
That Mrs. Hand may escape from punishment is overshadowed here by more important considerations. Poor performance by investigators and prosecutors should not pass muster unscathed and uncensured on the basis of an ad hominem approach that guilt of some offense is clear from the record. This misconceives our prime function of reviewing errors of law. I suggest also that occasional merited criticism of police and prosecutors is beneficial to the advancement of good order and discipline.
Efficient crime detection and punishment is not advanced but is retarded when we place precedents such as today‘s in the books. It will return to vex us on another day.
With deference, I dissent from the majority opinion on the basis of these views as to Part II, as well as with respect to the unconstitutional search and seizure, so convincingly explicated by Judge Dyer.
ON PETITION FOR REHEARING
PER CURIAM:
It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.
WISDOM, THORNBERRY, GOLDBERG, DYER, SIMPSON and MORGAN, Circuit Judges, would grant the petition for rehearing for the reasons stated in Judge DYER‘s dissent to Part I of the opinion of the court en banc, GODBOLD, Circuit Judge, would do so for the reasons stated in his separate dissent to Part I of that opinion, and DYER and SIMPSON, Circuit Judges, would do so for the additional reasons stated in Judge SIMPSON‘s dissent to Part II thereof.
Jack W. Flock, Mike A. Hatchell, Tyler, Tex., William Bennett Turner, San Francisco, Cal., for David Ruiz and others.
Roby Hadden, U. S. Atty., Tyler, Tex., Gail Littlefield, Office of Public Accommodation & Facilities, J. Stanley Pottinger, Asst. Atty. Gen., Civil Rights Div., Dept. of Justice, Washington, D. C., for Public Accommodation & Facilities.
Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
TUTTLE, Circuit Judge: *
This is an original proceeding for a Writ of Mandamus or of Prohibition against the Hon. William Wayne Justice, United States District Judge for the Eastern District of Texas, Tyler Division. Petitioner W. J. Estelle, Director of the Texas Department of Corrections (TDC), seeks a Writ, pursuant to the All Writs Act,
I.
Over three years ago, David Ruiz and seven other inmates of the Texas Department of Corrections filed suits under
The trial court appointed counsel to represent the plaintiffs, and granted the plaintiffs’ motion six months ago to file an amended complaint.1 The court further ordered the case to proceed as a class action, pursuant to Rule 23(b)(2), F.R.Civ.P., but deferred definition of the class.
Between the filing of the original complaints and the filing of the amended complaint, the court ordered the United States to appear in the case as amicus curiae “[i]n order to investigate fully the facts alleged in the prisoners’ complaints, to participate in such civil action with the full rights of a party thereto, and to advise [the] court at all stages of the proceedings as to any action deemed appropriate by it.”
On December 6, 1974, the trial court granted the motion of the United States to intervene and ordered its complaint in intervention filed. In its capacity as plaintiff-intervenor, the United States has commenced substantial discovery. In addition to serving notice of depositions and to propounding interrogatories, the United States has a pending request
The petitioner moved to dismiss the United States as amicus curiae and as plaintiff-intervenor on January 30, and on February 5 to stay participation by the United States in the case pending a determination of its status. The trial court denied the petitioner‘s motions after a hearing and further denied a request to certify an interlocutory appeal of the ruling pursuant to
Thereafter on February 18, the petitioner filed a petition in this Court for a Writ of Mandamus and/or other extraordinary relief to prevent further participation by the United States in the case, and on February 28 this Court stayed “[a]ll proceedings involving or initiated by the United States” pending disposition of the petition. The case was set for argument at an expedited hearing. The petitioner claims that the trial court abused its discretion under Rule 24(b)(2), F.R.Civ.P., by permitting the United States to intervene in the case and that a Writ of Mandamus or Prohibition should be granted to bar further participation by the United States.
II.
A.
The prerequisite standards for issuing an extraordinary Writ under the All Writs Act have been frequently rehearsed, although their meaning is sometimes conceptually elusive. See Bell, The Federal Appellate Courts and the All Writs Act, 23 Sw.L.J. 858, 862-67 (1969). However, the standard we set out ten years ago in Miller v. Connally, 354 F.2d 206, 208 (5th Cir. 1965), is still applicable as a general rule today:
“The Writs of Mandamus and Prohibition are granted sparingly. Such writs are ‘reserved for really extraordinary causes,’ Ex Parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041, 2043 (1947), and should be issued only when the right to such relief is ‘clear and indisputable.’ United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559, 561 (1899). To some extent they are supervisory in nature and are used ‘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.’ Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, 1190 (1943). They are not to be used as a substitute for an appeal, or to ‘control the decision of the trial court’ in discretionary matters. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106, 111 (1953).”
The Writ is thus a “drastic remedy,” Will v. United States, 389 U.S. 90, 104, 88 S.Ct. 269, 278, 19 L.Ed.2d 305 (1967), that must not be used to regulate the trial court‘s judgment in matters properly left to its sound discretion, but that may be available to “confine the lower court to the sphere of its discretionary power,” Id. No court has ever precisely defined “sphere of discretionary power,” but it is clear that an extraordinary Writ may be appropriate to prevent a trial court from making a discretionary decision where a statute effectively removes the decision from the realm of discretion. Cf. S.E.C. v. Krentzman, 397 F.2d 55 (5th Cir. 1968).3
However, even were we to hold that the United States lacked a requisite interest within the meaning of Rule 24(b)(2) and therefore that the trial court had abused its discretion by allowing intervention, the petitioner would not automatically be entitled to the extraordinary Writ he seeks. “Mandamus, it must be remembered, does not ‘run the gauntlet of reversible errors.’ Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147, 98 L.Ed. 106 (1953).” Will v. United States, supra, 389 U.S. at 104, 88 S.Ct. at 278. The Writ “may not be used to thwart the congressional policy against piecemeal appeals,” Id. An order allowing intervention is interlocutory and may not be appealed immediately. See Van Hoomissen v. Xerox Corp., 497 F.2d 180 (9th Cir. 1974); Wright & Miller, Fed. Prac. and Procedure: Civil § 1923. The proper remedy for review of such an order is appeal from final judgment. See, e.g., S.E.C. v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940); Stell v. Savannah-Chatham County Board of Education, 333 F.2d 55 (5th Cir. 1964), cert. denied sub nom. Roberts v. Stell, 379 U.S. 933, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964). Were we to grant the Writ sought in this proceeding, we would be circumventing the rule of finality and subverting well-established lines of appellate review in matters of this sort.
It is no answer for the petitioner to argue that participation by the United States in Ruiz will result in burdensome and expensive discovery. In the first place, even the expense and inconvenience of a trial as a prerequisite to review has been held not to justify the issuance of mandamus without more. Roche v. Evaporated Milk Assn., supra, 319 U.S. 21, 30-31, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); United States Alkali Assn. v. United States, 325 U.S. 196, 202-203, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945). In the second place, moreover, the claim of hardship of which the petitioner complains here is either unexceptionable or premature. It is unexceptionable because it is no more than the full and vigorous discovery that a large, system-wide class action anticipates. In any event, the petitioner‘s complaint as to the scope and cost to him of the discovery sought by the United States is premature, because the trial court has yet to rule on the petitioner‘s motions to limit and prevent certain aspects of the enquiries proposed by the United States. The Federal Rules of Civil Procedure, especially Rule 26(c), provide a number of grounds for limiting discovery and protecting parties from unreasonable and unduly burdensome investigations and enquiries. Yet the petitioner has declined to invoke the panoply of protection offered by Rule 26(c), and instead has sought interlocutory review through the All Writs Act. This failure to invoke protection available in the district court makes the alleged hardship speculative, if not ephemeral, and only serves to underscore the dangers of truncating litigation by resort to extraordinary interlocutory review. In short, the petitioner has failed to demonstrate any hardship, let alone any irreparable harm, that has occurred or is likely to occur immediately. We see no reason to ignore the rule of finality and the clearly established modes of review for orders of the type in question.
B.
Judge Morgan concludes that the petition should be denied for the reasons outlined above. While I agree that the petition should be denied, I believe firmly—because the petition raises an important question of first impression, and a question of the scope of the trial court‘s power under the Federal Rules of Civil Procedure—that it is appropriate to reach the merits of the question rather than resting the decision only on the reasons discussed above. Cf. Schlagenhauf v. Holder, 379 U.S. 104, 111, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); and see, generally, Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L.Rev. 595 (1973).
Rule 24(b)(2), F.R.Civ.P., provides:
“Upon timely application anyone may be permitted to intervene in an action: * * * (2) when an applicant‘s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for [a] ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the trial court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” [Emphasis added.]
The “claim or defense” portion of the rule has been construed liberally, and in-
The United States, acting as respondent in this proceeding pursuant to Fifth Circuit Local Rule 22, contends that it satisfies the requirements of Rule 24(b)(2), and thus that the trial court acted within the sphere of its discretionary power in permitting it to intervene, on three grounds: 1) that it falls within the express language of the Rule, 2) that it has inherent authority to participate in litigation involving its interests (e. g., In Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 [1895]), and 3) that
The original complaint in this case, as well as the amended complaint and the complaint of the United States in intervention, were all grounded on
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territo-
ry, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
§ 241. Conspiracy against rights of citizens.
If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; * * * They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any terms of years or for life.
§ 242. Deprivation of rights under color of law.
Whoever, under color of any law, statute, ordinance, regulation, or custom, wilfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.
The conceptual overlap of the civil and criminal statutes is obvious: they are both aimed, virtually by the same operative language, at redressing the deprivation of civil rights under the color of state law. Indeed, as we have said before, the criminal and civil statutes are in pari materia. Baldwin v. Morgan, 251 F.2d 780, 789 (5th Cir. 1958). See also Picking v. Pennsylvania R. Co., 151 F.2d 240, 248-48, reh. denied, 152 F.2d 753 (3rd Cir. 1945), cert. denied, 332 U.S. 776, 68 S.Ct. 38, 92 L.Ed. 361 (1947); McShane v. Moldovan, 172 F.2d 1016, 1020 (6th Cir. 1949). See also State of Arkansas v. Central Surety & Ins. Corp., 102 F.Supp. 444, 448 (W.D.Ark.1952).
The effect of the overlapping coverage of these statutes is to grant power if not to place a duty on the United States to prosecute, with the criminal sanction, the same deprivations of rights of which the TDC inmates complain in their civil action. However, it is extremely doubtful that criminal penalties would be effective, or even fully adequate, to vindicate the coverage promised by
The principle of permitting civil relief where criminal sanctions are inadequate or ineffective is deeply rooted in the common law. Cf. Texas & Pacific Ry. v. Rigsby, 241 U.S. 33, 38-40, 36 S.Ct. 482, 60 L.Ed. 874 (1916). See also J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). It is “in accordance with [the] general rule of the law of torts. See Restatement (Second) of Torts § 286.” Wyandotte Co. v. United States, supra, 389 U.S. at 202, 88 S.Ct. at 386. There is no reason to deprive the United States, and those whose rights it is responsible to protect, of the benefit of the rule. Id.
I would hold, therefore, that the United States was entitled to seek civil relief in Ruiz based on the scope and the mandate of the protection guaranteed by analogous criminal statutes, and thus that the “claim” of the United States, within the meaning of Rule 24(b)(2), F.R.Civ.P., was not only “common” but identical to that asserted by the original pro se plaintiffs. Consequently, the trial court acted within the “sphere of [its] discretionary power” in permitting the United States to intervene permissively pursuant to the Rule.5
Accordingly, the petition for a Writ of Mandamus and/or other extraordinary relief is denied and the stay of proceedings in Ruiz v. Estelle entered by this Court on February 28 is vacated.
It is so ordered.
GODBOLD, Circuit Judge (concurring in part):
I concur in the conclusion in Part II of Judge Tuttle‘s opinion that mandamus should be denied. My analysis is, however, slightly different.
While petitioner employs the rubric of abuse of discretion it seems to me that this case does not fall neatly within that category. Rather petitioner‘s basic contention is that as a matter of law (and
Thus the issue is not the trial judge‘s range of discretion, see S.E.C. v. Krentzman, 397 F.2d 55 (CA5, 1968), but an alleged error of law antecedent to any exercise of discretion. The coincidental existence of discretion in Rule 24 should not lead us to review by mandamus the antecedent question of law under the abuse of discretion rubric. A ruling on a question of law may be challenged as so egregiously erroneous that the court‘s action should be deemed a usurpation of power. See United States Alkali Exp. Asso. v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). Such an extremely bad judicial decision might justify mandamus under the rubric of “usurpation.” De Beers Consol. Mines v. United States, 325 U.S. 212, 65 S.Ct. 1130, 89 L.Ed. 1566, 1572 (1945). The question presented here is a close one. The trial judge‘s decision, if erroneous, was not so egregious as to constitute a usurpation of power.
Moreover, to the degree that usurpation may turn not on the closeness of the legal question but rather on the adverse effects on the aggrieved party, cf., De Beers Consol. Mines, supra, petitioner here is suffering no consequences of the type and magnitude that should cause us to exercise our power to issue extraordinary writs. Petitioner is in court as a defendant, and presumably he must go through trial in any event. While he objects to being subjected to discovery at the behest of the United States, the other parties plaintiff unquestionably have the identical right, though possibly not the same means and manpower, to pursue discovery.
Whatever the ultimate decision on the merits of this case, the question of the propriety of intervention by the United States can be considered on appellate review in the usual course of litigation.
I agree that interference by mandamus at this stage of these proceedings would be improper.