*1 decision-making. justified if had reasoned the Administrator record proceedings standards, on on the basis of tests is remanded for further opinion. existing inconsistent with or old test data this sources extrapolations literature, on from but ordered. So responsive data, basis on a reasoned testimony comments, ex- to perts on part of the vendors made was not followed

record. This course in his Instead,

here. the Administrator tests on

statement of reasons relied on literature, existing plants and the ref- EPA now discounts without counsel DONNELLY, Petitioner, John J. support erence record take to other place. Barrington al., Honorable D. PARKER et objectives Administrator’s Respondents. laudable, expressly re- but the statute No. 73-1259. quires, promul- for the standards he Appeals, States Court gates, technology be achievable. District oi( Columbia Circuit. This an ade- record reveals a lack of Aug. quate opportunity of the manufacturers standards, proposed

to comment on the due to the of the absence disclosure findings procedures detailed following tests. This not cured our previous October 1972 remand

agency.

We have identified a number of require

matters that consideration and

clarification on remand. we re While approaching

main problems diffident complexity, this technical see Interna Harvester,, supra, tional

U.S.App.D.C., at 647 ne F.2d the cessity decisions, agency if it meaningless to be more than a exer

cise, enough requires steeping in techni

cal matters to determine whether the

agency “has exercised a discre reasoned (I), tion”. Greater Boston TV v. FCC U.S.App.D.C. 383, 392, 444 F.2d can We judgment not substitute our that of duty agency, it is our consid

er whether “the decision was based

consideration of the relevant factors and

whether there has been a clear error of

judgment.” Citizens To Preserve Over

ton Volpe, Park v. 28 L.Ed.2d 136

Ultimately, believe, we that the cause of clean environment is best served *2 presented here,

cumstances by way not reviewable of mandamus. accordingly deny the We writ. I *3 attorney practicing Petitioner is an the He Columbia. joined party in a as defendant suit Kunz, filed in name a form- the of Mrs. alleges complaint er client. The therein that an unauthorized caused disposition to made of securities it re- owned Mrs. seeks a damages. turn the or securities Sullivan, Washington, Jr., B. Charles petition C., was on for writ of D. the ground Petitioner defends on the that petitioner. mandamus for gave ownership Mrs. Kunz him partial payment securities of a fee Jr., Titus, Atty., Harold H. U. S. John for services rendered her Pe- behalf. Terry, Reilly, A. Peter R. Asst. U. says titioner also Kunz was Mrs. Attys., opposition on the were S. services, satisfied and that she petition respondent for Parker. moving spirit is not the behind the liti- Philip Margolius, N. Washington, gation. D. fact, petitioner, asserts sub- opposition petition C., onwas to the sequent completion services, respondent for Kunz. point her health deteriorated bring capacity she lacked the action.1 Jr., Cobb, Calvin H. and William G. Christopher, C., Washington, were on D. That Mrs. Künz has been victimized opposition respondent Ferry & by sudden and serious illness is conced- Co., Inc. rather, discord, ed. The is over the con- dition in which the illness has left her FAHY, Judge, Before Senior Circuit impact upon proceeding. and its ROBB, and ROBINSON Circuit dispute ripened The consid- Judges. petitioner gave eration when notice that deposition. he would take Kunz’ ROBINSON, III, SPOTTSWOOD W. Her counsel then moved for an order Judge: Circuit barring ground activity on the rigors she was “unable to withstand the This pe- case is before the court on a deposition and is further in such a directing tition for a writ of mandamus physical debility state of mental and Barrington Parker, the Honorable D. present she unable at the time Judge United States District questions concerning answer this mat- Columbia, physical District of to order supported by ter.” The .motion was and mental examination of Catherine W. attending physi- affidavit of Mrs. Kunz’ .plaintiff Kunz, the named in an action stating physically cian that she “is not brought against petitioner and another mentally undergo or dep- able to an oral Judge District Court. Parker de- osition and not be fit to do so for nied motion for the exami- some time come.” The affidavit add- nations, validity and the of that approximately ed that Mrs. Kunz “is subject lively argumentation is a years rigors depo- old of an oral unnecessary here. We find it to enter endanger sition accept at this debate that score we would her time that, Judge granted the further contention in the cir- health and life.”

1. But see text at notes 13-19. infra invoking deposition Act,5 motion, now All Writs thus seeks relief the hand of court.6 precluded. thereafter, petition Promptly II motion for di his er filed own physical admon examina As the recting and mental ishes, peremptory motion writ of manda Kunz.2 tions “[t]he traditionally event that the exami mus used in the has been warned peti disability, an inferi- disclosed mental federal ‘to confine nations courts pre the lawsuit lawful tioner would move dismiss exercise accompa compel spurious. jurisdiction motion was scribed stating duty by petitioner’s nied affidavit is its exercise its when ”7 say, filed with how suit had to do belief been so.’ That *4 authority. motion ever, every jurisdictional or out Kunz’ excess Mrs. grounds opposed support Mrs. Kunz’ manda omission will a call for against judge. physical-mental condition was For mus a federal good controversy, cause and that never confined the courts have “[w]hile arbitrary shown.3 The had not been examinations to an and technical themselves opposition ‘jurisdiction,’ Kunz claimed that Mrs. clear also definition of competent only exceptional coun when she obtained circumstances Judge ‘usurpation amounting him to sue.4 of sel and authorized petitioner, power’ justify motion and denied the invocation this Parker will of physical requiring or condition mental 2. “When the counsel Mrs. for an order for party, (including group) represent authority of a or blood his to her Kunz to show custody person request under the le- a in the or of here. this The cornerstone of controversy, party, premise gal is in a control of to which is basic pending may may action is in which the Kunz be bid for Mrs. mandamus —that physical party incompetent peti mentally a or to submit order the from this —and by physician incompe argues or examination mental produce tioner if in fact she is person tent, authority in his for examination the has her counsel’s terminated. may custody legal be or control. The have undoubted We infra. good require cause shown made on motion counsel before us to dem person upon g., authority, be exam- and notice to e. onstrate their Pueblo specify parties 315, 319, Fall, and shall ined and to all Santa Rosa 273 U.S. scope conditions, place, manner, time, (1927), and L.Ed. but the cir persons person against examination militate cumstances exercise of by require Fed.R.Civ.P. is to be made.” whom it it here. Kunz’ discretion Mrs. 35(a). physical-mental burning remains a condition may Court; indeed, issue in the Schlagenhauf 2, supra. See also 3. See pivot upon be the much of the case which Holder, v. 234, 379 U.S. on the merits will That court is the turn. (1964). 13 L.Ed.2d forum in which resolution of the issue an affi 4. Counsel filed the District Court should be undertaken in the first instance. lucid, stating davit while Moreover, equipped this to em court is not appeared personally had in his office and upon explora evidentiary bark the kind of allegations affirmed on which the suit is controversy tion sort ob theory founded. Counsel’s is that notwith viously permit demands. should Counsel be standing subsequent illness, had her full representation, ted his to continue both here proceed in But see Court, her behalf. and in the District until . suitably can infra be determined there. 5. “The Court and all courts estab- 90, 95, 7. Will v. United Congress may lished issue all Act quoting necessary writs aid of Evaporated Ass’n, Roche v. Milk respective jurisdictions agreeable their 87 L.Ed. 1185 usages law.” to the See, Schlagenhauf effect, same to the 1651(a) (1970). U.S.C. Holder, supra joined Life & 6. Petitioner code- Bankers Cas. Co. v. Mrs. Kunz corespondents Judge fendant with petition He now asks for mandamus. extraordinary remedy.” And or, while as to where Kunz is domiciled14 may an unusual case course, just lie to mentality as to what her performance judicial may enforce be, but these matters are of little responsibility,9 jurisdiction. it is well settled that it moment If the law cannot be used as a substitute irrespective her domicile she can sue appeal.10 proponent of mandamus actual incompetence, mental she showing has “the burden any do so in [his] federal But if court. even right of the domiciliary issuance writ is ‘clear law undertook to with ”11 indisputable.’ draw that attribute because of mental litigation disability, rights of her in the bar, Plainly, case governed by District Court is still to be Judge ju the District did not exceed his 17(c).15 Federal Civil Rule That rule risdiction —in real sense provides appoint court shall “[t]he Capacity individual, word.12 of an ad litem for in an . acting representative character, competent person repre not otherwise sue or sued in be the federal courts is sented in an action or shall make such ordinarily determined the law proper other order as it deems of his domicile.13 The record before us protection incompetent . . . permit satisfactory person.” So, does not conclusion state confer law *5 States, supra 7, 8. v.Will United 389 would undermine the settled limitations 95, 273, quoting upon appellate 88 De U.S. S.Ct. of an court to re- interlocutory ‘jurisdic- Beers Consol. Mines v. United 325 view orders. Neither 212, 217, 1130, ‘power’ 65 U.S. S.Ct. 89 L.Ed. 1566 tion’ nor can be said ‘run (1945). See, effect, gauntlet to the same Ex of reversible errors.’ Bankers Life Fahey, 258, 1558, 260, Holland, 332 U.S. 67 S.Ct. 91 & Cas. Co. v. 346 U.S. 74 (1947). 145, (1953). L.Ed. 2041 S.Ct. [98 147 L.Ed. 106] petitions peremp- Courts faced with 268, g., Carland, 9. E. McClellan v. 217 U.S. tory they writs must be careful lest suffer 279-282, 501, (1910) 54 L.Ed. 762 themselves to be misled labels such as (refusal case) proceed Winn, ; In re power’ ‘abuse of discretion’ and ‘want of 458, 465-468, 213 29 L. U.S. S.Ct. 53 interlocutory nonappealable into review of (1909) (refusal case) ; Ed. 873 to remand ground they may orders on the mere Grossmayer, In re 177 20 be erroneous.” (1900) (refusal 44 L.Ed. 665 jurisdiction) ; parte Schollenberger, 17(b). take 13. Fed.R.Civ.P. v. Louisi- Slade (6 Otto) 369, 374-378, Light Co., 96 24 L.Ed. 853 ana Power & 418 F.2d 126 (cid:127) ; (1878) cert, (refusal jurisdiction) (5th 1969), to take Staf Cir. 397 U.S. Bank, (17 How.) 275, (1970) ; ford v. Union 58 U.S. (refusal (1854) 15 Simmons, L.Ed. 101 Brimhall 338 F.2d 706 execution) ; (6th 1964) issue ; Hale, Life & Fire Ins. Co. v. Cir. Redditt v. 184 F.2d (8 Wilson, Pet.) 291, 301-304, (8th 1950) Wright 33 L. ; 8 447 Cir. 6 C. & A. (1834) (refusal sign judgment) ; Ed. 949 Miller, (1971). Federal § Practice 1571 UMW, U.S.App.D.C. 193, Gouran, Yablonski But see Fallat v. 220 F.2d (3d 454 F.2d 1955). de Cir. nied, 31 L.Ed. Seemingly, point directly 14. has not been (1972) (refusal mandate). 2d 816 to follow litigated in the District Court. 10. See discussion text at notes 23- infra Bengtson 15. v. Travelers Indem. 26. , F.Supp. 512, (W.D.La.1955), aff’d, (5th 1956) Bankers Life & ; Cas. Co. v. City su- F.2d 263 Cir. First Nat’l pra Corp., Bank v. Gonzalez & Co. Sucr. quoting Duell, F.Supp. 596, (D.Puerto 1970) United ; States Rico Wright Miller, 43 L.Ed. 559 C. A. & Federal Practice Accord, States, supra Plumer, Will United See also Hanna v. 14 L. 469 — (1965) ; Ed.2d 8 Constantine v. Southwest 12. As the Court stated in v.Will Institute, F.Supp. 417, ern Louisiana States, supra at 98 n. (W.D.La.1954). 418 — 419 argue S.Ct. at it will not do “to judge ‘power’ has no incompetent per- to enter an erroneous an “Whenever infant or Acceptance fallacy representative, general order. of this son semantic has a such as a attempt would be to do so capacity or deny to sue defend surely par court-ordered only unwise.21 And federally,17 effect of a and the of Mrs. physical-mental examination upon ty’s incompetence maintenance ap safe- Kunz, under possible conducted need is the the action important guards, might developed have en or pointment ad litem those information to serve both try event protective no order.18 materially purposes,22 ad- thus jurisdiction to entertain is federal progress toward of the suit vance cause diminished.19 judgment merits. on the final Ill present procedural In the open however, case, con posture other claim these They point. the circumstances are beside siderations put Judge duty issue under do not survive threshold sought. ruling The ev can now be the examinatorial the contested whether poor proceeding or Kunz’ idence state reviewed in a mandamus challenge, petitioner’s could, on the District health must await whether review in presented disposition. occasion for the Su have As Court’s final ju capacity quiry preme to understand our observed, into her “[a] Court has litigation meaning risprudence strongly effect of colored Beyond being prosecuted appellate in her name.20 should be notion that narrowly that, despite except adverse postponed, the earlier in certain depose circumstances, effort after final until defined opportu judgment a fair trial entitled to he was rendered has been averring nity the affidavit not ‘run the to contest Mandamus “does court.” committee, conservator, attorney-client guardian, preexisting or other terminate or relationship. Dunne, fiduciary, representative sue like See Sullivan incompe- ; (1926) infant behalf of the Evans defend on 244 P. Cal. *6 incompetent (Ct.App.Mo. person. 749, York, If infant or tent person an 217 751 S.W.2d rep- 208, duly appointed App.Div. 1949) Merritt, ; does not have v. 27 Merritt by (1898). 604, his next friend See also resentative he sue 605-608 50 N.Y.S. appoint 832, 836, guardian Hall, shall 32 P.2d ad litem. The court v. 139 Kan. Jackson 1055, (1934) ; ad litem an or incom- infant v. Commissioner 1057 Lewis represented 790, petent person Banks, 570, 575, N.E. not otherwise Mass. 190 286 (Second) (1934) ; an shall make such other order action or Restatement 791 protection proper 122(1) (1958). Agency of the it deems Kimmie v. § Cf. incompetent person.” Ass’n, 412, 126 infant or Fed.R.Civ. R. 344 Mo. S.W.2d Terminal 17(e). 1197, (1939). P. 1200 supra 13, 17. 15. mentally-able litigant See authorities cited notes physically 21. A and by respond obligation effort bears Co., 18. See Roberts v. Cas. 256 Ohio Ins. deposition-discovery adversary to obtain (5th F.2d 68 A.L.R.2d 747 Cir. unprivileged information relevant of subject 1958) Noble, F.Supp. ; United States v. 269 30(a), in suit. Fed.R.Civ.P. matter 814, (E.D.N.Y.1967). 815 36(b). 19. See New Mexico Veterans’ Serv. Comm’n Bodnar, 1103, 22. v. 441 F.2d See Bodnar Lines, 548, v. United Van 325 F.2d 550 cert, (5th 913, Cir.), denied, 1104 404 U.S. (10th 1963). also Till Cir. See v. Hartford (1971). 232, 92 30 L.Ed.2d 186 See S.Ct. Co., 405, Accident & Indem. 124 408- F.2d States, F.Supp. also Smith v. United 174 (10th 1941) ; Sikes, 409 Cir. Rutland 203 v. dismissed, (S.D.Cal.), appeal 272 F.2d 828 F.Supp. 276, (E.D.S.C.), aff’d, 277 311 F.2d cert, (9th 1959), denied, 228 Cir. 362 U.S. (4th 1962), 538 Cir. 374 U.S. (1960). 954, 868, 80 4 S.Ct. L.Ed.2d 871 830, 1871, (1963). 83 S.Ct. said, (c) States, supra 7, 20. As we have di- 23. v. Fed.R.Civ.P. 17 Will note United 389 appoint 96, 274, rects district courts either at at U.S. 88 S.Ct. 19 L.Ed.2d 305. guardians protective 1291, (1970) ; ad litem or fashion or- also 1292 §§ See 28 U.S.C. incompetent persons States, 323, ders for not otherwise Cobbledick v. United represented. supra 326, 540, (1940). text at 15-19. 60 *7 usages (emphasis politan of law” Co., 405, Life Ins. 108 F.2d 406-407 supplied). Josephson, In (7th See re 218 1939). F.2d exceptions, Cir. There are 174, (1st 1954). applicable 177-179 Cir. As case here, that nonappeala- to the rule of warns, bility, g., Westinghouse Corp. E. Elec. v. City Burlington, U.S.App.D.C. 65, of 122 Supreme [D]ecisions of the Court of the 68-69, 762, (1965) ; 351 F.2d 765-766 Diaz States, prior 1948, sup United porting at least Drilling Corp., v. 1118, Southern 427 F.2d issuance, Court, that of a (5th Cir.), 1122-1123 Trefina writ of mandamus directed lower States, 878, A. G. v. United 91 S. court, may safely federal relied be 118, Ct. upon by appeals an intermediate court of Express Warehousing, 28. as American the issuance latter Ltd. v. Co., supra 27, Transamerica court of writ of Ins. note directed 380 283-284; Belships Co., F.2d at district court within the circuit. The rea Ltd. Skibs Republic might France, son is v. Court F.2d 184 119 A/S (2d 1950) ; exercising Line, have Cir. been Bank v. different sort of Ltd. United power strictly States, 133, auxiliary 136, (2d from the 163 F.2d 137 Cir. given ; Byram 1947) Concretanks, Meaney, us under the all writs Inc. v. section. 170, (3rd (emphasis original). ; 1961) 218 at 286 F.2d F.2d 179 171 Cir. See National Buy Corp. McClintic, Co., La also v. Bondholders 595, v. Leather 99 Howes F.2d (4th 309, 1938) ; 598-599 77 1 S.Ct. L.Ed.2d 290 Cir. In re Illinois (1957) (dissenting R.R., opinion). 465, (5th Cent. 1951) ; 192 F.2d 466 Cir. Corp. Druffel, Chemical Indus. v.

409 ruling, unchanged, appeal on peculiar if any ceive, circumstance truly rights judgment. apart No will final case set would irreparable injury contrary, no most be On jeopardized,31 unusual.29 position Judge nor will urged will be is that be that can suffered,32 irreversibly To be applying be standards erred compromised.33 expense, sure, petitioner incur added to the sit- physical-mental examinations simply delay perhaps encounter added displayed, and mandamus uation unnecessary subjected even be to an an error.30 reach to such does not trial, one “that inconvenience is question not whether Congress contem- which we take it must can obtain review judg- plated providing final can issue, he but whether examination 34 ments should reviewable.” petitioner’s defensive do now. so Should prove peremptory to be common- sum, “[t]he efforts litigate potent among the most ultimately unsuccessful, can law writs are arguments recognize at See also U.S. at 239. S.Ct. 29. We rulings supra States, encompass v. note U. Will United the contention impinged 269. complained at 104-105 n. 88 S.Ct. on Fed.R.Civ.P. S. 2, 16, supra. 35(a). 17(c) *8 in note at U.S. 63 S.Ct. at 943. Ac- allegation ion, cord, Holland, Dis- future Life Bankers & Cas. Co. v. applying 382-383, in in error trict Court was note particular guidelines 106; case these 98 L.Ed. Alkali Ex- United States remedy. port States, mandamus makes Ass’n v. United used is not to be The writ of mandamus also Will v. States, is be ‘the most that could claimed n. when U.S. strictly circumscribing piecemeal appeal, rul- have in the district courts erred “In jurisdiction.’ Congress ing within their on matters must in have realized that judicial Parr v. United course of ry decision some interlocuto- might see L.Ed. orders be erroneous.” Bankers Holland, Casualty Holland, supra Co. v. Bankers Life & Life & Cas. Co. supra, at 382. 74 S.Ct. at arsenal,” Compare parte judicial Eddy weapons in the Ex Skinner & remedies, they Corp., extraordinary “[a]s U.S. really extraordinary parte for. reserved 68 L.Ed. with Chicago, us is not causes.” The case before R.I. & P.R. U.S. The writ 631. This that character. L.Ed.- accordingly ought petitioner upon must which seeks to be called judge hold that where be a district denied. refused to entertain a “frivolous” Writ denied. claim, mandamus issue to will not compel him entertain it. FAHY, Judge, concur- Circuit Senior at 150. ring a comment: with Eddy Corp., to the lan In Ex The comment has reference Skinner & guage of Bankers Life & Cas. Co. v. 68 L. to, Ed. thus referred is said man- (1953) repeated extraordinary in the damus is remedial process present opinion right lan of our court. The awarded not as a matter of guage conveys but judicial the burden the view exercise of a sound Weight petitioner upon rests for the writ discretion. is thus added right mandamus to to is in show “that view indicated Justice Frankfurter’s indisput dissent the writ suance of is ‘clear writ issue dis- ” putable indisputable” “indisputa- The “clear able.’ An circumstances. language argues ble” unduly rigid turn from United standard is taken for an Duell, rigidity 576,- 19 S. rule. Such States illustrates the un- wisdom, me, phrasing I should Ct. 43 L.Ed. seems to suppose “indisputable” respect process read as be with or to synonymous “clear,” somewhat which with cannot Bankers itself was dis take into there consideration unknown and var- Life Frankfurter, may arise, iable sent Mr. Justice situations which apply whom Justice and Mr. Mr. Jackson Jus times a brake the fair joined. justice. the dissent tice Minton While administration grant primarily to the effect Bankers of certiorari the writ Life Judge: ROBB, Circuit improvident and therefore agree I writ must be denied. dismissed, writ Justice Frank should contends that is en- furter also stated: physical to an titled “the opinion help The Court’s does not de- mental plaintiff, examination of the Ca- party cision when a dismissed purpose tharine W. of de- litigation not as obvious- reasons termining capacity whether she had the ly compelling as in this It those case. bring the action and whether she has necessarily open leaves capacity to maintain the action. ruling by whether such a a district ”. I think the judge, judge mandamus, be reviewed discretion, properly exercise completion awaiting without refused requested to order the examina- litigation, in circumstances entire tion. postponement of review would where entailing protracted trial, involve The record discloses without contra- great heavy costs and inconvenience. diction that on October 1971 counsel parte Fahey, supra Will v. United 36. Ex *9 Accord, U.S. at L.Ed.2d 305. Will v. Accord, Fahey, 67 S.Ct. 1558. Parr v. United

4U Annot., petitioner N.Y.S.2d 63 the 71 A. Kunz wrote to for Mrs. demanding of her L.R.2d 1247. the return certain of possession. He in his that were assets now Mrs. Kunz is able to Whether respond In De- did not to this demand. give deposition respond a or otherwise January she cember interrogatories a presented complaint her to the Grievance court decide- of the Bureau Committee and to Federal proceedings. judge If wish- the district Investigation. April 26, re- she On give appoint- es consideration to suit; April file on counsel to tained guardian of ad litem for ment a Mrs. an Assist- she discussed the matter with so; he matters Kunz do these Attorney; her ant United States are not before us. May filed on 1972. On suit was June 15, 1972 Kunz suffered the stroke petitioner her men- claims left

which the

tally incompetent. my judgment

In the issue raised substance, without light disclosed of facts nothing suggest record. I find CIVIL LIBERTIES The AMERICAN re- counsel for Kunz should have Petitioner, UNION, filing lawsuit, as he her frained do, have with- was retained should FEDERAL COMMUNICATIONS COM- ill. it, she had become drawn because of MISSION and United States Indeed, carry failed to out had counsel Respondents. America, might have his client’s instructions he No. 73-1346. guilty professional misconduct.1 been Appeals, United States Court assuming Mrs. Kunz be Even Columbia Circuit. incompetent May 15, mentally on came Sept. 24, 1973. automatically termi did not 1972 this her to file counsel’s nate

prosecute did not her Her illness suit. and in the ab cause of action

infect her incom declaration a

sence petency name sue in her own she could Ritter, suit. Ritter and maintain her (1942); 38 N.E.2d 997 Ind. Webster, 148 N. 337 Mass. Willett v. Tucker, (1958); Withers E.2d 267 (1966); N.W.2d

Wis.2d Neely 62 Misc.2d Hogan, authorizing per- power attorney by Judge al Robinson

1. The cases cited legal personal opinion, services. hold formance do not con footnote distinguished lawyer trary, held could not The court event can be performed her for services after recover their facts. adjudicated guardian Dunne, 183, 244 insane and a P. client was 198 Cal. Sullivan App. ap- appointed. Merritt, proceeding (1926), was Merritt a incompetent, pointment Div. N.Y.S. mortgage inject lawyer attempted himself was action to foreclose into strength had been executed in the name the mort- of at- the case on attorney gagor torney in fact. her court six months before. executed lawyer was entitled had held that prove defendant never been found that appear the time of the execution of In Ev- that at the matter. authorized mortgagor mortgage (Ct.App. non York, com- ans v. S.W.2d 217 lawyer compensation pos Mo.1949), mentis and this fact known to the sued for mortgagee mortgage. pursuant gener- performed when took services notes 84 L.Ed. 783 S.Ct. Moreover, insanity general policy against piecemeal ap- or other mental “This severe difficulty may operate suspend peals weight aof client takes added criminal cas- 408 ” gauntlet “may denying errors’ reversible ex ;24 congression aminations, foreclosing used to thwart discov and against piecemeal appeals.”25 sought policy ery thereby, al which promise Only appeal interlocutory nonappealable.27 The where can clearly inadequate discovery denying no rem more than cases orders “a review of legion.28 edy” remedy of mandamus be Petitioner per- shown, has resorted to.26 nor are we able 7, 126, 1962) es,” supra (6th ; Fisher v. note 389 301 F.2d 129 Cir. Will United (8th undeniably Delehant, 265, 96, 274, at v. 250 F.2d 269-270 S.Ct. 88. potency litiga- ; Pence, 121, policy 1957) civil F.2d retains its Cir. Belfer v. 435 (9th 1970) ; Film 122-123 Cir. Paramount tion. Corp. Theatre, v. 333 Distrib. Civic Center States, supra 7, 24. v. note Will 389 1964)See (10th 358, F.2d 360-361 Cir. 104, 278, quoting Bank- at 88 at U.S. Wright, also The Doubtful Omniscience C. Holland, & ers 7, Cas. v. note Life Co. 751, Appellate Courts, 41 Minn.L.Rev. 145, 382, 74 S.Ct. 98 L.Ed. (1957) ; Carrington, The Power 775-76 P. Judges Responsibility 513, 507, Appeal, v. United 351 Parr U.S. 3 Ga.L.Rev. Courts of 521, 917, L.Ed. 1377 Accord, Holland, Bankers Life & Cas. Co. See, however, Angeles Mfg. Los Brush note at Corp. James, 145; parte Fahey, supra Ex (1927), parte Uppercu, Ex L.Ed. 2041; Roche 60 L.Ed. 368 Evaporated Ass’n, supra Milk (1915), in each of 25, 30, 87 L.Ed. 1185. ordered a writ of mandamus directed 26. Bankers Life & Cas. Co. v. su power the exercise of the pra 145; formerly possessed to issue of man- “writs Fahey, cases, damus . . . warranted 260, 67 S.Ct. 1558. usages law, appointed Compare courts thority English . . . under the au- Cunningham, 108 U. Judiciary S.App.D.C. United States.” 282 F.2d (1960) ; Act of 1 Stat. Act of March Secretary Force, Pauls v. Air (1st ch. 1156. This 1972) Stat. ; 457 F.2d Cir. Ameri- passage Express continued until of June Warehousing, Act can Ltd. v. Trans- ch. Co., Stat. 28 U.S.C. (2d america Ins. 380 F.2d 1967) which the of all ; Sylk, Cir. Co. Borden 410 F.2d federal courts is limited nec- (3d now to “writs 1969) ; Cir. Gosa Secu- essary respec- in aid their rities Investment F.2d 1332- jurisdictions agreeable tive (5th 1971) ; Cir. Zalatuka v. Metro-

Notes

notes supra States, noncompliance pattern note 30. Will v. United While 269; Schleganhauf an invocation at v. rules warrant U.S. Holder, supra federal mandamus, Buy note 379 U.S. at Leather v. Howes La supra 257-258, States, 234; Parr v. United supra note 520-521, supra 912; 309; note v. United see also Will Evaporated Ass’n, supra 102-104, v. Milk 88 S. Roche note at note Corp. Mfg. Angeles 938. See also 269; at Brush Los Ct. 29, supra. James, Cosgrave, McCullough cf. Texaco, Compare Borda, Inc. F.2d (order (3d 1967) denying Buy 608-610 Cir. “is La made clear the Court has simply depose 71-year-old witness) ; Har- showing leave inapposite is no where there tley Ct., Pen Co. v. United States Dist. disregard persistent, federal (order (9th 1961) F.2d 328-332 Cir. Will v. United rules.” requiring secrets). disclosure of trade at 278. at n. Schleganhauf advertent, too, We Properties Int’l, Investment Ltd. v. IOS Holder, supra held the Court where Ltd., (2d 1972) 459 F.2d Cir. appropriately used to mandamus was (order vacating deposi- taking notices of subjecting a court order virtually tions, precluding discovery of facts physical and in a civil case defendant jurisdiction depend- standing on which rested The Court mental examinations. ed). Compare discussion text basic, holding presence “the unde- on the notes 13-19. a district court of whether cided physical examina- order the mental or could Compare Hemphill, States defendant,” S. tion (risk (4th 1966) F.2d Cir. and, quite signif- 13 L.Ed.2d Ct. contempt citation). icantly, stated: however, say, that, Evaporated Ass’n, supra follow- This not to 34. Roche Milk opin- guidelines ing setting