Eisenberg v. U.S. Dist. Court for Southern Dist. of Illinois, 90-1636

Decision Date06 August 1990
Docket NumberNo. 90-1636,90-1636
Citation910 F.2d 374
PartiesIn re Howard B. EISENBERG, et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS, et al., Respondents.
CourtU.S. Court of Appeals — Seventh Circuit

Howard B. Eisenberg, Southern Illinois University, School of Law, Carbondale, Ill., for petitioners.

Richard H. Lloyd, Asst. U.S. Atty., East St. Louis, Ill., for respondents.

Before CUDAHY, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

We write to reiterate, what seems constantly to need reiteration, clearly established though the proposition is, that mandamus is not to be allowed to do service for an appeal.

The petitioner is the counsel for two indigent federal prisoners, Silverstein and Fountain, who have brought a suit against members of the staff of Marion Federal Penitentiary, where they were formerly confined, seeking damages for violations of their constitutional rights. The petitioner asked the district court for payment, in advance, of out-of-pocket expenses, for such things as travel and telephoning, that he has incurred or expects to incur in the preparation and prosecution of the case. The court turned down the request pursuant to an unpublished plan in the Southern District governing reimbursement of indigents' counsel that limits such reimbursement to $250, payable only at the conclusion of the litigation. This was not a final decision within the meaning of 28 U.S.C. Sec. 1291, nor otherwise appealable; but the petitioner, contending that the limitation of reimbursable expenses violates a host of constitutional rights, his own as well as his clients', asks us to issue a writ of mandamus under 28 U.S.C. Sec. 1651(a), directing the district court to reimburse his expenses irrespective of the local plan.

If broadly usable to obtain appellate review of nonfinal orders, mandamus would eviscerate the final-decision rule, the cornerstone of federal appellate jurisdiction. It is true that mandamus is one of the safety valves in that rule but it is one of the tightest. It opens only when the petitioner can show that the district court has violated a clear duty and that immediate correction is necessary--without it the petitioner will suffer serious and irreparable injury. Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989); United States v. Spilotro, 884 F.2d 1003, 1007 (7th Cir.1989); United States v. Horak, 833 F.2d 1235, 1249 (7th Cir.1987). The second condition is not satisfied here, so we need not consider whether the first is.

The petitioner contends that without making the expenditures for which the district court refuses to reimburse him, he cannot present an effective case for his clients. We assume for purposes of our decision that the contention is correct. There are two possibilities. The first is that the petitioner will dig into his own pocket for the necessary funds, and when and if his clients win their suit will request reimbursement; if that is denied, he will have an appealable issue to present to us. Well, but what if his clients lose their case, thereby undermining the case for reimbursement? Or what if he is eventually reimbursed, but without interest? In either case he will remain free to pursue his remedies under the Tucker Act. 28 U.S.C. Sec. 1346(b). For he claims that the district court's plan under which he was denied immediate and full reimbursement of expenses that his duty to his clients requires him to incur violates his rights under the Fifth Amendment's just-compensation clause. The Tucker Act provides a complete remedy for such violations.

The other possibility is that the...

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7 cases
  • Yu v. Brown
    • United States
    • U.S. District Court — District of New Mexico
    • January 28, 1999
    ...as requiring "irreparable injury" all address writs of mandamus directed at trial judge in an ongoing case. In re Eisenberg v. U.S. District Court, 910 F.2d 374, 375 (7th Cir.1990); In re Martinez-Catala, 129 F.3d 213, 217 (1st Cir.1997); In re Rhone-Poulenc, 51 F.3d 1293, 1295 (7th Cir.199......
  • Rhone-Poulenc Rorer Inc., Matter of
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 27, 1995
    ...v. United States, supra, 426 U.S. at 403, 96 S.Ct. at 2124; In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.1992); Eisenberg v. United States District Court, supra, 910 F.2d at 375. The petitioner "must ordinarily demonstrate that something about the order, or its circumstances, would make an e......
  • In re Ford Motor Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 12, 2003
    ...trial court "to the sphere of its discretionary power")); In re Lewis, 212 F.3d 980, 982 (7th Cir.2000); Eisenberg v. United States District Court, 910 F.2d 374, 375 (7th Cir.1990); In re Ralston Purina Co., 726 F.2d 1002, 1004-05 (4th Cir.1984). The petitioner must demonstrate that the err......
  • Horwitz v. Alloy Automotive Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • March 19, 1992
    ...grounds, --- U.S. ----, 112 S.Ct. 40, 116 L.Ed.2d 19 (1991), and mod., 952 F.2d 965 (7th Cir.1992).See also Eisenberg v. United States Dist. Court, 910 F.2d 374 (7th Cir.1990), where this court denied mandamus but suggested the parties try an interlocutory appeal under 1292(b).10 28 U.S.C. ......
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1 books & journal articles
  • Commentary: Late atty. had huge impact on WI law.
    • United States
    • Wisconsin Law Journal No. 2002, April 2002
    • June 19, 2002
    ...who represented them, and that only at the conclusion of the case. In Eisenberg v. U.S. Dist. Court for the Southern Dist. of Illinois, 910 F.2d 374 (7th Cir.1990), Eisenberg sought a writ of mandamus in the Seventh Circuit compelling the district court to pay all such attorneys' expenses A......

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