Estelle, In re

• Decision Date: 24 July 1975
• Docket Number: No. 75-1464,75-1464
• Citation: 516 F.2d 480
• Parties: In re W. J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Petitioners.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 480

516 F.2d 480

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.

John L. Hill, Atty. Gen. of Tex., George R. Bedell, Daniel O. Goforth, Asst. Attys. Gen., Austin, Tex., for petitioner.

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.

On Petition for Writ of Mandamus or Other Extraordinary Relief.

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, 28 U.S.C. § 1651(a), to prevent the further participation by the United States as amicus curiae or plaintiff-intervenor in Ruiz v. Estelle, No. 5523 (W.D.Tex., Tyler Div.). The petitioner alleges that "the trial court abuse(d) its discretion when it permitted the United States to intervene in Ruiz " and prays for a Writ ordering the trial court to dismiss the United States from the case.

I.

Over three years ago, David Ruiz and seven other inmates of the Texas Department of Corrections filed suits under 42 U.S.C. § 1983 complaining that the TDC had violated their constitutional rights in several ways and asking for injunctive and declaratory relief. The trial court determined that the cases involved common questions of fact and law, and ordered that the cases be consolidated pursuant to Rule 42(a), F.R.Civ.P., into a single civil action under the style of Ruiz v. Estelle.

The trial court appointed counsel to represent the plaintiffs, and granted the plaintiffs' motion six months ago to file an amended complaint. 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. ¹ 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 pursuant to Rule 34, F.R.Civ.P., to inspect the TDC facilities in question and to interview inmates and employees. ²

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 28 U.S.C. § 1292(b).

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

The petitioner contends here that the trial court "abused its discretion" by allowing the United States to intervene permissively in Ruiz under Rule 24(b) (2), F.R.Civ.P. (quoted below). In essence, the petitioner's argument is that while Rule 24(b)(2) empowers the trial court to allow permissive intervention at its discretion, it does not allow the trial court to allow intervention by a litigant who does not manifest the requisite "interest" in the litigation as defined by the Rule.

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., 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...