Ex parte Fahey et al. isc, No. 133

CourtUnited States Supreme Court
Writing for the CourtJACKSON
Citation332 U.S. 258,91 L.Ed. 2041,67 S.Ct. 1558
Decision Date30 April 1947
Docket NumberM,No. 133
PartiesEx parte FAHEY et al. isc

332 U.S. 258
67 S.Ct. 1558
91 L.Ed. 2041
Ex parte FAHEY et al.
No. 133, Misc.

Argued on Return to Rule to Show Cause

April 30, 1947.
Decided June 23, 1947.

Mr. Oscar H. Davis, of Washington, D.C., for petitioners on support of the motion for leave to file.

Messrs. Welburn Mayock, of Los Angeles, Cal., and Charles K. Chapman, of Long Beach, Cal., for respondent Peirson M. Hall, Judge, in opposition thereto.

Page 259

Mr. Justice JACKSON delivered the opinion of the Court.

This petition by John H. Fahey, individually and as Federal Home Loan Bank Commissioner, and A. V. Amman, individually and as Conservator for the Long Beach Federal Savings and Loan Association, invokes the original jurisdiction of this Court. They ask leave to file petition fr a writ o f 'mandamus and/or prohibition and/or injunction' against Judge Peirson M. Hall of the United States District Court for the Southern District of California to vacate his order allowing fees to counsel in Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, to prohibit any further allowance therein, and to enjoin any payments heretofore allowed.

While an appeal in the principal case was pending in this Court, application was made by various counsel for the plaintiffs and associated interests therein for allowance of fees aggregating some $125,000. The District Court allowed counsel for plaintiffs $50,000 as a partial payment on account of services, but withheld action on other applications. Certain costs and expenses of the plaintiffs in the amount of $17,295.13 were also ordered reimbursed.

The petition involves serious questions of law and of fact. Whether, because of the pendency of the appeal and the stay order granted therein, the District Court had power to entertain the application, whether before the final outcome of the case could be known an allowance was premature, whether the source of the fund on deposit with the court was so related to the services as to be subject to disbursement for their compensation, and whether one judge can make allowances in a case before a three-judge court, are, with other questions, much contested. We do not decide any question as to the merits.

Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt

Page 260

power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to...

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333 practice notes
  • Attorney General of U.S., In re, Nos. 239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 19, 1979
    ...jurisdiction, even though it ultimately upheld the ruling of the district court. 9 This too is an extraordinary case. See Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). It is, so far as we know, the first case brought by a political party 10 against the Government i......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...and the district judge. In sum, this is not one of those "really extraordinary causes" for which mandamus is reserved. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 Page 182 The appeal is dismissed for want of appellate jurisdiction; the petition for mandamus is denied. --......
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...(Cleckley, J., concurring). See Ex parte Collett, 337 U.S. 55, 72, 69 S.Ct. 944, 953, 93 L.Ed. 1207, 1217 (1949), quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, 2043 (1947) (" '[m]andamus, prohibition and injunction against judges are drastic and extraordi......
  • Elliott v. Federal Home Loan Bank Board, No. 63-1072
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 22, 1964
    ...v. Fahey (D.C.S.D.Calif.1946) 68 F.Supp. 418; Fahey v. Mallonee (1947) 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030; Ex Parte Fahey (1947) 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Mallonee v. Fahey (D.C.1949) 14 F.R.D. 273; Home Loan Bank Board v. Mallonee (9 Cir. 1952) 196 F.2d 336, Cert.......
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330 cases
  • Attorney General of U.S., In re, Nos. 239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 19, 1979
    ...jurisdiction, even though it ultimately upheld the ruling of the district court. 9 This too is an extraordinary case. See Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). It is, so far as we know, the first case brought by a political party 10 against the Government i......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...district judge. In sum, this is not one of those "really extraordinary causes" for which mandamus is reserved. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 Page 182 The appeal is dismissed for want of appellate jurisdiction; the petition for mandamus is denied. ......
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...(Cleckley, J., concurring). See Ex parte Collett, 337 U.S. 55, 72, 69 S.Ct. 944, 953, 93 L.Ed. 1207, 1217 (1949), quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, 2043 (1947) (" '[m]andamus, prohibition and injunction against judges are drastic and extr......
  • Elliott v. Federal Home Loan Bank Board, No. 63-1072
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 22, 1964
    ...v. Fahey (D.C.S.D.Calif.1946) 68 F.Supp. 418; Fahey v. Mallonee (1947) 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030; Ex Parte Fahey (1947) 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041; Mallonee v. Fahey (D.C.1949) 14 F.R.D. 273; Home Loan Bank Board v. Mallonee (9 Cir. 1952) 196 F.2d 336, Cert.......
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2 books & journal articles
  • The Law of District Court Stays for USPTO Proceedings
    • United States
    • Landslide Nbr. 14-1, September 2021
    • September 1, 2021
    ...1383 (Fed. Cir. 2014); VirtualAgility , 759 F.3d at 1308. 12. Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964) (citing Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). 13. Id. (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). 14. NFC Tech. LLC v. HTC Am., Inc., No. 2:13-C......
  • Behind the Scenes of the Trademark Modernization Act: An Interview with Stephen Lee
    • United States
    • Landslide Nbr. 14-1, September 2021
    • September 1, 2021
    ...1383 (Fed. Cir. 2014); VirtualAgility , 759 F.3d at 1308. 12. Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964) (citing Ex parte Fahey, 332 U.S. 258, 259–60 (1947)). 13. Id. (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)). 14. NFC Tech. LLC v. HTC Am., Inc., No. 2:13-C......

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