National Farmers' Organization, Inc. v. Oliver

• Decision Date: 01 April 1976
• Docket Number: No. 76--1034,76--1034
• Parties: 1976-1 Trade Cases 60,750 NATIONAL FARMERS' ORGANIZATION, INC., Petitioner, v. The Hon. John W. OLIVER, United States District Judge for the Western District of Missouri, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 815

530 F.2d 815

1976-1 Trade Cases 60,750

NATIONAL FARMERS' ORGANIZATION, INC., Petitioner, v. The Hon. John W. OLIVER, United States District Judge for

the Western District of Missouri, Respondent.

No. 76--1034.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1976.

Decided March 2, 1976.

Rehearing and Rehearing En Banc

Denied April 1, 1976.

Worth Rowley, Richard A. Green, Aaron B. Kahn, and Katherine Boland, Rowley & Scott, Washington, D.C., for petitioner.

Before HEANEY, ROSS and WEBSTER, Circuit Judges.

PER CURIAM.

National Farmers' Organization (NFO) petitions this court for a writ of mandamus or prohibition pursuant to 28 U.S.C. § 1651(a). The petition arises out of antitrust litigation presently pending in the United States District Court for the Western District of Missouri before The Honorable John W. Oliver, styled Alexander, et al. v. National Farmers' Organization, Inc., et al. v. Associated Milk Producers, Inc., et al. v. Beatrice Foods Co., et al., D.C.Mo., 405 F.Supp. 118. Petitioner, a defendant in the above-styled case, seeks an order prohibiting Judge Oliver from conducting future off-the-record proceedings in Alexander, when NFO requests that such proceedings be formally recorded.

The facts giving rise to this petition are as follows. Since the inception of this litigation in 1971, voluminous pretrial proceedings have taken place, some of which have been conducted off the record. In June, 1973, NFO filed a motion requesting that all future proceedings be formally recorded by an official reporter. Apparently, that motion has never been formally ruled upon; however, Judge Oliver has, at times, orally evinced some opposition to such a procedure. Since the filing of the aforesaid motion, the practice of holding off-the-record proceedings has continued.

In December, 1975, Judge Oliver instituted a series of 'countdown conferences' in order to expedite the increasingly complex pretrial proceedings. At the first of these meetings, convened on December 23, 1975, Judge Oliver stated that an on-the-record/off-the-record procedure would be followed, whereby pending motions would be discussed off the record, following which the Judge would go back on the record to dispose of the matter. A short order would then be prepared summarizing the matters disposed of at the conference.

Following the discussion concerning procedures, Judge Oliver signalled his intention to go off the record to discuss certain pending motions, at which time NFO objected to going off the record. Judge Oliver proceeded to go off the record over petitioner's objection, and a number of matters were dealt with in accordance with the procedures set forth above.

On January 12, 1976, NFO filed the instant petition in this court to compel Judge Oliver to hold future proceedings on the record when NFO so requests. Petitioner alleges prejudice in that it is being denied an opportunity to make a full record; it is alleged that certain matters were discussed and disposed of at the December 23 conference which are not reflected in the record thereof. While NFO points to instances of past prejudice, it seeks only prospective relief from this court.

We note at the outset that mandamus will not lie to review every conceivable district court error; only exceptional circumstances justify such extraordinary relief. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Pfizer v. Lord, 522 F.2d 612 (8th Cir. 1975). We find, however, that the instant case presents circumstances warranting review of the district court's refusal to record certain proceedings by way of mandamus. Review by mandamus is appropriate where a court's prospective appellate jurisdiction might otherwise be thwarted. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185 (1943); IBM v. Edelstein, 526 F.2d 37 (2d Cir. 1975). Here, were petitioner denied an opportunity to make a complete record on certain matters, review of those matters on an ensuing appeal would be foreclosed since the court of appeals' inquiry is limited to matters in the record. Moreover, it is doubtful that any error in holding off-the-record proceedings could be effectively corrected on direct appeal following the termination of the district court litigation. See IBM v. Edelstein, supra. Accordingly, we hold that the issue raised in NFO's petition is properly reviewable in a mandamus proceeding.

Turning, then, to the merits of NFO's petition, petitioner has the burden of showing that it is clearly and indisputably entitled to relief. Will v. United States, supra; Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953); United States ex rel. Roger McQueen v. Wangelin, 527 F.2d 579 (8th Cir. 1975); Pfizer v. Lord, supra.

In support of its contention that it has a clear right to have proceedings formally recorded, upon request, petitioner relies on 28 U.S.C. § 753(b), which provides in pertinent part:

One of the reporters appointed for each such court * * * shall record verbatim * * * (1) all proceedings in criminal cases had in open court; (2) all proceedings in other cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary; and (3) such other proceedings as a judge of the court may direct or as may be required by rule or order of the court or as may be requested by any party to the proceedings. * * * (Emphasis added.)

On the basis of subsection (3) of the statute, we agree that a party is entitled to a record upon request.

The primary argument advanced in opposition to NFO's petition is that the extraordinary relief sought is unwarranted in that it is premature. It is argued that Judge Oliver has not held any proceedings off the record over the objection of any party, and there is no reason to believe that he will do so in the future.

In view of the history of this litigation recounted above, respondents' contentions with respect to prematurity are untenable. The record clearly shows that on December 23, 1975, Judge...