Pan Am. World Airways, Inc. v. U.S. Dist. Court for Central Dist. of California

• Decision Date: 23 May 1975
• Docket Number: 74-2093,Nos. 74-1726,74-2240,s. 74-1726
• Citation: 523 F.2d 1073
• Parties: PAN AMERICAN WORLD AIRWAYS, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent; Cathy Ann GILES, et al., Real Parties in Interest. McDONNELL DOUGLAS CORPORATION, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent; Geraldine L. FLANAGAN et al., Real Parties in Interest. UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent; Geraldine L. FLANAGAN et al., Real Parties in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1073

523 F.2d 1073

PAN AMERICAN WORLD AIRWAYS, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent;

Cathy Ann GILES, et al., Real Parties in Interest.

McDONNELL DOUGLAS CORPORATION, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent;

Geraldine L. FLANAGAN et al., Real Parties in Interest.

UNITED STATES of America, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF

CALIFORNIA, Respondent;

Geraldine L. FLANAGAN et al., Real Parties in Interest.

Nos. 74-1726, 74-2093, 74-2240.

United States Court of Appeals, Ninth Circuit.

May 23, 1975.

William G. Tucker, Robert Forgnone, Los Angeles, Cal., and John K. Villa, Civ. Div., Dept. of Justice, Washington, D. C. (argued), for petitioners.

Daniel C. Cathcart, James G. Butler, Los Angeles, Cal., and Marshall Morgan (argued), for respondents.

OPINION

Before HUFSTEDLER and WALLACE, Circuit Judges, and SCHNACKE, ^* District Judge.

WALLACE, Circuit Judge:

These petitions for writs of mandamus or prohibition consolidated in this case, arise from two lawsuits, each involving a separate airline crash. Nos. 74-2093 and 74-2240 are petitions respectively by the McDonnell Douglas Corporation (McDonnell Douglas) and by the United States in a case arising out of the crash of a jet airliner near Paris, France, on March 3, 1974. The airliner was manufactured by McDonnell Douglas, and operated by Turkish Airlines, not a party to the action below. The United States was implicated in the crash through the alleged failure of the Federal Aviation Administration properly to certify and inspect the aircraft involved in the crash. No. 74-1726 is a petition by Pan American World Airways, Inc. (Pan American) and The Boeing Company (Boeing) in a case arising out of the crash of a jet airliner at Pago Pago, American Samoa, on January 30, 1974. The airliner was operated by Pan American and manufactured by Boeing.

All three petitions for writs of mandamus or prohibition seek to prevent the district court from notifying potential plaintiffs of the actions before it. We grant the petitions.

I. The Petitions in the Paris Action

Between 346 and 360 persons died in the Paris crash. Only 23 were residents of the United States. At least ten actions arising from the crash have been filed in various federal district courts and, by order of the Panel on Multidistrict Litigation, these actions have all been consolidated in the Central District of California. At least one of these has been filed as a class action. Flanagan v. McDonnell Douglas Corp., CV No. 74-808-PH.

In the course of pretrial hearings in the Flanagan case, the district judge informed McDonnell Douglas that he intended to order production of a list of passengers and of the names and addresses of their next of kin. He further stated that he would use the list to notify potential plaintiffs of the actions pending before him. The following day, McDonnell Douglas moved that the district judge not seek a passenger list from any source and that he refrain from sending notice to nonlitigants. Both motions were denied. When certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) was denied, McDonnell Douglas filed the petition for mandamus in No. 74-2093. The petition seeks to prevent the district judge from notifying potential plaintiffs that actions arising from the crash are pending before him. The United States, a codefendant, subsequently filed a petition seeking identical relief in No. 74-2240. We have stayed all proceedings in the district court connected with notice to potential plaintiffs pending disposition of these petitions.

A. Preliminary Questions

Before we reach the merits of the petitions, we must discuss three preliminary questions. The first is whether the district court's order may be subjected to interlocutory review by means of a petition for mandamus. Several plaintiffs in actions arising out of the Paris crash (real parties in interest, hereinafter referred to as respondents) have opposed the petition claiming that this order does not involve the exceptional circumstances required for issuance of mandamus. We disagree. Mandamus is an appropriate remedy for actions in excess of the district court's power. Will v. United States, 389 U.S. 90, 95-96, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). While the distinction between error subject to adequate review on appeal and "usurpation of power" sufficient for mandamus may not always be clear, Cf. Will, supra, 389 U.S. at 95-96, 88 S.Ct. 269, the order in this case falls within the latter category. Notice from the court to potential plaintiffs not authorized explicitly by statute or rule is so extraordinary that review of such actions by mandamus will not frustrate the congressional policy permitting appeals only from final judgments. See Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-83, 74 S.Ct. 145, 98 L.Ed. 106 (1953). Furthermore, erroneous notice to potential plaintiffs cannot be remedied on appeal after final judgment. Petitioners cannot be relieved of the burden of actions filed in response to such notice. See id. at 382, 384, 385, 74 S.Ct. 145; De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). Finally, as will appear, the disputed order is erroneous not because the district court improperly resolved an issue properly before it but because it acted without authority sanctioned by statute, rule or the equitable powers of a federal court. See Will,supra, 389 U.S. at 95-96, 88 S.Ct. 269.

The second preliminary question concerns the extent of the issues raised by the district court's action. Respondents contend that the order does not raise an issue of the propriety of notice from the court to potential litigants. They argue that the district court itself has ordered neither production of a list of potential plaintiffs nor notification of them. We find this argument unpersuasive. The district court's intention to issue notice to potential plaintiffs is implicit in its denial of the motions of McDonnell Douglas requesting the district court not to seek a list of potential plaintiffs and not to send notice to them. ¹ This threat of imminent action is sufficient to warrant extraordinary relief.

The third preliminary question concerns the effect of the district court's subsequent certification of a class action upon the petitions for mandamus now before us. Respondents contend that the certification moots the petitions because notice may now be issued as a matter of course to members of the plaintiff class. However, McDonnell Douglas and the United States have also filed petitions for mandamus to vacate the district court's certification of a class action. Since we grant these petitions in McDonnell Douglas v. United States District Court, --- F.2d --- (9th Cir. 1975), the certification has been deprived of whatever mooting effect it may have had.

B. The Merits of the Case

With the preliminary questions answered, the critical issue becomes whether the district court erred in deciding to send notice to potential plaintiffs. Petitioners argue that such notice violates the constitutional restriction of the federal judicial power to cases and controversies or, in the alternative, that it constitutes an abuse of discretion. In reply, respondents contend (1) that the case or controversy requirement is satisfied by the claims already before the district court; (2) that several sources of judicial authority permit the district court to issue notice to potential plaintiffs; and (3) that such notice is required by the due process clause of the Fifth Amendment. Since we reject respondents' last two arguments, we need not reach the question whether the notice contemplated by the district court is in excess of its constitutional power. ² Instead, we hold that such notice is neither required by the due process clause nor permitted by any ascertainable source of judicial authority.

Respondents' due process argument is that potential plaintiffs are constitutionally entitled to notice of pending actions in which they may join. Respondents cite no case reaching this conclusion, and understandably so. So long as the persons sought to be notified do not become parties to these actions, they will not be bound by the outcome. Hence they will not be adversely affected by these actions and need not be notified of them. As stated in Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972):

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.

The requirements of the Fifth Amendment are the same. Arnett v. Kennedy, 416 U.S. 134, 151-52, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (plurality opinion); Id. at 164-67, 94 S.Ct. 1633 (Powell, J., concurring and concurring in the result). When no interest is threatened, no notice is required.

Respondents' alternative argument is that the district court possesses discretion to issue the notice. They find several sources for such discretion: the equitable powers of the court; sections 0.21 and 1.10 of the Manual for Complex Litigation; and Federal Rules of Civil Procedure 1, 16, 19, 21, 23, 42 and 83. ³ Although most of these purported sources are plainly insufficient, a few require more extended treatment.

1. Equitable Power

Respondents rely upon Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), and Sprogis v. United Air Lines, Inc.,444 F.2d 1194, 1201-02 (7th Cir.), Cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971), for the equitable power of a federal court to issue notice to potential plaintiffs. These cases are distinguishable. To the extent that Sprague permits notice to potential plaintiffs, it does...