U.S. v. Christian, No. 81-1323

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS, WEIS and GARTH; ADAMS; GARTH; In subsequent correspondence
Citation660 F.2d 892
Decision Date30 September 1981
Docket NumberNo. 81-1323
Parties1981-2 Trade Cases 64,317 UNITED STATES of America, Petitioner v. Hon. Judge Almeric L. CHRISTIAN

Page 892

660 F.2d 892
1981-2 Trade Cases 64,317
UNITED STATES of America, Petitioner
v.
Hon. Judge Almeric L. CHRISTIAN
No. 81-1323.
United States Court of Appeals,
Third Circuit.
Argued April 29, 1981.
Submitted June 11, 1981.
Decided Sept. 30, 1981.

Page 893

Richard J. Favretto, Deputy Asst. Atty. Gen., Robert B. Nicholson (argued), Bruce E. Fein, Dept. of Justice, Washington, D. C., for petitioner.

Edward S. Szukelewicz (argued), Washington, D. C., for respondent.

Adriane J. Dudley (argued), Carol G. Hurst, Dudley, Dudley & Topper, Charlotte Amalie, St. Thomas, V. I., amicus curiae.

Before ADAMS, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

The petition for mandamus presently before the Court presents two issues: the scope of this Court's mandamus jurisdiction, and the power of the District Court of the Virgin Islands to summon an investigative grand jury.

I.

On April 28, 1980, the Assistant Attorney General of the United States requested the District Court of the Virgin Islands to convene a grand jury to investigate possible violations of the federal antitrust laws in the importing, wholesaling, and retailing of liquor in the Virgin Islands. The United States urged that the court's authority to convene the grand jury derived either from Rule 6(a) of the Federal Rules of Criminal Procedure or from 18 U.S.C. § 3331(a). The district court, reasoning that it lacked the requisite authority, entered an order on December 12, 1980, denying the request. The government subsequently filed this petition for mandamus, asking that we direct the district court to summon a grand jury to investigate alleged violations of the federal antitrust laws. At the time of filing the mandamus petition, the government indicated that it intended to rely on 18 U.S.C. § 3331 as well as Rule 6(a) to support its position. See Petition for Writ at 2. The respondent continued to challenge 18 U.S.C. § 3331 as a source of authority for convening a grand jury. However, in a subsequent answering brief the United States stated that it sought review only of the refusal to summon a grand jury under Rule 6(a). See Answering Brief at 2 n.1.

II.

At the outset, we confront a potential barrier to our adjudication of this dispute. Because the government seeks a writ of mandamus, we initially must consider whether the prerequisites to entertaining the petition are satisfied.

Traditionally, federal appellate courts have issued the writ of mandamus where a lower court has made an error of "jurisdictional" dimension. Thus, the Supreme Court in Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943), identified mandamus as the means "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." 1 Jurisdiction in this sense, however, has been read broadly. 2 In a variety of contexts, appellate courts have resorted to mandamus where the district court, in a case properly before it, took some action it was not empowered

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to take 3 or declined to take some action required of it. 4

The present controversy, on superficial consideration, appears to present the paradigmatic case for mandamus review. The government contends that the district court, in declining to convene a grand jury, has failed to exercise an authority it was obliged to consider. The writ of mandamus, it is argued, provides the appropriate vehicle by which to remedy this failure to comply with applicable law. The unusual posture of the case, however, engenders special problems respecting the availability of mandamus relief. The principle of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) that the Supreme Court has no original jurisdiction to issue the writ of mandamus historically has applied as well to lower federal courts. Although there appears to be no constitutional impediment, the First Judiciary Act confined the lower courts to issuing writs in aid of an otherwise existing jurisdiction. See McIntire v. Wood, 11 U.S. (7 Cranch) 504, 3 L.Ed. 420 (1813). 5 The current authorization for mandamus, embodied in the All Writs Act, 28 U.S.C. § 1651(a), preserves this restraint. It provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

To satisfy the jurisdictional prerequisite, it is not necessary that a case be pending in the court asked to issue the writ. See, e. g., United States v. Mellon Bank, N. A., 545 F.2d 869, 872 (3d Cir. 1976). Rather, it suffices that the case may at some future time come within the court's appellate jurisdiction. As we explained in United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir. 1979), "the action must ... involve subject matter to which our appellate jurisdiction could in some manner, at sometime, attach." 6 Before entertaining the application, then, we must identify a jurisdiction that the issuance of the writ might assist.

Because the district court has so far declined to convene a grand jury, there is currently pending no lawsuit that might eventually come before us on appeal. Indeed, one of the government's arguments for issuance of the writ is that, absent mandamus, the district court's decision will forever be shielded from review. It is, of

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course, possible that some action not yet commenced may raise the issue the government would have us consider now. 7 But prediction of future lawsuits is nothing more than speculation, and, in any event, the connection between such suits and the present petition is so attenuated that it cannot establish that issuance of the writ at this time would be "in aid of" our jurisdiction.

Although the requested writ cannot be issued pursuant to our eventual jurisdiction over any identifiable case, we are not persuaded that such jurisdiction is invariably a prerequisite to a grant of mandamus relief. This Court has previously made use of the writ of mandamus notwithstanding the lack of a specific controversy over which we might later exercise jurisdiction. In United States v. Malmin, 272 F. 785 (3d Cir. 1921), the Governor of the Virgin Islands, without authority, had revoked the appointment of district judge Malmin and replaced him with another judge. Because questions of the validity of the judgments of the functioning judge would arise "in a way which would leave this court helpless to correct the fundamental trouble" and insofar as it was "essential to the appellate jurisdiction of this court that orderly proceedings in the district court ... be restored," the Court issued a writ ordering Malmin to reassume his duties as judge. Id. at 792. Indeed, cases in which, absent resort to mandamus, we would lose our ability to review the issue at all, present a wholly consistent example of mandamus as necessary for the exercise of our jurisdiction. As described by adherents of a carefully circumscribed mandamus power: "The focal question posed for a Court of Appeals by a petition for the issuance of a writ is whether the action of the District Court tends to frustrate or impede the ultimate exercise by the Court of Appeals of its appellate jurisdiction granted in some other provision of the law." LaBuy v. Howes Leather Co., 352 U.S. 249, 264, 77 S.Ct. 309, 317, 1 L.Ed.2d 290 (1957) (Brennan, J., dissenting). 8 Here, the refusal of the district court to convene a grand jury to investigate antitrust violations may arguably impede the prosecution of crimes over which we would otherwise have review.

On at least three occasions, the Supreme Court, acting pursuant to Section 1651 or its predecessors, has granted the writ even though no controversy which subsequently could have been presented to the Court for review on the merits was then pending. In Ex parte Bradstreet, 32 U.S. (7 Pet.) 634, 8 L.Ed. 810 (1833), the district court had dismissed an action in which plaintiff had demanded the return of property, on the ground that the plaintiff had not averred the pecuniary value of the land, and therefore failed to satisfy the $2,000 amount-in-controversy requirement. Because the action had already been dismissed, and there was accordingly no pending federal action, plaintiff's petition to the Supreme Court for a writ of mandamus did not fall within the tribunal's "potential" jurisdiction over a specific controversy. Nonetheless the Court, in a brief opinion by Chief Justice Marshall, issued the writ, directing the district court to reinstate the case. Id. at 649, 8 L.Ed. 810.

Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932), similarly involved a situation where, at the time the Supreme Court considered the request for mandamus, there was no pending action over which the Court's jurisdiction might

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some day attach. In that case a United States Attorney, having secured a grand jury indictment against Joseph Wingert, petitioned the district court to issue a bench warrant for Wingert's arrest. When the court refused, the government, by-passing the court of appeals, petitioned the Supreme Court for a writ of mandamus directing the district judge to issue the warrant. In granting the writ, the only jurisdictional question that detained the court was whether it could issue the writ notwithstanding the fact that direct review from district court decisions is vested in the courts of appeals, rather than the Supreme Court. The Court was not troubled by the absence of a pending lawsuit; indeed, the premise of the Court's discussion was that the court of appeals had authority to issue the writ, see id. at 249, 53 S.Ct. at 131, even though, as the district court's opinion indicates, see 55 F.2d 960, 963 (E.D.Pa.1932), mandamus supplied the only basis for appellate review.

More recently, in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96...

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87 practice notes
  • Mackin, Matter of, Nos. 424
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 23, 1981
    ...from action of the putative grand jury was or, in the nature of things, could be before the court. United States v. Christian, 3rd Cir., 660 F.2d 892. We thus assume, at least arguendo, that mandamus could issue here if other tests with respect to that extraordinary remedy were met. We have......
  • School Asbestos Litigation, In re, No. 45
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 23, 1992
    ...goals, and where issues are unsettled and important. See Sporck v. Peil, 759 F.2d 312, 315 (3d Cir.1985); United States v. Christian, 660 F.2d 892, 895-97 (3d Cir.1981); Rapp v. Van Dusen, 350 F.2d 806, 810 (3d Cir.1965) (in Although the above considerations are well established, "applicati......
  • U.S. v. Santtini, No. 92-5105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 8, 1992
    ...to review the issue and is particularly appropriate when the questions involved are "unsettled and important." United States v. Christian, 660 F.2d 892, 895, 897 (3d Cir.1981). The right to a writ is "clear and indisputable" when the petitioner can show "a judicial usurpation of power or a ......
  • In re Opinions & Orders by the Fisc Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Docket No. FISCR 20-01
    • United States
    • U.S. Foreign Intelligence Surveillance Court
    • April 24, 2020
    ...Id. (quoting Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed. 1185 (1943) ).85 United States v. Christian , 660 F.2d 892, 894 (3d Cir. 1981) (quoting United States v. RMI Co. , 599 F.2d 1183, 1186 (3d Cir. 1979) ); accord Ortiz v. United States , ––– U.S. ––––, 138......
  • Request a trial to view additional results
87 cases
  • Mackin, Matter of, Nos. 424
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 23, 1981
    ...from action of the putative grand jury was or, in the nature of things, could be before the court. United States v. Christian, 3rd Cir., 660 F.2d 892. We thus assume, at least arguendo, that mandamus could issue here if other tests with respect to that extraordinary remedy were met. We have......
  • School Asbestos Litigation, In re, No. 45
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 23, 1992
    ...goals, and where issues are unsettled and important. See Sporck v. Peil, 759 F.2d 312, 315 (3d Cir.1985); United States v. Christian, 660 F.2d 892, 895-97 (3d Cir.1981); Rapp v. Van Dusen, 350 F.2d 806, 810 (3d Cir.1965) (in Although the above considerations are well established, "applicati......
  • U.S. v. Santtini, No. 92-5105
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 8, 1992
    ...to review the issue and is particularly appropriate when the questions involved are "unsettled and important." United States v. Christian, 660 F.2d 892, 895, 897 (3d Cir.1981). The right to a writ is "clear and indisputable" when the petitioner can show "a judicial usurpation of power or a ......
  • In re Opinions & Orders by the Fisc Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance Act, Docket No. FISCR 20-01
    • United States
    • U.S. Foreign Intelligence Surveillance Court
    • April 24, 2020
    ...Id. (quoting Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 26, 63 S. Ct. 938, 87 L. Ed. 1185 (1943) ).85 United States v. Christian , 660 F.2d 892, 894 (3d Cir. 1981) (quoting United States v. RMI Co. , 599 F.2d 1183, 1186 (3d Cir. 1979) ); accord Ortiz v. United States , ––– U.S. ––––, 138......
  • Request a trial to view additional results

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