In Re Peter M. Roberts , 846 F.2d 1360 ( 1988 )

BALDWIN, Senior Circuit Judge,

dissenting in part.

I disagree with the majority’s decision to the extent that it finds that this court lacks jurisdiction to consider Roberts’ mandamus petition. I believe, however, that the writ should not issue under the facts presented, and thus concur in the result.

The majority holds that this court lacks jurisdiction to consider the petition because “there is as yet no ‘patent case’ over which this court has either present or prospective jurisdiction,” and “Roberts has pointed to no case over which this court would have jurisdiction ‘in aid of’ which the particular writ he seeks would be ‘necessary or appropriate.’ ” In my view, this statement reflects a misunderstanding of the application of the All Writs Act, 28 U.S.C. § 1651 (1982) and the Supreme Court’s interpretation of it. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957).

The Act provides that “[t]he 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.” 28 U.S.C. § 1651(a). The Court in LaBuy discussed the power of the courts of appeals to issue writs of mandamus, and concluded that the power to issue writs exists where an appeals court has either present or prospective jurisdiction. 352 U.S. at 254-55, 77 S.Ct. at 312-13. In LaBuy, the petitioner sought a writ ordering the district court judge to vacate his reference of antitrust cases to masters. The Supreme Court upheld the court of appeals’ exercise of this discretionary power stating: “Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it has the power in proper circumstances, as here, to issue writs of mandamus reaching them.” Id. at 255, 77 S.Ct. at 313. (Emphasis added). It was not until after the determination that the court of appeals had jurisdiction to issue the writ that the Court addressed whether the writ should be granted. Id.

In two later cases, Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 284, 13 L.Ed.2d 152 (1964) and Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), the Court, while tightening the standards for supervisory mandamus, continued to recognize the propriety of its use in aid of potential jurisdiction. See also Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976).

The majority rejects jurisdiction to issue the writ because it says that there is no patent case in existence over which this court has potential jurisdiction. The majority then states that it is irrelevant that this court will have jurisdiction over an appeal from a judgment entered after a new trial. I cannot agree with these assertions. The fact that the Federal Courts Improvement Act, Pub.L. 97-164, § 403, 96 Stat. 25 (1982), vests jurisdiction in this court of any appeal from a judgment in the new trial is more than a mere passing event. In my opinion, this is just the sort of prospective appellate jurisdiction envisioned by the Supreme Court in LaBuy. Interpreting the concept of prospective appellate jurisdiction to exclude this circumstance is, I believe, unduly restrictive, and not in accord with the intent of the All Writs Act to provide a means for appellate courts to use this discretionary power where appropriate.

This court has recently affirmed its position that the All Writs Act is not an independent grant of appellate jurisdiction. In re Innotron Diagnostics, 800 F.2d 1077, 1081, 231 USPQ 178, 181 (Fed.Cir.1986). But, this proposition does not act to refute an exercise of appellate jurisdiction in aid of prospective jurisdiction, especially, where, as here, that prospective jurisdiction is guaranteed by statute and by the fact that the Seventh Circuit’s role in the case has terminated. By rejecting jurisdiction, the majority incorrectly assumes that the judgment of the Seventh Circuit was a final disposition of Roberts’ case. In reality, however, the Seventh Circuit’s decision to grant Roberts a new trial creates precisely the prospective jurisdiction which the Supreme Court has held to be sufficient to exercise mandamus authority. The majority’s decision rejects jurisdiction to issue the writ because the writ requested is not one we should grant. I consider jurisdiction to issue the writ a separate issue from the decision whether to grant the writ. See LaBuy, supra.

In rejecting jurisdiction, the majority suggests that because Roberts does not request relief relating to the new trial, but instead seeks a writ avoiding a new trial, this court is precluded from considering the writ. This logic confuses the merits of the writ with the jurisdiction to hear the petition. The fact that it would be inappropriate for this court to issue a writ which would, in effect, overrule the Seventh Circuit’s mandate, is not a jurisdictional matter. Rather, this question should be addressed in the court’s refusal to issue such a writ, since this court clearly possesses prospective appellate jurisdiction. Because the majority erroneously confuses the question of jurisdiction with the advisability of granting the writ, I respectfully dissent from that portion of the majority opinion which holds that this court lacks jurisdiction to consider Roberts’ petition.

Having determined that the court possesses jurisdiction to issue a writ of mandamus in this case, I would nonetheless deny the relief which Roberts requests. The All Writs Act confers on this court great discretion in deciding whether to grant a particular writ. However, the Supreme Court has cautioned us against issuing such writs in all but the most exceptional circumstances. LaBuy, 352 U.S. at 256-58, 77 S.Ct. at 313-15. I agree with the majority’s conclusion that issuing a writ of mandamus ordering the district court to reinstate the original jury verdict is an unwise action from which we should refrain. Consideration of the mandate rule, United States v. United States District Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351 (1948), the doctrine of the law of the case, Jamesbury Corp. v. Litton Industrial Products, Inc., 839 F.2d 1544, 1550, 5 USPQ 2d 1779, 1783 (Fed.Cir.1988) (doctrine should be applied “more or less strictly depending on the circumstances of the case”), and the fact that mandamus should not be used as a substitute for appeal, Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943), dictate that we reject the relief sought by Roberts. It would certainly constitute an abuse of this court’s discretion to act against these considerations solely to avoid the expense and inconvenience of a new trial. It requires excessive speculation to conclude that denying Roberts’ request will result in not one, but two new trials. In any event, the Supreme Court recognized in Roche that “that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.” 319 U.S. at 30, 63 S.Ct. at 943.