Mandamus and Contempt

Every route taught so far gives the losing party an appeal from the interlocutory order itself, and each requires the order to fit a description. The statutory routes attach to categories of order: 28 U.S.C. § 1292(a)(1) reaches orders that grant, continue, modify, refuse, or dissolve injunctions, and orders that refuse to dissolve or modify them.¹ The collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp. attaches to an order that conclusively decides a disputed question, resolves an important issue completely separate from the merits, and is effectively unreviewable on appeal from a final judgment. In Cohen, the order took no step toward final disposition of the merits, would not merge in the final judgment, and could not be reviewed effectively once that judgment arrived.² An adverse order that matches no category, or fails any one of the three collateral order conditions, cannot be appealed until the case ends.

Two extraordinary routes remain for a party who cannot wait. In mandamus, the party petitions the court of appeals to direct the trial judge to act or to undo an order; the petition opens a separate proceeding and is not an appeal from a decision of the district court. In contempt, the party disobeys the order, the trial court holds the party in contempt, and the party challenges the underlying order in an appeal from the contempt judgment. Both reach orders that no earlier route can, such as an order compelling disclosure of material the party says is privileged.

Both routes are costly, which is why they come last. A court of appeals grants mandamus only in unusual cases, and a party who defies an order to reach review risks a sanction that stands if the order is upheld. Their main significance is doctrinal. Courts point to them when they decline to extend the collateral order doctrine, because a party with another way to reach the court of appeals does not lose its right by waiting, and the third condition therefore fails. Mandamus comes first below, because a party can pursue it without disobeying anything. Contempt follows, because it requires defiance.

Writ of Mandamus

Mandamus is an order from a higher court telling a lower court or judge what to do. The party files a petition in the court of appeals asking it to direct the trial judge to enter or to vacate a particular order.³ The authority comes from the All Writs Act, 28 U.S.C. § 1651(a), which authorizes a party to petition a court of appeals for a writ directed to the trial court to do its duty or abide by its jurisdiction.⁴ In La Buy v. Howes Leather Co. the Supreme Court treated the Act as giving the courts of appeals power to issue the writ.⁵ Formally, the proceeding is not an appeal but an original proceeding in the appellate court.⁶

That label matters because the earlier routes all ask whether the order belongs to an appealable category: a final decision, an injunction order, a certified question, or a collateral order. Mandamus asks about the trial judge's conduct instead, so it can reach an order that fits none of those categories. It is one way around the final judgment rule.⁷

Because the writ runs against the trial judge, the judge is the nominal respondent, and an appellate court has reason to want the judge's response before it acts. In International Products Corp. v. Koons, the Second Circuit explained that its formalistic insistence on a formal petition served only to give the judge an opportunity to respond, in addition to the response of the party favored by the order. Since judges rarely use that opportunity, the court accommodated the party by treating an unauthorized appeal, in an appropriate case, as a motion for leave to file a petition for mandamus. The court's expression of its views on that motion will generally make a petition or writ unnecessary, and the judge may still wait for a formal petition in the rare case where he wishes to be heard.⁸

The writ is available only in narrow circumstances. The Supreme Court has said that mandamus “should be resorted to only in extreme cases” where there are “exceptional circumstances,” though it gave little specific guidance on when the writ is appropriate.⁹ The usual summary supplies the content: the petitioner must show both a special risk of harm and a clear entitlement to relief, ordinarily because the trial judge has usurped or abdicated authority.¹⁰ The standard is demanding because the writ deliberately and directly interferes with the lower court while the case is still being tried, so it typically succeeds only in extreme cases.¹¹

Each showing guards against a different risk. If the petitioner needed only to show probable error, the court of appeals would decide every contestable ruling twice, once on the petition and again after judgment, and mandamus would become the general interlocutory appeal that the final judgment rule withholds. The clear-entitlement requirement prevents that by limiting the writ to rulings plainly outside the judge's power or plainly a refusal to do the judge's job. The special-risk requirement does separate work. Ordinary error injures a party as every adverse ruling does, and a reversal after final judgment repairs it, so the delay and expense of litigating on cannot make a petition extraordinary. The collateral order doctrine works the same way, since expense alone does not make an order effectively unreviewable. A judge who exceeds the power the rules confer, or who gives up the judicial role, is obviously wrong and has also made the proceeding itself suspect, so usurpation and abdication satisfy both showings at once.

Exam Analysis Steps

Because the writ is reserved for extreme cases, test a petition with the questions a court of appeals asks before it interferes with a trial in progress:

Does any ordinary route reach the order, such as appeal after final judgment, an injunction appeal, a certified appeal, or the collateral order doctrine, so that the petitioner has another adequate means of relief?
Is the petitioner clearly entitled to relief, meaning the ruling uses power the judge lacks or refuses to perform the judicial function, and is not merely arguable error?
Does the ruling create a special risk of harm that appeal after final judgment cannot repair, as opposed to the ordinary delay and expense of litigating on?
Does the case involve a judge's usurpation or abdication of authority, or an exceptional public interest in an immediate answer?

Two decisions show the range. In La Buy the writ was proper where the trial judge had totally abdicated the judicial function by essentially allowing the case to be tried by a master.¹² In Nixon v. Sirica, the D.C. Circuit used mandamus to review Judge Sirica's ruling on whether the presidential tapes were discoverable during the Watergate controversy, because of the great public interest in ending the controversy over that issue as soon as possible.¹³ The two turn on different facts. La Buy involves a defect in how the judge was performing the office, since the judge handed the work of judging to someone else. A discovery ruling ordinarily waits for final judgment, so what made the Watergate ruling reviewable at once was the public stakes in a prompt answer, and no flaw in the judge's conduct of the office was involved.

Mandamus also fills in a point from the collateral order discussion. In Mohawk the Supreme Court counted mandamus among the routes still open to a party who loses a privilege ruling, along with postjudgment appeal, certification under § 1292(b), and contempt appeals.¹⁴ The writ is therefore one of the adequate substitutes that weaken the argument that an order is effectively unreviewable.

An exam stem that describes an unappealable order the losing party thinks is badly wrong invites the quick answer that the party may seek mandamus. The sound answer asks whether the judge usurped or abdicated authority, or whether exceptional public interest demands an immediate answer. Without one of those, the party waits for appeal after final judgment.

Contempt as a Last Resort

A discovery order is clearly final and collateral, yet it typically cannot be appealed under the collateral order doctrine. The reason is that the party can disobey the order, be found in contempt, and then appeal the contempt judgment.¹⁶ Contempt is a court's finding that a person has defied one of its orders, and the sanction that follows is what turns defiance into something a court of appeals can examine. The earlier sections said repeatedly that adequate substitutes weaken the case for an immediate appeal, and this is the substitute they had in mind. It is also the one route in this chapter that asks the party to break an order before anyone will review it.

The Supreme Court's reliance on this path follows from what the third condition measures. That condition asks whether waiting for final judgment would destroy the right, so that review after the case ends arrives too late to matter. If a party that refuses to comply can still bring the order before the court of appeals, the right is not lost, and the order is not effectively unreviewable in the sense Cohen requires. In Mohawk Industries, Inc. v. Carpenter, the Court observed that a party wishing to challenge an adverse privilege ruling still has “standard postjudgment appeals, § 1292(b) appeals, mandamus, and contempt appeals.”¹⁷ The Court has generally treated the availability of the contempt route as showing that a discovery order needs no immediate review as a collateral order.¹⁸ Contempt therefore sits beside the mandamus petition as one of the routes that keep discovery and disclosure orders out of the doctrine.

The Court does not pretend the path is easy. The contempt route is risky, and it is harsh on the party that takes it.¹⁹ The party's only way to obtain review is to commit the very act the order forbids, so if the court of appeals upholds the underlying order, the party has defied a valid command and the sanction stands. The cost also does some work. A rule that let every discovery loser appeal at once would produce the piecemeal appeals the final judgment rule exists to prevent, whereas a route that requires the appellant to risk a sanction reaches only the party that values the ruling more than the risk. Courts therefore accept contempt as a safety valve for the party that truly cannot live with an order, and they do not offer it as a preferred means of review.

The grand jury setting shows the route in its plainest form. Because Mohawk held that a district court's disclosure order adverse to the attorney-client privilege is not immediately appealable under the collateral order doctrine, a lawyer whom a grand jury wants to question about privileged client communications must refuse to respond and suffer a criminal contempt in order to obtain appellate review of the privilege ruling.²⁰ A lawyer called only as a witness has no lawsuit of their own in which a final judgment will later be entered, so the contempt adjudication is the event that brings the privilege question to the court of appeals.

A party that means to defy an order still must preserve its objection. Under Rule 46, a party need only state the action it wants the court to take or objects to, with the grounds, when the ruling is requested or made, and failing to object does not prejudice a party who had no opportunity to do so.²¹ The privilege objection should therefore be on the record when the court rules.

The route works differently when the contempt is civil. Civil contempt orders are not appealable as final judgments, because they are intended to coerce compliance with court orders and not to punish for past behavior.²² A sanction built to pressure compliance leaves the underlying case pending, so it resembles the interlocutory orders this chapter has been sorting and does not read as a final result. The grand jury lawyer faced criminal contempt, and the stated reason for the civil rule, that coercion differs from punishing past conduct, marks the contrast.

The two rules together make the kind of contempt decisive. Contempt is described as a path to review, yet a civil sanction that only coerces compliance leaves the case open and generally is not appealable as a final judgment. A party that plans to rely on the route needs to know which kind of contempt it is risking before it defies anything.

Exam Analysis Steps

Because the route is costly and its availability depends on the kind of contempt, work through the decision in order before any defiance occurs:

Ask whether an ordinary route already reaches the order, such as appeal after final judgment, an injunction appeal, a certified appeal, or the collateral order doctrine, because contempt matters only when none of them does.
Ask whether the order is one a court can enforce by contempt, as a discovery or disclosure order is, so that defiance can produce an adjudication to appeal.
Ask whether the contempt that would follow is civil and coercive, which generally is not an appealable final judgment, or criminal, as in the lawyer who refuses to testify before a grand jury.
Ask whether the objection was raised in the district court with its grounds, and whether the client can bear the sanction if the court of appeals upholds the order.

An exam stem that observes a party “could always disobey the order and appeal” has described a route and has not recommended one. The sound answer says that the availability of contempt is why discovery and disclosure orders fail the third condition of the collateral order doctrine, and then adds that the path is risky and that a civil contempt order meant to coerce compliance generally is not an appealable final judgment.