How mandamus and interlocutory appeals interact
A writ of mandamus and an interlocutory appeal under 28 U.S.C. 1292(b) provide distinct avenues for seeking immediate appellate review of a district court order. In some circumstances, however, appellate courts have denied mandamus because the petitioner failed to pursue an appeal under § 1292(b).
Mandamus is a "drastic and extraordinary" remedy reserved for those exceptional circumstances when the district court has committed a clear abuse of discretion or usurpation of judicial power. Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004). Seldom granted, it has been called one of "the most potent weapons in the judicial arsenal." Will v. U.S., 389 U.S. 90, 107 (1967). While there are varying formulations of the standards for mandamus, at a minimum a petitioner must show that there is "no other adequate means to attain the relief he desires," that the right to the relief sought is "clear and indisputable" and that the writ is otherwise "appropriate under the circumstances." Cheney, 542 U.S. at 380–81.
The first condition for mandamus – that there are no alternative methods to seek review of a district court order – is the point of intersection with § 1292(b), because an interlocutory appeal under 28 U.S.C. 1292(b) can provide such an alternative path to review. Under § 1292(b), a district court can certify an order for an interlocutory appeal if the court finds that the order involves a controlling question of law; there is a substantial ground for difference of opinion about the court's order; and immediate appeal would materially advance the ultimate termination of the litigation. If the district court provides the required certification, the party seeking to appeal must also obtain permission of the court of appeals to pursue the appeal. Id.; Fed. R. App. P. 5(a)(1).
Parties cannot circumvent this "dual gatekeeper" structure by petitioning for a writ of mandamus to direct a district court to certify an order for appeal under § 1292(b). "If someone disappointed in the district court's refusal to certify a case under § 1292(b) has only to go to the court of appeals for a writ of mandamus requiring such a certification, there will be only one gatekeeper, and the statutory system will not operate as designed." In re Ford Motor Co., 344 F.3d 648, 654 (7th Cir. 2002). Parties denied § 1292(b) certification can still pursue a mandamus petition – not to compel § 1292(b) certification, but to review the substance of the underlying order being challenged. Id. at 654. Appellate courts have been open to considering a mandamus petition in these circumstances. See, e.g., In re Lott, 424 F.3d 446, 449 (6th Cir. 2005); In re U.S., 463 F.3d 1328, 1337 (Fed. Cir. 2006).
The problem arises when a party seeking a writ of mandamus has not asked the district court to certify the disputed order for immediate appeal under § 1292(b). Some courts have denied mandamus on that basis, finding that § 1292(b) provides an alternative vehicle for review. See, e.g., In re El Paso Elec. Co., 77 F.3d 793 (5th Cir. 1996); In re Calif. Public, 79 Fed. Appx. 478 (2d Cir. 2003); In re GAF Corp., 416 F.2d 1252 (1st Cir. 1969). As a general rule, however, pursuing a § 1292(b) appeal first is not an absolute prerequisite to mandamus; rather, it is a factor strongly considered in determining whether there is an alternative avenue of relief available. E.g., In re Chimenti, 79 F.3d 534, 538-39 (6th Cir. 1996); In re School Asbestos Litigation, 977 F.2d 764, 773-74 (3d Cir. 1992).
In some circumstances, certification under § 1292(b) is not available because the requirements of that provision cannot be met. For example, when a district court order is challenged as an abuse of discretion and does not involve a "controlling issue of law," review pursuant to § 1292(b) is not available. That was the reasoning of the U.S. Court of Appeals for the Sixth Circuit in granting a mandamus petition in Ohio Environmental Council v. U.S. District Court, 565 F.2d 393 (6th Cir. 1977). Since the basis for mandamus was "the District Court's abuse of discretion, rather than mistake of law…there is no controlling question of law" and "a request for § 1292(b) certification would be a pointless formality." Id. at 398. Of course, to meet the rigorous standards for mandamus, n order being challenged must go well beyond ordinary abuse of discretion. E.g., In re Ford Motor Co., 344 F.3d 648, 651 (7th Cir. 2002) (forum non conveniens decisions are within the discretion of the district court and rarely give rise to the clear and indisputable right to relief required for mandamus).
Resort to § 1292(b) before seeking mandamus may also be unwarranted if it would not materially advance the ultimate termination of the litigation, as § 1292(b) requires. The Second Circuit, for example, granted mandamus to reverse an order compelling production of highly sensitive police intelligence reports, noting that § 1292(b) certification was unavailable to the petitioner because resolution of this issue would not have hastened an ultimate decision on the merits of the litigation. In re City of New York, 607 F.3d 923, 933 (2d Cir. 2010). The Seventh Circuit wrestled with a similar issue in denying a mandamus petition challenging a district court's refusal to advance necessary out-of-pocket expenditures to an attorney representing indigent prisoners. Although the court of appeals recognized that judicial efficiency might well be served by promptly resolving the constitutional issues raised by the district court's extremely restrictive reimbursement plan, it determined that those concerns could be considered in a request for certification under § 1292(b), which the attorney therefore had to pursue before seeking mandamus. In re Eisenberg, 910 F.2d 374 (7th Cir. 1990).
In some cases, appellate courts have concluded that it would be futile for a party to seek certification under § 1292(b), based on the district court's prior refusal to reconsider decisions or certify orders for appeal, and therefore have not required § 1292(b) certification as a condition for seeking mandamus. See, e.g., In re Chimenti, 79 F.3d 534, 540 (6th Cir. 1996); In re Briscoe, 448 F.3d 201, 213 n.7 (3d Cir. 2006). In In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992), the Third Circuit issued a writ of mandamus requiring a district judge to disqualify himself based on the judge's highly inappropriate and partial conduct. As a practical matter, § 1292(b) certification is unavailable in this situation because a judge who has refused to disqualify himself is extremely unlikely to certify that issue for appellate review. Id. at 777.
In determining whether the failure to pursue an interlocutory appeal under § 1292(b) should preclude mandamus, it seems clear that appellate courts are often influenced by just how erroneous the challenged order is and how much harm it would cause the petitioner. For example, although transfer orders don't usually warrant mandamus, in particularly egregious cases courts have granted such petitions without requiring the party to pursue an appeal under § 1292(b). The Eighth Circuit, for example, vacated a district court's transfer of a taxpayer's refund suit from the Eastern District of Missouri, where the taxpayer resided and brought the suit, to the District of Hawaii. The failure of the taxpayer to seek interlocutory review under § 1292(b) was not an impediment to granting mandamus because the transfer order was so clearly erroneous and imposed such an obvious burden on the taxpayer. Caleshu v. Wangelin, 549 F.2d 93, 96 & n.5 (8th Cir. 1977). Similarly, in In re Apple Inc., 602 F.3d 909, 911-12 (8th Cir. 2010), the court found mandamus to be the proper remedy when a district court refused to transfer a case to California from Arkansas, which "had no connection to the dispute," even though the defendant had not first pursued interlocutory review under § 1292(b).
What guidance can a practitioner draw from this mixed bag of case law? If there is a meaningful chance of certification under § 1292(b), you would be well advised to pursue that option first, particularly if the order being challenged does not blatantly disregard established law and does not impose an extraordinary hardship on a party. In any event, a petition for mandamus should address the issue – either by stating that the district court has denied certification or by explaining why the order at issue would not meet the standards for certification under § 1292(b) or why it would be futile to pursue an appeal under that provision.