Mandamus is an Extraordinary Remedy

Thereafter some parties, including the two district judges themselves, Judges Robson and Will, filed their own certiorari petitions in the Supreme Court as well as a petition for a writ of mandamus. The grounds stated for the issuance of the mandamus writ were that the action of the appellate court contravened the sound exercise of appellate jurisdiction when this court substituted its findings and discretion for that of the district court, and further, that the interpretation of the escheat was a serious error of law.

Houck on behalf of the United States v. Folding Carton Admin. Committee, 881 F.2d 494, 497 (7th Cir. 1989).

Yes, you read that correctly. The trial judges asked the Supreme Court to set aside the appellate court’s ruling on appeal from their own decision. (Yes, you also read that correctly. Trial judges, plural.) They withdrew the petitions after a tentative settlement of the issues involved by the affected parties. When that settlement broke down (the U.S. attorney’s office changed its mind on a question involving escheat(!)), the case wound up before the Seventh Circuit for the second time. The court was remarkably magnanimous:

The circumstances of this case call into question the power of this court and the enforcement of its judgments. Such a situation should not have arisen. We shall, however, not unnecessarily dwell on individual contributions to this situation.

Id. at 499. Nonetheless, given one district judge’s announcement that the Seventh Circuit’s prior decision had been “silly” and was merely advisory, it took no chances:

When the district court comes to a conclusion on the remaining issues in this case, a copy of that decision shall forthwith be filed with the Clerk of this court. It will then be reviewed by this present panel for conformity with the mandate of this court, and on any other basis which may be raised by appropriate parties. To expedite that review, this court retains jurisdiction.

Id. at 503.

(I learned of this “extraordinary litigation” from Douglas Laycock’s Modern American Remedies. More gems from this quite enjoyable book to come …)