Mandamus petitioners are supposedly unwelcome visitors in the federal courts of appeal. As the U.S. Supreme Court once put it, “[O]ur cases have answered the question as to the availability of mandamus … with the refrain: ‘What never? Well, hardly ever!’”
Although the U.S. Court of Appeals for the Fifth Circuit has echoed that mantra, contemporary mandamus practice suggests a gap between the “law in the books” and the “law in action.”
A recent example is the court’s opinion in In re JPMorgan Chase & Co. The case involved a massive “collective action” brought by current and former employees of the bank under the Fair Labor Standards Act. The district court ordered that all putative class members had to receive individual notice of the action – including 35,000 people who had probably waived their right to join such actions by signing arbitration agreements.
JPMorgan, after the district court denied certification of this issue for interlocutory appeal, petitioned the Fifth Circuit for a writ of mandamus. It asked the Fifth Circuit to direct the district court to exclude from the notice requirement all employees who had signed such arbitration agreements.
The Fifth Circuit first reiterated the oft-repeated standard governing mandamus relief: “A writ of mandamus is ‘a drastic and extraordinary remedy reserved for really extraordinary cases.’” Specifically, for mandamus to issue, the district court’s error must be irremediable on appeal, mandamus must be appropriate under the circumstances, and the right to relief must be “clear and indisputable.”
The Fifth Circuit easily disposed of the first two requirements. The notice issue would be moot by the time the case concluded, so appeal would not provide an adequate remedy. And whether employees should receive notices of collective actions that they could not join under arbitration agreements was a recurring issue where district courts had divided, making mandamus appropriate under the circumstances.
Finally, the court addressed whether JPMorgan had a “clear and indisputable” right to the writ. The answer was ultimately “no,” because a number of other district courts in the Fifth Circuit had made the same legal error and, therefore, it was not “patently erroneous” for the district court to reach its challenged conclusion.
Nonetheless, the Fifth Circuit also held that the district courtwas wrong on the law because Supreme Court precedent did not give district courts discretion to require such notice to employees bound by arbitration agreements. More importantly, the Fifth Circuit stated that its opinion in this case was “now binding precedent throughout the Fifth Circuit,” and that “[t]he district court should revisit its decision in light of this opinion.”
In other words, the Fifth Circuit told the district court to reverse course or else, as JPMorgan now has “a clear and indisputable” right to mandamus relief against an order requiring notice to such employees.
In re JPMorgan Chase is not the first time the court has effectively granted the extraordinary relief sought by a mandamus petition without a showing that the extraordinary conditions for mandamus were met. Indeed, in a footnote, the court itself explained that “it has routinely held … that a district court erred, despite stopping short of issuing a writ of mandamus.”
In these various cases, the court has basically told petitioners to “come back later,” either pretrial or on appeal from final judgment. For example, in In re Bryant, the governor of Mississippi sought to quash a court-ordered deposition of his chief of staff. The court denied the governor’s petition but “without prejudice to the renewal of the petition, if needed,” while also offering guidance to the magistrate judge regarding specific issues requiring its consideration. Similarly, in In re Crystal Power Co., the court “confessed puzzlement over why respondents insist on litigating this case in federal court even though … any judgment issued by the district court will surely be reversed.”
In re JPMorgan Chase adds to this line of cases by fully resolving the contested legal issue before asking the petitioner to return. It therefore brings the Fifth Circuit a step closer to granting the extraordinary remedy – in an admittedly non-extraordinary case.