Rehearing Denied Oct. 4, 1976.
See 429 U.S. 873.
On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The motion of the respondents for leave to proceed in forma
pauperis is granted.
The petition for a writ of certiorari is denied.
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE and Mr.
Justice POWELL join, dissenting.
The writ of mandamus is granted sparingly and is 'reserved for
really extraordinary causes,' Ex parte Fahey,
332 U.S.
258, 260 (1947). It seems to me that
Page 426 U.S.
925 , 926
the course of this litigation in the United States District
Court for the Eastern District of Texas makes it a 'really
extraordinary' case, and I would grant certiorari to review the
decision of the Court of Appeals for the Fifth Circuit declining to
issue the writ sought by petitioners.
Sometime prior to April 1974, David Ruiz and other inmates of
the Texas Department of Corrections sued petitioner Estelle,
Director of the Texas Department of Corrections, in the United
States District Court for the Eastern District of Texas seeking
declaratory and equitable relief from alleged deprivations of
rights secured to the plaintiffs by the Constitution of the United
States. Jurisdiction was based upon 28 U.S.C. 1343 and 42 U.S.C.
1983. On April 12, 1974, respondent, the Honorable William Wayne
Justice, a judge of the United States District Court for the
Eastern District of Texas, ordered the Ruiz case consolidated with
several other pending causes in the District which he found to
involve common questions of law and fact, and proceeded, sua sponte
to enter the following additional order:
'This Court having also determined
that the public interest will be served by the participation of the
United States of America in the consolidated civil action, it is
ORDERED that the United States of America make an appearance in the
above-entitled and numbered consolidated civil action as amicus
curiae, in order to investigate fully the facts alleged in the
prisoners' complaints, to participate in such civil action with the
full rights of a party thereto, and to advise this Court at all
stages of the proceedings as to any action deemed appropriate by
it.'
Not surprisingly the United States some months later filed a
motion to intervene in the action and to add parties defendant
thereto. Despite the familiar rule that
Page 426 U.S.
925 , 927
an intervenor take the case as he finds it, respondent granted
not only the motion of the United States to intervene, but also
that seeking to add as parties defendant the Texas Board of
Corrections, and the members of that Board as individuals. In
addition, the complaint in intervention of the United States sought
relief which went far beyond that sought by the inmates, requesting
an order enjoining petitioner and other defendants from the
following:
'1. Failing or refusing to provide
inmates with a medical care delivery system which is accessible and
adequate to meet their medical needs;
'2. Failing or refusing to provide
living and working conditions which do not jeopardize the health
and safety of inmates;
'3. Failing or refusing to provide
inmates reasonable protection from physical assault;
'4. Failing or refusing to permit
inmates reasonable access to the Courts and to public officials for
redress of grivances;
'5. Failing or refusing to supervise
and control prison officials and employees sufficiently to prevent
the systematic imposition of summary and and other cruel and
unusual punishment on inmates and the systematic denial of due
process to inmates.'
Petitioners opposed the unexpected entry of the United States
into this litigation, as well as its attempt to expand the issues
before the District Court. Respondent, however, refused their
request to certify his orders for interlocutory appeal pursuant to
28 U.S.C. 1292(b). Petitioners thereupon brought the instant action
pursuant to the All Writs Act, 28 U.S.C. 1651(a), contending that
respondent had so exceeded his authority as to warrant issuance of
a writ of mandamus. The Court of Appeals rejected petitioner's
request for this rlief in
Page 426 U.S.
925 , 928
opinions which indicated that the three members of the panel had
divergent views on the issues before it.
While each of the three judges of the Court of Appeals had a
somewhat different view as to why petitioners should not obtain the
relief they requested, it seems fair to say that the lowest common
denominator of these views was an assumption on the court's part
that even if respondent's orders were wholly unauthorized by law,
they could not be reviewed by a writ of mandamus. I think this
assumption incorrect. And I believe that respondent's actions in
this litigation raise issues of sufficient moment, regarding both
the relationship between the federal judiciary and the Executive
Branch of the Federal Government and that between the federal
judiciary and the States, that the Court of Appeals' conclusion
that mandamus should not issue warrants plenary review here.
The effect of the actions of respondent is to pit the United
States, as a virtually involuntary coplaintiff, alongside the
inmate plaintiffs and against petitioner corporational officials. I
think it extremely doubtful there is any authority for those
actions. Fed.Rule Civ.Proc. 24(b ), upon which respondent relied,
requires that a would-be intervenor have at a minimum some 'claim'
having 'a question of law or fact in common' with the action sought
to be enjoined. But the United States surely has no claim of its
own under the Fourteenth Amendment which it may assert against
petitioners, and the rather pallied brief of the United States in
opposition to certiorari is discreetly silent as to the source of
any such 'claim.' 42 U.S.C. 2000h-2, which authorizes intervention
by the Attorney General in an action seeking relief from the denial
of equal protection of the laws 'on account of race, color,
religion, sex or national origin . . .,' clearly affords no basis
for intervention by the Gov-
Page 426 U.S.
925 , 929
ernment on the pleadings before the District Court. The
Solicitor General's brief also refers to the fact that the United
States has statutory responsibility for enforcing 18 U.S.C. 241 and
242, 'the criminal counter part to 42 U.S.C. 1983,' but it would
seem unlikely that respondent or any other District Court could
grant intervention for the reason that the proposed intervenor
wished later to institute criminal proceedings against one of the
parties to a civil action. In its memorandum in support of its
motion to intervene in the District Court, the United States urged
that it had 'inherent standing to sue to enjoin widespread and
severe deprivations of constitutional rights. In re Debs,
158 U.S. 564 (1895).' If
Debs, which held that a federal court had authority to issue an
injunction against an armed conspiracy that threatened the
interstate transportation of the mails, is to be extended to the
situation presented by this case, I think the decision to do so
should be made by this Court.
In short, the legal assumptions on which the District Court
acted involve serious and far-reaching questions which have
certainly not been settled by any decision of this Court. And since
the relief sought by the inmate plaintiffs in Ruiz, if awarded at
all, will run to the individual prisoners, petitioners will be
unable to assert any separate claim of error in an appeal from that
judgment by reason of the respondent's orders allowing intervention
by the United States. There is a substantial probability,
therefore, that the issue here presented will escape review at any
other time, and that mandamus is 'the only means of forestalling [
the] intrusion of the federal judiciary' complained of by
petitioners. Will v. United States,
389 U.S. 90 (1967);
Maryland v. Soper,
270
U.S. 9 (1926). If there was no legal basis for the respondent
to grant intervention on the part of the United States, use of the
writ of mandamus in this case would come squarely within its
'traditional use
Page 426 U.S.
925 , 930
confin[ing] an inferior court to a lawful exercise of its
prescribed jurisdiction' Roche v. Evaporated Milk Association,
319 U.S.
21, 26, 63 S. Ct. 938 (1943), for respondent's action would
fall into the category of 'usurpation of power' against which
mandamus is classically available. DeBeers Consol. Mines, Ltd. v.
United States,
325 U.S.
212, 217 (1945).
Over and beyond these factors, which govern availability of
mandamus in private litigation, this case raises issues involving
'the delicate area of federal-state relations,' Will v. United
States,
389 U.S.
90, 95 (1967), in which mandamus must be more readily available
in other civil litigations. Id., Maryland v. Soper,
270 U.S.
9, 29 (1926). And, perhaps most importantly of all, the Court
of Appeals indicated in its opinion, 516 F. 2d, at 487 n. 5, that
intervention by the United States in situations similar to that
presented here has been authorized by a number of district courts
in the Fifth Circuit. There is good reason to believe, therefore,
that orders such as those entered by respondent in this case will
be entered by other district courts in that Circuit in the future.
If this be an improper exercise of their authority, the prospect of
its being repeated makes mandamus particularly appropriate. LaBuy
v. Howes Leather Co.,
352 U.S. 249 (1957).
I would grant the writ of certiorari.