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In Re Howard B. Eisenberg v. United States District Court for the Southern District of Illinois
Citations: 910 F.2d 374; 1990 U.S. App. LEXIS 13349; 1990 WL 110248Docket: 90-1636
Court: Court of Appeals for the Seventh Circuit; August 6, 1990; Federal Appellate Court
Mandamus is not to be used as a substitute for an appeal, as reiterated by the Seventh Circuit in this case. The petitioner, representing two indigent federal prisoners, sought advanced reimbursement for expenses incurred while preparing a constitutional rights lawsuit against Marion Federal Penitentiary staff. The district court denied the request based on a local plan that limits such reimbursements to $250, payable only after litigation concludes. This decision was not a final order under 28 U.S.C. § 1291 and was therefore not appealable. The petitioner argued that the reimbursement limitation violated both his and his clients' constitutional rights and sought a writ of mandamus under 28 U.S.C. § 1651(a) to compel reimbursement regardless of the local plan. The court emphasized that mandamus is a narrow exception to the final-decision rule and requires showing that the district court has violated a clear duty and that immediate correction is necessary to prevent serious irreparable injury. In this case, the second condition was not met; therefore, the court did not need to analyze the first condition. The petitioner asserted that without reimbursable expenditures, he could not effectively represent his clients. The court considered two scenarios: the petitioner could either cover the costs himself and seek reimbursement later, or choose not to incur the expenses at all. In either case, the petitioner would retain the right to pursue remedies under the Tucker Act, which provides a means to address violations of the Fifth Amendment's just-compensation clause. The court concluded that waiting until the end of the case to appeal is appropriate, especially given that any potential error might be harmless. Resolving the validity of the district court's plan before advancing further in the lawsuit could save lawyer and judicial time, but this situation calls for certifying a controlling question of law for immediate appeal under 28 U.S.C. § 1292(b) rather than mandamus. The procedural nature of the question does not prevent certification, as supported by precedent. The petitioner misjudged the appropriate remedy, and since alternative relief options were available, the conditions for granting mandamus were not met, resulting in the petition's denial. Additionally, Judge Cudahy notes the unfortunate circumstance of Howard Eisenberg, an attorney who has provided significant pro bono work, facing demands to incur personal costs for justice. While agreeing that mandamus is not an option, Cudahy advises Eisenberg to seek an immediate appeal under § 1292(b) and emphasizes the constitutional distinction between requiring lawyers to incur expenses and compelling them to provide services, highlighting potential due process concerns related to the latter.