Enjoining State Courts under the All Writs Act

Thomas LiottiHow to stop frivolous litigation
The article defines what the All Writs Act1 states and then briefly explores the history of the Act, dating back to the origins of issuing writs in English law and the origin of the enactment of the Act, from the Judiciary Act of 1789 and former versions in the United States Code from the early 20th century. This article then examines the purpose and scope of the Act, as well as the specific limitations of it, stemming from the Anti-Injunction Act. Finally, this article analyzes how federal courts may utilize the Act to enjoin state courts and the litigants who bring frivolous claims in those proceedings.

The All Writs Act
The All Writs Act, 28 U.S.C. §1651 (2008)2 (hereinafter “AWA”) is separated into two sections: “(a) The Supreme Court and all courts established by the Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law;” the second section reads as “(b) An alternative writ or rule nisi3 may be issued by a justice or judge of a court which has jurisdiction.” A “writ,” as defined by Black’s Law Dictionary, 8th Edition, is “a court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.” Generally speaking, the Courts of Appeals have the general power under the AWA to issue all writs which are necessary or appropriate for the exercise of their appellate or potential appellate jurisdiction. McClellan v. Carland, 217 U.S. 268 (1910).

Brief History of Writs
Writs have a long tradition in both American and English law. The origin of the issuance of writs can be traced back to the Anglo-Saxon era, where a king used writs to communicate to persons and courts. The Anglo-Norman writs, which developed after the Norman Conquests in the middle eleventh century, were essentially Saxon writs that were written in Latin and sealed with the King’s seal. See F. W. Maitland, The Forms of Action at Common Law, Cambridge University Press, 1962. At the very early stage of English common law, most cases were heard in the Royal Courts, such as the Court of Common Pleas. In order to avail oneself of the Royal Court, a plaintiff would need the permission of the King. See J. H. Baker, An Introduction to English Legal History, Butterworths Press, 1990. For Royal Courts, the writ would usually have been purchased from the Chancery, although the Court of Exchequer, being in essence another government department, was also able to issue its own writs. By the time of Henry II in the late 12th century, the uses of writs had become a regular part of the royal justice in England. See Maitland. By the middle 13th century, the creation of new writs had become so popular, that there was an overabundance of writs being created. This resulted in the Provisions of Oxford (1258), which prohibited the creation of new forms of writ without the sanction of the King’s council. See S. F. C. Milsom, Historical Founda­tions of the Common Law (Second Edition), Butterworths, Press, 1981. Essentially, the forms of writs remained the same and each defined a particular form of action or refrain from action. In Colonial America, the writ system carried over and was used as a means of controlling colonists. In fact, a particular writ, called a writ of assistance, which was issued by superior colonial courts authorizing an officer of the Crown to enter and search any premise suspected of containing contraband, was one of the acts that led to the American Revolution.

The current version of the AWA can trace its roots to two specific areas of law: The Judiciary Act of 1789, ch. 20, §§13-14 and Title 28 of the United States Code, sections 342 and 377 (1948).4 Section 14 of the Judiciary Act of 1789 provided, in part, that all the courts created by the federal government “shall have the power to issue writs of scire facias,5 habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.” Judiciary Act of 1789, ch. 20, §14, 1 Stat. 73, 82. See Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All Writs Act, 148 University of Pennsylvania Law Review 401 (1999). In Section 13 of the Act, Congress further empowered the Supreme Court to “issue writs of prohibition to the District Courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts, appointed, or persons holding office, under the authority of the United States.”

After the Franklin Delano Roosevelt Administration, the judicial code began to undergo revisions. In 1948, the code took much of what the Judiciary Act had said, further revising the codes originally enacted in 1911. 28 U.S.C. §342 (as amended in 1948) incorporated Section 13 of the Act, and provided that “the Supreme Court shall have the power to issue writs of prohibition to district courts, when proceeding as courts of admiralty and maritime jurisdiction; and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States, or to persons holding office under the authority of the United States, where a State, or an ambassador, or other public minister, or a consul, or vice consul, is a party.” 28 U.S.C. 342 (1948). Further, §377 used the language from Section 14 of the Act, to read “the Supreme Court and the district courts shall have the power to issue writs of scire facias. The Supreme Court, the Circuit Courts of Appeals, and the District Courts shall have the power to issue all writs not expressly provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” 28 U.S.C. §377 (1948) (emphasis added). The AWA simply combines these sections and others6 to allow courts to issue all writs that are “necessary or appropriate.”

In addition to the codes, several court cases in the early half of the 20th century, also reaffirmed the power of appellate courts to issue writs. For example, courts were permitted to issue writs of supersedeas, which was a writ containing the command to halt or stay a legal proceeding,7 a writ of scire facias,8 a writ of habeas corpus,9 and injunctions.10 With the court decisions and the reorganizing of the federal judicial code (Title 28), there were now several equivalent and parallel codes. A major reason why the AWA was created was to combine and simplify these statutes and judicial rulings into, thus making the code easier to cite and more rationally defined.

Purpose of the All Writs Act
The AWA serves as a “legislatively approved source of procedural instruments designed to achieve rational ends of law and may be relied upon by courts in issuing orders appropriate to assist them in conducting factual inquiries.” Harris v. Nelson, 394 U.S. 286, rehearing denied, 394 U.S. 1025 (1969). The basic purpose of the AWA is to provide federal courts with the “power to issue appropriate writs in aid of their respective jurisdictions as conferred by other provisions of law,” however, the AWA does not “expand or extend territorial jurisdiction to such courts.” Edgerly v. Kennelly, 215 F.2d. 420, cert. denied, 348 U.S. 938 (1954); Torres v. Walsh, 221 F.2d. 319 (2d. Cir. 1955); United States, ex rel., State of Wisconsin v. First Federal Savings and Loan Association, 248 F.2d, cert. denied, 355 U.S. 957 (1957); United States v. Spadafora, 207 F.2d. 291 (1953). Most importantly, the power to issue the writ “comprehends the court’s responsibility for the orderly and efficient administration of justice within the Circuit.” In re Richards, 213 F. 3d. 773 (3d. Cir. 2000).

One of the Congressional policies accomplished by the AWA is the obstruction of piecemeal litigation by parties filing multiple and frivolous applications for writs. The Supreme Court of the Untied States has held that the AWA may not be used to thwart Congressional policy against such appeals. Will v. United States, 389 U.S. 90 (1967). Former Chief Justice Rehnquist, sitting as a single Justice, stated “the authority granted to courts under the All Writs Act is to be used sparingly and only in the most critical and exigent circumstances.” Wisconsin Right to Life, Inc. v. Federal Election Commission, 542 U.S. 1305 (2004). One court has held that factors to be considered in determining whether prerogative writs11 should issue are whether the matter “is of public importance, whether the policy against piecemeal appeals would be frustrated, whether there has been a willful disregard of legislative policy, or of rules of a higher court, and whether refusal to issue the writ may work a serious hardship on the parties.” Morrow v. District of Columbia, 417 F.2d. 728 (1969). For example, in Peters v. Brants Grocery,12 the court held that the AWA did not afford the federal court the authority to issue an injunction to prevent the filing of other lawsuits in other courts because there was no showing made that the court’s subject matter jurisdiction or its ability to manage the case would be seriously impaired, absent an injunction and because the other litigation that might be filed would not affect the court’s ability to hear and determine motions to dismiss or for class certification.

Scope of the All Writs Act
Where a specific statute addresses a particular issue at hand, it is the authority of the statute, and not the AWA that is controlling. United States v. Perry, 360 F.3d. 519 (6th Cir. 2004). The AWA also does not create subject matter jurisdiction for courts where such jurisdiction was otherwise lacking. Burr & Forman v. Blair, 470 3d. 1019 (11th Cir. 2006); Auburn Medical Center, Inc. v. Peters, 953 F.Supp. 1518 (M.D. Ala. 1996). The AWA is not an independent grant of jurisdiction and merely permits a court to issue writs in aid of jurisdiction acquired to grant some other form of relief. Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d. 1352 (10th Cir. 1972). Even if another act provides that a District Court shall have original jurisdiction of any action in the nature of a mandamus, the AWA allows a court to order a remedy only where subject matter jurisdiction already exists. Carson v. Untied States Office of Special Counsel, 534 F.Supp.2d. 103 (D. D.C. 2008).13

The AWA not only does not confer subject matter jurisdiction, but also does not constitute a separate basis for original jurisdiction for a district court. Hill v. United States Board of Parole, 257 F.Supp. 129 (M.D. Pa. 1966); Stephenson v. Dow Chemical Co., 346 F.3d. 19 (2d. Cir. 2003). Even if the AWA is applicable, it is entirely permissive in nature. It in no way mandates a particular result or the entry of a particular order. Roche v. Evaporated Milk Association, 319 U.S. 21 (1943); see also Application of United States in Matter of Order Authorizing the Use of a Pen Register, 538 F.2d. 956 (2d. Cir.), cert. granted, 429 U.S. 1072, rev’d on other grounds, 434 U.S. 159 (1976).

Limitations on the All Writs Act by the Anti-Injunction Act
Under the Anti-Injunction Act, 28 U.S.C. § 2283 (2008) (hereinafter “AIA”), federal courts are statutorily prohibited from enjoining state court proceedings except in three narrowly defined cases.14 The first exception is if Congress expressly authorizes the enjoinment. 28 U.S.C. § 2283. The second exception occurs in a case where it is necessary for the federal court to aid its jurisdiction. Id. The third exception occurs in cases where it is necessary for the federal court to protect or effectuate its judgments. Id. Courts have held that in the interest of federalism and comity, “exceptions to the Anti-Immigration Act’s bar are construed strictly or narrowly, and may not be enlarged by loose statutory construction.” G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d. 1096 (9th Cir. 2003); Zurich American Ins. Co. v. Superior Court for State of California, 326 F.3d. 816 (7th Cir. 2003); In Re: Prudential Ins. Co. of American Sales Practice Litigation, 261 F.3d. 355 (3d. Cir. 2001).

If an injunction falls into any of the three aforementioned exceptions, then the AWA is applicable. Generally speaking, while the AWA may have an open interpretation of when it may be used, since it has no qualifier, except that the writ be “necessary and appropriate,” the AIA effectively limits its use because it prohibits federal courts from enjoining state court actions except where necessary in aid of jurisdiction or to protect or effectuate its judgments, which is when the AWA is supposed to be utilized. See Sandpiper Village Condominium Association, Inc. v. Louisiana-Pacific Corp., 428 F.3d. 831, cert. denied, 126 S. Ct. 2970 (2005). The narrowing function also makes the scope of the AWA clearer because if a case does not meet one of the defined exceptions set forth in the AIA, a court may not issue a writ under the AWA.

Requirements of Appellate Courts
Under the AWA, a court must first determine that the issuance of the writ complies with the Act, namely that the issuance of the writ is in aid of its jurisdiction and that the issuance is agreeable to the usages and principles of law. 28 U.S.C. §1651(a). In order to establish that §1651(a) is met, counsel should provide the court with a “checklist” in order to demonstrate and substantiate that the court has the authority to issue the extraordinary writ. The first matter that must be established is that there is no other adequate means to obtain the relief desired. Kerr v. United States District Court for Northern District of California, 426 U.S. 394 (1976); Allied Chemical Corp. v. Daiflon, Inc., 499 U.S. 33 (1980). Secondly, it must be established that the right to the issuance of the writ is “clear” and “indisputable.” Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978); Allied Chemical Corp., supra. Third and finally, depending on the jurisdiction, it may be required that a question of first impression is raised. See International Union, United Auto., Aerospace and Agr. Implement Workers of America v. National Caucus of Labor Committees, 525 F. 2d. 323 (2d. Cir. 1975); Bauman v. United States District Court, 557 F.2d. 650 (9th Cir. 1977); DeGeorge v. United States District Court for Central District of California, 219 F.3d. 930 (9th Cir. 2000).15 A writ will ordinarily be denied, however, if the jurisdiction of the lower court is doubtful, or if the jurisdiction depends on a finding of fact made on evidence which is not in the record or if the complaining party has an adequate remedy by appeal or otherwise. Hazeltine Corp. v. Kirkpatrick, 165 F.2d. 683 (3d. Cir. 1948); Gulf Research and Development Co. v. Leahy, 193 F.2d. 302 (3d. Cir. 1951), judgment aff’d, 344 U.S. 861 (1952).16

Barring State Claims
In the Second Circuit, as elsewhere, under the AWA, federal courts are able to enjoin plaintiffs from filing claims in state courts. For example, in Selletti v. Carey, et al,17 a Federal District Court Judge enjoined a plaintiff from filing an action in the Supreme Court of New York. The state complaint made “the same factual allegations that had been asserted in the instant [federal] case,” although it added, as defendants, a co-writer, as well as the attorneys who represented the defendant and others. Id. The plaintiff in the case had already lost in federal court and his appeal was denied. The defendants in the case filed a petition for relief under the AWA requesting that the plaintiff and his attorneys and other agents be “enjoined from prosecuting the state court action and seeking to re-litigate in any forum the claims and issues decided in this case.” Id. The case also briefly outlined the prohibition writ, stating that the order granted under the AWA prohibited the plaintiff and his attorney from “seeking to re-litigate in any forum, claims and issues decided in this action and taking any action that is inconsistent with, undermines, or frustrates the judgement and orders of [the] court.” Essentially, it was deemed necessary to aid the court’s jurisdiction and preserve the findings of fact. See Baker v. Gotz, 415 F. Supp. 1243 (D.C. Del.), aff’d 546 F.2d. 415 (1976).

Similarly, other courts have held that the AWA authorizes orders to refrain from instituting other litigation against a defendant in any state or federal court based upon “the same events or evidence that a proper court has previously examined in earlier rulings.” See Browning Debenture Holders’ Committee v. DASA Corp., 605 F.2d. 35 (2d. Cir. 1978); Royal Ins. Co. of America v. Quinn-L Capital Corp., 759 F. Supp. 1216 (N.D. Tex.), aff’d in part, rev’d in part on other grounds, 960 F.2d. 1286, rehearing denied, 966 F.2d. 674 (1990); Foyt v. Championship Auto Racing Teams, Inc., 847 F. Supp. 290 (S.D. Tex. 1996). For example, it was held in In re March18 that a federal district judge in Virginia did not abuse her discretion, but rather acted within her authority under the AWA, by enjoining further proceedings in a New York Bankruptcy Court because the question raised by the plaintiff in the New York Court was identical to that decided by the Virginia Court and an appeal to the Fourth Circuit, and thus the plaintiff had sufficient opportunity to obtain relief if he believed the Virginia Court’s ruling was wrong. See also Keith v. Volpe, 118 F.3d. 1386 (9th Cir. 1997) (a district court is empowered to enjoin state proceedings that interfere with federal judgments).

When presented with a motion under the AWA to declare a litigant vexatious, a court must (1) give the plaintiff an opportunity to oppose the order; (2) indicate what court filings support issuance of the order: and (3) find that the filings were frivolous and harassing. Doran v. Vicorp Restaurants, Inc., 407 F. Supp. 2d. 1115 (C.D. Cal. 2005). A court also has the authority to issue an injunction to restrict the filing of a meritless pleading. Matter of Packer Avenue Associates, 884 F.2d. 745 (3d Cir. 1989) (In the case, the Third Circuit defined meritless as pleadings that raise issues identical or similar to those that have already been adjudicated). In addition, if a plaintiff is not entitled to a form of relief, he or she may be barred from further pursuing such relief under the AWA. Lacks v. Fahmi, 623 F.2d. 254 (2d. Cir. 1980). See In Re Oliver, 682 F. 2d. 443 (3d. Cir. 1982); Mich. v. City of Allen Park, 573 F. Supp. 1481 (E.D. Mich. 1983); Morgan Consultants v. American Tel. and Tel. Co., 546 F. Supp. 844 (S.D. N.Y. 1982).19

The All Writs Act is an under-used tool that all too often goes unnoticed by attorneys who are constantly frustrated by having to defend frivolous lawsuits. Often times, losers in cases who no longer are able to appeal in the same jurisdiction, seek to obtain a second bite at the apple when they were properly denied relief in the first jurisdiction. While defendants and courts cannot stop vexatious or frivolous claims from being initiated, the All Writs Act is a tool to be utilized to enjoin state courts from entertaining frivolous litigation that wastes time, energy and resources. The Act and prohibition should be considered for use against unscrupulous lawyers and their vexatious clients in order to stop them from engaging in frivolous litigation and other harassment under the guise of a legal proceeding. Those who simply will neither accept their loss nor will stop litigating can be enjoined. When the vexatious veil of endless litigation cannot be pierced, federal judges may intervene by doing so in the form of an injunction under the All Writs Act.

Thomas F. Liotti is an attorney in private practice in Garden City, Long Island, New York and a Village Justice in Westbury, New York. He gratefully acknowledges the assistance of his Law Clerk, Adam Lepzelter, who is a third-year student at Hofstra University School of Law, in the research and writing of this article.

1. 28 U.S.C. §1651
2. Unless otherwise noted, references to the All Writs Act relate to the statute as it is currently amended as of 2008.
3. A “rule nisi” is an “unless” rule, meaning that unless a procedure by which one party through an ex parte application or an order to show cause calls upon another to show cause why the relief set forth in the proposed order should not be made final by the court, the order will be made final. If no cause is shown the court will enter an order rendering the relief “absolute,” thereby requiring whatever was sought to be accomplished by the relief.
4. Revised from 1911.
5. In English Law a writ of scire facias (from the Latin meaning “to cause to be known”) was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of patents or grants, the record should not be annulled and vacated.
6. For example, 28 U.S.C. 376 (1948) specifically concerned writs of ne exeat (Latin, meaning do not leave), which are writs that were issued to restrain a person from leaving the county or the jurisdiction of the court, unless a suitable bond (bail) had been posted.
7. In Re McKenzie, 180 U.S. 536 (1901).
8. McClellan v. Carland, 217 U.S. 268 (1910).
9. Ex Parte Moran, 144 F. 594 (8th Cir. 1906).
10. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923).
11. A prerogative writ is a subset of writs that are to be heard ahead of any other cases on a court’s docket except other such writs. The most common prerogative writs are writs of habeas corpus, quo warranto (a writ brought before a proper tribunal to inquire by what warrant a person, corporation, or authority exercises a power or act), prohibito, mandamus, procedendo (a writ by which a cause has been removed on insufficient grounds from an inferior court to a superior court on certiorari, or otherwise, and is then properly sent back to the lower court; in English law it is a writ issuing out of Chancery in cases where the judges of subordinate courts delay in giving judgment, commanding them to proceed to judgment), and certiorari.
12. 990 F. Supp. 1337 (M.D. Ala. 1998).
13. The AWA, which is itself “limited by jurisdiction of federal courts, cannot be used to circumvent or supercede constitutional limitations of the Eleventh Amendment.” In re Baldwin-United Corp., 770 F.2d. 328 (2d. Cir. 1985).
14. See Drelles v. Metropolitan Life Ins. Co., 357 F.3d. 344 (3d. Cir. 2003). See generally, CJS Courts §299 (2008).
15. Other factors that Courts may examine are the possibility of interference with foreign policy, the possibility that the question will evade review for practical, rather than legal reasons, the possibility that the action will interfere with the basic principles of federalism, the possibility that the action will interfere with and cause irreparable harm or injury to a clear Congressional plan, and the possibility that the action will cause unnecessary and unseemly interference with a coordinate branch of the government. See National Right To Work Legal Defense v. Richey, 510 F.2d. 1239 (D.C. Cir. 1975). See also Nixon v. Sirica, 487 F.2d. 700, 19 A.L.R. Fed. 343 (D.C. Cir. 1973).
16. See also Suzanne L. Bailey, et al, Courts of Appeals, 36 C.J.S. Federal Courts § 402 (June 2008).
17. Not reported in F. Supp. 2d., 2003 WL 1900770 (S.D.N.Y.)
18. 988 F. 2d. 498 (4th Cir.), cert. denied, 510 U.S. 864 (1993).
19. See also BGW Associates, Inc. v. Valley