Writ of Prohibition or Mandamus — Factors

The source of power to issue a writ of prohibition or mandamus is 28 U.S.C. § 1651(a), which provides:

The Supreme Court and all courts established by 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.

"Although a writ of mandamus may appear more appropriate when the request is for an order mandating action, and a writ of prohibition may be more accurate when the request is to prohibit action, modern courts have shown little concern for the technical and historic differences between the two writs. Under the All Writs Act, the form is less important than the substantive question of whether an extraordinary remedy is available." Earley v. Braxton, 258 F.3d 250, 256 (4th Cir. 2001) (citation and internal quotations omitted).

The factors to obtain a writ in the Ninth Circuit are set forth in State of Arizona v. U.S. District Court, 528 F.3d 652 (9th Cir. 2008):

In determining whether a writ of prohibition should issue, we consider the following factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft-repeated error or manifests a persistent disregard for the federal rules; and (5) whether the district court's order raises new and important problems or issues of law of first impression. [Citation omitted.] Although all five factors need not be satisfied for the writ to issue, the absence of clear error as a matter of law is often dispositive.

The standards in the Sixth Circuit are the same. See John B. v. Goetz, 2008 U.S. App. LEXIS 13459 (6th Cir. June 28, 2008).

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