The Federal Appellate Courts and the All Writs Act
![handle is hein.journals/smulr23 and id is 880 raw text is: THE FEDERAL APPELLATE COURTS AND THE ALL WRITS ACT
by
Griffin B. Bell*
The peremptory common-law writs are among the most
potent weapons in the judicial arsenal.'
T HE ADMINISTRATION of the All Writs Act' by the appellate
courts is a subject of increasing importance. The obverse to sound
decisional doctrines for use in granting or denying relief under the Act
may be a proliferation of split appeals with ensuing trial delays. This
would be contrary to the notion that appellate review should be post-
poned, except in certain narrowly defined circumstances, until after final
judgment has been rendered by the trial court.' In any event, the deploy-
ment of the power vested in the courts under the Act is an integral and
developing part of the appellate process.
Some commentators have been critical of the erosion of trial court
power through the processes of the appellate courts. This erosion is per-
haps nowhere more evident than in the evolution of the concept of super-
visory powers of federal appellate courts over the trial courts. These su-
pervisory powers, in large measure, flow from the expanding utilization
of the All Writs Act and, in the main, are manifested in piecemeal appeals
under the guise of mandamus.! The issue is no longer one of power, but
* United States Circuit Judge for the Fifth Circuit.
'Mr. Chief Justice Warren in Will v. United States, 389 U.S. 90, 107 (1967).
(a) 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.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court
which has jurisdiction.
28 U.S.C. § 16SI (1964).
3 389 U.S. at 96.
4 L. GREEN, JUDGE AND JURY 380 (1930); Green, Jury Trial and Mr. Justice Black, 65 YALE
L.J. 482 (1956); Wright, The Doubtful Omniscience of Appellate Courts, 41 MINN. L. REv. 7Jl
(1957).
' The other important use of the All Writs Act is in the granting of injunctions pending appeal.
Since sound rules have been developed for granting such relief, no problems are apparent in the
administration of this power by the appellate courts. The rule used in the Fifth Circuit was an-
nounced in Greene v. Fair, 314 F.2d 200 (5th Cir. 1963). Unless an appellant can demonstrate
to the court on such an emergency motion as this [for injunction pending appeal] that there is great
likelihood, approaching near certainty, that he will prevail when his case finally comes to be heard
on the merits, he does not meet the standard which all courts recognize must be reached to warrant
the entering of an emergency order of this kind. Id. at 202. See also United States v. Lynd, 301
F.2d 818 (5th Cir. 1962). A similar rule appears to have been enforced by the Sixth Circuit in
Dunn v. Retail Clerks Int'l Ass'n, 299 F.2d 873 (6th Cir. 1962). That court stated that it would
not enjoin the union from picketing pending appeal where there was doubt whether the employer
would ultimately prevail.
The attitude in several other circuits is that injunctions are to be issued pending appeal only in
order to preserve jurisdiction. See Reiter v. Universal Marion Corp., 273 F.2d 820 (D.C. Cir. 1960);
Ring v. Spina, 148 F.2d 647 (2d Cir. 1945); cf. UAW v. J.I. Case Co., 281 F.2d 773 (7th Cir.
1960).
The power to stay the enforcement of a judgment pending the outcome of an appeal also had
its origin in the All Writs Act. See Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 10 n.4 (1942).
See also FED. R. A'p. P. 8 (a) on injunctions and stays. The District of Columbia Circuit has listed
four factors to be considered in determining whether to issue a stay: first, whether the party seeking
the stay made a strong showing that it was likely to prevail on the merits of its appeal; second,
whether irreparable injury will result if the stay is not granted; third, whether issuance of a stay](ViewImageLocal?handle=hein.journals/smulr23&div=72&collection=&method=preview&ext=.png&size=3)
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The Federal Appellate Courts and the All Writs Act
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