Patrick Novak v. United States District Court ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2019*
Decided June 17, 2019
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19‐1953
IN RE: PATRICK C. NOVAK,
Petitioner.
ORDER
Novak is a U.S. citizen residing in Japan, where he alleges that he is a
housebound disabled veteran. Novak intends to file a suit, ostensibly under the Federal
Tort Claims Act, in the Southern District of Illinois to challenge a reduction in his
veterans’ disability benefits. The clerk’s office has rebuffed his attempts to do so
because Novak emailed the filings. The largest of these motions, one asking the district
court to recruit counsel to file a complaint on his behalf, resembles a complaint in that it
identifies defendants and includes allegations—ʺa vast conspiracy” to deny veterans’
benefits—though the relief he seeks is a recruited attorney.
Under the district court’s local rules, a pro se litigant who is “a party to a pending
civil action” may seek leave to file electronically using CM/ECF, but that permission
*After examining the record, we have concluded that oral argument is unnecessary.
See FED. R. APP. P. 34(a)(2).
No. 19‐1953 Page 2
extends only to that action; pro se litigants must otherwise “file all documents with the
Clerk of Court by U.S. Mail or personal delivery to the Clerk’s Office.” S.D. Ill. Elec.
Filing R. 1–2; see also S.D. Ill. L.R. 5.1(c). Thus, the local rules prevent a pro se litigant
from opening a case electronically. Rather, pro se litigants must file a complaint in paper
form and thereafter move for leave to file subsequent documents electronically. The
clerk’s office explained all of this to Novak over email. Novak argued that he could not
use the U.S. Mail from Japan, and in any event, use of the mail was unduly burdensome
for someone, like him, who is housebound. When the clerk’s office declined to upload
the documents, he filed a petition for a writ of mandamus in this court and a motion for
leave to amend that petition. He has also filed a motion to seal the appellate docket, for
leave to proceed pro se, for a court‐appointed attorney, and for leave to file in forma
pauperis. For the following reasons, we will grant the motion to amend, deny the
petition for a writ of mandamus, and deny Novak’s remaining motions.
We begin with the petition for a writ of mandamus. In that petition, Novak
argues that the district court did not have “any authority to reject motions for e‐mail
service,” an argument he frames as a constitutional challenge. Three conditions must be
satisfied before a writ of mandamus may issue. The party seeking the writ must (1)
“have no other adequate means to attain the relief he desires,” (2) show that his right to
issuance is “clear and indisputable,” and (3) satisfy the court that the writ is appropriate
under the circumstances. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380–81 (2004).
“Mandamus is a drastic remedy traditionally used to confine a lower court to the lawful
exercise of its jurisdiction or to compel it to exercise its authority when it has a duty to
do so.” United States v. Lapi, 458 F.3d 555, 560–61 (7th Cir. 2006).
Here, Novak asks us to direct the clerk’s office—not the district court—to fulfill a
duty (accept his electronically filed complaint). The All Writs Act, 28 U.S.C. § 1651,
whereby courts of appeal derive their power to issue writs of mandamus, “empowers a
federal court to issue writs of mandamus necessary to protect its prospective
jurisdiction.” Telecom. Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70, 76 (D.C.
Cir. 1984); see also id. at 77 (“The All Writs Act is not an independent grant of
jurisdiction to a court; it merely permits a court to issue writs in aid of jurisdiction
acquired to grant some other form of relief.”). Thus, appellate courts may issue writs of
mandamus directed to a district court or, if vested with original authority to review
final decisions by an administrative agency, may issue writs of mandamus to agencies.
See id at 76.
No. 19‐1953 Page 3
Novak has filed his original petition for mandamus before us, not the district
court. And if relief is available in the district court, then we must deny the petition for
mandamus. See Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants, 17 F.3d 130, 133 (5th
Cir. 1994). In Ingalls, the Fifth Circuit found that the district court has exclusive
jurisdiction to consider a writ of mandamus directed against an agency director. The
governing statute did not “extend to [the Fifth Circuit] original jurisdiction over the
actions of the Director in the exercise of her administrative authority.” Id. at 133.
“Hence, review is not otherwise available in the court of appeals and thus, even under
the reasoning of the TRAC court, there is no basis to defeat the mandamus jurisdiction
of the district court under 28 U.S.C. § 1361.” Id. (citing TRAC, 750 F.2d at 77–78).
28 U.S.C. § 1361 states that “[t]he district courts shall have original jurisdiction of
any action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.” The plain
language of § 1361 seems to vest district courts with original jurisdiction over
mandamus actions against clerk’s office employees. After all, they are employees of the
United States. But see Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th Cir. 1979) (“Section 1361
seems to grant jurisdiction; but, if read literally, the language of § 1361 would allow a
district court to issue mandamus directly against the [clerks of the Supreme Court].”).
Several circuits have, however, found that a clerk’s office is not an “agency,” and thus
district courts cannot issue writs of mandamus against it. See Trackwell v. U.S. Gov’t, 472
F.3d 1242, 1247 (10th Cir. 2007); Semper v. Gomez, 747 F.3d 229, 250 (3d Cir. 2014). In
finding that “[t]he context of the statute argues for, not against, exclusion of the
judiciary from its compass,” Trackwell emphasized that it would be “remarkable” for a
“district court to issue a writ of mandamus against an equal or higher court.” 472 F.3d
at 1246; see also Hubbard v. United States, 514 U.S. 695, 700 & n.3 (1995) (analyzing the
same statutory definition and finding that “‘agency does not refer to a court,” but
expressing “no opinion whether any other entity within the Judicial Branch might be an
‘agency.’”).
This interpretational question is thorny. We agree that, contextually, § 1361 does
not support district court mandamus jurisdiction over other courts (much less higher
courts). But the relationship between a court and its own clerk’s office is different. In
Borntrager v. Stevas, the Eighth Circuit affirmed the district court’s finding that it lacked
mandamus jurisdiction under § 1361 of a suit directed against the Supreme Court
clerk’s office. 772 F.2d 419, 420 (8th Cir. 1985). The Eighth Circuit explained that “the
plaintiff has a fully adequate alternative remedy, a motion directed to the Supreme
Court seeking review of the defendantʹs conduct.” Id. And although “no statute or rule
No. 19‐1953 Page 4
expressly authorizes the Justices to conduct such a review,” “the Supreme Courtʹs
power over its clerks is inherent in the nature of the relationship between the two.” Id.(quoting Griffin v. Thompson, 43 U.S. 244, 257 (1844) (“Can it be doubted that … it is the
right and the duty of the court [when apprised of misconduct by an officer] to correct
the irregularities of its officer, and to compel him to perform his duty? There is inherent
in every court a power to supervise the conduct of its officers, and the execution of its
judgments and process.”)).
We find the Eighth Circuit’s rationale persuasive. Regardless of whether § 1361
grants the district court original mandamus jurisdiction over this petition, the district
court possesses inherent supervisory power over its clerk’s office. Because an
alternative remedy exists, we must deny mandamus relief.1 Id. Novak may either file a
petition with the district court or submit his complaint via physical mail.2 We will deny
his remaining motions without prejudice for the reasons expressed below.
IT IS ORDERED that the motion to file an amended petition for writ of
mandamus is GRANTED to the extent that the panel considered the amended pro se
petition.
IT IS FURTHER ORDERED that the motion to proceed pro se, and motion to
proceed in forma pauperis are DENIED.
IT IS FURTHER ORDERED that the motion for recruitment of counsel is
DENIED. See Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc); Farmer v. Haas, 990
F.2d 319, 321 (7th Cir. 1993). It is not necessary to recruit counsel to assist in resolving
the issues raised in this petition.
IT IS FURTHER ORDERED that the petition for writ of mandamus is DENIED.
Alternative remedies exist in the district court. Nor can this court construe the petition
as a notice of appeal, because the district court has not issued an appealable order.
1 Our analysis may change if Novak seeks relief from the district court and is rebuffed (by the clerk’s
office’s refusal to docket any such request, for instance). See Borntrager, 772 F.2d at 420 n.3.
2 For the reasons stated above, we do not reach the merits. We do note, however, a facial conflict between
the local electronic filing rules and the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 5(d)(4) (“The
clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a
local rule or practice.”); United States v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008); Farley v. Koepp, 788 F.3d
681, 685 (7th Cir. 2015).
No. 19‐1953 Page 5
Petitioner may, at any time, file a complaint with the district court clerk through the
proper means.
IT IS FURTHER ORDERED that the motion to seal is DENIED without
prejudice. This court rarely permits a litigant to file an entire document under seal.
Instead, petitioner must file a redacted copy of his petition for the public record. In re
Krynicki, 983 F.2d74 (7th Cir. 1992) (Easterbrook, J., in chambers). Each redaction must
be supported by a specific legal basis for secrecy. See Baxter Intʹl, Inc. v. Abbott Labs., 297
F.3d 544, 548 (7th Cir. 2002).
IT IS FURTHER ORDERED that the Seventh Circuit Clerk’s Office is
DIRECTED to transmit copies of this order to the Clerk of Court for the Southern
District of Illinois and to Chief Judge Rosenstengel. Because no district court docket
exists, unusual procedures are necessary.