Ellis v. United States District Court for the Western District of Washington

ORDER

We hereby DENY Respondent’s Motion for Recall and Stay of Mandate because, due to the nature of mandamus proceedings, we have not issued a “mandate.” As we explain below, our grant of Ellis’s petition for a writ of mandamus operated as “a writ of mandate,” which took immediate effect.

A writ of mandate is “an order from an appellate court directing a lower court to take a specified action.” Black’s Law Dictionary 973 (7th ed.1999). Because a writ *1023 of mandate functions as an order, we do not issue along with it a “mandate” in the sense of a secondary decree relinquishing jurisdiction over the case to the district court. See Sgaraglino v. State Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.1990) (defining the “issuance of the mandate” as “returning] [the case] to the district court’s jurisdiction”); Nelson, Goelz & Watts, Federal Ninth Circuit Civil Appellate Practice (The Rutter Group 2003) § 13:323 (“The court does not issue a separate mandate after it grants or denies mandamus relief. The order is effective immediately.”).

Indeed, in the context of an extraordinary writ such as mandamus, there is no need for us to relinquish our jurisdiction to the district court because it was never deprived of jurisdiction over the underlying case. See, e.g., Woodson v. Surgitek, Inc., 57 F.3d 1406, 1416 (5th Cir.1995). The district court does not lose jurisdiction over a case merely because a litigant files an interlocutory petition for an extraordinary writ. See id. Here, the district court never lost jurisdiction over Ellis’s case. As a consequence, there is no “mandate,” i.e., return of jurisdiction, for us to stay or recall.

Respondent, however, is not without a remedy; it has always maintained the right to seek a stay of the proceedings in the district court, and it may do so now to pursue a petition for a writ of certiorari with the Supreme Court.

IT IS SO ORDERED.