Petitions for Writs of Mandamus and Prohibition
Before Aldisert, Rosenn and Weis, Circuit Judges.
These original mandamus proceedings arise out of an on-going civil antitrust action, Weiss v. York Hospital, 524 F. Supp. 433 (M.D.Pa.), and require us to decide at No. 81-2192 whether to order the district court to decertify the plaintiff class, and at No. 81-2171 whether to order the district court to set aside a discovery order. We will deny the petitions at this time but retain jurisdiction over the petition at No. 81-2171 pending disposition of the trial on liability.
Dr. Malcolm Weiss, an osteopathic physician,*fn1 brought the underlying district court action after his application for staff privileges at York Hospital, York County, Pennsylvania, was rejected. He alleges that his application was denied because the hospital and certain allopathic physicians*fn2 on its staff conspired to deny osteopaths staff privileges at York, and that this conspiracy restrained trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. Dr. Weiss also alleges that the defendants violated section 2 of the Sherman Act, 15 U.S.C. § 2, by monopolizing, attempting to monopolize, and conspiring to monopolize health care services and facilities in the York Medical Service Area (MSA).
Since May, 1972, four osteopaths have applied for staff privileges at York, the largest and best equipped hospital in the York MSA. Two of these applications were accepted and one is pending; Dr. Weiss is the only osteopath whose application has been rejected. See Weiss v. York Hospital, 524 F. Supp. 433, 436 (M.D.Pa., 1981), reprinted in app. at 540, 546-47. Dr. Weiss' unique experience forms the backdrop of the petition at No. 81-2192 requesting mandamus relief from the district court's certification of a plaintiff class consisting of "all osteopathic physicians practicing medicine within the relevant market area...." App. at 560. The petitioners, defendants in the district court, contend that the class certification order offends the teachings of Lawlor v. National Screen Service Corp., 270 F.2d 146 (3d Cir. 1959), cert. denied, 362 U.S. 922, 80 S. Ct. 676, 4 L. Ed. 2d 742 (1960), and Mazus v. Dept. of Transportation, 629 F.2d 870 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 101 S. Ct. 945, 67 L. Ed. 2d 113 (1981). Petitioners' argument is essentially that the class must be limited to those osteopathic physicians who applied for and were denied staff privileges at the hospital, and that if it were so defined, Dr. Weiss would be the only member of the class.
The district court's discovery order of July 21, 1981, is challenged in the petition at No. 81-2171. The court ordered 97 non-party allopathic physicians and 10 individual defendant physicians on staff at York to submit sworn statements of their gross incomes derived from the practice of medicine during the past five years.*fn3 The 97 non-party witnesses, together with the defendant physicians, contend that compelled production of this information for the sole purpose of furnishing data for plaintiffs' opinion witnesses unlawfully invades their right of privacy.*fn4
Congress has granted federal courts the power to issue writs of mandamus by the All Writs Act, 28 U.S.C. § 1651; but because the remedy is so drastic, the Supreme Court has instructed federal appellate courts to use the power grudgingly and only in extraordinary situations. Kerr v. United States District Court, 426 U.S. 394, 402, 96 S. Ct. 2119, 2123-24, 48 L. Ed. 2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed. 2d 305 (1967). Traditionally, federal courts have used the writ only to confine inferior courts to their lawful jurisdiction or to compel them to exercise authority when they have a duty to do so. Will v. United States, 389 U.S. at 95, 88 S. Ct. at 273. The Supreme Court has not employed a narrow and technical definition of "jurisdiction," but it has instructed that "only exceptional circumstances amounting to a judicial "usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. at 95, 88 S. Ct. at 273 (quoting DeBeers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S. Ct. 1130, 1132-33, 89 L. Ed. 1566 (1945)).
The Court has set forth two important reasons for its direction that mandamus should be used sparingly. First, mandamus actions " "have the unfortunate consequence of making the (district court) judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants appearing before him' in the underlying case." Kerr, 426 U.S. at 402, 96 S. Ct. at 2124 (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384-85, 74 S. Ct. 145, 148-49, 98 L. Ed. 106 (1953)). Second, and more important, mandamus is reserved for extreme cases out of respect for the important policy of disfavoring piecemeal appellate review:
It has been Congress' determination since the Judiciary Act of 1789 that as a general rule "appellate review should be postponed ... until after final judgment has been rendered by the trial court." Will v. United States, (389 U.S. at 96, 88 S. Ct. at 274); Parr v. United States, 351 U.S. 513, 520-521 (76 S. Ct. 912, 917, 100 L. Ed. 1377) (1956). A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.
Kerr, 426 U.S. at 403, 96 S. Ct. at 2124 (footnote omitted).
In furtherance of its policy against casual grants of mandamus relief, the Supreme Court has set forth two conditions for issuance of the writ: (1) that the petitioner have no other adequate means to attain the desired relief, and (2) that he show a clear and indisputable right to the relief sought. Kerr, 426 U.S. at 403, 96 S. Ct. at 2124; Will v. United States, 389 U.S. at 95, 88 S. Ct. at 273; Bankers Life & Cas. Co. v. Holland, 346 U.S. at 384, 74 S. Ct. at 148-49; Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943); United States v. Duell, 172 U.S. 576, 582, 19 S. Ct. 286, 287-88, 43 L. Ed. 559 (1899). Once these conditions are satisfied, the Court has stated that the matter is largely one within the discretion of the issuing court. Kerr, 426 U.S. at 403, 96 S. Ct. at 2124; Schlagenhauf v. Holder, 379 U.S. 104, 112 n.8, 85 S. Ct. 234, 239 n.8, 13 L. Ed. 2d 152 (1964). The foregoing precepts guide our examination of the petitions before us.
The petitioners at No. 81-2192 recognize the above constraints, but argue that this is an extraordinary situation justifying review of the class action determination by mandamus. Their position finds jurisprudential nourishment in a statement in Katz v. Carte Blanche Corp., 496 F.2d 747, 752 (3d Cir.), ...