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Sanctions Other Than Contempt

Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the most controversial.213 Courts, as an independent and coequal branch of government, once they are created and their jurisdiction established, have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.214 Of course, these inherent powers may be limited by statutes and by rules,215 but, just as was noted in the discussion of the same issue with respect to contempt, the Court asserts both the power to act in areas not covered by statutes and rules but also the power to act unless Congress has not only provided regulation of the exercise of the power but also unmistakably enunciated its intention to limit the inherent powers.216

Thus, in the cited Chambers case, the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad–faith litigation conduct in a diversity case. Some of the conduct was covered by a federal statute and several sanction provisions of the Federal Rules of Civil Procedure, but some was not, and the Court held that, absent a showing that Congress had intended to limit the courts, they could utilize inherent powers to sanction for the entire course of conduct, including shifting attorney fees, ordi[p.636]narily against the American rule.217 In another case, a party failed to comply with discovery orders and a court order concerning a schedule for filing briefs. The Supreme Court held that the attorney’s fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both the Federal Rule and the trial court’s inherent powers, subject to a finding of bad faith.218 But bad faith is not always required for the exercise of some inherent powers. Thus, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.219

Power to Issue Writs: The Act of 1789

From the beginning of government under the Constitution of 1789, Congress has assumed, under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs.220 The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus “in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”221 Section 14 provided that all courts of the United States should “have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the principles and usages of law.”222 Although the Act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.223


Whether Article III itself is an independent source of the power of federal courts to fashion equitable remedies for constitutional violations or whether such remedies must fit within congressionally authorized writs or procedures is often left unexplored. In Missouri v. Jenkins,224 for example, the Court, rejecting a claim that a federal court exceeded judicial power under Article III by ordering local authorities to increase taxes to pay for desegregation remedies, declared that “a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court.225 In the same case, the Court refused to rule on “the difficult constitutional issues” presented by the State’s claim that the district court had exceeded its constitutional powers in a prior order directly raising taxes, instead ruling that this order had violated principles of comity.226

Common Law Powers of District of Columbia Courts.—That portion of Sec. 13 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,227 as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,228 a litigant was successful in Kendall v. United States ex rel. Stokes,229 in finding a court that would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia, which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State that became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the[p.638]limits imposed by the common law and the separation of powers.230


213 “Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. . . . To fine for contempt—imprison for contumacy—inforce the observance of order, c. are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts no doubt possess powers not immediately derived from statute. . . .” United States v. Hudson and Goodwin, 7 Cr. (11 U.S.) 32, 34 (1812).
214 See Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 227 (1821); Ex parte Robinson, 19 Wall. (86 U.S.) 505, 510 (1874); Link v. Wabash R. Co., 370 U.S. 626, 630–631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991); and id., 58 (Justice Scalia dissenting), 60, 62–67 (Justice Kennedy dissenting).
215 Id., 47.
216 Id., 46–51. But see id., 62–67 (Justice Kennedy dissenting).
217 Id., 49–51. On the implications of the fact that this was a diversity case, see id., 51–55.
218 Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
219 Link v. Wabash R. Co., 370 U.S. 626 (1962).
220 Frankfurter & Landis, Power of Congress Over Procedure in Criminal Contempts in “Inferior” Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1016–1023 (1924).
221 1 Stat. 73 , Sec. 81.
222 Id., §§ 81–82. See also United States v. Morgan, 346 U.S. 502 (1954), holding that the All Writs section of the Judicial Code, 28 U.S.C. Sec. 1651 (a), gives federal courts the power to employ the ancient writ of coram nobis.
223 This proposition was recently reasserted in Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34 (1985) (holding that a federal district court lacked authority to order U.S. marshals to transport state prisoners, such authority not being granted by the relevant statutes).
224 495 U.S. 33 (1990).
225 Id., 55 (citing Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233–234 (1964) (an order that local officials “exercise the power that is theirs” to levy taxes in order to open and operate a desegregated school system “is within the court’s power if required to assure . . . petitioners that their constitutional rights will no longer be denied them”)).
226 Id., 50–52.
227 1 Cr. (5 U.S.) 137 (1803). Cf. Wiscart v. D’Auchy, 3 Dall. (3 U.S.) 321 (1796).
228 McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); McClung v. Silliman, 6 Wheat. (19 U.S.) 598 (1821).
229 12 Pet. (37 U.S.) 524 (1838).
230 In 1962, Congress conferred upon all federal district courts the same power to issue writs of mandamus as was hitherto exercisable by federal courts in the District of Columbia. 76 Stat. 744, 28 U.S..C Sec. 1361.
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