Order, In re Stephen P. Wallace, No. 21-3646 (6th Cir.), State of Ohio v. Yellen (S.D. Ohio), Doc. 61

Summary

Document 61 in No. 1:21-cv-00181, filed 10/06/21, is a Sixth Circuit clerk's letter and Order in No. 21-3646, In re: Stephen P. Wallace, Petitioner. Wallace, a self-described "private attorney general/relator," petitioned for a writ of mandamus asking the court to compel the district court to grant his motion to intervene in a State of Ohio suit challenging a provision of the American Rescue Act of 2021, and also moved for en banc relief including to impeach or disqualify Chief Judge Jeffrey S. Sutton. The Order says mandamus is improper because Wallace could have appealed the denial of intervention but did not timely do so. The petition for a writ of mandamus is DENIED, and the emergency motions are DENIED AS MOOT.

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  Case: 1:21-cv-00181-DRC Doc #: 61 Filed: 10/06/21 Page: 1 of 4 PAGEID #: 1101                   (1 of 4)




                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                100 EAST FIFTH STREET, ROOM 540
   Deborah S. Hunt             POTTER STEWART U.S. COURTHOUSE               Tel. (513) 564-7000
       Clerk                       CINCINNATI, OHIO 45202-3988             www.ca6.uscourts.gov




                                                 Filed: October 06, 2021




Mr. Stephen P. Wallace
640 Clematis Street
Number 92
West Palm Beach, FL 33402

                     Re: Case No. 21-3646, In re: Stephen Wallace
                         Originating Case No. : 1:21-cv-00181

Dear Mr. Wallace,

  The Court issued the enclosed Order today in this case.

                                                 Sincerely yours,

                                                 s/Julie for
                                                 Robin Baker, Case Manager
                                                 Direct Dial No. 513-564-7014

cc: Mr. Richard W. Nagel

Enclosure

No mandate to issue
  Case: 1:21-cv-00181-DRC Doc #: 61 Filed: 10/06/21 Page: 2 of 4 PAGEID #: 1102                        (2 of 4)



                                           No. 21-3646

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Oct 06, 2021
In re: STEPHEN P. WALLACE,                                )            DEBORAH S. HUNT, Clerk
                                                          )
       Petitioner.                                        )                ORDER
                                                          )


       Before: McKEAGUE, KETHLEDGE, and READLER, Circuit Judges.


       Stephen P. Wallace, a self-described “private attorney general/relator” proceeding on

behalf of himself and all United States taxpayers, petitions for a writ of mandamus, asking that we

compel the district court to grant his motion to intervene in a State of Ohio suit challenging the

constitutionality of a provision of the American Rescue Act of 2021; to temporarily stay

Congress’s diversion of funds from the United States Treasury and further wasteful spending; and

to compel a private entity to conduct a forensic audit. He also twice moves for relief asking the

court, sitting en banc, to: (1) assume original jurisdiction and grant the requested relief; and (2)

impeach and/or disqualify Chief Judge Jeffrey S. Sutton, award Wallace damages, and grant

Wallace the relief sought in his mandamus petition.

       “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations

where the petitioner can show a clear and indisputable right to the relief sought.” In re Am.

President Lines, Ltd., 929 F.2d 226, 227 (6th Cir. 1991) (order). Accordingly, “[t]he writ of

mandamus is not to be used when the most that could be claimed is that the district courts have

erred in ruling on matters within their jurisdiction.” Schlagenhauf v. Holder, 379 U.S. 104, 112

(1964) (internal quotation marks and citation omitted).
  Case: 1:21-cv-00181-DRC Doc #: 61 Filed: 10/06/21 Page: 3 of 4 PAGEID #: 1103                           (3 of 4)

                                            No. 21-3646
                                                -2-

          Federal Rule of Civil Procedure 24 places motions to intervene squarely within the

jurisdiction of the district court, providing for both mandatory intervention of right and the

discretion to grant permissive intervention. Fed. R. Civ. P. 24(a)–(b). The district court fully

explored the possible interests Wallace might have in the State of Ohio’s lawsuit under both

theories, and liberally construed his arguments in that regard. See Estelle v. Gamble, 429 U.S. 97,

106 (1976); Fed. R. Civ. P. 8(e). Moreover, mandamus relief is not available when petitioners

have “adequate alternative means to obtain the relief they seek.” In re Am. Med. Sys., Inc., 75 F.3d

1069, 1078 (6th Cir. 1996) (quoting Mallard v. U.S. Dist. Court, 490 U.S. 296, 309 (1989)). It is

also “not intended to substitute for appeal after a final judgment.” In re Life Invs. Ins. Co. of Am.,

589 F.3d 319, 323 (6th Cir. 2009). Wallace could have appealed the district court’s denial of

intervention. See United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005). He failed to timely

do so, and the district court has since entered a final judgment permanently enjoining the provision

of the American Rescue Act challenged by Ohio. Defendants have appealed. Wallace may also

move pursuant to Federal Rule of Civil Procedure 24 to intervene in the appeal, see Ne. Ohio Coal.

for Homeless v. Blackwell, 467 F.3d 999, 1006–07 (6th Cir. 2006), or move for leave to file an

amicus brief in accordance with Federal Rule of Appellate Procedure 29. Wallace therefore has

or had adequate alternative remedies and mandamus is improper.

          To the extent that Wallace requests other “emergency relief,” his requests are moot and

have no basis in the law. The original jurisdiction over this case is vested in the district court, and

we are without authority to assume it as Wallace requests, en banc or otherwise. See 28 U.S.C.

§ 1331. Impeaching an Article III judge is likewise beyond the scope of our authority, having been

assigned to Congress. See U.S. Const. art. I, § 2; Nixon v. United States, 506 U.S. 224, 237–38

(1993).
  Case: 1:21-cv-00181-DRC Doc #: 61 Filed: 10/06/21 Page: 4 of 4 PAGEID #: 1104           (4 of 4)

                                        No. 21-3646
                                            -3-

       The petition for a writ of mandamus is DENIED. The emergency motions to assume

original jurisdiction, to impeach the Chief Judge, and grant relief are DENIED AS MOOT.

                                          ENTERED BY ORDER OF THE COURT




                                          Deborah S. Hunt, Clerk


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