In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1703

DENNIS EARL BARNES,

Plaintiff-Appellant,

v.

WILLIAM J. BLACK and METROPOLITAN PROPERTY AND

CASUALTY INSURANCE COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 04-cv-1317—Joe Billy McDade, Judge.

SUBMITTED AUGUST 21, 2008—DECIDED SEPTEMBER 12, 2008

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The plaintiff, injured in an automobile accident, filed a diversity suit in a federal district

court in Illinois against the driver of the other car and

the driver’s insurer, charging negligence. After the

accident but before the suit (which remains pending in

the district court) was filed, the plaintiff had been convicted in a Wisconsin state court of burglary and sentenced
2 No. 08-1703

to prison, where he remains, making it difficult for him

to litigate his federal suit, especially because he has no

lawyer. So he asked the clerk of the district court to issue

a writ of habeas corpus ad testificandum, ordering the

warden of the Wisconsin state prison in which he is

incarcerated to deliver him to the district court in Illinois

for the trial of his diversity suit. Section 2241(c)(5) of the

Judicial Code authorizes the district court to issue a writ

of habeas corpus commanding that the prisoner be delivered to the court “to testify or for trial.” The section

codifies the common law authority of federal courts to

issue writs of habeas corpus ad testificandum and ad

prosequendum, United States v. Larkin, 978 F.2d 964, 968 (7th

Cir. 1992); Jones v. Lilly, 37 F.3d 964, 967 (3d Cir. 1994), the

latter being used to obtain the prisoner in order to prosecute him. These writs can be used to get a prisoner into

the district court from anywhere in the country, e.g., Carbo

v. United States, 364 U.S. 611, 619 (1961); Stone v. Morris,

546 F.2d 730, 737 (7th Cir. 1976); United States v. Moussaoui,

382 F.3d 453, 466 (4th Cir. 2004); Roe v. Operation Rescue,

920 F.2d 213, 218 n. 4 (3d Cir. 1990), and from a state

facility as well as a federal one. United States v. Garrard,

83 F.3d 889, 893 (7th Cir. 1996); United States v. CruzJiminez, 977 F.2d 95, 99 (3d Cir. 1992); Jerry v. Francisco,

632 F.2d 252, 255 (3d Cir. 1980) (per curiam).

The district judge denied the writ on the ground that he

lacked power to issue it. He reasoned that the authority

to issue a writ of habeas corpus ad testificandum is limited

to cases in which a prisoner is seeking relief against being

confined or against the conditions in which he is being

confined—that is, is either seeking federal habeas corpus
No. 08-1703 3

as a postconviction remedy or complaining under 42

U.S.C. § 1983 that the conditions of his confinement

violate his federal rights. Section 2241(c)(5) is part of the

general federal habeas corpus statute, which is intended to

provide a remedy against illegal confinement, and it is

tempting to suppose as the district judge did that subsection (c)(5) applies only to a suit complaining about

the prisoner’s confinement, for example because a

prisoner cannot litigate his habeas corpus claim without

obtaining the testimony of some other prisoner. Many

cases in which writs of habeas corpus ad testificandum are

sought under the authority of section 2241(c)(5) are

indeed prisoner suits. See, e.g., Pennsylvania Bureau of

Correction v. U.S. Marshals Service, 474 U.S. 34, 35 (1985);

Stone v. Morris, supra, 546 F.2d at 737; Jones v. Lilly, supra,

37 F.3d at 967; Spears v. Chandler, 672 F.2d 834 (11th Cir.

1982) (per curiam). Many others, however, are criminal

cases, such as Demarest v. Manspeaker, 498 U.S. 184, 186

(1991); United States v. Moussaoui, supra, 382 F.3d at 466, and

United States v. Cruz-Jiminez, supra, 977 F.2d at 104-05.

Prisoners rarely have occasion to litigate a civil case

unrelated to imprisonment, though we have found one

appellate case that, like this one, was a run-of-the-mill civil

suit between private parties, and the power to issue the

writ was not questioned, ITEL Capital Corp. v. Dennis

Mining Supply & Equipment, Inc., 651 F.2d 405, 406-07 (5th

Cir. 1981), and one such district court case. Hasso v.

Retail Credit Co., 326 F. Supp. 1179, 1181 (D. Del. 1971). (In

neither case, however, was the writ actually issued.) The

federal courts have an interest in being able to get hold of

prisoners to testify in cases before those courts that tran-
4 No. 08-1703

scends the categories of prisoner and criminal cases. A

prisoner might be a crucial witness in a civil case in

federal court that had nothing to do with prisons or

criminal law.

The district judge further ruled that if he was authorized to command the plaintiff’s presence, nevertheless

he would not do so but would instead allow the plaintiff

to appear in the district court electronically. Thornton v.

Snyder, 428 F.3d 690, 697-99 (7th Cir. 2005); Edwards v.

Logan, 38 F. Supp. 2d 463, 467-68 (W.D. Va. 1999); see

generally El-Hadad v. United Arab Emirates, 496 F.3d 658,

668-69 (D.C. Cir. 2007); Air Turbine Technology, Inc. v. Atlas

Copco AB, 410 F.3d 701, 714 (Fed. Cir. 2005); Beltran-Tirado

v. INS, 213 F.3d 1179, 1185 (9th Cir. 2000); United States v.

Baker, 45 F.3d 837 (4th Cir. 1995). The state had offered to

make the plaintiff available by video conferencing for

the district court proceeding. Rule 43(a) of the civil

rules provides that “for good cause in compelling circumstances and with appropriate safeguards, the court

may permit testimony in open court by contemporaneous

transmission from a different location.” “Writting” prisoners to a distant court entails cost and even danger, see, e.g.,

United States v. Silverstein, 732 F.2d 1338, 1342 (7th Cir.

1984); Jones v. Lilly, supra, 37 F.3d at 966, and the

district judge deemed these compelling circumstances

for allowing (with appropriate safeguards) video conferencing as an alternative.

The plaintiff appeals from the denial of the writ. His

appeal also challenges the district judge’s refusal to

attempt to obtain a lawyer for him under 28 U.S.C.
No. 08-1703 5

§ 1915(e)(1), but that ruling is nonfinal, since the case

continues in the district court, and therefore nonappealable. Randle v. Victor Welding Supply Co., 664 F.2d 1064,

1066-67 (7th Cir. 1981) (per curiam); see also Marler v.

Adonis Health Products, 997 F.2d 1141 (5th Cir. 1993); Holt v.

Ford, 862 F.2d 850 (11th Cir. 1989) (en banc); Henry v. City

of Detroit, 763 F.2d 757, 761-64 (6th Cir. 1985) (en banc). So

that part of his appeal we dismiss for lack of appellate

jurisdiction. Well, but the district judge’s denial of the

writ of habeas corpus ad testificandum was also nonfinal,

since it did not terminate the litigation; so have we jurisdiction of the appeal from that denial?

Our court, as well as the other courts to address the

issue, has said that orders granting the writ are immediately appealable under the “collateral order” doctrine. E.g.,

Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 561 (7th

Cir. 1986); Jones v. Lilly, supra, 37 F.3d at 965-66; Ballard v.

Spradley, 557 F.2d 476, 479 (5th Cir. 1977). As explained

in the Jones case, “A review of the propriety of the writ

after final judgment cannot erase the burden, risk, and

expense placed upon the state of New Jersey (the State) for

transporting and maintaining secure custody over the

paralegal prisoner. Although courts have consistently

rejected claims that the time and expense of litigating a

suit that may later be reversed are sufficient to warrant

an immediate appeal, the case sub judice is factually

distinguishable. In addition to the costs associated with

transporting Hill to Jones’ civil trial, the State will have

to bear the real risk, one that we have unfortunately

experienced in this circuit on more than one occasion
6 No. 08-1703

with other prisoners, that Hill will escape from its custody

during his temporary respite from prison . . . . Moreover,

the State’s entitlement, in the absence of exigent circumstances, to run its prisons efficiently and effectively

without outside federal interference will have been compromised, absent an immediate appeal.”

But we emphasize that these are cases in which the

appeal was from the grant of the writ (except Lynk, but our

statement in that case that “in the federal system, the

grant or denial of writs of habeas corpus ad testificandum

is appealable,” 789 F.2d at 561 (emphasis added), was

dictum because the case concerned the denial of the writ

by an Indiana state court). Denial does not impose the

costs and risks that justify, as the court in Jones v. Lilly

explained, allowing an immediate appeal. This point

argues for an asymmetric right of appeal under the

collateral-order doctrine in this class of cases. A precedent

for such asymmetry is the immediate appealability of

orders that deny a motion to require the posting of a bond

in a civil case but not of orders granting such a motion. 15A

Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3914.2 (2008 ed.).

Similarly, a defendant may appeal the denial of official

immunity immediately, Behrens v. Pelletier, 516 U.S. 299,

307 (1996), but not a grant. Theis v. Smith, 827 F.2d 260,

261 (7th Cir. 1987) (per curiam); Baird v. Palmer, 114 F.3d

39, 43 (4th Cir. 1997). Both examples are explicable in terms

of the purpose of the collateral-order doctrine, which

permits an appeal from a nonfinal order only when

deferring appeal could inflict irreparable harm on a party.
No. 08-1703 7

An order granting a writ of habeas corpus ad testificandum

is a parallel example, where an immediate appeal is

allowed because the order appealed from is contended to

have created a risk of irreparable harm, which a denial

of the writ would not do. Any harm to the plaintiff from

the denial can be remedied by appeal should he lose

his suit. We are not surprised, therefore, to have found

no case in which an immediate appeal has been allowed

from the denial of the writ.

But 28 U.S.C. § 2253(a) makes the final order in a federal

habeas corpus proceeding appealable. The order denying

the writ in this diversity case, though interlocutory from

the standpoint of the case, is the final order in the plaintiff’s habeas corpus proceeding and thus may seem

appealable because made so by the statute, regardless

of the inapplicability of the collateral-order doctrine. Yet

no case that has allowed an appeal from the grant of a

writ of habeas corpus ad testificandum has referred to the

statute.

As a matter of semantics, section 2253(a) could be read

to apply to every subsection of section 2241, including

(c)(5), though it is odd to think of the denial (or for that

matter the grant) of such a writ as a “final order” in a

habeas corpus proceeding, since the petitioner is not

seeking his freedom by asking for such a writ and the real

proceeding is another case altogether (in this case, the

plaintiff’s diversity suit) which the order does not end.

But the decisive objection to deeming the grant or denial

of the writ a final order within the scope of section 2253(a)

is that any order appealable under that statute is
8 No. 08-1703

also subject to section 2253(c)(1)(A) if the petitioner is

detained as a consequence of a state judgment, as our

plaintiff is. So he would need a certificate of appealability

to be allowed to proceed with this appeal. He does not

have such a certificate and could not get one because

(given the videoconference option) he has not made “a

substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

Carbo v. United States, supra, is relevant here. It holds that

the geographical limitation of writs of habeas corpus in

section 2241(a) does not apply to writs issued under (c)(5),

even though there is nothing in section 2241(a), just as

there is nothing in section 2253(a), to suggest an exception

for (c)(5) writs (i.e., writs of habeas corpus ad testificandum

and ad prosequendum).

There is a further distinction between this case and the

ones that have allowed an immediate appeal from the

grant of a writ of habeas corpus ad testificandum. Those

were all third-party cases. A writ of habeas corpus

issued to a warden is like a subpoena issued to a stranger

to the case. The stranger is not a party and will not be

allowed to appeal from the final decision, which does not

aggrieve him. So he is allowed to appeal immediately if

he can demonstrate irreparable harm, even though he is

not faced with the prospect that a judgment will be entered

against him in the case that the party wants to drag him

into. When a court declines to issue or enforce a subpoena, the aggrieved litigant can get appellate review at

the end of the case; from his perspective the order is no

more final than any other step in discovery. And so it is
No. 08-1703 9

here. Our plaintiff wanted the judge to do something that

would make it easier for him to litigate. Appellate review

of other interlocutory steps that a judge might take, such as

recruitment of counsel, waiving certain fees, or ordering

the defendants to answer interrogatories, but refuses to

take, must await the end of the case in the district court.

The denial of a writ of habeas corpus ad testificandum is one

of those steps. The appeal from the denial must be dismissed for want of appellate jurisdiction.

The State of Wisconsin has filed an amicus curiae brief

arguing another jurisdictional ground for why this

case must terminate: that the writ of habeas corpus ad

testificandum to compel the delivery to the district court of

a state prisoner violates the Eleventh Amendment. But the

state is not a party to or even remotely interested in the

plaintiff’s suit, and is not charged with a violation of

federal law. The writ sought in this case would if granted

be like an order commanding a state official who is not a

party to a case between private persons to produce documents in the state’s possession during the discovery

phase of the case; such orders, because they do not compromise state sovereignty to a significant degree, cf.

Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440

(2004); California v. Deep Sea Research, Inc., 523 U.S. 491

(1998); Green v. Mansour, 474 U.S. 64, 71-73 (1985); Florida

Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), do

not violate the Eleventh Amendment. See In re Missouri

Dep’t of Natural Resources, 105 F.3d 434, 436 (8th Cir. 1997);

Allen v. Woodford, 544 F. Supp. 2d 1074, 1078-79 (E.D. Cal.

2008).
10 No. 08-1703

Nevertheless, for the reasons stated earlier the appeal

must be, and it hereby is,

DISMISSED.

9-12-08