United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2006 Decided December 15, 2006

No. 05-5322

ROY BANKS,

APPELLEE

v.

OFFICE OF THE SENATE SERGEANT-AT-ARMS AND

DOORKEEPER OF THE UNITED STATES SENATE,

APPELLANT

Consolidated with

05-5323, 05-5324, 05-5335

Appeals from the United States District Court

for the District of Columbia

(No. 03cv00056)

(No. 03cv00686)

(No. 03cv02080)

On Petition for Writ of Mandamus

Dawn R. Bennett-Ingold, Senate Assistant Counsel for

Employment, Office of Senate Chief Counsel for
2

Employment, argued the cause for appellant. With her on the

briefs were Jean M. Manning, Senate Chief Counsel for

Employment, and Matthew D. Keiser, Senate Senior Counsel

for Employment.

William P. Farley argued the cause for appellee. With

him on the brief was John F. Karl, Jr.

Before: HENDERSON, RANDOLPH and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: This interlocutory appeal of a

discovery sanction arises out of a suit brought by a former

employee of the Office of the Senate Sergeant-at-Arms and

Doorkeeper of the United States Senate (“SAA”) alleging

employment discrimination in violation of Title VII. During

discovery, the SAA repeatedly failed to timely produce a

privilege log in response to numerous appropriate requests

from the plaintiff and without court permission. A magistrate

judge ordered the SAA to pay plaintiff’s attorney’s fees

incurred in his efforts to obtain the privilege log. The district

court affirmed the sanction, and the SAA appeals asserting

sovereign immunity from discovery sanctions. In the

alternative, the SAA asks us to issue a writ of mandamus

reversing the award. We dismiss the appeal because we lack

jurisdiction under the collateral order doctrine to review a

discovery sanction until the district court enters a final

judgment. We deny the petition because the circumstances of

this appeal are not extraordinary—alternative adequate relief

is available to the SAA by way of appeal from a final

judgment.
3

I.

This case came before the district court under § 1408

of the Congressional Accountability Act of 1995, as amended,

2 U.S.C. §§ 1301-1438 (“CAA”). See 2 U.S.C. § 1408(a)

(2000). The CAA applies select provisions of eleven federal

employment laws to congressional offices, see id. § 1302(a),

including the SAA. The plaintiff, Roy Banks, a former

employee of the SAA covered by the CAA, see id.

§ 1301(3)(b) and (4), alleged employment discrimination that

violated Title VII of the Civil Rights Act of 1964. 

The issue before us arose out of a dispute over the

delayed production of a privilege log. Between July 2003 and

January 2004, Banks served three document requests on the

SAA. See Banks v. Office of Senate Sergeant-at-Arms, 222

F.R.D. 7, 18 (D.D.C. 2005) (“May Opinion”). To each, the

SAA refused to provide any documents, asserting that any

responsive documents would be covered by the attorney-client

privilege. Id. Rule 26(b)(5) of the Federal Rules of Civil

Procedure requires that a party claiming privilege as a reason

to withhold documents must produce a privilege log. “When a

party withholds information otherwise discoverable under [the

Federal Rules] by claiming that it is privileged . . . the party

shall . . . describe the nature of the documents,

communications, or things not produced or disclosed in a

manner that, without revealing information itself privileged or

protected, will enable other parties to assess the applicability

of the privilege or protection.” FED. R. CIV. P. 26(b)(5). The

SAA failed to comply with this requirement. See May

Opinion at 18. Rather than seek a protective order relieving it

of this obligation or granting it more time to create one, the

SAA merely promised by letters to Banks that a log was in

preparation. See id. After several months of correspondence

with the SAA, Banks turned to the court for help and filed a
4

motion to compel production of the log, which was produced

shortly thereafter. See Banks v. Office of Senate Sergeant-atArms, 226 F.R.D. 113, 115 (D.D.C. 2005) (“February

Opinion”). Banks then moved for sanctions against the SAA.

See id. The magistrate judge found no reason in the record for

the SAA’s unapproved delay and ordered it to show cause

why Banks should not be awarded attorney’s fees and costs

for having to file a motion to compel in the first instance. May

Opinion at 21 (citing FED R. CIV. P. 37(a)(4)). 

In response to the show cause order, the SAA argued

that its obligation to file a privilege log did not arise until the

court had first ruled on other objections to the production

sought, see February Opinion at 113. The magistrate judge

rejected this argument, describing it as a “post hoc

rationalization” unsupported by law, id., and ordered the SAA

to pay Banks’ attorney’s fees. Id. at 117. In his opinion, the

magistrate judge observed that 

case law would have alerted any lawyer with

a healthy respect for his own skin to either

produce the privilege log with the [nonprivileged] documents her [sic] client was

producing, negotiate some other

arrangement with opposing counsel, or seek

judicial relief from the obligation to produce

a privilege log until a date certain or until

some other event . . . . What a lawyer cannot

do is ignore the obligation to produce a

privilege log when the opposing party has

repeatedly demanded it for several months,

and then, without judicial approval, further

delay its production once opposing counsel

formally demanded the privilege log by a

letter. Id.
5

The SAA filed a motion for reconsideration of the

magistrate judge’s order with the district court, arguing that

Congress enjoys sovereign immunity from Rule 37 sanctions,

Defendant’s Motion for Reconsideration at 2 (Mar. 3, 2005),

thus leaving the federal courts without authority to award

attorney’s fees to litigants who suffer from the misconduct of

congressional lawyers. The district court summarily denied

the SAA’s motion on July 4, 2005. Order Denying Motion for

Reconsideration (July 4, 2005). The SAA makes the same

argument on appeal.

II.

Before we can examine the issue raised by the

SAA—whether the district court has authority to impose Rule

37 sanctions on an office of the legislative branch—we must

first determine our own authority to consider this appeal,

which is being made prior to the entry of a final judgment in

the district court. “Jurisdiction is, of necessity, the first issue

for an Article III court.” Tuck v. Pan Am. Health Org., 668

F.2d 547, 549 (D.C. Cir. 1981). Both parties acknowledge that

the contested interim award of attorney’s fees is not a final

judgment and that we have no jurisdiction to review the

sanction unless it falls within the narrow confines of the

collateral order doctrine, which, as we discuss below, allows

us in some instances to conduct immediate review of

interlocutory orders. Following clear and settled precedent,

we conclude that the decision to award Banks’ attorney’s fees

under Rule 37 is reviewable on appeal from final judgment

and is therefore not within our jurisdiction for review at this

stage of the litigation. We do not grant mandamus relief for

the same reason: the appellant has an adequate remedy at law

and may appeal the contested decision following a final
6

judgment. We find no threat to sovereign immunity sufficient

to change this result.

Congress has limited our jurisdiction under 28 U.S.C.

§ 1291 to review of final district court decisions so that

“[a]ppeal gives the upper court a power of review, not one of

intervention,” Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949). Among the values protected by this

limitation is the preference for efficiency over the avoidance

of temporary error. “In § 1291 Congress has expressed a

preference that some erroneous trial court rulings go

uncorrected until the appeal of a final judgment, rather than

having litigation punctuated by piecemeal appellate review of

trial court decisions which do not terminate the litigation,”

Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430 (1985)

(internal quotation marks and citations omitted). The final

judgment rule guards against the repeated interruption of

district court proceedings and facilitates the orderly and

effective conduct of a trial and the full development of a

record for subsequent review. Id. It also relieves appellate

courts from the immediate consideration of questions that

might later be rendered moot, either because the party that lost

the ruling prevails on the merits or because the issue fails to

affect the final judgment in a manner warranting reversal.

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370,

380 (1987). The rule also preserves the role of the trial judge

as initial adjudicator of legal and factual issues that arise

during a case, and it limits parties’ ability to “clog the courts

through a succession of costly and time-consuming appeals,”

Flanagan v. United States, 465 U.S. 259, 264 (1984), which

might drain their opponents’ desire and capacity to pursue

meritorious claims.

We have construed the final judgment rule strictly,

repeatedly noting that a district court’s decision is ordinarily
7

not final until it “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” In re

Sealed Case (Medical Records), 381 F.3d 1205, 1209 (D.C.

Cir. 2004) (quoting Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 712 (1996) (internal quotation marks omitted)). The

Rule 37 sanction imposed on the SAA neither ended the

litigation nor left the court only to execute its judgment and

would therefore not ordinarily be eligible for our review.

The final judgment rule is not, however, without

nuance. It is qualified, for instance, by 28 U.S.C. § 1292(a),

which provides the circuit courts with jurisdiction over

appeals from, inter alia, “[i]nterlocutory orders of the district

courts . . . granting, continuing, modifying, refusing or

dissolving injunctions,” 28 U.S.C. § 1292(a)(1); see, e.g.,

Cobell v. Kempthorne, 455 F.3d 317, 321 (D.C. Cir. 2006).

Section 1292(b) permits interlocutory review when a district

judge certifies that an order “involves a controlling question

of law as to which there is substantial ground for difference of

opinion,” and further finds “that an immediate appeal from

the order may materially advance the ultimate termination of

the litigation,” 28 U.S.C. § 1292(b). Similarly, Rule 54(b) of

the Federal Rules of Civil Procedure permits immediate

appeal upon certification by a district judge of orders that are

conclusive with respect to specific parties or claims in a

litigation. 

But even when interlocutory review is expressly

granted by statute or rule, we construe such provisions

narrowly, applying them only when a district court’s

challenged ruling might be of “serious, perhaps irreparable,

consequence” to a litigant and therefore merit immediate

review. Cobell, 455 F.3d at 321 (quoting I.A.M. Nat'l Pension

Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21,

23-24 (D.C. Cir. 1986) (internal quotation marks omitted)). In
8

balancing the benefits of efficiency against the avoidance of

error, the Supreme Court has favored the latter only where the

effect of error may be serious and remain uncorrected by

appeal from a final judgment entered long in the future. For

example, the Supreme Court has permitted our immediate

review of claims of double jeopardy, see Abney v. United

States, 431 U.S. 651, 659 (1977), privilege asserted by

members of Congress under the Speech and Debate Clause,

see Helstoski v. Meanor, 442 U.S. 500, 506-07 (1979), and the

classified immunities enjoyed by other individuals when they

are protected not merely from liability but from suit, thus

requiring vindication prior to the commencement of trial, see

Mitchell v. Forsyth, 472 U.S. 511, 520 (1985) (absolute

immunity for judges, prosecutors, witnesses (citing Briscoe v.

LaHue, 460 U.S. 325 (1983); Butz v. Economou, 438 U.S.

478, 508-17 (1978); Stump v. Sparkman, 435 U.S. 349 (1978);

Imbler v. Pachtman, 424 U.S. 409 (1976)); Nixon v.

Fitzgerald, 457 U.S. 731, 755 (1982) (absolute presidential

immunity).

The collateral order doctrine permits the immediate

appeal of a small class of interlocutory decisions that “finally

determine claims of right separable from, and collateral to,

rights asserted in the action, too important to be denied review

and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is

adjudicated.” Cohen, 337 U.S. at 546. Although not an

exception to our preference for finality but a “practical

construction” of the same principle, Will v. Hallock, 126 S.

Ct. 952, 957 (2006) (internal citations and quotation marks

omitted), the doctrine defines our scope of review to include a

carefully considered set of circumstances for which Section

1291’s jurisdictional requirement would, if mechanically

applied, eliminate our opportunity to hear claims essential to

litigants. 
9

In determining which cases merit our immediate

attention, the Supreme Court in Cohen set forth three bases

for its decision to grant an immediate appeal despite the fact

that the challenged order on appeal would not ordinarily have

been considered to be a final judgment under §1291. 337 U.S.

at 546-47. The Court later restated the Cohen requirements

and refined them into a three-part test. For an order to merit

collateral appeal, it “must [1] conclusively determine the

disputed question, [2] resolve an important issue completely

separate from the merits of the action, and [3] be effectively

unreviewable after final judgment.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978). The Court has repeatedly

relied on this test, see, e.g., Will, 126 S.Ct. at 957 (noting that

the enumerated conditions are “stringent,” and that “[u]nless

they are kept so, the underlying doctrine will overpower the

substantial finality interests § 1291 is meant to further”

(internal citations and quotation marks omitted)), and we rely

on it here.

The SAA argues that each of the three requirements of

the Cohen test has been satisfied. Appellant’s Br. 2. Because

the Cohen test is based on conjunction, such that each

requirement must be satisfied for an interlocutory appeal to

proceed, we need only determine that the SAA has failed to

satisfy any one of the three requirements to conclude that we

lack jurisdiction over this appeal. We focus our analysis on

the third requirement of the Cohen test—

unreviewability—and conclude that it is fatal to the SAA’s

argument.

The SAA argues that, absent our immediate

intervention, its right to appeal the district court’s sanction

order on the grounds of sovereign immunity will be

irrevocably lost. See Appellant’s Br. 2. In support, it relies on
10

a line of decisions, including one from this Court, holding that

appellate courts have jurisdiction over some interlocutory

orders that are “far removed from the merits of the underlying

case.” In re Rafferty, 864 F.2d 151, 154 (D.C. Cir. 1988). The

SAA maintains that its claim of sovereign immunity is “far

removed” from the Title VII claims underlying the case

before the district court. Only our interlocutory review, so the

argument goes, can preserve the SAA’s sovereign immunity.

This argument suffers from at least two flaws. First,

and most fundamentally, the SAA has simply failed to

demonstrate why it would be precluded from appealing the

order following a final judgment from the district court.

There is ample precedent in this Circuit for taking an appeal

of a discovery order after entry of judgment. See, e.g., Nat’l

Ass’n of Criminal Def. Lawyers, Inc. v. U.S. Dep’t of Justice,

182 F.3d 981, 985 (D.C. Cir. 1999) (recognizing that a party

can seek review of the interim award of attorney’s fees

following entry of a final judgment) (“NACDL”); Bonds v.

District of Columbia, 93 F.3d 801, 807-08 (D.C. Cir. 1996)

(reviewing discovery sanction imposed under Rule 37); Trout

v. Garrett, 891 F.2d 332, 335 (D.C. Cir. 1989) (denying

immediate review by appeal from interim attorney fee award

in Title VII employment discrimination action). We cannot

see how this order would escape our review absent our

immediate intervention.

Second, the SAA has misread our opinion in Rafferty,

where we found that it would be difficult in practical terms for

an appellant to challenge on appeal a protective order that

prohibited him from transferring information to third parties

during the “potentially quite lengthy litigation” between the

parties. Rafferty, 864 F.2d at 154. We determined that the

magistrate judge’s orders in Rafferty “had the effect of

preventing petitioner from disclosing the information . . .
11

which petitioner had obtained before the litigation

began . . . .” Id. at 155. We noted that it was “difficult to

imagine” how Rafferty could raise the issue on appeal, not

because of any legal preclusion, but because the information

would no longer be under protective order after a final

judgment, and the harm attached to Rafferty’s inability to

share information with the public would have been

irrevocable. Id. at 154. Our concern in Rafferty was therefore

based on our belief that practical exigency prevented the

appellant from availing himself of his remedy at law, not that

his remedy was precluded by law. Id.; see also Republic of

Venezuela v. Philip Morris Inc., 287 F.3d 192, 198 (D.C. Cir.

2002) (comparing practical with legal bars to appellate

review). To emphasize this point in our opinion, we likened

the practical obstacles imposed by delayed review to those

faced by a newspaper that seeks access to sealed documents in

a judicial proceeding. Rafferty, 84 F.2d at 154. If the SAA’s

reading of our jurisprudence in Rafferty were correct, then no

distinction could be made between the second and third

requirements of the Cohen test: separability and

unreviewability. If Rafferty were to permit our review over

any order that is “far removed from the merits of the

underlying case,” id., then the third requirement of the Cohen

test (unreviewability) would be automatically satisfied when

the second requirement (complete separability from the merits

of the case) has been fulfilled. 

Even if we were to concede, arguendo, the SAA’s

assertion that some degree of separability automatically

satisfies Cohen’s requirement of unreviewability, the SAA

has failed to demonstrate that the order at issue here is “far

removed from the merits of the underlying case,” id. at 154.

Indeed, the Supreme Court’s decision in Cunningham v.

Hamilton County, Ohio, 527 U.S. 198 (1999), suggests the

opposite conclusion. In Cunningham, which involved a
12

similar appeal from a magistrate judge’s Rule 37 sanctions

order imposing costs and attorney’s fees for discovery abuses,

the Court opined that “[w]e do not think . . . that appellate

review of a sanctions order can remain completely separate

from the merits,” 527 U.S. at 205. While we recognize that

the sovereign immunity pressed by the SAA was not at issue,

the Court in Cunningham nonetheless suggests that its

reasoning be applied categorically. “Perhaps not every

discovery sanction will be inextricably intertwined with the

merits, but we have consistently eschewed a case-by-case

approach to deciding whether an order is sufficiently

collateral.” Id. at 206; see also Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 876-77 (1994) (favoring

generality in determining the availability of collateral order

appeal); Van Cauwenberghe v. Biard, 486 U.S. 517, 529

(1988) (same). The Court’s suggestion—that discovery

sanctions do not, as a group, constitute a category for

immediate appeal under the collateral order doctrine—is

consistent with its concern that sanction appeals “would

undermine the very purposes of Rule 37(a), which was

designed to protect courts and opposing parties from delaying

or harassing tactics during the discovery process. Immediate

appeals of such orders would undermine trial judges’

discretion to structure a sanction in the most effective

manner.” Cunningham, 527 U.S. at 208-09.

Finally, we note that an appellant, failing to

demonstrate that a lower court’s order is unreviewable or

effectively unreviewable, may still satisfy the third

requirement of the Cohen test by demonstrating a likelihood

of irreparable harm if interlocutory review is denied. NACDL,

182 F.3d at 984 (citing Firestone Tire & Rubber Co. v.

Risjord, 449 U.S. 368, 376 (1981)). A discovery sanction,

however, will not ordinarily result in irreparable harm. Id. at

985 (interim award of attorney’s fees did not satisfy the third
13

requirement of the Cohen doctrine because appellant had

made no showing that appellee would likely be unable to

repay the fees if the award were later reduced or overturned)

(internal citation omitted); see also Trout, 891 F.2d at 335

(interim discovery sanction not immediately appealable

because “the government . . . [had not] demonstrat[ed] a real

prospect of irreparable harm”). We pause briefly to consider

whether the SAA’s sovereign immunity argument

distinguishes its case from precedent. It does not.

The United States, as sovereign, “is immune from suit

save as it consents to be sued, and the terms of consent to be

sued in any court define that court’s jurisdiction to entertain

the suit.” United States v. Sherwood, 312 U.S. 584, 586

(1941) (citations omitted). In Digital Equipment Corporation

v. Desktop Direct, Inc., 511 U.S. 863 (1994), the Supreme

Court affirmed the proposition enunciated in Abney v. United

States, 431 U.S. 651 (1977), and Mitchell v. Forsyth, 472 U.S.

511 (1985), that “orders denying certain immunities are strong

candidates for prompt appeal under § 1291.” Digital Equip.,

511 U.S. at 871. Where the immunity guarantees a right not to

stand trial, for instance, that right may be irretrievably lost if

immediate review is not available. In re Sealed Case, No.

99-309, 192 F.3d 995, 999 (D.C. Cir. 1999) (“The right to be

free from the burdens of trial is effectively unreviewable on

appeal from a final judgment.”); see also Midland Asphalt

Corp. v. United States, 489 U.S. 794, 800-01 (1989)

(“[D]eprivation of the right not to be tried satisfies the . . .

requirement of being ‘effectively unreviewable on appeal

from a final judgment.’” (quoting Coopers & Lybrand, 437

U.S. at 468)). 

Even the alleged denial of a right not to stand trial

does not automatically merit immediate review. See Digital

Equip., 511 U.S. at 873. As the Supreme Court stated in Will
14

v. Hallock, “it is not mere avoidance of a trial, but avoidance

of a trial that would imperil a substantial public interest, that

counts when asking whether an order is ‘effectively’

unreviewable if review is to be left until later.” Will, 126 S.

Ct. at 959 (internal citation omitted). In Will, the Court held

that there was no substantial public interest in the district

court’s refusal to apply the Federal Tort Claims Act’s

judgment bar. See id. at 960. Here, avoiding the temporary

imposition of sanctions pending final review would likewise

not serve a substantial public interest. See id. at 959

(explaining that qualified immunity claims can be reviewed

under the collateral order doctrine because of “threatened

disruption of governmental functions”); see also United States

v. Rose, 28 F.3d 181, 186 (D.C. Cir. 1994) (stating that

“separation of powers immunity should protect legislators

from the burden of litigation and diversion from congressional

duties”). Because an alleged right to avoid discovery

sanctions is not forever extinguished once fees are paid, the

SAA’s sovereign immunity from discovery sanctions, if it

exists at all, does not depend on our immediate review. The

district court’s decision that the SAA has no sovereign

immunity from Rule 37 sanctions, though temporarily

unfavorable to the SAA, is not permanently unreviewable and

therefore causes no irreparable harm to the SAA, nor any

threat to the public interest. If harm is done to the SAA’s

alleged interest by the district court’s order, it may be

remedied on appeal after final judgment. No rights at stake

will be “irretrievably lost,” id. at 871-72 (quoting

Richardson-Merrell, 472 U.S. at 431). 

We do not, therefore, distinguish the case before us

from those in which we have previously found interim

discovery sanctions ineligible for immediate appeal, such as

National Association of Criminal Defense Lawyers, Inc. v.

U.S. Department of Justice, 182 F.3d 981, 985 (D.C. Cir
15

1999) and Trout v. Garrett, 891 F.2d 332, 335 (D.C. Cir.

1989). We cannot see how the consequences of the SAA’s

temporary subjection to a district court’s mistaken Rule 37

order could constitute the kind of “irreparable harm”

contemplated under Cohen and its progeny. Like immunity

from service of process (leading to lack of personal

jurisdiction), immunity from Rule 37 sanction is better viewed

as a right not to be subject to a binding judgment. Such a right

may be vindicated effectively after trial. See Van

Cauwenberghe, 486 U.S. at 524.

We now address whether we may exercise the

mandamus authority, which the SAA suggests is available to

us. And we begin, as we did in our approach to the collateral

order doctrine, by recognizing the strict limitations of our

mandamus jurisdiction.

In support of its argument, the SAA cites

Schlagenhauf v. Holder, 379 U.S. 104, 109-10 (1964), in

which the Supreme Court expressed a willingness to employ

the writ of mandamus in an advisory capacity to answer

important questions of first impression and in a supervisory

capacity to remedy certain classes of error not traditionally

thought subject to mandamus. We do not read this willingness

expansively. See NACDL, 182 F.3d at 986 (citing, inter alia,

United States v. Hubbard, 650 F.2d 293, 309 n.62 (D.C. Cir.

1980)). Mandamus is “a ‘drastic’ remedy, to be ‘invoked only

in extraordinary circumstances.’” Fornaro v. James, 416 F.3d

63, 69 (D.C. Cir. 2005) (quoting Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 34 (1980)). We note the threat that

an imprudent use of mandamus poses to the principles

underlying the final judgment rule discussed above. See In re

Papandreou, 139 F.3d 247, 250 (D.C. Cir. 1998) (“Lax rules

on mandamus would undercut [the final judgment rule] . . .

and would lead to piecemeal appellate litigation.”). Although
16

we have in rare circumstances been willing to employ the

writ, we have only done so with great caution. See Hubbard,

650 F.2d at 309 n.62. So reluctant are we to consider

mandamus relief that even where we have been presented

“really extraordinary” cases, we are careful to caution against

indiscriminate mandamus review. See In re Bituminous Coal

Operators’ Ass’n, Inc., 949 F.2d 1165, 1167 (1991) (“While

recognizing that this litigation qualifies as really

extraordinary, we open no door for indiscriminate use of the

remedy to avoid the strictures of the final judgment rule.”)

(internal quotation marks omitted). 

We have made the writ available only when “(1) the

plaintiff has a clear right to relief, (2) the defendant has a clear

duty to act, and (3) there is no other adequate remedy

available to plaintiff.” Power v. Barnhart, 292 F.3d 781, 784

(D.C. Cir. 2002) (quotation marks and citations omitted). We

have already concluded, first, that the SAA can seek review of

the interim award of attorney’s fees following entry of a final

judgment in this case and, second, that it will not suffer

irreparable injury in the meantime. The SAA has not claimed

an entitlement to avoid the district court’s jurisdiction

altogether. It concedes that it is subject to suit and answerable

to the final judgment of the court. Because appeal following

final decision affords the SAA adequate remedy with respect

to its challenges to the sanctions imposed upon it, we refuse to

issue a writ of mandamus.

III.

For the reasons stated above, the appeal is dismissed

for lack of jurisdiction and the petition for mandamus is

denied.

So ordered.