# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 17, 2019 *

Decided June 17, 2019

Before

KENNETH F. RIPPLE, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 19

‐ 1953

IN RE: PATRICK C. NOVAK,

Petitioner.

O R D E R

Novak is a U.S. citizen residing in Japan, where he alleges that he is a

housebound disabled veteran. Novak intends to file a suit, ostensibly under the Federal

Tort Claims Act, in the Southern District of Illinois to challenge a reduction in his

veterans’ disability benefits. The clerk’s office has rebuffed his attempts to do so

because Novak emailed the filings. The largest of these motions, one asking the district

court to recruit counsel to file a complaint on his behalf, resembles a complaint in that it

identifies defendants and includes allegations— ʺ a vast conspiracy” to deny veterans’

benefits—though the relief he seeks is a recruited attorney.

Under the district court’s local rules, a pro se litigant who is “a party to a pending

civil action” may seek leave to file electronically using CM/ECF, but that permission

* After examining the record, we have concluded that oral argument is unnecessary.

See F ED

. R. A PP

. P. 34(a)(2). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 1953 Page 2

extends only to that action; pro se litigants must otherwise “file all documents with the

Clerk of Court by U.S. Mail or personal delivery to the Clerk’s Office.” S.D. Ill. Elec.

Filing R. 1–2; see also S.D. Ill. L.R. 5.1(c). Thus, the local rules prevent a pro se litigant

from opening a case electronically. Rather, pro se litigants must file a complaint in paper

form and thereafter move for leave to file subsequent documents electronically. The

clerk’s office explained all of this to Novak over email. Novak argued that he could not

use the U.S. Mail from Japan, and in any event, use of the mail was unduly burdensome

for someone, like him, who is housebound. When the clerk’s office declined to upload

the documents, he filed a petition for a writ of mandamus in this court and a motion for

leave to amend that petition. He has also filed a motion to seal the appellate docket, for

leave to proceed pro se

, for a court

‐ appointed attorney, and for leave to file in forma

pauperis

. For the following reasons, we will grant the motion to amend, deny the

petition for a writ of mandamus, and deny Novak’s remaining motions.

We begin with the petition for a writ of mandamus. In that petition, Novak

argues that the district court did not have “any authority to reject motions for e

‐ mail

service,” an argument he frames as a constitutional challenge. Three conditions must be

satisfied before a writ of mandamus may issue. The party seeking the writ must (1)

“have no other adequate means to attain the relief he desires,” (2) show that his right to

issuance is “clear and indisputable,” and (3) satisfy the court that the writ is appropriate

under the circumstances. Cheney v. U.S. Dist. Court for D.C.

, 542 U.S. 367, 380–81 (2004).

“Mandamus is a drastic remedy traditionally used to confine a lower court to the lawful

exercise of its jurisdiction or to compel it to exercise its authority when it has a duty to

do so.” United States v. Lapi

, 458 F.3d 555, 560–61 (7th Cir. 2006).

Here, Novak asks us to direct the clerk’s office—not the district court—to fulfill a

duty (accept his electronically filed complaint). The All Writs Act, 28 U.S.C. § 1651,

whereby courts of appeal derive their power to issue writs of mandamus, “empowers a

federal court to issue writs of mandamus necessary to protect its prospective

jurisdiction.” Telecom. Research & Action Ctr. v. F.C.C. (“ TRAC ”), 750 F.2d 70, 76 (D.C.

Cir. 1984); see also id. at 77 (“The All Writs Act is not an independent grant of

jurisdiction to a court; it merely permits a court to issue writs in aid of jurisdiction

acquired to grant some other form of relief.”). Thus, appellate courts may issue writs of

mandamus directed to a district court or, if vested with original authority to review

final decisions by an administrative agency, may issue writs of mandamus to agencies.

See id at 76.No. 19

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Novak has filed his original petition for mandamus before us, not the district

court. And if relief is available in the district court, then we must deny the petition for

mandamus. See Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants

, 17 F.3d 130, 133 (5th

Cir. 1994). In Ingalls

, the Fifth Circuit found that the district court has exclusive

jurisdiction to consider a writ of mandamus directed against an agency director. The

governing statute did not “extend to [the Fifth Circuit] original jurisdiction over the

actions of the Director in the exercise of her administrative authority.” Id. at 133.

“Hence, review is not otherwise available in the court of appeals and thus, even under

the reasoning of the TRAC court, there is no basis to defeat the mandamus jurisdiction

of the district court under 28 U.S.C. § 1361.” Id. (citing TRAC

, 750 F.2d at 77–78).

28 U.S.C. § 1361 states that “[t]he district courts shall have original jurisdiction of

any action in the nature of mandamus to compel an officer or employee of the United

States or any agency thereof to perform a duty owed to the plaintiff.” The plain

language of § 1361 seems to vest district courts with original jurisdiction over

mandamus actions against clerk’s office employees. After all, they are employees of the

United States. But see Panko v. Rodak

, 606 F.2d 168, 171 n.6 (7th Cir. 1979) (“Section 1361

seems to grant jurisdiction; but, if read literally, the language of § 1361 would allow a

district court to issue mandamus directly against the [clerks of the Supreme Court].”).

Several circuits have, however, found that a clerk’s office is not an “agency,” and thus

district courts cannot issue writs of mandamus against it. See Trackwell v. U.S. Gov’t

, 472

F.3d 1242, 1247 (10th Cir. 2007); Semper v. Gomez

, 747 F.3d 229, 250 (3d Cir. 2014). In

finding that “[t]he context of the statute argues for, not against, exclusion of the

judiciary from its compass,” Trackwell emphasized that it would be “remarkable” for a

“district court to issue a writ of mandamus against an equal or higher court.” 472 F.3d

at 1246; see also Hubbard v. United States

, 514 U.S. 695, 700 & n.3 (1995) (analyzing the

same statutory definition and finding that “‘agency does not refer to a court,” but

expressing “no opinion whether any other entity within the Judicial Branch might be an

‘agency.’”).

This interpretational question is thorny. We agree that, contextually, § 1361 does

not support district court mandamus jurisdiction over other courts (much less higher

courts). But the relationship between a court and its own clerk’s office is different. In

Borntrager v. Stevas

, the Eighth Circuit affirmed the district court’s finding that it lacked

mandamus jurisdiction under § 1361 of a suit directed against the Supreme Court

clerk’s office. 772 F.2d 419, 420 (8th Cir. 1985). The Eighth Circuit explained that “the

plaintiff has a fully adequate alternative remedy, a motion directed to the Supreme

Court seeking review of the defendant ʹ s conduct.” Id. And although “no statute or ruleNo. 19

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expressly authorizes the Justices to conduct such a review,” “the Supreme Court ʹ s

power over its clerks is inherent in the nature of the relationship between the two.” Id.

(quoting Griffin v. Thompson

, 43 U.S. 244, 257 (1844) (“Can it be doubted that

... it is the

right and the duty of the court [when apprised of misconduct by an officer] to correct

the irregularities of its officer, and to compel him to perform his duty? There is inherent

in every court a power to supervise the conduct of its officers, and the execution of its

judgments and process.”)).

We find the Eighth Circuit’s rationale persuasive. Regardless of whether § 1361

grants the district court original mandamus jurisdiction over this petition, the district

court possesses inherent supervisory power over its clerk’s office. Because an

alternative remedy exists, we must deny mandamus relief. 1 Id. Novak may either file a

petition with the district court or submit his complaint via physical mail. 2 We will deny

his remaining motions without prejudice for the reasons expressed below.

IT IS ORDERED that the motion to file an amended petition for writ of

mandamus is GRANTED to the extent that the panel considered the amended pro se

petition.

IT IS FURTHER ORDERED that the motion to proceed pro se, and motion to

proceed in forma pauperis are DENIED.

IT IS FURTHER ORDERED that the motion for recruitment of counsel is

DENIED

. See Pruitt v. Mote

, 503 F.3d 647 (7th Cir. 2007) (en banc); Farmer v. Haas

, 990

F.2d 319, 321 (7th Cir. 1993). It is not necessary to recruit counsel to assist in resolving

the issues raised in this petition.

IT IS FURTHER ORDERED that the petition for writ of mandamus is DENIED

. Alternative remedies exist in the district court. Nor can this court construe the petition

as a notice of appeal, because the district court has not issued an appealable order.

1 Our analysis may change if Novak seeks relief from the district court and is rebuffed (by the clerk’s

office’s refusal to docket any such request, for instance). See Borntrager, 772 F.2d at 420 n.3.

2 For the reasons stated above, we do not reach the merits. We do note, however, a facial conflict between

the local electronic filing rules and the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 5(d)(4) (“The

clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a

local rule or practice.”); United States v. Harvey

, 516 F.3d 553, 556 (7th Cir. 2008); Farley v. Koepp

, 788 F.3d

681, 685 (7th Cir. 2015).No. 19

‐ 1953 Page 5

Petitioner may, at any time, file a complaint with the district court clerk through the

proper means.

IT IS FURTHER ORDERED that the motion to seal is DENIED without

prejudice. This court rarely permits a litigant to file an entire document under seal.

Instead, petitioner must file a redacted copy of his petition for the public record. In re

Krynicki

, 983 F.2d74 (7th Cir. 1992) (Easterbrook, J., in chambers). Each redaction must

be supported by a specific legal basis for secrecy. See Baxter Int ʹ l, Inc. v. Abbott Labs.

, 297

F.3d 544, 548 (7th Cir. 2002).

IT IS FURTHER ORDERED that the Seventh Circuit Clerk’s Office is

DIRECTED to transmit copies of this order to the Clerk of Court for the Southern

District of Illinois and to Chief Judge Rosenstengel. Because no district court docket

exists, unusual procedures are necessary.