Banks v. Office of the Senate Sergeant-At-Arms

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-at-
Arms, 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 [non-
privileged] 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
t h e t h i r d r e q u i r e me n t o f t h e C o h e n t e s t —
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.