I concur in the result with these additional views:
This attempted invocation of an extraordinary remedy, as a vehicle to obtain our review of a non-appealable order, brings a recurrent problem into sharp relief. When a petition or motion for leave to file a petition for writ of mandamus becomes perfunctory or ritualistic, then petitioners obtain delays in proceedings at the trial below, burden the trial judge, and hinder opposing parties.
From my experience, I think that the bulk of these requests seeking leave to file petitions for extraordinary relief ought to be disposed of at the threshold. Readily granting leave, and going forward to full oral arguments adds not one whit to the appealability of orders usually complained of. Where such petitions are well grounded, an extraordinary remedy proceeding is the tool of an advocate, but in an increasingly predominating number of cases it has become simply a handy delaying or harassing tactic. Indeed, in those rare instances where judicial discretion is actually abused, it ought to be apparent from, and manifested by the face of the initial petition. Cumulative briefing and oral arguments add nothing to conduct and dispositions already cast into permanent record made below.
Under its Rules 30 and 31, 346 U.S. 951, 979, 28 U.S.C., the Supreme Court has described considerations governing issuance of, and procedure on applications for, extraordinary writs. Significant is its requirement that petitions for the issuance of such writs “ * * * shall be prefaced by a motion for leave to file such petition * *
As long as Congress restricts review by courts of appeals to appealable orders, we must ward off attempts to circumvent its mandate. At the same time, we need to alertly guard all litigants against arbitrary and capricious use of judicial power. But oppressive tactics are as damaging to the orderly administration of justice in a free society, whether emanating from judge, plaintiff or defendant.
The order which stimulated petitioners in this case did not terminate the litigation, pending below, on its merits. From the welter of exhibits, filed in this court, it is clear that these petitioners earlier resisted, as defendants, Zenith’s attempt to obtain a writ of mandamus for l-eview of Judge Leahy’s order. Defending, in the Third Circuit Court of Appeals against use of an extraordinary writ for review of that Judge’s order, petitioners here, there contended it was “ * * * not appealable or otherwise reviewable * * citing in support, Roche v. Evaporated Milk Ass’n, 1943, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185.1 In my opinion the petitioners’ argument, as defendants in the Third Circuit, was standing refutation of that which they just sought before us. The same statutory channel for appealing from a final judgment in the Third Circuit is also open in this Circuit after a final appealable order is entered in the pending lawsuit below.
That writs of mandamus may not be used as substitutes for unauthorized review is well settled. Implicit in our original jurisdiction, over this extraordinary remedy, is power to grant or reject petitions, or motions, for leave to file petitions for such writs. Without this prefatory step, parties can shift trial judges into the status of litigants, Ex parte Fahey, 1947, 332 U.S. 258, 259, 67 S.Ct. 1558, 91 L.Ed. 2041, any time a ruling is thought to be uncongenial. Permitting parties to force district judges to retain counsel or ask an attorney, in the case before them for representation, merely *223by filing a petition for mandamus (if a matter of right in this court) would go far toward diluting trial courts’ judicial powers. District judges must not be fettered by this threat — rule sympathetically, else plead forthwith as a respondent. Litigation would soon be disrupted if we tolerated continuous, though abortive, attempts at piecemeal review. Each petition for leave to file a petition for this drastic remedy needs to be subjected to a careful sifting and testing process prior to causing the respondent judge to plead and defend. Certainly our power, to grant relief in appropriate cases, will not atrophy from disuse.
. Brief for Defendants-Appellees In Support of Motion To Docket and Dismiss, dated March 30, 1953; Supplemental Exhibits, 53, 71.