The Court recalled the mandate, reconsidered and changed its earlier decision by withdrawing the vacation of the district court's orders dismissing the claims against Suffolk County and the Suffolk County Police Department and remanded to the district court for further proceedings.
Before: OAKES and MESKILL, Circuit Judges, and NEAHER,*fn* District Judge.
pppppMESKILL, Circuit Judge:
We recall the mandate and sua sponte reconsider our decision in Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), without hearing oral argument, following a rather unusual set of circumstances.
Familiarity with the underlying action is presumed. On June 29, 1984, long after the mandate issued, the County of Suffolk and the Suffolk County Police Department (collectively, the County) filed with this Court a petition for a writ of prohibition to the district court. The County's objective was to bar its reinstatement as a party defendant at the retrial which we had directed in our instructions on remand. The County essentially argued that, notwithstanding the prejudice that it had caused to defendant Robert Pfeiffer by failing to provide him with independent trial counsel, it could not be reinstated as a party to the trial because it had never been a party to the appeal. Noting that the plaintiff had not appealed the district court's order dismissing the County,*fn1 the County reasoned that it was not subject to the jurisdiction of this Court.
We recognized that the County had raised a creditable challenge and that our earlier decision deserved reexamination. But we also recognized that the extra-ordinary writ sought was not the proper vehicle for achieving that end. We should not bar the district court from attempting to comply with our own mandate. Nevertheless, in an attempt to resolve the problem without wasting judicial resources, we offered an alternative that could provide the County the relief it sought.
Identifying the gravamen of the County's petition as a plea to reconsider our initial decision, we considered the petition to include as alternative relief a motion for leave to file out of time a motion to intervene in the Pfeiffers' appeal, a motion to recall the mandate to the district court and a motion to request rehearing with a suggestion for rehearing en banc. In re County of Suffolk, No. 84-3058 (2d Cir. July 18, 1984).The motion to file motions out of time was granted and the motion to intervene was considered filed and was granted. By separate order, we granted permission for the motion for rehearing to be filed and recalled the mandate. Dunton v. County of Suffolk, No. 83-7814 (2d Cir. July 18, 1984). The petition for a writ of prohibition was denied. In re County of Suffolk, No. 84-3058 (2d Cir. July 18, 1984).
The County, in rather cavalier fashion, ignored our invitation to file a motion for rehearing. Instead, it petitioned the United States Supreme Court for a writ of prohibition to this Court to bar its reinstatement as a party. In re County of Suffolk, 469 U.S. 1029, 105 S. Ct. 450, 83 L. Ed. 2d 375, 53 U.S.L.W. 3405 (1984).
It seems beyond questions that "since we have the power under 28 U.S.C.  § 1651 to issue mandamus or other extraordinary writs, we obviously have the power to issue less strenuous relief." In re Tokio Marine & Fire Insurance Co., 322 F.2d 113, 117 (5th Cir. 1963). Pursuant to that power, we outlined a procedure for the County that would allow it redress. The context in which our alternative was presented was, and remains, the burgeoning caseloads of the federal courts at every level. The overwhelming burdens on the time and resources of our federal courts fairly demand that, in the interest of the integrity of the judicial system and to achieve substantial justice for the parties before the courts, we be ever ready to fashion creative solutions that will help to reduce unnecessarily swollen appellate dockets.
We sought to avoid the imposition of additional burdens on the trial court and the appellate courts. The County was fully aware of both the original appeal and our decision in Dunton V. County of Suffolk. Yet it waited until the eve of retrial to raise its present challenge.
Notwithstanding the County's dilatory and insouciant conduct, the most practical and economical solution to this dilemma is for us to reconsider our earlier decision sua sponte rather than saddle an already overburdened Supreme Court with this case.
The unusual nature of these circumstances and the realization that injustice would ensue if we simply denied the petition for a writ of prohibition convinced us to recall our mandate. See, e.g., Newhouse v. Robert's Ilima Tours, Inc., 708 F.2d 436, 442 (9th Cir. 1983); Home Life Insurance Co. v. Equitable Equipment Co., 694 F.2d 402, 403 (5th Cir. 1982); Greater Boston Television Corp. v. FCC, 149 U.S. App. D.C. 322, 463 F.2d 268, 276-80 (D.C. Cir. 1971), cert. denied, 406 U.S. 950, 92 S. Ct. 2042, 32 L. Ed. 2d 338 (1972); see also City of Detroit v. Grinnell Corp., 575 F.2d 1009, 1009 (2d Cir. ...