When a litigant claims that a lower court has taken action beyond its jurisdiction, does the court have power to require the lower court to set matters right?

If one could decide the point simply as a matter of good sense, it would seem almost too clear to require discussion that when a litigant claims that a lower court has taken action beyond its jurisdiction, as opposed to simply erroneous

[452 F.2d 709]

action within its jurisdiction, see Will v. United States, 389 U.S. 90, 97 n. 5, 98 n. 6, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), the court that would normally review decisions in the field in question should have power to require the lower court to set matters right. Except insofar as the double jeopardy clause might require otherwise, this would be equally true when the action was taken in a criminal case, as would be quite clear if a judge, months after entering a judgment of conviction, should, sua sponte, direct an acquittal or order an indictment to be dismissed. Compare United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). The Government asserts that, under the authorities, notably this court's decision in United States v. Dooling, 406 F.2d 192 (2 Cir.), cert. denied sub nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969), our power to do this under 28 U.S.C. 1651 is just that plain. While the Dooling case is indeed persuasive authority for the Government, we believe the importance of the issue deserves full examination.

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