In re: David A. Kessler, M.D.

• Decision Date: 29 November 1996
• Docket Number: No. 96-5257,96-5257
• Parties: In re: David A. Kessler, M.D., et al., Petitioners
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1015

100 F.3d 1015

In re: David A. Kessler, M.D., et al., Petitioners

No. 96-5257

United States Court of Appeals District of Columbia Circuit

Argued November 5, 1996

Decided November 29, 1996

On Petition for Writ of Mandamus to the United States District Court for the District of Columbia (94cv01306)

Daniel F. Van Horn, Assistant United States Attorney, argued the cause for petitioners, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the briefs.

Richard A.Samp, Arlington VA, Washington Legal Foundation, argued the cause for respondent, with whom Daniel J. Popeo was on the brief.

Before: Silberman and Henderson, Circuit Judges, and Buckley, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge:

David A. Kessler, M.D., the Commissioner of the Food and Drug Administration (FDA), petitions for a writ of mandamus directing the district court to vacate its order authorizing a notice of his deposition and to enter a protective order prohibiting his deposition. We conclude that mandamus is unavailable and, accordingly, we deny the petition without reviewing the district court's order.

I.

Washington Legal Foundation, respondent here and plaintiff below, filed suit in the district court against Dr. Kessler, the FDA, and the Department of Health and Human Services, alleging that the FDA's policies and practices with respect to the promotion of "off-label"¹ uses of FDA-approved drugs and medical devices are unconstitutional. Respondent's theory is that the FDA is discouraging (without a formal regulation) the dissemination of information regarding off-label uses of approved products and by so doing is violating the First Amendment. Commissioner Kessler is alleged to be playing the key role in this initiative.

As part of discovery, respondent served a deposition notice on Dr. Kessler, claiming that his personal testimony is essential to determine the existence, genesis, and parameters of the FDA's policy. The government moved to vacate the deposition notice on the ground that, as a senior government official, Dr. Kessler should not be deposed absent "extraordinary circumstances." See Simplex Time Recorder Co. v. Secretary of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985). The government contended that Dr. Kessler did not have unique, relevant, first-hand knowledge of pertinent information that could not be obtained from another source (several of Dr. Kessler's subordinates were offered in his stead), see id., and that to inquire into his personal deliberations or actions with respect to FDA policy is improper, see United States v. Morgan, 313 U.S. 409 (1941) (Morgan IV). Respondent contends that it needs discovery in order to establish that the "policy" it believes the FDA is following actually exists and, if it does, to define its contours. The district court denied the government's motion (and a motion for reconsideration), finding that respondent had "made an adequate showing of exceptional circumstances to warrant taking the Commissioner's deposition." The government filed this emergency petition for a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. Section(s) 1651 (1994). A motions panel stayed the district court's order pending resolution of the petition, which we now deny.

II.

We begin with a rather rudimentary proposition: as a general rule, a court of appeals has jurisdiction only over "final decisions of the district courts." 28 U.S.C. Section(s) 1291 (1994) (emphasis added); see DiBella v. United States, 369 U.S. 121, 126 (1962). For purposes of appeal, an order holding a litigant in contempt for failure to obey a discovery order is considered final. See, e.g., Church of Scientology of California v. United States, 506 U.S. 9, 18 n.11 (1992) (citing United States v. Ryan, 402 U.S. 530, 532 (1971)). Thus, in the ordinary case, a litigant dissatisfied with a district court's discovery order must disobey the order, be held in contempt of court, and then appeal that contempt order on the ground that the discovery order was an abuse of discretion. In seeking a petition for mandamus, the government is, in effect, seeking an interlocutory appeal. It does not matter, however, whether the appeal is evaluated under the principles of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), governing interlocutory appeals, or of mandamus. In practical terms, the difference between the two, at least in this context, is mainly semantic. Under Cohen, we ask whether the government seeks to appeal an order that conclusively determines a disputed question separate from the merits of the underlying action and that is effectively unreviewable on appeal from a final judgment. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). Under mandamus, we exercise our discretion to issue the writ only where petitioner has shown a clear and indisputable right to it because, for instance, the district court has acted patently beyond its authority. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). In this case, the government argues that the district court's discovery order is improper, and that to hold Dr. Kessler in contempt would itself so injure the government that no appeal could cure the damage. So the two doctrines for circumventing the final judgment rule are both implicated, as is often true. Indeed, we have previously evaluated a petition for mandamus requesting review of a district court protective order under the rubric of Cohen. See In re Rafferty, 864 F.2d 151, 153-54 (D.C. Cir. 1988).

As best we understand the government's rather confusing position, Dr. Kessler is entitled to immediate relief because it would be constitutionally unseemly for him to be subject to a contempt order. Although this argument, once actually involving Dr. Kessler, has been accepted by several federal courts, see In re United States, 985 F.2d 510, 511-12 (11th Cir.) (per curiam), cert. denied, 510 U.S. 989 (1993); United States v. Winner, 641 F.2d 825, 830 (10th Cir. 1981); cf. In re F.D.I.C., 58 F.3d 1055, 1060 n.7 (5th Cir. 1995) (relying on In re United States to hold that FDIC could challenge discovery order in mandamus proceeding); In re Attorney General of the United States, 596 F.2d 58, 64 (2d Cir.), cert. denied, 444 U.S. 903 (1979), it would appear that our sister circuits relied, albeit somewhat diffidently, on United States v. Nixon, 418 U.S. 683 (1974), which allowed President Nixon to appeal a discovery order without being held in contempt. In our view, these decisions did not take into account sufficiently the constitutional distinction between the President himself and subordinate officers in the executive branch. The Supreme Court's recent decision in Franklin v. Massachusetts, 505 U.S. 788 (1992), drew that distinction starkly. In dispensing with APA and constitutional claims against the President's role in the apportionment calculation, the Court in Franklin emphasized that, for purposes of separation of powers, the President stands in an entirely different position than other members of the executive branch. See id. at 800-01; id. at 826 (Scalia, J., concurring in part and concurring in the judgment); see also Harlow v. Fitzgerald, 457 U.S. 800, 811 n.17 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982). Contempt orders have been levied against executive branch officials and agencies without even so much as a hint that such orders offend separation of powers. See, e.g., Armstrong v. Executive Office of President, 821 F. Supp. 761, 768 (D.D.C. 1993), rev'd, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (per curiam); Sierra Club...