United States v. Providence Journal Company

Decision Date02 May 1988
Docket NumberNo. 87-65,87-65
PartiesUNITED STATES, Petitioner v. PROVIDENCE JOURNAL COMPANY and Charles M. Hauser
CourtU.S. Supreme Court
Syllabus

Respondents, a newspaper and its executive editor, violated a temporary restraining order issued by the District Court in a civil suit brought to enjoin dissemination of surveillance logs and memoranda concerning the plaintiff's deceased father. Although the court subsequently vacated the order, it nevertheless appointed a private attorney to prosecute respondents for criminal contempt of the order, declining to ask the United States Attorney to pursue the matter because of his representation of the federal defendants in the underlying civil action. The court ultimately found respondents in criminal contempt, but the Court of Appeals reversed on the ground that the order was "transparently invalid" under the First Amendment. Although the Solicitor General denied the special prosecutor authority to represent the United States in this Court in seeking reinstatement of the contempt judgment, the prosecutor nevertheless filed a petition for a writ of certiorari, which was granted, and briefed and argued the case.

Held: Since the special prosecutor lacks authority to represent the United States before this Court, the writ of certiorari is dismissed for want of jurisdiction. Pp. 699-708.

(a) Title 28 U.S.C. § 518(a) and regulations issued by the Attorney General empower the Solicitor General or his designee to conduct and argue suits in this Court "in which the United States is interested." Pp. 699-700.

(b) This case is one "in which the United States is interested," within the plain meaning of § 518(a). The action was initiated, and continues to be litigated here, in order to further the United States' unique sovereign interest in vindicating the authority of its Judiciary. The rationale underlying Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740—which affirmed the inherent authority of federal courts to appoint private attorneys to prosecute disobedience of court orders in order to assure the Judiciary an independent means of vindicating its authority—does not necessitate the special prosecutor's appearance before this Court. Nor does Young create an exception to 28 U.S.C. §§ 516 and 547, and therefore to the similar provisions of § 518(a). Unlike § 518(a), both § 516 and § 547 give the Attorney General exclusive control over litigation involving the United States "except as otherwise [provided or authorized] by law." Young simply acknowledges an excepted provision or authorization within the meaning of the statutory provisos. Pp. 700-705.

(c) If a judicially initiated contempt citation were not a case "in which the United States is interested," the policies underlying § 518(a)—that the United States speak with one voice before this Court, and that that voice reflect the common interest of the Government and the people in the development of the law, rather than a variety of parochial, inconsistent interests shaped by the immediate demands of the case sub judice —could be undermined by, and anomalous consequences could result from, a deluge of unauthorized certiorari petitions filed by United States Attorneys or by special prosecutors at the behest of district judges. Pp. 706-707.

820 F.2d 1342 (CA1 1986) and 1354 (CA1 1987), certiorari dismissed for want of jurisdiction.

BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, O'CONNOR, and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. ----. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. ----. KENNEDY, J., took no part in the consideration or decision of the case.

Robert D. Parrillo, Providence, R.I., for petitioner.

Floyd Abrams, New York City, for respondents.

Justice BLACKMUN delivered the opinion of the Court.

The United States seeks reinstatement of a judgment of contempt against a newspaper and its executive editor for violating an invalid temporary restraining order against publication. Having concluded that the court-appointed prosecutor who sought certiorari and briefed and argued the case without the authorization of the Solicitor General may not represent the United States before this Court, we dismiss the writ of certiorari.

I

On November 8, 1985, Raymond J. Patriarca, son of Raymond L.S. Patriarca, by then deceased, filed suit against the Federal Bureau of Investigation (FBI), its Director, the Department of Justice, the Attorney General of the United States, the Providence Journal Company (Journal), and WJAR Television Ten (WJAR), seeking to enjoin further dissemination of logs and memoranda compiled from 1962 to 1965 during the course of illegal electronic surveillance, see Providence Journal Co. v. FBI, 602 F.2d 1010, 1013 (CA1 1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 752 (1980), of the plaintiff's father. The complaint, as amended, was based on the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 ed., and Supp. IV), Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2510 et seq. (1982 ed., and Supp. IV), and the Fourth Amendment, and alleged that the FBI had improperly released the logs and memoranda to the Journal and WJAR pursuant to a FOIA request following the death of the senior Patriarca. The summons, complaint, and a motion for a temporary restraining order were served on the Journal on November 12, 1985. The next day counsel for the various parties gathered for a conference with the Chief Judge of the United States District Court for the District of Rhode Island. During that conference, of which, apparently, there is no transcript, the Chief Judge entered a temporary restraining order barring publication of the logs and memoranda and set a hearing for Friday November 15.1 Counsel for both the Journal and the federal defendants objected to the order.

During the evening of November 13, respondent Charles M. Hauser, executive editor of the Journal, was first advised of the restraining order. After discussing with other Journal executives the perils of noncompliance, Hauser decided to publish a story based on the logs and memoranda. The following day, November 14, the Journal published one article about the Patriarcas and another about the "clash" between the District Court and the Journal. See App. 39, 18. Patriarca forthwith filed a motion to have the Journal and Hauser adjudged in criminal contempt.2 Id., at 223.

Patriarca, however, declined to prosecute the contempt motion,3 and the District Court decided not to ask the United States Attorney to pursue the matter because of his representation of the federal defendants in the underlying civil action.4 Invoking Federal Rule of Criminal Procedure 42(b) the District Court appointed William A. Curran of the Rhode Island Bar as "prosecuting attorney with full authority to prosecute" the pending contempt motion. App. 237-238. On Curran's application, the District Court then ordered respondents to show cause why they should not be adjudged in criminal contempt. Id., at 31-32.

Following a hearing on February 10, 1986, the District Court found respondents in criminal contempt of the order entered on November 13. The court concluded that it had jurisdiction to consider whether Patriarca's statutory and Fourth Amendment claims had merit, and whether his privacy interest outweighed the Journal's First Amendment interest in publication, and thus that the temporary restraining order entered to preserve the status quo pending consideration of significant legal issues was valid, even though it subsequently had been vacated. The District Court fined the Journal $100,000 and suspended a jail sentence for Hauser, placing him on probation for 18 months and ordering that he perform 200 hours of public service. Id., at 194-197.

Respondents appealed, and the United States Court of Appeals for the First Circuit reversed the judgment of contempt. In re Providence Journal Co., 820 F.2d 1342 (1986). The court found that the temporary restraining order was "transparently invalid" under the First Amendment, and thus its constitutionality could be collaterally challenged in the contempt proceedings. Id., at 1353. According to the court, none of the grounds asserted in support of the order, including FOIA, Title III, and the Fourth Amendment, provided even a colorable basis for the prior restraint ordered by the District Court.

The Court of Appeals, then sitting en banc, summarily modified the panel's opinion, holding that even those subject to a transparently invalid order must make a good-faith effort to seek emergency appellate relief. It ruled, however, that the publisher may proceed to publish and challenge the constitutionality of the order in the contempt proceeding if timely access to the appellate court is not available or if a timely decision is not forthcoming. The court was not convinced that respondents could have obtained emergency relief before the publisher had to make a final decision whether to run the story the following day, and found it unfair to subject respondents to substantial sanctions for failing to follow the newly announced procedures. In re Providence Journal Co., 820 F.2d 1354 (1987).

Because of the importance of the issues, we granted certiorari. 484 U.S. 814, 108 S.Ct. 65, 98 L.Ed.2d 28 (1987).

II

Before we can decide whether respondents could properly be held in contempt for violating the District Court's subsequently invalidated restraining order, we must consider respondents' motion to dismiss the writ of certiorari. It appears that the manner in which this unusual case reached us departed significantly from established practice. After the Court of Appeals reversed the judgment of contempt and, sitting en banc, modified the panel's opinion, the special prosecutor sought...

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