Theriault v. U.S.

• Decision Date: 10 September 1974
• Docket Number: Nos. 72-2647,72-2969,s. 72-2647
• Citation: 503 F.2d 390
• Parties: Andre J. THERIAULT et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

Page 390

503 F.2d 390

Andre J. THERIAULT et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant (two cases).

Nos. 72-2647, 72-2969.

United States Court of Appeals, Ninth Circuit.

Sept. 10, 1974.

James Stotter, II (argued) Los Angeles, Cal., for defendant-appellant.

Thomas H. Lambert (argued), Los Angeles, Cal., for plaintiffs-appellees.

Before CARTER and GOODWIN, Circuit Judges, and EAST, ¹ Senior District Judge.

OPINION

EAST, Senior District Judge:

The appellees are the widow and children of a civilian employee of the United States Air Force who was lost in an Air Force air crash. They administratively requested and were refused inspection of Air Force agency records concerning the air crash and thereupon instituted these 5 U.S.C. 522 proceedings (Freedom of Information Act). They allege on information and belief 'that they may have a valid cause of action for wrongful death against (others) but they are unable to determine the facts and circumstances surrounding the crash and the history of the aircraft prior to the crash in order to thus fully ascertain their rights and remedies' and pray for the relief provided in the Act. Appellees moved under Rule 34, Federal Rules of Civil Procedure, for an order requiring the appellant to produce certain specified documents and on September 11, 1972, the District Court granted the motion and ordered (September order) the appellant to produce the documents 'for inspection and copying by' the appellees.

The appellant moved for a reconsideration of the September order asserting for the first time executive privilege, and on October 20, 1972, the District Court entered its order (October order) denying the motion.

The appellant separately appeals from the September and October orders. The two separate appeals have been consolidated. We vacate the orders and remand the cause to the District Court.

Rule 34 orders to produce ordinarily and when appropriately utilized in a given action are interlocutory and non-appealable under 28 U.S.C. 1291, except as provided in 28 U.S.C. 1292(b): Paramount Film Distributing Corp. v. Civic Center Theatre, 333 F.2d 358, 361-362 (CA10 1964). However, the September order to produce as utilized in this action is in and of itself the end result of the action. The practical effect of the full force of that order is a granting of the full, complete and final relief available to a complainant under the Act. Accordingly, we conclude that the September order is a 'final decision(s) of the District Court(s)' within the range of 1291 and therefore appealable. 'we know, of course, that 1291 does not limit appellate review to 'those final judgments which terminate an action . . .,' Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545 (69 S.Ct. 1221, 1225, 93 L.Ed. 1528) (1949), but rather that the requirement of finality is to be given a 'practical rather than a technical construction.' Id., (337 U.S.) at 546 (69 S.Ct. 1221, 1226, 93 L.Ed. 528).' Eisen v. Carlisle & Jacquelin, et al., 417 U.S. 156, at page 170, 94 S.Ct. 2140, at page 2149, 40 L.Ed.2d 732 (5/28/74). The practical test is generally whether holding the District Court's decision as 'not final' but merely interlocutory, and therefore unappealable, would render a party powerless to avert the mischief of an unlawful order. See, e.g., Overby v. United States Fidelity & Guaranty Co., 224 F.2d 158, 162 (CA5 1955); Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).

The Act grants subject matter jurisdiction to and empowers the District Court 'to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo and the burden is on the agency to sustain its action.' It is manifest from the face of the September order that it disobeys the mandate of the Act which requires the injunctive relief from a withholding of a given record under the claim of exemption to be predicated upon the District Court's finding of fact and conclusion of law as to the merits following a full 'de novo' hearing. The appellant's claim of exemption has not been adjudicated as specified in the Act 'and the rights (of the government to exemption) conferred by the statute, if it is applicable, will have been lost, probably irreparably,' Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225, should the September order be permitted to be...