596 F.2d 58 (2nd Cir. 1979), 239, In re Attorney General of U.S.

Docket Nº:239, 484, 485, Dockets 78-6114, 78-6179, 78-3050.
Citation:596 F.2d 58
Party Name:In re the ATTORNEY GENERAL OF the UNITED STATES, Petitioner-Appellant. SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, v. The ATTORNEY GENERAL et al., Defendants-Appellants.
Case Date:March 19, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 58

596 F.2d 58 (2nd Cir. 1979)

In re the ATTORNEY GENERAL OF the UNITED STATES,

Petitioner-Appellant.

SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees,

v.

The ATTORNEY GENERAL et al., Defendants-Appellants.

Nos. 239, 484, 485, Dockets 78-6114, 78-6179, 78-3050.

United States Court of Appeals, Second Circuit

March 19, 1979

Argued Nov. 15, 1978.

Page 59

Robert B. Fiske, Jr., U.S. Atty. for the Southern District of New York, New York City (Thomas E. Moseley, Stuart I. Parker, Frank H. Wohl, Asst. U.S. Attys., New York City, of counsel), for defendants-appellants and petitioner-appellant.

Leonard B. Boudin, Rabinowitz, Boudin & Standard, New York City (Eric M. Lieberman, Rabinowitz, Boudin & Standard, Margaret Winter, Mary B. Pike, New York City, on the brief), for plaintiffs-appellees.

Eugene Gold, Dist. Atty., Kings County, Brooklyn, N.Y. (Richard E. Mischel, Asst. Dist. Atty., Brooklyn, N.Y., of counsel), National Dist. Attorneys Association, Inc., Chicago, Ill., amici curiae in support of petitioner-appellant and other defendants-appellants.

Before LUMBARD, FRIENDLY and OAKES, Circuit Judges.

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OAKES, Circuit Judge:

The Government appeals from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, holding the Attorney General of the United States in civil contempt for refusing to release eighteen files disclosing the names of a number of allegedly confidential government informants to appellees' attorneys, in accordance with an order of the court. In the alternative the Government petitions for a writ of mandamus directing the district court to withdraw its order of contempt and its order directing release of the files. We hold the order nonappealable but, in view of the extraordinary circumstances and nature of the case, grant the petition for a writ of mandamus, vacate the contempt order, and direct the district court further to consider issue-related sanctions under Fed.R.Civ.P. 37(b)(2).

BACKGROUND

This case arises out of a complaint filed on July 18, 1973, by the Socialist Workers Party (SWP), its affiliate, the Young Socialist Alliance (YSA), and some individual members alleging that over several decades the Federal Bureau of Investigation (FBI) has engaged in an unlawful investigation of plaintiff organizations with the purpose of disrupting or destroying them. The Government concedes that the investigation included the use of informants; physical, photographic, and electronic surveillance; a mail cover in 1973; certain surreptitious entries; and a "counter-intelligence" or "disruption" plan. The complaint runs against the United States itself under the Federal Tort Claims Act, against several high public officers in their official capacities (including the Attorney General of the United States), and against former officers in their personal capacity (Richard M. Nixon, John Mitchell, John W. Dean III, certain named FBI agents, and other unnamed government employees and agents). Discovery disclosed that the FBI made widespread use of paid informants to obtain information about plaintiffs' activities. Approximately 1,300 individuals provided confidential information to the FBI on more than one occasion, and 300 of them were members of the SWP or YSA.

When the scope of the informants' activities was uncovered and it was revealed that the FBI had falsely answered an interrogatory with respect to an individual informant's activities, 1 plaintiffs sought to obtain production of some of the informants' files themselves. Although the Government voluntarily furnished the files of seven informants whose identities had been disclosed, it refused to produce the files of nineteen informants whom plaintiffs had chosen as representative from the interrogatory answers. (The Government subsequently withdrew its objection as to one of these files when the informant's identity was disclosed.) The district judge personally conducted an In camera review of the extensive informant files in question, having secured detailed summaries from the Government to assist his evaluation.

On May 31, 1977, the court ordered the Government to make the FBI files and summaries regarding the eighteen undisclosed informants available In camera to four of plaintiffs' attorneys. The Government sought review of the order by appeal or mandamus, but this court denied review In re United States, 565 F.2d 19 (2d Cir. 1977), Cert. denied, 436 U.S. 962, 98 S.Ct. 3082, 57 L.Ed.2d 1129 (1978) (SWP II ). 2 The district court subsequently attempted to settle the disclosure issue by a proposal that the Government release nine files to the plaintiffs. The Government did not

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accept the proposal but did offer to release to the plaintiffs under a protective order the files of four informants who had consented to disclosure. When the Attorney General on his own authority under 5 U.S.C. § 301 and 28 C.F.R. §§ 16.23 and 16.24(b) determined not to comply with the disclosure order, the district court, rejecting alternative sanctions, first warned the Attorney General on June 30, 1978, that noncompliance would result in a civil contempt citation and then adjudged him in contempt on July 6, after he declared that he would refuse production. Judge Gurfein of this court stayed the contempt order on July 7, 1978, to permit the Attorney General to seek review of the contempt orders by a full panel of this court. Subsequent to the argument on this appeal the district court reconsidered, in light of Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978), the Government's motion to dismiss the complaint but denied the motion.

APPEALABILITY

The Government contends that the contempt order is appealable as a collateral order, as a third party contempt, or as an exceptional order implicating the constitutional separation of powers. None of these contentions is persuasive.

The Government first maintains that the order is appealable under the so-called "collateral order" doctrine, a judicial gloss upon the statutory requirement of finality, 28 U.S.C. § 1291, created by Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). But we have held that discovery orders are not appealable under this doctrine even where the appellant asserts a work product privilege. American Express Warehousing, Ltd. v. Transamerica Insurance Co., 380 F.2d 277, 280-82 (2d Cir. 1967). And in International Business Machines Corp. v. United States, 493 F.2d 112 (2d Cir. 1973), Cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974) (IBM), at the Government's earnest urging, we followed Fox v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936), and Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907), by holding that a party may not appeal a civil contempt order imposed for breach of a discovery order even where he had resisted discovery on the basis of the attorney-client work product privilege. Although this case involves the informant privilege 3 and although we stated in IBM that such a contempt order might be appealable in "certain extraordinary circumstances," 493 F.2d at 119, we do not retreat from the general standard there expressed.

The Government nevertheless argues that the contempt order here "falls within that narrow category of orders that can be considered separable from the main action and which are too important to be denied review," apparently because the order is directed against the Attorney General. We agree that this order is important, but we are as unpersuaded about its severability as we were in IBM supra. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court quite pointedly limited the collateral order doctrine to orders which "conclusively determine the disputed question, resolve an important issue Completely separate from the merits of the action, and (are) effectively unreviewable on appeal from a final judgment." Id. at 98 S.Ct. at 2458 (emphasis added). See also Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 772-74 (2d Cir. 1972). Notwithstanding the presence of the Attorney General as a party, here the issue of discovery is integral to, rather than "completely separate from," the merits of the action.

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The Government also argues that the contempt order is reviewable as a third party contempt because the United States, not the Attorney General, is the real party in interest. We disagree. Although it is true that the present Attorney General is not named a defendant in his personal capacity, 4 he is named in his official capacity and is in no sense only a nominal or formal party. Any equitable relief granted would surely run against him in that capacity. Thus, cases permitting appeal by contemnors who were attorneys but not parties to the underlying action, E. g., In re Murphy, 560 F.2d 326 (8th Cir. 1977); Appeal of United States Securities & Exchange Commission, 226 F.2d 501, 520 (6th Cir. 1955), are simply inapposite.

The Government finally argues that this case comes within the very narrow exception to the finality rule recognized in United States v. Nixon,418 U.S. 683, 690-92, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). In Nixon, the Court held that the President of the United States, a third party in a criminal proceeding, need not follow the traditional avenue of placing himself in contempt to obtain review of an order denying his motion to quash and requiring him to produce evidence pursuant to a subpoena duces tecum. To require the President to take that route "would be unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government." Id. at 691-92, 94 S.Ct. at 3099. But Nixon is readily distinguishable from this case. Nixon did not involve, as this case does, a suit...

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