Occidental Petroleum Corp. v. S.E.C.

• Decision Date: 21 April 1989
• Docket Number: No. 87-5279,87-5279
• Citation: 277 U.S.App.D.C. 112,873 F.2d 325
• Parties: , Fed. Sec. L. Rep. P 94,388 OCCIDENTAL PETROLEUM CORPORATION v. SECURITIES AND EXCHANGE COMMISSION, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 325

873 F.2d 325

277 U.S.App.D.C. 112, Fed. Sec. L. Rep. P 94,388

OCCIDENTAL PETROLEUM CORPORATION v. SECURITIES AND EXCHANGE COMMISSION, Appellant.

No. 87-5279.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 28, 1988.

Decided April 21, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-03428).

Richard M. Humes, Asst. Gen. Counsel, S.E.C., with whom Daniel L. Goelzer, Gen. Counsel and Karen MacRae Smith, Atty., S.E.C., Washington, D.C., were on the brief, for appellant.

Paul Gonson, Atty., S.E.C., Washington, D.C., also entered an appearance for appellant.

John T. Boese, Washington, D.C., with whom Robert E. Juceam, New York City, was on the brief, for appellee. C. Sanders McNew also entered an appearance for appellee.

Before ROBINSON, SILBERMAN, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

This is a reverse-Freedom of Information Act (FOIA), 5 U.S.C. Sec. 552 (1982), action in which Occidental Petroleum Corporation seeks to prevent the Securities and Exchange Commission from releasing documents it obtained during its 1977 investigation into whether the company engaged in bribery of, or otherwise made questionable payments to, foreign officials. The district court, Gesell, J., finding the record inadequate for judicial review under the Administrative Procedure Act, 5 U.S.C. Sec. 706(2) (1982), remanded the case to the SEC for further proceedings. Occidental Petroleum Corp. v. Securities and Exchange Commission, 662 F.Supp. 496 (D.D.C.1987). The SEC appeals from that ruling, asserting that the district court impermissibly required it, on remand, to follow specified procedures beyond those required by law, contrary to Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The SEC also argues that the record before the district court was fully adequate for meaningful judicial review.

We affirm the district court in all respects. As a preliminary matter, however, we must address the question of our jurisdiction to hear this appeal.

I. APPELLATE JURISDICTION

Occidental has moved to dismiss the appeal for lack of appellate jurisdiction on the ground that the district court's remand order was interlocutory and not immediately appealable.

Section 1291 of the Judicial Code provides that "[t]he courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." 28 U.S.C. Sec. 1291 (1982). This final order rule serves a number of important interests. As the Supreme Court recently noted:

Pretrial appeals may cause disruption, delay, and expense for the litigants; they also burden appellate courts by requiring immediate consideration of issues that may become moot or irrelevant by the end of trial. In addition, the finality doctrine protects the strong interest in allowing trial judges to supervise pretrial and trial procedures without undue interference.... The judge's ability to conduct efficient and orderly trials would be frustrated, rather than furthered, by piecemeal review.

Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380, 107 S.Ct. 1177, 1184, 94 L.Ed.2d 389 (1987).

The SEC urges that this appeal falls within the "collateral order" exception announced by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the Court held that certain orders, while technically not final in the sense that they dispose of the merits of the litigation, may nonetheless be immediately appealed as of right. 337 U.S. at 545-47, 69 S.Ct. at 1225-26. See also Bachowski v. Usery, 545 F.2d 363, 368, 370 (3d Cir.1976).

An appealable collateral order must: " '(i) conclusively determine the disputed question'; (ii) 'resolve an important issue completely separate from the merits of the action'; and (iii) 'be effectively unreviewable on appeal from a final judgment.' " Stringfellow, 480 U.S. at 375, 107 S.Ct. at 1181 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978)). The Court recently explained that the relevant inquiry under the third test is whether the putative appellant's interests "will be 'irretrievably lost in the absence of an immediate appeal.' " Id. 480 U.S. at 376, 107 S.Ct. at 1182 (quoting Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 431, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985)).

The SEC argues that the district court's decision meets all three Cohen tests, in that (1) the decision conclusively determines the disputed question of the legal standard pursuant to which the agency must conduct the proceedings on remand; (2) that issue is separate from the merits of Occidental's underlying claim for confidential treatment; and (3) the agency will not have the option of appealing that issue after a final determination on the merits because, regardless of whether it ultimately determines to release or to withhold the contested documents, it is required to apply the standard laid down by the district court and challenged on this appeal.

The Court of Appeals for the Seventh Circuit, in a helpful analysis of the collateral order doctrine, identified irreparable harm as the most critical factor bearing on whether a decision is immediately appealable. Palmer v. City of Chicago, 806 F.2d 1316, 1318 (7th Cir.1986). In a functional and pragmatic approach to the issue, it pointed out, the proper inquiry on the question of irreparable harm is not merely whether postponing review until the conclusion of the litigation would irreparably harm the would-be appellant, but also whether an interlocutory appeal, by interfering with ongoing proceedings in the district court, would itself cause harm. Proceeding from that standpoint, the court concluded that "an order is collateral if an appeal would not interfere with the litigation in the district court," and that "[a]n order that is collateral in this sense is appealable immediately if postponing appellate review till the end of the case would cause substantial irreparable harm to the party against whom the order was directed." Id. at 1319. See also Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) ("A major characteristic of the denial or granting of a claim appealable under Cohen 's 'collateral order' doctrine is that 'unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.' ") (citations omitted).

The Supreme Court has apparently never addressed the issue of whether an order remanding a case for further proceedings before an administrative agency is "final" within the meaning of Sec. 1291, nor has it had occasion to decide whether the collateral order exception has any application to such an order. The courts of appeals that have considered the question, however, have uniformly held that, as a general rule, a remand order is "interlocutory" rather than "final," and thus may not be appealed immediately (unless, of course, it is certified pursuant to Sec. 1292). See Mall Properties, Inc. v. Marsh, 841 F.2d 440, 441 (1st Cir.1988); Dalto v. Richardson, 434 F.2d 1018, 1019 (2d Cir.1970); Bachowski, 545 F.2d at 372-73; Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 404 (5th Cir.1984); Whitehead v. Califano, 596 F.2d 1315, 1319 (6th Cir.1979); Freeman United Coal Mining Co. v. Director, Office of Workers' Compensation Programs, 721 F.2d 629 (7th Cir.1983); Bohms v. Gardner, 381 F.2d 283, 285-86 (8th Cir.1967); Gilcrist v. Schweiker, 645 F.2d 818, 818-19 (9th Cir.1981); Loffland Brothers Co. v. Rougeau, 655 F.2d 1031, 1032 (10th Cir.1981); Howell v. Schweiker, 699 F.2d 524, 526-27 (11th Cir.1983); Cabot Corp. v. United States, 788 F.2d 1539, 1542 (Fed.Cir.1986). In so holding, the courts have generally pointed out that a party claiming to be aggrieved by final agency action can appeal, if still aggrieved, at the conclusion of the administrative proceedings on remand. See, e.g., Mall Properties, 841 F.2d at 443; Freeman United Coal, 721 F.2d at 631; Howell, 699 F.2d at 526.

This and other courts of appeals have recognized an exception to this general rule, however, where the agency to which the case is remanded seeks to appeal and it would have no opportunity to appeal after the proceedings on remand. See Gueory v. Hampton, 510 F.2d 1222, 1225 (D.C.Cir.1975); United States v. Alcon Laboratories, 636 F.2d 876, 884-85 (1st Cir.1981); Cohen v. Perales, 412 F.2d 44, 48 (5th Cir.1969); Stone v. Heckler, 722 F.2d 464, 467 (9th Cir.1983); Bender v. Clark, 744 F.2d 1424, 1428 (10th Cir.1984); Huie v. Bowen, 788 F.2d 698, 703 (11th Cir.1986). See also Mall Properties, 841 F.2d at 442-43 (dictum); Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161-63 (3d Cir.1981) (dictum); Cabot Corp., 788 F.2d at 1544 (dictum).

In these cases, the courts have focused largely on the issue of comparative irreparable harm that the Seventh Circuit identified as paramount in Palmer, see, e.g., Bender, 744 F.2d at 1427 ("[t]he critical inquiry is whether the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review"), and have stressed the agency's inability to pursue an appeal from its own later decision, id. at 1428; Cohen v. Perales, 412 F.2d at 48. As the SEC points out, when a district court directs an agency to proceed under a certain legal standard, the agency has no choice but to conduct its proceedings and to render its decision pursuant to that standard. Unless another party appeals that decision, the correctness of the district court's legal ruling will never be reviewed by the court of appeals, notwithstanding the agency's conviction that the ruling is erroneous.

We were presented with such a situation...