M.A. Mortenson Co. v. U.S.

Citation877 F.2d 50
Decision Date05 June 1989
Docket NumberNo. 89-1107,89-1107
Parties35 Cont.Cas.Fed. (CCH) 75,671 M.A. MORTENSON COMPANY, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Ronald A. Schechter, Jones, Day, Reavis & Pogue, Washington, D.C., argued for plaintiff-appellee. With him on the brief were Joseph D. West and Rosemary Maxwell.

Paula J. Barton, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellant. With her on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief was Kenneth B. MacKenzie, Office of General Counsel, Veterans Admin., Washington, D.C.

Before RICH and ARCHER, Circuit Judges, and NICHOLS, Senior Circuit Judge.

ORDER

ARCHER, Circuit Judge.

This appeal arises from the orders and partial judgment of the United States Claims Court, M.A. Mortenson Co. v. United States, 15 Cl.Ct. 362 (1988), awarding attorney fees as part of the sanctions against the United States (government) under Rule 37 of the Rules of the United States Claims Court (RUSCC) for its failure to comply with that court's orders of January 25 and March 15, 1988 compelling discovery.

A. An order imposing sanctions on a party for violating an order compelling discovery is neither a final order appealable under 28 U.S.C. Sec. 1295(a)(3) (1982) nor an appealable interlocutory order under 28 U.S.C. Sec. 1292(c) (1982). The order is appealable, if at all, under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Under Cohen "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (footnote omitted).

We will assume that the Claims Court's order imposing a monetary sanction against the government for discovery abuse meets the first two elements of the Cohen test. The order, however, has not been shown to be effectively unreviewable on appeal from a final judgment. As stated by Judge Posner in Mulay Plastics, Inc. v. Grand Trunk Western R.R. Co., 742 F.2d 369 (7th Cir.1984):

[The Cohen ] doctrine allows the immediate appeal of some orders which, while not injunctions and so not appealable under 28 U.S.C. Sec. 1292(a)(1), have the same effect as injunctions: they inflict irreparable harm. But an order to pay money as a sanction for the abuse of discovery usually does not--and in this case did not--inflict irreparable harm on the party ... ordered to pay. If, on appeal from the final judgment in this case, Grand Trunk convinces this court that the sanction should not have been imposed, it will get its money back then. There is no argument either that the appellee, a substantial corporation, will not be good for the trifling sum of money involved, if ultimately ordered to return it, or that the appellant, also a substantial corporation, will suffer a liquidity crisis by being deprived of this amount during the interim.

As there is nothing irreparable about the harm that the order to pay has done appellant, appeal under the Cohen doctrine is not permissible.

Id. at 370 (citations omitted). Other Courts of Appeal have similarly held that discovery sanction orders are not immediately appealable under the collateral order doctrine. See Schaffer v. Iron Cloud, Inc., 865 F.2d 690, 691 (5th Cir.1989); D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444-46 (10th Cir.1984) (en banc ); Kordich v. Marine Clerks Ass'n, 715 F.2d 1392, 1393 (9th Cir.1983) (per curiam); Eastern Maico Distributors, Inc. v. Maico Fahrzeugfabrik, G.m.b.H., 658 F.2d 944, 947 (3rd Cir.1981); In re Underwriters at Lloyd's, 666 F.2d 55, 58 (4th Cir.1981). See also Bennett Box & Pallet Co., Inc. v. United States, 218 Ct.Cl. 636 (1978) (deferring reviewability by the appellate division of the United States Court of Claims of a discovery sanction imposed by its trial division).

It has not been argued in this case that Mortenson, a substantial corporation, would be unable to repay the sanction if on later appellate review the court's order is ultimately found to be improper. Neither has the government argued that it would be harmed by parting with the money until a final judgment can be appealed. Accordingly, the immediate payment by the government cannot be characterized as rendering the sanction order effectively unreviewable.

B. In Jeannette Sheet Glass Corp. v. United States, 803 F.2d 1576, 1581-82 (Fed.Cir.1986), this court adopted the view enunciated in the case of Hooks v. Washington Sheraton Corp., 642 F.2d 614-17 (D.C.Cir.1980), that Rule 54(b) 1 "refers only to claims in the sense of the substantive right being asserted--the cause of...

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13 cases
  • M.A. Mortenson Co. v. U.S.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 9 Junio 1993
    ...of partial judgment was dismissed as interlocutory by this court pending entry of final judgment in the case. M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed.Cir.1989). Thereafter, all remaining claims between the parties were settled, and final judgment for $21,983 was entered on......
  • Buemi v. Kerckhoff
    • United States
    • Missouri Supreme Court
    • 4 Octubre 2011
    ...adoption of Rule 74.01(b), other federal courts have reached conclusions consistent with Mulay Plastics. E.g., M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed.Cir.1989) (award of sanctions not appealable under Rule 54(b) because not a substantive right or cause of action); Heffing......
  • MDK, Inc. v. Mike's Train House, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 22 Junio 1994
    ...to discovery rulings. See In re Insurers Syndicate, 864 F.2d at 210; Bever, 724 F.2d at 1087; see also M.A. Mortenson Co. v. United States, 877 F.2d 50, 51-52 (Fed.Cir.1989) (holding orders imposing certain noncontempt discovery sanctions nonreviewable under Cohen); In re Underwriters at Ll......
  • Buemi v. Kerckhoff
    • United States
    • Missouri Supreme Court
    • 2 Agosto 2011
    ...of Rule 74.01(b), other federal courts have reached conclusions consistent with Mulay Plastics. E.g., M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed. Cir. 1989) (award of sanctions not appealable under Rule 54(b) because not a substantive right or cause of action); Heffington v. ......
  • Request a trial to view additional results

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