Banks v. Office Senate Sergeant-at-Arms Doorkeeper

• Decision Date: 15 December 2006
• Docket Number: No. 05-5335.,No. 05-5323.,No. 05-5322.,No. 05-5324.,05-5322.,05-5323.,05-5324.,05-5335.
• Citation: 471 F.3d 1341
• Parties: Roy BANKS, Appellee, v. OFFICE OF THE SENATE SERGEANT-AT-ARMS AND DOORKEEPER OF THE UNITED STATES SENATE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

471 F.3d 1341

Roy BANKS, Appellee, v. OFFICE OF THE SENATE SERGEANT-AT-ARMS AND DOORKEEPER OF THE UNITED STATES SENATE, Appellant.

No. 05-5322.

No. 05-5323.

No. 05-5324.

No. 05-5335.

United States Court of Appeals, District of Columbia Circuit.

Argued October 13, 2006.

Decided December 15, 2006.

Appeals from the United States District Court for the District of Columbia (No. 03cv00056) (No. 03cv00686) (No. 03cv02080).

Dawn R. Bennett-Ingold, Senate Assistant Counsel for Employment, Office of Senate Chief Counsel for Employment, argued the cause for appellant. With her on the briefs were Jean M. Manning, Senate Chief Counsel for Employment, and Matthew D. Keiser, Senate Senior Counsel for Employment.

William P. Farley argued the cause for appellee. With him on the brief was John F. Karl, Jr.

Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

On Petition for Writ of Mandamus

GRIFFITH, Circuit Judge.

This interlocutory appeal of a discovery sanction arises out of a suit brought by a former employee of the Office of the Senate Sergeant-at-Arms and Doorkeeper of the United States Senate ("SAA") alleging employment discrimination in violation of Title VII. During discovery, the SAA repeatedly failed to timely produce a privilege log in response to numerous appropriate requests from the plaintiff and without court permission. A magistrate judge ordered the SAA to pay plaintiff's attorney's fees incurred in his efforts to obtain the privilege log. The district court affirmed the sanction, and the SAA appeals asserting sovereign immunity from discovery sanctions. In the alternative, the SAA asks us to issue a writ of mandamus reversing the award. We dismiss the appeal because we lack jurisdiction under the collateral order doctrine to review a discovery sanction until the district court enters a final judgment. We deny the petition because the circumstances of this appeal are not extraordinary—alternative adequate relief is available to the SAA by way of appeal from a final judgment.

I.

This case came before the district court under § 1408 of the Congressional Accountability Act of 1995, as amended, 2 U.S.C. §§ 1301-1438 ("CAA"). See 2 U.S.C. § 1408(a) (2000). The CAA applies select provisions of eleven federal employment laws to congressional offices, see id. § 1302(a), including the SAA. The plaintiff, Roy Banks, a former employee of the SAA covered by the CAA, see id. § 1301(3)(b) and (4), alleged employment discrimination that violated Title VII of the Civil Rights Act of 1964.

The issue before us arose out of a dispute over the delayed production of a privilege log. Between July 2003 and January 2004, Banks served three document requests on the SAA. See Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 18 (D.D.C.2004) ("May Opinion"). To each, the SAA refused to provide any documents, asserting that any responsive documents would be covered by the attorney-client privilege. Id. Rule 26(b)(5) of the Federal Rules of Civil Procedure requires that a party claiming privilege as a reason to withhold documents must produce a privilege log. "When a party withholds information otherwise discoverable under [the Federal Rules] by claiming that it is privileged . . . the party shall . . . describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection." FED. R. CIV. P. 26(b)(5). The SAA failed to comply with this requirement. See May Opinion at 18. Rather than seek a protective order relieving it of this obligation or granting it more time to create one, the SAA merely promised by letters to Banks that a log was in preparation. See id. After several months of correspondence with the SAA, Banks turned to the court for help and filed a motion to compel production of the log, which was produced shortly thereafter. See Banks v. Office of Senate Sergeant-at-Arms, 226 F.R.D. 113, 115 (D.D.C.2005) ("February Opinion"). Banks then moved for sanctions against the SAA. See id. The magistrate judge found no reason in the record for the SAA's unapproved delay and ordered it to show cause why Banks should not be awarded attorney's fees and costs for having to file a motion to compel in the first instance. May Opinion at 21 (citing FED R. CIV. P. 37(a)(4)).

In response to the show cause order, the SAA argued that its obligation to file a privilege log did not arise until the court had first ruled on other objections to the production sought, see February Opinion at 113. The magistrate judge rejected this argument, describing it as a "post hoc rationalization" unsupported by law, id., and ordered the SAA to pay Banks' attorney's fees. Id. at 117. In his opinion, the magistrate judge observed that

case law would have alerted any lawyer with a healthy respect for his own skin to either produce the privilege log with the [non-privileged] documents her [sic] client was producing, negotiate some other arrangement with opposing counsel, or seek judicial relief from the obligation to produce a privilege log until a date certain or until some other event . . . . What a lawyer cannot do is ignore the obligation to produce a privilege log when the opposing party has repeatedly demanded it for several months, and then, without judicial approval, further delay its production once opposing counsel formally demanded the privilege log by a letter. Id.

The SAA filed a motion for reconsideration of the magistrate judge's order with the district court, arguing that Congress enjoys sovereign immunity from Rule 37 sanctions, Defendant's Motion for Reconsideration at 2 (Mar. 3, 2005), thus leaving the federal courts without authority to award attorney's fees to litigants who suffer from the misconduct of congressional lawyers. The district court summarily denied the SAA's motion on July 4, 2005. Order Denying Motion for Reconsideration (July 4, 2005). The SAA makes the same argument on appeal.

II.

Before we can examine the issue raised by the SAA—whether the district court has authority to impose Rule 37 sanctions on an office of the legislative branch—we must first determine our own authority to consider this appeal, which is being made prior to the entry of a final judgment in the district court. "Jurisdiction is, of necessity, the first issue for an Article III court." Tuck v. Pan Am. Health Org., 668 F.2d 547, 549 (D.C.Cir. 1981). Both parties acknowledge that the contested interim award of attorney's fees is not a final judgment and that we have no jurisdiction to review the sanction unless it falls within the narrow confines of the collateral order doctrine, which, as we discuss below, allows us in some instances to conduct immediate review of interlocutory orders. Following clear and settled precedent, we conclude that the decision to award Banks' attorney's fees under Rule 37 is reviewable on appeal from final judgment and is therefore not within our jurisdiction for review at this stage of the litigation. We do not grant mandamus relief for the same reason: the appellant has an adequate remedy at law and may appeal the contested decision following a final judgment. We find no threat to sovereign immunity sufficient to change this result.

Congress has limited our jurisdiction under 28 U.S.C. § 1291 to review of final district court decisions so that "[a]ppeal gives the upper court a power of review, not one of intervention," Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Among the values protected by this limitation is the preference for efficiency over the avoidance of temporary error. "In § 1291 Congress has expressed a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by piecemeal appellate review of trial court decisions which do not terminate the litigation," Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (internal quotation marks and citations omitted). The final judgment rule guards against the repeated interruption of district court proceedings and facilitates the orderly and effective conduct of a trial and the full development of a record for subsequent review. Id. It also relieves appellate courts from the immediate consideration of questions that might later be rendered moot, either because the party that lost the ruling prevails on the merits or because the issue fails to affect the final judgment in a manner warranting reversal. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 380, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987). The rule also preserves the role of the trial judge as initial adjudicator of legal and factual issues that arise during a case, and it limits parties' ability to "clog the courts through a succession of costly and time-consuming appeals," Flanagan v. United States, 465 U.S. 259, 264, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), which might drain their opponents' desire and capacity to pursue meritorious claims.

We have construed the final judgment rule strictly, repeatedly noting that a district court's decision is ordinarily not final until it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." In re Sealed Case (Medical Records), 381 F.3d 1205, 1209 (D.C.Cir.2004) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (internal quotation marks omitted)). The Rule 37 sanction imposed on the SAA neither ended the litigation nor left the court only to execute its judgment and would therefore not ordinarily be eligible for our review.

The final judgment rule is not, however, without nuance. It is qualified, for instance, by 28 U.S.C. § 1292(a), which provides ...