Grand Jury Proceedings (U. S. Steel-Clairton Works), In re, STEEL-CLAIRTON

• Decision Date: 20 October 1975
• Docket Number: Nos. 75-1450 and 75-1456,STEEL-CLAIRTON,s. 75-1450 and 75-1456
• Citation: 525 F.2d 151
• Parties: , 6 Envtl. L. Rep. 20,205 In re GRAND JURY PROCEEDINGS (U. S.WORKS), United States of America, Appellant. In re GRAND JURY PROCEEDINGS (U. S. WORKS), United States of America, Petitioner.
• Court: U.S. Court of Appeals — Third Circuit

Page 151

525 F.2d 151

8 ERC 1702, 6 Envtl. L. Rep. 20,205

In re GRAND JURY PROCEEDINGS (U. S. STEEL-CLAIRTON WORKS) United States of America, Appellant. In re GRAND JURY PROCEEDINGS (U. S STEEL-CLAIRTON WORKS), United States of America, Petitioner.

Nos. 75-1450 and 75-1456.

United States Court of Appeals Third Circuit.

Argued Sept. 2, 1975.

Decided Oct. 20, 1975.

Wallace H. Johnson, Washington, D. C., Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., Edmund B. Clark, Bradford F. Whitman, John J. Zimmerman, Washington, D. C., for appellant and petitioner.

Walter T. McGough, Gilbert J. Helwig, J. Tomlinson Fort, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for United States Steel Corp.

Before VAN DUSEN, ADAMS and HUNTER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This is an appeal from a district court's order staying all further proceedings before a federal grand jury pending a final judgment in a civil contempt action brought against the United States Steel Corporation by state and county officials in a Pennsylvania state court. Because we conclude that the district court erred in granting the stay, we vacate that stay and remand for such further proceedings as may be required consistent with this opinion.

I

The roots of the instant controversy are, to a great extent, found in a September 25, 1972, consent decree entered in an action by the Commonwealth of Pennsylvania and Allegheny County against United States Steel Corporation (U. S. Steel) in the Court of Common Pleas of Allegheny County. ¹ The consent decree modified earlier state and county limitations on emission of particulate matter and sulfur oxides from the coke ovens of U. S. Steel's Clairton, Pennsylvania Coke Works. While the United States was not a party to the consent decree, it subsequently approved the emission standards on March 22, 1973 as a revision of Pennsylvania's Clean Air Act Implementation Plan. ² Thereafter, these standards became federally enforceable under section 113 of the Clean Air Act, 42 U.S.C. § 1857c-8. ³

On March 27, 1973, the Commonwealth of Pennsylvania and Allegheny County instituted a civil contempt action against U. S. Steel for failure to comply with the limitations set forth in the consent decree. ⁴ In that action, U. S. Steel asserted that the limitations were technologically impossible of achievement and asked the state court to modify the September 25, 1972, consent decree by adopting new coke oven door emission standards. The state action was still pending at the time the district court entered its stay on March 6, 1975. ⁵

Pursuant to section 113 of the Clean Air Act, 42 U.S.C. § 1857c-8, on November 8, 1973, the United States Government issued notices to U. S. Steel of violation of emission limitations and compliance schedules contained in the federally approved Pennsylvania Clean Air Act Implementation Plan, as modified by the September 25, 1972, consent decree. The federal grand jury here involved was empanelled on October 22, 1974, for an 18-month term, to investigate the possible criminal violations of the Clean Air Act, 42 U.S.C. § 1857 et seq., by U. S. Steel at its Clairton Works. On November 27, 1974, subpoenas duces tecum were served by the Government on sixteen employees and executives of U. S. Steel. The subpoenas directed the sixteen individuals to appear before the grand jury and ordered them to produce numerous documents relating primarily to the level of smoke emissions from the coke oven doors at the Clairton Works.

U. S. Steel produced the requested documents on January 7, 1975 ⁶ but continued to resist those parts of the subpoenas that required the appearance of the U. S. Steel employees before the grand jury.

A hearing was set for February 3, 1975 by the district court on U. S. Steel's motion to "modify, limit or quash" the subpoenas or to stay the grand jury proceeding pending a final judgment in the state civil contempt action. The asserted bases for U. S. Steel's motions were that:

1) the prior pending state proceedings were a bar to simultaneous federal enforcement of the coke oven door emission standards;

2) the Government refused to comply with the requirements established by this Court in Schofield I ⁷ and II ⁸; and

3) prejudicial publicity allegedly initiated by the Government's actions foreclosed impartial consideration by the grand jury.

The district court filed a memorandum opinion on March 6, 1975, in which the court granted U. S. Steel's motion to stay the grand jury's proceedings. In its opinion, the court expressly refused to address either the Schofield or publicity issues. ⁹ Rather, after reviewing the legislative history of sections of the Clean Air Act, the court held that Congress "did not intend to authorize dualistic enforcement proceedings against polluters based upon the same violations of emission limitations which are incorporated in the same implementation plan." Thus, ruled the district court, since the Commonwealth of Pennsylvania had already instituted proceedings to enforce the coke oven door limitations at the Clairton Works, the United States was completely prohibited from continuing its investigation before the grand jury pending a final judgment in the state suit.

The instant appeal followed the district court's stay. Thereafter, the Government also filed a petition for mandamus, which was consolidated with the appeal.

II

The first issue that confronts this court is whether we have jurisdiction to review the action of the district court. Appellant urges three bases for jurisdiction in this matter: 1) 28 U.S.C. § 1291; ¹⁰ 2) 28 U.S.C. § 1292(a)(1); ¹¹ and 3) 28 U.S.C. § 1651(a). ¹² Because we conclude that the lower court's stay is appealable as a "final decision" within the meaning of section 1291, we need not discuss the other asserted bases for jurisdiction. It should be noted, however that even if the district court's order is not appealable as such, petitioners would, in any event, be entitled to review by mandamus. ¹³

That appellate review is restricted to "final decisions," has long been the dominant rule of federal appellate procedure. Cobbledick v. United States, 309 U.S. 323, 324, 60 S.Ct. 540, 84 L.Ed. 783 (1940); see McGourkey v. Toledo & Ohio R. R., 146 U.S. 536, 544-45, 13 S.Ct. 170, 36 L.Ed. 1079 (1892); First Judiciary Act §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85 (1789). The rule serves to prevent the "debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). Because piecemeal review is especially damaging to the conduct of criminal cases, the final judgment requirement applies with particular force in criminal appeals. DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Cobbledick v. United States, supra, 309 U.S. at 324-26, 60 S.Ct. 540.

While the rule and its purposes can be stated with ease, the determination of the finality of an individual order is often a difficult task. The Supreme Court has counselled that the requirement of finality is to be given a "practical rather than a technical construction," Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), and that a "pragmatic approach" to finality is essential to achieving a healthy legal system, Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). Applying these principles to the facts of the instant case, we find the district court's order to be final.

The district court's indefinite stay of the grand jury's proceedings has the practical effect of a dismissal of the proceedings. See Amdur v. Lizars, 372 F.2d 103, 105-06 (4th Cir. 1967). ¹⁴ This grand jury's term expires in April 1976. The state court action already has consumed more than two years and, due to the complexity of the issues presented, likely will continue beyond the grand jury's April 1976 expiration date. ¹⁵ Investigation and possible prosecution of criminal violations of the Clean Air Act is effectively precluded by the district court's stay. ¹⁶

Appellee contends that several decisions of the Supreme Court require this court to conclude that the district court's order is not appealable. In United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), DiBella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962) and Cobbledick v. United States, 309 U.S. 323, 327-28, 60 S.Ct. 540, 84 L.Ed. 783 (1940), the Supreme Court held that certain district court orders granting or denying motions to quash subpoenas or to suppress evidence were not final orders within the meaning of section 1291. ¹⁷ One who seeks to resist the production of requested information must either comply with the orders or resist them and by doing so, risk the possibility of contempt. ¹⁸

The policy underlying these Supreme Court decisions was to avoid the disruption of grand jury proceedings that piecemeal appeals necessarily involve. If an immediate appeal could be taken from every court order concerning matters before a grand jury, years would pass before any grand jury could complete its investigation. Indeed, the grand jury's term might expire before the appeals could run their course. "To be effective," the Cobbledick Court admonished, "judicial administration must not be leaden-footed"; "(o) pportunity for obstructing the 'orderly progress' of investigation should . . . (not) be encouraged." ¹⁹

Our conclusion that the district court's stay is appealable does not frustrate this policy. Permitting appeal in this instance does not involve this Court in the sort of mini-trials that the Supreme Court sought to avoid. Unlike Ryan, DiBella and Cobbledick, which merely concerned particular orders to individual witnesses pertaining to specific evidence, the district court's...