Grand Jury Subpoena of Rochon, Matter of
| Decision Date | 28 April 1989 |
| Docket Number | No. 88-1817,88-1817 |
| Citation | 873 F.2d 170 |
| Parties | 49 Fair Empl.Prac.Cas. 1183, 50 Empl. Prac. Dec. P 39,047, 57 USLW 2722 In the Matter of GRAND JURY SUBPOENA OF Donald and Susan ROCHON. Appeal of UNITED STATES of America. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Irving Gornstein, Dept. of Justice, Washington, D.C., for appellant.
Adam Thurschwell, Kairys & Rudovsky, Philadelphia, Pa., for appellee.
Before BAUER, Chief Judge, POSNER, and RIPPLE, Circuit Judges.
Donald Rochon is a black Federal Bureau of Investigation (FBI) Special Agent currently assigned to the Philadelphia field office. Before transferring to the Philadelphia office, Rochon worked at the FBI's Omaha and Chicago offices. In October 1984, Rochon charged in an equal employment opportunity (EEO) complaint filed with the FBI that fellow FBI employees at the Omaha office subjected him to racial harassment. In January 1986, Rochon filed a second EEO complaint, this time alleging racial harassment--including threats of death and dismemberment--by Chicago FBI employees. Three months later, Rochon sent a packet of materials concerning the Chicago incidents and a request for a criminal investigation to the Justice Department's Office of Professional Responsibility (OPR), which in June 1986 referred Rochon's charges to the Civil Rights Division (CRD), the government's enforcer of federal civil rights statutes. CRD's Criminal Section then began an investigation of Rochon's charges.
The start of the Criminal Section's investigation apparently stopped the FBI's investigation of Rochon's EEO complaint. For in July 1986, the Criminal Section asked the FBI to delay the latter and, instead, assist with the former, which the FBI did. In December 1987, after spending seventeen months investigating possible criminal activity on the part of its Chicago employees, the FBI referred the evidence it had collected back to the Criminal Section, which in turn recommended that a grand jury be empaneled.
On December 11, 1987, Rochon commenced civil actions in the federal district courts for the District of Columbia and the Northern District of Illinois. In the more-comprehensive District of Columbia action, Rochon alleged that FBI employees had subjected him to racial harassment at the Omaha and Chicago offices in violation of the First, Fourth, and Fifth Amendments, Title VII of the Civil Rights Act of 1964, and Nebraska and Illinois common law. Rochon also alleged that CRD and its Criminal Section had conducted the criminal investigation into his charges of harassment at the Chicago office in bad faith and for the purpose of delaying the resolution of his EEO complaints concerning the same incidents. Rochon named as defendants in the District of Columbia action the FBI and several of its agents, as well as the Attorney General (then Edwin Meese, III) and the Assistant Attorney General for Civil Rights (AAG) (then William Bradford Reynolds) in their official capacities.
Nevertheless, in January 1988, AAG Reynolds authorized the Criminal Section to empanel the grand jury, which began hearing evidence in February. In March, the grand jury subpoenaed Rochon and his wife, Susan Rochon, to testify. In response, the Rochons filed an emergency motion in the district court to disqualify the Attorney General, the AAG for Civil Rights, and the entire CRD staff from participating in the grand jury investigation.
On March 23, 1988, the district court denied the Rochons' motion to disqualify CRD attorneys who are not defendants in the civil cases, 686 F.Supp. 195. The court saw The Attorney General and the AAG for Civil Rights, however, were a different story. The district court was troubled by "the appearance of possible impropriety" in the Attorney General's and the AAG for Civil Rights' dual roles as prosecutors and civil defendants. The court thought it "unseemly for a party to a civil lawsuit to be conducting a grand jury investigation into the identical subject matter." Moreover, in the court's view, the possibility that the Attorney General or the AAG could use information obtained from the grand jury investigation in preparing their defenses to Rochon's civil action was "undeniable." Accordingly, the court concluded that the Attorney General and the AAG "must be prevented from acquiring grand jury information that could be used in the civil case" in order to prevent a violation of Fed.R.Crim.P. 6(e).
On August 11, 1988, while the government's appeal from the district court's disqualification order was pending in this court, the district court for the District of Columbia dismissed the AAG for Civil Rights (still Reynolds) as a defendant in that civil suit. The very next day, Richard Thornburgh replaced Edwin Meese as Attorney General. In light of these developments, the government moved the district court to vacate its disqualification of AAG Reynolds from participation in the grand jury investigation, and to clarify whether its March 23, 1988 order applied to the new Attorney General, Mr. Thornburgh. 1 The district court granted the government's request as to AAG Reynolds, finding "no reason to bar Mr. Reynolds from the investigation" now that he was no longer a defendant in the civil suit and noting that the Rochons did not oppose that part of the government's motion. The court, however, refused to modify its order with respect to Mr. Thornburgh. Although the district court conceded "that a finding of [DOJ] misconduct would be no blemish on the reputation of Mr. Thornburgh," the court believed "that [its] March 23 discussion of the problems attending Mr. Meese's participation in the grand jury investigation applies with almost equal force to the proposed participation of Mr. Thornburgh."
This is the government's appeal from the district court's disqualification order prohibiting Attorney General Thornburgh from participating in the grand jury investigation. Before we may examine that ruling, however, we must determine whether the district court's order is immediately appealable as a final "collateral order" under 28 U.S.C. Sec. 1291, which vests the courts of appeals with "jurisdiction of appeals from all final decisions of the district courts ... except where a direct review may be had in the Supreme Court." Normally, a party may not take an appeal under section 1291 until there has been "a decision by the District Court that 'ends the litigation on merits and leaves nothing for the court to do but execute the judgment,' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)), and clearly the district court's order disqualifying Attorney General Thornburgh does not fall into that category. The Supreme Court has, however, recognized a "narrow exception to the requirement that all appeals under Sec. 1291 await final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). To fall within this limited class of final "collateral orders" appealable under section 1291, the district court's 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, 437 U.S. at 468, 98 S.Ct. at 2457 (footnote omitted).
District court orders granting or denying motions to disqualify counsel in civil cases fail this test because such orders are appealable after final judgment. Firestone Tire & Rubber Co. v. Risjord, supra, 449 U.S. at 377, 101 S.Ct. at 675; Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). As the Supreme Court pointed out in Firestone, if the court of appeals in such cases concluded after trial that denying or permitting continued representation of an aggrieved party was prejudicial error, the court could vacate the judgment appealed from and order a new trial. Id. 449 U.S. at 378, 101 S.Ct. at 675. Similarly, pretrial orders disqualifying defense counsel in criminal cases also are not immediately appealable as "collateral orders" under section 1291. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). In such a case, as the Court explained in Flanagan,
if establishing a violation of [petitioners'] asserted right requires no showing of prejudice to their defense, a pretrial order violating the right ... is not 'effectively unreviewable on appeal from a final judgment.' If, on the other hand, petitioners' asserted right is one that is not violated absent some specifically demonstrated prejudice to the defense, a disqualification order ... though final, is not independent of the issues to be tried. Its validity cannot be adequately reviewed until trial is complete.
Id. at 268-69, 104 S.Ct. at 1056-57.
An order disqualifying government counsel in a criminal case, however, is a different matter, for if it is not immediately appealable, it is effectively unreviewable. For example, in this case, if the grand jury declines to issue any indictments, the government could not appeal because the case would be over. If the grand jury does issue indictments and any defendants subsequently are found guilty, the government, of course, would not seek review. If, on the other hand, any defendants were found not guilty, appellate review of the district court's disqualification order would be precluded by the double jeopardy clause. Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962)....
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In re U.S.
...proceedings, subject, of course, to the broader constitutional principle of the separation of powers. See In re Grand Jury Subpoena of Rochon, 873 F.2d 170, 174 (7th Cir.1989) ("[A]lthough the grand jury is subject to a supervisory power in the courts, aimed at preventing abuses of its proc......
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U.S. v. Santiago-Rodriguez, 97-098 (HL).
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