Papandreou, In re

Citation1998 WL 163561,139 F.3d 247
Decision Date10 April 1998
Docket NumberNo. 97-7191,97-7191
PartiesIn re Minister PAPANDREOU et al., Petitioners, Rosemarie Marra and Marrecon Enterprises, S.A., Respondents, United States of America, Amicus Curiae supporting Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 96cv01535).

Richard L. Brusca argued the cause for petitioners. With him on the briefs were Katharine S. Sexton and Rachel Mariner, Washington, DC.

Mark H. Alcott, New York City, argued the cause and filed the brief for respondents.

John S. Koppel, Attorney, U.S. Department of Justice, argued the cause for amicus curiae the United States. With him on the briefs were Frank W. Hunger, Assistant Attorney General, Mary Lou Leary, Acting U.S. Attorney at the time the brief was filed, Stephen W. Preston, Deputy Assistant Attorney General, U.S. Department of Justice, Michael Jay Singer, Attorney, and Linda Jacobson, Assistant Legal Adviser for Diplomatic Law and Litigation, U.S. Department of State, Washington, DC.

Before: WILLIAMS, HENDERSON and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Concurring opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.


The petitioners seeking mandamus in this court, Greek Minister of Tourism Vaso Papandreou and other Greek governmental entities, are defendants in an action in district court (the "Greek Government Defendants"). The plaintiffs in that action, respondents here, are Rosemarie Marra and Marrecon Enterprises, a Liberian corporation of which Marra is president and sole shareholder. Marrecon holds a nine per cent interest in a consortium that paid $44 million for a license to operate a casino in Athens. About a year after issuing the license, the Greek government revoked it and offered to refund the $44 million. In the underlying action plaintiffs seek damages for a breach of contract and an unlawful confiscation of property. The Greek Government Defendants have sought dismissal on several grounds, among them standing defects, the act of state doctrine, lack of personal jurisdiction, the doctrine of forum non conveniens, and the jurisdictional bar of the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. §§ 1330, 1602-1611.

Plaintiffs in the district court sought discovery aimed at evaluation of the FSIA defense, including depositions of Minister Papandreou and Minister of the Economy Gianos Papantoniou, which they say are designed to dig up information on the scope and nature of the defendants' solicitation of U.S. investment in the casino. The district court authorized the depositions, and the Greek Government Defendants now petition for a writ of mandamus to vacate that discovery order. Finding that the district court failed to consider less intrusive means of obtaining the information the respondents seek, we issue the writ.

* * *

Mandamus is a "drastic" remedy, "to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976). One reason for this parsimony is obvious: petitions for mandamus are close substitutes for appeals. Lax rules on mandamus would undercut the general rule that courts of appeals have jurisdiction only over "final decisions of the district courts," 28 U.S.C. § 1291, and would lead to piecemeal appellate litigation. Of course, even under § 1291 a final judgment in the conventional sense of the term is not always necessary; under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), a "collateral order" will do. But again, undue expansion of mandamus jurisdiction would circumvent the bounds of the collateral order doctrine, whether the doctrine is viewed as creating an exception to the requirement of finality or as constituting a special form of finality. See generally In re Sandahl, 980 F.2d 1118, 1119-21 (7th Cir.1992) (comparing collateral order review and mandamus in context of order disqualifying lawyer).

Though similar, the Cohen and mandamus criteria differ slightly. Mandamus is said to issue only upon a showing that the petitioner's right is "clear and indisputable," Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988), and that "no other adequate means to attain the relief" exist, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). Cohen requires that the challenged order "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, 2458, 57 L.Ed.2d 351 (1978). The two clearly have one element in common: mandamus's "no other adequate means" requirement tracks Cohen's bar on issues effectively reviewable on ordinary appeal. But mandamus does not share Cohen's requirement that the issue be separable from the merits (though this seems likely to overlap with inadequacy of ordinary appellate review); instead, mandamus demands an indisputable right--"clear abuse of discretion or 'usurpation of judicial power.' " Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) (quoting De Beers Consolidated Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945)). "[O]ur cases have answered the question as to the availability of mandamus in situations such as this with the refrain: 'What never? Well, hardly ever!' " Allied Chemical, 449 U.S. at 36, 101 S.Ct. at 190 (emphasis in original). This Pinafore test is an exacting one, but as the following discussion shows, we think that petitioners meet it.

* * *

We first consider the availability of other means of relief. The ordinary way for a party to obtain quick appellate review of a discovery order is simply to disobey it. If held in contempt, a litigant then has a final order from which he may appeal, asserting any legal flaws in the underlying discovery order. See, e.g., Church of Scientology of California v. United States, 506 U.S. 9, 18 n. 11, 113 S.Ct. 447, 452 n. 11, 121 L.Ed.2d 313 (1992) (citing United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 1581-82, 29 L.Ed.2d 85 (1971)).

Mandamus has been recognized as an appropriate shortcut when holding a litigant in contempt would be problematic. In United States v. Nixon, 418 U.S. 683, 691-92, 94 S.Ct. 3090, 3099-100, 41 L.Ed.2d 1039 (1974), the Court found a problem, in full measure, for discovery against the President; it would be "unseemly" to require him to put himself in the position of disobeying a court order, would create an occasion for an inter-branch confrontation, and would even raise a further question of whether the President could be cited for contempt at all. Id. Some circuits have extended the idea, and have been ready to grant mandamus to vacate orders compelling the testimony of a broad range of executive officials unless the proponent of the order could show extraordinary circumstances. See, e.g., In re FDIC, 58 F.3d 1055, 1060 (5th Cir.1995) (members of the FDIC's Board of Directors); In re United States, 985 F.2d 510, 512 (11th Cir.1993) (Commissioner of the FDA). We, however, have indicated a great reluctance to do so. Given the unique status of the President, see Franklin v. Massachusetts, 505 U.S. 788, 800-01, 112 S.Ct. 2767, 2775-76, 120 L.Ed.2d 636 (1992), 1 we have found that to stretch the doctrine beyond him would raise severe line-drawing problems. Dealing with the FDA Commissioner, we declined relief where he failed to offer any principled line that would have placed him above the 350 other appointees at Executive Level IV of the executive establishment. in rE kessler, 100 F.3d 1015, 1017-18 (D.C.cir.1997). we leave for another day whether Nixon's inter-branch comity considerations could justify use of mandamus to review orders to depose domestic cabinet ministers, because, as we shall see, the deposition of Greek cabinet ministers raises distinctive issues.

Another type of recognized problem sometimes justifying mandamus has been a claim of privilege. See, e.g., Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir.1994). Disclosure followed by appeal after final judgment is obviously not adequate in such cases--the cat is out of the bag. The harder question is whether litigants asserting claims of privilege may not be forced to disobey and risk contempt--a question little addressed in the cases. Decisions demanding more than a lack of effective reviewability at the end of the main case have commonly asked whether the petition raises important issues. See, e.g., In re Long Island Lighting Co., 129 F.3d 268, 270 (2d Cir.1997); Barclaysamerican Corp. v. Kane, 746 F.2d 653, 655 (10th Cir.1984).

Again we need not take a position on the issue, because petitioners' immunity claim has special characteristics beyond those of ordinary privilege. The typical discovery privilege protects only against disclosure; where a litigant refuses to obey a discovery order, appeals a contempt order, and wins, the privilege survives unscathed. For an immunity, this is not good enough. "[S]overeign immunity is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits." Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C.Cir.1990) (internal quotation omitted). The infliction of those burdens may compromise it just as clearly as would an ultimate determination of liability. For that reason a trial court's denial of an immunity defense entitles the defendant to an immediate appeal under Cohen. See, e.g., Midland Asphalt Corp. v. United States...

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