Sealed Case No. 98-3077, In re

Decision Date03 August 1998
Docket Number98-3078,Nos. 98-3077,98-3079 and 98-3081,s. 98-3077
Citation151 F.3d 1059
PartiesIN RE: SEALED CASE NO. 98-3077.
CourtU.S. Court of Appeals — District of Columbia Circuit

On Petition For Writ Of Mandamus.

Kenneth W. Starr, Independent Counsel, argued the cause for petitioner, with whom Donald T. Bucklin, Scott T. Kragie, and Andrew W. Cohen were on the petition and reply.

David E. Kendall argued the cause for respondent William J. Clinton, with whom Nicole K. Seligman, Max Stier, Robert S. Bennett, Carl S. Rauh, Amy Sabrin, Katharine S. Sexton, W. Neil Eggleston, William J. Murphy, and William Alden McDaniel, Jr., were on the response.

Before: WALD, SILBERMAN, and HENDERSON, Circuit Judges.

PER CURIAM:

The Independent Counsel (IC) petitions for a writ of mandamus directing the district court to vacate its orders authorizing [ ] * to subpoena documents from the IC, conduct limited depositions of the IC and his staff, and subpoena the IC and his staff for similarly limited testimony at a show cause hearing relating to alleged violations of the grand jury secrecy rule. We conclude that we have power to determine the issues presented by the petition; resolving those issues in a substantially different way than the district court did, we issue the writ.

I.

[ ] 1 filed motions in the district court requesting that the court order Independent Counsel Kenneth W. Starr to show cause why he, and/or his staff, should not be held in contempt for violation of Federal Rule of Criminal Procedure 6(e)(2), which prohibits attorneys for the government from disclosing confidential grand jury information. 2 The movants alleged that the IC and his staff had divulged such information to the press, and provided the court with several news reports about the investigation wherein a reporter describes the source of the information as, to quote one illustrative example, "a source close to Starr." Appendix to Opposition to Emergency Motion to Stay the District Court's Orders, at Tab 1 (Thomas Galvin, Monica Keeping Mum--For Now Fends Off Query On Internal Affairs, DAILY NEWS, Jan. 23, 1998, at 26). The district court held that such news reports established a prima facie case of a violation of Rule 6(e)(2) because the "media reports disclosed information about 'matters occurring before the grand jury' and indicated that the sources of the information included attorneys and agents of the Government." Order to Show Cause, Misc. No. 98-55 (June 19, 1998), at 2 (quoting Barry v. United States, 865 F.2d 1317, 1321 (D.C.Cir.1989)).

The district court read our decision in Barry as holding that once a prima facie violation of Rule 6(e)(2) is established, the court is required to conduct an adversarial hearing at which the prosecutor must show cause why he should not be held in contempt. Order to Show Cause at 9 (citing Barry, 865 F.2d at 1321). Accordingly, the district court issued the two procedural orders at issue in this petition. The court first scheduled a show cause hearing. Order to Show Cause at 10. In the second order, it clarified the nature of the show cause hearing. The IC was ordered to produce, on July 11, the documents requested by movants, with any Rule 6(e) material redacted. 3 The court ruled that movants would be permitted to depose the IC and several of his staff, prior to the adversarial hearing, on three subject areas: (1) the IC's policy regarding press contacts, (2) actual contacts with the press by the IC or his staff, and (3) specific representations made by the IC about the first two subject areas. The court further ruled that movants could subpoena the IC and several of his staff for testimony at the show cause hearing, with the subject matter of the questioning to be limited in the same manner as during the depositions. Mem. Order, Misc. No. 98-55 (June 26, 1998), at 2. Finally, the court set forth the procedure to be followed at the show cause hearing: the hearing would begin with an ex parte presentation by the IC of any Rule 6(e) material the IC deems necessary to rebut the prima facie case; after the IC's presentation, movants' counsel would join the hearing, cross-examine the IC and his witnesses, and present their evidence. See id. at 4.

The IC filed a notice of appeal, followed by a motion for stay pending appeal. The district court subsequently declined to stay its orders, reasoning that the factors for granting a stay pending appeal were not met. Order, Misc. No. 98-55 (July 9, 1998). Specifically, the court found that the IC's likelihood of prevailing on the merits of its appeal was low given the court's conclusion that the orders are not even appealable; that the IC would not be irreparably harmed by the orders because the orders allowed him to redact any Rule 6(e) material and thus he would not be required to provide any confidential investigative material to movants; that the harm to movants of granting a stay was substantial because without an immediate show cause hearing, there would be no deterrence of future leaks in the interim before the appeal; and that the public interest in stopping leaks and in preserving respect for the judiciary's orders sealing grand jury proceedings outweighed any delay that might be caused by the show cause hearing and its associated discovery process.

On July 9, 1998, the same day the district court denied the IC's motion for a stay pending appeal, the IC petitioned us for mandamus relief. 4 Because discovery was set to begin on July 11, we ordered an administrative stay of the district court's procedural orders so that we would have sufficient opportunity to consider the merits of the petition for writ of mandamus. Order, No. 98-3077 (July 10, 1998). We now conclude that we have power to determine the issues presented in the petition; based on our analysis of those issues, we issue the writ.

II.

The writ of mandamus has been described as "an extraordinary remedy, to be reserved for extraordinary situations." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988) (citing Kerr v. United States Dist. Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). 5 As we recently observed, liberal use of the writ 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." In re Minister Papandreou, 139 F.3d 247, 249 (D.C.Cir.1998). Not surprisingly, the extraordinary nature of mandamus relief is reflected in the strict criteria for its issuance: Mandamus will issue only if the petitioner bears his "burden of showing that the petitioner's right to issuance of the writ is clear and indisputable," Gulfstream, 485 U.S. at 289, 108 S.Ct. 1133 (citation and internal quotation marks omitted), and that "no other adequate means to attain the relief" exist, Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). See Papandreou, 139 F.3d at 250.

A.

We take the latter requirement first. Respondent, referring us to our opinion in In re Kessler, 100 F.3d 1015 (D.C.Cir.1997), urges that petitioner has an adequate alternative means to challenge the district court's discovery orders. As respondent correctly observes, we stated in Kessler that "in the ordinary case, a litigant dissatisfied with a district court's discovery order must disobey the order, be held in contempt of court, and then appeal that [final] order on the ground that the discovery order was an abuse of discretion." Kessler, 100 F.3d at 1015; see also Papandreou, 139 F.3d at 250 ("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."); In re: Sealed Case, 141 F.3d 337, 339 (D.C.Cir.1998). Respondent argues that the disobedience and contempt path to appeal is an adequate means to relief, and that petitioner must therefore pursue it rather than seeking the extraordinary writ of mandamus.

Unfortunately, in Kessler, Papandreou, and In re: Sealed Case, the parties did not bring to our attention a longstanding distinction between civil and criminal contempt orders issued against a party to a litigation. While a criminal contempt order issued against a party is considered a final order and thus appealable forthwith under 28 U.S.C. § 1291, Bray v. United States, 423 U.S. 73, 76, 96 S.Ct. 307, 46 L.Ed.2d 215 (1975); Matter of Christensen Engineering Co., 194 U.S. 458, 461, 24 S.Ct. 729, 48 L.Ed. 1072 (1904); SEC v. Simpson, 885 F.2d 390, 395 n. 7 (7th Cir.1989), a civil contempt order issued against a party is typically deemed interlocutory and thus not appealable under 28 U.S.C. § 1291, Fox v. Capital Co., 299 U.S. 105, 107, 57 S.Ct. 57, 81 L.Ed. 67 (1936); Doyle v. London Guarantee & Accident Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907); International Ass'n of Machinists & Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481, 1484 (D.C.Cir.1988); Duell v. Duell, 178 F.2d 683, 687 (D.C.Cir.1949) (describing the rule as "thoroughly settled"); In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 765 (7th Cir.1994). Indeed, we reaffirmed the rule that a civil contempt order issued against a party is not appealable as recently as SEC v. Finnegan, No. 97-5272, 1998 WL 65530, at * 1 (D.C.Cir. Jan. 13, 1998).

The confusion in our caselaw may be a product of several factors. For one, the authoritative Supreme Court cases on these issues are rather old and are not frequently cited. For another, the distinction between civil and criminal contempt orders for purposes of appealability by a party has been criticized, see Powers v. Chicago Transit Auth., 846 F.2d 1139, 1141 (7th Cir.1988) (noting that although "many modern commentators believe that the rule postponing review [of a civil contempt order issued against a party]...

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