U.S. v. Dickstein

• Decision Date: 04 May 1992
• Docket Number: No. 90-5236,90-5236
• Citation: 971 F.2d 446
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. DICKSTEIN, Movant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 446

971 F.2d 446

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey A. DICKSTEIN, Movant-Appellant.

No. 90-5236.

United States Court of Appeals, Tenth Circuit.

May 4, 1992.

William A. Cohan, Cohan & Greene, Encinitas, Cal. (Jeffrey A. Dickstein, Tulsa, Okl., pro se, submitting the briefs), for movant-appellant.

Kenneth P. Snoke, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty. and Neal B. Kirkpatrick, Asst. U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Before ANDERSON, BARRETT and BRORBY, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The United States District Court for the Northern District of Oklahoma appointed appellant Jeffrey A. Dickstein pro hac vice to represent James Mauldin in a criminal matter involving alleged violations of the laws of the United States. After a mistrial was declared, Dickstein's permission to appear was revoked due to conduct the district court considered improper and beyond tolerable bounds. Dickstein appeals the order revoking that permission. We hold that we lack jurisdiction to hear his appeal because the order revoking his pro hac vice status is a nonfinal order which is not appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

BACKGROUND

James Mauldin was charged with conspiracy and making a false statement to a government department, in violation of 18 U.S.C. §§ 371 and 1001, respectively. Dickstein was granted permission by order made in open court to represent Mauldin pro hac vice. After an eighteen day trial, the jury deadlocked and a mistrial was declared. Prosecution is still ongoing. Nine days after the mistrial was declared, the district court issued an "Order to Show Cause" directing Dickstein to show cause why his permission to appear pro hac vice should not be revoked, because of various instances of allegedly inappropriate and disruptive behavior throughout the trial. Twelve days later, Dickstein filed a 31-page response, seeking dismissal of the Order to Show Cause and moving to have the district court judge recused.

On October 25, the district court issued its order revoking Dickstein's pro hac vice status. Dickstein unsuccessfully petitioned this court for a writ of mandamus to overturn the order, Dickstein v. Brett, unpub. order (10th Cir. Dec. 10, 1990). Dickstein now appeals from the October 25 order revoking his pro hac vice status, arguing that he was entitled to due process prior to that revocation, including compliance with local rules governing the dismissal of members of the Oklahoma Bar. By letter dated January 22, 1991, this court sua sponte asked the parties to address the question of whether we had jurisdiction to hear this appeal, particularly in view of the decision of the United States Supreme Court in Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). The issue was deferred to the merits panel until full argument both on the merits and the jurisdictional issue. Upon consideration, we dismiss the appeal for lack of jurisdiction. We therefore do not reach the merits.

DISCUSSION

Jurisdiction is a threshold matter. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.") (emphasis added). Dickstein argues we have jurisdiction either because the order revoking his pro hac vice status is a final order appealable under 28 U.S.C. § 1291 or it falls within the collateral order exception developed in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949), and subsequent cases. We discuss each possibility in turn.

I.

"As a general rule, only final decisions of the district courts are appealable." Tri-State Generation & Transmission Assoc., Inc. v. Shoshone River Power, Inc., 874 F.2d 1346, 1351 (10th Cir.1989); see 28 U.S.C. § 1291; see also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981) (final judgment rule requires that "a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits"); G.J.B. & Assoc., Inc. v. Singleton, 913 F.2d 824, 827 (10th Cir.1990). A final decision generally is "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); see also Primas v. City of Oklahoma City, 958 F.2d 1506 at 1513 (10th Cir.1992); G.J.B. & Assoc., Inc., 913 F.2d at 827; Doughty v. Bowen, 839 F.2d 644, 645 (10th Cir.1988).

In Flanagan v. United States, 465 U.S. 259, 260, 104 S.Ct. 1051, 1052 (1984), the Supreme Court held that "a District Court's pretrial disqualification of defense counsel in a criminal prosecution is not immediately appealable under 28 U.S.C. § 1291." Appeal from such disqualification must await entry of final judgment (conviction and imposition of sentence) in the underlying criminal case. The Court observed that the policy of prohibiting piecemeal appeals is " 'at its strongest in the field of criminal law.' " Id. 465 U.S. at 264, 104 S.Ct. at 1054 (quoting United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982)).

We conclude that the Flanagan rule applies with equal force to a disqualification order appealed by the attorney personally before resolution of the underlying controversy. Thus, the order revoking Dickstein's pro hac vice status is not a "final decision" under 28 U.S.C. § 1291. See Firestone Tire & Rubber Co., 449 U.S. at 373-75, 101 S.Ct. at 673-74; G.J.B. & Assoc., Inc., 913 F.2d at 827. The question remains whether the order is immediately appealable under the collateral order exception to the final judgment rule of section 1291.

II.

Departure from the final judgment rule is permitted " 'only when observance of [the rule] would practically defeat the right to any review at all.' " Flanagan, 465 U.S. at 265, 104 S.Ct. at 1054 (quoting Cobbledick v. United States, 309 U.S. 323, 324-25, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940)). Thus, only orders coming within the "collateral order" exception of Cohen may be appealed prior to conclusion of the underlying case.

Under the Cohen collateral order doctrine:

A nonfinal district court decision is ... appealable under [section 1291] if it "finally determine[s] claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

Workman v. Jordan, 958 F.2d 332, at 334 (10th Cir.1992) (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26). As we noted in Doughty, the Cohen collateral order exception, as further explained in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), applies to orders sharing three important characteristics: they must conclusively resolve a disputed question; they must resolve an issue completely separate from the merits of the underlying action; and they must be effectively unreviewable on appeal from a final judgment in the underlying action. Doughty, 839 F.2d at 646. See Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458 (footnote omitted); Workman, 958 F.2d 332, at 334. The Flanagan Court observed that "[b]ecause of the compelling interest in prompt trials, the Court has interpreted the requirements of the collateral-order exception to the final judgment rule with the utmost strictness in criminal cases." 465 U.S. at 265, 104 S.Ct. at 1055; see also D & H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1445 (10th Cir.1984) (en banc) (court observed the "narrowing view of the exception's applicability in criminal cases, even where important constitutional considerations are involved.").

The parties cite us, and our research reveals, no case directly on point. A number of cases, however, provide helpful and persuasive guidance. In Flanagan, the appellants were the criminal defendants who claimed that their constitutional rights had been infringed by the pretrial disqualification of counsel of their choice, and who sought immediate review of the order disqualifying the counsel. Applying its maxim that it construes the collateral order doctrine strictly in criminal cases, the Court rejected the argument that the order was immediately reviewable under the Cohen doctrine.

The Court straightforwardly applied the three Cohen/ Coopers & Lybrand requirements. After acknowledging that a pretrial disqualification order was final, the Court nonetheless concluded that it either failed to meet the second Cohen/ Coopers & Lybrand requirement (that the order be totally separate from the merits) or the third requirement (that it be effectively unreviewable on appeal). ¹ It noted that only three types of pretrial orders in criminal cases have been found to meet the requirements of the collateral order doctrine, and pretrial disqualification of counsel is not analogous to any of them. The Court also emphasized the delay attendant upon immediate review of such an order, and that delay "would severely undermine the policies behind the final judgment rule." Flanagan, 465 U.S. at 270, 104 S.Ct. at 1057.

Flanagan is not entirely dispositive of the precise issue here--whether the order revoking Dickstein's pro hac vice status is immediately appealable by Dickstein himself. As indicated, the appellants in Flanagan were the defendants, who claimed that their Sixth and Fifth Amendment rights were adversely affected by the disqualification of counsel of their choice. By contrast, Dickstein argues the order revoking his pro hac vice status immediately affected his own reputation and his ability to practice his chosen profession and he runs the risk of never being able to...