U.S. v. Mellon Bank, N. A., No. 76-1661

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore SEITZ, Chief Judge, and HUNTER and GARTH; JAMES HUNTER, III
Citation545 F.2d 869
Parties77-1 USTC P 9103 UNITED STATES of America, Appellee, v. MELLON BANK, N. A., and Milton F. Meissner, Intervenor Respondent-Appellant.
Decision Date07 December 1976
Docket NumberNo. 76-1661

Page 869

545 F.2d 869
77-1 USTC P 9103
UNITED STATES of America, Appellee,
v.
MELLON BANK, N. A.,
and
Milton F. Meissner, Intervenor Respondent-Appellant.
No. 76-1661.
United States Court of Appeals,
Third Circuit.
Argued Oct. 19, 1976.
Decided Dec. 7, 1976.

Page 870

Scott P. Crampton, Gilbert E. Andrews, Jr., Carleton D. Powell, Tax Div., Dept. of Justice, Washington, D. C., Jeffrey S. Blum, Blair A. Griffith, Pittsburgh, Pa., for appellee.

R. Kenly Webster, Kennedy & Webster, Washington, D. C., Edward C. Schmidt, Rose, Schmidt & Dixon, Pittsburgh, Pa., for appellant.

Before SEITZ, Chief Judge, and HUNTER and GARTH, Circuit Judges.

JAMES HUNTER, III, Circuit Judge:

Milton F. Meissner appeals from an order of the United States District Court for the Western District of Pennsylvania staying an action for levy and seizure of a safe deposit box, pending the outcome of criminal proceedings against Meissner in the Southern District of New York. Alternatively, Meissner asks us to regard his appeal as a petition for a writ of mandamus ordering the district court to vacate the stay. The Mellon Bank, which leased the safe deposit box to Meissner, is a mere stakeholder and is not involved in this appeal. Treating Meissner's appeal as a petition for a writ of mandamus, we must dismiss it.

I.

Meissner allegedly was linked to various securities and tax frauds involving Robert Vesco and Investors Overseas Services. On April 9, the Internal Revenue Service entered a jeopardy assessment against Meissner and his wife, 1 who now reside in Costa Rica. On April 10, 1974, the Government served notice of levy and seizure on the Mellon Bank, which had leased a safe deposit box to Meissner and his wife. 2 The Bank refused to permit the Government to break into the box, which remains sealed.

On July 26, 1974, the Government petitioned the court below for an order directing the opening of the box. 3 Meissner was granted leave to intervene in that proceeding and opposed the attempted seizure. In September of 1974, he initiated a suit in the Tax Court to contest the jeopardy assessment.

Meissner opposed the seizure of the contents of the safe deposit box on several constitutional and other legal grounds. Primary among them was his contention that the Government had no genuine tax purpose for the seizure proceeding, that it wanted to examine the contents of the box merely to gather evidence for the criminal investigation of Meissner then in progress. He sought discovery of certain Government documents that would, he claimed, support this charge of bad faith.

The district court held that it lacked jurisdiction to consider Meissner's claims and denied his discovery motion. This court reversed, United States v. Mellon Bank, N. A., 521 F.2d 708 (3d Cir. 1975) (Mellon Bank I ). In the meantime, Meissner had obtained

Page 871

a stay of his Tax Court proceeding, alleging that it might jeopardize his fifth amendment rights with respect to criminal investigations then occurring.

On remand, the district court granted Meissner access to the documents he had requested. He maintains that several of these are sufficient to demonstrate the Government's bad faith in bringing the seizure action. Nevertheless, on January 16, 1976, two days after he was indicted for tax evasion in the Southern District of New York, Meissner sought further discovery in the seizure proceeding. This time he requested the following Government materials:

All documents relating to:

a. Any investigation of Dr. and/or Mrs. Meissner by any section or division of the Internal Revenue Service, including, but not limited to, the Audit Section, Collection Section, and Intelligence section;

b. Any investigation by any agency or department of Petitioner, U.S. Government, including, but not limited to the Internal Revenue Service, Securities and Exchange Commission and the Department of Justice in connection with any violations of law by Investors Overseas Services, and other related businesses and/or companies, Robert Vesco and/or any other individuals connected with IOS and/or related businesses and/or companies which relate to Dr. or Mrs. Meissner.

The court did not act on the motion. Instead, in an order of February 17, 1976, it granted the government's motion to continue the proceedings until final disposition of the criminal matter in the Southern District of New York. The court grounded this order on the finding that "substantial matters of the same nature exist in both the criminal and civil proceedings." Meissner appeals from that order.

II.

A.

At the outset, we are met with the Government's claim that a stay is not an appealable order, because it is not "final" under 28 U.S.C. § 1291. 4 In Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), this Court established three requisites for a "final order":

(1) It must be a final rather than a provisional disposition of the issue;

(2) it must not be merely a step toward final disposition of the merits;

(3) and the rights asserted must be threatened with irretrievable loss if review is postponed.

Irretrievable loss could certainly be found if the stay order had "the practical effect of a dismissal of the proceedings." In re Grand Jury Proceedings, 525 F.2d 151, 155 (3d Cir. 1975). Meissner declares that it does have this effect, because the Government, which seems unable to extradite him from Costa Rica, will never be in a position to conclude the criminal proceeding in New York. Therefore, says Meissner, the civil action will remain similarly unresolved, and he will forever be denied access to his safe deposit box. 5

We are unwilling, however, to permit the appealability of the district court's order to turn on matters so peculiarly within the

Page 872

control of one of the parties. The stay effects a permanent forfeiture of the box's contents only if Meissner allows it to do so. If he is genuinely concerned that the failure to resolve the criminal proceeding may work a denial of his rights in the civil case, he can submit to the jurisdiction of the Southern District of New York and see that the criminal matter is closed. Cf. Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537 (3d Cir. 1975) (stay pending resolution of state proceedings not final order, even though claim might be "old and feeble" after state proceeding concluded).

Alternatively, he could abandon his motion for additional discovery and proceed on the basis of the documents obtained on his first discovery motion. These, Meissner tells us, are already sufficient to prove the Government's bad faith in the seizure proceeding. 6 The Government has acknowledged its...

To continue reading

Request your trial
23 practice notes
  • U.S. v. Christian, No. 81-1323
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 septembre 1981
    ...it is not necessary that a case be pending in the court asked to issue the writ. See, e. g., United States v. Mellon Bank, N. A., 545 F.2d 869, 872 (3d Cir. 1976). Rather, it suffices that the case may at some future time come within the court's appellate jurisdiction. As we explained in Un......
  • U.S. v. Leveto, No. 05-4753.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 août 2008
    ...the cases on its docket with a vigilant concern for the efficient administration of justice. See United States v. Mellon Bank, N. A., 545 F.2d 869, 873 (3d Cir. 1976). We cannot, as Leveto advocates, hamstring the discretion of the district court by limiting its consideration of delay to on......
  • SEC v. Jos. Schlitz Brewing Co., No. 77-C-497.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 16 juin 1978
    ...166, 81 L.Ed. 153 (1936). A motion for a stay of proceedings is addressed to the court's discretion. United States v. Mellon Bank, N. A., 545 F.2d 869, 872-73 (3rd Cir. Schlitz' first argument in support of a stay is diminished by the fact that the Commission's burden of proof in this civil......
  • US v. 92 BUENA VISTA AVE., RUMSON, NJ, Civ. A. No. 89-1411.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 juin 1990
    ...hardships to the claimant are outweighed by the government's interest in avoiding civil discovery. See United States v. Mellon Bank, N.A., 545 F.2d 869, 872-73 (3d I find that the balance weighs in favor of granting the government's request for a stay. The government has demonstrated good c......
  • Request a trial to view additional results
23 cases
  • U.S. v. Christian, No. 81-1323
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 30 septembre 1981
    ...it is not necessary that a case be pending in the court asked to issue the writ. See, e. g., United States v. Mellon Bank, N. A., 545 F.2d 869, 872 (3d Cir. 1976). Rather, it suffices that the case may at some future time come within the court's appellate jurisdiction. As we explained in Un......
  • U.S. v. Leveto, No. 05-4753.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 26 août 2008
    ...the cases on its docket with a vigilant concern for the efficient administration of justice. See United States v. Mellon Bank, N. A., 545 F.2d 869, 873 (3d Cir. 1976). We cannot, as Leveto advocates, hamstring the discretion of the district court by limiting its consideration of delay to on......
  • SEC v. Jos. Schlitz Brewing Co., No. 77-C-497.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 16 juin 1978
    ...166, 81 L.Ed. 153 (1936). A motion for a stay of proceedings is addressed to the court's discretion. United States v. Mellon Bank, N. A., 545 F.2d 869, 872-73 (3rd Cir. Schlitz' first argument in support of a stay is diminished by the fact that the Commission's burden of proof in this civil......
  • US v. 92 BUENA VISTA AVE., RUMSON, NJ, Civ. A. No. 89-1411.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 1 juin 1990
    ...hardships to the claimant are outweighed by the government's interest in avoiding civil discovery. See United States v. Mellon Bank, N.A., 545 F.2d 869, 872-73 (3d I find that the balance weighs in favor of granting the government's request for a stay. The government has demonstrated good c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT