United States v. Harrod

• Decision Date: 24 February 1981
• Docket Number: No. 79-931.,79-931.
• Parties: UNITED STATES, Appellant, v. George R. HARROD, Appellee.
• Court: D.C. Court of Appeals

Page 30

428 A.2d 30

UNITED STATES, Appellant, v. George R. HARROD, Appellee.

No. 79-931.

District of Columbia Court of Appeals.

Argued En Banc May 13, 1980.

Decided February 24, 1981.

William J. Bowman, Asst. U. S. Atty., Charles F. C. Ruff, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., for appellant.

John A. Shorter, Jr., Washington, D. C., filed the Petition for Rehearing En Banc for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

NEWMAN, Chief Judge:

The sole issue before us is whether the trial court's order requiring a complaining witness in a criminal case to undergo a psychiatric exam is a "final order" within D.C.Code 1973, § 11-721(a)(1). If it is not, this court has no jurisdiction to entertain an appeal from that order. The government contends that the special facts of this case place it within a special exception to the established rules of finality. We disagree and therefore grant appellee's motion to dismiss the appeal for lack of jurisdiction.

Appellee, George R. Harrod, was charged by grand jury indictment with one count of simple assault, arising from the alleged striking of a female subordinate at his place of employment. By written motion, appellee moved the court to order a psychiatric examination of the complaining witness. After a hearing on the motion, the court issued a written order on August 17, 1979, directing that the complaining witness be examined by a psychiatrist. After its motion for reconsideration of the order was denied, the government filed the instant appeal. Appellee thereupon moved to dismiss the appeal for lack of jurisdiction.

In a line of cases directly applicable here, the Supreme Court has consistently held that a subpoena or discovery order directed to a non-party witness is not "final" and therefore not appealable. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-1582, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Alexander v. United States, 201 U.S. 117, 120-22, 26 S.Ct. 356 357-358, 50 L.Ed. 686 (1906). These cases establish the doctrine that a witness may obtain review of a subpoena or a discovery order only after he persists in his refusal to comply and is sentenced for contempt of court. The merits of the order will then be reviewable in an appeal from the contempt citation, a clearly severable proceeding. The government would have us ignore this well-established doctrine and find instead that the examination order involved here is appealable primarily on the basis of the intrusiveness of the order. The government offers us no principle on which to distinguish the burdensomeness of this order from that of other subpoenas and discovery orders held to be non-appealable by the Supreme Court and by United States Courts of Appeal. As we are unable to discern any such principle, we decline to arbitrarily carve out a fresh exception to the jurisdictional rule of finality.

The established doctrine of non-appealability of discovery orders issued to non-party witnesses was first enunciated by the Supreme Court in Alexander v. United States, supra. There appellants sought review of subpoenas duces tecum issued in a civil antitrust proceeding. The witnesses asserted a general Fifth Amendment privilege against self-incrimination and a Fourth Amendment bar to unreasonable searches and seizure, as well as the immateriality of the evidence sought. The Court held that the orders to appear and testify before an examiner were not final orders¹ and therefore not appealable. The Court further stated that the orders would only be reviewable in an appeal from a contempt proceeding. "Let the court go further, and punish the witness for contempt of its order, — then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case." Id. at 121, 26 S.Ct. at 358.

Alexander was reaffirmed in Cobbledick v. United States, supra, where a unanimous Court held that an order denying a motion to quash a grand jury subpoena duces tecum is not a final order and therefore not appealable. Alexander was again reaffirmed by a unanimous Court in 1971 in United States v. Ryan, supra, where another grand jury subpoena was held not to be a final order. The Ryan Court stated:

[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, supra; Alexander v. United States, [supra]. [Id. 402 U.S. at 532-33, 91 S.Ct. at 1582 (citations omitted).]

See Maness v. Meyers, 419 U.S. 449, 460, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 (1975) (quoting the above passage with approval); United States v. Nixon, 418 U.S. 683, 691, 94 S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974) (same).

The government relies primarily on the Supreme Court's opinion in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), to justify carving out an exception to the finality doctrine as it has been authoritatively and consistently construed in Alexander, Cobbledick, and Ryan. If Cohen existed in isolation, it might be possible to apply its rationale to a discovery order issued to a non-party witness; however, the Supreme Court's prior consideration of this situation in Alexander and Cobbledick and its reaffirmance in Ryan long after the Cohen decision precludes such an application. Moreover, an examination of the Cohen rationale confirms the implicit inference that Cohen was never intended to apply to court orders requiring production of information from non-party witnesses.²

The Cohen rule was premised on a combination of three circumstances that led the Court to find sufficient indicia of finality.³ The first factor, that the order be a final determination of a claim of right "separable from, and collateral to" the rights asserted in the proceedings, is met here, as the government seeks to emphasize. As Alexander, Cobbledick, and Ryan establish, however, the collateral nature of the order is not a sufficient basis for finality, for otherwise all orders to non-party witnesses would be appealable.

The second two criteria that underlie the Cohen rule are the significance of the question of law and a lack of opportunity for later review. Neither of these criteria are met by the order sought to be appealed here. Cohen involved a "serious and unsettled" question of law, i. e., whether a state bond provision would be applicable to a state derivative action when prosecuted in federal court. The Court deemed this question "too important to be denied review."

As the government acknowledges, the question of law in the case sub judice is closely tied to the specific facts of the case, i. e., whether the trial judge abused his discretion in granting the order to undergo a psychiatric exam. See Ledbetter v. United States, D.C.App., 350 A.2d 379 (1976); United States v. Butler, 156 U.S.App.D.C. 356, 481 F.2d 531 (1973); United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1972). This is not a "serious and unsettled" question of law that review by this court will lay to rest. Rather, allowing an appeal in this case will authorize appeals in all cases involving a similar discovery order, leading to the kind of disruption of the smooth functioning of the judicial system the finality rule seeks to avoid. See Donlon Industries, Inc. v. Forte, 402 F.2d 935, 937 (2d Cir. 1968) (questions of law for Cohen exception should be of general importance beyond the immediate concern of the litigants and not simply review for abuse of discretion).

The Cohen Court also relied heavily on the third factor, that the issue would be lost if an appeal were not immediately available. While the witness here obviously cannot appeal from the final judgment of this case, she does have an opportunity for review in a contempt proceeding; the issue will not be irreparably "lost".⁴ Rather, application of the Alexander doctrine allowing review of a subpoena or discovery order only through an appeal from a contempt proceeding would provide this court with a fuller record for review, when taken. See Kaufman v. Edelstein, 539 F.2d 811, 814 n. 3 (2d Cir. 1976). As Judge Friendly stated in United States v. Fried, 386 F.2d 691, 695 (2d Cir. 1967), "this is no time to weaken the historic rule putting a witness' sincerity to the test of having to risk a contempt citation as a condition to appeal, however harsh its application may seem to the appellant here."

The only justification put forward by the government here for finding finality is that the witness should not be required to assume the added burden of risk inherent in a contempt proceeding before she is allowed an opportunity to vindicate her rights.⁵ The government would have us summarily dismiss the argument that review can only be had after contempt proceedings. The Supreme Court in Alexander, Cobbledick, and Ryan, however, found this same argument not only persuasive but controlling. In Alexander, the Court specifically acknowledged that the witness asserted colorable Fifth and Fourth Amendment claims.

Of the United States Courts of Appeal that have considered the question, only the Tenth Circuit has held a subpoena or discovery order directed to a non-party witness to be appealable. In Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965), the court held that the potential pecuniary loss from discovery of trade secrets from a non-party witness justified a Cohen-based exception from the Alexander doctrine...