United States v. Woodbury, Misc. No. 820.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: POPE, HAMLEY and HAMLIN, Circuit
• Citation: 263 F.2d 784
• Parties: UNITED STATES of America, Appellant, v. Ray B. WOODBURY, Appellee.
• Docket Number: Misc. No. 820.
• Decision Date: 02 February 1959

263 F.2d 784 (1959)

UNITED STATES of America, Appellant,
v.
Ray B. WOODBURY, Appellee.

Misc. No. 820.

United States Court of Appeals Ninth Circuit.

February 2, 1959.

263 F.2d 785

George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, Alan S. Rosenthal and Seth H. Dubin, Attys., Dept. of Justice, Washington, D. C., C. E. Luckey, U. S. Atty., Portland, Or., for appellant.

King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellee.

Before POPE, HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge.

The United States of America, defendant herein, has applied to this court for permission to appeal from an interlocutory order entered by the district court during the course of pretrial proceedings. The application is made under 28 U.S.C.A. § 1292(b), enacted September 2, 1958, enlarging the jurisdiction of the courts of appeals to entertain appeals from interlocutory orders.¹ The plaintiff, Ray B. Woodbury, opposes the application, arguing that several of the conditions specified in the statute have not been met.

The action was brought by Woodbury under the Tort Claims Act² to recover $863,000 damages. The theory of the action is that the Housing and Home Finance Agency (HHFA) had breached a fiduciary duty owed to Woodbury in connection with the financing of a housing project in Kodiak, Alaska. The government answered, setting up certain defenses³ and counterclaiming to recover $400,000 damages for breach of a construction contract by a company controlled by Woodbury.

On September 10, 1958, Woodbury filed a motion with the district court, under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A., for the production of documents for inspection, copying, or photographing. The documents sought to be produced were "* * * the files containing correspondence, contract documents, interoffice memoranda, intraoffice

263 F.2d 786

memoranda and memoranda of meetings and conferences * * *" pertaining to the Kodiak project. Such documents, it was asserted, were in the possession of the HHFA and other named government agencies

The government opposed this motion on the ground that it was too broad and that Woodbury had not shown "good cause" as required by Rule 34. The district court suggested that the government examine its files and make available to Woodbury all documents of the general nature described in the motion and which the government did not object to producing. This was done and certain documents were made available to Woodbury's counsel. The remaining documents were withheld from Woodbury under a claim of privilege.⁴

All of the withheld documents were made available to the court. After reviewing them, the court, on December 17, 1958, entered an order requiring the government to produce these documents, with certain exceptions not here material. Albert M. Cole, Administrator of HHFA, declined to comply with this order for the reasons stated in his formal claim of privilege. Invoking Rule 37(b) (2), Federal Rules of Civil Procedure, 28 U.S.C.A., Woodbury thereupon moved for an order striking the government's answer and counterclaim.

In response to this motion an order was entered on January 12, 1959, striking the government's answer and counterclaim. For the apparent purpose of enabling the government to apply to this court under § 1292(b) for permission to appeal from that order, the following recital is set forth therein:

"This Order in the opinion of the Court involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."⁵

The government's application for permission to appeal from that order was filed in this court on January 17, 1959.

Under § 1292(b), a court of appeals may not grant permission to appeal from an interlocutory order not included under paragraph (a) of that section unless the order sought to be reviewed contains certain recitals. One of the required recitals is that in the opinion of the district judge the order involves "a controlling question of law." The district judge who entered the order of January 12, 1959, included such a recital in that order.

The government here argues, and the district judge presumably believed, that the "controlling" question of law which such an appeal would present is whether the government is entitled to withhold the documents under a claim of privilege. Woodbury argues that this is not a "controlling" question within the meaning of § 1292(b).

The opinion of the district judge that a controlling question is involved, while deserving of careful consideration, is not binding upon this court when we are called upon to exercise our discretion under the statute.⁶ We accordingly reexamine that point.

263 F.2d 787

Section 1292(b) was intended primarily as a means of expediting litigation by permitting appellate consideration during the early stages of litigation of legal questions which, if decided in favor of the appellant, would end the lawsuit.⁷...