United States v. Moussaoui , 483 F.3d 220 ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
Defendant,  No. 06-4611
and
ALL PLAINTIFFS NAMED IN 21 MC 97,
21 MC 101, AND 03 CV 9849,
Intervenors-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:01-cr-00455-LMB)
Argued: November 30, 2006
Decided: March 14, 2007
Before WILKINS, Chief Judge, and WILLIAMS and
GREGORY, Circuit Judges.
Reversed and vacated by published opinion. Judge Williams wrote the
opinion, in which Chief Judge Wilkins and Judge Gregory joined.
COUNSEL
ARGUED: Steven L. Lane, UNITED STATES DEPARTMENT OF
JUSTICE, Criminal Division, Washington, D.C., for Appellant.
2 UNITED STATES v. MOUSSAOUI
Nathan Lewin, LEWIN & LEWIN, L.L.P., Washington, D.C., for
Appellees. ON BRIEF: Chuck Rosenberg, United States Attorney,
David J. Novak, Assistant United States Attorney, R. Joseph Sher,
Assistant United States Attorney, Douglas N. Letter, Terrorism Liti-
gation Counsel, UNITED STATES DEPARTMENT OF JUSTICE,
Criminal Division, Washington, D.C., for Appellant. Ronald L. Mot-
ley, Jodi Westbrook Flowers, Donald A. Migliori, Michael E. Elsner,
Robert T. Haefele, Justin B. Kaplan, John M. Eubanks, MOTLEY
RICE, L.L.C., Mount Pleasant, South Carolina; Alyza D. Lewin,
LEWIN & LEWIN, L.L.P., Washington, D.C.; Marc S. Moller, Brian
J. Alexander, KREINDLER AND KREINDLER, L.L.P., New York,
New York; Gregory P. Joseph, Douglas J. Pepe, GREGORY P.
JOSEPH LAW OFFICES, L.L.C., New York, New York; Robert A.
Clifford, Chicago, Illinois; Richard A. Williamson, FLEMMING,
ZULACK, WILLIAMSON, ZAUDERER, L.L.P., New York, New
York, for Appellees.
OPINION
WILLIAMS, Circuit Judge:
This appeal, although arising in the context of Zacarias Mous-
saoui’s criminal prosecution,1 is unrelated to the merits of the Govern-
1
In December 2001, the Government arrested Moussaoui under a
belief that he had conspired with other members of the terrorist organiza-
tion al Qaeda to plan and carry out the September 11 attacks against the
United States. He was charged with conspiracy to commit acts of terror-
ism transcending national boundaries, see 18 U.S.C.A. § 2332b(a)(2), (c)
(West 2000); conspiracy to commit aircraft piracy, see 49 U.S.C.A.
§ 46502(a)(1)(A), (a)(2)(B) (West 1997); conspiracy to destroy aircraft,
see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000); conspiracy to use weapons
of mass destruction, see 18 U.S.C.A. § 2332a(a) (West 2000 & Supp.
2006); conspiracy to murder United States employees, see 18 U.S.C.A.
§§ 1114, 1117 (West 2000 & Supp. 2006); and conspiracy to destroy
property, see 18 U.S.C.A. § 844(f), (i), (n) (West 2000 & Supp. 2006).
He ultimately pleaded guilty to all charges. The Government sought the
death penalty, but a jury declined to sentence Moussaoui to death. His
appeal in this court is currently pending. See United States v. Moussaoui,
No. 06-4494 (notice of appeal filed May 12, 2006).
UNITED STATES v. MOUSSAOUI 3
ment’s case against Moussaoui. Rather, it concerns only the district
court’s decision to order the Government to provide to certain victims
of the September 11 attacks (the Civil Plaintiffs) non-public discovery
materials that the Government had provided to Moussaoui in the
course of its criminal case against him. Moussaoui, therefore, is not
an actual party to this appeal. Because we determine that the district
court lacked the power to institute the orders, we reverse and vacate
the district court’s orders.
I.
As part of the Government’s criminal case against Moussaoui, it
provided Moussaoui with millions of pages of documents, including
more than 166,000 FBI interview reports and over 1.7 million pages
of documents from the FBI’s ongoing criminal investigation of the
September 11 attacks (the PENTTBOM investigation). In addition,
the Government provided a number of other evidentiary materials,
such as audio and video tapes and grand jury information. The discov-
ery was produced to Moussaoui’s attorneys pursuant to protective
orders covering "general discovery materials," "particularly sensitive
discovery materials," "Sensitive Security Information" concerning
civil aviation security (SSI), and classified information.2
Following the September 11 attacks, the Civil Plaintiffs filed three
civil tort suits in the United States District Court for the Southern Dis-
trict of New York against both private airlines, airports, and security
services, see In re September 11 Litig., 21 MC 97, and In re Septem-
ber 11 Property Damage and Business Loss Litig., 21 MC 101, and
alleged terrorists and sponsors of terrorism, Burnett v. Al Bakara Inv.
& Dev. Corp., 03 Civ. 9849. Discovery in those cases has been com-
plicated and contentious. It remains ongoing in the Southern District
of New York.
On March 31, 2006, the Civil Plaintiffs filed in the Eastern District
of Virginia a "Motion to Intervene for the Limited Purpose of Being
Heard in Connection With Access to Certain Portions of the Record"
2
The Government contends that much of this material would be pro-
tected from discovery in the civil context under various Government
privileges.
4 UNITED STATES v. MOUSSAOUI
at the conclusion of Moussaoui’s criminal trial. (J.A. at 240.)
Although the motion reflected only a desire to be heard in connection
with access, the motion was quickly followed by a "Motion for
Access to Certain Portions of the Record," (J.A. at 245), which went
far beyond the record and contended that lawyers representing Mous-
saoui "should not be given a greater level of access to documentary
evidence relating to those attacks than the attorneys representing vic-
tims, and family members of victims, who were brutally murdered on
that day." (J.A. at 249.) The substance of the motion was a request
for access to "all of the [G]overnment’s information they turned over
to the defense counsel in the . . . various discovery procedures ongo-
ing over time." (J.A. at 261.) The Civil Plaintiffs cited the Crime Vic-
tims Rights Act (CVRA), 18 U.S.C.A. § 3771 (West Supp. 2006),3
and Title IV of the Air Transportation Safety and System Stabilization
Act (ATSSSA), Pub. L. No. 107-42, 115 Stat. 230, 237 (2001),4 as
3
The CVRA confers the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any
public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that pro-
ceeding.
(4) The right to be reasonably heard at any public proceeding
in the district court involving release, plea, sentencing, or any
parole proceeding.
(5) The reasonable right to confer with the attorney for the
Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the
victim’s dignity and privacy.
18 U.S.C.A. § 3771(a) (West Supp. 2006).
4
Aside from establishing the September 11th Victim Compensation
Fund, ATSSSA placed limitations on air carrier liability and created an
UNITED STATES v. MOUSSAOUI 5
authority for their request. The Government, on the other hand,
argued that access to such information could be granted only through
the course of civil discovery in the Southern District of New York.
At an April 7, 2006 hearing, the district court5 initially commented
that the relief requested was "a long shot." (J.A. at 255.) Over the
course of the hearing, however, the district court became persuaded
that the CVRA and ATSSSA evidenced Congress’s unique interest in
providing the Civil Plaintiffs with access to the discovery. (J.A. at 274
("This situation is unique not just because there’s a general victims
statute but because Congress did pass a specific statute for the victims
of September 11. That puts this in a somewhat unique posture, and
I’m not so sure that the government is actually acting in the full spirit
of what Congress intended there.").) The district court also expressed
its opinion that it had "always been troubled by the degree to which
our government keeps things secret from the American people." (J.A.
at 273.) Furthermore, it noted that "the trial judge in [the Southern
District of] New York is frustrated" and that the Eastern District of
Virginia was not an "illogical" place to request the discovery. (J.A.
at 281.) After the hearing, the district court granted the motion to
intervene and ordered, inter alia, that the Civil Plaintiffs be provided
access to "non-classified and non-SSI evidence." (J.A. at 290.)
On April 14, 2006, the Civil Plaintiffs submitted a broad discovery
request, including classified and SSI materials and such things as
every document from the PENTTBOM investigation produced to
Moussaoui, every document collected by the 9/11 Commission that
exclusive remedy for damages arising out of the hijacking and crashing
of the planes. Moreover, ATSSSA states that the "District Court for the
Southern District of New York shall have original and exclusive jurisdic-
tion over all actions brought for any claim . . . resulting from or relating
to the terrorist-related aircraft crashes of September 11, 2001." Air
Transportation Safety and System Stabilization Act (ATSSSA), Pub. L.
No. 107-42, § 408(3), 115 Stat. 230, 237 (2001).
5
When referring solely to the "district court," we are speaking of the
district court for the Eastern District of Virginia — the same court that
presided over Moussaoui’s criminal prosecution and entered the orders
from which the Government appeals. When addressing the district court
for the Southern District of New York, we will do so explicitly.
6 UNITED STATES v. MOUSSAOUI
was produced to Moussaoui, and electronically searchable copies of
all relevant FBI interviews. Although the district court’s order
exempted classified materials and SSI, the Civil Plaintiffs’ requests
were not so limited. Shortly thereafter, the defendants in the civil
actions requested access to any materials being provided to the Civil
Plaintiffs pursuant to the district court’s order.
On April 21, 2006, the Government filed a motion for reconsidera-
tion, arguing that there was no legal basis for the district court’s order.
On May 19, 2006, the district court held a hearing and noted that it
was "disappointed" by the breadth of the discovery requests. (J.A. at
320.) Nonetheless, the court stated from the outset that it was going
to "be a very short hearing, because [it was] not reconsidering [the]
order." (J.A. at 320.) Instead, the district court noted that "whether a
particular discovery request is relevant or appropriate to the litigation
to which it is connected is far more properly left to the judge who is
responsible for the overall case, and Judge Hellerstein [the district
court judge presiding over the civil action in the Southern District of
New York] has been working diligently with the parties." (J.A. at
321.) Although the district court again failed to cite any direct law or
rule in support of its initial order, it continued to maintain that the
CVRA and ATSSSA "totally change the [legal] landscape." (J.A. at
324.)
The district court then entered a second order, stating that "the rele-
vance of any particular discovery request made by the intervenors to
the government pursuant to this Order must be determined by the dis-
trict judge presiding over the civil litigation [in the Southern District
of New York] out of which the discovery request arises." (J.A. at
333.) The order also purported to grant the Southern District of New
York the authority to alter the Eastern District of Virginia court’s
"protective orders to allow for disclosure to additional qualified attor-
neys." (J.A. at 333.) On June 15, 2006, the Government filed a notice
of appeal.
II.
As an initial matter, we must satisfy ourselves that we have juris-
diction to hear the Government’s appeal. See Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94-95 (1998) ("The requirement that
UNITED STATES v. MOUSSAOUI 7
jurisdiction be established as a threshold matter springs from the
nature and limits of the judicial power of the United States and is
inflexible and without exception." (internal quotation marks and alter-
ation omitted)). The Government contends that the district court’s
order allowing the Civil Plaintiffs to intervene for the purposes of
obtaining discovery is immediately appealable under the collateral
order exception to 28 U.S.C.A. § 1291 (West 2006), and, alterna-
tively, that a writ of mandamus would be appropriate in this instance.
See 28 U.S.C.A. § 1651 (West 2006) (authorizing federal courts to
"issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law").
Because none of the traditional concerns that often lurk throughout
criminal appeals by the Government are present, and the Govern-
ment’s appeal is completely separate from and collateral to its under-
lying prosecution against Moussaoui, we agree that this case
represents one of the exceedingly rare instances in which the collat-
eral order doctrine should apply in the criminal context.
A.
The Government’s right to appeal in criminal cases has historically
been severely limited. In fact, "[p]rior to the Criminal Appeals Act of
1907, the Government had no right to appeal in criminal cases outside
of the District of Columbia." United States v. Vuitch, 402 U.S. 62, 83
(1971) (Harlan, J., dissenting). "What disadvantage there be springs
from the historic policy, over and above the constitutional protection
against double jeopardy, that denies the Government the right of
appeal in criminal cases save as expressly authorized by statute."
DiBella v. United States, 369 U.S. 121, 130 (1962). The Govern-
ment’s general statutory right to appeal in criminal cases is now codi-
fied in 18 U.S.C.A. § 3731 (West Supp. 2006).6 Here, the
6
The full text of the statute provides:
In a criminal case an appeal by the United States shall lie to a
court of appeals from a decision, judgment, or order of a district
court dismissing an indictment or information or granting a new
trial after verdict or judgment, as to any one or more counts, or
any part thereof, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits fur-
ther prosecution.
8 UNITED STATES v. MOUSSAOUI
Government freely concedes that jurisdiction is lacking under § 3731
and that no other statute exists that grants the Government the right
to appeal a district court’s decision to allow a third-party to intervene
in a criminal case for the purposes of discovery. Instead, it contends
that jurisdiction is proper under § 1291’s collateral order doctrine.
Section 1291 provides, in relevant part, that "[t]he courts of appeals
. . . shall have jurisdiction of appeals from all final decisions of the
district courts of the United States." 28 U.S.C.A. § 1291 (emphasis
added). "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 (1945). Under
the plain language of § 1291, then, we would not have jurisdiction to
review the district court’s order in this instance because it did not con-
stitute a "final decision," as it was unconnected to the merits of the
Government’s criminal prosecution of Moussaoui and had no role in
terminating the litigation. In Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949), the Supreme Court explained that the final deci-
An appeal by the United States shall lie to a court of appeals
from a decision or order of a district court suppressing or exclud-
ing evidence or requiring the return of seized property in a crimi-
nal proceeding, not made after the defendant has been put in
jeopardy and before the verdict or finding on an indictment or
information, if the United States attorney certifies to the district
court that the appeal is not taken for purpose of delay and that
the evidence is a substantial proof of a fact material in the pro-
ceeding.
An appeal by the United States shall lie to a court of appeals
from a decision or order, entered by a district court of the United
States, granting the release of a person charged with or convicted
of an offense, or denying a motion for revocation of, or modifi-
cation of the conditions of, a decision or order granting release.
The appeal in all such cases shall be taken within thirty days
after the decision, judgment or order has been rendered and shall
be diligently prosecuted.
The provisions of this section shall be liberally construed to
effectuate its purposes.
18 U.S.C.A. § 3731 (West Supp. 2006).
UNITED STATES v. MOUSSAOUI 9
sion rule acts to forbid appellate intrusion into matters that "remain[ ]
open, unfinished or inconclusive" and to prevent piecemeal, harassing
appeals of decisions that "are but steps towards final judgment." Id.
at 546. In an attempt to align the text of the statute with those pur-
poses, the Court has grafted an exception — known as the collateral
order doctrine — onto § 1291. See Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994) (characterizing the doctrine as
a "narrow exception"). But see id. at 867 ("The collateral order doc-
trine is best understood not as an exception to the final decision rule
. . . but as a practical construction of it." (internal quotation marks
omitted)).
The collateral order doctrine entitles a party to immediately appeal
"from a narrow class of decisions that do not terminate the litigation,
but must, in the interest of achieving a healthy legal system, nonethe-
less be treated as final" within the meaning of § 1291. Id. at 867
(internal quotation marks and citation omitted). Such decisions are
"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." Cohen, 337 U.S. at 546. The Supreme
Court has repeatedly and carefully noted, however, that the doctrine
is a "narrow" one and the requirements for its application are "strin-
gent." Digital Equip., 511 U.S. at 868 (explaining that the doctrine
should "never be allowed to swallow the general rule that a party is
entitled to a single appeal, to be deferred until final judgment has
been entered, in which claims of a district court error at any stage of
the litigation may be ventilated" (internal citation omitted)). To come
within the parameters of the collateral order doctrine, the order from
which the appeal is taken must "[1] conclusively determine the dis-
puted question, [2] resolve an important issue completely separate
from the merits of the action, and [3] be effectively unreviewable on
appeal from final judgment." Will v. Hallock, 126 S. Ct. 952, 957
(2006) (internal quotation marks omitted).
This case, however, does not present us with a garden variety col-
lateral order question. An extra wrinkle is added because the Govern-
ment is seeking to appeal an order that was issued in the context of
its criminal case against Moussaoui and, as previously discussed, the
Government’s right to appeal in criminal cases is severely limited.
Nevertheless, the Supreme Court has noted that in certain rare cir-
10 UNITED STATES v. MOUSSAOUI
cumstances, the Government may be able to invoke the collateral
order doctrine in criminal cases:
It is true that certain orders relating to a criminal case may
be found to possess sufficient independence from the main
course of the prosecution to warrant treatment as plenary
orders, and thus be appealable on the authority of 28 U.S.C.
§ 1291 . . . without regard to the limitations of 18 U.S.C.
§ 3731, . . . just as in civil litigation orders of equivalent dis-
tinctness are appealable on the same authority without
regard to the limitations of 28 U.S.C. § 1292 . . . .
Carroll v. United States, 354 U.S. 394, 403 (1957).
Nevertheless, several special concerns exist when applying the col-
lateral order doctrine in the criminal context that are not present in the
civil context. See United States v. McVeigh, 106 F.3d 325, 331 (10th
Cir. 1997) ("[W]hen the government seeks review in a criminal case,
concerns unaddressed by Cohen come into play."). For example, the
protection against double jeopardy looms over many potential appeals
by the Government in a criminal case. See United States v. Wilson,
420 U.S. 332, 344 (1975) (explaining that the Constitution would not
allow the Government to appeal an order favoring the defendant if
success on the appeal would subject the defendant to a second trial).
Certain prudential concerns are put in issue as well, such as the defen-
dant’s and public’s interests in a speedy trial, see Carroll, 354 U.S.
at 415 ("Delays in the prosecution of criminal cases are numerous and
lengthy enough without sanctioning appeals that are not plainly
authorized by statute."), and the dangers of prosecutorial harassment,
see Arizona v. Manypenny, 451 U.S. 232, 246 (1981) ("The need to
restrict appeals by the prosecutor reflected a prudential concern that
individuals should be free from the harassment and vexation of
unbounded litigation by the sovereign.").
In short, we recognize that the collateral order doctrine is theoreti-
cally available to the Government when seeking to appeal adverse
orders in a criminal case. Nevertheless, we reiterate the Supreme
Court’s warning that the instances in which such orders will be
appealable pursuant to the collateral order doctrine "without regard to
UNITED STATES v. MOUSSAOUI 11
the limitations of 18 U.S.C. § 3731 . . . . are very few." Carroll, 354
U.S. at 403.
B.
The circumstances of this appeal are procedurally unusual even
aside from the rarity of a Government appeal in a criminal case. The
collateral order doctrine is used almost exclusively as a means of
resolving a disputed issue between adverse parties, where the party
seeking to appeal the collateral order would be forced to forfeit an
important right if it could not appeal until after entry of final judg-
ment. So, for example, the Supreme Court has invoked the collateral
order doctrine to allow immediate appeals of orders rejecting claims
to absolute immunity, Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982),
qualified immunity, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985),
and Eleventh Amendment immunity, Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993). Likewise,
the Court has allowed criminal defendants to immediately appeal
orders rejecting a claim that trial would violate a defendant’s double
jeopardy rights, Abney v. United States, 431 U.S. 651, 662 (1977),
and requiring a defendant to undergo medication against his will, Sell
v. United States, 539 U.S. 166, 177 (2003).
Here, however, we are not dealing with a dispute between adverse
parties in the underlying criminal prosecution, i.e., the Government
and Moussaoui; rather, the appeal concerns an order in favor of the
intervening Civil Plaintiffs against the Government. In fact, the Gov-
ernment is not even a defendant in the civil action in the Southern
District of New York.7 Moreover, we are not presented with an appeal
that is interlocutory in nature. The Government did not file this appeal
until after final judgment had been entered against Moussaoui, and his
criminal appeal is currently pending in this court. See United States
v. Moussaoui, No. 06-4494 (notice of appeal filed May 12, 2006).
Nevertheless, because these important observations do not change the
fact that the Government is attempting to appeal an adverse order
from a criminal case (even though the order is not related to the crimi-
7
In the airline suit, the Government intervened on behalf of the Trans-
portation Security Administration (TSA) for the purpose of controlling
disclosure of SSI in discovery.
12 UNITED STATES v. MOUSSAOUI
nal case), the appeal must satisfy the Cohen test for jurisdiction to be
proper under § 1291. See Carroll, 354 F.3d at 403 (explaining that the
collateral order doctrine of Cohen may be applied to Government
appeals in criminal cases when the order being appealed "possess[es]
sufficient independence from the main course of the prosecution to
warrant treatment as [a] plenary order[ ]").
The Civil Plaintiffs do not dispute that the district court’s order sat-
isfies the second and third conditions of the collateral order doctrine
in that it "resolve[d] an important issue completely separate from the
merits of the action" that is "effectively unreviewable on appeal from
final judgment." Will, 126 S. Ct. at 957 (internal quotation marks
omitted). We have little trouble concluding that we must resolve an
important issue: whether a district court sitting in a criminal case has
the power to compel the Government to disclose non-public docu-
ments to crime victims involved in a civil action in a different juris-
diction. The issue also is without question completely separate from
the merits of the Government’s criminal prosecution of Moussaoui.
Moreover, like most orders against the Government in the criminal
context, it is altogether unreviewable on appeal from final judgment
in the criminal case.
The Civil Plaintiffs, however, contend that the district court’s order
does not satisfy the collateral order doctrine’s first condition because
the order failed to "conclusively determine the disputed question." Id.We disagree.
The Civil Plaintiffs suggest that nothing can turn the district court’s
order "into a final appealable judgment." (Appellee’s Br. at 20.) We
need not quibble with this assertion, however, because the collateral
order doctrine is an exception to the final judgment rule. See Sell, 539
U.S. at 176 ("Nonetheless, there are exceptions to [the final judgment]
rule."). Thus, the fact that the district court’s order is not technically
a final judgment is irrelevant to our discussion because the order can
nonetheless be viewed as a final decision under the collateral order
doctrine.
The Civil Plaintiffs further contend that the order is "inherently ten-
tative" because it is not "the final word on the subject addressed." See
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278
UNITED STATES v. MOUSSAOUI 13
(1988) (internal quotation marks omitted). In Gulfstream Aerospace,
a seller filed a breach of contract claim against a buyer in state court.
Id. at 273. The buyer then filed a diversity action against the seller in
federal court, alleging breach of the same contract at issue in the state
court action. Id. The seller asked the federal district court to abstain
under Colorado River Water Conservation Dist. v. United States, 424
U.S. 800 (1976), but the district court declined to stay or dismiss the
case, and the seller attempted to appeal pursuant to, inter alia, the col-
lateral order doctrine. Gulfstream Aerospace, 485 U.S. at 275. The
Supreme Court held that the district court’s decision was not immedi-
ately appealable because an order denying a Colorado River absten-
tion motion is "inherently tentative . . . because it is not made with
the expectation that it will be the final word on the subject addressed."
Id. at 278 (internal quotation marks omitted).
The Civil Plaintiffs contend that, like a decision rejecting a Colo-
rado River stay or dismissal, the district court’s order here was inher-
ently tentative because it was made with the expectation that the
Government could challenge specific discovery requests made pursu-
ant to the order in the Southern District of New York. That conten-
tion, however, belies the nature of the Government’s argument and
the district court’s own interpretation of its order.
The Government argues on appeal that the district court was with-
out the power to issue its order. In other words, the Government is
contending that the district court had no jurisdiction or authority to
allow the Civil Plaintiffs to intervene to require the Government to
provide them with access to non-public discovery materials. Its argu-
ment is not so much based on the scope of the district court’s decision
as it is on the district court’s lack of power to enter the order in the
first place.
The district court, moreover, did not view the order as somehow
tentative, and a district court’s interpretation of its own order is for
obvious reasons afforded great weight. See Anderson v. Stephens, 875
F.2d 76, 80 n.8 (4th Cir. 1989) (noting the "inherent deference due a
district court when it construes its own order"). The district court
explained its view that the Government was free to "appeal this
order," (J.A. at 325), that the court was "not reconsidering [its] order,"
and that the order was "remaining in place," (J.A. at 320.) Although
14 UNITED STATES v. MOUSSAOUI
the district court noted that the Government would be free to assert
various privileges and other legitimate bases for not turning over spe-
cific documents in the Southern District of New York, the district
court’s order obligated the Government to turn over any document
relevant to the civil litigation so long as the Civil Plaintiffs’ request
was "appropriate." (J.A. at 324.) Thus, it simply cannot be said that
the district court’s order was made with anything but an expectation
that it would be "the final word on the subject." Gulfstream Aero-
space, 485 U.S. at 278. In fact, the court itself recognized that it was
"not going to get further involved" because it had "had [its] say" in
the matter. (J.A. at 325); see also (J.A. at 331 ("That’s the last [the
court is] going to hear on this.").)
This appeal is also meaningfully different from the Government’s
earlier attempted appeal in United States v. Moussaoui, 333 F.3d 509(4th Cir. 2003). In the order at issue in that appeal, the district court
had granted in part Moussaoui’s motion for access to an enemy com-
batant witness. Id. at 513. The Government appealed, citing, inter alia,
the collateral order doctrine as jurisdictional authority. We deter-
mined that we lacked jurisdiction over the Government’s appeal
because the district court’s order would "not become final unless and
until the Government refuse[d] to comply and the district court
impose[d] a sanction." Id. at 515. Our holding was rooted in long-
standing Supreme Court precedent "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." United States v. Ryan, 402 U.S. 530, 533 (1971).
Unlike the circumstances in that situation, however, this appeal
does not implicate "the necessity for expedition in the administration
of the criminal law." Id. The only thing "criminal" about the district
court’s order is the forum in which the order was issued; in all other
respects, the order is civil in nature. See (J.A. at 324 (explaining to
the Government that it must treat the order just as it would a discov-
ery order "in any other civil case").) Moreover, interlocutory review
of the Government’s previous appeal would have caused a delay in
Moussaoui’s criminal trial. Such concerns are not present here
UNITED STATES v. MOUSSAOUI 15
because the order is not interlocutory and accepting jurisdiction over
the appeal in no way prolongs the Government’s prosecution of
Moussaoui, who has already been sentenced and has his direct crimi-
nal appeal pending in this court.
Furthermore, the district court has washed its hands of this case,
and it is therefore doubtful that the Government would ever have the
opportunity to be sanctioned by the district court. Presumably, if the
Government failed to comply with the district court’s order, the Civil
Plaintiffs could then attempt to return to the district court and ask that
the Government be sanctioned. Based on the district court’s instruc-
tions, however, it would not entertain the Civil Plaintiffs’ request;
instead, it would simply send the Civil Plaintiffs to the Southern Dis-
trict of New York to seek sanctions there. If the Southern District of
New York then entered sanctions against the Government, it would
not be able to appeal that order to this court. See Preston Corp. v.
Raese, 335 F.2d 827, 828 (4th Cir. 1964) (explaining that we lack the
general power to entertain an appeal "from an order entered by a Dis-
trict Court not within our territorial jurisdiction"). Thus, the Govern-
ment would have to appeal any sanction order to the Second Circuit,
and that Circuit would be forced to interpret an order from the Eastern
District of Virginia, without any power to vacate that order. See Song-
byrd, Inc. v. Estate of Grossman, 206 F.3d 172, 177 (2d Cir. 2001)
(noting "that a court of appeals normally has no jurisdiction to review
the decision of a district court in another circuit"). The end result
likely would be "a vicious circle of litigation" that would leave the
Government without any means to review the district court’s author-
ity to enter the order. See Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (explaining the law of the case doc-
trine, which "posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent
stages in the same case," including when the case is transferred to a
coordinate court in another federal jurisdiction (internal quotation
marks omitted)).
Accordingly, we hold that the Government’s appeal meets the basic
requirements of the collateral order doctrine as articulated in the
Supreme Court’s Cohen line of cases. The district court’s order was
not "tentative, informal or incomplete." Cohen, 337 U.S. at 546. The
district court’s order "did not make any step toward final disposition
16 UNITED STATES v. MOUSSAOUI
of the merits of the case and will not be merged in final judgment."
Id. It is also "not of such an interlocutory nature as to affect, or be
affected by, decision of the merits of this case." Id. The order, rather,
"possess[es] sufficient independence from the main course of the
prosecution to warrant treatment as [a] plenary order[ ]." Carroll, 354
U.S. at 403. We must therefore reject the central premise of the Civil
Plaintiff’s argument, which is that the Government is "powerless to
avert the mischief of the order but must accept its incidence and seek
a remedy at some other time and in some other way." Perlman v.
United States, 247 U.S. 7, 13 (1918).8
C.
Although we conclude that the Government’s appeal fits nicely
within the collateral order doctrine, we also must satisfy ourselves
that none of the traditional concerns that come into play when the
Government seeks to appeal in a criminal case are implicated. We
have little trouble concluding that they are not implicated in this
instance.
Because the order and our review has no impact on — and is, in
fact, completely disconnected from — the Government’s criminal
prosecution against Moussaoui, none of the constitutional or pruden-
tial concerns cautioning against Government appeals in criminal cases
come into play. Instead, this represents one of the rare instances in
which "the determination of the defendant[’s] guilt has been made,
sentence has been imposed, the attempted appeal is not interlocutory
in any sense, and no prospect of piecemeal litigation endures." United
States v. Horn, 29 F.3d 754, 768-69 (1st Cir. 1994).
In Horn — after the defendants were convicted and sentenced —
the district court assessed attorney fees and costs against the Govern-
ment because of prosecutorial misconduct. The First Circuit deter-
mined that it had jurisdiction under the collateral order doctrine to
8
"[U]nder the . . . Perlman doctrine, a discovery order directed at a dis-
interested third party is treated as an immediately appealable final order
because the third party presumably lacks a sufficient stake in the pro-
ceeding to risk contempt by refusing compliance." Church of Scientology
v. United States, 506 U.S. 9, 18 n.11 (1992) (internal citation omitted).
UNITED STATES v. MOUSSAOUI 17
review the Government’s appeal because the "case involve[d] a suffi-
ciently special set of circumstances." Id. at 768; see also id. ("[T]he
particular circumstances at hand, especially the procedural posture in
which this appeal arises and the nature of the relief sought, are condu-
cive to allowing the appeal to go forward."). The court further noted
that none of the speedy trial and double jeopardy concerns that are
typically implicated in Government appeals in criminal cases were at
issue. Id. at 768-69. The court was careful to emphasize, however,
that:
Rather than importing the collateral order doctrine lock,
stock, and barrel into our criminal jurisprudence, we hold
only that when, as now, the conditions of the collateral order
doctrine are satisfied, and the prudential concerns that tradi-
tionally militate against allowing the government to appeal
in a criminal case favor, or are at least neutral in respect to,
the availability of a government appeal, then section 1291
affords a vehicle through which the government may seek
appellate review in a criminal case.
Id. at 769 (footnote omitted).
Like the court in Horn, we conclude that jurisdiction is proper
under the collateral order exception to § 12919 because the Govern-
ment’s appeal concerns a matter completely "separable from, and col-
lateral to," Cohen, 337 U.S. 546, the merits of the Government’s
criminal prosecution against Moussaoui, and none of the traditional
concerns so often implicated by governmental appeals from criminal
cases are at issue. Nevertheless, we do not accept jurisdiction lightly
and hasten to add that the circumstances from which the Government
may appeal in a criminal case pursuant to the collateral order doctrine
are exceedingly rare. Although this case represents one of those rare
9
Because we determine that jurisdiction is proper under § 1291, we
need not decide whether a writ of mandamus (or more accurately, a writ
of prohibition) would have been appropriate if jurisdiction was not
proper under the statute. See Pa. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 43 (1985) ("Where a statute specifically addresses the par-
ticular issue at hand, it is that authority, and not the All Writs Act, that
is controlling.").
18 UNITED STATES v. MOUSSAOUI
instances, we will continue to treat with suspicion future attempts by
the Government to invoke our jurisdiction in criminal cases pursuant
to § 1291.
III.
Finding jurisdiction proper, we now address the merits of the Gov-
ernment’s appeal. This appeal presents a question of first impression.
There appears to exist no other case in which a district court in a
criminal case required the Government to provide non-public criminal
discovery materials to victims for their use in civil litigation against
third parties in a different jurisdiction.10 The Government argues that
the district court lacked the legal authority, or power, to allow the
Civil Plaintiffs to intervene for the purpose of obtaining non-public
discovery materials.11 As such, this appeal presents a question of law
10
We are addressing only those aspects of the district court’s orders
that force the Government to turn over non-public materials. Crime vic-
tims, just like members of the public, have a general, qualified "right to
inspect and copy public records and documents, including judicial
records and documents." Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
597 (1978) (footnote omitted); see also In re Time Inc., 182 F.3d 270,
271 (4th Cir. 1999) (order) ("A First Amendment right of access applies
to a criminal trial, including documents submitted in the course of a
trial."). Thus, the district court was correct in explaining to the Civil
Plaintiffs that they did not need to intervene to gain access to materials
admitted into evidence because they "st[ood] in the same position as any
member of the public." (J.A. at 257.) Materials that are discovered, but
not admitted at trial, are a different matter because such materials are not
"a traditionally public source of information." Seattle Times Co. v. Rhine-
hart, 467 U.S. 20, 33 (1984).
11
The Civil Plaintiffs argue that the Government has waived this issue
by failing to argue it below. See Holland v. Big River Minerals Corp.,
181 F.3d 597, 605 (4th Cir. 1999) ("Generally, issues that were not
raised in the district court will not be addressed on appeal."). The record,
however, belies this contention. During the hearing on the initial motion,
the Government explained to the district court its view that the Civil
Plaintiffs were attempting to embroil the district court in an issue that it
"doesn’t really have jurisdiction to address." (J.A. at 263.) This was the
first point made by the Government. The district court then expressed its
view that the CVRA might give it the power to grant the Civil Plaintiff’s
UNITED STATES v. MOUSSAOUI 19
that we review de novo. See In re Pruett, 133 F.3d 275, 280 (4th Cir.
1997) (holding that the district court’s entry of ex parte discovery
orders created a question of law and explaining that it was not an
issue of "mere abuse of discretion").
A.
Before the district court, the Civil Plaintiffs relied heavily on the
CVRA as the authority for their request of access "to all of the gov-
ernment’s information . . . turned over to [Moussaoui’s] defense
counsel in the . . . various discovery procedures ongoing over time."
(J.A. at 261.) The district court, in granting the Civil Plaintiff’s
motion, agreed that the CVRA, acting alongside ATSSSA, placed
their request in a "unique posture," (J.A. at 274), and that the two stat-
utes bestowed upon the district court the authority to enter the orders.
On appeal, the Civil Plaintiffs have abandoned the argument that
the CVRA and ATSSSA granted the district court the authority to act
in this instance. This was wise strategy, as nothing in those two stat-
utes supports the district court’s exercise of power.
The CVRA was designed to protect victims and guarantee them
some involvement in the criminal justice process. See Kenna v. U.S.
Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006) ("The statute was
enacted to make crime victims full participants in the criminal justice
system."). The Act guarantees victims notice of any proceedings, the
right to attend those proceedings, the right to confer with the prosecu-
tor, and the right to be "reasonably heard at any public proceeding in
the district court involving release, plea, sentencing, or parole pro-
ceeding." 18 U.S.C.A. § 3771(a). The rights codified by the CVRA,
motion, after which, the Government stated its contention that nothing in
"the Victims’ Rights Act gives victims the right to information that’s not
used at the trial publicly." (J.A. at 264.) In other words, the Government
argued that the CVRA did not serve as authorization for the district court
to grant the Civil Plaintiff’s motion. By arguing that the district court
lacked jurisdiction over the matter, the Government sufficiently informed
the district court of its position and preserved the more crystallized argu-
ment it makes on appeal.
20 UNITED STATES v. MOUSSAOUI
however, are limited to the criminal justice process; the Act is there-
fore silent and unconcerned with victims’ rights to file civil claims
against their assailants. Cf. In re Kenna, 453 F.3d 1136, 1137 (9th Cir.
2006) (holding that nothing in the CVRA’s language or legislative
history confers a right for crime victims to obtain disclosure of a pre-
sentencing report).
ATSSSA, likewise, offers no support for the district court’s orders.
Although the statute created a specific federal cause of action for
damages arising out of the September 11 hijackings and crashes, it
provided the Southern District of New York — not the Eastern Dis-
trict of Virginia — with exclusive jurisdiction over such actions. Con-
gress, then, in providing exclusive jurisdiction to the Southern District
of New York, surely did not intend for discovery orders to be issued
by the Eastern District of Virginia. Moreover, the statute did not pur-
port to somehow alter or favorably amend the normal discovery and
civil procedures that would be used in any other, garden-variety fed-
eral civil action.12 In short, ATSSSA and the CVRA — standing alone
or together — offer no support for the district court’s orders.
B.
Having decided not to rely on the CVRA and ATSSSA, the Civil
Plaintiffs instead contend that the procedure for disclosure of grand
jury minutes to private plaintiffs acts as a precedent for the district
court’s order. See, e.g., Schweiker v. Hogan, 457 U.S. 569, 585 n.24
(1982) ("The statutory argument raised by the appellees, although not
presented in the District Court, may be decided on the basis of the
record developed in that court."); Nivens v. Gilchrist, 444 F.3d 237,
248 (4th Cir. 2006) (permitting an appellee to defend a district court’s
12
Contrary to the district court’s views that Congress passed special
legislation benefitting victims who opted out of the September 11 fund,
Section 408 of ATSSSA in fact limited the legal rights of such victims.
The opt-out provisions limited air carrier liability to "the limits of the lia-
bility coverage maintained by the air carrier." ATSSSA, § 408(a), 115
Stat. at 240. The statute also precluded victims for suing in state courts
and any federal court aside from the Southern District of New York,
while providing that the substantive law in any suit will be defined by
the substantive law of the state where the crash occurred.
UNITED STATES v. MOUSSAOUI 21
judgment "under different reasoning" than that urged by the district
court). We disagree.
Federal Rule of Criminal Procedure 6(e) provides that the tradi-
tional rule of grand jury secrecy may be placed aside under certain
circumstances to allow for disclosure. Specifically, Rule 6(e)(3)(E)(i)
states that a district court "may authorize disclosure — at a time, in
a manner, and subject to any other conditions that it directs — of a
grand-jury matter . . . preliminary to or in connection with a judicial
proceeding." The Supreme Court has explained that a party seeking
disclosure of grand jury materials must make a showing of a "particu-
larized need" by demonstrating that (1) the materials are needed to
avoid an injustice in another proceeding; (2) the need for disclosure
is greater than the need for continued secrecy; and (3) the request is
structured to cover only needed materials. Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 222 (1979).
Rule 6, of course, deals solely with the grand jury, and nothing in
its language extends its reach to general discovery. Beyond that, the
Civil Plaintiffs freely admit that the district court did not purport to
rely on Rule 6 in issuing its orders. Rather, the Civil Plaintiffs urge
that the district court was within its discretion to grant them access
to non-public discovery materials so long as it followed the general
test for determining whether disclosure is proper under Rule 6. The
circumstances calling for grand jury disclosures, however, are inappo-
site to the case at hand.
In Douglas Oil, the Supreme Court explained the difficulty faced
by civil litigants who need access to grand jury minutes from a differ-
ent jurisdiction. Although discovery is controlled by the court with
jurisdiction over the civil action, "those who seek grand jury tran-
scripts have little choice other than to file a request with the court that
supervised the grand jury, as it is the only court with control over the
transcripts." Id. at 225. That concern is not present in this case. We
are not dealing with evidentiary materials that are in the exclusive
possession of the Eastern District of Virginia; rather, we are con-
cerned with materials that the Government possesses, and that may be
obtained by the Civil Plaintiffs in the Southern District of New York
through the normal course of third-party civil discovery.
22 UNITED STATES v. MOUSSAOUI
C.
The thrust of the Civil Plaintiffs’ argument, then, is best recast as
an argument that the district court had the inherent authority to do
what it did, and that the limits of that inherent authority should be
defined by the same limits placed on district courts by Rule 6(e) and
Douglas Oil. This theory suggests that if we were to find that the dis-
trict court had the inherent, legal authority to grant the discovery
request, we would then use Rule 6(e) and the Douglas Oil factors as
guideposts to determine whether the district court abused its discre-
tion in this instance. We hold, however, that this abuse of discretion
analysis is unnecessary because the district court’s inherent authority
does not extend so far.
It has long been recognized that federal courts possess certain
implied or inherent powers that "are necessary to the exercise of all
others." United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812);
see Ex Parte Robinson, 86 U.S. 503, 510 (1873) ("The moment the
courts of the United States were called into existence and invested
with jurisdiction over any subject, they became possessed of [certain
inherent] power."). Inherent powers are "governed not by rule or stat-
ute but by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition
of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). But
"[t]he extent of these powers must be delimited with care, for there
is a danger of overreaching when one branch of Government, without
benefit of cooperation or correction from the others, undertakes to
define its own authority." Degen v. United States, 517 U.S. 820, 823
(1996). "Principles of deference counsel restraint in resorting to inher-
ent power, and require its use to be a reasonable response to the prob-
lems and needs that provoke it." Id. at 823-24.
In accordance with these principles, the Supreme Court has, for
example, held that federal courts possess the inherent authority to
sanction a party and lawyer appearing before the court, see Chambers
v. NASCO, Inc., 501 U.S. 32, 44 (1991), to dismiss a lawsuit sua
sponte for failure to prosecute and on grounds of forum non conve-
niens, see Link, 370 U.S. at 630-31 and Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 509 (1947), to consolidate actions arising out of the same
controversy, see Bowen v. Chase, 94 U.S. 812, 824 (1876), and to
UNITED STATES v. MOUSSAOUI 23
vacate a judgment for fraud on the court, see Hazel-Atlas Glass Co.
v. Hartford-Empire Co., 322 U.S. 238, 244 (1944).13 These cases
stand for the proposition that a court has the inherent authority to con-
trol various aspects of the cases before that court so that they can
"protect their proceedings and judgments in the course of discharging
their traditional responsibilities." Degen, 517 U.S. at 823.
These cases, however, do not go so far as to suggest that courts
have an inherent authority to issue orders that facilitate the judicial
process taking place in another case in another jurisdiction. Moreover,
it simply cannot be said that the district court’s orders were necessary
for the district court’s "orderly and expeditious disposition" of the
Government’s criminal prosecution against Moussaoui. Id. Even from
the perspective of the civil suits in New York, the district court’s
orders were not necessary because Rule 26 of the Federal Rules of
Civil Procedure provides for liberal discovery. See Seattle Times Co.
v. Rhinehart, 467 U.S. 20, 35 (1984) ("The Rules do not distinguish
between public and private information. Nor do they apply only to
parties to the litigation, as relevant information in the hands of third
parties may be subject to discovery.").
Aside from the lack of necessity for the district court’s orders, we
note that we also are reluctant to sanction inherent powers that are
novel in application. We are certainly "unaware of any ‘long unques-
tioned’ power of federal district courts," Carlisle v. United States, 517
U.S. 416, 426 (1996), to order the Government to disclose non-public
materials given to the defense in a criminal trial to third-party civil
plaintiffs involved in litigation in another jurisdiction. Because the
district court’s orders were unprecedented and entirely unnecessary,
we hold that they were beyond the inherent powers of the court.
13
In the criminal realm, the Supreme Court has recognized courts’
authority to formulate certain procedural rules, "in the exercise of super-
visory powers . . . to implement a remedy for violation of recognized
rights, to preserve judicial integrity by ensuring that a conviction rests on
appropriate considerations validly before the jury, and . . . as a remedy
designed to deter illegal conduct." United States v. Hasting, 461 U.S.
499, 505 (1983) (internal citations omittted).
24 UNITED STATES v. MOUSSAOUI
D.
As a final matter, we note that there are sound policy reasons for
denying the district court the general power to let victims intervene
in the criminal process for the purpose of obtaining discovery from
the Government to be used in civil litigation. Those reasons include
efficiency, competency, fairness, and slippery slope concerns.
First, the Civil Plaintiffs’ approach would burden district courts
presiding over criminal cases with time-consuming civil discovery
requests. Moreover, the criminal court will be forced to educate itself
about the civil litigation to determine whether the discovery request
should be granted, and the civil court would ultimately be forced to
interpret the criminal court’s order and determine where it fits within
the civil court’s discovery plan.
Second, and aside from the efficiency concerns, there is a real
question over whether a criminal court is competent to review the
necessity for a discovery order with respect to civil litigation in
another jurisdiction. For example, in the grand jury minutes context,
the Supreme Court has noted that "the judges of the court having cus-
tody of the grand jury transcripts will have no firsthand knowledge of
the litigation in which the transcripts allegedly are needed, and no
practical means by which such knowledge can be obtained." Douglas
Oil, 441 U.S. at 226.
Third, such a course might place unfair burdens on criminal defen-
dants, the Government, and the public. For example, the Government
often tries cases under an open file policy, "pursuant to which the
government agree[s] to turn over essentially all of its documents to
the defendants in return for the comfort of knowing that neither Brady
nor Giglio14 would be relevant throughout the protracted proceed-
ings." United States v. Derrick, 163 F.3d 799, 812 (4th Cir. 1998).
Under such a policy, the defendant is typically provided with all
material that is legally required, as well as additional material that,
although not legally required, might in the end be beneficial to the
14
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972), stand for the proposition that the Government’s
suppression of material evidence may justify a new trial.
UNITED STATES v. MOUSSAOUI 25
defendant. If the Government was forced to disclose any materials
given to defendants also to civil victims for use in litigation, it would
have good reason to discontinue open door policies because of con-
cerns over increased general access to sensitive materials. See, e.g.,
United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)
(explaining that transforming discovery into a matter of public record
would chill voluntary discovery and result in severe "consequences to
the smooth functioning of the discovery process"). Moreover, by forc-
ing the Government to more carefully scrutinize and screen materials,
trials would be unnecessarily lengthened, thereby implicating the
defendant’s and public’s speedy trial interests. See Zedner v. United
States, 126 S. Ct. 1976, 1985 (2006) (explaining that the Speedy Trial
Act, 18 U.S.C.A. § 3161 (West 2000 & Supp. 2006), was designed to
protect both the public’s and defendants’ interests in speedy trials).
Fourth, and finally, neither the district court nor the Civil Plaintiffs
have offered a reasonable limiting principle that might constrain
future requests. Although the district court attempted to limit its deci-
sion by relying on the CVRA acting in conjunction with ATSSSA,
those two statutes, as explained in part III.A., supra, offer no author-
ity for the district court’s orders. The CVRA applies to all crime vic-
tims, and while Congress passed a specific statute creating a cause of
action for victims of the September 11 attacks, it also has enacted
many other statutes creating specific causes of action. See, e.g., 42
U.S.C.A. § 1983 (West 2003) (creating a cause of action for victims
deprived of any rights, privileges, or immunities by an individual act-
ing under color of state law). On the basis of the various statutes’
texts (which are silent with respect to discovery), there is no logical
way to distinguish between requests citing the CVRA and ATSSSA
as authority and requests citing the CVRA and any other cause of
action codified by Congress as authority. The district court’s orders,
then, if allowed to stand, would create a dangerous precedent that
could lead to numerous victims intruding upon criminal trials for the
purpose of obtaining discovery for their civil actions.
IV.
We, like the district court, have great sympathy for the victims of
September 11 and their families. They have endured the most abhor-
rent of acts. But regardless of how much respect and compassion this
26 UNITED STATES v. MOUSSAOUI
court has, we must ensure that the federal courts in our jurisdiction
— no matter how well intentioned — do not exceed their legal power.
At base, there was no authority, inherent or otherwise, for the district
court’s orders in this instance. Because the district court lacked the
necessary power, we are compelled to reverse and vacate its orders.
Congress has confined the Civil Plaintiffs’ action to the Southern
District of New York. If they need access to Moussaoui’s grand jury
transcripts, they are of course free to return to the Eastern District of
Virginia and make a request under Rule 6(e) to transfer those tran-
scripts to the Southern District of New York. Nevertheless, the gen-
eral discovery process must be controlled by the very capable judges
of the Southern District of New York, the only court with jurisdiction
over the Civil Plaintiffs’ causes of action. We are confident that the
Government, which also sympathizes with the Civil Plaintiffs, will act
with the utmost good faith in complying with the Southern District of
New York’s discovery orders, while also protecting our national
security interests.
REVERSED AND VACATED