Winchester v. U.S. Attorney for Southern Dist. of Texas ( 1995 )

United States Court of Appeals,
Fifth Circuit.
No. 94-20689.
Lance C. WINCHESTER, Plaintiff-Appellee,
v.
The UNITED STATES ATTORNEY FOR the SOUTHERN DISTRICT OF TEXAS,
Defendant-Appellant.
Nov. 14, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before SMITH, BARKSDALE and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The United States Attorney for the Southern District of Texas
appeals the quashal of an administrative subpoena duces tecum
served upon the plaintiff, Lance C. Winchester. Carried with this
appeal is Winchester's motion to dismiss the appeal for want of
jurisdiction, which we now grant.
I.
The underlying facts of this appeal arise from the failure of
the First Savings Association of East Texas ("First Savings").
Winchester, an attorney, had helped secure two multi-million-dollar
loans from First Savings. The Federal Savings and Loan Insurance
Corporation ("FSLIC") pursued Winchester and others over those
loans, winning a four-million-dollar judgment against Winchester.
On account of FSLIC's neglect, Winchester's debts to FSLIC were
discharged in bankruptcy.
FSLIC's successor, the Resolution Trust Corporation, is now
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considering a civil money penalty action against Winchester under
12 U.S.C. § 1833a (West 1989 & Supp.1995).1 As part of its
investigation, the government served an administrative subpoena
duces tecum upon Winchester, seeking production of documents and
testimony concerning the loans. Winchester responded by filing a
petition seeking to set aside the subpoena. An order entered on
March 2, 1994, quashed the subpoena on procedural grounds,
apparently because the government had failed to respond to the
petition in a timely fashion.2
The government responded by filing a rule 60(b) motion on
March 30, requesting that the district court reconsider the quashal
in the interest of justice. See FED.R.CIV.P. 60(b)(6). On April
26, it also filed a notice of appeal with this court.
On May 5, the district court granted the motion to reconsider.
On June 17, the government dismissed its appeal. On July 19, the
district court again quashed the subpoena, this time on the merits.
The government filed a second notice of appeal, and it is this
appeal from the July 19 order that is now before us. Carried along
with this appeal is Winchester's motion to dismiss the appeal for
want of jurisdiction, which we review de novo.
1
This section also explicitly grants the Attorney General
subpoena power: "For purposes of conducting a civil
investigation in contemplation of a civil proceeding under this
section, the Attorney General may— ... (C) by subpoena, summon
witnesses and require production of books, papers,
correspondence, memoranda, or other records which the Attorney
General deems relevant or material." 12 U.S.C. § 1833a(f)(1).
2
The government argues that the district court erroneously
treated Winchester's objection to the subpoena as a motion rather
than as initiation of an independent action.
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II.
The government concedes that, under the usual rule, the
district court loses all jurisdiction over matters brought to us
upon the filing of the notice of appeal. See Henry v. Independent
Am. Sav. Ass'n, 857 F.2d 995, 997-98 & n. 10 (5th Cir.1988); Brown
v. United Ins. Co. of Am., 807 F.2d 1239, 1241 n. 1 (5th Cir.1987).
Therefore, the district court was divested of jurisdiction upon the
filing of the first notice of appeal, and consequently its May 5
order granting the rule 60(b) motion and vacating its March 2
judgment was void. That judgment thus was final and was rendered
non-appealable by the government's dismissal of its first appeal.
Any actions by the district court subsequent to the first notice of
appeal were also void, including its July 19 quashal order, the
predicate for this appeal.
As recently as last year, we had occasion to consider a
situation strikingly similar to the one before us. In Travelers
Ins. Co. v. Liljeberg Enters., 38 F.3d 1404 (5th Cir.1994)
(Barksdale, J.), we were faced with three appeals from denials of
rule 60(b)(6) motions. Id. at 1407. As it turns out, these rule
60(b)(6) motions had been filed while the appeals from the
underlying judgments were pending. Id. at 1407 n. 3.
In Travelers, we reaffirmed our general rule that a notice of
appeal divests the district court of jurisdiction "except to take
action in aid of the appeal until the case is remanded to it by the
appellate court, or to correct clerical errors under Rule 60(a)."
Id. (citation to federal practice treatise omitted). We
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recognized, however, "the power of the district court to consider
on the merits and deny a 60(b) motion filed after a notice of
appeal, because the district court's action is in furtherance of
the appeal." Id. (emphasis added, internal quotation marks
omitted). We then noted the critical distinction between a
district court's denying such a motion on the one hand, and
granting it on the other: "When the district court is inclined to
grant the 60(b) motion, ... then it is necessary to obtain the
leave of the court of appeals. Without obtaining leave, the
district court is without jurisdiction, and cannot grant the
motion." Id. (emphasis added, citation and internal quotation
marks omitted). Such leave was neither requested nor granted in
this case, and therefore the district court did not have
jurisdiction to grant the rule 60(b) motion.
The government gamely cites authorities that are, at best,
narrowly applied in civil cases and that certainly do not apply
here. The government first puts forward Oliver v. Home Indem. Co.,
470 F.2d 329, 331 (5th Cir.1972) (holding that possible
conservation of judicial energies might justify discretionary
reconsideration by district court after appeal had been perfected).
The government then cites United States v. Dunbar, 611 F.2d 985
(5th Cir.1980) (en banc), cert. denied, 447 U.S. 926, 100 S. Ct.
3022, 65 L. Ed. 2d 1120 (1980), for the so-called "dual jurisdiction"
doctrine, but states that it is not urging us to apply that
doctrine in this case.
Our decision in Oliver is best described as an anomaly, as the
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government concedes. It is a decision that we have consistently
declined to follow in subsequent cases. See, e.g., Henry, 857 F.2d
at 997-98; Brown, 807 F.2d at 1241 n. 1. We recently reiterated
our preference that either we or the district court have exclusive
jurisdiction over a given case at any given time: "For obvious
reasons, it makes little sense for two different courts to have the
power to act on the same judgment at the same time, with the
attendant risk that they will reach inconsistent conclusions and
thus result in confusion and in a waste of judicial resources." In
re Butler, 2 F.3d 154, 157 (5th Cir.1993).
Furthermore, Oliver contravenes our decision in Ferrell v.
Trailmobile, Inc., 223 F.2d 697 (5th Cir.1955), and therefore
cannot be binding in this circuit, as one panel of this court
cannot overrule another. See Texas Refrigeration Supply v. FDIC,
953 F.2d 975, 983 (5th Cir.1992). In Ferrell, we set out a
procedure by which a party in a position similar to (or identical
to) the government's in this case could preserve both direct appeal
and post-judgment motion as avenues for relief. See id. at 698-99.
In such cases, a perfected appeal deprives the district court of
all jurisdiction except for the following: "[T]he district court
retains jurisdiction to consider and deny such [post-judgment]
motions, ... [and] if it indicates that it will grant the motion,
the appellant should then make a motion in the Court of Appeals for
a remand of the case in order that the district court may grant
such motion." Id. at 699 (citation omitted).
Following this procedure will relieve a party from being
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forced to elect between two available remedies. See id.
Furthermore, our decision in Travelers, unlike that in Oliver, is
completely consistent with the Ferrell procedure and reaffirms its
continuing vitality. See 38 F.3d at 1407 & n. 3.
Dunbar is inapposite as well, because it was a criminal case
in which unusual concerns were implicated. Dunbar involved an
interlocutory appeal from the denial of a frivolous double jeopardy
motion. See 611 F.2d at 986-87. The panel opinion, vacated by the
decision to rehear the case en banc, had vacated Dunbar's criminal
conviction on the ground that the double jeopardy motion had
divested the district court of jurisdiction. Id. at 986. Thus,
Dunbar had successfully evaded his conviction by filing a frivolous
jurisdictional motion. See id. at 988. Permitting this type of
maneuvering would have enabled any criminal defendant to obtain a
continuance at any time simply by filing a frivolous double
jeopardy motion and then appealing the denial of that motion. Id.
We decided Dunbar against the backdrop of the then-recent
decision in Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52
L. Ed. 2d 651 (1977), in which the Court held that denials of motions
to dismiss brought on double jeopardy grounds were immediately
appealable under the "collateral orders" doctrine of Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed.
1528 (1949). See Abney, 431 U.S. at 659, 97 S.Ct. at 2040. Faced
with the special concern of safeguarding the constitutional
protections afforded by the Double Jeopardy Clause, we attempted in
Dunbar to fashion an exception to the general
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divestiture-of-jurisdiction rule that would strike a balance
between Abney concerns on the one hand and the desire to avoid
disruption of the criminal justice system on the other. We thus
held that an appeal from the denial of a double jeopardy claim
would not divest the district court of jurisdiction if that court
expressly found, in writing, that the claim was frivolous. 611
F.2d at 987-89. As is now readily apparent, the situation in
Dunbar bears little resemblance, if any, to the case before us.
We therefore decline to follow either Oliver or Dunbar,
relying once again on the familiar and usual rule that a perfected
appeal divests the district court of jurisdiction. See Henry, 857
F.2d at 997 (citing Taylor v. Sterrett, 640 F.2d 663, 667 (5th Cir.
Unit A Mar. 1981)) (second citation omitted).
III.
The government also argues that the district court
"effectively" reopened the case when it granted the government's
rule 60(b) motion. Thus, the argument proceeds, the dismissal of
the first notice of appeal prior to entry of final judgment
"effectively" cured any jurisdictional defect. Under this
scenario, the district court's "order" of July 19 constitutes a
final order that may serve as a legitimate predicate for this
appeal. This argument, however, contravenes a fundamental rule of
law concerning jurisdiction: A court either has jurisdiction or it
does not.
The government's first appeal, once perfected, deprived the
district court of jurisdiction, rendering void that court's
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subsequent actions in this case. The government's dismissal of
that perfected appeal rendered the district court's final order of
March 2 non-appealable. The second appeal—the one before us now—is
without jurisdiction because it is predicated on the July 19 order,
which the district court did not have jurisdiction to issue.
Were we to accept the government's argument, we would be
guilty of creating a new doctrine, one that counsel for the
petitioner appropriately dubbed "virtual jurisdiction" during oral
argument. Such a concept is particularly unwarranted in this case,
as the government could have resorted to the Ferrell procedure to
avoid electing between direct appeal and post-judgment motion as
potential avenues of relief.
Because the government did not avail itself of the Ferrell
procedure, we have no choice but to grant Winchester's motion to
dismiss this appeal for want of jurisdiction. The appeal,
accordingly, is DISMISSED.
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