In Re: Grand Jury v. ( 1996 )

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No. 95-4242
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In re: Grand Jury Subpoenas * Appeal from the United States
Duces Tecum. * District Court for the Eastern
* District of Arkansas.
*
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Submitted: April 17, 1996
Filed: June 5, 1996
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Before BOWMAN, BEAM, and LOKEN, Circuit Judges.
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BEAM, Circuit Judge.
Appellants Herby Branscum, Jr., P.A.1 and Robert M. Hill appeal the
district court's2 order requiring them to pay contempt fines for failing
to comply with subpoenas duces tecum. Appellants argue that the district
court lacked jurisdiction to order the payment of fines because the
contempt order on which the fines were based was then the subject of an
appeal to this court. Because the order appealed from is not an appealable
order, we dismiss this appeal for want of jurisdiction.
I. BACKGROUND
This is a continuation of an appeal previously decided by this court.
See In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307 (8th Cir. 1996).
The relevant facts are largely set out in our prior opinion and will be
repeated here only to the extent
1
Herby Branscum, Jr., P.A. is the professional association in
which Herby Branscum, Jr. practices law.
2
The Honorable Stephen M. Reasoner, United States District
Judge for the Eastern District of Arkansas.
necessary. On September 8, 1995, the district court held appellants in
contempt for failing to comply with subpoenas duces tecum served upon them
by the Office of Independent Counsel (OIC). Appellants were given until
September 15, 1995, to comply with the subpoenas and to purge themselves
of their contempt. As of that date, fines of $1,000 per day against each
individual were to accrue. The district court expressly reserved the right
to forgive those fines upon full compliance. Appellants immediately
appealed the September 8 order to this court arguing that the district
court erred in refusing to quash the subpoenas. Appellants' motions for
a stay of the imposition of contempt sanctions pending appeal were denied
by both the district court and this court. We have since issued an opinion
upholding the validity of the subpoenas and the finding of contempt. Id.
On December 5, 1995, while the appeal from the contempt order was
pending, the district court entered the order at issue here. The order
required each appellant to pay $77,000 into the court registry. That
amount represented the contempt fines which had accrued between September
15, 1995, and December 1, 1995. Following the December 5 order, appellants
complied with the subpoenas and paid the fines. Appellants then filed this
appeal. They argue that their appeal of the contempt order divested the
district court of jurisdiction to require the payment of fines while the
order of contempt was on appeal to this court.
II. DISCUSSION
A. Jurisdiction
The merits of this appeal concern whether the district court could
enforce its contempt order by requiring appellants to pay their contempt
fines. Before addressing that issue, however, we must first consider
whether we have jurisdiction, that is, whether the order appealed from was
a final order or was otherwise
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appealable. "It is the duty of the Court of Appeals to satisfy itself as
to its jurisdiction to consider an appeal, whether or not the
jurisdictional issue is raised by the parties." Stewart v. Bishop, 403
F.2d 674, 677 (8th Cir. 1968).
In their jurisdictional statement, appellants cite 28 U.S.C. § 1291.
That section provides for Court of Appeals jurisdiction over "all final
decisions" of United States District Courts. A final order is generally
one which effectively resolves the merits of the controversy and ends the
litigation. Iowa Beef Processors, Inc. v. Bagley, 601 F.2d 949, 952 (8th
Cir.), cert. denied, 441 U.S. 907 (1979). The order at issue here is not
a final order in that sense. It is merely an interlocutory order enforcing
an earlier contempt sanction. Consequently, we find that section 1291 does
not confer jurisdiction.
Similarly, we fail to see how the order would come within the class
of appealable interlocutory orders provided for in 28 U.S.C. § 1292. The
order does not involve injunctive relief, the management of a receivership,
or any other ground for appeal listed in section 1292(a), nor did
appellants move for certification under section 1292(b). Therefore, we
conclude that section 1292 does not confer jurisdiction.
Consequently, unless the order "falls within a statutory or
judicially-created exception to the finality doctrine, appellate review at
this time is premature." Iowa Beef Processors, 601 F.2d at 952. We find
no alternative bases for jurisdiction. Although the collateral order
doctrine, as set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546-47 (1949), offers an exception to the final order requirement, the
collateral order doctrine is not applicable here. The doctrine allows
appeal from an otherwise nonappealable order if the issue appealed falls
within a limited class of issues which, although not final, should be
treated as final to end the litigation. Id. To qualify as a collateral
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order, an order must: (1) conclusively determine the disputed question; (2)
resolve an important issue separable from the merits; and (3) be
effectively unreviewable on appeal from a final judgment. Farmland Indus.
v. Frazier-Parrott Commodities, 806 F.2d 848, 850 (8th Cir. 1986); In re
National Mortgage Equity Corp., 821 F.2d 1422, 1424-25 (9th Cir. 1987).
The order in this case does not meet any of these requirements and,
therefore, does not merit review as a collateral order.
The order also fails to fit within the narrow exception to the final
order doctrine carved out by Perlman v. United States, 247 U.S. 7 (1918).
Under the Perlman rationale, an immediate appeal from an otherwise
nonappealable order is proper if it is unlikely that the third party
affected by the order will risk a contempt citation simply to create a
final order for the person asserting a privilege. In re National Mortgage
Equity Corp., 821 F.2d at 1424. This case, however, does not involve the
assertion of a privilege by a third party. Instead, the persons to whom
the subpoenas were directed challenge the constitutionality of those
subpoenas. Consequently, we conclude that the order here at issue is not
an appealable order. Keeping in mind the overriding policy against
piecemeal appeals, we dismiss this appeal for lack of jurisdiction.
However, even if we do have jurisdiction to consider whether the district
court exceeded its jurisdiction, for example, under the All Writs Act, 28
U.S.C. § 1651, appellants will suffer no harm as a result of this dismissal
as they cannot prevail on the merits of that question.
B. The Merits
As stated above, the question here presented is whether the district
court retained the jurisdiction necessary to enforce its contempt order by
requiring appellants to pay their contempt fines. Because such a
determination involves only a question of law, we review the district
court's finding of jurisdiction de novo. A-1
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Contractors v. Strate, 76 F.3d 930, 934 (8th Cir. 1996); Charchenko v. City
of Stillwater, 47 F.3d 981, 982 (8th Cir. 1995). Applying that standard,
we find that the district court retained such jurisdiction.
Generally, an appeal to the circuit court divests the district court
of jurisdiction as to those issues involved in the appeal. Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373, 378-79 (1985);
Board of Educ. v. Missouri, 936 F.2d 993, 995 (8th Cir. 1991). However,
as this court has previously stated, an exception to the general rule of
jurisdictional divestiture applies where the district court supervises a
continuing course of conduct between the parties. Liddell v. Board of
Educ., 73 F.3d 819, 822 (8th Cir. 1996) (citing Board of Educ. v. Missouri,
936 F.2d at 996). In this case, the need for continuing district court
supervision of appellants' conduct during the pendency of the appeal was
especially important. Appellants were the subjects of an ongoing
investigation by the OIC. Their refusal to comply with the grand jury
subpoenas duces tecum created considerable delay in the OIC's
investigation.3 Even after being held in contempt, appellants were given
an opportunity to comply with the subpoenas and purge the contempt. They
chose not to do so and to remain in contempt of the district court's order.
Because the district court was supervising the continuing debate over
appellants' compliance with the subpoenas, it should not be rendered
powerless by the filing of an appeal. Therefore, we find that the district
court's payment order falls within an exception to the general rule of
3
The subpoenas were issued in June 1995. Appellants did not
comply with those subpoenas until December 1995. Significantly,
appellants' compliance was achieved only through the district
court's order requiring the payment of the contempt fines.
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divestiture of district court jurisdiction.4 See Board of Educ. v.
Missouri, 936 F.2d at 996.
Another well-established exception to the general rule of
jurisdictional divestiture further supports the district court's exercise
of jurisdiction in this case. The exception provides that, notwithstanding
an appeal, the district court retains jurisdiction to the extent necessary
to enforce its judgment which has not been stayed. See Resolution Trust
Corp. v. Smith, 53 F.3d 72, 76 (5th Cir. 1995); American Town Ctr. v. Hall
83 Assocs., 912 F.2d 104, 110-11 (6th Cir. 1990); Deering Milliken, Inc.
v. FTC, 647 F.2d 1124, 1128-29 (D.C. Cir.), cert. denied, 439 U.S. 958
(1978). Here, both the district court and this court had previously denied
appellants' motion for a stay of the imposition of contempt sanctions
pending appeal. When it ordered the payment of fines, the district court
did not expand upon its earlier contempt order--it simply entered the
payment order in support of
4
The appellants cite only two cases in support of their
argument that the district court lacked jurisdiction to enter the
December 5 order. See Donovan v. Mazzola, 761 F.2d 1411, 1414 (9th
Cir. 1985); Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th
Cir. 1983). Initially, we note that case law from the Ninth
Circuit is not binding upon this court. Secondly, we point out
that other Ninth Circuit case law supports our decision. See,
e.g., Hoffman v. Beer Drivers and Salesmen's Local Union No. 888,
536 F.2d 1268, 1276-77 (9th Cir. 1976) (cited with approval in
Board of Educ. v. Missouri, 936 F.2d at 996). As the Hoffman court
noted:
[I]n the kinds of cases where the court supervises a
continuing course of conduct and where as new facts
develop additional supervisory action by the court is
required, an appeal from the supervisory order does not
divest the district court of jurisdiction to continue its
supervision, even though in the course of that
supervision the court acts upon or modifies the order
from which the appeal is taken.
Hoffman, 536 F.2d at 1276. Consequently, appellants' reliance on
Donovan and Shuffler is misplaced.
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its earlier judgment. The district court retained this power to enforce
its earlier order, notwithstanding the appeal.
III. CONCLUSION
Because the order appealed from was a nonappealable order, we dismiss
this appeal for lack of jurisdiction.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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