United States of America v. Daniel Klubock , 832 F.2d 664 ( 1987 )

OPINION EN BANC

PER CURIAM.

In this challenge to a local rule adopted by the District Court for the District of Massachusetts, the district court sustained the validity of the rule. United States v. Klubock, 639 F.Supp. 117 (D.Mass.1986). A divided panel of this court affirmed in an opinion dated March 25,1987. Upon granting the petition for rehearing en banc, this court, as is customary, vacated the panel’s judgment and withdrew the panel opinion. Upon en banc consideration, this court is divided 3-3. Therefore, the decision of the district court is affirmed by an equally divided court.

We reproduce below (1) the en banc opinion of Judge Torruella in which Judges Coffin and Bownes join; (2) the dissenting opinion of Chief Judge Campbell; and (3) the dissenting opinion of Judge Breyer in which Judge Selya joins.

We also at this time reproduce for publication with the en banc opinions, an amended version of the original panel opinion and dissent, 832 F.2d 649. While the panel opinions no longer have standing on their own, the members of the en banc court make reference to them in the course of their opinions and hence they are issued to supplement the en banc opinions.

TORRUELLA, Circuit Judge.

We granted appellants’ petition for rehearing en banc to consider two issues: “1. Whether the district court, under its local rule-making authority, can require prior judicial approval before grand jury subpoenas may be served on attorneys in light of Fed.R.Crim.P. 17’s provision for the non-discretionary issuance of subpoenas. 2. Whether the Supremacy Clause bars enforcement of a state attorney disciplinary rule that would regulate federal prosecutors conduct in connection with federal grand juries.” See Petition For Rehearing With Suggestion for Rehearing En Banc, p. 1. These issues are directed at the merits of the issues raised, argued and briefed both before the district court and on appeal. Although they are a repetition of what this Court has already decided in its panel opinion, it is these issues that are properly before the en banc court.

Two of our dissenting colleagues, Judges Breyer and Selya, however, in what can only be described as a different tack, perhaps even a tack out to sea, suggest that this appeal be jettisoned to consider an issue which was never proposed, litigated or considered by the parties or the district court at the trial level, was never preserved, briefed or argued on appeal before this court’s panel or the en banc court, and was in fact specifically disavowed by appellant during oral argument before the latter. In his separate dissent, Chief Judge Campbell expounds upon his original panel dissent. Since we abide by the majority panel opinion, we do not find it necessary to address, in detail, our differences with the Chief Judge’s expanded en bane dissent. The “issue” raised by Judges Breyer and Selya is whether there was a failure to give public notice and an opportunity for comment before adoption of the local rule challenged by appellants, as required by Fed.R.Crim.P. 57. Certainly it is ironic that our dissenting brethren would consider invalidating Local Rule 5(d)(4)(B) due to inadequate notice and comment, when the parties here neither noticed nor commented upon the issue in their briefs to the panel or to the court en banc.

If there is anything to be said about the adversary system, particularly when carried out by advocates as competent as those appearing throughout this case, it is that it would be unusual indeed for such an issue to have escaped the crucible of contentious litigation if there is a factual basis to be developed on the record in support thereof. The complete silence of both appellants and appellees regarding the adequacy of the opportunity to provide comment is particularly important, since the parties to this lawsuit would be expected to provide the bulk of the commentary on PF 15. If either the United States Attorney or the Massachusetts Bar felt deprived of an adequate opportunity to comment on the rule, it is certain that, given the competence of counsel for both sides, the issue would have been raised at the trial level. Thus, it is odd that the dissenters would decide this case on the basis of an issue that so many skilled lawyers saw fit to ignore.

It is elementary that an allegation such as that made by the dissenters with respect to Fed.R.Crim.P. 57 requires not only that a specific assertion to such effect be made by the moving party at the trial level, but also that a record in support be established, with due opportunity to opposing parties to refute this contention. We are not dealing here with a jurisdiction issue, which can be raised by the court, or by any party, at any level of proceedings. This is an issue of substance which has never been advanced by any of the parties to this litigation. Federal appellate courts are not knights errant in search of a cause or a cour de cassation with unlimited powers of review. We are bound by the issues that have been properly litigated and preserved before the district court, and then raised and briefed on appeal. To consider the issue raised by Judges Breyer and Selya is to stray far afield from the constraints imposed by Article III and the adversary system. Our job is to decide the dispute presented to us by the parties, not to follow a judicial penchant which involves neither a case nor a controversy.

Before we leave this matter entirely it should be pointed out that Rule 57 only requires “appropriate public notice and an opportunity to comment.”¹ What scant record exists on this subject would lead us to conclude that appellants had such notice and opportunity. The dissent notes that on October 7, 1985, Local Rule 5(d)(4)(B) was proposed by the district court and circulated for comment. See infra p. 671. Contrary to the dissent of Judges Breyer and Selya, however, we do not agree that prior to its amendment in June, 1986, there was ambiguity as to whether Rule 5(d)(4)(B) incorporated S.J.C. Rule 3:08. This is clearly established by the fact that, rather than comment on Rule 5(d)(4)(B), the United States Attorney sought an exemption from PF 15. Thereafter the Massachusetts Bar Association and the Massachusetts Criminal Defense Lawyers indicated that they would comment if the district court was inclined to grant the United States Attorney’s requested exemption. The district court denied this exemption and thereafter no comments were submitted. Rule 57, of course, does not require comment, only the opportunity to comment.

In view of this history it is not surprising that appellants have not pressed this issue. The United States Attorney and his colleagues, the only really interested parties affected by PF 15, had notice and an opportunity to comment, but rather than submit a detailed, substantive critique of PF 15, they sought a blanket exemption from the rule.² They had their turn at bat and struck out. They are not entitled, on appeal, to another turn at the plate. We conclude, therefore, that the Rule 57 question is an appellate non-issue.

On the merits of the en banc issues, Judge Breyer’s dissent raises a series of questions which are in effect directed at making this local rule a “better” rule. See infra pp. 671-75. This approach misses the point. It may very well be that the local rule could be improved, and undoubtedly the suggestions impliedly contained in the socratic questions of Judge Breyer’s dissent might be of value in this respect. If improvements are to be made, however, Rule 57 indicates that they should originate with the district court itself or with the Judicial Council, not with a reviewing appellate court. See Fed.R.Crim.P. 57 (“A local rule so adopted ... shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located.”).

The dissent overlooks the circumscribed nature of our review. Our appellate function is not to determine whether the district court passed the best possible rule but to determine whether the local rule complies with the standards recently summarized by the Supreme Court in Frazier v. Heebe, - U.S. -, -, 107 S.Ct. 2607, 2614, 96 L.Ed.2d 557 (1987) (Rehnquist, C.J., dissenting) (citing Colgrove v. Battin, 413 U.S. 149, 159-60, 162-64, 93 S.Ct. 2448, 2455-56, 37 L.Ed.2d 522 (1973); Miner v. Atlass, 363 U.S. 641, 651-52, 80 S.Ct. 1300, 1306-07, 4 L.Ed.2d 1462 (1960)). Our inquiry is limited to determining:

[1] whether the rule conflicts with an Act of Congress; [2] whether the rule conflicts with the rules of procedure promulgated by the [Supreme Court]; [3] whether the rule is constitutionally infirm; ... [4] whether the subject matter governed by the rule is not within the power of a lower federal court to regulate.

Id. (Rehnquist, C.J., dissenting) (citations omitted). These standards were considered by the district court and discussed in our panel decision, although in different form. See United States v. Klubock, 832 F.2d 649, 652-53 (1987). Without unduly repeating what was stated in the panel decision, we ruled that there was no conflict with Fed.R.Crim.P. 17, id. at 655-56, that the supremacy clause was not implicated because the Massachusetts rule had been incorporated as a federal local rule, id. at 651-52, and that the local rule was within the rule-making power of the district court in the exercise of both the inherent and statutory authority of the courts to control ethical and procedural matters in their forum. Id. at 652-53. Lastly, we considered, at appellant’s urging, whether to exercise our supervisory authority to strike down the local rule and found that “[f]ar from concluding that the adoption of the local rule ... was an abuse of the district court’s discretion ... we consider [it] to be a sound use of that authority.” Id. at 658. This is another way of saying that the local rule was necessary and rational and that “the principles of right and justice” require its appellate support. Frazer, - U.S. at -, 107 S.Ct. at 2611.

As previously stated, this is not to say that the rule is perfect, and we encourage the district court to monitor closely the working of PF 15, and to be receptive to experience-based proposals for improvement. The local rule does not lay out specific standards for determining the validity of attorney subpoenas or the specific procedures for obtaining judicial approval, but, contrary to the dissent of Chief Judge Campbell, this is not ground for invalidating the rule. This is no different than, for example, Rule 17, Fed.R.Crim.P. As we discuss in the panel opinion, United States v. Klubock, supra, at 656, although there is no provision in Rule 17 for quashing a subpoena ad testificandum, and the procedures established regarding quashing of a subpoena duces tecum are general in nature, not only has this measure been extended to include subpoena ad testifican-dum but a procedure has evolved to handle these matters as a result of judicial experience and practice. See 8 Moore’s Federal Practice § 17.11 (2d ed. 1987). Such will be the case with PF 15. As PF 15 is used, and perhaps amended, a practice and procedure will also evolve in connection with it. In the meantime it will have a salutary effect in reducing the possibility of unethical conduct by prosecutors.

Other arguments raised in appellants’ petition are adequately covered by the panel opinion.

The opinion of the district court is affirmed.

1 . Fed.R.Crim.P. 57 provides:

Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules. A local rule so adopted shall take effect upon the date specified by the district court and shall remain in effect unless amended by the district court or abrogated by the judicial council of the circuit in which the district is located. Copies of the rules and amendments so made by any district court shall upon their promulgation be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. In all cases not provided for by rule, the district judges and magistrates may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act.

2 . In light of the frontal attack embodied in the litigation, it is not surprising that the district court suspended any further consideration of the rule.