UNITED STATES of America, Plaintiff-Appellee, v. COPAR PUMICE COMPANY, INC.; Kelly Armstrong; Richard P. Cook; Shirley A. Cook; Debbie Cantrup, Defendants-Appellants.
No. 12-2104.
United States Court of Appeals, Tenth Circuit.
May 6, 2013.
714 F.3d 1197
Before BRISCOE, Chief Judge, BROBBY, Senior Judge, and MURPHY, Circuit Judge.
Because the District of Kansas did not pronounce the judgment against Rawlins, it has no power to reexamine her conviction through a writ of coram nobis. Nor would any federal court have such power in these circumstances. We thus have no power to consider Rawlins‘s constitutional complaints.
III. Conclusion
For the foregoing reasons, the judgment of the district court is VACATED and this case is REMANDED to the District of Kansas with instructions to dismiss for lack of jurisdiction.
Ignacia S. Moreno, Assistant Attorney General; Kenneth J. Gonzales, United States Attorney; Ruth Fuess Keegan, Assistant United States Attorney; William B. Lazarus, Andrew A. Smith, Dominika N. Tarcynska, Elizabeth Ann Peterson, Attorneys, Environment & Natural Resources Division, Department of Justice, Washington, D.C.; Steve Hattenbach, Office of General Counsel, U.S. Department of Agriculture, Albuquerque, New Mexico, of Counsel, for Plaintiff-Appellee.
BRISCOE, Chief Judge.
This is an interlocutory appeal arising out of an action filed by the United States against Defendants Kelly Armstrong, Debbie Cantrup, Richard Cook, Shirley Cook (collectively “the Cooks“), and Copar Pumice Company, Inc. (“Copar“) for trespass, conversion, and unjust enrichment. The claims are based on allegations that the Cooks and Copar removed and used undersized pumice from their mine in violation of their settlement agreement with the United States, the Jemez National Recreation Area Act (“JNRAA“),
I
Background and Previous Litigation
Before addressing the jurisdictional question, we will briefly describe the par-
Under the General Mining Law of 1872,
In 1988, the Cooks located 23 mining claims (known as the Brown Placer Claims) in the Jemez Mountains in the Santa Fe National Forest. These claims were leased to Copar—a closely held company owned by Richard Cook‘s three daughters, Kelly Armstrong, Debbie Cantrup, and Katharine Fishman—to mine pumice. Aplee. Suppl. App., at 22. In 1993, while the Cooks were in the process of obtaining a patent for their claims, Congress passed the Jemez National Recreation Area Act (“JNRAA“),
After examining the Brown Placer Claims, the Forest Service contested the validity of all claims except claims nine through twelve, which became known as the El Cajete Mine. See Copar Pumice Co. v. Tidwell, 603 F.3d 780, 788 (10th Cir. 2010). The Department of the Interior examined the Brown Placer Claims and agreed that only claims nine through twelve were valid and that Copar could mine these claims for stonewash pumice that was 3/4 inches or larger (“+3/4” pumice“) because such pumice was an uncommon variety that is used in the stonewash laundry industry to abrade denim fabric to look “worn.” See id. at 784, 788 (quotation omitted). In 1997, the Santa Fe National
The Cooks administratively appealed the Department of Interior‘s decision that some of their mining claims were invalid. The Cooks also filed a takings claim against the government in the Court of Federal Claims in response to the enactment of the JNRAA. Cook v. United States, 42 Fed. Cl. 788 (1999). The Court of Federal Claims granted partial summary judgment to the Cooks on their takings claim. Id. at 795. Thereafter, in 2002, the Cooks and the government settled the takings claim and the administrative appeal by entering into an agreement wherein the Cooks would retain Brown Placer Claims nine through twelve as unpatented mining claims with the understanding that they could not dispose of common variety pumice from these claims. Aplee. Suppl. App., at 18-19. In return, the government paid the Cooks approximately four million dollars. Id. at 19.
In 2002, Copar stated that it was crushing the +3/4” pumice to sell for common variety purposes other than use in the laundry industry. The Forest Service determined that any +3/4” pumice removed and not sold for laundry industry purposes rendered the pumice common variety in violation of the settlement agreement, JNRAA, and applicable regulations. When Copar failed to provide documentation to confirm that it was selling the pumice only for laundry industry purposes, the Forest Service issued a Notice of Noncompliance in 2003, which required Copar to provide complete records of its pumice sales since 2002. Copar filed an administrative appeal to this Notice, and the Forest Service affirmed. Copar, 603 F.3d at 790. Copar then filed suit in the United States District Court for the District of New Mexico seeking review and reversal of the Forest Service‘s decision. The district court denied Copar‘s petition for review, and this court affirmed. Id. at 793.
Present Litigation
In 2009, the United States brought the present action against Copar and the Cooks alleging trespass, conversion, and unjust enrichment arising from the operation of the El Cajete Mine. Aplt.App. at 33, 42-44. In their Answers, Copar and the Cooks1 claimed that the removal of +3/4” pumice was legal. Id. at 64, 73. In February 2011, the government served interrogatories requesting that Defendants “[i]dentify and describe all legal advice provided to Defendants regarding the legality of the mining, transportation, processing, marketing, trade, gift or sale of pumice at or taken from Brown Placer Mining Claims 9-12,” as well as requests for production of related documents. Id. at 115. Defendants objected and asserted that such information and documents were within the attorney-client and work-product privileges. Id. at 114. In July 2011, Defendants responded to the government‘s continued requests for such information by stating that their good faith defense had been documented in pleadings and memoranda filed in previous litigation to which the government was a party. Aplee. Suppl. App., at 10.
The government then moved to compel production of the documents contending
Defendants did not comply with this order. The government then served three subpoenas for production of documents: one on Defendants’ current counsel, and two on Defendants’ previous counsel. Id. at 186, 193, 200. The subpoenas directed production of “[a]ll documents reflecting legal advice provided to [Defendants] regarding the legality of mining, transporting, processing, marketing, trade, gift, or sale of pumice at or taken from Brown Placer Mining Claims 9-12 (El Cajete Mine, Santa Fe National Forest).” Id. at 200. Defendants moved to quash the subpoenas as overly broad and imposing an undue burden. Id. at 177-78, 182-83. Shortly thereafter, Defendants filed a motion for protective order arguing that the scope of the waiver was limited to whether the Forest Service could lawfully limit the “end use” of the locatable pumice to only laundry industry purposes. Id. at 208-09. Defendants also filed a notice withdrawing their previously asserted good faith defense based on the advice of counsel. Id. at 216.
The magistrate judge denied Defendants’ motion to quash and motion for protective order. Id. at 289. The magistrate judge determined that Defendants had waived their privilege by affirmatively asserting a defense that put counsel‘s advice at issue. Id. at 286-87 (applying the waiver inquiry articulated in Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash. 1975)). Alternatively, the magistrate judge concluded that Defendants had waived their privilege under New Mexico law as well. Id. at 287.
Defendants filed an objection to the magistrate judge‘s order. Id. at 309. See
Three days after the district court‘s order, the magistrate judge conducted a telephone conference with the parties and issued an order reiterating the district court‘s rulings regarding the scope of the government‘s discovery requests. Id. at 398. The magistrate judge further ordered that a copy of her order explaining the scope of the requested discovery be sent to the subpoenaed law firms. Id. One of the firms that previously represented Defendants complied with the order by submitting documents to the district court, which the district court ordered sealed pending our ruling in this appeal. Aplt. Resp., at 4 & n. 1. Defendants now seek review of the magistrate judge‘s order denying Defendants’ second motion for protective order, the district court‘s order overruling Defendants’ objections to the magistrate judge‘s order, and the magistrate judge‘s order clarifying the scope of the requested discovery. Aplt.App. at 283-89, 383-99. Defendants argue this court has interlocutory jurisdiction to review the discovery orders appealed.
II
Generally, this court‘s jurisdiction is limited to review of “final decisions of the district courts.”
While recognizing that most interlocutory orders disadvantage or inflict some degree of harm on one of the parties to a litigation, this court must balance that concern against the need for efficient judicial administration, the delay caused by interlocutory appeals, and the burden on appellate courts imposed by fragmentary and piecemeal review of the district court‘s myriad rulings in the course of a typical case. Boughton v. Cotter Corp., 10 F.3d 746, 748 (10th Cir. 1993). Generally, however, “orders for the production of documents during the course of litigation are not ‘final orders’ subject to immediate appellate review.” Id. Defendants argue that jurisdiction arises under all three doctrines.
Collateral Order Doctrine
While
In Mohawk Industries v. Carpenter, 558 U.S. 100 (2009), the Supreme Court held that “the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege,” because “[e]ffective appellate review can be had by other means.” Id. at 609. In so holding, the Court “reiterate[d] that the class of collaterally appealable orders must remain narrow and selective in its membership,” and stressed that “full respect” be given to the Rules Enabling Act,
Nevertheless, Defendants attempt to distinguish Mohawk by focusing on whether the subpoenaed documents were sought from a nonparty, or from a party to the litigation. Defendants argue that the Mohawk decision was limited to “situations where the privileged information was obtained from a party.” Aplt. Resp., at 6-7. As support for this limitation, Defendants partially quote a sentence from the Mohawk decision for the proposition that “a party could obtain review of ‘particularly injurious or novel privilege rulings’ by disobeying the order and receiving sanctions or being held in contempt.” Id. (quoting Mohawk, 130 S.Ct. at 607).
Defendants’ quote omits the remaining part of the sentence. The Supreme Court stated that “litigants confronted with a particularly injurious or novel privilege ruling have several potential avenues of review apart from collateral order appeal.” Mohawk, 130 S.Ct. at 607 (emphasis added). Specifically, the Court delineated three potential avenues: 1) the party could ask the district court to certify an appeal under
Defendants argue that post-judgment appeal is inadequate here because “the erroneously broad blanket waiver and disclosure at issue cannot be remedied on appeal.” Aplt. Resp., at 7. But the Court recognized that review after final judgment is imperfect and that “an order to disclose privileged material may, in some situations, have implications beyond the case at hand.” Mohawk, 130 S.Ct. at 608. Regardless of these implications, “[t]hat a fraction of orders adverse to the attorney-client privilege may nevertheless harm individual litigants in ways that are ‘only imperfectly reparable’ does not justify making all such orders immediately appealable as of right under § 1291.” Id. Accordingly, Defendants’ broad argument that post-judgment appeal is inadequate here is not persuasive. See also United States v. Myers, 593 F.3d 338, 347 (4th Cir. 2010) (applying Mohawk‘s reasoning to an appeal of a contempt order arising from a discovery order because “[t]he Court made plain that delaying review for a challenge invoking the attorney-client privilege does not imperil any substantial public interest or other value enough to render the order being appealed ‘effectively unreviewable on appeal from the final judgment in the underlying action‘” (quoting Mohawk, 130 S.Ct. at 605)).
Finally, Defendants argue the merits of their asserted privilege by claiming the district court erred in applying federal common law, rather than state law, to determine whether, and to what extent, they waived their privilege. Aplt. Resp., at 8-9. Even if the district court erred regarding the merits of its ruling, however, that fact would not affect our jurisdictional inquiry. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (warning that the issue of appealability under § 1291 should be evaluated without regard to a “particular injustice” that may be “averted” by immediate appeal (alteration and quotation omitted)). Whether jurisdiction arises under the collateral order doctrine depends on the class of claims as a whole, and not on the specific facts of the case. The Supreme Court has ruled that post-judgment appeals generally suffice to review a party‘s claim against disclosure orders adverse to an asserted attorney-client privilege, and Defendants’ attempt to argue otherwise based on the specific circumstances here is contrary to the Supreme Court‘s ruling in Mohawk. As parties to the litigation, Defendants have available to them effective review of the district court‘s discovery orders. We conclude the third Cohen factor has not been met, which forecloses jurisdiction under the collateral order doctrine.
Perlman Doctrine
Next, Defendants assert we have jurisdiction under the Perlman doctrine. Generally, the denial of a motion to quash a subpoena is not a final order and not immediately appealable, United States v. Ryan, 402 U.S. 530, 532 (1971), because the subpoenaed person may refuse to comply with the subpoena and be held in contempt, “at [which] point, the witness’ situation becomes so severed from the main proceeding as to permit an appeal.” Cobbledick v. United States, 309 U.S. 323, 328 (1940). A complication arises,
Louis H. Perlman, the subject of a grand jury investigation, had previously produced records to the court clerk in a patent infringement suit. 247 U.S. at 8-9. While the records were in the court clerk‘s custody, the government sought to obtain these records to pursue perjury charges.
This court has interpreted Perlman to mean that appellate jurisdiction arises “when an interlocutory appeal is sought by an intervenor who claims a justiciable interest in preventing a third party‘s disclosure of documents or testimony, and the party subject to the subpoena indicates that he or she will produce the records or testify rather than risk contempt.” In re Grand Jury Subpoena, 709 F.3d 1027, 1029 (10th Cir. 2013) (quoting In re Grand Jury Proceedings, 616 F.3d 1172, 1179 (10th Cir. 2010)). This circuit has narrowly interpreted Perlman to apply in criminal grand jury proceedings, which this court again acknowledged in our recent opinion in In re Motor Fuel, 641 F.3d at 485. See also In re Grand Jury, 709 F.3d at 1029. Defendants attempt to distinguish In re Motor Fuel by asserting that this court “simply stated it was not aware of any case ‘that extends Perlman beyond criminal grand jury proceedings.‘” Aplt. Resp., at 11 (quoting In re Motor Fuel, 641 F.3d at 485). Again, Defendants omit the language following this partial quote. When quoted in full, this court stated:
We are aware of no case ... that extends Perlman beyond criminal grand jury proceedings. We decline to do so here. The underpinnings of the Perlman rule—the impossibility of an appeal later on—simply do not apply with equal force to a subpoena directed at a non-party as part of discovery in civil litigation.
In re Motor Fuel, 641 F.3d at 485 (emphasis added).
Defendants do acknowledge that this court has not extended Perlman to civil actions, but cite favorable rulings from other circuit courts as support for extending Perlman to apply in the present case. Aplt. Resp., at 11-12 (citing Ross v. City of Memphis, 423 F.3d 596, 599-600 (6th Cir. 2005) (determining jurisdiction in civil action arose under the Perlman doctrine because one defendant could not “prevent [another defendant] from disclosing allegedly privileged information“)).
We note, however, that all of the cases that Defendants cite in support of further extending Perlman to civil actions were decided before Mohawk, and, further, courts that have applied Perlman more broadly in civil actions have recognized that Mohawk limits interlocutory appeals of discovery orders regarding attorney-client privilege when brought by a party in civil litigation. See, e.g., Holt-Orsted, 641 F.3d at 237-38 (discussing in a civil action the tension between Mohawk and Perlman and holding that “where the privilege holder is a party to the litigation with recourse
Defendants next argue that interlocutory jurisdiction arises under Perlman for the same reasons the Ninth Circuit found Perlman applicable in United States v. Krane, 625 F.3d 568 (9th Cir. 2010). Aplt. Resp., at 13. In Krane, however, the privilege holder was not a party to civil litigation. Rather, the privilege holder was a corporation, Quellos Group, that intervened and appealed the district court‘s order compelling Quellos‘s former counsel to produce allegedly privileged documents that the government had subpoenaed in anticipation of a criminal trial of two Quellos executives. 625 F.3d at 570-71. In holding Perlman applicable, the court in Krane noted that “for all practical purposes, this appeal [was] Quellos‘s only opportunity to seek review of the district court‘s order adverse to its claims of attorney-client privilege,” because “neither the privilege holder nor the custodian of the relevant documents [were] parties [to] the underlying criminal proceedings.” Id. at 573, 575 (concluding appeal was moot because the defendants entered guilty pleas). Because Quellos had only intervened in the criminal action for the limited purpose of responding to the government‘s motion to compel compliance with the subpoena, it had no further opportunity for effective review. See Order, United States v. Greenstein, No. CR08-0296 RSM (W.D.Wash. June 8, 2010), ECF No. 210.
Unlike the privilege holder in Krane, Defendants are parties to civil litigation and can appeal any allegedly erroneous rulings after entry of the final judgment, which the Supreme Court has confirmed as generally sufficient in the attorney-client privilege context:
In our estimation, postjudgment appeals generally suffice to protect the rights of litigants and ensure the vitality of the attorney-client privilege. Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.
Even if we were to disregard the Supreme Court‘s decision in Mohawk,5 Perlman
Pragmatic Finality Doctrine
Finally, Defendants argue that jurisdiction is proper pursuant to the pragmatic finality doctrine. Under this doctrine, a “court may assume jurisdiction where the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review.” Albright v. UNUM Life Ins. Co. of Am., 59 F.3d 1089, 1093-94 (10th Cir. 1995) (quotation omitted). This court has described the pragmatic finality doctrine as “more subjective” than the collateral order doctrine, involving “ad hoc adjustments to the final decision requirement of § 1291.” Boughton, 10 F.3d at 751 (alteration and quotation omitted).
To the extent this doctrine is still recognized, it must be “invoked only in truly ‘unique instances,‘” and not when the dispute can be adequately reviewed on appeal from a final judgment. Id. at 752; see Albright, 59 F.3d at 1094 (“[T]he practical finality exception has lived a checkered life in both our court, and the United States Supreme Court.” (quotation omitted)); see also Johnson v. Jones, 515 U.S. 304, 315 (1995) (“[W]e do not now in each individual case engage in ad hoc balancing to decide issues of appealability.“). We have questioned the pragmatic finality doctrine‘s “continued viability for the last fifteen [plus] years,” and continue to do so after Mohawk. See In re Motor Fuel, 641 F.3d at 486. However, even if this doctrine could be applied, it would not benefit Defendants.
Defendants argue that the present appeal is a unique or exceptional circumstance because this court has not decisively answered whether federal or state law governs the privilege asserted. However, Defendants neither explain the importance of deciding this legal issue on immediate appeal, nor have Defendants shown that the danger of injustice by delaying appellate review outweighs the inconvenience and costs of piecemeal review. Defendants’ interests in immediate review center on their desire to prevent information they deem privileged from disclosure, but the Supreme Court has already found such
Mandamus
Defendants alternatively ask that this court construe their notice of appeal as a petition for writ of mandamus under
Generally, before a writ of mandamus may issue, the petitioner must satisfy three conditions: the party seeking writ must have no other adequate means for relief sought, the party‘s right to the writ must be clear and undisputable, and the issuing court must be satisfied that the writ is appropriate. In re Cooper Tire, 568 F.3d at 1187. When a writ of mandamus implicates the discovery of privileged information, two factors must first be established: “disclosure of the allegedly privileged or confidential information renders impossible any meaningful appellate review of the claim of privilege or confidentiality“; and “the disclosure involves questions of substantial importance to the administration of justice.” Barclaysamerican Corp. v. Kane, 746 F.2d 653, 654-55 (10th Cir. 1984).
Defendants have satisfied neither requirement. Because Defendants have an adequate avenue for relief and have not shown that disclosure of the information requested renders impossible any meaningful post-judgment appellate review, mandamus is not warranted. Defendants claim the unresolved legal question regarding whether federal or state law governs the privilege here warrants the issuance of a writ of mandamus, but Defendants do not explain how the discovery dispute here is of substantial importance to the administration of justice. See Boughton, 10 F.3d at 751 (denying mandamus in civil case despite involving “an unsettled issue of law” regarding privileges). Post-judgment appeal following the entry of a final appealable order can remedy any error the district court may have made in its discovery rulings. Similarly, Defendants have not asserted or explained how the district court‘s rulings were a clear usurpation of power or a “gross abuse of discretion.” See In re Cooper Tire, 568 F.3d at 1186. Accordingly, we would deny the writ even if we were to construe Defendants’ appeal as a petition for writ of mandamus.6
III
This interlocutory appeal is dismissed for lack of jurisdiction.