719 F.2d 394 | Temp. Emerg. Ct. App. | 1983
Appellant, United States of America, brought this action on June 29, 1982, as a Petition to Enforce seven Department of Energy (hereinafter “DOE”) subpoenas, issued on May 26, 1981, as amended September 22, 1981, to Appellees, Texas Energy Petroleum Corp., Texas Energy Reserve Corp., Texas Energy Refining Corp., Texas Energy Fuels Corp., Texas Energy Investment Corp., Texas Energy Oil & Gas Corp., and Commodities Reserve Corp., all affiliated corporations (hereinafter “Texas Energy”)-
The United States filed a motion requesting the certification of the enforcement order of February 17,1983, as a final appealable judgment under F.R.Civ.P. 54(b) and requesting that the stay on the subpoena enforcement order be revoked.
The United States filed a Notice of Appeal in this court on July 6, 1983, followed by a Petition for Writ of Mandamus on July 22, 1983. Also before us are Texas Energy’s Motion for Expedited Consideration and Motion to Dismiss the Appeal, or in the Alternative, for Summary Affirmance, both filed on July 18, 1983.
The issues presented by this appeal are:
1. Whether this court has jurisdiction to hear this appeal pursuant to the collateral order doctrine authorized by 28 U.S.C. § 1291 or pursuant to petition for mandamus, 28 U.S.C. § 1651.
2. Whether mandamus is proper in this case.
3. Whether the district judge’s stay of the subpoena enforcement order must be vacated and a final appealable order entered enforcing the subpoenas.
4. Whether Texas Energy should be awarded double costs and reasonable attorneys’ fees.
JURISDICTION
The Supreme Court has stated that: “It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should.” Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 291 (1821). We find this statement equally applicable to the case before us.
We have previously held that “[t]his Court, with the power of a circuit court of appeals over cases within its jurisdiction, has the power and duty, under the doctrine of the Cohen case, to hear appeals of final decisions determining separate important
Orders of the district courts may be the subject of immediate review if they “fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, 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 v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In determining whether a particular order of a district court falls within the Cohen doctrine, the rule is to be given a “practical rather than a technical construction”. Id. at 546, 69 S.Ct. at 1226; Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981). This court has concluded that a practical construction “requires that when a plaintiffs action is effectively dead, the order which killed it must be viewed as final. Effective death should be understood to comprehend any extended state of suspended animation.” Sun Oil Compay of Pennsylvania, supra, 572 F.2d at 870, quoting Hines v. D’Artois, 531 F.2d 726, 730 (5th Cir.1976).
APPLICATION OF THE COHEN DOCTRINE TO THIS CASE
A. Final Determination of a Claim of Right.
We agree with Appellant United States that the effect of the district court’s June 6 order denying Rule 54(b) certification while maintaining the stay of the enforcement order is to hold the subpoena enforcement order in a state of “suspended animation” while it remains “hostage” to the FOIA counterclaim filed by Texas Energy. See Appellant’s Brief at 9-10. Recently, we reiterated our concern that subpoena enforcement actions such as this be expedited in accordance with the “Congressional call for ‘prompt action by the Executive Branch’ ” in achieving the goals of the Emergency Petroleum Allocation Act, 15 U.S.C. § 751, as amended. United States v. RFB Petroleum, Inc., 703 F.2d 528, 533 (Em.App.1983), quoting United States v. Bell, 564 F.2d 953, 959 (Em.App.1977), Section 211(b)(1) of the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, and Section 4(b)(1)(F) of the Emergency Petroleum Allocation Act, supra. We have insisted on “speedy resolution”
B. The Claim of Right Is Separable From and Collateral To, Rights Asserted in the Action, and Too Important To Be Denied Review.
The subpoenas at issue in this case have already been held enforceable by the district court.
C. The Claim of Right Is Too Independent of the Cause Itself To Require that Appellate Consideration Be Deferred Until the Whole Case Is Adjudicated.
This case presents an unusual situation in which it would be particularly unjust and unnecessary to require that appellate consideration of the United States’ claim of right to expeditious enforcement of subpoenas already held enforceable be deferred until the FOIA counterclaim is decided. Appeal of the subpoena enforcement claim presents questions solely within the jurisdiction of this court. United States v. Empire Gas Corp., 547 F.2d 1147 (Em. App.1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1326, 51 L.Ed.2d 592 (1977); United States v. Wickland, 619 F.2d 75, 78 (Em.App.1980). Appellate jurisdiction of the FOIA counterclaim would be within the jurisdiction of the Fifth Circuit Court of Appeals. The issues raised by the FOIA counterclaim appear only to involve the application of that statute; construction and application of the Emergency Petroleum Allocation Act, as amended, 15 U.S.C. § 751, et seq., or the Economic Stabilization Act of 1970, as amended, 12 U.S.C. § 1904 note, will not be required. See Texaco, Inc. v. Department of Energy, 616 F.2d 1193 (Em.App.1979); United States v. Wyatt, 680 F.2d 1080 (5th Cir.1982); United States v. Uni Oil, Inc., 646 F.2d 946, 949-950 (5th Cir.1981), cert. denied, 455 U.S. 908, 102 S.Ct. 1254, 71 L.Ed.2d 446 (1982); and cases cited therein.
Effective administration of justice will not be served by further deferring appellate consideration of the subpoena enforcement claim since any appeal of this case would be bifurcated. United States v. Cooper, 482 F.2d 1393 (Em.App.1973), cited in Bray v. United States, 423 U.S. 73, 96 S.Ct. 307, 46 L.Ed.2d 215 (1975). This fact, compounded with the realization that the United States would be unable to secure a remedy for its important right to expeditious subpoena enforcement in a delayed appeal, compels us to the conclusion that the subpoena enforcement order in its current state of “suspended animation” is an appealable final order under the Cohen doctrine which would be “effectively unreviewable” at a later date. Moses H. Cone Memorial Hosp. v. Mercury Construction Corp., - U.S. -, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); Marine Petroleum, supra, 657 F.2d at 1241-1242; MGPC, Inc. v. DOE, 673 F.2d 1277, 1282 (Em.App.1982); DOE v. Brimmer, 673 F.2d 1287 (Em.App.1982).
MANDAMUS
If interlocutory review by appeal under the Cohen doctrine were not availa
As we have repeatedly held, the only valid inquiries in a summary subpoena enforcement action are 1) whether the subpoenas were issued pursuant to a lawfully authorized purpose and 2) whether the subpoenas seek information relevant to that purpose. Empire Gas Corp., supra; RFB Petroleum, Inc., supra, and cases cited therein; United States v. Ferrell, 717 F.2d 562 (Em. App.1983).
While we express no opinion on the validity of the use of FOIA requests as a backdoor discovery method, we hold that Texas Energy has not made the “substantial preliminary showing of abuse, bad faith or illegal purpose”
CONCLUSION
Therefore, the motions and request for costs and attorneys’ fees of Appellees Texas Energy are denied. Further, under the Cohen doctrine the appeal of the DOE is al
. The subpoenas were issued by the Department of Energy (“DOE”) pursuant to statutory authority granted it by Section 5(a)(1) of the Emergency Petroleum Allocation Act, 15 U.S. C. § 754(a)(1); Section 13(e)(1) of the Federal Energy Administration Act, 15 U.S.C.
. 5 U.S.C. § 552.
. Record at Vol. I, p. 127.
. Record at Vol. II, p. 233. This order was amended on November 19, 1982, to provide instead that the DOE witnesses should be made available at the show cause hearing. Record at Vol. II, p. 339.
. Record at Vol. Ill, Transcript of Show Cause Hearing of January 12, 1983, p. 97.
. Record at Vol. Ill, Transcript of Show Cause Hearing of January 13, 1983, p. 74. Counsel for Texas Energy stated in his oral motion for a stay at the show cause hearing that the “entire case would be final and appealable” only upon resolution of the FOIA counterclaim. Judge O’Conor immediately granted the motion for stay. Record at Vol. Ill, Transcript of Show Cause Hearing of January 13, 1983.
. Record at Vol. II, p. 352.
. Record at Vol. II, p. 429.
. Bray v. U.S., 423 U.S. 73, 76, 96 S.Ct. 307, 309, 46 L.Ed.2d 215 (1975).
. U.S. v. Empire Gas Corp., 547 F.2d 1147 (Em.App.1976), cert. denied, 430 U.S. 915, 97 S.Ct. 1326, 51 L.Ed.2d 592 (1977); U.S. v. Fredeman, 547 F.2d 1156 (Em.App.1977), cert. denied, 431 U.S. 915, 97 S.Ct. 2176, 53 L.Ed.2d 225 (1977); U.S. v. Pasco Petroleum Co., Inc., 633 F.2d 956 (Em.App.1980), cert. denied, 450 U.S. 995, 101 S.Ct. 1698, 68 L.Ed.2d 195 (1981); U.S. v. Bell, 564 F.2d 953 (Em.App.1977); U.S. v. First City National Bank, 598 F.2d 594 (Em. App.1979); U.S. v. Southwest National Bank, 598 F.2d 600 (Em.App.1979); U.S. v. Wickland, 619 F.2d 75 (Em.App.1980); U.S. v. Pel-Star Energy, Inc., 670 F.2d 1032 (Em.App.1982); U.S. v. Fitch, 676 F.2d 673 (Em.App.1982); U.S. v. Andrus Energy Corp., 678 F.2d 1081 (Em. App.1982); U.S. v. Lotus Petroleum, 678 F.2d 1082 (Em.App.1982); U.S. v. LaJet, 685 F.2d 1378 (Em.App.1982); U.S. v. Ted True, Inc., 687 F.2d 491 (Em.App.1982); U.S. v. Juren, 687 F.2d 493 (Em.App.1982); Apache Oil Co., Inc. v. U.S., 694 F.2d 714 (Em.App.1982); U.S. v. Armada Petroleum Corp., 700 F.2d 706 (Em. App.1983); U.S. v. RFB Petroleum, Inc., 703 F.2d 528 (Em.App.1983); U.S. v. Thriftyman, Inc., 704 F.2d 1240 (Em.App.1983); U.S. v. Ferrell, 717 F.2d 562 (Em.App.1983).
. Record at Vol. II, p. 361. Order Enforcing Subpoenas entered February 17, 1983.
. Bray v. U.S., supra, 423 U.S. at 76, 96 S.Ct. at 309.
. See also authorities in Footnote 10.
. See Appellee’s Brief at 13. Indeed, counsel for Texas Energy twice informed the court of their belief that no appeal could be had in this case until the FOIA counterclaim was resolved. Record at Volume III, Tab C, p. 26, Koury: “Your Honor, we have a pending counterclaim that has to be disposed of until [sic] this case can have a final judgment.’’; Record at Volume III, Tab C, p. 74, Lake: “We would request that the court as soon as possible rule ... so that we may proceed to finally resolve the counterclaim so this entire case will be final and appealable.” See also Appellee’s Brief at 4.
. Thriftyman, Inc., supra 704 F.2d at 1249.
. Juren, supra 687 F.2d at 494.