Byrd, Regina v. Reno, Janet

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 1999 Decided June 22, 1999

No. 99-5070

Regina Byrd,
Appellant

v.

Janet Reno,
In her capacity as United States Attorney General,
Appellee

On Consideration of Motions for Stay Pending Appeal and
to Dismiss or for Summary Affirmance
(No. 96cv02375)

Regina Byrd, appearing pro se, argued the cause and filed
the motions for stay.

David T. Smorodin, Assistant United States Attorney,
argued the cause for the appellee. Wilma A. Lewis, United
States Attorney, and R. Craig Lawrence, Assistant United

States Attorney, were on the motion to dismiss and respons-
es.

Before: Ginsburg, Sentelle and Henderson, Circuit
Judges.

Opinion for the Court filed Per Curiam.

Per Curiam: Regina Byrd, an attorney at the Department
of Justice's Office of Immigration Litigation, appeals the
district court's order holding her in civil contempt for failing
to turn over audiotapes of her conversations with supervisors
and a co-worker. The contempt order arises out of Byrd's
ongoing employment discrimination suit against the Attorney
General in which Byrd alleges she was discriminated against
on the basis of her race in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. ss 2000e et seq. For the
reasons set forth below, we dismiss the appeal for lack of
jurisdiction.

I.

Since 1994 Byrd has been employed as an attorney at the
Department of Justice's Office of Immigration Litigation. On
October 15, 1996 Byrd filed a complaint in district court
alleging that officials at the Office of Immigration Litigation
discriminated against her on the basis of her race. In the
course of the litigation Byrd claimed that during her employ-
ment she had secretly tape-recorded telephone conversations
with supervisors and a co-worker. During discovery proceed-
ings the government sought access to the tapes but Byrd
refused to produce them, invoking attorney work-product
privilege. On March 18, 1998 the magistrate judge granted
the government's motion to compel production of the tapes.
On June 4, 1998 the district court affirmed the magistrate
judge's order, determining that the tapes were not protected
as attorney work-product because Byrd's unethical conduct in
secretly taping the conversations vitiated the privilege. The
district court ordered Byrd to produce the tapes by June 10,
1998. This court dismissed Byrd's interlocutory appeal of the
June 4 order for lack of jurisdiction. See Byrd v. Reno, No.
98-5230, 1998 WL 545432 (July 17, 1998).

On March 9, 1999 after Byrd repeatedly failed to comply
with orders to turn over the tapes despite warnings that she

would be held in contempt if she failed to do so, the district
court ordered her to produce the tapes by March 10. The
court again warned that noncompliance would result in a
finding of contempt and the imposition of daily fines. Byrd
did not produce the tapes and the district court issued an
order on March 15, 1999 holding her in contempt and assess-
ing a daily fine of $100 until the tapes are turned over. Byrd
appealed and filed an emergency motion for a stay pending
appeal. The government moves to dismiss on the ground
that this court lacks jurisdiction over the district court's
order.

II.

Our jurisdiction over this appeal depends upon the continu-
ing validity of the rule that a civil contempt order against a
party in a pending proceeding is not appealable as a final
order under 28 U.S.C. s 1291. We recently observed that
our case law has generated an apparent conflict on this issue
but concluded "there is substantial doubt whether, if squarely
presented with the issue, we would deem such a civil con-
tempt order appealable." See In re Sealed Case, 151 F.3d
1059, 1064-65 (D.C. Cir. 1998) (per curiam) (Sealed Case).
We are now presented with the issue and, as suggested in
Sealed Case, hold that such an order is not appealable by a
party.

We observed in Sealed Case that "a civil contempt order
issued against a party is typically deemed interlocutory and
thus not appealable under 28 U.S.C. s 1291." 151 F.3d at
1064. The rule is well-entrenched in Supreme Court case law
and the law of this circuit. See Fox v. Capital Co., 299 U.S.
105, 107 (1936); Doyle v. London Guarantee & Accident Co.,
204 U.S. 599 (1907); International Ass'n of Machinists &
Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481,
1484 (D.C. Cir. 1988); Duell v. Duell, 178 F.2d 683, 687 (D.C.
Cir. 1949) (describing rule as "thoroughly settled"). At least
one circuit has held that the rule encompasses contempt
orders enforcing discovery orders. See In re Joint Eastern

& Southern Districts Asbestos Litig., 22 F.3d 755, 764-65 (7th
Cir. 1994).

As noted in Sealed Case, dicta in some of our recent cases
have cast doubt on the continuing validity of the Doyle and
Fox rule in this circuit. For example, we have stated that a
party seeking interlocutory review of a discovery order must
disobey the order and be cited for contempt and that "[h]e
may then appeal the contempt order, which is considered
final, and argue that the discovery order was flawed." In re
Sealed Case, 141 F.3d 337, 339 (D.C. Cir. 1998) (Sealed Case
I). Similar language appears in In re Minister Papandreou,
139 F.3d 247, 250 (D.C. Cir. 1998), and In re Kessler, 100 F.3d
1015, 1016 (D.C. Cir. 1997).

We explained the apparent conflict, however, in Sealed
Case. The dicta in Papandreou, Kessler and Sealed Case I
relied upon a footnote in Church of Scientology v. United
States, 506 U.S. 9, 18 n.11 (1992), which states: "A party that
seeks to present an objection to a discovery order immediate-
ly to a court of appeals must refuse compliance, be held in
contempt, and then appeal the contempt order." As we noted
in Sealed Case, however, it is implausible that the Supreme
Court intended to overrule, in a dictum (appearing in a
footnote), its Fox and Doyle decisions. See Sealed Case, 151
F.3d at 1064. Moreover, the Supreme Court's footnote relied
upon an earlier case, United States v. Ryan, 402 U.S. 530
(1971), in which the court did not need to distinguish between
civil and criminal contempt because that case involved the
recipient of a grand jury subpoena and it was well-settled
that a non-party to a proceeding can obtain immediate review
of a civil contempt order. See Lamb v. Kramer, 285 U.S. 217,
221 (1932); see also In re Sealed Case, 827 F.2d 776, 777 (D.C.
Cir. 1987) (person held in civil contempt for violating grand
jury subpoena can obtain immediate review per Ryan); In re
Ryan, 538 F.2d 435, 437 (D.C. Cir. 1976) (non-party com-
pelled to give testimony not entitled to immediate review
unless first disobeys and is held in contempt); cf. Kemp v.
Gay, 947 F.2d 1493, 1495-97 (D.C. Cir. 1991) (involving
subpoena directed to non-party); Office of Thrift Supervision,

United States Dep't of Treasury v. Dobbs, 931 F.2d 956, 957
(D.C. Cir. 1991). In addition, several circuits have applied
the Doyle and Fox rule even after Church of Scientology.
See, e.g., Cleveland Hair Clinic, Inc. v. Puig, 106 F.3d 165,
167 (7th Cir. 1997); Bingman v. Ward, 100 F.3d 653, 655 (9th
Cir. 1996), cert. denied, 520 U.S. 1188 (1997); Consumers Gas
& Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367, 370 (10th
Cir. 1996); Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456,
461 (3d Cir. 1996); Pro-Choice Network of Western New York
v. Walker, 994 F.2d 989, 993-94 (2d Cir. 1993).

Byrd, however, argues that Doyle and Fox were long-ago
overruled by Cobbledick v. United States, 309 U.S. 322 (1940),
in which the Court held that an order denying a motion to
quash a grand jury subpoena is not a final order. See id. at
324-30. As it did in Ryan, the Court refused to allow an
immediate appeal until the witness disobeyed the grand jury
subpoena and was held in contempt, although it did not
distinguish between civil and criminal contempt. Byrd ar-
gues that this rule, making all contempt orders immediately
reviewable, traces back to Bessette v. W.B. Conkey Co., 194
U.S. 324 (1904), and that it, and not the rule set out in Doyle
and Fox, applies to a contempt order entered against a party
in an ongoing proceeding. We think it clear that Bessette
established no such rule; indeed, Doyle expressly relies upon
Bessette to establish the rule that precludes a party from
obtaining immediate review of a civil contempt order. See
204 U.S. at 603. Her argument that Cobbledick established
the rule, however, is not so easily rejected.

Not since 1939 has the Court cited either Doyle or Fox in a
majority opinion for the proposition that a party cannot
appeal a civil contempt order until entry of final judgment.
See McCrone v. United States, 307 U.S. 61, 62 (1939). The
year after deciding Cobbledick, the Court, without comment-
ing upon its jurisdiction, permitted an interlocutory appeal of
a civil contempt order entered against a party for violation of
a discovery order. See Sibbach v. Wilson & Co., 312 U.S. 1
(1941). And as Byrd points out, nearly 20 years after
McCrone, the Court explicitly stated, albeit in a dictum, that
the Government "might of course have tested the[ ] validity
[of discovery orders] in other ways, for example, by the route
of civil contempt." United States v. Proctor & Gamble Co.,
356 U.S. 677, 680 (1958).

 Moreover, Byrd notes that the Supreme Court has applied
Cobbledick and Ryan to appeals of contempt orders issued for
disobeying discovery orders, even though both cases involved
grand jury subpoenas. See Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 377 (1981); Pennsylvania v. Ritchie,
480 U.S. 39, 50 n.8 (1987). These cases, again in dicta, do not
distinguish between civil and criminal contempt in discussing
whether a party who disobeys a discovery order and is held in
contempt may obtain immediate review. Most recently, and
not in a dictum, the Court grounded the right of a non-party
to appeal an adjudication of contempt for violating a discovery
order not in Lamb v. Cramer, which is part of the Doyle-Fox
line of cases, but in Cobbledick and Ryan. See United States
Catholic Conference v. Abortion Rights Mobilization, Inc.,
487 U.S. 72, 76 (1988).

Finally, Byrd argues that our lack of precision regarding
the immediate appealability of a civil contempt order predates
both Church of Scientology and International Association of
Machinists. In National Right to Work Legal Defense v.
Richey, 510 F.2d 1239 (D.C. Cir. 1975), we refused to grant
mandamus to review a discovery order because the "holding
in Ryan indicates ... [that] the order may be challenged
through disobedience." Id. at 1245. Admittedly, in Richey
we also noted that in NAACP v. Button, 371 U.S. 539 (1963),
a case upon which the petitioners in Richey attempted to rely,
the NAACP "was repeatedly willing to subject itself to the
risk of either criminal conviction or criminal contempt in
order to challenge various orders compelling it to disclose its
membership lists." 510 F.2d at 1246. Yet we did not specify
whether we were merely distinguishing Button or stating the
requirements of the Doyle-Fox rule.

Against this backdrop it is not implausible to argue not
only that Cobbledick overruled Doyle and Fox but also that
Richey, not International Association of Machinists, is the
law in this circuit. Of course, no other circuit has reached the
former conclusion. See In re Licht & Semonoff, 796 F.2d 564,
568 (1st Cir. 1986); United States v. Johnson, 801 F.2d 597,
599 (2d Cir. 1986); Thermice Corp. v. Vistron Corp., 832 F.2d

248, 251 (3d Cir. 1987); Brummer v. Board of Adjustment of
Ashville, 91 F.2d 720 (4th Cir. 1990) (table); In re Grand
Jury Subpoena, 926 F.2d 1423, 1429 (5th Cir. 1991); Uniroy-
al Goodrich Tire Co. v. Hudson, 97 F.3d 1452 (6th Cir. 1996)
(table); Powers v. Chicago Transit Auth., 846 F.2d 1139 (7th
Cir. 1988); Omaha Indem. Co. v. Wining, 949 F.2d 235, 238
(8th Cir. 1991): Bingman v. Ward, 100 F.3d 653, 655 (9th Cir.
1996); Consumers Gas & Oil, Inc. v. Farmland Indus., Inc.,
84 F.3d 367, 369 (10th Cir. 1996); Howard Johnson Co. v.
Khimani, 892 F.2d 1512, 1515 (11th Cir. 1990). And at least
one circuit has explicitly described Cobbledick and Ryan as
applying only to a civil contempt order entered against a non-
party. See United States v. Columbia Broad. Sys., Inc., 666
F.2d 364, 367 n.2 (9th Cir. 1982).

In the end, Byrd's argument must be rejected. The Su-
preme Court has never expressly overruled Doyle or Fox by
holding that a party may obtain interlocutory review of a civil
contempt order. Until it does so, Doyle and Fox remain good
law that this court must apply.

For these reasons, we hold that the traditional rule still
applies: a civil contempt order against a party in a pending
proceeding is not appealable as a final order under 28 U.S.C.
s 1291. This appeal fits squarely within that rule. Byrd is a
party in an ongoing proceeding. Moreover, the district
court's order involves civil rather than criminal contempt
because it is designed to compel compliance with a court
order rather than to punish for an earlier offense. See
International Union, United Mine Workers of Am. v. Bag-
well, 512 U.S. 821, 829 (1994) (per diem fine imposed for each
day contemnor fails to comply with affirmative court order is
civil in nature). Accordingly, the district court's contempt
order is not appealable as a final order.*

__________
* Because our holding may be inconsistent with circuit dicta, this
opinion has been circulated to and approved by the entire court and
thus constitutes the law of the circuit. See Irons v. Diamond, 670
F.2d 265, 268 n.11 (D.C. Cir. 1981).

 In Byrd's previous appeal of the June 4, 1998 order direct-
ing her to turn over the tapes, we held that her challenge to
the discovery order does not fall within the collateral order
doctrine set forth in Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546 (1949), because the order "will be
reviewable upon entry of a final judgment." Byrd v. Reno,
No. 98-5230, l998 WL 545432, at *1 (July 1, 1998). In this
appeal, she does not argue that the civil contempt order alters
our analysis under Cohen.

Finally, even if the appeal were construed as a petition for
a writ of mandamus, we would deny it. The remedy of
mandamus is reserved for extraordinary circumstances in
which the petitioner demonstrates that his right to issuance of
the writ is clear and indisputable and that no other adequate
means to obtain relief exist. See Sealed Case, 151 F.3d at
1063. As previously noted, both the discovery and the con-
tempt orders will be reviewable after entry of final judgment.
See id. at 1063 n.4 (criteria for collateral order doctrine
similar to criteria for writ of mandamus). Moreover, Byrd
has not met her burden of demonstrating that her right to
mandamus is clear and indisputable because it is far from
clear that the district court erred. See Chapman & Cole v.
Itel Container Int'l B.V., 865 F.2d 676, 686 (5th Cir. 1989)
(attorney's clandestine recording of conversations vitiates the
work-product privilege).

We conclude that this court lacks jurisdiction over the
district court's contempt order and accordingly grant the
government's motion to dismiss the appeal. Byrd's motion to
stay the order is therefore moot. To the extent the appeal
may be construed as a mandamus petition, the petition is
denied.

So ordered.