UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1281
VEDA BENNETT, ET AL.,
Plaintiffs, Appellees,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
COMMONWEALTH OF MASSACHUSETTS,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Scott Harshbarger, Attorney General, and William J. Meade,
Assistant Attorney General, on memorandum of law for appellant.
Mitchell H. Kaplan, Diane L. Azarian, Richard J. Maloney, and
Choate, Hall & Stewart on memorandum of law for appellees Yvonne and
Shannon Jenkins.
May 9, 1995
Per Curiam. In this pending civil rights action, the
District Attorney for Suffolk County in Massachusetts seeks
to appeal from an order mandating that various investigative
materials in his possession be disclosed to plaintiffs.
Because we lack jurisdiction to entertain such an
interlocutory challenge to a discovery order, the appeal will
be dismissed.
I.
The underlying action arises out of the investigation of
Willie Bennett for the murder of Carol DiMaiti Stuart. Eight
relatives and acquaintances of Bennett complain of unlawful
searches of their homes and seizures of their persons and
property in connection with that investigation. In
particular, they contend that the defendants--the City of
Boston, its police commissioner and five police officers--
coerced two teenagers into giving false statements
implicating Bennett and thereafter wrongfully used such
statements to obtain search warrants and for other
investigative purposes.
In the course of pretrial proceedings, plaintiffs served
upon the Suffolk District Attorney (a non-party to the case)
a subpoena duces tecum requesting an assortment of materials
pertaining to the murder investigation. Among the items
sought were grand jury transcripts, witness statements, and
various materials concerning witness interviews and the
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procurement of search warrants (e.g., police reports, audio
and video tapes, transcripts, and physical evidence). The
District Attorney moved to quash, arguing that such items
were privileged investigative materials and thus were exempt
from disclosure. See, e.g., United States v. Cintolo, 818
F.2d 980, 1002 (1st Cir.) (recognizing "qualified privilege
against compelled government disclosure of sensitive
investigative techniques"), cert. denied, 484 U.S. 913
(1987).1 Following a hearing, the district court agreed
that the grand jury transcripts need not be disclosed, but
ordered that all non-grand-jury materials be produced subject
to a protective order. The District Attorney has appealed
from the latter portion of this ruling, and appellees have
moved to dismiss for lack of jurisdiction.
II.
Each of the District Attorney's attempts to establish
appellate jurisdiction is effectively rebuffed by our
decision in Corporacion Insular de Seguros v. Garcia, 876
F.2d 254 (1st Cir. 1989). As we there explained, discovery
orders, "whether directed at parties or at non-parties," are
generally not appealable as "final decisions" under 28 U.S.C.
1291. Id. at 256. They are generally not appealable as
"injunctions" under 28 U.S.C. 1292(a)(1). Id. And they
1. The District Attorney has also made reference,
secondarily, to a privilege embracing "prosecutorial or
deliberative processes or work product."
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are generally not appealable under the "collateral order"
exception to the final judgment rule set forth in Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47 (1949).
One of the prerequisites to invoking the Cohen exception is
that the order be "effectively unreviewable on appeal from a
final judgment." Doughty v. Underwriters at Lloyd's, London,
6 F.3d 856, 862 (1st Cir. 1993). Such is not the case here;
the District Attorney "can gain the right of appeal from the
discovery order by defying it, being held in contempt, and
then appealing from the contempt order, which would be a
final judgment as to [him]." Garcia, 876 F.2d at 257;
accord, e.g., Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 377 (1981); MDK, Inc. v. Mike's Train House, Inc.,
27 F.3d 116, 120-22 (4th Cir.), cert. denied, 115 S. Ct. 510
(1994); see generally In re Recticel Foam Corp., 859 F.2d
1000, 1004 (1st Cir. 1988) ("discovery orders rarely satisfy
all four of [the Cohen] criteria").
While acknowledging that incurring a contempt citation
is the ordinary route to appellate review in this context,
the District Attorney argues that his status as an elected
government official and the county's chief law enforcement
officer calls for a different procedure. He relies in this
regard on United States v. Nixon, 418 U.S. 683 (1974), where
the Court allowed President Nixon to appeal from a discovery
order without first being cited for contempt. It explained:
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To require a President of the United States to
place himself in the posture of disobeying an order
of a court merely to trigger the procedural
mechanism for review of the ruling would be
unseemly, and would present an unnecessary occasion
for constitutional confrontation between two
branches of the Government.
Id. at 691-92. A similar argument was advanced by the Garcia
appellants (aides to the President of the Puerto Rico Senate
and the Puerto Rico Governor, respectively). We deemed Nixon
inapplicable, describing it as a "unique case" that was not
"meant to extend ... to any government official other than
the President himself." 876 F.2d at 257-58. Other courts
have read Nixon in a similarly narrow fashion. See, e.g.,
Simmons v. City of Racine, PFC, 37 F.3d 325, 328 (7th Cir.
1994) (refusing to extend Nixon exception to police
department officers and employees); In re United States, 985
F.2d 510, 511 (11th Cir.) (per curiam) (same as to FDA
Commissioner), cert. denied, 114 S. Ct. 545 (1993); Newton v.
National Broadcasting Co., 726 F.2d 591, 593 (9th Cir. 1984)
(per curiam) (same as to state gaming control board); United
States v. Winner, 641 F.2d 825, 830 (10th Cir. 1981) (same as
to Deputy Attorney General and Assistant Attorney General of
United States); In re Attorney General of the United States,
596 F.2d 58, 62 (2d Cir.) (same as to Attorney General),
cert. denied, 444 U.S. 903 (1979).2
2. Contrary to the District Attorney's suggestion, Socialist
Workers Party v. Grubisic, 604 F.2d 1005 (7th Cir. 1979) (per
curiam), on which he heavily relies, did not conclude that
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In several of these cases, it is true, the courts relied
on the principles underlying the Nixon exception to conclude
that the circumstances were sufficiently exceptional to
warrant mandamus relief. See In re United States, 985 F.2d
at 511-12; Winner, 641 F.2d at 830-31; In re Attorney General
of the United States, 596 F.2d at 62-64. The District
Attorney requests, in the alternative, that we do the same
here. Assuming, without deciding, that the extraordinary
remedy of mandamus might on occasion be appropriate in this
context, we readily conclude--just as we did in Garcia, 876
F.2d at 261--that such relief is unwarranted here.
Several factors underlie this conclusion. First, the
District Attorney has satisfied neither of the traditional
prerequisites to mandamus relief: (1) a showing of some
special risk of irreparable harm, and (2) a demonstration of
clear entitlement to the relief requested, i.e., that the
district court's order is palpably erroneous. See, e.g.,
Doughty, 6 F.3d at 865; In re Pearson, 990 F.2d 653, 656 (1st
Cir. 1993). Second, the discovery ruling at issue here is
the appellant State's Attorney fell within the Nixon
exception; the court there ended up invoking the collateral
order exception. The same court, more recently, has applied
Nixon narrowly and confined Grubisic to the "narrow facts"
presented. See Simmons, 37 F.3d at 328-29. We also note
that the principal case on which the Grubisic court relied--
Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th
Cir.), cert. denied, 380 U.S. 964 (1965)--has since been
discredited. See, e.g., MDK, Inc., 27 F.3d at 120; Boughton
v. Cotter Corp., 10 F.3d 746, 749 (10th Cir. 1993).
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one largely entrusted to the district court's discretion, and
"mandamus, as a general rule, will not issue to control
exercises of judicial discretion." In re Insurers Syndicate,
864 F.2d 208, 211 (1st Cir. 1988); accord, e.g., In re
Recticel Foam Corp., 859 F.2d at 1006. Third, the
possibility of a "softened" contempt decree involving a
citation without further sanction, see, e.g., Garcia, 876
F.2d at 259 (quoting National Super Spuds, Inc. v. New York
Mercantile Exchange, 591 F.2d 174, 180 (2d Cir. 1979)), might
go far to mitigate any "unseemliness" that might otherwise
arise from holding the District Attorney in contempt.
Finally, the recent decision in Globe Newspaper Co. v. Police
Comm'r of Boston, 419 Mass. 852 (1995), in which the Supreme
Judicial Court ordered public dissemination of many of the
same materials at issue here, further undercuts the propriety
of ordering such extraordinary relief.
The appeal is dismissed for lack of jurisdiction. The
temporary stay issued on March 22, 1995 is hereby dissolved.
Appellant's motion to stay the appeal is denied as moot.
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