Lance v. United States Department of Justice

KRAVITCH, Circuit Judge,

dissenting:

I respectfully dissent. In my opinion, the denial of the motion for contempt is not an appealable order under 28 U.S.C. § 1291 and, therefore, this court lacks jurisdiction.

Analytically, appealability first turns on whether the contempt sought is criminal or civil. Denial of a criminal contempt motion is non-appealable. Denial of civil contempt is appealable by a non-party. If the appellant is a party, however, denial of a civil contempt is not appealable at this juncture because a party has an opportunity for meaningful review at the conclusion of the case in chief unless the contempt action is so collateral to the litigation that immediate appeal is appropriate. Thus analyzed, the instant denial is not appealable.

Contempt is the normal remedy for breach of grand jury secrecy pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure. See United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978), modified on other grounds, 590 F.2d 1379 (5th Cir. 1979) (en banc). The court in Maiatesta, however, did not reach or decide whether the contempt discussed was more appropriately criminal than civil.1 This distinction is important because a criminal contempt action is governed by the rules applicable to criminal proceedings generally; no appeal may be taken from a judgment in favor of the alleged contemnor, including a denial of the motion.2 Therefore, if the contempt action at issue here is criminal, there can be no appeal.3 Lamb v. Cramer, 285 U.S. 217, 220, 52 S.Ct. 315, 76 L.Ed. 715 (1932); United States v. Sanges, 144 U.S. 310, 323, 12 S.Ct. 609, 36 L.Ed. 445 (1892); Wingert v. Kieffer, 29 F.2d 59 (4th Cir. 1928); United States ex rel. West Virginia-Pittsburgh Coal Co. v. Bittner, 11 F.2d 93 (4th Cir. 1926).

The majority concludes that the contempt sought here is clearly civil rather than criminal. I disagree that the answer is so clear. No bright line distinguishes the two; however, there are criteria by which the nature of the proceeding can be determined. One factor is the character of the offense. If the purpose of the sanction is to vindicate the public interest, the proceeding is criminal in nature; if it is to remedy a wrong done to a particular individual, it is civil. Another factor is the remedy prayed for. If the proceeding is to result in punitive sanctions, by unconditional fine or imprisonment, it is considered criminal. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 *222S.Ct. 492, 55 L.Ed. 797 (1911);4 Duell v. Duell, 85 U.S.App.D.C. 78, 178 F.2d 683 (D.C.Cir.1949). If, on the other hand, the remedy is compensatory or coercive to secure performance of an obligation,5 the proceeding would be civil. Even coercive imprisonment is civil because the defendants “carry the keys of their prison.” See In re Nevitt, 117 F. 448, 461 (8th Cir. 1902).

Here the prohibited action was the alleged disclosure of matters presented to the grand jury. In United States v. Malatesta, 583 F.2d 748 (5th Cir. 1978), the court identified four traditional reasons for clothing the grand jury process in secrecy: (1) to protect the accused from escaping and tampering with witnesses; (2) to encourage witnesses to appear and speak freely; (3) to encourage jurors to engage in uninhibited investigation and deliberation; and (4) to protect the reputation of an accused who is not indicted. It is apparent that all but factor (4) benefit the public interest in insuring the independence of the grand jury process. Factor (4) does not provide a basis for relief here because the appellant has been indicted.6 Therefore because the remaining reasons for grand jury secrecy protect public interests, it can be inferred from the nature of the offense that the contempt proceeding is criminal.

In addition to character of the violation, the nature of the contempt depends upon whether the sanction imposed is coercive and conditional or punitive. Gompers v. Buck’s Stove & Range Co., supra. Because the instant case involves denial of the motion for sanctions rather than an imposition of sanctions, we are limited in our analysis of the nature of the sanctions to the prayer for relief;7 it is impossible to determine from the motion itself whether the sanctions sought are punitive or remedial.8 Again because policies of secrecy are for the benefit of public rather than private interests, implying that a contempt action for violation would be criminal, appellant, at least, should have demonstrated that the remedies sought were remedial9 rather than punitive.

*223It is evident that if the present motion is construed to be one for criminal contempt there can be no appeal from the denial. United States v. Sanges, supra. However, even if we adopt the reasoning of the majority that the contempt sought is civil,10 this appeal is not proper.

An order holding a party to a lawsuit11 in civil contempt is interlocutory and normally not appealable until final judgment of the case in chief. Doyle v. London Guaranty Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907). Inferentially, the denial of such a motion is also not appealable by a party to the lawsuit. See Union Tool Co. v. Wilson, 259 U.S. 107, 110-11, 42 S.Ct. 427, 66 L.Ed. 848 (1922). The obvious reason underlying this doctrine is that a party to ongoing litigation will have another, more appropriate, opportunity to seek review of the court’s action when the entire case is appealed.12 This rationale preserves the party’s right to appeal and also diminishes piecemeal litigation with its attendant disruption of the ongoing case. Although it is true that a grand jury proceeding is “party-less” the Supreme Court has held that this distinction is immaterial in deter*224mining appealability.13 Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 84 L.Ed. 783 (1940). Furthermore, when a target has been indicted, as here, the criminal proceeding is definite as to parties and the party-less nature of a grand jury proceeding has disappeared.

The lack of an opportunity for review was the basis for the Seventh Circuit’s decision in In re Special April 1977 Grand Jury,14 relied upon by the majority. Factually, the case differs from the instant case, however, in that the target in April 1977 Grand Jury had not yet been indicted leaving the appellant in a different procedural posture than the instant case. The distinction is important because in April 1977 Grand Jury the court concluded 15 that an unindicted target has no other meaningful opportunity for review because no trial will occur from which final adjudication on appeal can be taken.16 Additionally, the unin-dicted target has no opportunity to rehabilitate his reputation at trial. Thus, the appeal did not run counter to the policies against piecemeal litigation and disruption of the judicial process. Moreover, protection of the reputation of the unindicted or innocent accused is one of the policies behind grand jury secrecy. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); United States v. Malatesta, supra. Because the target here has been indicted, he will have an opportunity to vindicate himself before a jury of his peers or to appeal at the termination of the case in chief.17

The majority has concluded that the order is appealable on the theory that the alleged defendants in the contempt proceeding are non-parties, being government employees appearing as attorneys for the government. Even if we accept the proposition that, in the instant case, the prosecuting attorneys are non-parties, appealability does not turn upon that status. In determining appealability, it is the status of the appellant rather than that of the appellee which is dispositive. Thus, a non-party may immediately appeal a contempt citation, yet a contempt citation against a party may not be appealed prior to final judgment. See text accompanying n. 11, supra. The distinction is logical — a non-party has no opportunity for review besides an immediate appeal whereas a party can have the order reviewed as part of the appeal of the case in chief. Analogously, a denial of contempt against a non-party cannot be appealed by a party until the termination of the case in *225chief.18 Thus, even if the appellees are properly considered non-parties to the criminal proceedings against Lance, the denial of the motion for sanctions is non-appeala-ble at this time.

Furthermore, the claim of the appellant is not limited to a discrete group of government officials who might properly be considered non-parties, but is against “all attorneys, agents and employees of the United States Department of Justice and the United States Attorneys Office for the Northern District of Georgia who are or have been involved in any manner whatsoever in the federal grand jury investigation of the banking practices and related activities of certain northern Georgia banks.” This overly-broad language presumably includes the Attorney General within its scope.19 Rather than seeking redress from mere government officials, the appellant has implicated the hierarchy of the Justice Department itself, a branch of the Federal Government which is presumably a “party” to a grand jury investigation and to a criminal trial. Moreover, the appellant obviously considered the appellees parties to the grand jury proceeding as he failed to initiate a separate proceeding with summons and service, steps which would be necessary in a contempt action against a non-party in order to comport with the requirements of due process.20

In support of the argument that appeal is proper against the non-party government attorneys, the majority relies chiefly21 on the Supreme Court decision in Lamb v. Cramer, 285 U.S. 217, 52 S.Ct. 315, 76 L.Ed. 715 (1932).22 A close reading of Lamb discloses that such reliance is misplaced. First, Lamb v. Cramer involved an issue more akin to res judicata than to appeala-bility of non-final orders. Second, the ease in chief involved in Lamb had terminated in final judgment prior to the appeal from the *226denial of the motion for contempt so that the denial itself was final.

Although the order involved here is interlocutory, review would be proper if the denial of the motion is collateral to the ongoing criminal proceedings. Under 28 U.S.C. § 1291, the court of appeals has jurisdiction to review only final judgments.23 The Supreme Court has authorized appeal of collateral orders, however, recognizing that there exists a “small class [of orders] 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 Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). The Court implied that review would be restricted to orders presenting “serious and unsettled question[s].” Id. at 547, 69 S.Ct. 1221. The Fifth Circuit has interpreted this rule to limit interlocutory appeal to “an order otherwise not appealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment . . . .” United States v. Wood, 295 F.2d 772, 778 (5th Cir. 1961), cert. denied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1962).

In determining whether an order is collateral, we are cognizant of the policies of minimizing piecemeal litigation and disruption of the orderly administration of justice. “Adherence to this rule of finality has been particularly stringent in criminal prosecutions because ‘the delays and disruptions attendant upon intermediate appeal’ which the rule is designed to avoid ‘are especially inimical to the effective and fair administration of the criminal law.’ ” Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651, 657 (1977). This policy applies to grand jury proceedings as well as trials. In the language of the Supreme Court:

The proceeding before a grand jury constitutes “a judicial inquiry,” Hale v. Henkel, 201 U.S. 43, 66 [, 26 S.Ct. 370, 375, 50 L.Ed. 652] (1906), of the most ancient lineage. . . . The duration of its life, frequently short, is limited by statute. It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the “orderly progress” of investigation should be no more encouraged in one case than in the other. That a grand jury has no definite litigants and that none may emerge from it, is irrelevant to the issue.

Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940).

The appellant has failed to demonstrate that the present order satisfies the above criteria for collateral orders. Because the appellant in his prayer for relief has not *227identified what sanctions he would ultimately seek, it is impossible to determine whether this action is “independent of the cause itself.” See e. g., Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert. denied, 384 U.S. 929, 86 S.Ct. 1380, 16 L.Ed.2d 532 (1966). Recognizing that the probability of disruption of the criminal investigation is relevant to appealability, the majority reasons that disruption is improbable because only contempt sanctions are sought. The majority, at best, is using a cloudy crystal ball, however, because the district court has very broad powers in fashioning contempt sanctions in order to remedy breaches of court orders.24 Moreover, the appellant specifically prays for relief that would “fully and appropriately protect the constitutional rights of the petitioner.” He further states that he has “been denied his rights under the fourth, fifth and sixth amendments to the United States Constitution.” These prayers are very telling in terms of whether the motion is truly collateral. It is obvious that the appellant is seeking protection of rights in the criminal context which are not collateral to an eventual criminal proceeding.25 Furthermore, because appellant will have an opportunity to air his constitutional grievances at trial, this court will have an opportunity to review such constitutional claims on appeal of the entire case.26

he foregoing should not be construed as precluding review of a district court’s supervision of the grand jury process; rather appeal is simply not the appropriate route. A better procedure to cure abuses of discretion or errors by the district court in supervising a grand jury is mandamus. See In re Grand Jury Subpoenas, 581 F.2d 1103 (3d Cir. 1978). Mandamus is more appropriate for three reasons: (1) Mandamus is discretionary with this court and not automatic as is appeal, and consequently has a lesser impact on the administration of the grand jury proceeding. (2) Mandamus benefits the movant because relief can be granted at a more meaningful time during grand jury deliberations rather than after an indictment has been returned, as in the instant case. (3) Mandamus will not spawn more appealable orders because a granting of the writ of mandamus is not a finding that the entire action is collateral to the main event. Additionally, prospective protection of the grand jury process can be accomplished by *228injunctive relief,27 the denial of which is appealable under 28 U.S.C. § 1292. Therefore, through mandamus and injunction the administration of grand jury proceedings can be scrutinized and the personal interests of targets can be protected without creating a new category of appealable orders.

For the foregoing reasons I conclude that the appeal should have been dismissed for lack of jurisdiction.

. In In re Grand Jury Subpoena Served upon Archuleta, 432 F.Supp. 583 (S.D.N.Y.1977), reconsidered on subsequent motion, 434 F.Supp. 325 (1977), the court ordered an investigation by the Justice Department of the alleged secrecy violations. That the government instigated the investigation implied that the contempt for breach of grand jury secrecy is criminal.

. Additionally, appellant’s standing to appeal the instant denial can be questioned. In Ramos Colon v. United States Atty. for D. Puerto Rico, 576 F.2d 1 (1st Cir. 1978), the court held that a defendant whose indictment had been dismissed lacked the standing to appeal a denial of a motion for sanctions against the prosecuting attorney for prosecutorial misconduct.

. Unlike a denial, a criminal contempt citation is immediately appealable by the contemnor without awaiting a final judgment in the case in chief. In re Merchants’ Stock and Grain Co., 223 U.S. 639, 32 S.Ct. 339, 56 L.Ed. 584 (1912).

. In Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911), the Supreme Court identified these and additional factors. If the contempt action results from the doing of a forbidden act, the action is criminal. If in contrast, the alleged contemnor has failed to do what he has been ordered to do, then the contempt is civil. Applying this analysis to the instant case results in the contempt being criminal because the attorneys are alleged to have breached grand jury secrecy, which is forbidden. The Supreme Court also stated that the style of the case is important: criminal actions are brought in the name of the United States. This factor is not dispositive in the Fifth Circuit, however. See Southern Railway Co. v. Lanham, 403 F.2d 119, 125 (5th Cir. 1968).

. In 28 U.S.C. § 1826, Congress has apparently provided an independent route for appeal for those conditionally incarcerated. See In re Grand Jury Investigation, 542 F.2d 166 (3rd Cir. 1976).

. This motion was filed on March 22, 1979 and the appellant was indicted on May 23, 1979. Although when the motion was filed the appellant did have a viable personal interest protected by Rule 6(e) because he had not been indicted, the question is now moot by virtue of the indictment. This is not as harsh as it seems. The reason for protecting the reputation of the unindicted is that, had damaging statements been leaked, an unindicted person would have no forum to rehabilitate himself and a civil contempt would be the only mechanism available to rectify the breach. See In re Special April 1977 Grand Jury, 587 F.2d 889 (7th Cir. 1978). A person who has been indicted will have the full public vindication of public trial on the merits.

. Even at oral argument, the attorneys for the appellant still had not focused on what remedies were being sought. When questioned as to what relief the court could now order given that the appellant was indicted, the attorneys merely replied that they wanted a hearing.

. A fair reading of the motion yields three claims:

(1) That all members and staffs of the Justice Department and the local U.S. Attorney’s office who participated in the grand jury show cause why they should not be held in contempt.
(2) That an in camera hearing be held to determine whether the jurors themselves had been talking to the press.
(3) That such sanctions be imposed and such actions taken as will fully and appropriately protect the constitutional rights of the petitioner.

. In Gompers the Supreme Court stated:

*223In this case the alleged contempt did not consist in the defendant’s refusing to do any affirmative act required, but rather in doing that which had been prohibited. The only possible remedial relief for such disobedience would have been to impose a fine for the use of complainant, measured in some degree by the pecuniary injury caused by the act of disobedience.

221 U.S. at 444-45, 31 S.Ct. at 499. This analysis applies with equal force to the instant case yet nowhere in his motion has the appellant sought money damages. Indeed, because appellant’s reputation may be rehabilitated through his trial, determination of even compensatory damages would be inappropriate until after the trial has concluded.

. The appellant’s third claim for relief arguably prays for personal relief implying he is seeking civil contempt. There are several problems with this claim, however. A reading of the entire prayer discloses that appellant seeks protection of his constitutional rights, specifically those secured by the fourth, fifth and sixth amendments. Protection of the constitutional rights of a target is not among the purposes of grand jury secrecy. Moreover, such relief may not be available to redress the violation of 6(e). See n. 9 supra. See also United States v. Malatesta, supra. Furthermore, appellant’s claim for redress of constitutional violations is not yet ripe. For example, appellant contends that his right to due process as guaranteed by the Fifth Amendment was violated because the grand jury considered the secrecy breaches of the Justice Department as evidence. If the information leaked was actually before the grand jury, then the grand jury would already be aware of the information and no prejudice could have resulted. If the argument is rather that the breaches caused a “self-fulfilling prophecy,” then the appellant can move that the indictment be quashed at the appropriate time prior to trial. On the other hand, if the issue is that the breaches fomented pretrial publicity, appellant can seek a change of venue. Both of these would be reviewable on appeal and are much more responsive to appellant’s constitutional claims than contempt action.

. In the usual case, the ongoing lawsuit is also civil rather than criminal. Appealability should not turn on this distinction because a civil contempt action and a criminal proceeding are not so unrelated that no rational purpose would be served by waiting until the criminal proceeding is final. As will be developed, depending on the sanctions sought and the purposes of the relief, the remedies could be very disruptive of the criminal proceeding. See n. 17 infra. Moreover, it is possible that the breaches could be remedied during trial. For example, if the gravamen of the claim is that the breach of secrecy enflamed the public to such an extent as to preclude a fair trial, the trial court could order a change of venue, and thus remedy the breach prior to trial. Thus, appealability should not depend on whether the ongoing litigation is criminal or civil but rather on the existence of a later opportunity for review.

. This rule is open to the criticism that if the disappointed party to the contempt action wins the case in chief there would be no appeal and hence no review of the earlier contempt action. If there has been a contempt citation, however, the contemnor would appeal regardless of the outcome of the case in chief to recover whatever damages had been awarded. If the contempt motion is denied and the party who sought the motion prevails eventually, the eventual damages would probably include those sought in the contempt action. Because the case in chief involved here is criminal, all damages to the appellant may be cured if he is acquitted. See Ramos Colon v. United States Atty. For D. Puerto Rico, 576 F.2d 1 (1st Cir. 1978), n. 17, infra.

. For a general discussion of appealability in the grand jury context, see Note, 65 Va.L.Rev. 573 (1979).

. 587 F.2d 889 (7th Cir. 1978).

. The court also relied on the fact that denials of motions to quash indictments are not ap-pealable should the target be indicted. 587 F.2d at 892. The court was correct only if it meant that motions to dismiss are not immediately reviewable. See United States v. Doucet, 461 F.2d 1095 (5th Cir. 1972). Because motions to dismiss are eventually reviewable, United States v. Lee, 413 F.2d 910 (7th Cir. 1969), should the appellant be indicted and convicted, the court was on weaker analytical ground since another opportunity for review would exist. There is even an argument that because the appellant could still be indicted the court should have waited until the grand jury proceeding was completed before determining whether the denial of the motion was appeala-ble because only then could it be determined that the appellant would have no opportunity for review.

. Indeed, the court distinguished an earlier case, In re Special March 1974 Grand Jury, 541 F.2d 166 (7th Cir. 1976), in which it held that an order denying an evidentiary hearing into grand jury abuse was not immediately appeala-ble because the appellant in the earlier case

failed to demonstrate how a denial of review will leave it powerless eventually to correct an injustice on a plenary review after the grand jury has ceased its investigation and the criminal trial has been conducted.

Id. at 170.

Similarly, the appellant here has failed to show that his rights could not otherwise be protected. See nn. 10, 11 supra.

. There may be some Rule 6(e) damage that is not capable of remedy by an innocent verdict. For example, confidential business records could have been divulged to the target’s financial detriment. This type of damage should not and cannot be subsumed by a jury trial. Of course, this breach of secrecy might also form the basis of an independent tort action.

. The analogy is also symmetrical. Clearly the denial of a motion for contempt against a party by a non-party should be immediately reviewable. This occurrence is not as exotic as it might appear. For example, the government may be successful in securing a temporary injunction in a civil rights case. If the injunction is violated by the defendant and an individual is harmed, that person would have the right to bring a contempt action against the party in violation'. A denial of such a motion should be immediately reviewed because there is no other opportunity for appellate review.

. See n. 2 of the majority opinion, the fourth article referenced.

. See 11 Wright & Miller, Federal Practice and Procedure: Civil § 2960 at 589 (1973).

. The majority also cites Sanders v. Monsanto Co., 574 F.2d 198 (5th Cir. 1978) and Southern Railway Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968). Both cases are irrelevant to the question presented here. Sanders involved contempt for violation of a consent order. The court held that the consent order was final for purposes of reviewing the civil contempt. Southern Railway involved an appeal of a court order holding the defendant in criminal contempt. Of course that holding was appealable by the contemnor. Union Tool Co. v. Wilson, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848 (1922).

. Lamb involved a denial of a contempt motion sought against an attorney of a party in a suit in equity. During the pendency of the suit, the attorney received, as compensation, some of the property that was the subject of the suit. The judge did not deny the motion for contempt until after final judgment had been rendered. The final judgment of the case in chief was not appealed, however. Upon appeal from the denial of the contempt motion, the attorney contended that the denial could not be appealed because there had been no appeal from the case in chief. The Supreme Court punctured this defense:

The proceeding, based on transactions had with the property involved in the principal suit, was in aid of that suit and of any decree which might be entered in it. It could be maintained, independently of the suit, either before or after the decree was entered, so long as it remained unsatisfied; and the appeal was not dependent upon an appeal from the decree.

Id. at 221, 52 S.Ct. at 317. Although the Court did hold that the denial was a final order, it is far from clear that the Court was holding that every such denial is a final order regardless of whether the case in chief was still ongoing. To read the decision as broadly as the majority would require that every denial or award of relief in a contempt proceeding is a final order and appealable, yet it is clear such is not the case. For example, even if a party is held in civil contempt the order is not appealable. Doyle v. London Guaranty Co., 204 U.S. 599, 27 S.Ct. 313, 51 L.Ed. 641 (1907). All such motions are not appealable.

. Certain interlocutory appeals are permitted by 28 U.S.C. § 1292 which provides in pertinent part:

(a) The courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;
(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Part (b) has not been complied with by the district court and is otherwise of doubtful application. It is possible that § (a)(1) could have been applicable had appellant been more specific in his prayer for relief.

. For example, suppose the appellant seeks an order from the court barring the present attorneys from future participation in the case or an order requiring that a “Chinese wall” be erected between the front line attorneys and their Justice Department supervisors or that the government be made to publically retract or apologize to the target for disclosures. It is evident that these sanctions go to the very heart of the administration of the grand jury proceedings with the attendant possibilities of delay and disruption. On the other hand, suppose the appellant seeks a dismissal of the grand jury or the quashing of the indictment. These are motions that can be more appropriately made before the district court prior to trial. That is not to say that there could not be a civil contempt motion sufficiently collateral to grand jury proceedings to permit appeal. For example, if the claim was solely for remedial relief, that is, damages for damage to reputation or loss of business information confidentiality caused by government disclosures, cf. Petrol Stops Northwest v. United States, 571 F.2d 1127 (9th Cir. 1978) rev’d, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) (Corporation has standing to object to disclosure of grand jury evidence involving confidential business information), then a hearing on the merits of this claim would not in any way interfere with ongoing grand jury proceedings and would conform to the policies of grand jury secrecy that benefit the target. Indeed, it may be that appellant is limited to compensatory money damages. See n. 9 supra. Based on the motion itself it is impossible to conclude that this appeal is collateral to the grand jury proceedings.

. See n. 10 supra.

. Beyond creating a new category of appeala-ble orders which could be abused, the court has also failed to address the result of accepting this appeal. If after requiring affidavits the court once more denies relief, is the court’s determination again appealable? Or, for example, if the appellant seeks the quashing of the indictment as the result of a hearing and the court refuses, is the denial appealable? It would be difficult to argue with logic that a decision not to hold a hearing is appealable but that the ultimate denial of relief is not. However, the denial of a motion to quash is not appealable unless on double jeopardy grounds. United States v. McDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978).

. See n. 17 supra for examples of injunct: prospectively. is that would protect the rights of the target