UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
March 20, 1979
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
LOEW'S INCORPORATED, ET AL., DEFENDANTS. UNITED ARTISTS CORPORATION, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Southern District of New York.
HONORABLE IRVING R. KAUFMAN, Chief Judge.
HONORABLE MURRAY I. GURFEIN, Circuit Judge.
HONORABLE JACOB MISHLER, District Judge, sitting by designation.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the appeal from the order of said District Court be and it hereby is dismissed. Judge Palmieri's order was not a "final decision" within the meaning of 28 U.S.C. § 1291.
1. "[One] to whom a subpoena is directed may not appeal the denial of a motion to quash that subpoena but must either obey its commands or refuse to do so and contest the validity of the subpoena if he is subsequently cited for contempt on account of his failure to obey." United States v. Ryan, 402 U.S. 530, 532 (1971), citing Cobbledick v. United States, 309 U.S. 323 (1940).
2. The logic of Cobbledick -- to prevent "an intolerable delay fatal to the vindication of the criminal law," 309 U.S. at 327 -- also bars appeal of the denial of a motion to restrain the scope of a grand jury investigation. In the Matter of Doe, 546 F.2d 498, 501 (2d Cir. 1976); In Re Grand Jury Investigation of Violations, 318 F.2d 533 (2d Cir.), cert. dismissed, 375 U.S. 802 (1963).
3. For the same reason, Judge Palmieri's order does not fit within the "small class" of collateral orders that may be reviewed immediately because they determine rights separable from the main action and are not "steps towards final judgment in which they will merge." Cohen, supra, 337 U.S. at 546. Under Coopers & Lybrand Co. v. Livesay, 98 S. Ct. 2454, 2458 (1978), this doctrine applies only where the order would be "effectively unreviewable on appeal from a final judgment." Clearly Judge Palmieri's order can be effectively reviewed after final judgment. In the Matter of Doe, supra; In Re Grand Jury Investigation, supra.
4. It is immaterial that Judge Palmieri's order was rendered after entry of final judgment in the Paramount case, or that it was the only matter pending in that case. The finality requirement must be given a "practical rather than a technical construction." Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949). In practical terms, Judge Palmieri's order was clearly not "self-contained" but rather "ancillary to [a] judicial proceeding" -- the grand jury investigation -- "which would be halted" were appeal permitted. Cobble-dick, supra, 309 U.S. at 327, 330. See Dibella v. United States, 369 U.S. 122, 132 (1962) (suppression order held interlocutory even though rendered in a district other than the one in which the trial would be held).
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