United States v. Legal Services

249 F.3d 1077, 346 U.S. App. D.C. 83, 50 Fed. R. Serv. 3d 740, 2001 U.S. App. LEXIS 10793, 2001 WL 557901
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 25, 2001
DocketNo. 00-5244
StatusPublished
Cited by16 cases

This text of 249 F.3d 1077 (United States v. Legal Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Legal Services, 249 F.3d 1077, 346 U.S. App. D.C. 83, 50 Fed. R. Serv. 3d 740, 2001 U.S. App. LEXIS 10793, 2001 WL 557901 (D.C. Cir. 2001).

Opinion

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

SILBERMAN, Senior Circuit Judge:

The Inspector General of the Legal Services Corporation petitioned for summary enforcement of a subpoena to appellant Legal Services of New York City. The district court granted the petition, and appellant now seeks review. We affirm.

I.

Appellant provides legal services to the poor. Each year, it and other grantees receive multi-million-dollar federal grants administered through the non-profit Legal Services Corporation. In a series of audits beginning in 1998, the Corporation’s Inspector General discovered improprieties in some grantees’ reports to the Corporation — most commonly, overstatement of the number of cases handled and failure to keep adequate records. That led the General Accounting Office to audit five grantees, including appellant, and it concluded that of the 221,000 cases reported by these grantees, “approximately 75,000 ... were questionable.” Expressing “concerns” about the inaccuracies in grantees’ reports, a Congressional committee requested that the Inspector General “assess the case service information provided by the grantees” and “report ... no later than July 30, 2000, as to its accuracy.”1

The Inspector General then required 30 grantees, including appellant, to produce for inspection two different sets of data on the cases they had reported closed during 1999. The first production, or “data call,” required that for each case, identified only by case number, the grantee must select [86]*86one of 52 “problem codes” to describe the subject matter of the representation. The problem codes vary from the specific— “Parental Rights Termination,” “Black Lung” — to the general — “Education,” “Contracts/Warranties” — and the catchall — “Other Individual Rights,” “Other Miscellaneous.” Appellant complied with the first data call.

The second data call required that for each case, again identified only by case number, grantees identify their client. Appellant, along with one other grantee, refused to comply. It informed the Inspector General that, absent client consent, both attorney-client privilege and its attorneys’ professional obligations prevented it from disclosing client names associated with case numbers, because to do so would allow the Inspector General to match client names with the problem codes previously produced. That linkage, appellant argued, would impermissibly reveal the subject matter of clients’ representations. Though the Inspector General disagreed that production was barred, he nevertheless proposed to set up a so-called “Chinese wall” — separate staffs, equipment, storage, etc. — to prevent any linkage. The Inspector General then issued subpoenas for the data. Appellant refused to comply, and the Inspector General petitioned the district court for summary enforcement.

The district court granted the petition. It rejected appellant’s blanket claim of atJ torney-client privilege as insufficient to demonstrate privilege regarding any given record. The court also turned aside appellant’s claim based on professional obligations, holding that the subpoenas were within the Inspector General’s statutory powers. Appellant had contended that the subpoenas were in addition unduly burdensome because the same verification could be performed without the damage this disclosure might cause to clients’ perceptions of confidentiality, but the court deferred to the Inspector General as to requirements of the audit.2 Appellant renews its arguments here.

II.

The Inspector General contends, and the district court agreed, that appellant has not made out a valid claim of privilege. In rejecting appellant’s unparticularized assertion of attorney-client privilege, the court stated that its ruling was “not intended to foreclose specific claims of privilege as to individual clients.” 100 F.Supp.2d at 46. In other words, as to some matters, appellant might be able to introduce contextual information demonstrating that the representation’s subject matter is itself confidential. In its reply brief, appellant expressly reserves the right to present particularized privilege claims to the district court in the event that we reject its unparticularized claim. This possibility led us to question our jurisdiction. Appellant asserts that it lies under 28 U.S.C. § 1291, which authorizes review of district courts’ “final decisions,” or in the alternative under 28 U.S.C. § 1292(a)(1), which provides for interlocutory appeals from district court orders regarding injunctions.

We find no authority for treating an order enforcing a subpoena as an injunction appealable under § 1292(a)(1). Courts have consistently held that grand jury and civil subpoenas are not injunctions appealable under that provision. See, e.g., United States v. Ryan, 402 U.S. 530, 534, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). Review is instead procured by refusing to comply and litigating the subpoena’s validity in the contempt proceeding that ensues. See id. at 532, 91 S.Ct. 1580; Office of Thrift Supervision v. Dobbs, 931 [87]*87F.2d 956, 957 (D.C.Cir.1991). Administrative subpoenas are horses of a slightly different color, since upon noncompliance the issuing agency seeks enforcement in the district court. See 5 U.S.C. app. 3 § 6(a)(4); Kemp v. Gay, 947 F.2d 1493, 1496 (D.C.Cir.1991). The ensuing district court order, either granting or denying enforcement, is appealable under § 1291 once final. See id. at 1497. In light of that there is even less reason to regard an administrative subpoena, either before or after enforcement, as an injunction.

Section 1291, which authorizes appeals of district courts’ final decisions, presents a more viable jurisdictional ground. As noted, orders enforcing administrative subpoenas are appealable under § 1291 once final. See FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C.Cir.1992). Here, however, the district court has indicated its willingness to entertain particularized claims of privilege. See 100 F.Supp.2d at 46. So it can be asked why the order is final. The answer lies in the breadth of appellant’s claim. It argues that the privilege properly understood allows it to refuse to provide any more justification for invoking the privilege than it has. It is not obliged to offer a particularized showing in individual situations. Since this argument is phrased so broadly, it follows that the district judge’s rejection of it is final even though he offers the possibility of more limited relief in individual cases. That is so because under appellant’s view of the scope of the privilege his order would encroach on the privilege.

The considerations we employ to evaluate finality are more practical than technical and do not require that the order appealed be the last order possible in the matter. See Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964);

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249 F.3d 1077, 346 U.S. App. D.C. 83, 50 Fed. R. Serv. 3d 740, 2001 U.S. App. LEXIS 10793, 2001 WL 557901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-legal-services-cadc-2001.