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No. 08-678

 

In the Supreme Court of the United States

MOHAWK INDUSTRIES, INC., PETITIONER

v.

NORMAN CARPENTER

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
MICHAEL S. RAAB
ERIC FLEISIG-GREENE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether a party has the right to an immediate ap peal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), from a district court's order finding waiver of the attorney-client privilege and compelling production of privileged materials.

In the Supreme Court of the United States

No. 08-678

MOHAWK INDUSTRIES, INC., PETITIONER

v.

NORMAN CARPENTER

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

 

INTEREST OF THE UNITED STATES

This case presents the question whether the collat eral order doctrine permits immediate appeal of a dis trict court's finding of waiver of the attorney-client priv ilege. As the Nation's most frequent litigator in federal court, the United States has a substantial interest in proper resolution of the question presented. The gov ernment litigates the applicability of the attorney-client privilege in discovery disputes, as well as the applicabil ity of the collateral order doctrine in a variety of other contexts. Additionally, resolution of the question pre sented has potential implications for the immediate ap pealability of orders pertaining to unique governmental privileges.

STATEMENT

1. In 2004, a group of individuals (not parties to the present dispute) filed a class action lawsuit against petitioner, Williams v. Mohawk Indus., Inc., No. 4:04-cv-00003-HLM (N.D. Ga. filed Jan. 6, 2004), alleg ing that petitioner (a carpet manufacturer) had unlaw fully depressed the wages of its legally employed work ers through a pattern of racketeering activity by know ingly employing, harboring, and encouraging entry of illegal aliens. J.A. 50-52. During the pendency of the Williams action, petitioner hired respondent as a shift supervisor at one of its manufacturing facilities and sub sequently terminated him. J.A. 54, 61. Respondent brought suit in federal court against petitioner and cer tain of its executives, alleging that he had informed peti tioner's human resources department that it was em ploying illegal aliens; that petitioner's outside counsel had sought to compel him to recant his statements in order to insulate the company from liability in Williams; and that when he had refused, petitioner had terminated his employment based on pretext. Pet. App. 3a-4a; J.A. 48-66. Respondent sought recovery under 42 U.S.C. 1985(2) (conspiracy to deter him from testifying in Wil liams) and under various Georgia laws. Pet. App. 3a; J.A. 66-78.

Shortly after respondent filed suit, the plaintiffs in Williams sought an evidentiary hearing to explore the allegations in respondent's complaint. Pet. App. 4a. In its response to that motion, petitioner offered its ac count of the "true facts" behind respondent's termina tion. Ibid. Petitioner represented that respondent had "engaged in blatant and illegal misconduct" in circum vention of federal immigration laws; that petitioner had commenced an investigation of respondent's conduct and claims; that "[a]s part of that investigation" petitioner's outside counsel had interviewed respondent; and that, as a result of respondent's misconduct, petitioner had fired him. Id. at 4a-5a; see J.A. 208-211.

Respondent subsequently sought to compel produc tion of information relating to his meeting with peti tioner's outside counsel, as well as information relating to petitioner's decision to terminate his employment. Pet. App. 5a-6a, 22a. The district court granted respon dent's motion to compel. Id. at 29a-54a. The court held that the information at issue was protected by the attorney-client privilege, id. at 36a-42a, but that peti tioner had impliedly waived the privilege through its response to the Williams plaintiffs' request for an evi dentiary hearing, id. at 43a-51a. The district court ex plained:

By making those representations, [petitioner] placed the actions of [petitioner's outside counsel] in issue. In fairness, evaluation of those representations will require an examination of otherwise-protected com munications between [petitioner's outside counsel] and [respondent] and between [petitioner's outside counsel] and [petitioner's] personnel. Consequently, the Court must conclude that [petitioner] has waived the attorney-client privilege with respect to the com munications relating to the interview of [respondent] and the decision to terminate [respondent's] employ ment.

Id. at 6a, 51a. The district court stayed its order pend ing appeal. Id. at 52a.

2. The court of appeals dismissed petitioner's ap peal for lack of jurisdiction under 28 U.S.C. 1291, hold ing that the challenged discovery order did not qualify for immediate review under Cohen v. Beneficial Indus trial Loan Corp., 337 U.S. 541 (1949). The court ex plained that "[u]nder Cohen, an order is appealable if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreview able on appeal from a final judgment." Pet. App. 7a-8a.

The court held that an order finding waiver of the attorney-client privilege and compelling production of the underlying information satisfied the first and second elements of Cohen's test. Pet. App. 8a. The court held, however, that the district court's order did not satisfy Cohen's third element, reasoning that attorney-client privilege rulings could effectively be reviewed after final judgment by vacating any tainted verdict and ordering a retrial without the use of the privileged evidence. Id. at 8a-9a.

The court also relied on circuit precedent rejecting collateral order review for denials of the accountant-cli ent privilege in the discovery context. Pet. App. 10a- 11a. Emphasizing the "potentially large volume of ap peals [that] may arise out of such discovery orders" and the "powerful prudential reasons to avoid commonplace interlocutory appeals," the court noted that aggrieved parties possess adequate alternative avenues of review, including a petition for a writ of mandamus and an ap peal of a contempt order imposing sanctions for declin ing to produce the assertedly privileged material. Id. at 13a.

The court of appeals then denied petitioner's com panion mandamus petition, reasoning that even if the district court had erred in holding the privilege waived, petitioner "still ha[d] not shown that its right to the issu ance of the writ [was] clear and indisputable." Pet. App. 15a.

SUMMARY OF ARGUMENT

Discovery orders finding waiver of the attorney-cli ent privilege do not warrant immediate appeal under the collateral order doctrine. In addition to failing the sec ond and third requirements of the traditional Cohen test, these numerous and routine orders are insuffi ciently important to outweigh the strong interest against pre-finality appeals.

A. In its more recent cases applying the collateral order doctrine, the Court has emphasized that the class of eligible orders must remain "narrow and selective in its membership" and limited to cases where delaying review would "imperil a substantial public interest." Will v. Hallock, 546 U.S. 345, 347-353 (2006). While some orders adjudicating rights "embodied in a constitu tional or statutory provision" or having a similarly "good pedigree in public law" (such as qualified immunity) are entitled to immediate review, orders adjudicating other rights are not. Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 875, 879 (1994). This Court's prece dents have long denied collateral-order review to typical discovery orders because of the potential for undue de lay arising from countless automatic appeals. The Court generally has insisted, as a filtering mechanism, that a party must instead disobey the disclosure order and appeal the resulting contempt order or pursue manda mus or an appeal under 28 U.S.C. 1292(b).

B. Although the attorney-client privilege serves an important purpose, it is not of constitutional or other exceptional public-law pedigree. And the instrumental interest in encouraging "full and frank communication" between client and counsel is not materially undermined by denying collateral order review of a finding of waiver. The sheer volume and garden-variety nature of produc tion orders involving assertions of the attorney-client privilege cut against petitioner's contention that those orders are categorically of such special significance as to warrant immediate review.

Such orders also do not satisfy the traditional re quirements of the collateral order doctrine. A finding of waiver of the attorney-client privilege is ordinarily not "completely separate from the merits of the action." Whether the attorney-client privilege has been waived- which may depend on a determination of the unfairness to the opposing party of litigating the merits without the privileged information-often will require an assess ment of the significance of the privileged information to the merits.

Nor is an order finding a waiver of attorney-client privilege "effectively unreviewable on appeal from a final judgment." Several reasonable alternatives exist: Assuming a party complies, a district court may enter a protective order barring disclosure prior to trial, and an appeals court can vacate an adverse final judgment and exclude the use of any tainted evidence in a retrial. As suming non-compliance, a district court may issue, in lieu of an immediately appealable contempt order, other sanctions short of contempt that preserve a party's right to appeal. And, in especially important or egregious cases, a party can pursue a mandamus petition or an interlocutory appeal under 28 U.S.C. 1292(b). Should experience demonstrate that those various alternatives are inadequate, Congress-or the Court, pursuant to its rulemaking authority, see 28 U.S.C. 1292(e)-may clas sify attorney-client privilege orders as immediately appealable.

Although denials of the attorney-client privilege do not meet the Court's stringent standards for collateral- order review, denials of certain governmental privileges -in light of their constitutional grounding, rare invoca tion, and unique importance to governmental functions -should qualify for immediate appealability. In partic ular, the ordered disclosure of a Presidential communi cation or state secret would more directly and irremedi ably harm the purpose of the corresponding privilege (i.e., preserving confidentiality of top-level Executive Branch communications or protecting national security) than would disclosure of attorney-client privileged infor mation.

ARGUMENT

DISCOVERY ORDERS FINDING WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE DO NOT WARRANT IM MEDIATE APPEAL UNDER THE COLLATERAL ORDER DOCTRINE

The Court should apply in this case the same princi ples that it has applied in its more recent cases address ing the collateral order doctrine. That analysis requires, as part of or in addition to consideration of the tradi tional Cohen factors, an inquiry into the relative impor tance of the interest at stake-according special weight to interests of constitutional dimension or other substan tial public interests. Thus, for example, the Court has found denials of immunity under the Speech or Debate Clause, absolute or qualified immunity of federal offi cials, state sovereign immunity, and the assertion of the Presidential communications privilege to be immediately appealable under Section 1291. Applying that frame work here, discovery orders concerning the attorney- client privilege-voluminous in quantity and often mun dane in nature-are not subject to immediate appeal under the collateral order doctrine. But this is not to say that no denial of a claim of privilege could satisfy the Court's stringent standards. Privileges that are at once rarely invoked and of substantial constitutional signifi cance under the separation of powers would merit imme diate appeal under the Court's framework, even though assertion of the privilege might arise in the discovery context.

A. The Collateral Order Doctrine Is Limited To A Small Class Of Orders Implicating Sufficiently Compelling Constitutional Or Other Public Interests

"Section 1291 of Title 28, U.S.C., gives courts of ap peals jurisdiction over 'all final decisions' of district courts" not immediately appealable to this Court. Beh rens v. Pelletier, 516 U.S. 299, 305 (1996). The Court has given Section 1291's requirement of a "final deci sion[]" a "practical rather than a technical construction," Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), so as to extend "appellate jurisdiction over 'a narrow class of decisions that do not terminate the litiga tion,' but are sufficiently important and collateral to the merits that they should 'nonetheless be treated as fi nal.'" Will v. Hallock, 546 U.S. 345, 347 (2006) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). So understood, Section 1291 encom passes orders "conclusively resolving 'claims of right separable from, and collateral to, rights asserted in the action'_ that are _'too important to be denied review and too independent of the cause itself to require that appel late consideration be deferred until the whole case is adjudicated.'_ Id. at 349 (quoting Behrens, 516 U.S. at 305; Cohen, 337 U.S. at 546).

The Court has applied a three-pronged test to deter mine whether a class of orders may qualify for immedi ate appeal under the "collateral order doctrine." The orders must "[1] conclusively determine the disputed question, [2] resolve an important issue completely sepa rate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. (P.R. Aqueduct), 506 U.S. 139, 144 (1993) (brackets in original) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). The Court has emphasized in its more recent cases that in order to preserve the impor tant policies of judicial efficiency that underlie the final ity requirement of Section 1291, the class of collateral orders must remain "narrow and selective in its mem bership" and limited to cases where later review would "imperil a substantial public interest." Hallock, 546 U.S. at 350, 353; see id. at 350 ("[W]e have not men tioned applying the collateral order doctrine recently without emphasizing its modest scope."). As petitioner acknowledges (Br. 16), it must establish that the class of orders is sufficiently important to justify immediate ap peal. See Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., concurring) (framing inquiry as whether right to be vindicated is "sufficiently important to overcome the policies militating against interlocutory appeals").

Several types of orders that the Court has held sub ject to immediate appeal under the collateral order doc trine involve a party's "entitlement not to stand trial or face the other burdens of litigation." Mitchell v. For syth, 472 U.S. 511, 526 (1985) (qualified immunity); see Osborn v. Haley, 549 U.S. 225 (2007) (Westfall Act cer tification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (ab solute immunity); Helstoski v. Meanor, 442 U.S. 500 (1979) (Speech or Debate Clause immunity); Abney v. United States, 431 U.S. 651 (1977) (double jeopardy). One premise of these decisions is that such a right would be "effectively lost if a case [were] erroneously permit ted to go to trial." Forsyth, 472 U.S. at 526. But the right to immediate appeal in such cases stems not merely (or necessarily) from "a right to avoid trial" as such, but as well from "a judgment about the value of the interests that would be lost through rigorous appli cation of a final judgment requirement." Hallock, 546 U.S. at 350, 351-352 (citation omitted). The Court has thus denied immediate review of other collateral orders implicating a right to avoid trial, such as orders regard ing application of the Federal Tort Claims Act's judg ment bar to preclude constitutional tort actions against federal officers, id. at 354-355; rescission of a private settlement agreement that would otherwise prohibit suit, Digital Equip., 511 U.S. at 873; and denial of dismissal based on asserted immunity from civil process for extradited persons and on forum non conveniens grounds, Van Cauwenberghe v. Biard, 486 U.S. 517 (1988).

Similarly, while the Court recently has permitted immediate review under the collateral order doctrine of orders implicating compelling interests of constitutional dimension, see Sell v. United States, 539 U.S. 166, 175- 177 (2003) (forced medication of a prisoner to make him competent to stand trial), it has more often denied such review when important but non-constitutional interests are at stake, see, e.g., Cunningham v. Hamilton County, 527 U.S. 198 (1999) (discovery sanctions order); Rich ardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (dis qualification of counsel in civil case); Coopers & Ly brand, supra (order denying class certification).

In reconciling its modern collateral order prece dents, the Court has explained that the doctrine applies only where the question considered implicates "some particular value of a high order," such as "honoring the separation of powers, preserving the efficiency of gov ernment and the initiative of its officials, respecting a State's dignitary interests, [or] mitigating the govern ment's advantage over the individual." Hallock, 546 U.S. at 352-353. It is thus not merely an immediate in terest, but "a substantial public interest, that counts when asking whether an order is 'effectively' unreview able." Id. at 353. In assessing the substantiality of par ticular rights, the Court has made clear that those "orig inating in the Constitution or statutes" are to be shown particular solicitude. Digital Equip., 511 U.S. at 879. While orders adjudicating certain rights "embodied in a constitutional or statutory provision" or having a simi larly "good pedigree in public law" (such as qualified immunity) may be entitled to immediate review, orders adjudicating lesser interests are not. Id. at 875, 879.

Although the relevant inquiry does not categorically exclude discovery orders from the collateral order doc trine, "[a]s a general rule, a district court's order enforc ing a discovery request is not a 'final order' subject to appellate review." Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992). This Court's prece dents have long treated discovery orders differently because of their sheer volume, their often routine na ture, and the potential that appeals from such orders would cause undue delay. The Court typically has stated that a party must disobey the disclosure order and ap peal the resulting contempt order as a means of filtering disputes that justify immediate review. See, e.g., United States v. Ryan, 402 U.S. 530, 533 (1971) ("[T]he neces sity for expedition in the administration of the criminal law justifies putting one who seeks to resist the produc tion of desired information to a choice between compli ance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of con tempt if his claims are rejected on appeal."); Behrens, 516 U.S. at 319 (Breyer, J., dissenting) ("disobedience and contempt" requirement for discovery claims serves "to limit appeals to issues that are both important and reasonably likely to lead to reversal") (quoting 15B Charles Alan Wright et al., Federal Practice & Proce dure _ 3914.23, at 154 (2d ed. 1992)).

Application of the collateral order doctrine to the discovery context must be sensitive to the concerns ex pressed in those precedents. See, e.g., Cunningham, 527 U.S. at 209 ("Not only would [immediate appeals of discovery sanctions] ignore the deference owed by ap pellate courts to trial judges charged with managing the discovery process, it also could forestall resolution of the case.") (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). Because the doctrine should "never be allowed to swallow the general rule" of a sin gle post-judgment appeal, any allowance of an immedi ate appeal in the discovery context must be narrow and limited to issues of such importance as the Court has found necessary in recent cases. Hallock, 546 U.S. at 350 (quoting Digital Equip., 511 U.S. at 868).

B. Orders Resolving Attorney-Client Privilege Disputes Do Not Qualify For Immediate Appeal Under The Collateral Order Doctrine

The question remains whether discovery orders to produce information based on a finding that the attor ney-client privilege has been waived satisfy the tradi tional Cohen criteria and implicate a sufficiently compel ling interest to justify immediate appeal. Given the vol ume and nature of such orders, the answer should be no.

1. Discovery orders requiring disclosure of material allegedly subject to the attorney-client privilege do not as a class implicate an interest of a sufficiently high order

a. The attorney-client privilege is not "embodied in a constitutional or statutory provision" or in "public law." Digital Equip., 511 U.S. at 875, 879. Rather, like most discovery privileges, its origins are in common-law practice. While it is one of the oldest of such privileges, see Upjohn Co. v. United States, 449 U.S. 383, 389 (1981), its modern evolution has been marked by an in creasing array of exceptions designed to narrow the priv ilege's scope. See 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence _ 503.10[2], at 503-13 (2d ed. 2009) (Weinstein) ("[T]he modern trend generally has been towards broader disclosure, mani fested in ever-expanding provisions for discovery.").

The purpose of the attorney-client privilege is to pro mote "the observance of law and administration of jus tice" by encouraging "full and frank communication be tween attorneys and their clients." Upjohn, 449 U.S. at 389. All parties can agree that this purpose is impor tant. But for a class of orders to be immediately appeal able, more is necessary. Here, the harm to the attorney- client relationship resulting from unjustified disclosure of their communications must outweigh the substantial costs of permitting pre-final-judgment appeals in all cases finding a waiver of the privilege.

The Court has not found other protections of the attorney-client relationship to justify immediate appeal. Fundamental to this relationship is, of course, the right to retain an attorney of one's choosing. Indeed, for a criminal defendant, that right is protected by the Sixth Amendment. See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006). Yet an order infringing upon that interest cannot be immediately appealed. See Flanagan v. United States, 465 U.S. 259, 267 (1984) (order disqualifying criminal defense counsel not ap pealable under collateral order doctrine); Richardson- Merrell, 472 U.S. at 435 (order disqualifying civil coun sel not appealable under collateral order doctrine). When disqualification of chosen counsel, potentially in violation of the Constitution, does not give rise to an immediate appeal, denial of a common-law claim of privi lege designed to strengthen the attorney-client relation ship cannot be thought to do so.

Although petitioner acknowledges that the Court's recent cases make clear that "a determination of the im portance of the legal right at issue" is "central" to the collateral order inquiry (Br. 16), petitioner nevertheless relies on earlier collateral order cases when considering the relative importance of the interests at stake (id. at 30-31). Those earlier cases, however, offer little analysis of the importance of the right in question and appear to have placed much less weight on that factor.1 Peti- tioner's contention that the interests asserted here are "of equal importance" to those in the early collateral order cases thus has little relevance for today's inquiry.

In any event, for reasons explained later, the interest in encouraging "full and frank communication" between client and counsel is not materially undermined by re quiring the holder of the privilege to pursue the tradi tional avenue of post-judgment appellate review (or where appropriate, mandamus or Section 1292(b) inter locutory review). See Pt. B.2.b, infra.

b. The sheer volume and routine nature of most dis covery disputes involving assertions of the attorney-cli ent privilege also cut against the immediate appealability of judicial orders resolving them. See Resp. Br. 47 & n.7 (surveying district court decisions that adjudicate attorney-client privilege disputes). Al lowing immediate appeal of these decisions would poten tially prolong much federal-court litigation and thereby undermine Section 1291's finality requirement.2

There are no structural restraints on the assertion of attorney-client privilege claims. Some litigants may seek a tactical advantage by asserting and then appeal ing attorney-client privilege claims, even if they are of little import or merit. See, e.g., MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 120 (4th Cir. 1994) ("Many parties faced with discovery requests are apt to regard the information sought as sensitive or confiden tial and seek, at a minimum, to delay its disclosure through an interlocutory trip to an appellate court."); cf. Cunningham, 527 U.S. at 210 (Kennedy, J., concurring) ("Delays and abuses in discovery are the source of wide spread injustice; and were we to hold sanctions orders against attorneys to be appealable as collateral orders, we would risk compounding the problem.").

Even the threat of such appeals (with the accompa nying delay and expense) could substantially alter the course of discovery and inhibit the district court's ability to control the process. That is why the collateral order doctrine, especially in the discovery context, "empha sizes the deference that appellate courts owe to the trial judge" and seeks to avoid "the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals." Cunningham, 527 U.S. at 203 (quoting Firestone Tire & Rubber, 449 U.S. at 374).

Petitioner (Br. 39-40) and its amici (Chamber of Commerce (CoC) Br. 30-35) assert that only a relatively small number of appeals of attorney-client privilege dis putes appear to have arisen in the three circuits that currently allow immediate review of such orders. But that may simply reflect a combination of the relatively recent nature of those precedents and uncertainty as to the precise class of orders entitled to collateral order review in those circuits. In any event, there is good rea son to expect that immediate appeals would become sub stantially more common-both in those circuits and others-if this Court were to announce a uniform rule allowing immediate appeal in all such cases throughout the federal courts.

2. An order finding waiver of the attorney-client privi lege is not sufficiently separate from the merits or effectively unreviewable in other ways

An order requiring disclosure of information based on a finding of waiver of attorney-client privilege also does not satisfy the traditional requirements of the col lateral order doctrine-in particular, the second ("im portant issue completely separate from the merits of the action") and third ("effectively unreviewable on appeal from a final judgment"). Coopers & Lybrand, 437 U.S. at 468.3

a. The relative importance of attorney-client privi lege disputes has already been addressed (see pp. 13-16, supra). That leaves only the latter part of the second prong: whether rulings resolving attorney-client privi lege disputes are sufficiently separate from a suit's mer its. That requirement "is a distillation of the principle that there should not be piecemeal review of steps to wards final judgment in which they will merge." Van Cauwenberghe, 486 U.S. at 527 (internal quotation marks and citation omitted). It is designed to avoid "repetitive appellate review of substantive questions" by precluding review of "interlocutory orders that involve considerations enmeshed in the merits of the dispute." Id. at 528. Orders that require a court to "scrutinize the substance of the [underlying] dispute * * * to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff's cause of action and to any potential defenses to the action," are not sufficiently separate from the merits of the case to satisfy the collat eral order doctrine. Ibid.

Discovery sanctions, for example, ordinarily are not collateral orders because they "may require the review ing court to inquire into the importance of the informa tion sought or the adequacy or truthfulness of a re sponse." Cunningham, 527 U.S. at 205. Class action assessments of typicality, commonality, and adequacy of representation are also too closely linked to the merits of a case to be considered collateral. See Coopers & Ly brand, 437 U.S. at 469 n.12. Orders disqualifying civil counsel are likewise insufficiently separable from the merits because they might require assessing the likely effect of an attorney's prior conduct or future testimony on trial proceedings. See Richardson-Merrell, 472 U.S. at 439-440.

Petitioner (Br. 21), like the court of appeals, con tends that the second Cohen factor requires only that the disputed issue can be resolved "without deciding the merits of the case." Pet. App. 8a (emphasis added). But under that standard, the orders in all three of the above cases would have satisfied the second Cohen factor, since none of them actually required the district court to decide the merits.4

Although the inquiry as to whether information is protected by the attorney-client privilege in the first place generally does not implicate the merits of the un derlying suit, the further question whether that privi lege was waived often does. A determination that the attorney-client privilege has been waived by implication -directly at issue here-will ordinarily require the dis trict court to assess the significance to the litigation of the privileged information put into play by the client. See 3 Weinstein _ 503.41[1], at 503-105 (describing "waiver by implication" as "plac[ing] protected informa tion in issue for personal benefit through some affirma tive act," such that applying the privilege would be "manifestly unfair to the opposing party"). One common example is where a client asserts reliance on the advice of counsel as part of its defense, thereby making the privileged communications a substantive issue in the litigation. See 2 Paul R. Rice, Attorney-Client Privilege in the United States _ 9:44, at 213-214 (rev. 2d ed. 2007). A court's waiver-by-implication inquiry-in determining the unfairness to the opposing party of litigating the merits without the privileged information relied upon by the client-thus implicates the underlying merits at least as much as the classes of orders that the Court has already held insufficiently collateral to warrant immedi ate appeal.

The same holds true for waivers of the attorney- client privilege based on other grounds. For instance, a party may contend that its opponent's intentional dis closure of certain privileged information warrants a finding of waiver with respect to related but undisclosed privileged information. Federal Rule of Evidence 502(a) provides that, for intentional disclosures of attorney- client privileged information in a federal proceeding or to a federal agency, the waiver's scope depends in part on whether undisclosed material "ought in fairness to be considered together" with the disclosed information. That analysis requires an assessment of the merits of a case to determine the practical effect of withholding the material at issue. See Fed. R. Evid. 502 explanatory note ("[A] party that makes a selective, misleading pre sentation that is unfair to the adversary opens itself to a more complete and accurate presentation.").

The crime-fraud exception to the attorney-client privilege also often implicates the merits of the under lying case. Under that exception, the attorney-client privilege "does not extend to communications 'made for the purpose of getting advice for the commission of a fraud' or crime." United States v. Zolin, 491 U.S. 554, 563 (1989) (citation omitted). In criminal cases, the al leged crime or fraud supporting the exception may well overlap with conduct related to the charged offense. See Resp. Br. 27-29 & n.4 (collecting cases). In such cases, determining the applicability of the crime-fraud excep tion would require a preview of the merits.

Although petitioner suggests (Br. 20-21) that the district court in this case did not assess the merits of respondent's suit, that is far from clear. In finding waiver, the district court explained that by making rep resentations regarding its investigation and outside counsel's interview of respondent, petitioner had "placed the actions of [petitioner's outside counsel] in issue. In fairness, evaluation of those representations will require an examination of otherwise-protected communications between [petitioner's outside counsel] and [respondent] and between [petitioner's outside counsel] and [peti tioner's] personnel." Pet. App. 51a. That "fairness" determination was necessarily premised on the district court's assessment of the relevance of the privileged communications to the merits of respondent's claims.

In any event, the Court has rejected "a case-by-case approach to deciding whether an order is sufficiently collateral," Cunningham, 527 U.S. at 206, and instead asks simply whether "many" orders of the sort at issue may be intertwined with the merits of a case, Richard son-Merrell, 472 U.S. at 439. Whether the class of or ders here is limited to waivers by implication, or extends more broadly to encompass all waivers of and exceptions to the attorney-client privilege, a sufficient number of such orders are enmeshed in the merits of a dispute to render them non-collateral as a categorical matter. See Cunningham, 527 U.S. at 206; Richardson-Merrell, 472 U.S. at 439.

b. Attorney-client privilege disputes also are not "effectively unreviewable on appeal from a final judg ment." As the decision below explains, established pro cedures exist to remedy the litigation effects of an erro neous waiver ruling and disclosure following appeal from final judgment: a reviewing court may "reverse any adverse judgment and require a new trial, forbid ding any use of the improperly disclosed information, as well as any documents, witnesses, or other evidence ob tained as a consequence of the improperly disclosed in formation." Pet. App. 8a-9a.

Petitioner contends (Br. 23-27) that because a party cannot "unlearn" disclosed information, review following final judgment cannot eliminate the litigation effects of an erroneous waiver ruling. But courts routinely con front the need to prevent a party from using improperly obtained evidence, not only in the discovery context but also in criminal prosecutions. Faced with the fruits of unconstitutional searches and seizures, as well as con fessions, courts have developed longstanding rules to ensure that the prosecution cannot make use of knowl edge that it would not possess but for improperly ob tained information or evidence. See, e.g., Oregon v. El stad, 470 U.S. 298, 306 (1985) ("The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession."); Wong Sun v. United States, 371 U.S. 471, 487-488 (1963) (verbal evidence derived from an unlawful entry or unauthorized arrest excluded as "fruit of the poisonous tree"); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (copies and photographs of documents obtained through illegal search and seizure inadmissible as derivatives of ex cluded evidence). While those remedies are available following appeal from a final judgment, a district court's denial of a pre-trial motion to suppress such information is not appealable under the collateral order doctrine. See DiBella v. United States, 369 U.S. 121, 131 (1962).

If vacating an adverse judgment and excluding the use of any tainted evidence is adequate to guarantee the rights of a criminal defendant, it is difficult to see why those remedies would be inadequate for a civil litigant. Indeed, the procedures afforded by Federal Rule of Evi dence 502(b) and Federal Rule of Civil Procedure 26(b)(5)(B), which provide for the return and non-use of privileged documents inadvertently disclosed to an op posing party, are premised on the adequacy of such an approach.

Petitioner (Br. 25) and its amici (CoC Br. 18-21) also contend that the attorney-client privilege protects against the disclosure of information itself and not only its subsequent use at trial. But the attorney-client privi lege does not rest on the premise that confidentiality is an end in itself; rather, confidentiality is a means of fur thering a generalized societal goal of "encourag[ing] full and frank communication between attorneys and their clients and thereby promot[ing] broader public interests in the observance of law and administration of justice." Upjohn, 449 U.S. at 389. In any event, a post-judgment order that unwinds the litigation consequences of an erroneously ordered disclosure of attorney-client privi leged material would serve to mitigate any impact on the ex ante incentives for "full and frank communication"- the privilege's limited instrumental objective. See Swid ler & Berlin v. United States, 524 U.S. 399, 407 (1998). And given that a district court's resolution of an attorney-client privilege dispute presumably would be infrequently reversed on appeal anyway, any impact on those ex ante incentives would be marginal. See United States v. Philip Morris Inc., 314 F.3d 612, 625 (D.C. Cir. 2003) (Randolph, J., dissenting) (noting "the few errone ous discovery orders that might be corrected were ap peals available") (quoting Reise v. Board of Regents, 957 F.2d 293, 295 (7th Cir. 1992)).

The case for immediate review is even more attenu ated for waivers of attorney-client privilege. Such rul ings do not require consideration of the core elements of attorney-client privilege, but rather concern the conse quences of a party's or attorney's subsequent conduct with respect to the privileged communications. That context is at least one step removed from the communi cation between attorney and client that the privilege seeks to promote. Accordingly, any impact on the ex ante incentives for "full and frank communication" is considerably diminished. See Philip Morris Inc., 314 F.3d at 625 (Randolph, J., dissenting) ("If we did not hear the appeal, clients' incentives to communicate frankly with their attorneys would remain as strong as ever. The only possible change would be that clients might be more careful to hire attorneys who comply rig orously with the discovery rules.").

Petitioner and its amici nonetheless speculate that without immediate appeal of disclosure orders, the inter ests underlying the attorney-client privilege will be undercut in a variety of ways: individuals will be less forthcoming with their attorneys (CoC Br. 20-21); "cor porations may be less likely to engage in internal investi gations" (Pet. Br. 29); and society will suffer "a break down not only in attorney-client relations, but in the regulatory system that Congress envisioned and the Executive adopted" (DRI Br. 4). But a significant ma jority of circuits have never permitted collateral order review of attorney-client privilege disputes, and the rul ings in the three circuits that have are recent. Yet nei ther petitioner nor its amici offer any evidence that the grave consequences they predict have come to pass in any of those jurisdictions.

In those rare instances in which attorney-client com munications are sufficiently sensitive that an errone ously ordered disclosure cannot be remedied effectively on appeal after final judgment, other avenues of relief are available. The availability of those avenues counsels against permitting automatic piecemeal review via the collateral order doctrine of all disclosure orders arising out of attorney-client privilege disputes. See, e.g., Firestone Tire & Rubber, 449 U.S. at 378 n.13 ("Al though there may be situations in which a party will be irreparably damaged if forced to wait until final resolu tion of the underlying litigation before securing review of an order denying its motion to disqualify opposing counsel, it is not necessary, in order to resolve those situations, to create a general rule permitting the appeal of all such orders. * * * [A] party may seek to have the question certified for interlocutory appellate review pur suant to 28 U.S.C. § 1292(b), * * * and, in the excep tional circumstances for which it was designed, a writ of mandamus from the court of appeals might be avail able.").

As an initial matter, compliance with a disclosure order does not mean that the allegedly privileged infor mation must be made available to the whole world. The district court may enter a protective order, shielding the information from public use (at least until trial). Alter natively, the party invoking the privilege may refuse to comply with a disclosure order. Although the district court may hold a non-compliant party in contempt and impose sanctions-which could give rise to a right of immediate appeal (see pp. 11-12, supra)-district courts regularly impose sanctions short of contempt, such as allowing the trier of fact to treat a contested fact as es tablished. See Fed. R. Civ. P. 37(b)(2)(A)(i). That com promise may be worthwhile to a party possessing the allegedly privileged information in some cases, because it would preserve the right to appeal after final judg ment while not disclosing the information.

In any event, where the district court's error "amount[s] to a judicial usurpation of power, or a clear abuse of discretion," a party may seek relief through a petition for a writ of mandamus. Cheney v. United States Dist. Ct., 542 U.S. 367, 380 (2004) (internal quota tion marks and citation omitted). As the court of ap peals correctly recognized, "[u]tilizing the writ of man damus, as opposed to the collateral order doctrine, as the appropriate avenue to seek review of discovery or ders involving claims of privilege strikes an appropriate balance between the concerns of furthering the impor tant policies of full and frank communication sought to be furthered by the privilege and the concerns of judi cial efficiency." Pet. App. 13a; see Cunningham, 527 U.S. at 211 (Kennedy, J., concurring) ("If * * * the result is an exceptional hardship itself likely to cause an injustice, a petition for writ of mandamus might bring the issue before the Court of Appeals to determine if the trial court abused its discretion in issuing the order.").

Petitioner's amici express concern (CoC Br. 17, 22) that an erroneous disclosure order can produce "dra matic spillover effects" or "extreme pressure to settle." Appellate courts are well suited to prevent such conse quences through their mandamus authority and have not hesitated to apply the writ to do so. See, e.g., In re Lott, 424 F.3d 446 (6th Cir. 2005), cert. denied, 547 U.S. 1092 (2006); In re Regents of Univ. of Cal., 101 F.3d 1386 (Fed. Cir. 1996), cert. denied, 520 U.S. 1193 (1997); Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159 (2d Cir. 1992); 16 Charles Alan Wright et al., Federal Practice & Procedure _ 3935.3, at 605-606 n.6 (2d ed. 1996 & Supp. 2009) (citing examples). Amici offer no reason why such review would not adequately address the practical concerns that they raise.

Petitioner contends that "even palpably erroneous rulings * * * can be left unremedied via a cursory analysis based on the 'stringent standard' for manda mus." Pet. Br. 38 (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988)). There is no reason, however, to presume that courts will shirk their responsibility to correct significant errors through their mandamus authority. To be sure, mandamus of fers little recourse where a claim of privilege lacks merit or serious consequence. But that is the point: to allow immediate appeals as of right in every case in which a claim of attorney-client privilege is asserted and denied would unnecessarily disrupt and undesirably protract litigation throughout the federal courts.

Nor is mandamus the only alternative for an ag grieved party to obtain review of an attorney-client priv ilege dispute. Where the privilege is of sufficient impor tance to constitute "a controlling question of law," the immediate appeal of which may "materially advance" the litigation, parties may seek certification for an interlocu tory appeal under 28 U.S.C. 1292(b). See Van Cauwen berghe, 486 U.S. at 529 ("Our conclusion that the denial of a motion to dismiss on the ground of forum non conveniens is not appealable under _ 1291 is fortified by the availability of interlocutory review pursuant to 28 U.S.C. _ 1292(b)."). And should experience demonstrate that the various alternatives to mitigate harm and se cure appellate review in certain circumstances are inad equate, Congress (see, e.g., 28 U.S.C. 1292(a)(1)-(3)) or the Court (pursuant to its rulemaking authority under 28 U.S.C. 1292(e)) could classify attorney-client privi lege orders as immediately appealable in appropriate circumstances. See Cunningham, 527 U.S. at 210.

3. Certain privileges implicate interests of constitu tional significance under the separation of powers and qualify under the collateral order doctrine

As noted above (pp. 11-12, supra), the collateral or der doctrine does not categorically exclude all discovery orders irrespective of their nature or the interests that are at stake. This Court has recognized that important governmental interests, principally of constitutional and statutory significance, justify immediate appealability under the collateral order doctrine. See, e.g., Osborn, supra (Westfall Act certification); P.R. Aqueduct, supra (Eleventh Amendment immunity); Helstoski, supra (Speech or Debate Clause immunity). Although the attorney-client privilege does not meet that high bar, privileges such as those protecting Presidential commu nications and state secrets qualify for such treatment in light of their structural constitutional grounding under the separation of powers, relatively rare invocation, and unique importance to governmental functions.5

The Presidential communications privilege, which draws its authority from the constitutional role of the Executive and "can be viewed as a modern derivative of sovereign immunity," is well established. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 398 n.2 (D.C. Cir. 1984) (citing Raoul Berger & Abe Krash, Gov ernment Immunity from Discovery, 59 Yale L.J. 1451, 1459 n.46 (1950)). "The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution," and it derives largely from the "necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking." United States v. Nixon, 418 U.S. 683, 708 (1974). Unlike the attorney-client privilege (see pp. 15-17, supra), the Pres idential communications privilege is invoked relatively rarely and only after authorization of senior Executive Branch officials.

In Nixon, for example, the Court recognized the im mediate appealability of a district court order denying the President's assertion of the Presidential communica tions privilege against a subpoena to produce certain materials before a criminal trial. 418 U.S. at 690-692. Although the Court acknowledged the "strong congres sional policy against piecemeal reviews" embodied in 28 U.S.C. 1291, the Court held that the traditional route for generating an appealable order in that context-con tempt-was "peculiarly inappropriate" for questions of privilege involving the President of the United States. 418 U.S. at 690-691. Permitting immediate review would avoid an unnecessary "constitutional confrontation be tween two branches of the Government." Id. at 692.

In addition to the Presidential communications privi lege, this Court has long recognized a state-secrets priv ilege. That privilege may be invoked to avoid "a reason able danger that compulsion of the evidence will expose military matters which, in the interest of national secu rity, should not be divulged." United States v. Reyn olds, 345 U.S. 1, 10 (1953). The state-secrets privilege, whose origins extend to early Anglo-American law, "performs a function of constitutional significance, be cause it allows the executive branch to protect informa tion whose secrecy is necessary to its military and for eign-affairs responsibilities." El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007) (emphasis added); cf. Totten v. United States, 92 U.S. 105, 107 (1876) (noting that in compari son to cases involving common-law privileges-including the attorney-client privilege-"[m]uch greater reason exists for the application of the principle [against main tenance of a suit resulting in disclosure of confidential matters] to cases of contract for secret services with the government"). As a matter of practice, the privilege is invoked by a formal request "lodged by the head of the department which has control over the matter, after actual personal consideration by that officer," under scoring its unique significance to the functions of the Executive Branch and the restraints on its invocation. Reynolds, 345 U.S. at 7-8 (footnote omitted).

In addition to their paramount "public importance" and "the need for their prompt resolution," Nixon, 418 U.S. at 687, orders denying the applicability of the Pres idential communications and state-secrets privileges also satisfy the other traditional elements of the Cohen inquiry. First, an order requiring the disclosure of in formation over the government's assertion of those priv ileges would conclusively resolve the issue. The Execu tive cannot be expected to persist in withholding infor mation that a court has ordered to be disclosed; to sug gest otherwise would be to invite the "unseemly" inter branch conflict that this Court declined to let unfold in Nixon. Id. at 692.

Second, neither the Presidential communications privilege nor state-secrets privilege turns on the merits of the action in which they arise, but rather on the na ture of the constitutional prerogatives of the Executive Branch. Accordingly, when compared to the attorney- client privilege (see pp. 17-21 supra), the governmental privileges are more readily severable from the merits of the underlying case. For example, the question whether disclosure of a state secret would endanger national se curity or diplomatic efforts is independent of the merits of the underlying action that seeks the disclosure. If information is properly deemed a state secret, then any assessment of the potential merits of the action or the disclosure's impact on the merits is beside the point- the state secret cannot be divulged regardless. See Rey nolds, 345 U.S. at 11 (state-secrets privilege cannot be overcome by "even the most compelling necessity"). The Court in Nixon, a criminal case where the asserted Presidential communications privilege reflected a "gen eralized interest in confidentiality," engaged in a more case-specific inquiry, but only after finding appellate jurisdiction. 418 U.S. at 711.6

Third, an order denying invocation of the Presiden tial communications or state-secrets privilege is effec tively unreviewable after compliance. "Once the infor mation is disclosed, the 'cat is out of the bag' and appel late review is futile." Al Odah v. United States, 559 F.3d 539, 544 (D.C. Cir. 2009) (citation omitted) (order direct ing disclosure of classified information subject to collat eral order appeal). Although a post-judgment appeal can generally undo the litigation-specific effects of an erroneously ordered disclosure (see pp. 21-22, supra), the broader harm to the national interest from disclo sure of material protected by the Presidential communi cations or states-secret privilege cannot be undone. Those constitutionally rooted privileges protect informa tion pertaining to top-level communications within the Executive Branch or national security or foreign affairs; once that information is released, a reversal of judgment cannot mitigate the harm to the national interest. The ordered disclosure of communications with the Presi dent or his top aides or a state secret, therefore, would much more directly harm the purpose of the correspond ing privilege than would disclosure of attorney-client privileged information.

CONCLUSION

The judgment of the court of appeals should be af firmed.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
PRATIK A. SHAH
Assistant to the Solicitor
General
MICHAEL S. RAAB
ERIC FLEISIG-GREENE
Attorneys

JULY 2009

1 See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12-13 (1983) (order staying action pending resolution of pre viously filed state court action); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 347 n.8 (1978) (order allocating to class action defendants costs and expenses of identifying class members); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-172 (1974) (order imposing costs of notice on class action defendant); Stack v. Boyle, 342 U.S. 1, 6 (1951) (order denying reduced bail); Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 688-689 (1950) (order vacating attach ment of vessel in admiralty action); Cohen, 337 U.S. at 545-547 (order refusing to apply state statute requiring posting of bond).

2 Petitioner states (Pet. Br. 21, 39) that it seeks only a rule that would permit immediate appeal of findings of waiver of the attorney- client privilege. But petitioner provides no principled basis on which to limit the rule it seeks to waivers of the attorney-client privilege as opposed to denials of the applicability of the privilege in the first place. Regardless, petitioner's position at least covers all orders finding a waiver on any basis-itself a significant category.

3 We do not address the first element-whether the order "conclu sively determines the disputed question"-because a district court's order compelling disclosure of documents after rejecting any privilege- based objection presumably constitutes the district court's final deter mination of the privilege issue. Respondent (Br. 19-22) raises the "dis obedience and contempt" option as providing a further opportunity for the district court to revisit the privilege issue. Because any such recon sideration would be discretionary, the government believes that option should be addressed as an independent limiting principle (see pp. 11-12, supra) or as part of the third prong of the Cohen test (i.e., whether the denial of the privilege is "effectively unreviewable" without the collat eral order doctrine, see p. 25, infra).

4 As petitioner notes (Br. 22), the question of qualified immunity might also be said to overlap with the merits of an underlying dispute. The Court nevertheless has distinguished its immunity-related rulings from orders (such as those referred to in the text) the resolution of which may depend on the effect the order has on "the success of the parties in litigating the other legal and factual issues that form their underlying dispute." Forsyth, 472 U.S. at 529-530 n.10. This case falls into that latter category.

5 Likewise, the D.C. Circuit has held that a Member of Congress may take an immediate appeal of an order rejecting a claim of privilege from the disclosure of information under the Speech or Debate Clause. See United States v. Rayburn House Office Bldg., Room 2113, 497 F.3d 654, 658 (D.C. Cir. 2007), cert. denied, 128 S. Ct. 1738 (2008).

6 Although the Court in Nixon recognized the Presidential communi cations privilege to be qualified in the context of that criminal case, the privilege is exceedingly difficult to overcome in the civil context. See Cheney, 542 U.S. at 384 ("The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. * * * The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evi dence in civil proceedings does not have the same 'constitutional dimen sions.'") (quoting Nixon, 418 U.S. at 711). The second Cohen criterion thus poses even less of an obstacle to immediate appealability of a denial of the Presidential communications privilege in civil litigation.

APPENDIX

1. 8 U.S.C. 1229a provides, in pertinent part:

Removal proceedings

* * * * *

(5) Consequences of failure to appear

(A) In general

Any alien who, after written notice required un der paragraph (1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel of record, does not attend a proceeding un der this section, shall be ordered removed in ab sentia if the Service establishes by clear, unequivo cal, and convincing evidence that the written notice was so provided and that the alien is removable (as defined in subsection (e)(2) of this section). The written notice by the Attorney General shall be considered sufficient for purposes of this subpara graph if provided at the most recent address pro vided under section 1229(a)(1)(F) of this title.

(B) No notice if failure to provide address informa tion

No written notice shall be required under sub paragraph (A) if the alien has failed to provide the address required under section 1229(a)(1)(F) of this title.

(C) Rescission of order

Such an order may be rescinded only-

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as de fined in subsection (e)(1) of this section), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

The filing of the motion to reopen described in clause (i) or (ii) shall stay the removal of the alien pending disposition of the motion by the immigra tion judge.

(D) Effect on judicial review

Any petition for review under section 1252 of this title of an order entered in absentia under this paragraph shall (except in cases described in sec tion 1252(b)(5) of this title) be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien's not attending the proceed ing, and (iii) whether or not the alien is removable.

(E) Additional application to certain aliens in con tiguous territory

The preceding provisions of this paragraph shall apply to all aliens placed in proceedings under this section, including any alien who remains in a contiguous foreign territory pursuant to section 1225(b)(2)(C) of this title.

* * * * *

(7) Motions to reopen

(A) In general

An alien may file one motion to reopen proceed ings under this section, except that this limitation shall not apply so as to prevent the filing of one mo tion to reopen described in subparagraph (C)(iv).

(B) Contents

The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affida vits or other evidentiary material.

(C) Deadline

(i) In general

Except as provided in this subparagraph, the motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal.

(ii) Asylum

There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections1 1158 or 1231(b)(3) of this title and is based on changed country condi tions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presen ted at the previous proceeding.

(iii) Failure to appear

The filing of a motion to reopen an order en tered pursuant to subsection (b)(5) of this sec tion is subject to the deadline specified in sub paragraph (C) of such subsection.

(iv) Special rule for battered spouses, children, and parents

Any limitation under this section on the dead lines for filing such motions shall not apply-

(I) if the basis for the motion is to apply for relief under clause (iii) or (iv) of section 1154(a)(1)(A) of this title, clause (ii) or (iii) of section 1154(a)(1)(B) of this title,2 section 1229b(b)(2) of this title, or section 1254(a)(3) of this title (as in effect on March 31, 1997);

(II) if the motion is accompanied by a cancellation of removal application to be filed with the Attorney General or by a copy of the self-petition that has been or will be filed with the Immigration and Naturalization Service upon the granting of the motion to reopen;

(III) if the motion to reopen is filed within 1 year of the entry of the final order of removal, except that the Attorney General may, in the Attorney General's discretion, waive this time limitation in the case of an alien who demonstrates extraordinary circum stances or extreme hardship to the alien's child; and

(IV) if the alien is physically present in the United States at the time of filing the mo tion.

The filing of a motion to reopen under this clause shall only stay the removal of a qualified alien (as defined in section 1641(c)(1)(B) of this title3 pending the final disposition of the motion, in cluding exhaustion of all appeals if the motion establishes that the alien is a qualified alien.

* * * * *

(e) Definitions

In this section and section 1229b of this title:

(1) Exceptional circumstances

The term "exceptional circumstances" refers to ex ceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien.

* * * * *

2. 8 U.S.C. 1252 provides, in pertinent part:

Judicial review of orders of removal

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal (other than an order of removal without a hearing pursu ant to section 1225(b)(1) of this title) is governed only by chapter 158 of title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evi dence under section 2347(c) of such title.

(2) Matters not subject to judicial review

(A) Review relating to section 1225(b)(1)

Notwithstanding any other provision of law (statutory or nonstatutory), including Section 2241 or title 28, or any other habeas corpus pro vision, and Sections 1361 and 1651 of such title, no court shall have jurisdiction to review-

(i) except as provided in subjection (e) of this section, any individual determination or to entertain any other cause or claim arising from or relating to the implementation or op eration of an order of removal pursuant to section 1225(b)(1) of this title,

(ii) except as provided in subsection (e) of this section, a decision by the Attorney Gen eral to invoke the provisions of such section,

(iii) the application of such section to indi vidual aliens, including the determination made under section 1225(b)(1)(B) of this title, or

(iv) except as provided in subsection (e) of this section, procedures and policies adop ted by the Attorney General to implement the provisions of section 1225(b)(1) of this title.

(B) Denials of discretionary relief

Nothwithstanding any other provision of law (statutory or nonstatutory), including Section 2241 of title 28, or any other habeas corpus pro vision, and Section 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or

(ii) any other decision or action of the At torney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General of the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.

(C) Orders against criminal aliens

Notwithstanding any other provision of law (statutory or nonstatutory), including Section 2241 of title 28, or any other habeas corpus pro vision, and Sections 1361 and 1651 of such title, and except as provided by law, no court shall have jurisdiction to review any final order of re moval against an alien who is removable by rea son of having committed a criminal offense cov ered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense cov ered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without re gard to their date of commission, otherwise cov ered by section 1227(a)(2)(A)(i) of this title.

(D) Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial re view, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropri ate court of appeals in accordance with this sec tion.

* * * * *

(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1) of this section, the following require ments apply:

* * * * *

(6) Consolidation with review of motions to reopen or reconsider

When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order.

* * * * *

 

3. 8 C.F.R. 1003.2 provides, in pertinent part:

Reopening or reconsideration before the Board of Immi gration Appeals.

(a) General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the dis cretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

* * * * *

(c) Motion to reopen.

(1) A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. A motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation. A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discre tionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing. Subject to the other re quirements and restrictions of this section, and not withstanding the provisions in § 1001.1(p) of this chapter, a motion to reopen proceedings for consid eration or further consideration of an application for relief under section 212(c) of the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation.

(2) Except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or exclusion proceedings (whether be fore the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened, or on or before September 30, 1996, whichever is later. Except as provided in paragraph (c)(3) of this sec tion, an alien may file only one motion to reopen re moval proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceed ing sought to be reopened.

(3) In removal proceedings pursuant to section 240 of the Act, the time limitation set forth in para graph (c)(2) of this section shall not apply to a mo tion to reopen filed pursuant to the provisions of § 1003.23(b)(4)(ii). The time and numerical limitation set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings:

(i) Filed pursuant to the provision of § 1003.23(b)(4)(iii)(A)(1) or § 1003.23 (b)(4)(iii)(A)(2);

(ii) To apply or reapply for asylum or withhold ing of deportation based on changed circumstances arising in the country of nationality or in the coun try to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing;

(iii) Agreed upon by all parties and jointly filed. Notwithstanding such agreement, the parties may contest the issues in a reopened proceeding; or

(iv) Filed by the Service in exclusion or deporta tion proceedings when the basis of the motion is fraud in the original proceeding or a crime that would support termination of asylum in accordance with § 1208.22(f) of this chapter.

(4) A motion to reopen a decision rendered by an Immigration Judge or Service officer that is pending when an appeal is filed, or that is filed while an ap peal is pending before the Board, may be deemed a motion to remand for further proceedings before the Immigration Judge or the Service officer from whose decision the appeal was taken. Such motion may be consolidated with, and considered by the Board in connection with, the appeal to the Board.

(d) Departure, deportation, or removal. A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States. Any depar ture from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to reconsider, shall constitute a withdrawal of such motion.

(e) Judicial proceedings. Motions to reopen or re consider shall state whether the validity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. In any case in which an exclusion, deportation, or removal order is in effect, any motion to reopen or reconsider such order shall in clude a statement by or on behalf of the moving party declaring whether the subject of the order is also the subject of any pending criminal proceeding under the Act, and, if so, the current status of that proceeding. If a motion to reopen or reconsider seeks discretionary relief, the motion shall include a statement by or on be half of the moving party declaring whether the alien for whose relief the motion is being filed is subject to any pending criminal prosecution and, if so, the nature and current status of that prosecution.

(f) Stay of deportation. Except where a motion is filed pursuant to the provisions of §§ 1003.23(b)(4)(ii) and 1003.23(b)(4)(iii)(A), the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. Execution of such deci sion shall proceed unless a stay of execution is specifi cally granted by the Board, the Immigration Judge, or an authorized officer of the Service.

(g) Filing procedures-

(1) English language, entry of appearance, and proof of service requirements. A motion and any submission made in conjunction with a motion must be in English or accompanied by a certified English translation. If the moving party, other than the Ser vice, is represented, Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board, must be filed with the motion. In all cases, the motion shall include proof of service on the opposing party of the motion and all attachments. If the moving party is not the Service, service of the motion shall be made upon the Office of the District Counsel for the district in which the case was com pleted before the Immigration Judge.

(2) Distribution of motion papers.

(i) A motion to reopen or motion to reconsider a decision of the Board pertaining to proceedings before an Immigration Judge shall be filed directly with the Board. Such motion must be accompanied by a check, money order, or fee waiver request in satisfaction of the fee requirements of § 1003.8. The record of proceeding pertaining to such a mo tion shall be forwarded to the Board upon the re quest or order of the Board.

(ii) A motion to reopen or a motion to reconsider a decision of the Board pertaining to a matter ini tially adjudicated by an officer of the Service shall be filed with the officer of the Service having ad ministrative control over the record of proceeding.

(iii) If the motion is made by the Service in pro ceedings in which the Service has administrative control over the record of proceedings, the record of proceedings in the case and the motion shall be filed directly with the Board. If such motion is filed directly with an office of the Service, the en tire record of proceeding shall be forwarded to the Board by the Service officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs.

(3) Briefs and response. The moving party may file a brief if it is included with the motion. If the motion is filed directly with the Board pursuant to paragraph (g)(2)(i) of this section, the opposing party shall have 13 days from the date of service of the mo tion to file a brief in opposition to the motion directly with the Board. If the motion is filed with an office of the Service pursuant to paragraph (g)(2)(ii) of this section, the opposing party shall have 13 days from the date of filing of the motion to file a brief in oppo sition to the motion directly with the office of the Service. In all cases, briefs and any other filings made in conjunction with a motion shall include proof of service on the opposing party. The Board, in its discretion, may extend the time within which such brief is to be submitted and may authorize the filing of a brief directly with the Board. A motion shall be deemed unopposed unless a timely response is made. The Board may, in its discretion, consider a brief filed out of time.

(h) Oral argument. A request for oral argument, if desired, shall be incorporated in the motion to reopen or reconsider. The Board, in its discretion, may grant or deny requests for oral argument.

(i) Ruling on motion. Rulings upon motions to re open or motions to reconsider shall be by written order. Any motion for reconsideration or reopening of a deci sion issued by a single Board member will be referred to the screening panel for disposition by a single Board member, unless the screening panel member deter mines, in the exercise of judgment, that the motion for reconsideration or reopening should be assigned to a three-member panel under the standards of § 1003.1(e)(6). If the order directs a reopening and fur ther proceedings are necessary, the record shall be re turned to the Immigration Court or the officer of the Service having administrative control over the place where the reopened proceedings are to be conducted. If the motion to reconsider is granted, the decision upon such reconsideration shall affirm, modify, or reverse the original decision made in the case.

4. 8 C.F.R. 1003.23 provides, in pertinent part:

Reopening or reconsideration before the Immigration Court.

(a) Pre-decision motions. Unless otherwise permit ted by the Immigration Judge, motions submitted prior to the final order of an Immigration Judge shall be in writing and shall state, with particularity the grounds therefore, the relief sought, and the jurisdiction. The Immigration Judge may set and extend time limits for the making of motions and replies thereto. A motion shall be deemed unopposed unless timely response is made.

(b) Before the Immigration Court-

(1) In general. An Immigration Judge may upon his or her own motion at any time, or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals. Subject to the exceptions in this paragraph and paragraph (b)(4), a party may file only one mo tion to reconsider and one motion to reopen proceed ings. A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before July 31, 1996, whichever is later. A motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, de portation, or exclusion, or on or before September 30, 1996, whichever is later. A motion to reopen or to reconsider shall not be made by or on behalf of a per son who is the subject of removal, deportation, or exclusion proceedings subsequent to his or her de parture from the United States. Any departure from the United States, including the deportation or re moval of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen or a motion to recon sider shall constitute a withdrawal of such motion. The time and numerical limitations set forth in this paragraph do not apply to motions by the Service in removal proceedings pursuant to section 240 of the Act. Nor shall such limitations apply to motions by the Service in exclusion or deportation proceedings, when the basis of the motion is fraud in the original proceeding or a crime that would support termina tion of asylum in accordance with § 1208.22(e) of this chapter.

(i) Form and contents of the motion. The mo tion shall be in writing and signed by the affected party or the attorney or representative of record, if any. The motion and any submission made in conjunction with it must be in English or accompa nied by a certified English translation. Motions to reopen or reconsider shall state whether the valid ity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceed ing and, if so, the nature and date thereof, the court in which such proceeding took place or is pending, and its result or status. In any case in which an exclusion, deportation, or removal order is in effect, any motion to reopen or reconsider such order shall include a statement by or on be half of the moving party declaring whether the sub ject of the order is also the subject of any pending criminal proceeding under the Act, and, if so, the current status of that proceeding.

(ii) Filing. Motions to reopen or reconsider a decision of an Immigration Judge must be filed with the Immigration Court having administrative control over the Record of Proceeding. A motion to reopen or a motion to reconsider shall include a certificate showing service on the opposing party of the motion and all attachments. If the moving party is not the Service, service of the motion shall be made upon the Office of the District Counsel for the district in which the case was completed. If the moving party, other than the Service, is repre sented, a Form EOIR-28, Notice of Appearance as Attorney or Representative Before an Immigration Judge must be filed with the motion. The motion must be filed in duplicate with the Immigration Court, accompanied by a fee receipt.

(iii) Assignment to an Immigration Judge. If the Immigration Judge is unavailable or unable to adjudicate the motion to reopen or reconsider, the Chief Immigration Judge or his or her delegate shall reassign such motion to another Immigration Judge.

(iv) Replies to motions; decision. The Immi gration Judge may set and extend time limits for replies to motions to reopen or reconsider. A mo tion shall be deemed unopposed unless timely re sponse is made. The decision to grant or deny a motion to reopen or a motion to reconsider is within the discretion of the Immigration Judge.

(v) Stays. Except in cases involving in absentia orders, the filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. Execution of such deci sion shall proceed unless a stay of execution is spe cifically granted by the Immigration Judge, the Board, or an authorized officer of the Service.

* * * * *

(3) Motion to reopen. A motion to reopen proceed ings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits and other evidentiary material. Any motion to reopen for the purpose of acting on an application for relief must be accompanied by the appro priate application for relief and all supporting docu ments. A motion to reopen will not be granted unless the Immigration Judge is satisfied that evidence sought to be offered is material and was not available and could have not been discovered or presented at the former hearing. A motion to reopen for the purpose of provid ing the alien an opportunity to apply for any form of discretionary relief will not be granted if it appears that the alien's right to apply for such relief was fully ex plained to him or her by the Immigration Judge and an opportunity to apply thereof was afforded at the hear ing, unless the relief is sought on the basis of circum stances that have arisen subsequent to the hearing. Pursuant to section 240A(d)(1) of the Act, a motion to reopen proceedings for consideration or further consid eration of an application for relief under section 240A(a) (cancellation of removal for certain permanent resi dents) or 240A(b) (cancellation of removal and adjust ment of status for certain nonpermanent residents) may be granted only if the alien demonstrates that he or she was statutorily eligible for such relief prior to the ser vice of a notice to appear, or prior to the commission of an offense referred to in section 212(a)(2) of the Act that renders the alien inadmissible or removable under sec tions 237(a)(2) of the Act, or (a)(4), whichever is earliest. The Immigration Judge has discretion to deny a motion to reopen even if the moving party has established a prima facie case for relief.

(4) Exceptions to filing deadlines-

(i) Asylum and withholding of removal. The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply if the basis of the motion is to apply for asylum under section 208 of the Act or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding. The filing of a motion to reopen under this section shall not auto matically stay the removal of the alien. However, the alien may request a stay and, if granted by the Immi gration Judge, the alien shall not be removed pend ing disposition of the motion by the Immigration Judge. If the original asylum application was denied based upon a finding that it was frivolous, then the alien is ineligible to file either a motion to reopen or reconsider, or for a stay of removal.

(ii) Order entered in absentia or removal proceed ings. An order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to re open filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of exceptional circumstances as defined in section 240(e)(1) of the Act. An order entered in absentia pursuant to section 240(b)(5) may be rescinded upon a motion to reopen filed at any time if the alien demonstrates that he or she did not receive notice in accordance with sections 239(a)(1) or (2) of the Act, or the alien demonstrates that he or she was in Federal or state custody and the failure to appear was through no fault of the alien. However, in accordance with section 240(b)(5)(B) of the Act, no written notice of a change in time or place of pro ceeding shall be required if the alien has failed to provide the address required under section 239(a)(1)(F) of the Act. The filing of a motion under this paragraph shall stay the removal of the alien pending disposition of the motion by the Immigration Judge. An alien may file only one motion pursuant to this paragraph.

(iii) Order entered in absentia in deportation or exclusion proceedings.

(A) An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen filed:

(1) Within 180 days after the date of the or der of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances beyond the control of the alien (e.g., serious illness of the alien or serious illness or death of an immediate relative of the alien, but not including less compelling circumstanc es); or

(2) At any time if the alien demonstrates that he or she did not receive notice or if the alien demonstrates that he or she was in federal or state custody and the failure to appear was through no fault of the alien.

(B) A motion to reopen exclusion hearings on the basis that the Immigration Judge improperly entered an order of exclusion in absentia must be supported by evidence that the alien had reason able cause for his failure to appear.

(C) The filing of a motion to reopen under para graph (b)(4)(iii)(A) of this section shall stay the deportation of the alien pending decision on the motion and the adjudication of any properly filed administrative appeal.

(D) The time and numerical limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen filed pursuant to the provisions of paragraph (b)(4)(iii)(A) of this section.

(iv) Jointly filed motions. The time and numerical limitations set forth in paragraph (b)(1) of this sec tion shall not apply to a motion to reopen agreed upon by all parties and jointly filed.

1 So in original.

2 So in original.

3 So in original. A closing parenthesis probably should appear.