The Ninth Circuit held that the limits on government appeals in criminal cases warranted an immediate appeal from an order disqualifying an entire U.S. Attorney’s Office.
May 24, 2023
Orders on the disqualification of counsel are not normally appealable. In most cases, an appeal from a final judgment suffices to protect the relevant interests. But what about when a district court disqualifies an entire U.S. Attorney’s Office from participating in a prosecution? Several courts have held that such a disqualification is immediately appealable via the collateral-order doctrine. Last week, in United States v. Williams, the Ninth Circuit agreed.
The Disqualification Order in Williams
Williams stemmed from the prosecution of alleged gang members for a variety of offenses. Simplifying a bit, several of the defendants alleged (in sealed and ex parte motions) misconduct on the part of the Assistant U.S. Attorney prosecuting the case. The district court ultimately disqualified in the entire Arizona U.S. Attorney’s Office and ordered the government to obtain counsel from another district or Main Justice.
The government then filed an appeal and, alternatively, petitioned for a writ of mandamus.
Appealing Attorney-Disqualification Orders
Attorney-disqualification orders—whether granting or denying disqualification—are obviously not final in the traditional sense. But litigants have tried to appeal these orders via the collateral-order doctrine. That doctrine permits appeals from certain kinds of orders that (1) conclusively resolve an issue, (2) involve an important issue that is separate from the merits, and (3) would be effectively unreviewable in a final-judgment appeal.
The Supreme Court has addressed this issue a few times. Each time, it rejected the appeal. In Firestone Tire & Rubber Co. v. Risjord, the Court held that litigants cannot take a collateral-order appeal from an order refusing to disqualify counsel in a civil case. In Flanagan v. United States, the Court held that criminal defendants cannot appeal from an order disqualifying defense counsel. And in Richardson-Merrell, Inc. v. Koller, the Court held that civil litigants cannot appeal from orders disqualifying counsel.
The Supreme Court has not addressed the appealability of orders disqualifying an entire U.S. Attorney’s Office. But a few courts of appeals—at least the Third, Sixth, Seventh, and Tenth Circuits—have. And they have all held that these orders satisfy the collateral-order doctrine.
Jurisdiction Under the Collateral-Order Doctrine
In Williams, the Ninth Circuit joined those other circuits. The disqualification order was conclusive (as most disqualification orders are). The order was separate from the criminal charges and implicated separation-of-powers interests. And a final-judgment appeal would not suffice:
Whether or not the government ultimately prevails on the misconduct motions here, the harm to the separation of powers cannot be remedied after a ruling on the defendants’ charges. After a final judgment, it will be too late for our court to undo any improper encroachment on the Executive branch’s prosecutorial prerogatives. If a trial results in an acquittal, then double jeopardy bars the government from appealing or re-prosecuting the case. And if the government obtains a guilty plea or verdict, it’s unlikely we can rectify the situation because the government has already prevailed.
(Citations omitted.)
The Ninth Circuit accordingly concluded “that disqualification of an entire U.S. Attorney’s Office warrants immediate appellate review under the collateral order doctrine.”
United States v. Williams, 2023 WL 3516095 (9th Cir. May 18, 2023), available at the Ninth Circuit and Westlaw