The Fifth Circuit on Governmental-Privilege Appeals

In last week’s Stallworth v. Bryant, the Fifth Circuit allowed Mississippi legislators to appeal a discovery order that rejected their claim of legislative privilege. It appears that those legislators were never held in contempt. This is odd; litigants normally must first be held in contempt for disobeying a discovery order before they can appeal it. But a little digging showed that appellate jurisdiction came from a line of (relatively old) Fifth Circuit decisions that allow immediate appeals from denials of governmental privileges.

These older Fifth Circuit decisions are questionable. Actually, I think they’re wrong—wrong when they were decided and particularly wrong since Mohawk Industries, Inc. v. Carpenter.

The legislators’ appeal in Stallworth

Simplifying a fair bit, Stallworth involved claims by members of Board of Commissioners of the Jackson Municipal Airport Authority, who oversaw the Jackson-Medgar Wiley Evers International Airport. They lost those positions after a 2016 Mississippi law transferred control to a new board, the Jackson Metropolitan Area Airport Authority. The former Board members intervened in a lawsuit challenging the law and claimed (as relevant to the appeal) that the new law violated equal protection. They alleged that the new law unlawfully diluted the voting rights of Jackson citizens and that the change in governance was racially discriminatory.

In pursuing those claims, the former Board members sought discovery from eight state legislators (who were not parties to the suit) about communications they had regarding the law. The legislators opposed discovery, the former Board members sought to enforce their requests, and the district court ordered the legislators to produce a privilege log.

The legislators appealed the district court’s discovery order. And in the interlocutory appeal, the Fifth Circuit vacated the order. As the Fifth Circuit saw it, the former Board members had not pleaded a sufficient injury—and thus lacked standing—to pursue their equal-protection claim. Since there was no jurisdiction over the equal-protection claim, there was also no jurisdiction to enforce discovery that was relevant only to that claim. But as Judge Higginbotham’s concurrence pointed out, the plaintiffs might be able to amend their pleadings to allege a sufficient injury.

The unmentioned issue of appellate jurisdiction

The Stallworth court did not discuss the basis for its appellate jurisdiction. (It did mention the scope of its jurisdiction—that it could address the Board members’ standing in an interlocutory discovery appeal—but it never said why the appeal was proper in the first place.) This made me curious. As discussed below, litigants normally cannot immediately appeal discovery orders, at least without first being held in contempt. So I pulled the briefs.

The Fifth Circuit’s rule for governmental-privilege appeals . . .

It turns out the Fifth Circuit has a line of cases holding that government officials can immediately appeal discovery orders that reject a claim of governmental privilege without first being held in contempt.

This rule for governmental-privilege appeals can be traced back to 1970’s Carr v. Monroe Manufacturing Co.. In Carr, the Fifth Circuit held that Mississippi could immediately appeal a discovery order that rejected a privilege claim over records of the Mississippi Employment Security Commission. Three years later, in Cates v. LTV Aerospace Corp., the court held that the Department of the Navy could immediately appeal a discovery order that rejected a claim of executive privilege. And in 1981’s Branch v. Phillips Petroleum Co., the Fifth Circuit held that the Equal Employment Opportunity Commission could immediately appeal a discovery order that rejected a claim of protection under Title VII’s confidentiality provisions. The Eleventh Circuit (which adopted the Fifth Circuit’s precedent upon separating from that court) has also applied this rule.

The Fifth Circuit has justified this rule as necessary to protect the government’s interest in maintaining the confidentiality of certain information:

The theory of allowing an appeal rests on the proposition that forced disclosure would irretrievably breach the claim of privilege and render an appeal from final judgment meaningless; hence, the exception.

The court has also acknowledged that its rule for governmental-privilege appeals is in some tension with the general rule requiring contempt. But it nevertheless adheres to it, as does the Eleventh Circuit.

. . . is probably wrong

But this rule is probably wrong.

Wrong when it was created

It was probably wrong from the get-to. The Supreme Court has long held that discovery orders are not immediately appealable; targets of discovery orders generally must wait until the end of district court proceedings to take a standard final-judgment appeal. Or they can use the contempt option: they can disobey the order and risk being held in contempt. If found in contempt, they can immediately appeal the contempt ruling. And in that appeal, the privilege claimants can challenge the underlying discovery order. The rule goes back to at least 1906, and the Supreme Court reiterated it shortly after the Fifth Circuit created its rule for governmental privileges.

There are some exceptions to the general rule. Parties to litigation cannot immediately appeal being held in civil (as opposed to criminal) contempt. (I don’t think this exception makes much sense, but it’s well established.) Privilege claimants who are not the target of a discovery order can immediately appeal the denial of a privilege claim via the Perlman doctrine. And sitting Presidents can appeal discovery orders that reject claims of executive privilege without first being held in contempt. There are also alternative routes to appeals—certified appeals under 28 U.S.C. § 1292(b) and mandamus. But for the most part, privilege claimants must either wait to appeal or take the contempt option.

The Fifth Circuit’s rule for governmental-privilege appeals cannot be reconciled with this general rule. Nor does the court’s reasoning hold up. The rationale for this rule—that absent an immediate appeal the privilege’s protection will be irretrievably lost—is true of all potentially privileged information. Every discovery order that rejects a claim of privilege creates a risk that confidential information will be erroneously disclosed, and that loss of confidentiality cannot be rectified in a later appeal.

In this respect governmental privileges are no different from other privileges. Indeed, as Branch recognized, the Supreme Court rejected a similar rationale in United States v. Ryan. The target of the discovery order in Ryan argued that complying with a subpoena would involve substantial burdens, warranting an immediate appeal. But the Court rejected that argument. To be sure, the efforts spent complying with the subpoena could never be recovered. But compliance wasn’t his only option; he could also appeal via contempt:

If, as he claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar proceedings are brought against him. Should his contentions be rejected at that time by the trial court, they will then be ripe for appellate review.

Nor can the Fifth Circuit’s rule be justified as an extension of the just-mentioned exception for sitting Presidents. For one thing, the case that created that exception—United States v. Nixon—was decided after the Fifth Circuit established its rule for appealing governmental privileges.

But more to the point, Nixon was a unique case involving a President invoking executive privilege. The Court thought that requiring the President be held in contempt would be “unseemly” and could create substantial separation-of-power issues. Nixon has since been limited to its unique context; courts have required other government officials to take the contempt route, including the attorney general, federal agencies, state agencies, and a former head of state.

And wrong now

Even if the Fifth Circuit’s governmental-privileges rule was at one time defensible, it isn’t anymore—it should be deemed abrogated by the Supreme Court’s 2007 decision in Mohawk Industries, Inc. v. Carpenter.

In Mohawk, the Court held that discovery orders rejecting a claim of attorney-client privilege are not immediately appealable under the collateral order doctrine. It said that “post-judgment appeals generally suffice to protect the rights of litigants and assure the vitality of the attorney-client privilege.” The Court also emphasized that privilege claimants already have several avenues for seeking immediate review of discovery orders: § 1292(b), mandamus, and the contempt option. These existing means of seeking review, the Court thought, made collateral-order appeals of discovery orders unnecessary.

That should have abrogated the Fifth Circuit’s rule. Not so, said the Eleventh Circuit. In In re Hubbard, that court rejected the argument that Mohawk abrogated the rule for governmental-privilege appeals. Mohawk, the Eleventh Circuit thought, was about appeals involving the attorney-client privilege. It thus said nothing about governmental privileges and was not sufficiently on point to abrogate a prior panel decision.

That’s a stretch. True enough, Mohawk was about the attorney-client privilege. But its reasoning is pretty much on point. Just like discovery orders that reject a claim of attorney-client privilege, those invoking a governmental privilege already have several avenues for seeking immediate review: § 1292(b), mandamus, and the contempt option. Just as these are good enough for the attorney-client privilege, they should also be good enough for the government. This is especially true given appellate courts’ unwillingness to extend Nixon beyond its unique circumstances.

En banc?

It will be interesting to see whether en banc rehearing is sought in this case. Although the Fifth Circuit held that the former Board members had not sufficiently pleaded standing to pursue their equal-protection claim, it left open the possibility that they could cure that defect via an amendment. Indeed, Judge Higginbotham’s concurrence was based on the assumption that they could do so. So the former Board members might prefer to simply return to the district court rather than litigate further in the Fifth Circuit.

But if they do, the issue might come before the Fifth Circuit again. If the former Board members adequately allege standing, they will probably seek the same discovery, the legislators will raise the same objections, the district court will reject those objections, and the legislators will appeal again.

Stallworth v. Bryant, 2019 WL 3940915 (5th Cir. 2019), available at the Fifth Circuit and Westlaw.