UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BYRD, REGINA

v.

RENO, JANET


99-5070a

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: Regina Byrd, an attorney at the Department  of Justice's
Office of Immigration Litigation, appeals the  district court's order
holding her in civil contempt for failing  to turn over audiotapes of
her conversations with supervisors  and a co-worker. The contempt
order arises out of Byrd's  ongoing employment discrimination suit
against the Attorney  General in which Byrd alleges she was
discriminated against  on the basis of her race in violation of Title
VII of the Civil  Rights Act of 1964, 42 U.S.C. ss 2000e et seq. For
the  reasons set forth below, we dismiss the appeal for lack of 


I.


Since 1994 Byrd has been employed as an attorney at the  Department of
Justice's Office of Immigration Litigation. On  October 15, 1996 Byrd
filed a complaint in district court  alleging that officials at the
Office of Immigration Litigation  discriminated against her on the
basis of her race. In the  course of the litigation Byrd claimed that
during her employ- ment she had secretly tape-recorded telephone
conversations  with supervisors and a co-worker. During discovery
proceed- ings the government sought access to the tapes but Byrd 
refused to produce them, invoking attorney work-product  privilege. On
March 18, 1998 the magistrate judge granted  the government's motion
to compel production of the tapes.  On June 4, 1998 the district court
affirmed the magistrate  judge's order, determining that the tapes
were not protected  as attorney work-product because Byrd's unethical
conduct in  secretly taping the conversations vitiated the privilege.
The  district court ordered Byrd to produce the tapes by June 10, 
1998. This court dismissed Byrd's interlocutory appeal of the  June 4
order for lack of jurisdiction. See Byrd v. Reno, No.  98-5230, 1998
WL 545432 (July 17, 1998).


On March 9, 1999 after Byrd repeatedly failed to comply  with orders to
turn over the tapes despite warnings that she 


would be held in contempt if she failed to do so, the district  court
ordered her to produce the tapes by March 10. The  court again warned
that noncompliance would result in a  finding of contempt and the
imposition of daily fines. Byrd  did not produce the tapes and the
district court issued an  order on March 15, 1999 holding her in
contempt and assess- ing a daily fine of $100 until the tapes are
turned over. Byrd  appealed and filed an emergency motion for a stay
pending  appeal. The government moves to dismiss on the ground  that
this court lacks jurisdiction over the district court's  order.


II.


Our jurisdiction over this appeal depends upon the continu- ing
validity of the rule that a civil contempt order against a  party in a
pending proceeding is not appealable as a final  order under 28 U.S.C.
s 1291. We recently observed that  our case law has generated an
apparent conflict on this issue  but concluded "there is substantial
doubt whether, if squarely  presented with the issue, we would deem
such a civil con- tempt order appealable." See In re Sealed Case, 151
F.3d  1059, 1064-65 (D.C. Cir. 1998) (per curiam) (Sealed Case).  We
are now presented with the issue and, as suggested in  Sealed Case,
hold that such an order is not appealable by a  party.


We observed in Sealed Case that "a civil contempt order  issued against
a party is typically deemed interlocutory and  thus not appealable
under 28 U.S.C. s 1291." 151 F.3d at  1064. The rule is
well-entrenched in Supreme Court case law  and the law of this
circuit. See Fox v. Capital Co., 299 U.S.  105, 107 (1936); Doyle v.
London Guarantee & Accident Co.,  204 U.S. 599 (1907); International
Ass'n of Machinists &  Aerospace Workers v. Eastern Airlines, Inc.,
849 F.2d 1481,  1484 (D.C. Cir. 1988); Duell v. Duell, 178 F.2d 683,
687 (D.C.  Cir. 1949) (describing rule as "thoroughly settled"). At
least  one circuit has held that the rule encompasses contempt  orders
enforcing discovery orders. See In re Joint Eastern 


& Southern Districts Asbestos Litig., 22 F.3d 755, 764-65 (7th  Cir.
1994).


As noted in Sealed Case, dicta in some of our recent cases  have cast
doubt on the continuing validity of the Doyle and  Fox rule in this
circuit. For example, we have stated that a  party seeking
interlocutory review of a discovery order must  disobey the order and
be cited for contempt and that "[h]e  may then appeal the contempt
order, which is considered  final, and argue that the discovery order
was flawed." In re  Sealed Case, 141 F.3d 337, 339 (D.C. Cir. 1998)
(Sealed Case  I). Similar language appears in In re Minister
Papandreou,  139 F.3d 247, 250 (D.C. Cir. 1998), and In re Kessler,
100 F.3d  1015, 1016 (D.C. Cir. 1997).


We explained the apparent conflict, however, in Sealed  Case. The dicta
in Papandreou, Kessler and Sealed Case I  relied upon a footnote in
Church of Scientology v. United  States, 506 U.S. 9, 18 n.11 (1992),
which states: "A party that  seeks to present an objection to a
discovery order immediate- ly to a court of appeals must refuse
compliance, be held in  contempt, and then appeal the contempt order."
As we noted  in Sealed Case, however, it is implausible that the
Supreme  Court intended to overrule, in a dictum (appearing in a 
footnote), its Fox and Doyle decisions. See Sealed Case, 151  F.3d at
1064. Moreover, the Supreme Court's footnote relied  upon an earlier
case, United States v. Ryan, 402 U.S. 530  (1971), in which the court
did not need to distinguish between  civil and criminal contempt
because that case involved the  recipient of a grand jury subpoena and
it was well-settled  that a non-party to a proceeding can obtain
immediate review  of a civil contempt order. See Lamb v. Kramer, 285
U.S. 217,  221 (1932); see also In re Sealed Case, 827 F.2d 776, 777
(D.C.  Cir. 1987) (person held in civil contempt for violating grand 
jury subpoena can obtain immediate review per Ryan); In re  Ryan, 538
F.2d 435, 437 (D.C. Cir. 1976) (non-party com- pelled to give
testimony not entitled to immediate review  unless first disobeys and
is held in contempt); cf. Kemp v.  Gay, 947 F.2d 1493, 1495-97 (D.C.
Cir. 1991) (involving  subpoena directed to non-party); Office of


United States Dep't of Treasury v. Dobbs, 931 F.2d 956, 957  (D.C. Cir.
1991). In addition, several circuits have applied  the Doyle and Fox
rule even after Church of Scientology.  See, e.g., Cleveland Hair
Clinic, Inc. v. Puig, 106 F.3d 165,  167 (7th Cir. 1997); Bingman v.
Ward, 100 F.3d 653, 655 (9th  Cir. 1996), cert. denied, 520 U.S. 1188
(1997); Consumers Gas  & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d
367, 370 (10th  Cir. 1996); Hahnemann Univ. Hosp. v. Edgar, 74 F.3d
456,  461 (3d Cir. 1996); Pro-Choice Network of Western New York  v.
Walker, 994 F.2d 989, 993-94 (2d Cir. 1993).


Byrd, however, argues that Doyle and Fox were long-ago  overruled by
Cobbledick v. United States, 309 U.S. 322 (1940),  in which the Court
held that an order denying a motion to  quash a grand jury subpoena is
not a final order. See id. at  324-30. As it did in Ryan, the Court
refused to allow an  immediate appeal until the witness disobeyed the
grand jury  subpoena and was held in contempt, although it did not 
distinguish between civil and criminal contempt. Byrd ar- gues that
this rule, making all contempt orders immediately  reviewable, traces
back to Bessette v. W.B. Conkey Co., 194  U.S. 324 (1904), and that
it, and not the rule set out in Doyle  and Fox, applies to a contempt
order entered against a party  in an ongoing proceeding. We think it
clear that Bessette  established no such rule; indeed, Doyle expressly
relies upon  Bessette to establish the rule that precludes a party
from  obtaining immediate review of a civil contempt order. See  204
U.S. at 603. Her argument that Cobbledick established  the rule,
however, is not so easily rejected.


Not since 1939 has the Court cited either Doyle or Fox in a  majority
opinion for the proposition that a party cannot  appeal a civil
contempt order until entry of final judgment.  See McCrone v. United
States, 307 U.S. 61, 62 (1939). The  year after deciding Cobbledick,
the Court, without comment- ing upon its jurisdiction, permitted an
interlocutory appeal of  a civil contempt order entered against a
party for violation of  a discovery order. See Sibbach v. Wilson &
Co., 312 U.S. 1  (1941). And as Byrd points out, nearly 20 years after
 McCrone, the Court explicitly stated, albeit in a dictum, that  the
Government "might of course have tested the[ ] validity  [of discovery
orders] in other ways, for example, by the route  of civil contempt."
United States v. Proctor & Gamble Co.,  356 U.S. 677, 680 (1958).


Moreover, Byrd notes that the Supreme Court has applied  Cobbledick and
Ryan to appeals of contempt orders issued for  disobeying discovery
orders, even though both cases involved  grand jury subpoenas. See
Firestone Tire & Rubber Co. v.  Risjord, 449 U.S. 368, 377 (1981);
Pennsylvania v. Ritchie,  480 U.S. 39, 50 n.8 (1987). These cases,
again in dicta, do not  distinguish between civil and criminal
contempt in discussing  whether a party who disobeys a discovery order
and is held in  contempt may obtain immediate review. Most recently,
and  not in a dictum, the Court grounded the right of a non-party  to
appeal an adjudication of contempt for violating a discovery  order
not in Lamb v. Cramer, which is part of the Doyle-Fox  line of cases,
but in Cobbledick and Ryan. See United States  Catholic Conference v.
Abortion Rights Mobilization, Inc.,  487 U.S. 72, 76 (1988).


Finally, Byrd argues that our lack of precision regarding  the
immediate appealability of a civil contempt order predates  both
Church of Scientology and International Association of  Machinists. In
National Right to Work Legal Defense v.  Richey, 510 F.2d 1239 (D.C.
Cir. 1975), we refused to grant  mandamus to review a discovery order
because the "holding  in Ryan indicates ... [that] the order may be
challenged  through disobedience." Id. at 1245. Admittedly, in Richey 
we also noted that in NAACP v. Button, 371 U.S. 539 (1963),  a case
upon which the petitioners in Richey attempted to rely,  the NAACP
"was repeatedly willing to subject itself to the  risk of either
criminal conviction or criminal contempt in  order to challenge
various orders compelling it to disclose its  membership lists." 510
F.2d at 1246. Yet we did not specify  whether we were merely
distinguishing Button or stating the  requirements of the Doyle-Fox


Against this backdrop it is not implausible to argue not  only that
Cobbledick overruled Doyle and Fox but also that  Richey, not
International Association of Machinists, is the  law in this circuit.
Of course, no other circuit has reached the  former conclusion. See In
re Licht & Semonoff, 796 F.2d 564,  568 (1st Cir. 1986); United States
v. Johnson, 801 F.2d 597,  599 (2d Cir. 1986); Thermice Corp. v.
Vistron Corp., 832 F.2d 


248, 251 (3d Cir. 1987); Brummer v. Board of Adjustment of  Ashville,
91 F.2d 720 (4th Cir. 1990) (table); In re Grand  Jury Subpoena, 926
F.2d 1423, 1429 (5th Cir. 1991); Uniroy- al Goodrich Tire Co. v.
Hudson, 97 F.3d 1452 (6th Cir. 1996)  (table); Powers v. Chicago
Transit Auth., 846 F.2d 1139 (7th  Cir. 1988); Omaha Indem. Co. v.
Wining, 949 F.2d 235, 238  (8th Cir. 1991): Bingman v. Ward, 100 F.3d
653, 655 (9th Cir.  1996); Consumers Gas & Oil, Inc. v. Farmland
Indus., Inc.,  84 F.3d 367, 369 (10th Cir. 1996); Howard Johnson Co.
v.  Khimani, 892 F.2d 1512, 1515 (11th Cir. 1990). And at least  one
circuit has explicitly described Cobbledick and Ryan as  applying only
to a civil contempt order entered against a non- party. See United
States v. Columbia Broad. Sys., Inc., 666  F.2d 364, 367 n.2 (9th Cir.


In the end, Byrd's argument must be rejected. The Su- preme Court has
never expressly overruled Doyle or Fox by  holding that a party may
obtain interlocutory review of a civil  contempt order. Until it does
so, Doyle and Fox remain good  law that this court must apply.


For these reasons, we hold that the traditional rule still  applies: a
civil contempt order against a party in a pending  proceeding is not
appealable as a final order under 28 U.S.C.  s 1291. This appeal fits
squarely within that rule. Byrd is a  party in an ongoing proceeding.
Moreover, the district  court's order involves civil rather than
criminal contempt  because it is designed to compel compliance with a
court  order rather than to punish for an earlier offense. See 
International Union, United Mine Workers of Am. v. Bag- well, 512 U.S.
821, 829 (1994) (per diem fine imposed for each  day contemnor fails
to comply with affirmative court order is  civil in nature).
Accordingly, the district court's contempt  order is not appealable as




__________

n * Because our holding may be inconsistent with circuit dicta, this 
opinion has been circulated to and approved by the entire court and 
thus constitutes the law of the circuit. See Irons v. Diamond, 670 
F.2d 265, 268 n.11 (D.C. Cir. 1981).


In Byrd's previous appeal of the June 4, 1998 order direct- ing her to
turn over the tapes, we held that her challenge to  the discovery
order does not fall within the collateral order  doctrine set forth in
Cohen v. Beneficial Industrial Loan  Corp., 337 U.S. 541, 546 (1949),
because the order "will be  reviewable upon entry of a final
judgment." Byrd v. Reno,  No. 98-5230, l998 WL 545432, at *1 (July 1,
1998). In this  appeal, she does not argue that the civil contempt
order alters  our analysis under Cohen.


Finally, even if the appeal were construed as a petition for  a writ of
mandamus, we would deny it. The remedy of  mandamus is reserved for
extraordinary circumstances in  which the petitioner demonstrates that
his right to issuance of  the writ is clear and indisputable and that
no other adequate  means to obtain relief exist. See Sealed Case, 151
F.3d at  1063. As previously noted, both the discovery and the con-
tempt orders will be reviewable after entry of final judgment.  See
id. at 1063 n.4 (criteria for collateral order doctrine  similar to
criteria for writ of mandamus). Moreover, Byrd  has not met her burden
of demonstrating that her right to  mandamus is clear and indisputable
because it is far from  clear that the district court erred. See
Chapman & Cole v.  Itel Container Int'l B.V., 865 F.2d 676, 686 (5th
Cir. 1989)  (attorney's clandestine recording of conversations
vitiates the  work-product privilege).


We conclude that this court lacks jurisdiction over the  district
court's contempt order and accordingly grant the  government's motion
to dismiss the appeal. Byrd's motion to  stay the order is therefore
moot. To the extent the appeal  may be construed as a mandamus
petition, the petition is  denied.


So ordered.