OCTOBER TERM, 1998
Syllabus
CUNNINGHAM
v. HAMILTON COUNTY, OHIO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 98-727. Argued April 19, 1999-Decided June 14, 1999
When petitioner, an attorney representing a plaintiff, failed to
comply with certain discovery orders, the Magistrate Judge granted
the respondent's motion for sanctions against petitioner under
Federal Rule of Civil Procedure 37(a)(4). The District Court
affirmed the sanctions order and also disqualified petitioner as
counsel. Although the District Court proceedings were ongoing,
petitioner immediately appealed the order affirming the sanctions
award. Because federal appellate court jurisdiction is ordinarily
limited to appeals from "final decisions of the district courts,"
28 U. S. C. § 1291, the Sixth Circuit dismissed for lack of
jurisdiction. It held that the sanctions order was not immediately
appealable under the collateral order doctrine, which provides that
certain orders may be appealed, notwithstanding the absence of
final judgment, but only when they are conclusive, resolve
important questions separate from the merits, and are effectively
unreviewable on appeal from the final judgment in the underlying
action,
e. g., Swint v.
Chambers County Comm'n,
514 U. S. 35, 42.
The court found these conditions unsatisfied because the issues
involved in petitioner's appeal were not completely separate from
the merits. Regarding petitioner's disqualification, the court held
that a nonparticipating attorney, like a participating attorney,
ordinarily must await final disposition of the underlying case
before filing an appeal. It avoided deciding whether the order was
effectively unreviewable absent an immediate appeal, but saw no
reason why, after final judgment in the underlying case, a
sanctioned attorney should be unable to appeal a sanctions
order.
Held: An order imposing sanctions on an attorney pursuant
to Rule 37(a)(4) is not a "final decision" under § 1291, even where
the attorney no longer represents a party in the case. Although the
Rule 37 sanction imposed on petitioner would not ordinarily be
considered a "final decision" because it neither ended the
litigation nor left the court only to execute its judgment, see,
e. g., Midland Asphalt Corp. v.
United States,
489 U. S. 794,
798, this Court has interpreted § 1291 to permit jurisdiction over
appeals that meet the conditions of the collateral order doctrine.
Respondent conceded that the sanctions order was conclusive, so at
least one of those conditions is presumed to have been
satisfied.
199
Appellate review of a Rule 37(a) sanctions order, however,
cannot remain completely separate from the merits. See,
e. g.,
Van Cauwenberghe v.
Biard, 486 U. S. 517, 521-522.
Here, some of the sanctions were based on the fact that petitioner
provided partial responses and objections to some of the
defendants' discovery requests. To evaluate whether those sanctions
were appropriate, an appellate court would have to assess the
completeness of her responses. Such an inquiry would differ only
marginally from an inquiry into the merits. Petitioner's argument
that a sanctions order is effectively unreviewable on appeal from a
final judgment suffers from at least two flaws. First, it ignores
the identity of interests between the attorney and client. The
effective congruence of those interests counsels against treating
attorneys like other nonparties, since attorneys assume an ethical
obligation to serve their clients' interests even where they might
have a personal interest in seeking vindication from the sanctions
order. See
Richardson-Merrell Inc. v.
Koller,
472 U. S. 424,
434-435. Second, unlike a contempt order, a Rule 37(a) sanctions
order lacks any prospective effect and is not designed to compel
compliance. To permit an immediate appeal would undermine the very
purposes of Rule 37(a), which was designed to protect courts and
opposing parties from delaying or harassing tactics during
discovery, and would undermine trial judges' discretion to
structure a sanction in the most effective manner. Finally, a Rule
37 sanction's appealability should not turn on an attorney's
continued participation, as such a rule could not be easily
administered and may be subject to abuse. Although a sanctions
order may sometimes impose hardship on an attorney, solutions other
than an expansive interpretation of § 1291's "final decision"
requirement remain available. Pp. 203-210.
144 F.3d
418, affirmed.
THOMAS, J., delivered the opinion for a unanimous Court.
KENNEDY, J., filed a concurring opinion,
post, p. 210.
Thomas C.
Goldstein argued the cause for
petitioner.
With him on the briefs were Jonathan D. Schiller and Teresa L.
Cunningham.
John J. Arnold argued the cause for
respondent. With him on the brief were
Carl J. Stich and
Shannon M. Reynolds.
200
JUSTICE THOMAS delivered the opinion of the Court. Federal
courts of appeals ordinarily have jurisdiction over appeals from
"final decisions of the district courts." 28 U. S. C. § 1291. This
case presents the question whether an order imposing sanctions on
an attorney pursuant to Federal Rule of Civil Procedure 37(a)(4) is
a final decision. We hold that it is not, even where, as here, the
attorney no longer represents a party in the case.
I
Petitioner, an attorney, represented Darwin Lee Starcher in a
federal civil rights suit filed against respondent and other
defendants. Starcher brought the suit after his son, Casey,
committed suicide while an inmate at the Hamilton County Justice
Center.1 The theory of the original complaint was that the
defendants willfully ignored their duty to care for Casey despite
his known history of suicide attempts.
A Magistrate Judge oversaw discovery. On May 29, 1996,
petitioner was served with a request for interrogatories and
documents; responses were due within 30 days after service. See
Fed. Rules Civ. Proc. 33(b)(3), 34(b). This deadline, however,
passed without compliance. The Magistrate Judge ordered the
plaintiff "by 4:00 p.m. on July 12, 1996 to make full and complete
responses" to defendants' requests for interrogatories and
documents and further ordered that four witnesses-Rex Smith,
Roxanne Dieffenbach, and two individual defendants-be deposed on
July 25, 1996.
Starcher v.
Correctional Medical Systems,
Inc., No.
Cl-95-815 (SD Ohio, July 11, 1996), p. 2.
Petitioner failed to heed the Magistrate Judge's commands. She
did not produce the requested documents, gave incomplete responses
to several of the interrogatories, and objected to several others.
Flouting the Magistrate Judge's
1 Starcher died sometime after he initiated the suit, and
Casey's sister became the new administrator of Casey's estate.
201
order, she noticed the deposition of Rex Smith on July 22, 1996,
not July 25, and then refused to withdraw this notice despite
reminders from defendants' counsel. And even though the Magistrate
Judge had specified that the individual defendants were to be
deposed only if plaintiff had complied with his order to produce
"full and complete" responses, she filed a motion to compel their
appearance. Respondent and other defendants then filed motions for
sanctions against petitioner.
At a July 19 hearing, the Magistrate Judge granted the
defendants' motions for sanctions. In a subsequent order, he found
that petitioner had violated the discovery order and described her
conduct as "egregious." App. to Pet. for Cert. 9a. Relying on
Federal Rule of Civil Procedure 37(a)(4), the Magistrate Judge
ordered petitioner to pay the Hamilton County treasurer $1,494,
representing costs and fees incurred by the Hamilton County
prosecuting attorney as counsel for respondent and one individual
defendant.2 He took care to specify, however, that he had not held
a contempt hearing and that petitioner was never found to be in
contempt of court.
The District Court affirmed the Magistrate Judge's sanctions
order. The court noted that the matter "ha[d] already consumed an
inordinate amount of the Court's time" and described the
Magistrate's job of overseeing discovery as a "task assum[ing] the
qualities of a full time occupation." App. to Pet. for Cert. lOa.
It found that "[t]he Magistrate Judge did not err in concluding
that sanctions were appropriate" and that "the amount of the
Magistrate Judge's award was not contrary to law."
Id., at
lla. The District Court also granted several defendants' motions to
disqualify petitioner as counsel for plaintiff due to the fact that
she was a material witness in the case.
2 He also ordered petitioner to pay $2,432 as costs and fees
incurred by other defendants in the case. Those sanctions were
later satisfied pursuant to a settlement agreement and are not at
issue in this appeal.
202
Although proceedings in the District Court were ongoing,
petitioner immediately appealed the District Court's order
affirming the Magistrate Judge's sanctions award to the United
States Court of Appeals for the Sixth Circuit. The Court of
Appeals, over a dissent, dismissed the appeal for lack of
jurisdiction.
Starcher v.
Correctional Medical Systems,
Inc., 144 F.3d
418 (1998). It considered whether the sanctions order was
immediately appealable under the collateral order doctrine, which
provides that certain orders may be appealed, notwithstanding the
absence of final judgment, but only when they "are conclusive, ...
resolve important questions separate from the merits, and ... are
effectively unreviewable on appeal from the final judgment in the
underlying action."
Swint v.
Chambers County Comm'n,
514 U. S. 35, 42 (1995) (citing
Cohen v.
Beneficial
Industrial Loan Corp., 337 U. S. 541, 546
(1949)). In the Sixth Circuit's view, these conditions were not
satisfied because the issues involved in petitioner's appeal were
not "completely separate" from the merits. 144 F. 3d, at 424. As
for the fact that petitioner had been disqualified as counsel, the
court held that "a non-participating attorney, like a participating
attorney, ordinarily must wait until final disposition of the
underlying case before filing an appeal."
Id., at 425. It
avoided deciding whether the order was effectively unreviewable
absent an immediate appeal but saw "no reason why, after final
resolution of the underlying case ... a sanctioned attorney should
be unable to appeal the order imposing sanctions."
Ibid.
The Federal Courts of Appeals disagree over whether an order of
Rule 37(a) sanctions against an attorney is immediately appealable
under § 1291. Compare,
e. g., Eastern Maico Distributors,
Inc. v.
Maico-Fahrzeugfabrik, G.m.b.h., 658 F.2d
944, 946-951
(CA3 1981) (order not immediately
appealable), with
Telluride Management Solutions, Inc. v.
Telluride Investment Group, 55 F.3d
463, 465
(CA9 1995) (order immediately appealable). We
granted a writ of cer-
203
tiorari, limited to this question, 525 U. S. 1098 (1999), and
now affirm.3
II
Section 1291 of the Judicial Code generally vests courts of
appeals with jurisdiction over appeals from "final decisions" of
the district courts. It descends from the Judiciary Act of 1789,
where "the First Congress established the principle that only
'final judgments and decrees' of the federal district courts may be
reviewed on appeal."
Midland Asphalt Corp. v.
United
States, 489 U. S.
794, 798 (1989) (quoting 1 Stat. 84); see generally Crick, The
Final Judgment as a Basis for Appeal, 41 Yale L. J. 539, 548-551
(1932) (discussing history of final judgment rule in the United
States). In accord with this historical understanding, we have
repeatedly interpreted § 1291 to mean that an appeal ordinarily
will not lie until after final judgment has been entered in a case.
See,
e. g., Quackenbush v.
Allstate Ins. Co.,
517 U. S. 706,
712
(1996); Digital Equipment Corp. v.
Desktop Direct,
Inc., 511 U. S. 863, 867 (1994);
Richardson-Merrell Inc.
v.
Koller, 472
U. S. 424, 430 (1985). As we explained in
Firestone Tire
& Rubber Co. v.
Risjord, 449 U. S. 368 (1981), the
final judgment rule serves several salutary purposes:
"It emphasizes the deference that appellate courts owe to the
trial judge as the individual initially called upon to decide the
many questions of law and fact that occur in the course of a trial.
Permitting piecemeal appeals would undermine the independence of
the district judge, as well as the special role that individual
plays in our judicial system. In addition, the rule is in
accordance with the sensible policy of avoid[ing] the obstruction
to just claims that would come from permitting the harassment and
cost of a succession of separate appeals from
3 Petitioner also sought review of the Sixth Circuit's decision
to apply its appealability ruling to petitioner rather than to
apply that ruling only prospectively. We declined to review this
question.
204
the various rulings to which a litigation may give rise, from
its initiation to entry of judgment. The rule also serves the
important purpose of promoting efficient judicial administration."
Id., at 374 (citations and internal quotation marks
omitted).
Consistent with these purposes, we have held that a decision is
not final, ordinarily, unless it "'ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.'"
Van Cauwenberghe v.
Biard, 486 U. S. 517, 521-522
(1988) (quoting
Catlin v.
United States, 324 U. S. 229, 233
(1945)).
The Rule 37 sanction imposed on petitioner neither ended the
litigation nor left the court only to execute its judgment. Thus,
it ordinarily would not be considered a final decision under §
1291. See,
e. g., Midland Asphalt Corp., supra, at
798;
Richardson-Merrell, supra, at 430. However, we have interpreted
the term "final decision" in § 1291 to permit jurisdiction over
appeals from a small category of orders that do not terminate the
litigation.
E. g., Quackenbush, supra, at 711-715;
Puerto
Rico Aqueduct and Sewer Authority v.
Metcalf &
Eddy, Inc., 506 U. S. 139, 142-147
(1993);
Mitchell v.
Forsyth, 472 U. S. 511, 524-530
(1985);
Cohen, supra, at 545-547. "That small category
includes only decisions that are conclusive, that resolve important
questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the underlying
action."
Swint, supra, at 42.4
4 Most of our collateral order decisions have considered whether
an order directed at a party to the litigation is immediately
appealable.
E. g., Coopers &
Lybrand v.
Livesay, 437 U. S. 463, 468-469
(1978). Petitioner, of course, was an attorney representing the
plaintiff in the case. It is nevertheless clear that a decision
does not automatically become final merely because it is directed
at someone other than a plaintiff or defendant. See
Richardson-Merrell Inc. v.
Koller, 472 U. S. 424,434-435
(1985) (rejecting, as outside collateral order doctrine, immediate
appeal of order disqualifying counsel). For example, we have
repeatedly held that a wit-
205
Respondent conceded that the sanctions order was conclusive,
Brief in Opposition 11, so at least one of the collateral order
doctrine's conditions is presumed to have been satisfied. We do not
think, however, that appellate review of a sanctions order can
remain completely separate from the merits. See
Van
Cauwenberghe, supra, at 527-530;
Coopers &
Lybrand v.
Livesay, 437 U. S. 463, 469
(1978). In
Van Cauwenberghe, for example, we held that the
denial of a motion to dismiss on the ground of
forum non
conveniens was not a final decision. We reasoned that
consideration of the factors underlying that decision such as "the
relative ease of access to sources of proof" and "the availability
of witnesses" required trial courts to "scrutinize the substance of
the dispute between the parties 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." 486 U. S., at 528.
Similarly, in
Coopers &
Lybrand, we held that a
determination that an action may not be maintained as a class
action also was not a final decision, noting that such a
determination was enmeshed in the legal and factual aspects of the
case. 437 U. S., at 469.
Much like the orders at issue in
Van Cauwenberghe and
Coopers &
Lybrand, a Rule 37(a) sanctions order
often will be inextricably intertwined with the merits of the
action. An evaluation of the appropriateness of sanctions may
require the reviewing court to inquire into the importance of the
information sought or the adequacy or truthfulness of a response.
See,
e. g., Thomas E. Hoar, Inc. v.
Sara Lee Corp.,
882 F.2d
682, 687
(CA21989) (adequacy of responses);
Outley
ness subject to a discovery order, but not held in contempt,
generally may not appeal the order. See,
e. g., United States
Catholic Conference v.
Abortion Rights Mobilization,
Inc., 487 U. S.
72, 76 (1988);
United States v.
Ryan, 402 U. S. 530, 533-534
(1971);
Cobbledick v.
United States, 309 U. S. 323, 327-330
(1940);
Webster Coal &
Coke Co. v.
Cassatt, 207
U. S. 181, 186-187 (1907);
Alexander v.
United
States, 201 U. S.
117, 121 (1906).
206
v.
New York, 837 F.2d
587, 590-591
(CA2 1988) (importance of incomplete
answers to interrogatories);
Evanson v.
Union Oil Company
of Cal., 619 F.2d
72, 74 (Temp. Emerg. Ct. App. 1980) (truthfulness of
responses). Some of the sanctions in this case were based on the
fact that petitioner provided partial responses and objections to
some of the defendants' discovery requests. To evaluate whether
those sanctions were appropriate, an appellate court would have to
assess the completeness of petitioner's responses. See Fed. Rule
Civ. Proc. 37(a)(3) ("For purposes of this subdivision an evasive
or incomplete disclosure, answer, or response is to be treated as a
failure to disclose, answer, or respond"). Such an inquiry would
differ only marginally from an inquiry into the merits and counsels
against application of the collateral order doctrine. Perhaps not
every discovery sanction will be inextricably intertwined with the
merits, but we have consistently eschewed a case-by-case approach
to deciding whether an order is sufficiently collateral. See,
e.
g., Digital Equipment Corp., 511 U. S., at 868;
Richardson-Merrell, 472 U. S., at 439.
Even if the merits were completely divorced from the sanctions
issue, the collateral order doctrine requires that the order be
effectively unreviewable on appeal from a final judgment.
Petitioner claims that this is the case. In support, she relies on
a line of decisions holding that one who is not a party to a
judgment generally may not appeal from it. See,
e. g.,
Karcher v.
May, 484 U. S. 72, 77 (1987).
She also posits that contempt orders imposed on witnesses who
disobey discovery orders are immediately appealable and argues that
the sanctions order in this case should be treated no
differently.
Petitioner's argument suffers from at least two flaws. It
ignores the identity of interests between the attorney and client.
Unlike witnesses, whose interests may differ substantially from the
parties', attorneys assume an ethical obligation to serve their
clients' interests.
Evans v.
Jeff D., 475
207
u. S. 717, 728 (1986). This obligation remains even where the
attorney might have a personal interest in seeking vindication from
the sanctions order. See
Richardson-Merrell, supra, at
434-435. In
Richardson-Merrell, we held that an order
disqualifying an attorney was not an immediately appealable final
decision. 472 U. S., at 429-440; see also
Flanagan v.
United States, 465 U. S. 259, 263-269
(1984) (order disqualifying attorney in criminal case not a "final
decision" under § 1291). We explained that "[a]n attorney who is
disqualified for misconduct may well have a personal interest in
pursuing an immediate appeal, an interest which need not coincide
with the interests of the client. As a matter of professional
ethics, however, the decision to appeal should turn entirely on the
client's interest."
Richardson-Merrell, supra, at 435
(citing ABA Model Rules of Professional Conduct 1.7(b), 2.1
(1985)). This principle has the same force when an order of
discovery sanctions is imposed on the attorney alone. See
In re
Coordinated Pretrial Proceedings in Petroleum Products Antitrust
Litigation, 747 F.2d
1303,
1305 (CA9 1984) (Kennedy, J.). The effective
congruence of interests between clients and attorneys counsels
against treating attorneys like other nonparties for purposes of
appeal. Cf.
United States Catholic Conference v.
Abortion
Rights Mobilization, Inc., 487 U. S. 72, 78
(1988).
Petitioner's argument also overlooks the significant differences
between a finding of contempt and a Rule 37(a) sanctions order.
"Civil contempt is designed to force the contemnor to comply with
an order of the court."
Willy v.
Coastal Corp.,
503 U. S. 131,
139 (1992). In contrast, a Rule 37(a) sanctions order lacks any
prospective effect and is not designed to compel compliance. Judge
Adams captured the essential distinction between the two types of
orders when he noted that an order such as civil contempt
"is not simply to deter harassment and delay, but to effect some
discovery conduct. A non-party's interest in resisting a discovery
order is immediate and usually sep-
208
arate from the parties' interests in delay. Before final
judgment is reached, the non-party either will have surrendered the
materials sought or will have suffered incarceration or steadily
mounting fines imposed to compel the discovery. If the discovery is
held unwarranted on appeal only after the case is resolved, the
non-party's injury may not be possible to repair. Under Rule 37(a),
no similar situation exists. The objective of the Rule is the
prevention of delay and costs to other litigants caused by the
filing of groundless motions. An attorney sanctioned for such
conduct by and large suffers no inordinate injury from a deferral
of appellate consideration of the sanction. He need not in the
meantime surrender any rights or suffer undue coercion." Eastern
Maico Distributors, 658 F. 2d, at 949-950 (citation and
footnote omitted).
To permit an immediate appeal from such a sanctions order would
undermine the very purposes of Rule 37(a), which was designed to
protect courts and opposing parties from delaying or harassing
tactics during the discovery process.5
5 In 1970, the prerequisites for imposing sanctions were
redesigned "to encourage judges to be more alert to abuses
occurring in the discovery process." Advisory Committee's Notes on
Fed. Rule Civ. Proc. 37(a)(4), 28 U. S.
C., p. 748. Before
1970, the Rule required a court, after granting a motion to compel
discovery but before imposing sanctions, to find the losing party
to have acted without substantial justification. At that time,
courts rarely exercised this authority to impose sanctions. See W.
Glaser, Pretrial Discovery and the Adversary System 154 (1968).
While the amended Rule retained the substantial justification
requirement, the placement of the requirement was changed so that
the Rule provided that the district court, upon granting the motion
to compel, "shall" impose the sanction unless it found that the
losing party's conduct was "substantially justified." The change in
placement signaled a shift in presumption about the appropriateness
of sanctions for discovery abuses. See Federal Discovery Rules:
Effects of the 1970 Amendments, 8 Colum. J. L. & Soc. Probs.
623, 642 (1972) ("The Advisory Committee reversed the presumption
in Rule 37(a)(4) in order to encourage the awarding of expenses and
fees wherever applicable").
209
Immediate appeals of such orders would undermine trial judges'
discretion to structure a sanction in the most effective manner.
They might choose not to sanction an attorney, despite abusive
conduct, in order to avoid further delays in their proceedings. Not
only would such an approach ignore the deference owed by appellate
courts to trial judges charged with managing the discovery process,
see
Firestone Tire &
Rubber Co., 449 U. S., at
374, it also could forestall resolution of the case as each new
sanction would give rise to a new appeal. The result might well be
the very sorts of piecemeal appeals and concomitant delays that the
final judgment rule was designed to prevent.
Petitioner finally argues that, even if an attorney ordinarily
may not immediately appeal a sanction order, special considerations
apply when the attorney no longer represents a party in the case.
Like the Sixth Circuit, we do not think that the appealability of a
Rule 37 sanction imposed on an attorney should turn on the
attorney's continued participation. Such a rule could not be easily
administered. For example, it may be unclear precisely when
representation terminates, and questions likely would arise over
when the 30-day period for appeal would begin to run under Federal
Rule of Appellate Procedure 4. The rule also could be subject to
abuse if attorneys and clients strategically terminated their
representation in order to trigger a right to appeal with a view to
delaying the proceedings in the underlying case. While we recognize
that our application of the final judgment rule in this setting may
require nonparticipating attorneys to monitor the progress of the
litigation after their work has ended, the efficiency interests
served by limiting immediate appeals far outweigh any nominal
monitoring costs borne by attorneys. For these reasons, an
attorney's continued participation in a case does not affect
whether a sanctions order is "final" for purposes of § 1291.
We candidly recognize the hardship that a sanctions order may
sometimes impose on an attorney. Should these hard-
210
ships be deemed to outweigh the desirability of restricting
appeals to "final decisions," solutions other than an expansive
interpretation of § 1291's "final decision" requirement remain
available. Congress may amend the Judicial Code to provide
explicitly for immediate appellate review of such orders. See,
e. g., 28 U. S. C. §§ 1292(a)(1)-(3). Recent
amendments to the Judicial Code also have authorized this Court to
prescribe rules providing for the immediate appeal of certain
orders, see §§ 1292(e), 2072(c), and "Congress' designation of the
rulemaking process as the way to define or refine when a district
court ruling is 'final' and when an interlocutory order is
appealable warrants the Judiciary's full respect."
Swint,
514 U. S., at 48 (footnote omitted). Finally, in a particular case,
a district court can reduce any hardship by reserving until the end
of the trial decisions such as whether to impose the sanction, how
great a sanction to impose, or when to order collection.
***
For the foregoing reasons, we conclude that a sanctions order
imposed on an attorney is not a "final decision" under § 1291 and,
therefore, affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE KENNEDY, concurring.
This case comes to our argument docket, of course, so that we
may resolve a split of authority in the Circuits on a
jurisdictional issue, not because there is any division of opinion
over the propriety of the underlying conduct. Cases involving
sanctions against attorneys all too often implicate allegations
that, when true, bring the law into great disrepute. Delays and
abuses in discovery are the source of widespread injustice; and
were we to hold sanctions orders against attorneys to be appealable
as collateral orders, we would risk compounding the problem for the
reasons suggested by Jus-
211
TICE THOMAS in his opinion for the Court. Trial courts must have
the capacity to ensure prompt compliance with their orders,
especially when attorneys attempt to abuse the discovery process to
gain a tactical advantage.
It should be noted, however, that an attorney ordered to pay
sanctions is not without a remedy in every case. If the trial court
declines to stay enforcement of the order and 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 or denying the stay. See
Richardson-Merrell Inc. v.
Koller, 472 U. S. 424, 435
(1985). In addition, if a contempt order is entered and there is no
congruence of interests between the person subject to the order and
a party to the underlying litigation, the order may be appealable.
See
In re Coordinated Pretrial Proceedings in Petroleum Products
Antitrust Litigation, 747 F.2d
1303, 1305-1306
(CA9 1984). In
United States Catholic
Conference v.
Abortion Rights Mobilization, Inc., 487 U.
S. 72, 76 (1988), a case involving a nonparty witness, we said:
"The right of a nonparty to appeal an adjudication of contempt
cannot be questioned. The order finding a nonparty witness in
contempt is appealable notwithstanding the absence of a final
judgment in the underlying action."
The case before us, however, involves an order for sanctions and
nothing more. I join the opinion of the Court and its holding that
the order is not appealable under the collateral order
doctrine.
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