PETITION FOR A WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. William E.
Smith, Chief U.S. District Judge]
F.X. Kelly, Assistant Attorney General for the State of Rhode
Island, with whom Peter F. Kilmartin, Attorney General of the
State of Rhode Island, and Sean Lyness, Special Assistant
Attorney General for the State of Rhode Island, were on
brief, for petitioner.
C. Lockhart, with whom Stephen G. Dambruch, United States
Attorney, was on brief, for respondent.
Howard, Chief Judge, Kayatta and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
Rhode Island Department of Education and Training
("Department") petitions us for a writ of advisory
mandamus to answer the following question: May a state
government successfully invoke the attorney-client privilege
in response to a federal grand jury subpoena? The petition
comes in response to a holding by a federal district court in
the District of Rhode Island that the privilege is
categorically unavailable to a state government in receipt of
a federal grand jury subpoena. For the reasons discussed
below, we grant the writ and explain why such a categorical
rule is not appropriate.
that portions of the record are sealed, we discuss the
factual background of this matter only briefly. A federal
grand jury sitting in the District of Rhode Island subpoenaed
certain records from the Department. The Department moved to
quash the subpoena to the extent it sought to compel the
production of documents containing confidential
communications between Department staff and Department legal
counsel. The district court denied the motion and ordered the
Department to turn over the requested communications, holding
that, as a categorical matter, "the attorney-client
privilege does not shield communications between government
lawyers and their clients from a federal grand jury."
Order at 2, In re Grand Jury Subpoena (R.I. Dep't of
Labor and Training), No. 18-4 WES (D.R.I. Apr. 25,
2018). The district court declined to certify the issue for
appeal under 28 U.S.C. § 1292(b), Order at 5, In re
Grand Jury Subpoena (R.I. Dep't of Labor and
Training), No. 18-4 WES (D.R.I. May 16, 2018), leaving
the Department with only one traditional option for gaining
appellate review: refusing to comply with the subpoena,
incurring a contempt order, and appealing from that order.
Reluctant to violate a court order, the Department instead
petitioned this court for a writ of advisory mandamus under
28 U.S.C. § 1651 directing the district court to quash
consider first whether advisory mandamus is available. The
All Writs Act, 28 U.S.C. § 1651, empowers federal courts
to "issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages
and principles of law." One of these writs is the writ
of mandamus, which comes in two varieties. The more commonly
sought writ is that of supervisory mandamus, which is
available when "the issuance (or nonissuance) of [a
district court] order presents a question anent the limits of
judicial power, poses some special risk of irreparable harm
to the [party seeking mandamus], and is palpably
erroneous." United States v.
Horn, 29 F.3d 754, 769 (1st Cir. 1994). The
Department does not contend that this more common form of
mandamus is available here. Rather, it seeks a writ of
advisory mandamus, which we have described as being available
only in "rare cases; the usual requisites are that the
issue be an unsettled one of substantial public importance,
that it be likely to recur, and that deferral of review would
potentially impair the opportunity for effective review or
relief later on." United States v.
Pleau, 680 F.3d 1, 4 (1st Cir. 2012) (en banc).
little trouble concluding that the first two requisites for
invoking advisory mandamus are satisfied here. The parties
agree that the issue on which our opinion is sought is
unsettled in this circuit, while (as we will discuss) other
circuits are split. And the degree to which communications
between government counsel and public employees may be
shielded from a grand jury subpoena is of substantial public
importance. Significantly, too, the petition seeks our
opinion on a rule of law and not on the manner in which the
trial court exercised its discretion. See In re Insurers
Syndicate, 864 F.2d 208, 211 (1st Cir. 1988)
("[M]andamus, as a general rule, will not issue to
control exercises of judicial discretion."). We also see
the issue as likely to recur; the fact that multiple circuits
have already weighed in on the subject suggests as much, and
the United States offers little to persuade us otherwise.
Indeed, the ruling below in this very case makes it more
likely that grand juries will seek such information. And if
the district court ruling remains extant, it may dissuade
public officials in other cases from challenging subpoenas or
perfecting appeals from subsequent district court opinions
that track the holding below in this case. Finally, prolonged
doubt about the sustainability of the privilege in the face
of grand jury subpoenas could leave many public officials
uncertain about how to conduct themselves in seeking -- or
not seeking -- legal advice.
more challenging question is whether refusing to exercise our
mandamus jurisdiction "would potentially impair the
opportunity for effective review." Pleau, 680
F.3d at 4. The United States argues that the Department can
secure effective review by defying the subpoena, incurring a
contempt order, and appealing that order. The Department
concedes that a private party may follow such a path without
too much difficulty in order to obtain interlocutory review
of a discovery ruling. See Alexander v. United
States, 201 U.S. 117, 121 (1906). Nevertheless, the
Department contends that it has a heightened duty to follow
(and to be perceived to follow) the law. For that reason, it
argues that its ability to seek appellate review in ordinary
course is impaired as compared to the ability of private
parties to seek such review.
agree with the Department that the option of perfecting an
appeal in ordinary course by triggering a finding of contempt
may be materially less attractive -- and thus less readily
available -- to a government agency than it might be to a
private party. In so concluding, we recognize that we have
nevertheless twice found a witness's status as a
government employee insufficient to justify foregoing the
need to trigger a contempt finding as a predicate to appeal.
See Bennett v. City of Bos., 54
F.3d 18, 21 (1st Cir. 1995); Corporacion Insular de
Seguros v. Garcia, 876 F.2d 254, 260
(1st Cir. 1989). In neither case, however, were we asked to
consider a grant of advisory mandamus. Rather,
Bennett clearly concerned a request for traditional,
supervisory mandamus. See Bennett, 54 F.3d at 21
(analyzing the traditional mandamus factors). And while
Garcia did not expressly identify the form of
mandamus relief to which it referred, it relied on a Supreme
Court opinion that plainly concerned the subject of
traditional, supervisory mandamus relief. See
Garcia, 876 F.2d at 260 (citing Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S.
271, 290 (1988)). One of the factors required for this court
to grant traditional, supervisory mandamus is that the
district court order be "palpably erroneous."
Bennett, 54 F.3d at 21; see also Gulfstream
Aerospace Corp., 485 U.S. at 290 (finding traditional,
supervisory mandamus available only when the district court
"clearly overstepped its authority"). In such a
case, a party held in contempt can be relatively confident
that a successful appeal in ordinary course will deliver
vindication. To obtain advisory mandamus, however, the issue
must be "unsettled." Pleau, 680 F.3d at 4.
Hence the risk of being found in contempt with no eventual
vindication is greater in this case than it was in
Bennett or Garcia. For this reason the
Department has shown, albeit barely, that the enhanced
impediment it faces as a governmental entity to securing
appellate review in ordinary course supports a discretionary
grant of advisory mandamus relief assuming that all other
requisites are well satisfied. See In re The Justices of
the Supreme Court of P.R., 695 F.2d 17, 25 (1st Cir.
1982) (granting advisory mandamus relief even though
traditional appellate review was available because "[t]o
require the Justices unnecessarily to assume the role of
advocates or partisans on these issues would tend to
undermine their role as judges").
also confident that the other requisites are well satisfied.
The novelty of the question, its substantial public
importance, and its likeliness to recur -- coupled with the
strong solicitude the common law has afforded the
attorney-client privilege, see Upjohn Co.v.United States, 449 U.S. 383, 389 (1981),
and the heightened federalism concerns implicated in this
case, see In re Justices of Superior Court Dep't of
Mass. Trial Court, 218 F.3d 11, 16 (1st Cir. 2000) --
weigh in favor of our accepting jurisdiction. This question