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In re Grand Jury Empanelled August 14

decided: January 9, 1981.

IN THE MATTER OF: GRAND JURY EMPANELLED AUGUST 14, 1979 TRW CREDIT DATA, A DIVISION OF TRW, INC., APPELLANT


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Misc. No. 79-0144

Before Adams, Garth and Sloviter, Circuit Judges.

Author: Adams

Opinion OF THE COURT

In this appeal from the denial of a motion to quash a grand jury subpoena, appellant TRW Credit Data (TRW) seeks to determine whether such a subpoena is an "order of a court" within the meaning of § 604 of the Fair Credit Reporting Act, 15 U.S.C. § 1681b. Under the Act, a consumer reporting agency such as TRW may disclose credit information to nonsubscribers only when directed to do so by court order. We conclude that this matter does not present a final order appealable under 28 U.S.C. § 1291. Accordingly, we dismiss the appeal for lack of jurisdiction and do not pass on the question posed by TRW.

I. STATEMENT OF THE CASE

TRW is a consumer reporting agency whose activities are governed by the Fair Credit Reporting Act. TRW collects and stores consumer credit information from banks, lending institutions, retail outlets, as well as from public records. It then prepares updated credit profiles and disseminates them, upon request, to subscribers and individual consumers. Section 604 of the Act, 15 U.S.C. § 1681b, restricts the other permissible circumstances under which an agency such as TRW may disclose a credit report to someone other than the subscriber or the subject. The provision relevant to TRW's appeal states that:

A consumer reporting agency may furnish a consumer report under the following circumstances and no other:

(1) in response to the order of a court having jurisdiction to issue such an order.

15 U.S.C. § 1681b.

On February 27, 1980, a grand jury subpoena, issued at the request of the United States Attorney's Office by the Clerk of the United States District Court for the District of New Jersey, and signed by the deputy clerk, was served on TRW at its Parsippany, New Jersey offices. The subpoena called for production of "any and all credit files, reports, memoranda and correspondence" in TRW's possession relating to six named individuals under grand jury investigation for suspected felonies.

TRW moved to quash the subpoena, contending that it was not an "order of a court" within the meaning of § 604. If the subpoena could not be deemed a court order, TRW would be subject to penalties under the Act for making an unauthorized disclosure. The district court concluded that a grand jury subpoena issued under the seal of a court may be regarded as a court order, and denied the motion to quash. The judge, however, did not issue an order directing TRW to turn over the documents. He hoped, thereby, to preserve TRW's appeal from the denial of the motion to quash. If the judge had entered such a direction, it might have rendered the appeal moot, because TRW concedes that there would then have been an "order" covered by § 604.

Thereafter, a TRW representative appeared before the grand jury, but refused to surrender the documents covered by the subpoena despite the denial of the motion to quash. A hearing was then held before another district judge, who did enter an order directing TRW to supply the records that had been demanded. Rather than face a contempt citation, TRW complied with the order and surrendered the documents to the grand jury. TRW then brought this appeal from the action by the first district judge who had denied its request to quash the subpoena.

II. JURISDICTION

The government contends that this appeal should be dismissed for lack of jurisdiction because there is no final appealable order. TRW asserts that we have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. It is a firmly established rule, however, that denials of motions to quash grand jury subpoenas are not "final orders" appealable under § 1291. Cobbledick v. United ...


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