ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Misc. No. 79-00680
Before Adams and Garth, Circuit Judges, and Fisher, District Judge.*fn*
This controversy, which is before us for the second time, centers on the district court's innovative procedure for deciding whether confidential federal grand jury materials should be disclosed to a state criminal defendant. Finding that the district judge had the power to implement the contested procedure, and that his decision to adopt it did not constitute an abuse of discretion, we affirm.
The Honorable Robert A. Wright, a judge of the Pennsylvania Court of Common Pleas, currently presides over criminal proceedings against George Neagle. The Commonwealth of Pennsylvania has charged Neagle with, inter alia, assaulting and shooting Leonard Milano and Thomas Manley in May 1979. Manley died from injuries incurred during the incident; although wounded, Milano survived. It is expected that Milano will be a principal prosecution witness against Neagle in the state criminal trial.
At the time of the shooting, a federal grand jury in the Eastern District of Pennsylvania was investigating Milano's alleged criminal activities. As part of his discovery in connection with the state criminal trial, Neagle filed a motion in federal district court for disclosure of any grand jury materials relating to Milano that might prove exculpatory. He served the motion on the state prosecutor and the United States Attorney, but not on Judge Wright. On November 1, 1979, the district court entered an order directing the United States Attorney to assemble grand jury material relevant to Neagle's request. The court further directed the United States Attorney to transport the material to Judge Wright's chambers, and to consult with him about what evidence would constitute material disclosable under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). After obtaining a recommendation from Judge Wright, the United States Attorney was to communicate that recommendation to the district court, which would then determine whether Rule 6(e) of the Federal Rules of Criminal Procedure permitted disclosure.
Judge Wright objected to the district judge's proposals, and appealed from the district court order. In an opinion filed July 8, 1980, we dismissed the appeal on the ground that Judge Wright lacked standing to challenge the district court's order. In re Grand Jury Proceedings (Wright), 625 F.2d 1106 (3d Cir. 1980). Because the order was directed to the United States Attorney rather than to Judge Wright, we declined to interpret it as binding on the state court judge. Following our disposition of the appeal. Neagle made a motion for compliance with the district court's order. Judge Wright filed a reply. On September 23, 1980, the district court issued a new order, this time addressed to Judge Wright as well as to the federal prosecutor, which stated in relevant part: "Judge Wright is directed to meet and confer with the United States Attorney regarding the existence of any Brady material in the grand jury evidence." Judge Wright again appeals.
Before considering the merits of the appeal, we confront three preliminary issues: whether the district court's order of September 23, 1980 is appealable; if it is, whether Judge Wright has standing to pursue the appeal; and if he has, whether the district court had personal jurisdiction over Judge Wright to bind him by its order.
Ordinarily, a district court's order is a "final decision" appealable under 28 U.S.C. § 1291 only if it disposes of all claims between the parties.*fn1 The controverted order in the case at hand does not resolve the central issue before the district court Neagle's motion for disclosure. Nonetheless, all parties to this appeal agree that the order is "final" within the meaning of § 1291, under the doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949). That is, the parties claim that the September 23 order falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review, and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S. Ct. at 1225. See also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98 S. Ct. 2454, 2457-58, 57 L. Ed. 2d 351 (1978).
Application of the collateral order doctrine is appropriate. The district court's order conclusively determines the responsibilities of the state court judge in the federal disclosure proceeding. Moreover, the question of how responsibility for reviewing grand jury materials should be allocated between state and federal courts is distinct from the merits of Neagle's motion for disclosure. Finally, if Judge Wright complies with the order, he would seem to be barred from obtaining review of the propriety of the order, since it is doubtful that he could appeal from the eventual adjudication on the merits of Neagle's petition. Unless Judge Wright fails to comply with the November 23 order and is held in contempt, he will have no opportunity to challenge the procedure set up by the district court. In view of the official status of the appellant, noncompliance and contempt should not be required. See United States v. Nixon, 418 U.S. 683, 691-92, 94 S. Ct. 3090, 3099-3100, 41 L. Ed. 2d 1039 (1974).
The issue of standing, which proved nettlesome the first time this case came before us, presents no impediment to adjudication of the current appeal. The district court directed its original order exclusively to the United States Attorney. For this reason, we held that the first order imposed on Judge Wright no obligation whatsoever, and that a refusal on his part to meet with the United States Attorney would not prompt federal court sanctions. Because there was no impact on Judge Wright, he lacked standing to challenge the order. By contrast, the revised order of September 23, 1980, is directed to Judge Wright as well as to the United States Attorney. Should the state judge decline to comply with the second order, he would risk incurring the sanctions of the district court. Thus there is, in the present posture of the case, an "actual or threatened injury as a result of the putatively illegal" action. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1607, 60 L. Ed. 2d 66 (1979). The threat of harm is sufficiently imminent to confer on Judge Wright standing to pursue the instant appeal.*fn2
Personal jurisdiction is the final threshold issue. Judge Wright maintains that the district court lacked in personam jurisdiction over him because Neagle never served him with process and he did not appear before the district court to participate in its proceedings. We conclude, however, that the record is adequate to establish in personam jurisdiction.
As a general matter, personal jurisdiction may be acquired by a litigant's appearance or participation in the lawsuit. Ex parte Republic of Peru, 318 U.S. 578, 587, 63 S. Ct. 793, 799, 87 L. Ed. 1014 (1943). Moreover, objections to personal jurisdiction are waived if not timely asserted by motion or in the answer. Pila v. G. R. Leasing & Rent Corp., 551 F.2d 941, 942-43 (1st Cir. 1977); United States v. Article of Drug, 362 F.2d 923, 926-27 (3d Cir. 1966). See also Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969) ("because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object ... a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion ... or otherwise"). In this case, Judge Wright filed a reply to Neagle's motion for compliance. In ...