noting "[t]here is no inherent conflict of interest in the appointment of a federal attorney assigned to the Internal Revenue Service to assist in or conduct a criminal tax investigation through grand jury proceedings”
How later courts described this case
- noting "[t]here is no inherent conflict of interest in the appointment of a federal attorney assigned to the Internal Revenue Service to assist in or conduct a criminal tax investigation through grand jury proceedings”
- further holding that even if the appeal could be deemed a “civil action,” the appeal would be dismissed because it would not materially advance ultimate termination of the litigation
- rejecting Sec. 1292(b) review of denial of motion to disqualify attorney for conflict of interest
- rejecting § 1292(b) review of denial of motion to disqualify attorney for conflict of interest
Written by the judges who cited it.
The opinion
CELEBREZZE, Circuit Judge,
dissenting.
I believe that this Court has jurisdiction to hear the appeal pursuant to 28 U.S.C. § 1292 (b) and that it should exercise its discretion and do so. The Third Circuit has apparently approved this result, In re Grand Jury Impaneled Jan. 21, 1975, 541 F.2d 373 (3d Cir. 1976); see also In re Grand Jury Investigation, 338 F.Supp. 1379 (W.D. Pa.1972), and the majority cites no cases on point holding to the contrary.
The majority’s assertion that this case does not involve a “civil action” squarely contradicts language in both United States v. Neiberger, 460 F.2d 290, 292 (6th Cir. 1972), and United States v. Calandra, 455 F.2d 750, 752-53 (6th Cir. 1972). The majority, curiously, does not mention Neiber-ger or Calandra , apparently seeking to overrule them sub silentio. 1
The majority’s concern with piecemeal appeals in the grand jury context is well founded, but it overreacts to this concern. There are two safeguards built into § 1292(b) which would sift out almost all interlocutory appeals like this one stemming from grand jury proceedings. First, there is the required certification by the district court and, second, there is the discretion given to the court of appeals to decide whether to hear such appeals. These safeguards would protect against interlocutory appeals in the grand jury context, save for the extraordinary case. I believe that this is an extraordinary case and that the prior panel did not act improvidently in exercising its discretion to hear the appeal.
I respectfully dissent.
. The majority’s mechanical interpretation of the phrase “civil action” goes too far. In another context, the Supreme Court has refused to find a “civil” or “criminal” label dispositive but has instead focused upon underlying policy considerations in deciding the propriety of federal abstention from interference with state court proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592 , 95 S.Ct. 1200 , 43 L.Ed.2d 482 (1975).