noting that compilation of sentencing reports in the 600 cases at issue “consumed the equivalent of one-third of the time of one full-time employee in that District’s probation department”
How later courts described this case
- noting that compilation of sentencing reports in the 600 cases at issue “consumed the equivalent of one-third of the time of one full-time employee in that District’s probation department”
- concluding that defendant found not guilty by reason of insanity had right to appeal under 28 U.S.C. § 1291
- “The foundation of [the final judgment rule] is not in merely technical conceptions of ‘finality.’ It is one against piecemeal litigation.” (citation omitted)
- U.S. Attorney’s fulfilling duties owed as officer of court did not impair ability to accomplish responsibilities as member of executive branch, and ordering him to assist in judicial proceeding did not “impair the executive branch’s ability to fulfill its constitutional duties”
Written by the judges who cited it.
The opinion
BREWSTER, Senior District Judge,
Dissenting in Part and Concurring in Part:
I. SUMMARY
The members of the panel see this case in three different postures.. Graber, J. would AFFIRM the district court order of July 29, 2003, denying the government’s motion to set aside Standing Order DWM-28. Clifton, J., DISSENTING IN PART *1005 and CONCURRING IN PART, would REVERSE the district court order of July-29, 2003, and remand to the district court with instructions to vacate Standing Order DWM-28. I would VACATE the district court order of July 29, because the district court lacked subject matter jurisdiction to hear the government’s motion to set aside the Standing Order. Therefore, I would necessarily reach the government’s alternative mandamus petition and would DENY the writ.
Because a majority of the panel finds the district court had subject matter jurisdiction in the context of the Ray case to enter its order of July 29, 2003 denying the U.S. Attorney’s motion to set aside Standing Order DWM-28, it is incumbent upon me on that issue alternatively to address the July 29, 2003 order before us on the merits, which in turn requires the analysis of Standing Order DWM-28 on its merits. In that analysis I concur with section IV of the Graber, J. opinion which would affirm the July 29, 2003 order of the district court. That makes the Graber, J. opinion the majority opinion. The basis for my dissent follows.
II. JURISDICTION
The panel unanimously finds we have appeal jurisdiction under 28 U.S.C. § 1291 to review the only order on appeal here— the July 29, 2003 order of the district court which denied the motion of the U.S. Attorney to set aside Standing Order DWM-28.
My colleagues find that the district court below had subject matter jurisdiction to hear the U.S. Attorney’s motion to set aside Standing Order DWM-28, filed in the case of U.S. v. Ray, a position from which I respectfully dissent. The premise for my colleagues’ conclusion of district court jurisdiction to enter the July 29, 2003 order is that the order is a post-judgment order arising out of the Ray case and collateral to it, with which I disagree. Then my colleagues, considering the district court’s July 29 order (and therefore Standing Order DWM-28) on its merits, reach opposite conclusions, Graber, J., AFFIRMING and Clifton, J., REVERSING that July 29, 2003 Order.
I contend the July 29, 2003 Order of the district court should be VACATED because it is not a post-judgment order, as it has no substantive nexus with any rights or obligations of the parties to that concluded criminal case. The U.S. Attorney’s motion was improperly brought in the Ray case, and should have been dismissed without prejudice by the district court for lack of subject matter jurisdiction of the court sitting in the Ray case.
A. THE DISTRICT COURT ORDER OF JULY 29, 2003 SHOULD BE VACATED, SINCE THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION IN THE RAY CASE TO DECIDE THE MOTION FILED BY THE U.S. ATTORNEY IN THAT CASE.
The district court would have subject matter jurisdiction over the U.S. Attorney’s motion only if the motion pertained to some adjudicatory function of the district court arising in the Ray case. Many such examples appear in cases involving post-judgment orders and proceedings, but all of the circumstances involve rights and liabilities of parties or witnesses to the litigation, such as: 1) Orders for disposition of evidence, exhibits, property of parties or witnesses after the trial as a post-judgment detail; 2) Post-judgment orders concerning compensation of parties, witnesses, counsel, and other entitled persons; 3) Orders concerning post-judgment custody pending appeal; and 4) Orders result *1006 ing from post-judgment civil contempt hearings. 1
All of these subjects are matters of rights and obligations, and all interested persons have standing to be heard to assure that the orders do not violate due process rights of anyone connected with the disposition of the case.
All cases found concerning post-judgment orders sef forth the central requirement of post-judgment orders — that they have a substantive, not merely a temporal nexus to rights and liabilities of parties or other persons. See e.g., Watson v. County of Riverside, 300 F.3d 1092, 1095 (9th Cir.2002) (an award of attorneys’ fees); United Nuclear Corporation v. Cranford Insurance Company, 905 F.2d 1424 (10th Cir.1990) (post-judgment modification of a protective order); Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.1983) (a postjudgfnent civil contempt order imposing sanctions); Allen v. Minnstar, Inc., 8 F.3d 1470 (10th Cir.1993) (post-judgment order denying motion to supplement the record for appeal). American Ironworks & Erectors Inc. v. North American Construction Corporation, 248 F.3d 892 (9th Cir.2001) (postjudgment order disbursing funds from the court registry).
In contrast, the subject of the U.S. Attorney’s motion had nothing to do with any rights or liabilities of .the parties to the Ray case. The sentencing report is an administrative task mandated by § 994(w)(l) to the district court to submit historical empirical data on each closed criminal case to another Article III agency — the Sentencing Commission — for its possible use as a tool of oversight and improvement of . the criminal sentencing function of the federal courts into the future. The report of sentence is not filed in any criminal case, and it has no effect on the conviction which it is reporting to the Commission. The Standing Order of the district court which orders the U.S. Attorney to assemble the contents of the report of sentence and file it with the Court Clerk within' twenty days of each judgment of conviction likewise has nothing to do with any rights or liabilities connected to any criminal case and is not issued out of any particular case. It has no more relationship to the Ray case than, for example, would a standing order tasking the U.S. Attorney to provide janitorial services to clean up the courtroom and all its furniture after each'criminal case. I have been unable to find any case holding an order unrelated to any rights or liabilities of parties or witnesses to be’ a post-judgment order. 2
*1007 Nor is Standing Order DWM-28 analogous to orders of the court regulating-grand juries, approving search warrants, and reviewing wiretap warrant applications, all of which are reviewed and appeal-able by parties to criminal proceedings, and all of which involve constitutional protections to the accused. Those matters truly are at the very central core of the adjudicatory process, but none of these concerns attaches to the Standing Order at issue here.
I conclude that the Standing Order was not at all related to the Ray case, and if not, then the motion by the U.S. Attorney to set aside the Standing Order was not within the jurisdiction of the Ray case. Under those circumstances, the district court should have dismissed the motion for lack of subject matter jurisdiction instead of considering it on its merits and entering an order addressing the global merits of the Standing Order for all criminal cases in the District of Montana in the future.
For these reasons, I would VACATE the Order denying the U.S. Attorney’s motion to set aside Standing Order DWM-28 and REMAND to the district court handling the case of U.S. v. Ray with instructions to dismiss the U.S. Attorney’s motion for lack of subject matter jurisdiction in that case.
III. WRIT OF MANDAMUS
The above disposition would have necessitated the panel’s consideration of the petition for writ of mandate had it been the majority position of the panel.
Section IV of the Majority Opinion analyzes all of the challenges to the Standing Order presented by the U.S. Attorney, including the constitutional challenge under the separation of powers doctrine, and that analysis would have applied equally to a mandamus review. Although we do not reach the mandamus issue because we have a majority on the § 1291 appeal, were we required to reach the Mandamus issue I would deny it based on the Section IV analysis with which I concur.
. The majority's opinion draws an analogy between tasks that district courts regularly require litigants to complete, such as proposed findings of fact, and the written report of sentence that Standing Order DWM-28 requires Petitioner to prepare. An order requiring a litigant to prepare findings of fact, however, is not a post-judgment order, bufa post-trial prejudgment order. Additional examples of post-trial, pre-judgment orders include briefing motions, preparing proposed jury instructions, preparing proposed form of judgment announced by the trial court, preparing writs and subpoenas compelling witness attendance, preparing bail conditions announced by the Court, etc. Notably, all of these tasks can be distinguished from the Standing Order at issue before this panel, because these tasks all arise out of the underlying case and have a nexus to the rights and liabilities of the parties, in addition to being pre-judgment orders.
. Ironically, if the Standing Order at issue here were a post-judgment order, it would not be an appealable order, as post-judgment orders that are purely ministerial in nature do not meet the requirements of 28 U.S.C. § 1291 . See Blossom v. The Milwaukee & Chicago Railroad Co., 1 Wall. 655 , 68 U.S. 655 , 17 L.Ed. 673 (1863) (stating that "where the act complained of was a mere ministerial duty, necessarily growing out of the decree which was being carried into effect, no appeal would lie”); American Ironworks & Erectors, *1007 Inc. v. North American Construction Corp., 248 F.3d 892, 898 (9th Cir.2001) (stating that "[a] mere ministerial order, such as an order executing judgment or, in this case, an order to disburse funds from the court registry, is not a final appealable order”). Accordingly, if this Court were to treat Standing Order DWM-28 as a post-judgment order, it would have to dismiss the instant appeal as we do not have jurisdiction to hear appeals of orders that are merely ministerial in nature. Such a result would require the Court to consider the challenge of the Standing Order under mandamus.