Opinion · Court of Appeals for the First Circuit

United States v. Salter

421 F.2d 1393

Type
Opinion
Court
Court of Appeals for the First Circuit
Jurisdiction
Federal
Date
1970-02-24
Topic
bankruptcy

How later courts describe this case

  • declining to entertain an interlocutory appeal under section 1292(b) because "the only question is the admissibility of certain evidence on a legally relevant ... issue"
  • acknowledging the force of our Court of Appeals’ decision in Commonwealth Edison where an ultimate question of law in the case was posed by the pre-trial disclosure order — not true in Salter or here
  • discovery order not a controlling question of law; United States v. Woodbury, 263 F.2d 784, 788 (9th Cir. 1959) (order to produce documents over claim of privilege not controlling question of law

Citator

UpLaw has not yet analyzed United States v. Salter. The absence of a flag is not a finding that it is good law.

Cited by
12 opinions
UNITED STATES v. SALTER,421 F.2d 1393(1st Cir. 1970)
UNITED STATES of America and Robert Gray, Special Agent, Internal Revenue
Service, Petitioners, v. Lester H. SALTER, Respondent, and Local 57,
International Union of Operating Engineers, Intervenor.
Misc. No. 363.
United States Court of Appeals, First Circuit.
Submitted January 20, 1970.
Decided February 24, 1970.
Page 1394
Johnnie M. Walters, Asst. Atty. Gen., and Lee A. Jackson, Atty., Dept. of Justice, on petition for permission to appeal.

James R. McGowan, Providence, R.I., on motion to vacate order granting permission to appeal.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
ALDRICH, Chief Judge.
Respondent moves for reconsideration of our ex parte order allowing an interlocutory appeal, pursuant to the provisions of28 U.S.C. § 1292(b), from a discovery order of the district court in an Internal Revenue subpoena matter. His principal contention is that there is not a "controlling question of law," as statutorily required. We have assumed, without deciding, in similar circumstances that there would be such a question. Goldfine v. Pastore, 1 Cir., 1958,261 F.2d 519,521. On further consideration we believe there is not. Pre-trial disclosure may indeed involve an ultimate question of law in the case, Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., N.D.Ill., 1963,225 F. Supp. 332, aff'd335 F.2d 203, but it may not. Here the only question is the admissibility of certain evidence on a legally relevant, Lash v. Nighosian, 1 Cir., 1959,273 F.2d 185, cert. denied362 U.S. 904,80 S.Ct. 610,4 L.Ed.2d 554, issue. This is not a controlling question of law. United States v. Woodbury, 9 Cir., 1959,263 F.2d 784. We prefer the dissenting to the majority opinion in Groover, Christie Merritt v. LoBianco, 1964, 119 U.S.App.D.C. 50,336 F.2d 969.

The order allowing an interlocutory appeal is vacated. If the matter be thought sufficiently serious, a petition for mandamus may be filed.Cf. Lear Siegler, Inc. v. Adkins, 9 Cir., 1964,330 F.2d 595. We need hardly say that the burden here is much heavier, and a very substantial showing of prejudice must be made before we would even consider such a petition.Cf. Switzerland Cheese Ass'n, Inc. v. Horne's Market, Inc., 1 Cir., 1965,351 F.2d 552, aff'd385 U.S. 23,87 S.Ct. 193,17 L.Ed.2d 23.Page 347